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DUKE-WEEKS REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
June 8, 2001
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
BANC ONE CAPITAL MARKETS, INC.
One First National Plaza, Suite 0307
Chicago, Illinois 60670
CREDIT SUISSE FIRST BOSTON CORPORATION
11 Madison Avenue
New York, New York 10010
DEUTSCHE BANC ALEX. BROWN INC.
31 West 52nd Street
New York, New York 10019
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
UBS WARBURG LLC
299 Park Avenue
New York, New York 10171
Dear Sirs:
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Duke-Weeks Realty Limited Partnership, an Indiana limited partnership (the
"Operating Partnership"), confirms its agreement with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Bank One Capital Markets,
Inc., Credit Suisse First Boston Corporation, Deutsche Banc Alex. Brown Inc.,
Goldman, Sachs & Co., J.P. Morgan Securities Inc. and UBS Warburg LLC (each, an
"Agent", and collectively, the "Agents") with respect to the issue and sale by
the Operating Partnership of its Medium-Term Notes Due Nine Months or More From
Date of Issue (the "Notes"). The Notes are to be issued pursuant to an
Indenture, dated as of September 19, 1995, as amended or modified from time to
time (the "Indenture"), between the Operating Partnership and Bank One Trust
Company, N.A., as trustee (the "Trustee"). As of the date hereof, the Operating
Partnership has authorized the issuance and sale of up to U.S. $150,000,000
aggregate initial offering price of Notes (or its equivalent, based upon the
exchange rate on the applicable trade date in such foreign or composite
currencies as the Operating Partnership shall designate at the time of issuance)
to or through the Agents pursuant to the terms of this Agreement. It is
understood, however, that the Operating Partnership may from time to time
authorize the issuance of additional Notes and that such additional Notes may be
sold to or through the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Operating
Partnership to one or more Agents as principal for resale to investors and other
purchasers and for the sale of Notes by the Operating Partnership directly to
investors (as may from time to time be agreed to by the Operating Partnership
and the applicable Agent), in which case the applicable Agent will act as an
agent of the Operating Partnership in soliciting offers for the purchase of
Notes.
Duke-Weeks Realty Corporation (the "Company") and the Operating
Partnership have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-37920) for the
registration of debt securities of the Operating Partnership, including the
Notes, and of common stock, preferred stock and depositary shares of the Company
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statement has been declared effective by the Commission and
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and the Operating Partnership has filed such
post-effective amendments thereto as may be required prior to its acceptance of
any offer for the purchase of Notes and each such post-effective amendment has
been declared effective by the Commission. Such registration statement (as so
amended, if applicable) is referred to herein as the "Registration Statement";
and the final prospectus and all applicable amendments or supplements thereto
(including the final prospectus supplement and pricing supplement relating to
the offering of Notes), in the form first furnished to the applicable Agent(s)
for use in confirming sales of Notes, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to any acceptance by the Operating
Partnership of an offer for the purchase of Notes; provided, further, that if
the Operating Partnership files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"),
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then, after such filing, all references to the "Registration Statement" shall
also be deemed to include the Rule 462(b) Registration Statement. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
Registration Statement became effective and any prospectus furnished by the
Operating Partnership after the registration statement became effective and
before any acceptance by the Operating Partnership of an offer for the purchase
of Notes which omitted information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment or
supplement thereto shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "disclosed", "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to include all such financial statements
and schedules and other information which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
The term "subsidiary" means a corporation, partnership or limited
liability company a majority of the outstanding voting stock or partnership or
limited liability company interests, as the case may be, of which is owned or
controlled, directly or indirectly, by the Operating Partnership or the Company,
as the case may be, or by one or more other subsidiaries of the Operating
Partnership or the Company.
The term "Duke Group" means the Company, the Operating Partnership and any
subsidiary (a "Property Partnership") which directly or indirectly owns any real
property (a "Property").
SECTION 1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. Subject to the terms and conditions stated herein and
subject to the reservation by the Operating Partnership of the right to sell
Notes directly on its own behalf, the Operating Partnership hereby agrees that
Notes will be sold exclusively to or through the Agents. The Operating
Partnership agrees that it will not appoint any other agents to act on its
behalf, or to assist it, in the placement of the Notes.
(b) SALE OF NOTES. The Operating Partnership shall not sell or approve the
solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Operating Partnership from time to time or in excess
of the aggregate initial offering price of Notes registered pursuant to the
Registration Statement. The Agents shall have no responsibility for maintaining
records with respect to the aggregate initial offering price of Notes sold, or
of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
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(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation to
purchase Notes from the Operating Partnership as principal. However, absent an
agreement between an Agent and the Operating Partnership that such Agent shall
be acting solely as an agent for the Operating Partnership, such Agent shall be
deemed to be acting as principal in connection with any offering of Notes by the
Operating Partnership through such Agent. Accordingly, the Agents, individually
or in a syndicate, may agree from time to time to purchase Notes from the
Operating Partnership as principal for resale to investors and other purchasers
determined by such Agents. Any purchase of Notes from the Operating Partnership
by an Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon between an Agent and the
Operating Partnership, such Agent, acting solely as an agent for the Operating
Partnership and not as principal, will solicit offers for the purchase of Notes.
Such Agent will communicate to the Operating Partnership, orally, each offer for
the purchase of Notes solicited by it on an agency basis other than those offers
rejected by such Agent. Such Agent shall have the right, in its discretion
reasonably exercised, to reject any offer for the purchase of Notes, in whole or
in part, and any such rejection shall not be deemed a breach of its agreement
contained herein. The Operating Partnership may accept or reject any offer for
the purchase of Notes, in whole or in part. Such Agent shall make reasonable
efforts to assist the Operating Partnership in obtaining performance by each
purchaser whose offer for the purchase of Notes has been solicited by it on an
agency basis and accepted by the Operating Partnership. Such Agent shall not
have any liability to the Operating Partnership in the event that any such
purchase is not consummated for any reason. If the Operating Partnership shall
default on its obligation to deliver Notes to a purchaser whose offer has been
solicited by such Agent on an agency basis and accepted by the Operating
Partnership, the Operating Partnership shall (i) hold such Agent harmless
against any loss, claim or damage arising from or as a result of such default by
the Operating Partnership and (ii) pay to such Agent any commission to which it
would otherwise be entitled absent such default.
(e) RELIANCE. The Operating Partnership and the Agents agree that any
Notes purchased from the Operating Partnership by one or more Agents as
principal shall be purchased, and any Notes the placement of which an Agent
arranges as an agent of the Operating Partnership shall be placed by such Agent,
in reliance on the representations, warranties, covenants and agreements of the
Operating Partnership contained herein and on the terms and conditions and in
the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Operating Partnership represents and warrants to each Agent as of
the date hereof, as of the date of each acceptance by the Operating Partnership
of an offer for the purchase of Notes (whether to such Agent as principal or
through such Agent as agent), as of the date of each delivery of Notes (whether
to such Agent as principal or through such Agent as agent) (the date of each
such delivery to such Agent as principal is referred to herein as a "Settlement
Date"), and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented (each of the times referenced above is referred
to herein as a "Representation Date"), as follows:
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(i) DUE ORGANIZATION, GOOD STANDING AND DUE QUALIFICATION OF THE
COMPANY AND THE OPERATING PARTNERSHIP. Each of the Company and the
Operating Partnership has been duly organized and is validly existing as a
corporation or limited partnership in good standing under the laws of the
State of Indiana with corporate or partnership power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into this Agreement and consummate the
transactions contemplated in the Prospectus; each of the Company and the
Operating Partnership is duly qualified as a foreign corporation or
limited partnership to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not result in
a material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Duke Group
considered as one enterprise (a "Material Adverse Effect"); all of the
issued and outstanding Units of the Operating Partnership have been duly
authorized and are validly issued, fully paid and non-assessable, except
as provided under Indiana Code ss.23-16-7-8; and none of the outstanding
Units of the Operating Partnership were issued in violation of preemptive
or other similar rights of any securityholder of the Operating
Partnership.
