Exhibit 1.1
CARRAMERICA REALTY CORPORATION
(a Maryland Corporation)
6,000,000 Depositary Shares
Each Representing 1/10 of an 8.550% Series C Cumulative Redeemable
Preferred Share (Par Value $.01 per share)
(Liquidation Preference Equivalent to $25.00 Per Depositary Share)
TERMS AGREEMENT
Dated: October 30, 1997
To: CarrAmerica Realty Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Representatives") understand that CarrAmerica Realty
Corporation, a Maryland corporation (the "Company"), proposes to issue and sell
6,000,000 depositary shares (the "Depositary Shares") each representing 1/10 of
an 8.550% Series C Cumulative Redeemable Preferred Share (a "Series C Preferred
Share"), of the Company (such Depositary Shares being collectively hereinafter
referred to as the "Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriters named
below (the "Underwriters") offer to purchase, severally and not jointly, the
respective numbers of Initial Underwritten Securities (as defined in the
Underwriting Agreement referred to below) set forth below opposite their
respective names, and a proportionate share of Option Securities (as defined in
the Underwriting Agreement referred to below) to the extent any are purchased,
at the purchase price set forth below.
Number of
Initial
Underwritten
Underwriter Securities
----------- ----------
Xxxxxxx, Xxxxx & Co............................................... 780,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated.............................. 777,000
X.X. Xxxxxx Securities Inc........................................ 777,000
PaineWebber Incorporated.......................................... 777,000
Prudential Securities Incorporated................................ 777,000
Xxxxx Xxxxxx Inc.................................................. 777,000
BT Xxxx Xxxxx Incorporated........................................ 75,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation............... 75,000
EVEREN Securities, Inc............................................ 75,000
Xxxxxxxxxxx & Co., Inc............................................ 75,000
Wheat First Butcher Singer........................................ 75,000
X.X. Xxxxxxxx & Co................................................ 40,000
Xxxxx & Co........................................................ 40,000
Xxxxxxx, Xxxxxx & Co.............................................. 40,000
Xxxx Xxxxxxxx Incorporated........................................ 40,000
Xxxxxxxxxx & Co. Inc.............................................. 40,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.................................. 40,000
Interstate/Xxxxxxx Lane Corporation............................... 40,000
Xxxxxxxx, Lemon & Co. Incorporated................................ 40,000
Lafayette Investments, Inc........................................ 40,000
XxXxxxxx & Company Securities, Inc................................ 40,000
XxXxxx, Xxxxx & Co., Inc.......................................... 40,000
Xxxxxx Xxxxxx & Company, Inc...................................... 40,000
The Ohio Company.................................................. 40,000
Xxxxx Xxxxxxx Inc................................................. 40,000
Principal Financial Securities, Inc............................... 40,000
Xxxxxxxx Xxxxxx Refsnes, Inc...................................... 40,000
Xxxxxxx Xxxxx & Associates, Inc................................... 40,000
The Xxxxxxxx-Xxxxxxxx Company, LLC................................ 40,000
Xxxxx & Co., L.L.C................................................ 40,000
Sutro & Co. Incorporated.......................................... 40,000
Trilon International Inc.......................................... 40,000
Xxxxxx Xxxxxxx Incorporated....................................... 40,000
U.S. Clearing Corp................................................ 40,000
Wedbush Xxxxxx Securities Inc..................................... 40,000
---------
Total 6,000,000
=========
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The Underwritten Securities shall have the following terms:
Title of Securities: Depositary Shares each representing 1/10 of an 8.550% Series C
Cumulative Redeemable Preferred Stock (Par Value $.01 per
share) (liquidation preference equivalent to $25.00 per
Depositary Share).
Number of Shares: 6,000,000.
Dividend Rate: 8.550% of the liquidation preference per annum (equivalent to
$2.1375 per share per annum per Depositary Share); Payable
quarterly on the last day of February, May, August and
November of each year.
Liquidation Preference: $25.00 per Depositary Share.
Ranking: The Underwritten Securities will rank equally with the
Company's Series A Preferred Shares and Series B Preferred
Shares and senior to the Company's Common Stock.
Public offering price per share: $25.00, plus accrued dividends, if any, from the date of
original issue.
Purchase price per share: $24.2125.
Conversion provisions: The Series C Preferred Shares are not convertible into or
exchangeable for any other property or securities of the
Company.
Voting and other rights: If dividends on the Series C Preferred Shares are in arrears
for six or more quarterly periods, whether or not such
quarterly periods are consecutive, holders of the Depositary
Shares representing the Series C Preferred Shares (voting
separately as a class with all other series of preferred stock
upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of two
additional directors to serve on the Board of Directors of the
Company until all such dividend arrearages are eliminated.
Number of Option Securities, if any, that
may be purchased by the Underwriters: 900,000.
Additional co-managers: Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, X.X. Xxxxxx Securities
Inc., PaineWebber Incorporated, Prudential Securities
Incorporated and Xxxxx Xxxxxx Inc.
Closing time, date and location: November 6, 1997, 9:30 a.m. (EST), Xxxxx & Xxxxxxx L.L.P.,
Columbia Square, 000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, XX
00000-0000.
All the provisions contained in the document entitled "CarrAmerica
Realty Corporation -- Common Stock, Preferred Stock, Common Stock Warrants,
Depositary Shares and Debt Securities Underwriting Agreement" to which this
Terms Agreement is attached are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
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Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
XXXXXXX, SACHS & CO.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
X.X. XXXXXX SECURITIES INC.
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
XXXXX XXXXXX INC.
By: XXXXXXX, SACHS & CO.
/s/ Xxxxxxx, Xxxxx & Co.
------------------------------------
(Xxxxxxx, Sachs & Co.)
For themselves and as
Representatives of the Underwriters
named herein.
Accepted:
CARRAMERICA REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
Underwriting Agreement
CARRAMERICA REALTY CORPORATION
(a Maryland corporation)
Common Stock, Preferred Stock, Common Stock Warrants,
Depositary Shares and Debt Securities
UNDERWRITING AGREEMENT
October 30, 1997
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CarrAmerica Realty Corporation (the "Company") may from time
to time offer in one or more series its (i) unsecured debt securities ("Debt
Securities"), (ii) preferred stock, $.01 par value ("Preferred Stock"), (iii)
common stock, $.01 par value ("Common Stock"), (iv) warrants exercisable for
Common Stock ("Common Stock Warrants") and (v) shares of Preferred Stock
represented by depositary shares ("Depositary Shares"), with an aggregate public
offering price of up to $1,000,000,000 (or its equivalent in another currency
based on the exchange rate at the time of sale) in amounts, at prices and on
terms to be determined at the time of offering. The Debt Securities, Preferred
Stock, Common Stock, Common Stock Warrants, and Depositary Shares (collectively,
the "Securities") may be offered, separately or together, in separate series in
amounts, at prices and on terms to be set forth in one or more Prospectus
Supplements as hereinafter defined. The Common Stock Warrants will be issued
pursuant to a Common Stock Warrant Agreement (the "Warrant Agreement") between
the Company and a warrant agent (the "Warrant Agent"). The Debt Securities will
be issued under one or more indentures, as amended or supplemented (each, an
"Indenture"), between the Company and a trustee (a "Trustee"). The Company may
issue receipts for the Depositary Shares (the "Depositary Receipts"), each of
which will represent a fractional interest of a share of a particular series of
Preferred Stock, pursuant to a deposit agreement (each, a "Deposit Agreement")
among the Company, the depositary identified therein (the "Depositary") and the
registered holders of the Depositary Receipts issued thereunder. Each series of
Preferred Stock may vary as to the specific number of shares, title, liquidation
preference, issuance price, ranking, dividend rate or rates (or method of
calculation), dividend payment dates, any redemption or sinking fund
requirements, any conversion provisions and any
other variable terms as set forth in the applicable articles supplementary
(each, an "Articles Supplementary") relating to such Preferred Stock as issued
from time to time. Each series of Debt Securities may vary as to aggregate
principal amount, maturity date, interest rate or formula and timing of payments
thereof, redemption or repayment provisions, conversion provisions and any other
variable terms which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time. As used herein, "the Representatives,"
unless the context otherwise requires, shall mean the parties to whom this
Agreement is addressed together with the other parties, if any, identified in
the applicable Terms Agreement (as hereinafter defined) as additional
co-managers with respect to Underwritten Securities (as hereinafter defined)
purchased pursuant thereto.
