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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 16, 1997
CARRAMERICA REALTY CORPORATION
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(Exact name of registrant as specified in its charter)
Maryland 1-11706 52-1796339
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(State or other jurisdiction (Commission File No.) (IRS Employer
of Incorporation) Identification No.)
1700 Pennsylvania Avenue, N.W., Washington, D.C. 20006
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (202) 624-7500
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FORM 8-K
Item 1: CHANGE IN CONTROL OF REGISTRANT
Not applicable.
Item 2: ACQUISITION OR DISPOSITION OF ASSETS
Not applicable.
Item 3: BANKRUPTCY OR RECEIVERSHIP
Not applicable.
Item 4: CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
Not applicable.
Item 5: OTHER EVENTS.
On December 16, 1997, CarrAmerica Realty Corporation (the
"Company") entered into an Underwriting Agreement and related Terms Agreement
with Goldman, Sachs & Co., Prudential Securities Incorporated and Wheat First
Butcher Singer relating to the issuance and sale by the Company of 2,000,000
depositary shares (the "Depositary Shares"), each such share representing a
one-tenth (1/10) fractional interest in a share of Series D Cumulative
Redeemable Preferred Stock, par value $.01 per share, of the Company. In
connection therewith, the Company granted to the Underwriters (as defined in the
above-described Terms Agreement) an option to purchase an additional 300,000
Depositary Shares to cover over-allotments, if any. The Depositary Shares were
registered under the Securities Act of 1933, as amended, pursuant to the
Company's Registration Statement on Form S-3 (No. 333-22353).
Item 6: RESIGNATIONS OF REGISTRANT'S DIRECTORS
Not applicable.
Item 7: FINANCIAL STATEMENTS AND EXHIBITS
(a) Not applicable.
(b) Not applicable.
(c) Exhibits
Exhibit
Number Exhibit
- ------ -------
1.1 Terms Agreement dated December 16, 1997, together
with related Underwriting Agreement dated December
16, 1997
4.1 Articles Supplementary relating to Series D
Cumulative Redeemable Preferred Stock of the Company
4.2 Deposit Agreement dated as of December 16, 1997
between the Company, BankBoston, N.A., as Depositary,
and the holders from time to time of the depositary
receipts described therein relating to Series D
Cumulative Redeemable Preferred Stock
5.1 Opinion of Hogan & Hartson L.L.P. dated December 16,
1997 as to the validity of the securities
Item 8: CHANGE IN FISCAL YEAR
Not applicable.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Amendment to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: December 19, 1997 CARRAMERICA REALTY CORPORATION
By: /s/ Debra A. Volpicelli
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Debra A. Volpicelli
Treasurer and Controller
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EXHIBIT INDEX
Exhibit
Number Exhibit
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1.1 Terms Agreement dated December 16, 1997, together with
related Underwriting Agreement dated December 16, 1997
4.1 Articles Supplementary relating to Series D Cumulative
Redeemable Preferred Stock of the Company
4.2 Deposit Agreement dated as of December 16, 1997 between
the Company and BankBoston, N.A., as Depositary, and the
holders from time to time of the depositary receipts
described therein relating to Series D Cumulative
Redeemable Preferred Stock
5.1 Opinion of Hogan & Hartson L.L.P. dated December 18,
1997 as to the validity of the securities
Exhibit 1.1
CARRAMERICA REALTY CORPORATION
(a Maryland Corporation)
2,000,000 Depositary Shares
Each Representing 1/10 of an 8.450% Series D Cumulative Redeemable
Preferred Share (Par Value $.01 per share)
(Liquidation Preference Equivalent to $25.00 Per Depositary Share)
TERMS AGREEMENT
Dated: December 16, 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 (the "Representatives") understand that CarrAmerica Realty
Corporation, a Maryland corporation (the "Company"), proposes to issue and sell
2,000,000 depositary shares (the "Depositary Shares") each representing 1/10 of
an 8.450% Series D Cumulative Redeemable Preferred Share (a "Series D Preferred
Share"), of the Company (such Depositary Shares being collectively hereinafter
referred to as the "Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriters named
below (the "Underwriters") offer to purchase, severally and not jointly, the
respective numbers of Initial Underwritten Securities (as defined in the
Underwriting Agreement referred to below) set forth below opposite their
respective names, and a proportionate share of Option Securities (as defined in
the Underwriting Agreement referred to below) to the extent any are purchased,
at the purchase price set forth below.
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Number of
Initial
Underwritten
Underwriter Securities
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Goldman, Sachs & Co.................................................. 800,000
Prudential Securities Incorporated .................................. 800,000
Wheat, First Securities, Inc......................................... 400,000
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Total 2,000,000
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The Underwritten Securities shall have the following terms:
Title of Securities: Depositary Shares each representing 1/10 of an
8.450% Series D Cumulative Redeemable Preferred
Stock (Par Value $.01 per share) (liquidation
preference equivalent to $25.00 per Depositary
Share).
Number of Shares: 2,000,000.
Dividend Rate: 8.450% of the liquidation preference per annum
(equivalent to $2.1125 per share per annum per
Depositary Share); Payable quarterly on the last
day of February, May, August and November of each
year.
Liquidation Preference: $25.00 per Depositary Share.
Ranking: The Underwritten Securities will rank equally with
the Company's Series A Preferred Shares, Series B
Preferred Shares and Series C Depositary Preferred
Shares and senior to the Company's Common Stock.
Public offering price
per share: $25.00, plus accrued dividends, if any, from the
date of original issue.
Purchase price per share: $24.2125.
Conversion provisions: The Series D Preferred Shares are not convertible
into or exchangeable for any other property or
securities of the Company.
Voting and other rights: If dividends on the Series D Preferred Shares are
in arrears for six or more quarterly periods,
whether or not such quarterly periods are
consecutive, holders of the Depositary Shares
representing the Series D Preferred Shares (voting
separately as a class with all other series of
preferred stock upon which like voting rights have
been conferred and are exercisable) will be
entitled to vote for the election of two additional
directors to serve on the Board of Directors of the
Company until all such dividend arrearages are
eliminated.
Number of Option
Securities, if any, that
may be purchased by the
Underwriters: 300,000.
Additional co-managers: Prudential Securities Incorporated, and Wheat,
First Securities, Inc.
Closing time, date and
location: December 19 , 1997, 9:30 a.m. (EST), Hogan &
Hartson L.L.P., Columbia Square, 555 Thirteenth
Street, N.W., Washington, DC 20004-1109.
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.
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Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
GOLDMAN, SACHS & CO.
PRUDENTIAL SECURITIES INCORPORATED
WHEAT, FIRST SECURITIES, INC.
By: GOLDMAN, SACHS & CO.
/s/ GOLDMAN, SACHS & CO.
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(Goldman, Sachs & Co.)
For themselves and as Representatives
of the Underwriters named herein.
Accepted:
CARRAMERICA REALTY CORPORATION
By: /s/ BRIAN K. FIELDS
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Name: Brian K. Fields
Title: Chief Financial Officer
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CARRAMERICA REALTY CORPORATION
(a Maryland corporation)
Common Stock, Preferred Stock, Common Stock Warrants,
Depositary Shares and Debt Securities
UNDERWRITING AGREEMENT
December 16, 1997
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
CarrAmerica Realty Corporation (the "Company") may from time
to time offer in one or more series its (i) unsecured debt securities ("Debt
Securities"), (ii) preferred stock, $.01 par value ("Preferred Stock"), (iii)
common stock, $.01 par value ("Common Stock"), (iv) warrants exercisable for
Common Stock ("Common Stock Warrants") 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 (the "Depositary Receipts"), each of
which will represent a fractional interest of a share of a particular series of
Preferred Stock, pursuant to a deposit agreement (each, a "Deposit Agreement")
among the Company, the depositary identified therein (the "Depositary") and the
registered holders of the Depositary Receipts issued thereunder. Each series of
Preferred Stock may vary as to the specific number of shares, title, liquidation
preference, issuance price, ranking, dividend rate or rates (or method of
calculation), dividend payment dates, any redemption or sinking fund
requirements, any conversion provisions and any other variable terms as set
forth in the applicable articles supplementary (each, an "Articles
Supplementary") relating to such Preferred Stock as issued from time to time.
Each series of Debt Securities may vary as to aggregate principal amount,
maturity date, interest rate or formula and timing of payments thereof,
redemption or repayment provisions, conversion provisions and any
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other variable terms which the Indenture contemplates may be set forth in the
Debt Securities as issued from time to time. As used herein, "the
Representatives," unless the context otherwise requires, shall mean the parties
to whom this Agreement is addressed together with the other parties, if any,
identified in the applicable Terms Agreement (as hereinafter defined) as
additional co-managers with respect to Underwritten Securities (as hereinafter
defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of
Securities through the Representatives or through an underwriting syndicate
managed by the Representatives, the Company will enter into an agreement (the
"Terms Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, the Representatives
and such other underwriters, if any, selected by the Representatives as have
authorized the Representatives to enter into such Terms Agreement on their
behalf (the "Underwriters," which term shall include the Representatives whether
acting alone in the sale of the Underwritten Securities or as a member of an
underwriting syndicate and any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Underwritten Securities
shall specify the amount of Underwritten Securities to be initially issued (the
"Initial Underwritten Securities"), the names of the Underwriters participating
in such offering (subject to substitution as provided in Section 10 hereof), the
amount of Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, the names of such of the Representatives or such other
Underwriters acting as co-managers, if any, in connection with such offering,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, if any, of
the Initial Underwritten Securities, the time and place of delivery and payment
and any other variable terms of the Initial Underwritten Securities (including,
but not limited to, current ratings, designations, liquidation preferences,
voting and other rights, denominations, interest rates or formulas, interest
payment dates, maturity dates and conversion, redemption or repayment provisions
applicable to the Initial Underwritten Securities). In addition, each Terms
Agreement shall specify whether the Underwriters will be granted an option to
purchase additional Underwritten Securities to cover over-allotments, if any,
and the aggregate amount of Underwritten Securities subject to such option (the
"Option Securities"). As used herein, the term "Underwritten Securities" shall
include the Initial Underwritten Securities and all or any portion of the Option
Securities agreed to be purchased by the Underwriters as provided herein, if
any. The Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between the Representatives and the Company. Each offering of
Underwritten Securities through the Representatives or through an underwriting
syndicate managed by the Representatives will be governed by this Agreement, as
supplemented by the applicable Terms Agreement.
The Company 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
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430A(b) of the 1933 Act Regulations), and each prospectus supplement relating to
the offering of Underwritten Securities pursuant to Rule 415 of the 1933 Act
Regulations (the "Prospectus Supplement"), including all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act")
or otherwise, are collectively referred to herein as the "Registration
Statement" and the "Prospectus," respectively; provided that if any revised
Prospectus shall be provided to the Representatives by the Company for use in
connection with the offering of Underwritten Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the
term "Prospectus" shall refer to each such revised prospectus from and after the
time it is first provided to the Representatives for such use; provided,
further, that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Underwritten Securities to which
it relates. Any registration statement (including any supplement thereto or
information which is deemed part thereof) filed by the Company 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.
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SECTION 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to the
Representatives, as of the date hereof, and to the Representatives and each
other Underwriter named in the applicable Terms Agreement, as of the date
thereof (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the
time the Registration Statement became effective, complied, and as of
each Representation Date will comply, in all material respects with the
requirements of the 1933 Act Regulations and, at the time any Debt
Securities are issued, will comply with the 1939 Act and the rules and
regulations thereunder (the "1939 Act Regulations"). The Registration
Statement, at the time the Registration Statement became effective, did
not, and as of each Representation Date, will not, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof does not, and as of
each Representation Date and Closing Time (as hereinafter defined)
(unless the term "Prospectus" refers to a prospectus which has been
provided to the Representatives by the Company for use in connection
with an offering of Underwritten Securities which differs from the
Prospectus on file at the Commission at the time the Registration
Statement became effective, in which case at the time it was first
provided to the Representatives for such use) will not, include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through the Representatives expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification
on Form T-1 under the 1939 Act (the "Statement of Eligibility") of a
Trustee under an Indenture. If a Rule 462(b) Registration Statement is
required in connection with the offering and sale of the Securities,
the Company has complied or will comply with the requirements of Rule
111 under the 1933 Act Regulations relating to the payment of filing
fees therefor.
(ii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to Item 12 of Form
S-3 under the 1933 Act, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of
the Commission under the 1934 Act (the "1934 Act Regulations"), and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective and as of the
applicable Representation Date or Closing Time or during the period
specified in Section 3(f), did not and will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(iii) The accountants who certified the financial
statements and supporting schedules included in, or incorporated by
reference into, the Registration Statement and Prospectus, are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
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(iv) The financial statements (including the notes
thereto) included in, or incorporated by reference into, the
Registration Statement and the Prospectus present fairly the financial
position of the respective entity or entities presented therein at the
respective dates indicated and the results of their operations for the
respective periods specified; except as otherwise stated in the
Registration Statement and Prospectus, said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; the supporting schedules
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the information required to be stated
therein; and the Company's ratios of earnings to fixed charges (actual
and, if any, proforma) included in the Prospectus under the captions
"Ratios of Earnings to Fixed Charges" and in Exhibit 12.1 to the
Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission. The financial information
and data included in the Registration Statement and the Prospectus
present fairly the information included therein and have been prepared
on a basis consistent with that of the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus and the books and records of the respective entities
presented therein. Pro forma financial information included in or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the 1933 Act, the 1933 Act Regulations and guidelines
of the American Institute of Certified Public Accountants with respect
to pro forma financial information and includes all adjustments
necessary to present fairly in all material respects the pro forma
financial position of the Company at the respective dates indicated (if
such financial position is presented) and the results of operations for
the respective periods specified.
(v) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company or either Partnership, threatened by the Commission or by
the state securities authority of any jurisdiction. No order preventing
or suspending the use of the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company or either Partnership, threatened by the Commission or by
the state securities authority of any jurisdiction.
(vi) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, assets or
business affairs of the Company, the Partnerships, and the Subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business; (B) no material casualty loss or material
condemnation or other material adverse event with respect to any of the
interests held directly or indirectly in any of the real properties
owned, directly or indirectly, by the Company, either Partnership or
any Subsidiary (the "Properties") or any entity wholly or partially
owned by the Company, either Partnership or any Subsidiary has
occurred; (C) there have been no acquisitions or transactions entered
into by the Company, either Partnership or any Subsidiary, other
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than those in the ordinary course of business, which are material with
respect to such entities or would result, upon consummation, in any
material inaccuracy in the representations contained in Section
1(a)(iv) above; (D) except for regular quarterly dividends on the
Common Stock, and dividends on the Preferred Stock, if any, and
distributions by either of the Partnerships with respect to its
partnership interests ("Units"), there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock or by either of the Partnerships with
respect to its Units; and (E) with the exception of transactions in
connection with stock and Unit options and in connection with dividend
reinvestment plans, the issuance of shares of Common Stock upon the
exchange of Units and the issuance of Units in connection with the
acquisition of real or personal property, there has been no change in
the capital stock or in the partnership interests or membership
interests, as the case may be, of the Company, either of the
Partnerships or any Subsidiary, and no increase in the indebtedness of
the Company, either of the Partnerships, or any Subsidiary, that is
material to the Company, the Partnerships and the Subsidiaries,
considered as one enterprise.
(vii) The Company has been duly formed, and is validly
existing and in good standing as a corporation under the laws of
Maryland with corporate power and authority to conduct the business in
which it is engaged or proposes to engage and to own, lease and operate
its properties as described in the Prospectus and to enter into and
perform its obligations under this Agreement, the Terms Agreement, any
Warrant Agreement and any Indenture.
