(State of Formation) |
(Commission File Number) |
(IRS Employer Identification No.) |
(State of Formation) |
(Commission File Number) |
(IRS Employer Identification No.) |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Title of each class |
Trading Symbol |
Name of each exchange on which registered | ||
Item 9.01. |
Financial Statements and Exhibits. |
Exhibit Number |
Description | |
5.1 | Legality Opinion of Alston & Bird LLP. | |
8.1 | Tax Opinion of Alston & Bird LLP. | |
23.1 | Consent of Alston & Bird LLP (included in Exhibit 5.1). | |
23.2 | Consent of Alston & Bird LLP (included in Exhibit 8.1). | |
99.1 | Other Expenses of Issuance and Distribution (as required by Item 14 of Part II of Form S-3) (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K filed with the Commission on February 19, 2021). | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
DUKE REALTY CORPORATION | ||
By: | /s/ Ann C. Dee | |
Ann C. Dee | ||
Executive Vice President, General Counsel and | ||
Corporate Secretary | ||
DUKE REALTY LIMITED PARTNERSHIP | ||
By: Duke Realty Corporation, its general partner | ||
By: | /s/ Ann C. Dee | |
Ann C. Dee | ||
Executive Vice President, General Counsel and | ||
Corporate Secretary |
Exhibit 5.1
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
404-881-7000
Fax: 404-881-7777
www.alston.com
April 30, 2021
Duke Realty Corporation
Duke Realty Limited Partnership
8711 River Crossing Boulevard
Indianapolis, IN 46240
Re: |
Duke Realty Corporation Registration Statement on Form S-3ASR (Registration Statement No. 333-255633), filed with the Securities and Exchange Commission on April 30, 2021 |
Ladies and Gentlemen:
We have acted as counsel to Duke Realty Corporation, an Indiana corporation (the Company), and Duke Realty Limited Partnership, an Indiana limited partnership (the Operating Partnership, and, together with the Company, the Duke Entities), in connection with (i) the filing of the above referenced shelf registration statement (the Registration Statement) with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act) and (ii) the issuance and sale, from time to time, of up to $400,000,000 aggregate gross sales price of shares of the Companys common stock, par value $0.01 per share (Common Stock), pursuant to the terms of the Equity Distribution Agreement, dated February 19, 2021 (the Equity Distribution Agreement), by and among the Company, the Operating Partnership, and each of the persons named on Schedule 1 attached hereto (the Agents), which, among other things, contemplates that the Company may from time to time enter into one or more agreements (the Forward Sale Agreements, and together with the Equity Distribution Agreement, the Agreements) with each of the persons named on Schedule 2 attached hereto (the Forward Purchasers). The Company previously registered shares of its Common Stock having an aggregate offering price of up to $400,000,000 for sale pursuant to the terms of the Equity Distribution Agreement under its shelf registration statement, dated April 30, 2018. This opinion relates to the issuance and sale, from time to time, of up to $349,141,233 aggregate gross sales price of shares of the Companys Common Stock (the Shares) that remain unsold under the Equity Distribution Agreement and to which the Prospectus Supplement (as defined below) relates.
Atlanta | Beijing | Brussels | Charlotte | Dallas | Fort Worth | London | Los Angeles | New York | Raleigh | San Francisco | Silicon Valley | Washington, D.C.
The offering of the Shares by the Company is being made pursuant to the Registration Statement and the Companys prospectus, dated April 30, 2021 (the Prospectus), included in the Registration Statement, and the related prospectus supplement dated April 30, 2021 (the Prospectus Supplement). This opinion letter is being furnished in accordance with the requirements of Item 16 of the Commissions Form S-3 and Item 601(b)(5) of Regulation S-K under the Securities Act.
In the capacity described above, we have considered such matters of law and of fact, including the examination of originals or copies, certified or otherwise identified to our satisfaction, of such records and documents of the Duke Entities, including, without limitation, resolutions adopted by the boards of directors or other governing bodies or controlling entities of the Duke Entities and the organizational documents of the Duke Entities (in each case, as amended and/or restated), certificates of officers and representatives (who, in our judgment, are likely to know the facts upon which the opinion or confirmation will be based) of the Duke Entities, certificates of public officials, the Registration Statement, the Prospectus Supplement, the Equity Distribution Agreement, and such other documents as we have deemed appropriate as a basis for the opinion hereinafter set forth. We also have made such further legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set forth herein.
As to certain factual matters relevant to this opinion letter, we have relied conclusively upon the representations, warranties, and statements made in originals or copies, certified or otherwise identified to our satisfaction, of such records, agreements, documents, and instruments entered into by the Duke Entities in connection with the issuance of the Shares, including, without limitation, the Equity Distribution Agreement, certificates or comparable documents of officers of the Duke Entities and public officials. Except to the extent expressly set forth herein, we have made no independent investigations with regard thereto, and, accordingly, we do not express any opinion or belief as to matters that might have been disclosed by independent verification.
In our examination of the relevant documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing.