Whenever the Company determines to make an offering of
Securities through the Representatives or through an underwriting syndicate
managed by the Representatives, the Company will enter into an agreement (the
"Terms Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, the Representatives
and such other underwriters, if any, selected by the Representatives as have
authorized the Representatives to enter into such Terms Agreement on their
behalf (the "Underwriters," which term shall include the Representatives whether
acting alone in the sale of the Underwritten Securities or as a member of an
underwriting syndicate and any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Underwritten Securities
shall specify the amount of Underwritten Securities to be initially issued (the
"Initial Underwritten Securities"), the names of the Underwriters participating
in such offering (subject to substitution as provided in Section 10 hereof), the
amount of Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, the names of such of the Representatives or such other
Underwriters acting as co-managers, if any, in connection with such offering,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, if any, of
the Initial Underwritten Securities, the time and place of delivery and payment
and any other variable terms of the Initial Underwritten Securities (including,
but not limited to, current ratings, designations, liquidation preferences,
voting and other rights, denominations, interest rates or formulas, interest
payment dates, maturity dates and conversion, redemption or repayment provisions
applicable to the Initial Underwritten Securities). In addition, each Terms
Agreement shall specify whether the Underwriters will be granted an option to
purchase additional Underwritten Securities to cover over-allotments, if any,
and the aggregate amount of Underwritten Securities subject to such option (the
"Option Securities"). As used herein, the term "Underwritten Securities" shall
include the Initial Underwritten Securities and all or any portion of the Option
Securities agreed to be purchased by the Underwriters as provided herein, if
any. The Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between the Representatives and the Company. Each offering of
Underwritten Securities through the Representatives or through an underwriting
syndicate managed by the Representatives will be governed by this Agreement, as
supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-22353) for the registration of the Securities under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 430A or Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), and the Company has
filed such amendments thereto as may have been required prior to the execution
of the applicable Terms Agreement. Such registration statement (as amended, if
applicable) has been declared effective by the Commission and an Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement and the prospectus constituting a part
thereof (including in each case the information, if any, deemed to be part
thereof pursuant to Rule
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430A(b) of the 1933 Act Regulations), and each prospectus supplement relating to
the offering of Underwritten Securities pursuant to Rule 415 of the 1933 Act
Regulations (the "Prospectus Supplement"), including all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act")
or otherwise, are collectively referred to herein as the "Registration
Statement" and the "Prospectus," respectively; provided that if any revised
Prospectus shall be provided to the Representatives by the Company for use in
connection with the offering of Underwritten Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the
term "Prospectus" shall refer to each such revised prospectus from and after the
time it is first provided to the Representatives for such use; provided,
further, that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Underwritten Securities to which
it relates. Any registration statement (including any supplement thereto or
information which is deemed part thereof) filed by the Company under Rule 462(b)
of the 1933 Act Regulations (a "Rule 462(b) Registration Statement") shall be
deemed to be part of the Registration Statement. Any prospectus (including any
amendment or supplement thereto or information which is deemed part thereof)
included in the Rule 462(b) Registration Statement and any term sheet as
contemplated by Rule 434 of the 1933 Act Regulations (a "Term Sheet") shall be
deemed to be part of the Prospectus. All references in this Agreement to
financial statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, preliminary
prospectus supplement, Prospectus or Prospectus Supplement or any Term Sheet or
any amendment or supplement to the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval System.
The term "Subsidiary" means a corporation or a partnership a
majority of the outstanding voting stock, partnership or membership interests,
as the case may be, of which is owned or controlled, directly or indirectly, by
the Company, 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.
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SECTION 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to the
Representatives, as of the date hereof, and to the Representatives and each
other Underwriter named in the applicable Terms Agreement, as of the date
thereof (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the
Prospectus, at the time the Registration Statement became effective,
complied, and as of each Representation Date will comply, in all
material respects with the requirements of the 1933 Act Regulations
and, at the time any Debt Securities are issued, will comply with the
1939 Act and the rules and regulations thereunder (the "1939 Act
Regulations"). The Registration Statement, at the time the Registration
Statement became effective, did not, and as of each Representation
Date, will not, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, as of the
date hereof does not, and as of each Representation Date and Closing
Time (as hereinafter defined) (unless the term "Prospectus" refers to a
prospectus which has been provided to the Representatives by the
Company for use in connection with an offering of Underwritten
Securities which differs from the Prospectus on file at the Commission
at the time the Registration Statement became effective, in which case
at the time it was first provided to the Representatives for such use)
will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification on Form T-1 under the 1939
Act (the "Statement of Eligibility") of a Trustee under an Indenture.
If a Rule 462(b) Registration Statement is required in connection with
the offering and sale of the Securities, the Company has complied or
will comply with the requirements of Rule 111 under the 1933 Act
Regulations relating to the payment of filing fees therefor.
(ii) The documents incorporated or deemed to
be incorporated by reference in the Prospectus pursuant to Item 12 of
Form S-3 under the 1933 Act, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement became effective
and as of the applicable Representation Date or Closing Time or during
the period specified in Section 3(f), did not and will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(iii) The accountants who certified the
financial statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement and
Prospectus, are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
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(iv) The financial statements (including the
notes thereto) included in, or incorporated by reference into, the
Registration Statement and the Prospectus present fairly the financial
position of the respective entity or entities presented therein at the
respective dates indicated and the results of their operations for the
respective periods specified; except as otherwise stated in the
Registration Statement and Prospectus, said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; the supporting schedules
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the information required to be stated
therein; and the Company's ratios of earnings to fixed charges (actual
and, if any, proforma) included in the Prospectus under the captions
"Ratios of Earnings to Fixed Charges" and in Exhibit 12.1 to the
Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission. The financial information
and data included in the Registration Statement and the Prospectus
present fairly the information included therein and have been prepared
on a basis consistent with that of the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus and the books and records of the respective entities
presented therein. Pro forma financial information included in or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the 1933 Act, the 1933 Act Regulations and guidelines
of the American Institute of Certified Public Accountants with respect
to pro forma financial information and includes all adjustments
necessary to present fairly in all material respects the pro forma
financial position of the Company at the respective dates indicated (if
such financial position is presented) and the results of operations for
the respective periods specified.
(v) No stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Company or either Partnership, threatened by
the Commission or by the state securities authority of any
jurisdiction. No order preventing or suspending the use of the
Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company or either Partnership,
threatened by the Commission or by the state securities authority of
any jurisdiction.
(vi) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, assets or business affairs of the Company, the Partnerships,
and the Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business; (B) no material casualty
loss or material condemnation or other material adverse event with
respect to any of the interests held directly or indirectly in any of
the real properties owned, directly or indirectly, by the Company,
either Partnership or any Subsidiary (the "Properties") or any entity
wholly or partially owned by the Company, either Partnership or any
Subsidiary has occurred; (C) there have been no acquisitions or
transactions entered into by the Company, either Partnership or any
Subsidiary, other 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
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of any kind declared, paid or made by the Company on any class of its
capital stock or by either of the Partnerships with respect to its
Units; and (E) with the exception of transactions in connection with
stock and Unit options and in connection with dividend reinvestment
plans, the issuance of shares of Common Stock upon the exchange of
Units and the issuance of Units in connection with the acquisition of
real or personal property, there has been no change in the capital
stock or in the partnership interests or membership interests, as the
case may be, of the Company, either of the Partnerships or any
Subsidiary, and no increase in the indebtedness of the Company, either
of the Partnerships, or any Subsidiary, that is material to the
Company, the Partnerships and the Subsidiaries, considered as one
enterprise.
(vii) The Company has been duly formed, and
is validly existing and in good standing as a corporation under the
laws of Maryland with corporate power and authority to conduct the
business in which it is engaged or proposes to engage and to own, lease
and operate its properties as described in the Prospectus and to enter
into and perform its obligations under this Agreement, the Terms
Agreement, any Warrant Agreement and any Indenture.
(viii) Each of the Partnerships and the
Subsidiaries has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its
jurisdiction of organization, with partnership or corporate power and
authority to conduct the business in which it is engaged or proposes to
engage and to own, lease and operate its properties as described in the
Prospectus.
(ix) Each of the Company, the Partnerships
and the Subsidiaries is duly qualified or registered as a foreign
partnership or corporation in good standing and authorized to do
business in each jurisdiction in which such qualification is required
whether by reason of the ownership, leasing or management of property
or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets or business affairs of the Company,
the Partnerships and the Subsidiaries considered as one enterprise (a
"Material Adverse Effect").
(x) The capital stock of the Company as of
the date specified in the Prospectus is as set forth therein under
"Capitalization." All the issued and outstanding shares of capital
stock of the Company have been duly authorized and are validly issued,
fully paid and non-assessable and have been offered and sold in
compliance with all applicable laws (including, without limitation,
federal, state or foreign securities laws).
(xi) Except for transactions described in
the Prospectus and transactions in connection with stock and Unit
options and in connection with dividend reinvestment plans and
exchanges of Units, there are no outstanding securities convertible
into or exchangeable for any capital stock of the Company and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for such shares, Units or other securities of
the Company, the Partnerships or the Subsidiaries.
