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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
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Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 8, 1996
TRINET CORPORATE REALTY TRUST, INC.
(Exact name of Registrant as specified in its Charter)
Maryland
(State of Incorporation)
1-11918 94-3175659
(Commission File Number) (IRS Employer Id. Number)
Four Embarcadero Center, Suite 3150 94111
San Francisco, CA (Zip Code)
(Address of principal executive offices)
(415) 391-4300
(Registrant's telephone number, including area code)
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
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Exhibit
Number Exhibit
- ------ -------
1.1 Definitive Underwriting Agreement, dated August 8, 1996, relating to
the sale of 1,300,000 shares of 9.20% Series B Cumulative Preferred
Stock, par value $.01 per share.
3.1 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 of 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.
1
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ A. William Stein
-----------------------------------------
A. William Stein
Executive Vice President and Chief
Financial Officer (Authorized Officer of
the Registrant and Principal Financial
Officer)
Dated: August 14, 1996
2
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EXHIBIT 1.1
TRINET CORPORATE REALTY TRUST, INC.
1,300,000 Shares
9.20% Series B Cumulative Preferred Stock
Liquidation Preference $25.00 Per Share
UNDERWRITING AGREEMENT
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August 8, 1996
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
c/o SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
TriNet Corporate Realty Trust, Inc., a real estate investment trust
("REIT") and a Maryland corporation (the "Company"), proposes to issue and sell
an aggregate of 1,300,000 shares (the "Firm Shares") of its 9.20% Series B
Cumulative Preferred Stock, liquidation preference $25.00 per share (the
"Preferred Stock"), to you (collectively the "Underwriters"). The Company also
proposes to sell to the Underwriters, upon the terms and conditions set forth in
Section 1 hereof, up to an additional 195,000 shares (the "Additional Shares")
of Preferred Stock. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares."
The Company wishes to confirm as follows its agreement with you in
connection with the several purchases of the Shares by the Underwriters.
1. AGREEMENTS TO SELL AND PURCHASE.
(a) On the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions of this
Agreement, the Company agrees to sell to the Underwriters and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $24.2125 per share (the "purchase price per share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares increased as set forth in Section 9 hereof).
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(b) The Company also agrees, subject to all the terms and conditions set
forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, the Underwriters shall
have the right to purchase from the Company, at the purchase price per share,
pursuant to an option (the "over-allotment option") which may be exercised at
any time and from time to time prior to 9:00 P.M., New York City time, on the
30th day after the date of the Prospectus (as defined in Section 4) (or, if such
30th day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange (the "NYSE") is open for trading),
up to an aggregate of 195,000 Additional Shares. Additional Shares may be
purchased only for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. Upon any exercise of the over-allotment
option, each Underwriter, severally and not jointly, agrees to purchase from the
Company the number of Additional Shares (subject to such adjustments as you may
determine in order to avoid fractional shares) which bears the same proportion
to the number of Additional Shares to be purchased by the Underwriters as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Firm Shares increased as set forth in
Section 9 hereof) bears to the aggregate number of Firm Shares.
2. TERMS OF PUBLIC OFFERING.
The Company has been advised by you that the Underwriters propose to make a
public offering of their respective portions of the Shares as soon after this
Agreement has been entered into and, if necessary, any post-effective amendment
to the Registration Statement (as defined herein), has become effective as in
your judgment is advisable and initially to offer the Shares upon the terms set
forth in the Prospectus (as defined herein).
3. DELIVERY OF THE SHARES AND PAYMENT THEREFOR.
Delivery to the Underwriters of and payment for the Firm Shares shall be
made at the office of Smith Barney Inc., 388 Greenwich Street, New York, NY
10013, at 10:00 A.M., New York City time, on August 13, 1996 (the "Closing
Date"). The place of closing for the Firm Shares and the Closing Date may be
varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at the aforementioned office of
Smith Barney Inc. at such time on such date (the "Option Closing Date"), which
may be the same as the Closing Date but shall in no event be earlier than the
Closing Date nor earlier than three nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from the Underwriters to the Company of the Underwriters' determination
to purchase a number, specified in such notice, of Additional Shares. The place
of closing for any Additional Shares and the Option Closing Date for such Shares
may be varied by agreement between you and the Company.
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Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor in immediately available funds.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents,
warrants and covenants to the Underwriters as set forth below. Certain terms
used in this Section 4 are defined in paragraph (af) hereof.
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, registration number 33-80709
(the "Registration Statement") on Form S-3, including the related
prospectus included in the Registration Statement, for the registration
under the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (the "Act"), of the offering and sale of,
inter alia, the Shares. The Company may have filed one or more amendments
thereto, including each related prospectus, and one or more prospectus
supplements thereto, each of which has previously been furnished to the
Underwriters. The Company has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Shares pursuant to Rule 424 under the Act. The
Company has included or will include in such Registration Statement, as
amended at the Execution Time and in the Prospectus Supplement all
information required by the Act to be included therein with respect to the
Shares and the offering thereof. As filed, such Registration Statement, as
so amended, and form of final prospectus contained in the Registration
Statement and Prospectus Supplement, or such final prospectus and
Prospectus Supplement, contains or will contain all required information
with respect to the Shares and the offering thereof and, except to the
extent the Underwriters shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to the Underwriters prior
to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes as the Company has advised the Underwriters, prior to the Execution
Time, will be included or made therein.
(b) No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each prospectus filed as
part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Act, complied
when so filed in all material respects with the Act, and did not contain an
untrue statement of a material fact or omit to state a material fact
required
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to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing
by such Underwriter expressly for use therein.
(c) The Registration Statement has been declared effective by the
Commission under the Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Act; the Registration Statement, as amended at
the Effective Date, did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not mislead ing; and the
Prospectus, as of the Execution Time, does not, and as amended or
supplemented at the Closing Date, will not, contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing representations and
warranties shall not apply to statements or omissions in the Registra tion
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing
by such Underwriter expressly for use therein.
(d) Each Incorporated Document, as of the date such Incorporated
Document was filed with the Commission, conformed in all material respects
to the requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder (the "Exchange
Act"), and when read together with the other information in the Prospectus,
at the Effective Date and as of the Execution Time, did not, and at the
Closing Date and during the time period specified in Section 5(e) of this
Agreement, will not, contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will conform
in all material respects to the requirements of the Exchange Act, as
applicable, and when read together with the other information in the
Prospectus, at the Effective Date and as of the Execution Time, did not,
and at the Closing Date and during the time period specified in Section
5(e) of this Agreement, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
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(e) The historical financial statements and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus, comply in all material respects with the requirements of the
Act and the Exchange Act, as applicable, and present fairly the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their operations
and the changes in their cash flows for the periods specified; the
financial statements with respect to the Properties (as defined in the
Prospectus) acquired by the Company, together with related notes,
incorporated by reference in the Registration Statement or the Prospectus,
present fairly a summary of gross income and direct operating expenses or a
summary of gross income, as the case may be, of such Properties for the
indicated periods; the foregoing financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information re
quired 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 infor mation
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 has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not (1) have a material adverse effect on the condition
(financial or otherwise) business, prospects, properties, net worth or
results of operations of the Company and the Subsidiaries, taken
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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 II hereto); except for investments in the Subsidiar
ies, in short-term investment securities and in other securities as
described in the Regis tration Statement or Prospectus, the Company has no
direct or indirect equity or other interest in any corporation,
partnership, trust or other entity; each of the Company's subsidiaries
(within the meaning of Regulation S-X under the Act) is identified on
Schedule III hereto (the "Subsidiaries") and has been duly organized and is
validly existing as a corporation, trust or limited partnership, as the
case may be, in good standing under the laws of its jurisdiction of
organization with corporate, trust or partnership power and authority, as
the case may be, to own or lease its properties and conduct its business as
presently conducted and as described in the Prospectus, and has been duly
qualified as a foreign corporation, foreign trust 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 III
hereto); all the outstanding shares of capital stock or beneficial
interests of each Subsidiary have been duly authorized and validly issued,
are fully-paid and non-assessable; except as disclosed in Schedule III
hereto, all the outstanding shares of capital stock, all beneficial
interests and all partnership interests of each Subsidiary are owned by the
Company, directly or indirectly, free and clear of all liens, encumbrances,
security interests and claims.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issues, 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, partnership agreement or agreement of trust, 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,
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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 its
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the 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 National Association of
Securities Dealers, Inc. (the "NASD") in connection with the pur chase and
distribution of the Shares by the Underwriters or (z) the failure of which
to obtain 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 docu ments 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. The Company's issued and outstanding
shares of capital stock is as set forth under the caption
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"Capitalization" in the Prospectus, except for subsequent issuances, if
any, pursuant to dividend reinvestment plans, employee benefits plans and
employee and director stock option and incentive plans. 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
(ii) which do not materially affect or detract from the value of such
Property or interfere with the use made and proposed to be made of such
Property by the Company and the Subsidiaries and which individually and in
the aggregate are in an amount which is not material to the Company; and
TriNet XVII Realty Trust (the "Trust"), a Subsidiary of the Company, does
not own any of the Properties and does not own any assets which are
material to the Company on a consolidated basis.
