EXHIBIT 1.1
2,405,000 Shares
TRINET CORPORATE REALTY TRUST, INC.
Common Stock
UNDERWRITING AGREEMENT
January 8, 1998
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
TriNet Corporate Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell 2,405,000 shares of common stock of the
Company, par value $.01 per share (the "Shares"), to Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation (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 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. 333-42717) 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 December 30, 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 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 $36.445 (the "Purchase
Price"), 2,405,000 Shares.
3. Terms of Public Offering. The Company is advised by you that the
------------------------
Underwriter proposes (i) to make a public offering (the "Offering") of their
respective portions of the Shares 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.
4. Delivery and Payment. Delivery to the Underwriter of certificates for, and
--------------------
payment of the Purchase Price for the Shares shall be made, subject to Section
9, at 10:00 A.M., New York City time, on the fourth business day (or the third
business day if required under Rule 15c6-1 of the Exchange Act) following the
date hereof, 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
-2-
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 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 participating in the offering 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 public offering price, the selling concession and reallowance,
if any, 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.
(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
-3-
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 counsel for the
Underwriter shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to
the Registration Statement, Rule 462(b) Registration Statement, Term
Sheet, or amendment or supplement to the Prospectus which, in the
opinion of counsel for the Underwriter, 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. The Prospectus
and any amendments or supplements thereto furnished to the Underwriter
will be identical to the electronically transmitted copies thereof
filed with
-4-
the commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) If, at any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, any
event shall occur as a result of which, in the opinion of counsel for
the Underwriter, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with any law, the Company will
forthwith prepare and file with the Commission an appropriate
amendment or supplement to the Prospectus (in form and substance
reasonably satisfactory to counsel for the Underwriter) so that the
statements in the Prospectus, as so amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances existing when it is so delivered, not
misleading, or so that the Prospectus will comply with any law, and to
furnish to the Underwriter and to such dealers as you shall specify,
such number of copies thereof as the Underwriter or dealers may
reasonably request.
(f) The Company will use its best efforts, in cooperation with the
Underwriter, to qualify 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 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 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
-5-
other documents as may be necessary in order to effect such
qualification or registration; provided, however, the Company will not
-------- -------
be required to qualify as a foreign corporation, file a general
consent to service of process in any such jurisdiction, subject itself
to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject, or provide any undertaking or make any
change in its charter or by-laws that the Board of Directors of the
Company reasonably determines to be contrary to the best interests of
the Company and its stockholders.
(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, filing and distribution under the Act
of the Registration Statement and any amendment thereto (including
financial statements and exhibits), each preliminary prospectus, the
Prospectus and all
-6-
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 or by dealers to
whom Shares may be sold, (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 or any Option Closing Date, as the case may
be, 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" ("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
-7-
Company's Board of Directors determines that it is no longer in the
best interests of the Company to be so qualified.
(p) The Company hereby agrees not to, directly or indirectly, register the
sale of, offer to sell, sell, contract to sell, grant any option to
purchase or otherwise dispose of any Shares of common stock, par value
$.01 per share, of the Company ("Common Shares") or any securities
convertible into or exercisable or exchangeable for such Common Shares
or in any other manner transfer all or a portion of the economic
consequences associated with the ownership of any such Common Shares,
except to the Underwriter pursuant to this Agreement, for a period of
45 days after the date of the Prospectus Supplement without the prior
written consent of the Underwriter. Notwithstanding the foregoing,
during such period the Company may (i) grant shares of common stock
and stock options pursuant to any employee benefit or incentive plan
or management or director stock purchase plan of the Company, (ii)
issue Common Shares upon the exercise of such options, (iii) issue
Common Shares in consideration of real property and/or other assets
acquired by the Company or a subsidiary thereof, (iv) issue Common
Shares in a merger or consolidation transaction in which the Company
or a subsidiary thereof is the surviving entity and (v) issue Common
Shares in exchange for partnership units in TriNet Sunnyvale Partners,
L.P. and TriNet Property Partners, L.P., d/b/a TriNet Property
Partners Limited Partnership.
6. Representations and Warranties of the Company. The Company represents and
---------------------------------------------
warrants to the Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement became effective on December 30, 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.
-8-
(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 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
-9-
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 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
-10-
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 Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the condition (financial or
otherwise), business, prospects, properties, net worth or results of
operations of the Company and 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
-11-
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 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
dmeaning 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") 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 II hereto); all
-----------
the outstanding shares of capital stock of each Subsidiary have been
duly authorized and validly issued and are fully paid and non-
assessable; except as disclosed in Schedule II 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.
-12-
(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 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 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 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
-13-
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 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 non-assessable.
(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
-14-
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.
(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.
-15-
(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 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.
-16-
(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 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.
(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 occurrence 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,
-17-
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 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 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 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. 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 By-laws, 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
-18-
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
Relations Board or any state or local labor relations board, and no
significant grievance or more significant arbitration proceeding
arising out of or under any collective bargaining agreement is so
pending against the Company or 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
-19-
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 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 relating to the Underwriter furnished in writing to the Company
by or on behalf of the Underwriter through you expressly for use therein.
(b) In case any action shall be brought against the Underwriter or any
person controlling the Underwriter, based upon 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
-20-
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 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
-21-
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 or the 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 or the Prospectus and in respect of which indemnity may be sought
against the Underwriter, 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
-22-
to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, expenses, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
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 and any Option 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.
The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for filing
by such Rule. 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.
-23-
(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
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 an opinion or
opinions, dated the Closing Date, of Xxxxxxx, Procter & Xxxx LLP,
counsel for the Company, substantially 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 non-assessable, 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
-24-
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 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 10-K for the Year Ended December 31, 1996 or at the date of
the Underwriting Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, including the documents
incorporated therein by reference, at the time the Prospectus was
first provided to the Underwriter for use in connection with the
offering of the Shares or at the date hereof, contained or contains
an untrue statement of a material fact or omitted or omits to state a
material fact necessary in
-25-
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" 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.
-26-
(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.
9. Effective Date of Agreement; Termination; Default by One or More
----------------------------------------------------------------
Underwriter. 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 to market the Shares
on the terms and in the manner contemplated in the Prospectus, (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. Information Furnished by the Underwriter. The name of the Underwriter set
----------------------------------------
forth on the cover page, and the statements in the second paragraph under the
caption "Underwriting" in the Prospectus, constitute the only information
furnished by or on behalf of the Underwriter through you as such information is
referred to in Section 7.
11. Miscellaneous. Notices given pursuant to any provision of this Agreement
-------------
shall be addressed as follows: (a) if to the
-27-
Company, to TriNet Corporate Realty Trust, Inc., Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 and (b) if to you, Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, 000 Xxxx 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.
In the event of termination of this Agreement, the provisions of Sections
5(j) and 7 shall remain operative and in full force and effect.
If this Agreement shall be terminated by the Underwriter because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the Underwriter for all out-of-pocket expenses (including the fees and
documented disbursements of counsel) reasonably incurred by them.
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
Chief Financial Officer
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
-29-
SCHEDULE I
STATES OF
FOREIGN QUALIFICATION OF
TRINET CORPORATE REALTY TRUST, INC.
California
Florida
Pennsylvania
-30-
SCHEDULE II
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 III, Inc. Maryland Alabama, Florida, Georgia, 100% None
Illinois, Indiana, Iowa,
Mississippi, New York,
Ohio, Tennessee, W.
Virginia
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% None
Minnesota, Nevada,
Washington
TriNet Essential Facilities X, Inc. Maryland California, Colorado, 100% None
Florida, Georgia,
Illinois, Indiana,
Louisiana, Missouri, New
York, Ohio, Pennsylvania,
Texas, Utah
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
--------------------
/1/ Common Stock pledged in connection with the 1994 Mortgage (as defined in
the Prospectus).
(continued...)
-31-
Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
------------------ ------------ ------------- ---------------- ----------
TriNet Essential Facilities XIV, Inc. Maryland New Jersey 100% None
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, Texas 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
--------------------
/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.
(continued...)
-00-
Xxxxxxxxxxxx Xxxxxx of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
------------------ ------------ ------------- ---------------- ----------
TriNet Sunnyvale Partners, L.P. Delaware California 44.7%/4/ None
TriNet Realty Investors I, Inc. Maryland Massachusetts 100% None
--------------------
(...continued)
/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.
-33-
TriNet Property Partners, L.P., d/b/a Delaware Massachusetts /5/ None
TriNet Property Partners Limited Partnership
--------------------
/5/ TriNet Realty Investors I, Inc. is the sole general partner with a 99%
Initial Percentage Interest.
-34-
Annex A
-------
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
nonassessable, 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 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
nonassessable. 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 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 ByLaws 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.
A-36
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 nonassessable.
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 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
-37-
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 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
-38-
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 (21) 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.
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
-39-
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.
Our review of copies of the minutes and resolutions of the Company's Board of
Directors and of a certificate of the Company's officers did not suggest or
indicate that, since the date of the Prospectus Supplement, the Company has
granted any options, warrants or other rights calling for the issuance of, or
has made any commitments, plans or arrangements to issue, any shares of its
capital stock or any security convertible into or exchangeable or exercisable
for its capital stock 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.