(xii) The applicable Underwritten
Securities, if such Underwritten Securities are Common Stock, Preferred
Stock or Depositary Shares have been duly authorized by the Company for
issuance and sale to the Underwriters pursuant to this Agreement, and,
when issued and delivered by the Company, pursuant to this Agreement
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and the applicable Terms Agreement against payment of the consideration
set forth in the Terms Agreement, will be validly issued, fully paid
and non-assessable. Upon payment of the purchase price and delivery of
such Underwritten Securities in accordance herewith, each of the
Underwriters will receive good, valid and marketable title to such
Underwritten Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities. The terms
of such applicable Underwritten Securities conform in all material
respects to all statements and descriptions related thereto contained
in the Prospectus. The form of stock certificate or depositary receipt
to be used to evidence the applicable Underwritten Securities will be
in due and proper form and will comply with all applicable legal
requirements. The issuance of such applicable Underwritten Securities
is not subject to any preemptive or other similar rights, except as
described in the Prospectus. In addition, upon deposit by the Company
of any Preferred Stock represented by Depositary Shares with the
applicable Depositary and the execution and delivery by such Depositary
of the Depositary Receipts evidencing such Depositary Shares, in each
case pursuant to the applicable Deposit Agreement, such Depositary
Shares will represent legal and valid interests in such Preferred
Stock. No holder of Preferred Stock or Depositary Receipts evidencing
Depositary Shares will be subject to personal liability by reason of
being such a holder. The applicable Articles Supplementary will be in
full force and effect prior to the Closing Time.
(xiii) If applicable, the Common Stock
Warrants have been duly authorized by the Company for issuance and sale
to the Underwriters pursuant to this Agreement, and, when issued and
delivered in the manner provided for in this Agreement and any Terms
Agreement and countersigned by the Warrant Agent as provided in the
Warrant Agreement, against payment of the consideration therefor
specified in the applicable Terms Agreement, will be duly executed,
countersigned, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Warrant Agreement under which they are issued. Upon
payment of the purchase price and delivery of such Underwritten
Securities in accordance herewith, each of the Underwriters will
receive good, valid and marketable title to such Underwritten
Securities, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities. The terms of the
Common Stock Warrants conform in all material respects to all
statements and descriptions related thereto contained in the
Prospectus. The issuance of the Common Stock Warrants is not subject to
any preemptive or other similar rights, except as described in the
Prospectus.
(xiv) The applicable Underwritten
Securities, if such Underwritten Securities are Debt Securities, are in
the form contemplated by the Indenture, have been duly authorized by
the Company for issuance and sale to the Underwriters pursuant to this
Agreement and, when executed, authenticated, issued and delivered in
the manner provided for in this Agreement, any Terms Agreement and the
applicable Indenture, against payment of the consideration therefor
specified in the applicable Terms Agreement, such Debt Securities will
constitute valid and legally binding obligations of the Company,
entitled to the benefits of the Indenture and such Debt Securities will
be enforceable against the Company in accordance with their terms;
provided, however, that the enforceability of the foregoing may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable
principles. Upon payment of the purchase price and delivery of such
Underwritten Securities in accordance herewith, each of the
Underwriters will receive good, valid and marketable title to such
Underwritten
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Securities, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities. The terms of such
applicable Underwritten Securities conform in all material respects to
all statements and descriptions related thereto in the Prospectus. Such
Underwritten Securities rank and will rank on a parity with all
unsecured indebtedness (other than subordinated indebtedness) of the
Company that is outstanding on the Representation Date or that may be
incurred thereafter, and senior to all subordinated indebtedness of the
Company that is outstanding on the Representation Date or that may be
incurred thereafter, except that such Underwritten Securities will be
effectively subordinated to the prior claims of each secured mortgage
lender to any specific Property which secures such lender's mortgage.
(xv) If applicable, the Common Stock
issuable upon conversion of any of the Debt Securities or the Preferred
Stock (including Preferred Stock represented by Depositary Shares) and
upon exercise of the Common Stock Warrants will have been duly and
validly authorized and reserved for issuance upon such conversion or
exercise by all necessary action and such stock, when issued upon such
conversion or exercise, will be duly and validly issued, fully paid and
non-assessable, and the issuance of such stock upon such conversion or
exercise will not be subject to preemptive or other similar rights
except as described in the Prospectus. The Common Stock so issuable
conforms in all material respects to all statements relating thereto
contained in the Prospectus.
(xvi) The applicable Warrant Agreement, if
any, will have been duly authorized, executed and delivered by the
Company prior to the issuance of any applicable Underwritten
Securities, and will constitute a valid and legally binding agreement
of the Company enforceable in accordance with its terms; provided,
however, that the enforceability of the foregoing may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by general equitable principles. The
Warrant Agreement conforms in all material respects to all statements
relating thereto contained in the Prospectus.
(xvii) If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Depositary
Shares or if Debt Securities are convertible into Depositary Shares
represented by Preferred Stock, the applicable Deposit Agreement has
been, or prior to the issuance of such Depositary Shares will have
been, duly authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, will constitute a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally
or by general equitable principles. Each registered holder of a
Depositary Receipt under the applicable Deposit Agreement will be
entitled to the proportional rights, preferences and limitations of the
Preferred Stock represented by the Depositary Shares evidenced by such
Depositary Receipt and to such other rights as are granted to such
registered holder in such Deposit Agreement.
(xviii) (A) This Agreement has been duly and
validly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the Representatives, is a
valid and binding agreement of the Company, and (B) at the
Representation Date, the Terms Agreement will have been duly and
validly authorized, executed and delivered by the Company, and,
assuming due authorization, execution and
8
delivery by the Representatives, will be valid and binding agreements,
enforceable in accordance with its or their terms; provided, however,
that the enforceability of the foregoing may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles.
(xix) If applicable, the Indenture (A) has
been duly qualified under the 1939 Act, will have been duly and validly
authorized, executed and delivered by the Company prior to the issuance
of any applicable Underwritten Securities, and when executed and
delivered by the Trustee, will constitute a valid and binding
obligation of the Company, enforceable in accordance with its terms;
provided, however, that the enforceability of the foregoing may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable
principles; and (B) conforms in all material respects to the
description thereof in the Prospectus.
(xx) None of the Company, the Partnerships
or any Subsidiary is in violation of its charter, by-laws, certificate
of limited partnership or partnership agreement, as the case may be, or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which such
entity is a party or by which such entity may be bound, or to which any
of its property or assets is subject, which violation or default
separately or in the aggregate would have a Material Adverse Effect.
(xxi) The issuance of the Underwritten
Securities, the execution and delivery of this Agreement, the
applicable Terms Agreement, any Warrant Agreement, any Deposit
Agreement and any Indenture and the performance of the obligations set
forth herein or therein, and the consummation of the transactions
contemplated hereby and thereby will not (A) result in the creation of
any lien, charge or encumbrance upon the Properties, and (B) conflict
with or constitute a breach or violation by the parties thereto of, or
default under, (1) any material contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or other
instrument or agreement to which the Company, either of the
Partnerships or any Subsidiary is a party, or by which they, any of
them, any of their respective properties or other assets or any
Property (including, without limitation, partnership and other
interests in partnerships or other entities which own direct or
indirect interests therein) is or may be bound or subject, (2) the
charter, by-laws, certificate of limited partnership, partnership
agreement or other organizational document, as the case may be, of the
Company, the Partnerships or any Subsidiary or (3) any applicable law,
rule, order, administrative regulation or administrative or court
decree.
(xxii) There is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company
and the Partnerships, threatened against or affecting the Company,
either of the Partnerships, any Subsidiary, any Property or any officer
or director of the foregoing that is required to be disclosed in the
Registration Statement (other than as disclosed therein), and that, if
determined adversely to the Company, the applicable Partnership, any
Subsidiary, any Property, or any such officer or director, would
reasonably be expected to result in any Material Adverse Effect, or
which might materially and adversely affect the consummation of this
Agreement, the applicable Terms Agreement, any Warrant Agreement, any
Deposit Agreement, the Indenture, if any, or the transactions
contemplated herein and therein. There is no pending legal or
governmental proceeding to which the
9
Company, either of the Partnerships or any Subsidiary is a party or of
which any of their respective properties or assets or any Property
(including, without limitation, partnership and other interests in
partnerships or other entities which own direct or indirect interests
therein), is the subject, including ordinary routine litigation
incidental to the business or operations of the foregoing, that is or
would reasonably be expected to be, material to the condition,
financial or otherwise, or the earnings, assets, business affairs or
business prospects of the Company, the Partnerships and the
Subsidiaries, considered as one enterprise. There are no contracts or
documents of a character which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been filed as exhibits to the Registration
Statement.
(xxiii) At all times beginning with its
taxable period ended December 31, 1993, the Company has been, and upon
the sale of the applicable Underwritten Securities, the Company will
continue to be, organized and operated in conformity with the
requirements for qualification as a real estate investment trust under
the Internal Revenue Code of 1986, as amended (the "Code"), and its
proposed method of operation will enable it to continue to meet the
requirements for taxation as a real estate investment trust under the
Code.
(xxiv) None of the Company, the Partnerships
or any Subsidiary is required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
(xxv) The Company, the Partnerships and the
other Subsidiaries own or possess the trademarks, service marks and
trade names (collectively, "proprietary rights") that are material to
the businesses now operated or proposed to be operated by them and that
are currently employed or proposed to be employed by them in connection
with such businesses, and none of the Company, the Partnerships or any
of the Subsidiaries has received any notice or is otherwise aware of
any infringement of or conflict with asserted rights of others with
respect to any such proprietary rights.
