Exhibit 2.1
CONTRIBUTION
AGREEMENT
This Contribution Agreement
(“Agreement”) is made and entered into by and between
Duke Realty Limited Partnership (“Partnership”),
formerly known as Duke-Weeks Realty Limited Partnership, an Indiana
limited partnership, Duke Management, Inc.
(“Contributor”), an Indiana corporation, Duke Realty
Corporation (“DRE”), an Indiana corporation, and Duke
Realty Services Limited Partnership (“DRSLP”), an
Indiana limited partnership, effective as of January 1, 2005
(“Effective Date”).
RECITALS
WHEREAS, Contributor is a limited
partner in DRSLP;
WHEREAS, Contributor wishes to
contribute its entire limited partnership interest in DRSLP
(“Property”) to Partnership in accordance with the
terms and conditions of this Agreement; and
WHEREAS, Partnership wishes to
accept and receive the Property from Contributor in accordance with
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of
the mutual promises, representations, warranties, covenants and
agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1 -
DEFINITIONS
Section 1.01.
Defined Terms
.
The terms used in this Agreement
with their initial letters capitalized, shall have, unless the
context otherwise requires or unless otherwise expressly provided
in this Agreement, the meanings specified in this
Section 1.01. Any term used but not defined in this
Agreement shall have the meaning set forth in the Partnership
Agreement.
(a) “DRSLP Partnership Agreement” shall
mean the Second Amended and Restated Agreement of Limited
Partnership of Duke Realty Services Limited Partnership dated as of
September 30, 1994, as heretofore amended.
(b) “Losses” shall mean any and all
direct or indirect litigation, payments, obligations, recoveries,
deficiencies, fines, penalties, interest, assessments, losses,
damages, punitive, exemplary or consequential damages, liabilities,
costs, expenses and interest on any amount payable to a third party
as a result of the foregoing, whether accrued, absolute,
contingent, known, unknown, or otherwise.
(c) “Partnership Agreement” shall mean
the Second Amended and Restated Agreement of Limited Partnership of
Duke Realty Limited Partnership (f/k/a Duke-Weeks Realty Limited
Partnership) dated July 1, 1999, as heretofore
amended.
ARTICLE 2 -
CONTRIBUTION
Section 2.01.
Contribution of
Property .
For and in consideration of the
issuance of the Units set forth in Section 2.02 hereof, Contributor
shall assign and transfer to Partnership at Closing all of
Contributor’s right, title and interest, legal and equitable,
in and to the Property, and all rights associated with such
Property.
Section 2.02.
Agreed Value
.
The agreed value (“Agreed
Value”) for the Property shall be Fifteen Million Dollars
($15,000,000.00). For the Agreed Value, Contributor shall be
issued at Closing, certificates for such number of duly authorized
and fully paid Units as is equal to the Agreed Value divided by the
Unit Value. The Unit Value shall equal the Current Market
Price of a REIT Share multiplied by the Redemption Ratio at the
time of Closing as provided in Section 4.02(c)(ii) of the
Partnership Agreement. The method of computing the Unit Value
shall not be subject to further adjustment by reason of any prior
or future market fluctuations at any time in the price or value of
the Units or the stock of DRE. Contributor hereby
acknowledges and agrees that its ownership of the Units and rights
to transfer and exchange the Units shall be subject to all the
limitations, terms, provisions and restrictions set forth in the
Partnership Agreement, and a one (1) year restriction on conversion
of such Units to shares of DRE common stock (“DRE
Stock”). Notwithstanding the foregoing, no Units shall
be transferred to any individual or entity that is not an
“accredited investor” (as such term is defined in Rule
501(a) of Regulation D of the Securities and Exchange Act of
1933, as amended).
ARTICLE 3 - ASSUMPTION OF
OBLIGATIONS AND INDEMNIFICATION
Section 3.01.
Assumption of
Obligations .
