DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
Common Stock, Preferred Stock, Depositary Shares
and Debt Securities
UNDERWRITING AGREEMENT
September 19, 1995
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Duke Realty Investments, Inc. (the "Company") may from time to time
offer in one or more series (i) shares of Common Stock, $.01 par value (the
"Common Stock"), (ii) shares of preferred stock, $.01 par value (the "Preferred
Stock") and (iii) shares of Preferred Stock represented by depositary shares
(the "Depositary Shares"), with an aggregate public offering price of up to
$100,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). Duke Realty Limited Partnership (the "Operating
Partnership") may from time to time offer in one or more series unsecured debt
securities (the "Debt Securities"), with an aggregate principal amount of up to
$260,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). The Common Stock, Preferred Stock, Depositary Shares and
Debt Securities (collectively, the "Securities") may be offered, separately or
together, in separate series in amounts, at prices and on terms to be set forth
in one or more Prospectus Supplements as hereinafter defined. The Debt
Securities will be issued under one or more indentures, as amended or
supplemented (each, an "Indenture"), between the Operating Partnership and a
trustee (a "Trustee"). Each series of Debt Securities may vary, as applicable,
as to aggregate principal amount, maturity date, interest rate or formula and
timing of payments thereof, redemption or repayment provisions, and any other
variable terms which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time. As used herein, "the Representatives,"
unless the context otherwise requires, shall mean the parties to whom this
Agreement is addressed together with the other parties, if any, identified in
the applicable Terms Agreement (as hereinafter defined) as additional co-
managers with respect to Underwritten Securities (as hereinafter defined)
purchased pursuant thereto.
Whenever the Company or the Operating Partnership determines to make
an offering of Securities through the Representatives or through an underwriting
syndicate managed by the Representatives, the Company or the Operating
Partnership, as the case may be, will enter into an agreement (the "Terms
Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, the Representatives
and such other underwriters, if any, selected by the Representatives as have
authorized the
Representatives to enter into such Terms Agreement on their behalf (the
"Underwriters," which term shall include the Representatives whether acting
alone in the sale of the Underwritten Securities or as a member of an
underwriting syndicate and any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Underwritten
Securities shall specify the amount of Underwritten Securities to be initially
issued (the "Initial Underwritten Securities"), the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof), the amount of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, the names of such of the
Representatives or such other Underwriters acting as co-managers, if any, in
connection with such offering, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters from the Company or the
Operating Partnership, as the case may be, the initial public offering price, if
any, of the Initial Underwritten Securities, the time and place of delivery and
payment, any delayed delivery arrangements and any other variable terms of the
Initial Underwritten Securities (including, but not limited to, current ratings,
designations, liquidation preferences, voting and other rights, denominations,
interest rates or formulas, interest payment dates, maturity dates and
redemption or repayment provisions applicable to the Initial Underwritten
Securities). In addition, each Terms Agreement shall specify whether the
Underwriters will be granted an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the aggregate amount of
Underwritten Securities subject to such option (the "Option Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of the Option Securities agreed
to be purchased by the Underwriters as provided herein, if any. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between the Representatives and the Company or the Operating Partnership, as the
case may be. Each offering of Underwritten Securities through the
Representatives or through an underwriting syndicate managed by the
Representatives will be governed by this Agreement, as supplemented by the
applicable Terms Agreement.
The Company and the Operating Partnership have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 33-61361) for the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 430A or Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company and the Operating Partnership have filed such amendments thereto
as may have been required prior to the execution of the applicable Terms
Agreement. Such registration statement (as amended, if applicable) has been
declared effective by the Commission and an Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement and the prospectus constituting a part thereof (including in each case
the information, if any, deemed to be part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations), and each prospectus supplement relating to the
offering of Underwritten Securities pursuant to Rule 415 of the 1933 Act
Regulations (the "Prospectus Supplement"), including all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act")
or otherwise, are collectively referred to herein as the "Registration
Statement" and the "Prospectus," respectively; provided that if any revised
prospectus shall be provided to the Representatives by the Company or the
Operating Partnership for use in connection with the offering of Underwritten
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Company or the Operating Partnership
pursuant to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus"
shall refer to each such revised prospectus from and after the time it is first
provided to the Representatives for such use; provided, further, that a
Prospectus Supplement shall be deemed to have supplemented the Prospectus only
with respect to the offering of Underwritten Securities to which it relates.
Any registration statement (including any supplement thereto or information
which is deemed part thereof) filed by the Company or the Operating Partnership
under Rule 462(b) of the 1933 Act Regulations (a "Rule 462(b) Registration
Statement") shall be deemed to be part of the Registration Statement. Any
prospectus (including any amendment or supplement thereto or information which
is deemed part thereof) included in the Rule 462(b) Registration Statement and
any term sheet as contemplated by Rule 434 of the 1933 Act Regulations (a "Term
Sheet") shall be deemed to be part of the Prospectus. All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall
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be deemed to mean and include all such financial statements and schedules and
other information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement or
the Prospectus shall be deemed to mean and include the filing of any document
under the 1934 Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
The term "subsidiary" means a corporation or a partnership a majority
of the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Company or the
Operating Partnership, as the case may be, or by one or more other subsidiaries
of the Company or the Operating Partnership.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
OPERATING PARTNERSHIP.
(a) The Company and the Operating Partnership represent and warrant,
jointly and severally, to the Representatives, as of the date hereof, and to the
Representatives and each other Underwriter named in the applicable Terms
Agreement, as of the date thereof (in each case, a "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied, and as of each
Representation Date will comply, in all material respects with the
requirements of the 1933 Act Regulations and the 1939 Act and the rules and
regulations thereunder (the "1939 Act Regulations"). The Registration
Statement, at the time the Registration Statement became effective, did
not, and as of each Representation Date, will not, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof does not, and as of each
Representation Date (unless the term "Prospectus" refers to a prospectus
which has been provided to you by the Company or the Operating Partnership
for use in connection with an offering of Underwritten Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at the time it is
first provided to you for such use) and Closing Time (as hereinafter
defined) will not, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company or the Operating
Partnership in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement or Prospectus or to that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification on Form T-1 under the 1939 Act (the
"Statement of Eligibility") of a Trustee under an Indenture. If a Rule
462(b) Registration Statement is required in connection with the offering
and sale of the Securities, the Company and the Operating Partnership have
complied or will comply with the requirements of Rule 111 under the 1933
Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary prospectus, Prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will
comply when so filed in all material respects with the 1933 Act and the
1933 Act Regulations thereunder.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the 1933
Act, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission under the 1934
Act (the "1934 Act Regulations"), and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective and as of the applicable Representation Date or Closing
Time or during the period
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specified in Section 3(f), did not and will not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) KPMG Peat Marwick LLP, the accounting firm that audited the
financial statements and supporting schedules included in, or incorporated
by reference into, the Registration Statement and Prospectus, are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(v) The financial statements (including the notes thereto)
included in, or incorporated by reference into, the Registration Statement
and the Prospectus present fairly the financial position of the respective
entity or entities presented therein at the respective dates indicated and
the results of their operations for the respective periods specified;
except as otherwise stated in the Registration Statement and Prospectus,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; the
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
required to be stated therein; and the Company's ratios of earnings to
fixed charges (actual and, if any, proforma) included the Prospectus under
the caption "Selected Consolidated Financial Data" and in Exhibit 12 to the
Registration Statement have been calculated in compliance with Item 503(d)
of Regulation S-K of the Commission. The financial information and data
included in the Registration Statement and the Prospectus present fairly
the information included therein and have been prepared on a basis
consistent with that of the financial statements included or incorporated
by reference in the Registration Statement and the Prospectus and the books
and records of the respective entities presented therein. Pro forma
financial information included in or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in accordance
with the applicable requirements of the 1933 Act, the 1933 Act Regulations
and guidelines of the American Institute of Certified Public Accountants
with respect to pro forma financial information and includes all
adjustments necessary to present fairly the pro forma financial position of
the Operating Partnership and the Company, as applicable, at the respective
dates indicated and the results of operations for the respective periods
specified.
(vi) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company or the Operating Partnership, threatened by the Commission or by
the state securities authority of any jurisdiction. No order preventing or
suspending the use of the Prospectus has been issued and no proceeding for
that purpose has been instituted or, to the knowledge of the Company or the
Operating Partnership, threatened by the Commission or by the state
securities authority of any jurisdiction.
(vii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of the Company, the Operating Partnership and
any of their respective subsidiaries, whether or not arising in the
ordinary course of business; (B) there has been no adverse change, material
to the Duke Group (as hereinafter defined) as a whole, in the condition,
financial or otherwise, or in the earnings, assets, business affairs or
business prospects of any of the real properties owned, directly or
indirectly, by the Company, the Operating Partnership or any subsidiary
(the "Properties") or any entity wholly or partially owned by the Company,
the Operating Partnership or any subsidiary which owns any Property (a
"Property Partnership") (the Company, the Operating Partnership, the
subsidiaries and the Property Partnerships are hereinafter jointly referred
to as the "Duke Group") , whether or not arising in the ordinary course of
business; (C) no material casualty loss or material condemnation or other
material adverse event with respect to any Property has occurred; (D) there
have been no transactions or acquisitions entered into by the Duke Group,
other than those in the ordinary course of business, which are material
with respect to the Duke Group as a whole; (E) neither the Company, the
Operating Partnership nor any
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of their respective subsidiaries has incurred any obligation or liability,
direct, contingent or otherwise which is material to the Duke Group as a
whole; (F) there has been no material change in the short-term debt or
long-term debt of the Duke Group as a whole; (G) except for regular
quarterly dividends on the Common Stock and dividends on the Preferred
Stock in amounts per share that are consistent with past practice, there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock; and (H) with the exception
of transactions in connection with stock option and dividend reinvestment
plans, the issuance of shares of Common Stock upon the exchange of
partnership interests in the Operating Partnership ("Units") and the
issuance of Units in connection with the acquisition of real or personal
property, there has been no change in the capital stock of the Company or
in the partnership interests, as the case may be, of the Company, the
Operating Partnership or any subsidiary.
