Exhibit 1
, dated as of October 18, 1996 (the ""), by and between Chelsea GCA Realty Partnership, L.P. (the "Company")
and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx").
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
Xxxxxxx Xxxxx; and
WHEREAS, the Company has requested Xxxxxxx Xxxxx 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, Xxxxxxx Xxxxx 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 XXXXXXX XXXXX. (a) The Company
hereby appoints Xxxxxxx Xxxxx and Xxxxxxx Xxxxx 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
with such person as soon as reasonably practicable.
Section 5. DEALING IN THE NOTES. Subject to its compliance with applicable
laws and regulations, Xxxxxxx Xxxxx, 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. Xxxxxxx Xxxxx 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. Xxxxxxx Xxxxx,
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 . 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 Xxxxxxx Xxxxx. The rights and obligations of
Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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., 000
Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X. Xxxx,
Executive Vice President and Chief Financial Officer; and if to Xxxxxxx Xxxxx,
to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx 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:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By __________________________________
Name:
Title:
EXHIBIT A
REMARKETING UNDERWRITING AGREEMENT
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 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:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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:
Xxxxx'x 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 & Xxxxx, Seven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, 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:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By ________________________________
Title:
