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EXHIBIT 10.11
AGREEMENT OF LIMITED PARTNERSHIP
OF
TRINET PROPERTY PARTNERS, L.P.
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINED TERMS.....................................................................1
ARTICLE 2 ORGANIZATIONAL MATTERS...........................................................14
Section 2.1 Formation..........................................................14
Section 2.2 Name...............................................................15
Section 2.3 Registered Office and Agent; Principal Office......................15
Section 2.4 Power of Attorney..................................................15
Section 2.5 Term...............................................................16
ARTICLE 3 PURPOSE..........................................................................17
Section 3.1 Purpose and Business...............................................17
Section 3.2 Powers.............................................................17
ARTICLE 4 CAPITAL CONTRIBUTIONS............................................................17
Section 4.1 Capital Contributions of the Partners..............................17
Section 4.2 Issuance of Additional Partnership Interests.......................18
Section 4.3 Additional Funding and Discretionary Capital Contributions.........18
Section 4.4 No Guaranteed Payment Within The Meaning of Section 707(c) of the
Internal Revenue Code..............................................19
ARTICLE 5 DISTRIBUTIONS....................................................................19
Section 5.1 Requirement and Characterization of Distributions..................19
Section 5.2 Amounts Withheld...................................................20
Section 5.3 Right to Withhold Distributions....................................20
ARTICLE 6 ALLOCATIONS OF PROFIT AND LOSS...................................................21
Section 6.1 Capital Accounts...................................................21
Section 6.2 Profits, Losses and Distributive Shares............................21
ARTICLE 7 MANAGEMENT AND OPERATIONS OF BUSINESS............................................26
Section 7.1 Management.........................................................26
Section 7.2 Certificate of Limited Partnership.................................30
Section 7.3 Restrictions on General Partner Authority..........................30
Section 7.4 Reimbursement of the General Partner; Partnership Management Fee...31
Section 7.5 Contracts with Affiliates..........................................32
Section 7.6 Indemnification....................................................32
Section 7.7 Liability of the General Partner...................................34
Section 7.8 Other Matters Concerning the General Partner.......................35
Section 7.9 Title to Partnership Assets........................................36
Section 7.10 Reliance by Third Parties..........................................36
(i)
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Section 7.11 General Partner's Capital Contribution to Fund the Contributors'
Prorations and Other Expenses under Contribution Agreements........36
ARTICLE 8 RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS.......................................37
Section 8.1 Limitation of Liability............................................37
Section 8.2 Management of Business.............................................37
Section 8.3 Outside Activities of Limited Partners.............................37
Section 8.4 Return of Capital..................................................38
Section 8.5 Exchange Rights of Qualifying Parties..............................38
Section 8.6 The General Partner's Right to Call Limited Partner Interests......42
Section 8.7 Other Exchanges....................................................42
Section 8.8 Obligation of Limited Partners with Respect to Rights of First
Refusal............................................................42
ARTICLE 9 BOOKS, RECORDS, ACCOUNTING AND REPORTS...........................................45
Section 9.1 Records and Accounting.............................................45
Section 9.2 Fiscal Year........................................................45
Section 9.3 Reports............................................................45
ARTICLE 10 TAX MATTERS......................................................................46
Section 10.1 Preparation of Tax Returns.........................................46
Section 10.2 Tax Elections......................................................46
Section 10.3 Tax Matters Partner................................................46
Section 10.4 Organizational Expenses............................................48
Section 10.5 Withholding........................................................48
ARTICLE 11 TRANSFERS AND WITHDRAWALS........................................................49
Section 11.1 Transfer...........................................................49
Section 11.2 Transfer of the General Partner Interest...........................49
Section 11.3 Limited Partners' Restrictions on Transfer.........................50
Section 11.4 Substituted Limited Partners.......................................50
Section 11.5 General Provisions.................................................50
ARTICLE 12 ADMISSION OF PARTNERS............................................................51
Section 12.1 Admission of Successor General Partner.............................51
Section 12.2 Amendment of Agreement and Certificate of Limited Partnership......51
ARTICLE 13 DISSOLUTION, LIQUIDATION AND TERMINATION.........................................52
Section 13.1 Dissolution........................................................52
Section 13.2 Winding Up.........................................................52
Section 13.3 Rights of Partners.................................................54
Section 13.4 Notice of Dissolution..............................................54
Section 13.5 Termination of Partnership and Cancellation of Certificate of
Limited Partnership................................................54
Section 13.6 Reasonable Time for Winding-Up.....................................55
(ii)
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Section 13.7 Waiver of Partition................................................55
ARTICLE 14 AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS.....................................55
Section 14.1 Amendments.........................................................55
Section 14.2 Meetings of the Partners...........................................56
ARTICLE 15 GENERAL PROVISIONS...............................................................56
Section 15.1 Addresses and Notice...............................................56
Section 15.2 Titles and Captions................................................57
Section 15.3 Pronouns and Plurals...............................................57
Section 15.4 Further Action.....................................................57
Section 15.5 Binding Effect.....................................................57
Section 15.6 Creditors..........................................................57
Section 15.7 Waiver.............................................................57
Section 15.8 Counterparts.......................................................57
Section 15.9 Applicable Law.....................................................58
Section 15.10 Invalidity of Provisions...........................................58
Section 15.11 Entire Agreement...................................................58
EXHIBIT A Partners' Contributions and Percentage Interests..................................61
EXHIBIT B Encumbered Properties, Pledged Units, Restricted PeriodExpiration Date, Minimum
Debt Amount and Call Date.........................................................62
EXHIBIT C FORM OF_________________NOTICE OF EXCHANGE........................................64
EXHIBIT D Form of Prospective Subscriber Questionnaire......................................68
EXHIBIT E Investment Representations and Warranties.........................................73
(iii)
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AGREEMENT OF LIMITED PARTNERSHIP
OF
TRINET PROPERTY PARTNERS, L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP OF TRINET PROPERTY PARTNERS, L.P.
(as it may be amended, supplemented or restated from time to time, this
"Agreement"), dated as of December 17, 1997, is entered into by TriNet Realty
Investors I, Inc., a Maryland corporation (together with its successors and
assigns, the "General Partner"), and the Persons (as defined below) whose names
are set forth on Exhibit A attached hereto (as it may be amended from time to
time, collectively, the "Initial Limited Partners").
NOW THEREFORE, in consideration of the mutual covenants herein contained,
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
"Act" means the Delaware Revised Uniform Limited Partnership Act, as it
may be amended from time to time, and any successor to such statute.
"Adjusted Capital Account" means, with respect to any Partner, such
Partner's Capital Account maintained in accordance with Section 6.1 hereof, as
of the end of the relevant period, after giving effect to the following
adjustments:
A. Credit to such Capital Account that portion of any deficit
Capital Account balance that such Partner is obligated to restore under the
terms of this Agreement or any other document, such Partner's share of Minimum
Gain determined in accordance with Treasury Regulations Section 1.704-2(g)(1)
and such Partner's share of Partner Nonrecourse Debt Minimum Gain determined in
accordance with Treasury Regulations Section 1.704-2(i)(5).
B. Debit to such Capital Account the items described in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of "Adjusted Capital Account" is intended to
comply with the provisions of Treasury Regulations Sections 1.704-1(b)(2) and
1.704-2 and shall be interpreted consistently therewith.
"Adjusted Capital Account Deficit" means, with respect to any Partner, the
deficit
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balance, if any, in that Partner's Adjusted Capital Account as of the end of the
relevant period.
"Adjustment Factor" means 1.0; provided, however, that subject to any
applicable Adjustment Limitations, in the event that:
(a) TriNet or its successor in interest (i) declares or pays a dividend
on its outstanding REIT Shares in REIT Shares or makes a
distribution to all holders of its outstanding REIT Shares in REIT
Shares, (ii) splits or subdivides its outstanding REIT Shares, or
(iii) effects a reverse stock split or otherwise combines its
outstanding REIT Shares into a smaller number of REIT Shares, the
Adjustment Factor shall be adjusted by multiplying the Adjustment
Factor previously in effect by a fraction, (A) the numerator of
which shall be the number of REIT Shares issued and outstanding on
the record date for such dividend, distribution, split, subdivision,
reverse split or combination (assuming for such purposes that such
dividend, distribution, split, subdivision, reverse split or
combination has occurred as of such time) and (B) the denominator of
which shall be the actual number of REIT Shares (determined by
assuming for such purposes that such dividend, distribution, split,
subdivision, reverse split or combination has not occurred as of
such time) issued and outstanding on the record date for such
dividend, distribution, split, subdivision, reverse split or
combination;
(b) a distribution is made pursuant to Section 5.1.B(3) or Section
5.1.B(4) of this Agreement, the Adjustment Factor shall be adjusted
by multiplying the Adjustment Factor previously in effect by a
fraction (i) the numerator of which shall be the aggregate Fair
Market Value of all Limited Partner Interests held by the Limited
Partners as of the date of such distribution minus the aggregate
distribution to the Limited Partners pursuant to Section 5.1.B(3)
and Section 5.1.B(4) hereof on such date and (ii) the denominator of
which shall be the aggregate Fair Market Value of all Limited
Partner Interests held by the Limited Partners as of the date of
such distribution; and
(c) prior to a Specified Exchange Date, (i) REIT Share Rights are issued
to all holders of outstanding REIT Shares without consideration,
(ii) such REIT Share Rights have not expired and (iii) such REIT
Share Rights were issued at a conversion or exercise price that was
below fair market value at the time of issuance in relation to the
REIT Shares to be acquired upon conversion or exercise of such REIT
Share Rights, then the Adjustment Factor applicable to the exercise
of an Exchange Right on a subsequent Specified Exchange Date shall
be equitably adjusted in a manner determined by the General Partner
to be consistent with "weighted average" anti-dilution provisions in
warrants and other similar instruments providing for adjustments in
the event of a below market exercise or issuance price, or, in the
General Partner's sole and absolute discretion, in lieu of
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such adjustment to the Adjustment Factor, the General Partner may
elect to cause to be issued to a Limited Partner who has tendered
Units equivalent REIT Share Rights in the amount that the Limited
Partner would have received with respect to the number of REIT
Shares the Limited Partner would have received had the Limited
Partner tendered the Tendered Units immediately prior to the
original record date for receiving the REIT Share Rights.
Any adjustments to the Adjustment Factor shall become effective, with respect to
any events described above, on the record date applicable to such event (or if
no record date is applicable, the effective date for such event) or, with
respect to an adjustment to the Adjustment Factor due to a distribution to the
Limited Partners pursuant to Section 5.1.B(3) or Section 5.1.B(4) hereof, the
earlier of the date of such distribution or the date on which the Limited
Partners become entitled to receive such distribution (if any).
"Adjustment Limitations" means, as to a Limited Partner, the limitations
and restrictions, if any, relating to the Adjustment Factor that are specified
as such on Exhibit A with respect to such Limited Partner. The Adjustment
Limitations need not be the same for each Limited Partner.
"Affiliate" means, with respect to any Person, (i) any Person directly or
indirectly controlling, controlled by or under common control with such Person;
(ii) any Person owning or controlling ten percent (10%) or more of the
outstanding voting interests of such Person; (iii) any Person of which such
Person owns or controls ten percent (10%) or more of the voting interests; or
(iv) any officer, director, general partner or trustee of such Person or of any
Person referred to in clauses (i), (ii), and (iii) above.
"Agreed Value" means (i) in the case of any Contributed Property, the fair
market value of such property at the time of contribution as set forth in the
applicable Contribution Agreement, and (ii) in the case of assets (other than
cash or any Contributed Property) contributed or deemed contributed to the
Partnership by a Partner, the value thereof listed in Exhibit A to this
Agreement (as amended by the General Partner from time to time) or as otherwise
agreed upon by the General Partner and the Person making the contribution,
reduced, in the case of each of clauses (i) and (ii), by any indebtedness either
assumed by the Partnership upon such contribution or to which the asset is
subject at the time of contribution, and in each case subject to reduction
pursuant to Section 8.8.D, and (iii) in the case of Partnership assets other
than cash or REIT Shares (which shall be valued as provided in Section 8.5
hereof) distributed to a Partner by the Partnership, the Partnership's Book
Value of such property at the time such property is distributed, reduced by any
indebtedness either assumed by such Partner upon such distribution or to which
such asset is subject at the time of distribution as determined under Code
Section 752 and the Treasury Regulations thereunder.
"Agreement" means this Agreement of Limited Partnership, as it may be
amended,
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supplemented or restated from time to time.