(viii) Each of the Company and the Operating Partnership has been
duly formed, and is validly existing and in good standing as a corporation
or partnership under the laws of its jurisdiction of organization, with
partnership or corporate power and authority to conduct the business in
which it is engaged or proposes to engage and to own, lease and operate its
properties as described in the Prospectus and to enter into and perform its
obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company's and the Operating Partnership's
subsidiaries has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its jurisdiction
of organization, with partnership or corporate power and authority to
conduct the business in which it is engaged or proposes to engage and to
own, lease and operate its properties as described in the Prospectus.
(x) Each of the Company, the Operating Partnership, their
respective subsidiaries and the Property Partnerships is duly qualified or
registered as a foreign partnership or corporation in good standing and
authorized to do business in each jurisdiction in which such qualification
is required whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects of the Duke
Group considered as a single enterprise (a "Material Adverse Effect").
(xi) If the applicable Underwritten Securities are issued by the
Company, the capital stock of the Company as of the date specified therein
was as set forth in the Prospectus under "Capitalization." All the issued
and outstanding shares of capital stock of the Company have been duly
authorized and are validly issued, fully paid and non-assessable and have
been offered and sold in compliance with all applicable laws (including,
without limitation, federal, state or foreign securities laws).
(xii) If the applicable Underwritten Securities are issued by the
Operating Partnership, the partner's equity of the Operating Partnership is
as set forth in the Prospectus under "Capitalization." All the issued and
outstanding Units have been duly authorized and are validly issued, fully
paid and non-assessable, except as provided under Indiana Code Section
23-16-7-8, and have been offered and sold or exchanged in compliance with
all applicable laws (including, without limitation, federal, state or
foreign securities laws).
(xiii) All of the issued and outstanding shares of capital stock
and partnership interests, as the case may be, of each subsidiary have been
validly issued and fully paid and, other than the Property Partnerships,
Duke Realty Services Limited Partnership (the "Services Partnership") and
Duke Construction Limited Partnership (the "Construction Partnership"), are
owned by the Company, the Operating Partnership or a subsidiary, in each
case free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. Neither the Company nor the Operating
Partnership owns any direct or indirect equity interest in any entity other
than the subsidiaries and the Property Partnerships, except for such
interests as, in the aggregate, are not material to the condition,
financial or otherwise, or the earnings,
5
assets, business affairs or business prospects of the Duke Group considered
as a single enterprise. Duke Services, Inc. is the sole general partner
and a 1% owner of the Services Partnership, and the Operating Partnership
and DMI Partnership are the sole limited partners and 9% and 90% owners,
respectively, of the Services Partnership. The Services Partnership is the
sole general partner and a 1% owner of the Construction Partnership. The
99% limited partnership interest of the Construction Partnership is owned
by Duke Realty Construction, Inc., an Indiana corporation which is owned
4.04% by the Services Partnership and 95.96% by DMI Partnership.
(xiv) Except for transactions described in the Prospectus and
transactions in connection with stock option and dividend reinvestment
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 Units which may
be issued in exchange for shares of Common Stock.
(xv) Each of the Property Partnerships has been duly formed as a
partnership or a limited liability company, as the case may be, and is
validly existing and in good standing as a partnership or limited liability
company under the laws of its jurisdiction of organization and, if formed
under the laws of a jurisdiction other than the State of Indiana, in good
standing under the laws of such jurisdiction; each of the Property
Partnerships has the requisite power and authority to own, lease and
operate its properties, to conduct the business in which it is engaged and
to enter into and perform its respective obligations under the agreements,
to which it is a party. Each of the partnership or operating agreements,
as the case may be, of the Property Partnerships is in full force and
effect.
(xvi) The applicable Underwritten Securities, if such Underwritten
Securities are either Common Stock, Preferred Stock or Depositary Shares,
have been duly authorized by the Company for issuance and sale to the
Underwriters pursuant to this Agreement, and, when issued and delivered by
the Company, pursuant to this Agreement and the applicable Terms Agreement
against payment of the consideration set forth in the Terms Agreement or
any Delayed Delivery Contract (as defined in Section 2 hereof), will be
validly issued, fully paid and non-assessable. Upon payment of the
purchase price and delivery of such Underwritten Securities in accordance
herewith, each of the Underwriters will receive good, valid and marketable
title to such Underwritten Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and equities.
The terms of such applicable Underwritten Securities conform to all
statements and descriptions related thereto contained in the Prospectus.
The form of stock or depositary certificate to be used to evidence the
applicable Underwritten Securities will be in due and proper form and will
comply with all applicable legal requirements. The issuance of such
applicable Underwritten Securities is not subject to any preemptive or
other similar rights.
(xvii) The applicable Underwritten Securities, if such Underwritten
Securities are Debt Securities, are in the form contemplated by the
Indenture, have been duly authorized by the Operating Partnership for
issuance and sale to the Underwriters pursuant to this Agreement and, when
executed, authenticated, issued and delivered in the manner provided for in
this Agreement, any Terms Agreement and the applicable Indenture, against
payment of the consideration therefor specified in the applicable Terms
Agreement or any Delayed Delivery Contract (as defined in Section 2
hereof), such Debt Securities will constitute valid and legally binding
obligations of the Operating Partnership, entitled to the benefits of the
Indenture and such Debt Securities will be enforceable against the
Operating Partnership in accordance with their terms. Upon payment of the
purchase price and delivery of such Underwritten Securities in accordance
herewith, each of the Underwriters will receive good, valid and marketable
title to such Underwritten Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and equities.
The terms of such applicable Underwritten Securities conform to all
statements and descriptions related thereto in the Prospectus. Such
Underwritten Securities rank and will rank on a parity with all unsecured
indebtedness (other than subordinated indebtedness) of the Operating
Partnership that
6
is outstanding on the Representation Date or that may be incurred
thereafter, and senior to all subordinated indebtedness of the Operating
Partnership that is outstanding on the Representation Date or that may be
incurred thereafter, except that such Underwritten Securities will be
effectively subordinated to the prior claims of each secured mortgage
lender to any specific Property which secures such lender's mortgage.
(xviii) If applicable, the Common Stock issuable upon conversion of
any of the Preferred Stock (including Preferred Stock represented by
Depositary Shares) will have been duly and validly authorized and reserved
for issuance upon such conversion or exercise by all necessary action and
such stock, when issued upon such conversion or exercise, will be duly and
validly issued, fully paid and non-assessable, and the issuance of such
stock upon such conversion or exercise will not be subject to preemptive or
other similar rights; the Common Stock so issuable conforms in all material
respects to all statements relating thereto contained in the Prospectus.
(xix) None of the entities comprising the Duke Group is in
violation of its charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, or in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which such entity may be
bound, or to which any of its property or assets is subject, which default
separately or in the aggregate would have a Material Adverse Effect.
(xx) (A) This Agreement has been duly and validly authorized,
executed and delivered by the Company and the Operating Partnership, and,
assuming due authorization, execution and delivery by the Representatives,
constitutes a valid and binding obligation of the Company and the Operating
Partnership, enforceable in accordance with its terms, and (B) at the
Representation Date, the Terms Agreement and the Delayed Delivery Contracts
(as defined in Section 2 hereof), if any, will have been duly and validly
authorized, executed and delivered by the Company and the Operating
Partnership, as the case may be, and, assuming due authorization, execution
and delivery by the Representatives will be valid and binding agreements,
enforceable in accordance with its or their terms.
(xxi) If applicable, the Indenture (A) has been duly qualified
under the 1939 Act, has been duly and validly authorized, executed and
delivered by the Operating Partnership, and when executed and delivered by
the Trustee, will constitute a valid and binding obligation of the
Operating Partnership, enforceable in accordance with its terms, and (B)
conforms in all material respects to the description thereof in the
Prospectus.
(xxii) Each of the partnership agreements to which any of the
Company, the Operating Partnership or their respective subsidiaries is a
party has been duly authorized, executed and delivered by such party and
constitutes a valid and binding obligation thereof, enforceable in
accordance with its terms.
(xxiii) The execution and delivery of this Agreement, the applicable
Terms Agreement, any Indenture and the Underwritten Securities, the
performance of the obligations set forth herein or therein, and the
consummation of the transactions contemplated hereby and thereby or in the
Prospectus by the Company and the Operating Partnership, will not conflict
with or constitute a breach or violation by the Company or the Operating
Partnership of, or default under, or result in the creation of imposition
of any lien, charge or encumbrance upon any Property or assets of the Duke
Group pursuant to any contract, indenture, mortgage, loan agreement, note,
lease, joint venture or partnership agreement or other instrument or
agreement to which the Company, the Operating Partnership or any subsidiary
is a party or by which they, either of them, any of their respective
properties or other assets or any Property may be bound or subject which is
material to the Duke Group as a whole; nor will such action conflict with
or constitute a breach or violation by the Company or the Operating
Partnership of, or default under, (A) the charter, by-laws, certificate of
limited partnership or partnership agreement, as the case may be, of the
7
Company, the Operating Partnership or any subsidiary or (B) to the extent
it is material, any applicable law, rule, order, administrative regulation
or administrative or court decree.
(xxiv) 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.
