Exhibit 1.1
CARRAMERICA REALTY CORPORATION
(a Maryland corporation)
Common Stock, Preferred Stock, Common Stock Warrants, Debt Warrants
Depositary Shares and Debt Securities
UNDERWRITING AGREEMENT
September 25, 1998
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
CarrAmerica Realty Corporation (the "Company") may from time
to time offer in one or more series its (i) unsecured debt securities ("Debt
Securities"), (ii) preferred stock, $.01 par value ("Preferred Stock"), (iii)
common stock, $.01 par value ("Common Stock"), (iv) warrants exercisable for
Common Stock ("Common Stock Warrants") , (v) warrants exercisable for Debt
Securities ("Debt Warrants" and, together with Common Stock Warrants,
"Warrants") and (vi) shares of Preferred Stock represented by depositary shares
("Depositary Shares"), with an aggregate public offering price of up to
$1,000,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale) in amounts, at prices and on terms to be determined at the
time of offering. The Debt Securities, Preferred Stock, Common Stock, Warrants,
and Depositary Shares (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
Warrants will be issued pursuant to a Warrant Agreement (the "Warrant
Agreement") between the Company and a warrant agent (the "Warrant Agent"). The
Debt Securities will be issued under one or more indentures, as amended or
supplemented (each, an "Indenture"), between the Company and a trustee (a
"Trustee"). The Debt Securities may be guaranteed (the "Guarantees") as to
payments of principal, interest and premium, if any, by CarrAmerica Realty, L.P.
(the "Guarantor"). The Company may issue receipts for the Depositary Shares,
each of which will represent a fractional interest of a share of a particular
series of Preferred Stock. Shares of Preferred Stock of each series represented
by Depositary Shares will be deposited under a separate deposit agreement (each
a "Deposit Agreement") among the Company, the depositary named therein and the
holders from time to time of receipts for the Depositary Shares. Each series of
Preferred Stock may vary as to the specific number of shares, title, liquidation
preference, issuance price, ranking, dividend rate or rates (or method of
calculation), dividend payment dates, any redemption or sinking fund
requirements, any conversion provisions and any other variable terms as set
forth in the applicable articles supplementary (each, an "Articles
Supplementary") relating to such Preferred Stock as issued from time to time.
Each series of Debt Securities may vary as to aggregate principal amount,
maturity date, interest rate or formula and timing of payments thereof,
redemption or repayment provisions, conversion 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 determines to make an offering of
Securities through the Representatives or through an underwriting syndicate
managed by the Representatives, the Company 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 Underwritten Securities"), the names of the Underwriters participating
in such offering (subject to substitution as provided in Section 10 hereof), the
amount of Initial Underwritten 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 Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, if any, of
the Initial Underwritten Securities, the time and place of delivery and payment
and any other variable terms of the Initial Underwritten 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 conversion, redemption or repayment provisions
applicable to the Initial Underwritten 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 Underwritten 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. 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 Guarantor have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(No. 333-53751) for the registration of the Securities and the Guarantees 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
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Regulations"), and the Company and the Guarantor 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), and each prospectus supplement relating to the
offering of Underwritten Securities pursuant to Rule 415 of the 1933 Act
Regulations (the "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 for use in
connection with the offering of Underwritten 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 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 Representatives 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 and the Guarantor
under Rule 462(b) of the 1933 Act Regulations (a "Rule 462(b) Registration
Statement") shall be deemed to be part of the Registration Statement. Any
prospectus (including any amendment or supplement thereto or information which
is deemed part thereof) included in the Rule 462(b) Registration Statement 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. For purposes of this Agreement,
all references to the Registration Statement, any preliminary prospectus,
preliminary prospectus supplement, Prospectus or Prospectus Supplement or any
Term Sheet or any amendment or supplement to the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System.
The term "Subsidiary" means (i) a corporation or a partnership
a majority of the outstanding voting stock, partnership or membership interests,
as the case may be, of which is owned or controlled, directly or indirectly, by
the Company, Carr Realty, L.P., a Delaware limited partnership ("Carr L.P."), or
CarrAmerica Realty, L.P., a Delaware limited partnership ("CarrAmerica L.P." and
together with Carr L.P., the "Partnerships"), as the case may be, or by one or
more other Subsidiaries of the Company or either Partnership, and (ii)
OmniOffices, Inc. ("OmniOffices").
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SECTION 1. Representations and Warranties of the Company.
(a) The Company represents and warrants 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 (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 Regulations and, at the time any Debt
Securities are issued, will comply with 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 and Closing Time (as hereinafter defined)
(unless the term "Prospectus" refers to a prospectus which has been
provided to the Representatives by the Company for use in connection
with an offering of Underwritten Securities which differs from the
Prospectus on file at the Commission at the time the Registration
Statement became effective, in which case at the time it was first
provided to the Representatives for such use) 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 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 and Qualification
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 has complied or will comply with the requirements of Rule
111 under the 1933 Act Regulations relating to the payment of filing
fees therefor.
(ii) 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 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 Closing Time 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.
(iii) The accountants who certified 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.
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(iv) The financial statements (including the notes
thereto) included in, or incorporated by reference into, the
Registration Statement and the Prospectus present fairly the financial
position of the respective entity or entities presented therein at the
respective dates indicated and the results of their operations for the
respective periods specified; except as otherwise stated in the
Registration Statement and Prospectus, said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; the supporting schedules
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the information required to be stated
therein; and the Company's ratios of earnings to fixed charges (actual
and, if any, proforma) included in the Prospectus under the captions
"Ratios of Earnings to Fixed Charges" and in Exhibit 12.1 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 in all material respects the pro forma
financial position of the Company at the respective dates indicated (if
such financial position is presented) and the results of operations for
the respective periods specified.
(v) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company or either Partnership, threatened by the Commission or by
the state securities authority of any jurisdiction. No order preventing
or suspending the use of the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company or either Partnership, threatened by the Commission or by
the state securities authority of any jurisdiction.