Our opinion set forth below is limited to the Indiana Business Corporation Law, applicable provisions of the Constitution of the State of Indiana and reported judicial decisions interpreting such Corporation Law and Constitution that, in our professional judgment, are normally applicable to transactions of the type contemplated by the Equity Distribution Agreement, and federal laws of the United States of America to the extent referred to specifically herein, and we do not express any opinion herein concerning any other laws, statutes, ordinances, rules, or regulations.
Based upon the foregoing, and subject, in all respects, to the limitations, qualifications, exceptions, and assumptions set forth herein, it is our opinion that:
(1) The issuance of the Shares has been duly authorized and, following (i) due execution and delivery of the Equity Distribution Agreement by the parties thereto, (ii) due execution and delivery of each Forward Sale Agreement relating to any forward purchase pursuant to the Equity Distribution Agreement in the form attached as an exhibit to the Equity Distribution Agreement, together with the relevant supplemental confirmation thereto (the Supplemental Confirmation), (iii) authorization by a duly authorized officer, designated by the Companys board of directors to approve placement notices under the Agreements, of the terms of each placement notice issued and Supplemental Confirmation (if any) executed in a manner consistent with the foregoing and pursuant to which the Shares may be sold pursuant to the Agreements, (iv) issuance of the Shares pursuant to the terms of the applicable Agreement and the applicable placement notice and Supplemental Confirmation (if any), and (v) receipt by the Company of the proceeds for the Shares sold pursuant to the terms of such applicable Agreement and applicable placement notice and Supplemental Confirmation (if any), the Shares will be validly issued, fully paid, and nonassessable.
This opinion letter is provided for use solely in connection with the transactions contemplated by the Registration Statement, the Prospectus and the Prospectus Supplement, and may not be used, circulated, quoted, or otherwise relied upon for any other purpose without our prior express written consent. The only opinion rendered by us consists of those matters set forth in the paragraph numbered (1) above, and no opinion may be implied or inferred beyond the opinion expressly stated. Our opinion expressed herein is made as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that may come to our attention after the date hereof that may affect our opinion expressed herein.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement (or to the filing of this opinion as Exhibit 5.1 to a Current Report on Form 8-K, which will be incorporated by reference into the Registration Statement, as appropriate), and to the reference to this law firm under the caption Legal Matters in the Prospectus Supplement constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an expert within the meaning of the Securities Act or that we are otherwise within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
[Signature Page to Follow]
Sincerely,
| ||
ALSTON & BIRD LLP
| ||
By: |
/s/ Mark C. Kanaly | |
Mark C. Kanaly | ||
A Partner |
[Signature Page to 5.1 Opinion]
Schedule 1
Barclays Capital Inc.
745 Seventh Avenue, 23rd Floor
New York, New York 10019
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
J.P. Morgan Securities LLC
383 Madison Avenue, 5th Floor
New York, New York 10179
RBC Capital Markets, LLC
200 Vesey Street, 10th Floor
New York, New York 10281
Regions Securities LLC
615 South College Street
Charlotte, North Carolina 28202
Scotia Capital (USA) Inc.
250 Vesey Street
New York, New York 10281
Wells Fargo Securities, LLC
500 West 33rd Street, 14th Floor
New York, New York 10001
Schedule 2
Barclays Bank PLC
c/o Barclays Capital Inc.
745 Seventh Avenue, 23rd Floor
New York, New York 10019
Citibank, N.A.
c/o Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
JPMorgan Chase Bank, National Association
c/o J.P. Morgan Securities LLC
383 Madison Avenue, 5th Floor
New York, New York 10179
Royal Bank of Canada
c/o RBC Capital Markets, LLC
200 Vesey Street, 10th Floor
New York, New York 10281
The Bank of Nova Scotia
c/o Scotia Capital (USA) Inc.
250 Vesey Street
New York, New York 10281
Wells Fargo Bank, National Association
c/o Wells Fargo Securities, LLC
500 West 33rd Street, 14th Floor
New York, New York 10001
Exhibit 8.1
The Atlantic Building
950 F Street, NW
Washington, DC 20004-1404
202-239-3300 | Fax: 202-654-4829
www.alston.com
April 30, 2021
Duke Realty Corporation
8711 River Crossing Blvd
Indianapolis, IN 46240
Re: | Duke Realty Corporation Sale of Common Stock |
Ladies and Gentlemen:
We have acted as counsel for Duke Realty Corporation, an Indiana corporation (the Company), and Duke Realty Limited Partnership, an Indiana limited partnership (the Operating Partnership). We have represented the Company and the Operating Partnership in connection with the Companys issuance and sale of the Companys common stock par value $.01 per share (the Shares) pursuant to the Equity Distribution Agreement dated as of February 19, 2021, between the Company, the Operating Partnership, Barclays Capital Inc., Citigroup Global Markets Inc., J.P. Morgan Securities LLC, RBC Capital Markets, LLC, Regions Securities LLC, Scotia Capital (USA) Inc., Wells Fargo Securities, LLC, and the forward purchasers named therein (the Equity Distribution Agreement)
You have requested our opinion as to (i) the qualification of the Company as a real estate investment trust (REIT) under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the Code) and (ii) the accuracy of the discussion of U.S. federal income tax considerations contained under the caption Federal Income Tax Considerations in the Base Prospectus (as defined below).
