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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
TriNet Corporate Realty Trust, Inc.
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(Exact name of registrant as specified in its charter)
Maryland 94-3175659
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
Four Embarcadero Center, Suite 3150, San Francisco, CA 94111
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(Address of principal executive offices) (Zip Code)
If this Form relates to the If this Form relates to the registration
registration of a class of debt of a class of debt securities and is to
securities and is effective upon become effective simultaneously with
filing pursuant to General the effectiveness of a concurrent please
Instruction A(c)(1) check the registration statement under the
following box. [ ] Securities Act of 1933 pursuant to
General Instruction A(c)(2) please check
the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of Class to be so registered which each class is to be registered
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8% Series C Cumulative
Preferred Stock, par value $.01
per share New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
Not Applicable
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(title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
A description of the 8% Series C Cumulative Preferred Stock, par value
$.01 per share of the Registrant is contained in a Rule 424(b) Prospectus
Supplement supplementing the Registrant's Registration Statement on Form S-3,
No. 333-19137, which became effective on January 9, 1997, which Prospectus
Supplement shall be deemed to be incorporated herein by reference for all
purposes.
Item 2. EXHIBITS
The securities described herein are to be registered on the New York
Stock Exchange, on which other securities of the Registrant are registered.
Accordingly, the following exhibits, required in accordance with Part I to the
Instructions as to Exhibits on Form 8-A, have been duly filed with the New York
Stock Exchange:
(1) Form of Articles Supplementary to Articles of Amendment and
Restatement Establishing and Fixing the Rights and
Preferences of a Series of Shares of Preferred Stock
(Series C Preferred Stock).
(2) Form of Articles Supplementary to Articles of Amendment and
Restatement Establishing and Fixing the Rights and
Preferences of a Series of Shares of Preferred Stock
(Series B Preferred Stock).
(3) Articles Supplementary to Articles of Amendment and
Restatement Establishing and Fixing the Rights and
Preferences of a Series of Shares of Preferred Stock of
Registrant (Series A Preferred Stock).
(4) Articles of Amendment and Restatement of Registrant.
(5) Amended and Restated By-laws of Registrant. (Incorporated
by reference to Exhibit 3.1(ii) of the Registration
Statement on Form S-11 of TriNet Corporate Realty Trust,
Inc., Registration No. 33-59836.)
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
TriNet Corporate Realty Trust, Inc.
By: /s/ Debra Hansen Paul
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Debra Hansen Paul
Vice President and Assistant Secretary
October 3, 1997
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EXHIBIT 1
TRINET CORPORATE REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF A SERIES OF SHARES OF PREFERRED STOCK
TriNet Corporate Realty Trust, Inc., a Maryland corporation (the
"Corporation"), certifies to the Secretary of State of Maryland that:
FIRST: Pursuant to the authority expressly vested in the Board of Directors of
the Corporation by Article VII of its Articles of Amendment and Restatement, as
heretofore amended (which, as hereafter restated or amended from time to time,
are together with these Articles Supplementary herein called the "Charter"), the
Board of Directors has, by resolution, duly divided and classified 4,600,000
shares of the Preferred Stock of the Corporation into a series designated 8%
Series C Cumulative Preferred Stock and has provided for the issuance of such
series.
SECOND: The preferences, rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms and conditions of redemption of the shares
of such series of Preferred Stock are as follows:
(1) DESIGNATION AND NUMBER. A series of Preferred Stock, designated the "8%
Series C Cumulative Preferred Stock" (the "Series C Preferred"), is hereby
established. The number of shares of the Series C Preferred shall be 4,600,000.
(2) RANK. The Series C Preferred shall, with respect to dividend rights and
rights upon liquidation, dissolution or winding up of the Corporation, rank (a)
senior to all classes or series of Common Stock of the Corporation, and to all
equity securities the terms of which specifically provide that such equity
securities rank junior to such Series C Preferred; (b) on a parity with the
Corporation's 9.20% Series B Cumulative Preferred Stock (the "Series B
Preferred") and 93/8% Series A Cumulative Preferred Stock (the "Series A
Preferred") and all other equity securities issued by the Corporation the terms
of which specifically provide that such equity securities rank on a parity with
the Series C Preferred; and (c) junior to all equity securities issued by the
Corporation the terms of which specifically provide that such equity securities
rank senior to the Series C Preferred. The term "equity securities" shall not
include convertible debt securities.
(3) DIVIDENDS.
(a) Holders of the then outstanding shares of Series C Preferred shall
be entitled to receive, when and as declared by the Board of Directors, out of
funds legally available for the payment of dividends, cumulative preferential
cash dividends at the rate of 8% of the $25.00
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liquidation preference per annum (equivalent to a fixed annual amount of $2.00
per share). Such dividends shall be cumulative from the first date on which any
Series C Preferred is issued and shall be payable quarterly in arrears on or
before March 15, June 15, September 15 and December 15 of each year or, if not a
business day, the next succeeding business day (each, a "Dividend Payment
Date"). The first dividend, which will be paid on December 15, 1997, will be for
less than a full quarter. Such dividend and any dividend payable on the Series C
Preferred for any partial dividend period will be computed on the basis of a
360-day year consisting of twelve 30-day months. Dividends will be payable to
holders of record as they appear in the stock records of the Corporation at the
close of business on the applicable record date, which shall be the first day of
the calendar month on which the applicable Dividend Payment Date falls or on
such other date designated by the Board of Directors of the Corporation for the
payment of dividends that is not more than 30 nor less than 10 days prior to
such Dividend Payment Date (each, a "Dividend Record Date").
(b) No dividends on shares of Series C Preferred shall be declared by
the Board of Directors of the Corporation or paid or set apart for payment by
the Corporation at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series C Preferred
shall accrue whether or not the terms and provisions set forth in Section 3(b)
hereof at any time prohibit the current payment of dividends, whether or not the
Corporation has earnings, whether or not there are funds legally available for
the payment of such dividends and whether or not such dividends are declared.
Accrued but unpaid dividends on the Series C Preferred will accumulate as of the
Dividend Payment Date on which they first become payable.
(d) Except as provided in Section 3(e) below, no dividends will be
declared or paid or set apart for payment on any Common Stock of the Corporation
or any series of Preferred Stock ranking, as to dividends, on a parity with or
junior to the Series C Preferred (other than a dividend in shares of the
Corporation's Common Stock or in shares of any series of Preferred Stock ranking
junior to the Series C Preferred as to dividends and upon liquidation) for any
period unless full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof is
set apart for such payment on the Series C Preferred for all past dividend
periods and the then current dividend period.
(e) When dividends are not paid in full (or a sum sufficient for such
full payment is not so set apart) upon the Series C Preferred and the shares of
any other series of Preferred Stock ranking on a parity as to dividends with the
Series C Preferred, all dividends declared upon the Series C Preferred and any
other series of Preferred Stock ranking on a parity as to dividends with the
Series C Preferred shall be declared pro rata so that the amount of dividends
declared per share of Series C Preferred and such other series of Preferred
Stock shall in all cases bear to each other the same ratio that accrued
dividends per share on the Series C Preferred and such other series of Preferred
Stock (which shall not include any accrual in
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respect of unpaid dividends for prior dividend periods if such Preferred Stock
does not have a cumulative dividend) bear to each other. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on Series C Preferred which may be in arrears.
(f) Except as provided in the immediately preceding paragraph, unless
full cumulative dividends on the Series C Preferred have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods and the
then current dividend period, no dividends (other than in shares of Common Stock
or in shares of any series of Preferred Stock ranking junior to the Series C
Preferred as to dividends and upon liquidation) shall be declared or paid or set
aside for payment nor shall any other distribution be declared or made upon the
Common Stock, or any Preferred Stock of the Corporation ranking junior to or on
a parity with the Series C Preferred as to dividends or upon liquidation, nor
shall any shares of Common Stock, or any shares of Preferred Stock of the
Corporation ranking junior to or on a parity with the Series C Preferred as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any such shares) by the Corporation (except by conversion
into or exchange for other capital stock of the Corporation ranking junior to
the Series C Preferred as to dividends and upon liquidation).
(g) Any dividend payment made on shares of the Series C Preferred
shall first be credited against the earliest accrued but unpaid dividend due
with respect to such shares which remains payable. Holders of the Series C
Preferred shall not be entitled to any dividend, whether payable in cash,
property or stock in excess of full cumulative dividends on the Series C
Preferred as described above.
(4) LIQUIDATION PREFERENCE.
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, the holders of shares of Series C
Preferred then outstanding are entitled to be paid out of the assets of the
Corporation legally available for distribution to its stockholders a liquidation
preference of $25.00 per share, plus an amount equal to any accrued and unpaid
dividends to the date of payment, before any distribution of assets is made to
holders of Common Stock or any series of Preferred Stock of the Corporation that
ranks junior to the Series C Preferred as to liquidation rights.
(b) In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of the Corporation
are insufficient to pay the amount of the liquidating distributions on all
outstanding shares of Series C Preferred and the corresponding amounts payable
on all shares of other classes or series of capital stock of the Corporation
ranking on a parity with the Series C Preferred in the distribution of assets,
then the holders of the Series C Preferred and all other such classes or series
of capital stock shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled.
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(c) After payment of the full amount of the liquidating distributions
to which they are entitled, the holders of Series C Preferred will have no right
or claim to any of the remaining assets of the Corporation.
(d) Written notice of any such liquidation, dissolution or winding up
of the Corporation, stating the payment date or dates when, and the place or
places where, the amounts distributable in such circumstances shall be payable,
shall be given by first class mail, postage pre-paid, not less than 30 nor more
than 60 days prior to the payment date stated therein, to each record holder of
the Series C Preferred at the respective addresses of such holders as the same
shall appear on the stock transfer records of the Corporation.
(e) The consolidation or merger of the Corporation with or into any
other corporation, trust or entity or of any other corporation with or into the
Corporation, or the sale, lease or conveyance of all or substantially all of the
property or business of the Corporation, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Corporation.
(5) REDEMPTION.
(a) Right of Optional Redemption. The Series C Preferred is not
redeemable prior to October 8, 2002. However, in order to ensure that the
Corporation remains a qualified real estate investment trust ("REIT") for
Federal income tax purposes, the Series C Preferred will be subject to the
provisions of Article IX of the Charter. Pursuant to Article IX, Series C
Preferred owned by a stockholder in excess of the Ownership Limit will
automatically be exchanged for shares of Excess Stock and the Corporation will
have the right to purchase Excess Stock from the holder. On and after October 8,
2002, the Corporation, at its option and upon not less than 30 nor more than 60
days' written notice, may redeem shares of the Series C Preferred, in whole or
in part, at any time or from time to time, for cash at a redemption price of
$25.00 per share, plus all accrued and unpaid dividends thereon to the date
fixed for redemption (except as provided in Section 5(c) below), without
interest. If less than all of the outstanding Series C Preferred is to be
redeemed, the Series C Preferred to be redeemed shall be selected pro rata (as
nearly as may be practicable without creating fractional shares) or by any other
equitable method determined by the Corporation.
(b) Limitations on Redemption.
(i) The redemption price of the Series C Preferred (other than
the portion thereof consisting of accrued and unpaid dividends) is payable
solely out of the sale proceeds of other capital stock of the Corporation, which
may include other series of Preferred Stock, and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, interest, participation or
other ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options to
purchase any of the foregoing.
