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) October 18, 1996
CHELSEA GCA REALTY, INC.
CHELSEA GCA REALTY PARTNERSHIP, L.P.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Chelsea GCA Realty,Inc. --22-3251332
Chelsea GCA Realty, Inc.--Maryland Chelsea GCA Realty, Inc.-- Chelsea GCA Realty Partnership, L.P.--22-
Chelsea GCA Realty Partnership, L.P.--Delaware 1-12328 3258100
- ----------------------------------------------- ------------------------- -----------------------------------------
<S> <C> <C>
(State or other jurisdiction of incorporation) (Commission File Number) IRS Employer ID Number)
</TABLE>
103 Eisenhower Parkway, Roseland, New Jersey 07068
Address of principal executive offices) (Zip Code)
Registrant's Telephone Number, (201) 228-6111
including area code:
-------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
Exhibits
1 Remarketing Agreement, dated as of October 18, 1996, between
Merrill Lynch & Co. and Chelsea GCA Realty Partnership, L.P.
4 Second Supplemental Indenture among Chelsea GCA Realty, Inc.,
Chelsea GCA Realty Partnership, L.P. and State Street Bank and
Trust Company, as trustee, dated as of October 23, 1996,
including form of Remarketed Floating Rate Reset Note due
October 23, 2001.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CHELSEA GCA REALTY, INC.
By:/s/ David C. Bloom
--------------------------
Name: David C. Bloom
Title: Chairman and Chief
Executive Officer
CHELSEA GCA REALTY PARTNERSHIP, L.P.
By: Chelsea GCA Realty, Inc.,
General Partner
By: /s/ David C. Bloom
----------------------------
Name: David C. Bloom
Title: Chairman and Chief
Executive Officer
Dated: October 23, 1996
EXHIBIT INDEX
Exhibit Description Page No.
1 Remarketing Agreement, dated as of
October 18, 1996, between Merrill
Lynch & Co. and Chelsea GCA Realty
Partnership, L.P.
4 Second Supplemental Indenture among
Chelsea GCA Realty, Inc., Chelsea
GCA Realty Partnership, L.P. and State
Street Bank and Trust company, as trustee,
dated as of October 23, 1996, including Form
of Remarketed Floating Rate Reset Note
due October 23, 2001.
Exhibit 1
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of October 18, 1996 (the "Remarketing
Agreement"), by and between Chelsea GCA Realty Partnership, L.P. (the "Company")
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch").
WHEREAS, the Company will issue $100,000,000 aggregate principal amount of
Remarketed Floating Rate Reset Notes due October 23, 2001 (the "Notes"), such
Notes to be issued under the Indenture, dated as of January 23, 1996 (the
"Indenture"), by and among the Company, Chelsea GCA Realty, Inc., as guarantor
("Chelsea") and State Street Bank and Trust Company as trustee (the "Trustee");
and
WHEREAS, the Notes are to be initially offered to the public through
Merrill Lynch; and
WHEREAS, the Company has requested Merrill Lynch to act as Rate Agent (as
defined in Section 2(a) hereof) and Remarketing Underwriter (as defined in
Section 2(a) hereof) in connection with the Notes and as such to perform the
services described herein; and
WHEREAS, Merrill Lynch is willing to act as Rate Agent and Remarketing
Underwriter in connection with the Notes and as such to perform such duties on
the terms and conditions expressly set forth herein.
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. DEFINITIONS. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Notes or, if not
therein stated, the Indenture.
Section 2. APPOINTMENT AND OBLIGATIONS OF MERRILL LYNCH. (a) The Company
hereby appoints Merrill Lynch and Merrill Lynch hereby accepts such appointment,
(i) as the rate agent (the "Rate Agent") of the Company to determine LIBOR and
the interest rate of the Notes for any Quarterly Period and (ii) as the
exclusive remarketing underwriter (the "Remarketing Underwriter") for the
purpose of (x) recommending to the Company the Spread for each Subsequent Spread
Period that, in the opinion of the Remarketing Underwriter, will enable the
Remarketing Underwriter to remarket, for delivery on the Tender Date, tendered
Notes at 100% of the principal amount thereof, (y) if the Company and the
Remarketing Underwriter agree on the Spread referred to in (x) above, entering
into a remarketing underwriting agreement (the "Remarketing Underwriting
Agreement") with the Company, substantially in the form attached hereto as
Exhibit A, pursuant to which the Remarketing Underwriter will agree to purchase
the Notes tendered by the beneficial owners thereof (the "Beneficial Owners")
and remarket such Notes (each such purchase and remarketing being hereinafter
referred to as a "Remarketing"), and (z) performing such other duties as are
assigned to the Remarketing Underwriter in the Notes and/or the Indenture and/or
the applicable Remarketing Underwriting Agreement.
(b) The Rate Agent hereby agrees to determine LIBOR on each LIBOR
Determination Date in accordance with the following provisions and the other
relevant provisions of the Notes:
(i) LIBOR shall be determined on the basis of the
offered rates for three-month deposits in U.S. Dollars of not less than
U.S. $1,000,000, commencing on the second London Business Day
immediately following the applicable LIBOR Determination Date, which
appears on the Telerate Page 3750 as of approximately 11:00 a.m.,
London time, on the applicable LIBOR Determination Date. If no rate
appears on the Telerate Page 3750, LIBOR for the applicable LIBOR
Determination Date will be determined in accordance with the provisions
of paragraph (ii) below.
(ii) With respect to a LIBOR Determination Date on which
no rate appears on Telerate Page 3750 as of approximately 11:00 a.m.,
London time, on the applicable LIBOR Determination Date, the Rate Agent
shall select four major reference banks in the London interbank market
and shall request the principal London offices of each of such banks to
provide it with a quotation of the rate at which three-month deposits
in U.S. Dollars, commencing on the second London Business Day
immediately following the applicable LIBOR Determination Date, are
offered by it to prime banks in the London interbank market as of
approximately 11:00 a.m., London time, on the applicable LIBOR
Determination Date and in a principal amount equal to an amount of not
less than U.S. $1,000,000 that is representative for a single
transaction in such market at such time. If at least two such
quotations are provided, LIBOR for the applicable LIBOR Determination
Date will be the arithmetic mean of such quotations as calculated by
the Rate Agent. If fewer than two quotations are provided, the Rate
Agent, after consultation with the Company, shall select three major
banks in The City of New York and shall request each of such banks to
provide it with the rates quoted by such bank as of approximately 11:00
a.m., New York City time, on the applicable LIBOR Determination Date
for loans in U.S. Dollars to leading European banks, having a three-
month maturity, commencing on the second London Business Day
immediately following the applicable LIBOR Determination Date and in a
principal amount equal to an amount of not less than U.S. $1,000,000
that is representative for a single transaction in such market at such
time, and LIBOR for the applicable LIBOR Determination Date shall be
the arithmetic mean of such rates; provided, however, that if the banks
selected as aforesaid by the Rate Agent are not quoting as mentioned in
this sentence, LIBOR for the applicable LIBOR Determination Date will
be the LIBOR determined with respect to the immediately preceding LIBOR
Determination Date, or in the case of the first LIBOR Determination
Date, LIBOR for the Initial Quarterly Period.
