DUKE-WEEKS REALTY CORPORATION
(AN INDIANA CORPORATION)
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
Common Stock, Preferred Stock, Depositary Shares
and Debt Securities
UNDERWRITING AGREEMENT
November 10, 1999
SALOMON SMITH BARNEY INC.
c/o Salomon Smith Barney
388 Greenwich Street
32nd Floor
New York, New York 10013
Ladies and Gentlemen:
Duke-Weeks Realty Corporation (the "Company," including its
predecessor, Duke Realty Investments, Inc.) may from time to time offer in one
or more series (i) shares of Common Stock, $.01 par value (the "Common Stock"),
(ii) shares of preferred stock, $.01 par value (the "Preferred Stock") and (iii)
shares of Preferred Stock represented by depositary shares (the "Depositary
Shares"), with an aggregate public offering price of up to $250,000,000 (or its
equivalent in another currency based on the exchange rate at the time of sale).
Duke-Weeks Realty Limited Partnership (the "Operating Partnership," including
its predecessor, Duke Realty Limited Partnership) may from time to time offer in
one or more series unsecured non-convertible investment grade debt securities
(the "Debt Securities"), with an aggregate public offering price of up to
$175,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). The Common Stock, Preferred Stock, Depositary Shares and
Debt Securities (collectively, the "Securities") may be offered, separately or
together, in separate series, in amounts, at prices and on terms to be set forth
in one or more Prospectus Supplements as hereinafter defined. The Debt
Securities will be issued under one or more indentures, as amended or
supplemented (each, an "Indenture"), between the Operating Partnership and a
trustee (a "Trustee"). Each series of Debt Securities may vary, as applicable,
as to aggregate principal amount, maturity date, interest rate or formula and
timing of payments thereof, redemption or repayment provisions, and any other
variable terms which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time. As used herein, "the Representatives,"
unless the context otherwise requires, shall mean the parties to whom this
Agreement is addressed together with the other parties, if any, identified in
the applicable Terms Agreement (as hereinafter defined) as additional
co-managers with respect to Underwritten Securities (as hereinafter defined)
purchased pursuant thereto.
Whenever the Company or the Operating Partnership determines to make an
offering of Securities through the Representatives or through an underwriting
syndicate managed by the Representatives, the Company or the Operating
Partnership, as the case may be, will enter into an agreement (the "Terms
Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, the Representatives
and such other underwriters, if any, selected by the
Representatives as have authorized the Representatives to enter into such Terms
Agreement on their behalf (the "Underwriters," which term shall include the
Representatives whether acting alone in the sale of the Underwritten Securities
or as a member of an underwriting syndicate and any Underwriter substituted
pursuant to Section 10 hereof). The Terms Agreement relating to the offering of
Underwritten Securities shall specify the amount of Underwritten Securities to
be initially issued (the "Initial Securities"), the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof), the amount of Initial Securities which each such Underwriter
severally agrees to purchase, the names of such of the Representatives or such
other Underwriters acting as co-managers, if any, in connection with such
offering, the price at which the Initial Securities are to be purchased by the
Underwriters from the Company or the Operating Partnership, as the case may be,
the initial public offering price, if any, of the Initial Securities, the form,
time, date and place of delivery and payment, any delayed delivery arrangements
and any other variable terms of the Initial Securities (including, but not
limited to, current ratings, designations, liquidation preferences, voting and
other rights, denominations, interest rates or formulas, interest payment dates,
maturity dates and redemption or repayment provisions applicable to the Initial
Securities). In addition, each Terms Agreement shall specify whether the
Underwriters will be granted an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the aggregate amount of
Underwritten Securities subject to such option (the "Option Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Securities and all or any portion of the Option Securities agreed to be
purchased by the Underwriters as provided herein, if any. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the form
of an exchange of any standard form of written telecommunication between the
Representatives and the Company or the Operating Partnership, as the case may
be. Each offering of Underwritten Securities through the Representatives or
through an underwriting syndicate managed by the Representatives will be
governed by this Agreement, as supplemented by the applicable Terms Agreement.
The Company and the Operating Partnership have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 333-04695) for the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 430A or Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company and the Operating Partnership have filed such amendments thereto
as may have been required prior to the execution of the applicable Terms
Agreement. Such registration statement (as amended, if applicable) has been
declared effective by the Commission and an Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement and the prospectus constituting a part thereof (including in each case
the information, if any, deemed to be part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations), together with each prospectus supplement relating to
the offering of Underwritten Securities (the "Prospectus") pursuant to Rule 415
of the 1933 Act Regulations (each, a "Prospectus Supplement"), including all
documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act") or otherwise, are collectively referred to herein as
the "Registration Statement" and the "Prospectus," respectively; provided that
if any revised prospectus shall be provided to the Representatives by the
Company or the Operating Partnership for use in connection with the offering of
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Company or the Operating Partnership
pursuant to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus"
shall refer to each such revised prospectus from and after the time it is first
provided to the Underwriters for such use; provided, further, that a Prospectus
Supplement shall be deemed to have supplemented the Prospectus only with respect
to the offering of Underwritten Securities to which it relates. Any registration
statement (including any supplement thereto or information which is deemed part
thereof) filed by the Company or the Operating Partnership under Rule 462(b) of
the 1933 Act
2
Regulations (a "Rule 462(b) Registration Statement") shall be deemed to be part
of the Registration Statement. Any prospectus (including any amendment or
supplement thereto or information which is deemed part thereof) included in the
Rule 462(b) Registration Statement and any term sheet as contemplated by Rule
434 of the 1933 Act Regulations (a "Term Sheet") shall be deemed to be part of
the Prospectus. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
The term "subsidiary" means a corporation or a partnership a majority
of the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Company or the
Operating Partnership, as the case may be, or by one or more other subsidiaries
of the Company or the Operating Partnership.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
OPERATING PARTNERSHIP.
(a) The Company and the Operating Partnership represent and
warrant, jointly and severally, to the Representatives, as of the date hereof,
and to the Representatives and each other Underwriter named in the applicable
Terms Agreement, as of the date thereof, as of the Closing Time (as defined
below) and, if applicable, as of each Date of Delivery (as defined below) (in
each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective, complied, and as
of each Representation Date will comply, in all material respects with
the requirements of the 1933 Act, the 1933 Act Regulations and the
1939 Act and the rules and regulations thereunder (the "1939 Act
Regulations"). The Registration Statement, at the time the
Registration Statement became effective, did not, and as of each
Representation Date, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
The Prospectus, as of the date hereof does not, and as of each
Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to you by the Company or the
Operating Partnership for use in connection with an offering of
Securities which differs from the Prospectus on file at the Commission
at the time the Registration Statement becomes effective, in which
case at the time it is first provided to you for such use), Closing
Time and Date of Delivery, if any, will not, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company or the Operating Partnership in
writing by any Underwriter through the Representatives expressly for
use in the Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility on Form T-1 under the 1939 Act (the "Statement of
Eligibility") of a Trustee under an Indenture. If a Rule 462(b)
Registration Statement is required in connection with the offering and
sale of the Securities, the Company and the Operating Partnership have
complied or will comply with the requirements of Rule 111 under the
1933 Act Regulations relating to the payment of filing fees therefor.
3
(ii) Each preliminary prospectus, Prospectus,
preliminary prospectus supplement and Prospectus Supplement filed as
part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied or will comply when so filed in all material respects
with the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission under the
1934 Act (the "1934 Act Regulations"), and, when read together with
the other information in the Prospectus, at the time the Registration
Statement became effective and as of the applicable Representation
Date or during the period specified in Section 3(f), did not and will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(iv) KPMG LLP, the accounting firm that audited the
financial statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement and
Prospectus, are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(v) The financial statements included in, or
incorporated by reference into, the Registration Statement and the
Prospectus, together with the related schedules and notes, present
fairly the financial position of the respective entity or entities
presented therein at the respective dates indicated and the results of
their operations for the respective periods specified. Except as
otherwise stated in the Registration Statement and Prospectus, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved. The supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein. The Company's ratios of earnings to fixed charges (actual
and, if any, pro forma) included in the Prospectus under the caption
"Selected Consolidated Financial Data" and in Exhibit 12 to the
Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission. The financial information
and data included in the Registration Statement and the Prospectus
present fairly the information included therein and have been prepared
on a basis consistent with that of the financial statements included
or incorporated by reference in the Registration Statement and the
Prospectus and the books and records of the respective entities
presented therein. Pro forma financial information included in or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the 1933 Act, the 1933 Act Regulations and guidelines
of the American Institute of Certified Public Accountants with respect
to pro forma financial information and includes all adjustments
necessary to present fairly the pro forma financial position of the
Operating Partnership and the Company, as applicable, at the
respective dates indicated and the results of operations for the
respective periods specified.
(vi) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or is pending or, to
the knowledge of the Company or the Operating Partnership, threatened
by the Commission or by the state securities authority of any
jurisdiction, and any request on the part of the Commission for
additional information has been complied with. No order preventing or
4
suspending the use of the Prospectus has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the
Company or the Operating Partnership, threatened by the Commission or
by the state securities authority of any jurisdiction.
(vii) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
assets, business affairs or business prospects of the Company, the
Operating Partnership and any of their respective subsidiaries,
whether or not arising in the ordinary course of business; (B) there
has been no adverse change, material to the Duke Group (as hereinafter
defined) as a whole, in the condition, financial or otherwise, or in
the earnings, assets, business affairs or business prospects of any of
the real properties owned, directly or indirectly, by the Company, the
Operating Partnership or any subsidiary (the "Properties") or any
entity wholly or partially owned by the Company, the Operating
Partnership or any subsidiary which owns any Property (a "Property
Partnership") (the Company, the Operating Partnership, the
subsidiaries and the Property Partnerships are hereinafter jointly
referred to as the "Duke Group"), whether or not arising in the
ordinary course of business; (C) no material casualty loss or material
condemnation or other material adverse event with respect to any
Property has occurred; (D) there have been no transactions or
acquisitions entered into by the Duke Group, other than those arising
in the ordinary course of business, which are material with respect to
the Duke Group as a whole; (E) neither the Company, the Operating
Partnership nor any of their respective subsidiaries has incurred any
obligation or liability, direct, contingent or otherwise which is
material to the Duke Group as a whole; (F) there has been no material
change in the short-term debt or long-term debt of the Duke Group as a
whole; (G) except for regular quarterly dividends on the Common Stock
and dividends on the Preferred Stock in amounts per share that are
consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock; and (H) with the exception of transactions
in connection with stock option and dividend reinvestment plans, the
issuance of shares of Common Stock upon the exchange of partnership
interests in the Operating Partnership ("Units") and the issuance of
Units in connection with the acquisition of real or personal property,
there has been no change in the capital stock or in the partnership
interests, as the case may be, of the Company, the Operating
Partnership or any subsidiary.