"Available Cash" means, with respect to any period for which such
calculation is being made, (a) the sum, without duplication, of all cash
revenues and funds received by the Partnership from whatever source (excluding
the proceeds of any Capital Contribution to the Partnership pursuant to Sections
4.1, 4.2, 4.3, 8.5 or 10.5 hereof and excluding the gross proceeds of any
Terminating Capital Transaction), plus the amount of any reduction (including,
without limitation, a reduction resulting because the General Partner determines
in its sole and absolute discretion such amounts are no longer necessary) in
reserves of the Partnership, which reserves are referred to in clause (b)(iv)
below; less (b) the sum, without duplication, of the following (except to the
extent made with the proceeds of any Capital Contribution and except to the
extent taken into account in determining Terminating Capital Transaction
Proceeds):
(i) all interest, principal and other payments in connection
with debt, including, without limitation, prepayment fees, premiums or
penalties, made during such period by the Partnership;
(ii) all cash expenditures (including, without limitation,
capital expenditures with respect to tangible and intangible assets) made
by the Partnership during such period and amounts deemed necessary by the
General Partner in its sole and absolute discretion to be held as
operating capital;
(iii) investments in any entity (including, without
limitation, loans made thereto) to the extent that such investments are
not otherwise described in clauses (b)(i) or (ii); and
(iv) the amount of any reserves (or increases in such
reserves) established during such period which the General Partner
determines in its sole and absolute discretion are necessary or
appropriate.
Notwithstanding the foregoing, Available Cash shall not include any cash
received or reductions in reserves, or take into account any disbursements made
or reserves established, after commencement of the dissolution and liquidation
of the Partnership.
"Book-Tax Disparity" means, with respect to any Contributed Property, as
of the date of determination, the difference between the Book Value of such
Contributed Property and the adjusted basis of such Contributed Property for
federal income tax purposes.
"Book Value" means, with respect to any of the Contributed Properties, the
Agreed Value of such property, subject to reduction as provided in Section
8.8.D, reduced (but not below zero) by all Depreciation with respect to such
property properly charged to the Capital Accounts and, with respect to any other
Partnership asset, the asset's adjusted basis for federal income tax purposes;
provided, however, (a) the Book Value of all Partnership assets may be adjusted
in the
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event of a revaluation of Partnership assets in accordance with Treasury
Regulations Section 1.704-1(b)(2)(iv)(f) to such fair market value as shall be
determined by the General Partner in its reasonable judgment; (b) the Book Value
of any Partnership asset other than cash distributed to any Partner shall be the
fair market value of such asset on the date of distribution as determined by the
General Partner in its reasonable judgment and (c) such Book Value of any
Partnership asset shall be adjusted by the Depreciation taken into account with
respect to such asset for purposes of computing Profits and Losses.
"Built in Tax Amount" means an assumed amount of state and federal taxes
which would be payable by the Limited Partners as a consequence of the Taxable
Event in question at an assumed combined federal and state tax rate of 26.375%.
Notwithstanding the foregoing, (a) with respect to a Taxable Event that is a
non-taxable transaction with "boot" or a taxable sale of some but not all of the
Contributed Properties, or, in the case of a reduction in the principal balance
of Partnership debt below the applicable Minimum Debt Amount, "Built in Tax
Amount" means the assumed amount of state and federal taxes that would be
payable by the applicable Limited Partners on account of such Taxable Event at
an assumed combined federal and state tax rate of 26.375% and (b) the Built in
Tax Amount shall be reduced to reflect any transfer, disposition or other event
or occurrence which has caused such Limited Partners to recognize a portion of
their gain but which are not Taxable Events.
"Business Day" means any weekday that is not an official holiday in the
Commonwealth of Massachusetts.
"Call Date" means, for any Limited Partner, the call date specified on
Exhibit B with respect to such Limited Partner.
"Capital Contribution" means, with respect to any Partner, the aggregate
amount of cash and Agreed Value of any other property which such Partner
contributes or is deemed to contribute to the Partnership pursuant to Sections
4.1, 4.2, 4.3, 8.5 and 10.5 hereof, taking into account the provisions of
Section 8.8.
"Cash Amount" means the Value of a REIT Share on the Valuation Date.
"Cash Payment" has the meaning set forth in Section 8.5.A.
"Certificate" means the Certificate of Limited Partnership relating to the
Partnership to be filed in the office of the Delaware Secretary of State
simultaneously with the effectiveness of this Agreement, as amended from time to
time in accordance with the terms hereof and the Act.
"Charter" means the Articles of Incorporation of the General Partner filed
with the Maryland State Department of Assessments and Taxation and the Articles
of Incorporation of TriNet, in each case as amended, supplemented or restated
from time to time.
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"Code" means the Internal Revenue Code of 1986, as amended and in effect
from time to time, as interpreted by the applicable regulations thereunder. Any
reference herein to a specific section or sections of the Code shall be deemed
to include a reference to any corresponding provision of future law.
"Consent" means the consent or approval of a proposed action by a Partner
given in accordance with Article 14 hereof.
"Contributed Property" means, individually, each property contributed to
the Partnership pursuant to a Contribution Agreement or similar agreement.
"Contribution Agreement" means, collectively, the agreements to contribute
or similar agreements entered into between the General Partner and any Limited
Partners who have agreed to contribute properties or make other contributions to
the Partnership, in each case, as amended from time to time.
"Contribution Date" means for each Encumbered Property the date on which
such Encumbered Property was contributed to the Partnership.
"Control" means the ability, whether through ownership of partnership
interests, of voting securities or otherwise, to direct the policies and
management of any business entity.
"Delivery Date" has the meaning set forth in Section 8.5.C.
"Depreciation" means, for each fiscal year or other period, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period for federal
income tax purposes, except that if an asset has a Book-Tax Disparity at the
beginning of such year or other period (as a result of property contributions or
adjustments to such values), Depreciation shall be adjusted as necessary so as
to be an amount which bears the same ratio to such beginning Book Value as the
federal income tax depreciation, amortization or other cost recovery deduction
for such year or other period bears to the beginning adjusted tax basis;
provided, however, that if the federal income tax depreciation, amortization or
other cost recovery deduction for such year or other period is zero,
Depreciation for such year or other period shall be determined with reference to
such beginning Book Value using any reasonable method approved by the General
Partner.
"Diminished Value Amount" has the meaning set forth in Section 8.8.B.
"Disposition Event" has the meaning set forth in Section 8.8.A.
"Encumbered Properties" has the meaning set forth in Section 8.8.
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"Event Date" has the meaning set forth in Section 8.8.B.
"Exchange" means the exchange of Tendered Units for cash or REIT Shares
pursuant to Section 8.5. "Exchange Right" has the meaning set forth in Section
8.5.A.
"Exchange Shares" has the meaning set forth in Section 8.5.B.
"Exercise Date" has the meaning set forth in Section 8.8.A.
"Exercise Event" has the meaning set forth in Section 8.8.A.
"Fair Market Value" means, with respect to a Limited Partner Interest or
Interests which may be exchanged for one (1) REIT Share (taking into account any
adjustments to the Adjustment Factor which became effective prior to a
distribution under Section 5.1.B), the average of the daily market prices for a
REIT Share for the ten (10) consecutive trading days immediately preceding the
date of a distribution to Limited Partners pursuant to Section 5.1.B. The market
price for any such trading day shall be the closing price on the New York Stock
Exchange on such day.
"Final Adjustment" has the meaning set forth in Section 10.3.B(2).
"General Partner" means TriNet Realty Investors I, Inc., in its capacity
as the general partner of the Partnership.
"General Partner Interest" means a Partnership Interest held by the
General Partner, in its capacity as general partner.
"General Partner Priority Return Rate" means, for the General Partner, for
each Contributed Property, an annual return, compounded quarterly, in the amount
specified therefor on Exhibit A, as amended from time to time by the General
Partner in connection with the contribution of new properties to the Partnership
to specify a return elected by the General Partner in its sole and absolute
discretion with respect to such new Contributed Property.
"▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement
Act of 1976, as amended.
"Immediate Family" means, with respect to any natural Person, such
Person's spouse, the natural or adoptive parents of such Person or his or her
spouse and the descendants, nephews, nieces, brothers and sisters of such
Person.
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"Incapacity" or "Incapacitated" means, (i) as to any individual Partner,
death, total physical disability or entry by a court of competent jurisdiction
adjudicating him incompetent to manage his Person or his estate; (ii) as to any
corporation which is a Partner, the filing of a certificate of dissolution, or
its equivalent, for the corporation or the revocation of its charter; (iii) as
to any partnership which is a Partner, the dissolution and commencement of
winding up of the partnership; (iv) as to any estate which is a Partner, the
distribution by the fiduciary of the estate's entire interest in the
Partnership; (v) as to any trustee of a trust which is a Partner, the
termination of the trust (but not the substitution of a new trustee); or (vi) as
to any Partner, the bankruptcy of such Partner. For purposes of this definition,
bankruptcy of a Partner shall be deemed to have occurred when (a) the Partner
commences a voluntary proceeding seeking liquidation, reorganization or other
relief under any bankruptcy, insolvency or other similar law now or hereafter in
effect; (b) the Partner is adjudged as bankrupt or insolvent, or a final order
for relief under any bankruptcy, insolvency or similar law now or hereafter in
effect has been entered against the Partner; (c) the Partner executes and
delivers a general assignment for the benefit of the Partner's creditors; (d)
the Partner files an answer or other pleading admitting or failing to contest
the material allegations of a petition filed against the Partner in any
proceeding filed against the Partner seeking liquidation, reorganization or
other relief under any bankruptcy, insolvency or other similar law now or
hereafter in effect; (e) the Partner seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator for the Partner or for all or
any substantial part of the Partner's properties; (f) any proceeding seeking
liquidation, reorganization or other relief of or against such Partner under any
bankruptcy, insolvency or other similar law now or hereafter in effect has not
been dismissed within one hundred twenty (120) days after the commencement
thereof; (g) the appointment, without the Partner's consent or acquiescence, of
a trustee, receiver or liquidator for the Partner or for all or a substantial
part of the Partner's assets has not been vacated or stayed within ninety (90)
days of such appointment; or (h) an appointment referred to in clause (g) which
has been stayed is not vacated within ninety (90) days after the expiration of
any such stay.
"Indemnitee" means any Person made a party to a proceeding by reason of
(i) his, or its status as the General Partner or as a shareholder, director,
officer or agent of the Partnership or the General Partner, or (ii) his or its
liabilities, pursuant to a loan guarantee or otherwise, for any indebtedness or
obligation of the Partnership or any Subsidiary of the Partnership (including,
without limitation, any indebtedness or obligation which the Partnership has
assumed or taken assets subject to) and such other Persons (including Affiliates
of the General Partner or the Partnership) as the General Partner may designate
from time to time (whether before or after the event giving rise to potential
liability) in its sole and absolute discretion.
"Initial Units Value" has the meaning set forth in Section 8.8.A.
"Investment Documents" has the meaning set forth in Section 11.4 hereof.
"IRS" means the Internal Revenue Service.
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"Issuance Date" shall be the twentieth (20th) day of a calendar month (or,
if such date is not a Business Day, the next Business Day), as long as the
Notice of Exchange is received by the General Partner at any time on or before
the first (1st) Business Day of such calendar month. If a Notice of Exchange is
received by the General Partner at any time after the first (1st) Business Day
of a calendar month, then the Issuance Date shall be the twentieth (20th) day
(or, if such day is not a Business Day, the next Business Day) of the
immediately following calendar month. For example, if a Notice of Exchange is
received by the General Partner on May 10th, the Issuance Date shall be June
20th (or, if such day is not a Business Day, the next Business Day).
"Limited Partner" shall mean each Initial Limited Partner of the
Partnership, each additional Limited Partner admitted to the Partnership after
the date hereof, and each Substituted Limited Partner, in each case in such
Person's capacity as a Limited Partner of the Partnership.
"Limited Partner Interest" means a Partnership Interest of a Limited
Partner in the Partnership representing a fractional part of the ownership
interests in the Partnership of all Partners and includes any and all benefits
to which the holder of such a Partnership Interest may be entitled, together
with all obligations of such Person to comply with the terms and provisions of
this Agreement.
"Limited Partner Priority Return Rate" means for each Limited Partner an
annual return, compounded quarterly, in the amount specified for such Limited
Partner on Exhibit A, which need not be the same for each Limited Partner.
"Liquidating Event" has the meaning set forth in Section 13.1.
"Liquidator" has the meaning set forth in Section 13.2.
"Minimum Gain" shall have the meaning of such term as set forth in
Treasury Regulations Section 1.704-2(d), and shall generally mean the amount by
which the nonrecourse liabilities secured by any assets of the Partnership
exceed the adjusted tax basis of such assets as of the date of determination. A
Partner's share of Minimum Gain (and any net decrease thereof) at any time shall
be determined in accordance with Treasury Regulations Section 1.704-2(g).
"Minimum Debt Amount" means with respect to one or more Contributed
Properties the amount of Partnership debt indicated on Exhibit B.
"Notice of Exchange" has the meaning set forth in Section 8.5.A.
"NYSE" means the New York Stock Exchange.