Section 3. FEES AND EXPENSES. The obligations of the Company to pay to the
Remarketing Underwriter on each Tender Date the fees set forth in the applicable
Remarketing Underwriting Agreement shall survive the termination of this
Agreement and remain in full force and effect until all such payments shall have
been made in full.
Section 4. REMOVAL OF THE REMARKETING UNDERWRITER. With respect to any
Subsequent Spread Period, the Company may in its absolute discretion remove the
Rate Agent and Remarketing Underwriter by giving notice to the Rate Agent and
Remarketing Underwriter prior to 3:00 p.m., New York City time, on the Duration
Determination Date applicable thereto, such removal to be effective upon the
Company's appointment of a successor Rate Agent and Remarketing Underwriter. In
such case, the Company will use its best efforts to appoint a successor Rate
Agent and Remarketing Underwriter and enter into such a remarketing agreement
with such person as soon as reasonably practicable.
Section 5. DEALING IN THE NOTES. Subject to its compliance with applicable
laws and regulations, Merrill Lynch, when acting as a Rate Agent and Remarketing
Underwriter or in its individual or any other capacity, may buy, sell, hold and
deal in any of the Notes. Merrill Lynch may exercise any vote or join in any
action which any beneficial owner of Notes may be entitled to exercise or take
with like effect as if it did not act in any capacity hereunder. Merrill Lynch,
in its individual capacity, either as principal or agent, may also engage in or
have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity hereunder.
Section 6. CURRENT PROSPECTUS. In connection with each Remarketing, if and
to the extent required by applicable law or regulations or interpretations of
the Securities and Exchange Commission in effect at the time of such
Remarketing, the Company shall furnish a current prospectus to be used by the
Remarketing Underwriter in such Remarketing.
Section 7. CONDITIONS TO REMARKETING UNDERWRITER'S OBLIGATIONS. The
obligations of the Remarketing Underwriter to purchase and remarket the Notes
shall be subject to the terms and conditions of the applicable Remarketing
Underwriting Agreement.
Section 8. TERMINATION OF REMARKETING AGREEMENT. This Agreement shall
terminate as to the Rate Agent and Remarketing Underwriter on the effective date
of the removal of such Rate Agent and Remarketing Underwriter pursuant to
Section 4 hereof.
Section 9. RATE AGENT'S AND REMARKETING UNDERWRITER'S PERFORMANCE; DUTY OF
CARE. The duties and obligations of the Rate Agent and Remarketing Underwriter
hereunder shall be determined solely by the express provisions of this Agreement
and the Notes and the Indenture and, in the case of the Remarketing Underwriter,
the applicable Remarketing Underwriting Agreement.
Section 10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in such State.
Section 11. TERM OF AGREEMENT. Unless otherwise terminated in accordance
with the provisions hereof, this Agreement shall remain in full force and effect
from the date hereof until the first day thereafter on which no Notes are
outstanding.
Section 12. SUCCESSORS AND ASSIGNS. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of Merrill Lynch. The rights and obligations of
Merrill Lynch hereunder may not be assigned or delegated to any other person
without the prior written consent of the Company. This Agreement shall inure to
the benefit of and be binding upon the Company and Merrill Lynch and their
respective successors and assigns. The terms "successors" and "assigns" shall
not include any purchaser of any Notes merely because of such purchase.
Section 13. HEADINGS. Section headings have been inserted in this Agreement
as a matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provisions of this Agreement.
Section 14. SEVERABILITY. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provision of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstances or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 15. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 16. AMENDMENTS. This Agreement may be amended by any instrument in
writing signed by each of the parties hereto.
Section 17. NOTICES. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication or by telephone and confirmed in writing. All written notices
shall be deemed to be validly given or made, if delivered by hand, when so
delivered, or if mailed, when mailed registered or certified mail, return
receipt requested and postage prepaid. All notices by telecommunication
(including telephone) shall be deemed to be validly given or made when received.
All such notices, requests, consents or other communications shall be addressed
as follows: if to the Company, to Chelsea GCA Realty Partnership, L.P., 103
Eisenhower Parkway, Roseland, New Jersey 07068, Attention: Leslie T. Chao,
Executive Vice President and Chief Financial Officer; and if to Merrill Lynch,
to Merrill Lynch, Pierce, Fenner & Smith Incorporated, Merrill Lynch World
Headquarters, North Tower, World Financial Center, New York, New York
10281-1305, Attention: Debt Syndicate, or to such other address as either of the
above shall specify to the other in writing.
Section 18. BENEFIT. Nothing in this Agreement, express or implied, is
intended or shall be construed to confer upon or give any person other than the
parties hereto any remedy or claim under or by reason of this Agreement or any
term, covenant or condition hereof, all of which shall be for the sole and
exclusive benefit of the parties.
IN WITNESS WHEREOF, each of the Company and the Remarketing Underwriter has
caused this Agreement to be executed in its name and on its behalf by one of its
duly authorized officers as of the date first above written.
CHELSEA GCA REALTY PARTNERSHIP, L.P.
By: Chelsea GCA Realty, Inc.
General Partner
By:
Name:
Title:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By __________________________________
Name:
Title:
<PAGE>
EXHIBIT A
REMARKETING UNDERWRITING AGREEMENT
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
hereby agrees to purchase the Notes described below (the "Notes") that have been
tendered by the holders thereof for sale on October 23, 1997 (the "Tender
Date").
It is acknowledged and agreed that the Notes need not be further
registered under the Securities Act of 1933, as amended (the "Act"), and that,
in connection with the remarketing of the Notes by the Remarketing Underwriter
in accordance with the terms of the Agreement, no prospectus meeting the
requirements of Section 10 of the Act need be delivered, or filed pursuant to
Rule 424 of the Act.
It is understood that the Remarketing Underwriter will deliver to
purchasers and prospective purchasers, in connection with the remarketing, one
or more forms of written communication describing the terms of the Notes (each,
a "Remarketing Memorandum"), the form of each of which shall be delivered to the
Company (not less than two Business Days prior to its use) and subject to the
approval of the Company prior to its use by the Remarketing Underwriter, which
approval shall not be unreasonably withheld.
The Remarketing Underwriter shall offer to purchase Notes and purchase
validly tendered Notes on the Tender Date in accordance with all applicable laws
and regulations and interpretations of the Securities and Exchange Commission.