(viii) Each of the Company and the Operating Partnership
has been duly formed, and is validly existing and in good standing as
a corporation or partnership under the laws of its jurisdiction of
organization, with corporate or partnership power and authority to
conduct the business in which it is engaged or proposes to engage and
to own, lease and operate its properties as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company's and the Operating
Partnership's subsidiaries has been duly formed, and is validly
existing and in good standing as a corporation or partnership under
the laws of its jurisdiction of organization, with corporate or
partnership power and authority to conduct the business in which it is
engaged or proposes to engage and to own, lease and operate its
properties as described in the Prospectus.
(x) Each of the Company, the Operating Partnership,
their respective subsidiaries and the Property Partnerships is duly
qualified or registered as a foreign partnership or corporation in
good standing and authorized to do business in each jurisdiction in
which such qualification is required whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the
5
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Duke Group considered as a single
enterprise (a "Material Adverse Effect").
(xi) If the applicable Underwritten Securities are
issued by the Company, and if the Prospectus contains the caption
"Capitalization," the authorized, issued and outstanding shares of
capital stock of the Company as of the date specified therein is as
set forth in the column entitled "Historical" under such caption. All
the issued and outstanding shares of capital stock of the Company have
been duly authorized and are validly issued, fully paid and
non-assessable and have been offered and sold in compliance with all
applicable laws (including, without limitation, federal, state or
foreign securities laws) and none of such shares of capital stock was
issued in violation of preemptive or other similar rights of any
security holder of the Company.
(xii) If the applicable Underwritten Securities are
issued by the Operating Partnership, and if the Prospectus contains
the caption "Capitalization," the partner's equity of the Operating
Partnership is as set forth in the column entitled "Historical" under
such caption. All the issued and outstanding Units have been duly
authorized and are validly issued, fully paid and non-assessable,
except as provided under Indiana Code Section 23-16-7-8, and have been
offered and sold or exchanged in compliance with all applicable laws
(including, without limitation, federal, state or foreign securities
laws).
(xiii) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be, of each
subsidiary have been validly issued and fully paid and, other than the
Property Partnerships, Duke-Weeks Realty Services Limited Partnership
(the "Services Partnership") and Duke-Weeks 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
Duke Management, Inc. ("DMI") 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, 91.16% by the Operating Partnership and 4.8% by DMI.
(xiv) Except for transactions described in the
Prospectus and transactions in connection with dividend reinvestment
plans, stock option and other employee benefit plans, a Rights
Agreement, dated as of July 23, 1998, between the Company and American
Stock Transfer & Trust Company (the "Rights Agreement"), the Company's
outstanding 7.375% Series D Convertible Cumulative Redeemable
Preferred Stock, the Operating Partnership's 7.375% Series D
Convertible Cumulative Redeemable Preferred Units, the Operating
Partnership's Series H Preferred Units and warrants dated as of July
2, 1999 and registered as of the date hereof to Codina Group, Inc.,
Armando Codina and various other individuals, 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.
6
(xv) Each of the Property Partnerships has been duly
formed as a partnership or a limited liability company, as the case
may be, and is validly existing and in good standing as a partnership
or limited liability company under the laws of its jurisdiction of
organization and, if formed under the laws of a jurisdiction other
than the State of Indiana, in good standing under the laws of such
jurisdiction; each of the Property Partnerships has the requisite
power and authority to own, lease and operate its properties, to
conduct the business in which it is engaged and to enter into and
perform its respective obligations under the agreements, to which it
is a party. Each of the partnership or operating agreements, as the
case may be, of the Property Partnerships is in full force and effect.
(xvi) The applicable Underwritten Securities, if such
Underwritten Securities are either Common Stock, Preferred Stock or
Depositary Shares, have been duly authorized by the Company for
issuance and sale to the Underwriters pursuant to this Agreement, and,
when issued and delivered by the Company pursuant to this Agreement
and the applicable Terms Agreement against payment of the
consideration set forth in the Terms Agreement or any Delayed Delivery
Contract (as defined in Section 2 hereof), will be validly issued,
fully paid and non-assessable. Upon payment of the purchase price and
delivery of such Underwritten Securities in accordance herewith, each
of the Underwriters will receive good, valid and marketable title to
such Underwritten Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and
equities. The terms of such applicable Underwritten Securities conform
to all statements and descriptions related thereto contained in the
Prospectus. The form of stock or depositary certificate to be used to
evidence the applicable Underwritten Securities will be in due and
proper form and will comply with all applicable legal requirements.
The issuance of such applicable Underwritten Securities is not subject
to any preemptive or other similar rights.
(xvii) The applicable Underwritten Securities, if such
Underwritten Securities are Debt Securities, are in the form
contemplated by the Indenture, have been duly authorized by the
Operating Partnership for issuance and sale to the Underwriters
pursuant to this Agreement and, when executed, authenticated, issued
and delivered in the manner provided for in this Agreement, any Terms
Agreement and the applicable Indenture, against payment of the
consideration therefor specified in the applicable Terms Agreement or
any Delayed Delivery Contract (as defined in Section 2 hereof), such
Debt Securities will constitute valid and legally binding obligations
of the Operating Partnership, entitled to the benefits of the
Indenture and such Debt Securities will be enforceable against the
Operating Partnership in accordance with their terms. Upon payment of
the purchase price and delivery of such Underwritten Securities in
accordance herewith, each of the Underwriters will receive good, valid
and marketable title to such Underwritten Securities, free and clear
of all security interests, mortgages, pledges, liens, encumbrances,
claims and equities. The terms of such applicable Underwritten
Securities conform to all statements and descriptions related thereto
in the Prospectus. Such Underwritten Securities rank and will rank on
a parity with all unsecured indebtedness (other than subordinated
indebtedness) of the Operating Partnership that is outstanding on the
Representation Date or that may be incurred thereafter, and senior to
all subordinated indebtedness of the Operating Partnership that is
outstanding on the Representation Date or that may be incurred
thereafter, except that such Underwritten Securities will be
effectively subordinated to the prior claims of each secured mortgage
lender to any specific Property which secures such lender's mortgage.
(xviii) If applicable, the Common Stock issuable upon
conversion of any of the Preferred Stock (including Preferred Stock
represented by Depositary Shares) will have been duly and validly
authorized and reserved for issuance upon such conversion or exercise
by all necessary action and such stock, when issued upon such
conversion or exercise, will be duly and
7
validly issued, fully paid and non-assessable, and the issuance of
such stock upon such conversion or exercise will not be subject to
preemptive or other similar rights; the Common Stock so issuable
conforms in all material respects to all statements relating thereto
contained in the Prospectus.
(xix) The Underwritten Securities being sold pursuant to
the applicable Terms Agreement will conform in all material respects
to the statements relating thereto contained in the Prospectus and
will be in substantially the form filed or incorporated by reference,
as the case may be, as an exhibit to the Registration Statement.
(xx) There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and/or filed as
required and the descriptions thereof or references thereto are
correct in all material respects and no material defaults exist in the
due performance or observance of any material obligation, agreement,
covenant or condition contained in any such contract or document.
(xxi) None of the entities comprising the Duke Group is
in violation of its charter, by-laws, certificate of limited
partnership or partnership agreement, as the case may be, or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which such entity
is a party or by which such entity may be bound, or to which any of
its property or assets is subject, which default separately or in the
aggregate would have a Material Adverse Effect.
(xxii) (A) This Agreement has been duly and validly
authorized, executed and delivered by the Company and the Operating
Partnership, and, assuming due authorization, execution and delivery
by the Representatives, constitutes a valid and binding obligation of
the Company and the Operating Partnership, enforceable in accordance
with its terms, and (B) at the Representation Date, the Terms
Agreement and the Delayed Delivery Contracts (as defined in Section 2
hereof), if any, will have been duly and validly authorized, executed
and delivered by the Company and the Operating Partnership, as the
case may be, and, assuming due authorization, execution and delivery
by the Representatives will be valid and binding agreements,
enforceable in accordance with its or their terms.
(xxiii) If applicable, the Indenture (A) has been duly
qualified under the 1939 Act, has been duly and validly authorized,
executed and delivered by the Operating Partnership, and when executed
and delivered by the Trustee, will constitute a valid and binding
obligation of the Operating Partnership, enforceable in accordance
with its terms, and (B) conforms in all material respects to the
description thereof in the Prospectus.
(xxiv) Each of the partnership agreements to which any of
the Company, the Operating Partnership or their respective
subsidiaries is a party has been duly authorized, executed and
delivered by such party and constitutes a valid and binding obligation
thereof, enforceable in accordance with its terms.
(xxv) The execution and delivery of this Agreement, the
applicable Terms Agreement, any Indenture and any deposit agreement
and the issuance of the Underwritten Securities, the performance of
the obligations set forth herein or therein, and the consummation of
the transactions contemplated hereby and thereby or in the Prospectus
by the Company and the Operating Partnership, will not conflict with
or constitute a breach or violation by the Company or
8
the Operating Partnership of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
Property or assets of the Duke Group pursuant to any contract,
indenture, mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement to which the
Company, the Operating Partnership or any subsidiary is a party or by
which they, either of them, any of their respective properties or
other assets or any Property may be bound or subject which is material
to the Duke Group as a whole; nor will such action conflict with or
constitute a breach or violation by the Company or the Operating
Partnership of, or default under, (A) the charter, by-laws,
certificate of limited partnership or partnership agreement, as the
case may be, of the Company, the Operating Partnership or any
subsidiary or (B) to the extent it is material, any applicable law,
rule, order, administrative regulation or administrative or court
decree.
