EXHIBIT 7
SUBSCRIPTION AGREEMENT
by and among
CARRAMERICA REALTY CORPORATION
SECURITY CAPITAL HOLDINGS S.A.
and
SECURITY CAPITAL U.S. REALTY
dated as of
January 31, 1997
TABLE OF CONTENTS
Page
1. SUBSCRIPTION; CLOSING................................ 2
1.1. Subscription for Company Common Stock........ 2
1.2. Acceptance of Subscription................... 2
1.3. Purchase Price............................... 2
1.4. Closing...................................... 2
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY........ 2
2.1. Organization and Qualification............... 2
2.2. Authority Relative to the Agreement;
Board Approval............................... 3
2.3. Capital Stock................................ 3
2.4. No Conflicts; No Defaults; Required
Filings and Consents......................... 4
2.5. Securities Law Matters; Material Changes;
Corporate Action Covenants................... 5
2.6. Litigation; Compliance With Law.............. 6
2.7. Tax Matters; REIT and Partnership Status..... 6
2.8. Compliance with Organizational Documents..... 7
2.9. Maryland Takeover Law........................ 7
2.10. Brokers or Finders........................... 7
3. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER AND
THE ADVANCING PARTY
3.1. Organization and Standing.................... 8
3.2. Due Authorization............................ 8
3.3. Conflicting Agreements and Other Matters..... 8
3.4. Source of Funds.............................. 8
3.5. Brokers or Finders........................... 9
3.6. REIT Qualification Matters................... 9
3.7. Investment Company Matters................... 9
4. CONDITIONS TO CLOSING................................. 9
4.1. Conditions to Obligations of Subscriber...... 9
4.2. Conditions to Obligations of the Company..... 10
5. SURVIVAL; INDEMNIFICATION............................ 11
5.1. Survival..................................... 11
5.2. Indemnification by Subscriber or
the Company.................................. 11
5.3. Third-Party Claims........................... 12
6. MISCELLANEOUS........................................ 13
6.1. Counterparts................................. 13
6.2. Governing Law................................ 13
6.3. Entire Agreement............................. 13
6.4. Notices...................................... 13
6.5. Successors and Assigns....................... 14
6.6. Headings..................................... 14
6.7. Amendments and Waivers....................... 14
6.8. Expenses..................................... 15
6.9. Severability................................. 15
6.10. Further Assurances........................... 15
6.11. Joint and Several Liability; Guaranty........ 15
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SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is
entered into as of January 31, 1997 by and among CarrAmerica
Realty Corporation, a Maryland corporation (the "Company"),
Security Capital U.S. Realty, a Luxembourg corporation (the
"Advancing Party"), and Security Capital Holdings S.A., a
Luxembourg corporation and a wholly owned subsidiary of the
Advancing Party ("Subscriber"). Capitalized terms not otherwise
defined herein have the meanings ascribed to them in the
Stockholders Agreement (as hereinafter defined).
WHEREAS, in connection with the Company's issuance and
sale to Subscriber on April 30, 1996 of 11,627,907 shares of the
Company's common stock, par value $0.01 per share (the "Company
Common Stock"), the Company, Xxxx Realty, L.P., a Delaware limited
partnership ("Xxxx Realty, L.P."), the Advancing Party and
Subscriber entered into a Stockholders Agreement on such date (the
"Stockholders Agreement");
WHEREAS, pursuant to the terms of the Stockholders
Agreement, in the event that the Company issues or sells shares of
capital stock of the Company, Investor is, during a specified
term, entitled (except in certain limited circumstances) to a
participation right to purchase, or subscribe for, a total number
of shares generally equal to up to 30% of the total number of
shares of capital stock proposed to be issued by the Company (the
"Participation Rights");
WHEREAS, the Company has offered and sold in a public
offering (the "Public Offering") 3,450,000 shares (the "Public
Shares") of Company Common Stock;
WHEREAS, in connection with the Public Shares to be
issued by the Company in the Public Offering, Investor is entitled
to, and has indicated to the Company that it desires to, exercise
its Participation Rights; and
WHEREAS, in accordance with Investor's desire to
exercise its Participation Rights, the Company desires to issue
and sell to Subscriber shares of Company Common Stock in an
offering (the "Concurrent Purchase") from the Company to
Subscriber.