(ii) DUE INCORPORATION, GOOD STANDING AND DUE QUALIFICATION OF
SIGNIFICANT SUBSIDIARIES. Each significant subsidiary (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act), if
any (each, a "Significant Subsidiary") has been duly organized and is
validly existing as a corporation, partnership or limited liability
company in good standing under the laws of the jurisdiction of its
incorporation, has corporate, partnership or limited liability company
power and authority to own, lease and operate its properties and conduct
its business as described in the Prospectus and is duly qualified as a
foreign corporation, partnership or limited liability company 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 or be in good standing would not result in a Material Adverse
Effect; except as stated in the Prospectus, all of the issued and
outstanding shares of capital stock or partnership or limited liability
company interests of each Significant Subsidiary have been duly authorized
and are validly issued, fully paid and non-assessable (except, as to
partnerships, as provided under Indiana Code ss.23-16-7-8) and is owned by
the Company or the Operating Partnership, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; and none of the outstanding shares of
capital stock or partnership or limited liability company interests of any
Significant Subsidiary was issued in violation of preemptive or other
similar rights of any securityholder of such Significant Subsidiary.
(iii) REGISTRATION STATEMENT AND PROSPECTUS. The Operating
Partnership meets the requirements for use of Form S-3 under the 1933 Act;
the Registration Statement (or any Rule 462(b) Registration Statement) has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement (or any Rule
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462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Operating Partnership, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with; the Indenture has been duly qualified
under the 1939 Act; at the respective times that the Registration
Statement (including any Rule 462(b) Registration Statement) and any
post-effective amendment thereto (including the filing of the Operating
Partnership's most recent Annual Report on Form 10-K with the Commission
(the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement (including any Rule 462(b)
Registration Statement) and any amendments thereto complied and will
comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act Regulations") and did not
and 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; each preliminary prospectus and
prospectus 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 Regulations; each preliminary prospectus and the Prospectus
delivered to the applicable Agent(s) for use in connection with the
offering of Notes are identical to any electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T; and at the date hereof, at the date of the
Prospectus and each amendment or supplement thereto and at each
Representation Date, neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will 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 the
Prospectus made in reliance upon and in conformity with information
furnished to the Operating Partnership in writing by the Agents expressly
for use in the Registration Statement or the Prospectus.
(iv) INCORPORATED DOCUMENTS. The documents incorporated or deemed to
be incorporated by reference in the Prospectus, 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 date hereof, at the date of the Prospectus and at each
Representation Date, did not and 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.
(v) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
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(vi) FINANCIAL STATEMENTS. The consolidated financial statements of
the Operating Partnership included in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other entity
included in the Registration Statement and the Prospectus, present fairly
the consolidated financial position of the Operating Partnership and its
subsidiaries, or such other entity, as the case may be, at the dates
indicated and the consolidated statement of operations, stockholders'
equity and cash flows of the Operating Partnership and its subsidiaries,
or such other entity, as the case may be, for the periods specified; such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved; the supporting schedules, if any,
included in the Registration Statement and the Prospectus present fairly
in accordance with GAAP the information required to be stated therein; the
selected financial data and the summary financial information included in
the Registration Statement and the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration
Statement and the Prospectus; and any pro forma consolidated financial
statements of the Operating Partnership and its subsidiaries and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled
on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
(vii) NO MATERIAL CHANGES. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (1) there has been no event or
occurrence that would result in a Material Adverse Effect and (2) there
have been no transactions entered into by the Duke Group, other than those
in the ordinary course of business, which are material with respect to the
Duke Group considered as one enterprise.
(viii) AUTHORIZATION, ETC. OF THIS AGREEMENT, THE INDENTURE AND THE
NOTES. This Agreement has been duly authorized, executed and delivered by
the Operating Partnership; the Indenture has been duly authorized,
executed and delivered by the Operating Partnership and will be a valid
and legally binding agreement of the Operating Partnership, enforceable
against the Operating Partnership in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any debt securities issued under
the Indenture that are payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or
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prohibit the making of payments outside the United States; the Notes have
been duly authorized by the Operating Partnership for offer, sale,
issuance and delivery pursuant to this Agreement and, when issued,
authenticated and delivered in the manner provided for in the Indenture
and delivered against payment of the consideration therefor, will
constitute valid and legally binding obligations of the Operating
Partnership, enforceable against the Operating Partnership in accordance
with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any Notes
payable in a foreign or composite currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S. dollars
at a rate or exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit
the making of payments outside the United States; the Notes will be
substantially in a form previously certified to the Agents and
contemplated by the Indenture; and each holder of Notes will be entitled
to the benefits of the Indenture.
(ix) DESCRIPTIONS OF THE INDENTURE AND THE NOTES. The Indenture and
the Notes conform and will conform in all material respects to the
statements relating thereto contained in the Prospectus and are
substantially in the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(x) ACCURACY OF EXHIBITS. 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 filed as required.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. None of the entities
comprising the Duke Group is in violation of the provisions of its charter
or by-laws, certificate of limited partnership, partnership agreement or
corresponding organizational documents or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which any
member of the Duke Group is a party or by which any of them may be bound
or to which any of the property or assets of the Duke Group is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture, the Notes and
any other agreement or instrument entered into or issued or to be entered
into or issued by the Operating Partnership in connection with the
transactions contemplated by the Prospectus, the consummation of the
transactions contemplated in the Prospectus (including the issuance and
sale of the Notes and the use of proceeds therefrom as described in the
Prospectus) and the compliance by the Operating Partnership with its
obligations hereunder and under the Indenture, the Notes and such other
agreements or instruments have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or the passage of time or both, conflict with or
constitute a breach of, or default or event or
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condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by any member of the Duke Group (a "Repayment Event")
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of any member of the
Duke Group pursuant to, any Agreements and Instruments, nor will such
action result in any violation of the provisions of the charter or
by-laws, certificate of limited partnership, partnership agreement or
corresponding organizational documents of any member of the Duke Group or
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over any member of the Duke Group or any of
their assets, properties or operations.
(xii) ABSENCE OF LABOR DISPUTES. No labor dispute with the employees
of the Duke Group exists or, to the knowledge of the Operating
Partnership, is imminent, and the Operating Partnership is not aware of
any existing or imminent labor disturbance by the employees of any of the
principal suppliers, manufacturers, customers or contractors to any member
of the Duke Group, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Operating Partnership threatened, against or affecting any member of
the Duke Group which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which may
reasonably be expected to result in a Material Adverse Effect, or which
may reasonably be expected to materially and adversely affect the assets,
properties or operations thereof, the performance by the Operating
Partnership of its obligations under this Agreement, the Indenture and the
Notes or the consummation of the transactions contemplated in the
Prospectus; and the aggregate of all pending legal or governmental
proceedings to which any member of the Duke Group is a party or of which
any of their respective assets, properties or operations is the subject
which are not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, may not
reasonably be expected to result in a Material Adverse Effect.
