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
October 15, 1998
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 $650,000,000 (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 non-convertible investment grade debt securities
(the "Debt Securities"), with an aggregate public offering price of up to
$350,000,000 (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
Securities"), the names of the Underwriters participating in such offering
(subject to substitution as provided in Section 10 hereof), the amount of
Initial 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 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 Securities, the form, time, date and place of
delivery and payment, any delayed delivery arrangements and any other
variable terms of the Initial 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 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 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. 333-49911) 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), together
with each prospectus supplement relating to the offering of Underwritten
Securities (the "Prospectus") pursuant to Rule 415 of the 1933 Act
Regulations (each, a "Prospectus Supplement"), including all documents
incorporated therein by reference, as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act") or otherwise, are collectively referred to herein
as the "Registration Statement" and the "Prospectus," respectively; provided
that if any revised prospectus shall be provided to the Representatives by
the Company or the Operating Partnership for use in connection with the
offering of Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes effective (whether
or not such revised prospectus is required to be filed by the Company or the
Operating Partnership pursuant to Rule 424(b) of the 1933 Act Regulations),
the term "Prospectus" shall refer to each such revised prospectus from and
after the time it is first provided to the Underwriters 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 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, as of the Closing Time (as defined below)
and, if applicable, as of each Date of Delivery (as defined below) (in each
case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied, and as of each
Representation Date will comply, in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act and
the rules 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 Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at the time it is
first provided to you for such use), Closing Time and Date of Delivery, if
any, will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or 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 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 Registration Statement and 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 during the period specified in
Section 3(f), did not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) KPMG Peat Marwick LLP, the accounting firm that audited the
financial statements and supporting schedules included in, or incorporated
by reference into, the Registration Statement and Prospectus, are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(v) The financial statements included in, or incorporated by
reference into, the Registration Statement and the Prospectus, together
with the related schedules and notes, present fairly the financial position
of the respective entity or entities presented therein at the respective
dates indicated and the results of their operations for the respective
periods specified. Except as otherwise stated in the Registration
Statement and Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The supporting schedules
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated therein.
The Company's ratios of earnings to fixed charges (actual and, if any, pro
forma) included in the 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 is pending or, to the
knowledge of the Company or the Operating Partnership, threatened by the
Commission or by the state securities authority of any jurisdiction, and
any request on the part of the Commission for additional information has
been complied with. No order preventing or suspending the use of the
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 arising in the ordinary course of business, which are
material with respect to the Duke Group as a whole; (E) neither the
Company, the Operating Partnership nor any of their respective subsidiaries
has incurred any obligation or liability, direct, contingent or otherwise
which is material to the Duke Group as a whole; (F) there has been no
material change in the short-term debt or long-term debt of the Duke Group
as a whole; (G) except for regular quarterly dividends on the Common Stock
and dividends on the Preferred Stock in amounts per share that are
consistent with past practice, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock; and (H) with the exception of transactions in connection
with stock option and dividend reinvestment plans, the issuance of shares
of Common Stock upon the exchange of partnership interests in the Operating
Partnership ("Units") and the issuance of Units in connection with the
acquisition of real or personal property, there has been no change in the
capital stock or in the partnership interests, as the case may be, of the
Company, the Operating Partnership or any subsidiary.
(viii) Each of the Company and the Operating Partnership has been
duly formed, and is validly existing and in good standing as a corporation
or partnership under the laws of its jurisdiction of organization, with
corporate or partnership power and authority to conduct the business in
which it is engaged or proposes to engage and to own, lease and operate its
properties as described in the 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 corporate or partnership power and
authority to conduct the business in which it is engaged or proposes to
engage and to own, lease and operate its properties as described in the
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, and if the Prospectus contains the caption "Capitalization," the
authorized, issued and outstanding shares of capital stock of the Company
as of the date specified therein is as set forth in the column entitled
"Historical" under such caption. All the issued and outstanding shares of
capital stock of the Company have been duly authorized and are validly
issued, fully paid and non-assessable and have been offered and sold in
compliance with all applicable laws (including, without limitation,
federal, state or foreign securities laws) and none of such shares of
capital stock was issued in violation of preemptive or other similar rights
of any securityholder of the Company.
