SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 17, 1996
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TRINET CORPORATE REALTY TRUST, INC.
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(Exact name of registrant as specified in its Charter)
Maryland 1-11918 94-3175659
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
Four Embarcadero Center, Suite 3150
San Francisco, CA 94111
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (415) 391-4300
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
Exhibit
Number Exhibit
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1 Underwriting Agreement dated May 17, 1996 relating to the
7.30% Notes due 2001 and the 7.95% Notes due 2006 which,
since this Form 8-K filing is incorporated by reference
in the Registration Statement on Form S-3, File No. 33-80709,
is set forth in full in such registration statement.
4 Form of Supplemental Indenture relating to the 7.30% Notes
due 2001 and the 7.95% Notes due 2006, which, since this
Form 8-K filing is incorporated by reference in the
Registration Statement on Form S-3, File No. 33-80709, is
set forth in full in such registration statement.
SIGNATURES
Pursuant to the requirements of the Securities 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.
Date: May 21, 1996 By: /s/ A. William Stein
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A. William Stein
Executive Vice President and Chief
Financial Officer
(Authorized Officer of the Registrant
and Principal Financial Officer)
TriNet Corporate Realty Trust, Inc.
$100,000,000 of 7.30% Notes due 2001
$50,000,000 of 7.95% Notes due 2006
Underwriting Agreement
May 17, 1996
J.P. MORGAN SECURITIES INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO. INC.
As Representatives of the several Underwriters
named in Schedule II hereto
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Dear Sirs:
TriNet Corporate Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule
II hereto (collectively, the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities"), to be issued
under the indenture specified in Schedule I hereto (the "Indenture") between the
Company and the Trustee identified in such Schedule (the "Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain securities (the "Shelf Securities") to be issued from time to time by
the Company. The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424") a
prospectus supplement specifically relating to the Securities. The
registration statement as amended to the date of this Agreement is hereinafter
referred to as the "Registration Statement" and the related prospectus covering
the Shelf Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". Any reference in this Agreement
to the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus
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(a "preliminary prospectus") previously filed with the Commission pursuant to
Rule 424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order in immediately available funds on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the third Business Day thereafter, as you and the
Company may agree in writing). Such payment will be made upon delivery to, or to
you for the respective accounts of, the Underwriters registered in such names
and in such denominations as you shall request not less than two full Business
Days prior to the date of delivery, with any transfer taxes payable in
connection with transfer to the Underwriters duly paid by the Company. As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City. The time and date of
such payment and delivery with respect to the Securities are referred to herein
as the "Closing Date." The Securities will be delivered through the book entry
facilities of The Depository Trust Company ("DTC") and will be made available
for inspection by you by 1:00 P.M. on the Business Day prior to the Closing Date
at such place in New York City as you, DTC and the Company shall agree.
4. The Company represents and warrants to each Underwriter that:
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(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act, and did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein;
(b) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, in all material respects
with the Securities Act; the Registration Statement, as amended when it became
effective, did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, as of the date hereof,
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 (i) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission thereunder (collectively, the
"Trust Indenture Act") of the Trustee and (ii) statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein;
(c) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act, and when read together with the other
information in the Prospectus, at the time the Registration Statement became
effective and as of the date hereof, did not, and at the Closing Date and during
the time period specified in Section 5(e) of this Agreement, will not, contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents are filed
with the Commission, will conform in all material respects to the requirements
of the Exchange Act, as applicable, and when read together with the other
information in the Prospectus, at the time the Registration Statement became
effective and as of the date hereof, did not, and at the Closing Date and during
the time period specified in Section 5(e) of this Agreement, will not, contain
any untrue statement of a material fact or
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omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(d) the historical financial statements and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus, comply in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and present fairly the
consolidated financial position of the Company and its consolidated subsidiaries
as of the dates indicated and the results of their operations and the changes in
their cash flows for the periods specified; the financial statements with
respect to the Properties (as defined in the Prospectus) acquired by the
Company, together with related notes, as incorporated by reference in the
Registration Statement or the Prospectus, present fairly a summary of gross
income and direct operating expenses and a summary of gross income, as the case
may be, of such Properties for the indicated periods; the foregoing financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and the supporting schedules included
or incorporated by reference in the Registration Statement present fairly the
information required to be stated therein; the pro forma financial information,
and the related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus comply in all material respects with
the applicable requirements of the Securities Act and the Exchange Act, as
applicable; the assumptions used in preparing such pro forma information are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions referred to therein; and the other financial and statistical
information and data set forth in the Registration Statement and the Prospectus
are accurately presented in all material respects and prepared on a basis
consistent with the books and records of the Company and its consolidated
subsidiaries;
(e) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
properties, financial position, stockholders' equity or results of operations of
the Company and the Subsidiaries (as defined below), taken as a whole, other-
wise than as set forth or contemplated in the Prospectus; and except as set
forth or contemplated in the Prospectus neither the Company nor any of the
Subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) material to the Company and the Subsidiaries,
taken as a whole;
(f) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of Maryland, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, other than where
the failure to be so qualified or in good standing would not (1) have a material
adverse effect on the condition, financial or otherwise, the earnings, business
affairs, prospects, properties, stockholders' equity or results of operations of
the Company and the Subsidiaries, taken as a whole, (2)
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adversely affect the issuance, validity or enforceability of the Securities or
the enforceability of the Indenture or (3) adversely affect the consummation of
any of the transactions contemplated by this Agreement (each of (1), (2) and (3)
above, a "Material Adverse Effect") (which jurisdictions of foreign
qualification are identified in Schedule III hereto); except for invest- ments
in the Subsidiaries, in short-term investment securities and in other securities
as de- scribed in the Registration Statement or Prospectus, the Company has no
direct or indirect equity or other interest in any corporation, partnership,
trust or other entity; each of the Company's subsidiaries (within the meaning of
Regulation S-X under the Securities Act) is identified on Schedule IV 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 busi- ness 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 in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a Material Adverse Effect (which jurisdictions of
organization and foreign qualification are identified in Schedule IV hereto);
all the outstanding shares of capital stock or beneficial interests of each
Subsidiary have been duly authorized and validly issued, are fully-paid and
non-assessable; except as disclosed in Schedule IV hereto, all the outstanding
shares of capital stock, 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;
(g) this Agreement has been duly authorized, executed and delivered by
the Company;
(h) the Securities have been duly authorized, and, when issued,
authenticated and delivered pursuant to this Agreement and the Indenture will
have been duly and validly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and entitled to
the benefits provided by the Indenture, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium
or similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity); the Indenture
has been duly authorized and, when executed and delivered by the Company, will
constitute a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or in equity);
the Indenture has been duly qualified under the Trust Indenture Act; and the
Securities and the Indenture will conform to the statements relating thereto
contained in the Prospectus;
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(i) neither the Company nor any of the Subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under (1) its Articles of Incorporation or Certificate of Incorporation,
as the case may be (in each case as amended to the date of this Agreement), (2)
By-Laws (as amended to the date of this Agreement) or (3) any indenture,
mortgage, deed of trust, loan agreement, partnership agreement or other agree-
ment or instrument or obligation to which the Company or such Subsidiary is a
party or by which it or any of its properties is bound, except, with respect to
clauses (2) and (3), for violations and defaults which individually or in the
aggregate would not have a Material Adverse Effect; the issue and sale of the
Securities and the performance by the Company of all of its obligations under
the Securities, the Indenture and this Agreement and the consummation of the
transactions therein and herein contemplated will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, partnership agreement or
other material agreement or instrument to which the Company or any Subsidiary is
a party or by which the Company or any Subsidiary is bound or to which any of
the property or assets of the Company or any Subsidiary is subject, except for
such conflicts, breaches, defaults or violations which individually or in the
aggregate would not have a Material Adverse Effect, nor will any such action
result in any violation of the provisions of the Articles of Incorporation or
the By-Laws of the Company or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Securities
or the consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such consents, approvals, authorizations,
orders, registrations or qualifications (x) as have been obtained under the
Securities Act, the Trust Indenture Act (y) as may be required under state
securities or Blue Sky laws or the By-laws or Corporate Financing Rule of the
National Association of Securities Dealers, Inc. (the "NASD") in connection with
the purchase and distribution of the Securities by the Underwriters or (z) the
failure of which to obtain would not have a Material Adverse Effect;
(j) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of the Subsidiaries is or may be
a party or to which any property of the Company or any of the Subsidiaries is or
may be the subject which, if determined adversely to the Company, could
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect; there are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which are not
