================================================================================
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): December 18, 1997
CARRAMERICA REALTY CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Maryland 1-11706 52-1796339
- ---------------------------- ------------- ----------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification Number)
</TABLE>
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(202) 624-7500
Not applicable
(Former name or former address, if changed since last report)
================================================================================
<PAGE>
CARRAMERICA REALTY CORPORATION
Item 5 - Other Events
Attached as Exhibits to this form are the documents listed below:
Exhibit Document
------- --------
1.1 Underwriting Agreement, dated December 18, 1997, by
and between CarrAmerica Realty Corporation and Legg
Mason Wood Walker, Incorporated
1.2 Terms Agreement and Underwriting Agreement, both dated
December 18, 1997, by and between CarrAmerica Realty
Corporation and Prudential Securities Incorporated
5.1 Opinion of Hogan & Hartson L.L.P. regarding legality
of shares
2
<PAGE>
SIGNATURE
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.
CARRAMERICA REALTY CORPORATION
Date: December 22, 1997 By: /s/ Brian K. Fields
-----------------------
Brian K. Fields
Chief Financial Officer
3
<PAGE>
EXHIBIT INDEX
Exhibit Description
------ -----------
1.1 Underwriting Agreement, dated December 18, 1997, by
and between CarrAmerica Realty Corporation and Legg
Mason Wood Walker, Incorporated
1.2 Terms Agreement and Underwriting Agreement, both dated
December 18, 1997, by and between CarrAmerica Realty
Corporation and Prudential Securities Incorporated
5.1 Opinion of Hogan & Hartson L.L.P. regarding
legality of shares
594,377 Shares
CarrAmerica Realty Corporation
Common Stock
UNDERWRITING AGREEMENT
----------------------
December 18, 1997
Legg Mason Wood Walker, Incorporated
111 South Calvert Street
P.O. Box 1476
Baltimore, Maryland 21203
Ladies and Gentlemen:
CarrAmerica Realty Corporation, a Maryland corporation (the
"Company"), proposes to issue and sell 594,377 shares of common stock of the
Company, par value $.01 per share (the "Shares"), to Legg Mason Wood Walker,
Incorporated (you or the "Underwriter"). The shares of common stock, par value
$.01 per share, of the Company to be outstanding after giving effect to the sale
contemplated hereby are hereinafter referred to as shares of the "Common Stock."
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-3
(Registration No. 333-22353) including a preliminary prospectus relating to the
registration of the Shares and such other securities which may be offered from
time to time by the Company in accordance with Rule 415 under the Act. Such
registration statement (as amended, if applicable) has been declared effective
by the Commission on March 27, 1997 Such registration statement (as amended, if
applicable), on the one hand, and the prospectus constituting a part thereof and
the prospectus supplement relating to the offering of the Shares provided to the
Underwriter by the Company for use (whether or not such prospectus supplement is
required to be filed with the Commission by the Company pursuant to the Act)
(the "Prospectus Supplement"), on the other hand, including all documents
incorporated therein by reference, as from time to time amended or supplemented
pursuant to the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively called the "Exchange
Act") and the Act are referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, however, that a prospectus supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of the Shares to which it relates. Any registration
<PAGE>
statement (including any amendment or supplement thereto or information which is
deemed part thereof) filed by the Company under Rule 462(b) of the Act (a "Rule
462(b) Registration Statement") shall be deemed to be part of the "Registration
Statement" as defined herein and any prospectus or any term sheet as
contemplated by Rule 434 of the Act (a "Term Sheet") (including any amendment or
supplement thereto or information which is deemed part thereof) included in such
registration statement shall be deemed to be part of the "Prospectus," as
defined herein. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "described" 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 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, without limitation, even though not specifically stated, any
document filed under the Exchange Act which is or is deemed to be incorporated
by reference in the Registration Statement or the Prospectus, as the case may
be. Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell the Shares and the
Underwriter agrees to purchase from the Company at a price per share of $29.744
(the "Purchase Price"), the Shares.
3. Terms of the Offering. The Company is advised by the
Underwriter that it proposes (i) to deposit the Shares directly with the Trustee
of Legg Mason REIT Trust, December 1997 Series (the "Trust"), a registered unit
investment trust under the Investment Company Act of 1940, as amended (the
"Offering"), as soon after the execution and delivery hereof as in its judgment
is advisable and (ii) initially to offer the Shares upon the terms set forth in
the Prospectus. The Company further acknowledges that the Underwriter is the
sponsor of the Trust and therefore is considered an affiliate of the Trust.
4. Delivery and Payment. Delivery to the Underwriter of
certificates for, and payment of the Purchase Price for, the Shares shall be
made, subject to Section 9, at 10:00 A.M., New York City time, on December 23,
1997, or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriter and the Company (such time and date of
payment and delivery being herein called the "Closing Date") at such place as
you shall designate. The Closing Date and the location of, delivery of and the
form of payment for the Shares may be varied by agreement between you and the
Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York City time, on
the business day next preceding the Closing Date. Certificates in definitive
form evidencing the Shares shall be delivered to you on the Closing Date, with
any transfer taxes thereon duly paid by the Company, for the account of the
Underwriter, against
2
<PAGE>
payment of the Purchase Price therefor by intra-bank transfer or wire transfer
of same day funds to such account as may be designated by the Company at least
two business days prior to the Closing Date.
5. Agreements of the Company. The Company agrees with you as
follows:
(a) In respect of the offering of Shares, the
Company will (i) prepare a Prospectus Supplement setting forth the
number of Shares covered thereby and their terms not otherwise specified
in the Prospectus pursuant to which the Shares are being issued, the
name of the Underwriter and the number of Shares which the Underwriter
has agreed to purchase, the price at which the Shares are to be
purchased by the Underwriter from the Company, the initial offering
price, and such other information as the Underwriter and the Company
deem appropriate in connection with the offering of the Shares, and (ii)
file the Prospectus in a form approved by you pursuant to Rule 424(b)
under the Act no later than the Commission's close of business on the
second business day following the date of the determination of the
offering price of the Shares. The Company will furnish to the
Underwriter and to such dealers as you shall specify as many copies of
the Prospectus as the Underwriter shall reasonably request for the
purposes contemplated by the Act or the Exchange Act.
(b) At any time when the Prospectus is required to
be delivered under the Act or the Exchange Act in connection with sales
of Shares, the Company will advise you promptly and, if requested by
you, confirm such advice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus or other supplement or amendment
to the Prospectus to be filed pursuant to the Act, (iii) the receipt of
any comments from the Commission relating to the Registration Statement,
any preliminary prospectus, the Prospectus or any of the transactions
contemplated by this Agreement, (iv) any request by the Commission for
post-effective amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (v) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, and (vi) the
happening of any event as a result of which the Prospectus as then
amended or supplemented would include an 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 when the
Prospectus is delivered to a purchaser, not misleading. The Company will
make every reasonable effort to prevent the issuance of any stop order,
and if at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make
every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) The Company will furnish to you without
charge, one signed copy of the Registration Statement as first filed
with the Commission and of each amendment to it, including all exhibits,
and furnish to you such number of conformed copies of the Registration
Statement as so filed and of each amendment to it as you may reasonably
request. If applicable, the copies of the Registration Statement and
each amendment thereto furnished to the
3
<PAGE>
Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(d) At any time when the Prospectus is required to
be delivered under the Act or the Exchange Act in connection with sales
of Shares, the Company will not file any amendment to the Registration
Statement or any Rule 462(b) Registration Statement or make any
amendment or supplement to the Prospectus or any Term Sheet, if
applicable, of which you shall not previously have been advised or to
which you or your counsel shall reasonably object; and the Company will
prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement, Rule 462(b)
Registration Statement, Term Sheet, or amendment or supplement to the
Prospectus which, in the opinion of your counsel, may be necessary in
connection with the distribution of the Shares by you, and will use its
best efforts to cause the same to become promptly effective. If
applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(e) If, at any time when the Prospectus is
required to be delivered under the Act or the Exchange Act in connection
with sales of Shares, any event shall occur as a result of which, in the
opinion of counsel for the Underwriter, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with any law, the Company will
forthwith prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus (in form and substance reasonably
satisfactory to counsel for the Underwriter) so that the statements in
the Prospectus, as so amended or supplemented, 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 the light of the
circumstances existing when it is so delivered, not misleading, or so
that the Prospectus will comply with any law, and to furnish to the
Underwriter and to such dealers as you shall specify, such number of
copies thereof as the Underwriter or dealers may reasonably request.