(xii) If the applicable Underwritten Securities are issued by the
Operating Partnership, and if the Prospectus contains the caption
"Capitalization," the partner's equity of the Operating Partnership is as
set forth in the column entitled "Historical" under such caption. All the
issued and outstanding Units have been duly authorized and are validly
issued, fully paid and non-assessable, except as provided under Indiana
Code Section 23-16-7-8, and have been offered and sold or exchanged in
compliance with all applicable laws (including, without limitation,
federal, state or foreign securities laws).
(xiii) All of the issued and outstanding shares of capital stock
and partnership interests, as the case may be, of each subsidiary have been
validly issued and fully paid and, other than the Property Partnerships,
Duke Realty Services Limited Partnership (the "Services Partnership") and
Duke Construction Limited Partnership (the "Construction Partnership"), are
owned by the Company, the Operating Partnership or a subsidiary, in each
case free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. Neither the Company nor the Operating
Partnership owns any direct or indirect equity interest in any entity other
than the subsidiaries and the Property Partnerships, except for such
interests as, in the aggregate, are not material to the condition,
financial or otherwise, or the earnings, assets, business affairs or
business prospects of the Duke Group considered as a single enterprise.
Duke Services, Inc. is the sole general partner and a 1% owner of the
Services Partnership, and the Operating Partnership and DMI Partnership are
the sole limited partners and 9% and 90% owners, respectively, of the
Services Partnership. The Services Partnership is the sole general partner
and a 1% owner of the Construction Partnership. The 99% limited
partnership interest of the Construction Partnership is owned by Duke
Realty Construction, Inc., an Indiana corporation which is owned 4.04% by
the Services Partnership and 95.96% by DMI Partnership.
(xiv) Except for transactions described in the Prospectus and
transactions in connection with dividend reinvestment plans, stock option
and other employee benefit plans, and a Rights Agreement, dated as of July
23, 1998, between the Company and American Stock Transfer & Trust Company
(the "Rights Agreement"), there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of, any
shares of capital stock of or partnership or other equity interest in the
Company, the Operating Partnership or any subsidiary except for the shares
of Common Stock which may be issued in exchange for Units.
(xv) Each of the Property Partnerships has been duly formed as a
partnership or a limited liability company, as the case may be, and is
validly existing and in good standing as a partnership or limited liability
company under the laws of its jurisdiction of organization and, if formed
under the laws of a jurisdiction other than the State of Indiana, in good
standing under the laws of such jurisdiction; each of the Property
Partnerships has the requisite power and authority to own, lease and
operate its properties, to conduct the business in which it is engaged and
to enter into and perform its respective obligations under the agreements,
to which it is a party. Each of the partnership or operating agreements,
as the case may be, of the
Property Partnerships is in full force and effect.
(xvi) The applicable 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 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) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
(xx) There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which
have not been so described and/or filed as required and the descriptions
thereof or references thereto are correct in all material respects and no
material defaults exist in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any such
contract or document.
(xxi) None of the entities comprising the Duke Group is in
violation of its charter, by-
laws, certificate of limited partnership or partnership agreement, as the
case may be, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which such entity is a party or by which such entity may be bound, or to
which any of its property or assets is subject, which default separately
or in the aggregate would have a Material Adverse Effect.
(xxii) (A) This Agreement has been duly and validly authorized,
executed and delivered by the Company and the Operating Partnership, and,
assuming due authorization, execution and delivery by the Representatives,
constitutes a valid and binding obligation of the Company and the Operating
Partnership, enforceable in accordance with its terms, and (B) at the
Representation Date, the Terms Agreement and the Delayed Delivery Contracts
(as defined in Section 2 hereof), if any, will have been duly and validly
authorized, executed and delivered by the Company and the Operating
Partnership, as the case may be, and, assuming due authorization, execution
and delivery by the Representatives will be valid and binding agreements,
enforceable in accordance with its or their terms.
(xxiii) If applicable, the Indenture (A) has been duly qualified
under the 1939 Act, has been duly and validly authorized, executed and
delivered by the Operating Partnership, and when executed and delivered by
the Trustee, will constitute a valid and binding obligation of the
Operating Partnership, enforceable in accordance with its terms, and (B)
conforms in all material respects to the description thereof in the
Prospectus.
