SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): October 24, 1996
CARRAMERICA REALTY CORPORATION
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(Exact name of registrant as specified in its charter)
Maryland 1-11706 52-1796339
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification Number)
1700 Pennsylvania Avenue, N.W., Washington, D.C. 20006
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(Address of Principal Executive Offices) (Zip Code)
The Registrant's telephone number, including area code: (202) 624-7500
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Item 7. Financial Statements and Exhibits.
Exhibit
Number Exhibit
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5 Opinion of Hogan & Hartson L.L.P., which is being filed
pursuant to Regulation 601(b)(5) as an exhibit to the
Registrant's registration statement on Form S-3, file no.
333-04519, under the Securities Act of 1933, as amended.
10 Form of Stock Purchase Agreement between the Company and
prospective purchasers of Series A Cumulative Convertible
Redeemable Preferred Stock of the Company, which is being
filed pursuant to Regulation 601(b)(5) as an exhibit to the
Registratant's registration statement on Form S-3, file no.
333-04519, under the Securities Act of 1933, as amended.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: October 25, 1996 CARRAMERICA REALTY CORPORATION
By: /s/ Brian K. Fields
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Brian K. Fields
Chief Financial Officer
October 25, 1996
Board of Directors
CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, DC 20006
Ladies and Gentlemen:
We are acting as counsel to CarrAmerica Realty Corporation, a Maryland
corporation (the "Company"), in connection with its registration statement on
Form S-3 (File No. 333-04519) (the "Registration Statement") previously declared
effective by the Securities and Exchange Commission relating to the proposed
public offering of securities of the Company that may be offered and sold by the
Company from time to time as set forth in the prospectus which forms a part of
the Registration Statement (the "Prospectus"), and as to be set forth in one or
more supplements to the Prospectus (each a "Prospectus Supplement"). This
opinion letter is rendered in connection with the proposed public offering of up
to 1,740,000 shares of the Company's preferred stock, par value $.01 per share
(the "Shares"), as described in the prospectus supplement dated October 24,
1996. This opinion letter is furnished to you at your request to be filed
pursuant to Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(5), in
connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Articles of Amendment and Restatement of Articles of
Incorporation of the Company, as amended, as certified by the
State Department of Assessment and Taxation of the State of
Maryland on July 11, 1996 and by the Secretary of the Company
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Board of Directors
CarrAmerica Realty Corporation
October 25, 1996
Page 2
on the date hereof as then being complete, accurate and in
effect.
3. The Amendment and Restatement of Bylaws of the Company, as
amended, as certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in effect.
4. Executed copies of the Stock Purchase Agreement dated October
___, 1996 among the Company and the several Investors named
therein(the "Purchase Agreement").
5. The Articles Supplementary setting forth the rights, preferences
and designations of the Shares, as accepted for filing by the
Department on October 24, 1996.
6. Resolutions of the Board of Directors of the Company adopted on
October 10, 1996, and resolutions of the Pricing Committee of the
Board of Directors, adopted on October 23, 1996, as certified by
the Secretary of the Company on the date hereof as being
complete, accurate and in effect, relating to the filing of the
Registration Statement and the issuance and sale of the Shares
and arrangements in connection therewith.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the General
Corporation Law of the State of Maryland. We express no opinion herein as to any
other laws, statutes, regulations, or ordinances.
Based upon, subject to and limited by the foregoing, we are of the opinion
that following issuance of the Shares pursuant to the terms of the Purchase
Agreement and receipt by the Company of the consideration for the Shares
specified in the resolutions of the Board of Directors referred to above, the
Shares will be validly issued, fully paid and nonassessable under the General
Corporation Law of the State of Maryland.
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Board of Directors
CarrAmerica Realty Corporation
October 25, 1996
Page 3
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing by the Company of a
Current Report on Form 8-K on the date of this opinion letter, which Form 8-K
will be incorporated by reference into the Registration Statement. This opinion
letter should not be quoted in whole or in part or otherwise be referred to, nor
filed with or furnished to any governmental agency or other person or entity,
without the prior written consent of this firm.