(f) The Company will use its best efforts, in
cooperation with the Underwriter, to qualify, register or perfect
exemptions for the Shares for offer and sale by the Underwriter under
the applicable state securities or Blue Sky laws and real estate
syndication laws of such jurisdictions as you may reasonably request;
provided, however, the Company will not be required to qualify as a
foreign corporation, file a general consent to service of process in any
such jurisdiction, subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject, or
provide any undertaking or make any change in its charter or by-laws
that the Board of Directors of the Company reasonably determines to be
contrary to the best interests of the Company and its stockholders. In
each jurisdiction in which the Shares have been so qualified or
registered, the Company will use all reasonable efforts to file such
statements, reports and other documents as may be required by the laws
of such jurisdiction, to continue such qualification or registration in
effect for so long a period as the Underwriter may reasonably request
for the distribution of the Shares.
4
<PAGE>
(g) To make generally available to the Company's
stockholders as soon as reasonably practicable but not later than sixty
(60) days after the close of the period covered thereby (ninety (90)
days in the event the close of such period is the close of the Company's
fiscal year), an earnings statement (in form complying with the
provisions of Rule 158 of the Act) covering a period of at least twelve
months after the effective date of the Registration Statement (but in no
event commencing later than ninety (90) days after such date) which
shall satisfy the provisions of Section 11(a) of the Act, and, if
required by Rule 158 of the Act, to file such statement as an exhibit to
the next periodic report required to be filed by the Company under the
Exchange Act covering the period when such earnings statement is
released.
(h) During the period of five years after the date
of this Agreement, to furnish to you as soon as available a copy of each
regular and periodic report, financial statement or other publicly
available information of the Company and any of its subsidiaries mailed
to the holders of the Shares or filed with the Commission or any
securities exchange, and any such publicly available information
concerning the Company or any of its subsidiaries as you may reasonably
request.
(i) During the period when the Prospectus is
required to be delivered under the Act or the Exchange Act in connection
with sales of the Shares, to file all documents required to be filed by
it with the Commission pursuant to Section 13, 14 or 15 of the Exchange
Act within the time periods required by the Exchange Act.
(j) To pay all costs, expenses, fees and taxes
incident to (i) the preparation, printing, filing and distribution under
the Act of the Registration Statement and any amendment thereto
(including financial statements and exhibits), each preliminary
prospectus, the Prospectus and all amendments and supplements to any of
them prior to or during the period specified in Section 5(b), (ii) the
qualification of registration of the Shares for offer and sale under the
securities, Blue Sky laws or real estate syndication laws of the several
states in accordance with Section 5(f) hereof, (iii) the fee of and the
filings and clearance, if any, with the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the Offering,
(iv) the fee of and the listing of the Shares on the New York Stock
Exchange, Inc. ("NYSE"), (v) furnishing such copies of the Registration
Statement, the Prospectus and all amendments and supplements thereto as
may be requested for use in connection with the offering or sale of the
Shares by the Underwriter, (vi) the preparation, issuance and delivery
of certificates for the Shares to the Underwriter, (vii) the costs and
charges of any transfer agent or registrar, (viii) any transfer taxes
imposed on the sale by the Company of the Shares to the Underwriter and
(vi) the fees and disbursements of the Company's counsel and
accountants.
(k) The Company will use its best efforts to
maintain the listing of the Shares on the NYSE for a period of three
years after the Closing Date and thereafter unless the Company's Board
of Directors determines that it is no longer in the best interests of
the Company for the Shares to continue to be so listed.
5
<PAGE>
(l) The Company will use its best efforts to do
and perform all things required to be done and performed under this
Agreement by the Company prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Shares.
(m) The Company will use the net proceeds received
by it from the sale of the Shares in the manner specified in the
Prospectus Supplement under "Use of Proceeds."
(n) The Company will prepare and file or transmit
for filing with the Commission in accordance with Rule 424(b) of the Act
copies of the Prospectus.
(o) The Company will use its best efforts to
ensure that the Company continues to qualify as a "real estate
investment trust" ("REIT") under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code"), for a period of
three years after the date of this Agreement unless the Company's Board
of Directors determines that it is no longer in the best interest of the
Company to be so qualified.
(p) The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will constitute, stabilization
of the price of the Shares to facilitate the sale or resale of any
Shares in violation of the Act.
6. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter as of the date hereof and the Closing
Date that:
(a) The Registration Statement became effective on
March 27, 1997. 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, 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, threatened by the
Commission or by the state securities authority of any jurisdiction.
(b) The Registration Statement and the Prospectus,
including the financial statements, schedules and related notes included
in the Prospectus or incorporated therein by reference and, if
applicable, any Term Sheet to the Prospectus, as of the date hereof and
at the time the Registration Statement became effective, and when any
post-effective amendment to the Registration Statement or Rule 462(b)
Registration Statement becomes effective or any amendment or supplement
to the Prospectus is filed with the Commission, did or will comply in
all material respects with all applicable provisions of the Act. The
Prospectus, including the financial statements, schedules and related
notes included in the Prospectus or incorporated therein by reference,
and if applicable, any Term Sheet to the Prospectus, as of the date
hereof and at the time the Registration Statement became effective, and
at the Closing Date, and when any post-effective amendment to the
Registration Statement or Rule 462(b) Registration Statement becomes
effective or any amendment or supplement to the Prospectus is filed with
the Commission, did or will comply in all material respects with all
applicable provisions of the Act. On the date the Registration Statement
was declared effective, on the date hereof, on the
6
<PAGE>
date of filing of any Rule 462(b) Registration Statement and on the
Closing Date, no part of the Registration Statement or any amendment did
or will contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to
make the statements therein not misleading. On the date the Registration
Statement was declared effective, on the date hereof, as of its date, on
the date of filing of any Rule 462(b) Registration Statement and at the
Closing Date, the Prospectus and the Prospectus Supplement did not or
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. If a
Rule 462(b) Registration Statement is filed in connection with the
offering and sale of the Shares, the Company will have complied or will
comply with the requirements of Rule 111 under the Act relating to the
payment of filing fees therefor. The foregoing representations and
warranties in this Section 6(b) do not apply to any statements or
omissions made in reliance on and in conformity with information
relating to the Underwriter furnished in writing to the Company by the
Underwriter specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. The Company has not
distributed any offering material in connection with the offering or
sale of the Shares other than the Registration Statement, the Prospectus
or any other materials, if any, permitted by the Act (which were
disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any,
complied or will comply when so filed in all material respects with all
applicable provisions of the Act; did not or 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, in the
light of the circumstances under which they were made, not misleading;
and the Prospectus delivered to the Underwriter for use in connection
with the offering of the Shares will, at the time of such delivery, be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to Item 12 of Form
S-3 under the 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 Exchange Act, and, when read together with other
information in and incorporated by reference in the Prospectus, at the
time the Registration Statement became effective, and as of the Closing
Date, or during the period specified in Section 5(b) did not and will
not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
representations and warranties in this Section 6(d) do not apply to any
statements or omissions made in reliance on and in conformity with
information relating to the Underwriter furnished in writing to the
Company by the Underwriter specifically for inclusion in the
Registration Statement or Prospectus or any amendment or supplement
thereto.