(xiv) POSSESSION OF INTELLECTUAL PROPERTY. The members of the Duke
Group own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and none of the members of the Duke Group has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
members of the Duke Group therein, and which infringement, conflict,
invalidity or inadequacy, singly or in the aggregate, if the
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subject of any unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xv) POSSESSION OF LICENSES AND PERMITS. The members of the Duke
Group possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the members of the
Duke Group are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in a
Material Adverse Effect; and none of the members of the Duke Group has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xvi) TITLE TO PROPERTY. (A) With respect to the Properties, the
Operating Partnership and the Property Partnerships have good and
marketable title to all items of real property (and improvements thereon),
leasehold interests, general and limited partnership interests and limited
liability company interests, in each case, free and clear of all liens,
encumbrances, claims, security interests and defects, except such as are
(i) described in the Registration Statement and the Prospectus or in the
Operating Partnership's Annual Report on Form 10-K for the most recent
fiscal year ended, (ii) referred to in the title policies of such
Properties, (iii) serving as security for loans described in the
Prospectus or in the Operating Partnership's Annual Report on Form 10-K
for the most recent fiscal year ended or (iv) nonmaterial and placed on a
Property in connection with such Property's development; (B) all contracts
of the Operating Partnership and any subsidiary to provide leasing,
property management and construction management services, general
contractor services for third parties, and real estate development,
construction and miscellaneous tenant services businesses (the "Related
Businesses"), are enforceable by and in the name of the Operating
Partnership and the applicable subsidiary, as the case may be; (C) all
liens, charges, encumbrances, claims, or restrictions on or affecting any
of the Properties or Related Businesses and the assets of the entities
comprising the Duke Group which are required to be disclosed in the
Prospectus are disclosed therein; (D) neither the Operating Partnership,
any Property Partnership nor any tenant of any of the Properties is in
default under any of the ground leases (as lessee) or space leases (as
lessor) relating to, or any of the mortgages or other security documents
or other agreements encumbering or otherwise recorded against, the
Properties, and none of the entities comprising the Duke Group knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such documents or
agreements, other than such defaults that would not have a Material
Adverse Effect; (E) no tenant under any of the leases, pursuant to which
the Operating Partnership or any Property Partnership, as lessor, leases
its Property, has an option or right of first refusal to purchase the
premises demised under such lease, the exercise of which would have a
Material Adverse Effect; (F) each of
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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.
(xvii) ENVIRONMENTAL LAWS. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither the
Operating Partnership nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Operating Partnership and its subsidiaries
have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Operating Partnership or any
of its subsidiaries and (D) there are no events or circumstances that may
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Operating
Partnership or any of its subsidiaries relating to Hazardous Materials or
any Environmental Laws.
(xviii) NO FILINGS, REGULATORY APPROVALS ETC. No filing with, or
approval, authorization, consent, license, registration, qualification,
order or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Operating Partnership of this Agreement, the
Indenture and the Notes or for the performance by the Operating
Partnership of the transactions contemplated in this Agreement, the
Indenture or the Prospectus, except such as have been previously made,
obtained or rendered, as applicable.
(xix) INVESTMENT COMPANY ACT. The Operating Partnership is not, and
upon the issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Operating Partnership Act of 1940, as amended (the
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("1940 Act").
(xx) COMMODITY EXCHANGE ACT. The Notes, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules and
regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act (the "Commodity Exchange Act Regulations").
(xxi) RATINGS. The Medium-Term Note Program under which the Notes
are issued (the "Program"), as well as the Notes, are rated Baa1 by
Moody's Investors Service, Inc., BBB+ by Standard & Poor's Ratings
Services, and BBB+ by Duff & Phelps Credit Rating, or such other rating as
to which the Operating Partnership shall have most recently notified the
Agents pursuant to Section 4(a) hereof.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer of
the Company, the Operating Partnership or any of their respective subsidiaries
and delivered to one or more Agents or to counsel for the Agents in connection
with an offering of Notes to one or more Agents as principal or through an Agent
as agent shall be deemed a representation and warranty by such entity to such
Agent or Agents as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
(a) PURCHASES AS PRINCIPAL. Notes purchased from the Operating Partnership
by the Agents, individually or in a syndicate, as principal shall be made in
accordance with terms agreed upon between such Agent or Agents and the Operating
Partnership (which terms, unless otherwise agreed, shall, to the extent
applicable, include those terms specified in Exhibit A hereto and shall be
agreed upon orally, with written confirmation prepared by such Agent or Agents
and mailed to the Operating Partnership). An Agent's commitment to purchase
Notes as principal shall be deemed to have been made on the basis of the
representations and warranties of the Operating Partnership herein contained and
shall be subject to the terms and conditions herein set forth. Unless the
context otherwise requires, references herein to "this Agreement" shall include
the applicable agreement of one or more Agents to purchase Notes from the
Operating Partnership as principal. Each purchase of Notes, unless otherwise
agreed, shall be at a discount from the principal amount of each such Note
equivalent to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any broker or dealer in connection with the
resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received from the Operating Partnership in connection
with such purchases to such brokers or dealers. At the time of each purchase of
Notes from the Operating Partnership by one or more Agents as principal, such
Agent or Agents shall specify the requirements for the officers' certificate,
opinion of counsel and comfort letter pursuant to Sections 7(b), 7(c) and 7(d)
hereof.
If the Operating Partnership and two or more Agents enter into an
agreement pursuant to which such Agents agree to purchase Notes from the
Operating Partnership as principal and one or more of such Agents shall fail at
the Settlement Date to purchase the Notes which it or they are
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obligated to purchase (the "Defaulted Notes"), then the nondefaulting Agents
shall have the right, within 24 hours thereafter, to make arrangements for one
of them or one or more other Agents or underwriters to purchase all, but not
less than all, of the Defaulted Notes in such amounts as may be agreed upon and
upon the terms herein set forth; provided, however, that if such arrangements
shall not have been completed within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so purchased
by all of such Agents on the Settlement Date, the nondefaulting Agents
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all nondefaulting
Agents; or
(b) if the aggregate principal amount of Defaulted Notes exceeds 10%
of the aggregate principal amount of Notes to be so purchased by all of
such Agents on the Settlement Date, such agreement shall terminate without
liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default which
does not result in a termination of such agreement, either the nondefaulting
Agents or the Operating Partnership shall have the right to postpone the
Settlement Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
(b) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Operating Partnership and an Agent, such Agent, as an
agent of the Operating Partnership, will use its reasonable efforts to solicit
offers for the purchase of Notes upon the terms set forth in the Prospectus. The
Agents are not authorized to appoint sub-agents with respect to Notes sold
through them as agent. All Notes sold through an Agent as agent will be sold at
100% of their principal amount unless otherwise agreed upon between the
Operating Partnership and such Agent.
The Operating Partnership reserves the right, in its sole discretion, to
suspend solicitation of offers for the purchase of Notes through an Agent, as an
agent of the Operating Partnership, commencing at any time for any period of
time or permanently. As soon as practicable after receipt of instructions from
the Operating Partnership, such Agent will suspend solicitation of offers for
the purchase of Notes from the Operating Partnership until such time as the
Operating Partnership has advised such Agent that such solicitation may be
resumed.
The Operating Partnership agrees to pay each Agent a commission, in the
form of a discount, equal to the applicable percentage of the principal amount
of each Note sold by the Operating Partnership as a result of a solicitation
made by such Agent, as an agent of the Operating Partnership, as set forth in
Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon
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between the Operating Partnership and the applicable Agent(s) and specified in a
pricing supplement to the Prospectus (each, a "Pricing Supplement") to be
prepared by the Operating Partnership in connection with each sale of Notes.
Except as otherwise specified in the applicable Pricing Supplement, the Notes
will be issued in denominations of U.S. $1,000 or any larger amount that is an
integral multiple of U.S. $1,000. Administrative procedures with respect to the
issuance and sale of the Notes (the "Procedures") shall be agreed upon from time
to time among the Operating Partnership, the Agents and the Trustee. The Agents
and the Operating Partnership agree to perform, and the Operating Partnership
agrees to cause the Trustee to agree to perform, their respective duties and
obligations specifically provided to be performed by them in the Procedures.
