dated as of February 27, 1998 (the "") between TriNet Corporate Realty Trust, Inc., a Maryland corporation
(the "Company"), and ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("JPMSI" and, in its capacity
as the remarketing dealer hereunder, the "Remarketing Dealer").
WHEREAS, the Company has issued $125,000,000 aggregate principal amount of
its 6.75% Dealer remarketable securitiesSM ("▇▇▇.▇▇") pursuant to an Indenture
dated as of February 27, 1998 (the "Base Indenture"), and a supplemental
indenture dated the same date (the "Supplemental Indenture" and, together with
the Base Indenture, the "Indenture"), in each case between the Company and
▇▇▇▇▇▇ Trust and Savings Bank, as trustee (the "Trustee"); and
WHEREAS, the Drs. are being sold initially pursuant to an Underwriting
Agreement dated as of February 24, 1998 (the "Underwriting Agreement") between
the Company and JPMSI and ▇▇▇▇▇▇▇, Sachs & Co., as Underwriters; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-42717) under the Securities
Act of 1933, as amended (the "Securities Act"), in connection with the offering
of debt securities, including the Drs., which registration statement was
declared effective by order of the Commission, and has filed such amendments
thereto and such amended or supplemented prospectuses as may have been required
to the date hereof, and will file such additional amendments and supplements
thereto and such additional amended or supplemented prospectuses as may
hereafter be required (such registration statement, including any amendments and
supplements thereto, and all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), the Securities Act, or otherwise,
are referred to herein as the "Registration Statement"); all preliminary and
final prospectuses relating to such Registration Statement used in connection
with the offering of Drs., including the documents incor-
----------
SM "Dealer remarketable securities(SM)" and "Drs.(SM)" are service marks of
▇.▇. ▇▇▇▇▇▇ Securities Inc.
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porated by reference therein, are referred to herein collectively as the
"Prospectus"; provided that, if any new or revised prospectus shall be provided
to the Remarketing Dealer by the Company for use in connection with the
remarketing of the Drs. which differs from the Prospectus filed with the
Commission at the time of the initial issuance of the Drs. (whether or not such
revised prospectus is required to be filed by the Company pursuant to Rule
424(b) under the Securities Act), the terms "Prospectus" shall refer to such new
or revised prospectus from and after the time it is first provided to the
Remarketing Dealer for such use, and "Registration Statement" shall refer to the
Registration Statement as deemed amended by the prospectus so provided or any
new registration statement of which such prospectus is a part; and
WHEREAS, JPMSI is prepared to act as the Remarketing Dealer with respect to
the remarketing of the Drs. on March 1, 2003 (the "Remarketing Date") pursuant
to the terms of, but subject to the conditions set forth in, this Agreement;
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 Indenture and the form
of the Drs.
SECTION 2. Representations and Warranties. (a) The Company represents and
warrants to the Remarketing Dealer as of the date hereof, the Notification Date
(as defined below), the Determination Date (as defined below) and the
Remarketing Date (each of the foregoing dates being hereinafter referred to as a
"Representation Date"), as follows:
(i) It has filed all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (collectively, the
"Exchange Act Documents").
(ii) The applicable Remarketing Materials (as defined below) will not,
as of their date or the Remarketing Date, include 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, in the light
of the circumstances under which they were made, not misleading.
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(iii) The representations and warranties contained in the Underwriting
Agreement are true and correct with the same force and effect as though
expressly made at and as of each Representation Date; except that for
purposes of this Agreement, representations and warranties in the
Underwriting Agreement relating to the Registration Statement and the
Prospectus (as defined therein) shall be made with respect to such
documents as deemed modified by the Exchange Act Documents, as well as any
new or revised registration statement and new or revised prospectus
required by subsection 3(f) herein, and the date as of which such
representations and warranties are made shall include each Representation
Date.
(iv) Since the respective dates as of which information is given in
the Remarketing Materials or the Exchange Act Documents, there has not been
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Remarketing Materials or
the Exchange Act Documents.
(v) This Agreement has been duly authorized, executed and delivered by
the Company.
(vi) The issue and sale of the Drs. and the performance by the Company
of all of its obligations under the Drs., the Indenture and this Agreement
and the consummation of the transactions herein and therein 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 or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for such
conflicts, breaches or defaults which individually or in the aggregate
would not have a Material Adverse Effect (as defined in the Underwriting
Agreement) 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,
its subsidiaries or any of their respective
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properties. 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 Drs. or the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture, except such as have already been obtained.
