Exhibit 1.1
CARRAMERICA REALTY CORPORATION
(a Maryland corporation)
Common Stock, Preferred Stock, Common Stock Warrants, Debt Warrants,
Depositary Shares and Debt Securities
UNDERWRITING AGREEMENT
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January 8, 2002
X.X. XXXXXX SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
CarrAmerica Realty Corporation (the "Company") may from time to time offer
in one or more series its (i) unsecured debt securities ("Debt Securities"),
(ii) preferred stock, $.01 par value ("Preferred Stock"), (iii) common stock,
$.01 par value ("Common Stock"), (iv) warrants exercisable for Common Stock
("Common Stock Warrants"), (v) warrants exercisable for Debt Securities ("Debt
Warrants" and, together with Common Stock Warrants, "Warrants") and (vi) shares
of Preferred Stock represented by depositary shares ("Depositary Shares"), with
an aggregate public offering price of up to $1,000,000,000 (or its equivalent in
another currency based on the exchange rate at the time of sale) in amounts, at
prices and on terms to be determined at the time of offering. The Debt
Securities, Preferred Stock, Common Stock, Warrants, and Depositary Shares
(collectively, the "Securities") may be offered, separately or together, in
separate series in amounts, at prices and on terms to be set forth in one or
more Prospectus Supplements as hereinafter defined. The Warrants will be issued
pursuant to a Warrant Agreement (the "Warrant Agreement") between the Company
and a warrant agent (the "Warrant Agent"). The Debt Securities will be issued
under one or more indentures, as amended or supplemented (each, an "Indenture"),
between the Company and a trustee (a "Trustee"). The Debt Securities may be
guaranteed (the "Guarantees") as to payments of principal, interest and premium,
if any, by CarrAmerica Realty, L.P. (the "Guarantor"). The Company may issue
receipts for the Depositary Shares, each of which will represent a fractional
interest of a share of a particular series of Preferred Stock. Shares of
Preferred Stock of each series represented by Depositary Shares will be
deposited under a separate deposit agreement (each a "Deposit Agreement") among
the Company, the depositary named therein and the holders from time to time of
receipts for the Depositary Shares. Each series of Preferred Stock may vary as
to the specific number of shares, title, liquidation preference, issuance price,
ranking, dividend rate or rates (or method of calculation), dividend payment
dates, any redemption or sinking fund requirements, any conversion provisions
and any other variable terms as set forth in the applicable articles
supplementary (each, an "Articles Supplementary") relating to such Preferred
Stock as issued from time to time. Each series of Debt Securities may vary as to
aggregate principal amount, maturity date, interest rate or formula and timing
of payments thereof, redemption or repayment provisions, conversion provisions
and any other variable terms which the Indenture contemplates may be set forth
in the Debt Securities as issued from time to time. As used herein, "the
Representatives," unless the context otherwise requires, shall mean the parties
to whom this Agreement is addressed together with the other parties, if any,
identified in the applicable Terms Agreement (as hereinafter defined) as
additional co-managers with respect to Underwritten Securities (as hereinafter
defined) purchased pursuant thereto.
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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 9
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 9 hereof), the
amount of Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, the names of such of the Representatives or such other
Underwriters acting as co-managers, if any, in connection with such offering,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, if any, of
the Initial Underwritten Securities, the time and place of delivery and payment
and any other variable terms of the Initial Underwritten Securities (including,
but not limited to, current ratings, designations, liquidation preferences,
voting and other rights, denominations, interest rates or formulas, interest
payment dates, maturity dates and conversion, redemption or repayment provisions
applicable to the Initial Underwritten Securities). In addition, each Terms
Agreement shall specify whether the Underwriters will be granted an option to
purchase additional Underwritten Securities to cover over-allotments, if any,
and the aggregate amount of Underwritten Securities subject to such option (the
"Option Securities"). As used herein, the term "Underwritten Securities" shall
include the Initial Underwritten Securities and all or any portion of the Option
Securities agreed to be purchased by the Underwriters as provided herein, if
any. The Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between the Representatives and the Company. Each offering of
Underwritten Securities through the Representatives or through an underwriting
syndicate managed by the Representatives will be governed by this Agreement, as
supplemented by the applicable Terms Agreement.
The Company and the Guarantor have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-53751) for the registration of the Securities and the Guarantees under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 430A or Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company and the Guarantor have filed such amendments thereto as may have
been required prior to the execution of the applicable Terms Agreement. Such
registration statement (as amended, if applicable) has been declared effective
by the Commission and an Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Such registration statement and the
prospectus constituting a part thereof (including in each case the information,
if any, deemed to be part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations), and each prospectus supplement relating to the offering of
Underwritten Securities pursuant to Rule 415 of the 1933 Act Regulations (the
"Prospectus Supplement"), including all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the 1933
Act, the Securities Exchange Act of 1934, as amended (the "1934 Act") or
otherwise, are collectively referred to herein as the "Registration Statement"
and the "Prospectus," respectively; provided that if any revised Prospectus
shall be provided to the Representatives by the Company for use in connection
with the offering of Underwritten Securities which differs from the Prospectus
on file at the Commission at the time the Registration Statement becomes
effective (whether or not such revised prospectus is required to be filed by the
Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to each such revised prospectus from and after the time
it is first provided to the Representatives for such use; provided, further,
that a Prospectus Supplement shall be deemed to have supplemented the Prospectus
only with respect to the offering of Underwritten Securities to which it
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relates. Any registration statement (including any supplement thereto or
information which is deemed part thereof) filed by the Company and the Guarantor
under Rule 462(b) of the 1933 Act Regulations (a "Rule 462(b) Registration
Statement") shall be deemed to be part of the Registration Statement. Any
prospectus (including any amendment or supplement thereto or information which
is deemed part thereof) included in the Rule 462(b) Registration Statement and
any term sheet as contemplated by Rule 434 of the 1933 Act Regulations (a "Term
Sheet") shall be deemed to be part of the Prospectus. All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be. For purposes of this Agreement,
all references to the Registration Statement, any preliminary prospectus,
preliminary prospectus supplement, Prospectus or Prospectus Supplement or any
Term Sheet or any amendment or supplement to the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System.
The term "Subsidiary" means 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,
Xxxx Realty, L.P., a Delaware limited partnership ("Xxxx X.X."), or CarrAmerica
Realty, L.P., a Delaware limited partnership ("CarrAmerica L.P." and together
with Xxxx X.X., the "Partnerships"), as the case may be, or by one or more other
Subsidiaries of the Company or either Partnership.
SECTION 1. Representations and Warranties of the Company.
