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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
_________________________
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 23, 1998
TRINET CORPORATE REALTY TRUST, INC.
(Exact name of Registrant as specified in its Charter)
Maryland
(State of Incorporation)
1-11918 94-3175659
(Commission File Number) (IRS Employer Id. Number)
One Embarcadero Center, 33rd Floor 94111
San Francisco, CA (Zip Code)
(Address of principal executive offices)
(415) 391-4300
(Registrant's telephone number, including area code)
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
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Exhibit
Number Exhibit
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1.1 Definitive Underwriting Agreement, dated April 23, 1998, relating to
the issuance and sale of 701,754 shares of Common Stock of TriNet
Corporate Realty Trust, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ Geoffrey M. Dugan
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Name: Geoffrey M. Dugan
Title: Vice President and General Counsel
Dated: June 5, 1998
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Exhibit 1.1
701,754 Shares
TRINET CORPORATE REALTY TRUST, INC.
Common Stock
UNDERWRITING AGREEMENT
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April 23, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
TriNet Corporate Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell 701,754 shares of common stock of the
Company, par value $.01 per share (the "Shares"), to Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the "Underwriter"). The Underwriter intends to
deposit the Shares with the trustee of the Equity Investor Fund Cohen & Steers
Realty Majors Portfolio (a Unit Investment Trust)(the "Trust"), a registered
unit investment trust under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), for which Merrill Lynch, Pierce, Fenner & Smith
Incorporated acts as sponsor and depositor, in exchange for units in the Trust.
The shares of common stock, par value $.01 per share, of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "Common Stock."
1. Registration Statement and Prospectus. The Company has prepared and
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filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called the
"Act"), a registration statement on Form S-3 (Registration No. 333-42717)
including a preliminary prospectus relating to the registration of the Shares
and such other securities which may be offered from time to time by the Company
in accordance with Rule 415 under the Act. Such registration statement (as
amended, if applicable) has been declared effective by the Com-
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mission on December 30, 1997. Such registration statement (as amended, if
applicable), on the one hand, and the prospectus constituting a part thereof and
the prospectus supplement relating to the offering of the Shares provided to the
Underwriter by the Company for use (whether or not such prospectus supplement is
required to be filed with the Commission by the Company pursuant to the Act)
(the "Prospectus Supplement"), on the other hand, including all documents
incorporated therein by reference, as from time to time amended or supplemented
pursuant to the Act, the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively called the
"Exchange Act") are referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, however, that a Prospectus Supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of the Shares to which it relates. Any registration statement
(including any amendment or supplement thereto or information which is deemed
part thereof) filed by the Company under Rule 462(b) of the Act (a "Rule 462(b)
Registration Statement") shall be deemed to be part of the "Registration
Statement" as defined herein and any prospectus or any term sheet as
contemplated by Rule 434 of the Act (a "Term Sheet") (including any amendment or
supplement thereto or information which is deemed part thereof) included in such
registration statement shall be deemed to be part of the "Prospectus," as
defined herein. All references in this Agreement to financial statements and
schedules and other information which are "contained," "included," "described"
or "stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are or are deemed
to be incorporated by reference in the Registration Statement or Prospectus, as
the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include, without limitation, even though not specifically stated, any
document filed under the Exchange Act which is or is deemed to be incorporated
by reference in the Registration Statement or the Prospectus, as the case may
be. Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations
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and warranties contained in this Agreement, and subject to its terms and
conditions, the Company agrees to issue and sell, Shares and the Underwriter
agrees to purchase from the Company, the Shares at a price per share of $33.7547
(the "Purchase Price").
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3. Terms of Public Offering. The Company is advised by the Underwriter
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that the Underwriter proposes to deposit the Shares with the Trustee of the
Trust, a registered unit investment trust under the Investment Company Act for
which Merrill Lynch, Pierce, Fenner & Smith Incorporated acts as a sponsor and
depositor, in exchange for units in the Trust (the "Offering"), as soon after
the execution and delivery hereof as in the judgment of the Underwriter is
advisable.
4. Delivery and Payment. Delivery to the Underwriter of certificates
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for and payment of the Purchase Price for the Shares shall be made, subject to
Section 9, at 10:00 A.M., New York City time, on April 29, 1998, or such other
time not later than ten business days after such date as shall be agreed upon by
the Underwriter and the Company (such time and date of payment and delivery
being herein called the "Closing Date") at such place as the Underwriter shall
designate. The Closing Date and the location of, delivery of and the form of
payment for the Shares may be varied by agreement between the Underwriter and
the Company.
Certificates for the Shares shall be registered in such names and issued in
such denominations as the Underwriter shall request in writing not later than
two full business days prior to the Closing Date. Such certificates shall be
made available to the Underwriter for inspection not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date.
Certificates in definitive form evidencing the Shares shall be delivered to the
Underwriter on the Closing Date, with any transfer taxes thereon duly paid by
the Company, for the account of the Underwriter, against payment of the Purchase
Price therefor by intra-bank transfer or wire transfer of same day funds to such
account as may be designated by the Company at least two business days prior to
the Closing Date.
5. Agreements of the Company. The Company agrees with the Underwriter as
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follows:
(a) In respect of the offering of Shares, the Company will prepare a
Prospectus Supplement setting forth the number of Shares covered thereby
and their terms not otherwise specified in the Prospectus pursuant to which
the Shares are being issued, the name of the Underwriter and the number of
Shares which the Underwriter has agreed to purchase, the price at which the
Shares are to be purchased by the Underwriter from the Company, the initial
offering price, and such other information as the Underwriter and the
Company deem appropriate in connection with
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the offering of the Shares. The Company will furnish to the Underwriter and
to such dealers as the Underwriter shall specify as many copies of the
Prospectus as the Underwriter shall reasonably request for the purposes
contemplated by the Act or the Exchange Act.
(b) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, the Company
will advise the Underwriter promptly and, if requested by the Underwriter,
confirm such advice in writing, of (i) the effectiveness of any amendment
to the Registration Statement, (ii) the transmittal to the Commission for
filing of any Prospectus or other supplement or amendment to the Prospectus
to be filed pursuant to the Act, (iii) the receipt of any comments from the
Commission relating to the Registration Statement, any preliminary
prospectus, the Prospectus or any of the transactions contemplated by this
Agreement, (iv) any request by the Commission for post-effective amendments
to the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares
for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purposes, and (vi) the happening of any event as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading. The Company will make every reasonable effort to prevent
the issuance of any stop order and if at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
(c) The Company will furnish to the Underwriter without charge, one
signed copy of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits, and furnish
to the Underwriter such number of conformed copies of the Registration
Statement as so filed and of each amendment to it as the Underwriter may
reasonably request.