(xxiv) Each of the partnership agreements to which any of the
Company, the Operating Partnership or their respective subsidiaries is a
party has been duly authorized, executed and delivered by such party and
constitutes a valid and binding obligation thereof, enforceable in
accordance with its terms.
(xxv) The execution and delivery of this Agreement, the applicable
Terms Agreement, any Indenture and any deposit agreement and the issuance
of 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 or imposition of any lien, charge or encumbrance
upon any Property or assets of the Duke Group pursuant to any contract,
indenture, mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement to which the
Company, the Operating Partnership or any subsidiary is a party or by which
they, either of them, any of their respective properties or other assets or
any Property may be bound or subject which is material to the Duke Group as
a whole; nor will such action conflict with or constitute a breach or
violation by the Company or the Operating Partnership of, or default under,
(A) the charter, by-laws, certificate of limited partnership or partnership
agreement, as the case may be, of the Company, the Operating Partnership or
any subsidiary or (B) to the extent it is material, any applicable law,
rule, order, administrative regulation or administrative or court decree.
(xxvi) No labor dispute with the employees of the Duke Group exists
or, to the knowledge of the Company or the Operating Partnership, is
imminent; and neither the Company nor the Operating Partnership is aware of
any existing or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors which might be expected
to have a Material Adverse Effect.
(xxvii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company or the Operating Partnership, threatened
against or affecting any entity belonging to the Duke Group, any Properties
or any officer or director of the Company, which is material to the Duke
Group as a whole and is required to be disclosed in the Registration
Statement or the 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.
(xxviii) No authorization, approval, consent or order of any court or
governmental authority or agency is required that has not been obtained in
connection with the consummation by the Company, the Operating Partnership
or both, as the case may be, of the transactions contemplated by this
Agreement, the applicable Terms Agreement, or the applicable Indenture, if
any, except such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or state or foreign
securities laws or real estate syndication laws or such as have been
received prior to the date of this Agreement.
(xxix) At all times since February 13, 1986, the Company has been,
and upon the sale of the applicable Underwritten Securities, the Company
will continue to be, organized and operated in conformity with the
requirements for qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code"), and its proposed
method of operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(xxx) None of the entities comprising the Duke Group is required
to be registered under the Investment Company Act of 1940, as amended (the
"1940 Act"), or is or will become a "holding company" or a "subsidiary
company" of a "registered holding company" as defined in the Public Utility
Holding Company Act of 1935, as amended.
(xxxi) None of the entities comprising the Duke Group is required
to own or possess any trademarks, service marks, trade names or copyrights
not now lawfully owned, possessed or licensed in order to conduct the
business now operated by such entity.
(xxxii) Each entity belonging to the Duke Group possesses such
material certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct the business now operated by it, or proposed to be conducted by it,
and none of the entities comprising the Duke Group has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(xxxiii) Except as disclosed in the Prospectus and except for persons
who received Units in connection with transactions with the Operating
Partnership, there are no persons with registration or other similar rights
to have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company or the Operating Partnership under the
1933 Act.
(xxxiv) The Common Stock will be listed on the New York Stock
Exchange on the applicable Representation Date and at the applicable
Closing Time. Unless otherwise agreed upon with reference to Preferred
Stock, as of the applicable Representation Date the Preferred Stock will
have been approved for listing on the New York Stock Exchange upon notice
of issuance.
(xxxv) The Debt Securities will have an investment grade rating
from one or more nationally recognized statistical rating organizations at
the Representation Date and at the applicable Closing Time.
(xxxvi) (A) With respect to the Properties, the Company or the
Operating Partnership and the Property Partnerships have good and
marketable title to all items of real property (and improvements thereon),
leasehold interests and general and limited partnership interests, in each
case free and clear of all liens, encumbrances, claims, security interests
and defects, except such as are (i) described in the Prospectus or the
Company's Annual Report on Form 10-K for the most recently ended fiscal
year, (ii) referred to in the title policies of such Properties, (iii)
serving as security for loans described in the 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.
(xxxvii) 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.
(xxxviii) Each of the Company, the Operating Partnership and their
respective subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and none
of the Company, the Operating Partnership and their respective subsidiaries
has any reason to believe that it or any of its subsidiaries will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its businesses at a cost that would not have a
Material Adverse Effect, except as described in or contemplated by the
Registration Statement and the Prospectus.