(xxvi) No labor dispute with the employees of the Duke
Group exists or, to the knowledge of the Company or the Operating
Partnership, is imminent; and neither the Company nor the Operating
Partnership is aware of any existing or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or
contractors which might be expected to have a Material Adverse Effect.
(xxvii) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company or the Operating
Partnership, threatened against or affecting any entity belonging to
the Duke Group, any Properties or any officer or director of the
Company, which is material to the Duke Group as a whole and is
required to be disclosed in the Registration Statement or the
Prospectus (other than as disclosed therein), or that, if determined
adversely to any entity belonging to the Duke Group or any Property,
or any such officer or director, will or could reasonably be expected
to result in any Material Adverse Effect, or which might materially
and adversely affect the Properties or assets of the Duke Group or
which might materially and adversely affect the consummation of this
Agreement, the applicable Terms Agreement, the Indenture, if any, or
the transactions contemplated herein and therein. There are no pending
legal or governmental proceedings to which any entity belonging to the
Duke Group is a party or of which they or any of their respective
properties or assets or any Property or Property Partnership is the
subject, including ordinary routine litigation incidental to the
business, that are, considered in the aggregate, material to the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Duke Group as a whole. There are
no statutes or contracts or documents of the entities comprising the
Duke Group which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(xxviii) No authorization, approval, consent or order of
any court or governmental authority or agency is required that has not
been obtained in connection with the consummation by the Company, the
Operating Partnership or both, as the case may be, of the transactions
contemplated by this Agreement, the applicable Terms Agreement, or the
applicable Indenture, if any, except such as may be required under the
1933 Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act
Regulations or state or foreign securities laws or real estate
syndication laws or such as have been received prior to the date of
this Agreement.
(xxix) At all times since February 13, 1986, the Company
has been, and upon the sale of the applicable Underwritten Securities,
the Company will continue to be, organized and operated in conformity
with the requirements for qualification as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the
"Code"), and its proposed method of
9
operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(xxx) None of the entities comprising the Duke Group is
required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), or is or will become a "holding company" or
a "subsidiary company" of a "registered holding company" as defined in
the Public Utility Holding Company Act of 1935, as amended.
(xxxi) None of the entities comprising the Duke Group is
required to own or possess any trademarks, service marks, trade names
or copyrights not now lawfully owned, possessed or licensed in order
to conduct the business now operated by such entity.
(xxxii) Each entity belonging to the Duke Group possesses
such material certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by it, or proposed to
be conducted by it, and none of the entities comprising the Duke Group
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(xxxiii) Except as disclosed in the Prospectus and except
for persons who received Units in connection with transactions with
the Operating Partnership, there are no persons with registration or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company or the
Operating Partnership under the 1933 Act.
(xxxiv) The Common Stock will be listed on the New York
Stock Exchange on the applicable Representation Date and at the
applicable Closing Time. Unless otherwise agreed upon with reference
to Preferred Stock, as of the applicable Representation Date the
Preferred Stock will have been approved for listing on the New York
Stock Exchange upon notice of issuance.
(xxxv) The Debt Securities will have an investment grade
rating from one or more nationally recognized statistical rating
organizations at the Representation Date and at the applicable Closing
Time.
(xxxvi) (A) With respect to the Properties, the Company or
the Operating Partnership and the Property Partnerships have good and
marketable title to all items of real property (and improvements
thereon), leasehold interests and general and limited partnership
interests, in each case free and clear of all liens, encumbrances,
claims, security interests and defects, except such as are (i)
described in the Prospectus or the Company's Annual Report on Form
10-K for the most recently ended fiscal year, (ii) referred to in the
title policies of such Properties, (iii) serving as security for loans
described in the Prospectus, and (iv) nonmaterial and placed on a
Property in connection with such Property's development; (B) all
contracts of the Operating Partnership and any subsidiary to provide
leasing, property management and construction management services,
general contractor services for third parties, and real estate
development, construction and miscellaneous tenant services businesses
(the "Related Businesses"), are enforceable by and in the name of the
Operating Partnership and the applicable subsidiary, as the case may
be; (C) all liens, charges, encumbrances, claims, or restrictions on
or affecting any of the Properties or Related Businesses and the
assets of the entities comprising the Duke Group which are required to
be disclosed in the Prospectus are disclosed therein;
10
(D) neither the Operating Partnership, any Property Partnership nor
any tenant of any of the Properties is in default under any of the
ground leases (as lessee) or space leases (as lessor) relating to, or
any of the mortgages or other security documents or other agreements
encumbering or otherwise recorded against, the Properties, and none of
the entities comprising the Duke Group knows of any event which, but
for the passage of time or the giving of notice, or both, would
constitute a default under any of such documents or agreements, other
than such defaults that would not have a Material Adverse Effect; (E)
no tenant under any of the leases, pursuant to which the Operating
Partnership or any Property Partnership, as lessor, leases its
Property, has an option or right of first refusal to purchase the
premises demised under such lease, the exercise of which would have a
Material Adverse Effect; (F) each of the Properties complies with all
applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to
access to the Properties), except for such failures to comply that
would not individually or in the aggregate have a Material Adverse
Effect; and (G) neither the Company nor the Operating Partnership has
knowledge of any pending or threatened condemnation proceedings,
zoning change, or other proceeding or action that will in any manner
affect the size of, use of, improvements on, construction on or access
to the Properties, except such proceedings or actions that would not
have a Material Adverse Effect.
(xxxvii) Immediately following the application of the
proceeds of the sale of the Underwritten Securities in the manner set
forth in the Prospectus, the mortgages and deeds of trust encumbering
the Properties and assets described in the Prospectus will not be
convertible and none of the Property Partnerships nor any person
related to or affiliated with the Property Partnerships will hold a
participating interest therein and said mortgages and deeds of trust
will not be cross-defaulted or cross-collateralized with any property
not owned by the Operating Partnership.
(xxxviii) Each of the Company, the Operating Partnership and
their respective subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they
are engaged; and none of the Company, the Operating Partnership and
their respective subsidiaries has any reason to believe that it or any
of its subsidiaries will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
businesses at a cost that would not have a Material Adverse Effect,
except as described in or contemplated by the Registration Statement
and the Prospectus.
(xxxix) The Company and the Operating Partnership have not
taken and will not take, directly or indirectly, any action prohibited
by Regulation M under the 1934 Act.
(xl) The assets of the Company do not constitute "plan
assets" under the Employee Retirement Income Security Act of 1974, as
amended.
(xli) Except as disclosed in the Prospectus, and, with
respect to clauses (A), (B) and (C) below, except for activities,
conditions, circumstances or matters that would not have a Material
Adverse Effect, (A) each Property, including, without limitation, the
Environment (as defined below) associated with such Property, is free
of any Hazardous Substance (as defined below), (B) neither the Company
nor the Operating Partnership nor any Property Partnership has caused
or suffered to occur any Release (as defined below) of any Hazardous
Substance into the Environment on, in, under or from any Property, and
no condition exists on, in, under or from any Property, to the
knowledge of the Company or the Operating Partnership, that could
result in the incurrence of material liabilities or any material
violations of any Environmental Law (as defined
11
below), give rise to the imposition of any Lien (as defined below)
under any Environmental Law, or cause or constitute a health, safety
or environmental hazard to any property, person or entity; (C) neither
the Company, the Operating Partnership nor any Property Partnership is
engaged in or intends to engage in any manufacturing or any other
operations at the Properties that (1) require the use, handling,
transportation, storage, treatment or disposal of any Hazardous
Substance or (2) require permits or are otherwise regulated pursuant
to any Environmental Law, other than permits which have been obtained;
(D) neither the Company nor the Operating Partnership nor any Property
Partnership has received any notice of a claim material to the Duke
Group as a whole under or pursuant to any Environmental Law or under
common law pertaining to Hazardous Substances on or originating from
any Property; (E) neither the Company nor the Operating Partnership
nor any Property Partnership has received any notice from any
Governmental Authority (as defined below) claiming any violation of
any Environmental Law; and (F) no Property is included or, to the
knowledge of the Company or the Operating Partnership, proposed for
inclusion on the National Priorities List issued pursuant to CERCLA
(as defined below) by the United States Environmental Protection
Agency (the "EPA") or, with the exception of one Property, in respect
to which the EPA has advised the Company that no further remedial
action is planned, on the Comprehensive Environmental Response,
Compensation, and Liability Information System database maintained by
the EPA, and has not otherwise been identified by the EPA as a
potential CERCLA removal, remedial or response site or included or, to
the knowledge of the Company or the Operating Partnership, proposed
for inclusion on, any similar list of potentially contaminated sites
pursuant to any other Environmental Law.
Excluding such customary amounts as may be lawfully
generated, stored, used, treated, disposed of, or otherwise handled
or located at any Property, as used herein "Hazardous Substance"
shall include, without limitation, any hazardous substance,
hazardous waste, toxic or dangerous substance, pollutant, toxic
waste or similarly designated materials, including, without
limitation, oil, petroleum or any petroleum-derived substance or
waste, asbestos or asbestos-containing materials, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant or
waste, including any such substance, pollutant or waste identified
or regulated under any Environmental Law (including, without
limitation, materials listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R. Section
172.101, as the same may now or hereafter be amended, or in the
EPA's List of Hazardous Substances and Reportable Quantities, 40
C.F.R. Part 3202, as the same may now or hereafter be amended);
"Environment" shall mean any surface water, drinking water, ground
water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor and outdoor air;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 C.
Section 9601 et seq.) ("CERCLA"), the Resource Conservation and
Recovery Act of 1976, as amended (42 C. Section 6901, et seq.), the
Clean Air Act, as amended (42 C. Section 7401, et seq.), the Clean
Water Act, as amended (33 C. Section 1251, et seq.), the Toxic
Substances Control Act, as amended (15 C. Section 2601, et seq.),
the Occupational Safety and Health Act of 1970, as amended (29 C.