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(d) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, not to file
any amendment to the Registration Statement or any Rule 462(b) Registration
Statement or to make any amendment or supplement to the Prospectus or any
Term Sheet, if applicable, of which the Underwriter shall not previously
have been advised or to which the Underwriter or its counsel shall
reasonably object; and to prepare and file with the Commission, promptly
upon the Underwriter's reasonable request, any amendment to the
Registration Statement, Rule 462(b) Registration Statement, Term Sheet, or
amendment or supplement to the Prospectus which, in the opinion of the
Underwriter's counsel, may be necessary in connection with the distribution
of the Shares by the Underwriter, and to use its best efforts to cause the
same to become promptly effective.
(e) If, at any time when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of Shares, any
event shall occur as a result of which, in the opinion of counsel for the
Underwriter, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with
any law, the Company will forthwith prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus (in form and
substance reasonably satisfactory to counsel for the Underwriter) so that
the statements in the Prospectus, as so amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances existing when it is so delivered, not misleading, or so that
the Prospectus will comply with any law, and to furnish to the Underwriter
and to such dealers as you shall specify, such number of copies thereof as
the Underwriter or dealers may reasonably request.
(f) The Company will use its best efforts, in cooperation with the
Underwriter, to qualify or register the Shares for offer and sale by the
Underwriter under the applicable state securities or Blue Sky laws and real
estate syndication laws of such jurisdictions as the Underwriter may
reasonably request; provided, however, the Company will not be required to
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qualify as a foreign corporation,
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file a general consent to service of process in any such jurisdiction,
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject, or provide any undertaking or make
any change in its charter or by-laws that the Board of Directors of the
Company reasonably determines to be contrary to the best interests of the
Company and its stockholders. In each jurisdiction in which the Shares have
been so qualified or registered, the Company will use all reasonable
efforts to file such statements and reports as may be required by the laws
of such jurisdiction, to continue such qualification or registration in
effect for so long a period as the Underwriter may reasonably request for
the distribution of the Shares and to file such consents to service of
process or other documents as may be necessary in order to effect such
qualification or registration; provided, however, the Company will not be
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required to qualify as a foreign corporation, file a general consent to
service of process in any such jurisdiction, subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
so subject, or provide any undertaking or make any change in its charter or
by-laws that the Board of Directors of the Company reasonably determines to
be contrary to the best interests of the Company and its stockholders.
(g) To make generally available to the Company's stockholders as soon
as reasonably practicable but not later than sixty (60) days after the
close of the period covered thereby (ninety (90) days in the event the
close of such period is the close of the Company's fiscal year), an
earnings statement (in form complying with the provisions of Rule 158 of
the Act) covering a period of at least twelve months after the effective
date of the Registration Statement (but in no event commencing later than
ninety (90) days after such date) which shall satisfy the provisions of
Section 11(a) of the Act, and, if required by Rule 158 of the Act, to file
such statement as an exhibit to the next periodic report required to be
filed by the Company under the Exchange Act covering the period when such
earnings statement is released.
(h) During the period of five years after the date of this Agreement,
the Company will furnish to the Underwriter, as soon as available, a copy
of each regular and periodic report or other publicly available information
of the Company and any of its subsidiaries mailed to the
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holders of the Shares or filed with the Commission or any securities
exchange.
(i) During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of the Shares,
to file all documents required to be filed by it with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the time
periods required by the Exchange Act.
(j) The Company will pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the Act of
the Registration Statement and any amendment thereto (including financial
statements and exhibits), each preliminary prospectus, the Prospectus and
all amendments and supplements to any of them prior to or during the period
specified in paragraph (b), (ii) the printing and delivery of this
Agreement and the Blue Sky Memorandum (including the reasonable
disbursements of counsel for the Underwriter relating to the printing and
delivery of the Blue Sky Memorandum), (iii) the fee of, and the filings and
clearance, if any, with, the National Association of Securities Dealers,
Inc. (the "NASD") in connection with the Offering, (iv) the fee of, and the
listing of the Shares on, the New York Stock Exchange, Inc. ("NYSE"), (v)
furnishing such copies of the Registration Statement, the Prospectus and
all amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Shares by the Underwriter, (vi)
the preparation, issuance and delivery of certificates for the Shares to
the Underwriter, (vii) the costs and charges of any transfer agent or
registrar, (viii) any transfer taxes imposed on the sale of the Shares by
the Company to the Underwriter and (ix) the fees and disbursements of the
Company's counsel and accountants.
(k) The Company will use its best efforts to maintain the listing of
the Shares on the NYSE for a period of three years after the Closing Date
and thereafter unless the Company's Board of Directors determines that it
is no longer in the best interests of the Company for the Shares to
continue to be so listed.
(l) The Company will use its best efforts to do and perform all
things required to be done and performed under this Agreement by the
Company prior to the Closing Date
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and to satisfy all conditions precedent to the delivery of the Shares.
(m) The Company will use the net proceeds received by it from the
sale of the Shares in the manner specified in the Prospectus Supplement
under "Use of Proceeds."
(n) The Company will prepare and file or transmit for filing with the
Commission, in accordance with Rule 424(b) of the Act, copies of the
Prospectus.
(o) The Company will use its best efforts to continue to qualify as a
"real estate investment trust" ("REIT") under Sections 856 through 860 of
the Internal Revenue Code of 1986, as amended (the "Code"), for a period of
two years after the date of this Agreement, unless the Company's Board of
Directors determines that it is no longer in the best interests of the
Company to be so qualified.
6. Representations and Warranties of the Company. The Company represents
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and warrants to the Underwriter as of the date hereof and the Closing Date that:
(a) The Registration Statement became effective on December 30, 1997.
No stop order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by the
Commission or by the state securities authority of any jurisdiction. No
order preventing or suspending the use of the Prospectus has been issued
and no proceeding for that purpose has been instituted or, to the knowledge
of the Company, threatened by the Commission or by the state securities
authority of any jurisdiction.
(b) The Registration Statement and the Prospectus, including the
financial statements, schedules and related notes included in the
Prospectus and, if applicable, any Term Sheet to the Prospectus, as of the
date hereof and at the time the Registration Statement became effective,
and when any post-effective amendment to the Registration Statement or Rule
462(b) Registration Statement becomes effective or any amendment or
supplement to the Prospectus is filed with the Commission, did or will
comply in all material respects with all applicable provisions of the Act
and will contain all statements required to be stated therein in accordance
with the Act. The Prospectus, in-
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cluding the financial statements, schedules and related notes included in
the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of
the date hereof and at the time the Registration Statement became
effective, and at the Closing Date, and when any post-effective amendment
to the Registration Statement or Rule 462(b) Registration Statement becomes
effective or any amendment or supplement to the Prospectus is filed with
the Commission, did or will comply in all material respects with all
applicable provisions of the Act and will contain all statements required
to be stated therein in accordance with the Act. On the date the
Registration Statement was declared effective, on the date hereof, on the
date of filing of any Rule 462(b) Registration Statement and on the Closing
Date, no part of the Registration Statement or any amendment did or will
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading. On the date the Registration Statement
was declared effective, on the date hereof, as of its date, on the date of
filing of any Rule 462(b) Registration Statement and at the Closing Date,
the Prospectus and the Prospectus Supplement did not or will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If a Rule 462(b) Registration
Statement is filed in connection with the offering and sale of the Shares,
the Company will have complied or will comply with the requirements of Rule
111 under the Act relating to the payment of filing fees therefor. The
foregoing representations and warranties in this Section 6(b) do not apply
to any statements or omissions made in reliance on and in conformity with
information relating to the Underwriter furnished in writing to the Company
by the Underwriter specifically for inclusion in the Registration Statement
or Prospectus or any amendment or supplement thereto. The Company has not
distributed any offering material in connection with the offering or sale
of the Shares other than the Registration Statement, the Prospectus or any
other materials, if any, permitted by the Act.
