DUKE REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
May 13, 1997
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
UBS SECURITIES LLC
299 Park Avenue
New York, New York 10171
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.,
J.P. Morgan Securities Inc. and UBS Securities LLC (each, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the Operating
Partnership of its Medium-Term Notes Due Nine Months or More From Date of Issue
(the "Notes"). The Notes are to be issued pursuant to an indenture, dated as of
September 19, 1995, as amended, 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.$100,000,000 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 the applicable Agent will act as an
agent of the Operating Partnership in soliciting offers for the purchase of
Notes.
Duke Realty Investments, Inc. (the "Company") and the Operating
Partnership have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-04695) 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 Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission 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. Any
registration statement (including any supplement thereto or information which is
deemed part thereof) filed by the Company or the Operating
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Partnership under Rule 462(b) of the 1933 Act Regulations (a "Rule 462(b)
Registration Statement") shall be deemed to be part of the Registration
Statement. Any prospectus (including any amendment or supplement thereto or
information which is deemed part thereof) included in the Rule 462(b)
Registration Statement shall be deemed to be part of the Prospectus.
The term "subsidiary" means a corporation or a partnership a majority
of the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Company or the
Operating Partnership, as the case may be, or by one or more other subsidiaries
of the Company or the Operating Partnership.
SECTION 1. 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 and through or to other dealers or
agents, the Operating Partnership hereby appoints each Agent as an agent of the
Operating Partnership for purpose of soliciting purchases of the Notes from the
Operating Partnership by others. The Operating Partnership may from time to
time offer Notes for sale otherwise than through an Agent; PROVIDED, HOWEVER,
that so long as this Agreement shall be in effect the Operating Partnership
shall not solicit offers to purchase Notes through any agent without amending
this Agreement to appoint such agent an additional Agent hereunder on the same
terms and conditions as provided herein for the Agents and without giving the
Agents prior notice of such appointment. The Operating Partnership may accept
offers to purchase Notes through an agent other than an Agent, PROVIDED that (i)
the Operating Partnership shall not have solicited such offers, (ii) the
Operating Partnership and such agent shall have executed an agreement with
respect to such purchases having terms and conditions (including, without
limitation, commission rates) with respect to such purchases substantially the
same as the terms and conditions that would apply to such purchases under this
Agreement if such agent was an Agent (which may be accomplished by incorporating
by reference in such agreement the terms and conditions of this Agreement) and
(iii) the Operating Partnership shall provide the Agents with a copy of such
agreement promptly following the execution thereof.
(b) SALE OF NOTES. The Operating Partnership shall not sell or
approve the solicitation of offers for the purchase of Notes in excess of the
amount which shall be authorized by the Operating Partnership from time to time
or in excess of the aggregate initial offering price of Notes registered
pursuant to the Registration Statement. The Agents shall have no responsibility
for maintaining records with respect to the aggregate initial offering price of
Notes sold, or of otherwise monitoring the availability of Notes for sale, under
the Registration Statement.
(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.
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(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 offers for the purchase of 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, in whole or in
part, and any such rejection shall not be deemed a breach of its agreement
contained herein. The Operating Partnership may accept or reject any 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 Commission any document 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 or the Operating Partnership
with the Commission, 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 Commission 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 or the Operating Partnership with the Commission, did
not, and at each time thereafter at which any amendment to the Registration
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Statement becomes effective or any Annual Report on Form 10-K is filed by
the Company or the Operating Partnership with the Commission 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. If a Rule 462(b) Registration Statement is required in
connection with the offering and sale of Notes, the Company and the
Operating Partnership have complied or will comply with the requirements of
Rule 111 under the 1933 Act Regulations relating to the payment of filing
fees therefor.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply,
as the case may be, in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission 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 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
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accepted accounting principles applied on a consistent basis throughout the
periods involved; the supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the information required to be stated therein; 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 Commission. The financial
information and data included in the Registration Statement and the
Prospectus present fairly the information included therein and have been
prepared on a basis consistent with that of the financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus and the books and records of the respective entities presented
therein. Pro forma financial information included in or incorporated by
reference in the Registration Statement and the Prospectus has been
prepared in accordance with the applicable requirements of the 1933 Act,
the 1933 Act Regulations and guidelines of the American Institute of
Certified Public Accountants with respect to pro forma financial
information and includes all adjustments necessary to present fairly the
pro forma financial position of the Operating Partnership and the Company,
as applicable, at the respective dates indicated and the results of
operations for the respective periods specified.