(xxvi) All authorizations, approvals or
consents of any court or government authority or agency or other entity
or person that are necessary in connection with the offering, issuance
or sale of the Underwritten Securities hereunder by the Company have
been obtained, except such as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws with respect to the
Underwritten Securities.
(xxvii) Each of the Company, the
Partnerships and the Subsidiaries possesses such certificates,
authorizations or permits issued by the appropriate regulatory agencies
or bodies necessary to conduct the business now conducted by it, or
proposed to be conducted by it, and none of the Company, either of the
Partnerships or any Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially and
adversely affect the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the
Company, the Partnerships and the Subsidiaries considered as one
enterprise.
10
(xxviii) No material labor dispute with the
employees of the Company, either of the Partnerships or any Subsidiary
exists or, to the knowledge of the Company or either of the
Partnerships is imminent.
(xxix) Except as disclosed in the
Prospectus, (A) to the knowledge of the Company, the Environment (as
defined below) at each Property is free of any Hazardous Substance (as
defined below) except for any Hazardous Substance that would not
reasonably be expected to have any material adverse effect on the
condition, financial or otherwise, or on the earnings, assets, business
affairs or business prospects of the Property, the Company, the
Partnerships and the Subsidiaries considered as one enterprise; (B)
none of the Company, the Partnerships or any Subsidiary and, to the
knowledge of the Company and the Partnerships, no prior owner of any
Property has caused or suffered to occur any Release (as defined below)
of any Hazardous Substance into the Environment on, in, under or from
any Property in violation of any Environmental Law applicable to such
Property in an amount that would reasonably be expected to have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, assets, business affairs or business prospects of any
Property, the Company, the Partnerships and the Subsidiaries considered
as one enterprise and no condition exists on, in or under any Property
or, to the knowledge of the Company or the Partnerships, any property
adjacent to any Property that could reasonably be expected to result in
the occurrence of material liabilities under, or any material
violations of, any Environmental Law (as defined below) applicable to
such Property, give rise to the imposition of any Lien (as defined
below) under any Environmental Law, or cause or constitute an
environmental hazard to any property, person or entity; (C) none of the
Company, the Partnerships or any Subsidiary is engaged in or intends to
engage in any manufacturing or any other similar operations at any
Property and, to the knowledge of the Company and the Partnerships, no
prior owner of any Property engaged in any manufacturing or any similar
operations at any Property that (1) require the use, handling,
transportation, storage, treatment or disposal of any Hazardous
Substance (other than paints, stains, cleaning solvents, insecticides,
herbicides, or other substances that are used in the ordinary course of
operating any Property and in compliance with all applicable
Environmental Laws) or (2) require permits or are otherwise regulated
pursuant to any Environmental Law; (D) none of the Company, the
Partnerships or any Subsidiary and, to the knowledge of the Company and
the Partnerships, no prior owner of any Property has received any
notice of a claim under or pursuant to any Environmental Law applicable
to a Property or under common law pertaining to Hazardous Substances on
any Property or pertaining to other property at which Hazardous
Substances generated at any Property have come to be located; (E) none
of the Company, the Partnerships or any Subsidiary and, to the best
knowledge of the Company and the Partnerships, no prior owner of any
Property has received any notice from any Governmental Authority (as
defined below) claiming any violation of any Environmental Law that is
uncured or unremediated as of the date hereof; and (F) no Property (1)
is included or proposed for inclusion on the National Priorities List
issued pursuant to CERCLA (as defined below) by the United States
Environmental Protection Agency (the "EPA") or on the Comprehensive
Environmental Response, Compensation, and Liability Information System
database maintained by the EPA as a potential CERCLA removal, remedial
or response site or (2) is included or proposed for inclusion on, any
similar list of potentially contaminated sites pursuant to any other
applicable Environmental Law nor has the Company, either of the
Partnerships or any Subsidiary received any written notice from the EPA
or any other Governmental Authority proposing the inclusion of any
Property on such list.
11
As used herein, "Hazardous Substance" shall include any
hazardous substance, hazardous waste, toxic or dangerous substance,
pollutant, asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation, pollutant
or waste, including any such substance, pollutant or waste identified,
listed or regulated under any Environmental Law (including, without
limitation, materials listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R. ss.
172.101, as the same may now or hereafter be amended, or in the EPA's
List of Hazardous Substances and Reportable Quantities, 40 C.F.R. Part
3202, as the same may now or hereafter be amended); "Environment" shall
mean any surface water, drinking water, ground water, land surface,
subsurface strata, river sediment, buildings and structures;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act, as amended (42 U.S.C. ss.
9601, et seq.) ("CERCLA"), the Resource Conservation Recovery Act, as
amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as amended
(42 U.S.C. ss. 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. ss. 1251, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. ss. 2601, et seq.), the Toxic Substances Control Act, as
amended (29 U.S.C. ss. 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ss. 1801, et seq.), together
with all rules, regulations and orders promulgated thereunder and all
other federal, state and local laws, ordinances, rules, regulations and
orders relating to the protection of the environment from environmental
effects; "Governmental Authority" shall mean any federal, state or
local governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any material mortgage,
deed of trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on or
affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(xxx) Each of the Company, the Partnerships
and the Subsidiaries has filed all federal, state, local and foreign
income and franchise tax returns which have been required to be filed
and each such tax return was filed on or prior to the date on which
such tax return was required to be filed or, in lieu of such timely
filings, each of the Company, the Partnerships, or the Subsidiaries, as
the case may be, has duly and timely filed such applications for
extension as may be required to effect all necessary extensions (such
extensions having been obtained and remaining in full force and effect)
and has paid all taxes shown thereon as due and payable and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except, in all cases, for any such
tax assessment, fine or penalty that is being contested in good faith
through appropriate proceedings and as to which appropriate reserves
have been established.
(xxxi) Except as disclosed in the
Registration Statement and except for (i) persons who received Units or
shares of Common Stock in connection with the formation of the Company,
or (ii) persons who received shares of Common Stock, options to acquire
shares of Common Stock or Units in connection with transactions with
the Partnerships or the Company, there are no persons with registration
or other similar rights to have any
12
securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(xxxii) Each of the Company, the
Partnerships and the Subsidiaries (or the partnership or other entity
owning the Property) has obtained title insurance insuring good,
marketable and lien free title to the Properties owned by them (other
than the Properties in which the applicable entity owns less than a
majority interest), subject only to customary easements and
encumbrances and other exceptions to title which do not materially
impair the operation, development or use thereof for the purposes
intended therefor as contemplated by the Prospectus on each of such
Properties.
(xxxiii) The Common Stock will be listed on
the New York Stock Exchange on the applicable Representation Date and
at the applicable Closing Time. If so stated in the applicable
Prospectus Supplement as of the applicable Representation Date, the
Preferred Stock, Common Stock Warrants and Depositary Shares, as
applicable, will have been approved for listing on the New York Stock
Exchange upon notice of issuance.
(xxxiv) Unless otherwise agreed to by the
Representatives, the Preferred Stock, Debt Securities and Depositary
Shares will have an investment grade rating from one or more nationally
recognized statistical rating organizations at the Representation Date
and at the applicable Closing Time.
(xxxv) If the Underwritten Securities are
Debt Securities, then immediately following the application of the
proceeds of the sale of the Underwritten Securities in the manner set
forth in the Prospectus, the mortgages and deeds of trust encumbering
the Properties and assets described in the Prospectus will not be
convertible and none of the partnerships or other entities owning an
interest in the Properties nor any person related to or affiliated with
such partnerships or other entities will hold a participating interest
therein and said mortgages and deeds of trust will not be
cross-defaulted or cross-collateralized with any property not owned
directly or indirectly by the Company, the Partnerships or the
Subsidiaries.
(xxxvi) Each of the Company, the
Partnerships and the Subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they
are engaged; and none of the Company, the Partnerships and the
Subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary
to continue its businesses at a cost that would not have a Material
Adverse Effect, except as described in or contemplated by the
Registration Statement and the Prospectus.
(xxxvii) The Company has not taken and will
not take, directly or indirectly, any action prohibited by Regulation M
under the 1934 Act.
(xxxviii) The assets of the Company and the
Partnerships do not constitute "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended.
(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
13
the Underwriters shall be deemed a representation and warranty by such entity to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions set
forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company may grant, if so provided in the applicable Terms
Agreement relating to the Initial Underwritten Securities, an option to the
Underwriters named in such Terms Agreement, severally and not jointly, to
purchase up to the number of Option Securities set forth therein at the same
price per Option Security as is applicable to the Initial Underwritten
Securities. Such option, if granted, will expire 30 days (or such lesser number
of days as may be specified in the applicable Terms Agreement) after the
Representation Date relating to the Initial Underwritten Securities, and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon notice by the
Representatives to the Company setting forth the number of Option Securities as
to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such time, date
and place of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days nor
earlier than two full business days after the exercise of said option, nor in
any event prior to the Closing Time, unless otherwise agreed upon by the
Representatives and the Company. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in the applicable Terms Agreement bears to the total number of Initial
Underwritten Securities (except as otherwise provided in the applicable Terms
Agreement), subject to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases of fractional
Underwritten Securities.