(vi) 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 or business affairs of the Company, the Partnerships,
and the Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business; (B) no material casualty
loss or material condemnation or other material adverse event with
respect to any of the interests held directly or indirectly in any of
the real properties owned, directly or indirectly, by the Company,
either Partnership or any Subsidiary (the "Properties") or any entity
wholly or partially owned by the Company, either Partnership or any
Subsidiary has occurred; (C) there have been no acquisitions or
transactions entered into by the Company, either Partnership or any
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Subsidiary, other than those in the ordinary course of business, which
are material with respect to such entities or would result, upon
consummation, in any material inaccuracy in the representations
contained in Section 1(a)(iv) above; (D) except for regular quarterly
dividends on the Common Stock, and dividends on the Preferred Stock, if
any, and distributions by either of the Partnerships with respect to
its partnership interests ("Units"), there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock or by either of the Partnerships with
respect to its Units; and (E) with the exception of transactions in
connection with stock and Unit options and in connection with dividend
reinvestment plans, the issuance of shares of Common Stock upon the
exchange of 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 or membership
interests, as the case may be, of the Company, either of the
Partnerships or any Subsidiary, and no increase in the indebtedness of
the Company, either of the Partnerships, or any Subsidiary, that is
material to the Company, the Partnerships and the Subsidiaries,
considered as one enterprise.
(vii) The Company has been duly formed, and is
validly existing and in good standing as a corporation under the laws
of Maryland with 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, the Terms Agreement,
any Warrant Agreement and any Indenture.
(viii) Each of the Partnerships and the Subsidiaries
has been duly formed, and is validly existing and in good standing as a
corporation or partnership under the laws of its jurisdiction of
organization, with partnership or corporate power and authority to
conduct the business in which it is engaged or proposes to engage and
to own, lease and operate its properties as described in the
Prospectus.
(ix) Each of the Company, the Partnerships and the
Subsidiaries 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, leasing or management 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 or business affairs of the Company, the
Partnerships and the Subsidiaries considered as one enterprise (a
"Material Adverse Effect").
(x) If the applicable Underwritten Securities are
Common Stock, Preferred Stock or Common Stock Warrants, the capital
stock of the Company as of the date specified in the Prospectus is as
set forth therein under "Capitalization." 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).
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(xi) Except for transactions described in the
Prospectus and transactions in connection with stock and Unit options
and in connection with dividend reinvestment plans and exchanges of
Units, there are no outstanding securities convertible into or
exchangeable for any capital stock of the Company and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for such shares, Units or other securities of the Company,
the Partnerships or the Subsidiaries (other than OmniOffices).
(xii) The applicable Underwritten Securities, if such
Underwritten Securities are Common Stock or Preferred Stock, 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, 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 in all material respects to
all statements and descriptions related thereto contained in the
Prospectus. The form of stock 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, except as described in the
Prospectus.
(xiii) If applicable, the Warrants have been duly
authorized by the Company for issuance and sale to the Underwriters
pursuant to this Agreement, and, when issued and delivered in the
manner provided for in this Agreement and any Terms Agreement and
countersigned by the Warrant Agent as provided in the Warrant
Agreement, against payment of the consideration therefor specified in
the applicable Terms Agreement, will be duly executed, countersigned,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Warrant Agreement under which they are issued. 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 the Warrants conform in all material
respects to all statements and descriptions related thereto contained
in the Prospectus. The issuance of the Warrants is not subject to any
preemptive or other similar rights, except as described in the
Prospectus.
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(xiv) The applicable Underwritten Securities, if such
Underwritten Securities are Debt Securities and the related Guarantees,
if any, are in the form contemplated by the Indenture, have been duly
authorized by the Company and the Guarantor 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, such Debt Securities, together with the Guarantees, if any,
will constitute valid and legally binding obligations of the Company or
the Guarantor, as applicable, entitled to the benefits of the Indenture
and such Debt Securities and Guarantees will be enforceable against the
Company or the Guarantor, as applicable, in accordance with their
terms; provided, however, that the enforceability of the foregoing may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally and by general equitable
principles. 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 and the related Guarantees,
if any, conform in all material respects 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 Company that
is outstanding on the Representation Date or that may be incurred
thereafter, and senior to all subordinated indebtedness of the Company
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.
(xv) If applicable, the Common Stock issuable upon
conversion of any of the Debt Securities or the Preferred Stock and
upon exercise of the Common Stock Warrants 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
except as described in the Prospectus. The Common Stock so issuable
conforms in all material respects to all statements relating thereto
contained in the Prospectus.
(xvi) If applicable, the Debt Securities issuable upon the
exercise of the Debt Warrants are in the form contemplated by the
Indenture, have been duly authorized by the Company for issuance upon
exercise of the Debt Warrants and, when executed, authenticated, issued
and delivered in the manner provided for in the Debt Warrants and the
applicable Indenture, against payment of the consideration therefor
specified in the Debt Warrants, such Debt Securities will constitute
valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and such Debt Securities will be enforceable
against the Company in accordance with their terms; provided, however,
that the enforceability of the foregoing may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles.
(xvii) The applicable Warrant Agreement, if any, will
have been duly authorized, executed and delivered by the Company prior
to the issuance of any applicable Underwritten Securities, and will
constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms; provided, however, that the
enforceability of the foregoing may be limited by bankruptcy,
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insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles. The Warrant
Agreement conforms in all material respects to all statements relating
thereto contained in the Prospectus.
(xviii) (A) This Agreement has been duly and validly
authorized, executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the Representatives, is a
valid and binding agreement of the Company, and (B) at the
Representation Date, the Terms Agreement will have been duly and
validly authorized, executed and delivered by the Company, and,
assuming due authorization, execution and delivery by the
Representatives, will be valid and binding agreements, enforceable in
accordance with its or their terms; provided, however, that the
enforceability of the foregoing may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles;.