In connection with this opinion, we have made such legal and factual inquiries as we have deemed necessary or appropriate, including examination of the Companys Registration Statement on Form S-3 (Registration Statement No. 333-255633), filed with the Securities and Exchange Commission (the Commission) on April 30, 2021 (as amended and supplemented from time to time and including the documents incorporated by reference therein, the Registration Statement), which includes the Companys base prospectus dated April 30, 2021 (the Base Prospectus), and the Companys prospectus supplement dated April 30, 2021 (the Prospectus Supplement) (the Base Prospectus and the Prospectus Supplement and the documents incorporated by reference therein, collectively, the Prospectus). In addition, the Company has provided us with, and we are relying upon, a certificate containing certain factual representations and covenants of officers of the Company (the Officers Certificate) relating to, among other things, the actual and proposed operations of the Company and the entities in
Atlanta | Beijing | Brussels | Charlotte | Dallas | Fort Worth | London | Los Angeles | New York | Raleigh | San Francisco | Silicon Valley | Washington, D.C.
which it holds direct or indirect interests. For purposes of our opinion, however, we have not made an independent investigation of the facts, representations and covenants set forth in the Officers Certificate, the Base Prospectus, or in any other document. In particular, we note that the Company may engage in transactions in connection with which we have not provided legal advice, and have not reviewed, and of which we may be unaware. We have assumed and relied on the representations that the information presented in the Officers Certificate and the Prospectus accurately and completely describe all material facts relevant to our opinion. We have assumed that such statements, representations and covenants are true without regard to any qualification as to knowledge or belief. We are not, however, aware of any facts inconsistent with the representations contained in the Officers Certificate or the facts in the above referenced documents. Our opinion is conditioned on the continuing accuracy and completeness of such statements, representations and covenants. Any material change or inaccuracy in the facts referred to, set forth, or assumed herein or in the Officers Certificate may affect our conclusions set forth herein.
In rendering the opinions set forth herein, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures thereon, the legal capacity of natural persons executing such documents and the conformity to authentic original documents of all documents submitted to us as copies.
Based upon the foregoing, and subject, in all respects, to the assumptions, qualifications and limitations set forth in this opinion letter, it is our opinion that:
(i) | Commencing with its taxable year ended December 31, 1999, the Company has been organized, and has operated, in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the present and proposed method of operation (as described in the Base Prospectus and the Officers Certificate) of the Company will permit the Company to continue to so qualify. |
(ii) | The statements in the Base Prospectus under the caption Federal Income Tax Considerations, to the extent that they constitute matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, are correct in all material respects. |
The Companys qualification as a REIT depends on the Companys ongoing satisfaction of the various requirements under the Code and described in the Base Prospectus under the caption Federal Income Tax Considerations relating to, among other things, the nature of the Companys gross income, the composition of the Companys assets, the level of distributions to the Companys shareholders, and the diversity of the Companys ownership. Alston & Bird LLP will not review the Companys compliance with these requirements on a continuing basis. No assurances can be given that the Company will satisfy these requirements.
An opinion of counsel merely represents counsels best judgment with respect to the probable outcome on the merits and is not binding on the Internal Revenue Service or the courts. There can be no assurance that positions contrary to our opinion will not be taken by the Internal Revenue Service or that a court considering the issues would not hold contrary to such opinion.
The opinions expressed herein are given as of the date hereof and are based upon the Code, the Treasury Regulations promulgated thereunder, current administrative positions of the Internal Revenue Service, and existing judicial decisions, any of which could be changed at any time, possibly on a retroactive basis. Any such changes could adversely affect the opinions rendered herein. In addition, as noted above, our opinions are based solely on the documents that we have examined and the representations that have been made to us, and cannot be relied upon if any of the facts contained in such documents or in such additional information is, or later becomes, inaccurate or if any of the representations made to us is, or later becomes, inaccurate. Finally, our opinion is limited to the U.S. federal income tax matters specifically covered herein, and we have not opined on any other tax consequences to the Company or any other person, and we express no opinion with respect to other federal laws, the laws of any other jurisdiction, the laws of any state or as to any matters of municipal law or the laws of any other local agencies within any state.
This opinion letter is provided to you for your use solely in connection with the offering of the Shares and may not be used, circulated, quoted or otherwise referred to or relied upon by any other person or for any other purpose without our express written consent or used in any other transaction or context. No opinion other than that expressly contained herein may be inferred or implied. This opinion letter is rendered as of the date hereof and we make no undertaking, and expressly disclaim any duty, to supplement or update this opinion letter, if, after the date hereof, facts or circumstances come to our attention or changes in the law occur which could affect such opinion.
We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the Registration Statement (or to the filing of this opinion as Exhibit 8.1 to a Current Report on Form 8-K, which will be incorporated by reference into the Registration Statement, as appropriate), and to the reference to this firm under the caption Legal Matters in the Prospectus Supplement constituting a part of the Registration Statement. In giving this consent, we do not hereby admit that we are an expert within the meaning of the Act.
Very truly yours, |
/s/ Alston & Bird LLP |
ALSTON & BIRD LLP |
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