(e) The historical financial statements and the
related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus, comply in all material
respects with the requirements of the Act and the Exchange Act, as
applicable, and present fairly the consolidated financial position of
the Company and its consolidated
7
<PAGE>
subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified; the financial statements with respect to [the Properties (as
defined in the Prospectus) acquired by the Company or its subsidiaries,
together with related notes, to the extent incorporated by reference in
the Registration Statement or the Prospectus, present fairly a summary
of gross income and direct operating expenses or a summary of gross
income, as the case may be, of such Properties for the indicated
periods; except as otherwise stated in the Registration Statement or the
Prospectus, the foregoing financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis, and the supporting schedules included or incorporated
by reference in the Registration Statement present fairly the
information required to be stated therein; the pro forma financial
information, and the related notes thereto, included or incorporated by
reference in the Registration Statement and the Prospectus comply in all
material respects with the applicable requirements of the Act and the
Exchange Act, as applicable; the assumptions used in preparing such pro
forma information are reasonable and the adjustments used therein are
appropriate to give effect to the transactions referred to therein; and
the other financial and statistical information and data set forth in
the Registration Statement and the Prospectus are accurately presented
in all material respects and prepared on a basis consistent with the
books and records of the Company and its consolidated subsidiaries.
(f) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
(i) there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
condition (financial or otherwise), business, prospects, properties, net
worth or results of operations of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus; and (ii) except as set forth or contemplated in the
Prospectus, neither the Company nor any of its subsidiaries has entered
into any transaction or agreement (whether or not in the ordinary course
of business) material to the Company and its subsidiaries, taken as a
whole.
(g) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
state of Maryland, with corporate power and authority to own or lease
its properties and to conduct its business as described in the
Prospectus, and is duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not (1) have a
material adverse effect on the condition (financial or otherwise),
business, prospects, properties, net worth or results of operations of
the Company and its subsidiaries, taken as a whole, (2) adversely affect
the issuance or validity of the Shares or (3) adversely affect the
consummation of any of the transactions contemplated by this Agreement
(each of (1), (2) and (3) above, a "Material Adverse Effect"); each of
the subsidiaries of the Company has been duly organized and is validly
existing as a corporation, limited partnership or limited liability
company, as the case may be, in good standing under the laws of its
jurisdiction of organization with corporate or partnership power and
authority, as the case may be, to own or lease its properties and
conduct its business as presently conducted and as described in the
Prospectus, and has been duly qualified as a foreign corporation,
foreign limited
8
<PAGE>
liability company or foreign limited partnership, as the case may be,
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have
a Material Adverse Effect; all the outstanding shares of capital stock
of each subsidiary issued in the name of the Company or its subsidiaries
have been duly authorized and validly issued and are fully paid and
nonassessable; all the outstanding shares of capital stock and all
partnership interests of each subsidiary that are owned by the Company,
directly or indirectly, are owned free and clear of all liens,
encumbrances, security interests and claims. (h) This Agreement has been
duly authorized, executed and delivered by the Company.
(i) The Shares have been duly authorized and, when
issued and delivered to the Underwriter against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid and
nonassessable. Application has been made to list the Shares on the NYSE.
The form of certificate for the Shares will comply with all applicable
legal and NYSE requirements. The holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the Shares. The capital stock of the Company
conforms to the description thereof in the Registration Statement and
the Prospectus.
(j) Neither the Companies nor any of its
subsidiaries is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under (1) its Articles of
Incorporation, Certificate of Incorporation or operating or partnership
agreement, as the case may be (in each case as amended to the date of
this Agreement), (2) its Bylaws (as amended to the date of this
Agreement) or (3) any indenture, mortgage, deed of trust, loan
agreement, partnership agreement or other agreement or instrument or
obligation to which the Company or any of its subsidiaries is a party or
by which it or any of its properties is bound, except, with respect to
clauses (2) and (3), for violations and defaults which individually or
in the aggregate would not have a Material Adverse Effect; the issue and
sale of the Shares and the performance by the Company of all of the
obligations under this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement,
partnership agreement or other material agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, except
for such conflicts, breaches, defaults or violations which individually
or in the aggregate would not have a Material Adverse Effect, nor will
any such action result in any violation of the provisions of the
Articles of Incorporation or the ByLaws of the Company or any applicable
law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties, except for such violations which individually or in
the aggregate would not have a Material Adverse Effect; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except
9
<PAGE>
such consents, approvals, authorizations, orders, registrations or
qualifications (x) as have been obtained under the Act and the Exchange
Act, (y) as may be required under the Act, the Exchange Act, state
securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct
Rules of the NASD in connection with the purchase and distribution of
the Shares by the Underwriter or (z) the failure to obtain which would
not have a Material Adverse Effect.
(k) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending or,
to the knowledge of the Company or its subsidiaries, threatened to which
the Company or its subsidiaries is or may be a party or to which any
property of the Company or its subsidiaries is or may be the subject
which, if determined adversely to the Company, could individually or in
the aggregate reasonably be expected to have a Material Adverse Effect;
there are no contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are not
filed or described as required; and the descriptions of the terms of all
such contracts and documents contained or incorporated by reference in
the Registration Statement or Prospectus are complete and correct in all
material respects.
(l) The authorized capital stock of the Company
consists of 90 million shares of Common Stock, $.01 par value per share,
and 15 million shares of preferred stock, $.01 par value per share. 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.
(m) The Company or its subsidiaries has good and
marketable title to each Property, in each case free of any lien,
mortgage, pledge, charge or encumbrance of any kind except those (i)
described in the Prospectus or (ii) which do not materially affect or
detract from the value of such Property or interfere with the use made
and proposed to be made of such Property by the Company and its
subsidiaries and which individually and in the aggregate are in an
amount which is not material to the Company.
(n) Except as disclosed in the Prospectus, neither
the Company nor any of their subsidiaries has notice of any defense to
the obligations of any tenant under any lease for the possession of any
Property, or any claim asserted or threatened by any person or entity,
which claim, if sustained, would have a Material Adverse Effect; and
except as disclosed in the Prospectus, the lessor under each lease has
complied with its obligations under such lease, except as would not have
a Material Adverse Effect, and neither the Company nor any of its
subsidiaries has notice of any default by the tenant under such lease
which, individually or in the aggregate with other such defaults, would
have a Material Adverse Effect.
