Exhibit 1.1
CARRAMERICA REALTY CORPORATION
(a Maryland corporation)
Common Stock
(par value $0.01 per share)
UNDERWRITING AGREEMENT
----------------------
December 13, 2001
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Security Capital Group Incorporated, a corporation organized under the
laws of the State of Maryland (the "Selling Stockholder"), a stockholder of
CarrAmerica Realty Corporation, a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters"), for whom Xxxxxxx,
Sachs & Co., Xxxxxxx Xxxxx Xxxxxx Inc., First Union Securities, Inc., Xxxx Xxxxx
Xxxx Xxxxxx, Incorporated, Banc of America Securities LLC, Deutsche Banc Xxxx
Xxxxx Inc. and X.X. Xxxxxxx & Sons, Inc. are acting as representatives (the
"Representatives"), an aggregate of 16,872,537 shares (the "Firm Shares") of
common stock (par value $0.01 per share) of the Company ("Common Stock") and, at
the election of the Underwriters, up to 2,530,880 additional shares of Common
Stock (the "Optional Shares" and, together with the Firm Shares, the "Shares").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-73582) for the
registration of the Shares 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"). Such registration statement has been declared
effective by the Commission. 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 the Shares 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 the Shares 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. Any registration
statement (including any supplement thereto or information which is deemed part
thereof) filed by the Company under Rule 462(b) of the 1933 Act Regulations (a
"Rule 462(b) Registration Statement") shall be deemed to be part
of the Registration Statement. Any prospectus (including any amendment or
supplement thereto or information which is deemed part thereof) included in the
Rule 462(b) Registration Statement and any term sheet as contemplated by Rule
434 of the 1933 Act Regulations (a "Term Sheet") shall be deemed to be part of
the Prospectus. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, preliminary prospectus
supplement, Prospectus or Prospectus Supplement or any Term Sheet or any
amendment or supplement to the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval System.
The term "Subsidiary" means a corporation or a partnership a majority
of the outstanding voting stock, partnership or membership interests, as the
case may be, of which is owned or controlled, directly or indirectly, by the
Company, 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.
---------------------------------------------
(a) The Company represents and warrants to each of the
Underwriters, as of the date hereof and as of each Time of Delivery (as defined
in Section 2(d)) (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. 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 will not, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
--------
however, that the representations and warranties in this subsection
-------
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing (a) by the Selling
Stockholder or (b) by any Underwriter through the Representatives,
expressly for use in the Registration Statement or Prospectus. If a
Rule 462(b) Registration Statement is required in connection with the
offering and sale of the Shares, 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
2
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 each Representation Date 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 the 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; and the
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
required to be stated therein. 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.
(v) No stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company or either
Partnership, threatened by the Commission or by the state securities
authority of any jurisdiction. No order preventing or suspending the use of
the Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company or either Partnership,
threatened by the Commission or by the state securities authority of any
jurisdiction.
(vi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, assets or business affairs of
the Company, the Partnerships, and the Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; (B)
no material casualty loss or material condemnation or other material
adverse event with respect to any of the interests held directly or
indirectly in any of the real properties owned, directly or indirectly, by
the Company, either Partnership or any Subsidiary (the "Properties") or any
entity wholly or partially owned by the Company, either Partnership or any
Subsidiary has occurred; (C) there have been no acquisitions or
transactions entered into by the Company, either Partnership or any
Subsidiary, other than those in the ordinary course of business, which are
material with respect to such entities or would result, upon consummation,
in any material inaccuracy in the representations contained in Section
1(a)(iv) above; (D) except for regular quarterly dividends on the Common
Stock, and dividends on the Preferred Stock, if any, and distributions by
either of the Partnerships with respect to its partnership interests
("Units"), there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock or by either
of the Partnerships with respect to its Units; and (E) with the exception
of transactions in connection with stock and Unit options and in connection
with dividend reinvestment plans, the issuance of
3
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 the State 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.