(viii) Each of the Partnerships and the Subsidiaries has
been duly formed, and is validly existing and in good standing as a
corporation or partnership under the laws of its jurisdiction of
organization, with partnership or corporate power and authority to
conduct the business in which it is engaged or proposes to engage and
to own, lease and operate its properties as described in the
Prospectus.
(ix) Each of the Company, the Partnerships and the
Subsidiaries is duly qualified or registered as a foreign partnership
or corporation in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by reason
of the ownership, leasing or management of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, assets or business affairs of the Company, the
Partnerships and the Subsidiaries considered as one enterprise (a
"Material Adverse Effect").
(x) 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.
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(xii) The applicable Underwritten Securities, if such
Underwritten Securities are Common Stock, Preferred Stock or Depositary
Shares have been duly authorized by the Company for issuance and sale
to the Underwriters pursuant to this Agreement, and, when issued and
delivered by the Company, pursuant to this Agreement and the applicable
Terms Agreement against payment of the consideration set forth in the
Terms Agreement, will be validly issued, fully paid and non-assessable.
Upon payment of the purchase price and delivery of such Underwritten
Securities in accordance herewith, each of the Underwriters will
receive good, valid and marketable title to such Underwritten
Securities, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities. The terms of such
applicable Underwritten Securities conform in all material respects to
all statements and descriptions related thereto contained in the
Prospectus. The form of stock certificate or depositary receipt 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. In addition, upon deposit by the Company of any Preferred
Stock represented by Depositary Shares with the applicable Depositary
and the execution and delivery by such Depositary of the Depositary
Receipts evidencing such Depositary Shares, in each case pursuant to
the applicable Deposit Agreement, such Depositary Shares will represent
legal and valid interests in such Preferred Stock. No holder of
Preferred Stock or Depositary Receipts evidencing Depositary Shares
will be subject to personal liability by reason of being such a holder.
The applicable Articles Supplementary will be in full force and effect
prior to the Closing Time.
(xiii) If applicable, the Common Stock Warrants have been
duly authorized by the Company for issuance and sale to the
Underwriters pursuant to this Agreement, and, when issued and delivered
in the manner provided for in this Agreement and any Terms Agreement
and countersigned by the Warrant Agent as provided in the Warrant
Agreement, against payment of the consideration therefor specified in
the applicable Terms Agreement, will be duly executed, countersigned,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Warrant Agreement under which they are issued. Upon payment of the
purchase price and delivery of such Underwritten Securities in
accordance herewith, each of the Underwriters will receive good, valid
and marketable title to such Underwritten Securities, free and clear of
all security interests, mortgages, pledges, liens, encumbrances, claims
and equities. The terms of the 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 Underwriters pursuant to this Agreement
and, when executed, authenticated, issued and delivered in the manner
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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, each of the Underwriters will receive good, valid
and marketable title to such Underwritten Securities, free and clear of
all security interests, mortgages, pledges, liens, encumbrances, claims
and equities. The terms of such applicable Underwritten Securities
conform in all material respects to all statements and descriptions
related thereto 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
(including Preferred Stock represented by Depositary Shares) 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
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) If the Underwritten Securities being sold pursuant
to the applicable Terms Agreement include Depositary Shares or if Debt
Securities are convertible into Depositary Shares represented by
Preferred Stock, the applicable Deposit Agreement has been, or prior to
the issuance of such Depositary Shares will have been, duly authorized,
executed and delivered by the Company and, upon such authorization,
execution and delivery, will constitute a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles. Each registered holder of a Depositary Receipt
under the applicable Deposit Agreement will be entitled to the
proportional rights, preferences and limitations of the Preferred Stock
represented by the Depositary Shares evidenced by such Depositary
Receipt and to such other rights as are granted to such registered
holder in such Deposit Agreement.
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(xviii) (A) This Agreement has been duly and validly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Representatives, is a
valid and binding agreement of the Company, and (B) at the
Representation Date, the Terms Agreement will have been duly and
validly authorized, executed and delivered by the Company, and,
assuming due authorization, execution and delivery by the
Representatives, will be valid and binding agreements, enforceable in
accordance with its or their terms; provided, however, that the
enforceability of the foregoing may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles.
(xix) If applicable, the Indenture (A) has been duly
qualified under the 1939 Act, will have been duly and validly
authorized, executed and delivered by the Company prior to the issuance
of any applicable Underwritten Securities, and when executed and
delivered by the Trustee, will constitute a valid and binding
obligation of the Company, enforceable in accordance with its terms;
provided, however, that the enforceability of the foregoing may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable
principles; and (B) conforms in all material respects to the
description thereof in the Prospectus.
(xx) None of the Company, the Partnerships or any
Subsidiary is in violation of its charter, by-laws, certificate of
limited partnership or partnership agreement, as the case may be, or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which such entity is
a party or by which such entity may be bound, or to which any of its
property or assets is subject, which violation or default separately or
in the aggregate would have a Material Adverse Effect.
(xxi) The issuance of the Underwritten Securities, the
execution and delivery of this Agreement, the applicable Terms
Agreement, any Warrant Agreement, any Deposit Agreement and any
Indenture and the performance of the obligations set forth herein or
therein, 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.
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(xxii) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company and the Partnerships,
threatened against or affecting the Company, either of the
Partnerships, any Subsidiary, any Property or any officer or director
of the foregoing that is required to be disclosed in the Registration
Statement (other than as disclosed therein), and that, if determined
adversely to the Company, the applicable Partnership, any Subsidiary,
any Property, or any such officer or director, would reasonably be
expected to result in any Material Adverse Effect, or which might
materially and adversely affect the consummation of this Agreement, the
applicable Terms Agreement, any Warrant Agreement, any Deposit
Agreement, the Indenture, if any, or the transactions contemplated
herein and therein. There is no pending legal or governmental
proceeding to which the Company, either of the Partnerships or any
Subsidiary is a party or of which any of their respective properties or
assets or any Property (including, without limitation, partnership and
other interests in partnerships or other entities which own direct or
indirect interests therein), is the subject, including ordinary routine
litigation incidental to the business or operations of the foregoing,
that is or would reasonably be expected to be, material to the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Company, the Partnerships and the
Subsidiaries, considered as one enterprise. There are no contracts or
documents of a character which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been filed as exhibits to the Registration
Statement.
(xxiii) At all times beginning with its taxable period
ended December 31, 1993, the Company has been, and upon the sale of the
applicable Underwritten Securities, the Company will continue to be,
organized and operated in conformity with the requirements for
qualification as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Code"), and its proposed method
of operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(xxiv) None of the Company, the Partnerships or any
Subsidiary is required to be registered under the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxv) The Company, the Partnerships and the other
Subsidiaries own 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.
(xxvi) All authorizations, approvals or consents of any
court or government authority or agency or other entity or person that
are necessary in connection with the offering, issuance or sale of the
Underwritten Securities hereunder by the Company have been obtained,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws with respect to the Underwritten
Securities.
(xxvii) Each of the Company, the Partnerships and the
Subsidiaries possesses such certificates, authorizations or permits
issued by the appropriate regulatory agencies or bodies necessary to
conduct the business now conducted by it, or proposed to be conducted
by it, and none of the Company, either of the Partnerships or any
Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Company, the Partnerships and the
Subsidiaries considered as one enterprise.
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(xxviii) No material labor dispute with the employees of
the Company, either of the Partnerships or any Subsidiary exists or, to
the knowledge of the Company or either of the Partnerships is imminent.
(xxix) Except as disclosed in the Prospectus, (A) to the
knowledge of the Company, the Environment (as defined below) at each
Property is free of any Hazardous Substance (as defined below) except
for any Hazardous Substance that would not reasonably be expected to
have any material adverse effect on the condition, financial or
otherwise, or on the earnings, assets, business affairs or business
prospects of the Property, the Company, the Partnerships and the
Subsidiaries considered as one enterprise; (B) none of the Company, the
Partnerships or any Subsidiary and, to the knowledge of the Company and
the Partnerships, no prior owner of any Property has caused or suffered
to occur any Release (as defined below) of any Hazardous Substance into
the Environment on, in, under or from any Property in violation of any
Environmental Law applicable to such Property in an amount that would
reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or on the earnings, assets, business
affairs or business prospects of any Property, the Company, the
Partnerships and the Subsidiaries considered as one enterprise and no
condition exists on, in or under any Property or, to the knowledge of
the Company or the Partnerships, any property adjacent to any Property
that could reasonably be expected to result in the occurrence of
material liabilities under, or any material violations of, any
Environmental Law (as defined below) applicable to such Property, give
rise to the imposition of any Lien (as defined below) under any
Environmental Law, or cause or constitute an environmental hazard to
any property, person or entity; (C) none of the Company, the
Partnerships or any Subsidiary is engaged in or intends to engage in
any manufacturing or any other similar operations at any Property and,
to the knowledge of the Company and the Partnerships, no prior owner of
any Property engaged in any manufacturing or any similar operations at
any Property that (1) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance (other than
paints, stains, cleaning solvents, insecticides, herbicides, or other
substances that are used in the ordinary course of operating any
Property and in compliance with all applicable Environmental Laws) or
(2) require permits or are otherwise regulated pursuant to any
Environmental Law; (D) none of the Company, the Partnerships or any
Subsidiary and, to the knowledge of the Company and the Partnerships,
no prior owner of any Property has received any notice of a claim under
or pursuant to any Environmental Law applicable to a Property or under
common law pertaining to Hazardous Substances on any Property or
pertaining to other property at which Hazardous Substances generated at
any Property have come to be located; (E) none of the Company, the
Partnerships or any Subsidiary and, to the best knowledge of the
Company and the Partnerships, no prior owner of any Property has
received any notice from any Governmental Authority (as defined below)
claiming any violation of any Environmental Law that is uncured or
unremediated as of the date hereof; and (F) no Property (1) is included
or proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as defined below) by the United States
Environmental Protection Agency (the "EPA") or on the Comprehensive
Environmental Response, Compensation, and Liability Information System
database maintained by the EPA as a potential CERCLA removal, remedial
or response site or (2) is included or proposed for inclusion on, any
similar list of potentially contaminated sites pursuant to any other
applicable Environmental Law nor has the Company, either of the
Partnerships or any Subsidiary received any written notice from the EPA
or any other Governmental Authority proposing the inclusion of any
Property on such list.
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As used herein, "Hazardous Substance" shall include any
hazardous substance, hazardous waste, toxic or dangerous substance,
pollutant, asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation, pollutant
or waste, including any such substance, pollutant or waste identified,
listed or regulated under any Environmental Law (including, without
limitation, materials listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R. ss.
172.101, as the same may now or hereafter be amended, or in the EPA's
List of Hazardous Substances and Reportable Quantities, 40 C.F.R. Part
3202, as the same may now or hereafter be amended); "Environment" shall
mean any surface water, drinking water, ground water, land surface,
subsurface strata, river sediment, buildings and structures;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act, as amended (42 U.S.C. ss.
9601, et seq.) ("CERCLA"), the Resource Conservation Recovery Act, as
amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as amended
(42 U.S.C. ss. 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. ss. 1251, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. ss. 2601, et seq.), the Toxic Substances Control Act, as
amended (29 U.S.C. ss. 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ss. 1801, et seq.), together
with all rules, regulations and orders promulgated thereunder and all
other federal, state and local laws, ordinances, rules, regulations and
orders relating to the protection of the environment from environmental
effects; "Governmental Authority" shall mean any federal, state or
local governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any material mortgage,
deed of trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on or
affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(xxx) Each of the Company, the Partnerships and the
Subsidiaries has filed all federal, state, local and foreign income and
franchise tax returns which have been required to be filed and each
such tax return was filed on or prior to the date on which such tax
return was required to be filed or, in lieu of such timely filings,
each of the Company, the Partnerships, or the Subsidiaries, as the case
may be, has duly and timely filed such applications for extension as
may be required to effect all necessary extensions (such extensions
having been obtained and remaining in full force and effect) and has
paid all taxes shown thereon as due and payable and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except, in all cases, for any such
tax assessment, fine or penalty that is being contested in good faith
through appropriate proceedings and as to which appropriate reserves
have been established.
(xxxi) Except as disclosed in the Registration Statement
and except for (i) persons who received Units or shares of Common Stock
in connection with the formation of the Company, or (ii) persons who
received shares of Common Stock, options to acquire shares of Common
Stock or Units in connection with transactions with the Partnerships or
the Company, there are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
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(xxxii) Each of the Company, the Partnerships and the
Subsidiaries (or the partnership or other entity owning the Property)
has obtained title insurance insuring good, marketable and lien free
title to the Properties owned by them (other than the Properties in
which the applicable entity owns less than a majority interest),
subject only to customary easements and encumbrances and other
exceptions to title which do not materially impair the operation,
development or use thereof for the purposes intended therefor as
contemplated by the Prospectus on each of such Properties.
(xxxiii) The Common Stock will be listed on the New York
Stock Exchange on the applicable Representation Date and at the
applicable Closing Time. If so stated in the applicable Prospectus
Supplement as of the applicable Representation Date, the Preferred
Stock, Common Stock Warrants and Depositary Shares, as applicable, will
have been approved for listing on the New York Stock Exchange upon
notice of issuance.
(xxxiv) Unless otherwise agreed to by the Representatives,
the Preferred Stock, Debt Securities and Depositary Shares will have an
investment grade rating from one or more nationally recognized
statistical rating organizations at the Representation Date and at the
applicable Closing Time.
(xxxv) If the Underwritten Securities are Debt Securities,
then immediately following the application of the proceeds of the sale
of the Underwritten Securities in the manner set forth in the
Prospectus, the mortgages and deeds of trust encumbering the Properties
and assets described in the Prospectus will not be convertible and none
of the partnerships or other entities owning an interest in the
Properties nor any person related to or affiliated with such
partnerships or other entities will hold a participating interest
therein and said mortgages and deeds of trust will not be
cross-defaulted or cross- collateralized with any property not owned
directly or indirectly by the Company, the Partnerships or the
Subsidiaries.
(xxxvi) Each of the Company, the Partnerships and the
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and
none of the Company, the Partnerships and the Subsidiaries has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its businesses at a cost that would not have a Material Adverse Effect,
except as described in or contemplated by the Registration Statement
and the Prospectus.
(xxxvii) The Company has not taken and will not take,
directly or indirectly, any action prohibited by Regulation M under the
1934 Act.
(xxxviii) The assets of the Company and the Partnerships do
not constitute "plan assets" under the Employee Retirement Income
Security Act of 1974, as amended.