(xxv) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company or the Operating Partnership, threatened
against or affecting any entity belonging to the Duke Group, any Properties
or any officer or director of the Company, which is material to the Duke
Group as a whole and is required to be disclosed in the Registration
Statement or the Prospectus (other than as disclosed therein), or that, if
determined adversely to any entity belonging to the Duke Group or any
Property, or any such officer or director, will or could reasonably be
expected to result in any Material Adverse Effect, or which might
materially and adversely affect the Properties or assets of the Duke Group
or which might materially and adversely affect the consummation of this
Agreement, the applicable Terms Agreement, the Indenture, if any, or the
transactions contemplated herein and therein. There are no pending legal
or governmental proceedings to which any entity belonging to the Duke Group
is a party or of which they or any of their respective properties or assets
or any Property or Property Partnership is the subject, including ordinary
routine litigation incidental to the business, that are, considered in the
aggregate, material to the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Duke Group
as a whole. There are no statutes or contracts or documents of the
entities comprising the Duke Group which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xxvi) No authorization, approval, consent or order of any court or
governmental authority or agency is required that has not been obtained in
connection with the consummation by the Company, the Operating Partnership
or both, as the case may be, of the transactions contemplated by this
Agreement, the applicable Terms Agreement, or the applicable Indenture, if
any, except such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or state or foreign
securities laws or real estate syndication laws or such as have been
received prior to the date of this Agreement.
(xxvii) At all times since February 13, 1986, the Company has been,
and upon the sale of the applicable Underwritten Securities, the Company
will continue to be, organized and operated in conformity with the
requirements for qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code"), and its proposed
method of operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(xxviii) 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.
(xxix) 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.
(xxx) Each entity belonging to the Duke Group possesses such
material certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies
8
necessary to conduct the business now operated by it, or proposed to be
conducted by it, and none of the entities comprising the Duke Group has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
(xxxi) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company or the Operating
Partnership under the 1933 Act.
(xxxii) The Common Stock will be listed on the New York Stock
Exchange on the applicable Representation Date and at the applicable
Closing Time. Unless otherwise agreed upon with reference to Preferred
Stock, as of the applicable Representation Date the Preferred Stock will
have been approved for listing on the New York Stock Exchange upon notice
of issuance.
(xxxiii) The Debt Securities will have an investment grade rating
from one or more nationally recognized statistical rating organizations at
the Representation Date and at the applicable Closing Time.
(xxxiv) (A) With respect to the Properties, the Company or the
Operating Partnership and the Property Partnerships have good and
marketable title to all items of real property (and improvements thereon),
leasehold interests and general and limited partnership interests, in each
case free and clear of all liens, encumbrances, claims, security interests
and defects, except such as are (i) described in the Prospectus or the
Company's Annual Report on Form 10-K for the most recent fiscal year ended,
(ii) referred to in the title policies of such Properties, (iii) serving as
security for loans described in the Prospectus, and (iv) nonmaterial and
placed on a Property in connection with such Property's development; (B)
all contracts of the Operating Partnership and any subsidiary to provide
leasing, property management and construction management services, general
contractor services for third parties, and real estate development,
construction and miscellaneous tenant services businesses (the "Related
Businesses"), are enforceable by and in the name of the Operating
Partnership and the applicable subsidiary, as the case may be; (C) all
liens, charges, encumbrances, claims, or restrictions on or affecting any
of the Properties or Related Businesses and the assets of the entities
comprising the Duke Group which are required to be disclosed in the
Prospectus are disclosed therein; (D) neither the Operating Partnership,
any Property Partnership nor any tenant of any of the Properties is in
default under any of the ground leases (as lessee) or space leases (as
lessor) relating to, or any of the mortgages or other security documents or
other agreements encumbering or otherwise recorded against, the Properties,
and none of the entities comprising the Duke Group knows of any event
which, but for the passage of time or the giving of notice, or both, would
constitute a default under any of such documents or agreements, other than
such defaults that would not have a Material Adverse Effect; (E) no tenant
under any of the leases, pursuant to which the Operating Partnership or any
Property Partnership, as lessor, leases its Property, has an option or
right of first refusal to purchase the premises demised under such lease,
the exercise of which would have a Material Adverse Effect; (F) each of the
Properties complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and
regulations and laws relating to access to the Properties), except for such
failures to comply that would not individually or in the aggregate have a
Material Adverse Effect; and (G) neither the Company nor the Operating
Partnership has knowledge of any pending or threatened condemnation
proceedings, zoning change, or other proceeding or action that will in any
manner affect the size of, use of, improvements on, construction on or
access to the Properties, except such proceedings or actions that would not
have a Material Adverse Effect on the condition, financial or otherwise, or
on the earnings, assets, business affairs or business prospects of or with
respect to such Property, the Operating Partnership or the Property
Partnership owning an interest in such Property.
9
(xxxv) Immediately following the application of the proceeds of the
sale of the Underwritten Securities in the manner set forth in the
Prospectus, the mortgages and deeds of trust encumbering the Properties and
assets described in the Prospectus will not be convertible and none of the
Property Partnerships nor any person related to or affiliated with the
Property Partnerships will hold a participating interest therein and said
mortgages and deeds of trust will not be cross-defaulted or cross-
collateralized with any property not owned by the Operating Partnership.
(xxxvi) Each of the Company, the Operating Partnership and their
respective subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and none
of the Company, the Operating Partnership and their respective subsidiaries
has any reason to believe that it or any of its subsidiaries will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its businesses at a cost that would not have a
Material Adverse Effect, except as described in or contemplated by the
Registration Statement and the Prospectus.
(xxxvii) The Company and the Operating Partnership have not taken and
will not take, directly or indirectly, any action prohibited by Rule 10b-6
under the 1934 Act.
(xxxviii) The assets of the Company do not constitute "plan assets"
under the Employee Retirement Income Security Act of 1974, as amended.
(xxxix) 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 on
the condition, financial or otherwise, or on the earnings, assets, business
affairs or business prospects of or with respect to any Property or the
Property Partnership owning an interest in such Property, (A) each
Property, including, without limitation, the Environment (as defined below)
associated with such Property, is free of any Hazardous Substance (as
defined below), (B) neither the Company nor the Operating Partnership nor
any Property Partnership has caused or suffered to occur any Release (as
defined below) of any Hazardous Substance into the Environment on, in,
under or from any Property, and no condition exists on, in, under or, to
the knowledge of the Company or the Operating Partnership, that could
result in the incurrence of material liabilities or any material violations
of any Environmental Law (as defined below), give rise to the imposition of
any Lien (as defined below) under any Environmental Law, or cause or
constitute a health, safety or environmental hazard to any property, person
or entity; (C) neither the Company, the Operating Partnership nor any
Property Partnership is engaged in or intends to engage in any
manufacturing or any other operations at the Properties that (1) require
the use, handling, transportation, storage, treatment or disposal of any
Hazardous Substance or (2) require permits or are otherwise regulated
pursuant to any Environmental Law, other than permits which have been
obtained; (D) neither the Company nor the Operating Partnership nor any
Property Partnership has received any notice of a claim material to the
Duke Group as a whole under or pursuant to any Environmental Law or under
common law pertaining to Hazardous Substances on or originating from any
Property; (E) neither the Company nor the Operating Partnership nor any
Property Partnership has received any notice from any Governmental
Authority (as defined below) claiming any violation of any Environmental
Law; and (F) no Property is included or, to the knowledge of the Company or
the Operating Partnership, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by the United
States Environmental Protection Agency (the "EPA") or, with the exception
of one Property, in respect to which the EPA has advised the Company that
no further remedial action is planned, on the Comprehensive Environmental
Response, Compensation, and Liability Information System database
maintained by the EPA, and has not otherwise been identified by the EPA as
a potential CERCLA removal, remedial or response site or included or, to
the knowledge of the Company or the Operating Partnership, proposed for
inclusion on, any similar list of potentially contaminated sites pursuant
to any other Environmental Law.
10
Excluding such customary amounts as may be lawfully generated, stored,
used, treated, disposed of, or otherwise handled or located at any
Property, as used herein "Hazardous Substance" shall include, without
limitation, any hazardous substance, hazardous waste, toxic or dangerous
substance, pollutant, toxic waste or similarly designated materials,
including, without limitation, oil, petroleum or any petroleum-derived
substance or waste, asbestos or asbestos-containing materials, PCBs,
pesticides, explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant or waste,
including any such substance, pollutant or waste identified or regulated
under any Environmental Law (including, without limitation, materials
listed in the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. Section 172.101, as the same may now or hereafter
be amended, or in the EPA's List of Hazardous Substances and Reportable
Quantities, 40 C.F.R. Part 3202, as the same may now or hereafter be
amended); "Environment" shall mean any surface water, drinking water,
ground water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor and outdoor air;
"Environmental Law" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601
et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. Section 6901, et seq.), the Clean Air Act, as amended
(42 U.S.C. Section 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. Section 1251, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. Section 2601, et seq.), the Occupational Safety and Health Act
of 1970, as amended (29 U.S.C. Section 651, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.),
and all other federal, state and local laws, ordinances, regulations,
rules, orders, decisions and permits relating to the protection of the
environments or of human health from environmental effects; "Governmental
Authority" shall mean any federal, state or local governmental office,
agency or authority having the duty or authority to promulgate, implement
or enforce any Environmental Law; "Lien" shall mean, with respect to any
Property, any mortgage, deed of trust, pledge, security interest, lien,
encumbrance, penalty, fine, charge, assessment, judgment or other liability
in, on or affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release, emission,
discharge or similar term, as those terms are defined or used in any
Environmental Law.
(xl) Each of the Company, the Operating Partnership and their
subsidiaries has obtained title insurance on all of the properties owned by
each of them in an amount at least equal to (A) the cost to acquire land
and improvements in the case of an acquisition of improved property or (B)
the cost to acquire land in the case of an acquisition of unimproved
property and in each case such title insurance is in full force and effect.
(xli) Each of the Company and the Operating Partnership has filed
all federal, state, local and foreign income tax returns which have been
required to be filed (except in any case in which the failure to so file
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business prospects
of such entity) and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith.
(b) Any certificate signed by any officer of the Company, the
Operating Partnership or of any of their respective subsidiaries and delivered
to the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by such entity to each Underwriter as to the matters
covered thereby.