filed or described as required; and the descriptions of the terms of all such
contracts and documents contained or incorporated by reference in the Regis-
tration Statement or Prospectus are complete and correct in all material
respects;
(k) the Company's authorized, issued and outstanding capital stock as
of March 31, 1996 is as set forth in the Prospectus; and all of the issued
shares of capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable;
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(l) the Company and the Subsidiaries have good and marketable title in
fee simple to each Property described in the Prospectus as owned by them in fee
simple and, in each case free of any lien, mortgage, pledge, charge or
encumbrance of any kind except those described in the Prospectus or which do not
materially affect or detract from the value of such Property or interfere with
the use made and proposed to be made of such Property by the Company and the
Subsidiaries; and TriNet XVII Realty Trust (the "Trust"), a Subsidiary of the
Company, does not own any of the Properties and does not own any assets which
are material to the Company on a consolidated basis;
(m) except as disclosed in the Prospectus, each entity identified in
the Prospectus as a tenant of any Property, or a subtenant thereof, is in actual
possession of such Property under a lease to such tenant or, if applicable, a
sublease to such subtenant; except as disclosed in the Prospectus, each such
lease is in full force and effect and neither the Company nor any of the
Subsidiaries has notice of any defense to the obligations of the tenant
thereunder or any claim asserted or threatened by any person or entity, which
claim, if sustained, would have a Material Adverse Effect; and except as
disclosed in the Prospectus, the lessor under each lease has complied with its
obligations under such lease in all material respects and neither the Company
nor any of the Subsidiaries has notice of any default by the tenant under such
lease which, individually or in the aggregate with other such defaults, would
have a Material Adverse Effect;
(n) the mortgages and deeds of trust encumbering the Properties (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;
(o) the Company and the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are customary in the business in which they are engaged and is
adequate for the value of their properties; all policies of insurance insuring
the Company or the Subsidiaries or their respective business, assets, em-
ployees, officers, trustees and directors, as the case may be, are in full force
and effect; the Company and the Subsidiaries are in compliance with the terms of
such policies and instruments in all material respects and there are no claims
by the Company or by the Subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under a
reservation of rights clause, other than claims which individually or in the
aggregate would not have a Material Adverse Effect;
(p) the Company has filed all federal, state and foreign income tax
returns which have been required to be filed and has paid all taxes indicated by
said returns and all assessments received by it to the extent that such taxes
have become due and are not being contested in good faith;
(q) the Company and each Subsidiary own, possess and have obtained all
material licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and
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have made all material declarations and filings with, all federal, state, local
and other govern- mental 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 Compa- ny or any Subsidiary has received any notice of any proceeding
relating to revocation or modi- fication of any such license, permit,
certificate, consent, order, approval or other authoriza- tion, except as
described in the Prospectus and except, in each case, where such revocation or
modification would not have a Material Adverse Effect; and the Company and each
Subsidiary are in compliance with all laws, rules and regulations relating to
the conduct of their respective businesses as conducted as of the date hereof,
except where noncompliance with such laws, rules or regulations would not have a
Material Adverse Effect;
(r) to the Company's knowledge, Coopers & 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 Securities Act;
(s) no relationship, direct or indirect, exists between or among the
Company or the Subsidiaries on the one hand, and the directors, trustees,
officers, stockholders, customers or suppliers of the Company or the
Subsidiaries on the other hand, which is required by the Securities Act to be
described in the Registration Statement and the Prospectus which is not so
described;
(t) the Company has never been, is not now, and immediately after
giving effect to the sale of the Securities under this Agreement will not be, an
"investment company" or entity "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(u) with respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim against the Company,
the Company has met the requirements for qualification as a real estate
investment trust ("REIT") under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Code"), and the Company's present and
contemplated operations, assets and income continue to meet such requirements;
(v) the conditions for the use by the Company of a registration
statement on Form S-3 set forth in the General Instructions on Form S-3 have
been satisfied and the Company is entitled to use such form for the transactions
contemplated herein;
(w) other than as disclosed in the Prospectus, the Company has no
knowledge of (a) the unlawful presence of any hazardous substances, hazardous
materials, toxic substances or waste materials (collectively, "Hazardous
Materials") on any of the Properties or of (b) any unlawful spills, release,
discharges or disposal of Hazardous Materials that have occurred or
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are presently occurring from the Properties as a result of any construction on
or operation and use of the Properties, which presence or occurrence would
individually or in the aggregate have a Material Adverse Effect;
(x) other than as disclosed in the Prospectus, the Company and the
Subsidiaries (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 approv-
als required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not individually or in the
aggregate have a Material Adverse Effect;
(y) in the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and the Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review and other than as
described in the Prospectus, the Company has reasonably concluded that such
associated costs and liabilities would not, individually or in the aggregate,
have a Material Adverse Effect;
(z) subsequent to the respective dates as of which information is
given in the Prospectus, (i) the Company has not purchased any of its
outstanding shares of capital stock, or declared, paid or otherwise made any
dividend or distribution of any kind on its shares of capital stock other than
regular periodic dividends on such shares; and (ii) there has not been any
material change in the shares of capital stock of the Company or any material
change in the short-term debt or long-term debt of the Company and the
Subsidiaries on a consolidated basis, except as described in or contemplated by
the Prospectus;
(aa) the Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the
Securities, and the Company has not distributed and has agreed not to distribute
any prospectus or other offering material in connection with the offering and
sale of the Securities other than the Prospectus, any preliminary prospectus
filed with the Commission or other material permitted by the Securities Act;
(ab) 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
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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 account- ability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences; and
(ac) 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.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus in a form approved by you with the
Commission within the applicable time period prescribed for such filing by Rule
424; and to furnish copies of the Prospectus to the Underwriters in New York
City as soon as practicable following the execution and delivery of this
Agreement in such quantities as you may reasonably request;
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto,
including, in each case, to the extent requested by such Underwriter or such
counsel, exhibits and documents incorporated by reference therein, and, during
the period mentioned in paragraph (e) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as you may reasonably request, as
soon as practicable after their having been filed with the Commission;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus during the period referred to in paragraph (e)
below, to furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to file any
such proposed amendment or supplement to which you reasonably object;
(d) to file timely all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale
of the Securities, and during such same period, to advise you and counsel for
the Underwriters promptly, and to confirm such advice in writing, (i) when any
amendment to the Registration Statement shall have become effective, (ii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threatening of
any proceeding for that purpose, (iv) of the occurrence of any event, within the
period referenced in paragraph (e) below, as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the
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circumstances when the Prospectus is delivered to a purchaser, not misleading,
and (v) of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any such stop
order or notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period after the first date of the public offering
of the Securities as in the opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be delivered in connection with
sales by an Underwriter or dealer, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and furnish,
at the expense of the Company, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Securities may
have been sold by you on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to continue such qualification in effect so long as reasonably
required for distribution of the Securities; provided that the Company shall not
be required to file a general consent to service of process in any jurisdiction
or to make any undertaking with respect to the conduct of its business;
(g) to make generally available to its security holders and to you as
soon as practicable but not later than 15 months after the effective date of
the Registration Statement (as defined in Rule 158(c) of the Commission
promulgated under the Securities Act) an earnings statement covering a period of
at least twelve months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to furnish to you
copies of all reports or other communications (financial or other) furnished
generally to holders of Securities, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange;
(i) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of or guaranteed by
the Company which are substantially similar to the Securities without your prior
written consent;
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(j) to use the net proceeds of the offering of the Securities in the
manner specified in the Prospectus under "Use of Proceeds;"
(k) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay all costs and expenses
incident to the performance of its obligations hereunder, including without
limiting the generality of the foregoing, all costs and expenses (i) incident to
the preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each case
all exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the Under-
writers may designate (including fees and disbursements of counsel for the
Underwriters), (iv) in connection with the listing of the Securities on any
stock exchange, (v) related to any filing with National Association of
Securities Dealers, Inc., (vi) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the Inden-
ture, the Blue Sky Memorandum and Blue Sky Survey and the furnishing to
Underwriters and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein provided, (vii) payable
to rating agencies in connection with the rating of the Securities and (viii)
any expenses incurred by the Company in connection with a "road show"
presentation to potential investors; and
(l) to the best of its knowledge, the Company has complied and will
endeavor to comply with all provisions of Florida H.B. 1771, Section 1,
paragraph 17,130 of Florida Securities and Investor Act, and all regulations
thereunder relating to issuers doing business with Cuba.