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(b) Any certificate signed by any officer of the Company,
either of the Partnerships or of any of the Subsidiaries and delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by such entity to each Underwriter as to the matters
covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase
the Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company may grant, if so provided in the applicable Terms Agreement
relating to the Initial Underwritten Securities, an option to the Underwriters
named in such Terms Agreement, severally and not jointly, to purchase up to the
number of Option Securities set forth therein at the same price per Option
Security as is applicable to the Initial Underwritten Securities. Such option,
if granted, will expire 30 days (or such lesser number of days as may be
specified in the applicable Terms Agreement) after the Representation Date
relating to the Initial Underwritten Securities, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice by the Representatives to the
Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time, date and place of delivery
(a "Date of Delivery") shall be determined by the Representatives, but shall not
be later than seven full business days nor earlier than two full business days
after the exercise of said option, nor in any event prior to the Closing Time,
unless otherwise agreed upon by the Representatives and the Company. If the
option is exercised as to all or any portion of the Option Securities, each of
the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Initial Underwritten Securities each such Underwriter has
severally agreed to purchase as set forth in the applicable Terms Agreement
bears to the total number of Initial Underwritten Securities (except as
otherwise provided in the applicable Terms Agreement), subject to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of
certificates for, the Underwritten Securities to be purchased by the
Underwriters shall be made at the offices of Rogers & Wells, 200 Park Avenue,
New York, New York 10166, or at such other place as shall be agreed upon by the
Representatives and the Company at 9:30 a.m. on the fourth business day (or the
third business day if required under Rule 15c6-1 of the 1934 Act, or unless
postponed in accordance with the provisions of Section 10) following the date of
the applicable Terms Agreement or at such other time as shall be agreed upon by
the Representatives and the Company (each referred to herein as a "Closing
Time"). In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices of Rogers & Wells, or at such other place as shall be agreed upon by the
Representatives and the Company on each Date of Delivery as specified in the
notice from the Representatives to the Company. Unless otherwise specified in
the applicable Terms Agreement, payment shall be made to the Company by wire
transfer of Federal or similar same day funds payable to the order of the
Company against delivery to the Representatives for the respective accounts of
the Underwriters of certificates for the Underwritten Securities to be purchased
by them. Certificates for the
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Underwritten Securities and the Option Securities, if any, or Depositary
Receipts evidencing the Depositary Shares, as applicable, shall be in such
denominations and registered in such names as the Representatives may request in
writing at least two business days before the Closing Time or the relevant Date
of Delivery, as the case may be. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Underwritten Securities and
the Option Securities, if any, which it has agreed to purchase. The
Representatives, individually and not as representatives of the Underwriters,
may (but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but any such payment shall not
relieve such Underwriter from its obligations hereunder. The certificates for
the Initial Underwritten Securities and the Option Securities, if any, or
Depositary Receipts evidencing the Depositary Shares, as applicable, will be
made available for examination and packaging by the Representatives not later
than 10:00 a.m. on the last business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be, in New York, New York.
SECTION 3. Covenants of the Company. The Company covenants with the
Representatives and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities,
the Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus pursuant to which the
Underwritten Securities are being issued, the names of the Underwriters
participating in the offering and the number of Underwritten Securities
which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering, the
price at which the Underwritten Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, if
any, the selling concession and reallowance, if any, and such other
information as the Representatives and the Company deem appropriate in
connection with the offering of the Underwritten Securities; and the
Company will promptly transmit copies of the Prospectus Supplement to
the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus (including such Prospectus Supplement) as the
Representatives shall reasonably request.
(b) If, at the time the Prospectus Supplement was filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any
information shall have been omitted therefrom in reliance upon Rule
430A of the 1933 Act Regulations, then immediately following the
execution of the Terms Agreement, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule
430A and Rule 424(b) of the 1933 Act Regulations, a copy of an amended
Prospectus, or, if required by such Rule 430A, a post-effective
amendment to the Registration Statement (including amended
Prospectuses), containing all information so omitted. If required, the
Company will prepare and file or transmit for filing a Rule 462(b)
Registration Statement not later than the date of execution of the
Terms Agreement. If a Rule 462(b) Registration Statement is filed, the
Company shall make payment of, or arrange for payment of, the
additional registration fee owing to the Commission required by Rule
111 of the 1933 Act Regulations.
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(c) The Company will notify the Representatives immediately,
and confirm such notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus Supplement or other supplement
or amendment to the Prospectus to be filed pursuant to the 1933 Act,
(iii) the receipt of any comments from the Commission, (iv) any request
by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional
information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; and the Company will
make every reasonable effort to prevent the issuance of any such stop
order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(d) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales
of the Underwritten Securities, the Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, will furnish the Representatives with copies of any such
amendment or supplement a reasonable amount of time prior to such
proposed filing and, unless required by law, will not file or use any
such amendment or supplement or other documents in a form to which the
Representatives or counsel for the Underwriters shall reasonably
object.
(e) The Company will deliver to the Representatives as soon as
available as many signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated by reference therein) as the Representatives may
reasonably request and will also deliver to the Representatives as many
conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including documents incorporated by
reference into the Prospectus) as the Representatives may reasonably
request.
(f) The Company will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such 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 Underwriters,
to amend or supplement the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, the Company will forthwith amend or
supplement the Prospectus (in form and substance reasonably
satisfactory to counsel for the Underwriters) so that, as so amended or
supplemented, the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances existing
at the time it is delivered to a purchaser, not misleading, and the
Company will furnish to the Underwriters a reasonable number of copies
of such amendment or supplement.
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(h) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities for offering and
sale under the applicable securities laws and real estate syndication
laws of such states and other jurisdictions as the Representatives may
designate; provided, however, that the Company shall not be obligated
to (i) qualify as a foreign corporation in a jurisdiction it is not so
qualified, (ii) file any general consent to service of process or (iii)
take any actions that would subject it to income taxation in any such
jurisdiction. In each jurisdiction in which the Underwritten Securities
have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities.
(i) With respect to each sale of Underwritten Securities, the
Company will make generally available to its security holders as soon
as practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(j) The Company will use the net proceeds received by it from
the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(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 Goldman, Sachs & Co., directly or indirectly,
sell, offer to sell, transfer, hypothecate, grant any option for the
sale of, or otherwise dispose of, (i) any securities of the same class
or series or ranking on a parity with any Underwritten Securities
(other than the Underwritten Securities covered by such Prospectus
Supplement) or any security convertible into or exchangeable for such
Underwritten Securities and (ii) if such Prospectus Supplement relates
to Common Stock
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Warrants or Debt Securities or Preferred Stock that is convertible into
or exchangeable for Common Stock, any Common Stock or Units or any
security convertible into or exchangeable for shares of Common Stock.
This transfer restriction does not apply to (i) grants of options, and
the issuance of shares in respect of such options; (ii) the issuance of
shares and units pursuant to a dividend reinvestment plan or stock
purchase plan; (iii) the issuance of Common Stock on the exchange of
Units; and (iv) the issuance of shares of Common Stock, or any security
convertible into or exchangeable or exercisable for Common Stock, in
connection with the acquisition of real property or an interest or
interests in real property.
(p) With respect to the Common Stock issuable on exercise of
Common Stock Warrants and the conversion of any Debt Securities and
Preferred Stock (including Preferred Stock represented by Depositary
Shares) 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 (including Preferred Stock represented by Depositary
Shares) 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
Representatives, (i) promptly upon their becoming available, copies of
all current, regular and periodic reports of the Company mailed to its
stockholders or filed with any securities exchange or with the
Commission or any governmental authority succeeding to any of the
Commission's functions, and (ii) such other information concerning the
Company and the Partnerships as the Representatives may reasonably
request.
SECTION 4. Payment of Expenses. The Company and the Partnerships will
pay all expenses incident to the performance of their obligations under this
Agreement and the applicable Terms Agreement, including (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto; (ii) the cost of printing, or reproducing, and distributing to the
Underwriters copies of this Agreement, the applicable Terms Agreement and any
Deposit Agreement; (iii) the preparation, issuance and delivery of the
Underwritten Securities to the Underwriters, including capital duties, stamp
duties and stock transfer taxes, if any, payable upon issuance of any of the
Underwritten Securities, the sale of the Underwritten Securities to the
Underwriters, their transfer between the Underwriters pursuant to an agreement
between such Underwriters and the fees and expenses of the transfer agent for
the Underwritten Securities; (iv) the fees and disbursements of the Company's
and Partnerships' counsel and accountants; (v) the qualification of the
Underwritten Securities and the Common Stock issuable upon exercise of Common
Stock Warrants and conversion of Debt Securities or Preferred Stock, if any,
under
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securities laws and real estate syndication laws in accordance with the
provisions of Section 3(h) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey; (vi) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each preliminary prospectus,
and of the Prospectus and any amendments or supplements thereto; (vii) the cost
of printing, or reproducing, and delivering to the Underwriters copies of the
Blue Sky Survey; (viii) the fee of the National Association of Securities
Dealers, Inc.; (ix) the fees and expenses incurred in connection with the
listing of the Underwritten Securities and the Common Stock issuable upon
exercise of the Common Stock Warrants and conversion of Debt Securities or
Preferred Stock, if any, on the New York Stock Exchange, any other national
securities exchange or quotation system; (x) any fees charged by nationally
recognized statistical rating organizations for the rating of the Preferred
Stock or Debt Securities, if any; (xi) the printing and delivery to the
Underwriters of copies of the Indenture; (xii) the fees and expenses of the
Trustee, any Depositary and any Warrant Agent, including the reasonable fees and
disbursements of counsel for the Trustee, Depositary or Warrant Agent, in
connection with the Indenture, Deposit Agreement or Warrant Agreement, and the
Underwritten Securities; (xiii) the preparation, issuance and delivery to the
Depository Trust Company for credit to the accounts of the respective
Underwriters of any global note registered in the name of Cede & Co., as nominee
for the Depository Trust Company; and (xiv) any transfer taxes imposed on the
sale of the Underwritten Securities to the several Underwriters.
If this Agreement shall be terminated pursuant to Section 10
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 4 and 6 hereof; but, if for any other reason, any
Underwritten Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Underwritten Securities
not so delivered, but the Company shall then be under no further liability to
any Underwriter except as provided in Sections 4 and 6 hereof.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy, as of the date hereof
and at Closing Time, of the representations and warranties of the Company herein
contained, to the performance by the Company of its obligations hereunder, and
to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission; (ii) if the Company has elected to rely upon Rule 430A
of the 1933 Act Regulations, the public offering price of and the
interest rate on the Underwritten Securities, as the case may be, and
any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to
the applicable Closing Time, the Company shall have provided evidence
satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the
requirements of Rule 430A of the 1933 Act Regulations; (iii) if
Preferred Stock 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
19
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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
Representatives any facts that would cause the Representatives to
believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to purchasers
of the Underwritten Securities, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at
such time, not misleading. If a Rule 462(b) Registration Statement is
required, such Rule 462(b) Registration Statement shall have been
transmitted to the Commission for filing and have become effective
within the prescribed time period, and, prior to Closing Time, the
Company shall have provided to the Underwriters evidence of such filing
and effectiveness in accordance with Rule 462(b) of the 1933 Act
Regulations.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of the applicable
Closing Time, of Hogan & Hartson L.L.P., counsel for the
Company and the Partnerships in form and substance reasonably
satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Company was incorporated 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 General
Corporation Law, as amended (the "MGCL") to own,
lease and operate its properties, to conduct its
business as described in the Prospectus and to
perform its obligations under this Agreement, the
applicable Terms Agreement, any Warrant Agreement and
any Indenture. The Company is authorized to transact
business as a foreign corporation in good standing,
as of the dates of the certificates identified
elsewhere in the opinion letter, in those states in
which the Company owns Properties either directly or
through a partnership in which the Company is a
general partner.
(ii) Each of the Partnerships is a
limited partnership formed and existing in good
standing under the Delaware Revised Uniform Limited
Partnership Act, as amended (the "Delaware Act") as
of the date of the certificate identified elsewhere
in the opinion letter. Each Partnership has the
partnership power and partnership authority under its
partnership agreement and the Delaware Act to own,
lease and operate its properties, 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 duly
qualified or registered as a foreign partnership in
good standing, as of the dates of the certificates
identified elsewhere in the opinion letter, in those
states in which such Partnership owns Properties.
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<PAGE>
(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 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, is as set
forth in the Prospectus under "Capitalization." To
the knowledge of such counsel, except for shares
reserved for issuance upon the redemption of Units or
as otherwise disclosed in the Registration Statement,
no shares of capital stock of the Company are
reserved for any purpose. To the knowledge of such
counsel, except as described in the Prospectus, and
except in connection with stock or Unit options and
in connection with dividend reinvestment plans and
the possible issuance of shares of Common Stock upon
the exchange of Units or as otherwise disclosed in
the Registration Statement, there are no outstanding
securities convertible into or exchangeable for any
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, and
except as described in the Prospectus, any
contractual right to subscribe for or purchase any
such shares.
(v) The applicable Underwritten
Securities, if such Underwritten Securities are
Common Stock, Preferred Stock or Depositary Shares,
have been duly authorized by the Company for issuance
and sale to the Underwriters pursuant to this
Agreement, and, when issued and delivered by the
Company, pursuant to this Agreement and the
applicable Terms Agreement against payment of the
consideration set forth in the Terms Agreement, will
be validly issued, fully paid and non-assessable
under the MGCL. The 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. In
addition, upon deposit by the Company of any
Preferred Stock represented by Depositary Shares with
the applicable Depositary and the execution and
delivery by such Depositary of the Depositary
Receipts evidencing such Depositary Shares, in each
case pursuant to the applicable
21
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Deposit Agreement, such Depositary Shares will
represent legal and valid interests in such Preferred
Stock. The form of Depositary Receipt evidencing
Depositary Shares is in due and proper form and
complies with the applicable statutory requirements,
with any applicable requirements of the charter or
by-laws of the Company and with the requirements of
the New York Stock Exchange. The applicable Articles
Supplementary are in full force and effect.
(vi) The applicable Deposit Agreement,
if such Underwritten Securities are Depositary
Shares, has been duly authorized, executed and
delivered by the Company and (assuming due
authorization, execution and delivery by the
applicable Depositary) constitutes a valid and
legally binding agreement of the Company, enforceable
against the Company in accordance with its terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles. Each registered holder of a Depositary
Receipt under the applicable Deposit Agreement will
be entitled to the proportional rights, preferences
and limitations of the Preferred Stock represented by
the Depositary Shares evidenced by such Depositary
Receipt and to such other rights as are granted to
such registered holder in such Deposit Agreement.
(vii) 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 Underwriters pursuant to this
Agreement, and, when issued and delivered in the
manner provided for in this Agreement and any Terms
Agreement and countersigned by the Warrant Agent as
provided in the Warrant Agreement against payment of
the consideration 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.
(viii) 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 Underwriters pursuant to
this Agreement and, when executed, authenticated,
issued and delivered in the manner provided for in
this Agreement, the applicable Terms Agreement and
the applicable Indenture, against payment of the
consideration therefor specified in the applicable
Terms Agreement, such Debt Securities will constitute
valid and legally binding obligations of the Company
entitled to the benefits of the Indenture
22
<PAGE>
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.
(ix) If applicable, the Common Stock
issuable upon exercise of the Common Stock Warrants
or upon conversion of the Debt Securities or
Preferred Stock (including Preferred Stock
represented by Depositary Shares) 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.
(x) Each of this Agreement and the
applicable Terms Agreement was duly and validly
authorized, executed and delivered by the Company and
the Company has the power and authority to perform
its obligations hereunder and thereunder. The
execution and delivery of this Agreement, the
applicable Terms Agreement, any Warrant Agreement,
any Deposit Agreement, any Indenture and, if
applicable, the Underwritten Securities, the
performance of the obligations set forth herein or
therein, and the consummation of the transactions
contemplated hereby and thereby by the Company, will
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 or its subsidiaries taken together as a
whole, 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 Company.
(xi) The applicable Warrant Agreement,
if any, has been duly authorized, 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.
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<PAGE>
(xii) The Indenture has been duly
qualified under the 1939 Act and has been duly and
validly authorized, executed and delivered by the
Company, and, assuming due authorization, execution
and delivery by the Trustee, constitutes a valid and
binding obligation of the Company, enforceable in
accordance with its terms. The Indenture conforms in
all material respects to the descriptions thereof
contained in the Prospectus.