(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 is pending
or, to the knowledge of the Operating Partnership, threatened by the
Commission or by the state securities authority of any jurisdiction, and
any request on the part of the Commission for additional information has
been complied with. No order preventing or suspending the use of the
Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the 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, 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
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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 per share (the "Common Stock"), and dividends on the
Company's Preferred Stock, $.01 par value per share, in amounts per share
that are consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock; and (H) with the exception of transactions in
connection with stock option and dividend reinvestment plans, the issuance
of shares of Common Stock upon the exchange of partnership interests in the
Operating Partnership ("Units") and the issuance of Units in connection
with the acquisition of real or personal property, there has been no change
in the capital stock or in the partnership interests, as the case may be,
of the Company, the Operating Partnership or any subsidiary.
(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 corporate or partnership power and authority to
conduct the business in which it is engaged or proposes to engage and to
own, lease and operate its properties as described in the Prospectus and to
enter into and perform its obligations under this Agreement 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 corporate or partnership power and
authority to conduct the business in which it is engaged or proposes to
engage and to own, lease and operate its properties as described in the
Prospectus.
(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 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).
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(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 dividend reinvestment plans, and stock option and other employee
benefit plans, there are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, or agreements
or understandings with respect to the sale or issuance of, any shares of
capital stock of or partnership or other equity interest in the Company,
the Operating Partnership or any subsidiary except for the shares of Common
Stock which may be issued in exchange for Units.
(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 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
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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) CONTRACTS. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and/or filed as required
and the descriptions thereof or references thereto are correct in all
material respects and no material defaults exist in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any such contract or document.
(xvi) 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.
(xvii) 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.
(xviii) 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.
(xix) 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.
(xx) 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
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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.
(xxi) 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.
(xxii) LEGAL PROCEEDINGS. 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.
(xxiii) 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
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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.
(xxiv) 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.
(xxv) 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.
(xxvi) 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.
(xxvii) 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.
(xxviii) 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.
(xxix) RATINGS. The Notes are rated Baa2 by Moody's Investors
Service, Inc., BBB by Standard & Poor's Ratings Service, and BBB by Duff &
Phelps Credit Rating, or such other rating as to which the Operating
Partnership shall have most recently notified the Agents pursuant to
Section 4(a)(vi) hereof.
(xxx) PROPERTIES AND ASSETS. (A) With respect to the
Properties, the Company or the Operating Partnership and the Property
Partnerships have good and marketable title to all items of real property
(and improvements thereon), leasehold interests and general and limited
partnership interests, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, except such as are
(i) described in the Prospectus or the Company's Annual Report on Form 10-K
for the most recent fiscal year ended, (ii) referred to in the title
policies of such Properties, (iii) serving as security for loans
11
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.
(xxxi) 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.
(xxxii) INSURANCE. Each of the Company, the Operating
Partnership and their respective subsidiaries is insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; and none of the Company, the Operating Partnership and their
respective subsidiaries has any reason to believe that it or any of its
subsidiaries will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its businesses at a cost that
would not have a Material Adverse Effect, except as described in or
contemplated by the Registration Statement and the Prospectus.
12
(xxxiii) PROHIBITED ACTION. The Company and the Operating
Partnership have not taken and will not take, directly or indirectly, any
action prohibited by Regulation M under the 1934 Act.
(xxxiv) ERISA. The assets of the Company do not constitute
"plan assets" under the Employee Retirement Income Security Act of 1974, as
amended.
(xxxv) 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, (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 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,
13
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.
(xxxvi) 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.
