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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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):
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April 23, 1998
CARRAMERICA REALTY CORPORATION
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(Exact name of registrant as specified in its charter)
Maryland 1-11706 52-1796339
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification Number)
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
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(202) 624-7500
Not applicable
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(Former name or former address, if changed since last report)
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CARRAMERICA REALTY CORPORATION
Item 5. Other Events
On April 23, 1998, the Company entered into an Underwriting
Agreement and related Terms Agreement with Merrill Lynch & Co. relating to the
proposed public offering of 1,178,947 shares of common stock of the Company. In
connection with this offering, Security Capital U.S. Realty agreed to purchase
505,263 shares of common stock of the Company in a concurrent offering at the
public offering price. The closings of these offerings are expected to occur on
April 29, 1998. Copies of the Underwriting Agreement and Terms Agreement
relating to the public offering are filed as exhibits to this report.
Item 7. Exhibits
Exhibits 1.1, 5.1 and 23.1 listed below relate to the Registration
Statement on Form S-3 (No. 333-04519) of the Company. Exhibits 5.2 and 23.2
listed below relate to the Registration Statement on Form S-3 (No. 333-22353) of
the Company. The applicable exhibits are filed herewith for incorporation by
reference in the respective Registration Statements.
1.1 Underwriting Agreement and Terms Agreement, dated as of April 23,
1998, each by and between CarrAmerica Realty Corporation and
Merrill Lynch & Co. (the "Underwriting and Terms Agreements")
5.1 Opinion of Hogan & Hartson L.L.P. regarding legality of shares
related to the Underwriting and Terms Agreements
5.2 Opinion of Hogan & Hartson L.L.P. regarding legality of shares
related to a Subscription Agreement dated as of April 23, 1998 by
and among the Company, Security Capital Holdings, S.A. and
Security Capital U.S. Realty
23.1 Consent of Hogan & Hartson L.L.P. to the filing of Exhibit 5.1
herewith (included in its opinion filed as Exhibit 5.1)
23.2 Consent of Hogan & Hartson L.L.P. to the filing of Exhibit 5.2
herewith (included in its opinion filed as Exhibit 5.2)
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CARRAMERICA REALTY CORPORATION
Date: April 28, 1998 By: /s/ Brian K. Fields
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Brian K. Fields
Chief Financial Officer
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EXHIBIT INDEX
Exhibit Document Page
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1.1 Underwriting Agreement and Terms Agreement,
dated as of April 23, 1998, each by and
between CarrAmerica Realty Corporation and
Merrill Lynch & Co. (the "Underwriting and
Terms Agreements")
5.1 Opinion of Hogan & Hartson L.L.P. regarding
legality of shares related to the Underwriting
and Terms Agreements
5.2 Opinion of Hogan & Hartson L.L.P. regarding
legality of shares related to a Subscription
Agreement dated as of April 23, 1998 by and
among the Company, Security Capital Holdings,
S.A. and Security Capital U.S. Realty
23.1 Consent of Hogan & Hartson L.L.P. to the
filing of Exhibit 5.1 herewith (included in
its opinion filed as Exhibit 5.1)
23.2 Consent of Hogan & Hartson L.L.P. to the
filing of Exhibit 5.2 herewith (included in
its opinion filed as Exhibit 5.2)
Exhibit 1.1
CARRAMERICA REALTY CORPORATION
(a Maryland corporation)
Common Stock, Preferred Stock, Common Stock Warrants,
and Debt Securities
UNDERWRITING AGREEMENT
April 23, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281-1305
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") and (iv) warrants exercisable for
Common Stock ("Common Stock Warrants") with an aggregate public offering price
of up to $600,000,000 (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 and Common Stock Warrants (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"). Each series of Preferred Stock may vary as
to the specific number of shares, title, liquidation preference, issuance price,
ranking, dividend rate or rates (or method of calculation), dividend payment
dates, any redemption or sinking fund requirements, any conversion provisions
and any other variable terms as set forth in the applicable articles
supplementary (each, an "Articles Supplementary") relating to such Preferred
Stock as issued from time to time. Each series of Debt Securities may vary as to
aggregate principal amount, maturity date, interest rate or formula and timing
of payments thereof, redemption or repayment provisions, conversion provisions
and any other variable terms which the Indenture contemplates may be set forth
in the Debt Securities
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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. 333-04519) 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
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thereof (including in each case the information, if any, deemed to be part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations), and each
prospectus supplement relating to the offering of Underwritten Securities
pursuant to Rule 415 of the 1933 Act Regulations (the "Prospectus Supplement"),
including all documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the 1933 Act, the Securities Exchange Act of
1934, as amended (the "1934 Act") or otherwise, are collectively referred to
herein as the "Registration Statement" and the "Prospectus," respectively;
provided that if any revised Prospectus shall be provided to the Representatives
by the Company for use in connection with the offering of Underwritten
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations), the term "Prospectus" shall refer to each such revised
prospectus from and after the time it is first provided to the Representatives
for such use; provided, further, that a Prospectus Supplement shall be deemed to
have supplemented the Prospectus only with respect to the offering of
Underwritten Securities to which it relates. Any registration statement
(including any supplement thereto or information which is deemed part thereof)
filed by the Company 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, 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, pro forma) 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, 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; (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
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acquisitions or transactions entered into by the Company, either
Partnership or any Subsidiary, other than those in the ordinary course of
business, which are material with respect to such entities or would result,
upon consummation, in any material inaccuracy in the representations
contained in Section 1(a)(iv) above; (D) except for regular quarterly
dividends on the Common Stock, and dividends on the Preferred Stock, if
any, and distributions by either of the Partnerships with respect to its
partnership interests ("Units"), there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock or by either of the Partnerships with respect to its Units;
and (E) with the exception of transactions in connection with stock and
Unit options and in connection with dividend reinvestment plans, the
issuance of shares of Common Stock upon the exchange of Units and the
issuance of Units in connection with the acquisition of real or personal
property, there has been no change in the capital stock or in the
partnership interests or membership interests, as the case may be, of the
Company, either of the Partnerships or any Subsidiary, and no increase in
the indebtedness of the Company, either of the Partnerships, or any
Subsidiary, that is material to the Company, the Partnerships and the
Subsidiaries, considered as one enterprise.