(viii) Each of the Partnerships and the Subsidiaries has been
duly formed, and is validly existing and in good standing as a
corporation or partnership under the laws of its jurisdiction of
organization, with partnership or corporate power and authority to
conduct the business in which it is engaged or proposes to engage and
to own, lease and operate its properties as described in the
Prospectus.
(ix) Each of the Company, the Partnerships and the Subsidiaries
is duly qualified or registered as a foreign partnership or
corporation in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by reason
of the ownership, leasing or management of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, assets or business affairs of the Company, the
Partnerships and the Subsidiaries considered as one enterprise (a
"Material Adverse Effect").
(x) The capital stock of the Company as of the date specified
in the Prospectus is as set forth therein under "Capitalization." All
the issued and outstanding shares of capital stock of the Company,
including the Shares, have been duly authorized and are validly
issued, fully paid and non-assessable and have been offered and sold
in compliance with all applicable laws (including, without limitation,
federal, state or foreign securities laws).
(xi) Except for transactions described in the Prospectus and
transactions in connection with stock and Unit options and in
connection with dividend reinvestment plans and exchanges of Units,
there are no outstanding securities convertible into or exchangeable
for any capital stock of the Company and no outstanding options,
rights (preemptive or otherwise) or warrants to purchase or to
subscribe for such shares, Units or other securities of the Company,
the Partnerships or the Subsidiaries.
(xii) The terms of the Shares 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
Shares will be in due and proper form and will comply with all
applicable legal requirements. The offer and sale of the Shares is not
subject to any preemptive or other similar rights, except as described
in the Prospectus.
(xiii) This Agreement has been duly and validly authorized,
executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the Representatives and the
Selling Stockholder, is a valid and binding agreement of the Company;
provided, however, that the enforceability of this Agreement may be
-------- -------
limited by bankruptcy,
4
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles.
(xiv) 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.
(xv) The execution and delivery of this Agreement and the
performance of the obligations set forth herein, and the consummation
of the transactions contemplated hereby 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.
(xvi) 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 that is not 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 or the transactions
contemplated herein. 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.
(xvii) At all times beginning with its taxable period ended
December 31, 1993, the Company has been, and upon the sale of the
Shares, 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
5
present and proposed method of operation will enable it to continue to
meet the requirements for taxation as a real estate investment trust
under the Code.
(xviii) 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").
(xix) The Company, the Partnerships and the other
Subsidiaries own or possess the trademarks, service marks and trade
names (collectively, "proprietary rights") that are material to the
businesses now operated or proposed to be operated by them and that
are currently employed or proposed to be employed by them in
connection with such businesses, and none of the Company, the
Partnerships or any of the Subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any such proprietary rights.
(xx) 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.
(xxi) 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.
(xxii) 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,
6
herbicides, or other substances that are used in the ordinary course
of operating any Property and in compliance with all applicable
Environmental Laws) or (2) require permits or are otherwise regulated
pursuant to any Environmental Law; (D) none of the Company, the
Partnerships or any Subsidiary and, to the knowledge of the Company
and the Partnerships, no prior owner of any Property has received any
notice of a claim under or pursuant to any Environmental Law
applicable to a Property or under common law pertaining to Hazardous
Substances on any Property or pertaining to other property at which
Hazardous Substances generated at any Property have come to be
located; (E) none of the Company, the Partnerships or any Subsidiary
and, to the best knowledge of the Company and the Partnerships, no
prior owner of any Property has received any notice from any
Governmental Authority (as defined below) claiming any violation of
any Environmental Law that is uncured or unremediated as of the date
hereof; and (F) no Property (1) is included or proposed for inclusion
on the National Priorities List issued pursuant to CERCLA (as defined
below) by the United States Environmental Protection Agency (the
"EPA") or on the Comprehensive Environmental Response, Compensation,
and Liability Information System database maintained by the EPA as a
potential CERCLA removal, remedial or response site or (2) is included
or proposed for inclusion on, any similar list of potentially
contaminated sites pursuant to any other applicable Environmental Law
nor has the Company, either of the Partnerships or any Subsidiary
received any written notice from the EPA or any other Governmental
Authority proposing the inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include any hazardous
substance, 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.
