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EXHIBIT 1.1
2
TriNet Corporate Realty Trust, Inc.
$100,000,000 of 7.70% Notes due 2017
Underwriting Agreement
July 9, 1997
X.X. XXXXXX SECURITIES INC.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
XXXXX XXXXXX INC.
As Representatives of the several Underwriters
named in Schedule II hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
TriNet Corporate Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule II
hereto (collectively, the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities"), to be issued
under the indenture specified in Schedule I hereto (the "Indenture") between the
Company and the Trustee identified in such Schedule (the "Trustee").
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, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain securities (the "Shelf Securities") to be issued from
time to time by the Company. The Company also has filed with, or proposes to
file with, the Commission pursuant to Rule 424 under the Securities Act ("Rule
424") a prospectus supplement specifically relating to the Securities. The
registration statement as amended to the date of this Agreement is hereinafter
referred to as the "Registration Statement" and the related prospectus covering
the Shelf Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
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supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order in immediately available funds on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the third Business Day thereafter, as you and the
Company may agree in writing). Such payment will be made against delivery of the
Securities to you for the respective accounts of, the Underwriters registered in
such names and in such
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denominations as you shall request not less than two full Business Days prior to
the date of delivery, with any transfer taxes payable in connection with
transfer to the Underwriters duly paid by the Company. As used herein, the term
"Business Day" means any day other than a day on which banks are permitted or
required to be closed in New York City. The time and date of such payment and
delivery with respect to the Securities are referred to herein as the "Closing,
Date." The Securities will be delivered through the book entry facilities of The
Depository Trust Company ("DTC") and will be made available for inspection by
you by 1:00 P.M. on the Business Day prior to the Closing Date at such place in
New York City as you, DTC and the Company shall agree.
4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with the
Securities Act, and did 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; provided that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein;
(b) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement and Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all material
respects with the Securities Act; the Registration Statement, as amended when it
became effective, did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Prospectus, as of the date
thereof, does not, and as amended or supplemented at the Closing Date, will not,
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not
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apply to (i) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Trust Indenture Act") of the Trustee and (ii)
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein;
(c) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, and when read together with the other
information in the Prospectus, at the time the Registration Statement became
effective and as of the date hereof, did not, and at the Closing Date and during
the time period specified in Section 5(e) of this Agreement, will not, contain
any 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; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all material respects
to the requirements of the Exchange Act, as applicable, and when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective and as of the date hereof, did not, and at the
Closing Date and during the time period specified in Section 5(e) of this
Agreement, will not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(d) 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
Securities Act and the Exchange Act, as applicable, and present fairly the
consolidated financial position of the Company and its consolidated 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, together with related notes, as incorporated by reference in the
Registration Statement or the Prospectus, present fairly a summary of gross
income of such Properties for the indicated periods; 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
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incorporated by reference in the Registration Statement and the Prospectus
comply in all material respects with the applicable requirements of the
Securities 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;
(e) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, properties, financial position, stockholders' equity or results of
operations of the Company and the Subsidiaries (as defined below), taken as a
whole, otherwise than as set forth or contemplated in the Prospectus; and except
as set forth or contemplated in the Prospectus neither the Company nor any of
the Subsidiaries has entered into any transaction or agreement (whether or not
in the ordinary course of business) material to the Company and the
Subsidiaries, taken as a whole;
(f) 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
conduct its business as described in the Prospectus, and has been 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, the earnings, business
affairs, prospects, properties, stockholders' equity or results of operations of
the Company and the Subsidiaries, taken as a whole, (2) adversely affect the
issuance, validity or enforceability of the Securities or the enforceability of
the Indenture 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") (which jurisdictions of foreign qualification are
identified in Schedule III hereto); except for investments in the Subsidiaries,
in short-term investment securities and in other securities as described in the
Registration Statement or Prospectus, the Company has no direct or indirect
equity or other interest in any corporation, partnership, trust or other entity;
each of the Company's subsidiaries (within the meaning of Regulation S-X under
the Securities Act) (other than two subsidiaries,
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TriNet Essential Facilities III Inc. and TriNet XVII Realty Trust, neither of
which owns any Properties or other material assets) is identified on Schedule IV