11
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company or the Operating Partnership, as the case may be, may grant, if so
provided in the applicable Terms Agreement relating to the Initial Underwritten
Securities, an option to the Underwriters named in such Terms Agreement,
severally and not jointly, to purchase up to the number of Option Securities set
forth therein at the same price per Option Security as is applicable to the
Initial Underwritten Securities. Such option, if granted, will expire 30 days
(or such lesser number of days as may be specified in the applicable Terms
Agreement) after the Representation Date relating to the Initial Underwritten
Securities, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Underwritten Securities upon notice by
the Representatives to the Company or the Operating Partnership, as the case may
be, setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time, date and place of delivery
(a "Date of Delivery") shall be determined by the Representatives, but shall not
be later than seven full business days nor earlier than two full business days
after the exercise of said option, nor in any event prior to the Closing Time,
unless otherwise agreed upon by the Representatives and the Company or the
Operating Partnership, as the case may be. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in the applicable Terms Agreement bears to the total number of Initial
Underwritten Securities (except as otherwise provided in the applicable Terms
Agreement), subject to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases of fractional
Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates
for, the Underwritten Securities to be purchased by the Underwriters shall be
made at the offices of Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by the Representatives and
the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on
the fourth business day (or the third business day if required under Rule 15c6-1
of the 1934 Act, or unless postponed in accordance with the provisions of
Section 10) following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by the Representatives and the Company (each
referred to herein as the "Closing Time"). In addition, in the event that any
or all of the Option Securities are purchased by the Underwriters, payment of
the purchase price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned offices of Xxxxxx & Xxxxx, or at such other
place as shall be agreed upon by the Representatives and the Company or the
Operating Partnership, as the case may be, on each Date of Delivery as specified
in the notice from the Representatives to the Company. Payment shall be made to
the Company or the Operating Partnership, as the case may be, by certified or
official bank check or checks drawn in (i) New York Clearing House funds or
similar next day funds, if the Underwritten Securities are either Common Stock,
Preferred Stock or Depositary Shares, or (ii) Federal or similar same day funds,
if the Underwritten Securities are Debt Securities, in each case payable to the
order of the Company or the Operating Partnership, as the case may be, against
delivery to the Representatives for the respective accounts of the Underwriters
of certificates for the Underwritten Securities to be purchased by them.
Certificates for the Underwritten Securities and the Option Securities, if any,
shall be in such denominations and registered in such names as the
Representatives may request in writing at least two business days before the
Closing Time or the relevant Date of Delivery, as the case may be. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Underwritten Securities and the Option Securities, if any, which
it has agreed to purchase. The Representatives, individually and not as
representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Securities or the Option
Securities, if any, to be purchased by any Underwriter whose check has not been
received by the Closing Time or the relevant Date of Delivery, as the case
12
may be, but any such payment shall not relieve such Underwriter from its
obligations hereunder. The certificates for the Initial Underwritten Securities
and the Option Securities, if any, will be made available for examination and
packaging by the Representatives not later than 10:00 A.M. on the last business
day prior to the Closing Time or the relevant Date of Delivery, as the case may
be, in New York, New York.
If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Company or the Operating Partnership, as the case may be, pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Exhibit B hereto with such changes therein as the Company or the Operating
Partnership, as the case may be, may approve. As compensation for arranging
Delayed Delivery Contracts, the Company or the Operating Partnership, as the
case may be, will pay to the Representatives at Closing Time, for the respective
accounts of the Underwriters, a fee equal to that percentage of the amount of
Underwritten Securities for which Delayed Delivery contracts are made at the
applicable Closing Time as is specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the applicable Closing Time, the Company or the
Operating Partnership, as the case may be, will enter into Delayed Delivery
Contracts (for not less than the minimum amount of Underwritten Securities per
Delayed Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Company
or the Operating Partnership, as the case may be, as provided below, but not for
an aggregate principal amount of Underwritten Securities in excess of that
specified in the applicable Terms Agreement. The Underwriters will not have any
responsibility for the validity or performance of Delayed Delivery Contracts.
The Representatives shall submit to the Company or the Operating
Partnership, as the case may be, at least three business days prior to the
applicable Closing Time, the names of any institutional investors with which it
is proposed that the Company or the Operating Partnership, as the case may be,
will enter into Delayed Delivery Contracts and the amount of Underwritten
Securities to be purchased by each of them, and the Company or the Operating
Partnership, as the case may be, will advise the Representatives at least two
business days prior to the applicable Closing Time, of the names of the
institutions with which the making of Delayed Delivery Contracts is approved by
the Company or the Operating Partnership, as the case may be, and the amount of
Underwritten Securities to be covered by each such Delayed Delivery Contract.
The amount of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be reduced
by the amount of Underwritten Securities covered by Delayed Delivery Contracts,
as to each Underwriter as set forth in a written notice delivered by the
Representatives to the Company or the Operating Partnership, as the case may be;
provided, however, that the total amount of Underwritten Securities to be
purchased by all Underwriters shall be the total amount of Underwritten
Securities covered by the applicable Terms Agreement, less the amount of
Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. Each
of the Company and the Operating Partnership covenants with the Representatives,
and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the
Company or the Operating Partnership, as the case may be, will prepare a
Prospectus Supplement setting forth the number of Underwritten Securities
covered thereby and their terms not otherwise specified in the Prospectus
pursuant to which the Underwritten Securities are being issued, the names
of the Underwriters participating in the offering and the number of
Underwritten Securities which each severally has agreed to purchase, the
names of the Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are to be
purchased by the Underwriters from the Company or the Operating
Partnership, as the case may be, the initial public offering price, if any,
the selling concession and reallowance, if any, and such other information
as the Representatives and the Company or the Operating Partnership, as the
case may be, deem appropriate in connection with the offering of the
Underwritten
13
Securities; and the Company or the Operating Partnership, as the case may
be, will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations
and will furnish to the Underwriters named therein as many copies of the
Prospectus (including such Prospectus Supplement) as the Representatives
shall reasonably request.
(b) If, at the time the Prospectus Supplement was filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any
information shall have been omitted therefrom in reliance upon Rule 430A of
the 1933 Act Regulations, then immediately following the execution of the
Terms Agreement, the Company and the Operating Partnership will prepare,
and file or transmit for filing with the Commission in accordance with such
Rule 430A and Rule 424(b) of the 1933 Act Regulations, a copy of an amended
Prospectus, or, if required by such Rule 430A, a post-effective amendment
to the Registration Statement (including amended Prospectuses), containing
all information so omitted. If required, the Company and the Operating
Partnership will prepare and file or transmit for filing a Rule 462(b)
Registration Statement not later than the date of execution of the Terms
Agreement. If a Rule 462(b) Registration Statement is filed, the Company
and the Operating Partnership shall make payment of, or arrange for payment
of, the additional registration fee owing to the Commission required by
Rule 111 of the 1933 Act Regulations.
(c) The Company and the Operating Partnership will notify the
Representatives immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the
transmittal to the Commission for filing of any Prospectus Supplement or
other supplement or amendment to the Prospectus to be filed pursuant to the
1933 Act, (iii) the receipt of any comments from the Commission, (iv) any
request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional
information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; and the Company and the
Operating Partnership will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(d) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company and the Operating Partnership will give the
Representatives notice of its intention to file or prepare any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will
furnish the Representatives with copies of any such amendment or supplement
a reasonable amount of time prior to such proposed filing and, unless
required by law, will not file or use any such amendment or supplement or
other documents in a form to which the Representatives or counsel for the
Underwriters shall reasonably object.
(e) The Company and the Operating Partnership will deliver to the
Representatives as soon as possible as many signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference therein) as the Representatives may
reasonably request and will also deliver to the Representatives as many
conformed copies of the Registration Statement as originally filed and of
each amendment thereto (including documents incorporated by reference into
the Prospectus) as the Representatives may reasonably request.
(f) The Company and the Operating Partnership will furnish to each
Underwriter, from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
14
(g) If any event shall occur as a result of which it is necessary, in
the reasonable opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, the Company and the Operating Partnership will forthwith amend
or supplement the Prospectus (in form and substance reasonably satisfactory
to counsel for the Underwriters) so that, as so amended or supplemented,
the Prospectus will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, and the Company and the Operating
Partnership will furnish to the Underwriters a reasonable number of copies
of such amendment or supplement.
(h) The Company and the Operating Partnership will endeavor, in
cooperation with the Underwriters, to qualify the Underwritten Securities
for offering and sale under the applicable securities laws and real estate
syndication laws of such states and other jurisdictions as the
Representatives may designate. In each jurisdiction in which the
Underwritten Securities have been so qualified, the Company and the
Operating Partnership will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as may be required for the distribution of the
Underwritten Securities.
(i) With respect to each sale of Underwritten Securities, the Company
and the Operating Partnership will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close
of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(j) Each of the Company and the Operating Partnership will use the
net proceeds received by it from the sale of the Underwritten Securities in
the manner specified in the Prospectus under "Use of Proceeds."
(k) The Company and the Operating Partnership, if applicable, during
the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all
documents and notices required by the New York Stock Exchange of companies
that have securities listed on such exchange and, unless otherwise agreed
upon with respect to Preferred Stock, Depository Shares and Debt
Securities, will use its best efforts to maintain the listing of any
Underwritten Securities listed on the New York Stock Exchange.
(m) In respect to each offering of Debt Securities, the Operating
Partnership will qualify an Indenture under the 1939 Act and will endeavor
to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all
reasonable action necessary to enable Standard & Poor's Corporation
("S&P"), Xxxxx'x Investors Service, Inc. ("Xxxxx'x") or any other
nationally recognized statistical rating organization to provide their
respective credit ratings of any Underwritten Securities, if applicable.