(xiii) 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 of or filing with any federal or
Maryland or Delaware state governmental agency or
authority is required in connection with the
offering, issuance or sale of the applicable
Underwritten Securities to the Underwriters
hereunder, except such as may be required under the
1933 Act or the 1933 Act Regulations or the 1939 Act
or the 1939 Act Regulations 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 prior to the date of this
Agreement.
(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, as to which no opinion need be
rendered), at the time they were filed with the
Commission, complied and will comply 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 (other than the financial statements and
related schedules and financial information and data
included therein, or the Statement of Eligibility, 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 and (B)
the Prospectus and the Term Sheet, if any, complied
with Rule 434(c)(2).
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<PAGE>
(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 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 pursuant to the Registration
Statement or otherwise registered by the Company
under the 1933 Act.
The opinions rendered pursuant to clauses (viii),
(xi) and (xii) above may be subject to exceptions regarding
bankruptcy and similar laws, general principles of equity and
other customary exceptions reasonably acceptable to counsel
for the Underwriters.
(2) [INTENTIONALLY LEFT BLANK]
(3) The favorable opinion, dated as of the applicable
Closing Time, of Rogers & Wells, counsel for the Underwriters,
in form and substance satisfactory to the Underwriters.
(4) In giving their opinions required by subsections
(b)(1) and (b)(3), respectively, of this Section, Hogan &
Hartson L.L.P. and Rogers & Wells 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.
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<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 Underwriters may rely on their opinion addressed to the
Company, and attached to the Registration Statement as Exhibit
8.1, as if such opinion were addressed to them.
(c) At Closing Time, (i) no action, suit or proceeding at law
or in equity shall be pending or, to the knowledge of the Company and
the Partnerships, threatened against the Company, the Partnerships and
any Subsidiary which would be required to be set forth in the
Prospectus other than as set forth therein; (ii) there shall not have
been, since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of the Company, the Partnerships and the
Subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business; (iii) no proceedings shall be pending
or, to the knowledge of the Company and the Partnerships, threatened
against such entity or any Subsidiary before or by any federal, state
or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding might result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of the
Company, the Partnerships and the Subsidiaries, considered as one
enterprise, other than as set forth in the Prospectus; (iv) no stop
order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or threatened by the Commission or by the
state securities authority of any jurisdiction; and (v) the
Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of the Closing Time,
evidencing compliance with the provisions of this subsection (c) and
stating that the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly
made at and as of Closing Time.
(d) At the time of the execution of the applicable Terms
Agreement, the Representatives shall have received from KPMG Peat
Marwick LLP a letter dated such date, in form and substance
satisfactory to the Representatives, to the effect that: (i) they are
independent public accountants with respect to the Company as required
by the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion
that the financial statements and supporting schedules included in the
Registration Statement, or incorporated by reference therein, and
covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations; (iii) based upon limited procedures set forth in detail in
such letter, including a reading of the latest available interim
financial statements of the Company a reading of the minute books of
the Company inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing has come to
their attention which causes them to believe that (A) the unaudited
financial statements of the Company included in the Registration
Statement, or incorporated by reference therein, do not comply as to
26
<PAGE>
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 Representatives, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company
identified in such letter.
(e) At Closing Time, the Representatives shall have received
from KPMG Peat Marwick LLP a letter, dated the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the "specified
date" referred to shall be a date not more than five days prior to
Closing Time.
(f) At Closing Time, the Underwritten Securities, if such
Underwritten Securities are Preferred Stock 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 Representatives a letter, dated the Closing Time, from each such
rating organization, or other evidence satisfactory to the
Representatives, confirming that such Underwritten Securities have such
ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to such Underwritten
Securities or any of the Company's other debt securities by any
nationally recognized securities rating organization, and no such
securities rating organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of such Underwritten Securities or any of the Company's
other debt securities.
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(g) At Closing Time and at each Date of Delivery, if any,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the applicable
Underwritten Securities as contemplated herein, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the applicable Underwritten Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(h) At Closing Time, the Representatives shall have received a
letter agreement from Security Capital Holdings S.A., wherein Security
Capital Holdings S.A. shall agree that during the period specified in
the applicable Prospectus Supplement they and their affiliates will
not, without the prior written consent of Goldman, Sachs & Co. and the
Company (which consent, in the case of the Company, will be subject to
the approval of the Company's unaffiliated directors), directly or
indirectly, sell, offer to sell, grant any option for the sale of,
enter into any agreement to sell, or otherwise dispose of, (i) any
securities of the same class or series or ranking on a parity with any
Underwritten Securities or any security convertible into or
exchangeable for shares of such Underwritten Securities, and (ii) if
such Prospectus Supplement relates to Common Stock Warrants or Debt
Securities or Preferred Stock that is convertible into or exchangeable
for Common Stock, any Common Stock or Units or any security convertible
into or exchangeable for shares of Common Stock. Such transfer
restrictions do not apply to transfers to members of the family of such
director or executive officer (or an entity for their benefit), or to
the granting of a bona fide security interest to a secured party. Any
transferees of such shares, Units or other securities will be likewise
prohibited from making any transfer of shares, Units or other
securities.
(i) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives
shall have received:
(1) A certificate, dated such Date of Delivery, of
the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company
confirming that their respective certificates delivered at
Closing Time pursuant to Section 5(c) hereof remain true and
correct as of such Date of Delivery.
(2) The favorable opinion of Hogan & Hartson L.L.P.
in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinions required by
Section 5(b)(1) hereof (including the statement of belief
required by Section 5(b)(4) hereof).
(3) The favorable opinion of Rogers & Wells, counsel
for the Underwriters, 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.
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(4) A letter from KPMG Peat Marwick, in form and
substance satisfactory to the Representatives and dated such
Date of Delivery, substantially the same in form and substance
as the letter furnished to the Representatives pursuant to
Section 5(e) hereof, except that the "specified date" in the
letter furnished pursuant to this Section 5(i)(4) shall be a
date not more than five days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to
Closing Time and such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof.
SECTION 6. Indemnification.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
preliminary prospectus, Prospectus, preliminary prospectus supplement or
Prospectus Supplement, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, such preliminary
prospectus, preliminary prospectus supplement or the Prospectus or Prospectus
Supplement, or any such amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use under the caption "Plan of
Distribution" or "Underwriting" in the Registration Statement (or any amendment
thereto) or such preliminary prospectus, preliminary prospectus supplement or
the Prospectus or Prospectus Supplement (or any amendment or supplement
thereto).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any preliminary prospectus,
Prospectus, preliminary prospectus supplement or Prospectus Supplement, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, Prospectus, preliminary prospectus
supplement or Prospectus Supplement, or any such amendment or supplement thereto
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Goldman, Sachs & Co. expressly for use under
the caption "Plan of Distribution" or "Underwriting" in the Registration
29
<PAGE>
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 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 Underwriters
on the other from the offering of the Underwritten Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Underwritten Securities (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
30
<PAGE>
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it pursuant to
the applicable Terms Agreement and distributed to the public were offered to the
public exceeds the amount of any damages which such 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. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 6 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the 1933 Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the 1933 Act.
SECTION 7. [INTENTIONALLY OMITTED].
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of the
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any termination of the applicable Terms
Agreement, or any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company and shall survive delivery
of the Underwritten Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if either the Company, the Partnerships or the Subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; or
(ii) if there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
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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 Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Underwritten Securities
on the terms and in the manner contemplated in the Prospectus. As used in this
Section 9(a), the term "Prospectus" means the Prospectus together with any
Prospectus Supplement in the form first used to confirm sales of the
Underwritten Securities.
(b) In the event of any such termination, in respect to such
terminated Terms Agreement, (x) the covenants set forth in Section 3 with
respect to any offering of Underwritten Securities shall remain in effect so
long as any Underwriter owns any such Underwritten Securities purchased from the
Company pursuant to the applicable Terms Agreement and (y) the covenant set
forth in Section 3(i) hereof, the provisions of Section 4 hereof, the indemnity
and contribution agreements set forth in Section 6 hereof, and the provisions of
Sections 8 and 13 hereof shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the Underwritten Securities to be purchased pursuant to such Terms
Agreement, each of the non-defaulting Underwriters named in such Terms
Agreement shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
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No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, each of the Representatives or
the Company shall have the right to postpone Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Goldman, Sachs & Co.,
85 Broad Street, New York, New York 10004, attention Registration Department;
notices to the Company shall be directed to 1700 Pennsylvania Avenue, N.W.,
Washington, D.C. 20006, attention of Thomas A. Carr.
SECTION 12. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the parties hereto and
their respective successors. Nothing expressed or mentioned in this Agreement or
the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Section 6 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or the applicable Terms Agreement or any
provision herein or therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time. This Agreement and the Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
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<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 Underwriters and the Company in accordance with its terms.
Very truly yours,
CARRAMERICA REALTY CORPORATION
By:/s/ BRIAN K. FIELDS
------------------------------
Name: Brian K. Fields
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
GOLDMAN, SACHS & CO.
PRUDENTIAL SECURITIES INCORPORATED
WHEAT, FIRST SECURITIES, INC.
By: GOLDMAN, SACHS & CO.
/s/ GOLDMAN, SACHS & CO.
- -------------------------------------
(Goldman, Sachs & Co.)
For themselves and as Representatives
of the Underwriters named herein
Exhibit 4.1
ARTICLES SUPPLEMENTARY
RELATING TO
SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
CARRAMERICA REALTY CORPORATION
Pursuant to Section 2-208(b) of the
General Corporation Law of Maryland
CarrAmerica Realty Corporation, a Maryland corporation (the
"Corporation"), hereby certifies that, pursuant to the authority conferred upon
the Board of Directors of the Corporation by Section 4.4 of the Charter and in
accordance with Section 2-208(b) of the General Corporation Law of Maryland, the
Board of Directors on December 15, 1997 duly classified unissued shares of
Preferred Stock of the Corporation, and the description of the Preferred Stock,
including the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, and terms and
conditions of redemption thereof, as set by the Board of Directors, are as
follows:
Section 1. Number of Shares and Designation. This class of
Preferred Stock shall be designated as Series D Cumulative Redeemable Preferred
Stock, par value $.01 per share (the "Series D Preferred Stock"). The number of
shares of preferred stock constituting the Series D Preferred Stock is 230,000.
Section 2. Definitions. The following terms shall have the
following meanings herein:
(a) "Board of Directors" shall mean the Board of Directors of
the Corporation or any committee authorized by the Board of Directors to perform
any of its responsibilities with respect to the Series D Preferred Stock.
(b) "Business Day" shall mean any day other than a Saturday,
Sunday or day on which state or federally chartered banking institutions in New
York City, New York are not required to be open.
(c) "Call Date" shall have the meaning set forth in
Section 6(b).
(d) "Capital Gains Amount" shall have the meaning set forth in
Section 3(d).
(e) "Charter" means the Articles of Amendment and Restatement
of Articles of Incorporation of the Corporation, as amended to the date hereof
and as the same may be amended hereafter from time to time.
(f) "Code" shall have the meaning set forth in Section 12.
<PAGE>
(g) "Common Stock" shall mean the common stock of the
Corporation, par value $.01 per share.
(h) "Dividend Payment Date" shall mean the last calendar day
(or, if such day is not a Business Day, the next Business Day thereafter) of
each February, May, August, and November, commencing on March 2, 1998.
(i) "Dividend Periods" shall mean quarterly dividend periods
commencing on March 1, June 1, September 1 and December 1 of each year and
ending on and including the day of the next succeeding Dividend Payment Date
(other than the initial Dividend Period, which shall commence on the Issue Date,
and other than the Dividend Period during which any shares of Series D Preferred
Stock shall be redeemed pursuant to Section 6, which shall end on and include
the Call Date with respect to the shares of Series D Preferred Stock being
redeemed).
(j) "Exempted Person" shall have the meaning set forth in
Section 12.
(k) "Fully Junior Stock" shall mean the Common Stock and any
other class or series of shares of capital stock of the Corporation now or
hereafter issued and outstanding over which the Series D Preferred Stock has
preference or priority in both (i) the payment of dividends and (ii) the
distribution of assets on any liquidation, dissolution or winding up of the
Corporation.
(l) "Issue Date" shall mean the first date on which the
pertinent shares of the Series D Preferred Stock are issued and sold.
(m) "Junior Stock" shall mean the Common Stock and any other
class or series of shares of capital stock of the Corporation now or hereafter
issued and outstanding over which the Series D Preferred Stock has preference or
priority in the payment of dividends or in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation.
(n) "Parity Stock" shall have the meaning set forth in
Section 8(b).
(o) "Preferred Stock" shall mean the preferred stock of the
Corporation, par value $.01 per share.
(p) "Series D Preferred Stock" shall have the meaning set
forth in Section 1.
(q) "set apart for payment" shall be deemed to include,
without any action other than the following, the recording by the Corporation in
its accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board of
Directors, the allocation of funds to be so paid on any series or class of
shares of capital stock of the Corporation; provided, however, that if any funds
for any class or series of Junior Stock or Fully Junior Stock or any class or
series of shares of capital stock ranking on a parity with the Series D
Preferred Stock as to the payment of dividends are placed in a separate account
of the Corporation or delivered to a disbursing, paying or other similar agent,
then "set apart for payment" with respect to the Series D Preferred Stock shall
mean placing such funds in such separate account or delivering such funds to a
disbursing, paying or other similar agent.
<PAGE>
(r) "Total Dividends" shall have the meaning set forth in
Section 3(d).
(s) "Transfer Agent" means BankBoston, N.A., Boston,
Massachusetts, or such other agent or agents of the Corporation as may be
designated by the Board of Directors or their designee as the transfer agent,
registrar and dividend disbursing agent for the Series D Preferred Stock.
Section 3. Dividends.
(a) The holders of Series D Preferred Stock shall be entitled
to receive, when, as and if declared by the Board of Directors out of funds
legally available for that purpose, cumulative, preferential dividends payable
in cash at the rate of 8.45% per annum per share. Such dividends shall begin to
accrue and shall be fully cumulative from the Issue Date, whether or not in any
Dividend Period or Periods there shall be funds of the Corporation legally
available for the payment of such dividends, and shall be payable quarterly,
when, as and if declared by the Board of Directors, in arrears on Dividend
Payment Dates, commencing on the first Dividend Payment Date after the Issue
Date. Such dividends shall be payable in arrears to the holders of record of
Series D Preferred Stock, as they appear on the stock records of the Corporation
at the close of business on the record date, not more than 50 nor less than 10
days preceding the relevant Dividend Payment Date, as shall be fixed by the
Board of Directors. Accrued and unpaid dividends for any past Dividend Periods
may be declared and paid on any date and for such interim periods, without
reference to any regular Dividend Payment Date, to holders of record on such
date, not exceeding 50 days preceding the payment date thereof, as may be fixed
by the Board of Directors. Any dividend payment made on the Series D Preferred
Stock shall first be credited against the earliest accrued but unpaid dividend
due with respect to the Series D Preferred Stock which remains payable.
(b) The amount of dividends referred to in Section 3(a)
payable for each full Dividend Period for the Series D Preferred Stock shall be
computed by dividing the annual dividend rate by four, except that the amount of
dividends payable for the initial Dividend Period, and for any Dividend Period
shorter than a full Dividend Period, for the Series D Preferred Stock shall be
computed on the basis of the actual number of days in such Dividend Period.