(vii) The Company has been duly formed, and is validly existing and
in good standing as a corporation under the laws of Maryland with corporate
power and authority to conduct the business in which it is engaged or
proposes to engage and to own, lease and operate its properties as
described in the Prospectus and to enter into and perform its obligations
under this Agreement, the Terms Agreement, any Warrant Agreement and any
Indenture.
(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
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transactions in connection with stock and Unit options and in connection
with dividend reinvestment plans and exchanges of Units, there are no
outstanding securities convertible into or exchangeable for any capital
stock of the Company and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for such shares, Units
or other securities of the Company, the Partnerships or the Subsidiaries.
(xii) The applicable Underwritten Securities, if such Underwritten
Securities are Common Stock or Preferred Stock, have been duly authorized
by the Company for issuance and sale to the Underwriters pursuant to this
Agreement, and, when issued and delivered by the Company, pursuant to this
Agreement and the applicable Terms Agreement against payment of the
consideration set forth in the Terms Agreement, will be validly issued,
fully paid and non-assessable. Upon payment of the purchase price and
delivery of such Underwritten Securities in accordance herewith, each of
the Underwriters will receive good, valid and marketable title to such
Underwritten Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities. The terms of
such applicable Underwritten Securities conform in all material respects to
all statements and descriptions related thereto contained in the
Prospectus. The form of stock certificate to be used to evidence the
applicable Underwritten Securities will be in due and proper form and will
comply with all applicable legal requirements. The issuance of such
applicable Underwritten Securities is not subject to any preemptive or
other similar rights, except as described in the Prospectus.
(xiii) If applicable, the 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 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
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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 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) (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;.
(xviii) If applicable, the Indenture (A) has been duly qualified
under the 1939 Act, will have been duly and validly authorized, executed
and delivered by the Company prior to the issuance of any applicable
Underwritten Securities, and when
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executed and delivered by the Trustee, will constitute a valid and binding
obligation of the Company, enforceable in accordance with its terms;
provided, however, that the enforceability of the foregoing may be limited
by bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by general equitable principles; and (B)
conforms in all material respects to the description thereof in the
Prospectus.
(xix) None of the Company, the Partnerships or any Subsidiary is in
violation of its charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, or in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which such entity may be
bound, or to which any of its property or assets is subject, which
violation or default separately or in the aggregate would have a Material
Adverse Effect.
(xx) The issuance of the Underwritten Securities, the execution and
delivery of this Agreement, the applicable Terms Agreement, any Warrant
Agreement and any Indenture and the performance of the obligations set
forth herein or therein, and the consummation of the transactions
contemplated hereby and thereby will not (A) result in the creation of any
lien, charge or encumbrance upon the Properties and (B) conflict with or
constitute a breach or violation by the parties thereto of, or default
under, (1) any material contract, indenture, mortgage, loan agreement,
note, lease, joint venture or partnership agreement or other instrument or
agreement to which the Company, either of the Partnerships or any
Subsidiary is a party, or by which they, any of them, any of their
respective properties or other assets or any Property (including, without
limitation, partnership and other interests in partnerships or other
entities which own direct or indirect interests therein) is or may be bound
or subject, (2) the charter, by-laws, certificate of limited partnership,
partnership agreement or other organizational document, as the case may be,
of the Company, the Partnerships or any Subsidiary or (3) any applicable
law, rule, order, administrative regulation or administrative or court
decree.
(xxi) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or 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, 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,
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material to the condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Company, the Partnerships and
the Subsidiaries, considered as one enterprise. There are no contracts or
documents of a character which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations which
have not been filed as exhibits to the Registration Statement.
(xxii) At all times beginning with its taxable period ended
December 31, 1993, the Company has been, and upon the sale of the
applicable Underwritten Securities, the Company will continue to be,
organized and operated in conformity with the requirements for
qualification as a real estate investment trust under the Internal Revenue
Code of 1986, as amended (the "Code"), and its proposed method of operation
will enable it to continue to meet the requirements for taxation as a real
estate investment trust under the Code.
(xxiii) None of the Company, the Partnerships or any Subsidiary is
required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxiv) The Company, the Partnerships and the other Subsidiaries own
or possess the trademarks, service marks and trade names (collectively,
"proprietary rights") that are material to the businesses now operated or
proposed to be operated by them and that are currently employed or proposed
to be employed by them in connection with such businesses, and none of the
Company, the Partnerships or any of the Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any such proprietary rights.
(xxv) All authorizations, approvals or consents of any court or
government authority or agency or other entity or person that are necessary
in connection with the offering, issuance or sale of the Underwritten
Securities hereunder by the Company have been obtained, except such as may
be required under the 1933 Act or the 1933 Act Regulations or state
securities laws with respect to the Underwritten Securities.
(xxvi) Each of the Company, the Partnerships and the Subsidiaries
possesses such certificates, authorizations or permits issued by the
appropriate regulatory agencies or bodies necessary to conduct the business
now conducted by it, or proposed to be conducted by it, and none of the
Company, either of the Partnerships or any Subsidiary has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Company,
the Partnerships and the Subsidiaries considered as one enterprise.
(xxvii) No material labor dispute with the employees of the
Company, either of the Partnerships or any Subsidiary exists or, to the
knowledge of the Company or either of the Partnerships is imminent.
(xxviii) Except as disclosed in the Prospectus, (A) to the
knowledge of the
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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.
As used herein, "Hazardous Substance" shall include any
hazardous substance,
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hazardous waste, toxic or dangerous substance, pollutant,
asbestos-containing materials, PCBs, pesticides, explosives, radioactive
materials, dioxins, urea formaldehyde insulation, pollutant or waste,
including any such substance, pollutant or waste identified, listed or
regulated under any Environmental Law (including, without limitation,
materials listed in the United States Department of Transportation Optional
Hazardous Material Table, 49 C.F.R. ss. 172.101, as the same may now or
hereafter be amended, or in the EPA's List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 3202, as the same may now or
hereafter be amended); "Environment" shall mean any surface water, drinking
water, ground water, land surface, subsurface strata, river sediment,
buildings and structures; "Environmental Law" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act, as amended (42
U.S.C. ss. 9601, et seq.) ("CERCLA"), the Resource Conservation Recovery
Act, as amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as
amended (42 U.S.C. ss. 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. ss. 1251, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. ss. 2601, et seq.), the Toxic Substances Control Act, as amended (29
U.S.C. ss. 651, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. ss. 1801, et seq.), together with all rules, regulations
and orders promulgated thereunder and all other federal, state and local
laws, ordinances, rules, regulations and orders relating to the protection
of the environment from environmental effects; "Governmental Authority"
shall mean any federal, state or local governmental office, agency or
authority having the duty or authority to promulgate, implement or enforce
any Environmental Law; "Lien" shall mean, with respect to any Property, any
material mortgage, deed of trust, pledge, security interest, lien,
encumbrance, penalty, fine, charge, assessment, judgment or other liability
in, on or affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release, emission,
discharge or similar term, as those terms are defined or used in any
Environmental Law.