(o) During a period of 90 days from the date of any Prospectus
Supplement, the Company and the Operating Partnership will not, without the
prior written consent of the Representatives, directly or indirectly, sell,
offer to sell, grant any option for the sale of, enter into any agreement
to sell, or
15
otherwise dispose of, (i) any securities of the same class or series or
ranking on a parity with any Underwritten Securities (other than the
Underwritten Securities covered by such Prospectus Supplement) or any
security convertible into or exchangeable for shares of such Underwritten
Securities and (ii) if such Prospectus Supplement relates to Preferred
Stock that is convertible into or exchangeable for Common Stock, any Common
Stock or Units or any security convertible into or exchangeable for shares
of Common Stock. This transfer restriction does not apply to (i) the
possible issuance of shares of Common Stock upon the exchange of Units by
holders of Units other than DMI Partnership (except as to Units exchanged
by DMI Partnership pursuant to a Unit bonus plan for employees of the
Company and its subsidiaries) and the directors and executive officers of
the Company; (ii) grants of options, and the issuance of shares in respect
of such options, pursuant to a stock option plan; (iii) the issuance of
shares pursuant to a dividend reinvestment plan; and (iv) the issuance of
shares of Common Stock, or any security convertible into or exchangeable or
exercisable for Common Stock, in connection with the acquisition of real
property or an interest or interests in real property, if the recipient of
such shares or other securities agrees in writing to not, without the prior
written consent of Xxxxxxx Xxxxx and the Company and the Operating
Partnership, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of any of such securities until the
expiration of a 90-day period from the date of any Prospectus Supplement.
(p) If the Preferred Stock is convertible into Common Stock, the
Company will reserve and keep available at all times, free of preemptive
rights and other similar rights, a sufficient number of shares of Common
Stock for the purpose of enabling the Company to satisfy any obligations to
issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the
Company will use its best efforts to list the Common Stock on the New York
Stock Exchange.
The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
(s) During the period from the Closing Time until five years after
the Closing Time, the Company and the Operating Partnership will deliver to
the Representatives, (i) promptly upon their becoming available, copies of
all current, regular and periodic reports of the Company mailed to its
stockholders or filed with any securities exchange or with the Commission
or any governmental authority succeeding to any of the Commission's
functions, and (ii) such other information concerning the Company and the
Operating Partnership as the Representatives may reasonably request.
SECTION 4. PAYMENT OF EXPENSES. The Company and the Operating Partnership
will pay all expenses incident to the performance of its obligations under this
Agreement and the applicable Terms Agreement, including (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto; (ii) the cost of printing, or reproducing, and distributing to the
Underwriters copies of this Agreement and the applicable Terms Agreement;
(iii) the preparation, issuance and delivery of the Underwritten Securities to
the Underwriters, including capital duties, stamp duties and stock transfer
taxes, if any, payable upon issuance of any of the Underwritten Securities, the
sale of the Underwritten Securities to the Underwriters, their transfer between
the Underwriters and the Underwriters pursuant to an agreement between such
Underwriters and the fees and expenses of the transfer agent for the
Underwritten Securities; (iv) the fees and disbursements of the Company's and
the Operating Partnership's counsel and accountants; (v) the qualification of
the Underwritten Securities and the Common Stock issuable upon conversion of
Preferred Stock, if any, under securities laws and real estate syndication laws
in accordance with the provisions of Section 3(h) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey;
(vi) the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of each preliminary
prospectus, and of the Prospectus and any amendments or supplements thereto;
(vii) the cost of printing, or reproducing, and delivering to the Underwriters
copies of the Blue Sky Survey; (viii) the fee of the National Association of
Securities Dealers, Inc., if any; (ix) the fees and expenses
16
incurred in connection with the listing of the Underwritten Securities and the
Common Stock issuable upon conversion of Preferred Stock, if any, on the New
York Stock Exchange, any other national securities exchange or quotation system;
(x) any fees charged by nationally recognized statistical rating organizations
for the rating of the Debt Securities, if any; (xi) the printing and delivery to
the Underwriters of copies of the Indenture; (xii) the fees and expenses of the
Trustee, including the reasonable fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Underwritten Securities, (xiii)
the preparation, issuance and delivery to the Depository Trust Company for
credit to the accounts of the respective Underwriters of any global note
registered in the name of Cede & Co., as nominee for the Depository Trust
Company; and (xiv) any transfer taxes imposed on the sale of the Underwritten
Securities to the several Underwriters.
If this Agreement is cancelled or terminated by the Representatives in
accordance with the provisions of Section 5, Section 9(a)(i), Section 9(a)(iv)
or Section 9(a)(v) hereof, the Company and the Operating Partnership shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder are subject to the accuracy, as of the date hereof
and at Closing Time, of the representations and warranties of the Company and
the Operating Partnership herein contained, to the performance by the Company
and the Operating Partnership of their respective obligations hereunder, and to
the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission; (ii) if the
Company or the Operating Partnership, as the case may be, has elected to
rely upon Rule 430A of the 1933 Act Regulations, the public offering price
of and the interest rate on the Underwritten Securities, as the case may
be, and any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to the
applicable Closing Time, the Company or the Operating Partnership, as the
case may be, shall have provided evidence satisfactory to the
Representatives of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the 1933 Act
Regulations; (iii) if Preferred Stock is being offered, the rating assigned
by any nationally recognized statistical rating organization as of the date
of the applicable Terms Agreement shall not have been lowered since such
date nor shall any such rating organization have publicly announced that it
has placed the Preferred Stock on what is commonly termed a "watch list"
for possible downgrading; (iv) the rating assigned by any nationally
recognized statistical rating organization to any long-term debt securities
of the Operating Partnership as of the date of the applicable Terms
Agreement shall not have been lowered since such date nor shall any such
rating organization have publicly announced that it has placed any long-
term debt securities of the Operating Partnership on what is commonly
termed a "watch list" for possible downgrading; and (v) there shall not
have come to the attention of the Representatives any facts that would
cause the Representatives to believe that the Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the Underwritten Securities, included an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
existing at such time, not misleading. If a Rule 462(b) Registration
Statement is required, such Rule 462(b) Registration Statement shall have
been transmitted to the Commission for filing and have become effective
within the prescribed time period, and, prior to Closing Time, the Company
and the Operating Partnership shall have provided to the Underwriters
evidence of such filing and effectiveness in accordance with Rule 462(b) of
the 1933 Act Regulations.
(b) At Closing Time the Representatives shall have received:
17
(1) The favorable opinion, dated as of Closing Time, of Bose
XxXxxxxx & Xxxxx, counsel for each of the Company and the Operating
Partnership and their respective subsidiaries in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Company is a corporation duly organized and
existing under and by virtue of the laws of the State of Indiana,
has filed its most recent annual report required by law with the
Secretary of State of Indiana or is not yet required to file such
annual reports, and has not filed Articles of Dissolution. The
Company has corporate power and authority to conduct the business
in which it is engaged or proposes to engage and to own, lease
and operate its properties as described in the Prospectus and to
enter into and perform its obligations under this Agreement and
the other agreements to which it is a party. The Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Company or any
Property.
(ii) The Operating Partnership is a limited partnership
duly organized and existing under and by virtue of the laws of
the State of Indiana. The Operating Partnership has partnership
power and authority to conduct the business in which it is
engaged and proposes to engage and to own, lease and operate its
properties as described in the Prospectus and to enter into and
perform its obligations under this Agreement and the other
agreements to which it is a party. The Operating Partnership is
duly qualified or registered as a foreign partnership and is in
good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or register would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the
Operating Partnership or any Property or Related Business.
(iii) Each of the Company's and the Operating
Partnership's subsidiaries (other than the Property Partnerships)
has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its
jurisdiction of organization, with partnership or corporate power
and authority to conduct the business in which it is engaged or
proposes to engage and to own, lease and operate its properties
as described in the Prospectus.
(iv) Each of the Company's and the Operating
Partnership's subsidiaries and the Property Partnerships is duly
qualified or registered as a foreign partnership or corporation
in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, assets, business affairs or business prospects
of the Duke Group considered as a single enterprise.
(v) If the applicable Underwritten Securities are
issued by the Company, the capital stock of the Company is as set
forth in the Prospectus under "Capitalization." All the issued
and outstanding shares of capital stock have been duly authorized
and are validly issued, fully paid and non-assessable. To the
best of such counsel's knowledge, after due inquiry, no shares of
capital stock of the Company are
18
reserved for any purpose except in connection with stock option
and the dividend reinvestment plans and the possible issuance of
shares of Common Stock upon the exchange of Units. To the best
of such counsel's knowledge after due inquiry, except for Units,
there are no outstanding securities convertible into or
exchangeable for any capital stock of the Company, and except for
options under a stock option plan, there are no outstanding
options, rights (preemptive or otherwise) or warrants to purchase
or to subscribe for shares of such stock or any other securities
of the Company.
(vi) All the issued and outstanding Units have been
duly authorized and are validly issued, fully paid and non-
assessable, except as provided under Indiana Code Section 23-16-
7-8.
(vii) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be, of
each subsidiary identified in an exhibit to such counsel's
opinion have been validly issued and fully paid and are owned by
the Company, the Operating Partnership or a subsidiary, in each
case free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(viii) Each of the Property Partnerships has been duly
formed as a partnership or a limited liability company, as the
case may be, and is validly existing and in good standing as a
partnership on a limited liability company under of the laws of
its jurisdiction of organization; each Property Partnership has
all requisite power and authority to own, lease and operate the
Properties, to conduct the business in which it is engaged and to
enter into and perform its respective obligations under the
agreements to which it is a party. Each of the partnership or
operating agreements, as the case may be, of the Property
Partnerships is in full force and effect.
(ix) The applicable Underwritten Securities, if such
Underwritten Securities are either Common Stock, Preferred Stock
or Depositary Shares, have been duly authorized by the Company
for issuance and sale to the Underwriters pursuant to this
Agreement, and, when issued and delivered by the Company,
pursuant to this Agreement and the applicable Terms Agreement
against payment of the consideration set forth in the Terms
Agreement or any Delayed Delivery Contract, will be validly
issued, fully paid and non-assessable. Upon payment of the
purchase price and delivery of such Underwritten Securities in
accordance herewith, each of the Underwriters will receive good,
valid and marketable title to such Underwritten Securities, which
to such counsel's knowledge, after due inquiry, are free and
clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities. The terms of the applicable
Underwritten Securities conform to all statements and
descriptions related thereto contained in the Prospectus. The
form of stock or depositary certificate to be used to evidence
the applicable Underwritten Securities is in due and proper form
and complies with all applicable legal requirements. The
issuance of the applicable Underwritten Securities is not subject
to any preemptive or other similar rights.