Holders of Series D Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or shares of stock, in excess of cumulative
dividends, as herein provided, on the Series D Preferred Stock. No interest, or
sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on the Series D Preferred Stock that may be in arrears.
<PAGE>
(c) Dividends on Series D Preferred Stock will accrue whether
or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such dividends and whether or not such dividends
are declared.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the Code),
any portion (the "Capital Gains Amount") of the total dividends (within the
meaning of the Code) paid or made available for the year to holders of all
classes of capital stock (the "Total Dividends"), then the portion of the
Capital Gains Amount that shall be allocable to holders of Series D Preferred
Stock shall be in the same portion that the Total Dividends paid or made
available to the holders of Series D Preferred Stock for the year bears to the
Total Dividends.
(e) So long as any shares of Series D Preferred Stock are
outstanding, no dividends, except as described in the immediately following
sentence, shall be declared or paid or set apart for payment on any class or
series of Parity Stock for any period unless full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on the Series D Preferred Stock
for all Dividend Periods terminating on or prior to the dividend payment date
for such class or series of Parity Stock. When dividends are not paid in full or
a sum sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon Series D Preferred Stock and all dividends declared upon any other
class or series of Parity Stock shall be declared ratably in proportion to the
respective amounts of dividends accumulated and unpaid on the Series D Preferred
Stock and accumulated and unpaid on such Parity Stock.
(f) So long as any shares of Series D Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid solely in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, Fully Junior Stock) shall be declared or paid or set apart for payment or
other distribution declared or made upon Junior Stock or Fully Junior Stock, nor
shall any Junior Stock or Fully Junior Stock be redeemed, purchased or otherwise
acquired (other than a redemption, purchase or other acquisition of shares of
Common Stock made for purposes of any employee incentive or benefit plan of the
Corporation or any subsidiary) for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such shares) by
the Corporation, directly or indirectly (except by conversion into or exchange
for shares of Fully Junior Stock), unless in each case (i) the full cumulative
dividends on all outstanding shares of Series D Preferred Stock and any other
Parity Stock of the Corporation shall have been or contemporaneously are
declared and paid or declared and set apart for payment for all past Dividend
Periods with respect to the Series D Preferred Stock and all past dividend
periods with respect to such Parity Stock and (ii) sufficient funds shall have
been or contemporaneously are declared and paid or declared and set apart for
the payment of the dividend for the current Dividend Period with respect to the
Series D Preferred Stock and the current dividend period with respect to such
Parity Stock.
<PAGE>
(g) No dividends on Series D Preferred Stock shall be declared
by the Board of Directors or paid or set apart for payment by the Corporation at
such time as the terms and provisions of any agreement of the Corporation,
including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
Section 4. Liquidation Rights.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall
be made to or set apart for the holders of Junior Stock, the holders of the
Series D Preferred Stock shall be entitled to receive Two Hundred and Fifty
Dollars ($250.00) per share of Series D Preferred Stock plus an amount equal to
all dividends (whether or not earned or declared) accrued and unpaid thereon to
the date of final distribution to such holders; but such holders shall not be
entitled to any further payment. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation, or proceeds
thereof, distributable among the holders of the Series D Preferred Stock shall
be insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other shares of any class or series of Parity Stock, then such
assets, or the proceeds thereof, shall be distributed among the holders of the
Series D Preferred Stock and any such other Parity Stock ratably in accordance
with the respective amounts that would be payable on such Series D Preferred
Stock and any such other Parity Stock if all amounts payable thereon were paid
in full. For the purposes of this Section 4, (i) a consolidation or merger of
the Corporation with one or more corporations, real estate investment trusts, or
other entities, (ii) a sale, lease or transfer of all or substantially all of
the Corporation's assets, or (iii) a statutory share exchange shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or involuntary,
of the Corporation.
(b) Subject to the rights of the holders of shares of any
series or class or classes of capital stock ranking on a parity with or prior to
the Series D Preferred Stock upon liquidation, dissolution or winding up, upon
any liquidation, dissolution or winding up of the Corporation, after payment
shall have been made in full to the holders of the Series D Preferred Stock, as
provided in this Section 4, any other series or class or classes of Junior Stock
or Fully Junior Stock shall, subject to the respective terms and provisions (if
any) applying thereto, be entitled to receive any and all assets remaining to be
paid or distributed, and the holders of the Series D Preferred Stock shall not
be entitled to share therein.
<PAGE>
Section 5. Conversion. The shares of Series D Preferred Stock
are not convertible or exchangeable for any other property or securities of the
Corporation.
Section 6. Redemption at the Option of the Corporation.
(a) The Series D Preferred Stock shall not be redeemable by
the Corporation prior to December 19, 2002. On and after that date, the
Corporation, at its option, may redeem the Series D Preferred Stock, in whole or
in part at any time or from time to time, at a redemption price of Two Hundred
and Fifty Dollars ($250.00) per share of Series D Preferred Stock, plus the
amounts indicated in Section 6(b).
(b) Upon any redemption of the Series D Preferred Stock
pursuant to this Section 6, the Corporation shall pay all accrued and unpaid
dividends, if any, thereon ending on or prior to the date of such redemption
(the "Call Date"), without interest. If the Call Date falls after a dividend
payment record date and prior to the corresponding Dividend Payment Date, then
each holder of Series D Preferred Stock at the close of business on such
dividend payment record date shall be entitled to the dividend payable on such
shares on the corresponding Dividend Payment Date notwithstanding the redemption
of such shares before such Dividend Payment Date. Except as provided above, the
Corporation shall make no payment or allowance for unpaid dividends, whether or
not in arrears, on shares of Series D Preferred Stock called for redemption.
(c) If full cumulative dividends on the Series D Preferred
Stock and any other class or series of Parity Stock of the Corporation have not
been declared and paid or declared and set apart for payment, the Series D
Preferred Stock or Parity Stock may not be redeemed under this Section 6 in part
and the Corporation may not purchase or acquire the Series D Preferred Stock or
any Parity Stock, otherwise than pursuant to a purchase or exchange offer made
on the same terms to all holders of Series D Preferred Stock or Parity Stock, as
the case may be.
(d) Notice of the redemption of any Series D Preferred Stock
under this Section 6 shall be mailed by first-class mail to each holder of
record of Series D Preferred Stock to be redeemed at the address of each such
holder as shown on the Corporation's records, not less than 30 nor more than 90
days prior to the Call Date. Neither the failure to mail any notice required by
this Section 6(d), nor any defect therein or in the mailing thereof, to any
particular holder, shall affect the sufficiency of the notice or the validity of
the proceedings for redemption with respect to the other holders. Any notice
which was mailed in the manner herein provided
<PAGE>
shall be conclusively presumed to have been duly given on the date mailed
whether or not the holder receives the notice. Each such mailed notice shall
state, as appropriate: (1) the Call Date; (2) the number of shares of Series D
Preferred Stock to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price per share; (4) the place or places at which
certificates for such shares are to be surrendered; and (5) that dividends on
the shares to be redeemed shall cease to accrue on such Call Date except as
otherwise provided herein. Notice having been mailed as aforesaid, from and
after the Call Date (unless the Corporation shall fail to make available an
amount of cash necessary to effect such redemption), (i) except as otherwise
provided herein, dividends on the Series D Preferred Stock so called for
redemption shall cease to accrue, (ii) shares of such Series D Preferred Stock
shall no longer be deemed to be outstanding, and (iii) all rights of the holders
thereof as holders of Series D Preferred Stock of the Corporation shall cease
(except the right to receive cash payable upon such redemption, without interest
thereon, upon surrender and endorsement of their certificates if so required and
to receive any dividends payable thereon). The Corporation's obligation to
provide cash in accordance with the preceding sentence shall be deemed fulfilled
if, on or before the Call Date, the Corporation shall deposit with a bank or
trust company (which may be an affiliate of the Corporation) that has an office
in Washington, D.C., and that has, or is an affiliate of a bank or trust company
that has, capital and surplus of at least $50,000,000, the amount of cash
necessary for such redemption, in trust, with irrevocable instructions that such
cash be applied to the redemption of the Series D Preferred Stock so called for
redemption. No interest shall accrue for the benefit of the holders of Series D
Preferred Stock to be redeemed on any cash so set aside by the Corporation.
Subject to applicable escheat laws, any such cash unclaimed at the end of two
years from the Call Date shall revert to the general funds of the Corporation,
after which reversion the holders of such shares so called for redemption shall
look only to the general funds of the Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance
with said notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and if
the notice shall so state), such shares shall be exchanged for any cash (without
interest thereon) for which such shares have been redeemed. If fewer than all
the outstanding shares of Series D Preferred Stock are to redeemed, shares to be
redeemed shall be selected by the Corporation from outstanding shares of Series
D Preferred Stock not previously called for redemption by lot or pro rata (as
nearly as may be) or by any other method determined by the Corporation in its
sole discretion to be equitable. If fewer than all the shares of Series D
Preferred Stock represented by any certificate are redeemed, then new
certificates representing the unredeemed shares shall be issued without cost to
the holder thereof.
<PAGE>
Section 7. Shares of Stock to be Retired. All shares of Series
D Preferred Stock which shall have been issued and reacquired in any manner by
the Corporation shall be restored to the status of authorized but unissued
shares of Preferred Stock of the Corporation, without designation as to class or
series.
Section 8. Ranking. Any class or series of shares of capital
stock of the Corporation shall be deemed to rank:
(a) prior to the Series D Preferred Stock, as to the payment
of dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the holders of
Series D Preferred Stock;
(b) on a parity with the Series D Preferred Stock, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share thereof be different from
those of the Series D Preferred Stock, if the holders of such class or series of
shares of stock and the Series D Preferred Stock shall be entitled to the
receipt of dividends and of amounts distributable upon liquidation, dissolution
or winding up in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation preferences, without preference or priority
one over the other ("Parity Stock");
(c) junior to the Series D Preferred Stock, as to the payment
of dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such shares of stock shall be Junior Stock; and
(d) junior to the Series D Preferred Stock, as to the payment
of dividends and as to the distribution of assets upon liquidation dissolution
or winding up, if such shares of stock shall be Fully Junior Stock.
Section 9. Voting.
(a) On any matter on which the holders of Series D Preferred
Stock are entitled to vote (as expressly provided herein or as may be required
by law), including any action by written consent, each share of Series D
Preferred Stock shall have one (1) vote per share, except that when shares of
any other series of Preferred Stock shall have the right to vote with the Series
D Preferred Stock as a single class on any matter, then the Series D Preferred
Stock and such other series shall have with respect to such matters one (1) vote
per $25.00 of stated liquidation preference. With respect to each matter on
which the holders of Series D Preferred Stock are entitled to vote, the holder
of each share of Series D Preferred Stock may designate a number of proxies
equal to the number of votes to which the share is entitled, with each such
proxy having the right to vote a whole number of votes on behalf of such holder.
<PAGE>
(b) If and whenever six dividends payable for quarterly
periods on the Series D Preferred Stock or any series or class of Parity Stock
shall be in arrears (which shall, with respect to any such quarterly dividend,
mean that any such dividend has not been paid in full), whether or not declared
and whether or not such periods are consecutive, the number of directors then
constituting the Board of Directors shall be increased by two, and the holders
of Series D Preferred Stock, together with the holders of shares of every other
series of Parity Stock, voting as a single class regardless of series, shall be
entitled to elect the two additional directors to serve on the Board of
Directors at any annual meeting of shareholders or special meeting held in place
thereof, or at a special meeting of the holders of the Series D Preferred Stock
and the Parity Stock called as hereinafter provided. Whenever all arrears in
dividends on the Series D Preferred Stock and the Parity Stock then outstanding
shall have been paid and dividends thereon for the current quarterly dividend
period shall have been paid or declared and set apart for payment, then the
right of the holders of the Series D Preferred Stock and the Parity Stock to
elect such additional two directors shall immediately cease (but subject always
to the same provision for the vesting of such voting rights in the case of any
similar future arrearages in six quarterly dividends), and the terms of office
of all persons elected as directors by the holders of the Series D Preferred
Stock and the Parity Stock shall immediately terminate and the number of the
Board of Directors shall be reduced accordingly. At any time after such voting
rights shall have been so vested in the holders of Series D Preferred Stock and
the Parity Stock, the secretary of the Corporation may, and upon the written
request of any holder of Series D Preferred Stock (addressed to the secretary at
the principal office of the Corporation) shall, call a special meeting of the
holders of the Series D Preferred Stock and of the Parity Stock for the election
of the two directors to be elected by them as herein provided, such call to be
made by notice similar to that provided in the Bylaws of the Corporation for a
special meeting of the shareholders or as required by law. If any such special
meeting required to be called as above provided shall not be called by the
secretary within 20 days after receipt of any such request, then any holder of
Series D Preferred Stock may call such meeting, upon the notice above provided,
and for that purpose shall have access to the stock records of the Corporation.
The directors elected at any such special meeting shall hold office until the
next annual meeting of the shareholders or special meeting held in lieu thereof
if such office shall not have previously terminated as above provided. If any
vacancy shall occur among the directors elected by the holders of the Series D
Preferred Stock and the Parity Stock, a successor shall be elected by the Board
of Directors, upon the nomination of the then-remaining director elected by the
holders of the Series D Preferred Stock and the Parity Stock or the successor of
such remaining director, to serve until the next annual meeting of the
shareholders or special meeting held in place thereof if such office shall not
have previously terminated as provided above.
<PAGE>
(c) So long as any shares of Series D Preferred Stock are
outstanding, in addition to any other vote or consent of shareholders required
by law or by the Charter of the Corporation, the affirmative vote of at least
66-2/3% of the votes entitled to be cast by the holders of the Series D
Preferred Stock and the Parity Stock, at the time outstanding, acting as a
single class regardless of series, given in person or by proxy, either in
writing without a meeting or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Charter of the Corporation (including these Articles
Supplementary) that materially and adversely affects the voting powers,
rights or preferences of the holders of the Series D Preferred Stock or
the Parity Stock; provided, however, that the amendment of the
provisions of the Charter of the Corporation so as to authorize or
create or to increase the authorized amount of shares of any class of
any Fully Junior Stock or Junior Stock that are not senior in any
respect to the Series D Preferred Stock, or any shares of any class
ranking on a parity with the Series D Preferred Stock or the Parity
Stock, shall not be deemed to materially adversely affect the voting
powers, rights or preferences of the holders of Series D Preferred
Stock; and provided further, that if any such amendment, alteration or
repeal would materially and adversely affect any voting powers, rights
or preferences of the Series D Preferred Stock or another series of
Parity Stock that are not enjoyed by some or all of the other series
otherwise entitled to vote in accordance herewith, the affirmative vote
of at least 66-2/3% of the votes entitled to be cast by the holders of
all series similarly affected, similarly given, shall be required in
lieu of the affirmative vote of at least 66-2/3% of the votes entitled
to be cast by the holders of the Series D Preferred Stock and the
Parity Stock otherwise entitled to vote in accordance herewith; or
(ii) A share exchange that affects the Series D
Preferred Stock, a consolidation with or merger of the Corporation into
another entity, or a consolidation with or merger of another entity
into the Corporation, unless in each such case each share of Series D
Preferred Stock (i) shall remain outstanding without a material and
adverse change to its terms and rights or (ii) shall be converted into
or exchanged for preferred stock of the surviving entity having
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications and terms or conditions of
redemption thereof identical to that of a share of Series D Preferred
Stock (except for changes that do not materially and adversely affect
the holders of the Series D Preferred Stock); or
(iii) The authorization or creation of, or the
increase in the authorized amount of, any shares of any class, or any
security convertible into shares of any class, ranking prior to the
Series D Preferred Stock in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation or in the
payment of dividends; provided, however, that no such vote of the
holders of Series D Preferred Stock shall be required if, at or prior
to the time when such amendment, alteration or repeal is to take
effect, or when the issuance of any such shares or convertible
securities is to be made, as the case may be, provision is made for the
redemption of all shares of Series D Preferred Stock at the time
outstanding.