7
(xxiii) 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.
(xxiv) Except as disclosed in the Registration Statement
and except for (i) persons who received Units or shares of Common
Stock in connection with the formation of the Company, or (ii) persons
who received shares of Common Stock, options to acquire shares of
Common Stock or Units in connection with transactions with the
Partnerships or the Company, there are no persons with registration or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under
the 1933 Act.
(xxv) 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.
(xxvi) The Common Stock is listed on the New York Stock
Exchange.
(xxvii) 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.
(xxviii) The Company has not taken and will not take,
directly or indirectly, any action prohibited by Regulation M under
the 1934 Act.
(xxix) 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.
8
(c) The Selling Stockholder represents and warrants to, and
agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by the Selling Stockholder of
this Agreement and for the sale and delivery of the Shares to be sold
by the Selling Stockholder hereunder, have been obtained; and the
Selling Stockholder has full right, power and authority to enter into
this Agreement, and to sell, assign, transfer and deliver the Shares
to be sold by the Selling Stockholder hereunder.
(ii) The sale of the Shares by the Selling Stockholder
hereunder and the compliance by the Selling Stockholder with all of
the provisions of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, (1) any contract, indenture, mortgage,
deed of trust, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement, which in each
case is material, to which the Selling Stockholder is a party, or by
which the Selling Stockholder is or may be bound or to which any
material property or assets of the Selling Stockholder is or are
subject, (2) the articles of incorporation and by-laws of the Selling
Stockholder or (3) any statute, law, rule, order, administrative
regulation or administrative or court decree of any court or
governmental agency or body having jurisdiction over the Selling
Stockholder.
(iii) The Selling Stockholder has, and immediately prior to
each Time of Delivery the Selling Stockholder will have, through SC
Capital Incorporated, a Nevada corporation, SC Realty Incorporated, a
Nevada corporation, Security Capital Operations Incorporated, a
Maryland corporation and Security Capital Office Business Trust, a
Maryland real estate investment trust, each an indirect wholly owned
subsidiary of the Selling Stockholder, good, valid and marketable
title to the Shares to be sold by the Selling Stockholder hereunder,
free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities; and, upon delivery of such Shares
and payment therefor pursuant hereto, good, valid and marketable title
to such Shares, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities, will pass to the
several Underwriters.
(iv) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, the Selling Stockholder shall not offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the
Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Common Stock of the Company or any such substantially similar
securities, without the prior written consent of the Representatives.
(v) The Selling Stockholder has not taken and will not
take, directly or indirectly, any action in violation of Regulation M
promulgated under the 1934 Act, which action is designed to or which
has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares.
(vi) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto are made in reliance upon and
in conformity with written information furnished to the Company by the
Selling Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and
any further amendments or supplements to the
9
Registration Statement and the Prospectus, when they become effective
or are filed with the Commission, as the case may be, will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(vii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Stockholder will deliver to the
Representatives prior to or at each Time of Delivery a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
SECTION 2. Sale and Delivery to the Underwriters; Closing.
----------------------------------------------
(a) Subject to the terms and conditions herein set forth, (i)
the Selling Stockholder agrees to sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the Selling
Stockholder, at a purchase price per share of $26.88075, the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto, and
(ii) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Selling Stockholder
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Selling Stockholder, at the
purchase price per share set forth in clause (i) of this Section 2(a), that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
(b) The Selling Stockholder hereby grants to the Underwriters
the right to purchase at their election up to 2,530,880 Optional Shares, at the
purchase price per share set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the
Selling Stockholder, given within a period of 30 calendar days after the date of
this Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery or,
unless you and the Selling Stockholder otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
(c) Upon the authorization by the Selling Stockholder of the
release of the Firm Shares, the several Underwriters propose to offer the Firm
Shares for sale upon the terms and conditions set forth in the Prospectus.