(xxxvii) 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
14
payable, except, in all cases, for any such tax, assessment, fine or
penalty that is being contested in good faith.
(xxxviii) 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 Operating Partnership
herein contained and shall be subject to the terms and conditions herein set
forth. Unless the context otherwise requires, references herein to "this
Agreement" shall include the 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 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. If the Operating Partnership and two or more Agents enter into an
agreement pursuant to which such Agents agree to purchase Notes from the
Operating Partnership as principal and one or more of such Agents shall fail at
the Settlement Date to purchase the Notes which it or they are obligated to
purchase (the "Defaulted Notes"), then the nondefaulting Agents shall have the
right, within 24 hours thereafter, to make arrangements for one of them or one
or more other Agents or underwriters to purchase all, but not less than all, of
the Defaulted Notes in such amounts as may be agreed upon and upon the terms
herein set forth; PROVIDED, HOWEVER, that if such arrangements shall not have
been completed within such 24-hour period, then:
15
(i) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so purchased by
all of such Agents on the Settlement Date, the nondefaulting Agents shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all nondefaulting
Agents; or
(ii) if the aggregate principal amount of Defaulted Notes exceeds
10% of the aggregate principal amount of Notes to be so purchased by all of
such Agents on the Settlement Date, such agreement shall terminate without
liability on the part of any nondefaulting Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default
which does not result in a termination of such agreement, either the
nondefaulting Agents or the Operating Partnership shall have the right to
postpone the Settlement Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
(b) SOLICITATIONS AS AGENT. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Operating Partnership and an Agent, such Agent, as
an agent of the Operating Partnership, will use its reasonable efforts to
solicit offers 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 offers for the purchase of 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 offers for the
purchase of Notes from the Operating Partnership until such time as the
Operating Partnership has advised such Agent that such solicitation may be
resumed.
The Operating Partnership agrees to pay each Agent a commission, in
the form of a discount, equal to the applicable percentage of the principal
amount of each Note sold by the Operating Partnership as a result of a
solicitation made by such Agent as 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 by the Operating
Partnership in connection with each sale of Notes. Except as otherwise
specified in the applicable Pricing Supplement, the Notes will be issued in
denominations of U.S. $1,000 or any larger amount that is an integral multiple
of U.S. $1,000. Administrative procedures with respect to the issuance and sale
of Notes shall be agreed upon from time to time by the Operating Partnership,
the Agents
16
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 and agrees 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 Commission for filing of any amendment or supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act (other than any
amendment, supplement or document relating solely to securities other than the
Notes), (iii) the receipt of any comments from the Commission with respect to
the Registration Statement or the Prospectus, (iv) any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, (v) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose and (vi) any
change in the rating assigned by any nationally recognized statistical rating
organization to any debt securities (including the Notes) of the Operating
Partnership, or the public announcement by any nationally recognized statistical
rating organization that it has under surveillance or review, with possible
negative implications, its rating of any such debt securities, or the withdrawal
by any nationally recognized statistical rating organization of its rating of
such debt securities. The Operating Partnership will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) 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 (including the
filing of a Rule 462(b) 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
17
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. The Operating
Partnership will deliver such Pricing Supplement no later than 11:00 a.m., New
York City time, on the business day following the date of the Operating
Partnership's acceptance of the offer for the purchase of such Notes and will
file such Pricing Supplement pursuant to Rule 424(b)(3) under the 1933 Act not
later than the close of business of the Commission on the fifth business day
after the date on which such Pricing Supplement is first used.
(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 shall exist as a
result of which it is necessary, in the opinion of counsel for the Agents or
counsel for the Operating Partnership, to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to 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 the Registration
Statement in order that the Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or 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 prepare and file such amendment to the
Registration Statement or supplement to the Prospectus, subject to Section 4(b)
hereof, 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
and the Operating Partnership will furnish to the Agents, without charge, such
number of copies of such amendment or supplement as the Agents may reasonably
request. In addition, the Operating Partnership will comply with the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to
permit the completion of the distribution of each offering of Notes.