Section 651, et seq.), the Hazardous Materials Transportation Act,
as amended (49 C. Section 1801, et seq.), and all other federal,
state and local laws, ordinances, regulations, rules, orders,
decisions and permits relating to the protection of the
environments or of human health from environmental effects;
"Governmental Authority" shall mean any federal, state or local
governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental
Law; "Lien" shall mean, with respect to any Property, any mortgage,
deed of trust, pledge, security interest, lien, encumbrance,
penalty, fine, charge, assessment, judgment or other liability in,
on or affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating or
disposing of any Hazardous Substance into the Environment,
including, without
12
limitation, the abandonment or discard of barrels, containers, tanks
(including, without limitation, underground storage tanks) or other
receptacles containing or previously containing any Hazardous
Substance or any release, emission, discharge or similar term, as
those terms are defined or used in any Environmental Law.
(xlii) Each of the Company, the Operating Partnership and
their subsidiaries has obtained title insurance on all of the
properties owned by each of them in an amount at least equal to (A)
the cost to acquire land and improvements in the case of an
acquisition of improved property or (B) the cost to acquire land in
the case of an acquisition of unimproved property and in each case
such title insurance is in full force and effect.
(xliii) Each of the Company and the Operating Partnership
has filed all federal, state, local and foreign income tax returns
which have been required to be filed (except in any case in which the
failure to so file would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of such entity) and has paid all taxes
required to be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and
payable, except, in all cases, for any such tax, assessment, fine or
penalty that is being contested in good faith.
(b) Any certificate signed by any officer of the Company, the
Operating Partnership or of any of their respective subsidiaries and delivered
to the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by such entity to each Underwriter as to the matters
covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company or the Operating Partnership, as the case may be, may grant,
if so provided in the applicable Terms Agreement relating to the Initial
Underwritten Securities, an option to the Underwriters named in such Terms
Agreement, severally and not jointly, to purchase up to the number of Option
Securities set forth therein at the same price per Option Security as is
applicable to the Initial Underwritten Securities, less an amount equal to any
dividends or distributions declared by the Company and paid or payable on the
Initial Underwritten Securities but not payable on the Option Securities. Such
option, if granted, will expire 30 days (or such lesser number of days as may be
specified in the applicable Terms Agreement) after the Representation Date
relating to the Initial Underwritten Securities, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice by the Representatives to the
Company or the Operating Partnership, as the case may be, setting forth the
number of Option Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery for
such Option Securities. Any such time, date and place of delivery (a "Date of
Delivery") shall be determined by the Representatives, but shall not be later
than seven full business days nor earlier than two full business days after the
exercise of said option, nor in any event prior to the Closing Time, unless
otherwise agreed upon by the Representatives and the Company or the Operating
Partnership, as the case may be. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option
13
Securities then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in the applicable Terms Agreement bears to the total number of Initial
Underwritten Securities (except as otherwise provided in the applicable Terms
Agreement), subject to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases of fractional
Underwritten Securities.
(c) Payment of the purchase price for, and delivery of
certificates for, the Initial Underwritten Securities to be purchased by the
Underwriters shall be made at the offices of Rogers & Wells LLP, 200 Park
Avenue, New York, New York 10166, or at such other place as shall be agreed upon
by the Representatives and the Company or the Operating Partnership, as the case
may be, at 10:00 A.M. on the fourth business day (or the third business day if
required under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance
with the provisions of Section 10) following the date of the applicable Terms
Agreement or at such other time as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being herein called
the "Closing Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the
above-mentioned offices of Rogers & Wells LLP, or at such other place as shall
be agreed upon by the Representatives and the Company or the Operating
Partnership, as the case may be, on each Date of Delivery as specified in the
notice from the Representatives to the Company.
Payment shall be made to the Company or the Operating Partnership, as
the case may be, by wire transfer of immediately available funds to a bank
account designated by the Company or the Operating Partnership, as the case may
be, against delivery to the Representatives for the respective accounts of the
Underwriters of the Underwritten Securities to be purchased by them.
Certificates for the Underwritten Securities and the Option Securities, if any,
shall be in such denominations and registered in such names as the
Representatives may request in writing at least two business days before the
Closing Time or the relevant Date of Delivery, as the case may be. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Underwritten Securities and the Option Securities, if any, which
it has agreed to purchase. The Representatives, individually and not as
representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but any such payment shall not relieve such Underwriter from its obligations
hereunder. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives not later than 10:00 A.M. on the last business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be, in New York,
New York.
If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Company or the Operating Partnership, as the case may be, pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Exhibit B hereto with such changes therein as the Company or the Operating
Partnership, as the case may be, may approve. As compensation for arranging
Delayed Delivery Contracts, the Company or the Operating Partnership, as the
case may be, will pay to the Representatives at Closing Time, for the respective
accounts of the Underwriters, a fee equal to that percentage of the amount of
Underwritten Securities for which Delayed Delivery contracts are made at the
applicable Closing Time as is specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the applicable Closing Time, the Company or the
Operating Partnership, as the case may be, will enter into Delayed Delivery
Contracts (for not less than the minimum amount of Underwritten Securities per
Delayed Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Company
14
or the Operating Partnership, as the case may be, as provided below, but not for
an aggregate principal amount of Underwritten Securities in excess of that
specified in the applicable Terms Agreement. The Underwriters will not have any
responsibility for the validity or performance of Delayed Delivery Contracts.
The Representatives shall submit to the Company or the Operating
Partnership, as the case may be, at least three business days prior to the
applicable Closing Time, the names of any institutional investors with which it
is proposed that the Company or the Operating Partnership, as the case may be,
will enter into Delayed Delivery Contracts and the amount of Underwritten
Securities to be purchased by each of them, and the Company or the Operating
Partnership, as the case may be, will advise the Representatives at least two
business days prior to the applicable Closing Time, of the names of the
institutions with which the making of Delayed Delivery Contracts is approved by
the Company or the Operating Partnership, as the case may be, and the amount of
Underwritten Securities to be covered by each such Delayed Delivery Contract.
The amount of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be reduced
by the amount of Underwritten Securities covered by Delayed Delivery Contracts,
as to each Underwriter as set forth in a written notice delivered by the
Representatives to the Company or the Operating Partnership, as the case may be;
provided, however, that the total amount of Underwritten Securities to be
purchased by all Underwriters shall be the total amount of Underwritten
Securities covered by the applicable Terms Agreement, less the amount of
Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP.
Each of the Company and the Operating Partnership covenants with the
Representatives, and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the
Company or the Operating Partnership, as the case may be, will prepare a
Prospectus Supplement setting forth the number of Underwritten Securities
covered thereby and their terms not otherwise specified in the Prospectus
pursuant to which the Underwritten Securities are being issued, the names
of the Underwriters participating in the offering and the number of
Underwritten Securities which each severally has agreed to purchase, the
names of the Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are to be
purchased by the Underwriters from the Company or the Operating
Partnership, as the case may be, the initial public offering price, if
any, the selling concession and reallowance, if any, and such other
information as the Representatives and the Company or the Operating
Partnership, as the case may be, deem appropriate in connection with the
offering of the Underwritten Securities; and the Company or the Operating
Partnership, as the case may be, will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule
424(b) of the 1933 Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus (including such Prospectus
Supplement) as the Representatives shall reasonably request.
(b) If, at the time the Prospectus Supplement was filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any
information shall have been omitted therefrom in reliance upon Rule 430A
of the 1933 Act Regulations, then immediately following the execution of
the Terms Agreement, the Company and the Operating Partnership will
prepare, and file or transmit for filing with the Commission in
accordance with such Rule 430A and Rule 424(b) of the 1933 Act
Regulations, a copy of an amended Prospectus, or, if required by such
Rule 430A, a post-effective amendment to the Registration Statement
(including amended Prospectuses), containing all information so omitted.
If required, the Company and the Operating Partnership will prepare and
file or transmit for filing a Rule 462(b) Registration Statement not
15
later than the date of execution of the Terms Agreement. If a Rule 462(b)
Registration Statement is filed, the Company and the Operating
Partnership shall make payment of, or arrange for payment of, the
additional registration fee owing to the Commission required by Rule 111
of the 1933 Act Regulations.
(c) The Company and the Operating Partnership will notify the
Representatives immediately, and confirm such notice in writing, of (i)
the effectiveness of any amendment to the Registration Statement, (ii)
the transmittal to the Commission for filing of any Prospectus Supplement
or other supplement or amendment to the Prospectus to be filed pursuant
to the 1933 Act, (iii) the receipt of any comments from the Commission,
(iv) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose; and the Company and
the Operating Partnership will make every reasonable effort to prevent
the issuance of any such stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(d) At any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, the Company and the Operating Partnership will
give the Representatives notice of its intention to file or prepare any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise,
will furnish the Representatives with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing and,
unless required by law, will not file or use any such amendment or
supplement or other documents in a form to which the Representatives or
counsel for the Underwriters shall reasonably object.
(e) The Company and the Operating Partnership will deliver to
the Representatives as soon as possible as many signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference therein) as the Representatives
may reasonably request and will also deliver to the Representatives as
many conformed copies of the Registration Statement as originally filed
and of each amendment thereto (including documents incorporated by
reference into the Prospectus) as the Representatives may reasonably
request.
(f) The Company and the Operating Partnership will furnish to
each Underwriter, from time to time during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the
1933 Act or the 1934 Act or the respective applicable rules and
regulations of the Commission thereunder.
(g) If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriters, to
amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Company and the Operating Partnership will
forthwith amend or supplement the Prospectus (in form and substance
reasonably satisfactory to counsel for the Underwriters) so that, as so
amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Company and the Operating Partnership will furnish to
the Underwriters a reasonable number of copies of such amendment or
supplement.
16
(h) The Company and the Operating Partnership will endeavor, in
cooperation with the Underwriters, to qualify the Underwritten Securities
for offering and sale under the applicable securities laws and real
estate syndication laws of such states and other jurisdictions as the
Representatives may designate. In each jurisdiction in which the
Underwritten Securities have been so qualified, the Company and the
Operating Partnership will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification
in effect for so long as may be required for the distribution of the
Underwritten Securities.