(xix) If applicable, the Indenture (A) has been duly qualified
under the 1939 Act, will have been duly and validly authorized,
executed and delivered by the Company prior to the issuance of any
applicable Underwritten Securities, and when executed and delivered by
the Trustee, will constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms; provided, however,
that the enforceability of the foregoing may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles; and (B) conforms
in all material respects to the description thereof in the Prospectus.
(xx) None of the Company, the Partnerships or any Subsidiary
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 violation or default separately or
in the aggregate would have a Material Adverse Effect.
(xxi) The issuance of the Underwritten Securities, the
execution and delivery of this Agreement, the applicable Terms
Agreement, any Warrant Agreement, any Deposit Agreement and any
Indenture and the performance of the obligations set forth herein or
therein by the Company, and the consummation of the transactions
contemplated hereby and thereby will not (A) result in the creation of
any lien, charge or encumbrance upon the Properties and (B) conflict
with or constitute a breach or violation by the parties thereto of, or
default under, (1) any material contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or other
instrument or agreement to which the Company, either of the
Partnerships or any Subsidiary is a party, or by which they, any of
them, any of their respective properties or other assets or any
Property (including, without limitation, partnership and other
interests in partnerships or other entities which own direct or
indirect interests therein) is or may be bound or subject, (2) the
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charter, by-laws, certificate of limited partnership, partnership
agreement or other organizational document, as the case may be, of the
Company, the Partnerships or any Subsidiary or (3) any applicable law,
rule, order, administrative regulation or administrative or court
decree.
(xxii) 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 and the Partnerships,
threatened against or affecting the Company, either of the
Partnerships, any Subsidiary, any Property or any officer or director
of the foregoing that is required to be disclosed in the Registration
Statement (other than as disclosed therein), and that, if determined
adversely to the Company, the applicable Partnership, any Subsidiary,
any Property, or any such officer or director, would reasonably be
expected to result in any Material Adverse Effect, or which might
materially and adversely affect the consummation of this Agreement, the
applicable Terms Agreement, any Warrant Agreement, any Deposit
Agreement, the Indenture, if any, or the transactions contemplated
herein and therein. There is no pending legal or governmental
proceeding to which the Company, either of the Partnerships or any
Subsidiary is a party or of which any of their respective properties or
assets or any Property (including, without limitation, partnership and
other interests in partnerships or other entities which own direct or
indirect interests therein), is the subject, including ordinary routine
litigation incidental to the business or operations of the foregoing,
that is or would reasonably be expected to be, material to the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Company, the Partnerships and the
Subsidiaries, considered as one enterprise. There are no contracts or
documents of a character 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 filed as exhibits to the Registration
Statement.
(xxiii) At all times beginning with its taxable
period ended December 31, 1993, 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 operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(xxiv) None of the Company, the Partnerships or any
Subsidiary is required to be registered under the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxv) The Company, the Partnerships and the other
Subsidiaries own, possess or license the trademarks, service marks and
trade names (collectively, "proprietary rights") that are material to
the businesses now operated or proposed to be operated by them and that
are currently employed or proposed to be employed by them in connection
with such businesses, and none of the Company, the Partnerships or any
of the Subsidiaries has received any notice or is otherwise aware of
any infringement of or conflict with asserted rights of others with
respect to any such proprietary rights.
(xxvi) All authorizations, approvals or consents of
any court or government authority or agency or other entity or person
that are necessary in connection with the offering, issuance or sale of
the Underwritten Securities hereunder by the Company have been
obtained, except such as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws with respect to the
Underwritten Securities.
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(xxvii) Each of the Company, the Partnerships and the
Subsidiaries possesses such certificates, authorizations or permits
issued by the appropriate regulatory agencies or bodies necessary to
conduct the business now conducted by it, or proposed to be conducted
by it, and none of the Company, either of the Partnerships or any
Subsidiary 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 materially and adversely affect the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Company, the Partnerships and the
Subsidiaries considered as one enterprise.
(xxviii) No material labor dispute with the employees
of the Company, either of the Partnerships or any Subsidiary exists or,
to the knowledge of the Company or either of the Partnerships is
imminent.
(xxix) Except as disclosed in the Prospectus, (A) to
the knowledge of the Company, the Environment (as defined below) at
each Property is free of any Hazardous Substance (as defined below)
except for any Hazardous Substance that would not reasonably be
expected to have any material adverse effect on the condition,
financial or otherwise, or on the earnings, assets, business affairs or
business prospects of the Property, the Company, the Partnerships and
the Subsidiaries considered as one enterprise; (B) none of the Company,
the Partnerships or any Subsidiary and, to the knowledge of the Company
and the Partnerships, no prior owner of any Property 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 in
violation of any Environmental Law applicable to such Property in an
amount that would reasonably be expected to have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
assets, business affairs or business prospects of any Property, the
Company, the Partnerships and the Subsidiaries considered as one
enterprise and no condition exists on, in or under any Property or, to
the knowledge of the Company or the Partnerships, any property adjacent
to any Property that could reasonably be expected to result in the
occurrence of material liabilities under, or any material violations
of, any Environmental Law (as defined below) applicable to such
Property, give rise to the imposition of any Lien (as defined below)
under any Environmental Law, or cause or constitute an environmental
hazard to any property, person or entity; (C) none of the Company, the
Partnerships or any Subsidiary is engaged in or intends to engage in
any manufacturing or any other similar operations at any Property and,
to the knowledge of the Company and the Partnerships, no prior owner of
any Property engaged in any manufacturing or any similar operations at
any Property that (1) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance (other than
paints, stains, cleaning solvents, insecticides, herbicides, or other
substances that are used in the ordinary course of operating any
Property and in compliance with all applicable Environmental Laws) or
(2) require permits or are otherwise regulated pursuant to any
Environmental Law; (D) none of the Company, the Partnerships or any
Subsidiary and, to the knowledge of the Company and the Partnerships,
no prior owner of any Property has received any notice of a claim under
or pursuant to any Environmental Law applicable to a Property or under
common law pertaining to Hazardous Substances on any Property or
pertaining to other property at which Hazardous Substances generated at
any Property have come to be located; (E) none of the Company, the
Partnerships or any Subsidiary and, to the best knowledge of the
Company and the Partnerships, no prior owner of any Property has
received any notice from any Governmental Authority (as defined below)
claiming any violation of any Environmental Law that is uncured or
unremediated as of the date hereof; and (F) no Property (1) is included
11
or 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 on the Comprehensive
Environmental Response, Compensation, and Liability Information System
database maintained by the EPA as a potential CERCLA removal, remedial
or response site or (2) is included or proposed for inclusion on, any
similar list of potentially contaminated sites pursuant to any other
applicable Environmental Law nor has the Company, either of the
Partnerships or any Subsidiary received any written notice from the EPA
or any other Governmental Authority proposing the inclusion of any
Property on such list.