(xxxix) The Company and the Operating Partnership have not taken and
will not take, directly or indirectly, any action prohibited by Regulation
M under the 1934 Act.
(xl) The assets of the Company do not constitute "plan assets"
under the Employee Retirement Income Security Act of 1974, as amended.
(xli) Except as disclosed in the Prospectus, and, with respect to
clauses (A), (B) and (C) below, except for activities, conditions,
circumstances or matters that would not have a Material Adverse Effect,
(A) each Property, including, without limitation, the Environment (as
defined below) associated with such Property, is free of any Hazardous
Substance (as defined below), (B) neither the Company nor the Operating
Partnership nor any Property Partnership has caused or suffered to occur
any Release (as defined below) of any Hazardous Substance into the
Environment on, in, under or from any Property, and no condition exists on,
in, under or from any Property, to the knowledge of the Company or the
Operating Partnership, that could result in the incurrence of material
liabilities or any material violations of any Environmental Law (as defined
below), give rise to the imposition of any Lien (as defined below) under
any Environmental Law, or cause or constitute a health, safety or
environmental hazard to any property, person or entity; (C) neither the
Company, the Operating Partnership nor any Property Partnership is engaged
in or intends to engage in any manufacturing or any other operations at the
Properties that (1) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance or (2) require
permits or are otherwise regulated pursuant to any Environmental Law, other
than permits which have been obtained; (D) neither the Company nor the
Operating Partnership nor any Property Partnership has received any notice
of a claim material to the Duke Group as a whole under or pursuant to any
Environmental Law or under common law pertaining to Hazardous Substances on
or originating from any Property; (E) neither the Company nor the Operating
Partnership nor any Property Partnership has received any notice from any
Governmental Authority (as defined below) claiming any violation of any
Environmental Law; and (F) no Property is included or, to the knowledge of
the Company or the Operating Partnership, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined below) by
the United States Environmental Protection Agency (the "EPA") or, with the
exception of one Property, in respect to which the EPA has advised the
Company that no further remedial action is planned, on the Comprehensive
Environmental Response, Compensation, and Liability Information System
database maintained by the EPA, and has not otherwise been identified by
the EPA as a potential CERCLA removal, remedial or response site or
included or, to the knowledge of the Company or the Operating Partnership,
proposed for inclusion on, any similar list of potentially contaminated
sites pursuant to any other Environmental Law.
Excluding such customary amounts as may be lawfully generated, stored,
used, treated, disposed of, or otherwise handled or located at any
Property, as used herein "Hazardous Substance" shall include, without
limitation, any hazardous substance, hazardous waste, toxic or dangerous
substance, pollutant, toxic waste or similarly designated materials,
including, without limitation, oil, petroleum or any petroleum-derived
substance or waste, asbestos or asbestos-containing materials, PCBs,
pesticides, explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant or waste,
including 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 C. Section 9601 et
seq.) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended (42 C. Section 6901, et seq.), the Clean Air Act, as amended (42
C. Section 7401, et seq.), the Clean Water Act, as amended (33 C. Section
1251, et seq.), the Toxic Substances Control Act, as amended (15 C.
Section 2601, et seq.), the Occupational Safety and Health Act of 1970, as
amended (29 C. Section 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 C. Section 1801, et seq.), and all
other federal, state and local laws, ordinances, regulations, rules,
orders, decisions and permits relating to the protection of the
environments or of human health from environmental effects; "Governmental
Authority" shall mean any federal, state or local governmental office,
agency or authority having the duty or authority to promulgate, implement
or enforce any Environmental Law; "Lien" shall mean, with respect to any
Property, any mortgage, deed of trust, pledge, security interest, lien,
encumbrance, penalty, fine, charge, assessment, judgment or other liability
in, on or affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release, emission,
discharge or similar term, as those terms are defined or used in any
Environmental Law.
(xlii) Each of the Company, the Operating Partnership and their
subsidiaries has obtained title insurance on all of the properties owned by
each of them in an amount at least equal to (A) the cost to acquire land
and improvements in the case of an acquisition of improved property or (B)
the cost to acquire land in the case of an acquisition of unimproved
property and in each case such title insurance is in full force and effect.