6. The several obligations of the Underwriters hereunder to purchase
the Securities are subject to the performance by the Company of its obligations
hereunder and to the following conditions:
(a) the Prospectus shall have been filed with the Commission pursuant
to Rule 424 within the applicable time period prescribed for such filing by such
Rule; no stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) the representations and warranties of the Company contained herein
shall be true and correct in all material respects on and as of the Closing Date
as if made on and as of the Closing Date and the Company shall have complied in
all material respects with all agree- ments and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
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(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any material change in the outstanding
shares of capital stock of the Company or any material change in the short-term
debt or long-term debt of the Company and the Subsidiaries on a consolidated
basis or any material adverse change or any development involving a material
adverse change, in or affecting the general affairs, business, prospects,
management, properties, financial position, stockholders' equity or results of
operations of the Company and the Subsidiaries taken as a whole, in each case,
otherwise than as set forth or contemplated in the Prospectus, the effect of
which in your judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(e) you shall have received on and as of the Closing Date a
certificate of the President, Chief Executive Officer or Executive Vice
President of the Company and the Chief Financial or Accounting Officer of the
Company satisfactory to you to the effect set forth in subsections (a) through
(c) of this Section and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, properties, financial position, stockholders' equity or results of
operations of the Company and the Subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus.
(f) Cahill Gordon & Reindel, counsel for the Company (with respect to
clauses (vi), (vii), (viii), (ix), (x), (xi)(c), (xiii), (xiv), (xvi), (xvii)
and (xviii) only) and Goodwin, Procter & Hoar L.L.P., counsel for the Company
(with respect to clauses (i), (ii), (iii), (iv), (v), (xi) (in the case of
clause (xi)(c), with respect to the Maryland General Corporation Law only),
(xii), (xiii) (in the case of clause (xiii), with respect to the Maryland
General Corporation Law only) and (xv) only), shall have furnished to you its
written opinion, dated the Closing Date, in form and substance satisfactory to
you, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Maryland, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus as then amended or supplemented;
(ii) the Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of
each other jurisdiction identified in Schedule III hereto;
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(iii) each of the Subsidiaries (other than the Trust) has been
duly incorporated or organized and is validly existing as a corporation or
limited partnership, as the case may be, in good standing under the laws of
their jurisdictions of organization (which jurisdictions of organization
are listed in Schedule IV hereto), with corporate or partnership power
and authority, as the case may be, to own its properties and conduct its
business as described in the Prospectus as amended or supplemented;
(iv) each of the Subsidiaries has been duly qualified as a
foreign corporation, 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 identified in Schedule IV hereto;
(v) all of the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable, and, except as set forth in Schedule IV hereto, all of
such shares of capital stock are owned of record by the Company, directly
or indirectly, free and clear of any perfected security interests or, to
such counsel's knowledge, any other liens, encumbrances, security interests
and claims; and based solely on such counsel's review of the limited
partnership agreements of each Subsidiary that is a partnership, all of
the partnership interests of such Subsidiaries are owned by the Company,
directly or indirectly, free and clear of any perfected security interests
or, to such counsel's knowledge, any other liens, encumbrances, security
interests and claims, except as set forth in Schedule IV hereto;
(vi) other than as set forth or contemplated in the Prospectus,
to such counsel's knowledge, there are no legal or governmental proceedings
pending (in which service or notice of process has been received by an
employee or other representative of the Company or any Subsidiary), or
threatened to which the Company or the Subsidiaries is or may be a party
or to which any property of the Company or the Subsidiaries is or may be
the subject which, if determined adversely to the Company or the Subsid-
iaries, could individually or in the aggregate reasonably be expected to
have a Material Adverse Effect; and such counsel does not know of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described
as required;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the Securities have been duly authorized and executed by
the Company and when authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, enforceable in accordance with their terms, except that the
enforceability thereof may be limited by or subject to (a) bankruptcy,
insolvency,
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reorganization, fraudulent conveyance or transfer, moratorium or similar
laws now or hereafter in effect relating to creditors' rights generally and
(b) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or equity);
(ix) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company enforceable against the Company in accordance
with its terms, except that the enforceability thereof may be limited by
or subject to (a) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws now or hereafter in
effect relating to creditors' rights generally and (b) general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or equity); and the Indenture has been duly qualified
under the Trust Indenture Act;
(x) the Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement and the
Prospectus under the captions "Description of Notes" and "Description of
Debt Securities";
(xi) the issue and sale of the Securities and the performance by
the Company of its obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not (a) conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
filed by the Company under the Securities Act or the Exchange Act (which
indentures, mortgages, deeds of trust, loan agreements or other agreements
or instruments have been identified to such counsel as being operative
and in full force and effect) to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary is bound or to which any of
the property or assets of the Company or any Subsidiary is subject, except
for such conflicts, breaches or defaults which individually or in the
aggregate would not have a Material Adverse Effect, (b) result in any
violation of the provisions of the Articles of Incorporation or the By-Laws
of the Company or (c) result in any violation of any applicable law or
statute or any order known to such counsel or any rule or regulation of any
court or governmental agency or body having jurisdiction over the Company,
its Subsidiaries or any of then respective properties;
(xii) the Company's authorized, 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 benefit plans and employee and director stock
option and incentive plans; and all of the issued shares of capital stock
of the Company are duly authorized, validly issued, fully paid and
nonassessable;
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<PAGE>
(xiii) no consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation of
the other transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders, registrations or
qualifications as have been obtained under the Securities Act and the Trust
Indenture Act and as may be required under state securities or Blue Sky
laws or the By-Laws or Corporate Financing Rule of the NASD in connection
with the purchase and distribution of the Securities by the Underwriters;
(xiv) the information in the Prospectus under the caption
"Federal Income Tax Considerations" and under the first paragraph of the
caption "Restrictions on Transfers of Capital Stock" (except for the last
sentence thereof) to the extent that it constitutes statements of law,
descriptions of statutes, rules or regulations, summaries of documents or
legal conclusions, has been reviewed by such counsel and is correct in all
material respects and presents fairly the information required to be
disclosed therein;
(xv) to such counsel's knowledge based solely upon
representations of the Company, the Company (i) has qualified to be taxed
as a real estate investment trust pursuant to Sections 856 through 860 of
the Internal Revenue Code, for the taxable years ended December 31, 1993
through December 31, 1995 and (ii) presently has organization, ownership,
operations, assets and income such that the Company will be in a position
under present law to so qualify for the fiscal year ending December 31,
1996;
(xvi) the Registration Statement has been declared effective
under the Securities Act, the Indenture has been qualified under the
Trust Indenture Act, the Prospectus was filed with the Commission pursuant
to Rule 424 within the applicable time period prescribed by Rule 424 and to
such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
is pending or threatened by the Commission;
(xvii) the Registration Statement and the Prospectus and any
amendments and supplements thereto (except for the financial statements and
other financial and statistical data included or incorporated by
reference therein as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Securities
Act; and
(xviii) the Company is not, and will not become as a result of
the consummation of the transactions contemplated by this Agreement, an
"investment company" or entity "controlled" by an "investment company"
within the meaning of the Investment Company Act.
