Exhibit 10.13
FIRST AMENDMENT TO SHAREHOLDER AGREEMENT
This First Amendment (the "Amendment") to the Shareholder Agreement (the
"Agreement"), dated as of June 15, 1999 by and among TriNet Corporate Realty
Trust, Inc. and each of the Shareholders of Starwood Financial Trust listed on
the signature page of this Amendment is made as of this 15th day of July, 1999.
Pursuant to the authority granted under Section 4.3 of the Agreement, the
parties hereto wish to amend the Agreement in the manner set forth herein. Terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Agreement.
1. Amendment. Section 3.1(a) of the Agreement is hereby deleted and replaced in
its entirety with the revised Section 3.1(a) attached to this Amendment as Annex
A.
3. No Other Amendments. Except as expressly otherwise amended herein, the
Agreement is in all respects ratified and confirmed and shall remain in full
force and effect in accordance with its terms.
4. Governing Law. This Amendment will be governed by, and construed in
accordance with, the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflict of laws thereof,
except to the extent that this Amendment is required to be governed by the laws
of the State of Maryland.
5. Counterparts. This Amendment may be executed in counterparts, each of which
will constitute an original and all of which, when taken together, will
constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first written above.
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ Xxxxx X. XxXxxxxxx
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Xxxxx X. XxXxxxxxx
Senior Vice President, Finance and Chief
Financial Officer
STARWOOD MEZZANINE INVESTORS, L.P.
By: Starwood Capital Group I, L.P.,
General Partner
By: BSS Capital Partners, L.P.,
General Partner
By: Sternlicht Holdings II, Inc.
General Partner
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By: /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx
Vice President
SOFI-IV SMT HOLDINGS, L.L.C.
By: Starwood Opportunity Fund IV, L.P.
Managing Member
By: SOFI IV Management , L.L.C.,
General Partner
By: Starwood Capital Group I, L.L.C.,
Managing Member
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
B HOLDINGS, L.L.C.
By: /s/ Madison Xxxxx
---------------------
Madison Xxxxx
Senior Managing Director
ANNEX A
ARTICLE III
CERTAIN COVENANTS
Section 3.1 Certain Covenants of Shareholders.
(a) Restriction on Transfer of Subject Shares, Proxies and
Noninterference. No Shareholder shall, prior to the Closing
Date, directly or indirectly: (A) (i) except pursuant to the
terms of this agreement, (ii) except for the conversion of
Subject Shares at the Effective Time under the Incorporation
Merger Agreement or the Advisor Transaction and (iii) except,
with respect to SMT, for a transfer or sale of the SMT Shares
in connection with a foreclosure or other realization upon
security under the GECC Pledge Agreement, offer for sale,
sell, transfer, pledge, tender, encumber, assign or otherwise
dispose of, or enter into any contract, option or other
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arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, encumbrance, assignment, or
other disposition of, any or all of such Shareholder's Subject
Shares (any or all of such actions being a "Transfer"); (B)
(i) except pursuant to the terms of this Agreement, (ii)
except for the execution and delivery of the Proxy and (iii)
except, with respect to SMT, for the right of the GECC Parties
to exercise voting, consensual, foreclosure or other
realization rights with respect to the SMT Shares pursuant to
Article 5(b) of the GECC Pledge Agreement upon the occurrence
of an "Event of Default" or "Additional Acceleration Event"
under the GECC Credit Agreement, grant any proxies or powers
of attorney, deposit any of such Shareholder's Subject Shares
into a voting trust or enter into a voting agreement with
respect to any of such Shareholder's Subject Shares; or (C)
take any action that would reasonably be expected to make any
representation or warranty contained herein untrue or
incorrect or, except with respect to SMT for the exercise by
the GECC Parties of voting, consensual, foreclosure or other
realization rights with respect to the SMT Shares pursuant to
Article 5(b) of the GECC Pledge Agreement upon the occurrence
of an "Event of Default" or "Additional Acceleration Event"
under the GECC Credit Agreement, have the effect of impairing
the ability of such Shareholder to perform such Shareholder's
obligations under this Agreement or preventing or delaying the
consummation of any of the transactions contemplating hereby
or revoke or invalidate the Proxy; provided, however, that
notwithstanding anything in the foregoing to the contrary, a
Shareholder may (1) Transfer some or all of its Subject Shares
to a Person so long as the documentation relating to such
Transfer provides that, and no such Transfer shall be effected
unless, any party acquiring Subject Shares in connection with
a Transfer will, immediately prior to any such Transfer,
become a party to and agree to be bound by this Agreement as a
holder of Subject Shares and issue to Company a proxy
substantially in the form of the Proxy and (2) pledge its
Subject Shares to a lender in order to effect a bona-fide loan
or financing transaction with such lender (an "Exempt
Transaction"), and such lender may foreclose upon or sell such
pledged Subject Shares so long as (i) such Exempt Transaction
is not intended to circumvent the transfer restrictions of
this Section 3.1(a) and (ii) the documentation relating to
such Exempt Transaction provides that any party acquiring such
pledged Subject Shares in connection with such Exempt
Transaction will, upon acquiring such pledged Subject Shares,
become a party to this Agreement as a holder of Subject Shares
and issue to Company a proxy substantially in the form of the
Proxy, except that any party acquiring any SMT Shares in
connection with a foreclosure,
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sale or other realization upon security under the GECC Pledge
Agreement shall not be required to become party to this
Agreement or issue a proxy to Company. For the avoidance of
doubt, the transactions entered into by SMT under the GECC
Credit Agreement and the GECC Pledge Agreement are
acknowledged hereby as transactions not intended to circumvent
the restrictions of this Section 3.1(a).
