EXHIBIT 1.1
DUKE REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
April 29, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
FIRST CHICAGO CAPITAL MARKETS, INC.
One First National Plaza
Chicago, Illinois 60670
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
Dear Sirs:
Duke Realty Limited Partnership, an Indiana limited partnership
(the "Operating Partnership"), confirms its agreement with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, First Chicago Capital
Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan Securities Inc. (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, supplemented or modified
from time to time, including the First Supplemental Indenture thereto dated as
of September 19, 1995 (the "Indenture"), between the Operating Partnership and
The First National Bank of Chicago, as trustee (the "Trustee"). As of the date
hereof, the Operating Partnership has authorized the issuance and sale of up to
U.S.$110,000,000 aggregate initial offering price (or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such foreign
or composite currencies as the Operating Partnership shall designate at the time
of issuance) of Notes 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 such Agent will act as an
agent of the Operating Partnership in soliciting purchases of the Notes.
Duke Realty Investments, Inc. (the "Company") and the Operating
Partnership have filed with the Securities and Exchange Commission (the "SEC") a
registration statement on Form S-3 (No. 33-61361) 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 430A or Rule 415 of the rules and regulations of
the SEC under the 1933 Act (the "1933 Act Regulations"). Such registration
statement has been declared effective by the SEC and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (and any further registration statements which may
be filed by the Operating Partnership for the purpose of registering additional
Notes and in connection with which this Agreement is included or incorporated by
reference as an exhibit) and the prospectus constituting a part thereof
(including in each case the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations), and any prospectus
supplement and pricing supplement relating to the Notes, including all documents
incorporated therein by reference, as from time to time amended or supplemented
by the filing of documents pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act") or the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus," respectively, except that if
any revised prospectus shall be provided to the Agents by the Operating
Partnership for use in connection with the offering of the Notes, whether or not
such revised prospectus is required to be filed by the Operating Partnership
pursuant to Rule 424(b) of the 1933 Act Regulations, the term "Prospectus" shall
refer to such revised prospectus from and after the time it is first provided to
the Agents for such use.
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.
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(b) SALE OF NOTES. The Operating Partnership shall not sell or
approve the solicitation of purchases 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.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any
obligation to purchase Notes from the Operating Partnership as principal, but
one or more Agents may agree from time to time to purchase Notes as principal
for resale to investors and other purchasers determined by such Agent or Agents.
Any such purchase of Notes by an Agent as principal shall be made in accordance
with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon by an Agent and the
Operating Partnership, such Agent, acting solely as agent for the Operating
Partnership and not as principal, will solicit purchases of the Notes. Such
Agent will communicate to the Operating Partnership, orally, each offer to
purchase 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 proposed purchase of Notes, as a 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 proposed
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 to purchase Notes has been solicited by it 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 it has accepted, 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) notwithstanding such default, pay to such Agent any commission to which it
would otherwise be entitled.
(e) RELIANCE. The Operating Partnership and the Agents agree
that any Notes purchased by one or more Agents as principal shall be purchased,
and any Notes the placement of which an Agent arranges as agent 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 the
Agents 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 one or more Agents
as principal or through an Agent as agent), as of the date of each delivery of
Notes (whether to one or more Agents as principal or through an Agent as agent)
(the date of each such delivery to one or more Agents as principal being
hereafter referred to as a "Settlement Date"), and as of any time that the
Registration Statement or the Prospectus shall be amended or supplemented or
there is filed with the SEC any document
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incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date"), as follows:
(i) REGISTRATION STATEMENT AND PROSPECTUS. The Registration
Statement and the Prospectus, at the time the Registration Statement became
effective and at each time thereafter at which an Annual Report on Form 10-K was
filed by the Company with the SEC, complied, and as of each applicable
Representation Date 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 SEC promulgated thereunder (the "1939 Act Regulations"); the
Registration Statement, at the time it became effective and at each time
thereafter at which an Annual Report on Form 10-K was filed by the Company with
the SEC, did not, and at each time thereafter at which any amendment to the
Registration Statement becomes effective or any Annual Report on Form 10-K is
filed by the Company with the SEC and as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, as of the date hereof, does not, and as of each
Representation Date will not, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished to
the Company or the Operating Partnership in writing by the Agents expressly for
use in the Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of Eligibility on
Form T-1 under the 1939 Act (the "Statement of Eligibility") of the Trustee
under the Indenture. Each preliminary prospectus, Prospectus, preliminary
prospectus supplement and prospectus supplement filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when
so filed in all material respects with the 1933 Act and the 1933 Act Regulations
thereunder.
(ii) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the SEC, complied and will comply, as the case may be, in all material respects
with the requirements of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective, as of each Representation Date or during the period
specified in Section 4(e) hereof, did not and will not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iii) ACCOUNTANTS. KPMG Peat Marwick LLP, the accounting firm
that audited the financial statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement and Prospectus, are
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independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements (including
the notes thereto) included in, or incorporated by reference into, the
Registration Statement and the Prospectus present fairly the financial position
of the respective entity or entities presented therein at the respective dates
indicated and the results of their operations for the respective periods
specified; except as otherwise stated in the Registration Statement and
Prospectus, said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis; the
supporting schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information required to be
stated therein; and the Company's ratios of earnings to fixed charges (actual
and, if any, pro forma) included the Prospectus under the caption "Selected
Consolidated Financial Data" and in Exhibit 12 to the Registration Statement
have been calculated in compliance with Item 503(d) of Regulation S-K of the
SEC. The financial information and data included in the Registration Statement
and the Prospectus present fairly the information included therein and have been
prepared on a basis consistent with that of the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus and
the books and records of the respective entities presented therein. Pro forma
financial information included in or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in accordance with
the applicable requirements of the 1933 Act, the 1933 Act Regulations and
guidelines of the American Institute of Certified Public Accountants with
respect to pro forma financial information and includes all adjustments
necessary to present fairly the pro forma financial position of the Operating
Partnership and the Company, as applicable, at the respective dates indicated
and the results of operations for the respective periods specified.
(v) NO STOP ORDER. No stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Operating Partnership, threatened by the Commission or by the state securities
authority of any jurisdiction. No order preventing or suspending the use of the
Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Operating Partnership, threatened by the
Commission or by the state securities authority of any jurisdiction.
