594,377 Shares
CarrAmerica Realty Corporation
Common Stock
UNDERWRITING AGREEMENT
----------------------
December 18, 1997
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
000 Xxxxx Xxxxxxx Xxxxxx
P.O. Box 1476
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
CarrAmerica Realty Corporation, a Maryland corporation (the
"Company"), proposes to issue and sell 594,377 shares of common stock of the
Company, par value $.01 per share (the "Shares"), to Xxxx Xxxxx Xxxx Xxxxxx,
Incorporated (you or the "Underwriter"). The shares of common stock, par value
$.01 per share, of the Company to be outstanding after giving effect to the sale
contemplated hereby are hereinafter referred to as shares of the "Common Stock."
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-3
(Registration No. 333-22353) including a preliminary prospectus relating to the
registration of the Shares and such other securities which may be offered from
time to time by the Company in accordance with Rule 415 under the Act. Such
registration statement (as amended, if applicable) has been declared effective
by the Commission on March 27, 1997 Such registration statement (as amended, if
applicable), on the one hand, and the prospectus constituting a part thereof and
the prospectus supplement relating to the offering of the Shares provided to the
Underwriter by the Company for use (whether or not such prospectus supplement is
required to be filed with the Commission by the Company pursuant to the Act)
(the "Prospectus Supplement"), on the other hand, including all documents
incorporated therein by reference, as from time to time amended or supplemented
pursuant to the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively called the "Exchange
Act") and the Act are referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, however, that a prospectus supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of the Shares to which it relates. Any registration
statement (including any amendment or supplement thereto or information which is
deemed part thereof) filed by the Company under Rule 462(b) of the Act (a "Rule
462(b) Registration Statement") shall be deemed to be part of the "Registration
Statement" as defined herein and any prospectus or any term sheet as
contemplated by Rule 434 of the Act (a "Term Sheet") (including any amendment or
supplement thereto or information which is deemed part thereof) included in such
registration statement shall be deemed to be part of the "Prospectus," as
defined herein. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "described" 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 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, without limitation, even though not specifically stated, any
document filed under the Exchange Act which is or is deemed to be incorporated
by reference in the Registration Statement or the Prospectus, as the case may
be. Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell the Shares and the
Underwriter agrees to purchase from the Company at a price per share of $29.744
(the "Purchase Price"), the Shares.
3. Terms of the Offering. The Company is advised by the
Underwriter that it proposes (i) to deposit the Shares directly with the Trustee
of Xxxx Xxxxx REIT Trust, December 1997 Series (the "Trust"), a registered unit
investment trust under the Investment Company Act of 1940, as amended (the
"Offering"), as soon after the execution and delivery hereof as in its judgment
is advisable and (ii) initially to offer the Shares upon the terms set forth in
the Prospectus. The Company further acknowledges that the Underwriter is the
sponsor of the Trust and therefore is considered an affiliate of the Trust.
4. Delivery and Payment. Delivery to the Underwriter of
certificates for, and payment of the Purchase Price for, the Shares shall be
made, subject to Section 9, at 10:00 A.M., New York City time, on December 23,
1997, or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriter and the Company (such time and date of
payment and delivery being herein called the "Closing Date") at such place as
you shall designate. The Closing Date and the location of, delivery of and the
form of payment for the Shares may be varied by agreement between you and the
Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York City time, on
the business day next preceding the Closing Date. Certificates in definitive
form evidencing the Shares shall be delivered to you on the Closing Date, with
any transfer taxes thereon duly paid by the Company, for the account of the
Underwriter, against
2
payment of the Purchase Price therefor by intra-bank transfer or wire transfer
of same day funds to such account as may be designated by the Company at least
two business days prior to the Closing Date.
5. Agreements of the Company. The Company agrees with you as
follows:
(a) In respect of the offering of Shares, the
Company will (i) prepare a Prospectus Supplement setting forth the
number of Shares covered thereby and their terms not otherwise specified
in the Prospectus pursuant to which the Shares are being issued, the
name of the Underwriter and the number of Shares which the Underwriter
has agreed to purchase, the price at which the Shares are to be
purchased by the Underwriter from the Company, the initial offering
price, and such other information as the Underwriter and the Company
deem appropriate in connection with the offering of the Shares, and (ii)
file the Prospectus in a form approved by you pursuant to Rule 424(b)
under the Act no later than the Commission's close of business on the
second business day following the date of the determination of the
offering price of the Shares. The Company will furnish to the
Underwriter and to such dealers as you shall specify as many copies of
the Prospectus as the Underwriter shall reasonably request for the
purposes contemplated by the Act or the Exchange Act.