(c) Payment of the purchase price for, and delivery of
certificates for, the Underwritten Securities to be purchased by the
Underwriters shall be made at the offices of Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the
Representatives and the Company at 9:30 a.m. on the fourth business day (or the
third business day if required under Rule 15c6-1 of the 1934 Act, or unless
postponed in accordance with the provisions of Section 10) following the date of
the applicable Terms Agreement or at such other time as shall be agreed upon by
the Representatives and the Company (each referred to herein as a "Closing
Time"). In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices of Xxxxxx & Xxxxx, or at such other place as shall be agreed upon by the
Representatives and the Company on each Date of Delivery as specified in the
notice from the Representatives to the Company. Unless otherwise specified in
the applicable Terms Agreement, payment shall be made to the Company by wire
transfer of Federal or similar same day funds payable to the order of the
Company against delivery to the Representatives for the respective accounts of
the Underwriters of certificates for the
14
Underwritten Securities to be purchased by them. Certificates for the
Underwritten Securities and the Option Securities, if any, or Depositary
Receipts evidencing the Depositary Shares, as applicable, shall be in such
denominations and registered in such names as the Representatives may request in
writing at least two business days before the Closing Time or the relevant Date
of Delivery, as the case may be. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Underwritten Securities and
the Option Securities, if any, which it has agreed to purchase. The
Representatives, individually and not as representatives of the Underwriters,
may (but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but any such payment shall not
relieve such Underwriter from its obligations hereunder. The certificates for
the Initial Underwritten Securities and the Option Securities, if any, or
Depositary Receipts evidencing the Depositary Shares, as applicable, will be
made available for examination and packaging by the Representatives not later
than 10:00 a.m. on the last business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be, in New York, New York.
SECTION 3. Covenants of the Company. The Company covenants with the
Representatives and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten
Securities, the Company will prepare a Prospectus Supplement setting
forth the number of Underwritten Securities covered thereby and their
terms not otherwise specified in the Prospectus pursuant to which the
Underwritten Securities are being issued, the names of the Underwriters
participating in the offering and the number of Underwritten Securities
which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering, the
price at which the Underwritten Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, if
any, the selling concession and reallowance, if any, and such other
information as the Representatives and the Company deem appropriate in
connection with the offering of the Underwritten Securities; and the
Company will promptly transmit copies of the Prospectus Supplement to
the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus (including such Prospectus Supplement) as the
Representatives shall reasonably request.
(b) If, at the time the Prospectus Supplement was
filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, any information shall have been omitted therefrom in
reliance upon Rule 430A of the 1933 Act Regulations, then immediately
following the execution of the Terms Agreement, the Company will
prepare, and file or transmit for filing with the Commission in
accordance with such Rule 430A and Rule 424(b) of the 1933 Act
Regulations, a copy of an amended Prospectus, or, if required by such
Rule 430A, a post-effective amendment to the Registration Statement
(including amended Prospectuses), containing all information so
omitted. If required, the Company will prepare and file or transmit for
filing a Rule 462(b) Registration Statement not later than the date of
execution of the Terms Agreement. If a Rule 462(b) Registration
Statement is filed, the Company shall make payment of, or arrange for
payment of, the additional registration fee owing to the Commission
required by Rule 111 of the 1933 Act Regulations.
15
(c) The Company will notify the Representatives
immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the
transmittal to the Commission for filing of any Prospectus Supplement
or other supplement or amendment to the Prospectus to be filed pursuant
to the 1933 Act, (iii) the receipt of any comments from the Commission,
(iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
or for additional information, and (v) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; and
the Company will make every reasonable effort to prevent the issuance
of any such stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(d) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales
of the Underwritten Securities, the Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, will furnish the Representatives with copies of any such
amendment or supplement a reasonable amount of time prior to such
proposed filing and, unless required by law, will not file or use any
such amendment or supplement or other documents in a form to which the
Representatives or counsel for the Underwriters shall reasonably
object.
(e) The Company will deliver to the Representatives
as soon as available as many signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference therein) as the Representatives may
reasonably request and will also deliver to the Representatives as many
conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including documents incorporated by
reference into the Prospectus) as the Representatives may reasonably
request.
(f) The Company will furnish to each Underwriter,
from time to time during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(g) If any event shall occur as a result of which it
is necessary, in the reasonable opinion of counsel for the
Underwriters, to amend or supplement the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, the Company will
forthwith amend or supplement the Prospectus (in form and substance
reasonably satisfactory to counsel for the Underwriters) so that, as so
amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Company will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
16
(h) The Company will endeavor, in cooperation with
the Underwriters, to qualify the Underwritten Securities for offering
and sale under the applicable securities laws and real estate
syndication laws of such states and other jurisdictions as the
Representatives may designate; provided, however, that the Company
shall not be obligated to (i) qualify as a foreign corporation in a
jurisdiction it is not so qualified, (ii) file any general consent to
service of process or (iii) take any actions that would subject it to
income taxation in any such jurisdiction. In each jurisdiction in which
the Underwritten Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as
may be required for the distribution of the Underwritten Securities.
(i) With respect to each sale of Underwritten
Securities, the Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve-month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(j) The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner specified
in the Prospectus under "Use of Proceeds."
(k) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to Sections 13, 14 or 15 of the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock
Exchange all documents and notices required by the New York Stock
Exchange of companies that have securities listed on such exchange and,
to the extent the Preferred Stock, Common Stock Warrants or Debt
Securities are listed on the New York Stock Exchange, the Company will
use its best efforts to maintain the listing of any such Underwritten
Securities listed on the New York Stock Exchange.
(m) In respect to each offering of Debt Securities,
the Company will qualify an Indenture under the 1939 Act and will
endeavor to have a Statement of Eligibility submitted on behalf of the
Trustee.
(n) The Company will take all reasonable action
necessary to enable Standard & Poor's Corporation ("S&P"), Xxxxx'x
Investors Service, Inc. ("Xxxxx'x") or any other nationally recognized
statistical rating organization to provide their respective credit
ratings of any Underwritten Securities, if applicable.
(o) During the period specified in the applicable
Prospectus Supplement, the Company and the Partnerships will not,
without the prior written consent of Xxxxxxx, Xxxxx & Co., directly or
indirectly, sell, offer to sell, transfer, hypothecate, grant any
option for the sale of, or otherwise dispose of, (i) any securities of
the same class or series or ranking on a parity with any Underwritten
Securities (other than the Underwritten Securities covered by such
Prospectus Supplement) or any security convertible into or exchangeable
for such Underwritten Securities and (ii) if such Prospectus Supplement
relates to Common Stock
17
Warrants or Debt Securities or Preferred Stock that is convertible into
or exchangeable for Common Stock, any Common Stock or Units or any
security convertible into or exchangeable for shares of Common Stock.
This transfer restriction does not apply to (i) grants of options, and
the issuance of shares in respect of such options; (ii) the issuance of
shares and units pursuant to a dividend reinvestment plan or stock
purchase plan; (iii) the issuance of Common Stock on the exchange of
Units; and (iv) the issuance of shares of Common Stock, or any security
convertible into or exchangeable or exercisable for Common Stock, in
connection with the acquisition of real property or an interest or
interests in real property.
(p) With respect to the Common Stock issuable on
exercise of Common Stock Warrants and the conversion of any Debt
Securities and Preferred Stock (including Preferred Stock represented
by Depositary Shares) if such securities are convertible into Common
Stock, the Company will reserve and keep available at all times, free
of preemptive rights and other similar rights, a sufficient number of
shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue such Common Stock upon exercise of the
Common Stock Warrants and conversion of the Debt Securities or
Preferred Stock.
(q) With respect to the Common Stock issuable on
exercise of Common Stock Warrants and the conversion of any Debt
Securities and Preferred Stock (including Preferred Stock represented
by Depositary Shares) if such securities are convertible into Common
Stock, the Company will use its best efforts to list such Common Stock
on the New York Stock Exchange.
(r) The Company will use its best efforts to continue
to meet the requirements to qualify as a "real estate investment trust"
under the Code.
(s) During the period from the Closing Time until
five years after the Closing Time, the Company will deliver to the
Representatives, (i) promptly upon their becoming available, copies of
all current, regular and periodic reports of the Company mailed to its
stockholders or filed with any securities exchange or with the
Commission or any governmental authority succeeding to any of the
Commission's functions, and (ii) such other information concerning the
Company and the Partnerships as the Representatives may reasonably
request.