The provisions of Sections 1, 3, 4, 5, 6, 7 and 9 of the attached
Underwriting Agreement are incorporated in their entirety into this Agreement
and made applicable to the obligations of the Remarketing Underwriter to the
extent applicable to any remarketing of the Notes, except as explicitly amended
hereby. All references therein to "you" or to the "Underwriter" shall be deemed
to refer to the Remarketing Underwriter, all references to the "Underwritten
Securities" shall be deemed to refer to the Notes, all references to the
"Closing Date" shall be deemed to refer to the Tender Date. To the extent such
provisions refer to the "Prospectus" or the "Registration Statement," such
references shall be deemed to refer to any Remarketing Memorandum or
registration statement, if any, that the Company is required to prepare or file
pursuant to applicable law, regulations or interpretations of the Securities and
Exchange Commission in effect at the time of such remarketing of the Notes. For
purposes of Section 7 of the attached Underwriting Agreement, amounts paid by
the Remarketing Underwriter shall be deemed the "initial public offering price".
All capitalized terms not otherwise defined in this Agreement have the
meanings assigned thereto in the Notes, the form of which is attached hereto.
Remarketing Underwriter and address:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281-1305
Title of Notes:
Remarketed Floating Rate Reset Notes Due October 23, 2001
Principal Amount of Notes to be purchased:
The aggregate principal amount of all Notes tendered for resale on the Tender
Date.
Title of Indenture:
Indenture, dated as of January 23, 1996, by and among Chelsea GCA Realty
Partnership, L.P. (the "Company"), Chelsea GCA Realty, Inc., as guarantor
("Chelsea") and State Street Bank and Trust Company, as trustee.
Note Trustee:
State Street Bank and Trust Company
Current Ratings:
Moody's Investors Service, Inc.: Ba1; Standard & Poor's Corporation: BB+
Certain Terms of the Notes:
Maturity:
October 23, 2001
Spread Determination Date:
October 13, 1997
Duration Determination Date:
October 8, 1997
Tender Notice Date:
October 20, 1997
Interest Reset Dates:
January 23, April 23, July 23, and October 23
Tender Date:
October 23, 1997
New Interest Rate:
As determined by application of the provisions set forth in the attached form of
the Notes on the LIBOR Determination Date.
Spread:
[Plus/Minus] ______ basis points.
Interest Payment Dates:
January 23, April 23, July 23 and October 23
Subsequent Spread Period:
October 23, 1997 to October 23, ____
Redemption Provisions:
Redeemable as set forth in the attached Prospectus Supplement dated October
18, 1996; [describe additional redemption provisions, if any]
Beneficial Owner Tender Provisions:
As set forth in the attached Prospectus Supplement dated October 18, 1996.
In the event that the Remarketing Underwriter fails to purchase all Notes
validly tendered for purchase on the Tender Date, then the Remarketing
Underwriter shall promptly notify the Company and the Trustee of such failure.
Shorter Subsequent Spread Period:
In the event that (A) the Remarketing Underwriter fails to purchase all
Notes validly tendered for purchase on the Tender Date for any reason, and (B)
the Company has not given notice of redemption of all of the Notes then
outstanding in accordance with the provisions described in the attached form of
the Notes, then the Subsequent Spread Period shall be a period of one year,
which Subsequent Spread Period shall be deemed to have commenced upon the
Commencement Date that coincides with the Tender Date.
Legal Opinion:
The opinion required to be delivered pursuant to Section 5(b)(1)(xv) of the
attached Underwriting Agreement shall be modified to read as follows "(xv) the
Notes have been duly authorized; a single global Note registered in the name of
CEDE & Co., a nominee of The Depository Trust Company ("DTC"), has been duly
authenticated in accordance with the provisions of the Indenture, paid for and
delivered to DTC, and constitutes a valid and binding obligation of the Company;
and the Underwriter will acquire the rights of a bona fide purchaser (as such
terms are defined in the Uniform Commercial Code as in effect in the State of
New York (the "UCC")) in any portion of the Notes transferred to the Underwriter
by a prior owner thereof as recorded on the books of DTC, provided that (i) the
portion of the Notes transferred is an authorized denomination of the Notes,
(ii) the transfer is recorded on the books of DTC by a debit to the transferor's
account with DTC and a credit to the Underwriter's account with DTC, (iii) the
Underwriter makes payment to such transferor of value for such transfer and (iv)
the Underwriter purchases such interest in good faith and without notice of any
adverse claim, within the meaning of the UCC.
Form of Notes:
Global certificate registered in the name of the nominee of the depository
of the Notes, which currently is CEDE & Co. and DTC, respectively. The
beneficial owners of the Notes ("Beneficial Owners") are not entitled to receive
definitive certificates representing their Notes, except under limited
circumstances. A Beneficial Owner's ownership of a Note currently is recorded on
or through the records of the brokerage firm or other entity that is a
participant in DTC and that maintains such Beneficial Owner's account.
Purchase Price:
100% of the principal amount of the Notes. Payable to DTC for the
Beneficial Owners of Tendered Notes.
Remarketing fee:
___% of the principal amount of the Notes outstanding on the Tender Date.
Closing Date; Tender Date:
Stroock & Stroock & Lavan, Seven Hanover Square, New York, New York
10004-2696, at 9:00 a.m., New York City time, on the Tender Date.
The foregoing terms are hereby confirmed and agreed to as of this 13th
day of October, 1997.
CHELSEA GCA REALTY PARTNERSHIP, L.P.
By: Chelsea GCA Realty, Inc.
General Partner
By _________________________________
Title:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By ________________________________
Title:
Exhibit 4
CHELSEA GCA REALTY PARTNERSHIP, L.P.
ISSUER
AND
CHELSEA GCA REALTY, INC.
GUARANTOR
TO
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
------------------------------------
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 23, 1996
------------------------------------
$100,000,000 REMARKETED FLOATING RATE RESET NOTES DUE 2001
------------------------------------
SUPPLEMENT TO INDENTURE
DATED AS OF JANUARY 23, 1996, BETWEEN
CHELSEA GCA REALTY PARTNERSHIP, L.P. (AS ISSUER),
CHELSEA GCA REALTY, INC. (AS GUARANTOR) AND
STATE STREET BANK AND TRUST COMPANY (AS TRUSTEE)
SECOND SUPPLEMENTAL INDENTURE, among CHELSEA GCA REALTY
PARTNERSHIP, L.P., a limited partnership duly organized and existing under the
laws of Delaware (hereinafter called the "Issuer"), having its principal
executive office located at 103 Eisenhower Parkway, Roseland, New Jersey 07068,
CHELSEA GCA REALTY, INC., a corporation duly organized and existing under the
laws of Maryland (hereinafter called the "Guarantor" or the "General Partner"),
having its principal executive office located at 103 Eisenhower Parkway,
Roseland, New Jersey 07068, and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company (hereinafter called the "Trustee"), having its
Corporate Trust Office located at 2 International Place, Boston, Massachusetts
02110.