SECTION 4. COVENANTS OF THE OPERATING PARTNERSHIP.
The Operating Partnership covenants and agrees with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Operating Partnership will notify the
Agents immediately, and confirm such notice in writing, of (i) the effectiveness
of any post-effective amendment to the Registration Statement or the filing of
any amendment or supplement to the Prospectus (other than any amendment or
supplement thereto providing solely for the determination of the variable terms
of the Notes or relating solely to the offering of securities other than the
Notes), (ii) the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iii) any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, or of any order preventing or suspending the use of any preliminary
prospectus, or of the initiation of any proceedings for that purpose or (v) any
change in the rating assigned by any nationally recognized statistical rating
organization to the Program or any debt securities (including the Notes) of the
Operating Partnership, or the public announcement by any nationally recognized
statistical rating organization that it has under surveillance or review, with
possible negative implications, its rating of the Program or any such debt
securities, or the withdrawal by any nationally recognized statistical rating
organization of its rating of the Program or any such debt securities. The
Operating Partnership will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) FILING OR USE OF AMENDMENTS. The Operating Partnership will give the
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement (including any filing under Rule 462(b)
of the 1933 Act Regulations) or any amendment or supplement to the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus (other than an amendment or supplement thereto providing solely for
the determination of the variable terms of the Notes or relating solely to the
offering of securities other than the Notes), whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish to the Agents copies of any such
document a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such document to which the Agents or
counsel for the Agents shall reasonably object.
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(c) DELIVERY OF THE REGISTRATION STATEMENT. The Operating Partnership has
furnished to each Agent and to counsel for the Agents, without charge, signed
and conformed 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 or deemed to be incorporated by
reference therein) and signed and conformed copies of all consents and
certificates of experts. The Registration Statement and each amendment thereto
furnished to the Agents will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) DELIVERY OF THE PROSPECTUS. The Operating Partnership will deliver to
each Agent, without charge, as many copies of each preliminary prospectus as
such Agent may reasonably request, and the Operating Partnership hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The Operating
Partnership will furnish to each Agent, without charge, such number of copies of
the Prospectus (as amended or supplemented) as such Agent may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Agents will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) PREPARATION OF PRICING SUPPLEMENTS. The Operating Partnership will
prepare, with respect to any Notes to be sold to or through one or more Agents
pursuant to this Agreement, a Pricing Supplement with respect to such Notes in a
form previously approved by the Agents. The Operating Partnership will deliver
such Pricing Supplement no later than 11:00 a.m., New York City time, on the
business day following the date of the Operating Partnership's acceptance of the
offer for the purchase of such Notes and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the Commission on the fifth business day after the date on which
such Pricing Supplement is first used.
(f) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Operating Partnership, to amend the Registration Statement in order that the
Registration Statement 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 or to amend or supplement the
Prospectus in order that 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 not misleading in the light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the opinion of either such counsel, to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Operating
Partnership shall give immediate notice, confirmed in writing, to the Agents to
cease the solicitation of offers for the purchase of Notes in their capacity as
agents and to cease sales of any Notes they may then own as principal, and the
Operating Partnership will promptly prepare and file with the Commission,
subject to Section 4(b) hereof, whether by filing documents pursuant to the 1934
Act or the 1933 Act or otherwise, such amendment or supplement as may be
necessary to correct such
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statement or omission or to make the Registration Statement and Prospectus
comply with such requirements, and the Operating Partnership will furnish to the
Agents, without charge, such number of copies of such amendment or supplement as
the Agents may reasonably request. In addition, the Operating Partnership will
comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations so as to permit the completion of the distribution of each
offering of Notes.
(g) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Operating Partnership with respect to each
of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Operating Partnership
shall furnish such information to the Agents, confirmed in writing, and shall
cause the Prospectus to be amended or supplemented to include financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited consolidated financial statements of the
Operating Partnership for the preceding fiscal year, the Operating Partnership
shall furnish such information to the Agents, confirmed in writing, and shall
cause the Prospectus to be amended or supplemented, whether by the filing of
documents pursuant to the 1934 Act or the 1933 Act or otherwise, to include or
incorporate by reference such audited consolidated financial statements and the
report or reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding of
such consolidated financial statements or as shall be required by the 1933 Act
or the 1933 Act Regulations.
(i) EARNINGS STATEMENTS. The Operating Partnership will timely file such
reports pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings statement
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(j) REPORTING REQUIREMENTS. The Operating Partnership, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act in connection with sales of the Notes, will file all documents required to
be filed with the Commission pursuant to the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
(k) RESTRICTION ON OFFERS AND SALES OF SECURITIES. If specified by the
applicable Agent or Agents in connection with a purchase of Notes as principal,
between the date of the agreement by such Agent(s) to purchase the related Notes
from the Operating Partnership and the Settlement Date with respect thereto, the
Operating Partnership will not, without the prior written consent of such
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Agent(s), issue, sell, offer or contract to sell, grant any option for the sale
of, or enter into any agreement to sell, any debt securities of the Operating
Partnership (other than the Notes that are to be sold pursuant to such agreement
or commercial paper in the ordinary course of business).
(l) USE OF PROCEEDS. The Operating Partnership will use the net proceeds
received by it from the issuance and sale of the Notes in the manner specified
in the Prospectus.
(m) SUSPENSION OF CERTAIN OBLIGATIONS. The Operating Partnership shall not
be required to comply with the provisions of subsections (f), (g) or (h) of this
Section 4 during any period from the time (i) the Agents shall have suspended
solicitation of offers for the purchase of Notes in their capacity as agents
pursuant to a request from the Operating Partnership and (ii) no Agent shall
then hold any Notes purchased from the Operating Partnership as principal, as
the case may be, until the time the Operating Partnership shall determine that
solicitation of offers for the purchase of Notes should be resumed or an Agent
shall subsequently purchase Notes from the Operating Partnership as principal.
SECTION 5. CONDITIONS OF AGENTS' OBLIGATIONS.
The obligations of one or more Agents to purchase Notes from the Operating
Partnership as principal and to solicit offers for the purchase of Notes as an
agent of the Operating Partnership, and the obligations of any purchasers of
Notes sold through an Agent as an agent of the Operating Partnership, will be
subject to the accuracy of the representations and warranties on the part of the
Operating Partnership herein contained or contained in any certificate of an
officer of the Company, as general partner of the Operating Partnership, or an
officer of any of its subsidiaries delivered pursuant to the provisions hereof,
to the performance and observance by the Operating Partnership of its covenants
and other obligations hereunder, and to the following additional conditions
precedent:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement
(including any Rule 462(b) Registration Statement) has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or shall be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Agents.
(b) LEGAL OPINIONS. On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) OPINION OF COUNSEL FOR THE OPERATING PARTNERSHIP. The favorable
opinion of Bose McKinney & Evans LLP, counsel for the Operating
Partnership, to the effect set forth in Exhibit B hereto and to such
further effect as the Agents may reasonably request.
(2) OPINION OF COUNSEL FOR THE AGENTS. The favorable opinion of
Clifford Chance Rogers & Wells LLP, counsel for the Agents, with respect
to the matters set forth in paragraphs (1) (as to the first sentence
only), (6), (7), (8), (9) and (17) and the penultimate
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paragraph of Exhibit B hereto.