(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
18
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 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 Commission 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
19
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 offers for the purchase of Notes in their
capacity as agents pursuant to a request from the Operating Partnership and (ii)
no Agent shall then hold any Notes purchased as principal pursuant hereto, until
the time the Operating Partnership shall determine that solicitation of offers
for the purchase of Notes should be resumed or an Agent shall subsequently
purchase Notes from the Operating Partnership as principal.
(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.
SECTION 5. CONDITIONS OF AGENTS' OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to
solicit offers for the purchase of Notes as an agent of the Operating
Partnership, and the obligations of any purchasers of 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
20
effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of
the Company or any Property.
(ii) The Operating Partnership is a limited
partnership duly organized and existing under and by virtue
of the laws of the State of Indiana. The Operating
Partnership has partnership power and authority to conduct
the business in which it is engaged and proposes to engage
and to own, lease and operate its properties as described in
the Prospectus and to enter into and perform its obligations
under this Agreement and the other agreements to which it is
a party. The Operating Partnership is duly qualified or
registered as a foreign partnership and is in good standing
in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure to so qualify or register would not have a
material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or
business prospects of the Operating Partnership or any
Property or Related Business.
(iii) Each of the Company's and the Operating
Partnership's subsidiaries (other than the Property
Partnerships) has been duly formed, and is validly existing
and in good standing as a corporation or partnership under
the laws of its jurisdiction of organization, with
partnership or corporate power and authority to conduct the
business in which it is engaged or proposes to engage and to
own, lease and operate its properties as described in the
Prospectus.
(iv) Each of the Company's and the Operating
Partnership's subsidiaries and the Property Partnerships is
duly qualified or registered as a foreign partnership or
corporation in good standing and authorized to do business
in each jurisdiction in which such qualification is required
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so
qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Duke Group
considered as a single enterprise.
(v) 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 all such shares and partnership interests, as the case
may be, that are owned by the Company, the Operating
Partnership or a subsidiary,
21
are in each case owned 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, 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.
22
(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.
(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 any Property or assets of the Duke Group
pursuant to any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership
agreement or other instrument or agreement known to such
counsel, after due inquiry, to which the 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.
23
(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 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
24
under the 1933 Act, at the time they were filed with the
Commission, complied and will comply as to form in all
material respects with the requirements of the 1934 Act and
the 1934 Act Regulations.
(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 Commission.
(xxi) At the time the Registration Statement
became effective and at the date hereof, the Registration
Statement and the Prospectus, excluding the documents
incorporated by reference therein, the financial statements
and supporting schedules included therein, and 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.
(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,
indentures, mortgages, loan agreements, notes, leases or
other instruments known to such counsel which are required
to be described or referred to in the Registration Statement
or to be filed as exhibits thereto by the 1933 Act
Regulations other than those described or referred to
therein or filed as exhibits thereto, the descriptions
thereof or references thereto are correct, and, to the best
knowledge of such counsel, no material default exists in the
due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to or filed.
25
(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 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
(excluding the financial statements and financial schedules included or
incorporated by reference therein or the Statement of Eligibility, as to
which such counsel need express no belief), at the time it became effective
(or, if an amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the Operating Partnership with the Commission
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 (excluding the
financial statements and financial schedules included or incorporated by
reference therein or the Statement of Eligibility, as to which such counsel
need express no belief), at the 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
26
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
Operating Partnership contained in Section 2 hereof are true and correct with
the same force and effect as though expressly made at and as of the date of such
certificate, (iii) the Operating Partnership has 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, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or, to the best
of such officer's knowledge, are threatened by the Commission. 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 and the 1934 Act
and the 1934 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
27
financial statements of the Company and the Operating Partnership included
in the Registration Statement, or incorporated by reference therein, do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and the 1934 Act
and the 1934 Act Regulations, or material modifications are required for
them to be presented in conformity with generally accepted accounting
principles, (B) the operating data and balance sheet data 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 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.
28
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.