NOW, THEREFORE, in consideration of the foregoing and of
the mutual covenants and agreements hereinafter set forth, the
parties hereto hereby agree as follows:
1. SUBSCRIPTION; CLOSING
1.1. SUBSCRIPTION FOR COMPANY COMMON STOCK
(a) Subject to the terms and conditions hereof,
Subscriber hereby subscribes (the "Subscription") to purchase
1,478,570 shares of Company Common Stock (the "Concurrent
Shares").
(b) Investor hereby agrees that the Subscription
represents the complete and exclusive exercise of its
Participation Rights with regard to the Public Offering.
1.2. ACCEPTANCE OF SUBSCRIPTION
Subject to the terms and conditions hereof, the Company
hereby accepts the Subscription.
1.3. PURCHASE PRICE
The per share purchase price (the "Per Share Purchase
Price") for the Concurrent Shares shall be $28.25 for an aggregate
purchase price of $41,769,602.50 (the "Purchase Price").
1.4. CLOSING
Subject to the terms and conditions hereof, the closing
of the Concurrent Purchase (the "Closing") shall occur on the date
hereof. At the Closing, the Company will sell, convey, assign,
transfer and deliver, and Subscriber will purchase and acquire
(and the Advancing Party shall advance sufficient funds for such
purchase) from the Company, the Concurrent Shares, and Subscriber
will pay to the Company the Purchase Price by wire transfer of
immediately available funds in U.S. dollars to the account or
accounts specified by the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Subscriber
as follows:
2.1. ORGANIZATION AND QUALIFICATION
(a) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Maryland. The Company has all requisite corporate power and
authority to own, operate, lease and encumber its properties and
carry on its business as described in the Company
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Prospectus (as hereinafter defined), and to enter into this
Agreement and to perform its obligations hereunder.
(b) Each of the Significant Subsidiaries of the Company
is a corporation, partnership or limited liability company duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation or organization, and has the
corporate or partnership power and authority to own its properties
and carry on its business as it is now being conducted.
(c) Each of the Company and its Significant
Subsidiaries is duly qualified to do business and in good standing
in each jurisdiction in which the ownership of its property or the
conduct of its business requires such qualification, except for
any failures to be so qualified or to be in good standing as would
not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
(d) The issue and sale of the Concurrent Shares
hereunder will not give any stockholder of the Company the right
to demand payment for his shares under the Maryland General
Corporation Law.
2.2. AUTHORITY RELATIVE TO THE AGREEMENT; BOARD APPROVAL
(a) The execution, delivery and performance of this
Agreement have been duly and validly authorized by all necessary
corporate action on the part of the Company. This Agreement has
been duly executed and delivered by the Company for itself and
constitutes the valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights or general
principles of equity.
(b) The Board of Directors of the Company has, as of
the date hereof, approved the transactions contemplated hereby.
(c) The Concurrent Shares have been duly authorized for
issuance, and upon issuance will be duly and validly issued, fully
paid and nonassessable.
2.3. CAPITAL STOCK
All of the issued and outstanding shares of capital
stock of the Company are duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights (excluding any
preemptive rights that Investor may have under the Stockholders
Agreement).
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2.4. NO CONFLICTS; NO DEFAULTS; REQUIRED FILINGS AND CONSENTS
Neither the execution and delivery by the Company hereof
nor the consummation by the Company of the transactions
contemplated hereby in accordance with the terms hereof, will:
(a) conflict with or result in a breach of any
provisions of the Company Charter or By-laws of the Company;
(b) result in a breach or violation of, a default
under, or the triggering of any payment or other obligations
pursuant to, or accelerate vesting under, any of the Company stock
option plans or Partnership (as defined below) Unit (as defined
below) option plans or similar compensation plan or any grant or
award made under any of the foregoing, except as would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect;
(c) violate or conflict with any statute, regulation,
judgment, order, writ, decree or injunction applicable to the
Company, except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect;
(d) violate or conflict with or result in a breach of
any provision of, or constitute a default (or any event which,
with notice or lapse of time or both, would constitute a default)
under, or result in the termination or in a right of termination
or cancellation of, or accelerate the performance required by, or
result in the creation of any Lien upon any of the properties of
the Company under, or result in being declared void, voidable or
without further binding effect, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of trust
or any license, franchise, permit, lease, contract, agreement or
other instrument, commitment or obligation to which the Company is
a party, or by which the Company or any of its properties is bound
or affected, except for any of the foregoing matters which would
not reasonably be expected to, individually or in the aggregate,
result in a Material Adverse Effect; or
(e) require any consent, approval or authorization of,
or declaration, filing or registration with any Governmental
Authority, other than any filings required under the Securities
Act, the Exchange Act, Blue Sky Laws and any filings required to
be made with any national securities exchange on which the Company
Common Stock is listed, except as would not, individually or in
the aggregate, reasonably expected to result in a Material Adverse
Effect.