(xxix) Each of the Company, the Partnerships and the Subsidiaries
has filed all federal, state, local and foreign income and franchise tax
returns which have been required to be filed and each such tax return was
filed on or prior to the date on which such tax return was required to be
filed or, in lieu of such timely filings, each of the Company, the
Partnerships, or the Subsidiaries, as the case may be, has duly and timely
filed such applications for extension as may be required to effect all
necessary extensions (such extensions having been obtained and remaining in
full force and effect) and has paid all taxes shown thereon as due and
payable and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except, in all cases,
for any such tax assessment, fine or penalty that is being contested in
good faith through appropriate proceedings and as to which appropriate
reserves have been established.
(xxx) Except as disclosed in the Registration Statement and except
for (i) persons who received Units or shares of Common Stock in connection
with the formation of the Company, or (ii) persons who received shares of
Common Stock, options to acquire shares of Common Stock or Units in
connection with transactions with the Partnerships or the Company, there
are no persons with registration or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
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(xxxi) Each of the Company, the Partnerships and the Subsidiaries
(or the partnership or other entity owning the Property) has obtained title
insurance insuring good, marketable and lien free title to the Properties
owned by them (other than the Properties in which the applicable entity
owns less than a majority interest), subject only to customary easements
and encumbrances and other exceptions to title which do not materially
impair the operation, development or use thereof for the purposes intended
therefor as contemplated by the Prospectus on each of such Properties.
(xxxii) The Common Stock will be listed on the New York Stock
Exchange on the applicable Representation Date and at the applicable
Closing Time. If so stated in the applicable Prospectus Supplement as of
the applicable Representation Date, the Preferred Stock and Common Stock
Warrants, as applicable, will have been approved for listing on the New
York Stock Exchange upon notice of issuance.
(xxxiii) Unless otherwise agreed to by the Representatives, the
Preferred Stock and Debt Securities will have an investment grade rating
from one or more nationally recognized statistical rating organizations at
the Representation Date and at the applicable Closing Time.
(xxxiv) If the Underwritten Securities are Debt Securities, then
immediately following the application of the proceeds of the sale of the
Underwritten Securities in the manner set forth in the Prospectus, the
mortgages and deeds of trust encumbering the Properties and assets
described in the Prospectus will not be convertible and none of the
partnerships or other entities owning an interest in the Properties nor any
person related to or affiliated with such partnerships or other entities
will hold a participating interest therein and said mortgages and deeds of
trust will not be cross-defaulted or cross-collateralized with any property
not owned directly or indirectly by the Company, the Partnerships or the
Subsidiaries.
(xxxv) Each of the Company, the Partnerships and the Subsidiaries
is insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and none of the Company, the
Partnerships and the Subsidiaries has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its businesses at a cost that would not have a
Material Adverse Effect, except as described in or contemplated by the
Registration Statement and the Prospectus.
(xxxvi) The Company has not taken and will not take, directly or
indirectly, any action prohibited by Regulation M under the 1934 Act.
(xxxvii) The assets of the Company and the Partnerships do not
constitute "plan assets" under the Employee Retirement Income Security Act
of 1974, as amended.
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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 the Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company may grant, if so provided in the applicable Terms Agreement
relating to the Initial Underwritten Securities, an option to the
Underwriters named in such Terms Agreement, severally and not jointly, to
purchase up to the number of Option Securities set forth therein at the
same price per Option Security as is applicable to the Initial Underwritten
Securities. Such option, if granted, will expire 30 days (or such lesser
number of days as may be specified in the applicable Terms Agreement) after
the Representation Date relating to the Initial Underwritten Securities,
and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Initial Underwritten Securities upon
notice by the Representatives to the Company setting forth the number of
Option Securities as to which the several Underwriters are then exercising
the option and the time and date of payment and delivery for such Option
Securities. Any such time, date and place of delivery (a "Date of
Delivery") shall be determined by the Representatives, but shall not be
later than seven full business days nor earlier than two full business days
after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by the Representatives and the Company.
If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Option Securities then
being purchased which the number of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in the
applicable Terms Agreement bears to the total number of Initial
Underwritten Securities (except as otherwise provided in the applicable
Terms Agreement), subject to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of
fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates
for, the Underwritten Securities to be purchased by the Underwriters shall
be made at the offices of Rogers & Wells LLP, 200 Park Avenue, New York,
New York 10166, or at such other place as shall be agreed upon by the
Representatives and the Company at 9:30 a.m. on the fourth business day (or
the third business day if required under Rule 15c6-1 of the 1934 Act, or
unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or at such other time as shall
be agreed upon by the Representatives and the Company (each referred to
herein as a "Closing Time"). In addition, in the event that any or all of
the Option Securities are purchased by the Underwriters, payment of the
purchase price for, and
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delivery of certificates for, such Option Securities shall be made at the
above-mentioned offices of Rogers & Wells LLP, or at such other place as
shall be agreed upon by the Representatives and the Company on each Date of
Delivery as specified in the notice from the Representatives to the
Company. Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Company by wire transfer of Federal or similar
same day funds payable to the order of the Company against delivery to the
Representatives for the respective accounts of the Underwriters of
certificates for the Underwritten Securities to be purchased by them.
Certificates for the Underwritten Securities and the Option Securities, if
any, shall be in such denominations and registered in such names as the
Representatives may request in writing at least two business days before
the Closing Time or the relevant Date of Delivery, as the case may be. It
is understood that each Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Underwritten Securities and the Option Securities,
if any, which it has agreed to purchase. The Representatives, individually
and not as representatives of the Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Underwritten
Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but any such payment shall
not relieve such Underwriter from its obligations hereunder. The
certificates for the Initial Underwritten Securities and the Option
Securities, if any, will be made available for examination and packaging by
the Representatives not later than 10:00 a.m. on the last business day
prior to the Closing Time or the relevant Date of Delivery, as the case may
be, in New York, New York.