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(a) The Company represents and warrants to the Representatives, as
of the date hereof, and to the Representatives and each other Underwriter named
in the applicable Terms Agreement, as of the date thereof (in each case, a
"Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective, complied, and as of each Representation
Date will comply, in all material respects with the requirements of the 1933 Act
Regulations and, at the time any Debt Securities are issued, will comply with
the 1939 Act and the rules and regulations thereunder (the "1939 Act
Regulations"). The Registration Statement, at the time the Registration
Statement became effective, did not, and as of each Representation Date, will
not, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, as of the date hereof does not, and as of each
Representation Date and Closing Time (as hereinafter defined) (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Representatives by the Company for use in connection with an offering of
Underwritten Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement became effective, in which
case at the time it was first provided to the Representatives for such use) will
not, include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
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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
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which shall constitute the Statement of Eligibility and Qualification on Form
T-1 under the 1939 Act (the "Statement of Eligibility") of a Trustee under an
Indenture. If a Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Securities, the Company has complied or will
comply with the requirements of Rule 111 under the 1933 Act Regulations relating
to the payment of filing fees therefor.
(ii) The documents incorporated or deemed to be incorporated by reference
in the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective and as of
the applicable Representation Date or Closing Time or during the period
specified in Section 3(f), did not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(iii) The accountants who certified the financial statements and supporting
schedules included in, or incorporated by reference into, the Registration
Statement and Prospectus, are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(iv) The financial statements (including the notes thereto) included in,
or incorporated by reference into, the Registration Statement and the Prospectus
present fairly the financial position of the respective entity or entities
presented therein at the respective dates indicated and the results of their
operations for the respective periods specified; except as otherwise stated in
the Registration Statement and Prospectus, the financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis; the supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus present fairly the
information required to be stated therein; and the Company's ratios of earnings
to fixed charges (actual and, if any, proforma) included in the Prospectus under
the captions "Ratios of Earnings to Fixed Charges" and in Exhibit 12.1 to the
Registration Statement have been calculated in compliance with Item 503(d) of
Regulation S-K of the Commission. The financial information and data included in
the Registration Statement and the Prospectus present fairly the information
included therein and have been prepared on a basis consistent with that of the
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus and the books and records of the respective
entities presented therein. Pro forma financial information included in or
incorporated by reference in the Registration Statement and the Prospectus, if
any, 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.
(iv) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(A) there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, assets or business affairs of the
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Company, the Partnerships, and the Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business; (B) no material
casualty loss or material condemnation or other material adverse event with
respect to any of the interests held directly or indirectly in any of the real
properties owned, directly or indirectly, by the Company, either Partnership or
any Subsidiary (the "Properties") or any entity wholly or partially owned by the
Company, either Partnership or any Subsidiary has occurred; (C) there have been
no acquisitions or transactions entered into by the Company, either Partnership
or any Subsidiary, other than those in the ordinary course of business, which
are material with respect to such entities or would result, upon consummation,
in any material inaccuracy in the representations contained in Section 1(a)(iv)
above; (D) except for regular quarterly dividends on the Common Stock, and
dividends on the Preferred Stock, if any, and distributions by either of the
Partnerships with respect to its partnership interests ("Units"), there has been
no dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock or by either of the Partnerships with respect to
its Units; and (E) with the exception of transactions in connection with stock
and Unit options and in connection with dividend reinvestment plans, the
issuance of shares of Common Stock upon the exchange of Units and the issuance
of Units in connection with the acquisition of real or personal property, there
has been no change in the capital stock or in the partnership interests or
membership interests, as the case may be, of the Company, either of the
Partnerships or any Subsidiary, and no increase in the indebtedness of the
Company, either of the Partnerships, or any Subsidiary, that is material to the
Company, the Partnerships and the Subsidiaries, considered as one enterprise.
(vii) The Company has been duly formed, and is validly existing and in
good standing as a corporation under the laws of Maryland with corporate power
and authority to conduct the business in which it is engaged or proposes to
engage and to own, lease and operate its properties as described in the
Prospectus and to enter into and perform its obligations under this Agreement,
the Terms Agreement, any Warrant Agreement and any Indenture.
(viii) Each of the Partnerships and the Subsidiaries has been duly formed,
and is validly existing and in good standing as a corporation or partnership
under the laws of its jurisdiction of organization, with partnership or
corporate power and authority to conduct the business in which it is engaged or
proposes to engage and to own, lease and operate its properties as described in
the Prospectus.
(ix) Each of the Company, the Partnerships and the Subsidiaries is duly
qualified or registered as a foreign partnership or corporation in good standing
and authorized to do business in each jurisdiction in which such qualification
is required whether by reason of the ownership, leasing or management of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets or business affairs of the Company, the
Partnerships and the Subsidiaries considered as one enterprise (a "Material
Adverse Effect").
(x) If the applicable Underwritten Securities are Common Stock,
Preferred Stock or Common Stock Warrants, the capital stock of the Company as of
the date specified in the Prospectus is as set forth therein under
"Capitalization." All the issued and outstanding shares of capital stock of the
Company have been duly authorized and are validly issued, fully paid and
non-assessable and have been offered and sold in compliance with all applicable
laws (including, without limitation, federal, state or foreign securities laws).
(xi) Except for transactions described in the Prospectus and transactions
in connection with stock and Unit options and in connection with dividend
reinvestment plans and exchanges of Units, there are no outstanding securities
convertible into or exchangeable for any capital stock of the Company and no
outstanding options, rights (preemptive or otherwise) or warrants to purchase or
to subscribe for such shares, Units or other securities of the Company, the
Partnerships or the Subsidiaries.
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(xii) The applicable Underwritten Securities, if such Underwritten
Securities are Common Stock or Preferred Stock, have been duly authorized by the
Company for issuance and sale to the Underwriters pursuant to this Agreement,
and, when issued and delivered by the Company, pursuant to this Agreement and
the applicable Terms Agreement against payment of the consideration set forth in
the Terms Agreement, will be validly issued, fully paid and non-assessable. Upon
payment of the purchase price and delivery of such Underwritten Securities in
accordance herewith, each of the Underwriters will receive good, valid and
marketable title to such Underwritten Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and equities. The
terms of such applicable Underwritten Securities conform in all material
respects to all statements and descriptions related thereto contained in the
Prospectus. The form of stock certificate to be used to evidence the applicable
Underwritten Securities will be in due and proper form and will comply with all
applicable legal requirements. The issuance of such applicable Underwritten
Securities is not subject to any preemptive or other similar rights, except as
described in the Prospectus.