(b) Additional Certifications. Any certificate signed by any director or
officer of the Company and delivered to the Remarketing Dealer or to counsel for
the Remarketing Dealer in connection with the remarketing of the Drs. shall be
deemed a representation and warranty by the Company to the Remarketing Dealer as
to the matters covered thereby.
SECTION 3. Covenants of the Company. The Company covenants with the
Remarketing Dealer as follows:
(a) The Company will provide prompt notice by telephone, confirmed in
writing (which may include facsimile or other electronic transmission), to the
Remarketing Dealer whenever
(i) at any time, (x) any event set forth in clause (i) or (ii) of
subsection 8(c) occurs, (y) any amendment of any kind shall have been made
to the Indenture (including the Drs.) or (z) the Company shall exercise its
option to redeem the Drs. in accordance with the terms thereof; and
(ii) on or after the Notification Date, any event set forth in clauses
(i) or (ii) of subsection 8(d) occurs.
(b) The Company will furnish to the Remarketing Dealer upon request:
(i) each Registration Statement and the Prospectus relating to the
Drs. (including in each case any amendment or supplement thereto and each
document incorporated therein by reference), other than Exchange Act
Documents publicly available on the Commission's internet website, and
(ii) in connection with the remarketing of Drs. such other publicly
available written information as the Remarketing Dealer may reasonably
request from time to time, other than Exchange Act Documents publicly
available on the Commission's internet website.
-5-
The Company agrees to provide the Remarketing Dealer with as many copies of the
foregoing written materials and other Company-approved information as the
Remarketing Dealer may reasonably request for use in connection with the
remarketing of Drs. and consents to the use thereof for such purpose.
(c) If, at any time within three months of the Remarketing Date, any event
or condition known to the Company relating to or affecting the Company, any
subsidiary thereof or the Drs. shall occur which could reasonably be expected to
cause any of the materials or information referred to in subsection (b) above,
any Exchange Act Documents or any document incorporated therein by reference
(collectively, the "Remarketing Materials") to contain an untrue statement of a
material fact or omit to state a material fact, the Company shall promptly
notify the Remarketing Dealer in writing of the circumstances and details of
such event or condition.
(d) So long as the Drs. are outstanding, the Company will file all
documents required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations thereunder.
(e) The Company will comply with the Securities Act, the Exchange Act, the
Trust Indenture Act and the rules and regulations of the Commission thereunder
so as to permit the completion of the remarketing of the Drs. as contemplated in
(i) this Agreement, (ii) the Prospectus first used to confirm sales of the Drs.
when the Drs. were originally issued, and (iii) the prospectus, if any, used in
connection with the remarketing.
(f) If a new or amended Registration Statement in respect of the Drs. is,
in the opinion of counsel for the Remarketing Dealer or for the Company,
necessary to sell Drs. on an unrestricted basis on the Remarketing Date, then
the Company, at its expense, will, on or before the Remarketing Date:
(i) prepare and file with the Commission such amended or new
Registration Statement (including a Prospectus) covering such sale of Drs.
by the Remarketing Dealer, and cause such Registration Statement to become
effective;
(ii) furnish to the Remarketing Dealer such number of copies of such
Prospectus as the Remarketing Dealer may reasonably request;
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(iii) furnish to the Remarketing Dealer an officers' certificate, an
opinion, including a statement as to the absence of material misstatements
in or omissions from such Registration Statement and Prospectus, of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ or such other counsel to the Company reasonably
satisfactory to the Remarketing Dealer and a "comfort letter" from the
Company's independent accountants, in each case dated as of the Remarketing
Date and in form and substance satisfactory to the Remarketing Dealer, of
the same tenor as the officers' certificate, opinion and comfort letter,
respectively, delivered to satisfy the closing conditions of the
Underwriting Agreement, but modified to relate to such new or amended
Registration Statement and Prospectus; and
(iv) provide to the Remarketing Dealer and any other securities dealer
participating in the remarketing of the Drs. the opportunity to conduct an
underwriters' due diligence investigation of the Company in a scope
customarily provided in connection with a public offering of the Company's
debt securities.
Furthermore, if at any time when, in the opinion of counsel for the
Remarketing Dealer, a prospectus is required by the Securities Act to be
delivered in connection with remarketing of the Drs., any event shall occur or
condition shall exist as a result of which it is necessary to amend the
Registration Statement or amend or supplement the Prospectus in order that such
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it is necessary to amend or supplement the
Prospectus to comply with law, the Company, at its expense, will promptly
furnish to the Remarketing Dealer such amendments or supplements to the
Prospectus as may be needed so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
(g) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall purchase or otherwise acquire, or enter into any agreement to
purchase or otherwise acquire, any of the Drs. prior to the remarketing thereof
by the Remarketing Dealer, other than (x) a repurchase of the Drs.