(c) Each 462(b) Registration Statement, if any, (i) complied or will
comply when so filed in all material respects with all applicable
provisions of the Act and (ii) did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading.
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act,
at the time they were, or hereafter are, filed with the Commission,
complied and will comply in all material respects with the requirements of
the Exchange Act, and, when read together with other information in and
incorporated by reference in the Prospectus, at the time the Registration
Statement became effective, and as of the Closing Date, or during the
period specified in Section 5(b), did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading. The foregoing representations and
warranties in this Section 6(d) do not apply to any statements or omissions
made in reliance on and in conformity with information relating to the
Underwriter furnished in writing to the Company by the Underwriter
specifically for inclusion in the Registration Statement or Prospectus or
any amendment or supplement thereto.
(e) The historical financial statements and the related notes
thereto, included or incorporated by reference in the Registration
Statement and the Prospectus, comply in all material respects with the
requirements of the Act and the Exchange Act, as applicable, and present
fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
their operations and the changes in their cash flows for the periods
specified; the financial statements with respect to the Properties (as
defined in the Prospectus) acquired by the Company, together with related
notes, incorporated by reference in the Registration Statement or the
Prospectus, present fairly a summary of gross income and direct operating
expenses or a summary of gross income, as the case may be, of such
Properties for the indicated periods; the foregoing financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and the supporting schedules
included or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; the pro forma
financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
comply in all material re-
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spects with the applicable requirements of the Act and the Exchange Act, as
applicable; the assumptions used in preparing such pro forma information
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions referred to therein; and the other financial and
statistical information and data set forth in the Registration Statement
and the Prospectus are accurately presented in all material respects and
prepared on a basis consistent with the books and records of the Company
and its consolidated subsidiaries.
(f) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the condition (financial or
otherwise), business, prospects, properties, net worth or results of
operations of the Company and the Subsidiaries (as defined below), taken as
a whole, otherwise than as set forth or contemplated in the Prospectus; and
(ii) except as set forth or contemplated in the Prospectus, neither the
Company nor any of the Subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of business) material to
the Company and the Subsidiaries, taken as a whole.
(g) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of Maryland,
with corporate power and authority to own or lease its properties and
conduct its business as described in the Prospectus, and is duly qualified
as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not (1) have a material adverse effect on the condition
(financial or otherwise), business, prospects, properties, net worth or
results of operations of the Company and the Subsidiaries (as defined
below), taken as a whole, (2) adversely affect the issuance or validity of
the Shares or (3) adversely affect the consummation of any of the
transactions contemplated by this Agreement (each of (1), (2) and (3)
above, a "Material Adverse Effect") (which jurisdictions of foreign
qualification are identified in Schedule I hereto); except for investments
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in the Subsidiaries, in short-term investment securities and in other
securities as described in the
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Registration Statement or Prospectus, the Company has no direct or indirect
equity or other interest in any corporation, partnership, trust or other
entity; each of the Company's subsidiaries (within the meaning of
Regulation S-X under the Act) (other than TriNet XVII Realty Trust and
TriNet Operating Management Company, Inc., which do not own any property or
other material assets) is identified on Schedule II hereto (the
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"Subsidiaries") and has been duly organized and is validly existing as a
corporation or limited partnership, as the case may be, in good standing
under the laws of its jurisdiction of organization with corporate or
partnership power and authority, as the case may be, to own or lease its
properties and conduct its business as presently conducted and as described
in the Prospectus, and has been duly qualified as a foreign corporation or
foreign limited partnership, as the case may be, for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a Material Adverse Effect (which
jurisdictions of organization and foreign qualification are identified in
Schedule II hereto); all the outstanding shares of capital stock of each
-----------
Subsidiary have been duly authorized and validly issued and are fully paid
and non-assessable; except as disclosed in Schedule II hereto, all the
-----------
outstanding shares of capital stock and all partnership interests of each
Subsidiary are owned by the Company, directly or indirectly, free and clear
of all liens, encumbrances, security interests and claims.
(h) This Agreement has been duly authorized, executed and delivered
by the Company.
(i) The Shares have been duly authorized and, when issued and
delivered to the Underwriter against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and non-assessable.
Application has been made to list the Shares on the NYSE. The form of
certificate for the Shares will comply with all applicable legal and NYSE
requirements. The holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to subscribe for the
Shares. The capital stock of the Company conforms to the description
thereof in the Registration Statement and the Prospectus.
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(j) Neither the Company nor any of the Subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under (1) its Articles of Incorporation, Certificate of
Incorporation or partnership agreement, as the case may be (in each case as
amended to the date of this Agreement), (2) its By-laws (as amended to the
date of this Agreement) or (3) any indenture, mortgage, deed of trust, loan
agreement, partnership agreement or other agreement or instrument or
obligation to which the Company or such Subsidiary is a party or by which
it or any of its properties is bound, except, with respect to clauses (2)
and (3), for violations and defaults which individually or in the aggregate
would not have a Material Adverse Effect; the issue and sale of the Shares
and the performance by the Company of all of its obligations under this
Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, partnership agreement or other material agreement or
instrument to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary is bound or to which any of the property or
assets of the Company or any Subsidiary is subject, except for such
conflicts, breaches, defaults or violations which individually or in the
aggregate would not have a Material Adverse Effect, nor will any such
action result in any violation of the provisions of the Articles of
Incorporation or the By-Laws of the Company or any applicable law or
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties, except for such violations which individually or in the
aggregate would not have a Material Adverse Effect; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, orders, registrations or qualifications (x) as have been
obtained under the Act and the Exchange Act, (y) as may be required under
state securities or Blue Sky laws or Sections 2710 and 2720 of the Conduct
Rules of the NASD in connection with the purchase and distribution of the
Shares by the Underwriter or (z) the failure to obtain which would not have
a Material Adverse Effect.
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(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of
the Company, threatened to which the Company or any of the Subsidiaries is
or may be a party or to which any property of the Company or any of the
Subsidiaries is or may be the subject which, if determined adversely to the
Company, could individually or in the aggregate reasonably be expected to
have a Material Adverse Effect; there are no contracts or other documents
of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus which are not filed or described as required; and the
descriptions of the terms of all such contracts and documents contained or
incorporated by reference in the Registration Statement or Prospectus are
complete and correct in all material respects.
(l) The authorized capital stock of the Company consists of 40
million shares of common stock, $.01 par value per share, 25 million shares
of excess stock, $.01 par value per share, and 10 million shares of
preferred stock, $.01 par value per share. All of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable.