(xiii) If applicable, the Warrants have been duly authorized by the Company
for issuance and sale to the Underwriters pursuant to this Agreement, and, when
issued and delivered in the manner provided for in this Agreement and any Terms
Agreement and countersigned by the Warrant Agent as provided in the Warrant
Agreement, against payment of the consideration therefor specified in the
applicable Terms Agreement, will be duly executed, countersigned, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Warrant Agreement under which
they are issued. Upon payment of the purchase price and delivery of such
Underwritten Securities in accordance herewith, each of the Underwriters will
receive good, valid and marketable title to such Underwritten Securities, free
and clear of all security interests, mortgages, pledges, liens, encumbrances,
claims and equities. The terms of the Warrants conform in all material respects
to all statements and descriptions related thereto contained in the Prospectus.
The issuance of the Warrants is not subject to any preemptive or other similar
rights, except as described in the Prospectus.
(xiv) The applicable Underwritten Securities, if such Underwritten
Securities are Debt Securities and the related Guarantees, if any, are in the
form contemplated by the Indenture, have been duly authorized by the Company and
the Guarantor for issuance and sale to the Underwriters pursuant to this
Agreement and, when executed, authenticated, issued and delivered in the manner
provided for in this Agreement, any Terms Agreement and the applicable
Indenture, against payment of the consideration therefor specified in the
applicable Terms Agreement, such Debt Securities, together with the Guarantees,
if any, will constitute valid and legally binding obligations of the Company or
the Guarantor, as applicable, entitled to the benefits of the Indenture and such
Debt Securities and Guarantees will be enforceable against the Company or the
Guarantor, as applicable, in accordance with their terms; provided, however,
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that the enforceability of the foregoing may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles. Upon payment of the purchase
price and delivery of such Underwritten Securities in accordance herewith, each
of the Underwriters will receive good, valid and marketable title to such
Underwritten Securities, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities. The terms of such applicable
Underwritten Securities and the related Guarantees, if any, conform in all
material respects to all statements and descriptions related thereto in the
Prospectus. Such Underwritten Securities rank and will rank on a parity with all
unsecured indebtedness (other than subordinated indebtedness) of the Company
that is outstanding on the Representation Date or that may be incurred
thereafter, and senior to all subordinated indebtedness of the Company that is
outstanding on the Representation Date or that may be incurred thereafter,
except that such Underwritten Securities will be effectively subordinated to the
prior claims of each secured mortgage lender to any specific Property which
secures such lender's mortgage.
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(xv) If applicable, the Common Stock issuable upon conversion of any of
the Debt Securities or the Preferred Stock and upon exercise of the Common Stock
Warrants will have been duly and validly authorized and reserved for issuance
upon such conversion or exercise by all necessary action and such stock, when
issued upon such conversion or exercise, will be duly and validly issued, fully
paid and non-assessable, and the issuance of such stock upon such conversion or
exercise will not be subject to preemptive or other similar rights except as
described in the Prospectus. The Common Stock so issuable conforms in all
material respects to all statements relating thereto contained in the
Prospectus.
(xvi) If applicable, the Debt Securities issuable upon the exercise of
the Debt Warrants are in the form contemplated by the Indenture, have been duly
authorized by the Company for issuance upon exercise of the Debt Warrants and,
when executed, authenticated, issued and delivered in the manner provided for in
the Debt Warrants and the applicable Indenture, against payment of the
consideration therefor specified in the Debt Warrants, such Debt Securities will
constitute valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and such Debt Securities will be enforceable against
the Company in accordance with their terms; provided, however, that the
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enforceability of the foregoing may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles.
(xvii) The applicable Warrant Agreement, if any, will have been duly
authorized, executed and delivered by the Company prior to the issuance of any
applicable Underwritten Securities, and will constitute a valid and legally
binding agreement of the Company enforceable in accordance with its terms;
provided, however, that the enforceability of the foregoing may be limited by
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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.
(xviii) (A) This Agreement has been duly and validly authorized, executed
and delivered by the Company, and, assuming due authorization, execution and
delivery by the Representatives, is a valid and binding agreement of the
Company, and (B) at the Representation Date, the Terms Agreement will have been
duly and validly authorized, executed and delivered by the Company, and,
assuming due authorization, execution and delivery by the Representatives, will
be valid and binding agreements, enforceable in accordance with its or their
terms; provided, however, that the enforceability of the foregoing may be
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limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable principles.
(xix) If applicable, the Indenture (A) has been duly qualified under the
1939 Act, will have been duly and validly authorized, executed and delivered by
the Company prior to the issuance of any applicable Underwritten Securities, and
when executed and delivered by the Trustee, will constitute a valid and binding
obligation of the Company, enforceable in accordance with its terms; provided,
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however, that the enforceability of the foregoing may be limited by bankruptcy,
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insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles; and (B) conforms in all material
respects to the description thereof in the Prospectus.
(xx) None of the Company, the Partnerships or any Subsidiary is in
violation of its charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which such entity is a party or by which such entity may be bound, or to
which any of its property or assets is subject, which violation or default
separately or in the aggregate would have a Material Adverse Effect.
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(xxi) The issuance of the Underwritten Securities, the execution and
delivery of this Agreement, the applicable Terms Agreement, any Warrant
Agreement, any Deposit Agreement and any Indenture and the performance of the
obligations set forth herein or therein by the Company, and the consummation of
the transactions contemplated hereby and thereby will not (A) result in the
creation of any lien, charge or encumbrance upon the Properties and (B) conflict
with or constitute a breach or violation by the parties thereto of, or default
under, (1) any material contract, indenture, mortgage, loan agreement, note,
lease, joint venture or partnership agreement or other instrument or agreement
to which the Company, either of the Partnerships or any Subsidiary is a party,
or by which they, any of them, any of their respective properties or other
assets or any Property (including, without limitation, partnership and other
interests in partnerships or other entities which own direct or indirect
interests therein) is or may be bound or subject, (2) the charter, by-laws,
certificate of limited partnership, partnership agreement or other
organizational document, as the case may be, of the Company, the Partnerships or
any Subsidiary or (3) any applicable law, rule, order, administrative regulation
or administrative or court decree.