As used herein, "Hazardous Substance" shall include any
hazardous substance, hazardous waste, toxic or dangerous substance,
pollutant, asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation, pollutant
or waste, including any such substance, pollutant or waste identified,
listed 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. ss.
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 and structures;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act, as amended (42 U.S.C. ss.
9601, et seq.) ("CERCLA"), the Resource Conservation Recovery Act, as
amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as amended
(42 U.S.C. ss. 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. ss. 1251, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. ss. 2601, et seq.), the Toxic Substances Control Act, as
amended (29 U.S.C. ss. 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ss. 1801, et seq.), together
with all rules, regulations and orders promulgated thereunder and all
other federal, state and local laws, ordinances, rules, regulations and
orders relating to the protection of the environment 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 material mortgage,
deed of trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on or
affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(xxx) Each of the Company, the Partnerships and the
Subsidiaries has filed all federal, state, local and foreign income and
franchise tax returns which have been required to be filed and each
such tax return was filed on or prior to the date on which such tax
12
return was required to be filed or, in lieu of such timely filings,
each of the Company, the Partnerships, or the Subsidiaries, as the case
may be, has duly and timely filed such applications for extension as
may be required to effect all necessary extensions (such extensions
having been obtained and remaining in full force and effect) and has
paid all taxes shown thereon as due and payable 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
through appropriate proceedings and as to which appropriate reserves
have been established.
(xxxi) Except as disclosed in the Registration
Statement and except for (i) persons who received Units or shares of
Common Stock in connection with the formation of the Company, or (ii)
persons who received shares of Common Stock, options to acquire shares
of Common Stock or Units in connection with transactions with the
Partnerships or the Company, 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 under the
1933 Act.
(xxxii) Each of the Company, the Partnerships and the
Subsidiaries (or the partnership or other entity owning the Property)
has obtained title insurance insuring good, marketable and lien free
title to the Properties owned by them (other than the Properties in
which the applicable entity owns less than a majority interest),
subject only to customary easements and encumbrances and other
exceptions to title which do not materially impair the operation,
development or use thereof for the purposes intended therefor as
contemplated by the Prospectus on each of such Properties.
(xxxiii) The Common Stock will be listed on the New
York Stock Exchange on the applicable Representation Date and at the
applicable Closing Time. If so stated in the applicable Prospectus
Supplement as of the applicable Representation Date, the Preferred
Stock and Warrants, as applicable, will have been approved for listing
on the New York Stock Exchange upon notice of issuance.
(xxxiv) Unless otherwise agreed to by the
Representatives, the Preferred Stock, Debt Securities and Debt Warrants
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.
(xxxv) If the Underwritten Securities are Debt
Securities, then 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 partnerships or other entities owning an
interest in the Properties nor any person related to or affiliated with
such partnerships or other entities 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
directly or indirectly by the Company, the Partnerships or the
Subsidiaries.
13
(xxxvi) Each of the Company, the Partnerships and the
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 Partnerships and the Subsidiaries has any
reason to believe that it 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.
(xxxvii) The Company has not taken and will not take,
directly or indirectly, any action prohibited by Regulation M under the
1934 Act.
(xxxviii) The assets of the Company and the
Partnerships do not constitute "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended.
(b) Any certificate signed by any officer of the Company,
either of the Partnerships or of any of the 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 the 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 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. 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 setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date 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. If the
option is exercised as to all or any portion of the Option Securities, each of
14
the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option 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 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 at 9:30 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 (each referred to herein as a
"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 on each Date of Delivery
as specified in the notice from the Representatives to the Company. Unless
otherwise specified in the applicable Terms Agreement, payment shall be made to
the Company by wire transfer of Federal or similar same day funds payable to the
order of the Company against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for 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 Underwritten 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.
SECTION 3. Covenants of the Company. The Company 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 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
15
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, the initial public offering price, if
any, the selling concession and reallowance, if any, and such other
information as the Representatives and the Company deem appropriate in
connection with the offering of the Underwritten Securities; and the
Company 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 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 will prepare and file or transmit for filing a Rule 462(b)
Registration Statement not later than the date of execution of the
Terms Agreement. If a Rule 462(b) Registration Statement is filed, the
Company 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 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 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 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 will deliver to the Representatives as soon as
available as many signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits
16
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 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 the Underwriters 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 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 will furnish to the Underwriters a reasonable number of copies
of such amendment or supplement.
(h) The Company 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; provided, however, that the Company shall not be obligated
to (i) qualify as a foreign corporation in a jurisdiction it is not so
qualified, (ii) file any general consent to service of process or (iii)
take any actions that would subject it to income taxation in any such
jurisdiction. In each jurisdiction in which the Underwritten Securities
have been so qualified, the Company 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 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) The Company 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."