(d) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Selling Stockholder shall be delivered by or on behalf of the
Selling Stockholder to Xxxxxxx, Sachs & Co., through the facilities of the
Depository Trust Company ("DTC"), for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Selling Stockholder to Xxxxxxx, Xxxxx & Co. at least forty-eight hours in
advance. The Company will cause the certificates representing the Shares to be
made available for checking and packaging at least twenty-four hours prior to
the Time of Delivery (as defined below) with respect thereto at the office of
10
DTC or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
New York time, on December 19, 2001 or such other time and date as Xxxxxxx,
Sachs & Co. and the Selling Stockholder may agree upon in writing, and, with
respect to the Optional Shares, 9:30 a.m., New York time, on the date specified
by Xxxxxxx, Xxxxx & Co. in the written notice given by Xxxxxxx, Sachs & Co. of
the Underwriters' election to purchase such Optional Shares, or such other time
and date as Xxxxxxx, Xxxxx & Co. and the Selling Stockholder may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery". The Representatives, individually and not as representatives of the
Underwriters may (but shall not be obligated to) make payments of the purchase
price for the Firm Shares or the Optional Shares, if any, to be purchased by any
Underwriter whose funds have not been received by the applicable Time of
Delivery, but any such payment shall not relieve such Underwriter from its
obligations hereunder.
(e) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 5 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 5(f) hereof will be delivered at the offices of
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Closing Location"), and the Shares will be delivered at the Designated
Office, all at such Time of Delivery. A meeting will be held at the Closing
Location at 2 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 2, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
SECTION 3. Covenants of the Company. The Company covenants with
------------------------
each Underwriter as follows:
(a) In respect to each offering of the Shares, the Company will
prepare a Prospectus Supplement setting forth the number of Shares covered
thereby and their terms not otherwise specified in the Prospectus pursuant to
which the Shares are being offered, the names of the Underwriters participating
in the offering and the number of Shares 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 Shares are to be purchased by the
Underwriters from the Selling Stockholder, 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 Shares; 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 this 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
11
Statement by 10:00 p.m. on the date of this 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 and the Selling
Stockholder 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 Shares, the
Company will give the Representatives and the Selling Stockholder 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 and the Selling
Stockholder with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing and, unless required by law, will not file
or use any such amendment or supplement or other documents in a form to which
the Representatives or counsel for the Underwriters shall reasonably object.
(e) The Company will deliver to the Representatives and the
Selling Stockholder 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 Shares 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
12
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 Shares 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 Shares.
(i) 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 Rule 158) of the Registration
Statement.
(j) 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.
(k) 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.
(l) During the 90 days after the date of the Prospectus, the
Company will not, and will cause the Partnerships not to, without the prior
written consent of Xxxxxxx, Xxxxx & Co., directly or indirectly, sell, offer to
sell, transfer, hypothecate, grant any option for the sale of, or otherwise
dispose of, any securities of the same class or series or ranking on a parity
with any Shares or any security convertible into or exchangeable for such
Shares. 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.
(m) The Company will use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust" under the Code.
(n) During the period from the First Time of Delivery until five
years after the First Time of Delivery, the Company will deliver to the
Representatives, (i) promptly upon their becoming available, copies of all
current, regular and periodic reports of the Company mailed to its stockholders
or filed with any securities exchange or with the Commission or any governmental
authority succeeding to any of the Commission's functions, and (ii) such other
information concerning the Company and the Partnerships as the Representatives
may reasonably request.