"Ownership Limit" means the applicable restriction on ownership of shares
of TriNet
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imposed under its Charter.
"Partner" means a General Partner or a Limited Partner, and "Partners"
means the General Partner and the Limited Partners collectively.
"Partner Nonrecourse Debt" has the meaning of such term set forth in
Treasury Regulations Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" has the meaning of such term set
forth in Treasury Regulations Section 1.704-2(i).
"Partner Nonrecourse Deductions" has the meaning of such term set forth in
Treasury Regulations Section 1.704-2(i). Subject to the terms of the immediately
preceding sentence, Partner Nonrecourse Deductions shall consist of, with
respect to any partner nonrecourse debt (as such term is defined in Treasury
Regulations Section 1.704-2(b)(4)), the increase in Partner Nonrecourse Debt
Minimum Gain during a tax year plus any increase in Partner Nonrecourse Debt
Minimum Gain for a prior tax year which has not previously generated a Partner
Nonrecourse Deduction. The determination of which Partnership items constitute
Partner Nonrecourse Deductions shall be made in a manner consistent with the
manner in which Partnership Nonrecourse Deductions are determined.
"Partner Record Date" has the meaning set forth in Section 5.1.A.
"Partnership" means the limited partnership formed under the Act and
pursuant to this Agreement, as it may be amended or restated from time to time,
and any successor thereto.
"Partnership Interest" means an ownership interest in the Partnership
representing a fractional part of the ownership interests in the Partnership of
all Partners and includes any and all benefits to which the holder of such
Partnership Interest may be entitled, together with all obligations of such
Person to comply with the terms and provisions of this Agreement.
"Percentage Interest" with respect to a Partner means the amount
determined by dividing such Partner's Unrecovered Capital Amount by the
aggregate Unrecovered Capital Amounts of all Partners.
"Person" means an individual or a corporation, limited liability company,
partnership, trust, unincorporated organization, association or other entity.
"Priority Return" means, for each Priority Return Calculation Year, with
respect to any Limited Partner, a return on the Unrecovered Capital Amount of
such Limited Partner calculated at the applicable Limited Partner Priority
Return Rate, and, with respect to the General Partner, a return on the
Unrecovered Capital Amount of the General Partner equal to the applicable
General
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Partner Priority Return Rate.
"Priority Return Calculation Year" means for each Partner a one-year
period beginning on the date of admission of such Partner to the Partnership or
a yearly anniversary of such date, as applicable, and ending on the next
following yearly anniversary of such date; provided, however, that if the
General Partner Priority Return Rate is calculated differently for one (1) or
more Contributed Properties, the Priority Return Calculation Year of the General
Partner for each such Contributed Property shall mean the one-year period
beginning on the date of contribution of each such Contributed Property to the
Partnership, or a yearly anniversary of such date, as applicable, and ending on
the next following yearly anniversary of such date.
"Profits" and "Losses" means, for each fiscal year or other period, an
amount equal to the Partnership's taxable income or loss (as the case may be)
for such year or period, determined in accordance with Code Section 703(a) (for
this purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Code Section 703(a)(1) shall be included in taxable
income or loss), with the following adjustments:
(1) Any income of the Partnership that is exempt from federal income tax
and not otherwise taken into account in computing Profits or Losses
pursuant to this definition shall be added to such taxable income or
loss;
(2) Any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures
pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and
not otherwise taken into account in computing Profits or Losses
pursuant to this definition (including amounts paid or incurred to
organize the Partnership (unless an election is made pursuant to
Code Section 709(b) or to promote the sale of interests in the
Partnership), shall be subtracted from such taxable income or loss,
with deductions for any losses incurred in connection with the sale
or exchange of Partnership property disallowed pursuant to Section
267(a)(1) or Section 707(b) of the Code treated as expenditures
described in Section 705(a)(2)(B) of the Code);
(3) Gain or loss resulting from any disposition of Partnership property
with respect to which gain or loss is recognized for federal income
tax purposes shall be computed by reference to the Book Value of the
property disposed of notwithstanding that the adjusted tax basis of
such property differs from such Book Value;
(4) In lieu of the depreciation, amortization and other cost recovery
deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such fiscal
year or other period, computed in accordance with the definition of
"Depreciation" herein;
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(5) In the event that any item of income, gain, loss or deduction that
has been included in the initial computation of Profit or Loss is
subject to the special allocation rules of Section 6.2.D hereof,
Profit or Loss shall be recomputed without regard to such item; and
(6) In the event of an adjustment of the Book Value of any Partnership
asset which requires that the Capital Accounts of the Partnership be
adjusted pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(e), (f) and (m), the amount of such adjustment
shall be taken into account as additional Profits or Losses pursuant
to Section 6.2 hereof.
"Qualifying Party" means any Limited Partner, including, without
limitation, any Substituted Limited Partner.
"Regulations" means the Income Tax Regulations promulgated under the Code,
as such regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
"REIT" means a real estate investment trust qualifying under Code Section
856.
"REIT Share" means a share of TriNet's Common Stock, par value $.01 per
share, or a share of the common stock of a successor to TriNet pursuant to a
Transaction.
"REIT Shares Amount" means a number of REIT Shares equal to the product of
(i) the number of Tendered Units and (ii) the Adjustment Factor.
"REIT Share Rights" shall mean any rights, options or warrants issued by
TriNet which entitle the holders thereof to subscribe for, purchase or otherwise
acquire REIT Shares.
"Related Party" means, with respect to any Person, any other Person whose
ownership of shares of the General Partner's or TriNet's capital stock would be
attributed to the first such Person under either Code Section 544 (as modified
by Code Section 856(h)(1)(B)) or Code Section 318 (as modified by Code
856(d)(5)).
"Restricted Period Expiration Date" means, with respect to a Contributed
Property, such date as is set forth on Exhibit B attached hereto for such
Contributed Property, as amended from time to time by the General Partner to
reflect the Restricted Period Expiration Date applicable to each Contributed
Property as provided in each applicable Contribution Agreement.
"Returned Units" has the meaning set forth in Section 8.8.A.
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"Rights of First Refusal" has the meaning set forth in Section 8.8.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder. Any reference herein to
a specific section or sections of the Securities Act shall be deemed to include
a reference to any corresponding provision of future law.
"Specified Exchange Date" means the date of receipt by the General Partner
of a Notice of Exchange from a Qualifying Party pursuant to the terms and
subject to the conditions set forth in Article 8 hereof.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which a majority of the voting power of the
voting equity securities or of the outstanding equity interests is owned,
directly or indirectly, by such Person.
"Substituted Limited Partner" means a Person who is admitted as a Limited
Partner to the Partnership from and after the date of this Agreement pursuant to
Section 11.4.
"Taxable Event" means an event described in items (i), (ii) or (iii) of
Section 7.3.B.
"Tendered Units" has the meaning set forth in Section 8.5.A hereof.
"Tendering Party" has the meaning set forth in Section 8.5.A hereof.
"Terminating Capital Transaction" means (i) any sale or other disposition
of any Contributed Property of the Partnership, other than pursuant to a wholly
tax-free exchange with no boot as described in Section 7.3.B., and (ii) any
condemnation (or transfer in lieu thereof) of any Contributed Property or any
casualty to any Contributed Property.
"Terminating Capital Transaction Proceeds" means the sum of (i) (A) all
cash, notes or publicly traded securities received in a Terminating Capital
Transaction, (B) all cash received by the Partnership in respect of, or from the
sale or disposition by the Partnership of, non-cash proceeds of a Terminating
Capital Transaction and (C) non-cash proceeds of a Terminating Capital
Transaction, less (ii) all costs and expenses of the Partnership relating to
such Terminating Capital Transaction, all reserves established from the proceeds
of such Terminating Capital Transaction as are elected by the General Partner in
its sole and absolute discretion and, in the case of casualty or condemnation,
all amounts expended by the Partnership in connection with the repair or
rebuilding of the Contributed Property.
"Transaction" has the meaning set forth in Section 11.2 hereof.
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"Transfer," when used with respect to all or any portion of a Partnership
Interest, means, subject to the terms of this definition below, any transaction
in which a Partner, directly or indirectly, assigns all or any portion of his or
its Partnership Interest to another Person and includes any sale, assignment,
bequest, conveyance, devise, gift (outright or in trust), pledge, encumbrance,
hypothecation, mortgage, exchange, transfer or other disposition or act of
alienation, whether voluntary or involuntary or by operation of law. When the
term "Transfer" is used in Article 11 hereof, Transfer shall not mean (i) any
Exchange of Limited Partner Interests by the Partnership or any acquisition of
Tendered Units by the General Partner pursuant to Section 8.5 hereof or (ii) any
exchange or redemption of Limited Partner Interests pursuant to Section 8.6 or
Section 8.7 hereof. The terms "Transferred" and "Transferring" have correlative
meanings.
"TriNet" means TriNet Corporate Realty Trust, Inc., a Maryland
corporation.
"Units" means, collectively, the units of Limited Partner Interests issued
to the Limited Partners for the purpose of exercising the exchange and
redemption rights pursuant to Article 8 of this Agreement, which units are set
forth on Exhibit A, as amended by the General Partner from time to time.
"Unrecovered Capital Amount" means, with respect to a Partner, the sum of
(i) the aggregate of all Capital Contributions made by the Partner plus (ii) for
each Partnership Interest transferred to such Partner, if any, (including,
without limitation, with respect to the General Partner, any Returned Units
forfeited by Limited Partners and distributed to the General Partner pursuant to
Section 8.8), the Unrecovered Capital Amount allocable to such Partnership
Interest as of the time of Transfer less the sum of (a) for each Partnership
Interest transferred by such Partner (including, without limitation, with
respect to each Limited Partner, any Returned Units forfeited by such Limited
Partner pursuant to Section 8.8), the Unrecovered Capital Amount allocable to
such Partnership Interest as of the time of Transfer, (b) the aggregate
distributions to such Partner pursuant to Section 5.1.B(3), and (c) for each
Partnership Interest tendered for redemption by such Partner, if any, the
Unrecovered Capital Amount allocable to such Partnership Interest as of the
Issuance Date for such tender.
"Valuation Date" means (a) for an Exchange, the Issuance Date or, if such
date is not a Business Day, the next Business Day or (b) in any other case, the
date specified in this Agreement.
"Value" means, on any Valuation Date with respect to a REIT Share, the
average of the daily market prices for ten (10) consecutive trading days
immediately preceding the Valuation Date. The market price for any such trading
day shall be the closing price on the New York Stock Exchange on such day.
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ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1 Formation
The Partnership has been formed under and pursuant to the Act. Except as
expressly provided herein to the contrary, the rights and obligations of the
Partners and the administration and termination of the Partnership shall be
governed by the Act. The Partnership Interest of each Partner shall be personal
property for all purposes.
Section 2.2 Name
The name of the Partnership shall be TriNet Property Partners, L.P.. The
General Partner in its sole and absolute discretion may change the name of the
Partnership at any time and from time to time and shall notify the Limited
Partners of such change in its next regular communication to the Limited
Partners.
Section 2.3 Registered Office and Agent; Principal Office
The address of the registered office of the Partnership in the State of
Delaware and the name and address of the registered agent for service of process
on the Partnership in the State of Delaware is The Corporation Trust Company,
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The
principal office of the Partnership shall be c/o TriNet Corporate Realty Trust,
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
such other place as the General Partner may from time to time designate by
notice to the Limited Partners. The Partnership may maintain offices at such
other place or places within or outside the State of Delaware as the General
Partner deems advisable.
Section 2.4 Power of Attorney
A. Each Limited Partner hereby constitutes and appoints the General
Partner, any Liquidator, and authorized officers and attorneys-in-fact of each,
and each of those acting singly, in each case with full power of substitution,
as its true and lawful agent and attorney-in-fact, with full power and authority
in its name, place and stead to:
(1) execute, swear to, acknowledge, deliver, file and record in
the appropriate public offices, (a) all certificates,
documents and other instruments (including, without
limitation, this Agreement and the Certificate and all
amendments or restatement thereof) that the General Partner or
the Liquidator deems appropriate or necessary to form, qualify
or continue the existence or qualification of the Partnership
as a limited partnership (or a
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partnership in which the limited partners have limited
liability) in the State of Delaware and in all other
jurisdictions in which the Partnership may or plans to conduct
business or own property; (b) all instruments necessary to
reflect any amendment, change, modification or restatement of
this Agreement in accordance with its terms; (c) all
conveyances and other instruments or documents the General
Partner or the Liquidator deems appropriate or necessary to
reflect the dissolution and liquidation of the Partnership
pursuant to the terms of this Agreement, including, without
limitation, a certificate of cancellation; (d) all instruments
relating to the admission, withdrawal, removal or substitution
of any Partner pursuant to, or other events described in,
Article 11,12 or 13 hereof or the allocation of Units or the
Capital Contribution of any Partner or any Percentage Interest
in connection therewith; and (e) all certificates, documents
and other instruments relating to the determination of the
rights, preferences and privileges of Partnership Interests;
and
(2) execute, swear to, seal, acknowledge and file all ballots,
consents, approvals, waivers, certificates and other
instruments appropriate or necessary, in the sole and absolute
discretion of the General Partner or any Liquidator, to make,
evidence, give, confirm or ratify any vote, consent, approval,
agreement or other action which is made or given by the
Partners hereunder or is consistent with the terms of this
Agreement or appropriate or necessary, in the sole and
absolute discretion of the General Partner or any Liquidator,
to effectuate the terms or intent of this Agreement.