(b) At any time when the Prospectus is required to
be delivered under the Act or the Exchange Act in connection with sales
of Shares, the Company will advise you promptly and, if requested by
you, confirm such advice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus or other supplement or amendment
to the Prospectus to be filed pursuant to the Act, (iii) the receipt of
any comments from the Commission relating to the Registration Statement,
any preliminary prospectus, the Prospectus or any of the transactions
contemplated by this Agreement, (iv) any request by the Commission for
post-effective amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (v) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, and (vi) the
happening of any event as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading. The Company will
make every reasonable effort to prevent the issuance of any stop order,
and if at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make
every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) The Company will furnish to you without
charge, one signed copy of the Registration Statement as first filed
with the Commission and of each amendment to it, including all exhibits,
and furnish to you such number of conformed copies of the Registration
Statement as so filed and of each amendment to it as you may reasonably
request. If applicable, the copies of the Registration Statement and
each amendment thereto furnished to the
3
Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(d) At any time when the Prospectus is required to
be delivered under the Act or the Exchange Act in connection with sales
of Shares, the Company will not file any amendment to the Registration
Statement or any Rule 462(b) Registration Statement or make any
amendment or supplement to the Prospectus or any Term Sheet, if
applicable, of which you shall not previously have been advised or to
which you or your counsel shall reasonably object; and the Company will
prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement, Rule 462(b)
Registration Statement, Term Sheet, or amendment or supplement to the
Prospectus which, in the opinion of your counsel, may be necessary in
connection with the distribution of the Shares by you, and will use its
best efforts to cause the same to become promptly effective. If
applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(e) If, at any time when the Prospectus is
required to be delivered under the Act or the Exchange Act in connection
with sales of Shares, any event shall occur as a result of which, in the
opinion of counsel for the Underwriter, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with any law, the Company will
forthwith prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus (in form and substance reasonably
satisfactory to counsel for the Underwriter) so that the statements in
the Prospectus, as so amended or supplemented, will not contain 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 when it is so delivered, not misleading, or so
that the Prospectus will comply with any law, and to furnish to the
Underwriter and to such dealers as you shall specify, such number of
copies thereof as the Underwriter or dealers may reasonably request.
(f) The Company will use its best efforts, in
cooperation with the Underwriter, to qualify, register or perfect
exemptions for the Shares for offer and sale by the Underwriter under
the applicable state securities or Blue Sky laws and real estate
syndication laws of such jurisdictions as you may reasonably request;
provided, however, the Company will not be required to qualify as a
foreign corporation, file a general consent to service of process in any
such jurisdiction, subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject, or
provide any undertaking or make any change in its charter or by-laws
that the Board of Directors of the Company reasonably determines to be
contrary to the best interests of the Company and its stockholders. In
each jurisdiction in which the Shares have been so qualified or
registered, the Company will use all reasonable efforts to file such
statements, reports and other documents as may be required by the laws
of such jurisdiction, to continue such qualification or registration in
effect for so long a period as the Underwriter may reasonably request
for the distribution of the Shares.
4
(g) To make generally available to the Company's
stockholders as soon as reasonably practicable but not later than sixty
(60) days after the close of the period covered thereby (ninety (90)
days in the event the close of such period is the close of the Company's
fiscal year), an earnings statement (in form complying with the
provisions of Rule 158 of the Act) covering a period of at least twelve
months after the effective date of the Registration Statement (but in no
event commencing later than ninety (90) days after such date) which
shall satisfy the provisions of Section 11(a) of the Act, and, if
required by Rule 158 of the Act, to file such statement as an exhibit to
the next periodic report required to be filed by the Company under the
Exchange Act covering the period when such earnings statement is
released.
(h) During the period of five years after the date
of this Agreement, to furnish to you as soon as available a copy of each
regular and periodic report, financial statement or other publicly
available information of the Company and any of its subsidiaries mailed
to the holders of the Shares or filed with the Commission or any
securities exchange, and any such publicly available information
concerning the Company or any of its subsidiaries as you may reasonably
request.
(i) During the period when the Prospectus is
required to be delivered under the Act or the Exchange Act in connection
with sales of the Shares, to file all documents required to be filed by
it with the Commission pursuant to Section 13, 14 or 15 of the Exchange
Act within the time periods required by the Exchange Act.
(j) To pay all costs, expenses, fees and taxes
incident to (i) the preparation, printing, filing and distribution under
the Act of the Registration Statement and any amendment thereto
(including financial statements and exhibits), each preliminary
prospectus, the Prospectus and all amendments and supplements to any of
them prior to or during the period specified in Section 5(b), (ii) the
qualification of registration of the Shares for offer and sale under the
securities, Blue Sky laws or real estate syndication laws of the several
states in accordance with Section 5(f) hereof, (iii) the fee of and the
filings and clearance, if any, with the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the Offering,
(iv) the fee of and the listing of the Shares on the New York Stock
Exchange, Inc. ("NYSE"), (v) furnishing such copies of the Registration
Statement, the Prospectus and all amendments and supplements thereto as
may be requested for use in connection with the offering or sale of the
Shares by the Underwriter, (vi) the preparation, issuance and delivery
of certificates for the Shares to the Underwriter, (vii) the costs and
charges of any transfer agent or registrar, (viii) any transfer taxes
imposed on the sale by the Company of the Shares to the Underwriter and
(vi) the fees and disbursements of the Company's counsel and
accountants.