(n) Except as disclosed in the Prospectus, each entity identified in
the Prospectus as a tenant of any Property, or a subtenant thereof, is in
actual possession of such Property under a lease to such tenant or, if
applicable, a sublease to such subtenant; except as disclosed in the
Prospectus, each such lease is in full force and effect and neither the
Company nor any of the Subsidiaries has notice of any defense to the
obligations of the tenant thereunder or any claim asserted or threatened by
any person or entity, which claim, if sustained, would have a Material
Adverse Effect; and except as disclosed in the Prospectus, the lessor under
each lease has complied with its obligations under such lease in all
material respects and neither the Company nor any of the Subsidiaries has
notice of any default by the tenant under such lease which, individually or
in the aggregate with other such defaults, would have a Material Adverse
Effect.
(o) The mortgages and deeds of trust encumbering the Properties (other
than the Property leased to MacFrugal's Bargains-Closeouts, Inc.) 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
business, assets, employees, officers, trustees and directors, as the case
may be, are in full force and effect; the Company and the Subsidiaries are
in compliance with the terms of such policies 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 individ ually
or in the aggregate would not have a Material Adverse Effect;
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(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 pro ceeding relating to revocation or modification of any such
license, permit, certificate, con sent, order, approval or other
authorization, except as described in the Prospectus and ex cept, in each
case, where such revocation or modification would not have a Material Ad
verse 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 & Lybrand 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) No relationship, direct or indirect, exists between or among the
Company or the Subsidiaries on the one hand, and the directors, trustees,
officers, stockholders, customers or suppliers of the Company or the
Subsidiaries on the other hand, which is required by the Act to be
described in the Registration Statement and the Prospectus which is not so
described.
(u) The Company has never been, is not now, and immediately after
giving effect to the sale of the Shares under this Agreement will not be,
an "investment company" or entity "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(v) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim against the
Company, the Company has met the requirements for qualification as a real
estate investment trust ("REIT") under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code"), and the
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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 of (b) any unlawful
spills, release, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring from the Properties as a result of any
construction on or operation and use of the Properties, which presence or
occurrence would individually or in the aggregate have a Material Adverse
Effect.
(y) Other than as disclosed in the Prospectus, the Company and the
Subsidiaries (i) to the Company's knowledge, are in compliance with any and
all applicable federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) to the Company's knowledge, have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not
individually or in the aggregate have a Material Adverse Effect.
(z) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and the Subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review and other than as described in the
Prospectus, the Company has reasonably concluded that such associated costs
and liabilities would not, individually or in the aggregate, have a
Material Adverse Effect.
(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
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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 Pro spectus. 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 securities of the Company
under the Registration Statement.
(ab) 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.
(ac) 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.
(ad) To the Company's knowledge, the Company does no business with any
person or affiliate located in Cuba within the meaning of Florida Rule
3E-900.001.
(ae) 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 Underwriters is, or will be, when
made, inaccurate, untrue or incorrect in any material respect; it being
understood that no representation is made under this Section 4(ae) with
respect to the Registration Statement or the Prospectus which are the
subject of representations contained in other paragraphs in this Section 4.
<PAGE> 12
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(af) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Prospectus" shall mean the prospectus and Prospectus
Supplement relating to the Shares that is first filed pursuant to Rule
424(b) after the Execution Time. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
exhibits and financial statements, as amended at the Execution Time and, in
the event any post-effective amendment thereto becomes effective prior to
the Closing Date, shall also mean such registration statement as so
amended. "Rule 424" refers to such rule under the Act. Any reference herein
to the Registration Statement or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein either pursuant
to the terms of the Registration Statement or pursuant to Item 12 of Form
S-3 which were filed under the Exchange Act on or before the Effective Date
of the Registration Statement or the issue date of the Prospectus, as the
case may be (collectively, the "Incorporated Documents"); and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to
the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under
the Exchange Act after the Effective Date of the Registration Statement, or
the issue date of the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the Underwriters as
follows:
(a) To file the Prospectus in a form approved by you with the
Commission within the applicable time period prescribed for such filing by
Rule 424; and to furnish copies of the Prospectus to the Underwriters in
New York City as soon as practicable following the execution and delivery
of this Agreement in such quantities as you may reasonably request.
(b) To deliver to each Underwriter and counsel for the Underwriters,
at the expense of the Company, a copy of the Registration Statement (as
originally filed) and each amendment thereto, including, in each case, to
the extent requested by such Under writer or such counsel, exhibits and
documents incorporated by reference therein, which, in the case of copies
delivered to the Underwriters shall be conformed and in the case of copies
delivered to counsel for the Underwriters shall be manually executed and,
during the period mentioned in paragraph (e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments and
supplements thereto) and documents incorporated by reference therein as you
may reasonably request, as soon as practicable after their having been
filed with the Commission.
<PAGE> 13
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(c) Before filing any amendment or supplement to the Registration
Statement or the Prospectus during the period referred to in paragraph (e)
below, to furnish to you a copy of any proposed amendment or supplement to
the Registration Statement or the Pro spectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
object.
(d) To file timely all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Shares, and during such same period, to advise the Underwriters
and counsel for the Underwriters promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement shall have
become effective, (ii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the
Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspend ing the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding
for that purpose, (iv) of the occurrence of any event, within the period
referenced in paragraph (e) below, as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circum stances when the
Prospectus is delivered to a purchaser, not misleading, and (v) of the
receipt by the Company of any notification with respect to any suspension
of the qualifica tion of the Shares for offer and sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; and to
use its best efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(e) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur as
a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by the Underwriters and
to any other dealers upon request, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by the several
Underwriters and by all dealers to whom the Shares may be sold,
<PAGE> 14
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both in connection with the offering or sale of the Shares and for any
period of time thereafter during which the Prospectus is required by law to
be delivered in connection therewith. The Company shall not file any
document under the Exchange Act before the termination of the offering of
the Shares by the Underwriters if such document would be deemed to be
incorporated by reference into the Prospectus which is not approved by the
Underwriters after reasonable notice thereof.
(f) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to continue such qualification in effect so long as reasonably
required for distribution of the Shares; PROVIDED that the Company shall
not be required to file a general consent to service of process in any
jurisdiction or to make any undertaking with respect to the conduct of its
business.
(g) To make generally available to its security holders and to you as
soon as practicable but not later than 15 months after the effective date
of the Registration Statement (as defined in Rule 158(c) of the Commission
promulgated under the Act) an earnings statement covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement, which
shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of
the Commission promulgated thereunder.
(h) During the period of five years commencing at the Execution Time,
to furnish to you copies of all reports or other communications (financial
or other) furnished generally to holders of Shares, and copies of any
reports and financial statements furnished to or filed with the Commission
or any national securities exchange.
(i) To use the net proceeds of the offering of the Shares in the
manner specified in the Prospectus under "Use of Proceeds."
(j) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(k) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 9 hereof or by notice given by you terminating
this Agreement pursuant to Section 9 or Section 10 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Company to comply with the terms or fulfill any
of the conditions of this Agreement, the Company agrees to reimburse the
Underwriters for all out-of-pocket expenses (including fees and expenses of
counsel for the Underwriters) reasonably incurred by you in connection
herewith.
<PAGE> 15
-15-
(l) The Company will not at any time, directly or indirectly, take any
action intended, or which might reasonably be expected, to cause or result
in, or which will constitute, stabilization of the price of the Shares to
facilitate the sale or resale of any of the Shares in violation of the Act.
(m) The Company will use its best efforts to have the Shares listed,
subject to notice of issuance, on the New York Stock Exchange and to
maintain the listing of the Shares on the NYSE for a period of three years
after the Closing Date and thereafter the Company will use its best efforts
to continue to maintain the listing of the Shares on the NYSE 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.