Nothing contained herein shall be construed as authorizing the General Partner
or any Liquidator to amend this Agreement except in accordance with Article 14
hereof or as may be otherwise expressly provided for in this Agreement.
B. The foregoing power of attorney is hereby declared to be irrevocable
and a power coupled with an interest, in recognition of the fact that each of
the Partners will be relying upon the power of the General Partner and any
Liquidator to act as contemplated by this Agreement in any filing or other
action by it on behalf of the Partnership, and it shall survive and not be
affected by the subsequent Incapacity of any Limited Partner and the transfer of
all or any portion of such Limited Partner's Partnership Interest and shall
extend to such Limited Partner's heirs, successors, assigns and personal
representatives. Each such Limited Partner hereby agrees to be bound by any
representation made by the General Partner or any Liquidator, acting in good
faith pursuant to such power of attorney, and each such Limited Partner hereby
waives any and all defenses which may be available to contest, negate or
disaffirm the action of the General Partner or any Liquidator, taken in good
faith under such power of attorney. Each Limited Partner shall execute and
deliver to the General Partner or the Liquidator, within fifteen (15) days
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after receipt of the General Partner's or Liquidator's request therefor, such
further designations, powers of attorney and other instruments as the General
Partner or the Liquidator, as the case may be, deems necessary to effectuate
this Agreement and the purposes of the Partnership.
Section 2.5 Term
The term of the Partnership shall commence on the date hereof and shall
continue until December 31, 2047, unless the Partnership is dissolved sooner
pursuant to the provisions of Article 13 or as otherwise provided by law.
ARTICLE 3
PURPOSE
Section 3.1 Purpose and Business
The purpose and nature of the business to be conducted by the Partnership
is (i) to conduct any business that may be lawfully conducted by a limited
partnership organized pursuant to the Act, (ii) to enter into any partnership,
joint venture or other similar arrangement to engage in any of the foregoing or
to own interests in any entity engaged in any of the foregoing, and (iii) to do
anything necessary or incidental to the foregoing.
Section 3.2 Powers
The Partnership is empowered to do any and all acts and things necessary,
appropriate, proper, advisable, incidental to or convenient for the furtherance
and accomplishment of the purposes and business described herein and for the
protection and benefit of the Partnership, including, without limitation,
borrowing money to finance one (1) or more of the Contributed Properties and the
conduct of the Partnership's business, provided that the Partnership shall not
take any action which, in the judgment of the General Partner, in its sole and
absolute discretion, (a) could adversely affect the ability of TriNet to qualify
as a REIT, (b) could subject the General Partner or TriNet to any additional
taxes under Section 857 or Section 4981 of the Code, or (c) could violate any
law or regulation of any governmental body or agency having jurisdiction over
the General Partner or TriNet, or securities issued by the General Partner or
TriNet, unless such action (or inaction) shall have been specifically consented
to by the General Partner in writing. Without limiting the foregoing, in the
sole and absolute discretion of the General Partner, the Partnership may acquire
in the future additional Contributed Properties by means of Capital
Contributions by other Persons.
ARTICLE 4
CAPITAL CONTRIBUTIONS
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Section 4.1 Capital Contributions of the Partners
At the time of the execution and delivery of this Agreement, the Partners
shall make the Capital Contributions set forth in Exhibit A to this Agreement,
which shall be appropriately adjusted from time to time, including, without
limitation, to reflect adjustments pursuant to Section 8.8. The Initial Limited
Partners shall own their respective Limited Partner Interests set forth on
Exhibit A. In connection with the acquisition of Contributed Properties by the
Partnership after the date of this Agreement, the General Partner and other
Persons then being admitted into the Partnership as Limited Partners may make
additional Capital Contributions to the Partnership as determined by the General
Partner in its sole discretion.
Except as provided in Sections 4.2, 4.3, 8.5 and 10.5, the Partners shall
have no obligation to make any additional Capital Contributions, loans or other
advances of funds to the Partnership.
Section 4.2 Issuance of Additional Partnership Interests
The General Partner shall have the right to cause the Partnership to issue
additional Partnership Interests to the Partners or other Persons in connection
with the acquisition of Contributed Properties after the date of this Agreement
and/or the making of additional Capital Contributions. The issuance of
additional Partnership Interests and the admission of any additional Limited
Partners to the Partnership from time to time shall be on such terms and
conditions and for such Capital Contributions as may be established by the
General Partner in its sole discretion. No action or consent of the Limited
Partners shall be required in connection with the issuance of additional
Partnership Interests or the admission of any additional Limited Partners to the
Partnership. Persons making additional Capital Contributions to the Partnership
after the date hereof shall be admitted to the Partnership as additional Limited
Partners, with such Partnership Interests, Priority Returns, Adjustment
Limitations and other rights and limitations as may be set forth in Exhibits A
and B. To the extent that the Partnership acquires in the future any property by
the merger of any other Person into the Partnership, Persons who receive
Partnership Interests in exchange for their interests in the Person merging into
the Partnership shall become Limited Partners and shall be deemed to have made
Capital Contributions as provided in the applicable merger agreement and as set
forth in Exhibit A.
Section 4.3 Additional Funding and Discretionary Capital Contributions.
A. The General Partner may, at any time and from time to time,
determine that the Partnership requires additional funds ("Additional Funds")
for the acquisition or development of additional Properties or for such other
purposes as the General Partner may determine. Additional Funds may be raised by
the Partnership, at the election of the General Partner, in any
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manner provided in, and in accordance with, the terms of this Section 4.3 or,
alternatively, the terms of Section 4.2 hereof. No Person, including, without
limitation, any Partner or Assignee, shall have any preemptive, preferential,
participation or similar right or rights to subscribe for or acquire any
Partnership Interest.
B. The General Partner or TriNet may lend Additional Funds to the
Partnership (a "General Partner Loan") at any time. Any General Partner Loan
shall be on terms and conditions no less favorable to the Partnership than would
be available to the Partnership from any third party as reasonably determined by
the General Partner.
C. The General Partner on behalf of the Partnership may raise all or
any portion of the Additional Funds by making additional Capital Contributions
and/or accepting additional Capital Contributions from any other Partners and/or
third parties and either (a) in the case of Partners (including the General
Partner), increasing such Partner's Partnership Interest or (b) in the case of a
third party, admitting such third party as an Additional Limited Partner as
contemplated by Section 4.2 of this Agreement. Subject to the terms of this
Section 4.3 and to the definition of "Agreed Value," the General Partner shall
determine in good faith the amount, terms and conditions of such additional
Capital Contributions.
Section 4.4 No Guaranteed Payment Within The Meaning of Section 707(c) of
the Internal Revenue Code.
The parties agree that neither the Limited Partners' Priority Return nor
the General Partner's Priority Return is intended to be a guaranteed payment
within the meaning of Section 707(c) of the Code.
ARTICLE 5
DISTRIBUTIONS
Section 5.1 Requirement and Characterization of Distributions
A. The General Partner shall distribute at least quarterly (or with
respect to a particular Limited Partner, in installments upon such other
frequency as may be provided for such Limited Partner on Exhibit A) all, or such
portion as the General Partner may determine in its sole and absolute
discretion, of the Available Cash generated by the Partnership during each
calendar quarter or portion thereof during which the Partnership is in
existence. Cash distributions pursuant to this Section 5.1 for a calendar
quarter or shorter period shall be made to the Partners who are Partners of
record on the record date for the regular quarterly dividend paid by TriNet to
the holders of REIT Shares for such quarter (the "Partner Record Date") and such
distributions shall be payable to Partners on the payment date for such dividend
for such quarter. In the event that TriNet does not declare a dividend on REIT
Shares with respect to any quarter, the Partner Record Date for such quarter
shall be the last day of such quarter and the distribution
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on account of such quarter shall be paid no later than the 20th day of the next
following quarter. Distributions of Available Cash shall be made to the
applicable Partners in accordance with the following order of priority:
(1) First, to the Limited Partners in proportion to such Limited
Partners' aggregate accrued and unpaid Priority Return, until
each Limited Partner has received an amount that, when
aggregated with all previous distributions to such Limited
Partner pursuant to this Section 5.1.A(1), is equal to (but
not in excess of) such Limited Partner's aggregate accrued
Priority Return;
(2) Second, to the General Partner until the General Partner has
received an amount that, when aggregated with all previous
distributions to the General Partner pursuant to this Section
5.1.A(2), is equal to (but not in excess of) the General
Partner's aggregate accrued Priority Return; and
(3) Thereafter, 99% to the General Partner and 1% in the aggregate
to the Limited Partners in proportion to the Percentage
Interests of the Limited Partners.
B. Terminating Capital Transaction Proceeds shall be distributed within
ninety (90) days of receipt by the Partnership to those Partners who are
Partners on the date of the distribution of the Terminating Capital Transaction
Proceeds in accordance with the following order of priority:
(1) First, to the Limited Partners in proportion to the Limited
Partners' aggregate accrued and unpaid Priority Return, until
each Limited Partner has received an amount that, when
aggregated with all previous distributions to such Limited
Partner pursuant to Section 5.1.A(1) and this Section
5.1.B(1), is equal to (but not in excess of) such Limited
Partner's aggregate accrued Priority Return;
(2) Second, to the General Partner until the General Partner has
received an amount that, when aggregated with all previous
distributions to the General Partner pursuant to 5.1.A(2) and
this Section 5.1.B(2) is equal to (but not in excess of) the
General Partner's aggregate accrued Priority Return;
(3) Third, to the Partners in proportion to their Unrecovered
Capital Amounts until the Partners have received an aggregate
amount equal to their aggregate Unrecovered Capital Amounts;
and
(4) Thereafter, 1% to the Limited Partners in proportion to their
Percentage
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Interests and 99% to the General Partner.
Section 5.2 Amounts Withheld
All amounts withheld pursuant to the Code or any provisions of any state
or local tax law and Section 10.5 hereof with respect to any allocation, payment
or distribution to the Partners shall be treated as amounts distributed to the
Partners pursuant to Section 5.1 for all purposes under this Agreement.
Section 5.3 Right to Withhold Distributions. Notwithstanding any term of
this Agreement to the contrary, the General Partner shall have the right to
withhold from any distributions that would otherwise be due to a Limited Partner
under this Agreement and apply such withheld amounts to any and all amounts that
are owed to the Partnership pursuant to the applicable Contribution Agreement,
any agreement with respect to the pledge of Units of such Limited Partner to the
General Partner or the Partnership, this Agreement, including, without
limitation, any loan described in Section 10.5, or in any other agreement
entered into in connection with or pursuant to this Agreement or the applicable
Contribution Agreement.
ARTICLE 6
ALLOCATIONS OF PROFIT AND LOSS
Section 6.1 Capital Accounts.
A. The Partnership shall establish and maintain a separate Capital
Account for each Partner in accordance with Code Section 704 and Treasury
Regulations Section 1.704-1(b)(2)(iv). Subject to the immediately preceding
sentence, the Capital Account of each Partner shall be credited with (i) the
amount of all cash Capital Contributions made or deemed made to the Partnership
by such Partner in accordance with this Agreement and the Agreed Value of any
other property contributed or deemed contributed to the Partnership by such
Partner pursuant to the terms of this Agreement, adjusted if required pursuant
to Section 8.8; plus (ii) all Profits allocated to such Partner pursuant to
Article 6 hereof (including for purposes of this Section 6.1 income and gain
exempt from tax); and shall be debited with the sum of: (x) all Losses allocated
to such Partner pursuant to Article 6 hereof, and (y) all cash and the Agreed
Value of any other property actually distributed or deemed distributed by the
Partnership to such Partner pursuant to the terms of this Agreement. Any
reference in any section or subsection of this Agreement to the Capital Account
of a Partner shall be deemed to refer to such Capital Account as the same may be
credited or debited from time to time as set forth above.
B. The foregoing provisions of this Section 6.1 are intended to comply
with Treasury Regulations Section 1.704-1(b) and shall be interpreted and
applied in a manner consistent with such Treasury Regulations. In the event the
General Partner shall determine that it is prudent to modify the manner in which
Capital Accounts are computed hereunder in order to comply with
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such Treasury Regulations, the General Partner may make such modification if
such modification will not have any effect whatsoever on the amount
distributable to any Partner under the terms of this Agreement or the amount
which any Partner may be obligated to advance to restore negative Capital
Accounts and the General Partner notifies the Limited Partners in writing of
such modification prior to making such modification.