SECTION 4. Payment of Expenses. The Company and the Selling
-------------------
Stockholder covenant and agree with one another and with the several
Underwriters that: (a) the Company will pay all expenses incident to the
performance of the Company's obligations under this Agreement, including (i) the
fees and disbursements of counsel and independent public accountants for the
Company incurred in connection with the Company's performance of or compliance
with this Agreement, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and compliance,
(ii) the cost of preparing stock certificates, (iii) the cost and charges of any
transfer agent or registrar, and (iv) any premiums and other costs of policies
of insurance obtained by the Company against liabilities arising
13
out of the sale of any securities; and (b) the Selling Stockholder will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) all registration, filing and stock exchange or National
Association of Securities Dealers, Inc. fees (including legal fees in connection
therewith), (ii) all fees and expenses of its compliance with securities or blue
sky laws, (iii) all printing expenses, messenger and delivery expenses, (iv) any
fees and disbursements of any separate counsel retained by the Selling
Stockholder, (v) all underwriting discounts and commissions, (vi) any premiums
and other costs of policies of insurance obtained by the Selling Stockholder
against liabilities arising out of the offering of the Shares, (vii) all
expenses and taxes incident to the sale and delivery of the Shares to be sold by
the Selling Stockholder to the Underwriters hereunder, and (viii) all travel and
other expenses incurred by the Company and the Selling Stockholder in connection
with the marketing of the investor road show for the offering. In connection
with clause (b)(vii) of the preceding sentence, Xxxxxxx, Xxxxx & Co. agrees to
pay New York State stock transfer tax, and the Selling Stockholder agrees to
reimburse Xxxxxxx, Sachs & Co. for associated carrying costs if such tax payment
is not rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that the Company shall bear, and the Selling
Stockholder shall not be required to pay or to reimburse the Company for, the
cost of any other matters not directly relating to the sale and purchase of the
Shares pursuant to this Agreement, and that, except as provided in this Section,
and Section 6 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees and expenses of their counsel, stock transfer taxes
on resale of any of the Shares by them, and any advertising expenses connected
with any offers they may make.
If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company and the Selling Stockholder 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 Shares are not delivered by or on behalf of the Selling
Stockholder as provided herein, the Company and the Selling Stockholder 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 Shares not so delivered, but the Company and the Selling
Stockholder 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 each Time of Delivery, of the representations and warranties of the
Company and the Selling Stockholder herein contained, to the performance by each
of the Company and the Selling Stockholder of its obligations hereunder, and to
the following further conditions:
(a) At each Time of Delivery, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission; (ii)
if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations,
the public offering price of the Shares 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 Time of Delivery, 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; and (iii) 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 Shares, 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
14
the Commission for filing and have become effective within the prescribed time
period, and, prior to each Time of Delivery, 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 the First Time of Delivery the Representatives shall have received:
(1) The favorable opinion, dated as of the First Time of Delivery, 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 is incorporated, existing and in good standing
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, 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, 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. Each of the
Partnerships is qualified or registered as a foreign partnership, as
of the dates of the certificates identified elsewhere in the opinion
letter, in those states in which such Partnership owns Properties.
(iii) Each of CarrAmerica GP Holdings, Inc., Xxxx Real Estate
Services, Inc. and Xxxx Development & Construction, Inc.
(collectively, the "Significant Subsidiaries") was incorporated,
existing and in good standing as of the date of its respective
certificate identified elsewhere in the opinion letter under the
Delaware General Corporation Law. Each of the Significant Subsidiaries
has the corporate power and corporate authority under its charter and
the Delaware General Corporation Law to own, lease and operate its
properties and to conduct its business as described in the Prospectus.
(iv) The 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", and all of the issued shares of capital
stock of the Company (including the Shares) have been duly and validly
authorized and issued and are fully paid and non-assessable under the
Maryland General Corporation Law. 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
15
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 form of stock certificate used to evidence the
Shares is in due and proper form and complies with all applicable
legal requirements.
(vi) This Agreement was duly authorized, executed and
delivered on behalf of the Company.
(vii) The execution, delivery and performance as of the
date hereof of this Agreement and the performance of the
obligations set forth herein 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.
(viii) None of the Company or either of the Partnerships is
an investment company as such term is defined under the 1940 Act.
(ix) 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, 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.
(x) 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.
(xi) 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.
16
(xii) At the time the Registration Statement became
effective and at the First Time of Delivery 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.
(xiii) The statements made in the Prospectus under the
headings entitled "Description of Common Stock" 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 law or legal
conclusions, have been reviewed by them and is correct in all
material respects.
(xiv) 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 Shares.
(2) The favorable opinion, dated as of the First Time of
Delivery, of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel to the
Underwriters, in form and substance satisfactory to the Underwriters.