SECTION 3. Covenants of the Company. The Company covenants with the
Representatives and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the
Company will prepare a Prospectus Supplement setting forth the number of
Underwritten Securities covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Underwritten Securities
are being issued, the names of the Underwriters participating in the
offering and the number of Underwritten Securities 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
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Rule 424(b) of the 1933 Act Regulations, a copy of an amended Prospectus,
or, if required by such Rule 430A, a post-effective amendment to the
Registration Statement (including amended Prospectuses), containing all
information so omitted. If required, the Company will prepare and file or
transmit for filing a Rule 462(b) Registration Statement not later than the
date of execution of the Terms Agreement. If a Rule 462(b) Registration
Statement is filed, the Company shall make payment of, or arrange for
payment of, the additional registration fee owing to the Commission
required by Rule 111 of the 1933 Act Regulations.
(c) The Company will notify the Representatives immediately, and
confirm such notice in writing, of (i) the effectiveness of any amendment
to the Registration Statement, (ii) the transmittal to the Commission for
filing of any Prospectus Supplement or other supplement or amendment to the
Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of any
comments from the Commission, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose; and the Company will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(d) At any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, the Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether
pursuant to the 1933 Act, 1934 Act or otherwise, will furnish the
Representatives with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing and, unless
required by law, will not file or use any such amendment or supplement or
other documents in a form to which the Representatives or counsel for the
Underwriters shall reasonably object.
(e) The Company will deliver to the Representatives as soon as
available as many signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by reference
therein) as the Representatives may reasonably request and will also
deliver to the Representatives as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including
documents incorporated by reference into the Prospectus) as the
Representatives may reasonably request.
(f) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
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(g) If any event shall occur as a result of which it is necessary,
in the reasonable opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, the Company will forthwith amend or supplement the Prospectus
(in form and substance reasonably satisfactory to counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, and the Company will furnish to the Underwriters
a reasonable number of copies of such amendment or supplement.
(h) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities for offering and sale
under the applicable securities laws and real estate syndication laws of
such states and other jurisdictions as the Representatives may designate;
provided, however, that the Company shall not be obligated to (i) qualify
as a foreign corporation in a jurisdiction it is not so qualified, (ii)
file any general consent to service of process or (iii) take any actions
that would subject it to income taxation in any such jurisdiction. In each
jurisdiction in which the Underwritten Securities have been so qualified,
the Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for so
long as may be required for the distribution of the Underwritten
Securities.
(i) With respect to each sale of Underwritten Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month
period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
(j) The Company will use the net proceeds received by it from the
sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(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.
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(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 Merrill Lynch, Pierce, Fenner & Smith Incorporated,
directly or indirectly, sell, offer to sell, transfer, hypothecate, grant
any option for the sale of, or otherwise dispose of, (i) any securities of
the same class or series or ranking on a parity with any Underwritten
Securities (other than the Underwritten Securities covered by such
Prospectus Supplement) or any security convertible into or exchangeable for
such Underwritten Securities and (ii) if such Prospectus Supplement relates
to Common Stock Warrants or Debt Securities or Preferred Stock that is
convertible into or exchangeable for Common Stock, any Common Stock or
Units or any security convertible into or exchangeable for shares of Common
Stock. This transfer restriction does not apply to (i) grants of options,
and the issuance of shares in respect of such options; (ii) the issuance of
shares and units pursuant to a dividend reinvestment plan or stock purchase
plan; (iii) the issuance of Common Stock on the exchange of Units; and (iv)
the issuance of shares of Common Stock, or any security convertible into or
exchangeable or exercisable for Common Stock, in connection with the
acquisition of real property or an interest or interests in real property.
(p) With respect to the Common Stock issuable on exercise of Common
Stock Warrants and the conversion of any Debt Securities and Preferred
Stock if such securities are convertible into Common Stock, the Company
will reserve and keep available at all times, free of preemptive rights and
other similar rights, a sufficient number of shares of Common Stock for the
purpose of enabling the Company to satisfy any obligations to issue such
Common Stock upon exercise of the Common Stock Warrants and conversion of
the Debt Securities or Preferred Stock.
(q) With respect to the Common Stock issuable on exercise of Common
Stock Warrants and the conversion of any Debt Securities and Preferred
Stock if such securities are convertible into Common Stock, the Company
will use its best efforts to list such Common Stock on the New York Stock
Exchange.
(r) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
(s) During the period from the Closing Time until five years after
the Closing Time, the Company will deliver to the 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.
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SECTION 4. Payment of Expenses. The Company and the Partnerships will
pay all expenses incident to the performance of their obligations under this
Agreement and the applicable Terms Agreement, including (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto; (ii) the cost of printing, or reproducing, and distributing to the
Underwriters copies of this Agreement and the applicable Terms Agreement; (iii)
the preparation, issuance and delivery of the Underwritten Securities to the
Underwriters, including capital duties, stamp duties and stock transfer taxes,
if any, payable upon issuance of any of the Underwritten Securities, the sale of
the Underwritten Securities to the Underwriters, their transfer between the
Underwriters pursuant to an agreement between such Underwriters and the fees and
expenses of the transfer agent for the Underwritten Securities; (iv) the fees
and disbursements of the Company's and Partnerships' counsel and accountants;
(v) the qualification of the Underwritten Securities and the Common Stock
issuable upon exercise of Common Stock Warrants and conversion of Debt
Securities or Preferred Stock, if any, under securities laws and real estate
syndication laws in accordance with the provisions of Section 3(h) hereof,
including filing fees and the fees and disbursements of counsel for the
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 and the Warrant Agent, including the reasonable fees and
disbursements of counsel for the Trustee or Warrant Agent, in connection with
the Warrant Agreement, Indenture and the Underwritten Securities; (xiii) the
preparation, issuance and delivery to the Depository Trust Company for credit to
the accounts of the respective Underwriters of any global note registered in the
name of Cede & Co., as nominee for the Depository Trust Company; and (xiv) any
transfer taxes imposed on the sale of the Underwritten Securities to the several
Underwriters.