(x) The applicable Underwritten Securities, if such
Underwritten Securities are Debt Securities, are in the form
contemplated in the Indenture, have been duly authorized by the
Operating Partnership for issuance and sale to the Underwriters
pursuant to this Agreement and, when executed, authenticated,
issued and delivered in the manner provided for in this
Agreement, the applicable Terms Agreement and the applicable
Indenture, against payment of the consideration therefor
specified in the applicable Terms Agreement or any Delayed
Delivery Contract, such Debt Securities will constitute valid and
legally binding obligations of the Operating Partnership entitled
19
to the benefits of the Indenture and such Debt Securities will be
enforceable against the Operating Partnership in accordance with
their terms, except as such enforceability may be (1) limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
or other similar laws affecting the rights and remedies of
creditors generally and (2) subject to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and except as rights to
indemnity thereunder may be limited by applicable law. Upon
payment of the purchase price and delivery of such Underwritten
Securities in accordance herewith, each of the Underwriters will
receive good, valid and marketable title to such Underwritten
Securities, which to such counsel's knowledge, after due inquiry,
are free and clear of all security interests, mortgages, pledges,
liens, encumbrances, claims and equities. The terms of the
applicable Underwritten Securities conform to all statements and
descriptions related thereto in the Prospectus. Such
Underwritten Securities rank and will rank on a parity with all
unsecured indebtedness (other than subordinated indebtedness of
the Operating Partnership that is outstanding on the
Representation Date or that may be incurred thereafter, and
senior to all subordinated indebtedness of the Operating
Partnership that is outstanding on the Representation Date or
that may be incurred thereafter, except that such Underwritten
Securities will be effectively subordinated to the prior claims
of each secured mortgage lender to any specific Property which
secures such lender's mortgage.
If applicable, the Common Stock issuable upon
conversion of any of the Preferred Stock (including Preferred
Stock represented by Depositary Shares) will have been duly and
validly authorized and reserved for issuance upon such conversion
or exercise by all necessary action and such stock, when issued
upon such conversion or exercise, will be duly and validly
issued, fully paid and non-assessable, and the issuance of such
stock upon such conversion or exercise will not be subject to
preemptive or other similar rights; the Common Stock so issuable
conforms in all material respects to all statements relating
thereto contained in the Prospectus.
(xii) To the best knowledge of such counsel, none of the
entities comprising the Duke Group is in violation of its
charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, and none of the
entities comprising the Duke Group is in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which such entity
is a party or by which such entity may be bound, or to which any
of the property or assets of such entity is subject, except for
defaults which are not material to the Duke Group as a whole.
(xiii) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, were duly
and validly authorized, executed and delivered by the Company and
the Operating Partnership, as applicable, and, the Company and
the Operating Partnership have the power and authority to perform
their obligations hereunder and thereunder.
(xiv) The Indenture has been duly qualified under the
1939 Act and has been duly and validly authorized, executed and
delivered by the Operating Partnership, and, assuming due
authorization, execution and delivery by the Trustee, constitutes
a valid and binding obligation of the Operating Partnership,
enforceable in accordance with its terms, except as such
enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a
20
proceeding in equity or at law), and except as rights to
indemnity thereunder may be limited by applicable law. The
Indenture conforms in all material respects to the descriptions
thereof contained in the Prospectus.
(xv) Each of the partnership agreements to which any of
the Company, the Operating Partnership or their respective
subsidiaries identified in an exhibit to such counsel's opinion
is a party has been duly authorized, executed and delivered by
such party and constitutes a valid and binding obligation
thereof, enforceable in accordance with its terms, except as such
enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and except as rights to indemnity thereunder may be limited
by applicable law.
(xvi) The execution and delivery of this Agreement, the
applicable Terms Agreement, any Indenture and the Underwritten
Securities, the performance of the obligations set forth herein
or therein, and the consummation of the transactions contemplated
hereby and thereby or in the Prospectus by the Company and the
Operating Partnership, will not conflict with or constitute a
breach or violation by the Company or the Operating Partnership
of, or default under, or result in the creation of imposition of
any lien, charge or encumbrance upon Property or assets of the
Duke Group pursuant to any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or
other instrument or agreement known to such counsel, after due
inquiry, to which the Company, the Operating Partnership or any
subsidiary is a party or by which they, either of them, any of
their respective properties or other assets or any Property may
be bound or subject which is material to the Duke Group as a
whole; nor will such action conflict with or constitute a breach
or violation by the Company or the Operating Partnership of, or
default under, (A) the charter, by-laws, certificate of limited
partnership or partnership agreement, as the case may be, of the
Company, the Operating Partnership or any subsidiary or (B) to
the extent it is material, any applicable law, rule, order,
administrative regulation or administrative or court decree.
(xvii) Assuming the Company was organized in conformity
with and has satisfied the requirements for qualification and
taxation as a "real estate investment trust" under the Code for
each of its taxable years from and including the first taxable
year for which the Company made the election to be taxed as a
"real estate investment trust", the proposed methods of operation
of the Company, the Operating Partnership and the Services
Partnership as described in the Registration Statement and the
Prospectus Supplement and as represented by the Company, the
Operating Partnership and the Services Partnership will permit
the Company to continue to qualify to be taxed as a "real estate
investment trust" for its current and subsequent taxable years.
(xviii) None of the entities comprising the Duke Group is
required to be registered under the 1940 Act or is or will become
a "holding company" or a "subsidiary company" of a "registered
holding company" as defined in the Public Utility Holding Company
Act of 1935, as amended.
(xix) To such counsel's knowledge, after due inquiry,
(i) each entity belonging to the Duke Group possesses such
material certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it, or
proposed to be conducted by it,
21
and (ii) none of the entities comprising the Duke Group has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect
on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Duke Group
considered as a single enterprise.
(xx) No authorization, approval, consent or order of
any court or governmental authority or agency or, to the
knowledge of such counsel, any other entity is required in
connection with the offering, issuance or sale of the applicable
Underwritten Securities to the Underwriters hereunder, except
such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or state
or foreign securities laws, as to which such counsel need express
no opinion, or real estate syndication laws or such as have been
received prior to the date of this Agreement.
(xxi) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the
1933 Act and the 1933 Act Regulations thereunder.
(xxii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3 under the 1933 Act, at the time they were filed with
the Commission, complied and will comply as to form in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations").
(xxiii) The Registration Statement is effective under the
1933 Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(xxiv) At the time the Registration Statement became
effective and at the Representation Date, (A) the Registration
Statement and the Prospectus (other than the financial statements
and supporting schedules included therein, or the Statement of
Eligibility, as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and (B) the Prospectus and
the Term Sheet, if any, complied with Rule 434(c)(2).
There are no legal or governmental proceedings
pending or, to the best of their knowledge and information,
threatened which are required to be disclosed in the Registration
Statement or the Prospectus, other than those disclosed therein,
and all pending legal or governmental proceedings to which any of
the entities comprising the Duke Group is a party or to which any
of their properties is subject which are not described in the
Registration Statement or the Prospectus, including ordinary
routine litigation incidental to the business, are, considered in
the aggregate, not material.
(xxvi) The information in the Prospectus under "The
Company and the Operating Partnership," "Description of Debt
Securities," "Description of Preferred Stock," "Description of
Depositary Shares," "Description of Common Stock," and the
information in the applicable Prospectus Supplement under, if
applicable, "The Company"
22
or "The Operating Partnership," as the case may be, to the extent
that it constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been reviewed
by them and is correct and presents fairly the information
required to be disclosed therein.
(xxvii) There are no statutes, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
known to such counsel which are required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto by the 1933 Act Regulations other than those
described or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are correct, and
no material default exists in the due performance or observance
of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument so described, referred to or
filed.
(xxviii) To the best knowledge of such counsel, there are
no persons with registration or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Company or the Operating Partnership
under the 1933 Act.
(xxix) The Company satisfies all conditions and
requirements for filing the Registration Statement on Form S-3
under the 1933 Act and 1933 Act Regulations.
(2) The favorable opinion, dated as of the Closing Time, of
Xxxxxx & Xxxxx, counsel for the Underwriters, (A) with respect to the
matters set forth in Section 5(b)(1)(i) (with respect to the Company
only and with respect to the first sentence only), Section
5(b)(1)(ix), (with respect to the first and last sentences only) or
5(b)(i)(x) (with respect to the first sentence only), as applicable,
Section 5(b)(1)(xiii) (with respect to the first clause only), Section
5(b)(xiv) and Section 5(b)(xxiv) and (B) containing a statement
similar to the statement referred to in the first paragraph of
Section 5(b)(4).
(3) In respect to Properties which are not under development at
the Closing Time, the favorable opinion, in form and substance
satisfactory to counsel for the Underwriters, dated as of the Closing
Time, of local counsel for the Company or the Operating Partnership
or, if the Company's or the Operating Partnership's ownership interest
in a Property Partnership exceeds 10%, the appropriate Property
Partnership, satisfactory to the Underwriters, with respect to (i) the
organization, existence, power and authority of each Property
Partnership; (ii) zoning matters (unless a 3.1 zoning endorsement has
been issued by the applicable title company); and (iii) the possession
by the Company, the Operating Partnership or the applicable Property
Partnership of those licenses, permits, consents and orders of
governmental, municipal or regulatory authorities then necessary for
the operation by the Company, the Operating Partnership or the
applicable Property Partnership of its Property and as otherwise
contemplated in the Registration Statement, provided, however, that
such opinion shall only be required in respect to Properties acquired
or developed since the date of the prospectus supplement relating to
an offering managed or co-managed by Xxxxxxx Xxxxx & Co. preceding the
Prospectus Supplement in respect to which the opinion is being
delivered.