17
(k) The Company, 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, to the
extent the Preferred Stock, Warrants or Debt Securities (including Debt
Securities issuable upon exercise of Debt Warrants) are listed on the
New York Stock Exchange, the Company will use its best efforts to
maintain the listing of any such Underwritten Securities listed on the
New York Stock Exchange.
(m) In respect to each offering of Debt Securities, the
Company 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 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) During the period specified in the applicable Prospectus
Supplement, the Company and the Partnerships will not, without the
prior written consent of Goldman, Sachs & Co., directly or indirectly,
sell, offer to sell, transfer, hypothecate, grant any option for the
sale of, or otherwise dispose of, (i) any securities of the same class
or series or ranking on a parity with any Underwritten Securities
(other than the Underwritten Securities covered by such Prospectus
Supplement) or any security convertible into or exchangeable for such
Underwritten Securities and (ii) if such Prospectus Supplement relates
to Common Stock Warrants or Debt Securities or Preferred Stock that is
convertible into or exchangeable for Common Stock, any Common Stock or
Units or any security convertible into or exchangeable for shares of
Common Stock. This transfer restriction does not apply to (i) grants of
options, and the issuance of shares in respect of such options; (ii)
the issuance of shares and units pursuant to a dividend reinvestment
plan or stock purchase plan; (iii) the issuance of Common Stock on the
exchange of Units; and (iv) the issuance of shares of Common Stock, or
any security convertible into or exchangeable or exercisable for Common
Stock, in connection with the acquisition of real property or an
interest or interests in real property.
(p) With respect to the Common Stock issuable on exercise of
Common Stock Warrants and the conversion of any Debt Securities and
Preferred Stock if such securities are 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 exercise of the
Common Stock Warrants and conversion of the Debt Securities or
Preferred Stock.
(q) With respect to the Common Stock issuable on exercise of
Common Stock Warrants and the conversion of any Debt Securities and
Preferred Stock if such securities are convertible into Common Stock,
the Company will use its best efforts to list such Common Stock on the
New York Stock Exchange.
18
(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.
(s) During the period from the Closing Time until five years
after the Closing Time, the Company 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 Partnerships as the Representatives may reasonably
request.
SECTION 4. Payment of Expenses. The Company and the Partnerships will
pay all expenses incident to the performance of their 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 Partnerships' counsel and accountants;
(v) the qualification of the Underwritten Securities and the Common Stock or
Debt Securities issuable upon exercise of Warrants and conversion of Debt
Securities or 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.; (ix) the fees and
expenses incurred in connection with the listing of the Underwritten Securities
and the Common Stock or Debt Securities issuable upon exercise of the Warrants
and conversion of Debt Securities or 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 Preferred Stock or 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 and the Warrant Agent, including the reasonable fees and
disbursements of counsel for the Trustee or Warrant Agent, in connection with
the Warrant Agreement, 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.
19
If this Agreement shall be terminated pursuant to Section 10
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 4 and 6 hereof; but, if for any other reason, any
Underwritten Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Underwritten Securities
not so delivered, but the Company shall then be under no further liability to
any Underwriter except as provided in Sections 4 and 6 hereof.
SECTION 5. Conditions of Underwriter's 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 herein
contained, to the performance by the Company of its 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 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 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, Debt Securities or Debt Warrants are 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 or Debt Securities on what is commonly termed a "watch list" for
possible downgrading; (iv) if Debt Securities or Debt Warrants are
being offered, the rating assigned by any nationally recognized
statistical rating organization to any long-term debt securities of the
Company 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 Company 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 shall have provided to the Underwriters
evidence of such filing and effectiveness in accordance with Rule
462(b) of the 1933 Act Regulations.
20
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of the applicable
Closing Time, of Hogan & Hartson L.L.P., counsel for the
Company and the Partnerships in form and substance reasonably
satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Company was incorporated, existing
and in good standing as of the date of the
certificate identified elsewhere in the opinion
letter under the laws of the State of Maryland. The
Company has the corporate power and corporate
authority under its charter and the Maryland
Corporation Law to own, lease and operate its
properties, to execute and deliver, and perform its
obligations under, the Underwriting Agreement, the
applicable Terms Agreement, any Warrant Agreement and
any Indenture; and to conduct its business as
described in the Prospectus. The Company is
authorized to transact business as a foreign
corporation in those states in which the Company owns
Properties either directly or through a partnership
in which the Company is a general partner, as of the
dates of the certificates identified elsewhere in the
opinion letter.
(ii) Each of the Partnerships is a limited
partnership formed, existing and in good standing as
of the date of its respective certificate identified
elsewhere in the opinion letter, under the Delaware
Revised Uniform Limited Partnership Act (the
"Delaware Act"). Each Partnership has the partnership
power and partnership authority under its partnership
agreement and under the Delaware Act to own, lease
and operate its properties and to conduct its
business as described in the Prospectus and to
perform its obligations under this Agreement and any
Terms Agreement. Each of the Partnerships is
qualified or registered as a foreign partnership, as
of the dates of the certificates identified elsewhere
in the opinion letter, in those states in which such
Partnership owns Properties.
(iii) Each of CarrAmerica GP Holdings, Inc.,
Carr Real Estate Services, Inc., Carr Development &
Construction, Inc. and OmniOffices, Inc.
(collectively, the "Significant Subsidiaries") was
incorporated, existing and in good standing as of the
date of its respective certificate identified
elsewhere in the opinion letter under the Delaware
General Corporation Law. Each of the Significant
Subsidiaries has the corporate power and corporate
authority under its charter and the Delaware General
Corporation Law to own, lease and operate its
properties and to conduct its business as described
in the Prospectus.