(xxii) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company and the Partnerships, threatened against or affecting
the Company, either of the Partnerships, any Subsidiary, any Property or any
officer or director of the foregoing that is required to be disclosed in the
Registration Statement (other than as disclosed therein), and that, if
determined adversely to the Company, the applicable Partnership, any Subsidiary,
any Property, or any such officer or director, would reasonably be expected to
result in any Material Adverse Effect, except as disclosed in the Registration
Statement, or which might materially and adversely affect the consummation of
this Agreement, the applicable Terms Agreement, any Warrant Agreement, any
Deposit Agreement, the Indenture, if any, or the transactions contemplated
herein and therein. Except as disclosed in the Registration Statement, there is
no pending legal or governmental proceeding to which the Company, either of the
Partnerships or any Subsidiary is a party or of which any of their respective
properties or assets or any Property (including, without limitation, partnership
and other interests in partnerships or other entities which own direct or
indirect interests therein), is the subject, including ordinary routine
litigation incidental to the business or operations of the foregoing, that is or
would reasonably be expected to be, material to the condition, financial or
otherwise, or the earnings, assets, business affairs or business prospects of
the Company, the Partnerships and the Subsidiaries, considered as one
enterprise. There are no contracts or documents of a character which are
required to be filed as exhibits to the Registration Statement by the 1933 Act
or by the 1933 Act Regulations which have not been filed as exhibits to the
Registration Statement.
(xxiii) At all times beginning with its taxable period ended December 31,
1993, the Company has been, and upon the sale of the applicable Underwritten
Securities, the Company will continue to be, organized and operated in
conformity with the requirements for qualification as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the "Code"), and its
proposed method of operation will enable it to continue to meet the requirements
for taxation as a real estate investment trust under the Code.
(xxiv) None of the Company, the Partnerships or any Subsidiary is required
to be registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(xxv) The Company, the Partnerships and the other Subsidiaries own,
possess or license the trademarks, service marks and trade names (collectively,
"proprietary rights") that are material to the businesses now operated or
proposed to be operated by them and that are currently employed or proposed to
be employed by them in connection with such businesses, and none of the Company,
the Partnerships or any of the Subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any such proprietary rights.
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(xxvi) All authorizations, approvals or consents of any court or
government authority or agency or other entity or person that are necessary in
connection with the offering, issuance or sale of the Underwritten Securities
hereunder by the Company have been obtained, except such as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws with
respect to the Underwritten Securities.
(xxvii) Each of the Company, the Partnerships and the Subsidiaries
possesses such certificates, authorizations or permits issued by the appropriate
regulatory agencies or bodies necessary to conduct the business now conducted by
it, or proposed to be conducted by it, and none of the Company, either of the
Partnerships or any Subsidiary has received any notice of proceedings relating
to the revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, assets, business affairs or business
prospects of the Company, the Partnerships and the Subsidiaries considered as
one enterprise.
(xxviii) No material labor dispute with the employees of the Company,
either of the Partnerships or any Subsidiary exists or, to the knowledge of the
Company or either of the Partnerships is imminent.
(xxix) Except as disclosed in the Prospectus, (A) to the knowledge of the
Company, the Environment (as defined below) at each Property is free of any
Hazardous Substance (as defined below) except for any Hazardous Substance that
would not reasonably be expected to have any material adverse effect on the
condition, financial or otherwise, or on the earnings, assets, business affairs
or business prospects of the Property, the Company, the Partnerships and the
Subsidiaries considered as one enterprise; (B) none of the Company, the
Partnerships or any Subsidiary and, to the knowledge of the Company and the
Partnerships, no prior owner of any Property has caused or suffered to occur any
Release (as defined below) of any Hazardous Substance into the Environment on,
in, under or from any Property in violation of any Environmental Law applicable
to such Property in an amount that would reasonably be expected to have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of any Property, the
Company, the Partnerships and the Subsidiaries considered as one enterprise and
no condition exists on, in or under any Property or, to the knowledge of the
Company or the Partnerships, any property adjacent to any Property that could
reasonably be expected to result in the occurrence of material liabilities
under, or any material violations of, any Environmental Law (as defined below)
applicable to such Property, give rise to the imposition of any Lien (as defined
below) under any Environmental Law, or cause or constitute an environmental
hazard to any property, person or entity; (C) none of the Company, the
Partnerships or any Subsidiary is engaged in or intends to engage in any
manufacturing or any other similar operations at any Property and, to the
knowledge of the Company and the Partnerships, no prior owner of any Property
engaged in any manufacturing or any similar operations at any Property that (1)
require the use, handling, transportation, storage, treatment or disposal of any
Hazardous Substance (other than paints, stains, cleaning solvents, insecticides,
herbicides, or other substances that are used in the ordinary course of
operating any Property and in compliance with all applicable Environmental Laws)
or (2) require permits or are otherwise regulated pursuant to any Environmental
Law; (D) none of the Company, the Partnerships or any Subsidiary and, to the
knowledge of the Company and the Partnerships, no prior owner of any Property
has received any notice of a claim under or pursuant to any Environmental Law
applicable to a Property or under common law pertaining to Hazardous Substances
on any Property or pertaining to other property at which Hazardous Substances
generated at any Property have come to be located; (E) none of the Company, the
Partnerships or any Subsidiary and, to the best knowledge of the Company and the
Partnerships, no prior owner of any Property has received any notice from any
Governmental Authority (as defined below) claiming any violation of any
Environmental Law that is uncured or unremediated as of the date hereof; and (F)
no Property (1) is included or proposed for inclusion on the National Priorities
9
List issued pursuant to CERCLA (as defined below) by the United States
Environmental Protection Agency (the "EPA") or on the Comprehensive
Environmental Response, Compensation, and Liability Information System database
maintained by the EPA as a potential CERCLA removal, remedial or response site
or (2) is included or proposed for inclusion on, any similar list of potentially
contaminated sites pursuant to any other applicable Environmental Law nor has
the Company, either of the Partnerships or any Subsidiary received any written
notice from the EPA or any other Governmental Authority proposing the inclusion
of any Property on such list.
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic or dangerous substance, pollutant,
asbestos-containing materials, PCBs, pesticides, explosives, radioactive
materials, dioxins, urea formaldehyde insulation, pollutant or waste, including
any such substance, pollutant or waste identified, listed or regulated under any
Environmental Law (including, without limitation, materials listed in the United
States Department of Transportation Optional Hazardous Material Table, 49 C.F.R.