<PAGE>
(d) Except as otherwise required by applicable law or as set
forth herein, the Series D Preferred Stock shall not have any relative,
participating, optional or other special voting rights and powers, and the
consent of the holders thereof shall not be required for the taking of any
corporate action.
Section 10. Record Holders. The Corporation and the Transfer
Agent may deem and treat the record holder of any Series D Preferred Stock as
the true and lawful owner thereof for all purposes, and neither the Corporation
nor the Transfer Agent shall be affected by any notice to the contrary.
Section 11. Sinking Fund. The Series D Preferred Stock shall
not be entitled to the benefits of any retirement or sinking fund.
Section 12. Ownership Limitation. Pursuant to the authority
granted to the Board of Directors under Section 5.10 of the Charter, any Person
(as defined in the Charter) who is not an individual within the meaning of
Section 542(a)(2) of the Internal Revenue Code of 1986, as amended (the "Code"),
as modified by Section 856(h)(3) of the Code (referred to as an "Exempted
Person"), that Acquires (as defined in the Charter) Beneficial Ownership (as
defined in the Charter) of shares of Series D Preferred Stock is exempted from
clause (ii) of the Ownership Limit (as defined in the Charter) with respect to
the Series D Preferred Stock, subject to the condition that no Person (as
defined in the Charter) who is an individual within the meaning of Section
542(a)(2) of the Code, as modified by Section 856(h)(3) of the Code and who
Beneficially Owns (as defined in the Charter) any of the shares of Series D
Preferred Stock owned directly by the Exempted Person at any time Beneficially
Owns an amount of Series D Preferred Stock in excess of the Ownership Limit.
Each Exempted Person who acquires shares of Series D Preferred Stock in reliance
upon the conditional exemption set forth in the preceding sentence represents
and warrants to the Corporation as a condition of such reliance that the
condition set forth therein is satisfied at the time such Exempted Person
Acquired the shares of Series D Preferred Stock and will be satisfied throughout
the period during which such Exempted Person Beneficially Owns the shares of
Series D Preferred Stock. Each Exempted Person who acquires shares of Series D
Preferred Stock in reliance upon the conditional exemption set forth in the
second preceding sentence further agrees that in the event the condition set
forth in the second preceding sentence is at any time not satisfied, the
exemption granted under this Section 12 no longer shall apply to such Exempted
Person and all of the shares of Series D Preferred Stock Beneficially Owned by
such Exempted Person shall be subject to all of the restrictions and remedies
set forth in Article V of the Charter (including, without limitation, the
remedies set forth in Section 5.3 of the Charter).
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be signed in its name and on its behalf by its President and
attested by its Assistant Secretary on December 17, 1997.
CARRAMERICA REALTY CORPORATION
By: /s/ Thomas A. Carr
--------------------------------
Thomas A. Carr
President
Exhibit 4.2
CARRAMERICA REALTY CORPORATION
BANKBOSTON, N.A., AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
-----------------
DEPOSIT AGREEMENT
-----------------
Dated as of December 16, 1997
<PAGE>
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION II.1 Form and Transfer of Receipts.....................................2
SECTION II.2 Deposits of Stock; Execution and Delivery of Receipts in
Respect Thereof...........................................................3
SECTION II.3 Registration of Transfer of Receipts..............................4
SECTION II.4 Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock..........................................4
SECTION II.5 Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts.....................................................5
SECTION II.6 Lost Receipts, etc................................................6
SECTION II.7 Cancellation and Destruction of Surrendered Receipts..............6
SECTION II.8 Redemption of Stock...............................................6
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION III.1 Filing Proofs, Certificates and Other Information................8
SECTION III.2 Payment of Taxes or Other Governmental Charges...................8
SECTION III.3 Warranty as to Stock.............................................8
<PAGE>
Page
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ARTICLE IV
The Deposited Securities; Notices
SECTION IV.1 Cash Distributions................................................9
SECTION IV.2 Distributions Other than Cash, Rights, Preferences
or Privileges.............................................................9
SECTION IV.3 Subscription Rights, Preferences or Privileges....................9
SECTION IV.4 Notice of Dividends, etc.; Fixing Record Date for
Holders of Receipts......................................................10
SECTION IV.5 Voting Rights....................................................11
SECTION IV.6 Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. ................................................11
SECTION IV.7 Delivery of Reports..............................................12
SECTION IV.8 List of Receipt Holders..........................................12
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION V.1 Maintenance of Office, Agencies and Transfer Books by the
Depositary; Registrar...................................................12
SECTION V.2 Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company.......................13
SECTION V.3 Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company...............................................14
SECTION V.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary.....................................................15
SECTION V.5 Corporate Notices and Reports.....................................16
SECTION V.6 Indemnification by the Company....................................16
SECTION V.7 Charges and Expenses..............................................16
SECTION V.8 Tax Compliance....................................................17
<PAGE>
Page
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ARTICLE VI
Amendment and Termination
SECTION VI.1 Amendment........................................................18
SECTION VI.2 Termination......................................................18
ARTICLE VII
Miscellaneous
SECTION VII.1 Counterparts....................................................19
SECTION VII.2 Exclusive Benefit of Parties....................................19
SECTION VII.3 Invalidity of Provisions........................................19
SECTION VII.4 Notices.........................................................19
SECTION VII.5 Appointment of Registrar........................................20
SECTION VII.6 Holders of Receipts are Parties.................................20
SECTION VII.7 Governing Law...................................................20
SECTION VII.8 Inspection of Deposit Agreement.................................20
SECTION VII.9 Headings........................................................21
Form of Depositary Receipt
Form of Face of Receipt......................................................A-1
Form of Reverse of Receipt...................................................A-3
<PAGE>
DEPOSIT AGREEMENT, dated as of December 16, 1997, among CARRAMERICA
REALTY CORPORATION, a Maryland corporation (the "Company"), BANKBOSTON, N.A., a
national banking association (the "Depositary"), and the holders from time to
time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of 8.450% Series D Cumulative
Redeemable Preferred Stock of the Company with the Depositary for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of Receipts
evidencing Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the promises contained herein, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
Definitions
The following definitions shall, for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the Articles Supplementary filed with the
Department of Assessments and Taxation of the State of Maryland establishing the
Stock as a series of preferred stock of the Company.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean BankBoston, N.A. and any successor as
Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
one-tenth (1/10) of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 5.1 and shall include the Registrar if such Registrar is not
the Depositary.
"Depositary's Office" shall mean the principal office of the Depositary
at which at any particular time its depositary receipt business shall be
administered.
<PAGE>
"Receipt" shall mean one of the Depositary Receipts, substantially in
the form set forth as Exhibit A hereto, issued hereunder, whether in definitive
or temporary form and evidencing the number of Depositary Shares held of record
by the record holder of such Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of Receipts
as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's 8.450% Series D Cumulative
Redeemable Preferred Stock, $.01 par value per share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Deliver, Transfer,
Surrender and Redemption of Receipts
SECTION II.1 Form and Transfer of Receipts. Definitive Receipts shall
be engraved or printed or lithographed on steel-engraved borders, with
appropriate insertions, modifications and omissions, as hereinafter provided, if
and to the extent required by any securities exchange on which the Receipts are
listed. Pending the preparation of definitive Receipts or if definitive Receipts
are not required by any securities exchange on which the Receipts are listed,
the Depositary, upon the written order of the Company or any holder of Stock, as
the case may be, delivered in compliance with Section 2.2, shall execute and
deliver temporary Receipts which are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at the
Depositary's Office or at such other place or places as the Depositary shall
determine, without charge to the holder. Upon surrender of cancellation of any
one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge to the
holder therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Agreement, and with respect
to the Stock, as definitive Receipts.
2
<PAGE>
Receipts shall be executed by the Depositary by the manual and/or
facsimile signature of a duly authorized officer of the Depositary. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed in accordance with
the foregoing sentence. The Depositary shall record on its books each Receipt so
signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares. The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt, which is properly
endorsed or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.3, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION II.2 Deposits of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company or, subject to Section 2.4, any holder of Stock may from time to
time deposit shares of Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order a Receipt or Receipts for the
number of Depositary Shares representing such deposited Stock.
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Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock on the books of the Company in the name of the Depositary or its nominee,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section, a Receipt or Receipts for the whole number of
Depositary Shares representing, in the aggregate, the Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
SECTION II.3 Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon, the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION II.4 Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional Depositary Share.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously been
called for redemption) withdraw the Stock and all money and other property, if
any, represented thereby by surrendering such Receipt or Receipts at the
Depositary's Office or as such other offices as the Depositary may designate for
such withdrawals and paying any unpaid amount due the Depositary. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter be entitled to deposit
such Stock hereunder or to receive Depositary Shares therefor. If a Receipt
delivered by
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the holder to the Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Stock to be so withdrawn, the
Depositary shall at the same time, in addition to such number of whole shares of
Stock and such money and other property, if any, to be so withdrawn, deliver to
such holder, or upon his order, a new Receipt evidencing such excess number of
Depositary Shares, provided, however, that the Depositary shall not issue any
Receipt evidencing a fractional Depositary Share. Delivery of the Stock and
money and other property being withdrawn may be made by the delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holders shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION II.5 Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Sections 3.2 and 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature, and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed, or (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
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SECTION II.6 Lost Receipts, etc. In case any receipts shall be
mutilated, destroyed, lost or stolen, the Depositary in its reasonable
discretion may execute and deliver a Receipt of like form and tenor in exchange
and substitution for such mutilated Receipt, or in lieu of and in substitution
for such destroyed, lost or stolen Receipts, upon (i) the filing by the holder
thereof with the Depositary of evidence reasonably satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof, (ii) the furnishing of
the Depositary with indemnification reasonably satisfactory to it and the
Company and (iii) the payment of any reasonable expense (including reasonable
fees, charges and expenses of the Depositary) in connection with such execution
and delivery.
SECTION II.7 Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Company is authorized to destroy all Receipts so cancelled.
SECTION II.8 Redemption of Stock. Whenever the Company shall be
permitted and shall elect to redeem shares of Stock in accordance with the
provisions of the Certificate, it shall (unless otherwise agreed to in writing
with the Depositary) give or cause to be given to the Depositary not less than
60 days' notice of the date of such proposed redemption or exchange of Stock and
of the number of such shares held by the Depositary to be so redeemed and the
applicable redemption price, as set forth in the Certificate, which notice shall
be accompanied by a certificate from the Company stating that such redemption of
Stock is in accordance with the provisions of the Certificate. Notice of
redemption of Stock will also be given by the Company by publication in a
newspaper of general circulation in the City of New York, such publication to be
made once a week for two successive weeks commencing not less than 30 nor more
than 90 days prior to the redemption date, and the Depositary will publish a
notice of redemption of the Depositary Shares containing the same type of
information and in the same manner as the Company's notice of redemption. On the
date of such redemption, provided that the Company shall then have paid or
caused to be paid in full to the Depositary the redemption price of the Stock to
be redeemed, plus an amount equal to any accrued and unpaid dividends thereon to
the date fixed for redemption, in accordance with the provisions of the
Certificate, the Depositary shall redeem the number of Depositary Shares
representing such Stock. The Depositary shall mail notice of the Company's
redemption of Stock and the proposed simultaneous redemption of the number of
Depositary Shares representing the Stock to be redeemed by first-class mail,
postage prepaid, not less than 30 and not more than 60 days prior to the date
fixed for redemption of such Stock and Depositary Shares (the "Redemption Date")
to the record holders of the Receipts evidencing the Depositary Shares to be so
redeemed, at the address of such holders as they appear on the records of the
Depositary; but neither failure to mail any such notice of redemption of
Depositary Shares to one or more such holders nor any defect in any notice of
redemption of Depositary Shares to one or more such holders shall affect the
sufficiency of the proceedings for redemption as to the other holders. The
Company will provide the Depositary with the information necessary for the
Depositary to prepare such notice and each
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such notice shall state: (i) the Redemption Date; (ii) the number of Depositary
Shares to be redeemed and, if less than all the Depositary Shares held by any
such holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed; (iii) the redemption price per Depositary Share;
(iv) the place or places where Receipts evidencing Depositary Shares are to be
surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accrue on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be determined pro rata or by lot in a manner determined by the Board of
Directors.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to provide the
funds necessary to redeem the Stock evidenced by the Depositary Shares called
for redemption) (i) dividends on the shares of Stock so called for redemption
shall cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, (iii)
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate, and (iv) upon surrender in accordance
with such redemption notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if the
Depositary or applicable law shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
the same fraction of the redemption price per share paid with respect to the
shares to Stock as the fraction each Depositary Share represents of a share of
Stock plus the same fraction of all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by the Company
in respect of dividends which on the Redemption Date have accumulated on the
shares of Stock to be so redeemed and have not theretofore been paid. Any funds
deposited by the Company with the Depositary for any Depositary Shares that the
holders thereof fail to redeem will be returned to the Company after a period of
five years from the date such funds are so deposited.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption, provided, however, that the Depositary shall not
issue any Receipt evidencing a fractional Depositary Share.
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ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION III.1 Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper or otherwise reasonably request. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the withdrawal or
conversion of the Stock represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations and warranties
are made.
SECTION III.2 Payment of Taxes or Other Governmental Charges. Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.7. Registration of transfer of
any Receipt or any withdrawal of Stock and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or any part of or all the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
SECTION III.3 Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
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ARTICLE IV
The Deposited Securities; Notices
SECTION IV.1 Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.4 such amounts of such dividend or
distribution as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall be required
to withhold and shall withhold from any cash dividend or other cash distribution
in respect of the Stock an amount on account of taxes or as otherwise required
by law, regulation or court process, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. In
the event that the calculation of any such cash dividend or other cash
distribution to be paid to any record holder on the aggregate number of
Depositary Receipts held by such holder results in an amount which is a fraction
of a cent, the amount the Depositary shall distribute to such record holder
shall be rounded to the next highest whole cent if such fraction of a cent is
equal to or greater than $.005, otherwise such fractional interest shall be
disregarded; and upon request of the Depositary, the Company shall pay the
additional amount to the Depositary for distribution.
SECTION IV.2 Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Section 3.1 and 3.2, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.4 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems such distribution
not to be feasible, the Depositary may, with the approval of the Company, adopt
such method as it deems equitable and practicable for the purpose of effecting
such distribution, including the sale (at public or private sale) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem equitable and appropriate. The net
proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed
or made available for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash.
SECTION IV.3 Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or purchase any
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securities or any rights, preferences or privileges of any other nature, such
rights, preferences or privileges shall in each such instance be made available
by the Depositary to the record holders of Receipts in such manner as the
Depositary may determine, either by the issue to such record holders of warrants
representing such rights, preferences or privileges or by such other method as
may be approved by the Depositary in its discretion with the approval of the
Company; provided, however, the (i) if at the time of issue or offer of any such
rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders or Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed to holders
of Receipts who do not desire to execute such rights, preferences or privileges,
then the Depositary, in its discretion (either approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.1 and 3.2, be distributed by the Depositary to
the record holders of Receipts entitled thereto as provided by Section 4.1 in
the case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company will file promptly a registration statement
pursuant to the Securities Act with respect to such rights, preferences or
privileges and securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless
and until it has received written notice from the Company that such registration
statement shall have become effective, or that the offering and sale of such
securities to such holders are exempt from registration under the provisions of
the Securities Act and the Company shall have provided to the Depositary an
opinion of counsel reasonably satisfactory to the Depositary to such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company will use its reasonable best efforts to take such
action or obtain such authorization, consent or permit sufficiently in advance
of the expiration of such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or privileges.