hereto (the "Subsidiaries") and has been duly organized and is validly existing
as a corporation, or limited partnership, 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, 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 (which jurisdictions of
organization and foreign qualification are identified in Schedule IV hereto);
all the outstanding shares of capital stock of each corporate Subsidiary have
been duly authorized and validly issued, are fully-paid and non-assessable;
except as disclosed in Schedule IV hereto, all the outstanding shares of capital
stock, and all partnership interests of each Subsidiary are owned by the
Company, directly or indirectly, free and clear of all liens, encumbrances,
security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company;
(h) the Securities have been duly authorized, and, when
issued, authenticated and delivered pursuant to this Agreement and the Indenture
will have been duly and validly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and entitled to
the benefits provided by the Indenture, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium
or similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity); the Indenture
has been duly authorized and, when executed and delivered by the Company, will
constitute a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or in equity);
the Indenture has been duly qualified under the Trust Indenture Act; and the
Securities and the Indenture will conform to the statements relating thereto
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contained in the Prospectus;
(i) neither the Company nor any of the 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 or Certificate of
Incorporation, as the case may be (in each case as amended to the date of this
Agreement), (2) By-Laws (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 such
Subsidiary 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 Securities and the performance by the Company of all of
its obligations under the Securities, the Indenture and this Agreement and the
consummation of the transactions therein and 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 Subsidiary IS a party or by which the Company or any
Subsidiary is bound or to which any of the property or assets of the Company or
any Subsidiary 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 By-Laws 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; 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 Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders, registrations or
qualifications (x) as have been obtained under the Securities Act or the Trust
Indenture Act (y) as may be required under state securities or Blue Sky laws or
the By-laws or Corporate Financing Rule of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the purchase and
distribution of the Securities by the Underwriters or (z) the failure of which
to obtain would not have a Material Adverse Effect;
(j) 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, threatened to which the Company or any of the Subsidiaries is or
may be a party or to which any property of the Company or any of the
Subsidiaries is or may be
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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;
(k) the Company's authorized, issued and outstanding capital
stock as of March 31, 1997 is as set forth in the Prospectus; and all of the
issued shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable;
(l) the Company and the Subsidiaries have good and marketable
title in fee simple to each Property described in the Prospectus as owned by
them in fee simple and, in each case free of any lien, mortgage, pledge, charge
or encumbrance of any kind except those described in the Prospectus or 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
the Subsidiaries; and TriNet XVII Realty Trust (the "Trust"), a Subsidiary of
the Company, does not own any of the Properties and does not own any assets
which are material to the Company on a consolidated basis;
(m) except as disclosed in the Prospectus, each entity
identified in the Prospectus as a tenant of any Property, or a subtenant
thereof, is in actual possession of such Property under a lease to such tenant
or, if applicable, a sublease to such subtenant; except as disclosed in the
Prospectus, each such lease is in full force and effect and neither the Company
nor any of the Subsidiaries has notice of any defense to the obligations of the
tenant thereunder 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 in all material respects and neither the Company
nor any of the 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;
(n) 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 the Subsidiaries or (ii) cross
collateralized to any property not owned by the
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Company or any of the Subsidiaries;
(o) the Company and the 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 is
adequate for the value of their properties; all policies of insurance insuring
the Company or the Subsidiaries or their respective business, assets, employees,
officers, trustees and directors, as the case may be, are in full force and
effect; the Company and the Subsidiaries are in compliance with the terms of
such policies and instruments in all material respects and there are no claims
by the Company or by the Subsidiaries under any such policy or instrument 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;
(p) the Company has filed all federal, state and foreign
income tax returns which have been required to be filed and has 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;
(q) the Company and each Subsidiary own, possess and have
obtained all material licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and have 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 their properties and to
carry on their 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 none of the Company or any
Subsidiary 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 Subsidiary 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;
(r) to the Company's knowledge, Coopers & Xxxxxxx L.L.P., who
have certified certain of the financial statements filed with the Commission as
part of,
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or incorporated by reference in, the Registration Statement, are independent
public accountants as required by the Securities Act;
(s) no relationship, direct or indirect, exists between or
among the Company or the Subsidiaries on the one hand, and the directors,
trustees, officers, stockholders, customers or suppliers of the Company or the
Subsidiaries on the other hand, which is required by the Securities Act to be
described in the Registration Statement and the Prospectus which is not so
described;