RECITALS
WHEREAS, the Issuer and the Guarantor executed and delivered
the Indenture (the "Original Indenture"), dated as of January 23, 1996, to the
Trustee to issue from time to time for its lawful purposes debt securities
evidencing the Issuer's senior unsecured indebtedness.
WHEREAS, Section 301 of the Original Indenture provides that
by means of a supplemental indenture, the Issuer may create one or more series
of its debt securities and establish the form and terms and conditions thereof.
WHEREAS, the Issuer and the Guarantor intend by this
Supplemental Indenture to (i) create a series of Issuer's debt securities, in an
aggregate principal amount not to exceed $100,000,000, entitled "Remarketed
Floating Rate Reset Notes due October 23, 2001" (the "Notes"); and (ii)
establish the form and the terms and conditions of such Notes.
WHEREAS, the General Partner, on behalf of the Issuer and
itself, has approved the creation of the Notes and the form, terms and
conditions thereof.
WHEREAS, the consent of Holders to the execution and delivery
of this Supplemental Indenture is not required, and all other actions required
to be taken under the Original Indenture with respect to this Supplemental
Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT SECURITIES
Section 1.01 Definitions. Capitalized terms used in this
Supplemental Indenture and not otherwise defined shall have the meanings
ascribed to them in the Original Indenture. In addition, the following terms
shall have the following meanings to be equally applicable to both the singular
and the plural forms of the terms defined:
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person or (ii) any other
Person that owns, directly or indirectly, 10% or more of such specified Person's
Voting Stock or any executive officer or director of any such specified Person
or other Person or, with respect to any natural Person, any Person having a
relationship with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control", when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of Voting Stock, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Default" means any event that after notice or passage of time
or both would be an Event of Default.
"Disinterested Director" means, with respect to any
transaction or series of transactions in respect of which the Board of Directors
is required to approve under the terms hereof or of the Original Indenture, a
member of the Board of Directors who does not have any material direct or
indirect financial interest in or with respect to such transaction or series of
transactions.
"DTC" means The Depository Trust Company.
"Global Note" means a single fully-registered global note in
book-entry form, without coupons, substantially in the form of Exhibit A
attached hereto.
"Indenture" means the Original Indenture as supplemented by
this Second Supplemental Indenture.
"Intercompany Indebtedness" means Indebtedness of the Issuer
or any Restricted Subsidiary owing to any Restricted Subsidiary or the Issuer;
provided that any such Indebtedness is made pursuant to an intercompany note and
is subordinated in payment to the Notes; provided further that any disposition,
pledge or transfer of any such Indebtedness to a Person (other than the Issuer
or a Restricted Subsidiary) shall be deemed to be an incurrence of such
Indebtedness by the Issuer or a Restricted Subsidiary, as the case may be, with
such Indebtedness no longer being deemed to be Intercompany Indebtedness.
"Notes" means the Remarketed Floating Rate Reset Notes due
October 23, 2001.
"Restricted Subsidiary" means any Subsidiary of the Issuer,
whether existing on or after the date of this Supplemental Indenture, unless
such Subsidiary of the Issuer is an Unrestricted Subsidiary or is designated as
an Unrestricted Subsidiary pursuant to the terms of this Supplemental Indenture.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the
time of determination shall be an Unrestricted Subsidiary (as designated by the
Board of Directors, as provided below) and (b) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so
long as (i) neither the Issuer nor any other Subsidiary is directly or
indirectly liable for any Indebtedness of such Subsidiary, (ii) no default with
respect to any Indebtedness of such Subsidiary would permit (upon notice, lapse
of time or otherwise) any holder of any other Indebtedness of the Issuer or any
other Subsidiary to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity, (iii)
neither the Issuer nor any other Subsidiary has a contract, agreement,
arrangement, understanding or obligation of any kind, whether written or oral,
with such Subsidiary other than those that might be obtained at the time from
persons who are not Affiliates of the Issuer and (iv) neither the Issuer nor any
other Subsidiary has any obligation (1) to subscribe for additional shares of
Capital Stock or other equity interest in such Subsidiary or (2) to maintain or
preserve such Subsidiary's financial condition or to cause such Subsidiary to
achieve certain levels of operating results. Any such designation by the Board
of Directors shall be evidenced to the Trustee by filing a board resolution with
the Trustee giving effect to such designation. The Board of Directors may
designate any Unrestricted Subsidiary as a Restricted Subsidiary if immediately
after giving effect to such designation, there would be no Default or Event of
Default under this Indenture and the Issuer could incur $1.00 of additional
Indebtedness (other than Intercompany Indebtedness) pursuant to Section 1011 of
the Original Indenture.
Section 1.02 Creation of the Debt Securities. In accordance
with Section 301 of the Original Indenture, the Issuer hereby creates the Notes
as a separate series of its debt securities issued pursuant to the Indenture.
The Notes shall be issued in an aggregate principal amount not to exceed
$100,000,000.
Section 1.03 Form of the Debt Securities. The Notes will be
represented by a single fully-registered global note in book-entry form, without
coupons, registered in the name of the nominee of DTC. The Notes shall be in the
form of Exhibit A attached hereto. So long as DTC, or its nominee, is the
registered owner of the Global Note, DTC or its nominee, as the case may be,
will be considered the sole owner or holder of the notes represented by such
Global Note for all purposes under the Indenture. Ownership of beneficial
interests in the Global Notes will be shown on, and transfers thereof will be
effected only through, records maintained by DTC (with respect to beneficial
interests of participants) or by participants or persons that hold interests
through participants (with respect to beneficial interests of beneficial
owners).
Section 1.04 Terms and Conditions of the Debt Securities. The
Notes shall be governed by all the terms and conditions of the Original
Indenture, as supplemented by this Second Supplemental Indenture, and in
particular, the following provisions shall be terms of the Notes:
(a) Payment of Principal and Interest. Principal and interest
payments on interests represented by the Global Note will be made to DTC or its
nominee, as the case may be, as the registered owner of such Global Note. All
payments of principal and interest in respect of the Notes will be made by the
Issuer in immediately available funds.
(b) Applicability of Guarantee. The Notes will be Guaranteed
Securities pursuant to the Original Indenture and the Guarantee set forth in
Article Sixteen, Section 1601 of the Original Indenture shall be applicable to
the Notes.
(c) Additional Covenants. In addition to the covenants set
forth in the Original Indenture, the Issuer and the Guarantor hereby further
covenant as follows:
(i) Limitation on Consolidation, Merger, etc. The Issuer
will not consolidate with or merge with or into any Person or sell,
convey, transfer, lease or otherwise dispose of all or substantially
all of its assets to any other Person unless after giving pro forma
effect to the consolidation, merger, sale, conveyance, transfer, lease
or other disposition, the Issuer or successor entity could incur at
least $1.00 of Indebtedness (other than Intercompany Indebtedness) in
accordance with the covenant set forth in Section 1011 of the Original
Indenture.