We hereby consent to the reference to this firm under the caption "Legal
Matters" in the Prospectus Supplement. In giving this consent, we do not thereby
admit that we are an "expert" within the meaning of the Securities Act of 1933,
as amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
STOCK PURCHASE AGREEMENT
by and between
CARRAMERICA REALTY CORPORATION
and
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dated as of
_______________, 1996
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TABLE OF CONTENTS
Page
RECITALS.....................................................................1
ARTICLE 1 DEFINITIONS........................................................1
ARTICLE 2 PURCHASE AND SALE OF PREFERRED SHARES; CLOSING.....................2
Section 2.1 Purchase and Sale.........................................2
Section 2.2 Closing...................................................3
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................3
Section 3.1 Organization and Qualification............................3
Section 3.2 Authority Relative to Agreements; Share Issuance..........3
Section 3.3 Capital Stock and Units...................................4
Section 3.4 No Conflicts; No Defaults; Required Filings and Consents..4
Section 3.5 Litigation; Compliance With Laws..........................4
Section 3.6 Tax Matters...............................................5
Section 3.7 Compliance with Agreements................................5
Section 3.8 Registration Statement and Prospectus.....................5
Section 3.9 Financial Statements......................................5
Section 3.10 Regulation G, Use of Proceeds.............................5
Section 3.11 No Material Changes......................................6
Section 3.12 Scope of Articles Supplementary...........................6
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF INVESTOR.........................6
Section 4.1 Organization..............................................6
Section 4.2 Due Authorization.........................................6
Section 4.3 REIT Qualification Matters................................6
Section 4.4 U.S. Person...............................................7
ARTICLE 5 CONDITIONS OF INVESTOR'S OBLIGATIONS AT CLOSING....................7
Section 5.1 Series A Preferred Articles Supplementary.................7
Section 5.2 Representations and Warranties............................7
Section 5.3 Performance...............................................7
Section 5.4 No Stop Order.............................................7
Section 5.5 No Material Adverse Change................................7
Section 5.6 Opinion of Company Counsel................................7
Section 5.7 Officer's Certificate.....................................8
Section 5.8 Proceedings...............................................8
Section 5.9 Proceeds..................................................8
ARTICLE 6 CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING.................8
Section 6.1 Representations and Warranties............................8
Section 6.2 Performance...............................................8
Section 6.3 No Stop Order.............................................8
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ARTICLE 7 COVENANTS.........................................................8
Section 7.1 Filing of Articles Supplementary..........................8
Section 7.2 Filing of Prospectus Supplement...........................8
Section 7.3 Amendments to Registration Statement......................9
Section 7.4 Notice of Certain Actions.................................9
Section 7.5 Filing of Exchange Act Reports............................9
Section 7.6 Stock Exchange Listing....................................9
ARTICLE 8 MISCELLANEOUS....................................................10
Section 8.1 Survival of Warranties...................................10
Section 8.2 Successors and Assigns...................................10
Section 8.3 Governing Law............................................10
Section 8.4 Counterparts.............................................10
Section 8.5 Titles and Subtitles....................................10
Section 8.6 Notices..................................................10
Section 8.7 Finder's Fees............................................11
Section 8.8 Expenses.................................................11
Section 8.9 Amendments and Waivers...................................11
Section 8.10 Severability.............................................11
Section 8.11 Entire Agreement.........................................11
EXHIBITS
Exhibit A Series A Preferred Articles Supplementary
Exhibit B Form of Legal Opinions
Exhibit C Prospectus Supplement
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of October __,
1996, is made by and between CarrAmerica Realty Corporation, a Maryland
corporation (the "Company"), and
___________________________________________________________ ("Investor").
RECITALS
WHEREAS, the Company desires to issue and sell to Investor an aggregate of
__________ shares of Series A Cumulative Convertible Redeemable Preferred Stock,
$.01 par value per share, of the Company ("Series A Preferred Stock"), the terms
of which shall be as set forth in the Series A Preferred Articles Supplementary
in the form attached hereto as Exhibit A (the "Series A Preferred Articles
Supplementary") in accordance with and subject to the terms and conditions set
forth herein; and
WHEREAS, Investor desires to purchase __________ shares of Series A
Preferred Stock, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
Section 1.1 "Action" shall mean any action, suit, arbitration, inquiry,
proceeding or investigation by or before any Government Authority.