(n) For a period of two years from the date of this Agreement, the
Company will use its best efforts to continue to meet the requirements to
qualify as a "real estate investment trust" under the Code, unless the
Company's Board of Directors determines that it is no longer in the best
interests of the Company and its stockholders to continue to be so
qualified.
(o) To the best of its knowledge, the Company has complied and will
endeavor to comply with all provisions of Section 517.075 of the Florida
Securities and Investor Protection Act, and all regulations thereunder
relating to issuers doing business with Cuba.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters to purchase the Firm Shares hereunder are subject to the following
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424 within the applicable time period prescribed for such filing by
such Rule; no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction.
(b) Subsequent to the Execution Time, there shall not have occurred
(i) any change, or any development involving a prospective change, in or
affecting the condition (financial or other), business, properties, net
worth, or results of operations of the Company or the Subsidiaries not
contemplated by the Prospectus, which in your opinion, would materially
adversely affect the market for the Shares, or (ii) any event or
development relating to or involving the Company or any officer or director
of the Company which makes any statement made in the Prospectus untrue in
any material respect or which, in the opinion of the Company and its
counsel or the Underwriters and their counsel, requires the making of any
addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or
<PAGE> 16
-16-
necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or
development would, in your opinion, adversely affect the market for the
Shares.
(c) The Underwriters shall have received opinions, dated the Closing
Date and, with respect to the Additional Shares, the Option Closing Date,
and satisfactory in form and substance to counsel for the Underwriters,
from Goodwin, Procter & Hoar LLP, counsel for the Company, in the forms
attached hereto as ANNEX A and ANNEX B.
(d) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the
Company by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Act.
(e) The Underwriters shall have received an opinion, dated the Closing
Date and, with respect to the Additional Shares, the Option Closing Date,
from Cahill Gordon & Reindel, counsel to the Underwriters, with respect to
the Registration Statement, the Prospectus and this Agreement, which
opinion shall be satisfactory in all respects to the Underwriters, and such
counsel shall have been provided by the Company with such documents and
information as they may reasonably request to enable them to pass on such
matters. In rendering such opinion, such counsel may rely, as to matters of
Maryland law, on the opinion of Goodwin, Procter & Hoar LLP.
(f) You shall have received letters addressed to you and dated the
date hereof and the Closing Date from Coopers & Lybrand L.L.P., independent
certified public accountants, in form and substance reasonably satisfactory
to you, containing statements and information of the type customarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus, including, without limitation, a
statement that they have made a review of the unaudited financial
statements for the three months ended June 30, 1996 included or
incorporated by reference in the Registration Statement in accordance with
the standards established by the American Institute of Certified Public
Accountants.
(g) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall be contemplated
by the Commission at or prior to the Closing Date; (ii) there shall not
have been any material change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company and
the Subsidiaries on a consolidated basis from that set forth or
contemplated in the
<PAGE> 17
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Registration Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), except as may otherwise be stated
in the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition
(financial or other), business, prospects, properties, net worth or results
of operations of the Company and the Subsidiaries taken as a whole; (iv)
the Company and the Subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken as
a whole, other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company contained in this Agreement
shall be true and correct in all material respects on and as of the date
hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing
Date and signed by the chief executive officer and the chief financial
officer of the Company (or such other officers as are acceptable to you),
to the effect set forth in this Section 6(g) and in Section 6(h) hereof.
(h) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained
and required to be performed or complied with by it hereunder or thereunder
at or prior to the Closing Date.
(i) Prior to the Closing Date, the Shares shall have been approved for
listing, subject to notice of issuance, on the NYSE.
(j) The Company shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have reasonably
requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you or to counsel for the Underwriters, shall be deemed a
representation and warranty by the Company to each Underwriter as to the
statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option
Closing Date of the conditions set forth in this Section 6, except that, if
any Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) and (e) through (g)
shall be dated the Option Closing Date in question and the opinions called
for by paragraphs (c) and (e) shall be revised to reflect the sale of
Additional Shares.
<PAGE> 18
-18-
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any 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, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus or in any amendment or supplement thereto, or arising out of or
based upon 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, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
such Underwriter furnished in writing to the Company by any Underwriter
expressly for use in connection therewith. The foregoing indemnity agreement
shall be in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Company has agreed in writing to pay such fees and expenses, (ii)
the Company has failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been advised
by its counsel that representation of such indemnified party and the Company by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Company shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company shall, in connection with
any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests among themselves, which firm
shall be designated in writing by Smith Barney Inc., 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, suit or proceeding effected
without its written consent, but if settled
<PAGE> 19
-19-
with such written consent, or if there be a final judgment for the plaintiff in
any such action, suit or proceeding, the Company agrees to indemnify and hold
harmless any Underwriter, to the extent provided in the preceding paragraph, any
such controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with respect
to information relating to such Underwriter furnished in writing by such
Underwriter expressly for use in the Registration Statement, the Prospectus, or
any amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer, or any such
controlling person based on the Registration Statement, the Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against any Underwriter pursuant to this paragraph (c), such Underwriter shall
have the rights and duties given to the Company by paragraph (b) above (except
that if the Company shall have assumed the defense thereof such 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 be at such Underwriter's expense), and the Company, its directors, any
such officer, and any such controlling person shall have the rights and duties
given to the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters may
otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under paragraph (a) or (c) hereof in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnifying party, shall
contribute to the amount paid or payable by such indemnifying party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of the
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 Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters, 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
Underwriters 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 or alleged omission to state a material fact relates to information
supplied by the Company on the one hand
<PAGE> 20
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and the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by a pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above 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
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price of the Shares
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto (or such numbers of Firm Shares increased as set forth in Section 9
hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or 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 action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Shares and payments therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
<PAGE> 21
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8. EXPENSES.
The Company agrees to pay the following costs and expenses and all other
costs and expenses incident to the performance by it of its obligations
hereunder: (i) the preparation, printing or reproduction, and filing with the
Commission of the Registration Statement (including financial statements and
exhibits thereto), the Prospectus, and each amendment or supplement to any of
them; (ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of the
Registration Statement, the Prospectus, the Incorporated Documents, and all
amendments or supplements to any of them, as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares,
including any stamp taxes in connection with the original issuance and sale of
the Shares; (iv) the printing (or reproduction) and delivery of this Agreement,
the preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Shares: (v) the registration of the Shares under the Exchange Act and the
listing of the Shares on the NYSE; (vi) the registration or qualification of the
Shares for offer and sale under the securities or Blue Sky laws of the several
states as provided in Section 5(f) hereof (including the reasonable fees,
expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification); (viii)
the filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc.; (ix) the transportation and other expenses incurred by
or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Shares; and (x) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company.
9. EFFECTIVE DATE OF AGREEMENT.
This Agreement shall become effective: (i) upon the execution and delivery
hereof by the parties hereto; or (ii) if, at the time this Agreement is executed
and delivered, it is necessary for a post-effective amendment to the
Registration Statement to be declared effective before the offering of the
Shares may commence, when notification of the effectiveness of such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the Company,
by notifying you, or by you, by notifying the Company.
If any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate number of Shares which such defaulting Underwriter or
Underwriters are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of Shares which the Underwriters are obligated
to purchase on the Closing Date, each non-defaulting Underwriter shall be
obligated,
<PAGE> 22
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severally, in the proportion which the number of Firm Shares set forth opposite
its name in Schedule I hereto bears to the aggregate number of Firm Shares set
forth opposite the names of all non-defaulting Underwriters or in such other
proportion as you may specify in accordance with Section 20 of the Master
Agreement Among Underwriters of Smith Barney Inc., to purchase the Shares which
such defaulting Underwriter or Underwriters are obligated, but fail or refuse,
to purchase. If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase on the Closing Date
and the aggregate number of Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Company for the purchase of such Shares by one or more non-defaulting
Underwriters or other party or parties approved by you and the Company are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Company,
purchases Shares which a defaulting Underwriter is obligated but fails or
refuses, to purchase.
Any notice under this Section 9 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
10. TERMINATION.
This Agreement shall be subject to termination in your absolute discretion,
without liability on the part of any Underwriter to the Company by notice to the
Company, if prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to the Additional Shares), as the case
may be, (i) trading in securities generally on the NYSE, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
or California shall have been declared by either federal or state authorities,
or (iii) there shall have occurred any outbreak or escalation of hostilities or
other international or domestic calamity, crisis or change in political,
financial or economic conditions, the effect of which on the financial markets
of the United States is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the offering
price to the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Shares by the Underwriters. Notice of such
termination may be given to the Company by telegram, telecopy or telephone and
shall be subsequently confirmed by letter.
