TERMS AGREEMENT
---------------
Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, XX 00000
November 17, 1998
Dear Sirs:
Duke Realty Investments, Inc., an Indiana corporation (the "COMPANY"),
proposes, subject to the terms and conditions stated herein and in the Duke
Realty Investments, Inc. and Duke Realty Limited Partnership -- Common Stock,
Preferred Stock, Depositary Shares and Debt Securities -- U.S. Underwriting
Agreement, dated October 15, 1998 (the "UNDERWRITING AGREEMENT"), to issue
and sell to Xxxxxx X. Xxxxx & Co., L.P. (the "UNDERWRITER") 5,400,000 of the
Shares specified in Schedule II hereto (the "DESIGNATED SHARES"). Each of
the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein;
and each of the representations and warranties set forth therein shall be
deemed to have been made at and as of the date of this Terms Agreement,
except that each representation and warranty which refers to the Prospectus
in Section 1 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation
and warranty as of the date of this Terms Agreement in relation to the
Prospectus as amended or supplemented relating to the Designated Shares which
are the subject of this Terms Agreement. Each reference to the
Representative herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein
as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to you, and you agree to purchase from the Company, at the
time and place and at the purchase price to the Underwriter set forth in
Schedule II hereto, the number of Designated Shares set forth opposite your
name in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Very truly yours,
DUKE REALTY INVESTMENTS, INC.
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Vice President and Corporate Controller
----------------------------------------
-2-
Confirmed and Accepted
as of the date hereof:
XXXXXX X. XXXXX & CO., L.P.
By /s/ T. Xxxxxxx Xxxxx, Xx.
--------------------------------
Name: T. Xxxxxxx Xxxxx, Xx.
-------------------------------
Title: Principal
-------------------------
-3-
SCHEDULE I
UNDERWRITER NUMBER OF DESIGNATED SHARES
TO BE PURCHASED
Xxxxxx X. Xxxxx & Co., L.P. 5,400,000
Total 5,400,000
Schedule II
TITLE OF DESIGNATED SHARES:
Depositary Shares, each representing 1/10 of a 7.375% Series D
Convertible Cumulative Redeemable Preferred Share
DATE OF BOARD RESOLUTION ESTABLISHING DESIGNATED SHARES:
November 12, 1998
NUMBER OF DESIGNATED SHARES:
5,400,000 shares
OVER-ALLOTMENT OPTION:
Not Applicable
INITIAL OFFERING PRICE TO PUBLIC:
$25.00 per share
PURCHASE PRICE BY UNDERWRITER:
$24.00 per share
COMMISSION PAYABLE TO UNDERWRITER:
$1.00 per share
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds
DIVIDEND RATE:
7.375% per annum
DIVIDEND PAYMENT DATES:
The last day of each March, June, September and December
DIVIDEND RIGHTS:
Cumulative
VOTING RIGHTS:
None, except as specified in the Certificate of Designation or
required by Indiana law; provided that if dividends are not paid for six or
more quarterly periods, the holders of the Designated Shares (together with
any other preferred shareholders who have the same voting rights) may elect
two additional directors to serve on the board of directors until all
dividends in arrears have been paid, all as more fully set forth in the
Prospectus Supplement and the Board resolutions establishing the 7.375%
Series D Convertible Cumulative Redeemable Preferred Shares.
LIQUIDATION RIGHTS:
Liquidation preference of $25.00 per share, plus any accrued and
unpaid dividends.
PREEMPTIVE AND CONVERSION RIGHTS:
The Depositary Shares are convertible at any time, in whole but not
in part, into the Company's common shares at a conversion price of $26.6875
per common share (equivalent to a conversion rate of .93677 shares for each
Depositary Share) subject to adjustment.
-2-
REDEMPTION PROVISIONS:
The Designated Shares may be redeemed, in whole or in part at the
option of the Company, at any time after December 31, 2003, solely from the
proceeds of an offering of the Company's capital shares, at a redemption
price of $25.00 per share, plus accrued and unpaid dividends thereon to the
date fixed for redemption, without interest.
The Company will redeem the Designated Shares upon the death of any
registered owner of the Designated Shares, subject to the limitations more
fully described in the Prospectus Supplement and the Board resolutions
establishing the 7.375% Series D Convertible Cumulative Redeemable Preferred
Shares.
SINKING FUND PROVISIONS:
None
TIME OF DELIVERY:
November 24, 1998
CLOSING LOCATION FOR DELIVERY OF SHARES:
Xxxxxxx and Xxxxxx
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
NAME AND ADDRESS OF REPRESENTATIVE:
Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, XX 00000
OTHER TERMS:
Sections 3(o) and 5(h) of the Underwriting Agreement referred to
above are inapplicable to this transaction.
-3-