(o) The mortgages and deeds of trust encumbering
the Properties are not (i) cross-defaulted to any indebtedness other
than indebtedness of the Company or any of its subsidiaries or (ii)
cross-collateralized to any property not owned by the Company or its
subsidiaries.
(p) The Company and its subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are customary in the business in which
they are engaged and such insurance is adequate for the value of their
properties; all
10
<PAGE>
policies of insurance insuring the Company or its subsidiaries or their
respective businesses, assets, employees, officers, trustees and
directors, as the case may be, are in full force and effect; the Company
and its subsidiaries is in compliance with the terms of such policies in
all material respects and there are no claims by the Company or by its
subsidiaries under any such policy as to which any insurance company is
denying liability or defending under a reservation of rights clause,
other than claims which individually or in the aggregate would not have
a Material Adverse Effect.
(q) The Company has filed all federal, state and
foreign income tax returns which have been required to be filed and have
paid all taxes indicated by said returns and all assessments received by
it to the extent that such taxes have become due and are not being
contested in good faith.
(r) The Company and each of its subsidiaries owns,
possesses and has obtained all material licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has made
all material declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals necessary to own or lease, as the
case may be, and to operate its properties and to carry on its business
as conducted as of the date hereof, except in each case where the
failure to obtain licenses, permits, certificates, consents, orders,
approvals and other authorizations, or to make all declarations and
filings, would not have a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received any notice of any
proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization,
except as described in the Prospectus and except, in each case, where
such revocation or modification would not have a Material Adverse
Effect; and the Company and each of its subsidiaries are in compliance
with all laws, rules and regulations relating to the conduct of their
respective businesses as conducted as of the date hereof, except where
noncompliance with such laws, rules or regulations would not have a
Material Adverse Effect.
(s) To the knowledge of the Company, its
independent accountants who have certified certain of the financial
statements filed with the Commission as part of, or incorporated by
reference in, the Registration Statement or the Prospectus, are
independent public accountants as required by the Act.
(t) To the knowledge of the Company, no
relationship, direct or indirect, exists between or among the Company or
its subsidiaries on the one hand, and the directors, trustees, officers,
stockholders, customers or suppliers of the Company or its subsidiaries
on the other hand, which is required by the Act to be described in the
Registration Statement and the Prospectus which is not so described.
(u) The Company has never been, is not now, and
immediately after giving effect to the sale of the Shares under this
Agreement will not be, an "investment company" or entity "controlled" by
an "investment company," within the meaning of the Investment Company
Act of 1940, as amended (the "Investment Company Act").
11
<PAGE>
(v) With respect to all tax periods regarding
which the Internal Revenue Service is or will be entitled to assert any
claim against the Company, the Company has met the requirements for
qualification as a REIT under Sections 856 through 860 of the Code, and
the present and contemplated operations, assets and income of the
Company and its subsidiaries, taken as a whole, continue to meet such
requirements.
(w) Other than as disclosed in the Prospectus, the
Company has no knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste materials
(collectively, "Hazardous Materials") on any of the Properties or (b)
any unlawful spills, releases, discharges or disposals of Hazardous
Materials that have occurred or are presently occurring on or from the
Properties, which presence or occurrence would individually or in the
aggregate have a Material Adverse Effect.
(x) Other than as disclosed in the Prospectus, the
Company and its subsidiaries (i) are in compliance with any and all
applicable federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) the Company has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct
its respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not
individually or in the aggregate have a Material Adverse Effect.
(y) In the ordinary course of business, the
Company engages environmental consultants and other experts to conduct
reviews of the effect of Environmental Laws on properties to be acquired
by the Company or its subsidiaries, including Phase I environmental
audits or more invasive procedures, in the course of which the Company
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
cleanup, closure of properties or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis
of such reviews and other than as described in the Prospectus, the
Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, have a Material
Adverse Effect.
(z) Subsequent to the respective dates as of which
information is given in the Prospectus, (i) the Company has not
purchased any of its outstanding shares of capital stock, or declared,
paid or otherwise made any dividend or distribution of any kind on its
shares of capital stock other than regular periodic dividends on such
shares; and (ii) there has not been any material change in the shares of
capital stock of the Company or any material change in the short-term
debt or long-term debt of the Company and its subsidiaries on a
consolidated basis, except as described in or contemplated by the
Prospectus. Other than as described in or contemplated by the
Prospectus, including documents incorporated therein by reference, there
are no outstanding warrants or options to purchase or rights to acquire
any shares of capital stock of the Company (other than options or rights
granted or issued under the Company's
12
<PAGE>
employee benefit plans or in connection with the acquisition of real
property or operating businesse, which in the aggregate do not equal
more than 2% of the number of outstanding shares of common stock of the
Company) and there are no restrictions upon the voting or transfer of,
or the declaration or payment of any dividend or distribution on, any
shares of capital stock of the Company pursuant to the Company's
Articles of Incorporation or Bylaws, any agreement or other instrument
to which the Company is a party or by which the Company is bound, or any
order, law, rule, regulation or determination of any court, governmental
agency or body (including, without limitation, any banking or insurance
regulatory agency or body), or arbitrator having jurisdiction over the
Company. No holders of securities of the Company or of securities
convertible into or exchangeable for securities of the Company have
rights to the registration of such securities of the Company under the
Registration Statement.
(aa) The Company and its subsidiaries and
affiliates have not taken and will not take, directly or indirectly, any
action designed to, or that might be reasonably expected to, cause or
result in stabilization or manipulation of the price of the Shares, and
the Company and its subsidiaries and affiliates have not distributed and
agree not to distribute any prospectus or other offering material in
connection with the offering and sale of the Shares other than the
Prospectus or other material permitted by the Act.
(bb) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(cc) There is (i) no significant unfair labor
practice complaint pending against the Company or its subsidiaries or,
to the knowledge of the Company, threatened against any of them, before
the National Labor Relations Board or any state or local labor relations
board, and no significant grievance or more significant arbitration
proceeding arising out of or under any collective bargaining agreement
is so pending against the Company or its subsidiaries or, to the
knowledge of the Company, threatened against any of them, and (ii) no
significant strike, labor dispute, slowdown or stoppage pending against
the Company or its subsidiaries or, to the knowledge of the Company,
threatened against it or any of their subsidiaries except for such
actions specified in clause (i) or (ii) above which individually or in
the aggregate could not reasonably be expected to have a Material
Adverse Effect.
(dd) No statement, representation, warranty or
covenant made by the Company in this Agreement or made in any
certificate or document required by this Agreement to be delivered to
the Underwriter is, or will be, when made, inaccurate, untrue or
incorrect in any material respect; it being understood that no
representation is made under this Section 6(gg) with respect to the
Registration Statement or the Prospectus which are the subject of
representations contained in other paragraphs in this Section 6.
13
<PAGE>
(ee) Any certificate or other document signed by
any officer or authorized representative of the Company or any of their
subsidiaries, and delivered to the Underwriter or to counsel for the
Underwriter in connection with the sale of the Shares shall be deemed a
representation and warranty by such entity or person, as the case may
be, to the Underwriter as to the matters covered thereby.