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(ii) Unless full cumulative dividends on all shares of Series C
Preferred shall have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for all past
dividend periods and the then current dividend period, no shares of Series C
Preferred shall be redeemed unless all outstanding shares of Series C Preferred
are simultaneously redeemed, and the Corporation shall not purchase or otherwise
acquire directly or indirectly any shares of Series C Preferred (except by
exchange for capital stock of the Corporation ranking junior to the Series C
Preferred as to dividends and upon liquidation); provided, however, that the
foregoing shall not prevent the purchase by the Corporation of shares of Series
C Preferred in order to ensure that the Corporation remains qualified as a REIT
for Federal income tax purposes or the purchase or acquisition of shares of
Series C Preferred pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding shares of Series C Preferred.
(c) Rights to Dividends on Shares Called for Redemption. Immediately
prior to any redemption of Series C Preferred, the Corporation shall pay, in
cash, any accumulated and unpaid dividends through the redemption date, unless a
redemption date falls after a Dividend Record Date and prior to the
corresponding Dividend Payment Date, in which case each holder of Series C
Preferred at the close of business on such Dividend Record Date shall be
entitled to the dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation will make no payment or
allowance for unpaid dividends, whether or not in arrears, on Series C Preferred
which is redeemed.
(d) Procedures for Redemption.
(i) Notice of redemption will be (A) given by publication in a
newspaper of general circulation in the City of New York, such publication to be
made once a week for two successive weeks commencing not less than 30 nor more
than 60 days prior to the redemption date, and (B) mailed by the Corporation,
postage prepaid, not less than 30 nor more than 60 days prior to the redemption
date, addressed to the respective holders of record of the Series C Preferred to
be redeemed at their respective addresses as they appear on the stock transfer
records of the Corporation. No failure to give such notice or any defect thereto
or in the mailing thereof shall affect the validity of the proceedings for the
redemption of any shares of Series C Preferred except as to the holder to whom
notice was defective or not given.
(ii) In addition to any information required by law or by the
applicable rules of any exchange upon which Series C Preferred may be listed or
admitted to trading, such notice shall state: (A) the redemption date; (B) the
redemption price; (C) the number of shares of Series C Preferred to be redeemed;
(D) the place or places where the Series C Preferred is to be surrendered for
payment of the redemption price; and (E) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. If less than all of the
Series C Preferred held by any holder is to be redeemed, the notice mailed to
such holder shall also specify the number of shares of Series C Preferred held
by such holder to be redeemed.
(iii) If notice of redemption of any shares of Series C Preferred
has been given and if the funds necessary for such redemption have been set
aside by the Corporation in
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trust for the benefit of the holders of any shares of Series C Preferred so
called for redemption, then from and after the redemption date dividends will
cease to accrue on such shares of Series C Preferred, such shares of Series C
Preferred shall no longer be deemed outstanding and all rights of the holders of
such shares will terminate, except the right to receive the redemption price.
Holders of Series C Preferred to be redeemed shall surrender such Series C
Preferred at the place designated in such notice and, upon surrender in
accordance with said notice of the certificates for shares of Series C Preferred
so redeemed (properly endorsed or assigned for transfer, if the Corporation
shall so require and the notice shall so state), such shares of Series C
Preferred shall be redeemed by the Corporation at the redemption price plus any
accrued and unpaid dividends payable upon such redemption. In case less than all
the shares of Series C Preferred represented by any such certificate are
redeemed, a new certificate or certificates shall be issued representing the
unredeemed shares of Series C Preferred without cost to the holder thereof.
(iv) The deposit of funds with a bank or trust corporation for
the purpose of redeeming Series C Preferred shall be irrevocable except that:
(A) the Corporation shall be entitled to receive from
such bank or trust corporation the interest or other earnings, if any, earned on
any money so deposited in trust, and the holders of any shares redeemed shall
have no claim to such interest or other earnings; and
(B) any balance of monies so deposited by the
Corporation and unclaimed by the holders of the Series C Preferred entitled
thereto at the expiration of two years from the applicable redemption dates
shall be repaid, together with any interest or other earnings thereon, to the
Corporation, and after any such repayment, the holders of the shares entitled to
the funds so repaid to the Corporation shall look only to the Corporation for
payment without interest or other earnings.
(e) Application of Article IX. The shares of Series C Preferred are
subject to the provisions of Article IX of the Charter, including, without
limitation, the provision for the redemption of Excess Stock (as defined in such
Article). In addition to the redemption rights set forth in Article IX of the
Charter, Excess Stock issued upon exchange of shares of Series C Preferred
pursuant to such Article may be redeemed, in whole or in part, at any time when
outstanding shares of Series C Preferred are being redeemed, for cash at a
redemption price of $25.00 per share, plus all accrued and unpaid dividends on
the shares of Series C Preferred, which were exchanged for such Excess Stock,
through the date of such exchange, without interest. Such Excess Stock shall be
redeemed in such proportion and in accordance with such procedures as shares of
Series C Preferred are being redeemed.
(f) Status of Redeemed Shares. Any shares of Series C Preferred that
shall at any time have been redeemed shall, after such redemption, have the
status of authorized but unissued Preferred Stock, without designation as to
series until such shares are once more designated as part of a particular series
by the Board of Directors.
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(6) VOTING RIGHTS.
(a) Holders of the Series C Preferred will not have any voting rights,
except as set forth below or as otherwise from time to time required by law.
(b) Whenever dividends on any shares of Series C Preferred shall be in
arrears for six or more quarterly periods (a "Preferred Dividend Default"), the
holders of such shares of Series C Preferred (voting separately as a class with
the holders of Series B Preferred and Series A Preferred and all other series of
Preferred Stock ranking on a parity with the Series C Preferred as to dividends
or upon liquidation ("Parity Preferred") upon which like voting rights have been
conferred and are exercisable) will be entitled to vote for the election of a
total of two additional directors of the Corporation (the "Preferred Stock
Directors") at a special meeting called by the holders of record of at least 20%
of the Series C Preferred or the holders of any other series of Parity Preferred
so in arrears (unless such request is received less than 90 days before the date
fixed for the next annual or special meeting of stockholders) or at the next
annual meeting of stockholders, and at each subsequent annual meeting until all
dividends accumulated on such shares of Series C Preferred for the past dividend
periods and the dividend for the then current dividend period shall have been
fully paid or declared and a sum sufficient for the payment thereof set aside
for payment.
(c) If and when all accumulated dividends and the dividend for the
then current dividend period on the Series C Preferred shall have been paid in
full or set aside for payment in full, the holders of shares of Series C
Preferred shall be divested of the voting rights set forth in Section 6(b)
hereof (subject to revesting in the event of each and every subsequent Preferred
Dividend Default) and, if all accumulated dividends and the dividend for the
current dividend period have been paid in full or set aside for payment in full
on all other series of Parity Preferred upon which like voting rights have been
conferred and are exercisable, the term of office of each Preferred Stock
Director so elected shall terminate. Any Preferred Stock Director may be removed
at any time with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of the
outstanding shares of the Series C Preferred when they have the voting rights
set forth in Section 6(b) (voting separately as a class with all other series of
Parity Preferred upon which like voting rights have been conferred and are
exercisable). So long as a Preferred Dividend Default shall continue, any
vacancy in the office of a Preferred Stock Director may be filled by written
consent of the Preferred Stock Director remaining in office, or if none remains
in office, by a vote of the holders of record of a majority of the outstanding
shares of Series C Preferred when they have the voting rights set forth in
Section 6(b) (voting separately as a class with all other series of Parity
Preferred upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter.
(d) So long as any shares of Series C Preferred remain outstanding,
the Corporation shall not, without the affirmative vote of the holders of at
least two thirds of the shares of the Series C Preferred outstanding at the
time, given in person or by proxy, either in writing or at a meeting (voting
separately as a class), (i) authorize or create, or increase the authorized or
issued amount of, any class or series of capital stock ranking prior to the
Series C Preferred
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with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up or reclassify any authorized capital
stock of the Corporation into any such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such shares or (ii) amend, alter or repeal the provisions of the Charter,
whether by merger, consolidation or otherwise, so as to materially and adversely
affect any right, preference, privilege or voting power of the Series C
Preferred or the holders thereof; provided, however, that with respect to the
occurrence of any event set forth in (ii) above, so long as the Series C
Preferred remains outstanding with the terms thereof materially unchanged, the
occurrence of any such event shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers of the holders of
the Series C Preferred and; provided, further, that any increase in the amount
of the authorized Preferred Stock or the creation or issuance of any other
series of Preferred Stock, or any increase in the amount of authorized shares of
such series, in each case ranking on a parity with or junior to the Series C
Preferred with respect to payment of dividends or the distribution of assets
upon liquidation, dissolution or winding up, shall not be deemed to materially
and adversely affect such rights, preferences, privileges or voting powers.
(e) The foregoing voting provisions will not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series C Preferred shall
have been redeemed or called for redemption upon proper notice and sufficient
funds shall have been deposited in trust to effect such redemption.
(7) CONVERSION. The Series C Preferred is not convertible into or
exchangeable for any other property or securities of the Corporation, except
that the shares of Series C Preferred may be exchanged by the Corporation for
shares of Excess Stock, in accordance with Article IX of the Charter.
THIRD: These Articles Supplementary shall be effective at the time the State
Department of Assessments and Taxation of Maryland accepts these Articles
Supplementary for record.
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IN WITNESS WHEREOF, TRINET CORPORATE REALTY TRUST, INC. has caused these
presents to be signed in its name and on its behalf by its Executive Vice
President, and its corporate seal to be hereunto affixed and attested by its
Assistant Secretary, and the said officers of the Corporation further
acknowledge said instrument to be the corporate act of the Corporation, and
state under the penalties of perjury that to the best of their knowledge,
information and belief the matters and facts therein set forth with respect to
approval are true in all material respects.
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ A. William Stein
--------------------------------------
A. William Stein
Executive Vice President
[SEAL]
ATTEST:
/s/ Debra H. Paul
- -----------------------------
Debra H. Paul
Assistant Secretary
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EXHIBIT 2
TRINET CORPORATE REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF A SERIES OF SHARES OF PREFERRED STOCK
TriNet Corporate Realty Trust, Inc., a Maryland corporation (the
"Corporation"), certifies to the Secretary of State of Maryland that:
FIRST: Pursuant to the authority expressly vested in the Board of Directors of
the Corporation by Article VII of its Articles of Amendment and Restatement, as
heretofore amended (which, as hereafter restated or amended from time to time,
are together with these Articles Supplementary herein called the "Charter"), the
Board of Directors has, by resolution, duly divided and classified 1,495,000
shares of the Preferred Stock of the Corporation into a series designated 9.20%
Series B Cumulative Preferred Stock and has provided for the issuance of such
series.
SECOND: The preferences, rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms and conditions of redemption of the shares
of such series of Preferred Stock are as follows:
(1) DESIGNATION AND NUMBER. A series of Preferred Stock, designated the
"9.20% Series B Cumulative Preferred Stock" (the "Series B Preferred"), is
hereby established. The number of shares of the Series B Preferred shall be
1,495,000.