In rendering such opinions, such counsel may rely (A) in the case of
Cahill Gordon & Reindel, as to matters involving the application of laws (1)
other than the laws of the United
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States and the States of New York and Maryland, to the extent specified in such
opinion, upon an opinion or opinions (in form and substance reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably acceptable to
Underwriters' counsel, familiar with the applicable laws and (2) of the State of
Maryland, to the extent specified in such opinion, upon the opinion of Goodwin,
Procter & Hoar; and (B) in each case, as to matters of fact, on certificates of
responsible officers of the Company and certificates or other written statements
of officials of jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company.
Cahill Gordon & Reindel shall also state that such counsel
participated in conferences with officers and other representatives of the
Company and representatives of the independent public accountants for the
Company and representatives of the Underwriters and counsel for the Underwriters
at which the contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus (including the documents incorporated therein by reference), on the
basis of the foregoing (relying as to materiality to a large extent upon the
opinions of officers and other representatives of the Company), no facts have
come to such counsel's attention which lead such counsel to believe that the
Registration Statement, including the documents incorporated therein by
reference, at the date of filing of the Company's Annual Report on Form 10-K for
the year ended December 31, 1995, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus,
including the documents incorporated therein by reference, at the date of the
Prospectus and on the date of such counsel's opinion, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need not comment with respect to the financial statements and
schedules and other financial or statistical data included in the Registration
Statement and the Prospectus (including the documents incorporated therein by
reference)).
(g) on the date of this Agreement and on the Closing Date, Coopers &
Lybrand L.L.P. shall have furnished to you letters, dated such date, in form and
substance reasonably satisfactory to you, containing statements and information
of the type customarily included in accountants "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus,
including, without limitation, a statement that they have made a review of the
unaudited financial statements for the three months ended March 31, 1996
included or incorporated by reference in the Registration Statement in
accordance with the standards established by the American Institute of Certified
Public Accountants;
(h) you shall have received on and as of the Closing Date an opinion
of Skadden, Arps, Slate, Meagher & Flom, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related
17
<PAGE>
matters as the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters; in rendering their opinions as aforesaid,
such counsel may rely, as to matters of Maryland law, on the opinion or opinion
of Goodwin, Procter & Hoar L.L.P.; and
(i) on or prior to the Closing Date, the Company shall have
furnished to you such further certificates and documents confirming the
representations and warranties contained herein and related matters as you shall
reasonably request.
The opinions and certificates mentioned in this Agreement shall
be deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to you and to Skadden, Arps, Slate, Meagher &
Flom, counsel for the Underwriters.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; provided, that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of the person controlling
such Underwriter) from whom the person asserting any such losses, claims,
damages or liabilities purchased Securities if such untrue statement or omission
or alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) and, if
required by law, a copy of the Prospectus (as so amended or supplemented)
shall not have been furnished to such person at or prior to the written
confirmation of the sale of such Securities to such person, provided further
that the Company shall have complied with its obligations under Section 5(b)
hereof with respect to the Prospectus (as so amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use in the Registration
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Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. For purposes of this Section 7 and Sections 4(a) and
4(b), the only written information furnished by the Underwriters to the Company
expressly for use in the Registration Statement and the Prospectus is (a) the
information in the last paragraph on the cover page of the Prospectus
specifically relating to the Securities, (b) the information regarding
stabilization on the inside front cover page of the Prospectus specifically
relating to the Securities, (c) the information in the third sentence under the
caption "Use of Proceeds" and (d) the information in the third and sixth
paragraphs and the second sentence of the fourth paragraph, under the caption
"Underwriting" in the Prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by J.P.
Morgan Securities Inc. and any such separate firm for the Company, its
directors, its officers who sign the Registration Statement and such control
persons of the Company or authorized representatives shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date
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of such settlement. If it is ultimately determined that an Indemnified Person
was not entitled to indemnification hereunder, such Indemnified Person shall be
responsible for repaying or reimbursing the Indemnifying Person for any
amounts so paid or incurred by such Indemnifying Person pursuant to this
paragraph. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters,
in each case, as reflected on the cover page of the Prospectus, bear to the
aggregate public offering price of the Securities. The relative fault of the
Company on the one hand and the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an Under-
writer be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public
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exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amounts of
Securities set forth opposite their names in Schedule II hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations, warranties and covenants of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other person controlling
the Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters by notice given to the
Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets in the United States or any calamity or crisis in
the United States that, in the judgment of the Underwriters is material and
adverse and which, in the judgment of the Underwriters, makes it impracticable
to market the Securities on the terms and in the manner contemplated in the
Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriter or Underwriters shall be obligated severally
in the proportions that the principal amount of Securities set forth opposite
their respective names in Schedule II hereto bears to the aggregate principal
amount of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Securities that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the
21
<PAGE>
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
reasonable out-of-pocket expenses (including the fees and expenses of their
counsel) incurred by the Underwriters in connection with this Agreement or the
offering of Securities contemplated hereunder and the Company shall then be
under no further liability to any Underwriter except as provided in Sections
5(k) and 7 of this Agreement.
11. This Agreement shall inure to the benefit of and be legally
binding upon the Company, the Underwriters, any controlling persons referred to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchas-
er of Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by J.P. Morgan Securities Inc. alone on behalf of the Underwriters,
and any such action taken by you jointly or by J.P. Morgan Securities Inc. alone
shall be binding upon the Underwriters. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Underwriters, c/o J.P. Morgan Securities
Inc., 60 Wall Street, New York, New York 10260, Attention: Syndicate
Department,with a copy to Skadden, Arps, Slate, Meagher & Flom, 919 Third
Avenue, New York, New York 10022, Attention: Gregory A. Fernicola, Esq. Notices
to the Company shall be given to it at TriNet Corporate Realty Trust, Inc., Four
Embarcadero Center, Suite 3150, San Francisco, CA 94111, Attention: Mark S.