(k) The Company will use its best efforts to
maintain the listing of the Shares on the NYSE for a period of three
years after the Closing Date and thereafter unless the Company's Board
of Directors determines that it is no longer in the best interests of
the Company for the Shares to continue to be so listed.
5
(l) The Company will use its best efforts to do
and perform all things required to be done and performed under this
Agreement by the Company prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Shares.
(m) The Company will use the net proceeds received
by it from the sale of the Shares in the manner specified in the
Prospectus Supplement under "Use of Proceeds."
(n) The Company will prepare and file or transmit
for filing with the Commission in accordance with Rule 424(b) of the Act
copies of the Prospectus.
(o) The Company will use its best efforts to
ensure that the Company continues to qualify as a "real estate
investment trust" ("REIT") under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code"), for a period of
three years after the date of this Agreement unless the Company's Board
of Directors determines that it is no longer in the best interest of the
Company to be so qualified.
(p) The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will constitute, stabilization
of the price of the Shares to facilitate the sale or resale of any
Shares in violation of the Act.
6. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter as of the date hereof and the Closing
Date that:
(a) The Registration Statement became effective on
March 27, 1997. 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, 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, threatened by the
Commission or by the state securities authority of any jurisdiction.
(b) The Registration Statement and the Prospectus,
including the financial statements, schedules and related notes included
in the Prospectus or incorporated therein by reference and, if
applicable, any Term Sheet to the Prospectus, as of the date hereof and
at the time the Registration Statement became effective, and when any
post-effective amendment to the Registration Statement or Rule 462(b)
Registration Statement becomes effective or any amendment or supplement
to the Prospectus is filed with the Commission, did or will comply in
all material respects with all applicable provisions of the Act. The
Prospectus, including the financial statements, schedules and related
notes included in the Prospectus or incorporated therein by reference,
and if applicable, any Term Sheet to the Prospectus, as of the date
hereof and at the time the Registration Statement became effective, and
at the Closing Date, and when any post-effective amendment to the
Registration Statement or Rule 462(b) Registration Statement becomes
effective or any amendment or supplement to the Prospectus is filed with
the Commission, did or will comply in all material respects with all
applicable provisions of the Act. On the date the Registration Statement
was declared effective, on the date hereof, on the
6
date of filing of any Rule 462(b) Registration Statement and on the
Closing Date, no part of the Registration Statement or any amendment did
or will contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to
make the statements therein not misleading. On the date the Registration
Statement was declared effective, on the date hereof, as of its date, on
the date of filing of any Rule 462(b) Registration Statement and at the
Closing Date, the Prospectus and the Prospectus Supplement did not or
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. If a
Rule 462(b) Registration Statement is filed in connection with the
offering and sale of the Shares, the Company will have complied or will
comply with the requirements of Rule 111 under the Act relating to the
payment of filing fees therefor. The foregoing representations and
warranties in this Section 6(b) do not apply to any statements or
omissions made in reliance on and in conformity with information
relating to the Underwriter furnished in writing to the Company by the
Underwriter specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. The Company has not
distributed any offering material in connection with the offering or
sale of the Shares other than the Registration Statement, the Prospectus
or any other materials, if any, permitted by the Act (which were
disclosed to the Underwriter and Underwriter's counsel).
(c) Each 462(b) Registration Statement, if any,
complied or will comply when so filed in all material respects with all
applicable provisions of the Act; did not or 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, in the
light of the circumstances under which they were made, not misleading;
and the Prospectus delivered to the Underwriter for use in connection
with the offering of the Shares will, at the time of such delivery, be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to Item 12 of Form
S-3 under the 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 Exchange Act, and, when read together with other
information in and incorporated by reference in the Prospectus, at the
time the Registration Statement became effective, and as of the Closing
Date, or during the period specified in Section 5(b) did not and will
not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
representations and warranties in this Section 6(d) do not apply to any
statements or omissions made in reliance on and in conformity with
information relating to the Underwriter furnished in writing to the
Company by the Underwriter specifically for inclusion in the
Registration Statement or Prospectus or any amendment or supplement
thereto.
(e) The historical financial statements and the
related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus, comply in all material
respects with the requirements of the Act and the Exchange Act, as
applicable, and present fairly the consolidated financial position of
the Company and its consolidated
7
subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified; the financial statements with respect to [the Properties (as
defined in the Prospectus) acquired by the Company or its subsidiaries,
together with related notes, to the extent incorporated by reference in
the Registration Statement or the Prospectus, present fairly a summary
of gross income and direct operating expenses or a summary of gross
income, as the case may be, of such Properties for the indicated
periods; except as otherwise stated in the Registration Statement or the
Prospectus, the foregoing financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis, and the supporting schedules included or incorporated
by reference in the Registration Statement present fairly the
information required to be stated therein; the pro forma financial
information, and the related notes thereto, included or incorporated by
reference in the Registration Statement and the Prospectus comply in all
material respects with the applicable requirements of the Act and the
Exchange Act, as applicable; the assumptions used in preparing such pro
forma information are reasonable and the adjustments used therein are
appropriate to give effect to the transactions referred to therein; and
the other financial and statistical information and data set forth in
the Registration Statement and the Prospectus are accurately presented
in all material respects and prepared on a basis consistent with the
books and records of the Company and its consolidated subsidiaries.