(c) OFFICER'S CERTIFICATE. On the date hereof, there shall not have been,
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Duke Group considered as
one enterprise, whether or not arising in the ordinary course of business, and
the Agents shall have received a certificate of the Chairman of the Board, the
President, an Executive vice President or a Vice President of the Company, as
general partner of the Operating Partnership, and of the chief financial officer
or chief accounting officer of the Company, as general partner of the Operating
Partnership, dated as of the date hereof, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties of the
Operating Partnership contained in Section 2 hereof are true and correct with
the same force and effect as though expressly made at and as of the date of such
certificate, (iii) the Operating Partnership has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the date of such certificate, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted, are pending or, to the best of such
officer's knowledge, are threatened by the Commission.
(d) COMFORT LETTER OF KPMG, LLP. On the date hereof, the Agents shall have
received a letter from KPMG, LLP, dated as of the date hereof and in form and
substance satisfactory to the Agents, to the effect set forth in Exhibit C
hereto.
(e) ADDITIONAL DOCUMENTS. On the date hereof, counsel to the Agents shall
have been furnished with such documents and opinions as such counsel may require
for the purpose of enabling such counsel to pass upon the issuance and sale of
Notes as herein contemplated and related proceedings, or in order to evidence
the accuracy of any of the representations and warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Operating Partnership in connection with the issuance and sale of Notes as
herein contemplated shall be satisfactory in form and substance to the Agents
and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
applicable Agent or Agents by notice to the Operating Partnership at any time
and any such termination shall be without liability of any party to any other
party except as provided in Section 10 hereof and except that Sections 8, 9, 11,
14 and 15 hereof shall survive any such termination and remain in full force and
effect.
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SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT AS AGENT.
Delivery of Notes sold through an Agent as an agent of the Operating
Partnership shall be made by the Operating Partnership to such Agent for the
account of any purchaser only against payment therefor in immediately available
funds. In the event that a purchaser shall fail either to accept delivery of or
to make payment for a Note on the date fixed for settlement, such Agent shall
promptly notify the Operating Partnership and deliver such Note to the Operating
Partnership and, if such Agent has theretofore paid the Operating Partnership
for such Note, the Operating Partnership will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Operating Partnership
will reimburse such Agent on an equitable basis for its loss of the use of the
funds for the period such funds were credited to the Operating Partnership's
account.
SECTION 7. ADDITIONAL COVENANTS OF THE OPERATING PARTNERSHIP.
The Operating Partnership further covenants and agrees with each Agent as
follows:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
the Operating Partnership of an offer for the purchase of Notes (whether to one
or more Agents as principal or through an Agent as agent), and each delivery of
Notes (whether to one or more Agents as principal or through an Agent as agent),
shall be deemed to be an affirmation that the representations and warranties of
the Operating Partnership herein contained and contained in any certificate
theretofore delivered to the Agents pursuant hereto are true and correct at the
time of such acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at the time of
delivery to such Agent(s) or to the purchaser or its agent, as the case may be,
of the Notes relating to such acceptance or sale, as the case may be, as though
made at and as of each such time (it being understood that such representations
and warranties shall relate to the Registration Statement and Prospectus as
amended and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Operating Partnership by one or more Agents as principal) the
Operating Partnership sells Notes to one or more Agents as principal or (iii)
the Operating Partnership sells Notes in a form not previously certified to the
Agents by the Operating Partnership, the Operating Partnership shall furnish or
cause to be furnished to the Agent(s), forthwith a certificate dated the date of
filing with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case may be, in form
satisfactory to the Agent(s) to the effect that the statements contained in the
certificate referred to in Section 5(c) hereof which were last furnished to the
Agents are true and correct at the time of the filing or effectiveness of such
amendment or supplement, as applicable, or the time of such sale, as the case
may be, as though made at and as of such time (except that such statements shall
be deemed to relate to the Registration Statement and
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the Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(c) hereof, modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such certificate (it being understood that, in the case of clause (ii) above,
any such certificate shall also include a certification that there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Duke Group considered as
one enterprise since the date of the agreement by such Agent(s) to purchase
Notes from the Operating Partnership as principal).
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Operating Partnership by one or more Agents as principal) the
Operating Partnership sells Notes to one or more Agents as principal or (iii)
the Operating Partnership sells Notes in a form not previously certified to the
Agents by the Operating Partnership, the Operating Partnership shall furnish or
cause to be furnished forthwith to the Agent(s) and to counsel to the Agents the
written opinion of Bose McKinney & Evans LLP, counsel to the Operating
Partnership, or other counsel satisfactory to the Agent(s), dated the date of
filing with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case may be, in form
and substance satisfactory to the Agent(s), of the same tenor as the opinion
referred to in Section 5(b)(1) hereof, but modified, as necessary, to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish the Agent(s) with a letter
substantially to the effect that the Agent(s) may rely on such last opinion to
the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes) or (ii) (if required in connection with the purchase of Notes
from the Operating Partnership by one or more Agents as principal) the Operating
Partnership sells Notes to one or more Agents as principal, the Operating
Partnership shall cause KPMG, LLP forthwith to furnish to the Agent(s) a letter,
dated the date of filing with the Commission or the date of effectiveness of
such amendment or supplement, as applicable, or the date of such sale, as the
case may be, in form satisfactory to the Agent(s), of the same tenor as the
letter referred to in Section 5(d) hereof but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to the date of
such letter.
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SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Operating Partnership agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent 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 an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of an untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
8(d) hereof) any such settlement is effected with the written consent of
the Operating Partnership; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by such Agent), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Operating Partnership by
the Agents expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) INDEMNIFICATION OF OPERATING PARTNERSHIP, DIRECTORS AND
OFFICERS. Each Agent severally agrees to indemnify and hold harmless the
Operating Partnership, the directors of the Company, each of the officers who
signed the Registration Statement and each person, if any, who controls 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 Section 8(a) hereof, as
incurred, but only with respect to untrue
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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 Operating Partnership by
the Agents expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. 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 hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 8(a)
hereof, counsel to the indemnified parties shall be selected by the applicable
Agent(s) and, in the case of parties indemnified pursuant to Section 8(b)
hereof, counsel to the indemnified shall be selected by the Operating
Partnership. An indemnifying party may participate at its own expense in the
defense of any such action; PROVIDED, HOWEVER, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. 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.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 8(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 9. CONTRIBUTION. If the indemnification provided for in
Section 8 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of
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<Page>
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 Operating Partnership, on the one hand, and the
applicable Agent(s), on the other hand, from the offering of the Notes that were
the subject of the claim for indemnification 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 Operating Partnership, on the one hand,
and the applicable Agent(s), 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 Operating Partnership, on the
one hand, and the applicable Agent(s), on the other hand, in connection with the
offering of the Notes that were the subject of the claim for indemnification
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received by
the Operating Partnership and the total discount or commission received by each
applicable Agent, as the case may be, bears to the aggregate initial offering
price of such Notes.
The relative fault of the Operating Partnership, on the one hand,
and the applicable Agent(s), on the other hand, shall be determined by reference
to, among other things, whether any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Operating Partnership or by the applicable
Agent(s) and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Agents agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the applicable Agent(s) 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 9. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 9 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 applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent shall
be required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
purchased from
23
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the Operating Partnership by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Operating Partnership.
For purposes of this Section 9, each person, if any, who controls an
Agent 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 Agent, and each director
of the Operating Partnership, each officer of the Operating Partnership and each
person, if any, who controls 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 Operating Partnership.
SECTION 10. PAYMENT OF EXPENSES.