(3) The favorable opinion, dated as of the First Time of
Delivery, of Xxxxxxx X. Xxxxx, Senior Vice President, Secretary and
General Counsel for the Selling Stockholder, in form and substance
reasonably satisfactory to counsel to the Underwriters to the effect
that:
(i) This Agreement has been duly executed and delivered
by or on behalf of the Selling Stockholder; and the sale of the
Shares to be sold by the Selling Stockholder hereunder and the
compliance by the Selling Stockholder with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or constitute a breach or
violation by the parties thereto of, or default under, (1) any
contract, indenture, mortgage, loan agreement, note, lease, joint
venture or partnership agreement or other instrument or agreement
known by such counsel, which in each case is material, to which
the Selling Stockholder is a party, or by which the Selling
Stockholder is or may be bound or subject, (2) the articles of
incorporation and by-laws of the Selling Stockholder or (3) any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder;
(ii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement
in connection with the Shares to be sold by the Selling
Stockholder hereunder, except such as have been obtained under
the 1933 Act and such as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution
of such Shares by the Underwriters;
17
(iii) Immediately prior to the First Time of Delivery, the
Selling Stockholder, through SC Capital Incorporated, a Nevada
corporation, SC Realty Incorporated, a Nevada corporation,
Security Capital Operations Incorporated, a Maryland corporation
and Security Capital Office Business Trust, a Maryland
corporation, had good, valid and marketable title to the Shares
to be sold at the First Time of Delivery by the Selling
Stockholder under this Agreement, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and
equities, and full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by the Selling
Stockholder hereunder; and
(iv) Good, valid and marketable title to such Shares, free
and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities other than those, if any,
created by the Underwriters or the Company, has been transferred
to each of the several Underwriters.
(4) 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, 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, as to which such counsel need
express no belief), at the Representation Date or, 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., Xxxxxxxx Chance
Xxxxxx & Xxxxx LLP and Xxxxxxx X. Xxxxx 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.
18
(c) At the First Time of Delivery, (i) no action, suit or proceeding
at law or in equity shall be pending or, to the knowledge of the Company and the
Partnerships, threatened against the Company, the Partnerships and any
Subsidiary which would be required to be set forth in the Prospectus other than
as set forth therein; (ii) there shall not have been, since the 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; (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 First Time of Delivery, evidencing compliance with the provisions of this
subsection (c) and stating that the representations and warranties of the
Company in Section 1 hereof are true and correct with the same force and effect
as though expressly made at and as of First Time of Delivery; and (vi) the
Representatives shall have received a certificate of officers of the Selling
Stockholder, satisfactory to you, stating that the representations and
warranties of the Selling Stockholder in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of the First
Time of Delivery.
(d) On the date of the Prospectus at a time prior to the execution of
this Agreement and at 9:30 a.m. (New York City time) on the effective date of
any post-effective amendment to the Registration Statement filed subsequent to
the date of this 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
19
amounts in the compilations of the statements or (D) at a specified date not
more than five days prior to the date of such letter, 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 such letter, there
were any decreases, as compared with the corresponding period in the preceding
year, in revenues, net income or funds from operations of the Company except in
all instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (iv) in
addition to the audit referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information which are included in the Registration
Statement and Prospectus and which are specified by the Representatives, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company identified in such letter.
(e) At the First Time of Delivery, the Representatives shall have
received from KPMG LLP a letter, dated the First Time of Delivery, 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 First Time of Delivery.
(f) At each Time of Delivery, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the sale of the Shares 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 and the Selling
Stockholder in connection with the sale of the applicable Shares as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriter.
(g) In the event that the Underwriters exercise their option provided
in Section 2(b) hereof to purchase all or any portion of the Optional Shares,
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 the Second Time of Delivery and, at the Second Time of
Delivery, the Representatives shall have received:
(1) A certificate, dated the Second Time of Delivery, of the
President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, and a
certificate, dated the Second Time of Delivery, of officers of the
Selling Stockholder, in each case confirming that their respective
certificates delivered at the First Time of Delivery 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 Underwriters, dated the
Second Time of Delivery, relating to the Optional Shares to be
purchased on the Second Time of Delivery and otherwise to the same
effect as the opinions required by Section 5(b)(1) hereof (including
the statement of belief required by Section 5(b)(4) hereof).