40
Annex B
-------
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, recordkeeping 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.
APPENDIX B
----------
1. Amended and Restated Articles of Incorporation. (Incorporated by reference
to Exhibit 3.1(i) to the Registration Statement on Form S-11 of TriNet Corporate
Realty Trust, Inc., Registration No. 33-59836.)
2. Amended and Restated Bylaws. (Incorporated by reference to Exhibit 3.1(ii)
to the Registration Statement on Form S-11 of TriNet Corporate Realty Trust,
Inc., Registration No. 33-59836.)
3. TriNet Corporate Realty Trust, Inc. Amended and Restated 1993 Stock
Incentive Plan. (Incorporated by reference to Exhibit 10.24 to the Registration
Statement on Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No.
33-59836.)
4. Interest Rate Protection Agreement dated May 21, 1993, between certain of
the Company's subsidiaries and UBS Securities (Swaps), Inc. (Incorporated by
reference to Exhibit 10.32 to the Registration Statement on Form S-11, of TriNet
Corporate Realty Trust, Inc., Registration No. 33-74284.)
5. Reorganization Agreement dated as of May 21, 1993, between the Company and
Xxxxxx/Xxxxxxx Corporate Capital, Inc. (Incorporated by reference to Exhibit
10.41 to the Registration Statement on Form S-11, of TriNet Corporate Realty
Trust, Inc., Registration No. 33-74284.)
6. Form of Noncompetition Agreement dated as of June 2, 1993, between the
Company and certain of its executive officers. (Incorporated by reference to
Exhibit 10.31 to the Registration Statement on Form S-11, of TriNet Corporate
Realty Trust, Inc., Registration No. 33-59836.)
7. Form of Option Agreement between the Company and its executive officers.
(Incorporated by reference to Exhibit 10.32 to the Registration Statement on
Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No. 33-59836.)
8. Indemnification Agreements between the Company and the Independent
Directors. (Incorporated by reference to Exhibit 10 to Form 10-Q of TriNet
Corporate Realty Trust, Inc., dated August 12, 1993, Commission File No. 1-
11918.)
-42-
9. TriNet Corporate Realty Trust, Inc. 1993-1994 Performance Based Management
Incentive Plan. (Incorporated by reference to Exhibit 10.49 to the Registration
Statement on Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No.
33-74284.)
10. Description of TriNet Corporate Realty Trust, Inc. Savings and Retirement
Plan. (Incorporated by reference to Exhibit 10.50 to the Registration Statement
on Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No.
33-74284.)
11. TriNet Corporate Realty Trust, Inc. 1995 Stock Incentive Plan.
(Incorporated by reference to Exhibit 4.1 to the Registration Statement on Form
S-8, of TriNet Corporate Realty Trust, Inc., Registration No. 333-02222.)
12. Management Agreement dated as of June 3, 1993, by and among the Company and
certain of its subsidiaries. (Incorporated by reference to Exhibit 10.51 to the
Registration Statement on Form S-11, of TriNet Corporate Realty Trust, Inc.,
Registration No. 33-74284.)
13. Lease Agreement between Chem Network Processing Services and AT&T Resource
Management Corporation, dated April 20, 1990, as assigned to TriNet Essential
Facilities XIV, Inc. on April 18, 1995. (Incorporated by reference to Exhibit
10.3 to the Current Report on Form 8-K dated May 2, 1995 of TriNet Corporate
Realty Trust, Inc.)
14. Purchase Agreement between TriNet Essential Facilities XIV, Inc. and P.G.
Associates Limited Partnership, dated March 13, 1995. (Incorporated by reference
to Exhibit 10.2 to the Current Report on Form 8-K dated May 2, 1995 of TriNet
Corporate Realty Trust, Inc.)
15. First Amendment to Purchase Agreement between TriNet Essential Facilities
XIV, Inc. and P.G. Associates Limited Partnership, dated April 18, 1995.
(Incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K
dated May 2, 1995 of TriNet Corporate Realty Trust, Inc.)
16. Management Incentive Agreement between TriNet Essential Facilities XIV,
Inc. and P.G. Associates Limited Partnership, dated April 18, 1995.
(Incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K
dated May 2, 1995 of TriNet Corporate Realty Trust, Inc.)
-43-
17. Management Agreement between TriNet Essential Facilities XIV, Inc. and P.G.
Associates Limited Partnership, dated April 18, 1995. (Incorporated by reference
to Exhibit 10.5 to the Current Report on Form 8-K dated May 2, 1995 of TriNet
Corporate Realty Trust, Inc.)