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 Commission any document
29
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 Commission 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 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 Commission 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 Commission 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
30
of securities other than the Notes), (ii) there is filed with the Commission 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 Commission,
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 (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 or Section
20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information filed with
the Commission pursuant to Rule 430A of the 1933 Act Regulations (the "Rule
430A Information and the Rule 434 Information") deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of an untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
8(d) below) any such settlement is effected with the written consent of the
Operating Partnership; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Agent),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based
31
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 (1) or (2) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Agent expressly for use in the Registration Statement (or any
amendment thereto), including the 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(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 or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Operating Partnership by such Agent expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) GENERAL. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to Section 8(a) above, counsel to the
indemnified parties shall be selected by the applicable Agent(s), and, in the
case of parties indemnified pursuant to Section 8(b) above, counsel to the
indemnified parties shall be selected by the Operating Partnership. An
indemnifying party may participate at its own expense in the defense of any such
action; PROVIDED, HOWEVER, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under
32
this Section 8 or Section 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel in accordance
with the provisions hereof, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 8(a)(2) effected
without its written consent if (i) such settlement is entered into in good faith
by the indemnified party more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement.
33
SECTION 9. CONTRIBUTION.
If the indemnification provided for in Section 8 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Operating Partnership, on the one
hand, and the applicable Agent(s), on the other hand, from the offering of the
Notes that were the subject of the claim for indemnification, or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Operating Partnership,
on the one hand, and the applicable Agent(s), on the other hand, in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Operating Partnership, on the
one hand, and the applicable Agent(s), on the other hand, in connection with the
offering of the Notes that were the subject of the claim for indemnification
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received by
the Operating Partnership and the total discount or commission received by each
applicable Agent, as the case may be, bears to the aggregate initial offering
price of such Notes.
The relative fault of the Operating Partnership, on the one hand,
and the applicable Agent(s), on the other hand, shall be determined by reference
to, among other things, whether any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Operating Partnership or by the applicable
Agent(s) and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Agents agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the applicable Agent(s) were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 9.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 9 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
34
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. In
addition, in connection with an offering of Notes purchased from the Operating
Partnership by two or more Agents as principal, the respective obligations of
such Agents to contribute pursuant to this Section 9 are several, and not joint,
in proportion to the aggregate principal amount of Notes that each such Agent
has agreed to purchase from the Operating Partnership.
For purposes of this Section 9, each person, if any, who controls
an Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as such Agent, and each
director of the Company, each officer of the Company who signed the Registration
Statement (or signs any amendment thereto), and each person, if any, who
controls the Operating Partnership within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Operating Partnership.
SECTION 10. PAYMENT OF EXPENSES.
The Operating Partnership will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation 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;
(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;
35
(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 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 Commission or a
36
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 Commission 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 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.
Telecopy No.: (317) 574-3522
37
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
J.P. Morgan Securities Inc.
60 Wall Street
3d Floor
New York, New York 10260
Attention: MTN Trading Desk
Telecopy No.: (212) 648-5909
UBS Securities LLC
299 Park Avenue
New York, New York 10171
Attention: Richard Messina
Telecopy No.: (212) 821-3667
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 without regard to conflict of law principles. Any suit, action or
proceeding brought by the Operating Partnership against any Agent
38
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 their respective successors, and said controlling persons, and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
SECTION 16. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only
and shall not affect the construction hereof.
SECTION 17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
39
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 and Treasurer
Confirmed and Accepted, as of the date
first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
-----------------------------------
Name: Scott G. Primrose
Title: Authorized Signatory
FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Evonne W. Taylor
-----------------------------------
Name: Evonne W. Taylor
Title: Vice President
40
GOLDMAN, SACHS & CO.
/s/ Goldman Sachs & Co.
- ---------------------------------
(Goldman, Sachs & Co.)
J.P. MORGAN SECURITIES INC.
By: /s/ Keysha Bailey
-----------------------------------
Name: Keysha Bailey
Title:
UBS SECURITIES LLC
By: /s/ Richard Messina
-----------------------------------
Name: Richard Messina
Title: Vice President
41
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.