-7-
in accordance with subsection 4(g), (y) a redemption of the Drs. in accordance
with subsection 4(h) or (z) a redemption in accordance with the terms of the
Drs.
(h) The Company will comply with each of the covenants set forth in the
Underwriting Agreement.
(i) In connection with the remarketing, the Company will endeavor to
qualify the Drs. for offer and sale under the Securities or Blue Sky laws of
such jurisdictions as the Remarketing Dealer shall reasonably request and to
continue such qualifications in effect so long as reasonably required for the
remarketing of the Drs.; provided, that the Company shall not be required to
file a general consent to service of process in any jurisdiction or to make any
undertaking with respect to the conduct of business; 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; the Company will pay all expenses in connection
with such qualification, including the reasonable fees and disbursements of
counsel for any dealers participating in the remarketing in connection with such
qualification and in connection with blue sky and legal investment surveys.
(j) During the five Business Day period ending on the Remarketing Date, the
Company will not, without the consent of the Remarketing Dealer, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any debt securities.
SECTION 4. Appointment and Obligations of the Remarketing Dealer. (a)
Unless this Agreement is otherwise terminated in accordance with Section 10
hereof, in accordance with the terms, but subject to the conditions, of this
Agreement, the Company hereby appoints JPMSI, and JPMSI hereby accepts such
appointment, as the exclusive Remarketing Dealer with respect to the Drs.,
subject to (i) the repurchase of the Drs. in accordance with subsection 4(g),
(ii) the redemption of the Drs. in accordance with subsection 4(h) hereof and
(iii) the optional redemption of the Drs. by the Company in accordance with the
terms of the Drs.
(b) The obligations of the Remarketing Dealer hereunder to purchase the
tendered Drs. on the Remarketing Date, to determine the Interest Rate to
Maturity pursuant to subsection 4(d) and to remarket the Drs. are conditioned
on:
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(i) the issuance and delivery of such Drs. pursuant to the terms and
conditions of the Underwriting Agreement;
(ii) the Remarketing Dealer's election on the Notification Date to
purchase the Drs. for remarketing on the Remarketing Date and
(iii) the fact that the conditions set forth in Section 8 hereof shall
have been fully and completely met to the satisfaction of the Remarketing
Dealer.
(c) On a Business Day not later than five Business Days prior to the
Remarketing Date (the "Notification Date"), the Remarketing Dealer will notify
the Company and the Trustee as to whether it elects to purchase the Drs. on the
Remarketing Date. If, and only if, the Remarketing Dealer so elects, the Drs.
shall be subject to mandatory tender to the Remarketing Dealer for purchase and
remarketing on the Remarketing Date, upon the terms and subject to the
conditions described herein. The purchase price of the Drs. shall be equal to
100% of the principal amount thereof.
(d) The Remarketing Dealer shall determine a new stated interest rate on
the Drs. as of the Remarketing Date (the "Interest Rate to Maturity") on the
third Business Day immediately preceding the Remarketing Date (the
"Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers (defined below) for firm, committed bids to purchase
all outstanding Drs. at the Dollar Price (defined below), and by selecting the
lowest such firm, committed bid (regardless of whether each of the Reference
Corporate Dealers actually submit bids). Each bid shall be expressed in terms of
the Interest Rate to Maturity that the Drs. would bear (quoted as a spread over
5.657% per annum (the "Base Rate")) based on the following assumptions:
(i) the Drs. would be sold to such Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date;
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs. and
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(iv) the winning bidder will bear all of its own expenses (including
legal fees) in connection with the remarketing.
The Interest Rate to Maturity announced by the Remarketing Dealer as a
result of such process will be quoted to the nearest one hundred-thousandth
(0.00001) of one percent per annum and, absent manifest error, will be binding
and conclusive upon holders of the Drs., the Company and the Trustee. Subject
only to subsection (e), below, the Remarketing Dealer shall have the discretion
to select the time at which the Interest Rate to Maturity is determined on the
Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account or (ii) sell the Drs. to the
Reference Corporate Dealer submitting the lowest firm, committed, bid pursuant
to subsection 4(d). If two or more Reference Corporate Dealers submit equivalent
bids which constitute the lowest firm, committed bid, the Remarketing Dealer may
in its sole discretion elect to sell the Drs. to any such Reference Corporate
Dealer.