(vi) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of the Company, the
Operating Partnership and any of their respective subsidiaries, whether or not
arising in the ordinary course of business; (B) there has been no adverse
change, material to the Duke Group (as hereinafter defined) as a whole, in the
condition, financial or otherwise, or in the earnings, assets, business affairs
or business prospects of any of the real properties owned, directly or
indirectly,
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by the Company, the Operating Partnership or any subsidiary (the "Properties")
or any entity wholly or partially owned by the Company, the Operating
Partnership or any subsidiary which owns any Property (a "Property Partnership")
(the Company, the Operating Partnership, the subsidiaries and the Property
Partnerships are hereinafter jointly referred to as the "Duke Group") , whether
or not arising in the ordinary course of business; (C) no material casualty loss
or material condemnation or other material adverse event with respect to any
Property has occurred; (D) there have been no transactions or acquisitions
entered into by the Duke Group, other than those in the ordinary course of
business, which are material with respect to the Duke Group as a whole; (E)
neither the Company, the Operating Partnership nor any of their respective
subsidiaries has incurred any obligation or liability, direct, contingent or
otherwise which is material to the Duke Group as a whole; (F) there has been no
material change in the short-term debt or long-term debt of the Duke Group as a
whole; (G) except for regular quarterly dividends on the Company's Common Stock,
$.01 par value (the "Common Stock"), and dividends on the Preferred Stock in
amounts per share that are consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock; and (H) with the exception of transactions in
connection with stock option and dividend reinvestment plans, the issuance of
shares of Common Stock upon the exchange of partnership interests in the
Operating Partnership ("Units") and the issuance of Units in connection with the
acquisition of real or personal property, there has been no change in the
capital stock of the Company or in the partnership interests, as the case may
be, of the Company, the Operating Partnership or any subsidiary.
(vii) DUE FORMATION. Each of the Company and the Operating
Partnership has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its
jurisdiction of organization, with partnership or corporate power and
authority to conduct the business in which it is engaged or proposes
to engage and to own, lease and operate its properties as described in
the Prospectus and to enter into and perform its obligations under
this Agreement and the Indenture.
(viii) SUBSIDIARIES. Each of the Company's and the Operating
Partnership's subsidiaries has been duly formed, and is validly
existing and in good standing as a corporation or partnership under
the laws of its jurisdiction of organization, with partnership or
corporate power and authority to conduct the business in which it is
engaged or proposes to engage and to own, lease and operate its
properties as described in the Prospectus.
(ix) QUALIFICATION. Each of the Company, the Operating
Partnership, their respective subsidiaries and the Property
Partnerships is duly qualified or registered as a foreign partnership
or corporation in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material
adverse effect on the condition, financial
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or otherwise, or the earnings, assets, business affairs or business
prospects of the Duke Group considered as a single enterprise (a
"Material Adverse Effect").
(x) PARTNER'S EQUITY AND UNITS. All the issued and
outstanding Units have been duly authorized and are validly issued,
fully paid and non-assessable, except as provided under Indiana Code
Section 23-16-7-8, and have been offered and sold or exchanged in
compliance with all applicable laws (including, without limitation,
federal, state or foreign securities laws).
(xi) SUBSIDIARY CAPITAL STOCK. All of the issued and outstanding
shares of capital stock and partnership interests, as the case may be,
of each subsidiary have been validly issued and fully paid and, other
than the Property Partnerships, Duke Realty Services Limited
Partnership (the "Services Partnership") and Duke Construction Limited
Partnership (the "Construction Partnership"), are owned by the
Company, the Operating Partnership or a subsidiary, in each case free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. Neither the Company nor the Operating
Partnership owns any direct or indirect equity interest in any entity
other than the subsidiaries and the Property Partnerships, except for
such interests as, in the aggregate, are not material to the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Duke Group considered as a single
enterprise. Duke Services, Inc. is the sole general partner and a 1%
owner of the Services Partnership, and the Operating Partnership and
DMI Partnership are the sole limited partners and 9% and 90% owners,
respectively, of the Services Partnership. The Services Partnership
is the sole general partner and a 1% owner of the Construction
Partnership. The 99% limited partnership interest of the Construction
Partnership is owned by Duke Realty Construction, Inc., an Indiana
corporation which is owned 4.04% by the Services Partnership and
95.96% by DMI Partnership.
(xii) NO RIGHTS, WARRANTS OR OPTIONS. Except for
transactions described in the Prospectus and transactions in
connection with stock option and dividend reinvestment plans, there
are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or partnership or other equity interest in the
Company, the Operating Partnership or any subsidiary except for the
Units which may be issued in exchange for shares of Common Stock.
(xiii) DUE FORMATION AND QUALIFICATION OF THE PROPERTY
PARTNERSHIPS. Each of the Property Partnerships has been duly formed
as a partnership or a limited liability company, as the case may be,
and is validly existing and in good standing as a partnership or
limited liability company under the laws of its jurisdiction of
organization and, if formed under the laws of a jurisdiction other
than the State of Indiana, in good standing under the laws of such
jurisdiction; each of the Property Partnerships has the requisite
power and authority to own, lease and operate its properties, to
conduct the business in which it is engaged and to enter into and
perform its respective obligations under the agreements, to which it
is a party. Each of the
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partnership or operating agreements, as the case may be, of the
Property Partnerships is in full force and effect.
(xiv) AUTHORIZATION AND VALIDITY OF THE NOTES. The Notes are
in the form contemplated in the Indenture, have been duly authorized
by the Operating Partnership for issuance, offer and sale pursuant to
this Agreement and, when executed authenticated, issued and delivered
in the manner provided for in this Agreement and the Indenture,
against payment of the consideration therefor, will constitute valid
and legally binding obligations of the Operating Partnership entitled
to the benefits of the Indenture and such Notes will be enforceable
against the Operating Partnership in accordance with their terms,
except as such enforceability may be (1) limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium or other similar
laws affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Upon payment of the purchase price and delivery of such Notes in
accordance herewith, each of the purchasers thereof will receive good,
valid and marketable title to such Notes, free and clear of all
security interests, mortgages, pledges, liens, encumbrances, claims
and equities. The terms of the Notes conform to all statements and
descriptions related thereto in the Prospectus.
(xv) VIOLATION OF CHARTER, BY-LAWS, ETC.. None of the
entities comprising the Duke Group is in violation of its charter,
by-laws, certificate of limited partnership or partnership agreement,
as the case may be, or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which such entity may
be bound, or to which any of its property or assets is subject, which
default separately or in the aggregate would have a Material Adverse
Effect.
(xvi) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT. This
Agreement has been duly and validly authorized, executed and delivered
by the Operating Partnership and, upon execution and delivery by the
Agents, will constitute a valid and legally binding obligation of the
Operating Partnership, enforceable in accordance with its terms.
(xvii) AUTHORIZATION AND VALIDITY OF THE INDENTURE. The
Indenture (A) has been duly qualified under the 1939 Act, has been
duly and validly authorized, executed and delivered by the Operating
Partnership and constitutes a valid and binding obligation of the
Operating Partnership, enforceable in accordance with its terms, and
(B) conforms in all material respects to the description thereof in
the Prospectus.