(i) With respect to each sale of Underwritten Securities, the
Company and the Operating Partnership will make generally available to
its security holders as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve-month period beginning not later than the
first day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration Statement.
(j) Each of the Company and the Operating Partnership will use
the net proceeds received by it from the sale of the Underwritten
Securities in the manner specified in the Prospectus under "Use of
Proceeds."
(k) The Company and the Operating Partnership, if applicable,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, will file all documents required to be
filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l) The Company will file with the New York Stock Exchange all
documents and notices required by the New York Stock Exchange of
companies that have securities listed on such exchange and, unless
otherwise agreed upon with respect to Preferred Stock, Depository Shares
and Debt Securities, will use its best efforts to maintain the listing of
any Underwritten Securities listed on the New York Stock Exchange.
(m) In respect to each offering of Debt Securities, the
Operating Partnership will qualify an Indenture under the 1939 Act and
will endeavor to have a Statement of Eligibility submitted on behalf of
the Trustee.
(n) The Company and the Operating Partnership will take all
reasonable action necessary to enable Standard & Poor's Corporation
("S&P"), Moody's Investors Service, Inc. ("Moody's") or any other
nationally recognized statistical rating organization to provide their
respective credit ratings of any Underwritten Securities, if applicable.
(o) INTENTIONALLY OMITTED
(p) If the Preferred Stock is convertible into Common Stock,
the Company will reserve and keep available at all times, free of
preemptive rights and other similar rights, a sufficient number of shares
of Common Stock for the purpose of enabling the Company to satisfy any
obligations to issue such Common Stock upon conversion of the Preferred
Stock.
(q) If the Preferred Stock is convertible into Common Stock,
the Company will use its best efforts to list the Common Stock on the New
York Stock Exchange.
(r) The Company will use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust" under the
Code.
17
(s) During the period from the Closing Time until five years
after the Closing Time, the Company and the Operating Partnership will
deliver to the Representatives, (i) promptly upon their becoming
available, copies of all current, regular and periodic reports of the
Company mailed to its stockholders or filed with any securities exchange
or with the Commission or any governmental authority succeeding to any of
the Commission's functions, and (ii) such other information concerning
the Company and the Operating Partnership as the Representatives may
reasonably request.
SECTION 4. PAYMENT OF EXPENSES. The Company and the Operating
Partnership will pay all expenses incident to the performance of its obligations
under this Agreement and the applicable Terms Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto; (ii) the cost of printing, or reproducing, and
distributing to the Underwriters copies of this Agreement and the applicable
Terms Agreement; (iii) the preparation, issuance and delivery of the
Underwritten Securities to the Underwriters, including capital duties, stamp
duties and stock transfer taxes, if any, payable upon issuance of any of the
Underwritten Securities, the sale of the Underwritten Securities to the
Underwriters, their transfer between the Underwriters pursuant to an agreement
between such Underwriters and the fees and expenses of the transfer agent for
the Underwritten Securities; (iv) the fees and disbursements of the Company's
and the Operating Partnership's counsel and accountants; (v) the qualification
of the Underwritten Securities and the Common Stock issuable upon conversion of
Preferred Stock, if any, under securities laws and real estate syndication laws
in accordance with the provisions of Section 3(h) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey; (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of each preliminary
prospectus, and of the Prospectus and any amendments or supplements thereto;
(vii) the cost of printing, or reproducing, and delivering to the Underwriters
copies of the Blue Sky Survey; (viii) the fee of the National Association of
Securities Dealers, Inc., if any; (ix) the fees and expenses incurred in
connection with the listing of the Underwritten Securities and the Common Stock
issuable upon conversion of Preferred Stock, if any, on the New York Stock
Exchange, any other national securities exchange or quotation system; (x) any
fees charged by nationally recognized statistical rating organizations for the
rating of the Debt Securities, if any; (xi) the printing and delivery to the
Underwriters of copies of the Indenture; (xii) the fees and expenses of the
Trustee, including the reasonable fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Underwritten Securities, (xiii)
the preparation, issuance and delivery to the Depository Trust Company for
credit to the accounts of the respective Underwriters of any global note
registered in the name of Cede & Co., as nominee for the Depository Trust
Company; and (xiv) any transfer taxes imposed on the sale of the Underwritten
Securities to the several Underwriters.
If this Agreement is cancelled or terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i),
Section 9(a)(iv) or Section 9(a)(v) hereof, the Company and the Operating
Partnership shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder are subject to the accuracy, as of the date hereof
and at Closing Time, of the representations and warranties of the Company and
the Operating Partnership herein contained, to the performance by the Company
and the Operating Partnership of their respective obligations hereunder, and to
the following further conditions:
(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission; (ii) if the Company or the Operating Partnership, as the case
18
may be, has elected to rely upon Rule 430A of the 1933 Act Regulations,
the public offering price of and the interest rate on the Underwritten
Securities, as the case may be, and any price-related information
previously omitted from the effective Registration Statement pursuant to
such Rule 430A shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed
time period, and prior to the applicable Closing Time, the Company or the
Operating Partnership, as the case may be, shall have provided evidence
satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements
of Rule 430A of the 1933 Act Regulations; (iii) if Preferred Stock is
being offered, the rating assigned by any nationally recognized
statistical rating organization as of the date of the applicable Terms
Agreement shall not have been lowered since such date nor shall any such
rating organization have publicly announced that it has placed the
Preferred Stock on what is commonly termed a "watch list" for possible
downgrading; (iv) the rating assigned by any nationally recognized
statistical rating organization to any long-term debt securities of the
Operating Partnership as of the date of the applicable Terms Agreement
shall not have been lowered since such date nor shall any such rating
organization have publicly announced that it has placed any long-term
debt securities of the Operating Partnership on what is commonly termed a
"watch list" for possible downgrading; and (v) there shall not have come
to the attention of the Representatives any facts that would cause the
Representatives to believe that the Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the Underwritten Securities, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading. If a Rule 462(b)
Registration Statement is required, such Rule 462(b) Registration
Statement shall have been transmitted to the Commission for filing and
have become effective within the prescribed time period, and, prior to
Closing Time, the Company and the Operating Partnership shall have
provided to the Underwriters evidence of such filing and effectiveness in
accordance with Rule 462(b) of the 1933 Act Regulations.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Bose McKinney & Evans LLP, counsel for each of the Company and the
Operating Partnership and their respective subsidiaries in form
and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company is a corporation duly organized
and existing under and by virtue of the laws of the State
of Indiana, has filed its most recent annual report
required by law with the Secretary of State of Indiana or
is not yet required to file such annual report, and has not
filed Articles of Dissolution. The Company has corporate
power and authority to conduct the business in which it is
engaged or proposes to engage and to own, lease and operate
its properties as described in the Prospectus and to enter
into and perform its obligations under this Agreement and
the other agreements to which it is a party. The Company is
duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not
have a material adverse effect on the condition, financial
or otherwise, or the earnings, assets, business affairs or
business prospects of the Company or any Property.
19
(ii) The Operating Partnership is a limited
partnership duly organized and existing under and by virtue
of the laws of the State of Indiana. The Operating
Partnership has partnership power and authority to conduct
the business in which it is engaged and proposes to engage
and to own, lease and operate its properties as described
in the Prospectus and to enter into and perform its
obligations under this Agreement and the other agreements
to which it is a party. The Operating Partnership is duly
qualified or registered as a foreign partnership and is in
good standing in each jurisdiction in which such
qualification or registration is required, whether by
reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify
or register would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Operating
Partnership or any Property or Related Business.
(iii) Each of the Company's and the Operating
Partnership's subsidiaries (other than the Property
Partnerships) has been duly formed, and is validly existing
and in good standing as a corporation or partnership under
the laws of its jurisdiction of organization, with
partnership or corporate power and authority to conduct the
business in which it is engaged or proposes to engage and
to own, lease and operate its properties as described in
the Prospectus.
(iv) Each of the Company's and the Operating
Partnership's subsidiaries and the Property Partnerships is
duly qualified or registered as a foreign partnership or
corporation in good standing and authorized to do business
in each jurisdiction in which such qualification is
required whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of
the Duke Group considered as a single enterprise.
(v) If the applicable Underwritten Securities are
issued by the Company, and if the Prospectus contains the
caption "Capitalization," the capital stock of the Company
is as set forth in the column entitled "Historical" under
such caption. All the issued and outstanding shares of
capital stock have been duly authorized and are validly
issued, fully paid and non-assessable. To the best of such
counsel's knowledge, after due inquiry, no shares of
capital stock of the Company are reserved for any purpose
except in connection with stock option and dividend
reinvestment plans, the possible issuance of shares of
Common Stock upon the exchange of Units, the Company's
outstanding 7.375% Series D Convertible Cumulative
Redeemable Preferred Stock and warrants dated as of July 2,
1999 and registered as of the date hereof to the Codina
Group, Inc., Armando Codina and various other individuals.
To the best of such counsel's knowledge after due inquiry,
except for Units, the rights (the "Rights") associated with
the Rights Agreement and the Company's outstanding 7.375%
Series D Convertible Cumulative Redeemable Preferred Stock,
there are no outstanding securities convertible into or
exchangeable for any capital stock of the Company, and
except for options under a stock option plan, the Rights,
the Operating Partnership's Series H Preferred Units and
warrants dated as of July 2, 1999 and registered as of the
date hereof to the Codina Group, Inc., Armando Codina and
various other individuals, there are no outstanding
options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such stock or any
other securities of the Company.
20
(vi) All the issued and outstanding Units have
been duly authorized and are validly issued, fully paid and
non-assessable, except as provided under Indiana Code
Section 23-16-7-8.
(vii) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may
be, of each subsidiary identified in an exhibit to such
counsel's opinion have been validly issued and fully paid
and all such shares and partnership interests, as the case
may be, that are owned by the Company, the Operating
Partnership or a subsidiary, are in each case owned free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(viii) Each of the Property Partnerships has been
duly formed as a partnership or a limited liability
company, as the case may be, and is validly existing and in
good standing as a partnership or a limited liability
company under of the laws of its jurisdiction of
organization; each Property Partnership has all requisite
power and authority to own, lease and operate the
Properties, to conduct the business in which it is engaged
and to enter into and perform its respective obligations
under the agreements to which it is a party. Each of the
partnership or operating agreements, as the case may be, of
the Property Partnerships is in full force and effect.