<PAGE> 23
-23-
11. INFORMATION FURNISHED BY THE UNDERWRITERS.
The statements set forth in the last paragraph on the cover page, the
stabilization legend on the inside front cover and the statements in the first
and third paragraphs under the caption "Underwriting" in the Prospectus
Supplement constitute the only information furnished by the Underwriters as such
information is referred to in Sections 4(b), 4(c) and 7 hereof.
12. MISCELLANEOUS.
Except as otherwise provided in Sections 3, 9 and 10 hereof, notice given
pursuant to any provision of this Agreement shall be in writing and shall be
delivered (i) if to the Company, at the office of the Company, TriNet Corporate
Realty Trust, Inc., Four Embarcadero Center, Suite 3150, San Francisco,
California 94111, or (ii) if to you, care of Smith Barney Inc., 388 Greenwich
Street, New York, New York 10013, Attention: Manager, Investment Banking
Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, its directors and officers, and the other controlling
persons referred to in Section 7 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Shares in his
status as such purchaser.
13. APPLICABLE LAW; COUNTERPARTS.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
<PAGE> 24
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
TRINET CORPORATE REALTY TRUST, INC.
By /s/ A. William Stein
---------------------------------------
Name: A. William Stein
Title: Executive Vice President and
Chief Financial Officer
Confirmed as of the date first above mentioned.
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: SMITH BARNEY INC.
By: /s/ Mark R. Patterson
--------------------------
Name: Mark R. Patterson
Title:
<PAGE> 25
SCHEDULE I
TRINET CORPORATE REALTY TRUST, INC.
<TABLE>
1,300,000 Shares
9.20% Series B Cumulative Preferred Stock
<CAPTION>
Number of
Underwriters Firm Shares
- ------------ -----------
<S> <C>
Smith Barney Inc. .................................... 650,000
Donaldson, Lufkin & Jenrette
Securities Corporation............................. 650,000
Total ............................................ 1,300,000
=========
</TABLE>
<PAGE> 26
SCHEDULE II
STATES OF
FOREIGN QUALIFICATION OF
TRINET CORPORATE REALTY TRUST, INC.
California
Florida
Pennsylvania
<PAGE> 27
<TABLE>
SCHEDULE III
------------
<CAPTION>
JURISDICTION PERCENTAGE OF
NAME OF OF STATES OF FOREIGN EQUITY INTEREST TITLE
SUBSIDIARY ORGANIZATION QUALIFICATION OWNED BY COMPANY EXCEPTIONS
- ---------------------------------------- --------------- ------------------------- ------------------------- ------------
<S> <C> <C> <C> <C>
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, 100% None
Georgia, Illinois, Indi-
ana, Iowa, Mississippi,
New York, Ohio, Ten-
nessee, West 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, Louisi-
ana, Missouri, New
York, Ohio, Pennsylva-
nia, Texas, Utah
TriNet Essential Facilities XI, Inc. Maryland Ohio, Kansas 100% None
TriNet Essential Facilities XII, Inc. Maryland California, Florida, 100% (1)
Illinois, Louisiana, Min-
nesota, New York,
Ohio, Tennessee, Texas
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 XVII Realty Trust Massachusetts None 100% None
TriNet Essential Facilities XVIII, Inc. Maryland Texas 100% None
TriNet Essential Facilities XIX, Inc. Maryland None 100% None
TriNet Corporate Partners I, L.P. Delaware Louisiana 100%(2) None
TriNet Corporate Partners II, L.P. Delaware Texas, Tennessee 100%(3) None
TriNet Sunnyvale Partners, L.P. Delaware California 44.7%(4) None
TriNet Essential Facilities XX, Inc. Maryland California, Wisconsin 100% None
<FN>
- ------------------
(1) Common stock pledged in connection with the 1994 Mortgage Loan (as defined
in the Prospectus).
</TABLE>
<PAGE> 28
(2) Owned 1% by TriNet Essential Facilities XVI, Inc., as general partner, and
99% by TriNet Essential Facilities XV, Inc., as limited partner.
(3) Owned 1% by TriNet Essential Facilities XVIII, Inc., as general partner,
and 99% by TriNet Essential Facilities XIX, Inc., as limited partner.
(4) Owned 44.7% by TriNet Corporate Realty Trust, Inc., as general partner.
TriNet Corporate Realty Trust, Inc. does not own any of the limited
partnership interests in this partnership.
-2-
<PAGE> 29
ANNEX A
August 13, 1996
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
c/o Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Re: TriNet Corporate Realty Trust, Inc.
----------------------------------
Ladies and Gentlemen:
We have acted as counsel for TriNet Corporate Realty Trust, Inc., a
Maryland corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), of a Registration Statement
on Form S-3 (File No. 33-80709), as amended, relating to the possible offering
from time to time of up to $300,000,000 aggregate principal amount of the
Company's Debt Securities, Preferred Stock and Common Stock (as such terms are
defined in the Registration Statement) and the offering of 1,300,000 shares of
9.20% Series B Cumulative Preferred Stock (the "Shares") pursuant to a
Prospectus Supplement dated August 8, 1996, which supplements the prospectus
included in such Registration Statement (the "Prospectus Supplement"). Such
Registration Statement, as amended when it became effective, is herein called
the "Registration Statement," and the prospectus dated January 24, 1996,
included in the Registration Statement, as supplemented by the Prospectus
Supplement and filed (with the Prospectus Supplement) with the Commission on
August __, 1996 pursuant to Rule 424(b) under the 1933 Act, is herein called the
"Prospectus."
This opinion is furnished to you pursuant to Section 6(c) of the
Underwriting Agreement (the "Underwriting Agreement"), dated August 8, 1996, by
and among the Company and Smith Barney Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation (the "Underwriters"). Capitalized terms used herein
shall, unless otherwise defined herein, have the meanings set forth in the
Underwriting Agreement.
In arriving at the opinions expressed below, we have examined and relied
upon the following documents:
(a) The Articles of Incorporation, each as amended to date, of (i) the
Company and (ii) the Company's seventeen corporate subsidiaries: TriNet
Essential Facilities I, Inc., TriNet Essential Facilities II, Inc., TriNet
Essential Facilities III, Inc., TriNet Essential Facilities IV, Inc., TriNet
Essential Facilities V, Inc., TriNet Essential Facilities VI, Inc., TriNet
Essential Facilities VII, Inc., TriNet Essential Facilities VIIIR, Inc., TriNet
Essential Facilities X, Inc., TriNet Essential Facilities XI, Inc., TriNet
Essential
<PAGE> 30
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
August 13, 1996
Page 2
Facilities XII, Inc., TriNet Essential Facilities XIV, Inc., TriNet Essential
Facilities XV, Inc., TriNet Essential Facilities XVI, Inc., TriNet Essential
Facilities XVIII, Inc., TriNet Essential Facilities XIX, Inc. and TriNet
Essential Facilities XX, Inc. (such subsidiaries each being referred to herein,
individually, as a "Corporate Subsidiary" and, collectively, as the "Corporate
Subsidiaries");
(b) The Bylaws of the Company and the Corporate Subsidiaries, each as
amended to date;
(c) The Declaration of Trust of TriNet XVII Realty Trust (the "Trust
Subsidiary");
(d) The Limited Partnership Agreements of TriNet Corporate Partners I,
L.P., TriNet Corporate Partners II, L.P. and TriNet Sunnyvale Partners, L.P.