(xliii) Each of the Company and the Operating Partnership has filed
all federal, state, local and foreign income tax returns which have been
required to be filed (except in any case in which the failure to so file
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business prospects
of such entity) and has paid all taxes required to be paid
and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except, in all cases, for any
such tax, assessment, fine or penalty that is being contested in good
faith.
(b) Any certificate signed by any officer of the Company, the
Operating Partnership or of any of their respective subsidiaries and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by such entity to each Underwriter as to
the matters covered thereby.
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, less an amount equal to
any dividends or distributions declared by the Company and paid or payable on
the Initial Underwritten Securities but not payable on the Option Securities.
Such option, if granted, will expire 30 days (or such lesser number of days
as may be specified in the applicable 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, date and place of
payment and delivery for such Option Securities. Any such time, date and
place of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days nor
earlier than two full business days after the exercise of said option, nor in
any event prior to the Closing Time, unless otherwise agreed upon by the
Representatives and the Company or the Operating Partnership, as the case may
be. If the option is exercised as to all or any portion of the Option
Securities, each of the 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 Initial Underwritten Securities to be purchased by the
Underwriters shall be made at the offices of Xxxxxx & Xxxxx LLP, 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 (such time and date of payment
and delivery being herein called the "Closing Time"). In addition, in the
event that any or all of the Option 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 LLP, or at such other place as shall be agreed upon by the
Representatives and the Company or the Operating Partnership, as the case may
be, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company or the Operating Partnership,
as the case may be, by wire transfer of immediately available funds to a bank
account designated by the Company or the Operating Partnership, as the case
may be, against delivery to the Representatives for the respective accounts
of the Underwriters of 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 funds
have not been received by the Closing Time or the relevant Date of Delivery,
as the case may be, but any such payment shall not relieve such Underwriter
from its obligations hereunder. The certificates for the Initial 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 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.
(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 relating to Underwritten Securities, the Company and the
Operating Partnership will not, without the prior written consent of the
Representatives, directly or indirectly, sell, offer to sell, grant any
option for the sale of, enter into any agreement to sell, or otherwise
dispose of, (i) any securities of the same class or series or ranking on a
parity with any 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 Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("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.
(r) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
(s) During the period from the Closing Time until five years after
the Closing Time, the Company and the Operating Partnership will deliver to
the Representatives, (i) promptly upon their becoming available, copies of
all current, regular and periodic reports of the Company mailed to its
stockholders or filed with any securities exchange or with the Commission
or any governmental authority succeeding to any of the Commission's
functions, and (ii) such other information concerning the Company and the
Operating Partnership as the Representatives may reasonably request.
SECTION 4. PAYMENT OF EXPENSES. The Company and the Operating Partnership
will pay all expenses incident to the performance of its obligations under this
Agreement and the applicable Terms Agreement, including (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto; (ii) the cost of printing, or reproducing, and distributing to the
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 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 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:
(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 report, and has not filed Articles of Dissolution. The
Company has corporate power and authority to conduct the business
in which it is engaged or proposes to engage and to own, lease
and operate its properties as described in the 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, and if the Prospectus contains the caption
"Capitalization," the capital stock of the Company is as set
forth in the column entitled "Historical" under such caption.
All the issued and outstanding shares of capital stock have been
duly authorized and are validly issued, fully paid and non-
assessable. To the best of such counsel's knowledge, after due
inquiry, no shares of capital stock of the Company are reserved
for any purpose except in connection with stock option and
dividend reinvestment plans and the possible issuance of shares
of Common Stock upon the exchange of Units. To the best of such
counsel's knowledge after due inquiry, except for Units and the
rights (the "Rights") asociated with the Rights Agreement, 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 and the Rights, there are no
outstanding options, rights (preemptive or otherwise) or warrants
to purchase or to subscribe for shares of such stock or any other
securities of the Company.
(vi) All the issued and outstanding Units have been
duly authorized and are validly issued, fully paid and non-
assessable, except as provided under Indiana Code
Section 23-16-7-8.
(vii) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be, of
each subsidiary identified in an exhibit to such counsel's
opinion have been validly issued and fully paid and all such
shares and partnership interests, as the case may be, that are
owned by the Company, the Operating Partnership or a subsidiary,
are in each case owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(viii) Each of the Property Partnerships has been duly
formed as a partnership or a limited liability company, as the
case may be, and is validly existing and in good standing as a
partnership or a limited liability company under of the laws of
its jurisdiction of organization; each Property Partnership has
all requisite power and authority to own, lease and operate the
Properties, to conduct the business in which it is engaged and to
enter into and perform its respective obligations under the
agreements to which it is a party. Each of the partnership or
operating agreements, as the case may be, of the Property
Partnerships is in full force and effect.