The Operating Partnership will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation, filing, printing and delivery of the Registration
Statement as originally filed and all amendments thereto and any preliminary
prospectus, the Prospectus and any amendments or supplements thereto;
(b) The preparation, printing and delivery of this Agreement and the
Indenture;
(c) The preparation, issuance and delivery of the Notes, including any
fees and expenses relating to the eligibility and issuance of Notes in
book-entry form and the cost of obtaining CUSIP or other identification numbers
for the Notes;
(d) The fees and disbursements of the Operating Partnership's accountants,
counsel and other advisors or agents (including any calculation agent or
exchange rate agent) and of the Trustee and its counsel;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and incurred from
time to time in connection with the transactions contemplated hereby;
(f) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any listing of Notes
on a securities exchange;
(h) The filing fees incident to, and the reasonable fees and disbursements
of counsel to the Agents in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. (the "NASD"); and
24
<Page>
(i) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Operating Partnership.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company, the Operating Partnership or any
of its subsidiaries submitted pursuant hereto or thereto shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of the Agents or any controlling person of an Agent, or by or on behalf
of the Operating Partnership, and shall survive each delivery of and payment for
the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any agreement
by one or more Agents to purchase Notes from the Operating Partnership as
principal) may be terminated for any reason, at any time by either the Operating
Partnership or an Agent, as to itself, upon the giving of 30 days' prior written
notice of such termination to the other party hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Operating Partnership as principal, immediately upon notice to
the Operating Partnership, at any time prior to the Settlement Date relating
thereto, if (i) there has been, since the date of such agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Operating Partnership
and its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if such Notes are
denominated and/or payable in, or indexed to, one or more foreign or composite
currencies, in the international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development or event involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of such Agent(s), impracticable to market
such Notes or enforce contracts for the sale of such Notes, or (iii) trading in
any securities of the Company or the Operating Partnership has been suspended or
materially limited by the Commission or a national securities exchange, or if
trading generally on the New York Stock Exchange or the American Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv) a
banking moratorium has been declared by either Federal or New York authorities
or by the relevant authorities in the country or countries of origin of any
foreign or composite currency in which such Notes are denominated and/or
payable, or (v) the rating assigned by any nationally recognized statistical
rating organization to the Program or any debt securities (including the Notes)
of the Operating Partnership as of the date of such agreement shall have been
lowered or withdrawn since that date or if any such rating organization shall
have publicly announced that it has under surveillance or review its rating of
the Program or any such debt securities, or (vi) there shall have come to the
25
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attention of such Agent(s) any facts that would cause such Agent(s) to believe
that the Prospectus, at the time it was required to be delivered to a purchaser
of such Notes, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time of such delivery, not
misleading.
(c) GENERAL. In the event of any such termination, neither party will have
any liability to the other party hereto, except that (i) the Agents shall be
entitled to any commissions earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it from the Operating Partnership as principal or (b) an
offer to purchase any of the Notes has been accepted by the Operating
Partnership but the time of delivery to the purchaser or his agent of such Notes
relating thereto has not occurred, the covenants set forth in Sections 4 and 7
hereof shall remain in effect until such Notes are so resold or delivered, as
the case may be, and (iii) the covenant set forth in Section 4(i) hereof, the
provisions of Section 10 hereof, the indemnity and contribution agreements set
forth in Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15
hereof shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
26
<Page>
If to the Company or the Operating Partnership:
Duke-Weeks Realty Limited Partnership
600 East 96th Street, Suite 100
Indianapolis, Indiana 46240
Attention: Darell E. Zink, Jr.
Telecopy No.: (317) 808-6794
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
15th Floor
New York, New York 10080
Attention: MTN Product Management
Telecopy No.: (212) 449-2234
Banc One Capital Markets, Inc.
One First National Plaza, Suite 0307
Chicago, Illinois 60670
Attention: Operations Manager, Medium-Term Notes/Scott Solis
(312) 732-7412
Telecopier: (312) 732-5939
Credit Suisse First Boston Corporation
111 Madison Avenue
New York, New York 10010
Attention: Stuart Whitman
(212) 538-6479
Telecopier: (212) 325-8157
Deutsche Banc Alex. Brown, Inc.
31 West 52nd Street
New York, New York 10019
Attention: Eric Mauff
(212) 469-7859
Telecopier: (212) 469-7875
27
<Page>
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department/Jeff Staston
(212) 902-4015
Telecopier: (212) 346-3594
J.P. Morgan Securities Inc.
60 Wall Street, 3d Floor
New York, New York 10260
Attention: John Mix
(212) 270-9562
Telecopier: (212) 270-3513
UBS Warburg LLC
299 Park Avenue, 26th Floor
New York, New York 10171
Attention: Chris Forstner
(203) 719-8244
Telecopier: (203) 719-3160
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Operating Partnership and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons, officers and directors
referred to in Sections 8 and 9 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons, officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Notes shall be deemed to be a successor by reason merely of such
purchase.
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SECTION 15. GOVERNING LAW; FORUM.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING
BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR ARISING UNDER
THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL COURT OF
APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW
YORK.
SECTION 16. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
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If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this Distribution Agreement, along with all counterparts, will
become a binding agreement among the Agents and the Operating Partnership in
accordance with its terms.
Very truly yours,
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
By: DUKE-WEEKS REALTY CORPORATION
General Partner
By: /s/ Matthew A. Cohoat
-------------------------------
Name: Matthew A. Cohoat
Title: SVP & Controller
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: _________________________
Authorized Signatory
BANK ONE CAPITAL MARKETS, INC.
By: _________________________
CREDIT SUISSE FIRST BOSTON CORPORATION
By: _________________________
DEUTSCHE BANC ALEX. BROWN INC.
By: _________________________
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GOLDMAN, SACHS & CO.
By: _________________________
J.P. MORGAN SECURITIES INC.
By: _________________________
UBS WARBURG LLC
By: _________________________
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SCHEDULE A
As compensation for the services of the Agents hereunder, the Operating
Partnership shall pay the applicable Agent, on a discount basis, a commission
for the sale of each Note equal to the principal amount of such Note multiplied
by the appropriate percentage set forth below:
<Table>
<Caption>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year .............................. .125%
From 1 year to less than 18 months ............................. .150
From 18 months to less than 2 years ............................ .200
From 2 years to less than 3 years .............................. .250
From 3 years to less than 4 years .............................. .350
From 4 years to less than 5 years .............................. .450
From 5 years to less than 6 years .............................. .500
From 6 years to less than 7 years .............................. .550
From 7 years to less than 10 years ............................. .600
From 10 years to less than 15 years ............................ .625
From 15 years to less than 20 years ............................ .700
From 20 years to 30 years ...................................... .750
Greater than 30 years .......................................... *
</Table>
- ----------
* As agreed to by the Operating Partnership and the applicable Agent at the
time of sale.
<Page>
EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
|_| LIBOR Reuters Page:
|_| LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
|_| Weekly Average
|_| Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
A-1
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Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from ___________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Operating Partnership by
one or more Agents as principal, agreement as to whether the following will be
required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement.
Restrictive agreement pursuant to Section 4(k) of the Distribution
Agreement.
A-2
<Page>
EXHIBIT B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)(1)
(1) The Company is a corporation duly organized and validly existing under
the laws of the State of Indiana. The Operating Partnership is a limited
partnership duly organized and validly existing under the laws of the State of
Indiana.
(2) The Operating Partnership has partnership power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into the Distribution Agreement and consummate the
transactions contemplated in the Prospectus.
(3) The Operating Partnership is duly qualified as a foreign partnership
to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
(4) All of the issued and outstanding Units have been duly authorized and
are validly issued, fully paid and non-assessable, except as provided under
Indiana Code ss. 16-7-7; and none of the outstanding Units were issued in
violation of preemptive or other similar rights of any securityholder of the
Operating Partnership.