(f) For purposes hereof, the terms listed below shall
have the following meanings:
"Partnerships" shall mean, collectively, Xxxx
Realty, L.P. and CarrAmerica Realty, L.P., Delaware limited
partnerships.
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"Units" shall mean units of partnership interest in
the Partnerships.
2.5. SECURITIES LAW MATTERS; MATERIAL CHANGES; CORPORATE
ACTION COVENANTS
(a) As of the date hereof and as of the date of the
Closing, the Company Prospectus does not and will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(b) The documents incorporated or deemed to be
incorporated by reference in the Company Prospectus pursuant to
Item 12 of Form S-3 under the Securities Act, at the time they
were or hereafter are filed with the SEC, complied and will comply
in all material respects with the requirements of the Exchange Act
and the rules and regulations of the SEC under the Exchange Act,
and, when read together with the other information in the Company
Prospectus, as of the date hereof and as of the date of the
Closing, 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.
(c) Since the respective dates as of which information
is given in the Company Prospectus, except as otherwise stated
therein, (A) there has been no change in the condition, financial
or otherwise, or in the earnings, assets or business affairs of
the Company and the Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, except
as would not reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Effect, (B) no casualty
loss or condemnation or other 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 or any
entity wholly or partially owned by the Company has occurred,
except as would not reasonably be expected to, individually or in
the aggregate, result in a Material Adverse Effect, (C) except for
regular quarterly dividends on the Common Stock and distributions
with respect to the Units and dividends on the Preferred Stock in
amounts per share or Unit that are, in each case, consistent with
past practice, 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 (D) with the exception of transactions in connection
with stock and Unit options and in connection with dividend
reinvestment plans, the issuance of shares of Common Stock upon
the exchange of Units of the Partnerships and the issuance of
Units of the Partnerships 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 member interests, as the
case may be, of the Company or any Subsidiary, and no
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increase in the indebtedness of the Company or any Subsidiary,
that is material to such entities considered as one enterprise.
(d) The financial statements (including the notes
thereto) included in, or incorporated by reference into, the
Company Prospectus present fairly the financial position of the
respective entity or entities presented therein at the respective
dates indicated (if such financial position is presented) and the
results of their operations for the respective periods specified
and, except as otherwise stated in the Company Prospectus, said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis.
(e) As of the date hereof, the Company and its
Controlled Subsidiaries have complied in all material respects
with the Corporate Action Covenants set forth in Section 6.1 of
the Stockholders Agreement.
(f) For purposes hereof, "Company Prospectus" shall
mean, collectively, the Prospectus dated November 5, 1996 and the
Prospectus Supplement dated January 31, 1997 relating to the
shares of Company Common Stock to be offered to the Subscriber, a
copy of which is attached hereto as Exhibit A.
2.6. LITIGATION; COMPLIANCE WITH LAW
(a) There are no Actions pending or, to the Company's
knowledge, threatened against the Company or any of its
Significant Subsidiaries that would, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect, or which question the validity hereof or any action taken
or to be taken in connection herewith. There are no continuing
orders, injunctions or decrees of any Government Authority to
which the Company or any of its Significant Subsidiaries is a
party or by which any of its properties or assets are bound.
(b) None of the Company or its Significant Subsidiaries
is in violation of any statute, rule, regulation, order, writ,
decree or injunction of any Government Authority or any body
having jurisdiction over them or any of their respective
properties which, if enforced, would, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect.