Whiting, President, with a copy to Cahill Gordon & Reindel, 80 Pine Street, New
York, New York 10005, Attention: Gerald S. Tanenbaum.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
22
<PAGE>
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
TRINET CORPORATE REALTY TRUST, INC.
By: ____________________________________
Name:
Title:
Accepted: May 17, 1996
J.P. MORGAN SECURITIES INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO. INC.
By: J.P. MORGAN SECURITIES INC.
By: ______________________________________
Name:
Title:
For themselves and as Representatives of the
several Underwriters named in Schedule II hereto
<PAGE>
SCHEDULE I
Representatives: J.P. Morgan Securities Inc., Goldman,
Sachs & Co. and Merrill Lynch & Co.
Underwriting Agreement
dated: May 17, 1996
Registration Statement No.: 33-80709
Title of Securities: 7.30% Notes Due 2001 (the "2001 Notes") and
7.95% Notes Due 2006 (the "2006 Notes" and,
together with the 2001 Notes, the
"Securities")
Aggregate principal amount: $100,000,000 of 2001 Notes and $50,000,000
of 2006 Notes
Price to Public: 99.764% of the principal amount of the 2001 Notes
and 99.853% of the principal amount of the 2006
Notes, in each case, plus accrued interest, if any,
from May 22, 1996
Purchase Price: 99.139% of the principal amount of the 2001 Notes
and 99.153% of the principal amount of the 2006
Notes, in each case, plus accrued interest, if any,
from May 22, 1996
Indenture: Indenture to be dated as of May 22, 1996 and the
Supplemental Indenture to be dated as of May 22,
1996, both between TriNet Corporate Realty Trust,
Inc. and Harris Trust and Savings Bank
Maturity: May 15, 2001 with respect to the 2001 Notes and
May 15, 2006 with respect to the 2006 Notes
Interest Rate: 7.30% with respect to the 2001 Notes and 7.95%
with respect to the 2006 Notes
<PAGE>
Interest Payment Dates: May 15 and November 15, commencing November
15, 1996
Optional Redemption
Provisions: The Securities are redeemable at any time at the
option of the Company, in whole or in part, at a
redemption price equal to the sum of (i) the
principal amount of the Notes being redeemed plus
accrued interest thereon to the redemption date and
(ii) the Make-Whole Amount (as defined in the
Prospectus Supplement relating to the Securities
dated May 17, 1996), if any
Sinking Fund Provisions: None
Other Significant
Provisions: None
Closing Date and Time of
Delivery: The Closing will be held at 10:00 a.m. (E.S.T.) on
May 22, 1996, with the Securities being delivered
through the book-entry facilities of The Depository
Trust Company ("DTC") and made available for
checking by DTC and the Trustee at least 24 hours
prior to the Closing Date
Closing Location: Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, NY 10022
2
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount Principal Amount
of 2001 Notes of 2006 Notes
Underwriter to Be Purchased to Be Purchased
- ----------- ---------------- ----------------
<S> <C> <C>
J.P. Morgan Securities Inc. ........................ $ 60,000,000 $ 30,000,000
Merrill Lynch, Pierce, Fenner & Smith............... 20,000,000 8,750,000
Incorporated
Goldman, Sachs & Co. ............................... 15,000,000 8,750,000
Commerzbank Capital Markets Corporation............. 1,000,000 500,000
Dresdner Securities (USA) Inc....................... 1,000,000 500,000
First Chicago Capital Markets, Inc.................. 1,000,000 500,000
NationsBanc Capital Markets, Inc.................... 1,000,000 500,000
Nesbitt Burns Securities Inc........................ 1,000,000 500,000
Total......................................... $100,000,000 $50,000,000
</TABLE>
<PAGE>
SCHEDULE III
STATES OF
FOREIGN QUALIFICATION OF
TRINET CORPORATE REALTY TRUST, INC.
California
Florida
Pennsylvania
2
<PAGE>
SCHEDULE IV
<TABLE>
<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 Florida, New York, 100%
None
Pennsylvania, Illinois,
Texas, California, Indi-
ana, Georgia, Colorado,
Ohio, Vermont, Louisi-
ana, Utah, Mississippi
TriNet Essential Facilities XI, Inc. Maryland Ohio, Kansas 100%
None
TriNet Essential Facilities XII, Inc. Maryland Ohio, Louisiana, Min- 100%
(1)
nesota, California,
Florida, Illinois, Texas,
Tennessee, New York
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%
None
TriNet Corporate Partners II, L.P. Delaware Texas, Tennessee 100%
None
TriNet Essential Facilities XX, Inc. Maryland California
- ------------------
(1) Common Stock pledged in connection with the 1994 Mortgage Loan (as defined in the Prospectus).
</TABLE>
3
TRINET CORPORATE REALTY TRUST, INC.
Issuer
to
HARRIS TRUST AND SAVINGS BANK
Trustee
-------------------------
Supplemental Indenture No. 1
Dated as of May 22, 1996
-------------------------
$100,000,000
of
7.30% Notes due 2001
and
$50,000,000
of
7.95% Notes due 2006
<PAGE>
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, dated as of May 22, 1996 (the
"Supplemental Indenture"), between TRINET CORPORATE REALTY TRUST, INC., a
corporation duly organized and existing under the laws of the State of Maryland
(herein called the "Company"), and Harris Trust and Savings Bank, an Illinois
banking corporation duly organized and existing under the laws of the State of
Illinois, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore delivered to the Trustee an Indenture dated
as of May 22, 1996 (the "Senior Indenture"), a form of which has been filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, as an exhibit to the Company's Registration Statement on Form S-3
(Registration No. 33-80709), providing for the issuance from time to time of
Senior Debt Securities of the Company (the "Securities").
Section 301 of the Senior Indenture provides for various matters with
respect to any series of Securities issued under the Senior Indenture to be
established in an indenture supplemental to the Senior Indenture.
Section 901(7) of the Senior Indenture provides for the Company and
the Trustee to enter into an indenture supplemental to the Senior Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Senior Indenture.
The Board of Directors of the Company has duly adopted resolutions
authorizing the Company to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of each of
the series of Securities provided for herein by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Notes or of either series thereof, as follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Senior Indenture.
This Supplemental Indenture constitutes an integral part of the Senior
Indenture.
<PAGE>
<PAGE>
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Senior Indenture; and
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of
this Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at
the time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Annual Service Charge" for any period means the aggregate interest
expense for such period in respect of, and the amortization during such period
of any original issue discount of, Indebtedness of the Company and its
Subsidiaries and the amount of dividends which are payable during such period in
respect of any Disqualified Stock.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in the City of
New York or in the City of Chicago are authorized or required by law, regulation
or executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations of the Company and its Subsidiaries plus amounts which
have been deducted, and minus amounts which have been added, for the following
(without duplication): (i) interest on Indebtedness of the Company and its
Subsidiaries, (ii) provision for taxes of the Company and its Subsidiaries based
on income, (iii) amortization of debt discount, (iv) provisions for gains and
losses on properties and property depreciation and amortization, (v) the effect
of any noncash charge resulting from a change in accounting principles in
determining Earnings from Operations for such period and (vi) amortization of
deferred charges.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 311 West Monroe
Street, Chicago, Illinois 60606 and, for
2
<PAGE>
<PAGE>
purposes of the Place of Payment provisions of Sections 305 and 1002 of the
Senior Indenture, is located at c/o Harris Trust Company of New York, 77 Water
Street, New York, New York 10005.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by the terms of such Capital Stock (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for common
stock), (ii) is convertible into or exchangeable or exercisable for
Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the
holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not Disqualified Stock
or the redemption price of which may, at the option of such Person, be paid in
Capital Stock which is not Disqualified Stock), in each case on or prior to the
Stated Maturity of the Notes.