7. Indemnification.
(a) The Company agrees to indemnify and hold
harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
expenses, liabilities and judgments caused by or resulting from any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by or
resulting from any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses,
claims, damages, expenses, liabilities or judgments are caused by or
result from any such untrue statement or omission or alleged untrue
statement or omission based upon and in conformity with information
relating to the Underwriter furnished in writing to the Company by or on
behalf of the Underwriter through you expressly for use therein,
provided, that this indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of the Underwriter from whom
the person asserting any such losses, liabilities, claims, damages or
expenses purchased Shares, or any person controlling the Underwriter, if
a copy of the prospectus (as then amended or supplemented if the Company
shall have furnished any such amendments or supplements thereto) was not
sent or given by or on behalf of the Underwriter to such person, if such
is required by law, at or prior to the written confirmation of the sale
of such Shares to such person and if the Prospectus (as so amended or
supplemented) would have corrected the defect giving rise to such loss,
liability, claim, damage or expense.
(b) In case any action shall be brought against
the Underwriter or any person controlling the Underwriter, based upon
any preliminary prospectus, the Registration Statement or the Prospectus
or any amendment or supplement thereto and with respect to which
indemnity may be sought against the Company, the Underwriter shall
promptly notify the Company in writing and the Company may, at its
election, assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of
all fees and expenses. The Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such
counsel shall, if the Company has assumed the defense as indicated
above, be at the expense of the Underwriter or such controlling person
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Company, (ii) the Company shall have failed
to assume the defense and employ counsel or (iii) the named parties to
any such action (including any impleaded parties) include both the
Underwriter or such controlling person and the Company and the
Underwriter or such controlling person shall have been advised by such
counsel that there may be one or more legal defenses available to it
14
<PAGE>
which are different from or additional to those available to the Company
(in which case the Company shall not have the right to assume the
defense of such action on behalf of the Underwriter or such controlling
person, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any
local counsel) for the Underwriter and controlling persons, which firm
shall be designated in writing by the Underwriter and that all such fees
and expenses shall be reimbursed as they are incurred). The Company
shall not be liable for any settlement of any such action effected
without its written consent, but if settled with their written consent,
the Company agrees to indemnify and hold harmless the Underwriter and
any such controlling person from and against any loss or liability by
reason of such settlement to the extent required by this Section 7.
Notwithstanding the immediately preceding sentence, if in any case where
the fees and expenses of counsel are at the expense of the indemnifying
party and an indemnified party shall have requested the indemnifying
party to reimburse the indemnified party for such fees and expenses of
counsel as incurred, such indemnifying party agrees that it shall be
liable for any settlement of any action effected without its written
consent, if (i) such settlement is entered into more than forty business
days after the receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall have failed to reimburse
the indemnified party in accordance with such request for reimbursement
prior to the date of such settlement; provided, however, that if it is
determined by a final non appealable order of a court of competent
jurisdiction that the Company has no indemnification obligation under
this Section 7, all fees and expenses paid by any of the Company
pursuant to this sentence shall be returned to them upon demand. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(c) The Underwriter agrees to indemnify and hold
harmless the Company and each of its officers and directors who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with reference to and in conformity with
information relating to the Underwriter furnished in writing by or on
behalf of the Underwriter expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus. In case any
action shall be brought against the Company, any of its officers,
directors, or any person controlling the Company, based on the
Registration Statement, the Prospectus or any preliminary prospectus and
in respect of which indemnity may be sought against the Underwriter, the
Underwriter shall have the rights and duties given to Company (except
that if any of the Company shall have assumed the defense thereof, the
Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall, except as otherwise provided herein, be
at the expense of the Underwriter), and the Company, its officers,
directors, and any person controlling the Company shall have the rights
and duties given to the Underwriter, by Section 7(b) hereof.
15
<PAGE>
(d) If the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect of any
losses, claims, damages, expenses, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
expenses, liabilities and judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriter on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company, on the one hand, and the
Underwriter, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, expenses,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the
one hand, and the Underwriter, on the other hand, shall be deemed to be
in the same proportion as the total net proceeds from the Offering
(before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriter, bear
to the total price to the public of the Shares, in each case as set
forth in the table on the cover page of the Prospectus. The relative
fault of the Company, on the one hand, and the Underwriter, on the other
hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Company or the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this Section
7(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, expenses, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, 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 Section 7, the Underwriter shall not be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by it 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
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The Underwriter confirms and the Company
acknowledges that (i) the statements with respect to the public offering
of the Shares by the Underwriter set forth on the cover page of the
Prospectus Supplement, (ii) the legend concerning overallotments on page
2 of the Prospectus Supplement, (iii) the first and last sentences of
the second paragraph under the caption "Underwriting" in the Prospectus
Supplement are correct and constitute the only information concerning
the Underwriter furnished in writing to the Company by or on behalf of
the Underwriter specifically for inclusion in the Registration Statement
and Prospectus.
16
<PAGE>
8. Conditions of Underwriter's Obligations. The obligations of
the Underwriter to purchase the Shares under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the
Company contained in this Agreement shall be true and correct, in all
material respects, on the Closing Date, with the same force and effect
as if made on and as of the Closing Date.
(b) No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been commenced or shall be pending before or
threatened by the Commission to the knowledge, after due inquiry, of the
Company. No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been commenced or shall be pending before or threatened by
the state securities authority of any jurisdiction, to the knowledge of
the Company.
(c)(i) Since the date of the latest balance sheet
included or incorporated by reference in the Registration Statement and
the Prospectus, there shall not have been any Material Adverse Effect,
(ii) other than as set forth in the Prospectus, no proceedings shall be
pending or, to the knowledge of the Company, after due inquiry,
threatened against any of the Company or any Property before or by any
federal, state or other commission, board or administrative agency,
where an unfavorable decision, ruling or finding could reasonably be
expected to result in a Material Adverse Effect, and on the Closing Date
you shall have received a certificate dated the Closing Date, signed by
the Chief Financial Officer of the Company confirming the matters set
forth in paragraphs (a), (b) and (c) of this Section 8.
(d) You shall have received on the Closing Date
opinions, dated the Closing Date of Hogan & Haltson L.L.P., counsel for
the Company, in the forms attached hereto as Annex A and Annex B.
(e) You shall have received on the Closing Date an
opinion, dated the Closing Date, of Hunton & Williams, counsel for the
Underwriter, to the effect that:
(i) the Shares have been duly authorized,
and when issued and delivered to the Underwriter against
payment therefor as provided by this Agreement, will have
been validly issued and will be fully paid and
nonassessable, and the issuance of such Shares is not
subject to any preemptive or similar rights;
(ii) the Registration Statement has become
effective under the Act and, to the knowledge of such
counsel, no stop order suspending its effectiveness has
been issued and no proceedings for that purpose are
pending before or threatened by the Commission;
17
<PAGE>
(iii) this Agreement was duly and validly
authorized, executed and delivered by each of the
Company; and
(iv) the Registration Statement, at the
time it became effective, and the Prospectus, as of the
date of the Prospectus Supplement (in each case, other
than documents incorporated therein by reference and the
financial statements and supporting schedules and other
financial and statistical data included or incorporated
by reference therein, as to which no opinion need be
rendered) complied as to form in all material respects
with the requirements of the Act.
In addition, Hunton & Williams shall state that
they have participated in conferences with officers and other
representatives of the Company and representatives of the independent
public accountants for the Company and representatives of the
Underwriter at which the contents of the Prospectus and related matters
were discussed and, although they are not passing upon and do not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus or
the documents incorporated therein by reference, on the basis of the
foregoing (relying as to materiality to a large extent upon the opinions
of officers and other representatives of the Company), no facts have
come to the attention of such counsel which lead them to believe that
the Registration Statement, including the documents incorporated therein
by reference, at the time the Company filed its Annual Report on Form
10-K for the Year Ended December 31, 1996, or at the date of the
Underwriting Agreement, 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, including the documents incorporated therein by reference,
at the time the Prospectus was first provided to the Underwriter for use
in connection with the offering of the Shares or at the date hereof,
contained or contains 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 (it being understood that such counsel need
express no opinion with respect to the financial statements and
schedules and other financial or statistical data included in the
Registration Statement, the Prospectus or the documents incorporated
therein by reference).