If this Agreement shall be terminated pursuant to Section 10 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 4 and 6 hereof; but, if for any other reason, any
Underwritten Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Underwritten Securities
not so delivered, but the Company shall then be under no further liability to
any Underwriter except as provided in Sections 4 and 6 hereof.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy, as of the date hereof
and at Closing Time, of the representations and warranties of the Company herein
contained, to the performance by the Company of its obligations hereunder, and
to the following further conditions:
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(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 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, existing and
in good standing as of the date of the certificate
identified elsewhere in the opinion letter under the laws
of the State of Maryland. The Company has the corporate
power and corporate authority under its charter and the
Maryland Corporation Law to own, lease and operate its
properties, to execute and deliver, and perform its
obligations under, the Underwriting Agreement, the
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applicable Terms Agreement, any Warrant Agreement and any
Indenture; and to conduct its business as described in the
Prospectus. The Company is authorized to transact business
as a foreign corporation in those states in which the
Company owns Properties either directly or through a
partnership in which the Company is a general partner, as
of the dates of the certificates identified elsewhere in
the opinion letter.
(ii) Each of the Partnerships is a limited
partnership formed, existing and in good standing as of the
date of its respective certificate identified elsewhere in
the opinion letter, under the Delaware Revised Uniform
Limited Partnership Act (the "Delaware Act"). Each
Partnership has the partnership power and partnership
authority under its partnership agreement and under the
Delaware Act to own, lease and operate its properties and
to conduct its business as described in the Prospectus and
to perform its obligations under this Agreement and any
Terms Agreement. Each of the Partnerships is qualified or
registered as a foreign partnership, as of the dates of the
certificates identified elsewhere in the opinion letter, in
those states in which such Partnership owns Properties.
(iii) Each of CarrAmerica GP Holdings, Inc.,
Carr Real Estate Services, Inc. and Carr Development &
Construction, Inc. (collectively, the "Significant
Subsidiaries") was incorporated, existing and in good
standing as of the date of its respective certificate
identified elsewhere in the opinion letter under the
Delaware General Corporation Law. Each of the Significant
Subsidiaries has the corporate power and corporate
authority under its charter and the Delaware General
Corporation Law to own, lease and operate its properties
and to conduct its business as described in the Prospectus.
(iv) The capital stock of the Company, as of
the date specified in the Prospectus, was as set forth in
the Prospectus under the caption "Capitalization." To the
knowledge of such counsel, (A) except for shares reserved
for issuance upon the redemption of Units and upon
conversion of outstanding securities convertible into
shares of Common Stock or as otherwise disclosed in the
Registration Statement, no shares of capital stock of the
Company are reserved for any purpose. To the knowledge of
such counsel, except as described in the Prospectus, and
except in connection with stock or Unit options and in
connection with dividend reinvestment plans and the
possible issuance of shares of Common Stock upon the
redemption of Units or as otherwise disclosed in the
Registration Statement, there are no outstanding securities
convertible into or exchangeable for any shares of capital
stock of the Company, and no outstanding options, rights or
warrants to purchase or to subscribe for such shares or any
other securities of the Company or either of the
Partnerships. No holder of outstanding shares of Common
Stock has any preemptive rights described in Section
2-205(a) of the MGCL, or, to the knowledge of such counsel,
any contractual right to subscribe for any such shares,
except as set forth in the Prospectus.
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(v) The applicable Underwritten Securities, if
such Underwritten Securities are Common Stock or Preferred
Stock, have been duly authorized by the Company for
issuance and sale to the Underwriters pursuant to this
Agreement, and, when issued and delivered by the Company,
pursuant to this Agreement and the applicable Terms
Agreement against payment of the consideration set forth in
the Terms Agreement, will be validly issued, fully paid and
non-assessable under the MGCL. The form of stock
certificate to be used to evidence the applicable
Underwritten Securities is in due and proper form and
complies with all applicable legal requirements.
(vi) The 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 the
applicable Terms Agreement, and, when issued and delivered
in the manner provided for in this Agreement and any Terms
Agreement and countersigned by the Warrant Agent as
provided in the Warrant Agreement against payment of the
consideration set forth in the Terms Agreement, will be
duly executed, countersigned, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Warrant
Agreement under which they are to be issued. The issuance
of the Common Stock Warrants is not subject to any
preemptive rights described in Section 2-205(a) of the
MGCL, or, to the knowledge of such counsel, and except as
described in the Prospectus, any contractual right to
subscribe for or purchase any such Common Stock Warrants or
Common Stock.
(vii) The applicable Underwritten Securities,
if such Underwritten Securities are Debt Securities, are in
the form contemplated in the Indenture, have been duly
authorized by the Company for issuance and sale to the
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 and such Debt Securities will be
enforceable against the Company in accordance with their
terms. Such Underwritten Securities rank and will rank on a
parity with all unsecured indebtedness (other than
subordinated indebtedness of the Company that is
outstanding on the Representation Date or that may be
incurred thereafter) and senior to all subordinated
indebtedness of the Company that is outstanding on the
Representation Date or that may be incurred thereafter,
except that such Underwritten Securities will be
effectively subordinated to the prior claims of each
secured mortgage lender to any specific Property which
secures such lender's mortgage.
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<PAGE>
(viii) If applicable, the Common Stock issuable
upon exercise of the Common Stock Warrants or upon
conversion of the Debt Securities or Preferred Stock will
have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary
action and such stock, when issued upon such conversion or
exercise, will be duly and validly issued, fully paid and
non-assessable, and the issuance of such stock upon such
conversion or exercise will not be subject to any
preemptive rights described in Section 2-205(a) of the
MGCL, or, to the knowledge of such counsel, and except as
described in the Prospectus, any contractual right to
subscribe for or purchase any Common Stock.
(ix) Each of this Agreement and the applicable
Terms Agreement was duly executed and delivered on behalf
of the Company.
(x) The applicable Warrant Agreement, if any,
has been duly executed and delivered by the Company, and
(assuming due authorization, execution and delivery by the
Warrant Agent) constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with
its terms.
(xi) The Indenture has been duly qualified
under the 1939 Act and has been duly executed and delivered
by the Company, and, assuming due authorization, execution
and delivery by the Trustee, constitutes a valid and
binding obligation of the Company, enforceable in
accordance with its terms. The Indenture conforms in all
material respects to the descriptions thereof contained in
the Prospectus.
(xii) The execution, delivery and performance
as of the date hereof of the Underwriting Agreement, the
applicable Terms Agreement, any Warrant Agreement, any
Indenture, any Deposit Agreement and, if applicable, the
Underwritten Securities, by the Company does not (i) breach
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease,
joint venture or partnership agreement or other instrument
or agreement which has been filed as an exhibit to the
Registration Statement, or (ii) violate the charter or
by-laws of the Transaction Entities.