"Earnings from Operations" for any period means net earnings excluding
gains and losses on sales of investments, extraordinary items, and property
valuation losses, net as reflected in the financial statements of the Company
and its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or security
interest of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder by the Commission.
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis as in effect from time to time;
provided that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Indebtedness" of the Company or any Subsidiary means any indebtedness
of the Company or any Subsidiary, whether or not contingent, in respect of (i)
borrowed money or evidenced by bonds, notes, debentures or similar instruments
whether or not such indebtedness is secured by any Encumbrance existing on
property owned by the Company or any Subsidiary, (ii) indebtedness for borrowed
money of a Person other than the Company or a Subsidiary which is secured by any
Encumbrance existing on property owned by the Company or any Subsidiary, to the
extent of the lesser of (x) the amount of indebtedness so secured and (y) the
fair market value of the property subject to such Encumbrance, (iii) the
reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the balance deferred
and unpaid of the purchase price of any property or services, except any such
balance that constitutes an accrued expense or trade payable, or all conditional
sale obligations or obligations under any title retention agreement, (iv) the
principal amount of all obligations of the Company or any Subsidiary with
respect to redemption, repayment or other repurchase of any Disqualified
Stock, (v) any lease of property by the
3
<PAGE>
<PAGE>
Company or any Subsidiary as lessee which is reflected on the Company's
consolidated balance sheet as a capitalized lease in accordance with GAAP, or
(vi) interest rate swaps, caps or similar agreements and foreign exchange
contracts, currency swaps or similar agreements, to the extent, in the case of
items of indebtedness under (i) through (iii) above, that any such items (other
than letters of credit) would appear as a liability on the Company's
consolidated balance sheet in accordance with GAAP, and also includes, to the
extent not otherwise included, any obligations by the Company or any Subsidiary
to be liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), Indebtedness of
another Person (other than the Company or any Subsidiary) (it being understood
that Indebtedness shall be deemed to be incurred by the Company or any
Subsidiary whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any 2001 Note or 2006 Note, as the case may be, the
excess, if any, of (i) the aggregate present value as of the date of such
redemption or accelerated payment of each dollar of principal being redeemed or
paid and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in respect of
such dollar if such redemption or accelerated payment had not been made,
determined by discounting, on a semi-annual basis, such principal and interest
at the Reinvestment Rate (determined on the third Business Day preceding the
date such notice of Redemption is given or declaration of acceleration is made)
from the respective dates on which such principal and interest would have been
payable if such redemption or accelerated payment had not been made, over (ii)
the aggregate principal amount of the respective 2001 Notes or 2006 Notes being
redeemed or paid.
"Notes" has the meaning specified in Section 2.1 hereof.
"Reinvestment Rate" means .25% (twenty-five one hundredths of one
percent) plus the arithmetic mean of the yields under the respective headings
"This Week" and "Last Week" published in the Statistical Release under the
caption "Treasury Constant Maturities" for the maturity (rounded to the nearest
month) corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly corresponds to
such maturity, yields for the two published maturities most closely
corresponding to such maturity shall be calculated pursuant to the immediately
preceding sentence and the Reinvestment Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding in each of such
relevant periods to the nearest month. For such purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination of the
Make-Whole Amount, then such other reasonably comparable index which shall be
designated by the Company.
4
<PAGE>
<PAGE>
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests of which are owned, directly
or indirectly, by such Person. For the purposes of this definition, "voting
equity securities" means equity securities having voting power for the election
of directors, whether at all times or only so long as no senior class of
security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the Undepreciated
Real Estate Assets and (ii) all other assets of the Company and its Subsidiaries
determined in accordance with GAAP (but excluding accounts receivable and
intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated
Real Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Company and its Subsidiaries not subject to an Encumbrance
for borrowed money, determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"2001 Notes" has the meaning specified in Section 2.1 hereof.
"2006 Notes" has the meaning specified in Section 2.1 hereof.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
"Unsecured Indebtedness" means Indebtedness which is not secured by
any Encumbrance upon any of the properties of the Company or any Subsidiary.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1. Title of the Securities.
There shall be a series of Securities designated the "7.30% Notes due
2001" (the "2001 Notes") and a series of Securities designated the "7.95% Notes
due 2006" (the "2006 Notes" and, together with the 2001 Notes, the "Notes").
SECTION 2.2. Limitation on Aggregate Principal Amount.
The aggregate principal amount of the 2001 Notes shall be limited to
$100,000,000, and, except as provided in this Section and in Section 306 of the
Senior Indenture, the Company shall not execute and the Trustee shall not
authenticate or deliver 2001 Notes in excess of such aggregate principal amount.
5
<PAGE>
<PAGE>
The aggregate principal amount of the 2006 Notes shall be limited to
$50,000,000, and, except as provided in this Section and in Section 306 of the
Senior Indenture, the Company shall not execute and the Trustee shall not
authenticate or deliver 2006 Notes in excess of such aggregate principal amount.
Nothing contained in this Section 2.2 or elsewhere in this
Supplemental Indenture, or in the Notes, is intended to or shall limit execution
by the Company or authentication or delivery by the Trustee of Notes under the
circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and 1305 of
the Senior Indenture.
SECTION 2.3. Interest and Interest Rates; Maturity Date of Notes.
The 2001 Notes will bear interest at a rate of 7.30% per annum and the
2006 Notes will bear interest at a rate of 7.95% per annum, in each case, from
May 22, 1996 or from the immediately preceding Interest Payment Date to which
interest has been paid or duly provided for, payable semi-annually in arrears on
May 15 and November 15 of each year, commencing November 15, 1996 (each, an
"Interest Payment Date"), to the Person in whose name such Note is registered at
the close of business on May 1 or November 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date (each, a "Regular
Record Date"). Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. The interest so payable on any Note which is
not punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the Person in whose name such Note is
registered on the relevant Regular Record Date, and such defaulted interest
shall instead be payable to the Person in whose name such Note is registered on
the Special Record Date or other specified date determined in accordance with
the Senior Indenture.
If any Interest Payment Date or Maturity falls on a day that is not a
Business Day, the required payment shall be made on the next Business Day as if
it were made on the date such payment was due and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or Maturity, as the case may be.
The 2001 Notes will mature on May 15, 2001 and the 2006 Notes will
mature on May 15, 2006.
SECTION 2.4. Limitations on Incurrence of Indebtedness.
(a) The Company will not, and will not permit any Subsidiary to, incur
any Indebtedness if, immediately after giving effect to the incurrence of such
additional Indebtedness and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Indebtedness of the Company and
its Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 55% of the sum of (without duplication) (i) the Total Assets of the
Company and its Subsidiaries as of the end of the calendar quarter covered in
the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Commission (or, if such filing is
not permitted under the Exchange Act, with the Trustee) prior to the incurrence
of such additional Indebtedness and (ii) the purchase price of any real estate
assets or mortgages receivable acquired, and the amount of any
6
<PAGE>
<PAGE>
securities offering proceeds received (to the extent such proceeds were not used
to acquire real estate assets or mortgages receivable or used to reduce
Indebtedness), by the Company or any Subsidiary since the end of such calendar
quarter, including those proceeds obtained in connection with the incurrence of
such additional Indebtedness.