(2) RANK. The Series B Preferred shall, with respect to dividend rights and
rights upon liquidation, dissolution or winding up of the Corporation, rank (a)
senior to all classes or series of Common Stock of the Corporation, and to all
equity securities ranking junior to such Series B Preferred; (b) on a parity
with the Corporation's 9 3/8% Series A Cumulative Preferred Stock (the "Series A
Preferred") and all other equity securities issued by the Corporation the terms
of which specifically provide that such equity securities rank on a parity with
the Series B Preferred; and (c) junior to all equity securities issued by the
Corporation the terms of which specifically provide that such equity securities
rank senior to the Series B Preferred. The term "equity securities" shall not
include convertible debt securities.
(3) DIVIDENDS.
(a) Holders of the then outstanding shares of Series B Preferred shall
be entitled to receive, when and as declared by the Board of Directors, out of
funds legally available for the payment of dividends, cumulative preferential
cash dividends at the rate of 9.20% of the $25.00 liquidation preference per
annum (equivalent to a fixed annual amount of $2.30 per share). Such dividends
shall be cumulative from the first date on which any Series B Preferred
<PAGE> 2
is issued and shall be payable quarterly in arrears on or before March 15, June
15, September 15 and December 15 of each year or, if not a business day, the
next succeeding business day (each, a "Dividend Payment Date"). The first
dividend, which will be paid on September 15, 1996, will be for less than a full
quarter. Such dividend and any dividend payable on the Series B Preferred for
any partial dividend period will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Dividends will be payable to holders of
record as they appear in the stock records of the Corporation at the close of
business on the applicable record date, which shall be the first day of the
calendar month on which the applicable Dividend Payment Date falls or on such
other date designated by the Board of Directors of the Corporation for the
payment of dividends that is not more than 30 nor less than 10 days prior to
such Dividend Payment Date (each, a "Dividend Record Date").
(b) No dividends on shares of Series B Preferred shall be declared by
the Board of Directors of the Corporation or paid or set apart for payment by
the Corporation at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness, prohibits
such declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series B Preferred
shall accrue whether or not the terms and provisions set forth in Section 3(b)
hereof at any time prohibit the current payment of dividends, whether or not the
Corporation has earnings, whether or not there are funds legally available for
the payment of such dividends and whether or not such dividends are declared.
Accrued but unpaid dividends on the Series B Preferred will accumulate as of the
Dividend Payment Date on which they first become payable.
(d) Except as provided in Section 3(e) below, no dividends will be
declared or paid or set apart for payment on any capital stock of the
Corporation or any other series of preferred stock ranking, as to dividends, on
a parity with or junior to the Series B Preferred (other than a dividend in
shares of the Corporation's Common Stock or in any other class of stock ranking
junior to the Series B Preferred as to dividends and upon liquidation) for any
period unless full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof is
set apart for such payment on the Series B Preferred for all past dividend
periods and the then current dividend period.
(e) When dividends are not paid in full (or a sum sufficient for such
full payment is not so set apart) upon the Series B Preferred and the shares of
any other series of Preferred Stock ranking on a parity as to dividends with the
Series B Preferred, all dividends declared upon the Series B Preferred and any
other series of Preferred Stock ranking on a parity as to dividends with the
Series B Preferred shall be declared pro rata so that the amount of dividends
declared per share of Series B Preferred and such other series of Preferred
Stock shall in all cases bear to each other the same ratio that accrued
dividends per share on the Series B Preferred and such other series of Preferred
Stock (which shall not include any accrual in respect of unpaid dividends for
prior dividend periods if such Preferred Stock does not have a cumulative
dividend) bear to each other. No interest, or sum of money in lieu of interest,
shall
<PAGE> 3
be payable in respect of any dividend payment or payments on Series B Preferred
which may be in arrears.
(f) Except as provided in the immediately preceding paragraph, unless
full cumulative dividends on the Series B Preferred have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods and the
then current dividend period, no dividends (other than in shares of Common Stock
or other shares of capital stock ranking junior to the Series B Preferred as to
dividends and upon liquidation) shall be declared or paid or set aside for
payment nor shall any other distribution be declared or made upon the Common
Stock, or any other capital stock of the Corporation ranking junior to or on a
parity with the Series B Preferred as to dividends or upon liquidation, nor
shall any shares of Common Stock, or any other shares of capital stock of the
Corporation ranking junior to or on a parity with the Series B Preferred as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any such shares) by the Corporation (except by conversion
into or exchange for other capital stock of the Corporation ranking junior to
the Series B Preferred as to dividends and upon liquidation).
(g) Any dividend payment made on shares of the Series B Preferred
shall first be credited against the earliest accrued but unpaid dividend due
with respect to such shares which remains payable. Holders of the Series B
Preferred shall not be entitled to any dividend, whether payable in cash,
property or stock in excess of full cumulative dividends on the Series B
Preferred as described above.
(4) LIQUIDATION PREFERENCE.
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, the holders of shares of Series B
Preferred then outstanding are entitled to be paid out of the assets of the
Corporation legally available for distribution to its stockholders a liquidation
preference of $25.00 per share, plus an amount equal to any accrued and unpaid
dividends to the date of payment, before any distribution of assets is made to
holders of Common Stock or any other class or series of capital stock of the
Corporation that ranks junior to the Series B Preferred as to liquidation
rights.
(b) In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of the Corporation
are insufficient to pay the amount of the liquidating distributions on all
outstanding shares of Series B Preferred and the corresponding amounts payable
on all shares of other classes or series of capital stock of the Corporation
ranking on a parity with the Series B Preferred in the distribution of assets,
then the holders of the Series B Preferred and all other such classes or series
of capital stock shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled.
<PAGE> 4
(c) After payment of the full amount of the liquidating distributions
to which they are entitled, the holders of Series B Preferred will have no right
or claim to any of the remaining assets of the Corporation.
(d) Written notice of any such liquidation, dissolution or winding up
of the Corporation, stating the payment date or dates when, and the place or
places where, the amounts distributable in such circumstances shall be payable,
shall be given by first class mail, postage pre-paid, not less than 30 nor more
than 60 days prior to the payment date stated therein, to each record holder of
the Series B Preferred at the respective addresses of such holders as the same
shall appear on the stock transfer records of the Corporation.
(e) The consolidation or merger of the Corporation with or into any
other corporation, trust or entity or of any other corporation with or into the
Corporation, or the sale, lease or conveyance of all or substantially all of the
property or business of the Corporation, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Corporation.
(5) REDEMPTION.
(a) Right of Optional Redemption. The Series B Preferred is not
redeemable prior to August 15, 2001. However, in order to ensure that the
Corporation remains a qualified real estate investment trust ("REIT") for
Federal income tax purposes, the Series B Preferred will be subject to the
provisions of Article IX of the Charter. Pursuant to Article IX, Series B
Preferred owned by a stockholder in excess of the Ownership Limit will
automatically be exchanged for shares of Excess Stock and the Corporation will
have the right to purchase Excess Stock from the holder. On and after August 15,
2001, the Corporation, at its option and upon not less than 30 nor more than 60
days' written notice, may redeem shares of the Series B Preferred, in whole or
in part, at any time or from time to time, for cash at a redemption price of
$25.00 per share, plus all accrued and unpaid dividends thereon to the date
fixed for redemption (except as provided in Section 5(c) below), without
interest. If less than all of the outstanding Series B Preferred is to be
redeemed, the Series B Preferred to be redeemed shall be selected pro rata (as
nearly as may be practicable without creating fractional shares) or by any other
equitable method determined by the Corporation.
(b) Limitations on Redemption.
(i) The redemption price of the Series B Preferred (other than
the portion thereof consisting of accrued and unpaid dividends) is payable
solely out of the sale proceeds of other capital stock of the Corporation, which
may include other series of Preferred Stock, and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, interest, participation or
other ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options to
purchase any of the foregoing.
<PAGE> 5
(ii) Unless full cumulative dividends on all shares of Series B
Preferred shall have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for all past
dividend periods and the then current dividend period, no shares of Series B
Preferred shall be redeemed unless all outstanding shares of Series B Preferred
are simultaneously redeemed, and the Corporation shall not purchase or otherwise
acquire directly or indirectly any shares of Series B Preferred, (except by
exchange for capital stock of the Corporation ranking junior to the Series B
Preferred as to dividends and upon liquidation); provided, however, that the
foregoing shall not prevent the purchase by the Corporation of shares of Excess
Stock in order to ensure that the Corporation remains qualified as a REIT for
Federal income tax purposes or the purchase or acquisition of shares of Series B
Preferred pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of Series B Preferred.
(c) Rights to Dividends on Shares Called for Redemption. Immediately
prior to any redemption of Series B Preferred, the Corporation shall pay, in
cash, any accumulated and unpaid dividends through the redemption date, unless a
redemption date falls after a Dividend Record Date and prior to the
corresponding Dividend Payment Date, in which case each holder of Series B
Preferred at the close of business on such Dividend Record Date shall be
entitled to the dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation will make no payment or
allowance for unpaid dividends, whether or not in arrears, on Series B Preferred
which is redeemed.
(d) Procedures for Redemption.
(i) Notice of redemption will be (A) given by publication in a
newspaper of general circulation in the City of New York, such publication to be
made once a week for two successive weeks commencing not less than 30 nor more
than 60 days prior to the redemption date, and (B) mailed by the Corporation,
postage prepaid, not less than 30 nor more than 60 days prior to the redemption
date, addressed to the respective holders of record of the Series B Preferred to
be redeemed at their respective addresses as they appear on the stock transfer
records of the Corporation. No failure to give such notice or any defect thereto
or in the mailing thereof shall affect the validity of the proceedings for the
redemption of any shares of Series B Preferred except as to the holder to whom
notice was defective or not given.
(ii) In addition to any information required by law or by the
applicable rules of any exchange upon which Series B Preferred may be listed or
admitted to trading, such notice shall state: (A) the redemption date; (B) the
redemption price; (C) the number of shares of Series B Preferred to be redeemed;
(D) the place or places where the Series B Preferred is to be surrendered for
payment of the redemption price; and (E) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. If less than all of the
Series B Preferred held by any holder is to be redeemed, the notice mailed to
such holder shall also specify the number of shares of Series B Preferred held
by such holder to be redeemed.
(iii) If notice of redemption of any shares of Series B Preferred
has been given and if the funds necessary for such redemption have been set
aside by the Corporation in
<PAGE> 6
trust for the benefit of the holders of any shares of Series B Preferred so
called for redemption, then from and after the redemption date dividends will
cease to accrue on such shares of Series B Preferred, such shares of Series B
Preferred shall no longer be deemed outstanding and all rights of the holders of
such shares will terminate, except the right to receive the redemption price.
Holders of Series B Preferred to be redeemed shall surrender such Series B
Preferred at the place designated in such notice and, upon surrender in
accordance with said notice of the certificates for shares of Series B Preferred
so redeemed (properly endorsed or assigned for transfer, if the Corporation
shall so require and the notice shall so state), such shares of Series B
Preferred shall be redeemed by the Corporation at the redemption price plus any
accrued and unpaid dividends payable upon such redemption. In case less than all
the shares of Series B Preferred represented by any such certificate are
redeemed, a new certificate or certificates shall be issued representing the
unredeemed shares of Series B Preferred without cost to the holder thereof.