(3) The favorable opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP,
counsel for the Underwriters, dated the Second Time of Delivery,
relating to the Optional Shares
20
to be purchased on the Second Time of Delivery and otherwise to the
same effect as the opinion required by Section 5(b)(2) hereof
(including the statement of belief required by Section 5(b)(4)
hereof).
(4) The favorable opinion of Xxxxxxx X. Xxxxx in form and
substance satisfactory to counsel for the Underwriters, dated the
Second Time of Delivery, relating to the Optional Shares to be
purchased on the Second Time of Delivery and otherwise to the same
effect as the opinions required by Section 5(b)(3) hereof.
(5) A letter from KPMG LLP, in form and substance satisfactory to
the Representatives and dated the Second Time of Delivery,
substantially the same in form and substance as the letter furnished
to the Representatives pursuant to Section 5(e) hereof, except that
the "specified date" in the letter furnished pursuant to this Section
5(i)(4) shall be a date not more than five days prior to the Second
Time 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 the Time of
Delivery and such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof.
SECTION 6. Indemnification.
---------------
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the 1933 Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, any preliminary
prospectus, Prospectus, preliminary prospectus supplement or Prospectus
Supplement, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, such preliminary prospectus, preliminary prospectus
supplement or the Prospectus or Prospectus Supplement, or any such amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company (a) by the Selling Stockholder expressly for use 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), or (b) by any Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use under the caption "Plan of
Distribution" or "Underwriting" in the Registration Statement (or any amendment
thereto) or such preliminary prospectus, preliminary prospectus supplement or
the Prospectus or Prospectus Supplement (or any amendment or supplement
thereto).
(b) The Selling Stockholder will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities 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
21
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 the Selling Stockholder expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus, preliminary
prospectus supplement or the Prospectus or Prospectus Supplement (or any
amendment or supplement thereto); and will reimburse 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 Selling Stockholder 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 (a) by the Company or
(b) by any Underwriter through Xxxxxxx, Sachs & Co. expressly for use under the
caption "Plan of Distribution" or "Underwriting" in the Registration Statement
(or any amendment thereto) or such preliminary prospectus, preliminary
prospectus supplement or the Prospectus or Prospectus Supplement (or any
amendment or supplement thereto).
(c) Each Underwriter will indemnify and hold harmless the Company and
the Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or the Selling Stockholder 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 Xxxxxxx, Xxxxx & Co. expressly for use under the caption "Plan of
Distribution" or "Underwriting" in the Registration Statement (or any amendment
thereto) or such preliminary prospectus, preliminary prospectus supplement or
the Prospectus or Prospectus Supplement (or any amendment or supplement
thereto); and will reimburse the Company or the Selling Stockholder, as the case
may be, for any legal or other expenses reasonably incurred by the Company or
the Selling Stockholder in connection with investigating or defending any such
action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) 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
22
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.
(e) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (c) 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 hand from the offering of the Shares. 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 (d) 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 Company and the Underwriters agree
that the relative benefits received by the Company on the one hand and the
Underwriters on the other hand shall be deemed to be in the same proportion as
the total net proceeds received by the Selling Stockholder from the offering of
the Shares (before deducting expenses) bear to the total underwriting discounts
and commissions, in each case as set forth 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 (e) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (e). 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 (e) 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 (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it pursuant to this 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.
(f) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (b) or (c) 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
23
relative benefits received by the Selling Stockholder on the one hand and the
Underwriters on the other from the offering of the Shares. 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 (d) 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 Selling Stockholder 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 Selling Stockholder 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 Shares (before deducting expenses) received by the Selling
Stockholder 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 Selling Stockholder 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 Selling Stockholder and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (f) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (f). 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 (f) 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 (f), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it pursuant to this 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.
(g) The obligations of the Company and the Selling Stockholder under
this Section 6 shall be in addition to any liability which the Company and the
Selling Stockholder 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 or the Selling Stockholder within the meaning of
the 1933 Act.