"Dollar Price" means the discounted present value to the Remarketing Date
of the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the Drs., (y) maturing on the Stated Maturity Date and (z)
bearing interest from the Remarketing Date, payable semi-annually (assuming a
360-day year consisting of twelve 30-day months) on the interest payment dates
of the Drs. at a rate equal to the Base Rate, using a discount rate equal to the
Treasury Rate (defined below).
"Reference Corporate Dealer" means ▇.▇. ▇▇▇▇▇▇ Securities Inc. and four
other leading dealers of publicly-traded debt securities of the Company to be
chosen by the Company and approved by the Remarketing Dealer. If any of such
persons shall cease to be a leading dealer of publicly-traded debt securities of
the Company, then the Remarketing Dealer may replace such person with any other
leading dealer of publicly-traded debt securities of the Company.
"Treasury Rate" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue (defined
below) for value on the Remarketing Date, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal
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amount) equal to the Comparable Treasury Price (as defined below).
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual or interpolated maturity
on the Determination Date comparable to the remaining term of the Drs.
"Comparable Treasury Price" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500 (as defined below),
adjusted to reflect settlement on the Remarketing Date if prices quoted on
Telerate Page 500 are for settlement on any date other than the Remarketing
Date, or (b) if such page (or any successor page) is not displayed or does not
contain such offer prices on such Business Day, (i) the average of five
Reference Treasury Dealer Quotations for such Remarketing Date, excluding the
highest and lowest of such Reference Treasury Dealer Quotations (unless there is
more than one highest or lowest quotation, in which case only one such highest
and/or lowest quotation shall be excluded), or (ii) if the Remarketing Dealer
obtains fewer than four such Reference Treasury Dealer Quotations, the average
of all such Reference Treasury Dealer Quotations. "Telerate Page 500" means the
display designated as "Telerate Page 500" on Dow ▇▇▇▇▇ Markets Limited (or such
other page as may replace Telerate Page 500 on such service) or such other
service displaying the offer prices specified in (a) above as may replace Dow
▇▇▇▇▇ Markets Limited. "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer, the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) for
settlement on the Remarketing Date, quoted in writing to the Remarketing Dealer
by such Reference Treasury Dealer by 3:30 p.m. on the Determination Date. The
Remarketing Dealer shall have the discretion to select the time at which the
Comparable Treasury Price is determined on the Determination Date.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
(e) If the Remarketing Dealer has elected to remarket the Drs. as provided
in subsections 4(c) and 4(d) then it shall notify the Company, the Trustee and
The Depository Trust Company ("DTC") by telephone, confirmed in writing (which
may include facsimile or other electronic transmission), by 5:00
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p.m., New York City time, on the Determination Date of the Interest Rate to
Maturity applicable to the Drs. effective from and including the Remarketing
Date; provided that if the Dollar Price is being determined by the Remarketing
Dealer because the Company has elected to exercise its option described in
clause (i) of subsection 4(h), the Dollar Price shall be determined by the
Remarketing Dealer and communicated to the Company by no later than 10:00 a.m.
on the Determination Date.
(f) If the Drs. are remarketed as provided herein then, subject to Section
8 hereof, the Remarketing Dealer will make, or cause the Trustee to make,
payment to DTC by the close of business on the Remarketing Date against delivery
through DTC of the tendered Drs., of the purchase price for all of the tendered
Drs. The purchase price of the tendered Drs. will be equal to 100% of the
principal amount thereof and shall be paid in immediately available funds.
(g) If the Remarketing Dealer (i) does not elect to purchase the Drs. for
remarketing pursuant to subsection 4(c); (ii) shall not have received by the
required time on the Determination Date any firm, committed bids to purchase all
of the Drs. pursuant to subsection 4(d); or (iii) for any reason does not
purchase all of the Drs. on the Remarketing Date, then the Company shall provide
to DTC funds sufficient to repurchase on the Remarketing Date any Drs. that have
not been purchased by the Remarketing Dealer at a price equal to 100% of the
principal amount of such Drs. plus all accrued interest, if any, on such Drs. to
(but excluding) the Remarketing Date.
(h) If the Remarketing Dealer has elected to remarket the Drs. on the
Remarketing Date in accordance with subsection 4(c) hereof, the Company may
irrevocably elect to exercise its right to redeem the Drs., in whole but not in
part, from the Remarketing Dealer on the Remarketing Date at the greater of (x)
100% of the aggregate principal amount of the Drs. and (y) the Dollar Price, by
giving written notice of such election to the Remarketing Dealer no later than
(i) the Business Day immediately prior to the Determination Date or
(ii) if fewer than three Reference Corporate Dealers submit firm,
committed bids in accordance with subsection 4(d) hereof, immediately after
the deadline set by the Remarketing Dealer for receiving such bids has
passed.