(m) The Company or a Subsidiary has good and marketable title to each
Property, in each case free of any lien, mortgage, pledge, charge or
encumbrance of any kind except those (i) described in the Prospectus or in
Schedule II hereto or (ii) which do not materially affect or detract from
the value of such Property or interfere with the use made and proposed to
be made of such Property by the Company and the Subsidiaries and which
individually and in the aggregate are in an amount which is not material to
the Company.
(n) Except as disclosed in the Prospectus, each entity identified in
the Prospectus as a tenant of any Property, or a subtenant thereof, has
entered into a lease or a sublease, if applicable, for the possession of
such Property; except as disclosed in the Prospectus, each such lease is in
full force and effect and neither the Company nor any of the Subsidiaries
has notice of any defense to the obligations of the tenant thereunder or
any claim asserted or threatened by any person or entity, which claim, if
sustained, would have a Material Adverse Effect; and
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<PAGE>
except as disclosed in the Prospectus, the lessor under each lease has
complied with its obligations under such lease in all material respects and
neither the Company nor any of the Subsidiaries has notice of any default
by the tenant under such lease which, individually or in the aggregate with
other such defaults, would have a Material Adverse Effect.
(o) The mortgages and deeds of trust encumbering the Properties are
not (i) cross-defaulted to any indebtedness other than indebtedness of the
Company or any of the Subsidiaries or (ii) cross-collateralized to any
property not owned by the Company or any of the Subsidiaries.
(p) The Company and the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are customary in the business in which they are engaged and
such insurance is adequate for the value of their properties; all policies
of insurance insuring the Company or the Subsidiaries or their respective
businesses, assets, employees, officers, trustees and directors, as the
case may be, are in full force and effect; the Company and the Subsidiaries
are in compliance with the terms of such policies in all material respects
and there are no claims by the Company or by the Subsidiaries under any
such policy as to which any insurance company is denying liability or
defending under a reservation of rights clause, other than claims which
individually or in the aggregate would not have a Material Adverse Effect.
(q) The Company has filed all federal, state and foreign income tax
returns which have been required to be filed and has paid all taxes
indicated by said returns and all assessments received by it to the extent
that such taxes have become due and are not being contested in good faith.
(r) The Company and each Subsidiary own, possess and have obtained
all material licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and have made all material declarations and
filings with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals
necessary to own or lease, as the case may be, and to operate their
properties and to carry on their business as conducted as of the date
hereof, except in each case where the failure to obtain
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<PAGE>
licenses, permits, certificates, consents, orders, approvals and other
authorizations, or to make all declarations and filings, would not have a
Material Adverse Effect, and none of the Company or any Subsidiary has
received any notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order,
approval or other authorization, except as described in the Prospectus and
except, in each case, where such revocation or modification would not have
a Material Adverse Effect; and the Company and each Subsidiary are in
compliance with all laws, rules and regulations relating to the conduct of
their respective businesses as conducted as of the date hereof, except
where noncompliance with such laws, rules or regulations would not have a
Material Adverse Effect.
(s) To the Company's knowledge, Coopers & Lybrand L.L.P., who have
certified certain of the financial statements filed with the Commission as
part of, or incorporated by reference in, the Registration Statement, are
independent public accountants as required by the Act.
(t) To the Company's knowledge, no relationship, direct or indirect,
exists between or among the Company or the Subsidiaries on the one hand,
and the directors, trustees, officers, stockholders, customers or suppliers
of the Company or the Subsidiaries on the other hand, which is required by
the Act to be described in the Registration Statement and the Prospectus
which is not so described.
(u) The Company has never been, is not now, and immediately after
giving effect to the sale of the Shares under this Agreement will not be,
an "investment company" or entity "controlled" by an "investment company,"
within the meaning of the Investment Company Act.
(v) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim against the
Company, the Company has met the requirements for qualification as a REIT
under Sections 856 through 860 of the Code, and the Company's present and
contemplated operations, assets and income continue to meet such
requirements.
(w) The conditions for the use by the Company of a registration
statement on Form S-3 set forth in the General Instructions on Form S-3
have been satisfied and the
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<PAGE>
Company is entitled to use such form for the transactions contemplated
herein.
(x) Other than as disclosed in the Prospectus, the Company has no
knowledge of (a) the unlawful presence of any hazardous substances,
hazardous materials, toxic substances or waste materials (collectively,
"Hazardous Materials") on any of the Properties or (b) any unlawful spills,
releases, discharges or disposals of Hazardous Materials that have occurred
or are presently occurring from the Properties as a result of any
construction on or operation and use of the Properties, which presence or
occurrence would individually or in the aggregate have a Material Adverse
Effect.
(y) Other than as disclosed in the Prospectus, the Company and the
Subsidiaries (i) to the Company's knowledge, are in compliance with any and
all applicable federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) to the Company's knowledge, have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not
individually or in the aggregate have a Material Adverse Effect.
(z) In the ordinary course of its business, the Company engages
environmental consultants and other experts to conduct reviews of the
effect of Environmental Laws on the business, operations and properties of
the Company and the Subsidiaries, in the course of which the Company
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of
such reviews and other than as described in the Prospectus, the Company has
reasonably concluded that such associated costs and liabilities would
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<PAGE>
not, individually or in the aggregate, have a Material Adverse Effect.
(aa) Subsequent to the respective dates as of which information is
given in the Prospectus, (i) the Company has not purchased any of its
outstanding shares of capital stock, or declared, paid or otherwise made
any dividend or distribution of any kind on its shares of capital stock
other than regular periodic dividends on such shares; and (ii) there has
not been any material change in the shares of capital stock of the Company
or any material change in the short-term debt or long-term debt of the
Company and the Subsidiaries on a consolidated basis, except as described
in or contemplated by the Prospectus. Other than as described in or
contemplated by the Prospectus (including the Incorporated Documents),
there are no outstanding warrants or options to purchase or rights to
acquire any shares of capital stock of the Company and there are no
restrictions upon the voting or transfer of, or the declaration or payment
of any dividend or distribution on, any shares of capital stock of the
Company pursuant to the Company's Articles of Incorporation or By-laws, any
agreement or other instrument to which the Company is a party or by which
the Company is bound, or any order, law, rule, regulation or determination
of any court, governmental agency or body (including, without limitation,
any banking or insurance regulatory agency or body), or arbitrator having
jurisdiction over the Company. No holders of securities of the Company or
of securities convertible into or exchangeable for securities of the
Company have rights to the registration of such securities of the Company
under the Registration Statement.
(bb) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Shares, and the Company has not distributed, and has agreed not to
distribute, any prospectus or other offering material in connection with
the offering and sale of the Shares other than the Prospectus or other
material permitted by the Act.