(xviii) AUTHORIZATION OF PARTNERSHIP AGREEMENTS. Each of the
partnership agreements to which any of the Company, the Operating
Partnership or their respective subsidiaries is a party has been duly
authorized, executed and delivered by such party and constitutes a
valid and binding obligation thereof, enforceable in accordance with
its terms.
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(xix) NO DEFAULTS. The execution and delivery of this
Agreement, the Indenture and the Notes, the performance of the
obligations set forth herein or therein, and the consummation of the
transactions contemplated hereby and thereby or in the Prospectus by
the Company and the Operating Partnership, will not conflict with or
constitute a breach or violation by the Company or the Operating
Partnership of, or default under, or result in the creation of
imposition of any lien, charge or encumbrance upon any Property or
assets of the Duke Group pursuant to any contract, indenture,
mortgage, loan agreement, note, lease, joint venture or partnership
agreement or other instrument or agreement to which the Company, the
Operating Partnership or any subsidiary is a party or by which they,
either of them, any of their respective properties or other assets or
any Property may be bound or subject which is material to the Duke
Group as a whole; nor will such action conflict with or constitute a
breach or violation by the Company or the Operating Partnership of, or
default under, (A) the charter, by-laws, certificate of limited
partnership or partnership agreement, as the case may be, of the
Company, the Operating Partnership or any subsidiary or (B) to the
extent it is material, any applicable law, rule, order, administrative
regulation or administrative or court decree.
(xx) 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 aware of no existing or
imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors which might be expected to
have a Material Adverse Effect.
(xxi) LEGAL PROCEEDINGS; CONTRACTS. There is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Operating Partnership, threatened against or affecting any entity
belonging to the Duke Group, any Properties or any officer or director
of the Company, which is material to the Duke Group as a whole and is
required to be disclosed in the Registration Statement or the
Prospectus (other than as disclosed therein), or that, if determined
adversely to any entity belonging to the Duke Group or any Property,
or any such officer or director, will or could reasonably be expected
to result in any Material Adverse Effect, or which might materially
and adversely affect the Properties or assets of the Duke Group or
which might materially and adversely affect the consummation of this
Agreement, the Indenture, or the transactions contemplated herein and
therein. There are no pending legal or governmental proceedings to
which any entity belonging to the Duke Group is a party or of which
they or any of their respective properties or assets or any Property
or Property Partnership is the subject, including ordinary routine
litigation incidental to the business, that are, considered in the
aggregate, material to the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Duke
Group as a whole. There are no statutes or contracts or documents of
the entities comprising the Duke Group which are required to be filed
as exhibits to the Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed.
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(xxii) REGULATORY APPROVALS. No authorization, approval,
consent or order of any court or governmental authority or agency is
required that has not been obtained in connection with the
consummation by the Operating Partnership of the transactions
contemplated by this Agreement or the Indenture, except such as may be
required under the 1933 Act, 1933 Act Regulations, the 1939 Act or the
1939 Act Regulations or state or foreign securities laws or real
estate syndication laws or such as have been received prior to the
date of this Agreement.
(xxiii) QUALIFICATION AS REAL ESTATE INVESTMENT TRUST. At all
times since February 13, 1986, the Company has been, and upon the sale
of any Notes, the Company will continue to be, organized and operated
in conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"), and its proposed method of operation will enable it to
continue to meet the requirements for taxation as a real estate
investment trust under the Code.
(xxiv) INVESTMENT COMPANY ACT. None of the entities
comprising the Duke Group is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), or is or
will become a "holding company" or a "subsidiary company" of a
"registered holding company" as defined in the Public Utility Holding
Company Act of 1935, as amended.
(xxv) INTELLECTUAL PROPERTY. None of the entities comprising
the Duke Group is required to own or possess any trademarks, service
marks, trade names or copyrights not now lawfully owned, possessed or
licensed in order to conduct the business now operated by such entity.
(xxvi) LICENSES. Each entity belonging to the Duke Group
possesses such material certificates, authorizations or permits issued
by the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it, or
proposed to be conducted by it, and none of the entities comprising
the Duke Group has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
(xxvii) REGISTRATION RIGHTS. There are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company or the Operating Partnership under the 1933 Act.
(xxviii) RATINGS. The Notes are rated Baa2 by Moody's Investors
Service, Inc. and BBB by Standard & Poor's Corporation.
(xxix) PROPERTIES AND ASSETS. (A) With respect to the
Properties, the Company or the Operating Partnership and the Property
Partnerships have good and
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marketable title to all items of real property (and improvements
thereon), leasehold interests and general and limited partnership
interests, in each case free and clear of all liens, encumbrances,
claims, security interests and defects, except such as are (i)
described in the Prospectus or the Company's Annual Report on Form 10-K
for the most recent fiscal year ended, (ii) referred to in the title
policies of such Properties, (iii) serving as security for loans
described in the Prospectus, and (iv) nonmaterial and placed on a
Property in connection with such Property's development; (B) all
contracts of the Operating Partnership and any subsidiary to provide
leasing, property management and construction management services,
general contractor services for third parties, and real estate
development, construction and miscellaneous tenant services businesses
(the "Related Businesses"), are enforceable by and in the name of the
Operating Partnership and the applicable subsidiary, as the case may
be; (C) all liens, charges, encumbrances, claims, or restrictions on or
affecting any of the Properties or Related Businesses and the assets of
the entities comprising the Duke Group which are required to be
disclosed in the Prospectus are disclosed therein; (D) neither the
Operating Partnership, any Property Partnership nor any tenant of any
of the Properties is in default under any of the ground leases (as
lessee) or space leases (as lessor) relating to, or any of the
mortgages or other security documents or other agreements encumbering
or otherwise recorded against, the Properties, and none of the entities
comprising the Duke Group knows of any event which, but for the passage
of time or the giving of notice, or both, would constitute a default
under any of such documents or agreements, other than such defaults
that would not have a Material Adverse Effect; (E) no tenant under any
of the leases, pursuant to which the Operating Partnership or any
Property Partnership, as lessor, leases its Property, has an option or
right of first refusal to purchase the premises demised under such
lease, the exercise of which would have a Material Adverse Effect; (F)
each of the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to the Properties),
except for such failures to comply that would not individually or in
the aggregate have a Material Adverse Effect; and(G) the Operating
Partnership has no knowledge of any pending or threatened condemnation
proceedings, zoning change, or other proceeding or action that will in
any manner affect the size of, use of, improvements on, construction on
or access to the Properties, except such proceedings or actions that
would not have a Material Adverse Effect on the condition, financial or
otherwise, or on the earnings, assets, business affairs or business
prospects of or with respect to such Property, the Operating
Partnership or the Property Partnership owning an interest in such
Property.