SECTION 4. Payment of Expenses. The Company and the Partnerships will
pay all expenses incident to the performance of their obligations under this
Agreement and the applicable Terms Agreement, including (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto; (ii) the cost of printing, or reproducing, and distributing to the
Underwriters copies of this Agreement, the applicable Terms Agreement and any
Deposit Agreement; (iii) the preparation, issuance and delivery of the
Underwritten Securities to the Underwriters, including capital duties, stamp
duties and stock transfer taxes, if any, payable upon issuance of any of the
Underwritten Securities, the sale of the Underwritten Securities to the
Underwriters, their transfer between the Underwriters pursuant to an agreement
between such Underwriters and the fees and expenses of the transfer agent for
the Underwritten Securities; (iv) the fees and disbursements of the Company's
and Partnerships' counsel and accountants; (v) the qualification of the
Underwritten Securities and the Common Stock issuable upon exercise of Common
Stock Warrants and conversion of Debt Securities or Preferred Stock, if any,
under
18
securities laws and real estate syndication laws in accordance with the
provisions of Section 3(h) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey; (vi) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each preliminary prospectus,
and of the Prospectus and any amendments or supplements thereto; (vii) the cost
of printing, or reproducing, and delivering to the Underwriters copies of the
Blue Sky Survey; (viii) the fee of the National Association of Securities
Dealers, Inc.; (ix) the fees and expenses incurred in connection with the
listing of the Underwritten Securities and the Common Stock issuable upon
exercise of the Common Stock Warrants and conversion of Debt Securities or
Preferred Stock, if any, on the New York Stock Exchange, any other national
securities exchange or quotation system; (x) any fees charged by nationally
recognized statistical rating organizations for the rating of the Preferred
Stock or Debt Securities, if any; (xi) the printing and delivery to the
Underwriters of copies of the Indenture; (xii) the fees and expenses of the
Trustee, any Depositary and any Warrant Agent, including the reasonable fees and
disbursements of counsel for the Trustee, Depositary or Warrant Agent, in
connection with the Indenture, Deposit Agreement or Warrant Agreement, and the
Underwritten Securities; (xiii) the preparation, issuance and delivery to the
Depository Trust Company for credit to the accounts of the respective
Underwriters of any global note registered in the name of Cede & Co., as nominee
for the Depository Trust Company; and (xiv) any transfer taxes imposed on the
sale of the Underwritten Securities to the several Underwriters.
If this Agreement shall be terminated pursuant to Section 10
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 4 and 6 hereof; but, if for any other reason, any
Underwritten Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Underwritten Securities
not so delivered, but the Company shall then be under no further liability to
any Underwriter except as provided in Sections 4 and 6 hereof.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters hereunder are subject to the accuracy, as of the date hereof
and at Closing Time, of the representations and warranties of the Company herein
contained, to the performance by the Company of its obligations hereunder, and
to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission; (ii) if the Company has elected to rely upon Rule 430A
of the 1933 Act Regulations, the public offering price of and the
interest rate on the Underwritten Securities, as the case may be, and
any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to
the applicable Closing Time, the Company shall have provided evidence
satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the
requirements of Rule 430A of the 1933 Act Regulations; (iii) if
Preferred Stock or Debt Securities are being offered, the rating
assigned by any nationally recognized statistical rating organization
as of the date of the applicable Terms Agreement shall not have been
lowered since such date nor shall any
19
such rating organization have publicly announced that it has placed the
Preferred Stock or Debt Securities on what is commonly termed a "watch
list" for possible downgrading; (iv) if Debt Securities are being
offered, the rating assigned by any nationally recognized statistical
rating organization to any long-term debt securities of the Company as
of the date of the applicable Terms Agreement shall not have been
lowered since such date nor shall any such rating organization have
publicly announced that it has placed any long-term debt securities of
the Company on what is commonly termed a "watch list" for possible
downgrading; and (v) there shall not have come to the attention of the
Representatives any facts that would cause the Representatives to
believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to purchasers
of the Underwritten Securities, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at
such time, not misleading. If a Rule 462(b) Registration Statement is
required, such Rule 462(b) Registration Statement shall have been
transmitted to the Commission for filing and have become effective
within the prescribed time period, and, prior to Closing Time, the
Company shall have provided to the Underwriters evidence of such filing
and effectiveness in accordance with Rule 462(b) of the 1933 Act
Regulations.
(b) At Closing Time the Representatives shall have
received:
(1) The favorable opinion, dated as of the
applicable Closing Time, of Xxxxx & Xxxxxxx L.L.P., counsel
for the Company and the Partnerships in form and substance
reasonably satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Company was
incorporated and is existing in good standing as of
the date of the certificate identified elsewhere in
the opinion letter under the laws of the State of
Maryland. The Company has the corporate power and
corporate authority under its charter and the
Maryland General Corporation Law, as amended (the
"MGCL") to own, lease and operate its properties, to
conduct its business as described in the Prospectus
and to perform it obligations under this Agreement,
the applicable Terms Agreement, any Warrant Agreement
and any Indenture. The Company is authorized to
transact business as a foreign corporation in good
standing, as of the dates of the certificates
identified elsewhere in the opinion letter, in those
states in which the Company owns Properties either
directly or through a partnership in which the
Company is a general partner.
(ii) Each of the
Partnerships is a limited partnership formed and
existing in good standing under the Delaware Revised
Uniform Limited Partnership Act, as amended (the
"Delaware Act") as of the date of the certificate
identified elsewhere in the opinion letter. Each
Partnership has the partnership power and partnership
authority under its partnership agreement and the
Delaware Act to own, lease and operate its
properties, to conduct its business as described in
the Prospectus and to perform its obligations under
this Agreement and any Terms Agreement. Each of the
Partnerships is duly qualified or registered as a
foreign partnership in good standing, as of the dates
of the certificates identified elsewhere in the
opinion letter, in those states in which such
Partnership owns Properties.
20
(iii) Each of CarrAmerica
GP Holdings, Inc., Xxxx Real Estate Services, Inc.
and Xxxx Development & Construction, Inc.
(collectively, the "Significant Subsidiaries") was
incorporated and is existing in good standing as of
the date of the certificate identified elsewhere in
the opinion letter under the laws of the state of its
incorporation. Each of the Significant Subsidiaries
has the corporate power and corporate authority under
its charter and the laws of the state of its
incorporation to own, lease and operate its
properties and to conduct its business as described
in the Prospectus.
(iv) The capital stock of
the Company, as of the date specified in the
Prospectus, is as set forth in the Prospectus under
"Capitalization." To the knowledge of such counsel,
except for shares reserved for issuance upon the
redemption of Units or as otherwise disclosed in the
Registration Statement, no shares of capital stock of
the Company are reserved for any purpose. To the
knowledge of such counsel, except as described in the
Prospectus, and except in connection with stock or
Unit options and in connection with dividend
reinvestment plans and the possible issuance of
shares of Common Stock upon the exchange of Units or
as otherwise disclosed in the Registration Statement,
there are no outstanding securities convertible into
or exchangeable for any capital stock of the Company,
and no outstanding options, rights or warrants to
purchase or to subscribe for such shares or any other
securities of the Company or either of the
Partnerships. No holder of outstanding shares of
Common Stock has any preemptive rights described in
Section 2-205(a) of the MGCL, or, to the knowledge of
such counsel, and except as described in the
Prospectus, any contractual right to subscribe for or
purchase any such shares.
(v) The applicable
Underwritten Securities, if such Underwritten
Securities are Common Stock, Preferred Stock or
Depositary Shares, have been duly authorized by the
Company for issuance and sale to the Underwriters
pursuant to this Agreement, and, when issued and
delivered by the Company, pursuant to this Agreement
and the applicable Terms Agreement against payment of
the consideration set forth in the Terms Agreement,
will be validly issued, fully paid and non-assessable
under the MGCL. The terms of the applicable
Underwritten Securities conform in all material
respects to all statements and descriptions related
thereto contained in the Prospectus. The form of
stock certificate to be used to evidence the
applicable Underwritten Securities is in due and
proper form and complies with all applicable legal
requirements. The issuance of the applicable
Underwritten Securities is not subject to any
preemptive rights described in Section 2-205(a) of
the MGCL, or, to the knowledge of such counsel, and
except as described in the Prospectus, any
contractual right to subscribe for or purchase any
such Underwritten Securities or Common Stock. In
addition, upon deposit by the Company of any
Preferred Stock represented by Depositary Shares with
the applicable Depositary and the execution and
delivery by such Depositary of the Depositary
Receipts evidencing such Depositary Shares, in each
case pursuant to the applicable
21
Deposit Agreement, such Depositary Shares will
represent legal and valid interests in such Preferred
Stock. The form of Depositary Receipt evidencing
Depositary Shares is in due and proper form and
complies with the applicable statutory requirements,
with any applicable requirements of the charter or
by-laws of the Company and with the requirements of
the New York Stock Exchange. The applicable Articles
Supplementary are in full force and effect.
(vi) The applicable Deposit
Agreement, if such Underwritten Securities are
Depositary Shares, has been duly authorized, executed
and delivered by the Company and (assuming due
authorization, execution and delivery by the
applicable Depositary) constitutes a valid and
legally binding agreement of the Company, enforceable
against the Company in accordance with its terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles. Each registered holder of a Depositary
Receipt under the applicable Deposit Agreement will
be entitled to the proportional rights, preferences
and limitations of the Preferred Stock represented by
the Depositary Shares evidenced by such Depositary
Receipt and to such other rights as are granted to
such registered holder in such Deposit Agreement.