(cc) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization,
(ii) transactions are recorded as necessary to permit
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<PAGE>
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's general
or specific authorization, and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(dd) There is (i) no significant unfair labor practice complaint
pending against the Company or any of the Subsidiaries or, to the knowledge
of the Company, threatened against any of them, before the National Labor
Relations Board or any state or local labor relations board, and no
significant grievance or more significant arbitration proceeding arising
out of or under any collective bargaining agreement is so pending against
the Company or any of the Subsidiaries or, to the knowledge of the Company,
threatened against any of them, and (ii) no significant strike, labor
dispute, slowdown or stoppage pending against the Company or any of the
Subsidiaries or, to the knowledge of the Company, threatened against it or
any of the Subsidiaries, except for such actions specified in clause (i) or
(ii) above which singly or in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
(ee) No statement, representation, warranty or covenant made by the
Company in this Agreement or in any certificate or document required by
this Agreement to be delivered to the Underwriter is, or will be, when
made, inaccurate, untrue or incorrect in any material respect; it being
understood that no representation is made under this Section 6(ee) with
respect to the Registration Statement or the Prospectus which are the
subject of representations contained in other paragraphs in this Section 6.
(ff) Any certificate or other document signed by any officer or
authorized representative of the Company or any Subsidiary, and delivered
to the Underwriter or to counsel for the Underwriter in connection with the
sale of the Shares shall be deemed a representation and warranty by such
entity or person, as the case may be, to the Underwriter as to the matters
covered thereby.
7. Indemnification. (a) The Company agrees to indemnify and hold
---------------
harmless the Underwriter and each person, if any, who controls the Underwriter
within the meaning of Section
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<PAGE>
15 of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, expenses, liabilities and judgments caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, expenses, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon and in
conformity with information relating to the Underwriter furnished in writing to
the Company by or on behalf of the Underwriter expressly for use therein;
provided, that this indemnity agreement with respect to any preliminary
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prospectus shall not inure to the benefit of the Underwriter from whom the
person asserting any such losses, liabilities, claims, damages or expenses
purchased Shares, or any person controlling the Underwriter, if a copy of the
prospectus (as then amended or supplemented if the Company shall have furnished
any such amendments or supplements thereto) was not sent or given by or on
behalf of the Underwriter to such person, if such is required by law, at or
prior to the written confirmation of the sale of such Shares to such person and
if the Prospectus (as so amended or supplemented) would have corrected the
defect giving rise to such loss, liability, claim, damage or expense.
(b) In case any action shall be brought against the Underwriter or
any person controlling the Underwriter, based upon any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the Company,
the Underwriter shall promptly notify the Company in writing and the Company
may, at its election, assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all
fees and expenses. The Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall, if the Company
has assumed the defense as indicated above, be at the expense of the Underwriter
or such controlling person unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or (iii) (a) the named
parties to any such action (including any impleaded parties) include
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<PAGE>
both the Underwriter or such controlling person and the Company and (b) the
Underwriter or such controlling person shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the Company (in which case, the Company
shall not have the right to assume the defense of such action on behalf of the
Underwriter or such controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for the Underwriter and controlling persons, which firm shall be
designated in writing by the Underwriter and that all such fees and expenses
shall be reimbursed as they are incurred). The Company shall not be liable for
any settlement of any such action effected without its written consent but if
settled with the written consent of the Company, the Company agrees to indemnify
and hold harmless the Underwriter and any such controlling person from and
against any loss or liability by reason of such settlement to the extent
required by this Section 7. Notwithstanding the immediately preceding sentence,
if in any case where the fees and expenses of counsel are at the expense of the
indemnifying party and an indemnified party shall have requested the
indemnifying party to reimburse the indemnified party for such fees and expenses
of counsel as incurred, such indemnifying party agrees that it shall be liable
for any settlement of any action effected without its written consent if (i)
such settlement is entered into more than forty business days after the receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall have failed to reimburse the indemnified party in accordance with
such request for reimbursement prior to the date of such settlement; provided,
---------
however, that if it is determined by a final non-appealable order of a court of
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competent jurisdiction that the Company has no indemnification obligation under
this Section 7, all fees and expenses paid by the Company pursuant to this
sentence shall be returned to the Company upon its demand. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
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<PAGE>
(c) The Underwriter agrees to indemnify and hold harmless the Company
and the Company's officers and directors who sign the Registration Statement and
any person controlling the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to the Underwriter, but only with reference to and in
conformity with information relating to the Underwriter furnished in writing by
or on behalf of the Underwriter expressly for use in the Registration Statement,
the Prospectus or any preliminary prospectus. In case any action shall be
brought against the Company, any of its officers, directors, or any person
controlling the Company based on the Registration Statement, the Prospectus or
any preliminary prospectus and in respect of which indemnity may be sought
against the Underwriter, the Underwriter shall have the rights and duties given
to the Company (except that if the Company shall have assumed the defense
thereof, the Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall, except as otherwise provided herein, be at the
expense of the Underwriter), and the Company, its officers and directors and any
person controlling the Company shall have the rights and duties given to the
Underwriter by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
expenses, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, expenses, liabilities and judgments (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Underwriter, on the other hand, from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also the relative fault
of the Company, on the one hand, and of the Underwriter, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, expenses, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and by the Underwriter, on the other hand, shall be
deemed to be in the same proportion as the total net proceeds from the Offering
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriter bear to the total price to
the public of the Shares,
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<PAGE>
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company, on the one hand, and of the Underwriter, on the
other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or the Underwriter
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, expenses, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. Conditions of Underwriter's Obligations. The obligations of the
---------------------------------------
Underwriter to purchase the Shares under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct, in all material respects, on
the Closing Date, with the same force and effect as if made on and as of
the Closing Date.
(b) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been commenced or
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<PAGE>
shall be pending before or threatened by the Commission to the knowledge,
after due inquiry, of the Company. No stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or threatened by the state securities authority of any jurisdiction,
to the knowledge of the Company.
(c) (i) Since the date of the latest balance sheet incorporated by
reference in the Registration Statement and the Prospectus, there shall not
have been any Material Adverse Effect, (ii) other than as set forth in the
Prospectus, no proceedings shall be pending or, to the knowledge of the
Company, after due inquiry, threatened against the Company or any Property
before or by any federal, state or other commission, board or
administrative agency, where an unfavorable decision, ruling or finding
could reasonably be expected to result in a Material Adverse Effect, and on
the Closing Date you shall have received a certificate dated the Closing
Date, signed by the Chief Executive Officer and the Chief Financial Officer
of the Company, in their capacities as the Chief Executive Officer and
Chief Financial Officer of the Company, on behalf of the Company,
confirming the matters set forth in paragraphs (a), (b) and (c) of this
Section 8.
(d) You shall have received on the Closing Date opinions, dated the
Closing Date, of Goodwin, Procter & Hoar LLP, counsel for the Company, in
the forms attached hereto as Annex A and Annex B.