(xxx) NO CROSS-DEFAULT OR CROSS-COLLATERALIZATION. The
mortgages and deeds of trust encumbering the Properties and assets
described in the Prospectus are not convertible and none of the
Property Partnerships nor any person related to or affiliated with the
Property Partnerships holds a participating interest therein and said
mortgages and deeds of trust are not cross-defaulted or
cross-collateralized with any property not owned by the Operating
Partnership.
(xxxi) INSURANCE. Each of the Company, the Operating
Partnership and their respective subsidiaries is insured by insurers
of recognized financial
11
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and
none of the Company, the Operating Partnership and their respective
subsidiaries has any reason to believe that it or any of its
subsidiaries will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its businesses at a
cost that would not have a Material Adverse Effect, except as described
in or contemplated by the Registration Statement and the Prospectus.
(xxxii) PROHIBITED ACTION. The Company and the Operating
Partnership have not taken and will not take, directly or indirectly,
any action prohibited by Rule 10b-6 under the 1934 Act.
(xxxiii) ERISA. The assets of the Company do not constitute
"plan assets" under the Employee Retirement Income Security Act of
1974, as amended.
(xxxiv) HAZARDOUS MATERIALS. Except as disclosed in the
Prospectus, and, with respect to clauses (A), (B) and (C) below,
except for activities, conditions, circumstances or matters that would
not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, assets, business affairs or business
prospects of or with respect to any Property or the Property
Partnership owning an interest in such Property, (A) each Property,
including, without limitation, the Environment (as defined below)
associated with such Property, is free of any Hazardous Substance (as
defined below), (B) neither the Company nor the Operating Partnership
nor any Property Partnership has caused or suffered to occur any
Release (as defined below) of any Hazardous Substance into the
Environment on, in, under or from any Property, and no condition
exists on, in, under or, to the knowledge of the Operating
Partnership, that could result in the incurrence of material
liabilities or any material violations of any Environmental Law (as
defined below), give rise to the imposition of any Lien (as defined
below) under any Environmental Law, or cause or constitute a health,
safety or environmental hazard to any property, person or entity; (C)
neither the Company, the Operating Partnership nor any Property
Partnership is engaged in or intends to engage in any manufacturing or
any other operations at the Properties that (1) require the use,
handling, transportation, storage, treatment or disposal of any
Hazardous Substance or (2) require permits or are otherwise regulated
pursuant to any Environmental Law, other than permits which have been
obtained; (D) neither the Company nor the Operating Partnership nor
any Property Partnership has received any notice of a claim material
to the Duke Group as a whole under or pursuant to any Environmental
Law or under common law pertaining to Hazardous Substances on or
originating from any Property; (E) neither the Company nor the
Operating Partnership nor any Property Partnership has received any
notice from any Governmental Authority (as defined below) claiming any
violation of any Environmental Law; and (F) no Property is included
or, to the knowledge of the Operating Partnership, proposed for
inclusion on the National Priorities List issued pursuant to CERCLA
(as defined below) by the United States Environmental Protection
Agency (the "EPA") or, with the exception of one Property, in respect
to which the EPA has advised the Operating Partnership that no further
remedial action is
12
planned, on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and has
not otherwise been identified by the EPA as a potential CERCLA removal,
remedial or response site or included or, to the knowledge of the
Operating Partnership, proposed for inclusion on, any similar list of
potentially contaminated sites pursuant to any other Environmental Law.
Excluding such customary amounts as may be lawfully generated,
stored, used, treated, disposed of, or otherwise handled or located at
any Property, as used herein "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste, toxic or
dangerous substance, pollutant, toxic waste or similarly designated
materials, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials,
dioxins, urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste, including any such substance, pollutant
or waste identified or regulated under any Environmental Law
(including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49
C.F.R. Section 172.101, as the same may now or hereafter be amended, or
in the EPA's List of Hazardous Substances and Reportable Quantities, 40
C.F.R. Part 3202, as the same may now or hereafter be amended);
"Environment" shall mean any surface water, drinking water, ground
water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor and outdoor air;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Section 9601 et seq.) ("CERCLA"), the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. Section 6901, et seq.), the
Clean Air Act, as amended (42 U.S.C. Section 7401, et seq.), the Clean
Water Act, as amended (33 U.S.C. Section 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Section 2601, et seq.),
the Occupational Safety and Health Act of 1970, as amended (29 U.S.C.
Section 651, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Section 1801, et seq.), and all other federal, state
and local laws, ordinances, regulations, rules, orders, decisions and
permits relating to the protection of the environments or of human
health from environmental effects; "Governmental Authority" shall mean
any federal, state or local governmental office, agency or authority
having the duty or authority to promulgate, implement or enforce any
Environmental Law; "Lien" shall mean, with respect to any Property, any
mortgage, deed of trust, pledge, security interest, lien, encumbrance,
penalty, fine, charge, assessment, judgment or other liability in, on
or affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
13
(xxxv) TITLE INSURANCE. Each of the Company, the Operating
Partnership and their subsidiaries has obtained title insurance on all
of the properties owned by each of them in an amount at least equal to
(A) the cost to acquire land and improvements in the case of an
acquisition of improved property or (B) the cost to acquire land in
the case of an acquisition of unimproved property and in each case
such title insurance is in full force and effect.
(xxxvi) TAXES. Each of the Company and the Operating
Partnership has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in
which the failure to so file would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of such entity) and has paid
all taxes required to be paid and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is
due and payable, except, in all cases, for any such tax, assessment,
fine or penalty that is being contested in good faith.
(xxxvii) DOING BUSINESS WITH CUBA. The Company and the
Operating Partnership have complied and will comply with the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida Statutes, 1987, as amended, and all regulations promulgated
thereunder relating to issuers doing business in Cuba.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
officer of the Company, the Operating Partnership or of 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 at each Representation Date subsequent thereto.
SECTION 3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
(a) PURCHASES AS PRINCIPAL. Unless otherwise agreed by an Agent
and the Operating Partnership, Notes shall be purchased by such Agent as
principal. Such purchases shall be made in accordance with terms agreed upon by
one or more Agents and the Operating Partnership (which terms, unless otherwise
agreed, shall, to the extent applicable, include those terms specified in
Exhibit A hereto and 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 Company 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 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 other broker or dealer in connection with the resale of the
Notes purchased by them as principal and may allow any portion of the discount
received in connection with such purchases from the Operating Partnership to
such brokers and dealers. At the time of each purchase of Notes by
14
one or more Agents as principal, such Agent or Agents shall specify the
requirements for the stand-off agreement, officers' certificate, opinions of
counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d)
hereof.
(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 to purchase the Notes upon the terms and conditions set forth
herein and 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 to by the Operating Partnership and such Agent.