(iv) The deposit of funds with a bank or trust corporation for
the purpose of redeeming Series B Preferred shall be irrevocable except that:
(A) the Corporation shall be entitled to receive from
such bank or trust corporation the interest or other earnings, if any, earned on
any money so deposited in trust, and the holders of any shares redeemed shall
have no claim to such interest or other earnings; and
(B) any balance of monies so deposited by the
Corporation and unclaimed by the holders of the Series B Preferred entitled
thereto at the expiration of two years from the applicable redemption dates
shall be repaid, together with any interest or other earnings thereon, to the
Corporation, and after any such repayment, the holders of the shares entitled to
the funds so repaid to the Corporation shall look only to the Corporation for
payment without interest or other earnings.
(e) Application of Article IX. The shares of Series B Preferred are
subject to the provisions of Article IX of the Charter, including, without
limitation, the provision for the redemption of Excess Stock (as defined in such
Article). In addition to the redemption rights set forth in Article IX of the
Charter, Excess Stock issued upon exchange of shares of Series B Preferred
pursuant to such Article may be redeemed, in whole or in part, at any time when
outstanding shares of Series B Preferred are being redeemed, for cash at a
redemption price of $25.00 per share, plus all accrued and unpaid dividends on
the shares of Series B Preferred, which were exchanged for such Excess Stock,
through the date of such exchange, without interest. Such Excess Stock shall be
redeemed in such proportion and in accordance with such procedures as shares of
Series B Preferred are being redeemed.
(f) Status of Redeemed Shares. Any shares of Series B Preferred that
shall at any time have been redeemed shall, after such redemption, have the
status of authorized but unissued preferred stock, without designation as to
series until such shares are once more designated as part of a particular series
by the Board of Directors.
<PAGE> 7
(6) VOTING RIGHTS.
(a) Holders of the Series B Preferred will not have any voting rights,
except as set forth below or as otherwise from time to time required by law.
(b) Whenever dividends on any shares of Series B Preferred shall be in
arrears for six or more quarterly periods (a "Preferred Dividend Default"), the
holders of such shares of Series B Preferred (voting separately as a class with
the holders of Series A Preferred and all other series of Preferred Stock
ranking on a parity with the Series B Preferred as to dividends or upon
liquidation ("Parity Preferred") upon which like voting rights have been
conferred and are exercisable) will be entitled to vote for the election of a
total of two additional directors of the Corporation (the "Preferred Stock
Directors") at a special meeting called by the holders of record of at least 20%
of the Series B Preferred or the holders of any other series of Parity Preferred
so in arrears (unless such request is received less than 90 days before the date
fixed for the next annual or special meeting of stockholders) or at the next
annual meeting of stockholders, and at each subsequent annual meeting until all
dividends accumulated on such shares of Series B Preferred for the past dividend
periods and the dividend for the then current dividend period shall have been
fully paid or declared and a sum sufficient for the payment thereof set aside
for payment.
(c) If and when all accumulated dividends and the dividend for the
then current dividend period on the Series B Preferred shall have been paid in
full or set aside for payment in full, the holders of shares of Series B
Preferred shall be divested of the voting rights set forth in Section 6(b)
hereof (subject to revesting in the event of each and every Preferred Dividend
Default) and, if all accumulated dividends and the dividend for the current
dividend period have been paid in full or set aside for payment in full on all
other series of Parity Preferred upon which like voting rights have been
conferred and are exercisable, the term of office of each Preferred Stock
Director so elected shall terminate. Any Preferred Stock Director may be removed
at any time with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of the
outstanding shares of the Series B Preferred when they have the voting rights
set forth in Section 6(b) (voting separately as a class with all other series of
Parity Preferred upon which like voting rights have been conferred and are
exercisable). So long as a Preferred Dividend Default shall continue, any
vacancy in the office of a Preferred Stock Director may be filled by written
consent of the Preferred Stock Director remaining in office, or if none remains
in office, by a vote of the holders of record of a majority of the outstanding
shares of Series B Preferred when they have the voting rights set forth in
Section 6(b) (voting separately as a class with all other series of Parity
Preferred upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter.
(d) So long as any shares of Series B Preferred remain outstanding,
the Corporation shall not, without the affirmative vote of the holders of at
least two thirds of the shares of the Series B Preferred outstanding at the
time, given in person or by proxy, either in writing or at a meeting (voting
separately as a class), (i) authorize or create, or increase the authorized or
issued amount of, any class or series of capital stock ranking prior to the
Series B Preferred
<PAGE> 8
with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up or reclassify any authorized capital
stock of the Corporation into any such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such shares or (ii) amend, alter or repeal the provisions of the Charter,
whether by merger, consolidation or otherwise, so as to materially and adversely
affect any right, preference, privilege or voting power of the Series B
Preferred or the holders thereof; provided, however, that with respect to the
occurrence of any event set forth in (ii) above, so long as the Series B
Preferred remains outstanding with the terms thereof materially unchanged, the
occurrence of any such event shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers of the holders of
the Series B Preferred and; provided, further, that any increase in the amount
of the authorized Preferred Stock or the creation or issuance of any other
series of Preferred Stock, or any increase in the amount of authorized shares of
such series, in each case ranking on a parity with or junior to the Series B
Preferred with respect to payment of dividends or the distribution of assets
upon liquidation, dissolution or winding up, shall not be deemed to materially
and adversely affect such rights, preferences, privileges or voting powers.
(e) The foregoing voting provisions will not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series B Preferred shall
have been redeemed or called for redemption upon proper notice and sufficient
funds shall have been deposited in trust to effect such redemption.
(7) CONVERSION. The Series B Preferred is not convertible into or
exchangeable for any other property or securities of the Corporation, except
that the shares of Series B Preferred may be exchanged by the Corporation for
shares of Excess Stock, in accordance with Article IX of the Charter.
THIRD: These Articles Supplementary shall be effective at the time the State
Department of Assessments and Taxation of Maryland accepts these Articles
Supplementary for record.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 9
IN WITNESS WHEREOF, TRINET CORPORATE REALTY TRUST, INC. has caused these
presents to be signed in its name and on its behalf by its Executive Vice
President, and its corporate seal to be hereunto affixed and attested by its
Assistant Secretary, and the said officers of the Corporation further
acknowledge said instrument to be the corporate act of the Corporation, and
state under the penalties of perjury that to the best of their knowledge,
information and belief the matters and facts therein set forth with respect to
approval are true in all material respects.
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ A. William Stein
----------------------------------------
A. William Stein
Executive Vice President
[SEAL]
ATTEST:
/s/ Debra H. Paul
- -----------------------------
Debra H. Paul
Assistant Secretary
<PAGE> 1
EXHIBIT 3
TRINET CORPORATE REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF A SERIES OF SHARES OF PREFERRED STOCK
TriNet Corporate Realty Trust, Inc., a Maryland corporation (the
"Corporation"), certifies to the Secretary of State of Maryland that:
FIRST: Pursuant to the authority expressly vested in the Board of Directors of
the Corporation by Article VII of its Articles of Amendment and Restatement, as
heretofore amended (which, as hereafter restated or amended from time to time,
are together with these Articles Supplementary herein called the "Charter"), the
Board of Directors has, by resolution, duly divided and classified 2,300,000
shares of the Preferred Stock of the Corporation into a series designated 93/8%
Series A Cumulative Preferred Stock and has provided for the issuance of such
series.
SECOND: The preferences, rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms and conditions of redemption of the shares
of such series of Preferred Stock are as follows:
(1) DESIGNATION AND NUMBER. A series of Preferred Stock, designated the
"93/8% Series A Cumulative Preferred Stock" (the "Series A Preferred"), is
hereby established. The number of shares of the Series A Preferred shall be
2,300,000.
(2) RANK. The Series A Preferred shall, with respect to dividend rights and
rights upon liquidation, dissolution or winding up of the Corporation, rank (a)
senior to all classes or series of Common Stock of the Corporation, and to all
equity securities ranking junior to such Series A Preferred; (b) on a parity
with all equity securities issued by the Corporation the terms of which
specifically provide that such equity securities rank on a parity with the
Series A Preferred; and (c) junior to all equity securities issued by the
Corporation the terms of which specifically provide that such equity securities
rank senior to the Series A Preferred. The term "equity securities" shall not
include convertible debt securities.
(3) DIVIDENDS.
(a) Holders of the then outstanding shares of Series A Preferred shall
be entitled to receive, when and as declared by the Board of Directors, out of
funds legally available for the payment of dividends, cumulative preferential
cash dividends at the rate of 93/8% of the $25.00 liquidation preference per
annum (equivalent to a fixed annual amount of $2.34375 per share). Such
dividends shall be cumulative from the first date on which any Series A
Preferred is issued and shall be payable quarterly in arrears on or before March
15, June 15, September 15
<PAGE> 2
and December 15 of each year or, if not a business day, the next succeeding
business day (each, a "Dividend Payment Date"). The first dividend, which will
be paid on September 15, 1996, will be for less than a full quarter. Such
dividend and any dividend payable on the Series A Preferred for any partial
dividend period will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Dividends will be payable to holders of record as they
appear in the stock records of the Corporation at the close of business on the
applicable record date, which shall be the first day of the calendar month on
which the applicable Dividend Payment Date falls or on such other date
designated by the Board of Directors of the Corporation for the payment of
dividends that is not more than 30 nor less than 10 days prior to such Dividend
Payment Date (each, a "Dividend Record Date").
(b) No dividends on shares of Series A Preferred shall be declared by
the Board of Directors of the Corporation or paid or set apart for payment by
the Corporation at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness, prohibits
such declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series A Preferred
shall accrue whether or not the terms and provisions set forth in Section 3(b)
hereof at any time prohibit the current payment of dividends, whether or not the
Corporation has earnings, whether or not there are funds legally available for
the payment of such dividends and whether or not such dividends are declared.
Accrued but unpaid dividends on the Series A Preferred will accumulate as of the
Dividend Payment Date on which they first become payable.
(d) Except as provided in Section 3(e) below, no dividends will be
declared or paid or set apart for payment on any capital stock of the
Corporation or any other series of preferred stock ranking, as to dividends, on
a parity with or junior to the Series A Preferred (other than a dividend in
shares of the Corporation's Common Stock or in any other class of stock ranking
junior to the Series A Preferred as to dividends and upon liquidation) for any
period unless (i) full cumulative dividends have been or contemporaneously are
declared and paid or declared and (ii) a sum sufficient for the payment thereof
is set apart for such payment on the Series A Preferred for all past dividend
periods and the then current dividend period.
(e) When dividends are not paid in full (or a sum sufficient for such
full payment is not so set apart) upon the Series A Preferred and the shares of
any other series of Preferred Stock ranking on a parity as to dividends with the
Series A Preferred, all dividends declared upon the Series A Preferred and any
other series of Preferred Stock ranking on a parity as to dividends with the
Series A Preferred shall be declared pro rata so that the amount of dividends
declared per share of Series A Preferred and such other series of Preferred
Stock shall in all cases bear to each other the same ratio that accrued
dividends per share on the Series A Preferred and such other series of Preferred
Stock (which shall not include any accrual in respect of unpaid dividends for
prior dividend periods if such Preferred Stock does not have a cumulative
dividend) bear to each other. No interest, or sum of money in lieu of interest,
shall
<PAGE> 3
be payable in respect of any dividend payment or payments on Series A Preferred
which may be in arrears.