Section 1.2 "Agreement" shall have the meaning set forth in the first
paragraph hereof.
Section 1.3 "Base Prospectus" shall mean the prospectus included in the
Registration Statement in the form on file with the SEC on the date the
Registration Statement or any post-effective amendment thereto, if applicable,
became effective.
Section 1.4 "Closing" shall have the meaning set forth in Section 2.2.
Section 1.5 "Closing Date" shall have the meaning set forth in Section 2.2.
Section 1.6 "Code" shall mean the Internal Revenue Code of 1986, as
amended, and any successor thereto, including all of the rules and regulations
promulgated thereunder.
Section 1.7 "Company" shall have the meaning set forth in the first
paragraph hereof.
Section 1.8 "Common Stock" shall mean common stock, par value $.01 per
share, of the Company.
Section 1.9 "Exchange Act" shall mean the Securities Exchange of 1934, as
amended.
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Section 1.10 "Government Authority" shall mean any government or state (or
any subdivision thereof) of or in the United States, or any agency, authority,
bureau, commission, department or similar body or instrumentality thereof, or
any governmental court or tribunal.
Section 1.11 "Investor" shall have the meaning set forth in the first
paragraph hereof.
Section 1.12 "Material Adverse Effect" shall mean a material adverse effect
on the Company's ability to perform under this Agreement or on the financial
condition, results of operations or business of the Company and its Subsidiaries
considered as one enterprise.
Section 1.13 "Per Share Purchase Price" shall have the meaning set forth in
Section 2.1.
Section 1.14 "Prospectus" shall mean the Base Prospectus, together with the
Prospectus Supplement, dated October __, 1996, delivered to Investor in
connection with the purchase of the Purchased Shares, as amended or
supplemented, including all documents incorporated therein by reference or
deemed to be incorporated by reference (whether such documents were filed before
or after the date of the Prospectus).
Section 1.15 "Purchase Price" shall have the meaning set forth in Section
2.1.
Section 1.16 "Purchased Shares" shall have the meaning set forth in Section
2.1.
Section 1.17 "Registration Statement" shall mean the Registration Statement
on Form S-3 (No. 333-04519) filed with the SEC relating to the offering in one
or more series of the Company's (i) unsecured debt securities, (ii) preferred
stock, (iii) common stock, and (iv) warrants exercisable for Common Stock, with
an aggregate public offering price of up to $600,000,000, including all
documents incorporated therein by reference or deemed to be incorporated by
reference (whether such documents were filed before or after effectiveness of
such Registration Statement), as amended.
Section 1.18 "REIT" shall have the meaning set forth in Section 3.6.
Section 1.19 "SEC" shall mean the Securities and Exchange Commission.
Section 1.20 "Securities Act" shall mean the Securities Act 1933, as
amended.
Section 1.21 "Series A Preferred Stock" shall have the meaning set forth in
the recitals hereto.
Section 1.22 "Series A Preferred Articles Supplementary" shall have the
meaning set forth in the recitals hereto.
Section 1.23 "Subsidiaries" shall mean each of the entities consolidated in
the financial statements of the Company.
ARTICLE 2
PURCHASE AND SALE OF PREFERRED SHARES; CLOSING
Section 2.1 Purchase and Sale. Subject to the terms and conditions set
forth herein, the Company agrees to issue and sell to Investor and Investor
agrees to purchase and acquire from the Company, at the Closing (as defined
below), __________ shares of Series A Preferred Stock (the "Purchased Shares")
at a per
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share purchase price of $25.00 (the "Per Share Purchase Price"),
resulting in an aggregate purchase price of $__________ (the "Purchase Price").