(ix) The applicable Underwritten Securities, if
such Underwritten Securities are Common Stock, Preferred
Stock or Depositary Shares, have been duly authorized by
the Company for issuance and sale to the Underwriters
pursuant to this Agreement, and, when issued and delivered
by the Company, pursuant to this Agreement and the
applicable Terms Agreement against payment of the
consideration set forth in the Terms Agreement or any
Delayed Delivery Contract, will be validly issued, fully
paid and non-assessable. Upon payment of the purchase price
and delivery of such Underwritten Securities in accordance
herewith, each of the Underwriters will receive good, valid
and marketable title to such Underwritten Securities, which
to such counsel's knowledge, after due inquiry, are free
and clear of all security interests, mortgages, pledges,
liens, encumbrances, claims and equities. The terms of the
applicable Underwritten Securities conform to all
statements and descriptions related thereto contained in
the Prospectus. The form of stock or depositary certificate
to be used to evidence the applicable Underwritten
Securities is in due and proper form and complies with all
applicable legal requirements. The issuance of the
applicable Underwritten Securities is not subject to any
preemptive or other similar rights.
(x) The applicable Underwritten Securities, if
such Underwritten Securities are Debt Securities, are in
the form contemplated in the Indenture, have been duly
authorized by the Operating Partnership for issuance and
sale to the Underwriters pursuant to this Agreement and,
when executed, authenticated, issued and delivered in the
manner provided for in this Agreement, the applicable Terms
Agreement and the applicable Indenture, against payment of
the consideration therefor specified in the applicable
Terms Agreement or any Delayed Delivery Contract, such Debt
Securities will constitute valid and legally binding
obligations of the Operating Partnership entitled to the
benefits of the Indenture and such Debt Securities will be
enforceable against the Operating Partnership in accordance
with their terms, except as such enforceability may be (1)
limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium or
21
other similar laws affecting the rights and remedies of
creditors generally and (2) subject to general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Upon
payment of the purchase price and delivery of such
Underwritten Securities in accordance herewith, each of the
Underwriters will receive good, valid and marketable title
to such Underwritten Securities, which to such counsel's
knowledge, after due inquiry, are free and clear of all
security interests, mortgages, pledges, liens,
encumbrances, claims and equities. The terms of the
applicable Underwritten Securities conform to all
statements and descriptions related thereto in the
Prospectus. Such Underwritten Securities rank and will rank
on a parity with all unsecured indebtedness (other than
subordinated indebtedness of the Operating Partnership that
is outstanding on the Representation Date or that may be
incurred thereafter) and senior to all subordinated
indebtedness of the Operating Partnership that is
outstanding on the Representation Date or that may be
incurred thereafter, except that such Underwritten
Securities will be effectively subordinated to the prior
claims of each secured mortgage lender to any specific
Property which secures such lender's mortgage.
(xi) If applicable, the Common Stock issuable upon
conversion of any of the Preferred Stock (including
Preferred Stock represented by Depositary Shares) will have
been duly and validly authorized and reserved for issuance
upon such conversion or exercise by all necessary action
and such stock, when issued upon such conversion or
exercise, will be duly and validly issued, fully paid and
non-assessable, and the issuance of such stock upon such
conversion or exercise will not be subject to preemptive or
other similar rights; the Common Stock so issuable conforms
in all material respects to all statements relating thereto
contained in the Prospectus.
(xii) To the best knowledge of such counsel, none
of the entities comprising the Duke Group is in violation
of its charter, by-laws, certificate of limited partnership
or partnership agreement, as the case may be, and none of
the entities comprising the Duke Group is in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument
to which such entity is a party or by which such entity may
be bound, or to which any of the property or assets of such
entity is subject, except for defaults which are not
material to the Duke Group as a whole.
(xiii) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, were
duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, as applicable, and
the Company and the Operating Partnership have the power
and authority to perform their obligations hereunder and
thereunder.
(xiv) The Indenture has been duly qualified under
the 1939 Act and has been duly and validly authorized,
executed and delivered by the Operating Partnership, and,
assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the
Operating Partnership, enforceable in accordance with its
terms, except as such enforceability may be (1) limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium or other similar laws affecting the rights and
remedies of creditors generally and (2) subject to general
principles of equity (regardless of whether such
enforceability
22
is considered in a proceeding in equity or at law). The
Indenture conforms in all material respects to the
descriptions thereof contained in the Prospectus.
(xv) Each of the partnership agreements to which
any of the Company, the Operating Partnership or their
respective subsidiaries identified in an exhibit to such
counsel's opinion is a party has been duly authorized,
executed and delivered by such party and constitutes a
valid and binding obligation thereof, enforceable in
accordance with its terms, except as such enforceability
may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar
laws affecting the rights and remedies of creditors
generally and (2) subject to general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(xvi) The execution and delivery of this Agreement,
the applicable Terms Agreement, any Indenture and the
Underwritten Securities, the performance of the obligations
set forth herein or therein, and the consummation of the
transactions contemplated hereby and thereby or in the
Prospectus by the Company and the Operating Partnership,
will not conflict with or constitute a breach or violation
by the Company or the Operating Partnership of, or default
under, or result in the creation of imposition of any lien,
charge or encumbrance upon any Property or assets of the
Duke Group pursuant to any contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership
agreement or other instrument or agreement known to such
counsel, after due inquiry, to which the Company, the
Operating Partnership or any subsidiary is a party or by
which they, either of them, any of their respective
properties or other assets or any Property may be bound or
subject which is material to the Duke Group as a whole; nor
will such action conflict with or constitute a breach or
violation by the Company or the Operating Partnership of,
or default under, (A) the charter, by-laws, certificate of
limited partnership or partnership agreement, as the case
may be, of the Company, the Operating Partnership or any
subsidiary or (B) to the extent it is material, any
applicable law, rule, order, administrative regulation or
administrative or court decree.
(xvii) Assuming the Company was organized in
conformity with and has satisfied the requirements for
qualification and taxation as a "real estate investment
trust" under the Code for each of its taxable years from
and including the first taxable year for which the Company
made the election to be taxed as a "real estate investment
trust" through its taxable year ended December 31, 1992,
the Company, commencing with its taxable year ended
December 31, 1993, was organized and has operated in
conformity with the requirements for qualification and
taxation as a "real estate investment trust" under the Code
and the proposed methods of operation of the Company, the
Operating Partnership and the Services Partnership as
described in the Registration Statement and the Prospectus
Supplement and as represented by the Company, the Operating
Partnership and the Services Partnership will permit the
Company to continue to qualify to be taxed as a "real
estate investment trust" for its current and subsequent
taxable years.
(xviii) None of the entities comprising the Duke
Group is required to be registered under the 1940 Act or is
or will become a "holding company" or a "subsidiary
company" of a "registered holding company" as defined in
the Public Utility Holding Company Act of 1935, as amended.
23
(xix) To such counsel's knowledge, after due
inquiry, (i) each entity belonging to the Duke Group
possesses such material certificates, authorizations or
permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the
business now operated by it, or proposed to be conducted by
it, and (ii) none of the entities comprising the Duke Group
has received any notice of proceedings relating to the
revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Duke Group considered
as a single enterprise.
(xx) No authorization, approval, consent or order
of any court or governmental authority or agency or, to the
knowledge of such counsel, any other entity is required in
connection with the offering, issuance or sale of the
applicable Underwritten Securities to the Underwriters
hereunder, except such as may be required under the 1933
Act or the 1933 Act Regulations or the 1939 Act or the 1939
Act Regulations or state or foreign securities laws, as to
which such counsel need express no opinion, or real estate
syndication laws or such as have been received prior to the
date of this Agreement.
(xxi) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as
part of the Registration Statement as originally filed or
as part of any amendment thereto, or filed pursuant to Rule
424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act and the 1933 Act
Regulations thereunder.
(xxii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3 under the 1933 Act, at the time they
were filed with the Commission, complied and will comply as
to form in all material respects with the requirements of
the 1934 Act and the 1934 Act Regulations.
(xxiii) The Registration Statement is effective
under the 1933 Act and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the
Commission.
(xxiv) At the time the Registration Statement became
effective and at each of the Representation Dates, the
Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by
reference therein (other than the financial statements and
supporting schedules and other financial data included
therein, as to which no opinion need be rendered), complied
as to form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations.
(xxv) There are no legal or governmental
proceedings pending or, to the best of their knowledge and
information, threatened which are required to be disclosed
in the Registration Statement or the Prospectus, other than
those disclosed therein, and all pending legal or
governmental proceedings to which any of the entities
comprising the Duke Group is a party or to which any of
their properties is subject which are not described in the
Registration Statement or the
24
Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the
aggregate, not material.
(xxvi) The information in the Prospectus under "The
Company and the Operating Partnership," "Description of
Debt Securities," "Description of Preferred Stock,"
"Description of Depositary Shares," "Description of Common
Stock," and the information in the applicable Prospectus
Supplement under similar sections and, if applicable, "The
Company" or "The Operating Partnership," as the case may
be, to the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings, or
legal conclusions, has been reviewed by them and is correct
and presents fairly the information required to be
disclosed therein.
(xxvii) There are no statutes, contracts,
indentures, mortgages, loan agreements, notes, leases or
other instruments known to such counsel which are required
to be described or referred to in the Registration
Statement or to be filed as exhibits thereto by the 1933
Act Regulations other than those described or referred to
therein or filed as exhibits thereto, the descriptions
thereof or references thereto are correct, and, to the best
knowledge of such counsel, no material default exists in
the due performance or observance of any material
obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described, referred to or
filed.
(xxviii) To the best knowledge of such counsel,
except as disclosed in the Prospectus and except for
persons who received Units in connection with transactions
with the Operating Partnership, there are no persons with
registration or other similar rights to have any securities
registered pursuant to the Registration Statement or
otherwise registered by the Company or the Operating
Partnership under the 1933 Act.