(S) 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. (S) 9601, et seq.) ("CERCLA"), the Resource Conservation Recovery
-- ---
Act, as amended (42 U.S.C. (S) 6901, et seq.), the Clean Air Act, as amended (42
-- ---
U.S.C. (S) 7401, et seq.), the Clean Water Act, as amended (33 U.S.C. (S) 1251,
-- ---
et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. (S) 2601, et
-- --- --
seq.), the Toxic Substances Control Act, as amended (29 U.S.C. (S) 651, et
--- --
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. (S)
---
1801, et seq.), together with all rules, regulations and orders promulgated
-- ---
thereunder and all other federal, state and local laws, ordinances, rules,
regulations and orders relating to the protection of the environment from
environmental effects; "Governmental Authority" shall mean any federal, state or
local governmental office, agency or authority having the duty or authority to
promulgate, implement or enforce any Environmental Law; "Lien" shall mean, with
respect to any Property, any material mortgage, deed of trust, pledge, security
interest, lien, encumbrance, penalty, fine, charge, assessment, judgment or
other liability in, on or affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous Substance
into the Environment, including, without limitation, the abandonment or discard
of barrels, containers, tanks (including, without limitation, underground
storage tanks) or other receptacles containing or previously containing any
Hazardous Substance or any release, emission, discharge or similar term, as
those terms are defined or used in any Environmental Law.
(xxx) Each of the Company, the Partnerships and the Subsidiaries has filed
all federal, state, local and foreign income and franchise tax returns which
have been required to be filed and each such tax return was filed on or prior to
the date on which such tax return was required to be filed or, in lieu of such
timely filings, each of the Company, the Partnerships, or the Subsidiaries, as
the case may be, has duly and timely filed such applications for extension as
may be required to effect all necessary extensions (such extensions having been
obtained and remaining in full force and effect) and has paid all taxes shown
thereon as due and payable and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except,
in all cases, for any such tax assessment, fine or penalty that is being
contested in good faith through appropriate proceedings and as to which
appropriate reserves have been established.
(xxxi) Except as disclosed in the Registration Statement and except for (i)
persons who received Units or shares of Common Stock in connection with the
formation of the Company, or (ii) persons who received shares of Common Stock,
options to acquire shares of Common Stock or Units in connection with
transactions with the Partnerships or the Company, there are no persons with
registration
10
or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the 1933
Act.
(xxxii) Each of the Company, the Partnerships and the Subsidiaries
(or the partnership or other entity owning the Property) has obtained title
insurance insuring good, marketable and lien free title to the Properties owned
by them (other than the Properties in which the applicable entity owns less than
a majority interest), subject only to customary easements and encumbrances and
other exceptions to title which do not materially impair the operation,
development or use thereof for the purposes intended therefor as contemplated by
the Prospectus on each of such Properties.
(xxxiii) The Common Stock will be listed on the New York Stock
Exchange on the applicable Representation Date and at the applicable Closing
Time. If so stated in the applicable Prospectus Supplement as of the applicable
Representation Date, the Preferred Stock and Warrants, as applicable, will have
been approved for listing on the New York Stock Exchange upon notice of
issuance.
(xxxiv) Unless otherwise agreed to by the Representatives, the
Preferred Stock, Debt Securities and Debt Warrants will have an investment grade
rating from one or more nationally recognized statistical rating organizations
at the Representation Date and at the applicable Closing Time.
(xxxv) If the Underwritten Securities are Debt Securities, then
immediately following the application of the proceeds of the sale of the
Underwritten Securities in the manner set forth in the Prospectus, the mortgages
and deeds of trust encumbering the Properties and assets described in the
Prospectus will not be convertible and none of the partnerships or other
entities owning an interest in the Properties nor any person related to or
affiliated with such partnerships or other entities will hold a participating
interest therein and said mortgages and deeds of trust will not be
cross-defaulted or cross-collateralized with any property not owned directly or
indirectly by the Company, the Partnerships or the Subsidiaries.
(xxxvi) Each of the Company, the Partnerships and the Subsidiaries
is insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and none of the Company, the Partnerships
and the Subsidiaries has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
businesses at a cost that would not have a Material Adverse Effect, except as
described in or contemplated by the Registration Statement and the Prospectus.
(xxxvii) The Company has not taken and will not take, directly or
indirectly, any action prohibited by Regulation M under the 1934 Act.
(xxxviii) The assets of the Company and the Partnerships do not
constitute "plan assets" under the Employee Retirement Income Security Act of
1974, as amended.
(b) Any certificate signed by any officer of the Company, either of
the Partnerships or of any of the Subsidiaries and delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by such entity to each Underwriter as to the matters
covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
----------------------------------------------
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of
11
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 Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, 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 9) following the date of
the applicable Terms Agreement or at such other time as shall be agreed upon by
the Representatives and the Company (each referred to herein as a "Closing
Time"). In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices of Xxxxxxxx Chance Xxxxxx & Xxxxx 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
12
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 not later than the second business day following the execution
and delivery of the Terms Agreement, or, if applicable, such earlier time as may
be required by Rule 430A(a)(3) of the 1933 Act Regulations, the Company will
prepare, and file or transmit for filing with the Commission in accordance with
such Rule 430A and Rule 424(b) of the 1933 Act Regulations, a copy of an amended
Prospectus, or, if required by such Rule 430A, a post-effective amendment to the
Registration Statement (including amended Prospectuses), containing all
information so omitted. If required, the Company will prepare and file or
transmit for filing a Rule 462(b) Registration Statement by 10:00 p.m. on 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
13
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.
(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.
14
(l) The Company will file with the New York Stock Exchange all
documents and notices required by the New York Stock Exchange of companies that
have securities listed on such exchange and, to the extent the Preferred Stock,
Warrants or Debt Securities (including Debt Securities issuable upon exercise of
Debt Warrants) are listed on the New York Stock Exchange, the Company will use
its best efforts to maintain the listing of any such Underwritten Securities
listed on the New York Stock Exchange.
(m) In respect to each offering of Debt Securities, the Company will
qualify an Indenture under the 1939 Act and will endeavor to have a Statement of
Eligibility submitted on behalf of the Trustee.
(n) The Company will take all reasonable action necessary to enable
Standard & Poor's Corporation ("S&P"), Xxxxx'x Investors Service, Inc.
("Xxxxx'x") 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 the Representatives, or a particular Representative, if so provided
in the Prospectus Supplement, 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 (except for optional waiver
components, if any); (iii) the issuance of Common Stock on the exchange of Units
or on the conversion of the Company's outstanding Series A Cumulative
Convertible Redeemable Preferred Stock; 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
15
exchange or with the Commission or any governmental authority succeeding to any
of the Commission's functions, and (ii) such other information concerning the
Company and the Partnerships as the Representatives may reasonably request.