(vii) The Common Stock
Warrants, if such Underwritten Securities are Common
Stock Warrants, have been duly authorized by the
Company for issuance and sale to the Underwriters
pursuant to this Agreement, and, when issued and
delivered in the manner provided for in this
Agreement and any Terms Agreement and countersigned
by the Warrant Agent as provided in the Warrant
Agreement against payment of the consideration set
forth in the Terms Agreement, will be duly executed,
countersigned, issued and delivered and will
constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the
Warrant Agreement under which they are to be issued.
The terms of the Common Stock Warrants conform in all
material respects to all statements and descriptions
related thereto contained in the Prospectus. The
issuance of the Common Stock Warrants is not subject
to any preemptive rights described in Section
2-205(a) of the MGCL, or, to the knowledge of such
counsel, and except as described in the Prospectus,
any contractual right to subscribe for or purchase
any such Common Stock Warrants or Common Stock.
(viii) The applicable
Underwritten Securities, if such Underwritten
Securities are Debt Securities, are in the form
contemplated in the Indenture, have been duly
authorized by the Company for issuance and sale to
the Underwriters pursuant to this Agreement and, when
executed, authenticated, issued and delivered in the
manner provided for in this Agreement, the applicable
Terms Agreement and the applicable Indenture, against
payment of the consideration therefor specified in
the applicable Terms Agreement, such Debt Securities
will constitute valid and legally binding obligations
of the Company entitled to the benefits of the
Indenture
22
and such Debt Securities will be enforceable against
the Company in accordance with their terms. The terms
of the applicable Underwritten Securities conform in
all material respects to all statements and
descriptions related thereto in the Prospectus. Such
Underwritten Securities rank and will rank on a
parity with all unsecured indebtedness (other than
subordinated indebtedness of the Company that is
outstanding on the Representation Date or that may be
incurred thereafter) and senior to all subordinated
indebtedness of the Company that is outstanding on
the Representation Date or that may be incurred
thereafter, except that such Underwritten Securities
will be effectively subordinated to the prior claims
of each secured mortgage lender to any specific
Property which secures such lender's mortgage.
(ix) If applicable, the
Common Stock issuable upon exercise of the Common
Stock Warrants or upon conversion of the Debt
Securities or Preferred Stock (including Preferred
Stock represented by Depositary Shares) will have
been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all
necessary action and such stock, when issued upon
such conversion or exercise, will be duly and validly
issued, fully paid and non-assessable, and the
issuance of such stock upon such conversion or
exercise will not be subject to any preemptive rights
described in Section 2-205(a) of the MGCL, or, to the
knowledge of such counsel, and except as described in
the Prospectus, any contractual right to subscribe
for or purchase any Common Stock. The Common Stock so
issuable conforms in all material respects to all
statements relating thereto contained in the
Prospectus.
(x) Each of this Agreement
and the applicable Terms Agreement was duly and
validly authorized, executed and delivered by the
Company and the Company has the power and authority
to perform its obligations hereunder and thereunder.
The execution and delivery of this Agreement, the
applicable Terms Agreement, any Warrant Agreement,
any Deposit Agreement, any Indenture and, if
applicable, the Underwritten Securities, the
performance of the obligations set forth herein or
therein, and the consummation of the transactions
contemplated hereby and thereby by the Company, will
not (i) breach or constitute a default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any Property or assets of
the Company or its subsidiaries taken together as a
whole, pursuant to any contract, indenture, mortgage,
loan agreement, note, lease, joint venture or
partnership agreement or other instrument or
agreement which has been filed as an exhibit to the
Registration Statement, or (ii) violate the charter
or by-laws of the Company.
(xi) The applicable Warrant
Agreement, if any, has been duly authorized, executed
and delivered by the Company, and (assuming due
authorization, execution and delivery by the Warrant
Agent) constitutes a valid and legally binding
agreement of the Company, enforceable in accordance
with its terms. The Warrant Agreement, if any,
conforms in all
23
material respects to all statements relating thereto
contained in the Prospectus.
(xii) The Indenture has
been duly qualified under the 1939 Act and has been
duly and validly authorized, executed and delivered
by the Company, and, assuming due authorization,
execution and delivery by the Trustee, constitutes a
valid and binding obligation of the Company,
enforceable in accordance with its terms. The
Indenture conforms in all material respects to the
descriptions thereof contained in the Prospectus.
(xiii) None of the Company
or either of the Partnerships is an investment
company as such term is defined under the 1940 Act.
(xiv) No consent, approval,
authorization of or filing with any federal or
Maryland or Delaware state governmental agency or
authority is required in connection with the
offering, issuance or sale of the applicable
Underwritten Securities to the Underwriters
hereunder, except such as may be required under the
1933 Act or the 1933 Act Regulations or the 1939 Act
or the 1939 Act Regulations or state or foreign
securities laws or real estate syndication laws, as
to which such counsel need express no opinion, or
such as have been received prior to the date of this
Agreement.
(xv) The documents
incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of
Form S-3 under the 1933 Act (other than the financial
statements and related schedules and financial
information and data included therein, as to which no
opinion need be rendered), at the time they were
filed with the Commission, complied and will comply
as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act
Regulations.
(xvi) The Registration
Statement is effective under the 1933 Act and, to the
knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(xvii) At the time the
Registration Statement became effective and at the
Representation Date, (A) the Registration Statement
and the Prospectus (other than the financial
statements and related schedules and financial
information and data included therein, or the
Statement of Eligibility, as to which no opinion need
be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and
the 1933 Act Regulations and (B) the Prospectus and
the Term Sheet, if any, complied with Rule 434(c)(2).
(xviii) The statements made
in the Prospectus under the headings entitled
"Description of Debt Securities," "Description of
Preferred Stock," "Description of Common Stock,"
"Description of Common Stock Warrants," and the
information in the applicable Prospectus Supplement
under similar specified sections to the extent that
they describe matters of
24
law or legal conclusions, has been reviewed by them
and is correct in all material respects.
(xix) To the knowledge of
such counsel, except as otherwise described in the
Registration Statement or in the agreements referred
to in an exhibit to such opinion, there are no
persons with registration or other similar rights to
have any securities registered pursuant to the
Registration Statement or otherwise registered by the
Company under the 1933 Act.
The opinions rendered pursuant to clauses (viii),
(xi) and (xii) above may be subject to exceptions regarding
bankruptcy and similar laws, general principles of equity and
other customary exceptions reasonably acceptable to counsel
for the Underwriters.
(2) [INTENTIONALLY LEFT BLANK]
(3) The favorable opinion, dated as of the applicable
Closing Time, of Xxxxxx & Xxxxx, counsel for the Underwriters,
in form and substance satisfactory to the Underwriters.
(4) In giving their opinions required by subsections
(b)(1) and (b)(3), respectively, of this Section, Xxxxx &
Xxxxxxx L.L.P. and Xxxxxx & Xxxxx shall additionally state
that such counsel has participated in conferences with
officers and other representatives of the Company and the
independent public accountants for the Company at which the
contents of the Registration Statement and the Prospectus and
related matters were discussed and in the preparation of the
Registration Statement and the Prospectus and, on the basis of
the foregoing, nothing has come to their attention that would
lead them to believe that either the Registration Statement or
any amendment thereto (excluding the financial statements and
financial schedules and financial information and data
included or incorporated by reference therein or the Statement
of Eligibility, as to which such counsel need express no
belief), at the time it became effective or at the time an
Annual Report on Form 10-K was filed by the Company with the
Commission (whichever is later), or at the Representation
Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto
(excluding the financial statements or financial schedules and
financial information and data included or incorporated by
reference therein or the Statement of Eligibility, as to which
such counsel need express no belief), at the Representation
Date or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
In giving their opinions, Xxxxx & Xxxxxxx L.L.P. and
Xxxxxx & 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
25
Company, the Partnerships and the Significant Subsidiaries and
(B) as to the qualification and good standing of each of the
Company, the Partnerships and the Significant Subsidiaries to
do business in any jurisdiction, certificates of appropriate
government officials or opinions of counsel in such
jurisdictions.
Xxxxx & Xxxxxxx L.L.P. shall additionally state that
the Underwriters may rely on their opinion addressed to the
Company, and attached to the Registration Statement as Exhibit
8.1, as if such opinion were addressed to them.
(c) At Closing Time, (i) no action, suit or
proceeding at law or in equity shall be pending or, to the knowledge of
the Company and the Partnerships, threatened against the Company, the
Partnerships and any Subsidiary which would be required to be set forth
in the Prospectus other than as set forth therein; (ii) there shall not
have been, since the date of the applicable Terms Agreement or since
the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, assets,
business affairs or business prospects of the Company, the Partnerships
and the Subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business; (iii) no proceedings shall
be pending or, to the knowledge of the Company and the Partnerships,
threatened against such entity or any Subsidiary before or by any
federal, state or other commission, board or administrative agency
wherein an unfavorable decision, ruling or finding might result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, assets, business affairs or business prospects of the
Company, the Partnerships and the Subsidiaries, considered as one
enterprise, other than as set forth in the Prospectus; (iv) no stop
order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or threatened by the Commission or by the
state securities authority of any jurisdiction; and (v) the
Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of the Closing Time,
evidencing compliance with the provisions of this subsection (c) and
stating that the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly
made at and as of Closing Time.