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In either such case, the Company shall pay such redemption price for the
Drs. in same-day funds by wire transfer on the Remarketing Date to an account
designated by the Remarketing Dealer.
If the Company exercises its right to redeem the Drs. pursuant to clause
(ii) above, it shall promptly reimburse the Remarketing Dealer for any and all
expenses (including any and all hedge losses) incurred by the Remarketing Dealer
in connection with its having to break associated hedging transactions to enable
the Company to exercise such redemption right. If any such broken ▇▇▇▇▇▇ result
in a profit to the Remarketing Dealer, the Remarketing Dealer shall promptly pay
such profit over to the Company. The amount of any hedge losses or profits shall
be determined solely by the Remarketing Dealer, on a reasonable basis.
(i) In accordance with the terms and provisions of the Drs., the tender and
settlement procedures set forth in this Section 4, shall be subject to
modification without the consent of the holders of the Drs., to the extent
required by DTC or, if the book-entry system is no longer available for the Drs.
at the time of the remarketing, to the extent required to facilitate the
tendering and remarketing of Drs. in certificated form. In addition, the
Remarketing Dealer may, without the consent of the holders of the Drs., modify
the settlement procedures set forth in the Indenture and/or the Drs. in order to
facilitate the settlement process.
(j) In accordance with the terms and provisions of the Drs., the Company
hereby (i) agrees that at all times, it will use its best efforts to maintain
the Drs. in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Drs. in book-entry
form and (ii) waives any discretionary right it otherwise may have under the
Indenture to cause the Drs. to be issued in certificated form.
SECTION 5. Fees and Expenses. Subject to Section 10 of this Agreement, the
Remarketing Dealer will not receive any fees or reimbursement of expenses from
the Company for its remarketing services set forth herein.
SECTION 6. Resignation of the Remarketing Dealer. The Remarketing Dealer
may resign and be discharged from its duties and obligations hereunder at any
time prior to giving notice of an election to remarket, such resignation to be
effective ten Business Days after delivery of a written notice to
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the Company and the Trustee of such resignation. The Remarketing Dealer also may
resign and be discharged from its duties and obligations hereunder at any time,
such resignation to be effective immediately, upon termination of this Agreement
in accordance with subsection 10(b) hereof. The Company shall have the right,
but not the obligation, to appoint a successor Remarketing Dealer.
SECTION 7. Dealing in the Drs.; Purchase of Drs. by the Company. (a) JPMSI,
when acting as the Remarketing Dealer or in its individual or any other
capacity, may, to the extent permitted by law, buy, sell, hold and deal in any
of the Drs. JPMSI, as holder or beneficial owner of the Drs., may exercise any
vote or join as a holder or beneficial owner, as the case may be, in any action
which any holder or beneficial owner of Drs. may be entitled to exercise or take
pursuant to the Indenture with like effect as if it did not act in any capacity
hereunder. The Remarketing Dealer, in its 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.
(b) The Company may purchase Drs. in the remarketing, provided that the
Interest Rate to Maturity established with respect to Drs. in the remarketing is
not different from the Interest Rate to Maturity that would have been
established if the Company had not purchased such Drs.