(f) Except as provided in the immediately preceding paragraph, unless
full cumulative dividends on the Series A Preferred have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods and the
then current dividend period, no dividends (other than in shares of Common Stock
or other shares of capital stock ranking junior to the Series A Preferred as to
dividends and upon liquidation) shall be declared or paid or set aside for
payment nor shall any other distribution be declared or made upon the Common
Stock, or any other capital stock of the Corporation ranking junior to or on a
parity with the Series A Preferred as to dividends or upon liquidation, nor
shall any shares of Common Stock, or any other shares of capital stock of the
Corporation ranking junior to or on a parity with the Series A Preferred as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any such shares) by the Corporation (except by conversion
into or exchange for other capital stock of the Corporation ranking junior to
the Series A Preferred as to dividends and upon liquidation).
(g) Any dividend payment made on shares of the Series A Preferred
shall first be credited against the earliest accrued but unpaid dividend due
with respect to such shares which remains payable. Holders of the Series A
Preferred shall not be entitled to any dividend, whether payable in cash,
property or stock in excess of full cumulative dividends on the Series A
Preferred as described above.
(4) LIQUIDATION PREFERENCE.
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, the holders of shares of Series A
Preferred then outstanding are entitled to be paid out of the assets of the
Corporation legally available for distribution to its stockholders a liquidation
preference of $25.00 per share, plus an amount equal to any accrued and unpaid
dividends to the date of payment, before any distribution of assets is made to
holders of Common Stock or any other class or series of capital stock of the
Corporation that ranks junior to the Series A Preferred as to liquidation
rights.
(b) In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of the Corporation
are insufficient to pay the amount of the liquidating distributions on all
outstanding shares of Series A Preferred and the corresponding amounts payable
on all shares of other classes or series of capital stock of the Corporation
ranking on a parity with the Series A Preferred in the distribution of assets,
then the holders of the Series A Preferred and all other such classes or series
of capital stock shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled.
<PAGE> 4
(c) After payment of the full amount of the liquidating distributions
to which they are entitled, the holders of Series A Preferred will have no right
or claim to any of the remaining assets of the Corporation.
(d) Written notice of any such liquidation, dissolution or winding up
of the Corporation, stating the payment date or dates when, and the place or
places where, the amounts distributable in such circumstances shall be payable,
shall be given by first class mail, postage pre-paid, not less than 30 nor more
than 60 days prior to the payment date stated therein, to each record holder of
the Series A Preferred at the respective addresses of such holders as the same
shall appear on the stock transfer records of the Corporation.
(e) The consolidation or merger of the Corporation with or into any
other corporation, trust or entity or of any other corporation with or into the
Corporation, or the sale, lease or conveyance of all or substantially all of the
property or business of the Corporation, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Corporation.
(5) REDEMPTION.
(a) Right of Optional Redemption. The Series A Preferred is not
redeemable prior to June 15, 2001. However, in order to ensure that the
Corporation remains a qualified real estate investment trust ("REIT") for
Federal income tax purposes, the Series A Preferred will be subject to the
provisions of Article IX of the Charter. Pursuant to Article IX, Series A
Preferred owned by a stockholder in excess of the Ownership Limit will
automatically be exchanged for shares of Excess Stock and the Corporation will
have the right to purchase Excess Stock from the holder. On and after June 15,
2001, the Corporation, at its option and upon not less than 30 nor more than
60-days' written notice, may redeem shares of the Series A Preferred, in whole
or in part, at any time or from time to time, for cash at a redemption price of
$25.00 per share, plus all accrued and unpaid dividends thereon to the date
fixed for redemption (except as provided in Section 5(c) below), without
interest. If less than all of the outstanding Series A Preferred is to be
redeemed, the Series A Preferred to be redeemed shall be selected pro rata (as
nearly as may be practicable without creating fractional shares) or by any other
equitable method determined by the Corporation.
(b) Limitations on Redemption.
(i) The redemption price of the Series A Preferred (other than
the portion thereof consisting of accrued and unpaid dividends) is payable
solely out of the sale proceeds of other capital stock of the Corporation, which
may include other series of Preferred Stock, and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares, interest, participation or
other ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options to
purchase any of the foregoing.
<PAGE> 5
(ii) Unless full cumulative dividends on all shares of Series A
Preferred shall have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for all past
dividend periods and the then current dividend period, no shares of Series A
Preferred shall be redeemed unless all outstanding shares of Series A Preferred
are simultaneously redeemed, and the Corporation shall not purchase or otherwise
acquire directly or indirectly any shares of Series A Preferred, (except by
exchange for capital stock of the Corporation ranking junior to the Series A
Preferred as to dividends and upon liquidation); provided, however, that the
foregoing shall not prevent the purchase by the Corporation of shares of Excess
Stock in order to ensure that the Corporation remains qualified as a REIT for
Federal income tax purposes or the purchase or acquisition of shares of Series A
Preferred pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of Series A Preferred.
(c) Rights to Dividends on Shares Called for Redemption. Immediately
prior to any redemption of Series A Preferred, the Corporation shall pay, in
cash, any accumulated and unpaid dividends through the redemption date, unless a
redemption date falls after a Dividend Record Date and prior to the
corresponding Dividend Payment Date, in which case each holder of Series A
Preferred at the close of business on such Dividend Record Date shall be
entitled to the dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation will make no payment or
allowance for unpaid dividends, whether or not in arrears, on Series A Preferred
which is redeemed.
(d) Procedures for Redemption.
(i) Notice of redemption will be (A) given by publication in a
newspaper of general circulation in the City of New York, such publication to be
made once a week for two successive weeks commencing not less than 30 nor more
than 60 days prior to the redemption date, and (B) mailed by the Corporation,
postage prepaid, not less than 30 nor more than 60 days prior to the redemption
date, addressed to the respective holders of record of the Series A Preferred to
be redeemed at their respective addresses as they appear on the stock transfer
records of the Corporation. No failure to give such notice or any defect thereto
or in the mailing thereof shall affect the validity of the proceedings for the
redemption of any shares of Series A Preferred except as to the holder to whom
notice was defective or not given.
(ii) In addition to any information required by law or by the
applicable rules of any exchange upon which Series A Preferred may be listed or
admitted to trading, such notice shall state: (A) the redemption date; (B) the
redemption price; (C) the number of shares of Series A Preferred to be redeemed;
(D) the place or places where the Series A Preferred is to be surrendered for
payment of the redemption price; and (E) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. If less than all of the
Series A Preferred held by any holder is to be redeemed, the notice mailed to
such holder shall also specify the number of shares of Series A Preferred held
by such holder to be redeemed.
(iii) If notice of redemption of any shares of Series A Preferred
has been given and if the funds necessary for such redemption have been set
aside by the Corporation in
<PAGE> 6
trust for the benefit of the holders of any shares of Series A Preferred so
called for redemption, then from and after the redemption date dividends will
cease to accrue on such shares of Series A Preferred, such shares of Series A
Preferred shall no longer be deemed outstanding and all rights of the holders of
such shares will terminate, except the right to receive the redemption price.
Holders of Series A Preferred to be redeemed shall surrender such Series A
Preferred at the place designated in such notice and, upon surrender in
accordance with said notice of the certificates for shares of Series A Preferred
so redeemed (properly endorsed or assigned for transfer, if the Corporation
shall so require and the notice shall so state), such shares of Series A
Preferred shall be redeemed by the Corporation at the redemption price plus any
accrued and unpaid dividends payable upon such redemption. In case less than all
the shares of Series A Preferred represented by any such certificate are
redeemed, a new certificate or certificates shall be issued representing the
unredeemed shares of Series A Preferred without cost to the holder thereof.
(iv) The deposit of funds with a bank or trust corporation for
the purpose of redeeming Series A Preferred shall be irrevocable except that:
(A) the Corporation shall be entitled to receive from
such bank or trust corporation the interest or other earnings, if any, earned on
any money so deposited in trust, and the holders of any shares redeemed shall
have no claim to such interest or other earnings; and
(B) any balance of monies so deposited by the
Corporation and unclaimed by the holders of the Series A Preferred entitled
thereto at the expiration of two years from the applicable redemption dates
shall be repaid, together with any interest or other earnings thereon, to the
Corporation, and after any such repayment, the holders of the shares entitled to
the funds so repaid to the Corporation shall look only to the Corporation for
payment without interest or other earnings.
(e) Application of Article IX. The shares of Series A Preferred are
subject to the provisions of Article IX of the Charter, including, without
limitation, the provision for the redemption of Excess Stock (as defined in such
Article). In addition to the redemption rights set forth in Article IX of the
Charter, Excess Stock issued upon exchange of shares of Series A Preferred
pursuant to such Article may be redeemed, in whole or in part, at any time when
outstanding shares of Series A Preferred are being redeemed, for cash at a
redemption price of $25.00 per share, plus all accrued and unpaid dividends on
the shares of Series A Preferred, which were exchanged for such Excess Stock,
through the date of such exchange, without interest. Such Excess Stock shall be
redeemed in such proportion and in accordance with such procedures as shares of
Series A Preferred are being redeemed.
(f) Status of Redeemed Shares. Any shares of Series A Preferred that
shall at any time have been redeemed shall, after such redemption, have the
status of authorized but unissued preferred stock, without designation as to
series until such shares are once more designated as part of a particular series
by the Board of Directors.
<PAGE> 7
(6) VOTING RIGHTS.
(a) Holders of the Series A Preferred will not have any voting rights,
except as set forth below or as otherwise from time to time required by law.
(b) Whenever dividends on any shares of Series A Preferred shall be in
arrears for six or more quarterly periods (a "Preferred Dividend Default"), the
holders of such shares of Series A Preferred (voting separately as a class with
all other series of Preferred Stock ranking on a parity with the Series A
Preferred as to dividends or upon liquidation ("Parity "Preferred") upon which
like voting rights have been conferred and are exercisable) will be entitled to
vote for the election of a total of two additional directors of the Corporation
(the "Preferred Stock Directors") at a special meeting called by the holders of
record of at least 20% of the Series A Preferred or the holders of any other
series of Parity Preferred so in arrears (unless such request is received less
than 90 days before the date fixed for the next annual or special meeting of
stockholders) or at the next annual meeting of stockholders, and at each
subsequent annual meeting until all dividends accumulated on such shares of
Series A Preferred for the past dividend periods and the dividend for the then
current dividend period shall have been fully paid or declared and a sum
sufficient for the payment thereof set aside for payment.
(c) If and when all accumulated dividends and the dividend for the
then current dividend period on the Series A Preferred shall have been paid in
full or set aside for payment in full, the holders of shares of Series A
Preferred shall be divested of the voting rights set forth in Section 6(b)
hereof (subject to revesting in the event of each and every Preferred Dividend
Default) and, if all accumulated dividends and the dividend for the current
dividend period have been paid in full or set aside for payment in full on all
other series of Parity Preferred upon which like voting rights have been
conferred and are exercisable, the term of office of each Preferred Stock
Director so elected shall terminate. Any Preferred Stock Director may be removed
at any time with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of the
outstanding shares of the Series A Preferred when they have the voting rights
set forth in Section 6(b) (voting separately as a class with all other series of
Parity Preferred upon which like voting rights have been conferred and are
exercisable). So long as a Preferred Dividend Default shall continue, any
vacancy in the office of a Preferred Stock Director may be filled by written
consent of the Preferred Stock Director remaining in office, or if none remains
in office, by a vote of the holders of record of a majority of the outstanding
shares of Series A Preferred when they have the voting rights set forth in
Section 6(b) (voting separately as a class with all other series of Parity
Preferred upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter.