(5) Each Significant Subsidiary has been duly organized and is validly
existing as a corporation, partnership or limited liability company in good
standing under the laws of the jurisdiction of its organization, has corporate,
partnership or limited liability company power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation, partnership or
limited liability company 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 or be in good standing would not result in a Material
Adverse Effect; except as stated in the Prospectus, all of the issued and
outstanding shares of capital stock or partnership or limited liability company
interests of each Significant Subsidiary has been duly authorized and are
validly issued, fully paid and non-assessable and, to the best of our knowledge,
are owned by the Operating Partnership, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; and none of the outstanding shares of capital stock or partnership or
limited liability company interests of any Significant Subsidiary were issued in
violation of preemptive or other similar rights of any securityholder of such
Significant Subsidiary.
(6) The Distribution Agreement has been duly authorized, executed and
delivered by the Operating Partnership.
(7) The Indenture has been duly authorized, executed and delivered by the
Operating Partnership and (assuming due authorization, execution and delivery
thereof by the applicable Trustee) constitutes a valid and legally binding
agreement of the Operating Partnership,
B-1
<Page>
enforceable against the Operating Partnership in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements that a
claim with respect to any debt securities issued under the Indenture that are
payable in a foreign or composite currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States.
(8) The Notes have been duly authorized by the Operating Partnership for
offer, sale, issuance and delivery pursuant to the Distribution Agreement and,
when issued, authenticated and delivered in the manner provided for in the
Indenture and delivered against payment of the consideration therefor, will
constitute valid and legally binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements that a
claim with respect to any Notes payable in a foreign or composite currency (or a
foreign or composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States; and the Notes, in the forms
certified on the date hereof, are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the Indenture.
(9) The Indenture and the Notes, in the forms certified on the date
hereof, conform in all material respects to the statements relating thereto
contained in the Prospectus and are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the Registration
Statement.
(10) The information in the Prospectus under "Description of Debt
Securities", "Description of the Notes", "Risk Factors " and "Certain United
States Federal Income Tax Considerations," and the information in the
Registration Statement under Item 15, to the extent that such information
constitutes matters of law, summaries of legal matters, the Operating
Partnership's partnership agreement or legal proceedings, or legal conclusions,
has been reviewed by us and is correct in all material respects.
(11) To the best of our knowledge, none of the entities comprising the
Duke Group is in violation of its charter, by-laws, certificate of limited
partnership, partnership agreement, articles of organization or operating
agreement, and no default by a member of the Duke Group exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any Agreement and Instrument that is described or
referred to in the Registration Statement or the Prospectus or filed or
incorporated by reference as an exhibit to the Registration Statement.
(12) The execution, delivery and performance of the Distribution
Agreement, the Indenture and the Notes and any other agreement or instrument
entered into or issued or to be
B-2
<Page>
entered into or issued by the Operating Partnership in connection with the
transactions contemplated in the Prospectus, the consummation of the
transactions contemplated in the Prospectus (including the issuance and sale of
the Notes and the use of the proceeds therefrom as described in the Prospectus)
and the compliance by the Operating Partnership with its obligations thereunder
have been duly authorized by all necessary partnership action and do not and
will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or repayment event
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Duke Group pursuant
to, any Agreement and Instrument known to us, nor will such action result in any
violation of the provisions of the partnership agreement or other organizational
documents of a member of the Duke Group or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over any member of the Duke Group or any of their assets, properties or
operations.
(13) To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which any member of the
Duke Group is a party or to which the assets, properties or operations of any
member of the Duke Group is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might reasonably be
expected to result in a Material Adverse Effect or which might reasonably be
expected to materially and adversely affect the assets, properties or operations
of the Duke Group or any of its subsidiaries, the performance by the Operating
Partnership of its obligations under the Distribution Agreement, the Indenture
or the Notes or the consummation of the transactions contemplated in the
Prospectus.
(14) All descriptions in the Prospectus of contracts and other documents
to which any member of the Duke Group is a party are accurate in all material
respects; and, to the best of our knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits to the Registration Statement other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(15) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(16) The Registration Statement has been declared effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and to the
best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been initiated or are pending or threatened by the Commission.
(17) 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, as of their respective effective or issue dates (other
than the financial statements and supporting schedules included therein or
omitted therefrom and the Trustee's Statement of Eligibility on Form T-1 (the
"Form T-1"), as to which we express no opinion), complied as to form in all
material respects
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with the requirements of the 1933 Act and the 1933 Act Regulations.
(18) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which we express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations.
(19) The Indenture has been duly qualified under the 1939 Act.
(20) The Operating Partnership is not, and upon the issuance and sale of
the Notes and the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of the 1940
Act.
(21) The Notes, in the forms certified on the date hereof, will be
excluded or exempted under, or beyond the purview of, the Commodity Exchange Act
and the Commodity Exchange Act Regulations.
(22) No filing with, or approval, authorization, consent, license,
registration, qualification, order or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Operating Partnership of the
Distribution Agreement, the Indenture and the Notes or for the performance by
the Operating Partnership of the transactions contemplated in the Distribution
Agreement, the Indenture or the Prospectus, except such as have been previously
made, obtained or rendered, as applicable.
(23) 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" through the 1993 taxable year, the
proposed methods of operation of the Company, the Operating Partnership and the
Services Partnership since and including 1994, as described in the Registration
Statement and the Prospectus Supplement and as represented by the Company, the
Operating Partnership and the Services Partnership has permitted and will permit
the Company to qualify and to continue to qualify to be taxed as a "real estate
investment trust" for all years since and including 1994 and for its current and
subsequent taxable years.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any post-effective amendment thereto (except for
financial statements, supporting schedules and other financial data included
therein or omitted therefrom and for the Form T-1, as to which we make no
statement), at the time the Registration Statement or any post-effective
amendment thereto (including the filing of the Operating Partnership's Annual
Report on Form 10-K with the Commission) became effective [or at the date of any
agreement of the applicable Agent(s) to purchase Notes from the Operating
Partnership as principal], 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 (except for financial statements, supporting
schedules and other financial data included therein or omitted therefrom, as to
which we make no statement), at the time the Prospectus was issued, at the time
any such amended or supplemented prospectus was issued or at the date hereof,
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
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circumstances under which they were made, not misleading.
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EXHIBIT C
FORM OF ACCOUNTANT'S COMFORT LETTER
PURSUANT TO SECTION 5(d)
We have audited the consolidated balance sheets of Duke-Weeks Realty Corporation
(the Company) and subsidiaries as of December 31, 2000 and 1999 and the related
consolidated statements of operations, cash flows and shareholders' equity for
each of the years in the three-year period ended December 31, 2000, and the
related financial statement schedule, all included in the Company's annual
report on Form 10-K for the year ended December 31, 2000 and incorporated by
reference in the registration statement (No. 333-37920) on Form S-3 filed by the
Company under the Securities Act of 1933 (the Act); our report with respect
thereto is also incorporated by reference in that registration statement. We
have also audited the consolidated balance sheets of Duke-Weeks Realty Limited
Partnership (the Operating Partnership) and subsidiaries as of December 31, 2000
and 1999 and the related consolidated statements of operations, cash flows and
partners' equity for each of the years in the three-year period ended December
31, 2000, and the related financial statement schedule, all included in the
Operating Partnership's annual report on Form 10-K for the year ended December
31, 2000 and incorporated by reference in the registration statement (No.
333-37920) on Form S-3 filed by the Company under the Act; our report with
respect thereto is also incorporated by reference in that registration
statement. The registration statement, as amended on June 13, 2000, includes the
prospectus dated June 13, 2000, prospectus supplements dated January 29, 2001,
February 28, 2001 and June 5, 2001, and other filings incorporated by reference
through the date of this letter, and is herein referred to as the Registration
Statement.