(the "Limited Partnership Subsidiaries" and together with the Corporate
Subsidiaries and the Trust Subsidiary, the "Subsidiaries");
(e) Such records of corporate proceedings as we deemed material, including,
but not limited to, (i) copies of minutes of the meetings of the Board of
Directors of the Company dated December 13, 1995, (ii) a copy of the unanimous
written consent of the Board of Directors of the Company dated August 5, 1996
and (iii) a copy of the unanimous written consent of the Preferred Stock Pricing
Committee of the Board of Directors of the Company dated August 8, 1996;
(f) Good Standing Certificates dated variously between August __and __,
1996, with respect to the Company and the Corporate Subsidiaries issued by the
Maryland Department of Assessments and Taxation, with respect to the Trust
Subsidiary issued by the Massachusetts Secretary of State and with respect to
the Limited Partnership Subsidiaries issued by the Delaware Secretary of State,
and a letter of CT Corporation System ("CT") dated as of August __, 1996, which
has been provided to your counsel;
(g) Certificates of foreign qualification with respect to the Company, the
Corporate Subsidiaries and the Limited Partnership Subsidiaries in various
states, and a letter of CT dated as of August __, 1996, which has been provided
to your counsel;
(h) An executed copy of the Underwriting Agreement;
(i) Certificates as to certain facts and to the representations and
warranties contained in the Underwriting Agreement from the officers of the
Company and the Corporate Subsidiaries, from the general and limited partners of
the Limited Partnership Subsidiaries and from the trustees of the Trust
Subsidiary;
(j) The Registration Statement;
(k) The Prospectus, including the documents incorporated therein by
reference; and
(l) Such other contracts, documents, certificates and records as we deemed
necessary for the purpose of this opinion, including those delivered at the
closing of the sale of the Shares.
<PAGE> 31
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
August 13, 1996
Page 3
In addition, we have examined and relied on the originals or copies,
certified or otherwise identified to our satisfaction, of all such corporate
records of the Company and the Subsidiaries and such other instruments and
certificates of public officials, officers and representatives of the Company
and the Subsidiaries and other persons, and we have made such investigations of
law, as we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed and have not verified
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies, the authenticity of the
originals of such latter documents and the legal capacity of each individual
executing any document.
Insofar as any opinion in paragraphs (1) through (22) relates to, or
depends upon, any matter of fact, we have relied upon the representations of the
Company as set forth in Section 4 of the Underwriting Agreement and certain
certificates of the Company's officers delivered in connection with this
opinion. Although we have performed the examination referred to above, for
purposes of our opinions in paragraphs (1) through (22), we have made no
independent inquiry as to any facts relating to the transactions contemplated by
the Underwriting Agreement.
Whenever our opinion is indicated to be "to our knowledge" or "to the best
of our knowledge," it should be understood that during the course of our
representation of the Company we have not undertaken any independent
investigation to determine the existence or absence of facts. The words "to our
knowledge" and similar language used in certain of the opinions expressed below
are limited to the knowledge of the lawyers within our firm who have had primary
responsibility for our work on the transactions contemplated by the Underwriting
Agreement. We express no opinion as to legal conclusions set forth in any
agreement or instrument referred to in numbered paragraph (12) that are not
expressly addressed by our opinions set forth in numbered paragraphs (1) through
(11) and (13) through (22).
The opinions expressed below are qualified to the extent that (i) the
validity or enforceability of any provision of any instrument or document or any
rights granted thereunder may be subject to or affected by any bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar law
relating to or affecting the rights of creditors generally, (ii) the remedy of
specific performance or any other equitable remedy may be unavailable in any
jurisdiction or may be withheld as a matter of judicial discretion, (iii)
equitable principles may be applied in construing or enforcing the provisions of
any instrument or document (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (iv) applicable federal and state securities
laws and public policy may limit the application of provisions relating to
indemnification and contribution with respect to securities laws matters.
You have not asked us to pass in this opinion letter upon the power and
authority of the Underwriters to enter into the Underwriting Agreement or to
effect the transactions contemplated thereby or as to the disclosure in the
Prospectus or Registration Statement of information relating to the
Underwriters. Accordingly, for the purposes of this opinion letter, we have
assumed that the Underwriters have all requisite power and authority and have
taken all necessary corporate and other action to enter into the Underwriting
Agreement and to effect such transactions, and we do not express any opinion
herein as to the disclosure or
<PAGE> 32
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
August 13, 1996
Page 4
non-disclosure in the Prospectus, the Registration Statement or any other
document of any information relating to the Underwriters.
In rendering the opinions expressed in paragraph (1) below as to valid
existence and good standing of the Company, we have relied solely upon the
certificate of state officials and the letter from CT referred to in paragraph
(f) above.
In rendering the opinions expressed in paragraph (3) below as to valid
existence and good standing of the Subsidiaries, we have relied solely upon the
certificates of state officials and the letter from CT referred to in paragraph
(f) above.
In rendering the opinions expressed in paragraphs (2) and (4) below as to
the good standing and qualification of the Company and the Subsidiaries to
transact business in states other than Maryland, Massachusetts and Delaware, we
have relied solely upon the certificates of state officials referred to in
paragraph (g) above.
Our opinion expressed in the first sentence of paragraph (15) below is
based on a copy of the written order of the Commission declaring the
Registration Statement effective as of January 24, 1996. Our opinion expressed
in the second sentence of paragraph (15) below is based on an EDGAR filing
notice of the Commission confirming that the Prospectus Supplement was filed
with the Commission on August __, 1996 at _______________.
Our opinion expressed in the second sentence of paragraph (8) below is
based on a copy of the Subsequent Listing Application of the Company to the New
York Stock Exchange ("NYSE"), as executed by the Company and the NYSE. For
purposes of rendering our opinion in the third sentence of paragraph (8), we
have assumed that all NYSE requirements relating to the form of certificate used
to evidence the Shares are contained in the rules, policies and procedures
published by the NYSE.
In rendering the opinions expressed in paragraph (12) below as to the lack
of conflict with, or default under, the documents identified in APPENDIX B
hereto, we have relied upon the certification by certain officers of the Company
that the financial covenants contained in Section 5.8 of document number 61 in
APPENDIX B have not been violated and we do not opine as to any conflict or
violation that may arise under any financial covenants set forth in Section 5.8
of document number 61 in APPENDIX B as a result of the execution of the
Underwriting Agreement or the performance by the Company of any transaction
contemplated thereby.
In rendering the opinions expressed below, we express no opinion as to the
laws of any jurisdiction other than the United States of America, The
Commonwealth of Massachusetts, the Delaware Revised Limited Partnership Act and
the General Corporation Law of Maryland. To the extent that any other laws
govern any of the matters as to which we express an opinion herein, we have
assumed, without independent investigation, that the laws of such jurisdiction
are identical to those of The Commonwealth of Massachusetts, and we express no
opinion as to whether such assumption is reasonable or correct.
<PAGE> 33
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
August 13, 1996
Page 5
Based upon and subject to the foregoing, we are of the opinion that:
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 II 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 Trust Subsidiary has been duly formed and is validly existing
as a Massachusetts business trust under the laws of The Commonwealth of
Massachusetts. 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,
trust 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,
business trust or limited partnership, as the case may be, for the
transaction of business and is in good standing in each jurisdiction
identified in SCHEDULE III of the Underwriting Agreement, which has been
attached as APPENDIX A hereto.
5. All of the outstanding shares of capital stock of each Corporate Subsidiary
have been duly authorized and validly issued, are fully paid and
non-assessable, and all of such shares of capital stock 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 III to the Underwriting Agreement; and based solely on our review
of the Declaration of Trust of the Trust Subsidiary, all of the shares of
beneficial interest of such Trust Subsidiary are duly authorized, validly
issued, are fully paid and non-assessable and 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;
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.
<PAGE> 34
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
August 13, 1996
Page 6
6. Other than as set forth or contemplated in the Prospectus, to our
knowledge, there are no legal or governmental proceedings 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 is or may be a party or to which any property
of the Company or the Subsidiaries is or may be the subject which, if
determined adversely to the Company or the Subsidiaries, could individually
or in the aggregate reasonably be expected to have a Material Adverse
Effect; 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 Underwriters 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 the best of our knowledge, otherwise.
10. The Shares conform in all material respects to the descriptions thereof in
the Registration Statement and the Prospectus under the captions
"Description of Series B Preferred Stock," "Description of Preferred 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 By-Laws of the
Company, or (c) result in any violation of any applicable law or statute or
any order known to us, or any rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its
Subsidiaries or any of their respective Properties.
12. To the best of our knowledge, no default exists, and no event has occurred
which with notice or lapse of time, or both, would constitute a default, in
the due performance and observance of any term, covenant or condition by
the Company or any Subsidiary of any agreement or
<PAGE> 35
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
August 13, 1996
Page 7
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 Company's issued and outstanding shares of
capital stock is as set forth under the caption "Capitalization" in the
Prospectus, except for subsequent issuances, if any, pursuant to dividend
reinvestment plans, employee benefits plans and employee and director stock
option and incentive plans. 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 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 Act and the Exchange Act and as may be required
under state securities or Blue Sky laws or Sections 2710 and 2720 of the
Conduct Rules of the National Association of Securities Dealers, Inc. in
connection with the purchase and distribution of the Shares by the
Underwriters.