(xxix) The Company and the Operating Partnership
each satisfy all conditions and requirements for filing the
Registration Statement on Form S-3 under the 1933 Act and
1933 Act Regulations.
(2) The favorable opinion, dated as of the Closing Time,
of Rogers & Wells LLP, counsel for the Underwriters, (A) with
respect to the matters set forth in Section 5(b)(1)(i) (with
respect to the Company only and with respect to the first sentence
only), Section 5(b)(1)(ix), (with respect to the first and last
sentences only) or 5(b)(1)(x) (with respect to the first sentence
only), as applicable, Section 5(b)(1)(xiii) (with respect to the
first clause only), Section 5(b)(1)(xiv) and Section 5(b)(1)(xxiv)
and (B) containing a statement similar to the statement referred
to in the first paragraph of Section 5(b)(3).
(3) In giving their opinions required by subsections
(b)(1) and (b)(2), respectively, of this Section, Bose McKinney &
Evans LLP and Rogers & Wells LLP shall additionally state that
such counsel has participated in conferences with officers and
other representatives of the Company or the Operating Partnership,
as the case may be, and the independent public accountants for the
Company or the Operating Partnership, as the case may be, at which
the contents of the Registration Statement and the Prospectus and
related matters were discussed and in the preparation of the
Registration Statement and the Prospectus and, on the basis of the
foregoing, nothing has come to their attention that would lead
them to believe that either the Registration Statement or any
amendment thereto (excluding the financial statements and
financial schedules included or
25
incorporated by reference therein or the Statement of Eligibility,
as to which such counsel need express no belief), at the time it
became effective or at the time an Annual Report on Form 10-K was
filed by the Company and the Operating Partnership with the
Commission (whichever is later), or at the Representation Date,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (excluding the
financial statements or financial schedules included or
incorporated by reference therein or the Statement of Eligibility,
as to which such counsel need express no belief), at the
Representation Date or at the Closing Time, included or includes
an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
In giving their opinions, Bose McKinney & Evans LLP and
Rogers & Wells LLP may rely upon, or assume the accuracy of, (A)
as to all matters of fact, certificates and written statements of
officers and employees of and accountants for each of the entities
comprising the Duke Group and (B) as to the qualification and good
standing of each of the entities comprising the Duke Group to do
business in any jurisdiction, certificates of appropriate
government officials or opinions of counsel in such jurisdictions,
and (C) in respect to the opinion by Rogers & Wells LLP only, as
to certain matters of Indiana law, the opinion of Bose McKinney &
Evans LLP given pursuant to Section 5(b)(1) above.
(c) At Closing Time, (i) no action, suit or proceeding at law
or in equity shall be pending or, to the knowledge of the Company or the
Operating Partnership, threatened against any entity belonging to the
Duke Group which would be required to be set forth in the Prospectus
other than as set forth therein; (ii) there shall not have been, since
the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or business
prospects of any entity belonging to the Duke Group, whether or not
arising in the ordinary course of business; (iii) no proceedings shall be
pending or threatened against such entity or any Property before or by
any federal, state or other commission, board or administrative agency
wherein an unfavorable decision, ruling or finding might result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, assets, business affairs or business prospects of any
entity belonging to the Duke Group or any Property, as the case may be,
other than as set forth in the Prospectus; (iv) no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened by the Commission or by the state securities
authority of any jurisdiction; and (v) the Representatives shall have
received a certificate of the President or a Vice President of the
Company and the Operating Partnership and of the chief financial or chief
accounting officer of each such entity, dated as of the Closing Time,
evidencing compliance with the provisions of this subsection (c) and
stating that the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly made
at and as of Closing Time.
(d) At the time of the execution of the applicable Terms
Agreement, the Representatives shall have received from KPMG LLP a letter
dated such date, in form and substance satisfactory to the
Representatives, to the effect that: (i) they are independent public
accountants with respect to the Company and the Operating Partnership as
required by the 1933 Act and the 1933 Act Regulations; (ii) it is their
opinion that the financial statements and supporting schedules included
in the Registration Statement, or incorporated by reference therein, and
covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations and the 1934
26
Act and the 1934 Act Regulations; (iii) based upon limited procedures set
forth in detail in such letter, including a reading of the latest
available interim financial statements of the Company and the Operating
Partnership, a reading of the minute books of the Company and the
Operating Partnership, inquiries of officials of the Company and the
Operating Partnership responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such
letter, nothing has come to their attention which causes them to believe
that (A) the unaudited financial statements of the Company and the
Operating Partnership included in the Registration Statement, or
incorporated by reference therein, do not comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations, or material modifications are required for them to be
presented in conformity with generally accepted accounting principles,
(B) the operating data and balance sheet data set forth in the Prospectus
under the caption "Selected Consolidated Financial Data" were not
determined on a basis substantially consistent with that used in
determining the corresponding amounts in the audited financial statements
included or incorporated by reference in the Registration Statement, (C)
the pro forma financial information included or incorporated by reference
in the Registration Statement was not determined on a basis substantially
consistent with that of the audited financial statements included or
incorporated by reference in the Registration Statement or (D) at a
specified date not more than five days prior to the date of the
applicable Terms Agreement, there has been any change in the capital
stock or the number of partnership interests of the Company, the
Operating Partnership or their subsidiaries, as the case may be, or any
increase in the debt of the Company, the Operating Partnership or their
subsidiaries or any decrease in the net assets of the Company, the
Operating Partnership or their subsidiaries, as compared with the amounts
shown in the most recent consolidated balance sheet of the Company, the
Operating Partnership and their subsidiaries, included in the
Registration Statement or incorporated by reference therein, or, during
the period from the date of the most recent consolidated statement of
operations included in the Registration Statement or incorporated by
reference therein to a specified date not more than five days prior to
the date of the applicable Terms Agreement, there were any decreases, as
compared with the corresponding period in the preceding year, in
revenues, net income or funds from operations of the Company, the
Operating Partnership and their subsidiaries, except in all instances for
changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) in addition to
the audit referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in the
Registration Statement and Prospectus and which are specified by the
Representatives, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial
and other records of the Company, the Operating Partnership and their
subsidiaries identified in such letter.
(e) At Closing Time, the Representatives shall have received
from KPMG LLP a letter, dated the Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the "specified date" referred
to shall be a date not more than five days prior to Closing Time.
(f) At Closing Time, the Underwritten Securities, if such
Underwritten Securities are Debt Securities, shall be rated investment
grade by one or more nationally recognized statistical rating
organizations and the Operating Partnership shall have delivered to the
Representatives a letter, dated the Closing Time, from each such rating
organization, or other evidence satisfactory to the Representatives,
confirming that such Underwritten Securities have such ratings; and since
the date of this Agreement, there shall not have occurred a downgrading
in the rating assigned to
27
such Underwritten Securities or any of the Operating Partnership's other
debt securities by any nationally recognized securities rating
organization, and no such securities rating organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of such Underwritten
Securities or any of the Operating Partnership's other debt securities.
(g) At Closing Time and at each Date of Delivery, if any,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the applicable Underwritten
Securities as contemplated herein, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the
Company or the Operating Partnership, as the case may be, in connection
with the issuance and sale of the applicable Underwritten Securities as
herein contemplated shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(h) INTENTIONALLY OMITTED
(i) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company and
the Operating Partnership contained herein and the statements in any
certificates furnished by the Company and the Operating Partnership
hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Representatives shall have received:
(1) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the Operating
Partnership and of the chief financial or chief accounting officer
of each such entity confirming that their respective certificates
delivered at Closing Time pursuant to Section 5(c) hereof remain
true and correct as of such Date of Delivery.
(2) The favorable opinion of Bose McKinney & Evans LLP,
counsel for the Company, the Operating Partnership and their
respective subsidiaries, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required
by Section 5(b)(1) hereof.
(3) The favorable opinion of Rogers & Wells LLP, counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section
5(b)(2) hereof.
(4) A letter from KPMG LLP, in form and substance
satisfactory to the Representatives and dated such Date of
Delivery, substantially the same in form and substance as the
letter furnished to the Representatives pursuant to Section 5(e)
hereof, except that the "specified date" in the letter furnished
pursuant to this Section 5(i)(4) shall be a date not more than
five days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company and the Operating Partnership,
at any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof.
SECTION 6. INDEMNIFICATION.
28
(a) Each of the Company and the Operating Partnership agrees,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), or the
omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus, Prospectus, preliminary prospectus supplement or
Prospectus Supplement (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with
written information furnished to the Company or the Operating
Partnership by any Underwriter through Salomon expressly for use
in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto);
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever for which
indemnification is provided under subsection (i) above if such
settlement is effected with the written consent of the
indemnifying party; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by Salomon), reasonably incurred
in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever for which
indemnification is provided under subsection (i) above, to the
extent that any such expense is not paid under (i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company and the Operating Partnership and each person, if any, who
controls the Company and the Operating Partnership within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company or the Operating
Partnership by such Underwriter through Salomon expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably approved by the indemnified
parties defendant in such action; PROVIDED, HOWEVER, that if the defendants in
any such action include both the indemnified party and the
29
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties. If
an indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action, unless
(i) the indemnified party shall have employed separate counsel in accordance
with the proviso to the next preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel) (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
(ii) the indemnifying party does not promptly retain counsel reasonably
satisfactory to the indemnified party or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party. The indemnifying party will not be liable for the costs
and expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as required by this Section 6, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by Section
6(a)(ii) effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Operating Partnership, on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Operating Partnership, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Operating
Partnership, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Underwritten
Securities (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in
30
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of such Underwritten Securities as set forth on such
cover.