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(e) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Cahill Gordon & Reindel, counsel for the Underwriter, to
the effect that:
(i) the Shares have been duly authorized, and when issued and
delivered to the Underwriter against payment therefor as provided by
this Agreement, will have been validly issued and will be fully paid
and non-assessable, and the issuance of such Shares is not subject to
any preemptive or similar rights;
(ii) the Registration Statement has become effective under the
Act and, to the knowledge of such counsel, no stop order suspending
its effectiveness has been issued and no proceedings for that purpose
are pending before or threatened by the Commission;
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<PAGE>
(iii) this Agreement was duly and validly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by any other party thereto, is valid, legally
binding and enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and except as rights to indemnity and
contribution thereunder may be limited by applicable securities laws;
and
(iv) the Registration Statement, at the time it became effective,
and the Prospectus, as of the date of the Prospectus Supplement (in
each case, other than documents incorporated therein by reference and
the financial statements and supporting schedules and other financial
and statistical data included or incorporated by reference therein, as
to which no opinion need be rendered) complied as to form in all
material respects with the requirements of the Act.
In addition, Cahill Gordon & Reindel shall state that they have
participated in conferences with representatives of the Underwriter,
officers and other representatives of the Company, counsel for the Company
and representatives of the independent public accountants of the Company at
which the contents of the Registration Statement and the Prospectus and
related matters were discussed. Given the limitations inherent in the role
of outside counsel and the character of determinations involved in the
preparation of the Registration Statement and the Prospectus, such counsel
need not pass upon or assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus or the documents incorporated therein by
reference and have made no independent check or verification thereof. On
the basis of the foregoing, no facts have come to the attention of such
counsel which lead them to believe that the Registration Statement,
including the documents incorporated therein by reference, at the date of
this Agreement, contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading or
that the Prospectus, including the documents incorporated
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<PAGE>
therein by reference, at the time the Prospectus was first provided to the
Underwriter for use in connection with the offering of the Shares or at the
date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements, including the notes
thereto, or any other financial or statistical data found in or derived
from the internal accounting or other records of the Company and its
subsidiaries set forth or referred to in the Registration Statement, the
Prospectus or the documents incorporated therein by reference).
Cahill Gordon & Reindel need express no opinion (i) as to the
enforceability of forum selection clauses in the federal courts or (ii)
with respect to the requirements of, or compliance with, any state
securities or "Blue Sky" or real estate syndication laws. In addition,
Cahill Gordon & Reindel may rely as to all matters governed by the laws of
the State of Maryland upon the opinion of Goodwin, Procter & Hoar LLP.
(f) On the date hereof, Coopers & Lybrand L.L.P. shall have furnished
to the Underwriter a letter, dated the date of its delivery, addressed to
the Underwriter and in form and substance satisfactory to the Underwriter
(and to its counsel), confirming that they are independent public
accountants with respect to the Company and its Subsidiaries as required by
the Act and with respect to the financial and other statistical and
numerical information contained in the Registration Statement. At the
Closing Date, Coopers & Lybrand L.L.P. shall have furnished to the
Underwriter a letter, dated the date of its delivery, which shall confirm,
on the basis of a review in accordance with the procedures set forth in the
letter from it, that nothing has come to its attention during the period
from the date of the letter referred to in the prior sentence to a date
(specified in the letter) not more than five days prior to the Closing
Date, which would require any change in its letter dated the date hereof if
it were required to be dated and delivered at the Closing Date.
(g) At the Closing Date, the Shares shall have been approved for
listing on the NYSE upon official notice of issuance.
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<PAGE>
(h) The Company and its Subsidiaries shall not have failed at or
prior to the Closing Date, to perform or comply with any of the agreements
pursuant to Section 5 herein contained and required to be performed or
complied with by the Company at or prior to the Closing Date.
(i) At the Closing Date, counsel for the Underwriter shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Shares, as herein contemplated, and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Shares
as herein contemplated shall be reasonably satisfactory in form and
substance to the Underwriter and counsel for the Underwriter.
9. Effective Date of Agreement and Termination. This Agreement shall
-------------------------------------------
become effective upon the execution of this Agreement.
This Agreement may be terminated at any time prior to the Closing Date
by written notice from the Underwriter to the Company if any of the following
has occurred: (i) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has been a Material
Adverse Effect, (ii) any outbreak or escalation of hostilities or other national
or international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in the Underwriter's
judgment, is material and adverse and would, in the Underwriter's judgment, make
it impracticable or inadvisable (x) to commence or continue the offering of the
units of the Trust to the public or (y) to enforce contracts for the sale of the
units of the Trust, (iii) the suspension or material limitation of trading in
securities on the NYSE or the American Stock Exchange or material limitation on
prices for securities on either of such exchanges, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
the Underwriter's opinion would result in a Material Adverse Effect, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in the
Under-
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<PAGE>
writer's opinion has a material adverse effect on the financial markets in the
United States.
10. Miscellaneous. Notices given pursuant to any provision of this
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Agreement shall be addressed as follows: (a) if to the Company, to TriNet
Corporate Realty Trust, Inc., Four Embarcadero Center, Suite 3150, San
Francisco, California 94111 and (b) if to the Underwriter, to Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, North Tower, World
Financial Center, New York, New York 10281-1209, Attention: John Brady, or in
any case to such other address as the person to be notified may have requested
in writing.
The provisions of Sections 5, 6 and 7 shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of the Underwriter or by or on behalf of the Company, the
officers or directors of the Company or any controlling person of the Company
and (ii) acceptance of the Shares and payment for them hereunder.
In the event of termination of this Agreement, the provisions of Sections
5(k) and 7 shall remain operative and in full force and effect.
If this Agreement shall be terminated by the Underwriter because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the Underwriter for all out-of-pocket expenses (including the fees and
documented disbursements of counsel) reasonably incurred by the Underwriter.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company and the Underwriter,
any controlling persons referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the Shares
from the Underwriter merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
-28-
<PAGE>
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
-29-
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the Underwriter.
Very truly yours,
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ A. William Stein
----------------------------------
Name: A. William Stein
Title: Executive Vice President
and Chief Financial Officer
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ David L. Knowles
-----------------------------
Name: David L. Knowles
Title: Managing Director
-30-
<PAGE>
SCHEDULE I
STATES OF
FOREIGN QUALIFICATION OF
TRINET CORPORATE REALTY TRUST, INC.
California
Florida
Pennsylvania
Georgia
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TriNet Essential Facilities I, Inc. Maryland Pennsylvania 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities II, Inc. Maryland Michigan 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities III, Inc. Maryland Florida, Georgia, 100% None
Illinois, Indiana,
Iowa, Mississippi,
New York, Ohio,
Tennessee, W.
Virginia
- ------------------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities V, Inc. Maryland California 100% None
- ------------------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities VI, Inc. Maryland Illinois 100% None
- ------------------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities VII, Inc. Maryland Arizona 100% None
- ------------------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities VIIIR, Inc. Maryland California, Florida, 100% None
Minnesota, Nevada,
Washington
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TriNet Essential Facilities X, Inc. Maryland California, Colorado, 100% None
Florida, Georgia,
Illinois, Indiana,
Missouri, New York,
Ohio, Pennsylvania,
Texas, Utah
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XI, Inc. Maryland Ohio, Kansas 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XII, Inc. Maryland California, Florida, 100% /1/
Illinois, Louisiana,
Minnesota, New York,
Ohio, Tennessee,
Texas
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XIV, Inc. Maryland New Jersey 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XV, Inc. Maryland None 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XVI, Inc. Maryland None 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XVIII, Inc. Maryland Texas 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XIX, Inc. Maryland None 100% None
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ---------------------------------------
/1/ Common Stock pledged in connection with the 1994 Mortgage Loan (as defined
in the Prospectus).