(xiii) None of the Company or either of the
Partnerships is an investment company as such term is
defined under the 1940 Act.
(xiv) No consent, approval, authorization or
filing with any federal or Maryland or Delaware state
governmental agency or authority is
23
<PAGE>
required in connection with the offering, issuance or sale
of the applicable Underwritten Securities to the
Underwriters in connection with this Agreement or the
applicable Terms Agreement, except such as may be required
under the federal securities laws (certain matters with
respect to which are addressed elsewhere in the opinion) or
state or foreign securities laws or real estate syndication
laws (as to which such counsel need express no opinion), or
such as have been received or made.
(xv) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3 under the 1933 Act (other than the
financial statements and related schedules and financial
information and data included therein or omitted therefrom,
as to which no opinion need be rendered), at the time they
were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and
the 1934 Act Regulations.
(xvi) The Registration Statement is effective
under the 1933 Act and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act
or proceedings therefor initiated or threatened by the
Commission.
(xvii) At the time the Registration Statement
became effective and at the Representation Date, (A) the
Registration Statement and the Prospectus (except for the
financial statements and supporting schedules and financial
information and data included or incorporated by reference
therein or omitted therefrom, as to which no opinion need
be rendered) complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations.
(xviii) The statements made in the Prospectus
under the headings entitled "Description of Debt
Securities," "Description of Preferred Stock," "Description
of Common Stock," "Description of Common Stock Warrants,"
and the information in the applicable Prospectus Supplement
under similar specified sections to the extent that they
describe matters of law or legal conclusions, have been
reviewed by them and is correct in all material respects.
(xix) To the knowledge of such counsel, except
as otherwise described in the Registration Statement or in
the agreements referred to in an exhibit to such opinion,
there are no persons with registration or other similar
rights to have any securities registered under the
Registration Statement, or to require the Company to file
any other registration statement, as a result of the offer
and sale of the Underwritten Securities.
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<PAGE>
The opinions rendered pursuant to clauses (vii), (x)
and (xi) above may be subject to exceptions regarding
bankruptcy and similar laws, general principles of equity and
other customary exceptions reasonably acceptable to counsel for
the Underwriters.
(2) [INTENTIONALLY OMITTED]
(3) The favorable opinion, dated as of the
applicable Closing Time, of Rogers & Wells LLP, counsel to the
Underwriters, in form and substance satisfactory to the
Underwriters.
(4) In giving their opinions required by subsections
(b)(1) and (b)(3), respectively, of this Section, Hogan &
Hartson L.L.P. and Rogers & Wells LLP shall additionally state
that such counsel has participated in conferences with officers
and other representatives of the Company and the independent
public accountants for the Company at which the contents of the
Registration Statement and the Prospectus and related matters
were discussed and in the preparation of the Registration
Statement and the Prospectus and, on the basis of the
foregoing, nothing has come to their attention that would lead
them to believe that either the Registration Statement or any
amendment thereto (excluding the financial statements and
financial schedules and financial information and data included
or incorporated by reference therein or the Statement of
Eligibility, as to which such counsel need express no belief),
at the time it became effective or at the time an Annual Report
on Form 10-K was filed by the Company with the Commission
(whichever is later), or at the Representation Date, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (excluding
the financial statements or financial schedules and financial
information and data included or incorporated by reference
therein or the Statement of Eligibility, as to which such
counsel need express no belief), at the Representation Date or
at the Closing Time, included or includes an untrue statement
of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading.
In giving their opinions, Hogan & Hartson L.L.P. and
Rogers & Wells LLP may rely upon, or assume the accuracy of,
(A) as to all matters of fact, certificates and written
statements of officers and employees of and accountants for
each of the Company, the Partnerships and the Significant
Subsidiaries and (B) as to the qualification and good standing
of each of the Company, the Partnerships and the Significant
Subsidiaries to do business in any jurisdiction, certificates
of appropriate government officials or opinions of counsel in
such jurisdictions.
Hogan & Hartson L.L.P. shall additionally state that
the Underwriters may rely on their opinion addressed to the
Company, and attached to the Registration Statement as Exhibit
8.1, as if such opinion were addressed to them.
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<PAGE>
(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 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
26
<PAGE>
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.
(g) At Closing Time and at each Date of Delivery, if
any, counsel for the Underwriter shall have been furnished with
such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale
of
27
<PAGE>
the applicable Underwritten Securities as contemplated
herein, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the
applicable Underwritten Securities as herein contemplated shall
be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriter.
(h) At Closing Time, the Representatives shall have
received a letter agreement from Security Capital Holdings
S.A., wherein Security Capital Holdings S.A. shall agree that
during the period specified in the applicable Prospectus
Supplement they and their affiliates will not, without the
prior written consent of Merrill Lynch, Pierce, Fenner & Smith
Incorporated and the Company (which consent, in the case of the
Company, will be subject to the approval of the Company's
unaffiliated directors), directly or indirectly, sell, offer to
sell, grant any option for the sale of, enter into any
agreement to sell, or otherwise dispose of, (i) any securities
of the same class or series or ranking on a parity with any
Underwritten Securities or any security convertible into or
exchangeable for shares of such Underwritten Securities, and
(ii) if such Prospectus Supplement relates to Common Stock
Warrants or Debt Securities or Preferred Stock that is
convertible into or exchangeable for Common Stock, any Common
Stock or Units or any security convertible into or exchangeable
for shares of Common Stock. Such transfer restrictions do not
apply to transfers to members of the family of such director or
executive officer (or an entity for their benefit), or to the
granting of a bona fide security interest to a secured party.
Any transferees of such shares, Units or other securities will
be likewise prohibited from making any transfer of shares,
Units or other securities.
(i) In the event that the Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or
any portion of the Option Securities, the representations and
warranties of the Company contained herein and the statements
in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representatives shall have
received:
(1) A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the
Company confirming that their respective certificates
delivered at Closing Time pursuant to Section 5(c) hereof
remain true and correct as of such Date of Delivery.
(2) The favorable opinion of Hogan & Hartson
L.L.P. in form and substance satisfactory to counsel for
the Underwriter, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinions
required by Section 5(b)(1) hereof (including the statement
of belief required by Section 5(b)(4) hereof).