(d) So long as any shares of Series A Preferred remain outstanding,
the Corporation shall not, without the affirmative vote of the holders of at
least two thirds of the shares of the Series A Preferred outstanding at the
time, given in person or by proxy, either in writing or at a meeting (voting
separately as a class), (i) authorize or create, or increase the authorized or
issued amount of, any class or series of capital stock ranking prior to the
Series A Preferred
<PAGE> 8
with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up or reclassify any authorized capital
stock of the Corporation into any such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such shares or (ii) amend, alter or repeal the provisions of the Charter,
whether by merger, consolidation or otherwise, so as to materially and adversely
affect any right, preference, privilege or voting power of the Series A
Preferred or the holders thereof; provided, however, that with respect to the
occurrence of any event set forth in (ii) above, so long as the Series A
Preferred remains outstanding with the terms thereof materially unchanged, the
occurrence of any such event shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers of the holders of
the Series A Preferred and; provided, further, that any increase in the amount
of the authorized Preferred Stock or the creation or issuance of any other
series of Preferred Stock, or any increase in the amount of authorized shares of
such series, in each case ranking on a parity with or junior to the Series A
Preferred with respect to payment of dividends or the distribution of assets
upon liquidation, dissolution or winding up, shall not be deemed to materially
and adversely affect such rights, preferences, privileges or voting powers.
(e) The foregoing voting provisions will not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series A Preferred shall
have been redeemed or called for redemption upon proper notice and sufficient
funds shall have been deposited in trust to effect such redemption.
(7) CONVERSION. The Series A Preferred is not convertible into or
exchangeable for any other property or securities of the Corporation, except
that the shares of Series A Preferred may be exchanged by the Corporation for
shares of Excess Stock, in accordance with Article IX of the Charter.
THIRD: These Articles Supplementary shall be effective at the time the State
Department of Assessments and Taxation of Maryland accepts these Articles
Supplementary for record.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 9
IN WITNESS WHEREOF, TRINET CORPORATE REALTY TRUST, INC. has caused these
presents to be signed in its name and on its behalf by its President, and its
corporate seal to be hereunto affixed and attested by its Secretary, and the
said officers of the Corporation further acknowledge said instrument to be the
corporate act of the Corporation, and state under the penalties of perjury that
to the best of their knowledge, information and belief the matters and facts
therein set forth with respect to approval are true in all material respects.
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ Mark S. Whiting
-----------------------------------
Mark S. Whiting, President
[SEAL]
ATTEST:
/s/ Debra H. Paul
- ---------------------------------------
Debra H. Paul, Assistant Secretary
<PAGE> 1
EXHIBIT 4
ARTICLES OF AMENDMENT AND RESTATEMENT
OF
TRINET CORPORATE REALTY TRUST, INC.
THIS IS TO CERTIFY THAT:
FIRST: TriNet Corporate Realty Trust, Inc. with its principal office in
the State of Maryland and its resident agent as set forth below in ARTICLES III
and IV, respectively, of these Articles of Amendment and Restatement hereby
certifies that the Articles of Incorporation of the Corporation, filed with the
Secretary of State on March 4, 1993, are hereby amended and restated as set
forth in these Articles of Amendment and Restatement.
SECOND: The following provisions are all of the provisions of the charter
currently in effect as hereinafter amended:
ARTICLE I
INCORPORATION, AMENDMENT AND RESTATEMENT
James R. Reinhart, whose post office address is Four Embarcadero Center,
Suite 3150, San Francisco, CA 94111, being at least eighteen (18) years of age,
does hereby form a corporation (the "Corporation") under the general laws of the
State of Maryland.
ARTICLE II
NAME
The name of the Corporation is:
TriNet Corporate Realty Trust, Inc.
ARTICLE III
PURPOSES
3.1 The purpose for which the Corporation is formed and the business
or objects to be carried on and promoted by it, within the State of Maryland or
elsewhere, is to engage in any lawful act or activity for which corporations may
be formed under the Maryland General Corporation Law, as amended from time to
time.
<PAGE> 2
3.2 Without limiting the generality of the foregoing purpose, business
and objects, at such time or times as the Board of Directors of the Corporation
determines that it is in the interest of the Corporation and its stockholders
that the Corporation engage in the business of, and conduct its business and
affairs so as to qualify as, a real estate investment trust (as that phrase is
defined in the Internal Revenue Code of 1986, as amended (the "Code")), the
purpose of the Corporation shall include engaging in the business of a real
estate investment trust ("REIT"). This reference to such purpose shall not make
unlawful or unauthorized any otherwise lawful act or activity that the
Corporation may take that is inconsistent with such purpose.
ARTICLE IV
PRINCIPAL OFFICE ADDRESS
The address of the principal office of the Corporation in the State of
Maryland is c/o The Corporation Trust Incorporated, 32 South Street, Baltimore,
Maryland 21202.
ARTICLE V
RESIDENT AGENT
The Resident Agent of the Corporation is The Corporation Trust
Incorporated, whose address is 32 South Street, Baltimore, Maryland 21202. Said
Resident Agent is a Maryland corporation.
ARTICLE VI
BOARD OF DIRECTORS
6.1 The Corporation shall have a Board of Directors initially
consisting of three (3) Directors, which number may be increased or decreased in
accordance with the Bylaws of the Corporation, but shall not be less than the
number required by Section 2-402 of the Maryland General Corporation Law. The
following individuals shall act as Directors until the first annual meeting of
the stockholders of the Corporation or until their successors are duly elected
and qualify:
Robert W. Holman, Jr.
Jay H. Shidler
Mark S. Whiting
6.2 The Board of Directors of the Corporation shall be divided into
three classes, each class to consist as nearly as possible of one-third of the
Directors. The term of office of one class of Directors shall expire each year.
The initial term of office of the first class shall expire at the 1994 annual
meeting of stockholders. The initial term of office of the second class shall
expire at the 1995 annual meeting of stockholders. The initial term of office of
the third class shall expire at the 1996 annual meeting of stockholders.
Commencing with the
<PAGE> 3
1994 annual meeting of stockholders, the Directors of the class elected at each
annual meeting of stockholders shall hold office for a term of three years.
Vacancies occurring by resignation, enlargement of the Board of Directors or
otherwise shall be filled as specified in the Bylaws.
ARTICLE VII
AUTHORIZED CAPITAL STOCK; RIGHTS AND
PREFERENCES; ISSUANCE OF STOCK
7.1 AUTHORIZED CAPITAL STOCK. The total number of shares of stock
which the Corporation has authority to issue (the "Stock") is seventy-five
million (75,000,000) shares, consisting of (i) ten million (10,000,000) shares
of preferred stock, par value $.01 per share ("Preferred Stock"); (ii) forty
million (40,000,000) shares of common stock, par value $.01 per share ("Common
Stock"); and (iii) twenty-five million (25,000,000) shares of excess stock, par
value $.01 per share ("Excess Stock"). The aggregate par value of all the shares
of all classes of Stock is $750,000.
7.2 PREFERRED STOCK. The Board of Directors may issue the Preferred
Stock in one or more series consisting of such numbers of shares and having such
preferences, conversion and other rights, voting powers, restrictions and
limitations as to dividends, qualifications and terms and conditions of
redemption of stock as the Board of Directors may from time to time determine
when designating such series.
7.3 COMMON STOCK.
7.3.1 DIVIDEND RIGHTS. The holders of shares of Common Stock
shall be entitled to receive such dividends as may be declared by the
Board of Directors out of funds legally available therefor.
7.3.2 RIGHTS UPON LIQUIDATION. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any
distribution of the assets of, the Corporation, each holder of shares of
Common Stock shall be entitled to receive, ratably with each other holder
of shares of Common Stock or Excess Stock resulting from the exchange of
Common Stock ("Excess Common Stock"), that portion of the assets of the
Corporation available for distribution to the holders of its Common Stock
and Excess Common Stock as the number of shares of Common Stock held by
such holder bears to the total number of shares of Common Stock and
Excess Common Stock then outstanding.
7.3.3 VOTING RIGHTS. The holders of shares of Common Stock shall
be entitled to vote on all matters submitted to the holders of shares of
Common Stock for a vote, at all meetings of the stockholders, and each
holder of shares of Common Stock shall be entitled to one vote for each
share of Common Stock held by such stockholder.
<PAGE> 4
7.3.4 CONVERSION. Shares of Common Stock shall automatically be
exchanged for shares of Excess Stock at the times and in the manner
provided in Subsection 9.5.1 hereof.
7.4 EXCESS STOCK. The voting, distribution, redemption and certain
other rights, qualifications and limitations of shares of Excess Stock are set
forth in Section 9.5 hereof.
7.5 CLASSIFICATION OF STOCK. The Board of Directors may classify or
reclassify any unissued shares of Stock from time to time by setting or changing
the preferences, conversion and other rights, voting powers, restrictions and
limitations as to dividends, qualifications, and terms and conditions of
redemption of those shares of Stock, including, but not limited to, the
reclassification of unissued shares of Common Stock to shares of Preferred Stock
or unissued shares of Preferred Stock to shares of Common Stock or the issuance
of any rights plan or similar plan.
7.6 ISSUANCE OF STOCK. The Board of Directors may authorize the
issuance from time to time of shares of Stock of any class, whether now or
hereafter authorized, or securities or rights convertible into shares of Stock,
for such consideration as the Board of Directors may deem advisable (or without
consideration in the case of a share split or dividend), subject to such
restrictions or limitations, if any, as may be set forth in the Bylaws of the
Corporation.
ARTICLE VIII
LIMITATION ON PREEMPTIVE RIGHTS
No stockholder shall have any preferential or preemptive right to acquire
additional shares of Stock, except to the extent that, and on such terms as, the
Board of Directors from time to time may determine.
ARTICLE IX
LIMITATIONS ON TRANSFER AND OWNERSHIP
9.1 LIMITATIONS ON TRANSFER. The shares of Stock (other than Excess
Stock) shall be freely transferable by the record owner thereof, subject to the
provisions of Section 9.2 and provided that any purported acquisition or
transfer of Stock that would result in the disqualification of the Corporation
as a REIT shall be void AB INITIO. Any purported transfer of Stock that, if
effective, would result in a violation of Section 9.2 (unless excepted from the
application of Section 9.2 pursuant to Section 9.6) shall be void AB INITIO as
to the transfer of that number of shares of Stock that otherwise would be
beneficially owned by a stockholder in violation of Section 9.2, the intended
transferee of such shares shall acquire no rights therein and the transfer of
such shares will not be reflected on the Corporation's stock record books. For
purposes of this Article IX, a "transfer" of shares of Stock shall mean any
sale, transfer, gift, hypothecation, pledge, assignment, or other disposition,
whether voluntary or involuntary, by operation of law or otherwise.
<PAGE> 5
9.2 LIMITATIONS ON OWNERSHIP. Commencing on the date of the sale of
shares of Common Stock pursuant to the Corporation's first effective
registration statement for the Common Stock filed with the Securities and
Exchange Commission under the Securities Act of 1933 (the "Initial Public
Offering Date"), or such earlier time as the Board of Directors may determine,
except as provided by Section 9.6, ownership of the Stock shall be limited as
follows:
9.2.1 No person (other than the Existing Holder (defined below))
shall at any time directly or indirectly acquire or hold beneficial
ownership of shares of any class or series of Stock with an aggregate
value in excess of 9.3% of the aggregate value of all outstanding Stock
of such class or series (the "Ownership Limit"); and
9.2.2 Jay H. Shidler (the "Existing Holder") shall not at any
time directly or indirectly acquire or hold beneficial ownership of
shares of any class or series of Stock with an aggregate value in excess
of 12.5% of the aggregate value of all outstanding Stock of such class or
series (the "Existing Holder Limit").