SECTION 8. Conditions to Remarketing Dealer's Obligations. The obligations
of the Remarketing Dealer to purchase the Drs. on the Remarketing Date in
accordance with the provisions of this Agreement, to determine the Interest Rate
to Maturity pursuant to subsection 4(d), and to remarket the Drs. have been
undertaken in reliance on, and are subject to, the following:
(a) the due performance in all material respects by the Company of its
obligations and agreements as set forth in this Agreement and the accuracy of
the representations and warranties in this Agreement and any certificate
delivered pursuant hereto;
(b) the due performance in all material respects by the Company of its
obligations and agreements set forth in, and the accuracy in all material
respects as of the dates specified therein of the representations and warranties
contained in, the Underwriting Agreement;
-14-
(c) none of the following events shall have occurred at any time on or
prior to the Remarketing Date:
(i) an Event of Default (as defined in the Indenture), or any event
which, with the giving of notice or passage of time, or both, would
constitute an Event of Default thereunder, with respect to the Drs. shall
have occurred and be continuing;
(ii) an Event of Default (as defined in the ISDA Master Agreement
dated as of February 3, 1998 (the "Master Agreement") between ▇▇▇▇▇▇
Guaranty Trust Company of New York and the Company), shall have occurred
and be continuing under the Master Agreement (if the Master Agreement shall
have terminated, then this provision shall continue to have effect as if
such agreement were still in force and effect); or
(iii) without the prior written consent of the Remarketing Dealer, the
Indenture (including the Drs.) shall have been amended in any manner, or
otherwise contain any provision not contained therein as of the date
hereof, that in either case in the judgment of the Remarketing Dealer
materially changes the nature of the Drs. or the remarketing procedures;
(d) none of the following events shall have occurred after the Remarketing
Dealer elects on the Notification Date to purchase the Drs.:
(i) there shall have occurred on or after the Determination Date any
downgrading, or any notice shall have been given of (A) any downgrading,
(B) any intended or potential downgrading or (C) any review or possible
change that does not indicate the direction of the possible change, in the
rating accorded any debt securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) trading of any securities of or guaranteed by the Company shall
have been suspended on any exchange or in any over-the-counter market;
(iii) a material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity
or results
-15-
of operations of the Company and its subsidiaries, taken as a whole, in
each case otherwise than as set forth or contemplated in the Prospectus,
the effect of which is such as to make it, in the judgment of the
Remarketing Dealer, impracticable or inadvisable to remarket the Drs.;
(iv) if a prospectus is required under the Securities Act to be
delivered in connection with the remarketing of the Drs., the Company shall
have failed to furnish to the Remarketing Dealer on the Remarketing Date
the officers' certificate, opinion and comfort letter referred to in
subsection 3(f) of this Agreement and such other documents and opinions as
counsel for the Remarketing Dealer may reasonably require for the purpose
of enabling such counsel to pass upon the sale of Drs. in the remarketing
as herein contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or
the fulfillment of any of the conditions, herein contained;
(v) trading generally shall have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange or the National Association of Securities Dealers,
Inc.; or a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities;
(vi) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Remarketing Dealer, is material and adverse
and which, in the judgment of the Remarketing Dealer, makes it
impracticable to remarket the Drs. or to enforce contracts for the sale of
the Drs.;
(vii) the Treasury Rate used to determine the Dollar Price on the
Determination Date exceeds the Base Rate; or
(viii) the Remarketing Dealer shall not have received by the required
time on the Determination Date any firm, committed bids to purchase all of
the Drs. in accordance with subsection 4(d) hereof; and
(e) the Remarketing Dealer shall have received (as soon as practicable
following notification by the Remarketing Dealer to the Company on the
Notification Date of its election to purchase the Drs. and in any event prior to
the Determina-
-16-
tion Date) a certificate of any of the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, or the Controller of the Company, satisfactory to the
Remarketing Dealer, dated as of the Notification Date, to the following effect:
(i) the Company has, prior to the Remarketing Dealer's election on the
Notification Date to remarket the Drs., provided the Remarketing Dealer
with notice of all events as required under subsection 3(a) of this
Agreement;
(ii) the representations and warranties in this Agreement are true and
correct in all material respects at and as of the Notification Date; and
(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Notification Date; and
(f) the Remarketing Dealer shall have received on the Remarketing Date a
certificate of any of the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, or the Controller of the Company, satisfactory to the Remarketing
Dealer, dated as of the Remarketing Date, to the following effect:
(i) the representations and warranties in this Agreement are true and
correct in all material respects on and as of the Remarketing Date as if
made on and as of the Remarketing Date;
(ii) the Company has complied in all material respects with all
agreements and all conditions on its part to be performed or satisfied at
or prior to the Remarketing Date;
(iii) no material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, shall have occurred since the date of the most recent financial
statements of the Company filed with the Commission; and
(iv) the conditions specified in clauses (i) through (iii) in
subsection 8(c) and clauses (i) and (ii) in subsection 8(d) of this
Agreement have been satisfied.
-17-
SECTION 9. Indemnification. (a) The Company agrees to indemnify and hold
harmless the Remarketing Dealer and each person, if any, who controls the
Remarketing Dealer within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the reasonable legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted):
(i) arising out of the failure to have an effective registration
statement under the Securities Act relating to the Drs., if required, or
the failure to satisfy the prospectus delivery requirements of the
Securities Act because the Company failed to provide the Remarketing Dealer
with a prospectus for delivery;
(ii) caused by any untrue statement or alleged untrue statement of a
material fact contained in any of the Remarketing Materials or caused by
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information
relating to the Remarketing Dealer furnished to the Company in writing by
the Remarketing Dealer expressly for use therein; or
(iii) the acts or omissions of the Remarketing Dealer in connection
with its duties and obligations under subsections 4(c) through 4(e), except
to the extent finally judicially determined to be due primarily to its
gross negligence or willful misconduct.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and its officers and each person who controls the Company
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
the Remarketing Dealer in subsection 9(a)(ii) of this Agreement, but only with
reference to information relating to such Remarketing Dealer furnished to the
Company in writing by such Remarketing Dealer expressly for use in any of the
Remarketing Materials.