(3) The favorable opinion of Rogers & Wells
LLP, counsel for the Underwriter, dated such Date of
Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(b)(3) hereof.
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<PAGE>
(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 Merrill Lynch, Pierce,
Fenner & Smith Incorporated expressly for use under the caption "Plan of
Distribution" or "Underwriting" in the Registration Statement (or any amendment
thereto) or such preliminary prospectus, preliminary prospectus supplement or
the Prospectus or Prospectus Supplement (or any amendment or supplement
thereto).
(b) 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
29
<PAGE>
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 Merrill Lynch, Pierce, Fenner & Smith
Incorporated expressly for use under the caption "Plan of Distribution" or
"Underwriting" in the Registration Statement (or any amendment thereto) or such
preliminary prospectus, preliminary prospectus supplement or the Prospectus or
Prospectus Supplement (or any amendment or supplement thereto); and will
reimburse the Company or CarrAmerica L.P., as the case may be, for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, The indemnifying party will not be
liable to such indemnified party under this Section 6 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
6, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party. 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
30
<PAGE>
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Underwritten Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and CarrAmerica L.P. on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Underwritten Securities (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it pursuant to
the applicable Terms Agreement and distributed to the public were offered to the
public exceeds the amount of any damages which the Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel in accordance with the
31
<PAGE>
provisions hereof, such indemnifying party agrees that it shall be liable for
any settlement with respect to any losses, claims, damages or liabilities of the
nature contemplated by Section 6(a) and 6(b) effected without its written
consent if (i) such settlement is entered into in good faith by the indemnified
party more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(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.
32
<PAGE>
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 material adverse change
in the condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects 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:
33
<PAGE>
(a) if the number of Defaulted Securities does not exceed 10%
of the Underwritten Securities to be purchased pursuant to such Terms
Agreement, each of the non-defaulting Underwriters named in such Terms
Agreement shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement, each of the Representatives or the Company
shall have the right to postpone Closing Time for a period not 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 Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Merrill Lynch World
Headquarters, North Tower, World Financial Center, New York, New York
10281-1201, attention of Martin J. Cicco; notices to the Company shall be
directed to 1700 Pennsylvania Avenue, N.W., Washington, D.C. 20006, attention of
Thomas A. Carr.
SECTION 12. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the parties hereto and
their respective successors. Nothing expressed or mentioned in this Agreement or
the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Section 6 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or the applicable Terms Agreement or any
provision herein or therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time. This Agreement and the Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
34
<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:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ John C. Brady
---------------------------
Name: John C. Brady
Title: Authorized Signatory
<PAGE>
Exhibit A
CARRAMERICA REALTY CORPORATION
(a Maryland Corporation)
[Number and Title of Securities]
TERMS AGREEMENT
Dated: [________], 199[__]
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
[__________ of its] [shares of common stock (the "Common Stock")] [shares of
preferred stock (the "Preferred Stock")] [_________ aggregate principal amount
of its unsecured debt securities (the "Debt Securities")] (such [Common Stock],
[Preferred Stock] and [Debt Securities] 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.
A-1
<PAGE>
Underwriter [Number of Shares]
[Principal Amount]
Of Initial
Underwritten Securities
--------
Total $
========
The Underwritten Securities shall have the following terms:
[Common Stock] [Preferred Stock]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if any, from ,
199 .] Purchase price per share: $ [, plus accumulated dividends, if any, from ,
199 .] [Conversion provisions:] [Voting and other rights:] Number of Option
Securities, if any, that may be purchased by the Underwriters: Additional
co-managers, if any: Other terms: Closing time, date and location:
The Underwritten Securities shall have the following terms:
[Debt Securities]
Title of Securities:
Currency:
Principal amount to be issued:
Current ratings: Moody's Investors Service, Inc. ______;
Standard & Poor's Corporation ______; [other rating agencies];
Interest rate or formula:
Interest payment dates:
Interest reset dates:
Interest determination date:
Stated maturity date:
Redemption or repayment provisions:
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
A-2
<PAGE>
Minimum contract:
Maximum aggregate principal amount:
Fee: ___%]
[Initial public offering price: ___%, plus accrued interest,
if any, or amortized original issue discount, if any, from
19__.]
Purchase price: ___%, plus accrued interest, if any, or
amortized original issue discount, if any, from
____________, 19__ (payable in [same] [next] day funds).
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "CarrAmerica Realty Corporation -- Common Stock, Preferred Stock,
Common Stock Warrants and Debt Securities Underwriting Agreement" are
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.
A-3
<PAGE>
Please accept this offer no later than [_____] o'clock P.M. (New York
City time) on [_____] by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
[OTHER REPRESENTATIVES]
By: MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By:
----------------------------------
For themselves and as
Representatives of the other
named Underwriters.
Accepted:
CARRAMERICA REALTY CORPORATION
By:
-----------------
Name:
Title:
A-4
<PAGE>
CARRAMERICA REALTY CORPORATION
(a Maryland Corporation)
1,178,947 Common Shares
TERMS AGREEMENT
April 23, 1998
TO: CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Underwriter") understand that CarrAmerica Realty Corporation,
a Maryland corporation (the "Company"), proposes to issue and sell 1,178,947
shares of common stock (the "Common Stock") (such Common Stock being hereinafter
referred to as the "Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriter named
below offers to purchase the Initial Underwritten Securities, to the extent any
are purchased, at the purchase price set forth below.
<PAGE>
The Underwritten Securities shall have the following terms:
Title of Securities: Common Stock
Number of Shares: 1,178,947
Public offering price per share: $29.6875
Purchase price per share: $28.1289
Number of Option Shares: 0
Underwriter: Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
Underwriter's Counsel: Rogers & Wells LLP
Additional Terms: The
Company is advised that
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated proposes
to deposit shares of
Common Stock with the
trustee of the Equity
Investor Fund Cohen &
Steers Realty Majors
Portfolio (A Unit
Investment Trust) (the
"Trust"), a registered
unit investment trust
under the Investment
Company Act of 1940, as
amended, for which the
Underwriter acts as
sponsor and depositor,
in exchange for units
in the Trust as soon
after the execution and
delivery hereof as in
the judgment of Merrill
Lynch, Pierce, Fenner &
Smith Incorporated is
advisable.