(b) In addition to the limitation set forth in subsection (a) of this
Section 2.4, the Company will not, and will not permit any Subsidiary to, incur
any Indebtedness if the ratio of Consolidated Income Available for Debt Service
to the Annual Service Charge for the four consecutive fiscal quarters most
recently ended prior to the date on which such additional Indebtedness is to be
incurred shall have been less than 2.0:1, on a pro forma basis after giving
effect thereto and to the application of the proceeds therefrom, and calculated
on the assumption that (i) such Indebtedness and any other Indebtedness incurred
by the Company and its Subsidiaries since the first day of such four-quarter
period and the application of the proceeds therefrom, including to refinance
other Indebtedness, had occurred at the beginning of such period; (ii) the
repayment or retirement of any other Indebtedness by the Company and its
Subsidiaries since the first day of such four-quarter period had been repaid or
retired at the beginning of such period (except that, in making such
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such period); (iii) in the case of Acquired Indebtedness or
Indebtedness incurred in connection with any acquisition since the first day of
such four-quarter period, the related acquisition had occurred as of the first
day of such period with the appropriate adjustments with respect to such
acquisition being included in such pro forma calculation; and (iv) in the case
of any acquisition or disposition by the Company or its Subsidiaries of any
asset or group of assets since the first day of such four-quarter period,
whether by merger, stock purchase or sale, or asset purchase or sale, such
acquisition or disposition or any related repayment of Indebtedness had occurred
as of the first day of such period with the appropriate adjustments with respect
to such acquisition or disposition being included in such pro forma calculation.
(c) In addition to the limitations set forth in subsections (a) and
(b) of this Section 2.4, the Company will not, and will not permit any
Subsidiary to, incur any Indebtedness secured by any Encumbrance upon any of the
property of the Company or any Subsidiary if, immediately after giving effect to
the incurrence of such additional Indebtedness and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Indebtedness
of the Company and its Subsidiaries on a consolidated basis which is secured by
any Encumbrance on property of the Company or any Subsidiary is greater than
40% of the sum of (without duplication) (i) the Total Assets of the Company and
its Subsidiaries as of the end of the calendar quarter covered in the Company's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
most recently filed with the Commission (or, if such filing is not permitted
under the Exchange Act, with the Trustee) prior to the incurrence of such
additional Indebtedness and (ii) the purchase price of any real estate assets or
mortgages receivable acquired, and the amount of any securities offering
proceeds received (to the extent that such proceeds were not used to acquire
real estate assets or mortgages receivable or used to reduce Indebtedness), by
the Company or any Subsidiary since the end of such calendar quarter, including
those proceeds obtained in connection with the incurrence of such additional
Indebtedness.
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(d) The Company and its Subsidiaries may not at any time own Total
Unencumbered Assets equal to less than 185% of the aggregate outstanding
principal amount of the Unsecured Indebtedness of the Company and its
Subsidiaries on a consolidated basis.
(e) For purposes of this Section 2.4, Indebtedness shall be deemed to
be "incurred" by the Company or a Subsidiary whenever the Company or such
Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
SECTION 2.5. Redemption.
The Notes may be redeemed at any time at the option of the Company, in
whole or in part, at a redemption price equal to the sum of (i) the principal
amount of the Notes being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make-Whole Amount, if any, with respect to such
Notes (the "Redemption Price").
SECTION 2.6. Places of Payment.
The Places of Payment where the Notes may be presented or surrendered
for payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Company in respect of the
Notes and the Senior Indenture may be served shall be in (i) the Borough of
Manhattan, The City of New York, New York, and the office or agency for such
purpose shall initially be located at c/o Harris Trust Company of New York, 77
Water Street and (ii) the City of Chicago, Illinois and the office or agency for
such purpose shall initially be located at Harris Trust and Savings Bank, 311
West Monroe Street, Chicago, Illinois 60606.
SECTION 2.7. Method of Payment.
Payment of the principal of and interest on the Notes will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York (which shall initially be an office or
agency of the Trustee), in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company, payments of
principal and interest on the Notes (other than payments of principal and
interest due at Maturity) may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer to an account maintained by the Person entitled thereto
located within the United States.
SECTION 2.8. Currency.
Principal and interest on the Notes shall be payable in Dollars.
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SECTION 2.9. Registered Securities; Global Form.
The Notes shall be issuable and transferable in fully registered form
as Registered Securities, without coupons. The 2001 Notes and the 2006 Notes
shall each be issued in the form of one or more permanent Global Securities. The
depository for the Notes shall be The Depository Trust Company ("DTC"). The
Notes shall not be issuable in definitive form except as provided in Section 305
of the Senior Indenture.
SECTION 2.10. Form of Notes.
The 2001 Notes shall be substantially in the form attached as Exhibit
A hereto. The 2006 Notes shall be substantially in the form attached as Exhibit
B hereto.
SECTION 2.11. Registrar and Paying Agent.
The Trustee shall initially serve as Registrar and Paying Agent for
the Notes.
SECTION 2.12. Defeasance.
The provisions of Sections 1402 and 1403 of the Senior Indenture,
together with the other provisions of Article Fourteen of the Senior Indenture,
shall be applicable to the Notes. The provisions of Section 1403 of the Senior
Indenture shall apply to the covenants set forth in Sections 2.4 and 2.15 of
this Supplemental Indenture and to those covenants specified in Section 1403 of
the Senior Indenture.
SECTION 2.13. Events of Default
The provisions of clause (5) of Section 501 of the Senior Indenture as
applicable with respect to the Notes shall be deemed to be amended and restated
in their entirety to read as follows:
(5) default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor), having an
aggregate principal amount outstanding of at least $10,000,000, whether such
indebtedness now exists or shall hereafter be created, which default shall have
resulted in such indebtedness becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there shall have been
given written notice, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; or
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The provisions of Section 501 of the Senior Indenture as applicable
with respect to the Notes shall be further deemed to be amended by renumbering
existing clause (8) to be clause (9) and by adding the following new clause (8):
(9) the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Company or any of its Subsidiaries in
an aggregate amount (excluding amounts covered by insurance) in excess of
$10,000,000 and such judgements, orders or decrees remain undischarged, unstayed
and unsatisfied in an aggregate amount (excluding amounts covered by insurance)
in excess of $10,000,000 for a period of 30 consecutive days; or
SECTION 2.14. Acceleration of Maturity; Rescission and Annulment.
The provisions of the first paragraph of Section 502 of the Senior
Indenture as applicable with respect to the Notes shall be deemed to be amended
and restated in their entirety to read as follows:
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of, and the Make-Whole
Amount, if any, on, all the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders), and upon any such declaration such principal or specified
portion thereof shall become immediately due and payable. If an Event of Default
with respect to the Securities of any series set forth in Section 501(6) of the
Senior Indenture occurs and is continuing, then in every such case all the
Securities of that series shall become immediately due and payable, without
notice to the Company, at the principal amount thereof (or, if any Securities
are Original Issue Discount Securities or Indexed Securities, such portion of
the principal as may be specified in the terms thereof) plus accrued interest to
the date the Securities of that series are paid plus the Make-Whole Amount, if
any, on the Securities of that series.
SECTION 2.15. Provision of Financial Information.
Whether or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, the Company will, to the extent permitted under the Exchange Act,
file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Section 13 or 15(d) if the Company were so subject, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Company would have been required so
to file such documents if the Company were so subject.