-18-
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Remarketing
Dealer and its directors and officers shall be designated in writing by it and
any such separate firm for the Company, its directors and its officers who sign
the Registration Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment.
-19-
(d) Notwithstanding the foregoing subsection (c), if at any time an
Indemnified Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by such
subsection (c), the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such Indemnifying
Person of the aforesaid request, (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement and (iii) such Indemnified Person shall not have
received notice in writing that such Indemnifying Person is contesting such
request with specificity and in good faith. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(e) If the indemnification provided for in subsections 9(a) and 9(b) is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to, then each Indemnifying Person, in
lieu of indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Remarketing Dealer, on the other hand, from the remarketing of the Drs. or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and the Remarketing Dealer, on the other, in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Remarketing Dealer, on the other, shall be deemed to be in the same
respective proportions as the aggregate principal amount of the Drs. bears to
the amount, if any, by which the price at which the Drs. are sold by the
Remarketing Dealer in the remarketing exceeds the price paid by the Remarketing
Dealer for the Drs. tendered on the Remarketing Date. The relative fault of the
Company, on the one hand, and the Remarketing Dealer, on
-20-
the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Remarketing Dealer and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
(f) The Company and the Remarketing Dealer agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
(g) Notwithstanding the provisions of this Section 9, in no event shall the
Remarketing Dealer be required to contribute any amount in excess of the amount
by which the total price at which the Drs. remarketed by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Remarketing Dealer has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 9 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
(h) The indemnity and contribution agreements contained in this Section 9
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement and (ii) any investigation made by or on
behalf of the Remarketing Dealer or any person controlling the Remarketing
Dealer or by or on behalf of the Company, its officers or directors or any other
person controlling the Company.
-21-
SECTION 10. Termination of . (a) This Agreement shall
terminate as to the Remarketing Dealer on the earliest of
(i) the effective date of the resignation of the Remarketing Dealer
pursuant to Section 6;
(ii) the date of the occurrence of any of the events described in
clauses (i) through (iii) of subsection 4(g);
(iii) the date the Company gives notice of its intention to redeem all
of the outstanding Drs. in accordance with subsection 4(h); or
(iv) the optional redemption of all of the outstanding Drs. by the
Company in accordance with the terms thereof.
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and the
Trustee of its election to do so, at any time on or before the Remarketing Date,
if:
(i) any of the conditions referred to or set forth in Section 8 hereof
have not been met or satisfied in full or if any of the events set forth in
subsection 8(c) or 8(d) shall have occurred;
(ii) the Remarketing Dealer determines, in its sole discretion, after
consultation with the Company, that there is material, non-public
information about the Company that is not available to the Remarketing
Dealer which is necessary for it to fulfill its obligations under this
Agreement.
(c) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party, except
that, in the case of a termination resulting from a failure to satisfy the
conditions set forth in subsections 8(a) or 8(b) or the occurrence of any of the
events set forth in subsection 8(c) or any of clauses (i) through (iv) of
subsection 8(d), the Company shall reimburse the Remarketing Dealer for all of
its reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Remarketing Dealer. Section 9 and subsections
4(h), 10(c) and 10(d) shall survive such termination and remain in full force
and effect.
-22-
(d) Upon:
(i) the termination of this Agreement pursuant to subsection 10(b)
(except as a result of an event described in subsection 8(d)(vii));
(ii) a repurchase by the Company of any Drs. due to a failure by the
holder thereof to deliver the Drs. to the Remarketing Dealer against
payment therefor in connection with a mandatory tender; or
(iii) the optional redemption by the Company of Drs. in accordance
with the terms thereof,
then, upon the request of the Remarketing Dealer, the Company shall pay to the
Remarketing Dealer, in same-day funds by wire transfer to an account designated
by the Remarketing Dealer, the Call Price (as defined below). The Call Price
shall be paid as soon as practicable after the Remarketing Dealer has determined
the Call Price and notified the Company of the Call Price, but in any case no
later than the Remarketing Date.
"Call Price" means the fair market value of the embedded interest rate
option implicit in the Remarketing Dealer's right to purchase and remarket,
pursuant to this Agreement, the Drs. not purchased by the Remarketing Dealer.