Section 6.2 Profits, Losses and Distributive Shares.
A. Operating Profits. Subject to Section 6.2.C below, and after giving
effect to the special allocations, if any, provided in Sections 6.2.D and E
hereof, Profits in each fiscal year or other relevant period of the Partnership
shall be allocated in the following order:
(1) First, to each Partner in proportion to the cumulative Losses
allocated to such Partner under Section 6.2.B(2) and (3)
hereof (in inverse order in which they were allocated), until
the cumulative Profits allocated to such Partner under this
Section 6.2.A(1) equal the cumulative Losses allocated to such
Partner under Section 6.2.B(2) and (3) hereof;
(2) Second, to the Limited Partners proportionately based on the
amount, if any, by which the cumulative prior and concurrent
distributions of each Limited Partner's Priority Return
pursuant to Section 5.1.A(1) hereof exceeds the cumulative
amounts of Profits previously allocated to such Limited
Partner pursuant to this Section 6.2.A(2);
(3) Third, to the General Partner in the amount, if any, that the
cumulative prior and concurrent distributions of the General
Partner's Priority Return pursuant to Section 5.1.A(2) hereof
exceeds the cumulative amounts of Profits previously allocated
to the General Partner pursuant to this Section 6.2.A(3); and
(4) Thereafter, 99% to the General Partner and 1% to the Limited
Partners in the aggregate and among the Limited Partners in
proportion to their respective Percentage Interests.
B. Operating Losses. Subject to Section 6.2.C below, and after giving
effect to the special allocations, if any, provided in Section 6.2.D and E
hereof, Losses in each fiscal year or other relevant period of the Partnership
shall be allocated in the following order:
(1) First, to each Partner in proportion to the cumulative Profits
allocated to such Partner pursuant to Section 6.2.A(2), (3)
and (4) hereof (in inverse order in which they were allocated)
until the cumulative Losses allocated to such Partner under
this Section 6.2.B(1) equal the cumulative Profits allocated
to such Partner under Section 6.2.A(2), (3) and (4);
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(2) Second, to and among those Partners having positive balances
in their Capital Accounts, in proportion to and to the extent
of, such positive Capital Account balances after giving effect
to any Losses allocated to such Partners pursuant to Section
6.2.B(1); and
(3) Thereafter, 100% to the General Partner.
C. Profits and Losses From Terminating Capital Transaction.
Notwithstanding anything contained in Sections 6.2.A and B hereof, after giving
effect to the special allocations, if any, provided in Sections 6.2.D and E
hereof, all items of Partnership Profits and Losses arising from a Terminating
Capital Transaction shall be allocated among the Partners so as to insure to the
maximum extent possible that, after giving effect to the allocation of such
Profits and Losses in the Capital Accounts of the Partners, the Capital Account
balance of each Partner is positive in the amount of cash that such Partner
would be entitled to receive pursuant to Section 5.1.B if the Partnership sold
its remaining assets for their then Book Value and liquidated pursuant to the
provisions of Section 13.2.
D. Special Allocations. Except as otherwise provided in this Agreement,
the following special allocations will be made in the following order and
priority:
(1) Partnership Minimum Gain Chargeback. Notwithstanding any other
provision of this Article 6, if there is a net decrease in
Minimum Gain during any tax year or other period for which
allocations are made, each Partner will be specially allocated
items of Partnership income and gain for that period (and, if
necessary, subsequent periods) in an amount equal to such
Partner's share of the net decrease in Minimum Gain during
such tax year or other period determined in accordance with
Treasury Regulations Section 1.704-2(g)(2). Allocations
pursuant to the preceding sentence shall be made in proportion
to the respective amounts required to be allocated to each
Partner pursuant thereto. The items to be so allocated shall
be determined in accordance with Treasury Regulations Sections
1.704-2(f)(6) and 1.704-2(j)(2)(i). This Section 6.2.D(1) is
intended to comply with the minimum gain chargeback
requirements set forth in Treasury Regulations Section
1.704-2(f) and shall be interpreted consistently therewith,
including the exceptions to the minimum gain chargeback
requirement set forth in Treasury Regulations Sections
1.704-2(f)(2) and (3).
(2) Partner Nonrecourse Debt Minimum Gain Chargeback.
Notwithstanding any other provision of this Section 6.2 (other
than Section 6.2.D(1), which shall be applied before this
Section 6.2.D(2)), if there is a net decrease
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in Partner Nonrecourse Debt Minimum Gain during any tax year
or other period for which allocations are made, each Partner
with a share of Partner Nonrecourse Debt Minimum Gain
determined in accordance with Treasury Regulations Section
1.704-2(i)(5) shall be specially allocated items of
Partnership income and gain for that period (and, if
necessary, subsequent periods) in an amount equal to such
Partner's share of the net decrease in the Partner Nonrecourse
Debt Minimum Gain determined in accordance with Treasury
Regulation 1.704-2(i). The items to be so allocated shall be
determined in accordance with Treasury Regulations Sections
1.704-2(i)(4) and 1.704-2(j)(2)(ii). This Section 6.2.D(2) is
intended to comply with the minimum gain chargeback
requirements of Treasury Regulations Section 1.704-2(i)(4) and
shall be interpreted consistently therewith, including the
exceptions set forth in Treasury Regulations Section
1.704-(f)(2) and (3) to the extent such exceptions apply to
Treasury Regulations Section 1.704-2(i)(4).
(3) Qualified Income Offset. If a Partner unexpectedly receives
any adjustment, allocation or distribution described in
Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or
(6), respectively, such Partner will be specially allocated
items of Partnership income and gain (consisting of a pro rata
portion of each item of Partnership income, including gross
income, and gain for the relevant tax year or other period for
which allocations are made) in an amount and manner sufficient
to eliminate, to the extent required by the Treasury
Regulations, the Adjusted Capital Account Deficit of such
Partner as quickly as possible, provided that an allocation
pursuant to this Section 6.2.D(3) shall be made only to the
extent that such Partner would have an Adjusted Capital
Account Deficit after all other allocations provided for in
this Section 6.2 have been made in the first instance without
regard to this Section 6.2.D(3).
(4) Partner Nonrecourse Deductions. Notwithstanding anything to
the contrary in this Agreement, any Partner Nonrecourse
Deductions for any taxable year or other period for which
allocations are made will be allocated to the Partner who
bears the economic risk of loss with respect to the liability
to which the Partner Nonrecourse Deductions are attributable
in accordance with Treasury Regulations Section 1.704-2(i).
(5) Code Section 754 Adjustments. To the extent an adjustment to
the adjusted tax basis of any Partnership asset under Code
Section 734(b) or 743(b) is required to be taken into account
in determining Capital Accounts under Treasury Regulations
Section 1.704-1(b)(2) (iv)(m), the amount of the adjustment to
the Capital Accounts will be treated as an
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item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases the basis of the
asset), and the gain or loss will be specially allocated to
the Partners in a manner consistent with the manner in which
their Capital Accounts are required to be adjusted under
Treasury Regulations Section 1.704-1(b)(2)(iv)(m).
(6) Depreciation Recapture. In the event there is any recapture of
Depreciation or investment tax credit, the allocation thereof
shall be made among the Partners in the same proportion as the
deduction for such Depreciation or investment tax credit was
allocated.
(7) Interest In Partnership. Notwithstanding any other provision
of this Agreement, no allocation of Profit or Loss (or item of
Profit or Loss) will be made to a Partner if the allocation
would not have "economic effect" under Treasury Regulations
Section 1.704-1(b)(2)(ii) or otherwise would not be in
accordance with the Partner's interest in the Partnership
within the meaning of Treasury Regulations Section
1.704-1(b)(3) or 1.704-1(b)(4)(iv).
E. Curative Allocations. The allocations set forth in Sections 6.2.D(1)
through (5) and (7) hereof (the "Regulatory Allocations") are intended to comply
with certain requirements of Treasury Regulations Sections 1.704-1(b) and
1.704-2. The Regulatory Allocations may not be consistent with the manner in
which the Partners intend to divide Partnership distributions. Accordingly, the
General Partner is authorized to further allocate Profits, Losses, and other
items of income, gain, loss and deduction among the Partners in a reasonable
manner so as to prevent the Regulatory Allocations from distorting the manner in
which Partnership distributions would be divided among the Partners under
Section 5.1 hereof, but for application of the Regulatory Allocations. In
general, such reallocation will be accomplished by specially allocating other
Profits, Losses and items of income, gain, loss and deduction, to the extent
they exist, among the Partners so that the net amount of the Regulatory
Allocations and the special allocations to each Partner is zero. The General
Partner may accomplish this result in any reasonable manner that is consistent
with Code Section 704 and the related Treasury Regulations.
F. Tax Allocations - Code Section 704(c). Notwithstanding anything
contained in this Agreement to the contrary, taxable income, gain, loss, and
deduction with respect to any Partnership property (including, but not limited
to, the Contributed Properties) that is subject to Code Section 704(c), the
Treasury Regulations thereunder and/or Treasury Regulations Section
1.704-1(b)(2)(iv)(f) shall be determined and allocated among the Partners, and
the Capital Accounts of the Partners shall be determined, in accordance with
such Code Section and/or Treasury Regulations, as the case may be. The General
Partner hereby agrees that the Partnership shall elect the "traditional method
with curative allocations" described in Treasury Regulation Section
1.704-3(c)(3)(iii)(B) to eliminate the Book-Tax Disparity with respect to the
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Contributed Properties, and such election shall be binding on all of the
Partners.
G. Other Allocation Rules. The following rules will apply to the
calculation and allocation of Profits, Losses and other items of income, gain,
loss and deduction:
(1) Unless otherwise determined by the General Partner, for
purposes of determining the Profits, Losses or any other item
of income, gain, loss and deduction allocable to any period,
Profits, Losses and other items of income, gain, loss and
deduction will be determined on a daily basis under Code
Section 706 and the related Treasury Regulations.
(2) Except as otherwise provided in this Agreement, all items of
Partnership income, gain, loss, deduction, and other
allocations not provided for in this Agreement will be divided
among the Partners in the same proportions as they share
Profits and Losses, provided that any credits shall be
allocated in accordance with Treasury Regulations Section
1.704-1(b)(4)(ii).
H. Partner Acknowledgment. The Partners agree to be bound by the
provisions of this Section 6.2 in reporting their shares of Partnership income,
gain, loss, deduction and other allocations for income tax purposes.
I. Regulatory Compliance. The foregoing provisions of this Section 6.2
relating to the allocation of Profits, Losses and other items of income, gain,
loss and deduction for federal income tax purposes are intended to comply with
Treasury Regulations Sections 1.704-1(b) and 1.704-2, and shall be interpreted
and applied in a manner consistent with such Treasury Regulations.
J. Effect of Treasury Regulations; Liquidation. In the event the
Partnership is "liquidated" within the meaning of Treasury Regulations Section
1.704-1(b)(2)(ii)(g) but there has been no dissolution of the Partnership, then
the Partnership assets shall not be liquidated, the Partnership's liabilities
shall not be paid or discharged and the Partnership's affairs shall not be wound
up, but there shall be deemed to have been a distribution of Partnership assets
in kind to the Partners in accordance with their respective Capital Accounts
followed by a recontribution of the Partnership assets by the Partners.
ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1 Management
A. Except as otherwise expressly provided in this Agreement, all
management
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powers over the business and affairs of the Partnership are and shall be
exclusively vested in the General Partner. No Limited Partner shall have any
right to participate in or exercise control or management power over the
business and affairs of the Partnership. The General Partner may not be removed
by the Limited Partners with or without cause. In addition to the powers now or
hereafter granted a general partner of a limited partnership under applicable
law or which are granted to the General Partner under any other provision of
this Agreement, the General Partner, subject to its obligations under Section
7.3.C hereof, shall have full power and authority to do all things deemed
necessary or desirable by it to conduct the business of the Partnership, to
exercise all powers set forth in Section 3.2 hereof and to effectuate the
purposes set forth in Section 3.1 hereof, including, without limitation:
(1) the making of any expenditures (including, without limitation,
making prepayments on loans, subject to its obligations under
Section 7.3.C), the borrowing of money, the assumption or
guarantee of, or other contracting for, indebtedness and other
liabilities, the issuance of evidence of indebtedness
(including, without limitation, the securing of the same by
deed, mortgage, deed of trust or other lien or encumbrance on
the Partnership's assets) and the incurring of any obligations
it deems necessary for the conduct of the activities of the
Partnership;
(2) the making of tax, regulatory and other filings, or rendering
of periodic or other reports to governmental or other agencies
having jurisdiction over the business or assets of the
Partnership;
(3) the acquisition, disposition, mortgage, pledge, encumbrance,
hypothecation or exchange of assets of the Partnership
(including the exercise or grant of any conversion, option,
privilege, or subscription right or other right available in
connection with any assets at any time held by the Partnership
or the merger or other combination of the Partnership with or
into another entity), subject to its obligations under Section
7.3.C;
(4) the use of the assets of the Partnership (including, without
limitation, cash on hand) for any purpose consistent with the
terms of this Agreement and on any terms it sees fit,
including, without limitation, the financing of the conduct of
the operations of the Partnership or any of the Partnership's
Subsidiaries, the lending of funds or the issuance of
guarantees to other Persons (including, without limitation,
Subsidiaries of the Partnership) and the repayment of
obligations of the Partnership and its Subsidiaries and any
other Person in which it has an equity investment, and the
making of capital contributions to its Subsidiaries;
(5) the management, operation, leasing, landscaping, repair,
alteration, demolition or improvement of any real property or
improvements owned
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by the Partnership or any subsidiary of the Partnership;
(6) the making, negotiation, execution, and performance of any
contracts, conveyances or other instruments that the General
Partner considers useful or necessary to the conduct of the
Partnership's operations or the implementation of the General
Partner's powers under this Agreement, including, without
limitation, contracting with contractors, developers,
consultants, accountants, legal counsel, other professional
advisors and other agents and the payment of their expenses
and compensation out of the Partnership's assets;
(7) the distribution of Partnership cash or other Partnership
assets in accordance with this Agreement;
(8) holding, managing, investing and reinvesting cash and other
assets of the Partnership;
(9) the collection and receipt of revenues and income of the
Partnership;
(10) the selection and dismissal of employees of the Partnership
(including, without limitation, employees having titles such
as "president," "vice president," "secretary" and "treasurer"
of the Partnership), and agents, outside attorneys,
accountants, consultants, property managers, brokers and
contractors of the Partnership, and the determination of their
compensation and other terms of employment or hiring;
(11) the maintenance of such insurance for the benefit of the
Partnership and the Partners as it deems necessary or
appropriate;
(12) the formation of, or acquisition of an interest in, and the
contribution of property to, any limited or general
partnerships, limited liability companies, joint ventures or
other relationships that it deems desirable
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(including, without limitation, the acquisition of interests
in and the contributions of property to, any Subsidiary and
any other Person in which it has an equity investment from
time to time);
(13) the control of any matters affecting the rights and
obligations of the Partnership, including, without limitation,
the settlement, compromise, submission to arbitration or any
other form of dispute resolution, or abandonment of, any
claim, cause of action, liability, debt or damages, due or
owing to or from the Partnership, the commencement or defense
of suits, legal proceedings, administrative proceedings,
arbitration or other forms of dispute resolution, and the
representation of the Partnership in all suits or legal
proceedings, administrative proceedings, arbitrations or other
forms of dispute resolution, the incurring of legal expense,
and the indemnification of any Person against liabilities and
contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the
Partnership's direct or indirect investment in any Subsidiary
or any other Person (including, without limitation, the
contribution or loan of funds by the Partnership to such
Persons);
(15) the determination of the fair market value of any Partnership
property distributed in kind using such reasonable method of
valuation as the General Partner may adopt;
(16) the enforcement of any rights against any Partner pursuant to
representations, warranties, covenants and indemnities
relating to such Partner's contribution of property or other
assets to the Partnership;
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(17) the exercise, directly or indirectly, through any
attorney-in-fact acting under a general or limited power of
attorney, of any right, including, without limitation, the
right to vote, appurtenant to any asset or investment held by
the Partnership;
(18) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of or in connection
with any Subsidiary of the Partnership or any other Person in
which the Partnership has a direct or indirect interest, or
jointly with any such Subsidiary or other Person;
(19) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of any Person in which
the Partnership does not have an interest, pursuant to
contractual or other agreements with such Person;
(20) the making, execution and delivery of any and all deeds,
leases, notes, mortgages, deeds of trust, security agreements,
conveyances, contracts, guarantees, warranties, indemnities,
waivers, releases or legal instruments or agreements in
writing necessary or appropriate, in the judgment of the
General Partner, for the accomplishment of any of the powers
of the General Partner enumerated in this Agreement;
(21) the issuance of additional Partnership Interests and Units, as
appropriate in the General Partner's sole and absolute
discretion, in connection with Capital Contributions by
additional Limited Partners and Capital Contributions by
Partners pursuant to the terms of this Agreement; and
(22) an election to dissolve the Partnership pursuant to Section
13.1.C, subject to its obligations under Section 7.3.C.
B. Each of the Limited Partners agrees that the General Partner is
authorized to execute, deliver and perform the above-mentioned agreements and
transactions on behalf of the Partnership without any further act, approval or
vote of the Partners, notwithstanding any other provision of this Agreement, the
Act or any applicable law, rule or regulation, to the fullest extent permitted
under the Act or other applicable law, rule or regulation, subject to its
obligations under Section 7.3.C. The execution, delivery or performance by the
General Partner or the Partnership of any agreement authorized or permitted
under this Agreement shall not constitute a breach by the General Partner of any
duty that the General Partner may owe the Partnership or the Limited Partners or
any other Persons under this Agreement or of any duty stated or implied by law
or equity so long as such execution, delivery or performance has been undertaken
by the General Partner in good faith.
C. At all times from and after the date hereof, the General Partner may
cause the
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Partnership to establish and maintain at any and all times working capital
accounts and other cash or similar balances in such amounts as the General
Partner, in its sole and absolute discretion, deems appropriate from time to
time.
D. In exercising its authority under this Agreement, the General
Partner may, but shall be under no obligation to, take into account the tax
consequences to any Partner of any action taken by it. The General Partner and
the Partnership shall not have liability to a Limited Partner under any
circumstances as a result of an income tax liability incurred by such Limited
Partner as a result of an action (or inaction) by the General Partner taken
pursuant to its authority under this Agreement, subject to the General Partner's
obligations under Section 7.3.C.
Section 7.2 Certificate of Limited Partnership
The General Partner shall have filed the Certificate with the Secretary of
State of Delaware as required by the Act. The General Partner shall use all
reasonable efforts to cause to be filed such other certificates or documents as
may be reasonable and necessary or appropriate for the formation, continuation,
qualification and operation of a limited partnership (or a partnership in which
the limited partners have limited liability) in the State of Delaware, any other
state or any other jurisdiction, in which the Partnership may elect to do
business or own property. To the extent that such action is determined by the
General Partner to be reasonable and necessary or appropriate, the General
Partner shall file amendments to and restatements of the Certificate and do all
of the things to maintain the Partnership as a limited partnership (or a
partnership in which the limited partners have limited liability) under the laws
of the State of Delaware and each other state and each other jurisdiction in
which the Partnership may elect to do business or own property. The General
Partner shall not be required before or after filing to deliver a copy of the
Certificate or any amendment thereto to any Limited Partner.
Section 7.3 Restrictions on General Partner Authority
A. The General Partner may not take any action in contravention of an
express prohibition or limitation of this Agreement without the written Consent
of Limited Partners holding a majority of the Percentage Interests of the
Limited Partners or such other percentage of the Limited Partners as may be
specifically provided for under a provision of this Agreement.
B. Except as provided in Section 7.3.C or Article 11 or 13 hereof or to
the extent that the transaction is treated as a wholly tax-free exchange with no
boot under Code Section 1031, the General Partner shall not, prior to the
Restricted Period Expiration Date with respect to a Contributed Property (i)
cause the Partnership to engage in a sale, exchange or other disposition with
respect to such Contributed Property (or any interest therein) (including by way
of taxable merger, consolidation or other combination with any other Person),
except as a result of a casualty loss, title loss or exercise of eminent domain,
(ii) cause a tax termination of the Partnership within the meaning of Section
708(b)(1)(B) of the Code; or (iii) fail to maintain
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Partnership debt at least equal to the Minimum Debt Amount. The Initial Limited
Partners agree that, simultaneously with the execution and delivery of this
Agreement, each of them will provide a bottom-dollar guaranty (each, a
"Bottom-Dollar Guaranty") with respect to indebtedness of the Partnership, which
Bottom-Dollar Guaranties shall in the aggregate be not less than the Minimum
Debt Amount and individually be of such amount as is determined by each of the
Initial Limited Partners to be necessary to avoid gain recognition by such
Initial Limited Partner. Notwithstanding anything to the contrary contained
herein, the General Partner shall have the right to refinance indebtedness of
the Partnership without restriction so long as the General Partner provides the
Limited Partners who then have Bottom-Dollar Guaranties outstanding the
opportunity to provide Bottom-Dollar Guaranties of other debt of the Partnership
in an amount equal the Minimum Debt Amount or such lesser amount as may be
sufficient for such Limited Partners to avoid gain recognition (it being
understood that such Limited Partners who elect not to provide such
Bottom-Dollar Guaranties shall be deemed to have agreed to a reduction in the
Minimum Debt Amount applicable to them by the amount of their Bottom-Dollar
Guaranties which were released in connection with such refinancing).
C. The General Partner may, in its sole discretion, elect not to comply
with Section 7.3.B with respect to any Contributed Property, and such election
shall be deemed not to constitute a breach of this Agreement or any duty of the
General Partner, if the General Partner pays to each Limited Partner who held a
beneficial interest in the applicable Contributed Property at the time of its
contribution to the Partnership an amount equal to the then present value (using
a discount rate equal to the then current yield to maturity on United States
Treasury obligations having the maturity date which most closely approximates
the period from the applicable date on which tax must be paid through the
applicable Restricted Period Expiration Date (the "Treasury Securities Rate"))
of hypothetical interest at the Treasury Securities Rate, on the Built in Tax
Amount with respect to such Contributed Property for such Limited Partner from
the date on which tax must be paid on account of such election not to comply
with Section 7.3.B to the applicable Restricted Period Expiration Date.
Notwithstanding anything to the contrary contained in this Agreement, the
payment provided for in this Section 7.3.C shall be the sole and exclusive
remedy available to the Limited Partners in the event of the General Partner's
election not to comply with Section 7.3.B.
Section 7.4 Reimbursement of the General Partner; Partnership Management
Fee
A. Except as provided in this Section 7.4 and elsewhere in this
Agreement (including, without limitation, the provisions of Articles 5 and 6
regarding distributions, payments, and allocations to which it may be entitled),
the General Partner shall not be compensated for its services as general partner
of the Partnership. The General Partner shall be entitled to receive a fee for
managing the Partnership equal to one percent (1%) per annum of all revenue of
any sort of the Partnership and shall be entitled to pay itself such fee when
and as it elects.
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B. The General Partner shall be reimbursed on a monthly basis, or such
other basis as it may determine in its sole and absolute discretion, for all
expenses that it incurs relating to the ownership and operation of, or for the
benefit of, the Partnership.
Section 7.5 Contracts with Affiliates
A. The Partnership may lend or contribute funds or other assets to its
Subsidiaries or other persons in which it has an equity investment, and such
Persons may borrow funds from the Partnership, in each case on terms and
conditions established in the sole and absolute discretion of the General
Partner. The foregoing authority shall not create any right or benefit in favor
of any Subsidiary or any other Person.
B. The Partnership may transfer assets to joint ventures, other
partnerships, corporations or other business entities in which it is or thereby
becomes a participant upon such terms and subject to such conditions consistent
with this Agreement and applicable law as the General Partner, in its sole and
absolute discretion, believes are advisable.
C. Except as expressly permitted by this Agreement, neither the General
Partner nor any of its Affiliates shall sell, transfer or convey any property
to, or purchase any property from, the Partnership, directly or indirectly, or
enter into any other transaction with the Partnership except pursuant to
transactions that are determined by the General Partner in good faith to be fair
and reasonable and except that the Partnership may incur indebtedness to the
General Partner or any of its Affiliates on terms that are comparable in all
material respects to those which the Partnership could obtain from a third party
lender as determined by the General Partner in good faith.
D. The General Partner and its Affiliates may perform services for the
Partnership and shall be entitled to receive compensation therefore determined
on an arms length, fair market value basis.
Section 7.6 Indemnification
A. To the fullest extent permitted by Delaware law, the Partnership
shall indemnify each Indemnitee from and against any and all joint or several
losses, claims, damages, liabilities, expenses (including, without limitation,
attorneys fees and other legal fees and expenses), judgments, fines,
settlements, and other amounts arising from any and all claims, demands,
actions, suits or proceedings, civil, criminal, administrative or investigative,
that relate to the Partnership or its business, affairs, properties or
operations, or to indebtedness or obligations of the
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Partnership for which the Indemnitee is or is alleged to be liable, in which
such Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise. Without limitation, the foregoing indemnity shall extend to any
liability of any Indemnitee, pursuant to a loan guaranty or otherwise for any
indebtedness of the Partnership or any Subsidiary or obligations of the
Partnership (including without limitation, any indebtedness or obligations which
the Partnership has assumed or taken subject to), and the General Partner is
hereby authorized and empowered, on behalf of the Partnership, to enter into one
or more indemnity agreements consistent with the provisions of this Section 7.6
in favor of any Indemnitee having or potentially having liability for any such
indebtedness or obligations. Any indemnification pursuant to this Section 7.6
shall be made only out of the assets of the Partnership, and neither the General
Partner nor any Limited Partner shall have any obligation to contribute to the
capital of the Partnership, or otherwise provide funds, to enable the
Partnership to fund its obligations under this Section 7.6.