(f) On the date hereof, KPMG Peat Marwick shall
have furnished to the Underwriter a letter, dated the date of its
delivery, addressed to the Underwriter and in form and substance
satisfactory to the Underwriter (and to its counsel), confirming that
they are independent public accountants with respect to the Company and
their subsidiaries as required by the Act and with respect to the
financial and other statistical and numerical information contained in
the Registration Statement. At the Closing Date, KPMG Peat Marwick shall
have furnished to the Underwriter a letter, dated the date of its
delivery, which shall confirm, on the basis of a review in accordance
with the procedures set forth in the letter from it, that nothing has
come to its attention during the period from the date of the letter
referred to in the prior sentence to a date (specified in the letter)
not more than five days prior to the Closing Date, which would require
any change in its letter dated the date hereof if it were required to be
dated and delivered at the Closing Date.
18
<PAGE>
(g) At the Closing Date, the Shares shall have
been approved for listing on the NYSE upon official notice of issuance.
(h) The Company and its subsidiaries shall not
have failed at or prior to the Closing Date, to perform or comply with
any of the agreements pursuant to Section 5 herein contained and
required to be performed or complied with by the Company at or prior to
the Closing Date.
(i) At the Closing Date, Hunton & Williams 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 Shares, as herein contemplated and related
proceedings, 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 Shares as herein
contemplated shall be reasonably satisfactory in form and substance to
the Underwriter and Hunton & Williams.
9. Effective Date of Agreement and Termination. This Agreement
shall become effective upon the execution of this Agreement.
This Agreement may be terminated at any time prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has been a Material Adverse
Effect, (ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and would, in your judgment, make it impracticable or
inadvisable (x) to commence or continue the offering of the shares to the public
or (y) to enforce contracts for the sale of the shares, (iii) the suspension or
material limitation of trading in securities on the NYSE or the American Stock
Exchange or material limitation on prices for securities on either of such
exchanges, (iv) (a) the downgrading of any of the debt securities of the Company
or any of its subsidiaries by any "nationally recognized statistical rating
organization" or the announcement by any such organization of an initial rating
with respect to any such securities that is below the ratings of other such
organizations in effect for such securities on the date hereof, or (b) the
public announcement by any such organization that it has under surveillance or
review, with possible negative implications, its rating of any of such
securities, (v) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in your opinion would result in a Material Adverse
Effect, (vi) the declaration of a banking moratorium by either federal or New
York State authorities or (vii) the taking of any action by any federal, state
or local government or agency in respect of its monetary or fiscal affairs which
in your opinion has a material adverse effect on the financial markets in the
United States.
10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company, to Thomas
A. Carr, President, 1700 Pennsylvania Avenue, N.W., Washington, D.C. 20006 and
(b) if to you, to Legg Mason Wood Walker, Incorporated, Attention: Syndicate
Department, 111 South Calvert Street, Baltimore, Maryland
19
<PAGE>
21202, or in any case to such other address as the person to be notified may
have requested in writing.
The provisions of Sections 5, 6 and 7 shall remain operative and
in full force and effect, and will survive delivery of and payment for the
Shares, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of the Underwriter or by or on behalf of the
Company, the officers or directors of the Company or any controlling person of
the Company and (ii) acceptance of the Shares and payment for them hereunder.
In the event of termination of this Agreement, the provisions of
Sections 5(k) and 7 shall remain operative and in full force and effect.
If this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, the Company, agrees to
reimburse the Underwriter for all out-of-pocket expenses (including the fees and
documented disbursements of counsel) reasonably incurred by the Underwriter.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company and the
Underwriter, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from the Underwriter merely because of such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
20
<PAGE>
Please confirm that the foregoing correctly sets forth the
agreement among the parties hereto.
Very truly yours,
CARRAMERICA REALTY CORPORATION
By: /s/ Thomas A. Carr
------------------------------
Name: Thomas A. Carr
Title: Chief Executive Officer
LEGG MASON WOOD WALKER, INCORPORATED
By: /s/ Edmund J. Cashman, Jr.
---------------------------------------
Name: Edmund J. Cashman, Jr.
Title: Senior Executive Vice President
21
EXHIBIT 1.2
CARRAMERICA REALTY CORPORATION
(a Maryland Corporation)
642,570 Shares of Common Stock
TERMS AGREEMENT
Dated: December 18, 1997
To: CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We understand that CarrAmerica Realty Corporation, a Maryland corporation
(the "Company"), proposes to issue and sell 642,570 shares of common stock
("Common Stock")(such Common Stock being hereinafter referred to as the
"Underwritten Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, we offer to purchase the Underwritten
Securities at the purchase price set forth below.
The Underwritten Securities shall have the following terms:
Title of Securities: Common Stock
Number of Shares: 642,570
Public offering price per share: $31.125
Purchase price per share: $29.57
Number of Option Securities: N/A
Underwriter: Prudential Securities Incorporated
Payment: Federal or similar same day funds
Closing time, date and location: December 23, 1997, 9:30 a.m. (EST), Hogan
& Hartson L.L.P., Columbia Square, 555
Thirteenth Street, N.W., Washington, DC
20004-1109
Additional terms, if any: The Company is advised by Prudential
Securities Incorporated that it proposes (i)
to deposit the shares directly with the
Trustee of National Equity Trust, Equity
Portfolio Series 1, a registered unit
investment trust under the Investment
Company Act of 1940, as amended, as soon
after the execution and delivery hereof as
in its judgement is advisable and (ii)
initially to offer the Shares upon the terms
set forth in the Prospectus. The Company
further acknowledges that the Underwriter is
the sponsor of the Trust and therefore is
considered an affiliate of the Trust.
<PAGE>
All the provisions contained in the document entitled "CarrAmerica Realty
Corporation -- Common Stock, Preferred Stock, Common Stock 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.
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,
PRUDENTIAL SECURITIES INCORPORATED
/s/ Jean-Claude Canfin
---------------------------------
Name: Jean-Claude Canfin
Title: Managing Director
Accepted:
CARRAMERICA REALTY CORPORATION
By: /s/ Thomas A. Carr
---------------------------------
Name: Thomas A. Carr
Title: President/Chief Executive
Officer
2
<PAGE>
CARRAMERICA REALTY CORPORATION
(a Maryland corporation)
Common Stock, Preferred Stock, Common Stock Warrants,
Depositary Shares and Debt Securities
UNDERWRITING AGREEMENT
December 18, 1997
PRUDENTIAL SECURITIES INCORPORATED
One New York Plaza
18th Floor
New York, New York
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") and (v) 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, 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 Common Stock Warrants will be issued
pursuant to a Common Stock 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 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
<PAGE>
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
Underwriter," unless the context otherwise requires, shall mean the party to
whom this Agreement is addressed.