In connection with the Registration Statement:
1. We are independent certified public accountants with respect to the
Company and the Operating Partnership within the meaning of the Act and
the applicable rules and regulations thereunder adopted by the Securities
and Exchange Commission (the SEC).
2. In our opinion, the consolidated financial statements and financial
statement schedule of the Company and the Operating Partnership audited by
us and incorporated by reference in the Registration Statement comply as
to form in all material respects with the applicable accounting
requirements of the Act and the Securities Exchange Act of 1934 and the
related rules and regulations adopted by the SEC.
3. We have not audited any financial statements of the Company or the
Operating Partnership as of any date or for any period subsequent to
December 31, 2000; although we have conducted audits for the year ended
December 31, 2000, the purpose (and therefore the scope) of the audits
were to enable us to express an opinion on the consolidated financial
statements of the Company and the Operating Partnership as of December 31,
2000 and for the year then ended, but not on the consolidated financial
statements for any interim period within that year. Therefore, we are
unable to and do not express any opinion on the March 31, 2001 and 2000
unaudited condensed consolidated financial statements of the Company
included in the Company's quarterly report on Form 10-Q for the quarter
ended March 31, 2001, incorporated by reference in the Registration
Statement, or on the financial position, results of operations, or cash
flows of the Company as of any date or for any period subsequent to
December 31, 2000. We are also unable to and do not express any opinion on
the March 31, 2001 and 2000 unaudited condensed consolidated financial
statements of the Operating Partnership included in the Operating
Partnership's quarterly report on Form 10-Q for the quarter ended March
31, 2001, incorporated by reference in the Registration Statement, or on
the financial position, results of operations, or cash flows of the
Operating Partnership as of any date or for any period subsequent to
December 31, 2000.
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4. For purposes of this letter, we have read the 2001 minutes of meetings of
the Board of Directors of the Company and its subsidiaries as set forth in
the minute books at June 5, 2001 (minutes of the Company's April meetings
of the Board of Directors and its committees were not available),
officials of the Company having advised us that the minutes of all such
meetings through that date were set forth therein, with the exception of
the April meetings. We have also been advised that there were no minutes
of meetings related to the Operating Partnership. We have carried out
other procedures to June 5, 2001 as follows (our work did not extend to
the period from June 6, 2001 to June 8, 2001, inclusive):
a. With respect to the three-month periods ended March 31, 2001 and
2000, we have--
(i) Performed the procedures specified by the American Institute
of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, INTERIM
FINANCIAL INFORMATION, on the unaudited condensed consolidated
financial statements for these periods included in the
Company's quarterly report on Form 10-Q for the quarter ended
March 31, 2001 and the Operating Partnership's quarterly
report on Form 10-Q for the quarter ended March 31, 2001,
incorporated by reference in the Registration Statement.
(ii) Inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether
the unaudited condensed consolidated financial statements
referred to in 4a(I) comply as to form in all material
respects with the applicable accounting requirements of the
Securities Exchange Act of 1934 as it applies to Form 10-Q and
the related rules and regulations adopted by the SEC.
b. With respect to the period from April 1, 2001 to April 30, 2001, we
have:
(i) Read the incomplete unaudited condensed consolidated financial
statements of the Company and the Operating Partnership for
April of both 2001 and 2000 furnished to us by the Company
(incomplete in that the financial statements omit the
statements of cash flows and all disclosures as required by
accounting principles generally accepted in the United States
of America), officials of the Company having advised us that
no such financial statements as of any date or for any period
subsequent to April 30, 2001 were available.
(ii) Inquired of certain officials of the Company who have
responsibility for financial and accounting matters whether
the incomplete unaudited condensed consolidated financial
statements referred to in 4b(I) are stated on a basis
substantially consistent with that of the audited consolidated
financial statements of the Company and the Operating
Partnership incorporated by reference in the Registration
Statement.
The foregoing procedures do not constitute an audit conducted in
accordance with auditing standards generally accepted in the United States
of America. Also, they would not necessarily reveal matters of
significance with respect to the comments in the following paragraph.
Accordingly, we make no representations about the sufficiency of the
foregoing procedures for your purposes.
5. Nothing came to our attention as a result of the foregoing procedures,
however, that caused us to believe that--
a. (i) Any material modifications should be made to the unaudited
condensed consolidated financial statements described in
4a(i), incorporated by reference in the Registration
Statement, for them to be in conformity with accounting
principles generally accepted in the United States of America.
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(ii) The unaudited condensed consolidated financial statements
described in 4a(i) do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Exchange Act of 1934 as it applies to Form 10-Q and
the related rules and regulations adopted by the SEC.
b. (i) At April 30, 2001, there was any change in capital stock or
partners' units, increase in debt, or decrease in
shareholders' or partners' equity of the Company or the
Operating Partnership as compared with the amounts shown in
the March 31, 2001 unaudited condensed consolidated balance
sheets of the Company or the Operating Partnership, both
incorporated by reference in the registration statement, or
(ii) for the period from April 1, 2001 to April 30, 2001,
there were any decreases, as compared with the corresponding
period of the previous year, in revenues, net income or Funds
From Operations (as defined in the registration statement) of
the Company or the Operating Partnership, except for the
effects of the Company's quarterly dividends to its
shareholders and the Operating Partnership's quarterly
distributions to its partners, the issuance of 48,483 common
shares and 64,696 common units, an increase in debt of
approximately $131 million resulting from the assumption of
$107 million of mortgage notes, mortgage note payments of $6
million and borrowings of $30 million on the Company's lines
of credit, and except in all instances for changes, increases
or decreases that the registration statement discloses have
occurred or may occur.
6. As mentioned in 4b, officials of the Company have advised us that no
consolidated financial statements as of any date or for any period
subsequent to April 30, 2001 are available; accordingly, the procedures
carried out by us with respect to changes in financial statement items
after April 30, 2001 have, of necessity, been even more limited than those
with respect to the periods referred to in 4. We have made inquiries of
certain officials of the Company who have responsibility for financial and
accounting matters regarding whether (A) at June 5, 2001, there was any
change in the capital stock or partners' units, increase in debt, or
decrease in shareholders' or partners' equity of the consolidated
companies as compared with amounts shown in the March 31, 2001 unaudited
condensed consolidated balance sheets of the Company or the Operating
Partnership, both incorporated by reference in the Registration Statement
or (B) for the period from April 1, 2001 to June 5, 2001, there were any
decreases, as compared with the corresponding period in the preceding
year, in revenues, net income or Funds From Operations (as defined in the
Registration Statement) of the Company and its subsidiaries or the
Operating Partnership and its subsidiaries. On the basis of these
inquiries and our reading of the minutes as described in 4, nothing came
to our attention that caused us to believe that there was any such change,
increase or decrease, except for the issuance of 233,377 common shares and
99,788 partner units and the effects of the Company's quarterly dividends
to its shareholders and the Operating Partnership's quarterly distribution
to its partners, and except in all instances for changes, increases or
decreases that the Registration Statement discloses have occurred or may
occur.
7. This letter is solely for the information of the addressees and to assist
the underwriters in conducting and documenting their investigation of the
affairs of the Company and the Operating Partnership in connection with
the offering of the securities covered by the Registration Statement, and
it is not to be used, circulated, quoted or otherwise referred to within
or without the underwriting group for any purpose, including but not
limited to, the registration, purchase or sale of securities, nor is it to
be filed with or referred to, in whole or in part in the Registration
Statement or any other document, except that reference may be made to it
in the distribution agreement or in any list of closing documents
pertaining to the offering of the securities covered by the Registration
Statement.
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