The Operating Partnership reserves the right, in its sole
discretion, to suspend solicitation of purchases of the Notes through an Agent,
as agent, 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 purchases 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 set forth in Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest
rate or formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Operating Partnership
and the applicable Agent or Agents and specified in a pricing supplement to the
Prospectus (each, a "Pricing Supplement") to be prepared in connection with each
sale of Notes. Except as may be 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 sale of Notes shall be agreed upon from time to
time by the Operating Partnership, the Agents and the Trustee (the
"Procedures"). 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 with the Agents 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 amendment to the Registration Statement, (ii) the
transmittal to the SEC for filing of any amendment or supplement to the
Prospectus or any document to be filed pursuant to the 1934
15
Act (other than any amendment, supplement or document relating solely to
securities other than the Notes), (iii) the receipt of any comments from the SEC
with respect to the Registration Statement or the Prospectus, (iv) any request
by the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) the issuance by
the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose and (vi) any
change in the rating assigned by any nationally recognized statistical rating
organization to any debt securities 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 any debt securities of the Operating Partnership. 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) NOTICE OF CERTAIN PROPOSED FILINGS. 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 or any
amendment or supplement to the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rate or formula applicable to the
Notes or a change relating solely to securities other than the Notes), whether
by filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise,
and will furnish to the Agents copies of any such amendment or supplement or
other documents proposed to be filed or used a reasonable time in advance of
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which the Agents or
counsel for the Agents shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS.
The Operating Partnership will deliver to the Agents as many 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 by reference in the Prospectus) as
the Agents reasonably request. The Operating Partnership will furnish to the
Agents as many copies of the Prospectus (as amended or supplemented) as the
Agents reasonably request so long as the Agents are required to deliver a
Prospectus in connection with sales or solicitations of offers to purchase the
Notes.
(d) 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 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 SEC on the fifth business day after the date on
which such Pricing Supplement is first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as
otherwise provided in subsection (l) of this Section, if at any time during the
term of this Agreement any event shall occur or condition 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 or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or omit
to
16
state any 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 or supplement the Registration Statement or 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 to
purchase the 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
amend the Registration Statement and the Prospectus, whether by filing documents
pursuant to the 1934 Act or the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION.
Except as otherwise provided in subsection (l) of this Section, 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 or
incorporate by reference 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.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION.
Except as otherwise provided in subsection (l) of this Section, 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 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 Registration Statement and the Prospectus to be amended, 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 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 financial statements or as shall be required by the 1933 Act or the 1933
Act Regulations.
(h) EARNINGS STATEMENTS. The Operating Partnership will make
generally available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering each twelve month period beginning, in each case, not
later than the first day of the Operating Partnership's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the Registration
Statement with respect to each sale of Notes.
(i) BLUE SKY QUALIFICATIONS. The Operating Partnership will
endeavor, in cooperation with the Agents, to qualify the Notes for offering and
sale under the applicable securities laws and real estate syndication laws of
such states and other jurisdictions of the
17
United States as the Agents may designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
PROVIDED, HOWEVER, that the Operating Partnership shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The Operating Partnership
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided. The
Operating Partnership will promptly advise the Agents of the receipt by the
Operating Partnership of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 ACT FILINGS. 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 SEC pursuant to Section 13, 14 or 15 of the 1934 Act within
the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) STAND-OFF AGREEMENT. If specified by the applicable Agent
or Agents in connection with a purchase of Notes as principal, between the date
of the agreement to purchase such Notes and the Settlement Date with respect to
such purchase, the Operating Partnership will not, without the prior written
consent of such Agent or Agents, offer or 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
and commercial paper in the ordinary course of business).
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Operating
Partnership shall not be required to comply with the provisions of subsection
(e), (f) or (g) of this Section during any period from the time (i) the Agents
shall have suspended solicitation of purchases of the Notes in their capacity as
agents pursuant to a request from the Operating Partnership and (ii) no Agent
shall then hold any Notes purchased as principal pursuant hereto, until the time
the Operating Partnership shall determine that solicitation of purchases of the
Notes should be resumed or an Agent shall subsequently purchase Notes from the
Operating Partnership as principal.
(m) QUALIFICATION AS REAL ESTATE INVESTMENT TRUST. The Company
will use its best efforts to meet the requirements to qualify as a "real estate
investment trust" under the Code for the taxable year in which sales of the
Notes are to occur, unless otherwise specified in the Prospectus.
18
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agent of the Operating Partnership, and
the obligations of any purchasers of the Notes sold through an Agent as agent,
will be subject to the accuracy of the representations and warranties on the
part of the Operating Partnership herein and to the accuracy of the statements
of the officers of the Company, as general partner of the Operating Partnership,
made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Operating Partnership of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
(a) 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 counsel for the Agents:
(1) OPINION OF OPERATING PARTNERSHIP COUNSEL. The
favorable opinion of Bose McKinney & Evans, counsel for the Operating
Partnership, to the effect that:
(i) The Company is a corporation duly
organized and existing under and by virtue of the laws of the
State of Indiana, has filed its most recent annual report required
by law with the Secretary of State of Indiana or is not yet
required to file such annual report, and has not filed Articles of
Dissolution. The Company has corporate power and authority to
conduct the business in which it is engaged or proposes to engage
and to own, lease and operate its properties as described in the
Prospectus. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, assets, business affairs or business prospects
of the Company or any Property.
(ii) The Operating Partnership is a limited
partnership duly organized and existing under and by virtue of
the laws of the State of Indiana. The Operating Partnership has
partnership power and authority to conduct the business in which
it is engaged and proposes to engage and to own, lease and
operate its properties as described in the Prospectus and to
enter into and perform its obligations under this Agreement and
the other agreements to which it is a party. The Operating
Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register
would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs
or business
19
prospects of the Operating Partnership or any Property or Related
Business.
(iii) Each of the Company's and the Operating
Partnership's subsidiaries (other than the Property Partnerships)
has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its
jurisdiction of organization, with partnership or corporate power
and authority to conduct the business in which it is engaged or
proposes to engage and to own, lease and operate its properties
as described in the Prospectus.
(iv) Each of the Company's and the Operating
Partnership's subsidiaries and the Property Partnerships is duly
qualified or registered as a foreign partnership or corporation
in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, assets, business affairs or business prospects
of the Duke Group considered as a single enterprise.
(v) All the issued and outstanding Units have
been duly authorized and are validly issued, fully paid and non-
assessable, except as provided under Indiana Code Section
23-16-7-8.