Whenever the Company determines to make an offering of Securities
through the Underwriter, 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 Underwriter. 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 name of the Underwriter participating in
such offering, the amount of Initial Underwritten Securities which the
Underwriter agrees to purchase, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriter 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 Underwriter 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 Underwriter 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 Underwriter and the Company. Each offering of
Underwritten Securities through the Underwriter will be governed by this
Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-22353) for the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
430A or Rule 415 of the rules and regulations of the Commission under the 1933
Act (the "1933 Act Regulations"), and the Company has 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 Underwriter 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
2
<PAGE>
term "Prospectus" shall refer to each such revised prospectus from and after the
time it is first provided to the Underwriter 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 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 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.
SECTION 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to the
Underwriter, as of the date hereof, 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 Underwriter 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 Underwriter for such use) will not, include an
untrue statement of a material fact or omit to state a material fact
3
<PAGE>
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 the Underwriter
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.
(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
4
<PAGE>
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
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.
5
<PAGE>
(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) 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).
(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.
(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
Underwriter 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, the Underwriter 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 Common Stock Warrants
have been duly authorized by the Company for issuance and sale to the
Underwriter 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
6
<PAGE>
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, the Underwriter 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 Common Stock Warrants conform in all material respects
to all statements and descriptions related thereto contained in the
Prospectus. The issuance of the Common Stock Warrants is not subject to
any preemptive or other similar rights, except as described in the
Prospectus.
(xiv) The applicable Underwritten Securities, if
such Underwritten Securities are Debt Securities, are in the form
contemplated by the Indenture, have been duly authorized by the Company
for issuance and sale to the Underwriter 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 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. Upon payment of
the purchase price and delivery of such Underwritten Securities in
accordance herewith, the Underwriter 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 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) 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
7
<PAGE>
enforceability of the foregoing may be limited by bankruptcy,
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.
(xvii) (A) This Agreement has been duly and
validly authorized, executed and delivered by the Company, and, assuming
due authorization, execution and delivery by the Underwriter, 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 Underwriter, 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;.
(xviii) 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.
(xix) 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.
(xx) 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, 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 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.
(xxi) There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
8
<PAGE>
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.
(xxii) 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.
(xxiii) 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").
(xxiv) The Company, the Partnerships and the other
Subsidiaries own or possess 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.
(xxv) 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.
(xxvi) 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
9
<PAGE>
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.
(xxvii) 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.
(xxviii) 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 or proposed for inclusion on the National Priorities List
issued pursuant to CERCLA (as defined below) by the United States
10
<PAGE>
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.
(xxix) 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
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
11
<PAGE>
or penalty that is being contested in good faith through appropriate
proceedings and as to which appropriate reserves have been established.
(xxx) 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.
(xxxi) 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.
(xxxii) 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 Common Stock Warrants, as applicable, will have been approved for
listing on the New York Stock Exchange upon notice of issuance.
(xxxiii) Unless otherwise agreed to by the
Underwriter, the Preferred Stock and Debt Securities will have an
investment grade rating from one or more nationally recognized
statistical rating organizations at the Representation Date and at the
applicable Closing Time.
(xxxiv) 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.
(xxxv) 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.
12
<PAGE>
(xxxvi) The Company has not taken and will not
take, directly or indirectly, any action prohibited by Regulation M
under the 1934 Act.
(xxxvii) 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
Underwriter or to counsel for the Underwriter shall be deemed a representation
and warranty by such entity to the Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to the Underwriter; Closing.
(a) The commitments of the Underwriter 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 Underwriter 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
Underwriter to the Company setting forth the number of Option Securities as to
which the Underwriter is 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 Underwriter, 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 Underwriter and the Company.
If the option is exercised as to all or any portion of the Option Securities,
the Underwriter will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Underwritten
Securities the Underwriter has 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 Underwriter in its 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 Underwriter
shall be made at the offices of Rogers & Wells, 200 Park Avenue, New York, New
York 10166, or at such other place as shall be agreed upon by the Underwriter
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
Underwriter 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
13
<PAGE>
the Underwriter, 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, or at such other place as shall be agreed upon by the
Underwriter and the Company on each Date of Delivery as specified in the notice
from the Underwriter 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 Underwriter for the account of the Underwriter
of certificates for the Underwritten Securities to be purchased by the
Underwriter. Certificates for the Underwritten Securities and the Option
Securities, if any, shall be in such denominations and registered in such names
as the Underwriter may request in writing at least two business days before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial Underwritten Securities and the Option Securities,
if any, will be made available for examination and packaging by the Underwriter
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
Underwriter 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 name of the Underwriter
participating in the offering and the number of Underwritten Securities
which the Underwriter has agreed to purchase, the price at which the
Underwritten Securities are to be purchased by the Underwriter from the
Company, the initial public offering price, if any, the selling
concession and reallowance, if any, and such other information as the
Underwriter 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 Underwriter named therein as many copies of the
Prospectus (including such Prospectus Supplement) as the Underwriter
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 Underwriter 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
14
<PAGE>
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 Underwriter
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 Underwriter 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 Underwriter or counsel for the
Underwriter shall reasonably object.
(e) The Company will deliver to the Underwriter as soon
as available as many signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated by reference therein) as the Underwriter may reasonably
request and will also deliver to the Underwriter 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 Underwriter may reasonably request.
(f) The Company will furnish to the 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 Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(g) If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriter, 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 Underwriter) 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 Underwriter a reasonable number of copies of such amendment or
supplement.
(h) The Company will endeavor, in cooperation with the
Underwriter, 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 Underwriter 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)
15
<PAGE>
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."
(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, Common Stock Warrants or Debt
Securities 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 Prudential Securities Incorporated,
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
16
<PAGE>
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.
(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
Underwriter, (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 Underwriter 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
Underwriter copies of this Agreement and the applicable Terms Agreement; (iii)
the preparation, issuance and delivery of the Underwritten Securities to the
Underwriter, 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 Underwriter 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 issuable upon
exercise of Common Stock 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 Underwriter in connection
therewith and in connection with the preparation of the Blue Sky Survey; (vi)
the printing and delivery to the Underwriter 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 Underwriter
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 issuable upon
exercise of the Common Stock Warrants and conversion of Debt Securities or
17
<PAGE>
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
Underwriter 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 Underwriter 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 Underwriter.
SECTION 1. Conditions of Underwriter's Obligations. The obligations of
the Underwriter 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 Underwriter 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 or Debt Securities 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 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 Underwriter any facts that
would cause the Underwriter 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 Underwriter
evidence of such filing and effectiveness in accordance with Rule 462(b)
of the 1933 Act Regulations.
(b) At Closing Time the Underwriter shall have received:
18
<PAGE>
(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 Underwriter, to the effect that:
(i) The Company was incorporated, and is
existing 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 and 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
Delaware. Each Partnership has the partnership power and
partnership authority under its partnership agreement and
under the Delaware Revised Uniform Limited Partnership
Act (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. and Carr
Development & Construction, Inc. (collectively, the
"Significant Subsidiaries") was incorporated and is
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 its incorporation. Each of
the Significant Subsidiaries has the corporate power and
corporate authority under its charter and the laws of the
state of its incorporation to own, lease and operate its
properties and to conduct its business as described in
the Prospectus.
(iv) The capital stock of the Company, as
of the date specified in the Prospectus, was as set forth
in the Prospectus under "Capitalization" in the
Prospectus. To the knowledge of such counsel, except for
shares reserved for issuance upon the redemption of Units
and upon conversion of the Company's Series A Cumulative
Convertible Redeemable Preferred 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
19
<PAGE>
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 Underwriter 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 terms of the
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 is in due and proper form and
complies with all applicable legal requirements. The
issuance of the applicable Underwritten Securities is not
subject to any preemptive 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
Underwritten Securities or Common Stock.