18. Purchase Agreement between TriNet Corporate Partners I, L.P. and National
Tea Corporation, dated November 1, 1994. (Incorporated by reference to Exhibit
10.1 to the Current Report on Form 8-K dated June 23, 1995 of TriNet Corporate
Realty Trust, Inc.)
19. First Amendment to Purchase Agreement between TriNet Corporate Partners I,
L.P. and National Tea Corporation, dated November 1, 1994. (Incorporated by
reference to Exhibit 10.2 to the Current Report on Form 8-K dated June 23, 1995
of TriNet Corporate Realty Trust, Inc.)
20. Second Amendment to Purchase Agreement between TriNet Corporate Partners I,
L.P. and National Tea Corporation, dated February 1, 1995. (Incorporated by
reference to Exhibit 10.3 to the Current Report on Form 8-K dated June 23, 1995
of TriNet Corporate Realty Trust, Inc.)
21. Third Amendment to Purchase Agreement between TriNet Corporate Partners I,
L.P. and National Tea Corporation, dated May 1, 1995. (Incorporated by reference
to Exhibit 10.4 to the Current Report on Form 8-K dated June 23, 1995 of TriNet
Corporate Realty Trust, Inc.)
22. Loan Agreement dated as of December 6, 1994 by and among Nomura Asset
Capital Corporation, Pacific Mutual Life Insurance Company and TriNet Essential
Facilities XII, Inc. (Incorporated by reference to Exhibit 10.1 to the
Registration Statement on Form S- 3 of TriNet Corporate Realty Trust, Inc.,
Registration No. 33-87256.)
23. Indenture dated May 22, 1996 between the Company and Xxxxxx Trust and
Savings Bank. (Incorporated by reference to Exhibit 4.2 to the Current Report on
Form 8-K dated June 14, 1996 of TriNet Corporate Realty Trust, Inc.)
24. Supplemental Indenture No. 1 dated May 22, 1996 between the Company and
Xxxxxx Trust and Savings Bank. (Incorporated by reference to Exhibit 4.1 to the
Current Report on Form 8-K dated June 14, 1996 of TriNet Corporate Realty Trust,
Inc.)
25. Articles Supplementary Establishing and Fixing the Rights and Preferences
of a Series of Shares of Preferred Stock relating to the Series A Cumulative
Preferred Stock, as filed with the Maryland State Department of Assessments and
Taxation on June 17, 1996. (Incorporated by reference to Exhibit 1 to Form 8-A/A
of
-44-
TriNet Corporate Realty Trust, Inc., dated June 26, 1996, filed with the
Securities and Exchange Commission on June 28, 1996.)
26. Amended and Restated Agreement of Limited Partnership between TriNet
Corporate Realty Trust, Inc., and the X'Xxxxxxx Revocable Trust, the Xxxxxx X.
Xxxxx Revocable Trust and Xxxx X. Xxxxxxx, dated June 26, 1996. (Incorporated by
reference to Exhibit 10.1 to the Current Report on Form 8-K dated July 3, 1996
of TriNet Corporate Realty Trust, Inc., filed with the Securities and Exchange
Commission on July 17, 1996 and as amended by Form 8-K/A dated July 3, 1996 of
TriNet Corporate Realty Trust, Inc., filed with the Securities and Exchange
Commission on August 7, 1996.)
27. Definitive Articles Supplementary Establishing and Fixing the Rights and
Preferences of a Series of Shares of Preferred Stock (Series B Preferred Stock).
(Incorporated by reference to Exhibit 1 to Form 8-A/A of TriNet Corporate Realty
Trust, Inc., dated August 9, 1996, filed with the Securities and Exchange
Commission on August 12, 1996.)
28. Second Amended and Restated Revolving Credit Agreement among TriNet
Corporate Realty Trust, Inc., as borrower, Xxxxxx Guaranty Trust Company of New
York, as lead agent, and First National Bank of Boston, as managing co-agent,
dated as of April 22, 1997.
29. TriNet Corporate Realty Trust, Inc. 1997 Stock Incentive Plan
30. Supplemental Indenture No. 2, dated as of July 14, 1997, between the
Company and Xxxxxx Trust and Savings Bank, relating to the 7.70% Notes due 2017
and including the form of the 7.70% Note due 2017
31. Definitive Articles Supplementary Establishing and Fixing the Rights and
Preferences of a Series of Shares of Preferred Stock (Series C Preferred Stock).
(Incorporated by reference to Exhibit 1 to Form 8-A of TriNet Corporate Realty
Trust, Inc., dated October 3, 1997, filed with the Securities and Exchange
Commission on October 14, 1997.)
-45-