(f) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
(i) there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
condition (financial or otherwise), business, prospects, properties, net
worth or results of operations of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus; and (ii) except as set forth or contemplated in the
Prospectus, neither the Company nor any of its subsidiaries has entered
into any transaction or agreement (whether or not in the ordinary course
of business) material to the Company and its subsidiaries, taken as a
whole.
(g) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
state of Maryland, with corporate power and authority to own or lease
its properties and to conduct its business as described in the
Prospectus, and is duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not (1) have a
material adverse effect on the condition (financial or otherwise),
business, prospects, properties, net worth or results of operations of
the Company and its subsidiaries, taken as a whole, (2) adversely affect
the issuance or validity of the Shares or (3) adversely affect the
consummation of any of the transactions contemplated by this Agreement
(each of (1), (2) and (3) above, a "Material Adverse Effect"); each of
the subsidiaries of the Company has been duly organized and is validly
existing as a corporation, limited partnership or limited liability
company, as the case may be, in good standing under the laws of its
jurisdiction of organization with corporate or partnership power and
authority, as the case may be, to own or lease its properties and
conduct its business as presently conducted and as described in the
Prospectus, and has been duly qualified as a foreign corporation,
foreign limited
8
liability company or foreign limited partnership, as the case may be,
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have
a Material Adverse Effect; all the outstanding shares of capital stock
of each subsidiary issued in the name of the Company or its subsidiaries
have been duly authorized and validly issued and are fully paid and
nonassessable; all the outstanding shares of capital stock and all
partnership interests of each subsidiary that are owned by the Company,
directly or indirectly, are owned free and clear of all liens,
encumbrances, security interests and claims. (h) This Agreement has been
duly authorized, executed and delivered by the Company.
(i) The Shares have been duly authorized and, when
issued and delivered to the Underwriter against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid and
nonassessable. Application has been made to list the Shares on the NYSE.
The form of certificate for the Shares will comply with all applicable
legal and NYSE requirements. The holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the Shares. The capital stock of the Company
conforms to the description thereof in the Registration Statement and
the Prospectus.
(j) Neither the Companies nor any of its
subsidiaries is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under (1) its Articles of
Incorporation, Certificate of Incorporation or operating or partnership
agreement, as the case may be (in each case as amended to the date of
this Agreement), (2) its Bylaws (as amended to the date of this
Agreement) or (3) any indenture, mortgage, deed of trust, loan
agreement, partnership agreement or other agreement or instrument or
obligation to which the Company or any of its subsidiaries is a party or
by which it or any of its properties is bound, except, with respect to
clauses (2) and (3), for violations and defaults which individually or
in the aggregate would not have a Material Adverse Effect; the issue and
sale of the Shares and the performance by the Company of all of the
obligations under this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement,
partnership agreement or other material agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, except
for such conflicts, breaches, defaults or violations which individually
or in the aggregate would not have a Material Adverse Effect, nor will
any such action result in any violation of the provisions of the
Articles of Incorporation or the ByLaws of the Company or any applicable
law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties, except for such violations which individually or in
the aggregate would not have a Material Adverse Effect; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except
9
such consents, approvals, authorizations, orders, registrations or
qualifications (x) as have been obtained under the Act and the Exchange
Act, (y) as may be required under the Act, the Exchange Act, state
securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct
Rules of the NASD in connection with the purchase and distribution of
the Shares by the Underwriter or (z) the failure to obtain which would
not have a Material Adverse Effect.
(k) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending or,
to the knowledge of the Company or its subsidiaries, threatened to which
the Company or its subsidiaries is or may be a party or to which any
property of the Company or its subsidiaries is or may be the subject
which, if determined adversely to the Company, could individually or in
the aggregate reasonably be expected to have a Material Adverse Effect;
there are no contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are not
filed or described as required; and the descriptions of the terms of all
such contracts and documents contained or incorporated by reference in
the Registration Statement or Prospectus are complete and correct in all
material respects.
(l) The authorized capital stock of the Company
consists of 90 million shares of Common Stock, $.01 par value per share,
and 15 million shares of preferred stock, $.01 par value per share. All
of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable.
(m) The Company or its subsidiaries has good and
marketable title to each Property, in each case free of any lien,
mortgage, pledge, charge or encumbrance of any kind except those (i)
described in the Prospectus or (ii) which do not materially affect or
detract from the value of such Property or interfere with the use made
and proposed to be made of such Property by the Company and its
subsidiaries and which individually and in the aggregate are in an
amount which is not material to the Company.