SECTION IV.4 Notice of Dividends, etc.; Fixing Record Date for Holders
of Receipts. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting
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at which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice, or whenever the Depositary and the Company shall decide it
is appropriate, the Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to or otherwise in accordance with the terms of the Stock) for the
determination of the holders of Receipts who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the net proceeds of
the sale thereof, or to give instructions for the exercise of voting rights at
any such meeting, or who shall be entitled to notice of such meeting or for any
other appropriate reasons.
SECTION IV.5 Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock represented by their respective Depositary Shares (including
an express indication that Instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on the relevant record date, the Depositary
shall use its best efforts to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock represented by the Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The Company hereby agrees to
take all action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In the
absence of specific instructions from the holder of a Receipt, the Depositary
will not vote (but, at its discretion, may appear at any meeting with respect to
such Stock unless directed to the contrary by the holders of all the Receipts)
to the extent of the Stock represented by the Depositary Shares evidenced by
such Receipt.
SECTION IV.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par value or
liquidation preference, split-up, combination or any other reclassification of
the Stock, or upon any recapitalization, reorganization, merger or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion with the approval (not to be unreasonably withheld) of, and shall
upon the instructions of, the Company and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments in the fraction of an
interest in one share of Stock represented by one Depositary Share as may be
necessary (as certified by the Company) fully to reflect the efforts of such
change in par value or liquidation preference, split-up, combination or other
reclassification of Stock, or of such recapitalization, reorganization, merger
of consolidation and (ii) treat any securities which shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Stock as
new deposited securities so received in exchange for or upon conversion or in
respect of such Stock. In any such case, the Depositary may in its discretion,
with the approval of the Company, execute and deliver additional Receipts or may
call for the surrender of all outstanding Receipts to be exchanged for new
Receipts
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specifically describing such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have the right from and after
the effective date of any such change in par value or liquidation preference,
split-up, combination or other reclassification of the Stock or any such
recapitalization, reorganization, merger or consolidation to surrender such
Receipts to the Depositary with instructions to convert, exchange or surrender
the Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and cash into which
the Stock represented by such Receipts would have been converted or for which
such Stock would have been exchanged or surrendered had such Receipt been
surrendered immediately prior to the effective date of such transaction.
SECTION IV.7 Delivery of Reports. The Depositary shall furnish to
holders of Receipts any reports and communications received from the Company
which are received by the Depositary as the holder of Stock.
SECTION IV.8 List of Receipt Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of the
most recent practicable date, of the names, addresses and holdings of Depositary
Shares of all record holders of Receipts. The Company shall be entitled to
receive such list four times annually without charge.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION V.1 Maintenance of Office, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
shall maintain, at the Depositary's Office, facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books during normal
business hours shall be open for inspection by the record holders of Receipts;
provided that any such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
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The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidence
thereby. If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on one or more national
securities exchanges, the Depositary will appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary Shares in accordance
with any requirements of such exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of any such exchange) may be
removed and a substitute registrar appointed by the Depositary upon the request
or with the approval of the Company. If the Receipts, such Depositary Shares or
such Stock are listed on one or more other stock exchanges, the Depositary will,
at the request and the expense of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange of such
Receipts, such Depositary Share or such Stock as may be required by law or
applicable securities exchange regulation.
The Depositary may from time to time appoint Depositary's Agents to act
in any respect for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
of any such action.
SECTION V.2 Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company. Neither the Depositary
nor any Depositary's Agent nor the Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Articles of Incorporation or by reason of any act of
God or war or other circumstance beyond the control of the relevant party, the
Depositary, the Depositary's Agent, the Registrar or the Company shall be
prevented, delayed or forbidden from, or subjected to any penalty on account of,
doing or performing any act or thing which the terms of this Deposit Agreement
provide shall be done or performed; nor shall the Depositary, any Depositary's
Agent, the Registrar or the Company incur liability to any holder of a Receipt
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement
except, in the case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the gross negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
SECTION V.3 Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than for its gross negligence, willful misconduct or bad faith.
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Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its reasonable opinion may involve it in expense or
liability unless indemnity reasonably satisfactory to it against expense and
liability be furnished as often as may be reasonably required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, the Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary will indemnify the Company and hold it harmless from any
loss, liability or expense (including the reasonable costs and expenses of
defending itself) which may arise out of acts performed or omitted by the
Depositary, including when such Depositary acts as Registrar, or the
Depositary's Agents in connection with this Agreement due to its or their gross
negligence, willful misconduct or bad faith. The indemnification obligations of
the Depositary set forth in this Section 5.3 shall survive any termination of
this Agreement and any succession of any Depositary.
The Depositary, its parent, affiliates or subsidiaries, the
Depositary's Agents and the Registrar may own, buy, sell and deal in any class
of securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary, parent,
affiliate or subsidiary or Depositary's Agent or Registrar hereunder. The
Depositary may also act as trustee, transfer agent or registrar of any of the
securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
nor the Registrar, acting as the Depositary, Depositary's Agent or Registrar, as
the case may be, shall be deemed to be an "issuer" of the securities under the
federal securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary, any Depositary's Agent and the
Registrar are acting only in a ministerial capacity as Depositary, Depositary
Agent or Registrar for the Stock.
14
<PAGE>
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent nor the Registrar makes any representation or
has any responsibility as to the validity of the registration statement pursuant
to which the Depositary Shares are registered under the Securities Act, the
Stock, the Depositary Shares or the Receipts (except for its counter-signatures
thereon) or any instruments referred to therein or herein, or as to the
correctness of any statement made therein or herein.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity or genuineness of any
Stock at any time deposited with the Depositary hereunder or of the Depositary
Shares, as to the validity or sufficiency of this Deposit Agreement, as to the
value of the Depositary Shares or as to any right, title or interest of the
record holders of Receipts in and to the Depositary Shares. The Depositary shall
not be accountable for the use or application by the Company of the Depositary
Shares or the Receipts or the proceeds thereof.
SECTION V.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record holders
of all outstanding Receipts and such records, books and other information in its
possession relating thereto. Any successor Depositary shall promptly mail notice
of its appointment to the record holders of Receipts.
15
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Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION V.5 Corporate Notices and Reports. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including, without limitation, financial statements) required by law or by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request.
SECTION V.6 Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and the Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the reasonable
costs and expenses of defending itself) which may arise out of acts performed or
omitted in connection with this Deposit Agreement and the Receipts by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of gross negligence,
willful misconduct or bad faith on the respective parts of any such person or
persons. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Depositary's Agent or Registrar.
SECTION V.7 Charges and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Depositary Shares, all withdrawals of shares of the Stock by owners of
Depositary Shares, and any redemption of the Stock at the option of the Company.
All other transfer and other taxes and governmental charges shall be at the
expense of holders of Depositary Shares. If, at the request of a holder of
Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any Depositary's
Agent hereunder (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be paid upon consultation and agreement between the Depositary and the
Company as to the amount and nature of such charges and expenses. The Depositary
shall present its statement for charges and expenses to the Company at such
intervals as the Company and the Depositary may agree.
16
<PAGE>
SECTION V.8 Tax Compliance. The Depositary, on its own behalf and on
behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise
of rights under the Depositary Receipts or the Depositary Shares. Such
compliance shall include, without limitation, the preparation and the timely
filing of required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
The Depositary shall comply with any direction received from the
Company with respect to the application of any such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 5.3 hereof.
The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Company or to its authorized representatives.
ARTICLE VI
Amendment and Termination
SECTION VI.1 Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary or Registrar, which shall go into
effect not sooner than three months after notice thereof to the holders of the
Receipts) which shall materially adversely alter the rights of the holders of
Receipts shall be effective unless such amendment shall have been approved by
the holders of at least a majority of the Depositary Shares then outstanding.
Every holder of an outstanding Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Receipt, to be bound by
the Deposit Agreement as amended thereby. Notwithstanding the foregoing, in no
event may any amendment impair the right of any holder of any Depositary Shares,
upon surrender of the Receipts evidencing such Depositary Shares and subject to
any conditions specified in this Deposit Agreement, to receive shares of Stock
and any money or other property represented thereby, except in order to comply
with mandatory provisions of applicable law.
SECTION VI.2 Termination. This Deposit Agreement may be terminated by
the Company at any time upon not less than 60 days' prior written notice to the
Depositary, in which case, on a date that is not later than 30 days after the
date of such notice, the Depositary shall
17
<PAGE>
deliver or make available for delivery to holders of Depositary Shares, upon
surrender of Receipts evidencing such Depositary Shares, such number of whole or
fractional shares of Stock as are represented by such Depositary Shares. This
Deposit Agreement will automatically terminate after (i) all outstanding
Depositary Shares have been redeemed pursuant to Section 2.8 or (ii) there shall
have been made a final distribution in respect of the Stock in connection with
any liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Receipts pursuant to
Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, the Registrar and any Depositary's Agent under
Section 5.6 and 5.7.
ARTICLE VII
Miscellaneous
SECTION VII.1 Counterparts. This Deposit Agreement may be executed in
any number of counterparts, and by each of the parties hereto on separated
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION VII.2 Exclusive Benefit of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION VII.3 Invalidity of Provisions. In case one or more of the
provisions contained in the Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION VII.4 Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Company at:
CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attention: Corporate Secretary
Facsimile No.: (202) 638-0102
or at any other address of which the Company shall have notified the Depositary
in writing.
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<PAGE>
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and be deemed to have been duly given if
personally delivered or sent by mail or by telegram or facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office, at:
BankBoston, N.A.
150 Royall Street
Mail Stop: 45-02-62
Canton, MA 02021
Attention: Client Administration
Facsimile No.: (617) 575-2549
or at any other address of which the Depositary shall have notified the Company
in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books of the Depositary,
or if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected by the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission) is deposited for mailing by first class mail, postage
prepaid. The Depositary or the Company may, however, act upon any telegram or
facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION VII.5 Appointment of Registrar. The Company hereby also
appoints the Depositary as Registrar in respect of the Receipts and the
Depositary hereby accepts such appointment.
SECTION VII.6 Holders of Receipts are Parties. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION VII.7 Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS APPLICABLE TO
CONTRACTS MADE IN AND TO BE PERFORMED IN THE STATE OF NEW YORK WITHOUT REGARD TO
THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
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SECTION VII.8 Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agent and
shall be open to inspection during business hours at the Depositary's Office or
respective offices of the Depositary's Agent, if any, by any holder of a
Receipt.
SECTION VII.9 Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
20
<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereof by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
Attested by: CARRAMERICA REALTY CORPORATION
/s/ Debra A.Volpicelli /s/ Thomas A. Carr
- ----------------------------- --------------------------------------------
Name: Debra A. Volpicelli Name: Thomas A. Carr
Title: Treasurer Title: President and Chief Executive Officer
Attested by: BANKBOSTON, N.A.
/s/ James P. Mitchell /s/ Michael J. Lapolla
- ----------------------------- --------------------------------------------
Name: James P. Mitchell Name: Michael J. Lapolla
Title: Senior Accounts Manager Title: Administration Manager
<PAGE>
ANNEX A
[TEMPORARY RECEIPT EXCHANGEABLE FOR DEFINITIVE
ENGRAVED RECEIPT WHEN READY FOR DELIVERY]
DEPOSITARY SHARES
THIS DEPOSITARY RECEIPT
IS TRANSFERABLE IN BOSTON,
MA OR NEW YORK, NY
CUSIP 144418 50 6
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY
SHARES EACH REPRESENTING ONE-TENTH OF A SHARE OF
8.450% SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK,
OF
CARRAMERICA REALTY CORPORATION
INCORPORATED UNDER THE
LAWS OF THE STATE OF MARYLAND
<PAGE>
BANKBOSTON, N.A., as Depositary (the "Depositary"), hereby certifies
that is the registered owner of ________________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a one-tenth interest
in one share of 8.450% Series D Cumulative Redeemable Preferred Stock (the
"Stock") of CarrAmerica Realty Corporation, a Maryland corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of December 16, 1997
(the "Deposit Agreement"), between the Corporation and the Depositary. By
accepting this Depositary Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or be
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual and/or facsimile signature of a duly
authorized officer or, if executed in facsimile by the Depositary, countersigned
by a Registrar in respect of the Depositary Receipts by a duly authorized
officer.
The Corporation is authorized to issue Common Stock, one or more series of
Preferred Stock and Depositary Shares. The Corporation will furnish without
charge to each receiptholder, who so requests in writing, a statement of the
rights, preferences, privileges and restrictions granted to or imposed upon the
respective classes and series of capital stock of the Corporation and the
holders thereof, a copy of the Corporation's Articles of Incorporation, the
Articles Supplementary relating to the Stock, the Corporation's Bylaws and the
Deposit Agreement. Any such request shall be made to the Corporation at its
principal office at 1700 Pennsylvania Avenue, N.W., Washington, D.C. 20006,
Attention: Secretary.
This Depositary Receipt is continued on the reverse hereof and the additional
provisions set forth therein (including, without limitation, those relating to
redemption) for all purposes have the same effect as if set forth at this place.
Dated:
Countersigned
BANKBOSTON, N.A.
Depositary, Transfer Agent and
Registrar
By:
Authorized Officer
<PAGE>
The Shares represented by this Depositary Receipt are subject to the
provisions of the Articles and Bylaws, including but not limited to (1) Section
6 of the Articles Supplementary relating to the Stock, which confers upon the
Board the right, on or after December 19, 2002, to call for redemption the
Stock, and (2) provisions of the Articles and Bylaws that set forth restrictions
on ownership and transfer for the purpose of maintaining the Company's status as
a real estate investment trust under the Code. No Person may (1) Beneficially
Own shares of Common Stock in excess of five percent (or such greater percentage
as may be determined by the Board of Directors of the Company) of the
outstanding Common Stock of the Company (unless such Person is an Existing
Holder or a Special Shareholder), (2) Beneficially Own shares of any class or
series of Preferred Stock in excess of five percent (or such greater percentage
as may be determined by the Board of Directors of the Company) of the
outstanding shares of such class or series of Preferred Stock of the Company
(unless such Person is an Existing Holder or Special Shareholder), (3)
Beneficially Own capital stock that would result in the Company's being "closely
held" (within the meaning of Section 856(h) of the Code) or Acquire capital
stock that would result in the Company having fewer than 100 shareholders (as
determined for purposes of Section 856(a)(5) of the Code), or (4) unless such
Person is a Special Shareholder, Acquire shares of capital stock if, as a result
of such Acquisition, the Company would fail to qualify as a "domestically
controlled REIT" (within the meaning of Section 897(h)(4) of the Code)
(determined assuming that the Special Shareholders are Non-U.S. Persons and own
a percentage (by value) of the Company's capital stock corresponding to the
Special Shareholders' Percentage). Separate restrictions set forth in Article V
of the Articles of Incorporation apply to Existing Holders and Special
Shareholders. Any Person who attempts to Beneficially Own shares of capital
stock in excess of these limitations must immediately notify the Company. If any
of the restrictions on transfer or ownership set forth in Article V of the
Articles of Incorporation are violated, the interest in Stock represented hereby
will automatically be transferred to the Trustee of a Trust for the benefit of a
Charitable Beneficiary pursuant to the terms of Article V of the Articles of
Incorporation. In addition, attempted transfers of capital stock or interests in
capital stock in violation of these limitations (as modified or expanded upon in
Article V of the Company's Articles of Incorporation), may be void ab initio. A
Person who attempts to Beneficially Own shares of capital stock in violation of
the ownership limitations set forth in Section 5.2 of the Articles of
Incorporation shall have no claim, cause of action, or any other recourse
whatsoever against a transferor of such shares. The foregoing has been modified
in part by the Company's Articles Supplementary relating to the Stock, which
modifications provide certain limited exceptions to the foregoing with respect
to a Person who attempts to Beneficially Own in excess of five percent of the
shares of Stock (subject to certain representations and warranties which are
deemed made by such Person). Except for the term "Stock," all capitalized terms
in the foregoing sentences of this paragraph have the meanings defined in the
Company's Articles of Incorporation.