15. The Registration Statement has been declared effective under the Act. The
Prospectus was filed with the Commission pursuant to Rule 424 within the
applicable time period prescribed by Rule 424. To our knowledge (based
solely on oral representations of a member of the staff of the Commission
and a certificate of the Company), no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the Commission.
16. At the time the Registration Statement became effective and at the date of
the Underwriting Agreement, the Registration Statement (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 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.
<PAGE> 36
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
August 13, 1996
Page 8
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" or
entity "controlled" by an "investment company" within the meaning of the
Investment Company Act.
18. To our knowledge, no holders of securities of the Company have rights to
the registration of such securities under the Registration Statement or
otherwise registered under the Act.
19. Except as described in the Prospectus and in Section 4(aa) of the
Underwriting Agreement, to our knowledge, since the date of the Prospectus
Supplement, the Company has not granted any options, warrants or other
rights calling for the issuance of, and has made no commitments, plans or
arrangements to issue, any shares of capital stock of the Company or any
security convertible into or exchangeable or exercisable for capital stock
of the Company.
20. The Company satisfies all conditions and requirements for filing the
Registration Statement on Form S-3 under the Act.
21. 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 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.
22. 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 be
disclosed therein.
The limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process are
such that we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the documents incorporated therein by
reference and we make no representation that we have independently verified the
accuracy, completeness or fairness of such, except as expressly set forth in (a)
paragraphs (10) and (22) hereof and (b) the second numbered paragraph of the
opinion of this firm to you 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
<PAGE> 37
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
August 13, 1996
Page 9
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 & Lybrand L.L.P.,
accountants for the Company, your representatives and representatives of Cahill
Gordon & Reindel, 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 at the time the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995 was filed with the Commission
(whichever is later), or on the date of the Underwriting Agreement,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(b) No facts have come to our attention which cause us to believe that
the Prospectus (including the documents incorporated therein by reference,
but excluding the financial statements or notes thereto, financial
schedules and other financial and statistical data contained therein, as to
which we express no opinion), as of its date or the date hereof, contained
or contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
This opinion is based upon currently existing statutes, rules and
regulations and judicial decisions and is rendered as of the date hereof, and we
disclaim any obligation to advise you of any change in any of the foregoing
sources of law or subsequent developments in law or changes in facts or
circumstances which might affect any matters or opinions set forth herein.
The opinions set forth herein are rendered solely for your use and may not
be relied upon by you for any other purposes, or furnished to, quoted to, or
relied upon by, in whole or in part, any other person, firm or corporation for
any purpose, without our prior written consent, except
<PAGE> 38
Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
August 13, 1996
Page 10
that your counsel, Cahill Gordon & Reindel, may rely upon the opinions relating
to the Maryland General Corporation Law in connection with their opinion to be
delivered pursuant to Section 6(e) of the Underwriting Agreement.
Very truly yours,
GOODWIN, PROCTER & HOAR LLP
<PAGE> 39
<TABLE>
APPENDIX A
<CAPTION>
JURISDICTION PERCENTAGE OF
NAME OF OF STATES OF FOREIGN EQUITY INTEREST TITLE
SUBSIDIRY ORGANIZATION QUALIFICATION OWNED BY COMPANY EXCEPTIONS
- --------------------------------------- --------------- ------------------------- ------------------------ ------------
<S> <C> <C> <C> <C>
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, 100% None
Georgia, Illinois, Indi-
ana, Iowa, Mississippi,
New York, Ohio, Ten-
nessee, West 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, Louisi-
ana, Missouri, New
York, Ohio, Pennsylva-
nia, Texas, Utah
TriNet Essential Facilities XI, Inc. Maryland Ohio, Kansas 100% None
TriNet Essential Facilities XII, Inc. Maryland California, Florida, 100% (1)
Illinois, Louisiana, Min-
nesota, New York,
Ohio, Tennessee, Texas
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 XVII Realty Trust Massachusetts None 100% None
TriNet Essential Facilities XVIII, Inc. Maryland Texas 100% None
TriNet Essential Facilities XIX, Inc. Maryland None 100% None
TriNet Corporate Partners I, L.P. Delaware Louisiana 100%(2) None
TriNet Corporate Partners II, L.P. Delaware Texas, Tennessee 100%(3) None
TriNet Sunnyvale Partners, L.P. Delaware California 44.7%(4) None
TriNet Essential Facilities XX, Inc. Maryland California, Wisconsin 100% None
- ------------------
<FN>
(1) Common stock pledged in connection with the 1994 Mortgage Loan (as defined
in the Prospectus).
</TABLE>
<PAGE> 40
(2) Owned 1% by TriNet Essential Facilities XVI, Inc., as general partner, and
99% by TriNet Essential Facilities XV, Inc., as limited partner.
(3) Owned 1% by TriNet Essential Facilities XVIII, Inc., as general partner,
and 99% by TriNet Essential Facilities XIX, Inc., as limited partner.
(4) Owned 44.7% by TriNet Corporate Realty Trust, Inc., as general partner.
TriNet Corporate Realty Trust, Inc. does not own any of the limited
partnership interests in this partnership.
<PAGE> 41
APPENDIX B
1. Formation Agreement by and among the Company, its subsidiaries, the
Predecessor Partnerships and certain other parties, dated May 21, 1993.
(Incorporated by reference to Exhibit 2.1 to the Registration Statement on
Form S-11 of TriNet Corporate Realty Trust, Inc., Registration No.
33-74284.)
2. 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.)
3. 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.)
4. Amended and Restated Lease of certain real property located in East
Whiteland and Tredyffrin Townships, Chester County, Pennsylvania, between
Malvern Valley Investment Company, L.P., as landlord, and Unisys
Corporation, as tenant, dated as of January 17, 1991. (Incorporated by
reference to Exhibit 10.1 to the Registration Statement on Form S-11 of
TriNet Corporate Realty Trust, Inc., Registration No. 33-59836.)
5. Lease of certain real property known as Terrace Point in Muskegon,
Michigan, between Shidler/West Finance Partners II (Limited Partnership),
as landlord, and SPX Corporation, as tenant, dated November 15, 1989.
(Incorporated by reference to Exhibit 10.2 to the Registration Statement on
Form S-11 of TriNet Corporate Realty Trust, Inc., Registration No.
33-59836.)
6. Lease of certain real property known as Terrace Plaza in Muskegon,
Michigan, between Shidler/West Finance Partners II (Limited Partnership),
as landlord, and SPX Corporation, as tenant, dated November 15, 1989.
(Incorporated by reference to Exhibit 10.3 to the Registration Statement on
Form S-11 of TriNet Corporate Realty Trust Inc., Registration No.
33-59836.)
7. Form of the 34 leases between Shidler/West Finance Partners I (Limited
Partnership), as landlord, and one of Rex Radio and Television, Inc.,
Stereo Town, Inc. or Kelly & Cohen Appliances, Inc. (each a subsidiary of
Rex Stores Corporation), as tenant, each dated August 24, 1989.
(Incorporated by reference to Exhibit 10.4 to the Registration Statement on
Form S-11 of TriNet Corporate Realty Trust, Inc., Registration No.
33-59836.)
8. Form of the 34 Continuing Lease Guarantees by Rex Stores Corporation
(formerly Audio/Video Affiliates, Inc.), dated August 24, 1989.
(Incorporated by reference to Exhibit 10.5 to the Registration Statement on
Form S-11 of TriNet Corporate Realty Trust, Inc., Registration No.
33-59836.)
<PAGE> 42
9. Lease of real property located at 4000 South Racine Avenue, Chicago,
Illinois, between Metro Chicago Investment Company, as landlord, and Uarco,
Inc., as tenant, dated August 5, 1991, as amended November 25, 1991 and
November 27, 1991. (Incorporated by reference to Exhibit 10.6 to the
Registration Statement on Form S-11 of TriNet Corporate Realty Trust, Inc.,
Registration No. 33-59836.)
10. Support Agreement dated as of August 5, 1991, between Settsu Corporation
and Uarco Incorporated. (Incorporated by reference to Exhibit 10.7 to the
Registration Statement on Form S-11 of TriNet Corporate Realty Trust, Inc.,
Registration No. 33-59836.)