-2-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TriNet Essential Facilities XX, Inc. Maryland California, Wisconsin 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XXI, Inc. Maryland South Carolina 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XXII, Inc. Maryland California, Colorado 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XXIII, Inc. Maryland California, Georgia, 100% None
Massachusetts
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XXIV, Inc. Maryland California 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XXV, Inc. Maryland California 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XXVI, Inc. Maryland California 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XXVII, Inc. Maryland Arizona, California 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Essential Facilities XXVIII, Inc. Maryland Massachusetts 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Property Management, Inc. Maryland California, Florida, 100% None
Georgia, Texas
- ------------------------------------------------------------------------------------------------------------------------
TriNet Realty Capital, Inc. Maryland None 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Realty Investors I, Inc. Maryland Massachusetts 100% None
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
-3-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TriNet Realty Investors II, Inc. Maryland Louisiana 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Realty Investors III, Inc. Maryland None 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Realty Ventures, Inc. Maryland None 100% None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Corporate Partners I, L.P. Delaware Louisiana 100%/2/ None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Corporate Partners II, L.P. Delaware Texas, Tennessee 100%/3/ None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Sunnyvale Partners, L.P. Delaware California 44.7%/4/ None
- ------------------------------------------------------------------------------------------------------------------------
TriNet Property Partners, L.P. d/b/a Delaware Massachusetts 99.0%/5/ None
TriNet Property Partners Limited
Partnership
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ---------------------------------------
/2/ Owned 1% by TriNet Essential Facilities XVI, Inc., as general partner, and
99% by TriNet Essential Facilities XV, Inc., as limited partner.
/3/ Owned 1% by TriNet Essential Facilities XVIII, Inc., as general partner,
and 99% by TriNet Essential Facilities XIX, Inc., as limited partner.
/4/ Owned 44.7% by TriNet Corporate Realty Trust, Inc., as general partner.
TriNet Corporate Realty Trust, Inc. does not own any of the limited
partnership interests in this partnership.
/5/ TriNet Realty Investors I, Inc. is the sole general partner with a 99%
Residual Percentage Interest. The remaining 1% is owned by various persons.
-4-
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Jurisdiction States of Percentage of
of Foreign Equity Interest Title
Name of Subsidiary Organization Qualification Owned by Company Exceptions
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
W9/TriNet Poydras, LLC Delaware Louisiana (*)/6/ None
- ------------------------------------------------------------------------------------------------------------------------
Corporate Technology Centre California None (*)/7/ None
Associates, LLC
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ---------------------------------------
/6/ Owned 50% by TriNet Corporate Partners I, L.P. and 50% by Whitehall Street
Real Estate Limited Partnership.
/7/ Owned 50% by TriNet Realty Investors III, Inc. and 50% by Corporate
Technology Centre Partners LLC.
-5-
<PAGE>
Annex A
-------
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus.
2. The Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing in each jurisdiction
identified in Schedule I to the Underwriting Agreement, which has been
----------
attached as Appendix A hereto.
----------
3. Each Corporate Subsidiary has been duly incorporated and is validly
existing as a corporation, in good standing under the laws of the
State of Maryland. The Limited Partnership Subsidiaries have been
duly formed and are validly existing as limited partnerships in good
standing under the laws of the State of Delaware. Poydras has been
duly formed and is validly existing as a limited liability company in
good standing under the laws of the State of Delaware. CTCA has been
duly formed and is validly existing as a limited liability company in
good standing under the laws of the State of California. Each of the
Subsidiaries has the corporate or partnership, as the case may be,
power and authority to own its properties and conduct its business as
described in the Prospectus.
4. Each of the Subsidiaries has been duly qualified as a foreign
corporation or limited partnership, as the case may be, for the
transaction of business and is in good standing in each jurisdiction
identified with respect to such Subsidiary in Schedule II of the
-----------
Underwriting Agreement, which has been attached as Appendix A hereto.
----------
5. All of the outstanding shares of capital stock of each Corporate
Subsidiary have been duly authorized and validly issued, are fully
paid and non-assessable, and all of such shares of capital stock of
each Corporate Subsidiary are owned of record by the Company, free and
clear of any perfected security interests or, to our knowledge, any
other liens, encumbrances, security interests and claims, except for
the security interest in the issued and outstanding shares of capital
stock of TriNet Essential Facili-
A-1
<PAGE>
ties XII, Inc. listed in Schedule II to the Underwriting Agreement.
-----------
Based solely on our review of the limited partnership agreements of
each Limited Partnership Subsidiary, except as set forth in Appendix A
----------
hereto, all of the partnership interests of such Limited Partnership
Subsidiaries are owned by the Company directly, or indirectly through
Corporate Subsidiaries, as set forth in Appendix A hereto, free and
----------
clear of any perfected security interests or, to our knowledge, any
other liens, encumbrances, security interests and claims. Based solely
on our review of the limited liability company agreements of the LLC
Subsidiaries, except as set forth in Appendix A hereto, all of the
----------
membership interests of the LLC Subsidiaries are owned by the Company
directly, or indirectly through Subsidiaries, as set forth in
Appendix A hereto, free and clear of any perfected security interests
----------
or, to our knowledge, any other liens, encumbrances, security
interests and claims.
6. Other than as set forth or contemplated in the Prospectus, to our
knowledge, there are no legal or governmental proceedings pending (in
which service or notice of process has been received by an officer or
other representative of the Company or any Subsidiary), or threatened
to which the Company or the Subsidiaries are or may be a party or to
which any property of the Company or the Subsidiaries is or may be the
subject which, if determined adversely to the Company or the
Subsidiaries, could individually or in the aggregate reasonably be
expected to have a Material Adverse Effect. We do not know of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not filed or
described as required.
7. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
8. The Shares have been duly authorized and, when issued and delivered to
and paid for by the Underwriter in accordance with the terms of the
Underwriting Agreement, will be validly issued, fully paid and non-
assessable. The Shares have been duly authorized for listing, subject
to official notice of issuance, on the NYSE. The form of certificate
used to evidence the Shares is in due and proper form and complies
with all applicable statutory and NYSE requirements.
A-2
<PAGE>
9. The issuance of the Shares is not subject to preemptive or other
similar rights arising by operation of law, the charter or Bylaws of
the Company or, to our knowledge, otherwise.
10. The Shares conform in all material respects to the descriptions
thereof in the Registration Statement and the Prospectus under the
captions "Description of Common Stock" and "Restrictions on Transfers
of Capital Stock."