(vi) All of the issued and outstanding shares
of capital stock and partnership interests, as the case may be,
of each subsidiary identified in an exhibit to such counsel's
opinion have been validly issued and fully paid and are owned by
the Company, the Operating Partnership or a subsidiary, in each
case free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(vii) Each of the Property Partnerships has
been duly formed as a partnership or a limited liability company,
as the case may be, and is validly existing and in good standing
as a partnership or a limited liability company under of the laws
of its jurisdiction of organization; each Property Partnership
has all requisite power and authority to own, lease and operate
the Properties, to conduct the business in which it is engaged
and to enter into and perform its respective obligations under
the agreements to which it is a party. Each of the partnership
or operating agreements, as the case may be, of the Property
Partnerships is in full force and effect.
(viii) The Notes are in the form contemplated
in the Indenture, have been duly authorized by the Operating
Partnership for issuance, offer and sale pursuant to this
Agreement and, when executed
20
authenticated, issued and delivered in the manner provided for in
this Agreement and the Indenture, against payment of the
consideration therefor, will constitute valid and legally binding
obligations of the Operating Partnership entitled to the benefits
of the Indenture and such Notes will be enforceable against the
Operating Partnership in accordance with their terms, except as
such enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law). Upon payment of the purchase price and delivery of such
Notes in accordance herewith, each of the purchasers thereof will
receive good, valid and marketable title to such Notes, which to
such counsel's knowledge, after due inquiry, are free and clear
of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities. The terms of the Notes
conform to all statements and descriptions related thereto in the
Prospectus.
(ix) To the best knowledge of such counsel,
none of the entities comprising the Duke Group is in violation of
its charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, and none of the
entities comprising the Duke Group is in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which such entity
is a party or by which such entity may be bound, or to which any
of the property or assets of such entity is subject, except for
defaults which are not material to the Duke Group as a whole.
(x) This Agreement has been duly and validly
authorized, executed and delivered by the Operating Partnership
and the Operating Partnership has the power and authority to
perform its obligations hereunder.
(xi) The Indenture has been duly qualified
under the 1939 Act and has been duly and validly authorized,
executed and delivered by the Operating Partnership, and, assuming
due authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the Operating
Partnership, enforceable in accordance with its terms, except as
such enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law). The Indenture conforms in all material respects to the
descriptions thereof contained in the Prospectus.
21
(xii) Each of the partnership agreements to
which any of the Company, the Operating Partnership or their
respective subsidiaries identified in an exhibit to such
counsel's opinion is a party has been duly authorized, executed
and delivered by such party and constitutes a valid and binding
obligation thereof, enforceable in accordance with its terms,
except as such enforceability may be (1) limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium or other
similar laws affecting the rights and remedies of creditors
generally and (2) subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xiii) The execution and delivery of this
Agreement, the Indenture and the Notes, the performance of the
obligations set forth herein or therein, and the consummation of
the transactions contemplated hereby and thereby or in the
Prospectus by the Operating Partnership, will not conflict with or
constitute a breach or violation by the Operating Partnership of,
or default under, or result in the creation of imposition of any
lien, charge or encumbrance upon Property or assets of the Duke
Group pursuant to any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or
other instrument or agreement known to such counsel, after due
inquiry, to which the Operating Partnership or any subsidiary is a
party or by which they, any of their respective properties or
other assets or any Property may be bound or subject which is
material to the Duke Group as a whole; nor will such action
conflict with or constitute a breach or violation by the Operating
Partnership of, or default under, (A) the charter, by-laws,
certificate of limited partnership or partnership agreement, as
the case may be, of the Operating Partnership or any subsidiary or
(B) to the extent it is material, any applicable law, rule, order,
administrative regulation or administrative or court decree.
(xiv) Assuming the Company was organized in
conformity with and has satisfied the requirements for
qualification and taxation as a "real estate investment trust"
under the Code for each of its taxable years from and including
the first taxable year for which the Company made the election to
be taxed as a "real estate investment trust", the proposed
methods of operation of the Company, the Operating Partnership
and the Services Partnership as described in the Registration
Statement and as represented by the Company, the Operating
Partnership and the Services Partnership will permit the Company
to continue to qualify to be taxed as a "real estate investment
trust" for its current and subsequent taxable years.
(xv) None of the entities comprising the Duke
Group is required to be registered under the 1940 Act or is or
will become a "holding company" or a "subsidiary company" of a
"registered holding
22
company" as defined in the Public Utility Holding Company Act of
1935, as amended.
(xvi) To such counsel's knowledge, after due
inquiry, (i) each entity belonging to the Duke Group possesses
such material certificates, authorizations or permits issued by
the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it, or
proposed to be conducted by it, and (ii) none of the entities
comprising the Duke Group has received any notice of proceedings
relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs
or business prospects of the Duke Group considered as a single
enterprise.
(xvii) No authorization, approval, consent or order
of any court or governmental authority or agency or, to the
knowledge of such counsel, any other entity is required in
connection with the offering, issuance or sale of the Notes
hereunder, except such as may be required under the 1933 Act or
the 1933 Act Regulations or the 1939 Act or the 1939 Act
Regulations or state or foreign securities laws, as to which such
counsel need express no opinion, or real estate syndication laws
or such as have been received prior to the date of this
Agreement.
(xviii) Each preliminary prospectus, preliminary
prospectus supplement and prospectus supplement filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the
1933 Act and the 1933 Act Regulations thereunder.
(xix) The documents incorporated or deemed to
be incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were filed
with the SEC, complied and will comply as to form in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations.
(xx) The Registration Statement is effective
under the 1933 Act and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the SEC.
(xxi) At the time the Registration Statement
became effective and at the date hereof, (A) the Registration
Statement and the Prospectus (other than the financial statements
and supporting schedules
23
included therein, or the Statement of Eligibility, as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and (B) the Prospectus and the Term Sheet, if any,
complied with Rule 434(c)(2).
(xxii) There are no legal or governmental
proceedings pending or, to the best of their knowledge and
information, threatened which are required to be disclosed in the
Registration Statement or the Prospectus, other than those
disclosed therein, and all pending legal or governmental
proceedings to which any of the entities comprising the Duke
Group is a party or to which any of their properties is subject
which are not described in the Registration Statement or the
Prospectus, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material.
(xxiii) The information in the Prospectus under
"Certain United States Federal Income Tax Considerations," to the
extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been
reviewed by them and is correct and presents fairly the
information required to be disclosed therein.
(xxiv) There are no statutes, contracts, inden-
tures, mortgages, loan agreements, notes, leases or other
instruments known to such counsel which are required to be
described or referred to in the Registration Statement or to be
filed as exhibits thereto by the 1933 Act Regulations other than
those described or referred to therein or filed as exhibits
thereto, the descriptions thereof or references thereto are
correct, and to the best knowledge of such counsel, no material
default exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed.
(xxv) To the best knowledge of such counsel,
there are no persons with registration or other similar rights to
have any securities registered pursuant to the Registration
Statement or otherwise registered by the Operating Partnership
under the 1933 Act.