2.7. TAX MATTERS; REIT AND PARTNERSHIP STATUS
(a) The Company (i) intends in its federal income tax
return for the tax year ended on December 31, 1996, and in its
federal income tax return for the tax year that will end on
December 31, 1997, to elect to be taxed as a REIT within the
meaning of Section 856 of the Code, and has complied (or will
comply) with all applicable provisions of the Code relating to a
REIT for 1997, (ii) has operated, and
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intends to continue to operate, in such a manner as to qualify as
a REIT for 1997, (iii) has not taken or omitted to take any action
which would reasonably be expected to result in a challenge to its
status as a REIT, and, to the Company's knowledge, no such
challenge is pending or threatened, and (iv) to the Company's
knowledge, and assuming the accuracy of Subscriber's
representation in Section 3.7, will not be rendered unable to
qualify as a REIT for federal income tax purposes as a consequence
of the transactions contemplated hereby.
(b) The Company was eligible to and did validly elect
to be taxed as a REIT for federal income tax purposes for calendar
years 1993, 1994, and 1995. Each Partnership and each subsidiary
of the Company organized as a partnership (and any other
subsidiary of the Company that files tax returns as a partnership
for federal income tax purposes) was and continues to be
classified as a partnership for federal income tax purposes.
(c) For purposes of this Section 2.7, no representation
set forth in Section 2.7 shall be deemed to be untrue unless such
untruths would, individually or in the aggregate, be reasonably
expected to result in a Material Adverse Effect.
2.8. COMPLIANCE WITH ORGANIZATIONAL DOCUMENTS
Neither the Company nor any of its Significant
Subsidiaries is in default under or in violation of any provision
of the Company Charter or the By-laws of the Company or the
Partnership Agreement (or equivalent documents), except for such
defaults or violations which would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect.
2.9. MARYLAND TAKEOVER LAW
The terms of Section 3-602 and Subtitle 7 of Title 3 of
the Maryland General Corporation Law will not apply to Subscriber,
the Subscription or any other transaction contemplated hereby.
2.10. BROKERS OR FINDERS
No agent, broker, investment banker or other firm or
person, including any of the foregoing that is an Affiliate of the
Company, is or will be entitled to any broker's or finder's fee or
any other commission or similar fee from the Company in connection
with this Agreement or any of the transactions contemplated hereby
for which Subscriber will be responsible.
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3. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER AND THE
ADVANCING PARTY
Subscriber and the Advancing Party hereby jointly and
severally represent and warrant to the Company as follows:
3.1. ORGANIZATION AND STANDING
Each of Subscriber and the Advancing Party is a
corporation duly incorporated, validly existing and in good
standing under the laws of Luxembourg. Subscriber has all
requisite corporate power and authority to own, operate, lease and
encumber its properties and carry on its business as now
conducted, and to enter into this Agreement and to perform its
obligations hereunder.
3.2. DUE AUTHORIZATION
The execution, delivery and performance of this
Agreement have been duly and validly authorized by all necessary
corporate action on the part of Subscriber and the Advancing
Party. This Agreement has been duly executed and delivered by
each of Subscriber and the Advancing Party for itself and
constitutes the valid and legally binding obligations of
Subscriber and the Advancing Party, enforceable against Subscriber
or the Advancing Party, as the case may be, in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights or general
principles of equity.
3.3. CONFLICTING AGREEMENTS AND OTHER MATTERS
Neither the execution and delivery of this Agreement nor
the performance by Subscriber or the Advancing Party, as the case
may be, of its obligations hereunder will conflict with, result in
a breach of the terms, conditions or provisions of, constitute a
default under, result in the creation of any mortgage, security
interest, encumbrance, lien or charge of any kind upon any of the
properties or assets of Subscriber or the Advancing Party, as the
case may be, pursuant to, or require any consent, approval or
other action by or any notice to or filing with any Government
Authority pursuant to, the organizational documents or agreements
of Subscriber or the Advancing Party, as the case may be, or any
agreement, instrument, order, judgment, decree, statute, law, rule
or regulation by which Subscriber or the Advancing Party, as the
case may be, is bound, except for filings after any Closing under
Section 13(d) of the Exchange Act.