(n) Except as disclosed in the Prospectus, neither
the Company nor any of their subsidiaries has notice of any defense to
the obligations of any tenant under any lease for the possession of any
Property, or any claim asserted or threatened by any person or entity,
which claim, if sustained, would have a Material Adverse Effect; and
except as disclosed in the Prospectus, the lessor under each lease has
complied with its obligations under such lease, except as would not have
a Material Adverse Effect, and neither the Company nor any of its
subsidiaries has notice of any default by the tenant under such lease
which, individually or in the aggregate with other such defaults, would
have a Material Adverse Effect.
(o) The mortgages and deeds of trust encumbering
the Properties are not (i) cross-defaulted to any indebtedness other
than indebtedness of the Company or any of its subsidiaries or (ii)
cross-collateralized to any property not owned by the Company or its
subsidiaries.
(p) The Company and its subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are customary in the business in which
they are engaged and such insurance is adequate for the value of their
properties; all
10
policies of insurance insuring the Company or its subsidiaries or their
respective businesses, assets, employees, officers, trustees and
directors, as the case may be, are in full force and effect; the Company
and its subsidiaries is in compliance with the terms of such policies in
all material respects and there are no claims by the Company or by its
subsidiaries under any such policy as to which any insurance company is
denying liability or defending under a reservation of rights clause,
other than claims which individually or in the aggregate would not have
a Material Adverse Effect.
(q) The Company has filed all federal, state and
foreign income tax returns which have been required to be filed and have
paid all taxes indicated by said returns and all assessments received by
it to the extent that such taxes have become due and are not being
contested in good faith.
(r) The Company and each of its subsidiaries owns,
possesses and has obtained all material licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has made
all material declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals necessary to own or lease, as the
case may be, and to operate its properties and to carry on its business
as conducted as of the date hereof, except in each case where the
failure to obtain licenses, permits, certificates, consents, orders,
approvals and other authorizations, or to make all declarations and
filings, would not have a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received any notice of any
proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization,
except as described in the Prospectus and except, in each case, where
such revocation or modification would not have a Material Adverse
Effect; and the Company and each of its subsidiaries are in compliance
with all laws, rules and regulations relating to the conduct of their
respective businesses as conducted as of the date hereof, except where
noncompliance with such laws, rules or regulations would not have a
Material Adverse Effect.
(s) To the knowledge of the Company, its
independent accountants who have certified certain of the financial
statements filed with the Commission as part of, or incorporated by
reference in, the Registration Statement or the Prospectus, are
independent public accountants as required by the Act.
(t) To the knowledge of the Company, no
relationship, direct or indirect, exists between or among the Company or
its subsidiaries on the one hand, and the directors, trustees, officers,
stockholders, customers or suppliers of the Company or its subsidiaries
on the other hand, which is required by the Act to be described in the
Registration Statement and the Prospectus which is not so described.
(u) The Company has never been, is not now, and
immediately after giving effect to the sale of the Shares under this
Agreement will not be, an "investment company" or entity "controlled" by
an "investment company," within the meaning of the Investment Company
Act of 1940, as amended (the "Investment Company Act").
11
(v) With respect to all tax periods regarding
which the Internal Revenue Service is or will be entitled to assert any
claim against the Company, the Company has met the requirements for
qualification as a REIT under Sections 856 through 860 of the Code, and
the present and contemplated operations, assets and income of the
Company and its subsidiaries, taken as a whole, continue to meet such
requirements.
(w) Other than as disclosed in the Prospectus, the
Company has no knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste materials
(collectively, "Hazardous Materials") on any of the Properties or (b)
any unlawful spills, releases, discharges or disposals of Hazardous
Materials that have occurred or are presently occurring on or from the
Properties, which presence or occurrence would individually or in the
aggregate have a Material Adverse Effect.
(x) Other than as disclosed in the Prospectus, the
Company and its subsidiaries (i) are in compliance with any and all
applicable federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) the Company has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct
its respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not
individually or in the aggregate have a Material Adverse Effect.
(y) In the ordinary course of business, the
Company engages environmental consultants and other experts to conduct
reviews of the effect of Environmental Laws on properties to be acquired
by the Company or its subsidiaries, including Phase I environmental
audits or more invasive procedures, in the course of which the Company
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
cleanup, closure of properties or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis
of such reviews and other than as described in the Prospectus, the
Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, have a Material
Adverse Effect.