(ii) Limitation on Incurrence of Indebtedness. The Issuer
will not allow any Restricted Subsidiary to incur any Indebtedness
other than Intercompany Indebtedness.
(iii) Limitation on Distributions. The Issuer will not make
any distribution, by reduction of capital or otherwise (other than
distributions payable in securities evidencing interests in the
Issuer's capital for the purpose of acquiring interests in real
property or otherwise) unless, immediately after giving pro forma
effect to such distribution, the Issuer could incur at least $1.00 of
Indebtedness (other than Intercompany Indebtedness) in accordance with
the covenant set forth in Section 1011 of the Original Indenture;
provided, however, that the foregoing limitation shall not apply to any
distribution or other action which is necessary to maintain the General
Partner's status as a REIT under the Code, if the aggregate principal
amount of all outstanding Indebtedness of the General Partner and the
Issuer on a consolidated basis at such time is less than 60% of
Adjusted Total Assets.
(iv) Limitation on Transactions with Affiliates. The Issuer
shall not, and shall not permit any Subsidiary to, directly or
indirectly, enter into or suffer to exist any transaction or series of
related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with, or
for the benefit of, any Affiliate of the Issuer (other than the Issuer
or a wholly-owned Subsidiary of the Issuer) unless (a) such transaction
or series of related transactions is on terms that are no less
favorable to the Issuer or such Subsidiary, as the case may be, than
those that could have been obtained in an arm's-length transaction with
unrelated third parties who are not Affiliates, (b) with respect to any
transaction or series of related transactions involving aggregate
consideration equal to or greater than $5.0 million, the Issuer shall
have delivered an Officers' Certificate to the Trustee certifying that
such transaction or series of related transactions complies with clause
(a) above and such transaction or series of related transactions has
been approved by a majority of the Disinterested Directors of the Board
of Directors of the Issuer, or in the event no members of the Board of
Directors of the Issuer are Disinterested Directors with respect to any
transaction or series of transactions included in this clause (b), the
Issuer has obtained a written opinion from a nationally recognized
investment banking firm to the effect such transaction or series of
related transactions is fair to the Issuer or such Subsidiary, as the
case may be, from a financial point of view and (c) with respect to any
transaction or series of related transactions including aggregate
consideration in excess of $15.0 million, the Issuer shall obtain an
opinion from a nationally recognized investment banking firm as
described above; provided, however, that this provision shall not
restrict (1) the Issuer or Guarantor from paying reasonable and
customary regular compensation and fees to directors of the Guarantor
who are not employees of the Guarantor or (2) the payment of
compensation (including stock options and other incentive compensation)
to officers and other employees.
(v) Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Issuer shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance
or restriction of any kind on the ability of any Restricted Subsidiary
to (a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock, (b) pay any
Indebtedness owed to the Issuer or any other Subsidiary, (c) make
investments, loans or advances to the Issuer or any other Subsidiary,
(d) transfer any of its properties or assets to the Issuer or any other
Subsidiary or (e) guarantee any Indebtedness of the Issuer or any other
Subsidiary.
(vi) Limitation on Sale of Capital Stock of Restricted
Subsidiaries. The Issuer (a) shall not permit any Restricted Subsidiary
to issue any Capital Stock (other than to the Issuer or a Restricted
Subsidiary) and (b) shall not permit any Person (other than the Issuer
or a Restricted Subsidiary) to own any Capital Stock of any Restricted
Subsidiary; provided, however, that foregoing shall not prohibit the
issuance and sale of all, but not less than all, of the issued and
outstanding Capital Stock of any Subsidiary owned by the Issuer or any
Subsidiary in compliance with the other provisions of this Supplemental
Indenture and the Original Indenture.
ARTICLE TWO
TRUSTEE
Section 2.01 Trustee. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution thereof by the Issuer. The recitals
of fact contained herein shall be taken as the statements solely of the Issuer,
and the Trustee assumes no responsibility for the correctness thereof.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 3.01 Ratification of Original Indenture. This
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture, and as supplemented and modified hereby,
the Original Indenture is in all respects ratified and confirmed, and the
Original Indenture and this Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
Section 3.02 Effect of Headings. The Article and
Section headings herein are for convenience only and shall not affect the
construction hereof.
Section 3.03 Successors and Assigns. All covenants and
agreements in this Supplemental Indenture by the Issuer shall bind its
successors and assigns, whether so expressed or not.
Section 3.04 Separability Clause. In case any one or more of
the provisions contained in this Supplemental Indenture shall for any reason be
held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 3.05 Governing Law. This Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of New
York. This Supplemental Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Supplemental Indenture and shall, to the extent applicable, be governed by such
provisions.
Section 3.06 Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, and each of such counterparts shall for
all purposes be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date first above written.
CHELSEA GCA REALTY PARTNERSHIP, L.P.
By: Chelsea GCA Realty, Inc.
as General Partner
By:
Name:
Title:
Attest:
Name:
Title:
CHELSEA GCA REALTY, INC.
By:
Name:
Title:
Attest:
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY
[SEAL]
By:
Name:
Title:
Attest:
Name:
Title:
<PAGE>
EXHIBIT A
GLOBAL NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO, HAS AN
INTEREST HEREIN.
No. _ $100,000,000
CHELSEA GCA REALTY PARTNERSHIP, L.P.
Remarketed Floating Rate Reset Note due October 23, 2001
CUSIP 163263 AB 2
Chelsea GCA Realty Partnership, L.P., a limited partnership duly
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, in the Borough of Manhattan, The City of New York, the
principal sum of ONE HUNDRED MILLION DOLLARS ($100,000,000), on October 23,
2001, in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest (computed on the basis of a 360-day year) quarterly in arrears
on January 23, April 23, July 23 and October 23 of each year (or, if not a
Business Day (as defined below), on the next succeeding Business Day (except as
described below)) (each, an "Interest Payment Date"), commencing January 23,
1997, and at maturity, on the principal amount of this Global Note, in like coin
or currency, at the rate per annum from time to time in effect as set forth
below, from the most recent date to which interest has been paid or, if no
interest has been paid, from October 23, 1996. The interest so payable on any
January 23, April 23, July 23 or October 23 will, subject to certain exceptions
provided in the Indenture referred to below, be paid to the person in whose name
this Global Note is registered at the close of business on the January 9, April
9, July 9 and October 9 preceding such January 23, April 23, July 23 and October
23, respectively.