SECTION 4. Payment of Expenses. The Company and the Partnerships will pay all
-------------------
expenses incident to the performance of their obligations under this Agreement
and the applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto; (ii)
the cost of printing, or reproducing, and distributing to the Underwriters
copies of this Agreement and the applicable Terms Agreement; (iii) the
preparation, issuance and delivery of the Underwritten Securities to the
Underwriters, including capital duties, stamp duties and stock transfer taxes,
if any, payable upon issuance of any of the Underwritten Securities, the sale of
the Underwritten Securities to the Underwriters, their transfer between the
Underwriters pursuant to an agreement between such Underwriters and the fees and
expenses of the transfer agent for the Underwritten Securities; (iv) the fees
and disbursements of the Company's and Partnerships' counsel and accountants;
(v) the qualification of the Underwritten Securities and the Common Stock or
Debt Securities issuable upon exercise of Warrants and conversion of Debt
Securities or Preferred Stock, if any, under securities laws and real estate
syndication laws in accordance with the provisions of Section 3(h) hereof,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey; (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto; (vii) the cost of printing, or reproducing,
and delivering to the Underwriters copies of the Blue Sky Survey; (viii) the fee
of the National Association of Securities Dealers, Inc.; (ix) the fees and
expenses incurred in connection with the listing of the Underwritten Securities
and the Common Stock or Debt Securities issuable upon exercise of the Warrants
and conversion of Debt Securities or Preferred Stock, if any, on the New York
Stock Exchange, any other national securities exchange or quotation system; (x)
any fees charged by nationally recognized statistical rating organizations for
the rating of the Preferred Stock or Debt Securities, if any; (xi) the printing
and delivery to the Underwriters of copies of the Indenture; (xii) the fees and
expenses of the Trustee and the Warrant Agent, including the reasonable fees and
disbursements of counsel for the Trustee or Warrant Agent, in connection with
the Warrant Agreement, Indenture and the Underwritten Securities; (xiii) the
preparation, issuance and delivery to the Depository Trust Company for credit to
the accounts of the respective Underwriters of any global note registered in the
name of Cede & Co., as nominee for the Depository Trust Company; and (xiv) any
transfer taxes imposed on the sale of the Underwritten Securities to the several
Underwriters.
If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 4 and 6 hereof; but, if for any other reason, any
Underwritten Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Underwritten Securities
not so delivered, but the Company shall then be under no further liability to
any Underwriter except as provided in Sections 4 and 6 hereof.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of the
---------------------------------------
Underwriters hereunder are subject to the accuracy, as of the date hereof and at
Closing Time, of the representations and warranties of the Company herein
contained, to the performance by the Company of its obligations hereunder, and
to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
16
Commission; (ii) if the Company has elected to rely upon Rule 430A of the 1933
Act Regulations, the public offering price of and the interest rate on the
Underwritten Securities, as the case may be, and any price-related information
previously omitted from the effective Registration Statement pursuant to such
Rule 430A shall have been transmitted to the Commission for filing pursuant to
Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and
prior to the applicable Closing Time, the Company shall have provided evidence
satisfactory to the Representatives of such timely filing, or a post-effective
amendment providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the 1933 Act
Regulations; (iii) if Preferred Stock, Debt Securities or Debt Warrants are
being offered, the rating assigned by any nationally recognized statistical
rating organization as of the date of the applicable Terms Agreement shall not
have been lowered since such date nor shall any such rating organization have
publicly announced that it has placed the Preferred Stock or Debt Securities on
what is commonly termed a "watch list" for possible downgrading; (iv) if Debt
Securities or Debt Warrants are being offered, the rating assigned by any
nationally recognized statistical rating organization to any long-term debt
securities of the Company as of the date of the applicable Terms Agreement shall
not have been lowered since such date nor shall any such rating organization
have publicly announced that it has placed any long-term debt securities of the
Company on what is commonly termed a "watch list" for possible downgrading; and
(v) there shall not have come to the attention of the Representatives any facts
that would cause the Representatives to believe that the Prospectus, together
with the applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the Underwritten Securities, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
such time, not misleading. If a Rule 462(b) Registration Statement is required,
such Rule 462(b) Registration Statement shall have been transmitted to the
Commission for filing and have become effective within the prescribed time
period, and, prior to Closing Time, the Company shall have provided to the
Underwriters evidence of such filing and effectiveness in accordance with Rule
462(b) of the 1933 Act Regulations.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of the applicable Closing
Time, of Xxxxx & Xxxxxxx L.L.P., counsel for the Company and the
Partnerships in form and substance reasonably satisfactory to counsel for
the Underwriters, to the effect that:
(i) The Company was incorporated, existing and in good
standing as of the date of the certificate identified elsewhere in
the opinion letter under the laws of the State of Maryland. The
Company has the corporate power and corporate authority under its
charter and the Maryland Corporation Law to own, lease and operate
its properties, to execute and deliver, and perform its obligations
under, the Underwriting Agreement, the applicable Terms Agreement,
any Warrant Agreement and any Indenture; and to conduct its business
as described in the Prospectus. The Company is authorized to transact
business as a foreign corporation in those states in which the
Company owns Properties either directly or through a partnership in
which the Company is a general partner, as of the dates of the
certificates identified elsewhere in the opinion letter.
(ii) Each of the Partnerships is a limited partnership formed,
existing and in good standing as of the date of its respective
certificate identified elsewhere in the opinion letter, under the
Delaware Revised Uniform Limited Partnership Act (the "Delaware
Act"). Each Partnership has the partnership power and partnership
authority under its partnership agreement and under the Delaware Act
to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to perform its obligations under
this Agreement and any Terms Agreement. Each of the Partnerships is
17
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., Xxxx Real Estate
Services, Inc. and CarrAmerica Development, Inc. (collectively, the
"Significant Subsidiaries") was incorporated, existing and in good
standing as of the date of its respective certificate identified
elsewhere in the opinion letter under the Delaware General
Corporation Law. Each of the Significant Subsidiaries has the
corporate power and corporate authority under its charter and the
Delaware General Corporation Law to own, lease and operate its
properties and to conduct its business as described in the
Prospectus.
(iv) If the applicable Underwritten Securities are Common
Stock, Preferred Stock or Common Stock Warrants, the authorized
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, 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 Maryland General
Corporation Law, or, to the knowledge of such counsel, any
contractual right to subscribe for any such shares, except as set
forth in the Prospectus.
(v) The applicable Underwritten Securities, if such
Underwritten Securities are Common Stock or Preferred Stock, have
been duly authorized by the Company for issuance and sale to the
Underwriters pursuant to this Agreement, and, when issued and
delivered by the Company, pursuant to this Agreement and the
applicable Terms Agreement against payment of the consideration set
forth in the Terms Agreement, will be validly issued, fully paid and
non-assessable under the Maryland General Corporation Law. The form
of stock certificate to be used to evidence the applicable
Underwritten Securities is in due and proper form and complies with
all applicable legal requirements.