For purposes of this Article IX, (a) the value of any share of Stock shall be
determined in the manner established by the Board of Directors, and (b) a person
(which includes natural persons, corporations, trusts, partnerships, and other
entities) shall be deemed to be the beneficial owner of the shares of Stock that
such person (i) actually owns, (ii) constructively owns after applying the rules
of Section 544 of the Code as modified in the case of a REIT by Section 856(h)
of the Code, or (iii) has the right to acquire upon exercise of outstanding
rights, options and warrants, or upon conversion of any securities convertible
into Stock, if any.
9.3 STOCKHOLDER INFORMATION. Each stockholder shall, upon demand of
the Corporation disclose to the Corporation in writing such information with
respect to his or its direct and indirect beneficial ownership of the Stock as
the Board of Directors in its discretion deems necessary or appropriate in order
that the Corporation may fully comply with all provisions of the Code relating
to REITs and all regulations, rulings and cases promulgated or decided
thereunder (the "REIT Provisions") and to comply with the requirements of any
taxing authority or governmental agency.
9.4 TRANSFEREE INFORMATION. Whenever the Board of Directors deems it
reasonably necessary to protect the tax status of the Corporation as a REIT
under the REIT Provisions, the Board of Directors may require a statement or
affidavit from each stockholder or proposed transferee of Stock setting forth
the number of shares of Stock already beneficially owned by such proposed
transferee and any related person specified by the Board of Directors. If, in
the opinion of the Board of Directors, any proposed transfer may jeopardize the
qualification of the Corporation as a REIT, the Board of Directors shall have
the right, but not the duty, to refuse to permit the transfer of such Stock to
the proposed transferee. All contracts for the sale or other transfer of Stock
shall be subject to this Section 9.4.
<PAGE> 6
9.5 EXCESS STOCK.
9.5.1 EXCHANGE FOR EXCESS STOCK. If, notwithstanding the other
provisions contained in this Article IX, at any time after the Initial
Public Offering Date there is a purported transfer of Stock or a change
in the capital structure of the Corporation (including any redemption of
Excess Stock pursuant to Subsection 9.5.7) such that any person (other
than the Existing Holder) would beneficially own Stock in excess of the
Ownership Limit, or the Existing Holder would beneficially own Stock in
excess of the Existing Holder Limit, then, except as otherwise provided
in Section 9.6, such shares of Stock in excess of the Ownership Limit or
the Existing Holder Limit (rounded up to the nearest whole share) shall
be automatically exchanged for an equal number of shares of Excess Stock.
Such exchange shall be effective as of the close of business on the
business day prior to the date of the purported transfer of Stock or the
change in capital structure.
9.5.2 OWNERSHIP IN TRUST. Upon any purported transfer of Stock
that results in Excess Stock pursuant to Subsection 9.5.1, such Excess
Stock shall be deemed to have been transferred to the Corporation, as
trustee of a separate trust for the exclusive benefit of the person or
persons to whom such Excess Stock can ultimately be transferred without
violating the Ownership Limit or the Existing Holder Limit. Shares of
Excess Stock so held in trust shall be issued and outstanding Stock of
the Corporation under the Maryland General Corporation Law. The purported
transferee of Excess Stock shall have no rights in such Excess Stock,
except the right to designate a transferee of its interest in the trust
created under this Subsection 9.5.2 upon the terms specified in
Subsection 9.5.6. If any of the restrictions on transfer set forth in
this Article IX are determined to be void, invalid or unenforceable by
virtue of any legal decision, statute, rule or regulation, then the
intended transferee of any Excess Stock may be deemed, at the option of
the Corporation, to have acted as an agent on behalf of the Corporation
in acquiring the Excess Stock and to hold the Excess Stock on behalf of
the Corporation.
9.5.3 DIVIDEND RIGHTS. Excess Stock shall not be entitled to any
dividends. Any dividend or distribution paid prior to the discovery by
the Corporation that shares of Stock have been exchanged for Excess Stock
shall be repaid to the Corporation upon demand, and any dividend or
distribution declared but unpaid shall be rescinded as void AB INITIO
with respect to such shares of Excess Stock.
9.5.4 RIGHTS UPON LIQUIDATION. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any
distribution of the assets of, the Corporation, each holder of shares of
Excess Common Stock shall be entitled to receive, ratably with each other
holder of shares of Common Stock or Excess Common Stock, that portion of
the assets of the Corporation available for distribution to the holders
of Common Stock and Excess Common Stock as the number of shares of Excess
Common Stock held by such holder bears to the total number of shares of
Common Stock and Excess Common Stock then outstanding. In the event of
any voluntary or involuntary liquidation, dissolution or winding up of,
or any distribution
<PAGE> 7
of the assets of, the Corporation, each holder of shares of Excess Stock
resulting from the exchange of Preferred Stock ("Excess Preferred Stock")
shall be entitled to receive the pro rata share of the assets of the
Corporation available for distribution to the holders of Preferred Stock
of the series from which such Excess Stock was exchanged which such
holder of Excess Preferred Stock would be entitled to receive if such
shares of Excess Preferred Stock were shares of Preferred Stock of the
series from which such Excess Preferred Stock was exchanged. The
Corporation, as the holder of all Excess Stock in one or more trusts, or,
if the Corporation shall have been dissolved, any trustee appointed by
the Corporation prior to its dissolution shall distribute to the
transferee of an interest in such a trust pursuant to Subsection 9.5.6
hereof, when determined, any assets received in any liquidation,
dissolution or winding up of, or any distribution of the assets of, the
Corporation in respect of the Excess Stock held in such trust and
represented by the trust interest transferred to such transferee.
9.5.5 VOTING RIGHTS. No stockholder may vote any shares of Excess
Stock. The shares of Excess Stock will not be considered for purposes of
any stockholder vote or for purposes of determining a quorum for such a
vote.
9.5.6 RESTRICTIONS ON TRANSFER. Excess Stock shall not be
transferable. The purported transferee of any shares of Stock that are
exchanged for Excess Stock pursuant to Section 9.5.1 may freely designate
a transferee of the interest in the trust that represents such shares of
Excess Stock, if (a) the shares of Excess Stock held in the trust and
represented by the trust interest to be transferred would not be Excess
Stock in the hands of the transferee of the trust interest, and (b) the
transferor of the trust interest does not receive a price for the trust
interest in excess of (i) the price such transferor paid for the Stock in
the purported transfer of Stock that resulted in the Excess Stock
represented by the trust interest, or (ii) if such transferor did not
give value for such Stock (E.G., the shares were received through a gift,
devise or other transaction), a price equal to the aggregate Market Price
(as defined in Subsection 9.5.7) for all shares of Stock that were
exchanged for Excess Stock on the date of the purported transfer that
resulted in the Excess Stock. No interest in a trust may be transferred
unless the transferor of such interest has given advance notice to the
Corporation of the intended transferee and the Corporation has agreed in
writing to waive its redemption rights under Subsection 9.5.7. Upon the
transfer of an interest in a trust in compliance with this Subsection
9.5.6, the corresponding shares of Excess Stock that are represented by
the transferred interest in the trust shall be automatically exchanged
for an equal number of shares of Stock of the same class and series from
which they were originally exchanged and such shares of Stock shall be
transferred of record to the transferee of the interest in the trust.
Upon any exchange of Excess Stock for Stock of another class, the
interest in the trust representing such Excess Stock shall automatically
terminate.
9.5.7 CORPORATION'S REDEMPTION RIGHT. All shares of Excess Stock
shall be deemed to have been offered for sale to the Corporation, or its
designee, at a price per share equal to the lesser of (a) the price per
share of Stock in the transaction that created such Excess Stock (or, in
the case of devise or gift, the Market Price per share
<PAGE> 8
of such Stock at the time of such devise or gift) or (b) the Market Price
per share of Stock of the class and series of Stock from which such
Excess Stock was exchanged on the date the Corporation, or its designee,
accepts such offer. The Corporation shall have the right to accept such
offer for a period of ninety (90) days after (i) the date of the
purported transfer that resulted in such Excess Stock if the purported
transferee notified the Corporation of such purported transfer within ten
(10) days thereof, or (ii) the date on which the Board of Directors makes
a determination that the purported transfer resulting in Excess Stock
occurred if the Corporation is not notified of the purported transfer.
For purposes of this Article IX, "Market Price" means for any share of
Stock, the average daily per share closing sales price of a share of such
Stock if shares of such Stock are listed on a national securities
exchange or quoted on the National Association of Securities Dealers
Automated Quotation National Market System (the "NASDAQ NMS"), and if
such shares are not so listed or quoted, the Market Price shall be the
mean between the average per share closing bid prices and the average per
share closing asked prices, in each case during the 30-day period ending
on the business day prior to the redemption date, or if there have been
no sales on a national securities exchange or on the NASDAQ NMS and no
published bid and asked quotations with respect to shares of such Stock
during such 30-day period, the Market Price shall be the price determined
by the Board of Directors in good faith. Unless the Board of Directors
determines that it is in the interest of the Corporation to make earlier
payment of all of the amount determined as the redemption payment for
Stock redeemed in accordance with this Subsection 9.5.7, the redemption
payment shall be paid to the transferee of the trust interest
representing the redeemed Excess Stock only upon the liquidation of the
Corporation and shall not exceed an amount equal to the lesser of the
price determined pursuant to the first sentence of this Subsection 9.5.7
or the product of (x) the number of shares of Excess Stock redeemed,
multiplied by (y) the sum of the per share distributions designated as
liquidating distributions and return of capital distributions declared
subsequent to the redemption date with respect to unredeemed shares of
Stock of the class and series from which the redeemed Excess Stock was
converted. No interest shall accrue on any redemption payment with
respect to the period subsequent to the redemption date to the date of
the redemption payment.
9.6 EXCEPTIONS TO CERTAIN OWNERSHIP AND TRANSFER LIMITATIONS. The
Ownership Limit and Existing Holder Limit set forth in Section 9.2 shall not
apply to the following shares of Stock and such shares shall not be deemed to be
Excess Stock at the times and subject to the terms and conditions set forth in
this Section 9.6:
9.6.1 Subject to the provisions of Section 9.7, shares of Stock
which the Board of Directors in its sole discretion may exempt from the
Ownership Limit or the Existing Holder Limit while owned by a person who
has provided the Corporation with evidence and assurances acceptable to
the Board of Directors that the qualification of the Corporation as a
REIT will not be jeopardized thereby.
9.6.2 Subject to the provisions of Section 9.7, shares of Stock
acquired and held by an underwriter in a public offering of Stock, or in
any transaction involving the issuance of Stock by the Corporation in
which the Board of Directors determines that
<PAGE> 9
the underwriter or other person or party initially acquiring such Stock
will make a timely distribution of such Stock to or among other holders
such that, following such distribution, the Corporation will continue to
be in compliance with the REIT Provisions.