This Global Note is issued in respect of a duly authorized issue of
Securities of the Issuer, designated as the Remarketed Floating Rate Reset Notes
due October 23, 2001 of the Issuer (herein called the "Notes"), limited (except
as otherwise provided in the Indenture referred to below) in aggregate principal
amount to $100,000,000. The Notes represent one of a duly authorized series of
Securities of the Issuer, issued and to be issued in one or more series under an
Indenture, dated as of January 23, 1996 (such Indenture is hereinafter referred
to as the "Indenture"), between the Issuer, Chelsea GCA Realty, Inc., as
guarantor ("Chelsea") and State Street Bank and Trust Company, as trustee
(herein called the "Trustee"). The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by the Trust Indenture Act of
1939, as amended (the "Act"). The Notes are subject to all such terms, and
beneficial owners of interests in this Global Note are referred to the Indenture
and the Act for a statement of such terms. All terms used in this Global Note
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture. The Notes of this series are general and unsecured obligations of
the Issuer.
Except as provided below, owners of beneficial interests in the Notes
evidenced by this Global Note will not be entitled to receive definitive Notes
evidencing such ownership. Beneficial interests in the Notes will be held
through a depositary selected by the Issuer, which initially is The Depository
Trust Company ("DTC"). This Global Note will be deposited with and held by DTC
and is registered in the name of DTC's nominee. So long as DTC's nominee is the
registered owner of this Global Note, such nominee for all purposes will be
considered the sole owner of the Notes under the Indenture. If DTC is at any
time unwilling or unable to continue as depositary and a successor depositary is
not appointed by the Issuer within 90 calendar days of its receipt of notice
from DTC to such effect, the Issuer will issue Notes in definitive form in
exchange for this Global Note. In addition, the Issuer may at any time determine
not to have the Notes represented by a Global Note. In either instance, an owner
of a beneficial interest in this Global Note will be entitled to have Notes
equal in principal amount to such beneficial interest registered in its name and
will be entitled to physical delivery of such Notes in definitive form. Notes so
issued in definitive form will be issued in denominations of $1,000 and any
integral multiple thereof and will be issued in registered form only, without
coupons.
The interest rate on the Notes will reset quarterly. The Notes will
bear interest at a per annum rate (computed on the basis of the actual number of
days elapsed over a 360-day year) equal to LIBOR (as defined below) for the
applicable Quarterly Period (as defined below) plus the applicable Spread (as
defined below). The initial Quarterly Period will be the period from and
including October 23, 1996 to but excluding the first Interest Payment Date
(January 23, 1997) (the "Initial Quarterly Period"). Thereafter, each Quarterly
Period will be from and including the most recent Interest Payment Date to which
interest has been paid to but excluding the next Interest Payment Date; the
first day of a Quarterly Period is referred to herein as an "Interest Reset
Date."
The Spread applicable during the one year period ending on October 23,
1997 (the "Initial spread Period") shall be .75% (the "Initial Spread"). Thus,
the interest rate per annum during the Initial Quarterly Period will be equal to
LIBOR, determined as of October 21, 1996, plus .75%. The interest rate per annum
for each succeeding Quarterly Period during the Initial Spread Period will equal
LIBOR for such Quarterly Period plus the Initial Spread. Thereafter, the Spread
will be determined in the manner described below for each subsequent Spread
period (a "Subsequent Spread Period"), which will be the period of at least one
year and not more than four years, designated by the Issuer, commencing on an
October 23 (the "Commencement Date") and ending one, two, three or four years
subsequent, as the case may be, through and including 2001 (except that no
Subsequent Spread Period may end after October 23, 2001).
If any Interest Payment Date (other than at maturity or upon
redemption), Interest Reset Date, Duration Determination Date (as defined
below), Spread Determination Date (as defined below), Commencement Date or
Tender Date (as defined below) would otherwise be a day that is not a Business
Day, such Interest Payment Date, Interest Reset Date, Duration Determination
Date, Spread Determination Date, Commencement Date or Tender Date will be
postponed to the next succeeding day that is a Business Day, except that if such
Business Day is in the next succeeding calendar month, such Interest Payment
Date, Interest Reset Date, Duration Determination Date, Spread Determination
Date, Commencement Date or Tender Date shall be the next preceding Business Day.
If the maturity date or a redemption date falls on a day that is not a
Business Day, the related payment of principal and interest will be made on the
next succeeding Business Day as if it were made on the date such payment was
due, and no interest will accrue on the amounts so payable for the period from
and after such dates.
LIBOR applicable for each Quarterly Period will be determined by the
Rate Agent (as defined below) as of the second London Business Day (as defined
below) (the "LIBOR Determination Date") preceding each Interest Reset Date
(October 21, 1996 in the case of the Initial Quarterly Period) in accordance
with the following provisions:
(i) LIBOR will be determined on the basis of the offered rates
for three-month deposits in U.S. Dollars of not less than
U.S.$1,000,000, commencing on the second London Business Day
immediately following such LIBOR Determination Date, which appears on
the Telerate Page 3750 (as defined below) as of approximately 11:00
a.m., London time, on such LIBOR Determination Date. "Telerate Page
3750" means the display designated on page "3750" on the Telerate
Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the
British Bankers' Association for the purpose of displaying London
interbank offered rates for U.S. Dollar deposits). If no rate appears
on the Telerate Page 3750, LIBOR for such LIBOR Determination Date will
be determined in accordance with the provisions of paragraph (ii)
below.
(ii) With respect to a LIBOR Determination Date on which no
rate appears on Telerate page 3750 as of approximately 11:00 a.m.,
London time, on such LIBOR Determination Date, the Rate Agent shall
request the principal London offices of each of four major reference
banks in the London interbank market selected by the Rate Agent to
provide the Rate Agent with a quotation of the rate at which
three-month deposits in U.S. Dollars, commencing on the second London
Business Day immediately following such LIBOR Determination Date, are
offered by it to prime banks in the London interbank market as of
approximately 11:00 a.m., London time, on such LIBOR Determination Date
and in a principal amount equal to an amount of not less than
U.S.$1,000,000 that is representative for a single transaction in such
market at such time. If at least two such quotations are provided,
LIBOR for such LIBOR Determination Date will be the arithmetic mean of
such quotations as calculated by the Rate Agent. If fewer than two
quotations are provided, LIBOR for such LIBOR Determination Date will
be the arithmetic mean of the rates quoted as of approximately 11:00
a.m., New York City time, on such LIBOR Determination Date by three
major banks in The City of New York selected by the Rate Agent (after
consultation with the Issuer) for loans in U.S. Dollars to leading
European banks, having a three-month maturity commencing on the second
London Business Day immediately following such LIBOR Determination Date
and in a principal amount equal to an amount of not less than
U.S.$1,000,000 that is representative for a single transaction in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Rate Agent are not quoting as mentioned in this
sentence, LIBOR for such LIBOR Determination Date will be the LIBOR
determined with respect to the immediately preceding LIBOR
Determination Date, or in the case of the first LIBOR Determination
Date, LIBOR for the Initial Quarterly Period.