(xxvi) The Operating Partnership satisfies all
conditions and requirements for filing the Registration Statement
on Form S-3 under the 1933 Act and 1933 Act Regulations.
(2) OPINION OF COUNSEL TO THE AGENTS. The favorable opinion of
Rogers & Wells, counsel to the Agents, (A) with respect to the matters set forth
in Section 5(a)(1)(i) (with respect to the Company only and with respect to the
first sentence
24
only), Section 5(a)(1)(viii) (with respect to the first sentence
only), Section 5(a)(1)(x) (with respect to the first clause only),
Section 5(a)(1)(xi) and Section 5(a)(1)(xxi) and (B) containing a
statement similar to the statement referred to in the first paragraph
of Section 5(a)(3).
(3) DISCLOSURE OPINION. In giving their opinions required by
subsections (a)(1) and (a)(2), respectively, of this Section 5, Bose
McKinney & Evans and Rogers & Wells shall additionally state that such
counsel has participated in conferences with officers and other
representatives of the Operating Partnership and the independent
public accountants for the Operating Partnership at which the contents
of the Registration Statement and the Prospectus and related matters
were discussed and in the preparation of the Registration Statement
and the Prospectus and, on the basis of the foregoing, nothing has
come to their attention that would lead them to believe that the
Registration Statement, at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Operating Partnership with the SEC
subsequent to the effectiveness of the Registration Statement, then at
the time such amendment became effective or at the time of the most
recent such filing, as the case may be) or at the date hereof,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading or that the Prospectus, at the date hereof (or, if such
opinion is being delivered in connection with the purchase of Notes by
one or more Agents as principal pursuant to Section 7(c) hereof, at
the date of any agreement by such Agent or Agents to purchase Notes as
principal and at the Settlement Date with respect thereto, as the case
may be) included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
In giving their opinions, Bose McKinney & Evans and Rogers &
Wells may rely upon, or assume the accuracy of, (A) as to all matters
of fact, certificates and written statements of officers and employees
of and accountants for each of the entities comprising the Duke Group
and (B) as to the qualification and good standing of each of the
entities comprising the Duke Group to do business in any jurisdiction,
certificates of appropriate government officials or opinions of
counsel in such jurisdictions, and (C) in respect to the opinion by
Rogers & Wells only, as to certain matters of Indiana law, the opinion
of Bose McKinney & Evans given pursuant to Section 5(a)(1) above.
(b) OFFICER'S CERTIFICATE. At the date hereof, the Agents shall
have received a certificate of the Chief Executive Officer, President or a Vice
President and 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) since the respective dates as of which
information is given in the Prospectus or since the date of any agreement by one
or more Agents to purchase Notes as principal, there has not been 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, (ii) the representations and warranties of the
25
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 and (iii) the Operating Partnership has performed or 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. As used in this Section
5(b), the term "Prospectus" means the Prospectus in the form first provided to
the applicable Agent or Agents for use in confirming sales of the Notes.
(c) COMFORT LETTER OF KPMG PEAT MARWICK LLP. On the date
hereof, the Agents shall have received a letter from KPMG Peat Marwick LLP,
dated as of the date hereof and in form and substance satisfactory to the
Agents, to the effect that:
(i) They are independent public accountants with
respect to the Company and the Operating Partnership within the
meaning of the 1933 Act and the 1933 Act Regulations.
(ii) It is their opinion that the financial statements
and supporting schedules included in the Registration Statement, or
incorporated by reference therein, and covered by their opinions
therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations.
(iii) They have performed limited procedures, not
constituting an audit, including a reading of the latest available
unaudited interim consolidated financial statements of the Company and
the Operating Partnership, a reading of the minute books of the
Company, inquiries of certain officials of the Company and the
Operating Partnership who have responsibility for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such limited review and
procedures nothing came to their attention that caused them to believe
that (A) the unaudited financial statements of the Company and the
Operating Partnership included in the Registration Statement, or
incorporated by reference therein, do not comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations, or material modifications are
required for them to be presented in conformity with generally
accepted accounting principles, (B) the operating data and balance
sheet data included or incorporated by reference in the Prospectus
were not determined on a basis substantially consistent with that used
in determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the Registration
Statement, (C) the pro forma financial information included or
incorporated by reference in the Registration Statement was not
determined on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference in
the Registration Statement or (D) at a specified date not more than
five days prior to the date hereof, there has been any change in the
capital stock or the number of partnership interests of the Company,
the Operating Partnership or their subsidiaries, as the case may be,
or any increase in the debt of the Company, the Operating Partnership
or their subsidiaries or any decrease in the net assets of the
Company, the Operating Partnership or their subsidiaries, as compared
with the amounts shown in the most recent consolidated balance sheet
of the Company, the Operating Partnership and their subsidiaries,
included in the Registration Statement or
26
incorporated by reference therein, or, during the period from the date
of the most recent consolidated statement of operations included in
the Registration Statement or incorporated by reference therein to a
specified date not more than five days prior to the date hereof, there
were any decreases, as compared with the corresponding period in the
preceding year, in revenues, net income or funds from operations of
the Company, the Operating Partnership and their subsidiaries, except
in all instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur.
(iv) In addition to the audit referred to in their
opinions and the limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and the Prospectus and which are specified by
the Agents, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial
and other records of the Company, the Operating Partnership and their
subsidiaries identified in such letter.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement
Date, counsel to the Agents shall have been furnished with such documents and
opinions as such counsel may reasonably 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 and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company 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 Company at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section 4(h) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof, the
provisions relating to governing law and forum set forth in Section 14 and the
provisions relating to parties set forth in Section 15 hereof shall remain in
effect.
27
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
Delivery of Notes sold through an Agent as agent 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 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 covenants and agrees with the Agents
that:
(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 contained in this Agreement and 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 or Agents or to the purchaser or its agent,
as the case may be, of the Note or Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it is
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 a change in the interest
rate or formula applicable to the Notes or similar changes, and other than by an
amendment or supplement which relates exclusively to the issuance of securities
other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of securities other than the
Notes), (iii) (if required in connection with the purchase of Notes by one or
more Agents as principal) the Operating Partnership sells Notes to such Agent or
Agents as principal or (iv) if the Operating Partnership issues and 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 SEC of such supplement
or document, the date of effectiveness of such amendment, 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(b)
hereof which were last furnished to the Agents are true and correct at the time
of such amendment, supplement, filing or sale, as the case may be, as though
made at and as
28
of such time (except that such statements shall be deemed to relate to the
Registration Statement and 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(b) 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.