(iv) If the applicable Underwritten
Securities are Common Stock, Preferred Stock or
Common Stock Warrants, the capital stock of the
Company, as of the date specified in the Prospectus,
was as set forth in the Prospectus under the caption
21
"Capitalization." To the knowledge of such counsel,
(A) except for shares reserved for issuance upon the
redemption of Units and upon conversion of
outstanding securities convertible into shares of
Common Stock or as otherwise disclosed in the
Registration Statement, no shares of capital stock of
the Company are reserved for any purpose. To the
knowledge of such counsel, except as described in the
Prospectus, and except in connection with stock or
Unit options and in connection with dividend
reinvestment plans and the possible issuance of
shares of Common Stock upon the redemption of Units
or as otherwise disclosed in the Registration
Statement, there are no outstanding securities
convertible into or exchangeable for any shares of
capital stock of the Company, and no outstanding
options, rights or warrants to purchase or to
subscribe for such shares or any other securities of
the Company or either of the Partnerships. No holder
of outstanding shares of Common Stock has any
preemptive rights described in Section 2-205(a) of
the MGCL, or, to the knowledge of such counsel, any
contractual right to subscribe for any such shares,
except as set forth in the Prospectus.
(v) The applicable Underwritten Securities,
if such Underwritten Securities are Common Stock or
Preferred Stock, 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,
will be validly issued, fully paid and non-assessable
under the MGCL. The form of stock certificate to be
used to evidence the applicable Underwritten
Securities is in due and proper form and complies
with all applicable legal requirements.
(vi) The Warrants, if such Underwritten
Securities are Warrants, have been duly authorized by
the Company for issuance and sale to the Underwriters
pursuant to this Agreement and the applicable Terms
Agreement, and, when issued and delivered in the
manner provided for in this Agreement and any Terms
Agreement and countersigned by the Warrant Agent as
provided in the Warrant Agreement against payment of
the consideration set forth in the Terms Agreement,
will be duly executed, countersigned, issued and
delivered and will constitute valid and legally
binding obligations of the Company entitled to the
benefits provided by the Warrant Agreement under
which they are to be issued. The issuance of the
Warrants is not subject to any preemptive rights
described in Section 2-205(a) of the MGCL, or, to the
knowledge of such counsel, and except as described in
the Prospectus, any contractual right to subscribe
for or purchase any such Warrants, Common Stock or
Debt Securities.
(vii) The applicable Underwritten Securities,
if such Underwritten Securities are Debt Securities
and the related Guarantees, if any, are in the form
contemplated in the Indenture, have been duly
authorized by the Company and the Guarantor, as
22
applicable, 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, such Debt Securities
and the related Guarantees, if any, will constitute
valid and legally binding obligations of the Company
or the Guarantor, as applicable, entitled to the
benefits of the Indenture and such Debt Securities
and the related Guarantees, if any, will be
enforceable against the Company or the Guarantor, as
applicable, in accordance with their terms. Such
Underwritten Securities rank and will rank on a
parity with all unsecured indebtedness (other than
subordinated indebtedness of the Company that is
outstanding on the Representation Date or that may be
incurred thereafter) and senior to all subordinated
indebtedness of the Company 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.
(viii) If applicable, the Common Stock
issuable upon exercise of the Common Stock Warrants
or upon conversion of the Debt Securities or
Preferred Stock 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 any preemptive rights described in Section
2-205(a) of the MGCL, or, to the knowledge of such
counsel, and except as described in the Prospectus,
any contractual right to subscribe for or purchase
any Common Stock.
(ix) If applicable, the Debt Securities
issuable upon the exercise of the Debt Warrants are
in the form contemplated by the Indenture, have been
duly authorized by the Company for issuance upon
exercise of the Debt Warrants and, when executed,
authenticated, issued and delivered in the manner
provided for in the Debt Warrants and the applicable
Indenture, against payment of the consideration
therefor specified in the Debt Warrants, such Debt
Securities will constitute valid and legally binding
obligations of the Company, entitled to the benefits
of the Indenture and such Debt Securities will be
enforceable against the Company in accordance with
their terms; provided, however, that the
enforceability of the foregoing may be limited by
bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally
and by general equitable principles.
(x) Each of this Agreement and the applicable
Terms Agreement was duly executed and delivered on
behalf of the Company.
23
(xi) The applicable Warrant Agreement, if
any, has been duly executed and delivered by the
Company, and (assuming due authorization, execution
and delivery by the Warrant Agent) constitutes a
valid and legally binding agreement of the Company,
enforceable in accordance with its terms.
(xii) The Indenture has been duly qualified
under the 1939 Act and has been duly executed and
delivered by the Company, and, assuming due
authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms.
The Indenture conforms in all material respects to
the descriptions thereof contained in the Prospectus.
(xiii) The execution, delivery and
performance as of the date hereof of the Underwriting
Agreement, the applicable Terms Agreement, any
Warrant Agreement, any Indenture, any Deposit
Agreement and, if applicable, the Underwritten
Securities, by the Company does not (i) breach or
constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to,
any contract, indenture, mortgage, loan agreement,
note, lease, joint venture or partnership agreement
or other instrument or agreement which has been filed
as an exhibit to the Registration Statement, or (ii)
violate the charter or by-laws of the Transaction
Entities.
(xiv) None of the Company or either of the
Partnerships is an investment company as such term is
defined under the 1940 Act.
(xv) No consent, approval, authorization or
filing with any federal or Maryland or Delaware state
governmental agency or authority is required in
connection with the offering, issuance or sale of the
applicable Underwritten Securities to the
Underwriters in connection with this Agreement or the
applicable Terms Agreement, except such as may be
required under the federal securities laws (certain
matters with respect to which are addressed elsewhere
in the opinion) or state or foreign securities laws
or real estate syndication laws (as to which such
counsel need express no opinion), or such as have
been received or made.
(xvi) 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
(other than the financial statements and related
schedules and financial information and data included
therein or omitted therefrom, as to which no opinion
need be rendered), at the time they were filed with
the Commission, complied as to form in all material
respects with the requirements of the 1934 Act and
the 1934 Act Regulations.
24
(xvii) 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.