(ix) The applicable Underwritten Securities, if such
Underwritten Securities are 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
to the benefits of the Indenture and such Debt Securities will be
enforceable against the Operating Partnership in accordance with
their terms, except as such enforceability may be (1) limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
or other similar laws affecting the rights and remedies of
creditors generally and (2) subject to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law). Upon payment of the
purchase price and delivery of such 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.
(xi) If applicable, the Common Stock issuable upon
conversion of any of the Preferred Stock (including Preferred
Stock represented by Depositary Shares) will have been duly and
validly authorized and reserved for issuance upon such conversion
or exercise by all necessary action and such stock, when issued
upon such conversion or exercise, will be duly and validly
issued, fully paid and non-assessable, and the issuance of such
stock upon such conversion or exercise will not be subject to
preemptive or other similar rights; the Common Stock so issuable
conforms in all material respects to all statements relating
thereto contained in the 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 proceeding in equity or at
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).
(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 any Property or assets of
the Duke Group pursuant to any contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership
agreement or other instrument or agreement known to such counsel,
after due inquiry, to which the Company, the Operating
Partnership or any subsidiary is a party or by which they, either
of them, any of their respective properties or other assets or
any Property may be bound or subject which is material to the
Duke Group as a whole; nor will such action conflict with or
constitute a breach or violation by the Company or the Operating
Partnership of, or default under, (A) the charter, by-laws,
certificate of limited partnership or partnership agreement, as
the case may be, of the Company, the Operating Partnership or any
subsidiary or (B) to the extent it is material, any applicable
law, rule, order, administrative regulation or administrative or
court decree.
(xvii) Assuming the Company was organized in conformity
with and has satisfied the requirements for qualification and
taxation as a "real estate investment trust" under the Code for
each of its taxable years from and including the first taxable
year for which the Company made the election to be taxed as a
"real estate investment trust", the proposed methods of operation
of the Company, the Operating Partnership and the Services
Partnership as described in the Registration Statement and the
Prospectus Supplement and as represented by the Company, the
Operating Partnership and the Services Partnership will permit
the Company to continue to qualify to be taxed as a "real estate
investment trust" for its current and subsequent taxable years.
(xviii) None of the entities comprising the Duke Group is
required to be registered under the 1940 Act or is or will become
a "holding company" or a "subsidiary company" of a "registered
holding company" as defined in the Public Utility Holding Company
Act of 1935, as amended.
(xix) To such counsel's knowledge, after due inquiry,
(i) each entity belonging to the Duke Group possesses such
material certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or
bodies necessary to
conduct the business now operated by it, or proposed to be
conducted by it, and (ii) none of the entities comprising the
Duke Group has received any notice of proceedings relating to
the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or
business prospects of the Duke Group considered as a single
enterprise.
(xx) No authorization, approval, consent or order of
any court or governmental authority or agency or, to the
knowledge of such counsel, any other entity is required in
connection with the offering, issuance or sale of the applicable
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
1934 Act Regulations.
(xxiii) The Registration Statement is effective under the
1933 Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(xxiv) At the time the Registration Statement became
effective and at each of the Representation Dates, the
Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment
or supplement to the Registration Statement and Prospectus,
excluding the documents incorporated by reference therein (other
than the financial statements and supporting schedules and other
financial data included therein, as to which no opinion need be
rendered), complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(xxv) There are no legal or governmental proceedings
pending or, to the best of their knowledge and information,
threatened which are required to be disclosed in the Registration
Statement or the 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 similar
sections and, if applicable, "The Company" or "The Operating
Partnership," as the case may be, to the extent that it
constitutes matters of law, summaries of legal matters, documents
or proceedings, or legal conclusions, has been reviewed by them
and is correct and presents fairly the information required to be
disclosed therein.
(xxvii) There are no statutes, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
known to such counsel which are required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto by the 1933 Act Regulations other than those
described or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are correct, and,
to the best knowledge of such counsel, no material default exists
in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to or filed.