Section 2.2 Closing. Subject to the terms and conditions hereof, the
closing of the purchase and sale of the Purchased Shares (the "Closing") shall
take place at 10:00 a.m. on October __, 1996 (such date, the "Closing Date"), at
the offices of Hogan & Hartson L.L.P., 555 Thirteenth Street, N.W., Washington,
D.C. 20004. At the Closing, the Company shall issue and sell to Investor, and
Investor shall purchase and acquire from the Company, the Purchased Shares, and
Investor shall pay to the Company the Purchase Price for the Purchased Shares by
wire transfer of immediately available funds in U.S. dollars to the account or
accounts specified by the Company in a written notice to Investor. At the
Closing, the Company shall deliver to Investor a stock certificate in definitive
form, registered in the name of Investor, representing the Series A Preferred
Stock being purchased by Investor hereunder.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Investor as follows:
Section 3.1 Organization and Qualification.
(a) The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Maryland. The Company has all
requisite corporate power and authority to own, operate, lease and encumber its
assets and carry on its business as now conducted or proposed to be conducted,
and to enter into this Agreement and to perform its obligations hereunder.
(b) Each of the Subsidiaries of the Company is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each Subsidiary has all requisite corporate or partnership power
and authority to own, operate, lease and encumber its assets and carry on its
business as now conducted or proposed to be conducted.
(c) The Company and each of its Subsidiaries is duly qualified to do
business and is in good standing in each jurisdiction in which the ownership of
its assets or the conduct of its business requires such qualification, except
for any failures to be so qualified or to be in good standing as would not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
Section 3.2 Authority Relative to Agreements; Share Issuance.
(a) The execution, delivery and performance of this Agreement have been
duly and validly authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the Company and
constitutes the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights or general principles of equity.
(b) The Purchased Shares to be issued pursuant to this Agreement have been
duly authorized for issuance and, when issued by the Company in accordance with
the provisions hereof for the consideration described herein, will be duly and
validly issued, fully paid and nonassessable. The shares of Common Stock
issuable upon conversion of the Purchased Shares have been duly and validly
reserved for such issuance and, when issued upon such conversion in accordance
with the terms of the Series A Preferred Articles Supplementary, will be duly
and validly issued, fully paid and nonassessable. The Purchased Shares (and the
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shares of Common Stock issuable upon conversion of the Purchased Shares) will be
issued in compliance with all applicable federal and state securities laws.
Section 3.3 Capital Stock and Units. The Company has an authorized
capitalization as set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable.
Section 3.4 No Conflicts; No Defaults; Required Filings and Consents.
Except as contemplated hereby, the execution and delivery by the Company of this
Agreement and the consummation by the Company of the transactions contemplated
hereby in accordance with the terms hereof do not and will not:
(a) conflict with or result in a breach of any provisions of the Articles
of Incorporation or Bylaws of the Company as currently in effect;
(b) violate or conflict with any statute, rule, regulation, judgment,
order, writ, decree or injunction applicable to the Company or any of its
Subsidiaries, except as would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect; or
(c) violate or conflict with or result in a breach of any provision of, or
constitute a default (or any event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination or in a right of
termination or cancellation of, or accelerate the performance required by, or
result in the creation of any lien upon any of the assets of the Company or any
of its Subsidiaries under, or result in being declared void, voidable or without
further binding effect, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust or any license, franchise, permit,
lease, contract, agreement or other instrument, commitment or obligation to
which the Company or any of its Subsidiaries is a party, or by which the Company
or any of its Subsidiaries or any of their properties is bound or affected,
except for any of the foregoing matters which would not reasonably be expected
to, individually or in the aggregate, result in a Material Adverse Effect; or
(d) require any consent, approval or authorization of, or declaration,
filing or registration with, any Government Authority on the part of the
Company, other than any filings required under the Securities Act, the Exchange
Act, and state securities laws, and any filings required to be made with the
State of Maryland, except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
Section 3.5 Litigation; Compliance With Laws.