3.4. SOURCE OF FUNDS
At the Closing, the Advancing Party shall have available
and shall advance to Subscriber all of the funds necessary to
satisfy Subscriber's obligations
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hereunder and to pay any related fees and expenses in connection
with the foregoing.
3.5. BROKERS OR FINDERS
No agent, broker, investment banker or other firm or
person, including any of the foregoing that is an Affiliate of
Subscriber or the Advancing Party, is or will be entitled to any
broker's or finder's fee or any other commission or similar fee
from Subscriber or the Advancing Party in connection with this
Agreement or the transactions contemplated hereby for which the
Company will be responsible.
3.6. REIT QUALIFICATION MATTERS
To Subscriber's knowledge, no person which would be
treated as an "individual" for purposes of Section 542(a)(2) of the
Code (as modified by Section 856(h) of the Code) owns or would be
considered to own (taking into account the ownership attribution
rules under Section 544 of the Code, as modified by Section 856(h)
of the Code) in excess of 9.8% of the value of the outstanding
equity interest in Subscriber or the Advancing Party.
3.7. INVESTMENT COMPANY MATTERS
Neither the Advancing Party nor Subscriber is, and after
giving effect to the purchase of the Concurrent Shares, neither
will be, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
4. CONDITIONS TO CLOSING
4.1. CONDITIONS TO OBLIGATIONS OF SUBSCRIBER
The obligations of Subscriber to purchase and pay for
the Concurrent Shares at the Closing are subject to satisfaction
or waiver of each of the following conditions precedent:
(a) The Closing of the Public Offering shall have
occurred.
(b) The representations and warranties of the Company
contained herein shall have been true and correct in all respects
on and as of the date hereof, and shall be true and correct in all
respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the
date of the Closing (except for representations and warranties
that speak as of a specific date or time other than the date of
the Closing (which need only be true and correct in all respects
as of such date or time)), other than, in all such cases, such
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failures to be true and/or correct as would not in the aggregate
reasonably be expected to have a Material Adverse Effect;
provided, however, that if any of the representations and
warranties is already qualified in any respect by materiality or
as to Material Adverse Effect for purposes of this Section 4.1(b)
such materiality or Material Adverse Effect qualification will be
in all respects ignored (but subject to the overall standard as to
Material Adverse Effect set forth immediately prior to this
proviso). The Company shall have delivered to Subscriber at the
Closing a certificate of an appropriate officer in form and
substance reasonably satisfactory to Subscriber dated the date of
the Closing to such effect.
In making any determination as to Material Adverse
Effect under this Section 4.1(b), the matters set forth in each
such Section shall be aggregated and considered together.
(c) There shall not be in effect any order, decree or
injunction of a court or agency of competent jurisdiction which
enjoins or prohibits consummation of the transactions contemplated
hereby and there shall be no pending Actions which would
reasonably be expected to have a material adverse effect on the
ability of the Company to consummate the transactions contemplated
hereby or to issue the Concurrent Shares.
(d) The Company shall not have taken any action or have
failed to take any action which would reasonably be expected to,
alone or in conjunction with any other factors, result in the loss
of its status as a REIT for federal income tax purposes.
4.2. CONDITIONS TO OBLIGATIONS OF THE COMPANY
The obligations of the Company to issue and sell the
Concurrent Shares at the Closing are subject to satisfaction or
waiver of each of the following conditions precedent:
(a) The closing of the Public Offering shall have
occurred.
(b) The representations and warranties of Subscriber
and the Advancing Party contained herein shall have been true and
correct in all respects on and as of the date hereof, and shall be
true and correct in all respects on and as of the Closing with the
same effect as though such representations and warranties had been
made on and as of the date of the Closing (except for
representations and warranties that speak as of a specific date or
time other than the date of the Closing (which need only be true
and correct in all respects as of such date or time)), other than,
in all such cases, such failures to be true and/or correct as
would not in the aggregate reasonably be expected to have a
Material Adverse Effect. Subscriber shall have delivered to the
Company at the Closing a certificate of an appropriate
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officer in form and substance reasonably satisfactory to the
Company dated the date of the Closing to such effect.