(z) Subsequent to the respective dates as of which
information is given in the Prospectus, (i) the Company has not
purchased any of its outstanding shares of capital stock, or declared,
paid or otherwise made any dividend or distribution of any kind on its
shares of capital stock other than regular periodic dividends on such
shares; and (ii) there has not been any material change in the shares of
capital stock of the Company or any material change in the short-term
debt or long-term debt of the Company and its subsidiaries on a
consolidated basis, except as described in or contemplated by the
Prospectus. Other than as described in or contemplated by the
Prospectus, including documents incorporated therein by reference, there
are no outstanding warrants or options to purchase or rights to acquire
any shares of capital stock of the Company (other than options or rights
granted or issued under the Company's
12
employee benefit plans or in connection with the acquisition of real
property or operating businesse, which in the aggregate do not equal
more than 2% of the number of outstanding shares of common stock of the
Company) and there are no restrictions upon the voting or transfer of,
or the declaration or payment of any dividend or distribution on, any
shares of capital stock of the Company pursuant to the Company's
Articles of Incorporation or Bylaws, any agreement or other instrument
to which the Company is a party or by which the Company is bound, or any
order, law, rule, regulation or determination of any court, governmental
agency or body (including, without limitation, any banking or insurance
regulatory agency or body), or arbitrator having jurisdiction over the
Company. No holders of securities of the Company or of securities
convertible into or exchangeable for securities of the Company have
rights to the registration of such securities of the Company under the
Registration Statement.
(aa) The Company and its subsidiaries and
affiliates have not taken and will not take, directly or indirectly, any
action designed to, or that might be reasonably expected to, cause or
result in stabilization or manipulation of the price of the Shares, and
the Company and its subsidiaries and affiliates have not distributed and
agree not to distribute any prospectus or other offering material in
connection with the offering and sale of the Shares other than the
Prospectus or other material permitted by the Act.
(bb) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(cc) There is (i) no significant unfair labor
practice complaint pending against the Company or its subsidiaries or,
to the knowledge of the Company, threatened against any of them, before
the National Labor Relations Board or any state or local labor relations
board, and no significant grievance or more significant arbitration
proceeding arising out of or under any collective bargaining agreement
is so pending against the Company or its subsidiaries or, to the
knowledge of the Company, threatened against any of them, and (ii) no
significant strike, labor dispute, slowdown or stoppage pending against
the Company or its subsidiaries or, to the knowledge of the Company,
threatened against it or any of their subsidiaries except for such
actions specified in clause (i) or (ii) above which individually or in
the aggregate could not reasonably be expected to have a Material
Adverse Effect.
(dd) No statement, representation, warranty or
covenant made by the Company in this Agreement or made in any
certificate or document required by this Agreement to be delivered to
the Underwriter is, or will be, when made, inaccurate, untrue or
incorrect in any material respect; it being understood that no
representation is made under this Section 6(gg) with respect to the
Registration Statement or the Prospectus which are the subject of
representations contained in other paragraphs in this Section 6.
13
(ee) Any certificate or other document signed by
any officer or authorized representative of the Company or any of their
subsidiaries, and delivered to the Underwriter or to counsel for the
Underwriter in connection with the sale of the Shares shall be deemed a
representation and warranty by such entity or person, as the case may
be, to the Underwriter as to the matters covered thereby.
7. Indemnification.
(a) The Company agrees to indemnify and hold
harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
expenses, liabilities and judgments caused by or resulting from any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by or
resulting from any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses,
claims, damages, expenses, liabilities or judgments are caused by or
result from any such untrue statement or omission or alleged untrue
statement or omission based upon and in conformity with information
relating to the Underwriter furnished in writing to the Company by or on
behalf of the Underwriter through you expressly for use therein,
provided, that this indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of the Underwriter from whom
the person asserting any such losses, liabilities, claims, damages or
expenses purchased Shares, or any person controlling the Underwriter, if
a copy of the prospectus (as then amended or supplemented if the Company
shall have furnished any such amendments or supplements thereto) was not
sent or given by or on behalf of the Underwriter to such person, if such
is required by law, at or prior to the written confirmation of the sale
of such Shares to such person and if the Prospectus (as so amended or
supplemented) would have corrected the defect giving rise to such loss,
liability, claim, damage or expense.
(b) In case any action shall be brought against
the Underwriter or any person controlling the Underwriter, based upon
any preliminary prospectus, the Registration Statement or the Prospectus
or any amendment or supplement thereto and with respect to which
indemnity may be sought against the Company, the Underwriter shall
promptly notify the Company in writing and the Company may, at its
election, assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of
all fees and expenses. The Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such
counsel shall, if the Company has assumed the defense as indicated
above, be at the expense of the Underwriter or such controlling person
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Company, (ii) the Company shall have failed
to assume the defense and employ counsel or (iii) the named parties to
any such action (including any impleaded parties) include both the
Underwriter or such controlling person and the Company and the
Underwriter or such controlling person shall have been advised by such
counsel that there may be one or more legal defenses available to it
14
which are different from or additional to those available to the Company
(in which case the Company shall not have the right to assume the
defense of such action on behalf of the Underwriter or such controlling
person, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any
local counsel) for the Underwriter and controlling persons, which firm
shall be designated in writing by the Underwriter and that all such fees
and expenses shall be reimbursed as they are incurred). The Company
shall not be liable for any settlement of any such action effected
without its written consent, but if settled with their written consent,
the Company agrees to indemnify and hold harmless the Underwriter and
any such controlling person from and against any loss or liability by
reason of such settlement to the extent required by this Section 7.