Closing Time, date and location: April 29, 1998, 10:00
a.m., New York City
Time, Rogers & Wells
LLP, 200 Park Avenue,
New York, New York
10166
The Underwriter proposes to deposit the Common Stock with the trustee
of the Trust in exchange for units in the Trust as soon after the execution and
delivery hereof as in the judgment of the Underwriter is advisable.
All the provisions contained in the document attached as Annex A hereto
entitled "CarrAmerica Realty Corporation -- Common Stock, Preferred Stock,
Common Stock Warrants and Debt Securities Underwriting Agreement" are
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; provided, however, that the words "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" contained in Section 9(a) therein are replaced by the words
"impracticable or inadvisable to (x) proceed with the public offering or the
delivery of the Underwritten Securities on the terms and in the manner
contemplated in the Prospectus, or (y) commence or continue the offering of the
units of the Trust to the public or enforce contracts for the sale of the units
of the Trust." Terms defined in such document are used herein as therein
defined.
2
<PAGE>
Please accept this offer no later than 6:30 o'clock P.M. (New York City
time) on April 23, 1998 by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BY: /s/ John C. Brady
----------------------------
Name: John C. Brady
Title: Authorized Signatory
CONFIRMED AND ACCEPTED:
as of the date first above written
CARRAMERICA REALTY CORPORATION
BY: /s/ Brian K. Fields
-------------------------
Name: Brian K. Fields
Title: Chief Financial Officer
Exhibit 5.1
HOGAN & HARTSON L.L.P
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
(202) 637-5910
April 27, 1998
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. 333-04519) (the "Registration Statement") previously
declared effective by the Securities and Exchange Commission (the "Commission")
relating to the proposed public offering and sale by the Company of its
securities from time to time as set forth in the prospectus which forms a part
of the Registration Statement, and as set forth any supplements to such
Prospectus. This opinion letter is rendered in connection with the proposed
public offering of 1,178,947 shares of common stock, par value $.01 per share
(the "Shares"), of the Company, as described in a Prospectus Supplement dated
April 23, 1998 and filed with the Commission under Rule 424(b)(5). 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 Statements.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. Executed copy of the Registration Statement.
2. The Articles of Amendment and Restatement of Articles of
Incorporation of the Company, as amended and as
supplemented, as certified by the State Department of
Assessments and Taxation of the State of Maryland (the
"Department") on April 17, 1998 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
April 27, 1998
Page 2
3. The Second Amendment and Restatement of Bylaws of the
Company, as amended, as certified by the Assistant
Secretary of the Company on the date hereof as then being
complete, accurate and in effect.
4. Executed copies of the Underwriting Agreement and the Terms
Agreement, both dated as of April 23, 1998, between the
Company and Merrill Lynch & Co.
5. Resolutions of the Board of Directors of the Company
adopted on February 5, 1998, and resolutions of a Pricing
Committee of the Board of Directors adopted on April 23,
1998, relating to the issuance and sale of the Shares and
arrangements in connection therewith, as certified by the
Assistant Secretary of the Company on the date hereof as
then being complete, accurate and in effect.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the General
Corporation Law of the State of Maryland. We express no opinion herein as to any
other laws, statutes, regulations or ordinances.
Based upon, subject to and limited by the foregoing, we are of the
opinion that following (i) issuance of the Shares pursuant to the terms of the
Underwriting Agreement and the Terms Agreement referred to above, and (ii)
receipt by the Company of the consideration for the Shares specified in the
resolutions of the Board of Directors and the Pricing Committee referred to
above, the 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 or about the date of this opinion letter, which Form 8-K will be
incorporated by reference into the Registration Statements. 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.
<PAGE>
Board of Directors
CarrAmerica Realty Corporation
April 27, 1998
Page 3
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 April 23, 1998 and in the Prospectus Supplement also
dated April 23, 1998, 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.
Exhibit 5.2
HOGAN & HARTSON L.L.P
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
(202) 637-5910
April 27, 1998
BY EDGAR
Board of Directors
CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Ladies and Gentlemen:
We are acting as counsel to CarrAmerica Realty Corporation, a Maryland
corporation (the "Company"), in connection with its registration statement on
Form S-3 (SEC File No. 333-22353) (the "Registration Statement") previously
declared effective by the Securities and Exchange Commission (the "Commission")
relating to the proposed public offering and sale by the Company of its
securities from time to time as set forth in the prospectus which forms a part
of the Registration Statement, and as set forth any supplements to such
Prospectus. This opinion letter is rendered in connection with the proposed
public offering of 505,263 shares of common stock, par value $.01 per share (the
"Shares"), of the Company, as described in a Prospectus Supplement dated April
23, 1998 and filed with the Commission under Rule 424(b)(5). 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 Statements.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. Executed copy of the Registration Statement.
2. The Articles of Amendment and Restatement of Articles of
Incorporation of the Company, as amended and as
supplemented, as certified by the State Department of
Assessments and Taxation of the State of Maryland (the
"Department") on April 17, 1998 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
April 27, 1998
Page 2
3. The Second Amendment and Restatement of Bylaws of the
Company, as amended, as certified by the Assistant
Secretary of the Company on the date hereof as then being
complete, accurate and in effect.
4. An executed copy of the Subscription Agreement, dated as of
April 23, 1998, by and among the Company, Security Capital
Holdings, S.A.
and Security Capital U.S. Realty.
5. Resolutions of the Board of Directors of the Company
adopted on February 5, 1998, and resolutions of a Pricing
Committee of the Board of Directors adopted on April 23,
1998, relating to the issuance and sale of the Shares and
arrangements in connection therewith, as certified by the
Assistant Secretary of the Company on the date hereof as
then being complete, accurate and in effect.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the General
Corporation Law of the State of Maryland. We express no opinion herein as to any
other laws, statutes, regulations or ordinances.
Based upon, subject to and limited by the foregoing, we are of the
opinion that following (i) issuance of the Shares pursuant to the terms of the
Subscription Agreement referred to above, and (ii) receipt by the Company of the
consideration for the Shares specified in the resolutions of the Board of
Directors and the Pricing Committee referred to above, the 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 or about the date of this opinion letter, which Form 8-K will be
incorporated by reference into the Registration Statements. 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.
<PAGE>
Board of Directors
CarrAmerica Realty Corporation
April 27, 1998
Page 3
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 April 2, 1998 and in the Prospectus Supplement dated
April 23, 1998, 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.