(vi) The Warrants, if such Underwritten Securities are
Warrants, have been duly authorized by the Company for issuance and
sale to the Underwriters pursuant to this Agreement and the
applicable Terms Agreement, and, when issued and delivered in the
manner provided for in this Agreement and any Terms Agreement and
countersigned by the Warrant Agent as provided in the Warrant
Agreement against payment of the consideration set forth in the Terms
Agreement, will be duly executed, countersigned, issued and delivered
and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Warrant Agreement
under which they are to be issued. The issuance of the Warrants is
not subject to any preemptive rights described in Section 2-205(a) of
the Maryland General Corporation Law, or, to the knowledge of such
counsel, and except as described in the Prospectus, any contractual
right to subscribe for or purchase any such Warrants, Common Stock or
Debt Securities.
18
(vii) The applicable Underwritten Securities, if such Underwritten
Securities are Debt Securities and the related Guarantees, if any, are in
the form contemplated in the Indenture, have been duly authorized by the
Company and the Guarantor, as applicable, for issuance and sale to the
Underwriters pursuant to this Agreement and, when executed, authenticated,
issued and delivered in the manner provided for in this Agreement, the
applicable Terms Agreement and the applicable Indenture, against payment of
the consideration therefor specified in the applicable Terms Agreement,
such Debt Securities and the related Guarantees, if any, will constitute
valid and legally binding obligations of the Company or the Guarantor, as
applicable, entitled to the benefits of the Indenture and such Debt
Securities and the related Guarantees, if any, will be enforceable against
the Company or the Guarantor, as applicable, in accordance with their
terms. Such Underwritten Securities rank and will rank on a parity with all
unsecured indebtedness of the Company (other than subordinated indebtedness
of the Company that is outstanding on the Representation Date or that may
be incurred thereafter) and senior to all subordinated indebtedness of the
Company that is outstanding on the Representation Date or that may be
incurred thereafter, except that such Underwritten Securities will be
effectively subordinated to the prior claims of each secured mortgage
lender to any specific Property which secures such lender's mortgage.
(viii) If applicable, the Common Stock issuable upon exercise of the
Common Stock Warrants or upon conversion of the Debt Securities or
Preferred Stock will have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary action and such
stock, when issued upon such conversion or exercise, will be duly and
validly issued, fully paid and non-assessable, and the issuance of such
stock upon such conversion or exercise will not be subject to any
preemptive rights described in Section 2-205(a) of the Maryland General
Corporation Law, or, to the knowledge of such counsel, and except as
described in the Prospectus, any contractual right to subscribe for or
purchase any Common Stock.
(ix) If applicable, the Debt Securities issuable upon the exercise
of the Debt Warrants are in the form contemplated by the Indenture, have
been duly authorized by the Company for issuance upon exercise of the Debt
Warrants and, when executed, authenticated, issued and delivered in the
manner provided for in the Debt Warrants and the applicable Indenture,
against payment of the consideration therefor specified in the Debt
Warrants, such Debt Securities will constitute valid and legally binding
obligations of the Company, entitled to the benefits of the Indenture and
such Debt Securities will be enforceable against the Company in accordance
with their terms; provided, however, that the enforceability of the
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foregoing may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and by general equitable
principles.
(x) Each of this Agreement and the applicable Terms Agreement was
duly executed and delivered on behalf of the Company.
(xi) The applicable Warrant Agreement, if any, has been duly
executed and delivered by the Company, and (assuming due authorization,
execution and delivery by the Warrant Agent) constitutes a valid and
legally binding agreement of the Company, enforceable in accordance with
its terms.
(xii) The Indenture has been duly qualified under the 1939 Act and
has been duly executed and delivered by the Company, and, assuming due
authorization, execution
19
and delivery by the Trustee, constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms.
The Indenture conforms in all material respects to the descriptions
thereof contained in the Prospectus.
(xiii) The execution, delivery and performance as of the date
hereof of the Underwriting Agreement, the applicable Terms Agreement,
any Warrant Agreement, any Indenture, any Deposit Agreement and, if
applicable, the Underwritten Securities, by the Company does not (i)
breach or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership agreement or
other instrument or agreement which has been filed as an exhibit to
the Registration Statement or (ii) violate the charter, by-laws,
certificate of limited partnership, partnership agreement or other
organizational document, as the case may be, of the Company, the
Partnerships or any Significant Subsidiary.
(xiv) None of the Company or either of the Partnerships is an
investment company as such term is defined under the 1940 Act.
(xv) No consent, approval, authorization or filing with any
federal or Maryland or Delaware state governmental agency or authority
is required for the consummation by the Company of the transactions
contemplated by this Agreement or the applicable Terms Agreement,
except such as may be required under the federal securities laws
(certain matters with respect to which are addressed elsewhere in the
opinion) or state or foreign securities laws or real estate
syndication laws (as to which such counsel need express no opinion),
or such as have been received or made.
(xvi) The documents incorporated or deemed to be incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act (other than the financial statements and related
schedules and financial information and data included therein or
omitted therefrom, as to which no opinion need be rendered), at the
time they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the 1934
Act Regulations.
(xvii) The Registration Statement is effective under the 1933
Act and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(xviii) At the time the Registration Statement became effective
and at the Representation Date the Registration Statement and the
Prospectus (except for the financial statements and supporting
schedules and financial information and data included or incorporated
by reference therein or omitted therefrom, as to which no opinion need
be rendered) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(xix) The statements made in the Prospectus under the headings
entitled "Description of Debt Securities," "Description of Preferred
Stock," "Description of Common Stock," "Description of Warrants,"
"Description of Depositary Shares," and the information in the
applicable Prospectus Supplement under "Certain Federal Income Tax
Considerations" and similar specified sections to the extent that they
describe matters of
20
law or legal conclusions, have been reviewed by them and is correct in
all material respects.
(xx) To the knowledge of such counsel, except as otherwise
described in the Registration Statement or in the agreements referred
to in an exhibit to such opinion, there are no persons with
registration or other similar rights to have any securities registered
under the Registration Statement, or to require the Company to file
any other registration statement, as a result of the offer and sale of
the Underwritten Securities.
The opinions rendered pursuant to clauses (vii), (xi) and (xii) above may
be subject to exceptions regarding bankruptcy and similar laws, general
principles of equity and other customary exceptions reasonably acceptable to
counsel for the Underwriters.
(2) The favorable opinion, dated as of the applicable Closing
Time, of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel to the Underwriters,
in form and substance satisfactory to the Underwriters.