(a) There are no Actions pending or, to the Company's knowledge, threatened
against the Company or any of its Subsidiaries that would, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect, or
which question the validity hereof or any action taken or to be taken in
connection herewith. There are no continuing orders, injunctions or decrees of
any Government Authority to which the Company or any of its Subsidiaries is a
party and as to which either compliance or noncompliance would, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries is in violation of any
statute, rule, regulation, order, writ, decree or injunction of any Government
Authority or any body having jurisdiction over them or any of their respective
assets which, if enforced, would, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
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Section 3.6 Tax Matters. At all times beginning with its taxable period
ended December 31, 1993, to the Company's knowledge, the Company has been, and
upon sale of the Purchased Shares, the Company will continue to be, organized
and operated in conformity with the requirements for qualification as a real
estate investment trust within the meaning of Section 856 of the Code ("REIT"),
and, to the Company's knowledge, its proposed method of operation will enable it
to continue to meet the requirements for taxation as a REIT under the Code.
Section 3.7 Compliance with Agreements. Neither the Company nor any of its
Subsidiaries is in default, and, to the Company's knowledge, no event has
occurred which, with the giving of notice or the lapse of time or both, would
constitute a default, under any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which it is a party or by which it or any of its properties or assets is
bound or affected except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
Section 3.8 Registration Statement and Prospectus. The Company meets the
requirements for use of Form S-3 under the Securities Act and of Rule 415
promulgated under the Securities Act. The Company filed with the SEC the
Registration Statement, which was declared effective on July 17, 1996. No stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or, to the Company's
knowledge, threatened by the SEC. At the time the Registration Statement or any
post-effective amendment thereto became effective, (i) the Registration
Statement complied in all material respects with the applicable requirements of
the Securities Act and the respective rules and regulations of the SEC
thereunder, and (ii) the Registration Statement did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading. As of
the date hereof, as of the time the Prospectus is filed with the SEC pursuant to
Rule 424(b) under the Securities Act, at any time prior to the Closing Date that
any subsequent amendment or supplement to the Prospectus is filed with the SEC
and at the Closing Date, (i) the Prospectus will comply in all material respects
with the applicable requirements of the Securities Act, and the respective rules
and regulations of the SEC thereunder, and (ii) the Prospectus will not contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
Section 3.9 Financial Statements.The financial statements incorporated by
reference in the Registration Statement and the Prospectus are complete and
correct in all material respects and present fairly the consolidated financial
position of the Company and its Subsidiaries as of the dates specified and
consolidated results of their operations for the periods specified. Such
financial statements were prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods involved,
except as indicated therein or in the notes thereto. The supporting schedules
included in the Registration Statement present fairly the information required
to be stated therein.
Section 3.10 Regulation G, Use of ProceedsThe proceeds from the issue and
sale of the Series A Preferred Stock will be applied by the Company as set forth
in the Prospectus under the caption "Use of Proceeds". Neither the Company nor
any Subsidiaries of the Company will, directly or indirectly, use any of such
proceeds for the purpose, whether immediate, incidental or ultimate, of buying a
"margin stock" or of maintaining, reducing or retiring any indebtedness
originally incurred to purchase stock that is currently a "margin stock" or for
any other purpose which might constitute this transaction a "purpose credit", in
each case within the meaning of Regulation G of the Board of Governors of the
Federal Reserve System (12 C.F.R. 207, as amended), or otherwise take or permit
to be taken any action which would involve a violation of such Regulation G or
of Regulation X (12 C.F.R. 224, as amended) or any other regulation of such
Board. No indebtedness being reduced or retired out of such proceeds was
incurred for the purpose of purchasing or
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carrying any such "margin stock" and neither the Company nor any Subsidiary of
the Company owns, or has any present intention of acquiring, any such "margin
stock" in an amount sufficient to cause more than 20% of the value of the
consolidated assets of the Company and its Subsidiaries considered as one
enterprise to be "margin stock".