11. Lease of certain real property in Los Angeles, California, between
Shidler/West Finance Partners IV Limited Partnership, as landlord, and
Alpha Beta Company (formerly The Boys Markets, Inc.), as tenant, dated
August 10, 1990. (Incorporated by reference to Exhibit 10.8 to the
Registration Statement on Form S-11 of TriNet Corporate Realty Trust, Inc.,
Registration No. 33-59836.)
12. Guaranty of Lease dated as of August 10, 1990, by Food 4 Less Supermarkets,
Inc. (Incorporated by reference to Exhibit 10.9 to the Registration
Statement on Form S-11 of TriNet Corporate Realty Trust, Inc., Registration
No. 33-59836.)
13. Lease of certain real property located at 600 North Kilbourne, Chicago,
Illinois, between Westside Industrial Investments Limited Partnership, as
landlord, and Art Line, Inc., as tenant, dated September 30, 1988, as
amended November 16, 1988, August 28, 1989, November 12, 1991 and July 28,
1992. (Incorporated by reference to Exhibit 10.10 to the Registration
Statement on Form S-11 of TriNet Corporate Realty Trust, Inc., Registration
No. 33-59836.)
14. Lease of certain real property located at 3025-3121 West Weldon and 3002
North 27th Avenue, Phoenix, Arizona, among Hawaii Real Estate Services
Corporation and Weldon Avenue Investment Company, as landlord, and Lincoln
Technical Institute of Arizona, Inc. d/b/a/ Universal Technical Institute,
as tenant, dated February 16, 1989. (Incorporated by reference to Exhibit
10.11 to the Registration Statement on Form S-11 of TriNet Corporate Realty
Trust, Inc., Registration No. 33-59836.)
15. Lease Guaranty of Robert I. Sweet, Robert D. Hartman, J.W. Gribbin and
Robert Muecke dated February 16, 1989. (Incorporated by reference to
Exhibit 10.12 to the Registration Statement on Form S-11 of TriNet
Corporate Realty Trust, Inc., Registration No. 33-59836.)
16. Purchase and Sale Agreement between Caterair International Corporation and
Holman/Shidler Corporate Capital, Inc., dated as of November 30, 1992,
including Form of Lease Agreement between Holman/Shidler Corporate Capital,
Inc. and Caterair International Corporation. (Incorporated by reference to
Exhibit 10.13 to the Registration Statement on Form S-11 of TriNet
Corporate Realty Trust, Inc., Registration No. 33-59836.)
<PAGE> 43
17. Purchase Agreement dated December 22, 1992, between Rosewood Construction,
Inc. and Holman/Shidler Corporate Capital, Inc., as amended March 17, 1993.
(Incorporated by reference to Exhibit 10.14 to the Registration Statement
on Form S-11 of TriNet Corporate Realty Trust, Inc., Registration No.
33-59836.)
18. Industrial Building Lease dated July 1, 1990, between Rosewood
Construction, Inc., and Terminal Freight Handling Company, d/b/a Sears
Logistics Services, as amended July 28, 1991, January 21, 1993 and March
15, 1993. (Incorporated by reference to Exhibit 10.4 to the Registration
Statement on Form S-11 of TriNet Corporate Realty Trust, Inc., Registration
No. 33-59836.)
19. Purchase Agreement dated February 25, 1993, between ITEL Distribution
Systems, Inc. and Holman/Shidler Corporate Capital, Inc. (Incorporated by
reference to Exhibit 10.16 to the Registration Statement on Form S-11 of
TriNet Corporate Realty Trust, Inc., Registration No. 33-59836.)
20. Agreement to Issue Guaranty dated June 30, 1991, by and between ITEL
Distribution Systems, Inc. and GATX Corporation. (Incorporated by reference
to Exhibit 10.17 to the Registration Statement on Form S-11 of TriNet
Corporate Realty Trust, Inc., Registration No. 33-59836.)
21. Lease Agreement dated as of June 3, 1991, by and between ITEL Distribution
Systems, Inc. and GATX Logistics, Inc. regarding property situated at
Steelway Boulevard North (A-F), Clay, New York. (Incorporated by reference
to Exhibit 10.18 to the Registration Statement on Form S-11 of TriNet
Corporate Realty Trust, Inc., Registration No. 33-59836.)
22. Lease Agreement dated as of June 3, 1991, by and between ITEL Distribution
Systems, Inc. and GATX Logistics, Inc. regarding property situated at
Steelway Boulevard North (G), Clay, New York. (Incorporated by reference to
Exhibit 10.19 to the Registration Statement on Form S-11 of TriNet
Corporate Realty Trust, Inc., Registration No. 33-59836.)
23. Lease Agreement dated as of June 3, 1991, by and between ITEL Distribution
Systems, Inc. and GATX Logistics, Inc. regarding property situated at
Steelway Boulevard North (H), Clay, New York. (Incorporated by reference to
Exhibit 10.20 to the Registration Statement on Form S-11 of TriNet
Corporate Realty Trust, Inc., Registration No. 33-59836.)
24. Lease Agreement dated as of June 3, 1991, by and between ITEL Distribution
Systems, Inc. and GATX Logistics, Inc. regarding property situated at 4580
Steelway Boulevard South, Clay, New York. (Incorporated by reference to
Exhibit 10.21 to the Registration Statement on Form S-11 of TriNet
Corporate Realty Trust, Inc., Registration No. 33-59836.)
25. Lease Agreement dated as of June 3, 1991, by and between ITEL Distribution
Systems, Inc. and GATX Logistics, Inc. regarding property situated at Dunn
Road and Paliotti Road, Lyons, New York. (Incorporated by reference to
Exhibit 10.22 to the Registration Statement on Form S-11 of TriNet
Corporate Realty Trust, Inc., Registration No. 33-59836.)
<PAGE> 44
26. Lease Agreement dated as of June 3, 1991, by and between ITEL Distribution
Systems, Inc. and GATX Logistics, Inc. regarding property situated at
Radisson Industrial Park, Lysander, New York. (Incorporated by reference to
Exhibit 10.23 to the Registration Statement on Form S-11 of TriNet
Corporate Realty Trust, Inc., Registration No. 33-59836.)
27. Lease Agreement dated as of September 25, 1993, between TriNet Essential
Facilities X, Inc. and West Coast Liquidators, Inc. (Incorporated by
reference to Exhibit 10.1 to Form 8-K, dated September 24, 1993, of TriNet
Corporate Realty Trust, Inc., Commission File No. 1-11918.)
28. Purchase and Sale Agreement dated as of July 15, 1993, between West Coast
Liquidators, Inc. and TriNet Corporate Realty Trust, Inc., as amended.
(Incorporated by reference to Exhibit 10.2 to Form 8-K, dated September 24,
1993, of TriNet Corporate Realty Trust, Inc., Commission File No. 1-11918.)
29. Guaranty of Lease dated as of September 25, 1993, by MacFrugal's Bargains o
Close-Outs, Inc. (Incorporated by reference to Exhibit 10.3 to Form 8-K,
dated September 24, 1993, of TriNet Corporate Realty Trust, Inc.,
Commission File No. 1-11918.)
30. Lease Agreement dated August 1, 1988, between West Coast Liquidators, Inc.,
as tenant, and the Industrial Development Board of the City of New Orleans,
Louisiana, Inc., as landlord. (Incorporated by reference to Exhibit 10.27
to the Registration Statement on Form S-11, of TriNet Corporate Realty
Trust, Inc., Registration No. 33-74284.)
31. 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.)
32. 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.)
33. Purchase/Sale Agreement dated November 30, 1993, by and between BD Two,
Inc. and the Company. (Incorporated by reference to Exhibit 10.33 to the
Registration Statement on Form S-11, of TriNet Corporate Realty Trust,
Inc., Registration No. 33-74284.)
34. Lease Agreement dated October 22, 1991, between the Prentiss/Copley
Investment Group, as landlord, and PNC Mortgage Corporation of America,
Inc. (formerly Sears Mortgage Corporation), as tenant. (Incorporated by
reference to Exhibit 10.34 to the Registration Statement on Form S-11, of
TriNet Corporate Realty Trust, Inc., Registration No. 33-74284.)
35. Purchase Agreement dated October 21, 1993, between CPBP No. 2 Limited
Partnership, as tenant, and the Company, as landlord. (Incorporated by
reference to Exhibit 10.35 to the Registration Statement on Form S-11, of
TriNet Corporate Realty Trust, Inc., Registration No. 33-74284.)