(xviii) At the time the Registration
Statement became effective and at the Representation
Date, (A) the Registration Statement and the
Prospectus (except for the financial statements and
supporting schedules and financial information and
data included or incorporated by reference therein or
omitted therefrom, 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.
(xix) The statements made in the Prospectus
under the headings entitled "Description of Debt
Securities," "Description of Preferred Stock,"
"Description of Common Stock," "Description of
Warrants," "Description of Depositary Shares," and
the information in the applicable Prospectus
Supplement under similar specified sections to the
extent that they describe matters of law or legal
conclusions, have been reviewed by them and is
correct in all material respects.
(xx) To the knowledge of such counsel, except
as otherwise described in the Registration Statement
or in the agreements referred to in an exhibit to
such opinion, there are no persons with registration
or other similar rights to have any securities
registered under the Registration Statement, or to
require the Company to file any other registration
statement, as a result of the offer and sale of the
Underwritten Securities.
The opinions rendered pursuant to clauses (vii), (xi)
and (xii) above may be subject to exceptions regarding
bankruptcy and similar laws, general principles of equity and
other customary exceptions reasonably acceptable to counsel
for the Underwriters.
25
(2) [INTENTIONALLY OMITTED]
(3) The favorable opinion, dated as of the applicable
Closing Time, of Rogers & Wells LLP, counsel to the
Underwriters, in form and substance satisfactory to the
Underwriters.
(4) In giving their opinions required by subsections
(b)(1) and (b)(3), respectively, of this Section, Hogan &
Hartson L.L.P. and Rogers & Wells LLP shall additionally state
that such counsel has participated in conferences with
officers and other representatives of the Company and the
independent public accountants for the Company 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 and financial information and data
included or incorporated by reference therein or the Statement
of Eligibility, as to which such counsel need express no
belief), at the time it became effective or at the time an
Annual Report on Form 10-K was filed by the Company 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 and
financial information and data 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, Hogan & Hartson L.L.P. 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 Company, the Partnerships and the Significant
Subsidiaries and (B) as to the qualification and good standing
of each of the Company, the Partnerships and the Significant
Subsidiaries to do business in any jurisdiction, certificates
of appropriate government officials or opinions of counsel in
such jurisdictions.
Hogan & Hartson L.L.P. shall additionally state that
the Underwriters may rely on their opinion addressed to the
Company, and attached to the Registration Statement as Exhibit
8.1, as if such opinion were addressed to them.
(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 and
the Partnerships, threatened against the Company, the Partnerships and
any Subsidiary 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 the Company, the Partnerships and the
Subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business; (iii) no proceedings shall be pending
or, to the knowledge of the Company and the Partnerships, threatened
against such entity or any Subsidiary before or by any federal, state
or other commission, board or administrative agency wherein an
26
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 the
Company, the Partnerships and the Subsidiaries, considered as one
enterprise, 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 of the chief financial or chief
accounting officer of the Company, 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 Peat
Marwick 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 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 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 a reading of the minute books of
the Company inquiries of officials of the Company 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 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 did not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X and that the pro forma adjustments have not been
properly applied to the historical amounts in the compilations of the
statements 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 of the Company or any increase in the debt of the
Company or any decrease in the net assets of the Company as compared
with the amounts shown in the most recent consolidated balance sheet of
the Company 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 except in all instances for
changes, increases or decreases which the Registration Statement and
27
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
identified in such letter.
(e) At Closing Time, the Representatives shall have received
from KPMG Peat Marwick 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 Preferred Stock, Debt Securities or Debt
Warrants, shall be rated investment grade by one or more nationally
recognized statistical rating organizations and the Company 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 such Underwritten
Securities or any of the Company'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 Company's
other debt securities.
(g) At Closing Time and at each Date of Delivery, if any,
counsel for the Underwriter shall have been furnished with such
documents and opinions as they may reasonably 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 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 Underwriter.
(h) At Closing Time, the Representatives shall have received a
letter agreement from Security Capital Holdings S.A., wherein Security
Capital Holdings S.A. shall agree that during the period specified in
the applicable Prospectus Supplement they and their affiliates will
not, without the prior written consent of Goldman, Sachs & Co. and the
Company (which consent, in the case of the Company, will be subject to
the approval of the Company's unaffiliated directors), directly or
indirectly, sell, offer to sell, grant any option for the sale of,
28
enter into any agreement to sell, or otherwise dispose of, (i) any
securities of the same class or series or ranking on a parity with any
Underwritten Securities or any security convertible into or
exchangeable for shares of such Underwritten Securities, and (ii) if
such Prospectus Supplement relates to Common Stock Warrants or Debt
Securities or Preferred Stock that is convertible into or exchangeable
for Common Stock, any Common Stock or Units or any security convertible
into or exchangeable for shares of Common Stock. Such transfer
restrictions do not apply to transfers to members of the family of such
director or executive officer (or an entity for their benefit), or to
the granting of a bona fide security interest to a secured party. Any
transferees of such shares, Units or other securities will be likewise
prohibited from making any transfer of shares, Units or other
securities.
(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
contained herein and the statements in any certificates furnished by
the Company 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 of the
chief financial or chief accounting officer of the Company
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 Hogan & Hartson L.L.P.
in form and substance satisfactory to counsel for the
Underwriter, 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 opinions required by
Section 5(b)(1) hereof (including the statement of belief
required by Section 5(b)(4) hereof).
(3) The favorable opinion of Rogers & Wells LLP,
counsel for the Underwriter, 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)(3) hereof.
(4) A letter from KPMG Peat Marwick, 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 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.