Notwithstanding the immediately preceding sentence, if in any case where
the fees and expenses of counsel are at the expense of the indemnifying
party and an indemnified party shall have requested the indemnifying
party to reimburse the indemnified party for such fees and expenses of
counsel as incurred, such indemnifying party agrees that it shall be
liable for any settlement of any action effected without its written
consent, if (i) such settlement is entered into more than forty business
days after the receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall have failed to reimburse
the indemnified party in accordance with such request for reimbursement
prior to the date of such settlement; provided, however, that if it is
determined by a final non appealable order of a court of competent
jurisdiction that the Company has no indemnification obligation under
this Section 7, all fees and expenses paid by any of the Company
pursuant to this sentence shall be returned to them upon demand. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(c) The Underwriter agrees to indemnify and hold
harmless the Company and each of its officers and directors who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with reference to and in conformity with
information relating to the Underwriter furnished in writing by or on
behalf of the Underwriter expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus. In case any
action shall be brought against the Company, any of its officers,
directors, or any person controlling the Company, based on the
Registration Statement, the Prospectus or any preliminary prospectus and
in respect of which indemnity may be sought against the Underwriter, the
Underwriter shall have the rights and duties given to Company (except
that if any of the Company shall have assumed the defense thereof, the
Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall, except as otherwise provided herein, be
at the expense of the Underwriter), and the Company, its officers,
directors, and any person controlling the Company shall have the rights
and duties given to the Underwriter, by Section 7(b) hereof.
15
(d) If the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect of any
losses, claims, damages, expenses, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
expenses, liabilities and judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriter on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company, on the one hand, and the
Underwriter, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, expenses,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the
one hand, and the Underwriter, on the other hand, shall be deemed to be
in the same proportion as the total net proceeds from the Offering
(before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriter, bear
to the total price to the public of the Shares, in each case as set
forth in the table on the cover page of the Prospectus. The relative
fault of the Company, on the one hand, and the Underwriter, on the other
hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Company or the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this Section
7(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, expenses, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, 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 Section 7, the Underwriter shall not be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which the Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The Underwriter confirms and the Company
acknowledges that (i) the statements with respect to the public offering
of the Shares by the Underwriter set forth on the cover page of the
Prospectus Supplement, (ii) the legend concerning overallotments on page
2 of the Prospectus Supplement, (iii) the first and last sentences of
the second paragraph under the caption "Underwriting" in the Prospectus
Supplement are correct and constitute the only information concerning
the Underwriter furnished in writing to the Company by or on behalf of
the Underwriter specifically for inclusion in the Registration Statement
and Prospectus.
16
8. Conditions of Underwriter's Obligations. The obligations of
the Underwriter to purchase the Shares under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the
Company contained in this Agreement shall be true and correct, in all
material respects, on the Closing Date, with the same force and effect
as if made on and as of the Closing Date.
(b) No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been commenced or shall be pending before or
threatened by the Commission to the knowledge, after due inquiry, of the
Company. No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been commenced or shall be pending before or threatened by
the state securities authority of any jurisdiction, to the knowledge of
the Company.
(c)(i) Since the date of the latest balance sheet
included or incorporated by reference in the Registration Statement and
the Prospectus, there shall not have been any Material Adverse Effect,
(ii) other than as set forth in the Prospectus, no proceedings shall be
pending or, to the knowledge of the Company, after due inquiry,
threatened against any of the Company or any Property before or by any
federal, state or other commission, board or administrative agency,
where an unfavorable decision, ruling or finding could reasonably be
expected to result in a Material Adverse Effect, and on the Closing Date
you shall have received a certificate dated the Closing Date, signed by
the Chief Financial Officer of the Company confirming the matters set
forth in paragraphs (a), (b) and (c) of this Section 8.
(d) You shall have received on the Closing Date
opinions, dated the Closing Date of Xxxxx & Haltson L.L.P., counsel for
the Company, in the forms attached hereto as Annex A and Annex B.
(e) You shall have received on the Closing Date an
opinion, dated the Closing Date, of Hunton & Xxxxxxxx, counsel for the
Underwriter, to the effect that:
(i) the Shares have been duly authorized,
and when issued and delivered to the Underwriter against
payment therefor as provided by this Agreement, will have
been validly issued and will be fully paid and
nonassessable, and the issuance of such Shares is not
subject to any preemptive or similar rights;
(ii) the Registration Statement has become
effective under the Act and, to the knowledge of such
counsel, no stop order suspending its effectiveness has
been issued and no proceedings for that purpose are
pending before or threatened by the Commission;
17
(iii) this Agreement was duly and validly
authorized, executed and delivered by each of the
Company; and
(iv) the Registration Statement, at the
time it became effective, and the Prospectus, as of the
date of the Prospectus Supplement (in each case, other
than documents incorporated therein by reference and the
financial statements and supporting schedules and other
financial and statistical data included or incorporated
by reference therein, as to which no opinion need be
rendered) complied as to form in all material respects
with the requirements of the Act.