B. Reasonable expenses incurred by an Indemnitee who is a party to a
proceeding shall be paid or reimbursed by the Partnership in advance of the
final disposition of the proceeding, notwithstanding any limitation otherwise
imposed by the Act or other relevant laws.
C. The indemnification provided by this Section 7.6 shall be in
addition to any other rights to which an Indemnitee or any other Person may be
entitled under any agreement, pursuant to any vote of the Partners, as a matter
of law or otherwise, and shall continue as to an Indemnitee who has ceased to
serve in a capacity which entitles it to indemnity hereunder.
D. The Partnership may, but shall not be obligated to, purchase and
maintain insurance on behalf of the Indemnitees and such other Persons as the
General Partner shall determine against any liability that may be asserted
against one (1) or more Indemnitees or expenses that may be incurred by such
Indemnitees or other Persons in connection with the Partnership's activities,
regardless of whether the Partnership would have the power to indemnify any such
Indemnitee or Person against liability under the provisions of this Agreement.
E. For purposes of this Section 7.6, the Partnership shall be deemed to
have requested an Indemnitee to serve as fiduciary of an employee benefit plan
whenever the performance by it of its duties to the Partnership also imposes
duties on, or otherwise involves services by, it to the plan or participants or
beneficiaries of the plan. Excise taxes assessed on an Indemnitee with respect
to an employee benefit plan pursuant to applicable law shall constitute fines
within the meaning of Section 7.6, and actions taken or omitted by the
Indemnitee with respect to an employee benefit plan in the performance of its
duties for a purpose reasonably believed by it to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Partnership.
F. In no event may an Indemnitee subject any of the Partners to
personal liability by reason of the indemnification provisions set forth in this
Agreement.
G. An Indemnitee shall not be denied indemnification in whole or in
part under this Section 7.6 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted by the terms of this Agreement.
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H. The provisions of this Section 7.6 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Section 7.6 or any provision hereof
shall be prospective only and shall not in any way affect the Partnership's
liability to any Indemnitee under this Section 7.6, as in effect immediately
prior to such amendment, modification, or repeal with respect to matters
occurring or liability undertaken, in whole or in part, prior to such amendment,
modification or repeal, regardless of when claims related thereto may arise or
be asserted.
Section 7.7 Liability of the General Partner
A. Notwithstanding anything to the contrary set forth in this
Agreement, the General Partner and its officers and directors shall not be
liable for monetary damages to the Partnership or any Partners for losses
sustained or liabilities incurred as a result of errors in judgment or of any
act or omission if the General Partner acted in good faith.
B. The Limited Partners expressly acknowledge that the General Partner
and TriNet are acting on behalf of the Partnership and TriNet's shareholders
collectively, that neither the General Partner nor TriNet is under any
obligation to consider the separate interests of the Limited Partners,
including, without limitation, the tax consequences to any Limited Partners in
deciding whether to cause the Partnership to take (or decline to take) any
actions, and, subject to the terms of Section 7.3.C, that neither the General
Partner nor TriNet shall be liable for monetary damages for losses sustained,
liabilities incurred, or benefits not derived by Limited Partners in connection
with such decisions, provided that the General Partner has acted in good faith.
In the event of a conflict between the interests of the General Partner's or
TriNet's shareholders on one hand and the Limited Partners on the other, the
General Partner and TriNet shall endeavor in good faith to resolve the conflict
in a manner not adverse to either such shareholders or the Limited Partners;
provided, however, that any such conflict which cannot be resolved in a manner
not adverse to either the General Partner's or TriNet's shareholders or the
Limited Partners shall be resolved in favor of the General Partner's and
TriNet's shareholders.
C. Subject to its obligations and duties as General Partner set forth
in Section 7.1.A hereof, the General Partner may exercise any of the powers
granted to it by this Agreement and perform any of the duties imposed upon it
hereunder either directly or by or through its agents. The General Partner shall
not be responsible for any misconduct or negligence on the part of any such
agent appointed by the General Partner in good faith.
D. Any amendment, modification or repeal of this Section 7.7 or any
provision hereof shall be prospective only and shall not in any way affect the
limitations on the General Partner's and its officers' and directors' liability
to the Partnership and the Limited Partners under this Section 7.7 as in effect
immediately prior to such amendment, modification or repeal
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with respect to claims arising from or relating to matters occurring, in whole
or in part, prior to such amendment, modification or repeal, regardless of when
such claims may arise or be asserted.
Section 7.8 Other Matters Concerning the General Partner
A. The General Partner may rely and shall be protected in acting, or
refraining from acting, upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, or other
paper or document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties.
B. The General Partner may consult with legal counsel, accountants,
appraisers, management consultants, investment bankers, architects, engineers,
environmental consultants and other consultants and advisers selected by it, and
any act taken or omitted to be taken in good faith in reliance upon the opinion
of such Persons as to matters which such General Partner reasonably believes to
be within such Person's professional or expert competence shall be conclusively
presumed to have been done or omitted in good faith and in accordance with such
opinion.
C. The General Partner shall have the right, in respect of any of its
powers or obligations hereunder, to act through any of its duly authorized
officers and duly appointed attorneys-in-fact. Each such attorney shall, to the
extent provided by the General Partner in the power of attorney, have full power
and authority to do and perform all and every act and duty which is permitted or
required to be done by the General Partner hereunder.
D. Subject to any agreements entered into by the General Partner or its
Affiliates (including, without limitation, TriNet) with the Partnership or any
of its Subsidiaries, the General Partner, its Affiliates (including, without
limitation, TriNet) and any officer, director, employee, agent, trustee or
shareholder of the General Partner or its Affiliates (including, without
limitation, TriNet) shall be entitled to and may have business interests and
engage in business activities in addition to those relating to the Partnership,
including, without limitation, business interests and activities that are in
direct competition with the Partnership or that are enhanced by the activities
of the Partnership. Neither the Partnership nor any of the Limited Partners or
any of their respective Affiliates shall have any rights by virtue of this
Agreement or the partnership relationship established hereby in any business
ventures of the General Partner or its Affiliates (including, without
limitation, TriNet), and none of the General Partner or its Affiliates
(including, without limitation, TriNet) shall have any obligation pursuant to
this Agreement or the partnership relationship created hereby to offer any
interest in any such business ventures to the Partnership, any Limited Partner,
or any Affiliate of any of the foregoing, even if such opportunity is of a
character which, if presented to the Partnership, any Limited Partner, or any
Affiliate of any of the foregoing, could be taken by such Person.
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E. The General Partner makes no representation that the Limited
Partners will not recognize gain or income that would be taxable as a result of
entering into this Agreement as contemplated by the Contribution Agreements. Any
costs of administering the defense of such liability is the sole responsibility
of the Limited Partners and is not subject to indemnification under this
Agreement. The General Partner shall have no liability whatsoever with respect
to the effect on any Limited Partner of actions taken in accordance with this
Agreement.
Section 7.9 Title to Partnership Assets
Title to Partnership assets, whether real, personal or mixed and whether
tangible or intangible, shall be deemed to be owned by the Partnership as an
entity, and no Partner, individually or collectively, shall have any ownership
interest in such Partnership assets or any portion thereof. Title to any or all
of the Partnership assets may be held in the name of the Partnership, the
General Partner or one or more nominees, as the General Partner may determine,
including, without limitation, Affiliates of the General Partner. The General
Partner hereby declares and warrants that any Partnership assets for which legal
title is held in the name of the General Partner or any nominee or Affiliate of
the General Partner shall be held by the General Partner for the use and benefit
of the Partnership in accordance with the provisions of this Agreement. All
Partnership assets shall be recorded as the property of the Partnership in its
books and records, irrespective of the name in which legal title to such
Partnership assets is held.
Section 7.10 Reliance by Third Parties
Notwithstanding anything to the contrary in this Agreement, any Person
dealing with the Partnership shall be entitled to assume that the General
Partner has full power and authority, without consent or approval of any other
Partner or Person, to encumber, sell or otherwise use in any manner any and all
assets of the Partnership and to enter into any contracts on behalf of the
Partnership, and take any and all actions on behalf of the Partnership and such
Person shall be entitled to deal with the General Partner as if the General
Partner were the Partnership's sole party in interest, both legally and
beneficially. Each Limited Partner hereby waives any and all defenses or other
remedies which may be available against such Person to contest, negate or
disaffirm any action of the General Partner in connection with any such dealing.
In no event shall any Person dealing with the General Partner or its
representatives be obligated to ascertain that the terms of this Agreement have
been complied with or to inquire into the necessity or expedience of any act or
action of the General Partner or its representatives. Each and every
certificate, document or other instrument executed on behalf of the Partnership
by the General Partner or its representatives shall be conclusive evidence in
favor of any and every Person relying thereon or claiming thereunder that (i) at
the time of the execution and delivery of such certificate, document or
instrument, this Agreement was in full force and effect; (ii) the Person
executing and delivering such certificate, document or instrument was duly
authorized and empowered to do so for and on behalf of the Partnership; and
(iii) such certificate, document or instrument was duly executed and delivered
in accordance with the terms and provisions of this
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Agreement and is binding upon the Partnership.
Section 7.11 General Partner's Capital Contribution to Fund the
Contributors' Prorations and Other Expenses under
Contribution Agreements.
The General Partner's Capital Contributions made at the times of
acquisition of the Contributed Properties shall be used by the General Partner
to repay loans and certain closing costs of the General Partner and the title
holders of the Contributed Properties, in each case to the extent provided in
the Contribution Agreements, and, to the extent that any portion of a Capital
Contribution remains after application to such uses, the remaining funds may be
used by the General Partner for any other purpose in accordance with the terms
of this Agreement.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1 Limitation of Liability
Subject to any separate agreements entered into by the Limited Partners,
the Limited Partners shall have no liability under this Agreement, except as
expressly provided in this Agreement, including, without limitation, Section
10.5 hereof, or under the Act.
Section 8.2 Management of Business
No Limited Partner shall take part in the operation, management or control
(within the meaning of the Act) of the Partnership's business, transact any
business in the Partnership's name or have the power to sign documents for or
otherwise bind the Partnership. The transaction of any business by the General
Partner, any of its Affiliates, including, without limitation, TriNet, or any
officer, director, employee, partner, agent or trustee of the General Partner,
the Partnership or any of their Affiliates, including, without limitation,
TriNet, shall not affect, impair or eliminate the limitations on the liability
of the Limited Partners under this Agreement.
Section 8.3 Outside Activities of Limited Partners
Subject to any separate agreements entered into by a Limited Partner or
its Affiliates, such Limited Partner, its Affiliates and any officer, director,
employee, agent, trustee or shareholder of any such Limited Partner or its
Affiliates, shall be entitled to and may have business interests and engage in
business activities in addition to those relating to the Partnership, including,
without limitation, business interests and activities that are in direct
competition with the Partnership or that are enhanced by the activities of the
Partnership. Neither the Partnership nor any Partner or any of its Affiliates
shall have any rights by virtue of this Agreement or the partnership
relationship created hereby in any business ventures of any Limited Partner or
any of its Affiliates. No Limited Partner or any of its Affiliates shall have
any
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obligation pursuant to this Agreement or the partnership relationship created
hereby to offer any interest in any such business ventures to the Partnership,
the General Partner, another Limited Partner or any of their respective
Affiliates even if such opportunity is of a character which, if presented to the
Partnership, the General Partner, another Limited Partner or any of their
respective Affiliates would or could be taken by such Person.
Section 8.4 Return of Capital
No Limited Partner shall be entitled to the withdrawal or return of its
Capital Contributions, except to the extent of distributions made pursuant to
this Agreement or upon termination of the Partnership as provided herein. Except
as otherwise expressly provided in this Agreement, including, without
limitation, any amendments hereto in accordance with Section 12.2, no Limited
Partner shall have priority over any other Limited Partner, either as to the
return of Capital Contributions or as to profits, losses or distributions.