(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 a change in the
interest rate or formula applicable to the Notes or similar changes or solely
for the inclusion of additional financial information, and other than by an
amendment or supplement which relates exclusively to the issuance of securities
other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K, unless the Agents shall otherwise specify), (iii) (if required in
connection with the purchase of Notes by one or more Agents as principal) the
Operating Partnership sells Notes to such Agent or Agents as principal or (iv)
if the Operating Partnership issues and 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, counsel to the
Operating Partnership, or other counsel satisfactory to the Agent(s), dated the
date of filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, 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(a)(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);
PROVIDED, HOWEVER, that counsel need not render the opinion required under
Section 5(a)(1)(xiv) upon the filing of any Quarterly Report on Form 10-Q which
does not include information relating to such tax matters, unless the Agents
shall otherwise specify.
(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 which relates exclusively to the issuance of securities other than
the Notes), (ii) there is filed with the SEC any document incorporated by
reference into the Prospectus which contains additional financial information,
or (iii) (if required in connection with the purchase of Notes by one or more
Agents as principal) the Operating Partnership sells Notes to such Agent or
Agents as principal, the Operating Partnership shall cause KPMG Peat Marwick LLP
forthwith to furnish to the Agent(s) a letter, dated the date of effectiveness
of such amendment, supplement or document with the SEC, or the date of such
sale, as the case may be, in form satisfactory to the Agent(s), of the same
tenor as the portions of the letter referred to in clauses (i) and (ii) of
Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus as amended and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter referred to in clauses
29
(iii) and (iv) of said Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other information derived from
the accounting records of the Operating Partnership.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENT(S). 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 as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was 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 the Prospectus;
(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 investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if 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 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 (i) or (ii) above.
(b) INDEMNIFICATION OF OPERATING PARTNERSHIP. The Agents agree
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 against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with
30
written information furnished to the Operating Partnership by the Agents
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) GENERAL. Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action with
counsel chosen by it (who shall not, except with the consent of the indemnified
party, be counsel to such indemnified party). In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Operating Partnership and the Agents shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Operating Partnership and the Agents, as
incurred, in such proportions that each Agent is responsible for that portion
represented by the percentage that the commission or underwriting discount
received by such Agent bears to the total sales price from the sale of the Notes
sold to or through such Agent that were the subject of the claim for
indemnification, and the Operating Partnership is responsible for the balance;
PROVIDED, HOWEVER, that 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. For
purposes of this Section 9, each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Agent, and each director of the Operating Partnership, each
officer of the Operating Partnership 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 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 and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement;
31
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of Notes in
book-entry form;
(d) The fees and disbursements of the Operating Partnership's
accountants and counsel, of the Trustee and its counsel, and of any calculation
agent or exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred in connection with the establishment of the program relating to
the Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws
in accordance with the provisions of Section 4(i) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky or
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the Notes;
(h) The preparation, reproducing and delivery to the Agents of
copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses incurred in connection with any
listing of Notes on a securities exchange;
(k) The fees and expenses incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Operating Partnership; and
(m) The cost of providing any CUSIP or other identification
numbers for the Notes.
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 of any of their respective 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 Company, the Operating Partnership
32
or of any of their respective subsidiaries, and shall survive each delivery of
and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding
any agreement hereunder by one or more Agents to purchase Notes 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 10 days' written
notice of such termination to the other party hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL.
The applicable Agent or Agents may terminate any agreement hereunder by such
Agent or Agents to purchase Notes as principal, immediately upon notice to the
Operating Partnership, at any time prior to the Settlement Date relating thereto
(i) if 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 Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis the effect of which is such
as to make it, in the judgment of such Agent or Agents, impracticable to market
the Notes or enforce contracts for the sale of the Notes, or (iii) if trading in
any securities of the Company has been suspended by the SEC or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
SEC or any other governmental authority, or if a banking moratorium shall have
been declared by either Federal, New York or Indiana authorities or if a banking
moratorium shall have been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies in which the Notes
are denominated or payable, or (iv) if the rating assigned by any nationally
recognized statistical rating organization to any debt securities of the
Operating Partnership as of the date of such agreement shall have been lowered
since that date or if any such rating organization shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of any debt securities of the Operating Partnership, or (v) if there
shall have come to the attention of such Agent or Agents any facts that would
cause them to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of 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 light of the circumstances existing at the time of such
delivery, not misleading. As used in this Section 12(b), the term "Prospectus"
means the Prospectus in the form first provided to the applicable Agent or
Agents for use in confirming sales of the related Notes.
(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 commission 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 as principal with the intention
33
of reselling them 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 the Note or 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(h) 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.
If to the Company or the Operating Partnership:
Duke Realty Limited Partnership
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Attention: Darell E. Zink, Jr.
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (212) 449-2234
First Chicago Capital Markets, Inc.
One First National Plaza
Suite 0407
Chicago, Illinois 60670
Attention: Senior Credit Officer, Product Risk Management
Telecopy No.: (312) 732-4172
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Telecopy No.: (212) 346-2799
34
J.P. Morgan Securities Inc.
60 Wall Street
3d Floor
New York, New York 10260
Attention: MTN Trading Desk
Telecopy No.: (212) 648-5207
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. 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 applicable to agreements made and to be performed in such State. Any
suit, action or proceeding brought by the Operating Partnership 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 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon
the Agents and the Company 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 and officers and directors referred to in
Sections 8 and 9 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 respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be
a successor by reason merely of such purchase.
SECTION 16. 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.
35
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 instrument along with all counterparts will become a
binding agreement between the Agents and the Operating Partnership in accordance
with its terms.
Very truly yours,
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.,
its General Partner
By: /s/ Dennis D. Oklak
--------------------------------
Name: Dennis D. Oklak
Title: Vice President & Treasurer
Confirmed and Accepted, as of the date
first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Martin J. Cicco
--------------------------------
Name: Martin J. Cicco
Title: Managing Director
FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Linda S. Dawson
---------------------------------
Name:
Title:
36
GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
- ----------------------------
(Goldman, Sachs & Co.)
J.P. MORGAN SECURITIES INC.
By: /s/ Keysha Bailey
---------------------------
Name: Keysha Bailey
Title: Vice President
37
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Operating Partnership in connection with each sale of Notes.
Principal Amount: $________________
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis:
Initial Interest Rate, if any:
Spread and/or Spread Multiplier, if any:
Interest Reset Date(s):
Index Maturity:
Default Rate:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Purchase Price: %, plus accrued interest, if any, from
----- -------
Settlement Date and Time:
Specified Currency:
Exchange Rate Agent:
Authorized Denominations:
Additional/Other Terms:
Also, in connection with the purchase of Notes 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 Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
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:
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. . . . . . . . . . . . . . *
- ------------------
* As agreed to by the Operating Partnership and the applicable Agent at
the time of sale.