(d) At the time of the execution of the applicable
Terms Agreement, the Representatives shall have received from KPMG Peat
Marwick LLP a letter dated such date, in form and substance
satisfactory to the Representatives, to the effect that: (i) they are
independent public accountants with respect to the Company as required
by the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion
that the financial statements and supporting schedules included in the
Registration Statement, or incorporated by reference therein, and
covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations; (iii) based upon limited procedures set forth in detail in
such letter, including a reading of the latest available interim
financial statements of the Company a reading of the minute books of
the Company inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing has come to
their attention which causes them to believe that (A) the unaudited
financial statements of the Company included in the Registration
Statement, or incorporated by reference therein, do not comply as to
26
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations, or material modifications are
required for them to be presented in conformity with generally accepted
accounting principles, (B) the operating data and balance sheet data
set forth in the Prospectus under the caption "Selected Consolidated
Financial Data" were not determined on a basis substantially consistent
with that used in determining the corresponding amounts in the audited
financial statements included or incorporated by reference in the
Registration Statement, (C) the pro forma financial information
included or incorporated by reference in the Registration Statement was
not determined on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference in
the Registration Statement or did not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X and that the pro forma adjustments have not been
properly applied to the historical amounts in the compilations of the
statements or (D) at a specified date not more than five days prior to
the date of the applicable Terms Agreement, there has been any change
in the capital stock of the Company or any increase in the debt of the
Company or any decrease in the net assets of the Company as compared
with the amounts shown in the most recent consolidated balance sheet of
the Company included in the Registration Statement or incorporated by
reference therein, or, during the period from the date of the most
recent consolidated statement of operations included in the
Registration Statement or incorporated by reference therein to a
specified date not more than five days prior to the date of the
applicable Terms Agreement, there were any decreases, as compared with
the corresponding period in the preceding year, in revenues, net income
or funds from operations of the Company except in all instances for
changes, increases or decreases which the Registration Statement and
the Prospectus disclose have occurred or may occur; and (iv) in
addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect
to certain amounts, percentages and financial information which are
included in the Registration Statement and Prospectus and which are
specified by the Representatives, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company
identified in such letter.
(e) At Closing Time, the Representatives shall have
received from KPMG Peat Marwick LLP a letter, dated the Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the
"specified date" referred to shall be a date not more than five days
prior to Closing Time.
(f) At Closing Time, the Underwritten Securities, if
such Underwritten Securities are Preferred Stock or Debt Securities,
shall be rated investment grade by one or more nationally recognized
statistical rating organizations and the Company shall have delivered
to the Representatives a letter, dated the Closing Time, from each such
rating organization, or other evidence satisfactory to the
Representatives, confirming that such Underwritten Securities have such
ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to such Underwritten
Securities or any of the Company's other debt securities by any
nationally recognized securities rating organization, and no such
securities rating organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of such Underwritten Securities or any of the Company's
other debt securities.
27
(g) At Closing Time and at each Date of Delivery, if
any, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the applicable
Underwritten Securities as contemplated herein, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the applicable Underwritten Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(h) At Closing Time, the Representatives shall have
received a letter agreement from Security Capital Holdings S.A.,
wherein Security Capital Holdings S.A. shall agree that during the
period specified in the applicable Prospectus Supplement they and their
affiliates will not, without the prior written consent of Xxxxxxx,
Sachs & Co. and the Company (which consent, in the case of the Company,
will be subject to the approval of the Company's unaffiliated
directors), directly or indirectly, sell, offer to sell, grant any
option for the sale of, enter into any agreement to sell, or otherwise
dispose of, (i) any securities of the same class or series or ranking
on a parity with any Underwritten Securities or any security
convertible into or exchangeable for shares of such Underwritten
Securities, and (ii) if such Prospectus Supplement relates to Common
Stock Warrants or Debt Securities or Preferred Stock that is
convertible into or exchangeable for Common Stock, any Common Stock or
Units or any security convertible into or exchangeable for shares of
Common Stock. Such transfer restrictions do not apply to transfers to
members of the family of such director or executive officer (or an
entity for their benefit), or to the granting of a bona fide security
interest to a secured party. Any transferees of such shares, Units or
other securities will be likewise prohibited from making any transfer
of shares, Units or other securities.
(i) In the event that the Underwriters exercise their
option provided in Section 2(b) hereof to purchase all or any portion
of the Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates
furnished by the Company hereunder shall be true and correct as of each
Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(1) A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the
Company confirming that their respective certificates
delivered at Closing Time pursuant to Section 5(c) hereof
remain true and correct as of such Date of Delivery.
(2) The favorable opinion of Xxxxx & Xxxxxxx
L.L.P. in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinions required by
Section 5(b)(1) hereof (including the statement of belief
required by Section 5(b)(4) hereof).
(3) The favorable opinion of Xxxxxx & Xxxxx,
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date
of Delivery and otherwise to the same effect as the opinion
required by Section 5(b)(3) hereof.
28
(4) A letter from KPMG Peat Marwick, in form
and substance satisfactory to the Representatives and dated
such Date of Delivery, substantially the same in form and
substance as the letter furnished to the Representatives
pursuant to Section 5(e) hereof, except that the "specified
date" in the letter furnished pursuant to this Section 5(i)(4)
shall be a date not more than five days prior to such Date of
Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to
Closing Time and such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof.
SECTION 6. Indemnification.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
preliminary prospectus, Prospectus, preliminary prospectus supplement or
Prospectus Supplement, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, such preliminary
prospectus, preliminary prospectus supplement or the Prospectus or Prospectus
Supplement, or any such amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through 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).
(b) Each Underwriter will indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus, Prospectus, preliminary prospectus supplement or Prospectus
Supplement, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any preliminary prospectus, Prospectus, preliminary
prospectus supplement or Prospectus Supplement, or any such amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use under the caption "Plan of Distribution" or "Underwriting" in
the Registration
29
Statement (or any amendment thereto) or such preliminary prospectus, preliminary
prospectus supplement or the Prospectus or Prospectus Supplement (or any
amendment or supplement thereto); and will reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this
Section 6 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Underwritten Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Underwritten Securities (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
30
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it pursuant to
the applicable Terms Agreement and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section
6 shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the 1933 Act; and the obligations
of the Underwriters under this Section 6 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the 1933
Act.
SECTION 7. [INTENTIONALLY OMITTED].
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of the
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any termination of the applicable Terms
Agreement, or any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company and shall survive delivery
of the Underwritten Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if either the Company, the Partnerships or the Subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; or
(ii) if there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
31
change in the capital stock or long-term debt of the Company, the Partnerships
or the Subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company, the Partnerships
or the Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus; or (iii) if there has occurred any downgrading in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock; or (iv) if there has occurred a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange or on the American Stock Exchange or a suspension or material
limitation in trading in the Common Stock on the New York Stock Exchange, or if
a general moratorium on commercial banking activities has been declared by
either Federal, New York or Maryland authorities; or (v) if there has occurred
any outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in Clause (i), (ii) or (v) of this Section 9(a) in
the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Underwritten Securities
on the terms and in the manner contemplated in the Prospectus. As used in this
Section 9(a), the term "Prospectus" means the Prospectus together with any
Prospectus Supplement in the form first used to confirm sales of the
Underwritten Securities.
(b) In the event of any such termination, in respect
to such terminated Terms Agreement, (x) the covenants set forth in Section 3
with respect to any offering of Underwritten Securities shall remain in effect
so long as any Underwriter owns any such Underwritten Securities purchased from
the Company pursuant to the applicable Terms Agreement and (y) the covenant set
forth in Section 3(i) hereof, the provisions of Section 4 hereof, the indemnity
and contribution agreements set forth in Section 6 hereof, and the provisions of
Sections 8 and 13 hereof shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the Underwritten Securities to be purchased pursuant to
such Terms Agreement, each of the non-defaulting Underwriters named in
such Terms Agreement shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10%
of the Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
32
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, each of the Representatives or
the Company shall have the right to postpone Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention Registration Department;
notices to the Company shall be directed to 0000 Xxxxxxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, attention of Xxxxxx X. Xxxx.
SECTION 12. Parties. This Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the parties
hereto and their respective successors. Nothing expressed or mentioned in this
Agreement or the applicable Terms Agreement is intended or shall be construed to
give any person, firm or corporation, other than those referred to in Section 6
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or the applicable Terms Agreement
or any provision herein or therein contained. This Agreement and the applicable
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement and the Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
CARRAMERICA REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX, SACHS & CO.
XXXX XXXXX XXXX XXXXXX, INCORPORATED
X.X. XXXXXX SECURITIES INC.
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
XXXXX XXXXXX INC.
By: XXXXXXX, SACHS & CO.
/s/ Xxxxxxx, Xxxxx & Co.
--------------------------------------
(Xxxxxxx, Sachs & Co.)
For themselves and as Representatives
of the Underwriters named herein