(4) In giving their opinions required by subsections (b)(1) and
(b)(2), respectively, of this Section, Bose XxXxxxxx & Xxxxx and
Xxxxxx & Xxxxx shall additionally state that such counsel has
participated in conferences with officers and other representatives of
the Company or the Operating Partnership, as the case may be, and the
independent public accountants for the Company or the Operating
Partnership, as the case may be, at which the contents of the
Registration Statement and the Prospectus and related matters were
discussed and in the
23
preparation of the Registration Statement and the Prospectus and, on
the basis of the foregoing, nothing has come to their attention that
would lead them to believe that either the Registration Statement or
any amendment thereto (excluding the financial statements and
financial schedules included or incorporated by reference therein or
the Statement of Eligibility, as to which such counsel need express no
belief), at the time it became effective or at the time an Annual
Report on Form 10-K was filed by the Company and the Operating
Partnership with the Commission (whichever is later), or at the
Representation Date, contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (excluding the
financial statements or financial schedules included or incorporated
by reference therein or the Statement of Eligibility, as to which such
counsel need express no belief), at the Representation Date or at the
Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In giving their opinions, Bose XxXxxxxx & Xxxxx and Xxxxxx &
Xxxxx may rely upon, or assume the accuracy of, (A) as to all matters
of fact, certificates and written statements of officers and employees
of and accountants for each of the entities comprising the Duke Group
and (B) as to the qualification and good standing of each of the
entities comprising the Duke Group to do business in any jurisdiction,
certificates of appropriate government officials or opinions of
counsel in such jurisdictions, and (C) in respect to the opinion by
Xxxxxx & Xxxxx only, as to certain matters of Indiana law, the opinion
of Bose XxXxxxxx & Xxxxx given pursuant to Section 5(b)(1) above.
(c) At Closing Time, (i) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Company or the
Operating Partnership, threatened against any entity belonging to the Duke
Group which would be required to be set forth in the Prospectus other than
as set forth therein; (ii) there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of any entity
belonging to the Duke Group, whether or not arising in the ordinary course
of business; (iii) no proceedings shall be pending or threatened against
such entity or any Property before or by any federal, state or other
commission, board or administrative agency wherein an unfavorable decision,
ruling or finding might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of any entity belonging to the Duke Group or
any Property, as the case may be, other than as set forth in the
Prospectus; (iv) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or threatened by
the Commission or by the state securities authority of any jurisdiction;
and (v) the Representatives shall have received a certificate of the
President or a Vice President of the Company and the Operating Partnership
and of the chief financial or chief accounting officer of each such entity,
dated as of the Closing Time, evidencing compliance with the provisions of
this subsection (c) and stating that the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time.
(d) At the time of the execution of the applicable Terms Agreement,
the Representatives shall have received from KPMG Peat Marwick LLP a letter
dated such date, in form and substance satisfactory to the Representatives,
to the effect that: (i) they are independent public accountants with
respect to the Company and the Operating Partnership as required by the
1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included in the Registration
Statement, or incorporated by reference therein, and covered by their
opinions therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
24
Regulations; (iii) based upon limited procedures set forth in detail in
such letter, including a reading of the latest available interim financial
statements of the Company and the Operating Partnership, a reading of the
minute books of the Company and the Operating Partnership, inquiries of
officials of the Company and the Operating Partnership responsible for
financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing has come to their attention which
causes them to believe that (A) the unaudited financial statements of the
Company and the Operating Partnership included in the Registration
Statement, or incorporated by reference therein, do not comply as to form
in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations, or material modifications are
required for them to be presented in conformity with generally accepted
accounting principles, (B) the operating data and balance sheet data set
forth in the Prospectus under the caption "Selected Consolidated Financial
Data" were not determined on a basis substantially consistent with that
used in determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the Registration
Statement, (C) the pro forma financial information included or incorporated
by reference in the Registration Statement was not determined on a basis
substantially consistent with that of the audited financial statements
included or incorporated by reference in the Registration Statement or (D)
at a specified date not more than five days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock
or the number of partnership interests of the Company, the Operating
Partnership or their subsidiaries, as the case may be, or any increase in
the debt of the Company, the Operating Partnership or their subsidiaries or
any decrease in the net assets of the Company, the Operating Partnership or
their subsidiaries, as compared with the amounts shown in the most recent
consolidated balance sheet of the Company, the Operating Partnership and
their subsidiaries, included in the Registration Statement or incorporated
by reference therein, or, during the period from the date of the most
recent consolidated statement of operations included in the Registration
Statement or incorporated by reference therein to a specified date not more
than five days prior to the date of the applicable Terms Agreement, there
were any decreases, as compared with the corresponding period in the
preceding year, in revenues, net income or funds from operations of the
Company, the Operating Partnership and their subsidiaries, except in all
instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and
(iv) in addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in the
Registration Statement and Prospectus and which are specified by the
Representatives, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and
other records of the Company, the Operating Partnership and their
subsidiaries identified in such letter.
(e) At Closing Time, the Representatives shall have received from
KPMG Peat Marwick LLP a letter, dated the Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the "specified date" referred
to shall be a date not more than five days prior to Closing Time.
(f) At Closing Time, the Underwritten Securities, if such
Underwritten Securities are Debt Securities, shall be rated investment
grade by one or more nationally recognized statistical rating organizations
and the Operating Partnership shall have delivered to the Representatives a
letter, dated the Closing Time, from each such rating organization, or
other evidence satisfactory to the Representatives, confirming that such
Underwritten Securities have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating
assigned to such Underwritten Securities or any of the Operating
Partnership's other debt securities by any nationally recognized securities
rating organization, and no such securities rating organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of such Underwritten Securities or any of
the Operating Partnership's other debt securities.
25
(g) At Closing Time and at each Date of Delivery, if any, counsel for
the Underwriters shall have been furnished with such documents and opinions
as they may require for the purpose of enabling them to pass upon the
issuance and sale of the applicable Underwritten Securities as contemplated
herein, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company or the Operating
Partnership, as the case may be, in connection with the issuance and sale
of the applicable Underwritten Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(h) At Closing Time, the Representatives shall have received a letter
agreement from DMI Partnership and from each director and executive officer
of the Company and the Operating Partnership, wherein DMI Partnership and
each such director or executive officer shall agree that during the period
of 90 days from the date of any Prospectus Supplement they will not,
without the prior written consent of Xxxxxxx Xxxxx, the Company and the
Operating Partnership (which consent, in the case of the Company and the
Operating Partnership, will be subject to the approval of the Company's
unaffiliated directors), directly or indirectly, sell, offer to sell, grant
any option for the sale of, enter into any agreement to sell, or otherwise
dispose of, (i) any securities of the same class or series or ranking on a
parity with any Underwritten Securities or any security convertible into or
exchangeable for shares of such Underwritten Securities, and (ii) if such
Prospectus Supplement relates to Preferred Stock that is convertible into
or exchangeable for Common Stock, any Common Stock or Units or any security
convertible into or exchangeable for shares of Common Stock. Such transfer
restrictions do not apply to transfers to members of the family of such
director or executive officer (or an entity for their benefit), or to the
granting of a bona fide security interest to a secured party. Any
transferees of such shares, Units or other securities will be likewise
prohibited from making any transfer of shares, Units or other securities.
(i) In the event that the Underwriters exercise their option provided
in Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company and the
Operating Partnership contained herein and the statements in any
certificates furnished by the Company and the Operating Partnership
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representatives shall have received:
(1) A certificate, dated such Date of Delivery, of the President
or a Vice President of the Company and the Operating Partnership and
of the chief financial or chief accounting officer of each such entity
confirming that their respective certificates delivered at Closing
Time pursuant to Section 5(c) hereof remain true and correct as of
such Date of Delivery.
(2) The favorable opinion of Bose XxXxxxxx & Xxxxx, counsel for
the Company and the Operating Partnership, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b)(1) hereof.
(3) The favorable opinion of Xxxxxx & Xxxxx, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b)(2) hereof.
(4) A letter from KPMG Peat Marwick, in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially the same in form and substance as the letter furnished
to the Representatives pursuant to Section 5(e) hereof, except that
the "specified date" in the letter furnished pursuant to this Section
5(i)(4) shall be a date not more than five days prior to such Date of
Delivery.
26
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company and the Operating Partnership,
at any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof.
SECTION 6. INDEMNIFICATION.
(a) Each of the Company and the Operating Partnership agrees, jointly
and severally, to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company or the Operating Partnership by any Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever for which indemnification is provided under subsection (i) above
if such settlement is effected with the written consent of the indemnifying
party; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by Xxxxxxx Xxxxx), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever for which indemnification is provided under subsection
(i) above, to the extent that any such expense is not paid under (i) or
(ii) above.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company and the Operating Partnership and each person, if any, who controls
the Company and the Operating Partnership within the meaning of Section 15 of
the 1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company or the Operating Partnership by such
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own
27
expense in the defense of any such action. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Operating Partnership, on the one hand, and the Underwriters, on the other hand,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company and the Operating Partnership, on the one hand, and the Underwriters, on
the other hand, (a) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Operating Partnership, on the one hand,
and the Underwriters, on the other, from the offering of the Underwritten
Securities, or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (a) above but also the relative
fault (as determined by a court of competent jurisdiction or a panel of
arbitration) of the Company and the Operating Partnership, on the one hand, and
the Underwriters, on the other, in connection with the statements or omissions
that resulted in such losses, liabilities, claims, damages, and expenses, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Operating Partnership, on the one hand, and the
Underwriters, on the other, shall be deemed to be in the same proportions as the
total gross proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discount received by the
Underwriters. The relative fault of the Company and the Operating Partnership,
on the one hand, and the Underwriters, on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company and the Operating Partnership, on the one
hand, or by the Underwriters, on the other, and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
The parties agree that it would not be just or equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 7
are several in proportion to their respective underwriting commitments and not
joint. For purposes of this Section 7, the Company and the Operating
Partnership shall be deemed one party and jointly and severally liable for any
obligations hereunder. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act, and
any director, officer, employee or affiliate of an Underwriter or such
controlling person, shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company or the Operating
Partnership within the meaning of Section 15 of the 1933 Act, or any director,
officer, employee or affiliate of the Company or the Operating Partnership or
such controlling person, shall have the same rights to contribution as the
Company or the Operating Partnership.