(c) There shall not be in effect any order, decree or
injunction of a court or agency of competent jurisdiction which
enjoins or prohibits consummation of the transactions contemplated
hereby and there shall be no pending Actions which would
reasonably be expected to have a material adverse effect on the
ability of the Company to consummate the transactions contemplated
hereby or to issue the Concurrent Shares.
5. SURVIVAL; INDEMNIFICATION
5.1. SURVIVAL
All representations, warranties, covenants and
agreements of the parties contained herein, including indemnity or
indemnification agreements contained herein, shall survive the
Closing until the first anniversary of the Closing. No Action or
proceeding may be brought with respect to any of the
representations, warranties, covenants or agreements unless
written notice thereof, setting forth in reasonable detail the
claimed misrepresentation or breach of warranty or breach of
covenant or agreement, shall have been delivered to the party
alleged to have breached such representation or warranty or such
covenant or agreement prior to the first anniversary of the
Closing. Those covenants or agreements that contemplate or may
involve actions to be taken or obligations in effect after the
Closing shall survive in accordance with their terms.
5.2. INDEMNIFICATION BY SUBSCRIBER OR THE COMPANY
(a) Subject to Section 5.1, from and after the Closing,
Subscriber shall indemnify and hold harmless the Company, its
successors and assigns, from and against any and all Loss and
Expenses suffered, directly or indirectly, by the Company by
reason of, or arising out of, (i) any breach as of the date made
or deemed made or required to be true of any representation or
warranty made by Subscriber in or pursuant to this Agreement, or
(ii) any failure by Subscriber to perform or fulfill any of its
covenants or agreements set forth herein. Notwithstanding any
other provision of this Agreement to the contrary, in no event
shall Loss and Expenses include a party's incidental or
consequential damages.
(b) Subject to Section 5.1, from and after the Closing,
the Company shall indemnify and hold harmless Subscriber, its
successors and assigns, from and against any and all Loss and
Expenses, suffered, directly or indirectly, by Subscriber by
reason of, or arising out of, any breach as of the date made or
deemed made or required to be true of any representation or
warranty made by the Company in or pursuant to this Agreement and
any statements made in any
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certificate delivered pursuant to this Agreement, or (ii) any
failure by the Company to perform or fulfill any of its covenants
or agreements set forth herein. Notwithstanding any other
provision of this Agreement to the contrary, in no event shall
Loss and Expenses include a party's incidental or consequential
damages.
(c) Notwithstanding the foregoing, (i) neither
Subscriber nor the Company shall be responsible for any Loss and
Expenses as provided by paragraphs (a) and (b), respectively, of
this Section 5.2, until the cumulative aggregate amount of such
Loss and Expenses suffered by Subscriber or the Company, as the
case may be, exceeds $500,000, in which case Subscriber or the
Company, as the case may be, shall then be liable for all such
Loss and Expenses, and (ii) the cumulative aggregate indemnity
obligation of each of Subscriber and the Company under this
Section 5.2 shall in no event exceed the Purchase Price. Except
with respect to third-party claims being defended in good faith or
claims for indemnification with respect to which there exists a
good faith dispute, the indemnifying party shall satisfy its
obligations hereunder within 30 days of receipt of a notice of
claim under this Section 5.
5.3. THIRD-PARTY CLAIMS
If a claim by a third party is made against Subscriber
or the Advancing Party or the Company (each, an "Indemnified
Party") and if such Indemnified Party intends to seek indemnity
with respect thereto under this Section 5, such Indemnified Party
shall promptly notify the indemnifying party in writing of such
claims setting forth such claims in reasonable detail. The
indemnifying party shall have 20 days after receipt of such notice
to undertake, through counsel of its own choosing and at its own
expense, the settlement or defense thereof, and the Indemnified
Party shall cooperate with it in connection therewith; provided,
however, that the Indemnified Party may participate in such
settlement or defense through counsel chosen by such Indemnified
Party, provided that the fees and expenses of such counsel shall
be borne by such Indemnified Party. The Indemnified Party shall
not pay or settle any claim which the indemnifying party is
contesting. Notwithstanding the foregoing, the Indemnified Party
shall have the right to pay or settle any such claim, provided
that in such event it shall waive any right to indemnity therefor
by the indemnifying party. If the indemnifying party does not
notify the Indemnified Party within 20 days after the receipt of
the Indemnified Party's notice of a claim of indemnity hereunder
that it elects to undertake the defense thereof, the Indemnified
Party shall have the right to contest, settle or compromise the
claim but shall not thereby waive any right to indemnity therefor
pursuant to this Agreement.