(vi) The Common Stock Warrants, if such
Underwritten Securities are Common Stock Warrants, have
been duly authorized by the Company for issuance and sale
to the Underwriter 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 terms of the Common Stock
Warrants conform in all material respects to all
statements and descriptions related thereto contained in
the Prospectus. The issuance of the Common Stock 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 Common Stock Warrants or Common Stock.
(vii) The applicable Underwritten
Securities, if such Underwritten Securities are Debt
Securities, are in the form contemplated in the
Indenture, have been duly authorized by the Company for
issuance and sale to the Underwriter pursuant to this
20
<PAGE>
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 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. The terms of the applicable Underwritten
Securities 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.
(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. The Common Stock so issuable conforms in all
material respects to all statements relating thereto
contained in the Prospectus.
(ix) Each of this Agreement and the
applicable Terms Agreement was duly executed and
delivered on behalf of the Company.
(x) 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. The Warrant Agreement, if any,
conforms in all material respects to all statements
relating thereto contained in the Prospectus.
(xi) 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.
21
<PAGE>
(xii) 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.
(xiii) None of the Company or either of the
Partnerships is an investment company as such term is
defined under the 1940 Act.
(xiv) 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 Underwriter 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.
(xv) 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.
(xvi) 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.
(xvii) 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.
(xviii) The statements made in the
Prospectus under the headings entitled "Description of
Debt Securities," "Description of Preferred Stock,"
"Description of Common Stock," "Description of Common
Stock Warrants," and the information in the applicable
Prospectus Supplement under similar specified sections to
22
<PAGE>
the extent that they describe matters of law or legal
conclusions, has been reviewed by them and is correct in
all material respects.
(xix) 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), (x) and
(xi) 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 Underwriter.
(2) [INTENTIONALLY OMITTED]
(3) The favorable opinion, dated as of the
applicable Closing Time, of Rogers& Wells, counsel to the
Underwriter, in form and substance satisfactory to the
Underwriter.
(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 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.
23
<PAGE>
In giving their opinions, Hogan & Hartson L.L.P. and
Rogers & Wells 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
Underwriter 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 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 Underwriter 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 Underwriter shall have received from KPMG Peat Marwick
LLP a letter dated such date, in form and substance satisfactory to the
Underwriter, 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
24
<PAGE>
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 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 Underwriter, 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 Underwriter 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 or Debt Securities, shall be
rated investment grade by one or more nationally recognized statistical
rating organizations and the Company shall have delivered to the
Underwriter a letter, dated the Closing Time, from each such rating
organization, or other evidence satisfactory to the Underwriter,
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
25
<PAGE>
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
Underwriter and counsel for the Underwriter.
(h) At Closing Time, the Underwriter 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 Prudential Securities Incorporated
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, 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 Underwriter exercises its
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 Underwriter 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).
26
<PAGE>
(3) The favorable opinion of Rogers & Wells,
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 Underwriter and dated such Date of
Delivery, substantially the same in form and substance as the
letter furnished to the Underwriter 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 Underwriter 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.
SECTION 6. Indemnification.
(a) The Company will indemnify and hold harmless the
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which the 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 the Underwriter for any legal or other
expenses reasonably incurred by the 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 Prudential
Securities Incorporated 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) The 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
27
<PAGE>
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 the Underwriter through Prudential Securities Incorporated 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
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 Underwriter 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 Underwriter 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 Underwriter on the other
shall be deemed to be in the same proportion as the total net proceeds from the
28
<PAGE>
offering of the Underwritten Securities (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriter, 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 Underwriter 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 Underwriter
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 Underwriter
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 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), the Underwriter shall not
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 Underwriter under this Section 6 shall be in addition to any liability
which the respective Underwriter 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 Underwriter.
SECTION 9. Termination of Agreement.
(a) The Underwriter 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
29
<PAGE>
(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
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 Underwriter 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. [INTENTIONALLY LEFT BLANK]
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
Underwriter shall be directed to Prudential Securities Incorporated, One New
York Plaza, New York, New York 10292; 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
30
<PAGE>
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.
31
<PAGE>
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 Underwriter and the Company in accordance with its terms.
Very truly yours,
CARRAMERICA REALTY CORPORATION
By: /s/ Thomas A. Carr
--------------------------------
Name: Thomas A. Carr
Title: President/Chief Executive
Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
PRUDENTIAL SECURITIES INCORPORATED
/s/Jean-Claude Canfin
- -----------------------------------
Name: Jean Claude Canfin
Title: Managing Director
HOGAN & HARTSON L.L.P
COLUMBIA SQUARE
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
(202) 637-5910
December 22, 1997
BY EDGAR
Board of Directors
CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 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 (SEC File No. 333-22353) (the "Registration Statement")
previously declared effective by the Securities and Exchange Commission (the
"Commission") relating to the proposed public offering and sale by the Company
of its securities from time to time as set forth in the prospectus which forms a
part of the Registration Statement, and as set forth in one or more supplements
to such Prospectus. This opinion letter is rendered in connection with the
proposed public offering of up to 1,767,067 shares of common stock, par value
$.01 per share (the "Shares"), of the Company, as described in four Prospectus
Supplements dated December 18, 1997 and filed with the Commission under Rule
424(b)(5) on this date. This opinion letter is furnished to you at your request
to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K,
17 C.F.R. 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 Assessments and Taxation of the State of
Maryland (the "Department") on December 22, 1997 and by the
Assistant Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
<PAGE>
3. The Second Amendment and Restatement of Bylaws of the Company,
as certified by the Assistant Secretary of the Company on the
date hereof as then being complete, accurate and in effect.
4. An executed copy of the Underwriting Agreement, dated December
18, 1997 between the Company and Legg Mason Wood Walker.
5. Executed copies of the Underwriting Agreement and the Terms
Agreement, both dated December 18, 1997, between the Company
and Prudential Securities Incorporated.
6. An executed copy of the Subscription Agreement dated December
18, 1997 among the Company, Security Capital Holdings, S.A.
and Security Capital U.S. Realty.
7. Resolutions of the Board of Directors of the Company adopted
on December 15, 1997 and December 17, 1997, and resolutions of
Pricing Committees of the Board of Directors, adopted on
December 18, 1997, relating to the issuance and sale of the
Shares and arrangements in connection therewith, as certified
by the Assistant Secretary of the Company on the date hereof
as then being complete, accurate and in effect.
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 (i) issuance of the Shares pursuant to the terms of
the Underwriting Agreements, Terms Agreement and Subscription Agreement referred
to above, and (ii) receipt by the Company of the consideration for the Shares
specified in the resolutions of the Board of Directors and the Pricing
Committees referred to above, the Shares will be legally issued, fully paid and
nonassessable under the General Corporation Law of the State of Maryland.
<PAGE>
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 in connection with the filing by the Company of a
Current Report on Form 8-K on or about 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 filing of this opinion letter as an
exhibit to the Form 8-K and to the reference to this firm under the caption
"Legal Matters" in the Prospectus dated December 16, 1997 and in the four
Prospectus Supplements dated December 18, 1997, each of which constitutes a part
of the Registration Statement. In giving this consent, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
--------------------------
HOGAN & HARTSON L.L.P.