9.6.3 Shares of Stock acquired pursuant to an all cash tender
offer made for all outstanding shares of Stock of the Corporation in
conformity with applicable federal and state securities laws where not
less than two-thirds of the outstanding Stock (not including Stock or
securities convertible into Stock held by the tender offeror and/or any
"affiliates" or "associates" thereof within the meaning of the Securities
Exchange Act of 1934) is duly tendered and accepted pursuant to the cash
tender offer and where the tender offeror commits in such tender offer,
if the tender offer is so accepted by the holders of not less than
two-thirds of the outstanding Stock, as promptly as practicable
thereafter to give any holders who did not accept such tender offer a
reasonable opportunity to put their Stock to the tender offeror at a
price not less than the price per share paid for Stock tendered pursuant
to the tender offer.
9.7 AUTHORITY TO REVOKE EXCEPTIONS TO LIMITATIONS. The Board of
Directors, in its sole discretion, may at any time revoke any exception pursuant
to Subsections 9.6.1 or 9.6.2 in the case of any stockholder, and upon such
revocation, the provisions of Sections 9.2 and 9.5 shall immediately become
applicable to such stockholder and all Stock of which such stockholder may be
the beneficial owner. A decision to exempt or refuse to exempt from the
Ownership Limit or Existing Holder Limit the ownership of certain designated
shares of Stock, or to revoke an exemption previously granted, shall be made by
the Board of Directors in its sole discretion, based on any reason whatsoever,
including, but not limited to, the preservation of the Corporation's
qualification as a REIT.
9.8 SEVERABILITY. If any provision of this Article IX or any
application of any such provision is determined to be invalid by any federal or
state court having jurisdiction, the validity of the remaining provisions of
this Article IX shall not be affected and other applications of such provision
shall be affected only to the extent necessary to comply with the determination
of such court. To the extent this Article IX may be inconsistent with any other
provision of these Articles of Incorporation, this Article IX shall be
controlling.
9.9 AUTHORITY OF THE BOARD OF DIRECTORS. Nothing contained in this
Article IX or in any other provision of these Articles of Incorporation shall
limit the authority of the Board of Directors to take such action as it deems
necessary or advisable to protect the Corporation and the interests of the
stockholders by preservation of the Corporation's qualification as a REIT under
the REIT Provisions. In applying the provisions of this Article IX, the Board of
Directors may take into account the lack of certainty in the REIT Provisions
relating to the ownership of stock that may prevent a corporation from
qualifying as a REIT and may make interpretations concerning the Ownership
Limit, the Existing Holder Limit, Excess Stock, beneficial ownership and related
matters on as conservative basis as the Board of Directors deems advisable to
minimize or eliminate uncertainty as to the Corporation's continued
qualification as a REIT. Notwithstanding any other provision of these Articles
of Incorporation, if the Board of Directors determines that it is no longer in
the best interests of
<PAGE> 10
the Corporation and the stockholders to continue to have the Corporation qualify
as a REIT, the Board of Directors may revoke or otherwise terminate the
Corporation's REIT election pursuant to Section 856(g) of the Code.
9.10 NEW YORK STOCK EXCHANGE. Nothing in this Article IX shall preclude
the settlement of any transaction entered into through the facilities of the New
York Stock Exchange.
ARTICLE X
RIGHTS AND POWERS OF CORPORATION,
BOARD OF DIRECTORS AND OFFICERS
In carrying on its business, or for the purpose of attaining or
furthering any of its objects, the Corporation shall have all of the rights,
powers and privileges granted to corporations by the laws of the State of
Maryland, as well as the power to do any and all acts and things that a natural
person or partnership could do as now or hereafter authorized by law, either
alone or in partnership or conjunction with others. In furtherance and not in
limitation of the powers conferred by statute, the powers of the Corporation and
of the Directors and stockholders shall include the following:
10.1 Any Director or officer individually, or any firm of which any
Director or officer may be a member, or any corporation or association of which
any Director or officer may be a director or officer or in which any Director or
officer may be interested as the holder of any amount of its capital stock or
otherwise, may be a party to, or may be pecuniarily or otherwise interested in,
any contract or transaction of the Corporation, and, in the absence of fraud, no
contract or other transaction shall be thereby affected or invalidated;
provided, however, that (a) such fact shall have been disclosed or shall have
been known to the Board of Directors or the committee thereof that approved such
contract or transaction and such contract or transaction shall have been
approved or satisfied by the affirmative vote of a majority of the disinterested
Directors, or (b) such fact shall have been disclosed or shall have been known
to the stockholders entitled to vote, and such contract or transaction shall
have been approved or ratified by a majority of the votes cast by the
stockholders entitled to vote, other than the votes of shares owned of record or
beneficially by the interested Director, officer or corporation, firm or other
entity, or (c) the contract or transaction is fair and reasonable to the
Corporation. Any Director of the Corporation who is also a director or officer
of or interested in such other corporation or association, or who, or the firm
of which he is a member, is so interested, may be counted in determining the
existence of a quorum at any meeting of the Board of Directors of the
Corporation which shall authorize any such contract or transaction, with like
force and effect as if he were not such director or officer of such other
corporation or association or were not so interested or were not a member of a
firm so interested.
10.2 The Corporation reserves the right, from time to time, to make any
amendment to its Articles of Incorporation now or hereafter authorized by law,
including any amendment which alters the contract rights, as expressly set forth
in its Articles of Incorporation, of any outstanding Stock.
<PAGE> 11
10.3 Except as otherwise provided in the Articles of Incorporation or
the Bylaws of the Corporation, as amended from time to time, the business of the
Corporation shall be managed by its Board of Directors. The Board of Directors
shall have and may exercise all the rights, powers and privileges of the
Corporation except only for those that are by law, these Articles of
Incorporation or the Bylaws of the Corporation, conferred upon or reserved to
the stockholders. Additionally, the Board of Directors is hereby specifically
authorized and empowered from time to time in its discretion:
10.3.1 To borrow and raise money, without limit and upon any
terms, for any corporate purposes; and, subject to applicable law, to authorize
the creation, issuance, assumption, or guaranty of bonds, debentures, notes, or
other evidences of indebtedness for money so borrowed, to include therein such
provisions as to redeemability, convertibility, or otherwise, as the Board of
Directors, in its sole discretion, determines, and to secure the payment of
principal, interest, or sinking fund in respect thereof by mortgage upon, or the
pledge of, or the conveyance or assignment in trust of, all or any part of the
properties, assets, and goodwill of the Corporation then owned or thereafter
acquired.
10.3.2 To make, alter, amend, change, add to or repeal the Bylaws
of the Corporation in accordance with the terms of the Bylaws adopted by the
Board of Directors pursuant to Section 2-109 of the Maryland General Corporation
Law; and
10.3.3 To the extent permitted by law, to declare and pay
dividends or other distributions to the stockholders from time to time out of
the earnings, earned surplus, paid-in surplus or capital of the Corporation,
notwithstanding that such declaration may result in the reduction of the capital
of the Corporation. In connection with any dividends or other distributions upon
the Stock, the Corporation need not reserve any amount from such dividend or
other distributions to satisfy any preferential rights of any stockholder.
ARTICLE XI
INDEMNIFICATION
The Corporation shall have the power to indemnify, by express provision
in its Bylaws, by agreement, or by majority vote of either its stockholders or
disinterested Directors, any one or more of the following classes of
individuals: (1) present or former Directors of the Corporation, (2) present or
former officers of the Corporation, (3) present or former agents and/or
employees of the Corporation, (4) present or former administrators, trustees or
other fiduciaries under any pension, profit sharing, deferred compensation, or
other employee benefit plan maintained by the Corporation, and (5) persons
serving or who have served at the request of the Corporation in any of these
capacities for any other corporation, partnership, joint venture, trust or other
enterprise. However, the Corporation shall not have the power to indemnify any
person to the extent such indemnification would be contrary to Section 2-418 of
the Maryland General Corporation Law or any other applicable statute, rule or
regulation.
<PAGE> 12
ARTICLE XII
LIMITATION OF LIABILITY
To the full extent permitted under the Maryland General Corporation Law
as in effect on the date of filing these Articles of Incorporation or as the
Maryland General Corporation Law is thereafter amended from time to time, no
Director or officer shall be liable to the Corporation for money damages for any
breach of any duty owed by such Director or officer to the Corporation. Neither
the amendment or repeal of this Article, nor the adoption of any other provision
in these Articles of Incorporation inconsistent with this Article, shall
eliminate or reduce the protection afforded by this Article to a Director or
officer of the Corporation with respect to any matter which occurred, or any
cause of action, suit or claim which but for this Article would have accrued or
arisen, prior to such amendment, repeal or adoption.
ARTICLE XIII
SPECIAL VOTING REQUIREMENTS
Pursuant to Section 3-603(e)(1)(iii) of the Maryland General Corporation
Law, the Corporation expressly elects not to be governed by the provisions of
Section 3-602 of the Maryland General Corporation Law with respect to any
business combination (as defined in Section 3-601 of the Maryland General
Corporation Law) involving the Existing Holder, Robert W. Holman, Jr. ("Mr.
Holman") or any present or future affiliates or associates (as such terms are
defined in Section 3-601 of the Maryland General Corporation Law) of the
Existing Holder or Mr. Holman, or any other person acting in concert or as a
group with the Existing Holder or Mr. Holman.
THIRD: The amendment to and restatement of the charter of the Corporation
as hereinabove set forth has been duly advised by the Board of Directors and has
been unanimously approved by the Board of Directors and the stockholders of the
Corporation.
FOURTH: The number of directors of the Corporation and the names of those
currently in office are as set forth in Article VI of the foregoing amendment
and restatement of the charter of the Corporation.
FIFTH: The total number of shares of stock which the Corporation was
heretofore authorized to issue, was sixty million (60,000,000) shares,
consisting of (i) ten million (10,000,000) shares of preferred stock, par value
$.01 per share; (ii) twenty-five million (25,000,000) shares of common stock,
par value $.01 per share; and (iii) twenty-five million (25,000,000) shares of
excess stock, par value $.01 per share. The aggregate par value of all the
shares of all classes of stock of the Corporation was $600,000.
The total number of shares of stock which the Corporation has authority
to issue, as increased by these Articles of Amendment and Restatement, is
seventy-five million (75,000,000) shares, consisting of (i) ten million
(10,000,000) shares of preferred stock, par value $.01 per share; (ii) forty
million (40,000,000) shares of common stock, par value $.01
<PAGE> 13
per share; and (iii) twenty-five million (25,000,000) shares of excess stock,
par value $.01 per share. The aggregate par value of all the shares of all
classes of stock of the Corporation is $750,000.
<PAGE> 14
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment and Restatement to be signed in its name and on its behalf by its
President and attested to by its Secretary on this 23rd day of April, 1993.
TriNet Corporate Realty Trust, Inc.
By: /s/ Mark S. Whiting (SEAL)
------------------------------------
Mark S. Whiting,
President
Attest: /s/ James R. Reinhart
----------------------------
James R. Reinhart,
Secretary
The undersigned President acknowledges the foregoing Articles of
Amendment and Restatement to be the act of TriNet Corporate Realty Trust, Inc.
and as to all matters or facts to be verified under oath, the undersigned
acknowledges that to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties for perjury.
TriNet Corporate Realty Trust, Inc.
By: /s/ Mark S. Whiting
------------------------------------
Mark S. Whiting,
President