The relative fault of the Company and the Operating Partnership,
on the one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Operating
Partnership or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Operating Partnership and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Operating Partnership within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company or the Operating Partnership, as the case may be. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Underwritten Securities set forth opposite
their respective names in the applicable Terms Agreement and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of the
officers of the Company or the Operating Partnership submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
termination of the applicable Terms Agreement, or any investigation made by or
on behalf of any Underwriter or controlling person, or by or on behalf of the
Company or the Operating Partnership and shall survive delivery of the
Underwritten Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material
31
adverse change, affecting the Duke Group as a whole, in the condition, financial
or otherwise, or in the earnings, assets, business affairs or business prospects
of any entity belonging to the Duke Group or of any Property, whether or not
arising in the ordinary course of business; or (ii)if there has occurred any
material adverse change in the financial markets in the United States, or any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic condition, in each case the
effect of which is such as to make it, in judgement of the Representatives,
impracticable or inadvisable to (x) commence or continue the offering of
Underwritten Securities to the public, or (y) enforce contracts for the sale of
the Underwritten Securities; or (iii) if trading in the Common Stock has been
suspended by the Commission or if trading generally on either the New York Stock
Exchange or the American Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said Exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal, New York or Indiana authorities; (iv) if
Preferred Stock is being offered and the rating assigned by any nationally
recognized statistical rating organization to any preferred shares of the
Company as of the date of the applicable Terms Agreement shall have been lowered
since such date or if any such rating organization shall have publicly announced
that it has placed any preferred shares or debt securities of the Company on
what is commonly termed a "watch list" for possible downgrading; or (v) if the
rating assigned by any nationally recognized statistical rating organization to
any long-term debt securities of the Operating Partnership as of the date of the
applicable Terms Agreement shall have been lowered since such date or if any
such rating organization shall have publicly announced that it has placed any
long-term debt securities of the Operating Partnership on what is commonly
termed a "watch list" for possible downgrading. As used in this Section 9(a),
the term " Prospectus" means the Prospectus in the form first used to confirm
sales of the Underwritten Securities.
(b) In the event of any such termination, in respect to such
terminated Terms Agreement, (x) the covenants set forth in Section 3 with
respect to any offering of Underwritten Securities shall remain in effect so
long as any Underwriter owns any such Underwritten Securities purchased from the
Company or the Operating Partnership, as the case may be, pursuant to the
applicable Terms Agreement and (y) the covenant set forth in Section 3(i)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 6 and 7 hereof, and the provisions of Sections
8 and 13 hereof shall remain in effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the Underwritten Securities to be purchased pursuant to such Terms
Agreement, each of the non-defaulting Underwriters named in such Terms
Agreement shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Underwritten Securities to be purchased pursuant to such Terms Agreement,
the applicable Terms Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
32
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, each of the Representatives or
the Company shall have the right to postpone Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Salomon Smith Barney
Inc., 388 Greenwich Street, New York, NY, attention of Douglas Sesler; notices
to the Company and the Operating Partnership shall be directed to any of them at
8888 Keystone Crossing, Suite 1200, Indianapolis, Indiana, 46240, attention of
Darell E. Zink, Jr.
SECTION 12. PARTIES. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the parties hereto and
their respective successors. Nothing expressed or mentioned in this Agreement or
the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or the applicable Terms Agreement
or any provision herein or therein contained. This Agreement and the applicable
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Company and the Operating Partnership in accordance
with its terms.
Very truly yours,
DUKE-WEEKS REALTY CORPORATION
By: /s/ Matthew A. Cohoat
---------------------------------
Name:
Title:
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
By: Duke-Weeks Realty Corporation,
General Partner
By: /s/ Matthew A. Cohoat
-----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
SALOMON SMITH BARNEY INC.
By: /s/ Douglas W. Sesler
--------------------------
Name: Douglas W. Sesler
Title: Managing Director
34
EXHIBIT A
DUKE-WEEKS REALTY CORPORATION
(AN INDIANA CORPORATION)
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[NUMBER AND TITLE OF SECURITIES]
TERMS AGREEMENT
---------------
Dated: [________], 199[__]
To: Duke-Weeks Realty Corporation
Duke-Weeks Realty Limited Partnership
c/o Duke-Weeks Realty Corporation
8888 Keystone Crossing, Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Representatives") understand that [Duke-Weeks Realty
Corporation, an Indiana corporation (the "Company"), proposes to issue and sell
[__________] of its [shares of common stock (the "Common Stock")] [shares of
preferred stock (the "Preferred Stock")] [shares of Preferred Stock represented
by depositary shares (the "Depositary Shares")] [Duke-Weeks Realty Limited
Partnership, an Indiana limited partnership (the "Operating Partnership"),
proposes to issue and sell $[________] aggregate principal amount of its
unsecured debt securities (the "Debt Securities")] (such [Common Stock],
[Preferred Stock] [Depositary Shares] and [Debt Securities] being collectively
hereinafter referred to as the " Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, the underwriters
named below (the " Underwriters") offer to purchase, severally and not jointly,
the respective numbers of Initial Securities (as defined in the Underwriting
Agreement referred to below) set forth below opposite their respective names,
and a proportionate share of Option Securities(as defined in the Underwriting
Agreement referred to below) to the extent any are purchased, at the purchase
price set forth below.
35
UNDERWRITER [Number of Shares]
[Principal Amount]
Of Initial
Underwritten Securities
-----------------------
---------
Total $
The Underwritten Securities shall have the following terms:
[COMMON STOCK] [PREFERRED STOCK] [DEPOSITARY SHARES]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if
any, from , 199 .]
Purchase price per share: $ [, plus accumulated dividends, if any,
from , 199 .]
[Conversion provisions:]
[Voting and other rights:]
Number of Option Securities, if any, that may be purchased by the
Underwriters: Additional co-managers, if any:
Other terms:
Closing time, date and location:
The Underwritten Securities shall have the following terms:
[DEBT SECURITIES]
Title of Securities:
Currency:
Principal amount to be issued:
Current ratings: Moody's Investors Service, Inc. ______;
Standard & Poor's Corporation ______; [other rating agencies];
Interest rate or formula:
Interest payment dates:
Interest reset dates:
Interest determination date:
Stated maturity date:
Redemption or repayment provisions:
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: ___%]
[Initial public offering price: ___%, plus accrued interest,
36
if any, or amortized original issue discount, if any, from
19__.]
Purchase price: ___%, plus accrued interest, if any, or
amortized original issue discount, if any, from
____________, 19__ (payable in [same] [next] day funds).
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Duke-Weeks Realty Corporation and Duke-Weeks Realty Limited
Partnership -- Common Stock, Preferred Stock, Depositary Shares and Debt
Securities - Underwriting Agreement" are incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Please accept this offer no later than [_____] o'clock P.M. (New York
City time) on [_____] by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
SALOMON SMITH BARNEY INC.
[OTHER REPRESENTATIVES]
By: SALOMON SMITH BARNEY INC.
By:
-----------------------------------------
For themselves and as Representatives
of the other named Underwriters.
Accepted:
DUKE-WEEKS REALTY CORPORATION
By:
--------------------------------
Name:
Title:
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
By: DUKE-WEEKS REALTY CORPORATION
--------------------------------
General Partner
By:
--------------------------------
Name:
Title:
37
EXHIBIT B
DUKE-WEEKS REALTY CORPORATION
(AN INDIANA CORPORATION)
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
-------------------------
Dated: [__________], 199[_]
To: Duke-Weeks Realty Corporation
Duke-Weeks Realty Limited Partnership
c/o Duke-Weeks Realty Corporation
8888 Keystone Crossing, Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from [Duke-Weeks
Realty Corporation (the "Company")] [Duke-Weeks Realty Limited Partnership (the
"Operating Partnership")], and the [Company][Operating Partnership] agrees to
sell to the undersigned on [__________], 19[__] (the "Delivery Date"),
$[__________] amount of the [Company][Operating Partnership]'s [insert title of
security] (the "Securities"), offered by the [Company][Operating Partnership]'s
Prospectus dated [__________], 19[__], as supplemented by its Prospectus
Supplement dated [__________], 19[__], receipt of which is hereby acknowledged,
at a purchase price of $[_____ per share] [_____% of the principal amount
thereof, plus accrued interest from [__________], 19[__], to the Delivery Date],
and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the [Company][Operating
Partnership] or its order by [certified or official bank check in New York
Clearing House] [same day] funds at the office of [__________], on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the [Company][Operating Partnership] not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject and (2) the [Company][Operating
Partnership], on or before [__________], 19[__], shall have sold to the
Underwriters of the Securities (the " Underwriters") such amount of the
Securities as is to be sold to them pursuant to the Terms Agreement dated
[__________], 19[__] between the [Company][Operating Partnership] and the
Underwriters. The obligation of the undersigned to take delivery of and make
payment for Securities shall not be affected by the failure of any purchaser to
take delivery of and make payments for Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof, prohibited under
the laws of any jurisdiction to which the undersigned is subject and which
govern such investment.
38
Promptly after completion of the sale to the Underwriters, the
[Company][Operating Partnership] will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinions of counsel for the [Company][Operating Partnership] delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and
warrants to the [Company][Operating Partnership] that all necessary corporate
action for the due execution and delivery of this contract and the payment for
and purchase of the Securities has been taken by it and no further authorization
or approval of any governmental or other regulatory authority is required for
such execution, delivery, payment or purchase, and that, upon acceptance hereof
by the [Company][Operating Partnership] and mailing or delivery of a copy as
provided below, this contract will constitute a valid and binding agreement of
the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the [Company][Operating Partnership]
will not accept Delayed Delivery Contracts for an aggregate amount of Securities
in excess of $[__________] and that the acceptance of any Delayed Delivery
Contract is in the [Company][Operating Partnership]'s sole discretion and,
without limiting the foregoing, need not be on a first-come, first-served basis.
If this contract is acceptable to the [Company][Operating Partnership], it is
requested that the [Company][Operating Partnership] sign the form of acceptance
on a copy hereof and mail or deliver a signed copy hereof to the undersigned at
its address set forth below. This will become a binding contract between the
[Company][Operating Partnership] and the undersigned when such copy is so mailed
or delivered.
This Agreement shall be governed by the laws of the State of
New York.
Yours very truly,
(Name of Purchaser)
By:
-------------------------------
(Title)
(Address)
Accepted as of the date first above written.
DUKE-WEEKS REALTY CORPORATION
By:
-------------------------
Name:
Title:]
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
By: DUKE-WEEKS REALTY CORPORATION
-----------------------------
By:
-----------------------
Name:
Title:]
39
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as
follows: (Please Print.)
Telephone No.
Name (Including Area Code)
---- -------------------
40