<PAGE> 45
36. Corporate Office Lease dated October 13, 1988, between Centre Pointe
Business Park Limited Partnership, as Landlord, and Northern States Power
Company, as tenant, as amended. (Incorporated by reference to Exhibit 10.36
to the Registration Statement on Form S-11, of TriNet Corporate Realty
Trust, Inc., Registration No. 33-74284.)
37. Purchase Agreement dated December 15, 1993, between Volkswagen of America,
Inc., as tenant, and the Company, as landlord. (Incorporated by reference
to Exhibit 10.37 to the Registration Statement on Form S-11, of TriNet
Corporate Realty Trust, Inc., Registration No. 33-74284.)
38. Lease dated December 29, 1993, between TriNet Essential Facilities X, Inc.,
as landlord, and Volkswagen of America, Inc., as tenant (City of Industry).
(Incorporated by reference to Exhibit 10.38 to the Registration Statement
on Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No.
33-74284.)
39. Lease dated December 29, 1993, between TriNet Essential Facilities X, Inc.,
as landlord, and Volkswagen of America, Inc., as tenant (Lincolnshire).
(Incorporated by reference to Exhibit 10.39 to the Registration Statement
on Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No.
33-74284.)
40. Lease dated December 29, 1993, between TriNet Essential Facilities X, Inc.,
as landlord, and Volkswagen of America, Inc., as tenant (Jacksonville).
(Incorporated by reference to Exhibit 10.40 to the Registration Statement
on Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No.
33-74284.)
41. Reorganization Agreement dated as of May 21, 1993, between the Company and
Holman/Shidler 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.)
42. 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.)
43. 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.)
44. Indemnification Agreement dated as of June 3, 1993, among the Company,
certain of its subsidiaries, Jay H. Shidler and Robert W. Holman, Jr.
(Incorporated by reference to Exhibit 10.46 to the Registration Statement
on Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No.
33-74284.)
45. 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.)
<PAGE> 46
46. 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.)
47. 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.)
48. 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.
33-02222.)
49. 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.)
50. Purchase Agreement dated October 21, 1993, between CPBP No. 2 Limited
Partnership, as tenant, and TriNet Essential Facilities X, Inc., as
landlord. (Incorporated by reference to Exhibit 10.2 to the Current Report
on Form 8-K dated July 14, 1994 of TriNet Corporate Realty Trust, Inc.)
51. Lease Agreement between TriNet Essential Facilities X, Inc., as landlord,
and Unisys Corporation, as tenant. (Incorporated by reference to Exhibit
10.1 to the Current Report on Form 8-K dated July 14, 1994 of TriNet
Corporate Realty Trust, Inc.)
52. 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 10.1 to the Current Report on Form 8-K dated May 2,
1995 of TriNet Corporate Realty Trust, Inc.)
53. 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.)
54. 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.)
55. 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.)
56. 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.)
<PAGE> 47
57. 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.)
58. 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.)
59. 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.)
60. 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.)
61. Revolving Credit Agreement among TriNet Corporate Realty Trust, Inc., as
borrower, Morgan Guaranty Trust Company of New York, as lead agent, and
First National Bank of Boston, as managing co-agent, dated October 3, 1995.
(Incorporated by reference to Exhibit 10.1 to the Current Report on Form
8-K dated October 5, 1995 of TriNet Corporate Realty Trust, Inc.)
62. 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.
63. Indenture dated May 22, 1996 between the Company and Harris Trust and
Savings Bank.
64. Supplemental Indenture No. 1 dated May 22, 1996 between the Company and
Harris Trust and Savings Bank.
65. 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.
66. Amended and Restated Agreement of Limited Partnership between TriNet
Corporate Realty Trust, Inc., and the O'Donnell Revocable Trust, the Donald
S. Grant Revocable Trust and John W. Hopkins, dated June 26, 1996.
<PAGE> 48
ANNEX B
August , 1996
--
Smith Barney Inc.
Donaldson, Lufkin & Jenrette
Securities Corporation
c/o Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
This opinion is delivered to you in our capacity as counsel to TriNet
Corporate Realty Trust, Inc. (the "Company") in connection with the sale and
issuance by the Company of 1,300,000 shares of its 9.20% Series B Preferred
Stock, $.01 par value per share in an underwritten public offering, pursuant to
a Prospectus in a Registration Statement filed with the Securities and Exchange
Commission on Form S-3 (File No. 33-80709) and a Prospectus Supplement dated
August 8, 1996. This opinion relates to the Company's qualification for federal
income tax purposes as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code").
In rendering the following opinion, we have reviewed and relied upon a copy
of the Company's federal income tax return on Form 1120 - REIT, dated July 6,
1995, for its taxable year ended December 1994. We assume that the foregoing
return was timely filed following timely filing of application for automatic
extension of time to file such return. We have examined the Articles of
Incorporation and Bylaws of the Company, each as amended, and such other
records, certificates and documents as we have deemed necessary or appropriate
for purposes of rendering the opinions set forth herein.
We have reviewed and relied upon the Prospectus and the Prospectus
Supplement and the descriptions set forth therein, or incorporated by reference,
of the Company and its investments and activities. We have relied upon the
representations of an officer of the Company dated August __, 1996 (the
<PAGE> 49
Smith Barney Inc.
Donaldson, Lufkin & Jenrette
Securities Corporation
August __, 1996
Page 2
"Certificate"), regarding the manner in which the Company has been and will
continue to be owned and operated. We have not made an independent investigation
of any of the facts set forth in any of the above-referenced documents including
the Certificate. Except as regards the federal income tax requirements relating
to the taxation of the Company as a REIT, which is the subject of this opinion
and with regard to which officers of the Company have certified to the factual
matters relating to the Company's compliance, we assume that the Company has
been and will be operated in accordance with applicable laws and the terms and
conditions of applicable documents, and that the descriptions of the Company and
its investments, and the proposed investments, activities, operations and
governance of the Company set forth in the Registration Statement are true.
In rendering the opinions set forth herein, we have assumed (i) the
genuineness of all signatures on documents we have examined, (ii) the
authenticity of all documents submitted to us as originals, (iii) the conformity
to the original documents of all documents submitted to us as copies, (iv) the
conformity of final documents to all documents submitted to us as drafts, (v)
the authority and capacity of the individual or individuals who executed any
such documents on behalf of any person, (vi) the accuracy and completeness of
all records made available to us, and (vii) the factual accuracy of all
representations, warranties and other statements made by all parties. We have
also assumed, without investigation, that all documents, certificates,
warranties and covenants on which we have relied in rendering the opinion set
forth below including the representations contained in the Certificate, but
excluding representations made to us in prior certificates which may no longer
accurately reflect the Company's assets or operations solely on account of the
Company's having subsequently (i) acquired properties not referred to therein or
(ii) disposed of properties specifically referred to therein, as the case may
be, and that were given or dated earlier than the date of this letter continue
to remain accurate, insofar as relevant to the opinion set forth herein, from
such earlier date through and including the date of this letter.
The conclusions set forth below are based upon the Code, the Income Tax
Regulations and Procedure and Administration Regulations promulgated thereunder
and existing administrative and judicial interpretations thereof, all of which
are subject to change. No assurance can therefore be given that the federal
income tax consequences described below will not be altered in the future.
Based upon and subject to the foregoing, we are of the opinion that
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
<PAGE> 50
Smith Barney Inc.
Donaldson, Lufkin & Jenrette
Securities Corporation
August __, 1996
Page 3
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" and in the Prospectus Supplement under the
caption "Certain 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.
We express no opinion with respect to the transactions described in the
Registration Statement other than those expressly set forth herein. Moreover, as
indicated above, the Company's qualification and taxation as a REIT depends upon
the Company's ability to meet, through actual annual operating results,
distribution levels, diversity of stock ownership and the various qualification
tests imposed under the Code, the results of which will not be reviewed by us.
Accordingly, no assurance can be given that the actual results of the Company's
operations for any one taxable year will satisfy such requirements. You should
recognize that our opinion is not binding on the IRS and that the IRS may
disagree with the opinion contained herein. Although we believe that our opinion
will be sustained if challenged, there can be no assurance that this will be the
case. Except as specifically discussed above, the opinion expressed herein is
based upon the law as it currently exists. Consequently, future changes in the
law may cause the federal income tax treatment of the transactions described
herein to be materially and adversely different from that described above.
Very truly yours,
GOODWIN, PROCTER & HOAR LLP