The Spread that will be applicable during each Subsequent Spread Period
will be the percentage (a) recommended by the Remarketing Underwriter (as
defined below) so as to result in a rate that, in the opinion of the Remarketing
Underwriter, will enable tendered Notes to be remarketed by the Remarketing
Underwriter at 100% of the principal amount thereof, as described below, and (b)
agreed to by the Issuer.
Unless notice of redemption of the Notes as a whole has been given, the
duration of each Subsequent Spread Period will be established by 3:00 p.m., New
York City time, on the 15th calendar day prior to the Commencement Date of such
Subsequent Spread Period (the "Duration Determination Date"). In addition, the
Spread for each Subsequent Spread Period will be established by 3:00 p.m., New
York City time, on the 10th calendar day prior to the Commencement Date of such
Subsequent Spread Period (the "Spread Determination Date"). The term "Business
Day" means any day other than a Saturday or Sunday or a day on which banking
institutions in The City of New York are required or authorized to close and
that is also a London Business Day. The term "London Business Day" means any day
on which dealings in U.S. Dollars are transacted in the London interbank market.
In the event that the Issuer and the Remarketing Underwriter do not
agree on the Spread for any Subsequent Spread Period, then (1) the Subsequent
Spread Period will be one year, (2) the Spread for such Subsequent Spread Period
will be the Alternate Spread and (3) the Notes will be redeemable at the option
of the Issuer, in whole or in part in the manner described below (with respect
to a redemption by the Issuer on October 23, 1997 or any October 23 following
the end of a Subsequent Spread Period), upon at least 10 Business Days notice
given by no later than the second Business Day after the Spread Determination
Date at a redemption price equal to 100% of the principal amount thereof,
together with accrued interest to the redemption date. The Alternate Spread will
be the percentage equal to LIBOR (determined as described above) for the
Quarterly Period beginning on the Commencement Date for such Subsequent Spread
Period.
All percentages resulting from any calculation of any interest rate for
the Notes will be rounded, if necessary, to the nearest one hundred thousandth
of a percentage point, with five one millionths of a percentage point rounded
upward and all dollar amounts will be rounded to the nearest cent, with one half
cent being rounded upward.
Unless notice of redemption of the Notes as a whole has been given, the
Issuer will cause a notice to be published on the New York Business Day (as
defined below) next following the Spread Determination Date for each Subsequent
Spread Period in the manner described below, specifying (1) the term of such
Subsequent Spread Period, (2) the Spread for such Subsequent Spread Period, (3)
that LIBOR for the initial Quarterly Period of such Subsequent Spread Period
will be determined as of the relevant LIBOR Determination Date (which date shall
be specified in such notice), and (4) the identity of the Remarketing
Underwriter, if applicable. Such notice will be given by publication in a daily
newspaper in the English language of general circulation in The City of New
York. The term "New York Business Day" means any day other than a Saturday or
Sunday or a day on which banking institutions in The City of New York are
required or authorized to close.
In the event the Issuer and the Remarketing Underwriter agree on the
Spread on the Spread Determination Date with respect to any Subsequent Spread
Period, the Issuer and the Remarketing Underwriter will enter into a Remarketing
Underwriting Agreement (the "Remarketing Underwriting Agreement") on such Spread
Determination Date, under which the Remarketing Underwriter will agree, subject
to the terms and conditions set forth therein, to purchase from tendering
Noteholders on October 23, 1997 and on any October 23 thereafter immediately
following the end of a Subsequent Spread Period (the "Tender Date") all Notes
with respect to which the Remarketing Underwriter receives a Tender Notice as
described below at 100% of the principal amount thereof (the "Purchase Price").
In such event (except as otherwise provided below), each beneficial owner of a
Note may, at such owner's option, upon giving notice as provided below (the
"Tender Notice"), tender such Note for purchase by the Remarketing Underwriter
on the Tender Date at the Purchase Price. The Purchase Price will be paid by the
Remarketing Underwriter in accordance with the standard procedures of DTC.
Interest accrued on the Notes with respect to the preceding Quarterly Period
will be paid by the Issuer in the manner described above.
The Tender Notice must be received by the Remarketing Underwriter
during the period commencing on the calendar day (or if not a Business Day, on
the next succeeding Business Day) next following the Spread Determination Date
and ending at 5:00 p.m., New York City time, on the fifth calendar day (or, if
not a Business Day, on the next succeeding Business Day) following the Spread
Determination Date (the "Notice Date"). Except as otherwise provided below, a
Tender Notice shall be irrevocable. If a Tender Notice is not received for any
reason by the Remarketing Underwriter with respect to any Note by 5:00 p.m., New
York City time, on the Notice Date, the beneficial owner of such Note shall be
deemed to have elected not to tender such Note for purchase by the Remarketing
Underwriter.
The obligation of the Remarketing Underwriter to purchase Notes from
tendering Noteholders will be subject to several conditions precedent set forth
in the Remarketing Underwriting Agreement. In addition, the Remarketing
Underwriting Agreement will provide for the termination thereof by the
Remarketing Underwriter upon the occurrence of certain events. In the event
that, with respect to any Subsequent Spread Period, the Remarketing Underwriter
does not for any reason purchase on the relevant Tender Date all of the Notes
for which a Tender Notice shall have been given, then (1) all such Tender
Notices will be null and void, (2) none of the Notes for which such Tender
Notices shall have been given will be purchased by the Remarketing Underwriter
on such Tender Date, (3) the Subsequent Spread Period will be one year, which
Subsequent Spread Period shall be deemed to have commenced upon the applicable
Commencement Date, (4) the Spread for such Subsequent Spread Period shall be the
Alternate Spread and (5) the Notes shall be redeemable at the option of the
Issuer, in whole or in part in the manner described below (with respect to a
redemption by the Issuer on October 23, 1997 or any October 23 following the end
of a Subsequent Spread Period), at a redemption price equal to 100% of the
principal amount thereof, together with accrued interest to the redemption date,
upon at least 10 Business Days prior notice published in a daily newspaper in
the English language of general circulation in The City of New York by no later
than the second Business Day following the relevant Tender Date.
No beneficial owner of any Note shall have any rights or claims under
the Remarketing Underwriting Agreement or against the Issuer or the Remarketing
Underwriter as a result of the Remarketing Underwriter not purchasing such
Notes, except as provided in clause (4) of the last sentence of the preceding
paragraph. The Issuer will have no obligation under any circumstance to
repurchase any Notes, except in the case of Notes called for redemption as
described herein.
If the Remarketing Underwriter does not purchase all Notes tendered for
purchase on any Tender Date, it will promptly notify the Issuer and the Trustee.
As soon as practicable after receipt of such notice, the Issuer will cause a
notice to be published specifying (1) the one-year term of the Subsequent Spread
Period, (2) the Spread for such Subsequent Spread Period (which shall be the
Alternate Spread) and (3) LIBOR for the initial Quarterly Period of such
Subsequent Spread Period. Such notice will be published on a New York Business
Day in a daily newspaper in the English language of general circulation in The
City of New York.