Section 3.11 No Material Changes. Since the date as of which information is
given in the Prospectus, except as otherwise stated therein or contemplated
thereby: (i) there has been no material adverse change in the business,
operations or condition, financial or otherwise, of the Company and its
Subsidiaries considered as one enterprise, or in the earnings or the ability to
continue to conduct business in the usual and ordinary course of the Company and
its Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business; (ii) there has been no material transaction entered
into by the Company or any of its Subsidiaries other than transactions in the
ordinary course of business or transactions which are not material in relation
to the Company and its subsidiaries considered as one enterprise; and (iii)
there have not been any changes in the capital stock (other than issuances of
securities pursuant to employee benefit or other similar plans described in the
Prospectus) or any material increases in the debt of the Company or any of its
Subsidiaries considered as one enterprise.
Section 3.12 Scope of Articles Supplementary. The Series A Preferred
Articles Supplementary shall set forth the rights, preferences, limitations and
designations of all of the issued and outstanding shares of the Series A
Preferred Stock.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor hereby represents and warrants to the Company as follows:
Section 4.1 Organization. Investor is duly organized and validly existing
under the laws of its jurisdiction of organization. Investor has all requisite
power and authority to enter into this Agreement and to perform its obligations
hereunder.
Section 4.2 Due Authorization. The execution, delivery and performance of
this Agreement has been duly and validly authorized by all necessary action on
the part of Investor. This Agreement has been duly executed and delivered by
Investor and constitutes the valid and legally binding obligation of Investor,
enforceable against Investor in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights or general principles of equity.
Section 4.3 REIT Qualification Matters. Investor has received a copy of the
Company's Articles of Amendment and Restatement of Articles of Incorporation and
the form of Series A Preferred Articles Supplementary, attached hereto as
Exhibit A, and understands the restrictions on transfer and ownership of the
capital stock of the Company included therein related primarily to the
qualification of the Company as a REIT for federal income tax purposes pursuant
to Sections 856 to 860 of the Code. In particular, Investor understands that no
individual (as defined in Section 542(a)(2) of the Code) may beneficially own
(after taking into account the constructive ownership rules of Section 544 of
the Code, as modified by Section 856(h)(1)(B) of the Code, and also applying the
look-thru rule contained in Section 856(h)(3)(A) of the Code) in excess of 5% of
the Series A Preferred Stock. In the event that Investor is purchasing more than
86,999 shares of Series A Preferred Stock, Investor confirms and makes herein
the representation set forth in the second to last sentence of Section 12 of the
Series A Preferred Articles Supplementary and agrees to be bound by the
agreement set forth in the last sentence of Section 12 of the Series A Preferred
Articles Supplementary.
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Section 4.4 U.S. Person. Investor is (a) a citizen or resident of the
United States, (b) a partnership created or organized in the United States or
under the laws of the United States or any state therein (including the District
of Columbia), (c) a corporation created or organized in the United States or
under the laws of the United States or any state therein (including the District
of Columbia), or (d) any estate of trust (other than a foreign estate or foreign
trust), within the meaning of Section 7701(a)(31) of the Code.
ARTICLE 5
CONDITIONS OF INVESTOR'S OBLIGATIONS AT CLOSING
Investor's obligations at the Closing under Section 2.2 hereof are subject
to the fulfillment at or prior to the Closing of each of the following
conditions:
Section 5.1 Series A Preferred Articles Supplementary. The Series A
Preferred Articles Supplementary shall have been filed with and accepted for
recording by the State Department of Assessments and Taxation of Maryland.
Section 5.2 Representations and Warranties. The representations and
warranties of the Company contained in Article 3 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
Section 5.3 Performance. The Company shall have in all material respects
performed and complied with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by it at or
prior to the Closing.