The Company will also in any event (x) within 15 days of each Required
Filing Date (i) if the Company is not then subject to Section 13 or 15(d) of the
Exchange Act, transmit by mail to all Holders, as their names and addresses
appear in the Security
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Register, without cost to such Holders, copies of the annual reports and
quarterly reports which the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company
were subject to such Sections, and (ii) file with the Trustee copies of annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Company were subject to such Sections and (y) if filing such
documents by the Company with the Commission is not permitted under the Exchange
Act, promptly upon written request and payment of the reasonable cost of
duplication and delivery, supply copies of such documents to any prospective
Holder.
SECTION 2.16. Waiver of Certain Covenants.
Notwithstanding the provisions of Section 1009 of the Senior
Indenture, the Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1008, inclusive, of
the Senior Indenture, with Sections 2.4 and 2.15 of this Supplemental Indenture
and with any other term, provision or condition with respect to the Notes or
either series thereof (except any such term, provision or condition which could
not be amended without the consent of all Holders of the Notes or such series
thereof, as applicable), if before or after the time for such compliance the
Holders of at least a majority in principal amount of all outstanding Notes or
such series thereof, as applicable, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant
or condition. Except to the extent so expressly waived, and until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Senior Indenture.
Except as expressly modified or amended hereby, the Senior Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and each Note shall be governed by and
construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
TRINET CORPORATE REALTY TRUST, INC.
By:_____________________________________
Name:
Title:
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:____________________________________
Name:
Title:
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Exhibit A to
Supplemental Indenture
Unless this Security is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), 55 Water Street, New
York, New York, to the Company (as defined below) or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
This Security is a Global Security within the meaning set forth in the Indenture
hereinafter referred to and is registered in the name of DTC or a nominee of
DTC. This Security is exchangeable for Securities registered in the name of a
person other than DTC or its nominee only in the limited circumstances described
in the Indenture, and may not be transferred except as a whole by DTC to a
nominee of DTC or another nominee of DTC or by DTC or its nominee to a successor
Depository or its nominee.
Registered No. ________ PRINCIPAL AMOUNT
CUSIP No.: __________ $100,000,000
TRINET CORPORATE REALTY TRUST, INC.
7.30% NOTE DUE 2001
TRINET CORPORATE REALTY TRUST, INC., a corporation duly organized and
existing under the laws of the State of Maryland (herein referred to as the
"Company" which term shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of ONE HUNDRED
MILLION DOLLARS on May 15, 2001 and to pay interest on the outstanding principal
amount thereon from May 22, 1996, or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on May 15 and November 15 in each year, commencing November 15, 1996,
at the rate of 7.30% per annum, until the entire principal hereof is paid or
made available for payment. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture, be
paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date for such interest which shall be the May 1
or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may either be paid to the Person in whose name this
Security is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of the Securities not more than 15 days and not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and
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upon such notice as may be required by such exchange, all as more fully provided
in the Indenture. Payment of the principal of and interest on this Security will
be made at the office or agency maintained for that purpose in the City of New
York, New York, or elsewhere as provided in the Indenture, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payments of principal and interest on the Notes (other
than payments of principal and interest due at Maturity) may be made (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account of the
Person entitled thereto located within the United States.
Securities of this series are one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of May 22, 1996, as
supplemented by Supplemental Indenture No. 1, dated as of May 22, 1996 (as so
supplemented, herein called the "Indenture"), between the Company and Harris
Trust and Savings Bank (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are authenticated and delivered. This Security is one of the series
designated in the first page thereof, limited in aggregate principal amount to
$100,000,000.
Securities of this series may be redeemed at any time at the option of
the Company, in whole or in part, upon notice of not more than 60 nor less than
30 days prior to the Redemption Date, at a redemption price equal to the sum of
(i) the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions apply to this Security.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have
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failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any interest on or after the respective due dates
expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and Make-Whole Amount,
if any) and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of
(and Make-Whole Amount, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or
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not this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced hereby or thereby, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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IN WITNESS WHEREOF, TRINET CORPORATE REALTY TRUST, INC. has caused
this instrument to be duly executed under its corporate seal.
Dated:
TRINET CORPORATE REALTY TRUST, INC.
By:____________________________________
Name:
Title:
[Corporate Seal]
Attest:
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:_____________________________________
Authorized Signatory
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
:---------------------------------:
: :...........................................
:---------------------------------:
..............................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
..............................................................................
the within Security of TriNet Corporate Realty Trust, Inc. and hereby does
irrevocably constitute and appoint
...................................................................... Attorney
to transfer said Security on the books of the within-named Company with full
power of substitution in the premises.
Dated: ........................ ..........................................
..........................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
A-6
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Exhibit B to
Supplemental Indenture
Unless this Security is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), 55 Water Street, New
York, New York, to the Company (as defined below) or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
This Security is a Global Security within the meaning set forth in the Indenture
hereinafter referred to and is registered in the name of DTC or a nominee of
DTC. This Security is exchangeable for Securities registered in the name of a
person other than DTC or its nominee only in the limited circumstances described
in the Indenture, and may not be transferred except as a whole by DTC to a
nominee of DTC or another nominee of DTC or by DTC or its nominee to a successor
Depository or its nominee.
Registered No. ________ PRINCIPAL AMOUNT
CUSIP No.: __________ $50,000,000
TRINET CORPORATE REALTY TRUST, INC.
7.95% NOTE DUE 2006
TRINET CORPORATE REALTY TRUST, INC., a corporation duly organized and
existing under the laws of the State of Maryland (herein referred to as the
"Company" which term shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of FIFTY
MILLION DOLLARS on May 15, 2006 and to pay interest on the outstanding principal
amount thereon from May 22, 1996, or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on May 15 and November 15 in each year, commencing November 15, 1996,
at the rate of 7.95% per annum, until the entire principal hereof is paid or
made available for payment. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture, be
paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date for such interest which shall be the May 1
or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may either be paid to the Person in whose name this
Security is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of the Securities not more than 15 days and not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. Payment
of the principal of and interest on this Security will be made at the office or
agency maintained for that purpose in the City of New York, New York, or
elsewhere as provided in the Indenture, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payments of principal and interest on the Notes (other than
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payments of principal and interest due at Maturity) may be made (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account of the
Person entitled thereto located within the United States.
Securities of this series are one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of May 22, 1996, as
supplemented by Supplemental Indenture No. 1, dated as of May 22, 1996 (as so
supplemented, herein called the "Indenture"), between the Company and Harris
Trust and Savings Bank (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are authenticated and delivered. This Security is one of the series
designated in the first page thereof, limited in aggregate principal amount to
$50,000,000.
Securities of this series may be redeemed at any time at the option of
the Company, in whole or in part, upon notice of not more than 60 nor less than
30 days prior to the Redemption Date, at a redemption price equal to the sum of
(i) the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the Company with certain
conditions set forth in the Indenture, which provisions apply to this Security.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any interest on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
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<PAGE>
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and Make-Whole Amount,
if any) and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of
(and Make-Whole Amount, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced hereby or thereby, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Company or of any successor, either directly or through the Company or
any successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
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All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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IN WITNESS WHEREOF, TRINET CORPORATE REALTY TRUST, INC. has caused
this instrument to be duly executed under its corporate seal.
Dated:
TRINET CORPORATE REALTY TRUST, INC.
By:_____________________________________
Name:
Title:
[Corporate Seal]
Attest:
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:____________________________________
Authorized Signatory
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
- ------------------------------------:
:.........................................
- ------------------------------------:
..............................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
.............................................................................
the within Security of TriNet Corporate Realty Trust, Inc. and hereby does
irrevocably constitute and appoint
.................................................................... Attorney
to transfer said Security on the books of the within-named Company with full
power of substitution in the premises.
Dated: ........................ ..........................................
..........................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
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