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
March 5, 1998
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Duke Realty Investments, Inc. (the "Company") may from time to time
offer in one or more series (i) shares of Common Stock, $.01 par value (the
"Common Stock"), (ii) shares of preferred stock, $.01 par value (the "Preferred
Stock") and (iii) shares of Preferred Stock represented by depositary shares
(the "Depositary Shares"), with an aggregate public offering price of up to
$325,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). Duke Realty Limited Partnership (the "Operating
Partnership") may from time to time offer in one or more series unsecured debt
securities (the "Debt Securities"), with an aggregate principal amount of up to
$220,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). The Common Stock, Preferred Stock, Depositary Shares and
Debt Securities (collectively, the "Securities") may be offered, separately or
together, in separate series, in amounts, at prices and on terms to be set forth
in one or more Prospectus Supplements as hereinafter defined. The Debt
Securities will be issued under one or more indentures, as amended or
supplemented (each, an "Indenture"), between the Operating Partnership and a
trustee (a "Trustee"). Each series of Debt Securities may vary, as applicable,
as to aggregate principal amount, maturity date, interest rate or formula and
timing of payments thereof, redemption or repayment provisions, and any other
variable terms which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time. As used herein, "the Representatives,"
unless the context otherwise requires, shall mean the parties to whom
this Agreement is addressed together with the other parties, if any, identified
in the applicable 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
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(No. 333-26845) for the registration of the Securities under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from time
to time in accordance with Rule 430A or Rule 415 of the rules and regulations
of the Commission under the 1933 Act (the "1933 Act Regulations"), and the
Company and the Operating Partnership have filed such amendments thereto as
may have been required prior to the execution of the applicable 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,
each pursuant to Rule 415 of the 1933 Act Regulations (each, a "Prospectus
Supplement"), including all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act") or otherwise,
are collectively referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided that if any revised prospectus shall be
provided to the Representatives by the Company or the Operating Partnership
for use in connection with the offering of Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required to be
filed by the Company or the Operating Partnership pursuant to Rule 424(b) of
the 1933 Act Regulations), the 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 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.
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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
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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
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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
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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").
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(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, and stock
option and
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other employee benefit plans, there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of, any
shares of capital stock of or partnership or other equity interest in the
Company, the Operating Partnership or any subsidiary except for the shares
of Common Stock which may be issued in exchange for Units.
(xv) Each of the Property Partnerships has been duly formed as a
partnership or a limited liability company, as the case may be, and is
validly existing and in good standing as a partnership or limited liability
company under the laws of its jurisdiction of organization and, if formed
under the laws of a jurisdiction other than the State of Indiana, in good
standing under the laws of such jurisdiction; each of the Property
Partnerships has the requisite power and authority to own, lease and
operate its properties, to conduct the business in which it is engaged and
to enter into and perform its respective obligations under the agreements,
to which it is a party. Each of the partnership or operating agreements,
as the case may be, of the Property Partnerships is in full force and
effect.
(xvi) The applicable 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,
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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
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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
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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
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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.
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(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,
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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
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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
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formaldehyde insulation or any constituent of any such substance,
pollutant or waste, including any such substance, pollutant or waste
identified or regulated under any Environmental Law (including, without
limitation, materials listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R. Section
172.101, as the same may now or hereafter be amended, or in the EPA's
List of Hazardous Substances and Reportable Quantities, 40 C.F.R. Part
3202, as the same may now or hereafter be amended); "Environment" shall
mean any surface water, drinking water, ground water, land surface,
subsurface strata, river sediment, buildings, structures, and ambient,
workplace and indoor and outdoor air; "Environmental Law" shall mean the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.
Section 6901, et seq.), the Clean Air Act, as amended (42 U.S.C. Section
7401, et seq.), the Clean Water Act, as amended (33 U.S.C. Section 1251,
et seq.), the Toxic Substances Control Act, as amended (15 U.S.C.
Section 2601, et seq.), the Occupational Safety and Health Act of 1970,
as amended (29 U.S.C. Section 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), and
all other federal, state and local laws, ordinances, regulations, rules,
orders, decisions and permits relating to the protection of the
environments or of human health from environmental effects; "Governmental
Authority" shall mean any federal, state or local governmental office,
agency or authority having the duty or authority to promulgate, implement
or enforce any Environmental Law; "Lien" shall mean, with respect to any
Property, any mortgage, deed of trust, pledge, security interest, lien,
encumbrance, penalty, fine, charge, assessment, judgment or other
liability in, on or affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, emanating or disposing of any
Hazardous Substance into the Environment, including, without limitation,
the abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are defined
or used in any Environmental Law.
(xlii) Each of the Company, the Operating Partnership and their
subsidiaries has obtained title insurance on all of the properties owned by
each of them in an amount at least equal to (A) the cost to acquire land
and improvements in the case of an acquisition of improved property or (B)
the cost to acquire land in the case of an acquisition of unimproved
property and in each case such title insurance is in full force and effect.
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(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 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 Securities,
less an amount equal to any dividends or distributions declared by the Company
and paid or payable on the Initial 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 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 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
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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 Securities each such Underwriter has
severally agreed to purchase as set forth in the applicable Terms Agreement
bears to the total number of Initial 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 Securities to be purchased by the Underwriters shall be made at
the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx 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 Xxxxxxxx & Xxxxxxxx, 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
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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
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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
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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.