Section 5.4 No Stop Order. No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings therefor
instituted or threatened by the SEC.
Section 5.5 No Material Adverse Change. After the date of this Agreement
and through the Closing Date, there shall not have occurred any material adverse
change in the business or financial condition of the Company and its
Subsidiaries considered as one enterprise.
Section 5.6 Opinion of Company Counsel. Investor shall have received from
Hogan & Hartson L.L.P., counsel for the Company, an opinion letter, dated as of
the Closing, that contains opinions substantially in the form attached hereto as
Exhibit B and which shall be substantially identical to the opinion letters
provided to all other purchasers of the Series A Preferred Stock pursuant to the
Prospectus.
Section 5.7 Officer's Certificate. The Company shall have delivered to
Investor on the Closing Date a certificate or certificates, signed by an
authorized officer of the Company, to the effect that the facts required to
exist by Sections 5.1, 5.2, 5.3, 5.4 and 5.5 exist on such Closing Date.
Section 5.8 Proceedings. All proceedings to be taken in connection with the
transactions contemplated by this Agreement, including all filings with the SEC,
and all documents incidental thereto, shall be reasonably satisfactory in form
and substance to Investor, and Investor shall have received copies of all
documents which Investor may reasonably request in connection with said
transactions and copies of the records of all proceedings of the Company in
connection therewith in form and substance satisfactory to Investor.
Section 5.9 Proceeds. The Company shall have entered into commitments for
the purchase and sale of the Series A Preferred Stock which in the aggregate
will yield at least $35 million in proceeds to the Company.
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ARTICLE 6
CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING
The obligations of the Company under Section 2.2 hereof are subject to the
fulfillment at or prior to the Closing of each of the following conditions:
Section 6.1 Representations and Warranties. The representations and
warranties of Investor contained in Article 4 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the Closing.
Section 6.2 Performance. Investor shall have in all material respects
performed and complied with all agreements, obligations and conditions contained
in this Agreement that are required to be performed or complied with by it at or
prior to the Closing.
Section 6.3 No Stop Order. No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings therefor
instituted or threatened by the SEC.
ARTICLE 7
COVENANTS
Section 7.1 Filing of Articles Supplementary. On or before the Closing
Date, the Company shall adopt and file with the State Department of Assessments
and Taxation of Maryland the Series A Preferred Articles Supplementary.
Section 7.2 Filing of Prospectus Supplement. Promptly following the
execution of this Agreement, the Company will file with the SEC pursuant to Rule
424(b) promulgated under the Securities Act, the Prospectus Supplement to the
Base Prospectus (setting forth, inter alia, the amount of the Series A Preferred
Stock sold hereunder, the terms thereof, the method of distribution of the
Series A Preferred Stock sold hereunder and the price at which the shares of
Series A Preferred Stock sold hereunder are to be purchased by Investor)
substantially in the form attached as Exhibit C hereto, with only such changes
as shall be approved by Investor and the Company. Investor hereby acknowledges
receipt of a copy of the Prospectus.
Section 7.3 Amendments to Registration Statement. If at any time after the
date of this Agreement and through the Closing Date any event shall have
occurred or any condition shall exist as a result of which, in the reasonable
opinion of Investor or the Company, it shall be necessary to amend or supplement
the Prospectus, as then amended or supplemented, so that the Prospectus will not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances then existing, not misleading, or if, in the reasonable opinion of
Investor or the Company, it shall be necessary at any time to amend or
supplement the Registration Statement or the Prospectus in order to comply with
the requirements of the Securities Act or the Exchange Act or the respective
rules and regulations of the SEC thereunder, the Company shall promptly prepare
and file with the SEC such amendment or supplement, whether by filing documents
pursuant to the Exchange Act, the Securities Act or otherwise, as shall be
necessary to correct such untrue statement or omission or to effect such
compliance.