Partnership hereby fully assumes all
obligations and liabilities of Contributor arising on or after the
Effective Date whether presently known or unknown, fixed or
contingent, respecting DRSLP or any assets or obligations of DRSLP
including, without limitation, the deficit make-up obligation of
Contributor under Section 4.08 of the DRSLP Partnership
Agreement (collectively, the “Assumed
Obligations”).
Section 3.02.
Indemnification by
Partnership .
Partnership hereby agrees to
indemnify, defend and hold harmless Contributor from and against
(a) all Assumed Obligations in the same circumstances and to the
same extent as described in Section 3.10 of the DRSLP
Partnership Agreement and (b) all Losses asserted against, relating
to, imposed upon, or incurred by Contributor arising out of the
breach of any representation, warranty or covenant of Partnership
contained in this Agreement.
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Section 3.03.
Indemnification by
Contributor .
Contributor hereby agrees to
indemnify, defend and hold harmless Partnership and its affiliates
from and against all Losses asserted against, relating to, imposed
upon, or incurred by Partnership or its affiliates arising out of
the breach of any representation, warranty or covenant of
Contributor contained in this Agreement.
ARTICLE 4 - CONSENT TO
TRANSFER AND RELEASE
Section 4.01.
Consent to Transfer
.
Pursuant to Section 7.02 of the
DRSLP Partnership Agreement, DRE, as the sole general partner of
DRSLP, hereby consents to and approves the transfer of the Property
to Partnership on the Effective Date.
Section 4.02.
Release From
Obligations .
DRSLP hereby fully releases and
discharges Contributor from the Assumed Obligations.
Contributor, in turn, hereby fully releases and discharges DRSLP
from any obligation it may have to make any cash distributions to
Contributor on or after the Effective Date; provided, however, that
Contributor shall be entitled to receive its pro rata share of any
cash distribution paid by DRSLP after the Effective Date pursuant
to Section 4.02 of the DRSLP Partnership Agreement solely with
respect to the last calendar month of 2004.
ARTICLE 5 -
CLOSING
Section 5.01.
Time and Place
.
The closing of the transactions
contemplated by this Agreement (“Closing”) shall be
held at such specific time and place as Partnership and Contributor
may hereafter mutually agree, but shall be effective as of the
Effective Date (“Closing Date”).
Section 5.02.
Delivery by
Contributor .
At Closing, Contributor shall
execute and deliver to Partnership an Assignment Separate From
Certificate executed by Contributor, conveying and transferring the
Property to Partnership.
Section 5.03.
Delivery by
Partnership .
At Closing, Partnership shall
execute and deliver to Contributor a certificate for the
Units.
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Section 5.04.
Closing Costs
.
At the Closing, Contributor and
Partnership shall pay their own respective costs incurred with
respect to the consummation of the transactions as contemplated
herein, including, without limitation, attorneys’
fees.
ARTICLE 6 - WARRANTIES AND
REPRESENTATIONS
Section 6.01.
Warranties and Representations of
Partnership .
Partnership makes the following
warranties and representations to Contributor, each of which shall
remain true and accurate as of the Closing Date:
(a) Organization . Partnership is a limited partnership
duly organized and validly existing under the laws of the State of
Indiana. Partnership is in good standing and qualified to do
business in the State of Indiana.
(b) Authorization . Partnership possesses all necessary
authority to enter into and perform its obligations expressed by
this Agreement. Neither the making of this Agreement nor the
performance of Partnership’s obligations contemplated by its
terms will result in the violation or breach of any agreement,
order or ruling to which Partnership is a party or by which it is
bound.
(c) Duly Authorized Representative
. The persons executing this
Agreement and other documents contemplated by this transaction on
behalf of Partnership are duly authorized to act for and in its
behalf.
(d) Insolvency . Partnership is not subject to any
involuntary dissolution or liquidation proceeding.
Partnership is not now, and after giving effect to the transactions
contemplated by this Agreement, Partnership will not be, insolvent
a