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(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
-23-
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, Xxxxx & Co. 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
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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 Xxx Xxxx
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Xxxxx Xxxxxxxx, 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
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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
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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, there are no outstanding securities convertible into or
exchangeable for any capital stock of the Company, and except for options
under a stock option plan, there are no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for
shares of such stock or any other securities of the Company.
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(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.
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(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
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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
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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.
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(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
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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 Xxxxxxxx
& Xxxxxxxx, counsel for the Underwriters, (A) with respect to the matters set
forth in Section 5(b)(1)(i) or (ii) (in each case with respect to the issuer of
the Underwritten Securities 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
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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 Xxxxxxxx &
Xxxxxxxx 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 Xxxxxxxx & Xxxxxxxx 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 Xxxxxxxx &
Xxxxxxxx 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
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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
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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
-37-
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 & Co., 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:
-38-
(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 Xxxxxxxx & Xxxxxxxx, 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
-39-
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, Sachs & Co.
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 & Co.), 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, Sachs & Co. expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)
-40-
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own
expense in the defense of any such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and reasonably approved by
the indemnified parties defendant in such action, unless such indemnified
parties reasonably object to such assumption on the ground that there may be
legal defenses available to them which are different from or in addition to
those available to such indemnifying party. If an indemnifying party assumes
the defense of such action, the indemnifying parties shall not be liable for
any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company and the Operating Partnership, on the one hand, and the
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
-41-
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 Securities set
forth opposite their respective names in the applicable Terms Agreement and
not joint.
-42-
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
the officers of the Company or the Operating Partnership submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of
any termination of the applicable Terms Agreement, or any investigation made
by or on behalf of any Underwriter or controlling person, or by or on behalf
of the Company or the Operating Partnership and shall survive delivery of the
Underwritten Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change, affecting the Duke Group as a whole, in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of any entity belonging to the Duke Group or of
any Property, whether or not arising in the ordinary course of business; or
(ii) if there has occurred any material adverse change in the financial
markets in the United States or internationally or any outbreak of
hostilities or escalation of existing hostilities or other calamity or crisis
the effect of which on the financial markets of the United States or
internationally is such as to make it, in the judgment of the
Representatives, impracticable to market the Underwritten Securities or to
enforce contracts for the sale of the Underwritten Securities; or (iii) if
trading in the Common Stock has been suspended by the Commission or if
trading generally on either the New York Stock Exchange or the American Stock
Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required,
by either of said Exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by
either Federal, New York or Indiana authorities; (iv) if Preferred Stock is
being offered and the rating assigned by any nationally recognized
statistical rating organization to any preferred shares of the Company as of
the date of the applicable Terms Agreement shall have been lowered since such
date or if any such rating organization shall have publicly announced that it
has placed any preferred shares or debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading; or (v) if the rating
assigned by any nationally recognized statistical rating organization to any
long-term debt securities of the Operating Partnership as of the date of the
applicable Terms Agreement shall have been lowered since such date or if any
such rating organization shall have publicly announced that it has placed any
long-term debt securities of the Operating Partnership on what is commonly
termed a "watch list" for possible downgrading. As used in this Section
9(a),
-43-
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
-44-
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.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 attention of Registration Department;
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. Xxxxx.
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.
-45-
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, XXXXX & CO.
/s/ Xxxxxxx, Sachs & Co.
-----------------------------
(Xxxxxxx, Xxxxx & Co.)
-46-
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: [________]
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
A-1
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 U.S.
Underwriters:
Additional co-managers, if any:
Other terms:
Closing time, date and location:
The Underwritten Securities shall have the following terms:
[DEBT SECURITIES]
A-2
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.
A-3
Please accept this offer no later than [_____] o'clock P.M. (New
York City time) on [_____] by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
XXXXXXX, XXXXX & CO.
By: XXXXXXX, SACHS & CO.
---------------------------
(Xxxxxxx, Xxxxx & Co.)
For themselves and as
Representatives of the other named
Underwriters.
Accepted:
DUKE REALTY INVESTMENTS, INC.
By:
--------------------------
Name:
Title:
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
General Partner
By:
--------------------------
Name:
Title:
A-4
EXHIBIT B
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
Dated: [__________]
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 [__________] (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
B-1
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,
B-2
need not be on a first-come, first-served basis. If this contract is
acceptable to the [Company][Operating Partnership], it is requested that the
[Company][Operating Partnership] sign the form of acceptance on a copy hereof
and mail or deliver a signed copy hereof to the undersigned at its address
set forth below. This will become a binding contract between the [Company]
[Operating Partnership] and the undersigned when such copy is so mailed or
delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
--------------------------------------
(Name of Purchaser)
By:
-----------------------------------
(Title)
--------------------------------------
--------------------------------------
(Address)
Accepted as of the date first above written.
DUKE REALTY INVESTMENTS, INC.
By:
--------------------------
Name:
Title:
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
By:
--------------------------
Name:
Title:
B-3
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 NUMBER
NAME (including Area Code)
B-4