28
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or
the applicable Terms Agreement, or contained in certificates of the officers of
the Company or the Operating Partnership submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of the
applicable Terms Agreement, or any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company or the
Operating Partnership and shall survive delivery of the Underwritten Securities
to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate the applicable Terms Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the date of such Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change,
affecting the Duke Group as a whole, in the condition, financial or otherwise,
or in the earnings, assets, business affairs or business prospects of any entity
belonging to the Duke Group or of any Property, whether or not arising in the
ordinary course of business; or (ii) if there has occurred any material adverse
change in the financial markets in the United States or internationally or any
outbreak of hostilities or escalation of existing hostilities or other calamity
or crisis the effect of which on the financial markets of the United States or
internationally is such as to make it, in the judgment of the Representatives,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities; or (iii) if trading in the Common Stock
has been suspended by the Commission or if trading generally on either the New
York Stock Exchange or the American Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said Exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal, New York or Indiana authorities;
(iv) if Preferred Stock is being offered and the rating assigned by any
nationally recognized statistical rating organization to any preferred shares of
the Company as of the date of the applicable Terms Agreement shall have been
lowered since such date or if any such rating organization shall have publicly
announced that it has placed any preferred shares or debt securities of the
Company on what is commonly termed a "watch list" for possible downgrading; or
(v) if the rating assigned by any nationally recognized statistical rating
organization to any long-term debt securities of the Operating Partnership as of
the date of the applicable Terms Agreement shall have been lowered since such
date or if any such rating organization shall have publicly announced that it
has placed any long-term debt securities of the Operating Partnership on what is
commonly termed a "watch list" for possible downgrading. As used in this
Section 9(a), the term "Prospectus" means the Prospectus in the form first used
to confirm sales of the Underwritten Securities.
(b) In the event of any such termination, in respect to such
terminated Terms Agreement, (x) the covenants set forth in Section 3 with
respect to any offering of Underwritten Securities shall remain in effect so
long as any Underwriter owns any such Underwritten Securities purchased from the
Company or the Operating Partnership, as the case may be, pursuant to the
applicable Terms Agreement and (y) the covenant set forth in Section 3(i)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 6 and 7 hereof, and the provisions of Sections
8 and 13 hereof shall remain in effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Underwritten Securities to be purchased pursuant to such Terms Agreement,
each of the non-defaulting Underwriters named in such Terms Agreement shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the
29
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Underwritten Securities to be purchased pursuant to such Terms Agreement,
the applicable Terms Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, each of the Representatives or
the Company shall have the right to postpone Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Xxxxxxx Xxxxx & Co.,
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx World
Headquarters, North Tower, World Financial Center, New York, N.Y. 10281-1201,
attention of Xxxxxx X. Xxxxx; notices to the Company and the Operating
Partnership shall be directed to any of them at 0000 Xxxxxxxx Xxxxxxxx,
Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx, 00000, attention of Xxxxxx X. Xxxx, Xx.
SECTION 12. PARTIES. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the parties hereto and
their respective successors. Nothing expressed or mentioned in this Agreement
or the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or the applicable Terms Agreement
or any provision herein or therein contained. This Agreement and the applicable
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
30
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters, the Company and the Operating Partnership in accordance with
its terms.
Very truly yours,
DUKE REALTY INVESTMENTS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Investments, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
31
EXHIBIT A
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[NUMBER AND TITLE OF SECURITIES]
TERMS AGREEMENT
Dated: [________], 199[__]
To: Duke Realty Investments, Inc.
Duke Realty Limited Partnership
c/o Duke Realty Investments, Inc.
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Representatives") understand that [Duke Realty Investments, Inc.,
an Indiana corporation (the "Company"), proposes to issue and sell [__________]
of its [shares of common stock (the "Common Stock")] [shares of preferred stock
(the "Preferred Stock")] [shares of Preferred Stock represented by depositary
shares (the "Depositary Shares")] [Duke Realty Limited Partnership, an Indiana
limited partnership (the "Operating Partnership"), proposes to issue and sell
$[________] aggregate principal amount of its unsecured debt securities (the
"Debt Securities")] (such [Common Stock], [Preferred Stock] [Depositary Shares]
and [Debt Securities] being collectively hereinafter referred to as the
"Underwritten Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
numbers of Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below) set forth below opposite their respective names,
and a proportionate share of Option Securities (as defined in the Underwriting
Agreement referred to below) to the extent any are purchased, at the purchase
price set forth below.
A-1
[Number of Shares]
[Principal Amount]
Of Initial
Underwriter Underwritten Securities
----------- -----------------------
--------------
Total $
--------------
--------------
The Underwritten Securities shall have the following terms:
[COMMON STOCK] [PREFERRED STOCK] [DEPOSITARY SHARES]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if any,
from , 199 .]
Purchase price per share: $ [, plus accumulated dividends, if any, from
, 199 .]
[Conversion provisions:]
[Voting and other rights:]
Number of Option Securities, if any, that may be purchased by the Underwriters:
Additional co-managers, if any:
Other terms:
Closing time, date and location:
The Underwritten Securities shall have the following terms:
[DEBT SECURITIES]
Title of Securities:
Currency:
Principal amount to be issued:
Current ratings: Xxxxx'x Investors Service, Inc. ______;
Standard & Poor's Corporation ______; [other rating agencies];
Interest rate or formula:
Interest payment dates:
Interest reset dates:
Interest determination date:
Stated maturity date:
Redemption or repayment provisions:
Number of Option Securities, if any, that may be purchased by
the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: ___%]
[Initial public offering price: ___%, plus accrued interest,
if any, or amortized original issue discount, if any, from
19__.]
A-2
Purchase price: ___%, plus accrued interest, if any, or
amortized original issue discount, if any, from
____________, 19__ (payable in [same] [next] day funds).
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Duke Realty Investments, Inc. and Duke Realty Limited Partnership --
Common Stock, Preferred Stock, Depositary Shares and Debt Securities
Underwriting Agreement" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined.
A-3
Please accept this offer no later than [_____] o'clock P.M. (New York City
time) on [_____] by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
[OTHER REPRESENTATIVES]
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
----------------------------------------------
For themselves and as Representatives of
the other named Underwriters.
Accepted:
DUKE REALTY INVESTMENTS, INC.
By:
---------------------------
Name:
Title:
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
---------------------------
General Partner
By:
---------------------------
Name:
Title:
A-4
EXHIBIT B
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
Dated: [__________], 199[_]
To: Duke Realty Investments, Inc.
Duke Realty Limited Partnership
c/o Duke Realty Investments, Inc.
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from [Duke Realty
Investments, Inc. (the Company)] [Duke Realty Limited Partnership (the
"Operating Partnership")], and the [Company][Operating Partnership] agrees to
sell to the undersigned on [__________], 19[__] (the "Delivery Date"),
$[__________] amount of the [Company][Operating Partnership]'s [insert title of
security] (the "Securities"), offered by the [Company][Operating Partnership]'s
Prospectus dated [__________], 19[__], as supplemented by its Prospectus
Supplement dated [__________], 19[__], receipt of which is hereby acknowledged,
at a purchase price of $[_____ per share] [_____% of the principal amount
thereof, plus accrued interest from [__________], 19[__], to the Delivery Date],
and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the [Company][Operating
Partnership] or its order by [certified or official bank check in New York
Clearing House] [same day] funds at the office of [__________], on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the [Company][Operating Partnership] not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the [Company][Operating Partnership], on or
before [__________], 19[__], shall have sold to the Underwriters of the
Securities (the "Underwriters") such amount of the Securities as is to be sold
to them pursuant to the Terms Agreement dated [__________], 19[__] between the
[Company][Operating Partnership] and the Underwriters. The obligation of the
undersigned to take delivery of and make payment for Securities shall not be
affected by the failure of any purchaser to take delivery of and make payments
for Securities pursuant to other contracts similar to this contract. The
undersigned represents and warrants to you that its investment in the Securities
is not, as of the date hereof, prohibited under the laws of any jurisdiction to
which the undersigned is subject and which govern such investment.
B-1
Promptly after completion of the sale to the Underwriters, the
[Company][Operating Partnership] will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinions of counsel for the [Company][Operating Partnership] delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the [Company][Operating Partnership] that all necessary corporate action for the
due execution and delivery of this contract and the payment for and purchase of
the Securities has been taken by it and no further authorization or approval of
any governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the
[Company][Operating Partnership] and mailing or delivery of a copy as provided
below, this contract will constitute a valid and binding agreement of the
undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the [Company][Operating Partnership] will not
accept Delayed Delivery Contracts for an aggregate amount of Securities in
excess of $[__________] and that the acceptance of any Delayed Delivery Contract
is in the [Company][Operating Partnership]'s sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If
this contract is acceptable to the [Company][Operating Partnership], it is
requested that the [Company][Operating Partnership] sign the form of acceptance
on a copy hereof and mail or deliver a signed copy hereof to the undersigned at
its address set forth below. This will become a binding contract between the
[Company][Operating Partnership] and the undersigned when such copy is so mailed
or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
----------------------------------------
(Name of Purchaser)
By:
-------------------------------------
(Title)
----------------------------------------
----------------------------------------
(Address)
Accepted as of the date first above written.
[DUKE REALTY INVESTMENTS, INC.
By:
-----------------------------
Name:
Title:]
[DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
-----------------------------
By:
------------------------
Name:
Title:]
B-2
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please Print.)
Telephone No.
Name (including Area Code)
---- -------------------
B-3