11. The issue and sale of the Shares and the performance by the Company of
its obligations under the Underwriting Agreement and the consummation
of the transactions therein contemplated will not (a) conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under any of the documents identified in Appendix B hereto
----------
except for such conflicts, breaches or defaults which individually or
in the aggregate would not have a Material Adverse Effect; (b) result
in any violation of the provisions of the Articles of Incorporation or
the By-Laws of the Company, or (c) result in any violation of any
applicable law or statute or any order known to us, or any rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its Subsidiaries or any of their
respective Properties.
12. To the best of our knowledge, no default exists, and no event has
occurred which with notice or lapse of time, or both, would constitute
a default, in the due performance and observance of any term, covenant
or condition by the Company or any Subsidiary of any agreement or
instrument identified in Appendix B to which the Company or any
----------
Subsidiary is a party or by which any of them or any of their
respective properties or assets is bound or affected, where the
consequences of such default would have a Material Adverse Effect;
provided, that we express no opinion with respect to any default in
the due performance or observance of any financial term, covenant or
condition to the extent that the determination of whether a default
exists, or event has occurred which, with notice or lapse of time, or
both, would constitute a default, does not involve the making of a
legal conclusion.
13. The authorized capital stock of the Company consists of 40 million
shares of common stock, $.01 par value per share, 25 million shares of
excess stock, $.01
A-3
<PAGE>
par value per share, and 10 million shares of preferred stock, $.01
par value per share. The capital stock of the Company conforms to the
description thereof contained in the Prospectus; and all of the issued
and outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and non-assessable.
14. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Shares or the consummation of
the other transactions contemplated by the Underwriting Agreement,
except such consents, approvals, authorizations, orders, registrations
or qualifications as have been obtained under the Securities Act and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and as may be required under state securities or Blue Sky laws or
Corporate Financing Rules of the National Association of Securities
Dealers, Inc. in connection with the purchase and distribution of the
Shares by the Underwriter.
15. The Registration Statement has been declared effective under the
Securities Act. The Prospectus was filed with the Commission pursuant
to Rule 424 within the applicable time period prescribed by Rule 424.
To our knowledge (based solely on oral representations of a member of
the staff of the Commission and a certificate of the Company), no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose is pending or
threatened by the Commission.
16. At the time the Registration Statement became effective and at the
date of the Prospectus Supplement, the Registration Statement as
supplemented by the Prospectus Supplement (other than (A) the
documents incorporated by reference therein and (B) the financial
statements and schedules and other financial or statistical data
included therein, as to which no opinion is given) complied as to form
in all material respects with the requirements for registration
statements on Form S-3 under the Securities Act, it being understood
that in passing upon compliance as to the form of the Registration
Statement, we assume that the statements made or incorporated therein
are correct and complete.
17. The Company is not, and will not become as a result of the
consummation of the transactions contemplated
A-4
<PAGE>
by this Agreement, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
18. To our knowledge, no holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement.
19. The Company satisfies all conditions and requirements for filing the
Registration Statement on Form S-3 under the Securities Act.
20. Each document filed by the Company with the Commission pursuant to the
Exchange Act on or before the date hereof (other than the financial
statements and supporting schedules included therein, as to which no
opinion is given) and incorporated or deemed to be incorporated by
reference in the Prospectus complied when so filed as to form in all
material respects with the requirements of the Exchange Act, it being
understood that in passing upon compliance as to the form of such
documents, we assume that the statements made therein are correct and
complete.
21. The Statements in the Prospectus under the first paragraph of the
caption "Restrictions on Transfers of Capital Stock" (except for the
last sentence thereof), to the extent such information constitutes
statements of law, descriptions of statutes, rules or regulations,
summaries of documents or legal conclusions, have been reviewed by us
and are accurate in all material respects and present fairly the
information required to the disclosed therein.
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
are such that we are not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the documents incorporated therein by
reference and we make no representation that we have independently verified the
accuracy, completeness or fairness of such, except as expressly set forth in (i)
paragraphs (10) and (21) hereof and (ii) the second numbered paragraph of the
opinion of this firm to you relating to certain tax matters of even date
herewith. Without limiting the foregoing, we assume no responsibility for, and
have not independently verified, the accuracy, completeness or fairness of the
financial statements or notes thereto, financial schedules and other financial
and statistical data included in the Registration Statement and the Prospectus,
and we have not examined the
A-5
<PAGE>
accounting, financial or statistical records from which such statements and
notes, schedules and data are derived. However, in the course of our acting as
counsel to the Company and the Subsidiaries in connection with the preparation
of the Registration Statement and the Prospectus and the public offering of the
Shares we participated in conferences and telephone conversations with
representatives of the Company, representatives of Coopers & Lybrand L.L.P.,
accountants for the Company, your representatives and representatives of Cahill
Gordon & Reindel and Davis Polk & Wardwell, your counsel, during which
conferences and conversations the contents of the Registration Statement and the
Prospectus and related matters were discussed. In addition, we reviewed certain
documents made available to us by the Company or otherwise in our possession.
Based on our participation in the above-mentioned conferences and
conversations, our review of the documents described above, our understanding of
applicable law and the experience we have gained in our practice thereunder, we
advise you that:
(a) No facts have come to our attention which cause us to believe
that the Registration Statement (including the documents incorporated
therein by reference, but excluding the financial statements or notes
thereto, financial schedules and other financial and statistical data
contained therein, as to which we express no opinion), at the time it
became effective, or on the date of the Underwriting Agreement, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
(b) No facts have come to our attention which cause us to believe
that the Prospectus (including the documents incorporated therein by
reference, but excluding the financial statements or notes thereto,
financial schedules and other financial and statistical data contained
therein, as to which we express no opinion), as of its date or the date
hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In addition, we will also state that based on our review of the
Company's minutes and a certificate from certain officers of the Company that,
to our knowledge, since the date of the Prospectus Supplement, the Company has
not granted any options, warrants or other rights calling for the issuance of,
and has made no commitments, plans or arrangements to issue,
A-6
<PAGE>
any shares of capital stock of the Company or any security convertible into or
exchangeable or exercisable for capital stock of the Company other than shares
of capital stock or stock options issued or granted pursuant to or in connection
with employee benefit or incentive plans or management or director stock
purchase plans of the Company.
A-7
<PAGE>
Annex B
-------
1. Commencing with the Company's taxable year ended December 31, 1993,
the Company has been organized in conformity with the requirements for
qualification as a "real estate investment trust", and its method of
operation, as described in the Registration Statement and set forth in
the Certificate, has enabled the Company to meet and, provided that
the Company continues to meet the applicable asset composition, source
of income, shareholder diversification, distribution, record-keeping
and other requirements of the Code necessary for a corporation to
qualify as a REIT, will enable it to continue to meet the requirements
for qualification and taxation as a "real estate investment trust"
under the Code.
2. The Statements in the Prospectus set forth under the caption "Federal
Income Tax Considerations" to the extent such information constitutes
matters of law, summaries of legal matters, or legal conclusions, have
been reviewed by us and are accurate in all material respects.
B-1