(t) the Company has never been, is not now, and immediately
after giving effect to the sale of the Securities 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");
(u) 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 real estate
investment trust ("REIT") under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Code"), and the Company's present and
contemplated operations, assets and income continue to meet such requirements;
(v) the conditions for the use by the Company of a
registration statement on Form S-3 set forth in the General Instructions on Form
S-3 have been satisfied and the Company is entitled to use such form for the
transactions contemplated herein;
(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 of (b) any unlawful spills, release,
discharges or disposal of Hazardous Materials that have occurred or are
presently occurring from the Properties as a result of any construction on or
operation and use of 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
the Subsidiaries to the Company's knowledge, are in compliance with any and all
applicable federal, state and local laws and regulations relating to the
protection of
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human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) to the Company's
knowledge, have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their 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 its business, the Company
conducts a periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and the Subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities including,
without limitation, any capital or operating expenditures required for clean-up,
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 review 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, (1) 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 the
Subsidiaries on a consolidated basis, except as described in or contemplated by
the Prospectus;
(aa) the Company has 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 Securities,
and the Company has not distributed and has agreed not to distribute any
prospectus or other offering material in connection with the offering and sale
of the Securities other than the Prospectus, any preliminary prospectus filed
with the Commission or other material permitted by the Securities Act; and
(ab) the Company maintains a system of internal accounting
controls
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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.
5. The Company covenants and agrees with the several Underwriters
as follows:
(a) to file the Prospectus in a form approved by you with the
Commission within the applicable time period prescribed for such filing by Rule
424; and to furnish copies of the Prospectus to the Underwriters in New York
City as soon as practicable following the execution and delivery of this
Agreement in such quantities as you may reasonably request;
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto,
including, in each case, to the extent requested by such Underwriter or such
counsel, exhibits and documents incorporated by reference therein, and, during
the period mentioned in paragraph (e) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as you may reasonably request, as
soon as practicable after their having been filed with the Commission;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus during the period referred to in
paragraph (e) below, to furnish to you a copy of any proposed amendment or
supplement to the Registration Statement or the Prospectus, for your review, and
not to file any such proposed amendment or supplement to which you reasonably
object;
(d) to file timely all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the offering, or
sale of the Securities, and during such same period, to advise you and counsel
for the Underwriters promptly, and
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to confirm such advice in writing, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceeding for that purpose,
(iv) of the occurrence of any event, within the period referenced in paragraph
(e) below, 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, and (v) of the receipt by the Company of any notification with
respect to any suspension of the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding, for
such purpose; and to use its best efforts to prevent the issuance of any such
stop order or notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the Underwriters a
prospectus relating to the Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Company, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which Securities
may have been sold by you on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Securities; PROVIDED that the
Company shall not be required to file a general consent to service of process in
any jurisdiction or to make any undertaking, with respect to the conduct of its
business;
15
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(g) to make generally available to its security holders and to
you as soon as practicable but not later than 15 months after the effective date
of the Registration Statement (as defined in Rule 158(c) of the Commission
promulgated under the Securities Act) an earnings statement covering a period of
at least twelve months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to furnish to
you copies of all reports or other communications (financial or other) furnished
generally to holders of Securities, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the Securities
without your prior written consent;
(j) to use the net proceeds of the offering of the Securities
in the manner specified in the Prospectus under "Use of Proceeds"; and
(k) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay all costs and
expenses incident to the performance of the Company's obligations hereunder,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution, authentication
and delivery of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
Jurisdictions as the Underwriters may designate (including fees and
disbursements of counsel for the Underwriters), (iv) in connection with the
listing of the Securities on any stock exchange, (v) related to any filing with
National Association of Securities Dealers, Inc., (vi) in connection with the
printing (including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Blue Sky Memorandum and Blue Sky Survey and the
furnishing to Underwriters and dealers of copies of the Registration Statement
and the Prospectus, including mailing and shipping, as herein provided, (vii)
payable to rating agencies in connection with the rating of the Securities and
(viii) any
16
-15-
expenses incurred by the Company in connection with a "road show" presentation
to potential investors.
6. The several obligations of the Underwriters hereunder to
purchase the Securities are subject to the performance by the Company of its
obligations hereunder and to the following conditions:
(a) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for such
filing by such Rule; no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(b) the representations and warranties of the Company
contained herein shall be true and correct in all material respects on and as of
the Closing Date as if made on and as of the Closing Date and the Company shall
have complied in all material respects with all agreements and all conditions on
its part to be per-formed or satisfied hereunder at or prior to the Closing
Date;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the
Company by any "nationally recognized statistical rating organization", as such
term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material change in the
outstanding shares of capital stock of the Company or any material change in the
short-term debt or long-term debt of the Company and the Subsidiaries on a
consolidated basis or any material adverse chance or any development involving a
material adverse change, in or affecting the general affairs, business,
prospects, management, properties, financial position, stockholders' equity or
results of operations of the Company and the Subsidiaries taken as a whole, in
each case, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in your judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus;
17
-16-
(e) you shall have received on and as of the Closing Date
a certificate of the President, Chief Executive Officer or Executive Vice
President of the Company and the Chief Financial or Accounting Officer of the
Company satisfactory to you to the effect set forth in subsections (a) through
(c) of this Section and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, properties, financial position, stockholders' equity or results of
operations of the Company and the Subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus.
(f) Xxxxxxx, Procter & Xxxx L.L.P., counsel for the
Company, shall have furnished to you its written opinion, dated the Closing
Date, in form and substance satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and
is validly existing as a corporation in good standing, under the laws of
Maryland, with corporate power and authority to own its properties and conduct
its business as described in the Prospectus as then amended or supplemented;
(ii) the Company has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction identified in Schedule III hereto;
(iii) each of the Subsidiaries (other than the
Trust) has been duly incorporated or organized and is validly existing, as a
corporation or limited partnership, as the case may be, in good standing under
the laws of their jurisdictions of organization (which jurisdictions of
organization are listed in Schedule IV hereto), with corporate or partnership
power and authority, as the case may be, to own its properties and conduct its
business as described in the Prospectus as amended or supplemented;
(iv) each of the Subsidiaries has been duly
qualified as a foreign corporation 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 identified in Schedule IV hereto;
(v) all of the outstanding shares of capital
stock of each Subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, and, except as set forth in Schedule IV hereto,
all of such shares of capital
18
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stock are owned of record by the Company, directly or indirectly, free and clear
of any perfected security interests or, to such counsel's knowledge, any other
liens, encumbrances, security interests and claims; and based solely on such
counsel's review of the limited partnership agreements of each Subsidiary that
is a partnership, all of the partnership interests of such Subsidiaries are
owned by the Company, directly or indirectly, free and clear of any perfected
security interests or, to such counsel's knowledge, any other liens,
encumbrances, security interests and claims, except as set forth in Schedule IV
hereto;
(vi) other than as set forth or contemplated in
the Prospectus, to such counsel's knowledge, there are no legal or Governmental
proceedings pending (in which service or notice of process has been received by
an employee or other representative of the Company or any Subsidiary), or
threatened to which the Company or the Subsidiaries is or may be a party or to
which any property of the Company or the Subsidiaries is or may be the subject
which, if determined adversely to the Company or the Subsidiaries, could
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect; and such counsel does not know of any 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;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) the Securities have been duly authorized and
executed by the Company and when authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture,
enforceable in accordance with their terms, except that the enforceability
thereof may be limited by or subject to (a) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
now or hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or equity);
(ix) the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding instrument of the Company enforceable against the Company in accordance
with its terms, except that the enforceability thereof may be limited by or
subject to (a) bankruptcy, insolvency,
19
-18-
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
now or hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or equity); and the Indenture has been duly qualified
under the Trust Indenture Act;
(x) the Indenture and the Securities conform in
all material respects to the descriptions thereof in the Registration Statement
and the Prospectus under the captions "Description of Notes" and "Description of
Debt Securities",
(xi) the issue and sale of the Securities and the
performance by the Company of its obligations under the Securities, the
Indenture and this Agreement and the consummation of the transactions herein and
therein contemplated will not (a) 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 or other agreement or instrument filed
by the Company under the Securities Act or the Exchange Act (which indentures,
mortgages, deeds of trust, loan agreements or other agreements or instruments
have been identified to such counsel as being operative and in full force and
effect) to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or to which any of the property or assets of
the Company or any Subsidiary is subject, except for such conflicts, breaches or
defaults which individually or in the aggregate would not have a Material
Adverse Effect, (b) result in any violation of the provisions of the Articles of
Incorporation or the By-Laws of the Company or (c) result in any violation of
any applicable law or statute or any order known to such counsel or any rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company, its Subsidiaries or any of their respective properties;
(xii) All of the issued shares of capital stock of
the Company are duly authorized, validly issued, fully paid and nonassessable;
(xiii) no consent, approval, authorization, order,
registration or qualification of any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation of the
other transactions contemplated by this Agreement or the Indenture, except such
consents, approvals, authorizations, orders, registrations or qualifications as
have been obtained under the Securities Act and the Trust Indenture Act and as
may be required under state securities or Blue Sky laws or the By-Laws or
Corporate Financing Rule of the NASD in connection with the purchase and
distribution of the Securities by the Underwriters;
20
-19-
(xiv) the information in the Prospectus under the
caption "Federal Income Tax Considerations" and under the first paragraph of the
caption "Restrictions on Transfers of Capital Stock" (except for the last
sentence thereof) to the extent that it constitutes statements of law,
descriptions of statutes, rules or regulations, summaries of documents or legal
conclusions, has been reviewed by such counsel and is correct in all material
respects and presents fairly the information required to be disclosed therein;
(xv) to such counsel's knowledge based solely
upon representations of the Company, the Company (i) has qualified to be taxed
as a real estate investment trust pursuant to Sections 856 through 860 of the
Internal Revenue Code, for the taxable years ended December 31, 1993 through
December 31, 1996 and (ii) presently has organization, ownership, operations,
assets and income such that the Company will be in a position under present law
to so qualify for the fiscal year ending December 31, 1997;
(xvi) the Registration Statement has been declared
effective under the Securities Act, the Indenture has been qualified under the
Trust Indenture Act, the Prospectus was filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed by Rule 424 and to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission;
(xvii) the Registration Statement and the
Prospectus and any amendments and supplements thereto (except for the financial
statements and other financial and statistical data included or incorporated by
reference therein as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Securities Act; and
(xviii) the Company is not, and will not become as a
result of the consummation of the transactions contemplated by this Agreement,
an "investment company" within the meaning of the Investment Company Act.
In rendering its opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States, the
Commonwealth of Massachusetts, the Delaware Revised Limited Partnership Act and
the General Corporation Law of Maryland, to the extent specified in such
opinion, upon an opinion or opinions (in form and substance reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably acceptable to
Underwriters' counsel, familiar with the
21
-20-
applicable laws; and (B) in each case, as to matters of fact, on certificates of
responsible officers of the Company and certificates or other written statements
of officials of jurisdictions having custody of documents respecting the
corporate existence or good standing the Company.
Xxxxxxx, Procter & Xxxx, L.L.P. shall also state that such counsel
participated in conferences and telephone conversations with representatives of
the Company and representatives of the independent public accountants for the
Company and representatives of the Underwriters and counsel for the Underwriters
at which the contents of the Registration Statement and the Prospectus and
related matters were discussed. Such counsel may also state that they have
reviewed certain documents made available to them by the Company or otherwise in
their possession.
Based on such counsel's participation in the above-mentioned
conferences and conversations, such counsel's review of the documents described
above, such counsel's understanding of applicable law and the experience such
counsel has gained in practice thereunder, such counsel shall further advise the
Underwriters that: (i) no facts have come to such counsel's attention which
cause them to believe that the Registration Statement (including the documents
incorporated therein by reference, but excluding the financial statements or
notes thereto, financial schedules and other financial and statistical data
contained therein, as to which such counsel need not express any view), at the
time it became effective, or on 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; and (ii) no facts have come to such counsel's attention which
cause them to believe that the Prospectus (including the documents incorporated
therein by reference, but excluding the financial statements or notes thereto,
financial schedules and other financial and statistical data contained therein,
as to which we express no view), as of its date or 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.
(g) on the date of this Agreement and on the Closing Date,
Coopers & Xxxxxxx L.L.P. shall have furnished to you letters, dated such date,
in form and substance reasonably satisfactory to you, containing statements and
information of the type customarily included in accountants "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus,
including, without limitation, a statement that they have made a review of the
unaudited financial statements for the three months
22
-21-
ended March 31, 1997 included or incorporated by reference in the Registration
Statement in accordance with the standards established by the American Institute
of Certified Public Accountants;
(h) you shall have received on and as of the Closing Date an
opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Underwriters, with respect to
the validity of the Indenture and the Securities, the Registration Statement,
the Prospectus and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters; in
rendering their opinions as aforesaid, such counsel may rely, as to matters of
Maryland law, on the opinion or opinions of Xxxxxxx, Procter & Xxxx L.L.P.; and
(i) on or prior to the Closing Date, the Company shall have
furnished to you such further certificates and documents confirming the
representations and warranties contained herein and related matters as you shall
reasonably request.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to you and to Xxxxxx Xxxxxx & Xxxxxxx, counsel
for the Underwriters.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
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 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 or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; PROVIDED, that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of the person controlling
such Underwriter) from whom the person asserting any such losses, claims,
damages or liabilities purchased Securities if such untrue
23
-22-
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such person,
provided further that the Company shall have complied with its obligations under
Section 5(b) hereof with respect to the Prospectus (as so amended or
supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. For purposes of this Section 7 and Sections 4(a) and
4(b), the only written information furnished by the Underwriters to the Company
expressly for use in the Registration Statement and the Prospectus is (a) the
information in the last paragraph on the cover page of the Prospectus
specifically relating to the Securities, (b) the information regarding
stabilization on the inside front cover page of the Prospectus specifically
relating to the Securities, (c) the information in the third sentence under the
caption "Use of Proceeds" and (d) the information in the third and sixth
paragraphs and the second sentence of the fourth paragraph, under the caption
"Underwriting" in the Prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
24
-23-
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by X.X.
Xxxxxx Securities Inc. and any such separate firm for the Company, its
directors, its officers who sign the Registration Statement and such control
persons of the Company or authorized representatives shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. If it is ultimately determined that an Indemnified Person was not
entitled to indemnification hereunder, such Indemnified Person shall be
responsible for repaying or reimbursing the Indemnifying Person for any amounts
so paid or incurred by such Indemnifying Person pursuant to this paragraph. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such
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-24-
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
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 Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, 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 respective proportions as the net
proceeds from the offering of such Securities (before deducting expenses)
received by the Company and the total underwriting discounts and the commissions
received by the Underwriters, in each case, as reflected on the cover page of
the Prospectus, bear to the aggregate public offering price of the Securities.
The relative fault of the Company on the one hand and the Underwriters on the
other shall be determined by reference to among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters 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 contribution pursuant to this Section 7 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
26
-25-
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amounts of Securities set forth opposite their names
in Schedule II hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations, warranties and covenants of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other person controlling
the Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters by notice given to the
Company, if after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets in the United States or any calamity or crisis in
the United States that, in the judgment of the Underwriters is material and
adverse and which, in the judgment of the Underwriters, makes it impracticable
to market the Securities on the terms and in the manner contemplated in the
Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriter or Underwriters shall be obligated severally
in the proportions that the principal amount of
27
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Securities set forth opposite their respective names in Schedule II hereto bears
to the aggregate principal amount of Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to Section I be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, 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, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
reasonable out-of-pocket expenses (including the fees and expenses of their
counsel) incurred by the Underwriters in connection with this Agreement or the
offering of Securities contemplated hereunder and the Company shall then be
under no further liability to any Underwriter except as provided in Sections
5(k) and 7 of this Agreement.
11. This Agreement shall inure to the benefit of and be legally binding
upon the Company, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be
28
-27-
deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of the Underwriters,
and any such action taken by you jointly or by X.X. Xxxxxx Securities Inc. alone
shall be binding upon the Underwriters. 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 given to the Underwriters, c/o X.X. Xxxxxx Securities
Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department,
with a copy to Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxxxxxx, Esq. Notices to the Company shall be
given to it at TriNet Corporate Realty Trust, Inc., Xxxx Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxx, President, with
a copy to Xxxxxxx, Procter & Xxxx, L.L.P., Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: Xxxxx X. Xxxxxx, Esq.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
29
-28-
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ A. Xxxxxxx Xxxxx
-----------------------------------
Name: A. Xxxxxxx Xxxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted: July 9, 1997
X.X. XXXXXX SECURITIES INC.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
XXXXX XXXXXX INC.
By: X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
For themselves and as Representatives of the
several Underwriters named in Schedule II hereto
30
SCHEDULE I
Representatives: X.X. Xxxxxx Securities Inc., Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation,
Xxxxxxx, Sachs & Co. and Xxxxx Xxxxxx Inc.
Underwriting Agreement dated: July 9, 1997
Registration Statement No.: 333-29593
Title of Securities: 7.70% Notes Due 2017 (the "Notes")
Aggregate principal amount: $100,000,000 of Notes
Price to Public: 99.606% of the principal amount of the
Notes, plus accrued interest, if any, from
July 14, 1997
Purchase Price: 98.731% of the principal amount of the
Notes, plus accrued interest, if any, from
July 14, 1997
Indenture: Indenture dated as of May 22, 1996 and
Supplemental Indenture #2 to be dated as of
July 14, 1997 both between TriNet Corporate
Realty Trust, Inc. and Xxxxxx Trust Savings
Bank
Maturity: July 15, 2017
Interest Rate: 7.70% with respect to the 2017 Notes
Interest Payment Dates: July 15 and January 15, commencing
January 15, 1998
Optional Redemption Provisions: The Securities are redeemable at any time at
the option of the Company, in whole or in
part, at a redemption price equal to the sum
of (i) the principal amount of the Notes
being redeemed plus accrued interest thereon
to the redemption date and (ii) the
Make-Whole Amount (as defined in the
Prospectus Supplement relating to the
Securities dated July 9, 1997), if any
31
Sinking Fund Provisions: None
Other Significant Provisions: None
Closing Date and Time of Delivery: The Closing will be held at
10:00 a.m. (E.S.T.) on July 14, 1997, with
the Notes being delivered through the
book-entry facilities of the Depository
Trust Company ("DTC") and made available for
checking by DTC and the Trustee at least 24
hours prior to the Closing Date
Closing Location: Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
32
SCHEDULE II
Principal
Amount of
Notes To Be
Underwriter Purchased
----------- -----------
X.X. Xxxxxx Securities Inc. $ 60,000,001
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation 13,333,333
Xxxxxxx, Sachs & Co. 13,333,333
Xxxxx Xxxxxx Inc. 13,333,333
------------
Total $100,000,000
============
33
SCHEDULE III
STATES OF
FOREIGN QUALIFICATION OF
TRINET CORPORATE REALTY TRUST, INC.
California
Florida
Pennsylvania
34
SCHEDULE IV
Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
------------------ ------------ ------------- ---------------- ----------
TriNet Essential Facilities I, Inc. Maryland Pennsylvania 100% None
TriNet Essential Facilities II, Inc. Maryland Michigan 100% None
TriNet Essential Facilities IV, Inc. Maryland Illinois 100% None
TriNet Essential Facilities V, Inc. Maryland California 100% None
TriNet Essential Facilities VI, Inc. Maryland Illinois 100% None
TriNet Essential Facilities VII, Inc. Maryland Arizona 100% None
TriNet Essential Facilities VIIIR, Inc. Maryland California, Florida, 100%
Minnesota, Nevada,
Washington None
TriNet Essential Facilities X, Inc. Maryland California, Colorado, 100%
Florida, Georgia,
Illinois, Indiana,
Louisiana, Missouri,
New York, Ohio,
Pennsylvania, Texas,
Utah None
TriNet Essential Facilities XI, Inc. Maryland Ohio, Kansas 100% None
TriNet Essential Facilities XII, Inc. Maryland California, Florida, 100% (1)
Illinois, Louisiana,
Minnesota, New York,
Ohio, Tennessee,
Texas
TriNet Essential Facilities XIV, Inc. Maryland New Jersey 100% None
35
TriNet Essential Facilities XV, Inc. Maryland None 100% None
TriNet Essential Facilities XVI, Inc. Maryland None 100% None
TriNet Essential Facilities XVIII, Inc. Maryland Texas 100% None
TriNet Essential Facilities XIX, Inc. Maryland None 100% None
TriNet Essential Facilities XX, Inc. Maryland California, Wisconsin 100% None
TriNet Essential Facilities XXI, Inc. Maryland South Carolina 100% None
TriNet Essential Facilities XXII, Inc. Maryland California, Colorado 100% None
TriNet Essential Facilities XXIII, Inc. Maryland Georgia, Massachusetts 100% None
TriNet Essential Facilities XXIV, Inc. Maryland California 100% None
TriNet Essential Facilities XXV, Inc. Maryland California 100% None
TriNet Essential Facilities XXVI, Inc. Maryland California 100% None
TriNet Essential Facilities XXVII, Inc. Maryland Arizona, California 100% None
TriNet Property Management, Inc. Maryland California, Georgia 100% None
TriNet Corporate Partners I, L.P. Delaware Louisiana 100%(2) None
TriNet Corporate Partners II, L.P. Delaware Texas, Tennessee 100%(3) None
TriNet Sunnyvale Partners, L.P. Delaware California 44.7%(4) None
--------------------------------
(1) Common stock pledged in connection with the 1994 Mortgage Loan (as defined
in the Prospectus).
(2) Owned 1% by TriNet Essential Facilities XVI, Inc., as general partner, and
99% by TriNet Essential Facilities XV, Inc., as limited partner.
(3) Owned 1% by TriNet Essential Facilities XVIII, Inc., as general partner,
and 99% by TriNet Essential Facilities XIX, Inc., as limited partner.
(4) Owned 44.7% by TriNet Corporate Realty Trust, Inc., as general partner.
TriNet Corporate Realty Trust, Inc. does not own any of the limited
partnership interests in this partnership.