SECTION 7. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this 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
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company or the Selling Stockholder and shall survive
delivery of the Shares to the Underwriters.
SECTION 8. Termination of Agreement.
------------------------
(a) The Representatives may terminate this Agreement, by notice to
the Company and the Selling Stockholder, at any time at or prior to a Time of
Delivery: (i) if either the Company, the Partnerships or the Subsidiaries shall
have sustained since the date of the latest audited financial
24
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 this
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 a suspension or material
limitation in trading in securities generally on the New York Stock Exchange; or
(iv) if there has occurred a suspension or material limitation in trading in the
Common Stock on the New York Stock Exchange; or (v) if there has been declared a
general moratorium on commercial banking activities by either Federal or New
York authorities or if there has occurred a material disruption in commercial
banking or securities settlement or clearance services in the United States; or
(vi) if there has been an outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war; or (vii) if there has occurred any other calamity or crisis in the United
States or elsewhere resulting in a material disruption in the U.S. financial
markets, if the effect of any such event specified in Clause (i), (ii), (vi) or
(vii) 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 Shares being delivered at such Time of Delivery 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 Shares.
(b) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Shares shall remain in effect so
long as any Underwriter owns any such Shares purchased from the Company pursuant
to this 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 Underwriters shall fail at the Time of Delivery to purchase the Shares which
it or they are obligated to purchase hereunder (the "Defaulted Shares"), 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 Shares 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 Shares does not exceed 10% of the
Shares to be purchased hereby, each of the non-defaulting Underwriters
named herein 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 Shares exceeds 10% of the Shares to be
purchased hereby, then this 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.
25
In the event of any such default which does not result in a
termination of this Agreement, each of the Representatives or the Company shall
have the right to postpone the Time of Delivery 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 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 Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention Registration Department; notices to the Company
shall be directed to 0000 X Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000,
attention of Xxxxxx X. Xxxx; notices to the Selling Stockholder shall be
directed to Security Capital Group Incorporated, 000 Xxxxxxx Xxxxxx, Xxxxx Xx,
Xxx Xxxxxx 00000, attention of Xxxxxxx X. Xxxxx.
SECTION 11. Parties. This Agreement shall inure to the benefit of and
-------
be binding upon the parties hereto and their respective successors. Nothing
expressed or mentioned in this 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 any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto 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 Shares from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 12. Governing Law and Time. This 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 such State. Specified times of day
refer to New York City time.
26
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, the Company and the Selling Stockholder in accordance with its
terms.
Very truly yours,
CARRAMERICA REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ C. Xxxxxx Xxxxxxxxxxx
--------------------------------------
Name: C. Xxxxxx Xxxxxxxxxxx
Title: Vice Chairman
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX, SACHS & CO.
XXXXXXX XXXXX XXXXXX INC.
FIRST UNION SECURITIES, INC.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
BANC OF AMERICA SECURITIES, LLC
DEUTSCHE BANC ALEX. XXXXX INC.
X.X. XXXXXXX & SONS, INC.
/s/ Xxxxxxx, Sachs & Co.
-------------------------------
(Xxxxxxx, Xxxxx & Co.)
27
Schedule I
----------
Underwriter Name Amount of Amount of
---------------- --------- ---------
Firm Shares Optional Shares*
----------- ---------------
Xxxxxxx, Sachs & Co. 7,363,142 1,104,471
Xxxxxxx Xxxxx Xxxxxx Inc. 3,747,020 562,053
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 1,423,540 213,532
First Union Securities, Inc. 1,423,540 213,532
Banc of America Securities LLC 801,765 120,264
Deutsche Banc Alex. Xxxxx Inc. 801,765 120,264
X.X. Xxxxxxx & Sons, Inc. 801,765 120,264
Commerzbank Capital Markets Corporation 170,000 25,500
Credit Suisse First Boston Corporation 170,000 25,500
Prudential Securities Incorporated 170,000 25,500
Total: 16,872,537 2,530,880
________________________
*Assumes full exercise of overallotment option.
28