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6. MISCELLANEOUS
6.1. COUNTERPARTS
This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement, and shall be effective when one or more counterparts
have been signed by each party hereto and delivered to the other
party. Copies of executed counterparts transmitted by telecopy,
telefax or other electronic transmission service shall be
considered original executed counterparts for purposes of this
Section, provided receipt of copies of such counterparts is
confirmed.
6.2. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT
REFERENCE TO THE CHOICE OF LAW PRINCIPLES THEREOF.
6.3. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the
parties hereto with respect to the subject matter hereof and there
are no agreements, understandings, representations or warranties
between the parties other than those set forth or referred to
herein. This Agreement is not intended to confer upon any person
not a party hereto (and their successors and assigns) any rights
or remedies hereunder.
6.4. NOTICES
All notices and other communications hereunder shall be
sufficiently given for all purposes hereunder if in writing and
delivered personally, sent by documented overnight delivery
service or, to the extent receipt is confirmed, telecopy, telefax
or other electronic transmission service to the appropriate
address or number as set forth below. Notices to the Company
shall be addressed to:
CarrAmerica Realty Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, President
Telecopy Number: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
-00-
Xxxxxxxxxx, XX 00000-0000
Attention: J. Xxxxxx Xxxxxxx, Xx., Esq.
Telecopy Number: (000) 000-0000
Notices to Subscriber or the Advancing Party shall be
addressed to:
Security Capital Holdings S.A.
00, xxxxx x'Xxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx: Xxxx X. Xxxxxx, Managing Director
Telecopy Number: (000) 0000-0000
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopy Number: (000) 000-0000
6.5. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors.
Neither Subscriber nor the Advancing Party shall be permitted to
assign any of its rights hereunder to any third party; provided,
however, that Subscriber and the Advancing Party may assign all
(but not less than all) of their rights hereunder to any other
Investor so long as such other Investor agrees in writing, in a
form reasonably acceptable to the Company, to be bound by all the
terms and conditions of this Agreement.
6.6. HEADINGS
The Section and other headings contained in this
Agreement are inserted for convenience of reference only and shall
not affect the meaning or interpretation of this Agreement.
6.7. AMENDMENTS AND WAIVERS
This Agreement may not be modified or amended except by
an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is
sought. Any party hereto may, only by an instrument in writing,
waive compliance by the other parties hereto with any term or
provision hereof on the part of such other party hereto to be
performed or complied with. The waiver by any party hereto of a
breach of any
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term or provision hereof shall not be construed as a waiver of any
subsequent breach.
6.8. EXPENSES
Except as set forth in this Agreement, whether or not
the Closing is consummated, all legal and other costs and expenses
incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such
costs and expenses.
6.9. SEVERABILITY
Any provision hereof which is invalid or unenforceable
shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining
provisions hereof.
6.10. FURTHER ASSURANCES
The Company, Subscriber and the Advancing Party agree
that, from time to time, whether before, at or after the Closing,
each of them will execute and deliver such further instruments of
conveyance and transfer and take such other action as may be
necessary to carry out the purposes and intents hereof.
6.11. JOINT AND SEVERAL LIABILITY; GUARANTY
The obligations and liability of Subscriber and the
Advancing Party under or in connection with this Agreement are
joint and several. The Advancing Party hereby unconditionally and
irrevocably guarantees and agrees to be responsible for the
payment and performance of all of Subscriber's obligations
hereunder.
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IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement, or have caused this Agreement to be duly
executed on their behalf, as of the day and year first above
written.
CARRAMERICA REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
SECURITY CAPITAL HOLDINGS S.A.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Director
SECURITY CAPITAL U.S. REALTY
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Director
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