(3) In giving their opinions required by subsections (b)(1) and
(b)(2), respectively, of this Section, Xxxxx & Xxxxxxx L.L.P. and Xxxxxxxx
Chance Xxxxxx & Xxxxx 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, Xxxxx & Xxxxxxx L.L.P. and Xxxxxxxx Chance Xxxxxx
& Xxxxx 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.
Xxxxx & Xxxxxxx L.L.P. shall additionally state that the Underwriters may
rely on their opinion addressed to the Company, and attached to the Registration
Statement as Exhibit 8.1, as if such opinion were addressed to them.
(c) At Closing Time, (i) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Company and the
Partnerships, threatened against the Company, the
21
Partnerships and any Subsidiary which would be required to be set forth in the
Prospectus that is not 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 LLP a letter dated such date,
in form and substance satisfactory to the Representatives, to the effect that:
(i) they are independent public accountants with respect to the Company as
required by the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion
that the financial statements and supporting schedules included in the
Registration Statement, or incorporated by reference therein, and covered by
their opinions therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations; (iii) based upon limited
procedures set forth in detail in such letter, including a reading of the latest
available interim financial statements of the Company a reading of the minute
books of the Company inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing has come to their attention which causes
them to believe that (A) the unaudited financial statements of the Company
included in the Registration Statement, or incorporated by reference therein, do
not comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations, or material modifications are required for them to be
presented in conformity with generally accepted accounting principles, (B) the
operating data and balance sheet data set forth in the Prospectus under the
caption "Selected Consolidated Financial Data" were not determined on a basis
substantially consistent with that used in determining the corresponding amounts
in the audited financial statements included or incorporated by reference in the
Registration Statement, (C) the pro forma financial information included or
incorporated by reference in the Registration Statement was not determined on a
basis substantially consistent with that of the audited financial statements
included or incorporated by reference in the Registration Statement or did not
comply as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and that the pro forma adjustments
have not been properly applied to the historical amounts in the compilations of
the statements or (D) at a specified date not more than five days prior to the
date of the applicable Terms Agreement, there has been any change in the capital
stock of the Company or any increase in the debt of the Company or any decrease
in the net assets of the Company as compared with the amounts shown in the most
recent consolidated balance sheet of the Company included in the Registration
Statement or incorporated by reference therein, or, during the period from the
date of the most recent consolidated statement of operations included in the
Registration Statement or incorporated by reference therein to a specified date
not more than five days prior to the date of the applicable Terms Agreement,
there were any decreases, as compared with the corresponding period in the
22
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
LLP a letter, dated the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than five days prior to Closing Time.
(f) At Closing Time, the Underwritten Securities, if such Underwritten
Securities are Preferred Stock, Debt Securities or Debt Warrants, shall be rated
investment grade by one or more nationally recognized statistical rating
organizations and the Company shall have delivered to the Representatives a
letter, dated the Closing Time, from each such rating organization, or other
evidence satisfactory to the Representatives, confirming that such Underwritten
Securities have such ratings; and since the date of this Agreement, there shall
not have occurred a downgrading in the rating assigned to such Underwritten
Securities or any of the Company's other debt securities by any nationally
recognized securities rating organization, and no such securities rating
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of such Underwritten
Securities or any of the Company's other debt securities.
(g) At Closing Time and at each Date of Delivery, if any, counsel for
the Underwriter shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the applicable Underwritten Securities as contemplated
herein, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
the applicable Underwritten Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriter.
(h) 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 Xxxxx & Xxxxxxx 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)(3) hereof).
23
(3) The favorable opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP,
counsel for the Underwriter, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b)(3) hereof.
(4) A letter from KPMG LLP, 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(h)(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
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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 the Representatives
expressly for use under the caption "Plan of Distribution" or "Underwriting" in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus, preliminary prospectus supplement or the Prospectus or Prospectus
Supplement (or any amendment or supplement thereto).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any preliminary prospectus, Prospectus,
preliminary prospectus supplement or Prospectus Supplement, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, Prospectus, preliminary prospectus
supplement or Prospectus Supplement, or any such amendment or supplement thereto
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives 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
24
or Prospectus Supplement (or any amendment or supplement thereto); and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Underwritten Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Underwritten Securities (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact 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
25
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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the 1933 Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the 1933 Act.
SECTION 7. Representations, Warranties and Agreements to Survive Delivery. All
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representations, warranties and agreements contained in this Agreement or the
applicable Terms Agreement, or contained in certificates of the officers of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any termination of the applicable Terms Agreement, or any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company and shall survive delivery of the Underwritten
Securities to the Underwriters.
SECTION 8. 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 their business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; or (ii) if there
has been, since the date of such Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any change in the capital
stock or long-term debt of the Company, the Partnerships or the Subsidiaries or
any change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, shareholders' equity or
results of operations of the Company, the Partnerships or the Subsidiaries,
otherwise than as set forth or contemplated in the Prospectus; or (iii) if there
has occurred any downgrading in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such 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 if there has occurred a material disruption in
commercial banking or securities settlement or clearance
26
services in the United States; 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; or (vi) if there has occurred any
other calamity or crisis in the United States or elsewhere resulting in material
disruption in the U.S. financial markets, if the effect of any such event
specified in Clause (i), (ii), (v) or (vi) of this Section 8(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 8(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 7 and 12 hereof shall remain in effect.
SECTION 9. Default by One or More of the Underwriters. If one or more of the
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Underwriters shall fail at Closing Time to purchase the Underwritten Securities
which it or they are obligated to purchase under the applicable Terms Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Underwritten Securities to be purchased pursuant to such Terms Agreement, each
of the non-defaulting Underwriters named in such Terms Agreement shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Underwritten Securities to be purchased pursuant to such Terms Agreement, the
applicable Terms Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement, each of the Representatives or the Company shall
have the right to postpone Closing Time for a period not 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 10. Notices. All notices and other communications hereunder shall be in
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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 X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, attention Xxxxxx Xxxxxxxxxx; notices to the Company shall be
directed to 0000 X Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000, attention
Xxxxxx X. Xxxx.
SECTION 11. Parties. This Agreement and the applicable Terms Agreement shall
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each inure to the benefit of and be binding upon the parties hereto and their
respective successors. Nothing expressed or
27
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 12. Governing Law and Time. This Agreement and the Terms Agreement shall
----------------------
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in said State. Specified
times of day refer to New York City time.
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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/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
X.X. XXXXXX SECURITIES INC.
/s/ X.X. Xxxxxx Securities Inc.
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(X.X. Xxxxxx Securities Inc.)
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