The Call Price in respect of any Drs. not purchased (because of the redemption
of such Drs. by the Company or otherwise) (such Drs., excluding any Drs.
previously redeemed and in respect of which a Call Price was already derived by
a previous application of this subsection (e), the "Unpurchased Drs.") by the
Remarketing Dealer shall equal:
(i) if the Remarketing Dealer's request for a Call Price payment is
made on or after the Determination Date, an amount (if positive) equal to
(A) the Dollar Price multiplied by a fraction the numerator of which is the
principal amount of the Unpurchased Drs. and the denominator of which is
the aggregate principal amount of the Drs. originally issued less (B) the
principal amount of the Unpurchased Drs.; and
(ii) if the Remarketing Dealer's request for a Call Price payment is
made prior to the Determination Date, the Commercially Reasonable Option
Value (as defined below) on the date of such request.
-23-
"Commercially Reasonable Option Value" means, on any date, the amount
determined by the Remarketing Dealer on such date under Section 6(e) of the
Master Agreement on a "Market Quotation" basis in respect of the embedded
interest rate option implicit in the Remarketing Dealer's option to purchase, at
100% of the aggregate principal value thereof, the Unpurchased Drs. as if a
"Termination Event" had occurred on such date under such interest rate option
with respect to the Company under the Master Agreement and the Company was the
"Affected Party". The determination of the Commercially Reasonable Option Value
shall be made using the provisions of the Master Agreement regardless of any
termination of the Master Agreement.
The Remarketing Dealer shall promptly notify the Company of the Call Price
by telephone, confirmed in writing (which may include facsimile or other
electronic transmission). The Call Price, absent manifest error, shall be
binding and conclusive upon the parties hereto.
(e) This Agreement shall not be subject to termination by the Company.
SECTION 11. Remarketing Dealer's Performance; Duty of Care. The duties and
obligations of the Remarketing Dealer shall be determined solely by the express
provisions of this Agreement and the Indenture. No implied covenants or
obligations of or against the Remarketing Dealer shall be read into this
Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Agreement and the Indenture, as to the truth of the statements expressed in any
of such documents. The Remarketing Dealer shall be protected in acting upon any
document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. The Remarketing Dealer shall
incur no liability to the Company or to any beneficial owner or holder of Drs.
in its individual capacity or as Remarketing Dealer for any action or failure to
act in connection with the remarketing or otherwise, except as a result of gross
negligence or willful misconduct on its part.
SECTION 12. Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
-24-
SECTION 13. 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 earlier of the first day thereafter on which no
Drs. are outstanding or the completion of the remarketing of the Drs.
Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of each of the parties pursuant to Section 9
and of the Company pursuant to subsections 4(h), 10(c) and 10(d) hereof shall
remain operative and in full force and effect until fully satisfied.
SECTION 14. 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 the Remarketing Dealer. The rights and obligations
of the Remarketing Dealer hereunder may not be assigned or delegated to any
other person (other than an affiliate of the Remarketing Dealer) without the
prior written consent of the Company. This Agreement shall inure to the benefit
of and be binding upon the Company and the Remarketing Dealer and their
respective successors and assigns, and will not confer any benefit upon any
other person, partnership, association or corporation other than persons, if
any, controlling the Remarketing Dealer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act or any other indemnified party
to the extent provided in Section 9 hereof. The terms "successors" and "assigns"
shall not include any purchaser of any Drs. merely because of such purchase.
SECTION 15. 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 16. 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,
circumstance or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
-25-
SECTION 17. 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 18. Amendments; Waivers. This Agreement may be amended or portions
thereof may be waived by any instrument in writing signed by each of the parties
hereto so long as this Agreement as amended or the provisions as so waived are
not inconsistent with the Indenture in effect as of the date of any such
amendment or waiver.
SECTION 19. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing (which may include facsimile or other electronic
transmission) and shall be deemed to have been validly given or made when
delivered or, if earlier, three days after it was mailed, registered or
certified mail, return receipt requested and postage prepaid, addressed as
follows:
(a) to the Company:
TriNet Corporate Realty Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: A. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President
and Chief Financial Officer
▇▇▇▇▇ ▇▇▇▇▇, Vice President and
General Counsel
Facsimile No.: 415-391-6259
(b) to JPMSI:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Syndicate Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the Company or the Remarketing Dealer shall specify
in writing.
IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has
caused this to be executed in its name and on its behalf
by one of its duly authorized officers as of the date first above written.
TRINET CORPORATE REALTY
TRUST, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