29
SECTION 6. Indemnification.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
preliminary prospectus, Prospectus, preliminary prospectus supplement or
Prospectus Supplement, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, such preliminary
prospectus, preliminary prospectus supplement or the Prospectus or Prospectus
Supplement, or any such amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use under the caption "Plan of
Distribution" or "Underwriting" in the Registration Statement (or any amendment
thereto) or such preliminary prospectus, preliminary prospectus supplement or
the Prospectus or Prospectus Supplement (or any amendment or supplement
thereto).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any preliminary prospectus,
Prospectus, preliminary prospectus supplement or Prospectus Supplement, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, Prospectus, preliminary prospectus
supplement or Prospectus Supplement, or any such amendment or supplement thereto
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Goldman, Sachs & Co. expressly for use under
the caption "Plan of Distribution" or "Underwriting" in the Registration
Statement (or any amendment thereto) or such preliminary prospectus, preliminary
prospectus supplement or the Prospectus or Prospectus Supplement (or any
amendment or supplement thereto); and will reimburse the Company or CarrAmerica
L.P., as the case may be, for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
30
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action 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 the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Underwritten Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and CarrAmerica L.P. on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Underwritten Securities (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the 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 on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) 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 subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
31
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), 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 pursuant to
the applicable Terms Agreement and distributed to the public were offered to the
public exceeds the amount of any damages which the 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.
(e) The obligations of the Company under this Section 6 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the 1933 Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the 1933 Act.
SECTION 7. [INTENTIONALLY OMITTED].
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 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 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 either the Company, the Partnerships or the Subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; or
(ii) 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 change
in the capital stock or long-term debt of the Company, the Partnerships or the
Subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company, the Partnerships
or the Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus; or (iii) if there has occurred any downgrading in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
32
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock; or (iv) if there has occurred a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange or on the American Stock Exchange or a suspension or material
limitation in trading in the Common Stock on the New York Stock Exchange, or if
a general moratorium on commercial banking activities has been declared by
either Federal, New York or Maryland authorities; or (v) if there has occurred
any outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in Clause (i), (ii) or (v) of this Section 9(a) in
the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Underwritten Securities
on the terms and in the manner contemplated in the Prospectus. As used in this
Section 9(a), the term "Prospectus" means the Prospectus together with any
Prospectus Supplement 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 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 Section 6 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.
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
33
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 Goldman, Sachs & Co., 85 Broad Street, New
York, New York 10004, attention Registration Department; notices to the Company
shall be directed to 1700 Pennsylvania Avenue, N.W., Washington, D.C. 20006,
attention of Thomas A. Carr.
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 Section 6 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.
34
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 and the Company in accordance with its terms.
Very truly yours,
CARRAMERICA REALTY CORPORATION
By: /s/ Brian K. Fields
------------------------------
Name: Brian K. Fields
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
- ---------------------------
(Goldman, Sachs & Co.)
CARRAMERICA REALTY CORPORATION
(a Maryland Corporation)
Senior Notes due 2000
TERMS AGREEMENT
Dated: September 25, 1998
To: CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Representatives") understand that CarrAmerica Realty
Corporation, a Maryland corporation (the "Company"), proposes to issue and sell
$150,000,000 aggregate principal amount of its unsecured debt securities (the
"Debt Securities") (such Debt Securities being collectively hereinafter referred
to as the "Underwritten Securities"). CarrAmerica Realty, L.P. (the "Guarantor")
has agreed to guarantee the Underwritten Securities (the "Guarantees") as to
payments of principal, premium, if any, and interest. With respect to the
issuance and sale of the Debt Securities and the related Guarantees to the
Underwriters, the Guarantor agrees to be jointly and severally liable with the
Company as to the Company's obligations contained in Sections 1,3,4,5 and 6 of
the Underwriting Agreement referred to below, as if the Guarantor were
originally named as a party thereto. 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 Underwritten Securities (as defined in the Underwriting
Agreement referred to below) set forth below opposite their respective names at
the purchase price set forth below.
Principal Amount
of the
Underwritten
Underwriter Securities
----------- ----------
Goldman, Sachs & Co. ..................................... $100,000,000
Legg Mason Wood Walker, Incorporated. .................... $50,000,000
------------
Total ............................................. $150,000,000
============
2
The Underwritten Securities shall have the following terms:
Title of Securities: Senior Notes due 2000.
Currency: U.S. Dollars.
Principal amount to be issued: $150,000,000.
Current ratings: Moody's Investors Service, Inc.: Baa3; Standard & Poor's
Corporation: BBB.
Interest rate: 6.625%.
Interest payment dates: Each April 1 and October 1.
Stated maturity date: October 1, 2000.
Redemption or repayment provisions: None.
Delayed Delivery Contracts: Not authorized.
Initial public offering price: 99.914%, plus accrued interest, if any, or
amortized original issue discount, if any, from the date of issuance.
Purchase price: 99.564%, plus accrued interest, if any, or amortized original
issue discount, if any, from the date of issuance (payable in same-day funds).
Other terms: The Underwritten Securities shall be in the form of Exhibit A to
the Supplemental Indenture, dated as of October 2, 1998, among CarrAmerica
Realty Corporation, as Primary Obligor, CarrAmerica Realty, L.P., as Guarantor
and Bankers Trust Company, as Trustee.
Closing date and location: October 2, 1998 at the offices of Rogers & Wells
LLP, 200 Park Avenue, New York, New York 10166.
All the provisions contained in the document entitled "CarrAmerica
Realty Corporation - Common Stock, Preferred Stock, Common Stock Warrants, Debt
Warrants, Depositary Shares and Debt Securities Underwriting Agreement" to which
this Terms Agreement is attached are hereby 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.
3
Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
GOLDMAN, SACHS & CO.
LEGG MASON WOOD WALKER, INCORPORATED
By: GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
-------------------------
(Goldman, Sachs & Co.)
Accepted:
CARRAMERICA REALTY CORPORATION
By: /s/ Brian K. Fields
------------------------------
Name: Brian K. Fields
Title: Chief Financial Officer
CARRAMERICA REALTY, L.P.
By: CarrAmerica Realty, G.P. Holdings, Inc., its General Partner
By: /s/ Brian K. Fields
-----------------------------------
Name: Brian K. Fields
Title: