EXHIBIT 1.1
567,720 Shares
TRINET CORPORATE REALTY TRUST, INC.
Common Stock
UNDERWRITING AGREEMENT
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September 11, 1997
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
TriNet Corporate Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell 567,720 shares of common stock of the
Company, par value $.01 per share (the "Shares"), to Xxxxx Xxxxxx Inc. (the
"Underwriter"). The shares of common stock, par value $.01 per share, of the
Company to be outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the "Common Stock."
1. Registration Statement and Prospectus. The Company has prepared
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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. 333-19137)
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 January
9, 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 Act, the
Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively called the "Exchange 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
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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
$34.08125 (the "Purchase Price"), 567,720 Shares.
3. Terms of Public Offering. The Company is advised by you that the
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Underwriter proposes (i) to deposit the Shares directly with the Trustee of The
Equity Focus Trusts -- REIT Portfolio Series, 1997 (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 your 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
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sponsor of the Trust and therefore is considered an affiliate of the Trust.
4. Delivery and Payment. Delivery to the Underwriter of certificates
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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 September 16, 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 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
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follows:
(a) In respect of the offering of Shares, the Company will 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. 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.
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(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.
(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, not to file
any amendment to the Registration Statement or any Rule 462(b) Registration
Statement or to 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 to
prepare and file with the Commission, promptly upon your reasonable
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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 to use its best
efforts to cause the same to become promptly effective.
(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 or register 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
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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 and reports as may be
required by the laws of such jurisdiction, to continue such qualification
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or registration in effect for so long a period as the Underwriter may
reasonably request for the distribution of the Shares and to file such
consents to service of process or other documents as may be necessary in
order to effect such qualification or registration; provided, however, the
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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.
(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,
the Company will furnish to you as soon as available a copy of each regular
and periodic report 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.
(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) The Company will pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, fil-
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ing 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 paragraph (b),
(ii) the printing and delivery of this Agreement and the Blue Sky
Memorandum (including the reasonable disbursements of counsel for the
Underwriter relating to the printing and delivery of the Blue Sky
Memorandum), (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 (ix) 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.
(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 continue to qualify as a
"real estate investment trust"
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("REIT") under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), for a period of two years after the date of
this Agreement unless the Company's Board of Directors determines that it
is no longer in the best interests of the Company to be so qualified.
6. Representations and Warranties of the Company. The Company
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represents and warrants to the Underwriter as of the date hereof and the Closing
Date that:
(a) The Registration Statement became effective on January 9, 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 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
and will contain all statements required to be stated therein in accordance
with the Act. The Prospectus, including the financial statements, schedules
and related notes included in the Prospectus, 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 and will
contain all statements required to be stated therein in accordance with the
Act. On the date the Registration Statement was declared effective, on the
date hereof, on the date of filing of any
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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.
(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; 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.
(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
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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. 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 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, 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; 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 Pro-
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spectus, (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 the
Subsidiaries (as defined below), 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 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.
(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
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 the Subsidiaries (as defined
below), 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") (which jurisdictions of foreign
qualification are identified in Schedule I hereto); except for investments
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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 Act) (other
than TriNet XVII Realty Trust, which does not own any property or other
material assets) is identified on Schedule II hereto (the "Subsidiaries")
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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 de-
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scribed 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 II hereto); all the outstanding shares of capital
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stock of each Subsidiary have been duly authorized and validly issued and
are fully paid and nonassessable; except as disclosed in Schedule II
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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.
(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 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, Certificate of
Incorporation 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 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
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Shares and the performance by the Company of all of its 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 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 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 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
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, 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 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
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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 40
million shares of common stock, $.01 par value per share, 25 million shares
of excess stock, $.01 par value per share, and 10 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 a Subsidiary 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 in
Schedule II hereto 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 the 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, each entity identified in
the Prospectus as a tenant of any Property, or a subtenant thereof, has
entered into a lease or a sublease, if applicable, for the possession of
such Property; 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.
(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 the Subsidiaries or (ii) cross-collateralized to any
property not owned by the Company or any of the Subsidiaries.
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(p) 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
such insurance is adequate for the value of their properties; all policies
of insurance insuring the Company or the 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 the Subsidiaries
are in compliance with the terms of such policies in all material respects
and there are no claims by the Company or by the 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 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.
(r) 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
-15-
such laws, rules or regulations would not have a Material Adverse Effect.
(s) 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, or incorporated by reference in, the Registration Statement, are
independent public accountants as required by the Act.
(t) To the Company's knowledge, 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 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").
(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 Company's present and
contemplated operations, assets and income continue to meet such
requirements.
(w) The conditions for the use by the Company of a registration
statement on Form S3 set forth in the General Instructions on Form S3 have
been satisfied and the Company is entitled to use such form for the
transactions contemplated herein.
(x) 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 from the Properties as a result of any
construction on or operation and use of the Properties, which presence or
oc-
-16-
xxxxxxxx would individually or in the aggregate have a Material Adverse
Effect.
(y) Other than as disclosed in the Prospectus, the Company and the
Subsidiaries (i) 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 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.
(z) In the ordinary course of its business, the Company engages
environmental consultants and other experts to conduct reviews of the
effect of Environmental Laws on the business, operations and properties of
the Company and the Subsidiaries, 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.
(aa) 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 shortterm debt or longterm debt of the
Company and the Subsidiaries on a consolidated basis, except as de-
-17-
scribed in or contemplated by the Prospectus. Other than as described in or
contemplated by the Prospectus (including the Incorporated Documents),
there are no outstanding warrants or options to purchase or rights to
acquire any shares of capital 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.
(bb) 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
Shares, 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 Shares other than the Prospectus or other material
permitted by the Act.
(cc) 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.
(dd) There is (i) no significant unfair labor practice complaint
pending against the Company or any of the Subsidiaries or, to the knowledge
of the Company, threatened against any of them, before the National Labor
Rela-
-18-
tions 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 any of the 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 any of the Subsidiaries
or, to the knowledge of the Company, threatened against it or any of the
Subsidiaries except for such actions specified in clause (i) or (ii) above
which singly or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
(ee) 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(ff) with
respect to the Registration Statement or the Prospectus which are the
subject of representations contained in other paragraphs in this Section 6.
(ff) Any certificate or other document signed by any officer or
authorized representative of the Company or any Subsidiary, 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 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, expenses, liabilities or judgments are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon and in conformity with information re-
-19-
lating 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 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
-20-
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 the written consent of
the Company, 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 the Company pursuant to this sentence shall be returned to the Company upon
its 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 the Company's 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 Under-
-21-
writer, the Underwriter shall have the rights and duties given to the Company
(except that if 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.
(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
-22-
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.
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 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
-23-
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 Executive Officer
and the Chief Financial Officer of the Company, in their capacities as the
Chief Executive Officer and Chief Financial Officer of the Company, on
behalf 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 Xxxxxxx, Procter & Xxxx LLP, 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 Xxxxxx Xxxxxx & Xxxxxxx, 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;
(iii) this Agreement was duly and validly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by any other party thereto, is valid, legally
binding and enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law); and
(iv) the Registration Statement, at the time it became
effective, and the Prospectus, as of the date
-24-
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, Xxxxxx Xxxxxx & Xxxxxxx 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
Registration Statement and 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 10K 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).
Xxxxxx Xxxxxx & Xxxxxxx need express no opinion (i) as to the
enforceability of forum selection clauses in the federal courts or (ii)
with respect to the requirements of, or compliance with, any state
securities or "Blue Sky"
-25-
or real estate syndication laws. In addition, Xxxxxx Xxxxxx & Xxxxxxx may
rely as to all matters governed by the laws of the State of Maryland upon
the opinion of Xxxxxxx, Procter & Xxxx LLP.
(f) On the date hereof, Coopers & Xxxxxxx L.L.P. 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 its 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, Coopers & Xxxxxxx L.L.P. 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.
(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, counsel for the Underwriter 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 counsel for the Underwriter.
-26-
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 units of the Trust to the public or (y) to enforce
contracts for the sale of the units of the Trust, (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) 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, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) 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
TriNet Corporate Realty Trust, Inc., Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 and (b) if to you, to Xxxxx Xxxxxx Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, 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.
-27-
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 outofpocket 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.
-28-
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Underwriter.
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
XXXXX XXXXXX INC.
By: /s/ Xxxxx X. Xxxxxx
________________________
Name: Xxxxx X. Xxxxxx
Title: Managing Director
-29-
SCHEDULE I
STATES OF
FOREIGN QUALIFICATION OF
TRINET CORPORATE REALTY TRUST, INC.
California
Florida
Pennsylvania
SCHEDULE II
----------------------------------------------------------------------------------------------------
Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
----------------------------------------------------------------------------------------------------
TriNet Essential Maryland Pennsylvania 100% None
Facilities I, Inc.
----------------------------------------------------------------------------------------------------
TriNet Essential Maryland Michigan 100% None
Facilities II, Inc.
----------------------------------------------------------------------------------------------------
TriNet Essential Maryland Alabama, Florida, 100% None
Facilities III, Inc. Georgia, Illinois,
Indiana, Iowa,
Mississippi, New
York, Ohio,
Tennessee, W.
Virginia
----------------------------------------------------------------------------------------------------
TriNet Essential Maryland Illinois 100% None
Facilities IV, Inc.
----------------------------------------------------------------------------------------------------
TriNet Essential Maryland California 100% None
Facilities V, Inc.
----------------------------------------------------------------------------------------------------
TriNet Essential Maryland Illinois 100% None
Facilities VI, Inc.
----------------------------------------------------------------------------------------------------
TriNet Essential Maryland Arizona 100% None
Facilities VII, Inc.
----------------------------------------------------------------------------------------------------
TriNet Essential Maryland California, Florida, 100% None
Facilities VIIIR, Inc. Minnesota, Nevada,
Washington
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Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
---------------------------------------------------------------------------------------------------------
TriNet Essential Maryland California, 100% None
Facilities X, Inc. Colorado,
Florida, Georgia,
Illinois, Indiana,
Louisiana, Missouri,
New York, Ohio,
Pennsylvania, Texas,
Utah
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TriNet Essential Maryland Ohio, Kansas 100% None
Facilities XI, Inc.
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TriNet Essential Maryland California, Florida, 100% /1/
Facilities XII, Inc. Illinois, Louisiana,
Minnesota, New York,
Ohio, Tennessee,
Texas
---------------------------------------------------------------------------------------------------------
TriNet Essential Maryland New Jersey 100% None
Facilities XIV, Inc.
---------------------------------------------------------------------------------------------------------
TriNet Essential Maryland None 100% None
Facilities XV, Inc.
---------------------------------------------------------------------------------------------------------
TriNet Essential Maryland None 100% None
Facilities XVI, Inc.
---------------------------------------------------------------------------------------------------------
TriNet Essential Maryland Texas 100% None
Facilities XVIII, Inc.
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________________________
1 Common Stock pledged in connection with the 1994 Mortgage Loan (as
defined in the Prospectus).
-2-
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Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
-------------------------------------------------------------------------------------------------
TriNet Essential Facilities Maryland None 100% None
XIX, Inc.
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TriNet Essential Facilities Maryland California, Wisconsin 100% None
XX, Inc.
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TriNet Essential Facilities Maryland South Carolina 100% None
XXI, Inc.
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TriNet Essential Facilities Maryland California, Colorado 100% None
XXII, Inc.
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TriNet Essential Facilities Maryland Georgia, 100% None
XXIII, Inc. Massachusetts
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TriNet Essential Facilities Maryland California 100% None
XXIV, Inc.
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TriNet Essential Facilities Maryland California 100% None
XXV, Inc.
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TriNet Essential Facilities Maryland California 100% None
XXVI, Inc.
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TriNet Essential Facilities Maryland Arizona, California 100% None
XXVII, Inc.
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TriNet Property Management, Maryland California, Georgia, 100% None
Inc. Texas
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-3-
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Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
-------------------------------------------------------------------------------------------------
TriNet Corporate Partners Delaware Louisiana 100%/2/ None
I, L.P.
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TriNet Corporate Partners Delaware Texas, Tennessee 100%/3/ None
II, L.P.
-------------------------------------------------------------------------------------------------
TriNet Sunnyvale Partners, Delware California 44.7%/4/ None
L.P.
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__________________________
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.
-4-
Annex A
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1. 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 its
properties and conduct its business as described in the
Prospectus.
2. The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing in each
jurisdiction identified in Schedule I to the Underwriting
----------
Agreement, which has been attached as Appendix A hereto.
----------
3. Each Corporate Subsidiary has been duly incorporated and is
validly existing as a corporation, in good standing under the
laws of the State of Maryland. The Limited Partnership
Subsidiaries have been duly formed and are validly existing as
limited partnerships in good standing under the laws of the
State of Delaware. Each of the Subsidiaries has the corporate or
partnership, as the case may be, power and authority to own its
properties and conduct its business as described in the
Prospectus.
4. Each of the Subsidiaries has been duly qualified as a foreign
corporation or limited partnership, as the case may be, for the
transaction of business and is in good standing in each
jurisdiction identified in Schedule II of the Underwriting
-----------
Agreement, which has been attached as Appendix A hereto.
----------
5. All of the outstanding shares of capital stock of each Corporate
Subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable, and all of such shares of capital
stock of each Corporate Subsidiary are owned of record by the
Company, free and clear of any perfected security interests or,
to our knowledge, any other liens, encumbrances, security
interests and claims, except for the security interest in the
issued and outstanding shares of capital stock of TriNet
Essential Facilities XII, Inc. listed in Schedule II to the
-----------
Underwriting Agreement; and based solely on our review of the
limited partnership agreements of each Limited Partnership
Subsidiary, except as set forth in Appendix A hereto all of the
----------
partnership interests of such Limited Partnership Subsidiaries
are owned by the Company directly, or indirectly through
Corporate
A-1
Subsidiaries, as set forth in Appendix A hereto, free and clear
----------
of any perfected security interests or, to our knowledge, any
other liens, encumbrances, security interests and claims.
6. Other than as set forth or contemplated in the Prospectus, to
our knowledge, there are no legal or governmental proceedings
pending (in which service or notice of process has been
received by an officer or other representative of the Company
or any Subsidiary), or threatened to which the Company or the
Subsidiaries are 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; we do 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.
7. The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
8. The Shares have been duly authorized and, when issued and
delivered to and paid for by the Underwriter in accordance with
the terms of the Underwriting Agreement, will be validly
issued, fully paid and non-assessable. The Shares have been
duly authorized for listing, subject to official notice of
issuance, on the NYSE. The form of certificate used to evidence
the Shares is in due and proper form and complies with all
applicable statutory and NYSE requirements.
9. The issuance of the Shares is not subject to preemptive or
other similar rights arising by operation of law, the charter
or Bylaws of the Company or, to our knowledge, otherwise.
10. The Shares conform in all material respects to the description
thereof in the Registration Statement and the Prospectus under
the captions "Description of Common Stock" and "Restrictions on
Transfers of Capital Stock."
11. The issue and sale of the Shares and the performance by the
Company of its obligations under the Underwriting Agreement and
the consummation of the transactions therein contemplated will
not (a) conflict
A-2
with or result in a breach of any of the terms or provisions
of, or constitute a default under any of the documents
identified in Appendix B hereto 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 us, 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.
12. To the best of our knowledge, no default exists, and no event
has occurred which with notice or lapse of time, or both, would
constitute a default, in the due performance and observance of
any term, covenant or condition by the Company or any
Subsidiary of any agreement or instrument identified in
Appendix B to which the Company or any Subsidiary is a party or
by which any of them or any of their respective properties or
assets is bound or affected, where the consequences of such
default would have a Material Adverse Effect; provided, that we
express no opinion with respect to any default in the due
performance or observance of any financial term, covenant or
condition to the extent that the determination of whether a
default exists, or event has occurred which, with notice or
lapse of time, or both, would constitute a default, does not
involve the making of a legal conclusion.
13. The authorized capital stock of the Company consists of 40
million shares of common stock, $.01 par value per share, 25
million shares of excess stock, $.01 par value per share, and
10 million shares of preferred stock, $.01 par value per share.
The capital stock of the Company conforms to the description
thereof contained in the Prospectus; and all of the issued and
outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and non-assessable.
14. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the issue and sale of the Shares or the
consummation of the other transactions contemplated by the
Underwriting Agreement, except such consents, approvals,
authorizations, orders, registrations or qualifications as
A-3
have been obtained under the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and as
may be required under state securities or Blue Sky laws or
Corporate Financing Rules of the National Association of
Securities Dealers, Inc. in connection with the purchase and
distribution of the Shares by the Underwriter.
15. The Registration Statement has been declared effective under
the Securities Act. The Prospectus was filed with the
Commission pursuant to Rule 424 within the applicable time
period prescribed by Rule 424. To our knowledge (based solely
on oral representations of a member of the staff of the
Commission and a certificate of the Company), 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.
16. At the time the Registration Statement became effective and at
the date of the Prospectus Supplement, the Registration
Statement as supplemented by the Prospectus Supplement (other
than (A) the documents incorporated by reference therein and
(B) the financial statements and schedules and other financial
or statistical data included therein, as to which no opinion is
given) complied as to form in all material respects with the
requirements for registration statements on Form S-3 under the
Securities Act, it being understood that in passing upon
compliance as to the form of the Registration Statement, we
assume that the statements made or incorporated therein are
correct and complete.
17. 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 of 1940, as amended.
18. To our knowledge, no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
19. The Company satisfies all conditions and requirements for
filing the Registration Statement on Form S-3 under the
Securities Act.
20. Each document filed by the Company with the Commission pursuant
to the Exchange Act on or before the date hereof (other than
the financial statements and
A-4
supporting schedules included therein, as to which no opinion
is given) and incorporated or deemed to be incorporated by
reference in the Prospectus complied when so filed as to form
in all material respects with the requirements of the Exchange
Act, it being understood that in passing upon compliance as to
the form of such documents, we assume that the statements made
therein are correct and complete.
21. The Statements in the Prospectus under the first paragraph of
the caption "Restrictions on Transfers of Capital Stock"
(except for the last sentence thereof), to the extent such
information constitutes statements of law, descriptions of
statutes, rules or regulations, summaries of documents or legal
conclusions, have been reviewed by us and are accurate in all
material respects and present fairly the information required
to the disclosed therein.
The limitations inherent in the independent verification of
factual matters and the character of determinations involved in the registration
process are such that we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Prospectus or the documents
incorporated therein by reference and we make no representation that we have
independently verified the accuracy, completeness or fairness of such, except as
expressly set forth in (a) paragraphs (10) and (22) hereof and (b) the second
numbered paragraph of the opinion of this firm to you relating to certain tax
matters of even date herewith. Without limiting the foregoing, we assume no
responsibility for, and have not independently verified, the accuracy,
completeness or fairness of the financial statements or notes thereto, financial
schedules and other financial and statistical data included in the Registration
Statement and the Prospectus, and we have not examined the accounting, financial
or statistical records from which such statements and notes, schedules and data
are derived. However, in the course of our acting as counsel to the Company and
the Subsidiaries in connection with the preparation of the Registration
Statement and the Prospectus and the public offering of the Shares we
participated in conferences and telephone conversations with representatives of
the Company, representatives of Coopers & Xxxxxxx L.L.P., accountants for the
Company, your representatives and representatives of Xxxxxx Xxxxxx & Xxxxxxx,
your counsel, during which conferences and conversations the contents of the
Registration Statement and the Prospectus and related matters were discussed. In
addition, we reviewed certain documents made available to us by the Company or
otherwise in our possession.
A-5
Based on our participation in the above-mentioned conferences
and conversations, our review of the documents described above, our
understanding of applicable law and the experience we have gained in our
practice thereunder, we advise you that:
(a) No facts have come to our attention which cause us 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 we express no opinion), 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.
(b) No facts have come to our attention which cause us 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 opinion), 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.
In addition, we will also state that based on our review of the
Company's minutes and a certificate from certain officers of the Company that,
to our knowledge, since the date of the Prospectus Supplement, the Company has
not granted any options, warrants or other rights calling for the issuance of,
and has made no commitments, plans or arrangements to issue, any shares of
capital stock of the Company or any security convertible into or exchangeable or
exercisable for capital stock of the Company other than shares of capital stock
or stock options issued or granted pursuant to or in connection with employee
benefit or incentive plans or management or director stock purchase plans of the
Company.
A-6
Annex B
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1. Commencing with the Company's taxable year ended December 31,
1993, the Company has been organized in conformity with the
requirements for qualification as a "real estate investment
trust", and its method of operation, as described in the
Registration Statement and set forth in the Certificate, has
enabled the Company to meet and, provided that the Company
continues to meet the applicable asset composition, source of
income, shareholder diversification, distribution, record-
keeping and other requirements of the Code necessary for a
corporation to qualify as a REIT, will enable it to continue to
meet the requirements for qualification and taxation as a "real
estate investment trust" under the Code.
2. The Statements in the Prospectus set forth under the caption
"Federal Income Tax Considerations" to the extent such
information constitutes matters of law, summaries of legal
matters, or legal conclusions, have been reviewed by us and are
accurate in all material respects.
B-1