<PAGE>
1. The Deposit Agreement. Depositary Receipts, of which this Depositary
Receipt is one, are made available upon the terms and conditions set forth in
the Deposit Agreement, dated as of December 16, 1997 (the "Deposit Agreement")
among the Company, the Depositary and all holders from time to time of
Depositary Receipts. The Deposit Agreement (copies of which are on file at the
principal office maintained by the Depositary which at the time of the execution
of the Deposit Agreement was located at 150 Royall Street, Mail Stop: 45-02-62,
Canton, MA 02021 (the "Depositary's Office") and at the office of any agent of
the Depositary) sets forth the rights of holders of Depositary Receipts and the
rights and duties of the Depositary. The statements made on the face and the
reverse of this Depositary Receipt are summaries of certain provisions of the
Deposit Agreement and are subject to the detailed provisions thereof, to which
reference is hereby made. In the event of any conflict between the provisions of
this Depositary Receipt and the provisions of the Deposit Agreement, the
provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein provided, all defined
terms used in this summary of the Deposit Agreement shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption of Stock. Whenever the Company shall elect to redeem
shares of Stock, it shall (unless otherwise agreed in writing with the
Depositary) give the Depositary not less than 60 days' notice of the date of
such proposed redemption and of the number of such shares of Stock held by the
Depositary to be so redeemed and the applicable redemption price. The Depositary
shall mail, first-class postage prepaid, notice of the redemption of Stock, and
the proposed simultaneous redemption of Depositary Shares representing the Stock
to be redeemed, not less than 30 and not more than 60 days prior to the date
fixed for redemption of such Stock and Depositary Shares, to the record holders
or the Depositary Receipts evidencing the Depositary Shares to be so redeemed,
at the addresses of such holders as the same appear on the records of the
Depositary. Any such notice shall also be published in the same manner as
notices of redemption of the Stock are required to be published by the Company.
On the date of such redemption, the Depositary shall redeem the number of
Depositary Shares representing such redeemed Stock, provided, that the Company
shall then have paid or caused to be paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus any accrued and unpaid
dividends payable with respect thereto to the date of any such redemption. In
case fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be determined pro rata or by lot in a
manner determined by the Board of Directors. Notice having been mailed as
aforesaid, from and after the Redemption Date (unless the Company shall have
failed to provide the funds necessary to redeem the shares of Stock evidenced by
the Depositary Shares called for redemption), dividends on the shares of Stock
so called for redemption shall cease to accrue, the Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Depositary Receipts evidencing such Depositary Shares (except the
right to receive the redemption price) shall, to the extent of such Depositary
Shares, cease and terminate. Upon surrender in accordance with said notice of
the Depositary Receipt evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary or applicable law shall so require),
such Depositary Shares shall be redeemed at a redemption price per Depositary
Share equal to the same fraction of the redemption price per share paid with
respect to the shares of Stock as the fraction each Depositary Share represents
of a share of Stock plus the same fraction of all money and other
<PAGE>
property, if any, represented by such Depositary Shares, including all amounts
paid by the Company in respect of dividends which on the Redemption Date have
accumulated on the shares of Stock to be so redeemed and have not theretofore
been paid. The foregoing is subject further to the terms and conditions of the
Articles Supplementary. If fewer than all of the Depositary Shares evidenced by
this Depositary Receipt are called for redemption, the Depositary will deliver
to the holder of this Depositary Receipt upon its surrender to the Depositary,
together with the redemption payment, a new Depositary Receipt evidencing the
Depositary Shares evidenced by such prior Depositary Receipt and not called for
redemption.
4. Surrender of Depositary Receipts and Withdrawal of Stock. Upon
surrender of this Depositary Receipt to the Depositary at the Depositary's
Office or at such other offices as the Depositary may designate, and subject to
the provisions of the Deposit Agreement, the holder hereof is entitled to
withdraw, and to obtain delivery, without unreasonable delay, to or upon the
order of such holder, any or all of the Stock (but only in whole shares of
Stock) and all money and other property, if any, at the time represented by the
Depositary Shares evidenced by this Depositary Receipt; provided, however, that,
in the event this Depositary Receipt shall evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the whole
number of shares of Stock to be withdrawn, the Depositary shall, in addition to
such whole number of shares of Stock and such money and other property, if any,
to be withdrawn, deliver, to or upon the order of such holder, a new Depositary
Receipt or Depositary Receipts evidencing such excess number of whole Depositary
Shares.
5. Transfers, Split-ups, Combinations. Subject to the Deposit
Agreement, this Depositary Receipt is transferable on the books of the
Depositary upon surrender of this Depositary Receipt to the Depositary, properly
endorsed or accompanied by a properly executed instrument of transfer, and upon
such transfer the Depositary shall sign and deliver a Depositary Receipt or
Depositary Receipts to or upon the order of the person entitled thereto, all as
provided in and subject to the Deposit Agreement. This Depositary Receipt may be
split into other Depositary Receipts or combined with other Depositary Receipts
into one Depositary Receipt evidencing the same aggregate number of Depositary
Shares evidenced by the Depositary Receipt or Depositary Receipts surrendered;
provided, however, that the Depositary shall not issue any Depositary Receipt
evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc., of Depositary
Receipts. Prior to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of this Depositary Receipt, the
Depositary, any of the Depositary's Agents or the Company may require any or all
of the following: (i) payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto; (ii) production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the Deposit Agreement.
<PAGE>
7. Suspension of Delivery, Transfer, etc. The deposit of Stock may be
refused, the delivery of this Depositary Receipt against Stock may be suspended,
the registration of transfer of Depositary Receipts may be refused and the
registration of transfer, surrender or exchange of this Depositary Receipt may
be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit
Agreement.
8. Amendment. The form of the Depositary Receipts and any provision of
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment (other
than any changes in the fees of any Depositary or Registrar which shall go into
effect not sooner than three months after Notice thereof to the holders of the
Depositary Receipts) which shall materially adversely alter the rights of
holders of Depositary Receipts shall be effective unless such amendment shall
have been approved by at least a majority of the Depositary Shares then
outstanding. The holder of this Depositary Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold this
Depositary Receipt, to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the owner of the Depositary
Shares evidenced by this Depositary Receipt to surrender this Depositary Receipt
with instructions to the Depositary to deliver to the holder the Stock and all
money and other property, if any, represented hereby, except in order to comply
with mandatory provisions of applicable law.
9. Charges and Expenses. The Company will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangement, except such charges as are expressly provided in the
Deposit Agreement to be at the expense of holders of Depositary Receipts.
10. Title to Depositary Receipts. Title to this Depositary Receipt,
when properly endorsed or accompanied by a properly executed instrument of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in the Deposit Agreement and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to the provisions of the Deposit Agreement, distribute to record holders
of Depositary Receipts such amounts of such sums as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Depositary Receipts held by such holders; provided, however,
that in case the Company or the Depositary shall be required by law to withhold
and does withhold from any cash dividend or other cash distribution in respect
of the Stock an amount on account of
<PAGE>
taxes or as otherwise required by law, regulation or court process, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. In the event that the calculation of any such cash
dividend or other cash distribution to be paid to any record holder on the
aggregate number of Depositary Receipts held by such holder results in an amount
which is a fraction of a cent, the amount the Depositary shall distribute to
such record holder shall be rounded to the next highest whole cent; and upon
request of the Depositary, the Company shall pay the additional amount to the
Depositary for distribution.
12. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose name
Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the record holder of
Depositary Receipts in such manner as the Depositary shall determine.
13. Notice of Dividends, Fixing of Record Date. Whenever (i) any cash
dividend or other cash distribution shall become payable, or any distribution
other than cash shall be made, or any rights, preferences or privileges shall at
the time be offered, with respect to the Stock, or (ii) the Depositary shall
receive notice of any meeting at which holders of Stock are entitled to vote or
of which holders of Stock are entitled to notice or whenever the Depositary and
the Company shall decide it is appropriate, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
holders of Depositary Receipts (x) who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the net proceeds of
the sale thereof, or (y) who shall be entitled to give instructions for the
exercise of voting rights at any such meeting or to receive notice of such
meeting or for any other appropriate reasons.
14. Voting Rights. Upon receipt of notice of any meeting at which the
holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Depositary Receipts a
notice, which shall contain (i) such information as is contained in such notice
of meeting, (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the Stock represented by their respective Depositary Shares, and
(iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of this Depositary Receipt on such
record date the Depositary shall use its best efforts to vote or cause to be
voted the Stock represented by the Depositary Shares evidenced by this
Depositary Receipt in accordance with the instructions set forth in such
request. The Company hereby agrees to take all action that may be deemed
necessary by the Depositary in order to enable the Depositary to vote such Stock
or cause such Stock to be voted. In the absence of specific instructions from
the holder of the Depositary Receipt, the Depositary will abstain from voting to
the extent of the Stock represented by the Depositary Shares evidenced by the
Depositary Receipt.
<PAGE>
15. Reports, Inspection of Transfer Books. The Depositary shall
transmit to the record holders of Depositary Receipts copies of all reports and
communications received from the Company that are received by the Depositary as
the holder of Stock. The Depositary shall keep books at the Corporate Office for
the registration and transfer of Depositary Receipts, which books at all
reasonable times will be open for inspection by the record holders of Depositary
Receipts; provided that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary Shares.
16. Liability of the Depositary, the Depositary's Agents, the Registrar
and the Company. Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall incur any liability to any holder of this
Depositary Receipt, if by reason of any provision of any present or future law
or regulation thereunder or any governmental authority or, in the case of the
Depositary, any Depositary's Agent or the Registrar, by reason of any provision
present or future, of the Articles of Incorporation or by reason of any act of
God or war or other circumstances beyond the control of the relevant party, the
Depositary, any Depositary's Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing that the terms
of the Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, the Registrar or the Company incur any
liability to any holder of this Depositary Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of the Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement except if such exercise or
failure to exercise discretion is caused by its gross negligence or willful
misconduct.
17. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company assumes any obligation or shall be subject to any
liability under the Deposit Agreement or this Depositary Receipt to the holder
hereof or other persons, other than for its gross negligence, willful misconduct
or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding with respect to Stock, Depositary
Shares or Depositary Receipts or Common Stock that in its opinion may involve it
in expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company will be liable for any action or failure to act by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Stock for deposit, any holder of this Depositary Receipt
or any other person believed by it in good faith to be competent to give such
advice or information.
<PAGE>
18. Termination of Deposit Agreement. Whenever so directed by the
Company upon not less than 60 days' prior written notice, the Depositary will
terminate the Deposit Agreement by mailing notice of such termination to the
recordholders of all Depositary Receipts then outstanding not more than 30 days
after the date of such notice. Upon the termination of the Deposit Agreement,
the Company shall be discharged from all obligations thereunder except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.6 and 5.7 of the Deposit Agreement.
19. Governing Law. The Deposit Agreement and this Depositary Receipt
and all rights thereunder and hereunder and provisions thereof and hereof shall
be governed by, and construed in accordance with, the law of the State of New
York without giving effect to principles of conflict of laws.
The following abbreviations, when used in the inscription on
the face of this Depositary Receipt, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN CON - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ___________ Custodian____________
(cust) (minor)
under Uniform Gifts to Minors Act
-----------
(State)
UNIF TRF MIN ACT - ___________ Custodian (until age ___)
(cust)
____________ under Uniform Transfers to
(minor)
to Minors Act ___________
(State)
Additional abbreviations may also be used though not in the
above list.
For Value Received, _____________________ hereby sell, assign
and transfer unto
<PAGE>
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------
- ------------------------------
- ------------------------------
- ------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAMES AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
___________________________ Depositary Shares represented by the within
Depositary Receipt, and do hereby irrevocably constitute and appoint
_______________________________ Attorney to transfer the said Depositary Shares
on the books of the within named Depositary with full power of substitution in
the premises.
Dated ____________________ Signed ____________________________________
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF
THIS DEPOSITARY RECEIPT IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENTOR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED
By: ______________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED
BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM),
PURSUANT TO SEC RULE 17Ad-15.
Exhibit 5
Board of Directors
CarrAmerica Realty Corporation
December 19, 1997
Page 1
HOGAN & HARTSON, L.L.P
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
(202) 637-5910
December 19, 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 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 to be set forth in one or more supplements to
such Prospectus. This opinion letter is rendered in connection with the public
offering of up to 2,000,000 Depositary Shares (the "Depositary Shares"), each
representing a one-tenth (1/10) fractional interest in a share of Series D
Cumulative Redeemable Preferred Stock, par value $.01 per share, of the Company
(the "Series D Preferred Shares"), as described in a Prospectus Supplement dated
December 16, 1997. 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. ss. 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. The Articles of Amendment and Restatement of Articles
of Incorporation of the Company, as amended, as
certified by the the State Department of Assessments
and Taxation of the State of Maryland (the
"Department") on October 30, 1997 and by the
Assistant Secretary of the Company on the date hereof
as then being complete, accurate and in effect.
<PAGE>
Board of Directors
CarrAmerica Realty Corporation
December 19, 1997
Page 2
3. The Articles Supplementary of the Series D Cumulative
Redeemable Preferred Shares, as filed with the
Department on December 18, 1997 and as certified by
the Assistant Secretary of the Company on the date
hereof as then being complete, accurate and in
effect.
4. 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.
5. Executed copies of the Underwriting Agreement dated
December 16, 1997 among the Company and the several
Underwriters named therein, and the Terms Agreement
dated December 16, 1997 among the Company and the
several Underwriters named therein.
6. Deposit Agreement for the Series D Preferred Shares
dated as of December 16, 1997 between the Company
and BankBoston, N.A.
7. Resolutions of the Board of Directors of the Company
adopted on December 12, 1997, and resolutions adopted
by the Pricing Committee of the Board of Directors
adopted on December 16, 1997, relating to the
issuance and sale of the Series D Preferred Shares
and the Depositary 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.
<PAGE>
Board of Directors
CarrAmerica Realty Corporation
December 19, 1997
Page 3
Based upon, subject to and limited by the foregoing, we are of
the opinion that following (i) issuance of the Series D Preferred Shares
pursuant to the terms of the Underwriting Agreement, and (ii) receipt by the
Company of the consideration for the Depositary Shares specified in the
resolutions of the Board of Directors and the Pricing Committee referred to
above, the Series D Preferred Shares will be legally issued, fully paid and
nonassessable under the General Corporation Law of the State of Maryland.
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 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 Prospectus
Supplement dated December 16, 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.