Section 7.4 Notice of Certain Actions. After the date of this Agreement and
through the Closing Date, the Company will notify Investor immediately (and
confirm such notice in writing) (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the receipt of any comments from the SEC with
respect to the Registration Statement or the Prospectus, (iii) of any request by
the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and
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(iv) of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceedings for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order and, if any such stop order shall be issued,
to obtain the lifting thereof at the earliest possible time. After the date of
this Agreement and through the Closing Date, the Company will promptly, upon
mailing or delivery to the SEC, provide Investor with copies of any amendment or
supplement to the Prospectus, any amendment to the Registration Statement or any
other document to be filed with the SEC related thereto.
Section 7.5 Filing of Exchange Act Reports. After the date of this
Agreement and through the Closing Date, the Company will file promptly all
documents required to be filed with the SEC pursuant to Section 13 or 14 of the
Exchange Act and, so long as the Series A Preferred Stock remains issued and
outstanding, shall provide to Investor copies of all such documents, including,
without limitation, all financial statements of the Company required to be filed
with the SEC.
Section 7.6 Stock Exchange Listing. The Company will use its best efforts
to obtain, within six months of the date of this Agreement, the listing on the
New York Stock Exchange of all shares of Common Stock which Investor may acquire
upon conversion of the Purchased Shares issued and sold hereunder.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Survival of Warranties. The representations and warranties of
the Company and Investor contained in or made pursuant to Sections 3.1, 3.2, 4.3
and 4.4 of this Agreement shall survive the Closing indefinitely. All other
representations and warranties contained in or made in this Agreement shall
survive the Closing for a period of one year. The representations and warranties
contained in this Agreement shall in no way be affected by any investigation of
the subject matter thereof made by or on behalf of Investor or the Company.
Section 8.2 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
Section 8.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland, without giving
effect to the conflict of law provisions thereof.
Section 8.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 8.5 Titles and Subtitles. The title and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
Section 8.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given (a) upon personal delivery to the party to be notified, (b) on
the fifth business day after deposit with the United States Post Office, by
registered or certified mail, postage prepaid, (c) on the next business day
after dispatch via nationally recognized overnight courier or (d) upon
confirmation of transmission by facsimile, all addressed to the party to be
notified
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at the address indicated for such party on the signature page hereof, or at such
other address as such party may designate by ten (10) days' advance written
notice to the other parties. Notices should be provided in accordance with this
Section at the following addresses:
If to Investor, to:
_______________________________
_______________________________
_______________________________
Attention: ____________________
If to the Company, to:
CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attention: Thomas A. Carr, President
with a copy to:
Hogan & Hartson L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
Attention: J. Warren Gorrell, Jr., Esq.
Section 8.7 Finder's Fees. Except as disclosed in the Prospectus, each
party represents that it neither is nor will be obligated for any finders' fee
or commission in connection with this transaction. Investor agrees to indemnify
and to hold harmless the Company from any liability for any commission or
compensation in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted-liability) for which Investor or
any of its officers, partners, employees, or representatives is responsible. The
Company agrees to indemnify and hold harmless Investor from any liability for
any commission or compensation in the nature of a finders' fee (and the costs
and expenses of defending against such liability or asserted liability) for
which the Company or any of its officers, employees or representatives is
responsible.
Section 8.8 Expenses. Each party shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
this Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement or the Series A Preferred Articles
Supplementary, the prevailing party shall be entitled to reasonable attorneys'
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
Section 8.9 Amendments and Waivers. Any term of this Agreement may be
amended, and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of the Company and Investor. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any securities purchased under this Agreement at the time outstanding
(including securities into which such securities are convertible), each future
holder of all such securities, and the Company.
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Section 8.10 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
Section 8.11 Entire Agreement. This Agreement constitutes the entire
agreement among the parties and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein.
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IN WITNESS WHEREOF, this Agreement has been signed on behalf of each of the
parties hereto as of the day first above written.
CARRAMERICA REALTY CORPORATION
By:
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Name:
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Title:
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By:
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Name:
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Title:
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