In addition, Hunton & Xxxxxxxx shall state that
they have participated in conferences with officers and other
representatives of the Company and representatives of the independent
public accountants for the Company and representatives of the
Underwriter at which the contents of the Prospectus and related matters
were discussed and, although they are not passing upon and do not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus or
the documents incorporated therein by reference, on the basis of the
foregoing (relying as to materiality to a large extent upon the opinions
of officers and other representatives of the Company), no facts have
come to the attention of such counsel which lead them to believe that
the Registration Statement, including the documents incorporated therein
by reference, at the time the Company filed its Annual Report on Form
10-K for the Year Ended December 31, 1996, or at the date of the
Underwriting Agreement, 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, including the documents incorporated therein by reference,
at the time the Prospectus was first provided to the Underwriter for use
in connection with the offering of the Shares or at the date hereof,
contained or contains 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 (it being understood that such counsel need
express no opinion with respect to the financial statements and
schedules and other financial or statistical data included in the
Registration Statement, the Prospectus or the documents incorporated
therein by reference).
(f) On the date hereof, KPMG Peat Marwick shall
have furnished to the Underwriter a letter, dated the date of its
delivery, addressed to the Underwriter and in form and substance
satisfactory to the Underwriter (and to its counsel), confirming that
they are independent public accountants with respect to the Company and
their subsidiaries as required by the Act and with respect to the
financial and other statistical and numerical information contained in
the Registration Statement. At the Closing Date, KPMG Peat Marwick shall
have furnished to the Underwriter a letter, dated the date of its
delivery, which shall confirm, on the basis of a review in accordance
with the procedures set forth in the letter from it, that nothing has
come to its attention during the period from the date of the letter
referred to in the prior sentence to a date (specified in the letter)
not more than five days prior to the Closing Date, which would require
any change in its letter dated the date hereof if it were required to be
dated and delivered at the Closing Date.
18
(g) At the Closing Date, the Shares shall have
been approved for listing on the NYSE upon official notice of issuance.
(h) The Company and its subsidiaries shall not
have failed at or prior to the Closing Date, to perform or comply with
any of the agreements pursuant to Section 5 herein contained and
required to be performed or complied with by the Company at or prior to
the Closing Date.
(i) At the Closing Date, Hunton & Xxxxxxxx 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 Shares, as herein contemplated and related
proceedings, 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 Shares as herein
contemplated shall be reasonably satisfactory in form and substance to
the Underwriter and Hunton & Xxxxxxxx.
9. Effective Date of Agreement and Termination. This Agreement
shall become effective upon the execution of this Agreement.
This Agreement may be terminated at any time prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has been a Material Adverse
Effect, (ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and would, in your judgment, make it impracticable or
inadvisable (x) to commence or continue the offering of the shares to the public
or (y) to enforce contracts for the sale of the shares, (iii) the suspension or
material limitation of trading in securities on the NYSE or the American Stock
Exchange or material limitation on prices for securities on either of such
exchanges, (iv) (a) the downgrading of any of the debt securities of the Company
or any of its subsidiaries by any "nationally recognized statistical rating
organization" or the announcement by any such organization of an initial rating
with respect to any such securities that is below the ratings of other such
organizations in effect for such securities on the date hereof, or (b) the
public announcement by any such organization that it has under surveillance or
review, with possible negative implications, its rating of any of such
securities, (v) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in your opinion would result in a Material Adverse
Effect, (vi) the declaration of a banking moratorium by either federal or New
York State authorities or (vii) the taking of any action by any federal, state
or local government or agency in respect of its monetary or fiscal affairs which
in your opinion has a material adverse effect on the financial markets in the
United States.
10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company, to Xxxxxx
X. Xxxx, President, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 and
(b) if to you, to Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, Attention: Syndicate
Department, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
19
21202, or in any case to such other address as the person to be notified may
have requested in writing.
The provisions of Sections 5, 6 and 7 shall remain operative and
in full force and effect, and will survive delivery of and payment for the
Shares, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of the Underwriter or by or on behalf of the
Company, the officers or directors of the Company or any controlling person of
the Company and (ii) acceptance of the Shares and payment for them hereunder.
In the event of termination of this Agreement, the provisions of
Sections 5(k) and 7 shall remain operative and in full force and effect.
If this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, the Company, agrees to
reimburse the Underwriter for all out-of-pocket expenses (including the fees and
documented disbursements of counsel) reasonably incurred by the Underwriter.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company and the
Underwriter, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from the Underwriter merely because of such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
20
Please confirm that the foregoing correctly sets forth the
agreement among the parties hereto.
Very truly yours,
CARRAMERICA REALTY CORPORATION
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
XXXX XXXXX XXXX XXXXXX, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Senior Executive Vice President
21