(xxviii) To the best knowledge of such counsel, except as
disclosed in the Prospectus and except for persons who received
Units in connection with transactions with the Operating
Partnership, there are no persons with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company or
the Operating Partnership under the 1933 Act.
(xxix) The Company and the Operating Partnership each
satisfy all conditions and requirements for filing the
Registration Statement on Form S-3 under the 1933 Act and 1933
Act Regulations.
(2) The favorable opinion, dated as of the Closing Time, of
Xxxxxx & Xxxxx LLP, 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)(1)(x) (with respect to the first sentence only), as applicable,
Section 5(b)(1)(xiii) (with respect to the first clause only), Section
5(b)(1)(xiv) and Section 5(b)(1)(xxiv) and (B) containing a statement
similar to the statement referred to in the first paragraph of
Section 5(b)(3).
(3) In giving their opinions required by subsections (b)(1) and
(b)(2), respectively, of this Section, Bose XxXxxxxx & Xxxxx and
Xxxxxx & Xxxxx LLP 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 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 a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the 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 LLP 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 LLP 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
Regulations and the 1934 Act and the 1934 Act Regulations; (iii) based upon
limited procedures set forth in detail in such letter, including a reading
of the latest available interim financial statements of the Company and the
Operating Partnership, a reading of the minute books of the Company and the
Operating Partnership, inquiries of officials of the Company and the
Operating Partnership responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing has come to their attention which causes them to believe that
(A) the unaudited financial statements of the Company and the Operating
Partnership included in the Registration Statement, or incorporated by
reference therein, do not comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations, or material
modifications are required for them to be presented in conformity with
generally accepted accounting principles, (B) the operating data and
balance sheet data set forth in the 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.
(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 Units exchanged by DMI Partnership pursuant to
a Unit bonus plan for employees of the Company and its subsidiaries. Such
transfer restrictions do not apply to transfers to members of the family of
such director or executive officer (or an entity for their benefit), or to
the granting of a bona fide security interest to a secured party. Any
transferees of such shares, Units or other securities will be likewise
prohibited from making any transfer of shares, Units or other securities.
(i) In the event that the 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, the Operating Partnership and their respective
subsidiaries, 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 LLP, 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.
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 or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, Prospectus, preliminary prospectus supplement or
Prospectus Supplement (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that this
indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company or the
Operating Partnership by any 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 or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus or the 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
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; PROVIDED, HOWEVER, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available
to the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or
parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. 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, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying
party shall not be liable for the expenses of more than one separate
counsel)(in addition to local counsel) in any one action or separate but
substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, (ii) the indemnifying party does
not promptly retain counsel reasonably satisfactory to the indemnified party
or (iii) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party. The
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the
consent of the indemnifying party. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as required by this Section 6, such indemnifying party agrees that
it shall be liable for any settlement of the nature contemplated by Section
6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior
to the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Operating Partnership, on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Operating Partnership, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Operating
Partnership, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Underwritten
Securities (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet, bear to the aggregate initial public offering price of such
Underwritten Securities as set forth on such cover.
The relative fault of the Company and the Operating Partnership, on
the one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Operating
Partnership or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Operating Partnership and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no 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 by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Operating Partnership within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company or the Operating Partnership, as the case may be. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Underwritten Securities set forth opposite
their respective names in the applicable Terms Agreement and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or
the applicable 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 any outbreak of hostilities or escalation
thereof or to other calamity or crisis or any change or development involving
a prospective change in national or international political, financial or
economic condition, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable or inadvisable to (x)
commence or continue the offering of Underwritten Securities to the public or
(y) 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 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.
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: Executive Vice President,
Chief Administrative
Officer and Treasurer
DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Investments, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Administrative
Officer and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx X. Xxxxx
Name:
Title:
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 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.
[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__.]
Purchase price: ___%, plus accrued interest, if any, or
amortized original issue discount, if any, from
____________, 19__ (payable in [same] [next] day funds).
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Duke Realty Investments, Inc. and Duke Realty Limited Partnership
--Common Stock, Preferred Stock, Depositary Shares and Debt Securities -
Underwriting Agreement" are incorporated by reference in their entirety
herein and shall be deemed to be a part of this 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.
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:
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.
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.
-----------------------------
Name:
Title:]
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)
---- ---------------------