The term "Remarketing Underwriter" means the nationally recognized
broker-dealer selected by the Issuer to act as remarketing underwriter (the
"Remarketing Underwriter"). The term "Rate Agent" means the nationally
recognized broker-dealer selected by the Issuer as its agent to determine LIBOR
and the interest rate of the Notes for any Quarterly Period (the "Rate Agent").
Pursuant to a Remarketing Agreement dated as of October 18, 1996 with the
Issuer, Merrill Lynch, Pierce, Fenner & Smith Incorporated has agreed to act as
Remarketing Underwriter and Rate Agent. The Issuer, in its sole discretion, may
change the Remarketing Underwriter and the Rate Agent for any Subsequent Spread
Period at any time on or prior to 3:00 p.m., New York City time, on the Duration
Determination Date relating thereto.
The Notes may not be redeemed by the Issuer prior to October 23, 1997.
On that date and on any October 23 thereafter immediately following the end of a
Subsequent Spread Period, the Notes may be redeemed, at the option of the
Issuer, in whole or in part, upon notice thereof given at any time during the 45
calendar day period ending on the tenth calendar day prior to the redemption
date (provided that notice of any partial redemption must be given at least 15
calendar days prior to the redemption date), at a redemption price equal to 100%
of the principal amount thereof, together with accrued interest to such
redemption date. The Issuer may also redeem the Notes, in whole or in part, as
described above following (i) a failure by the Issuer and the Remarketing
Underwriter to agree on the Spread for a Subsequent Spread Period or (ii) a
failure by the Remarketing Underwriter to purchase on the relevant Tender Date
all Notes for which a Tender Notice shall have been given. In the event of any
redemption of less than all of the outstanding Notes, the particular Notes to be
redeemed will be selected by the Issuer by such method as the Issuer shall deem
fair and appropriate. So long as the Global Note is held by DTC, the Issuer will
give notice to DTC, and DTC will determine the principal amount to be redeemed
from the account of each of its participants. Notice of redemption of the Notes
shall be given by publication in a daily newspaper in the English language of
general circulation of The City of New York.
In case an Event of Default (as defined in the Indenture) with respect
to the Notes shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the provisions provided in the Indenture.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented, and any past default or compliance with any provision
may be waived insofar as the Notes are concerned, with the consent of the
holders of a majority in aggregate principal amount of the outstanding Notes.
Without the consent of any Noteholder, the Issuer and the Trustee may amend or
supplement the Indenture or the Securities of any series (including the Notes)
to cure any ambiguity, defect or to make certain other changes specified in the
Indenture or any change that, in the opinion of the Board of Directors of the
Guarantor (as defined below), does not materially adversely affect the rights of
any Noteholder.
The Issuer, the Trustee, and any agent of the Issuer or the Trustee may
treat the registered holder hereof as the absolute owner of this Global Note for
all purposes.
A director, officer, employee or stockholder (past, present or future),
as such, of the Issuer or the Trustee or any successor of either thereof shall
not have any liability for any obligations of the Issuer or the Trustee under
the Notes or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each beneficial owner of an
interest in this Global Note, by accepting such interest, waives and releases
all such liability. The waiver and release are part of the consideration for the
issue of the Notes.
When a successor corporation assumes all of the obligations of its
predecessor under the Notes and the Indenture, the predecessor corporation will
be released from those obligations.
This Global Note shall not be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed by
the Trustee.
IN WITNESS WHEREOF, Chelsea GCA Realty, Inc., as general partner of
Chelsea GCA Realty Partnership, L.P. has caused this Global Note to be signed
manually or by facsimile by its President or its Chairman of the Board and by
its Treasurer or its Secretary, and has caused its corporate seal to be affixed
hereunto or imprinted hereon.
Dated: October 23, 1996
CHELSEA GCA REALTY PARTNERSHIP, L.P.
By: CHELSEA GCA REALTY, INC.,
its general partner
[Company Seal] By:_____________________________________
President
By:_____________________________________
Secretary
<PAGE>
GUARANTEE
OF
CHELSEA GCA REALTY, INC.
For value received, Chelsea GCA Realty, Inc. (herein called the
"Guarantor") hereby unconditionally guarantees to each Holder of the Note upon
which this Guarantee is endorsed due and punctual payment of the principal of,
any premium and interest on, and any Additional Amounts with respect to said
Note provided for pursuant to the terms hereof, when and as the same shall
become due and payable, whether at maturity, by acceleration, redemption,
repayment or otherwise, in accordance with the terms hereof and of the
Indenture. In case of the failure of the Issuer punctually to pay any such
principal, premium, interest or Additional Amounts the Guarantor hereby agrees
to cause any such payment to be made punctually when and as the same shall
become due and payable, whether at maturity, upon acceleration, redemption,
repayment or otherwise, and as if such payment were made by the Issuer.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of said Note or the Indenture, any failure to
enforce the provisions of said Note or the Indenture, or any waiver,
modification, consent or indulgence granted with respect thereto by the Holder
of said Note or the Trustee, the recovery of any judgment against the Issuer or
any action to enforce the same, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger, insolvency or bankruptcy of the
Issuer, any right to require a proceeding first against the Issuer, protest or
notice with respect to said Note or the Indebtedness evidenced thereby and all
demands whatsoever, and covenants that this Guarantee will not be discharged
except by payment in full of the principal of, any premium and interest on, and
any Additional Amounts required with respect to, said Note and the complete
performance of all other obligations contained in said Note.
This Guarantee shall continue to be effective or be reinstated, as the
case may be, if at any time payment of said Note, in whole or in part, is
rescinded or must otherwise be restored to the Issuer or the Guarantor upon the
bankruptcy, liquidation or reorganization of the Issuer or otherwise.
The Guarantor shall be subrogated to all rights of the Holder of said
Note against the Issuer in respect of any amounts paid to such Holder by the
Guarantor pursuant to the provisions of the Guarantee provided for herein;
provided, however, that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon, such right of subrogation
until the principal of, any premium and interest on, and any Additional Amounts
required with respect to, said Note shall have been paid in full.
The Guarantor hereby certifies and warrants that all acts, conditions
and things required to be done and performed and to have happened precedent to
the creation and issuance of this Guarantee and to constitute the same the valid
obligation of the Guarantor have been done and performed and have happened in
due compliance with all applicable laws.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed by its duly authorized officer under its corporate seal.
Dated: October 23, 1996
CHELSEA GCA REALTY, INC.
as Guarantor
By:______________________________
Name:
Title:
Attest:
- ----------------------------------
Name:
Title:
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY
as Trustee
By_________________________________
Authorized Signatory
Dated: October 23, 1996