Section 8.5 Exchange Rights of Qualifying Parties
A. After the expiration of the eighteenth (18) month (or such other
period with respect to a Limited Partner as is provided in a Contribution
Agreement entered into after the date hereof) following each Closing Date (as
that term is defined in the Contribution Agreement pursuant to which such
Closing Date occurred), a Limited Partner who received a Limited Partner
Interest on such Closing Date or any Qualifying Party who has succeeded to such
Limited Partner Interest shall have the right (the "Exchange Right") (subject to
the terms and conditions set forth herein) to require (subject to the General
Partner's rights set forth in Section 8.5.B hereof) the Partnership to redeem
all or a portion of such Limited Partner Interest (such tendered Limited Partner
Interest being hereinafter called "Tendered Units") for cash equal to the Cash
Amount multiplied by the REIT Shares Amount with respect to the Tendered Units,
plus the aggregate amount of any distributions owed but unpaid in respect of the
Tendered Units pursuant to Section 5.1 hereof on the applicable Issuance Date
(the "Cash Payment"), which amount shall be due and shall be paid on the
Issuance Date following the Specified Exchange Date relating to such Tendered
Units. In such event, the General Partner shall cause to be contributed to the
Partnership such Cash Payment, and the applicable Qualifying Party's Tendered
Units shall be redeemed in exchange for such Cash Payment in the following
manner and with the following consequences: such redemption, to the extent it
does not represent distributions required to be paid pursuant to Section 5.1
which are accrued but unpaid, shall be treated as a distribution to such Limited
Partner which reduces such Limited Partner's Unrecovered Capital Amount as of
the date of the redemption by the Unrecovered Capital Amount allocated to the
Tendered Units, and the General Partner's Unrecovered Capital Amount as of the
date of the redemption shall be increased by the Unrecovered Capital Amount
allocated to the Tendered Units. Any such exchange or redemption shall be
exercised pursuant to a notice of exchange in substantially the form attached
hereto as Exhibit C (a "Notice of Exchange") delivered to TriNet, Attn: Chief
Financial Officer with a copy to TriNet's General Counsel, and ▇▇▇▇▇▇▇, Procter
& ▇▇▇▇ LLP, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., by the applicable Qualifying Party
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when exercising its Exchange Right (the "Tendering Party").
B. Notwithstanding the provisions of Section 8.5.A hereof, upon an
exercise by a Tendering Party of its Exchange Right, the General Partner may, in
its sole and absolute discretion, elect to acquire some or all of the Tendered
Units from the Tendering Party in exchange for REIT Shares (the percentage
elected to be acquired for REIT Shares is referred to as the "Applicable
Percentage"). In the event the General Partner elects this option, (i) the
General Partner shall send notice of such election (the "General Partner
Election") to the Tendering Party at the address listed on the Notice of
Exchange not later than fifteen (15) days following the applicable Specified
Exchange Date and (ii) on or before the applicable Issuance Date, TriNet shall
cause its transfer agent to issue in exchange for the Applicable Percentage of
the Tendered Units (plus any distributions pursuant to Section 5.1 which are
accrued but unpaid) REIT Shares (the "Exchange Shares") in a number equal to (i)
the product of the REIT Shares Amount and the Applicable Percentage plus (ii)
the aggregate amount of any distributions owed but unpaid to the Qualifying
Party pursuant to Section 5.1 hereof with respect to the Tendered Units on the
applicable Issuance Date, divided by the Value of one REIT Share; provided,
however, that in lieu of any fractional REIT Share resulting from such
calculation, the Partnership may pay the Tendering Party cash equal to the Cash
Amount attributable to the fractional REIT Share if the General Partner causes
to be contributed to the Partnership the Cash Amount attributable to such
fractional REIT Share. Such Exchange shall be treated as a sale of such Tendered
Units to the General Partner for federal income tax purposes and such Exchange
shall be deemed to have the following consequences hereunder: such Exchange, to
the extent it does not represent distributions required to be paid pursuant to
Section 5.1(B) which are accrued but unpaid, shall be treated as a distribution
to such Limited Partner which reduces such Limited Partner's Unrecovered Capital
Amount as of the date of the Exchange by the amount equal to the Unrecovered
Capital Amount allocated to the Applicable Percentage of the Tendered Units, and
the General Partner's Unrecovered Capital Amount as of the date of Exchange
shall be increased by the Unrecovered Capital Amount allocable to the Applicable
Percentage of the Tendered Units for which Exchange Shares are issued. To the
extent that cash is used in lieu of fractional REIT Shares, the consequences
hereunder shall be identical to those under Section 8.5.A. In determining
whether to elect to exchange for REIT Shares or in the event that the Notice of
Exchange indicates to the General Partner, in its sole and absolute discretion,
the need to review additional documentation from such Tendering Party, the
General Partner may require that the Tendering Party submit to the General
Partner, in addition to the Notice of Exchange, (i) such information,
certifications or affidavits as the General Partner may reasonably require in
connection with the application of the Ownership Limit or the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act, (ii) such other written representations, investment letters, legal opinions
or other instruments necessary, in the General Partner's opinion, to effect
compliance with the Securities Act or any other federal or state securities law
or to determine the accuracy of any representation or warranty set forth in a
Notice of Exchange and (iii) a Prospective Subscriber Questionnaire in the form
of Exhibit D hereto. If the General Partner so determines that it shall require
such additional documents, affidavits, instruments and other information
referred to in the immediately preceding sentence,
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the General Partner shall have the right to delay the Issuance Date with respect
to such Tendered Units for such time following receipt of such requested
additional documents, affidavits, instruments and other information as the
General Partner reasonably needs to determine (A) whether the Exchange complies
with the Ownership Limit and all applicable state and federal securities laws;
(B) whether the Exchange would violate, or could cause a filing under, the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act or any other federal antitrust statute; or (C) whether the
representations and warranties made by the Tendering Party pursuant to the
Notice of Exchange and the Prospective Subscriber Questionnaire delivered
therewith are true and correct as of the date of the applicable Specified
Exchange Date. If the General Partner has elected to cause TriNet to issue
Exchange Shares pursuant to the terms of this Section above, but TriNet makes a
determination that TriNet cannot do so for legal or other reasons, the General
Partner shall so notify the applicable Tendering Party and its obligations under
this Agreement in connection with the applicable Notice of Exchange delivered by
such Tendering Party shall cease. Exchange Shares delivered under this Article
shall be delivered by TriNet as duly authorized, validly issued, fully paid and
nonassessable REIT Shares, free of any pledge, lien, encumbrance or restriction,
other than the Ownership Limit and other restrictions provided in the Charter
and the bylaws of the General Partner or TriNet, the terms of any pledge
agreements entered into by the recipient of the Exchange Shares, and
restrictions on transfer consistent with the Securities Act and applicable state
and federal securities laws. REIT Shares issued pursuant to this Section 8.5.B
may contain such legends regarding restrictions on transfer under the Securities
Act and applicable state and federal securities laws as TriNet in good faith
determines to be necessary or advisable in order to ensure compliance with such
laws. Upon delivery by the General Partner of the REIT Shares to the Tendering
Party, the Tendering Party shall automatically be entitled to the rights and be
subject to the obligations and conditions under any applicable Registration
Rights Agreement between TriNet and such Tendering Party with respect to such
REIT Shares (a "Registration Rights Agreement").
C. If a Partner Record Date with respect to any Tendered Unit precedes
the date on which a Tendering Party receives cash or REIT Shares pursuant to
this Article 8 (the "Delivery Date"), such Tendering Party shall be entitled to
distributions pursuant to this Agreement payable to holders of Limited Partner
Interests on such Partner Record Date with respect to the Tendered Units. If the
Partner Record Date with respect to any Tendered Unit is on or after the
applicable Delivery Date, the Tendering Partner shall not be entitled to
distributions pursuant to this Agreement payable to holders of Limited Partner
Interests on such Partner Record Date with respect to the Tendered Units
exchanged but, if the Tendering Party receives REIT Shares in connection with
such exchange, it shall be entitled to any dividends payable with respect to any
record holder of REIT Shares as of a record date for holders of REIT Shares that
is on or after such Delivery Date.
D. Notwithstanding anything herein to the contrary, with respect to any
Exchange of Tendered Units pursuant to this Article 8:
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(1) Subject to the Ownership Limit, no Tendering Party may effect
an Exchange for less than Fifteen Thousand (15,000) Units or, if such
Tendering Party holds less than Fifteen Thousand (15,000) Units, all of
the Units held by such Tendering Party.
(2) The consummation of any Exchange of Tendered Units shall be
subject to all required filings, if any, being made and the expiration or
termination of the applicable waiting period, if any, under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act as amended.
(3) Except as provided in Section 8.5 hereof, the Tendering Party
shall continue to own (subject, in the case of a Substituted Limited
Partner, to the provisions of Section 11.5 hereof) all Limited Partner
Interests subject to any Exchange, and shall be treated as a Limited
Partner, with respect to such Limited Partner Interests or the economic
interest therein for all purposes of this Agreement, until the Delivery
Date on which such Limited Partner Interests are either exchanged for REIT
Shares, pursuant to Section 8.5.B hereof, or redeemed for cash pursuant to
Section 8.5.A hereof. Upon the Delivery Date, all rights and obligations
of the Tendering Party with respect to the Tendered Units Exchanged
hereunder shall cease and, to the extent such Tendering Party elects to
Exchange all Limited Partner Interests held by such Tendering Party, the
Tendering Party shall no longer be a Limited Partner, as the case may be,
with respect to this Agreement. Except as provided in Section 8.5.B
hereof, until an exchange of the Tendered Units by the General Partner
pursuant to Section 8.5.B hereof and the receipt by a Qualifying Party of
REIT Shares, the Tendering Party shall have no rights as a shareholder of
TriNet with respect to the REIT Shares issuable in connection with such
Exchange.
E. In connection with an exercise of an Exchange Right pursuant to this
Article 8, each Tendering Party shall represent or covenant the following to the
General Partner and TriNet, which representations and covenants shall be
included within the Notice of Exchange:
(1) A written affidavit disclosing to the best of its knowledge
the actual and constructive ownership, as determined for purposes of Code
Sections 856(a)(6), 856(h), 856(d)(2)(B) and 856(d)(5), of REIT Shares by
(i) such Tendering Party and (ii) any Related Party;
(2) A written representation that neither the Tendering Party nor
to the best of its knowledge any Related Party has any intention to
acquire any additional REIT Shares prior to delivery of cash or Exchange
Shares for the Tendered Units pursuant to Section 8.5; and
(3) A covenant, as a condition to the closing of an Exchange, that
until the delivery of the relevant Exchange Shares or cash the actual and
constructive ownership of REIT Shares by the Tendering Party and any
Related Party will remain unchanged from
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that disclosed above.
F. Notwithstanding any other provisions of this Agreement, a Qualifying
Party shall not be entitled to effect an Exchange, whether in REIT Shares or for
cash, to the extent the ownership or right to acquire the Exchange Shares that
could be issued to such Qualifying Party would cause such Qualifying Party or
any of its Related Parties to violate the Ownership Limit. To the extent any
attempted Exchange would be in violation of this Section 8.5.F, it shall be null
and void ab initio and such Qualifying Party shall not acquire any rights or
economics interests in REIT Shares otherwise issuable upon such Exchange.
Section 8.6 The General Partner's Right to Call Limited Partner Interests
A. Notwithstanding any other provision of this Agreement, on and after
the Call Date for any Limited Partner, the General Partner shall have the right,
but not the obligation, from time to time and at any time to exchange or redeem
any or all of the Units issued to such Limited Partner. Each exchange or
redemption by the General Partner pursuant to this Section 8.6 shall occur by
treating each applicable Limited Partner as a Tendering Party who has delivered
a Notice of Exchange pursuant to Section 8.5.A hereof for the amount of Units to
be exchanged or redeemed pursuant to notice to such applicable Limited Partner
that the General Partner has elected to exercise its rights under this Section
8.6. For purposes of this Section 8.6, any Limited Partner shall be treated as a
Qualifying Party that is a Tendering Party.
B. In the event that the General Partner exercises its rights pursuant
to Section 8.6.A, each applicable Limited Partner shall execute all documents
referred to in Section 8.5 hereof or requested in writing by the General
Partner.
C. In the event that the General Partner exercises its rights pursuant
to Section 8.6.A hereof but such an exchange or redemption cannot be effected or
a dispute arises with respect to such rights, (i) the General Partner shall have
a right to specific performance and (ii) the General Partner shall be entitled
to withhold distributions under Article 5 of this Agreement with respect to the
applicable Limited Partner.
Section 8.7 Other Exchanges
Notwithstanding the provisions of Sections 8.5 or 8.6 hereof, nothing in
this Agreement shall preclude the exchange, whether for REIT Shares or cash, of
Limited Partner Interests by any Qualifying Party upon such terms and conditions
as may be negotiated between the Qualifying Party holding such Limited Partner
Interests, on the one hand, and the General Partner, on the other hand, in their
sole and absolute discretion. Such an exchange may include the payment of cash
by the General Partner to the Qualifying Party, in a lump sum or in
installments, or the distribution in kind of assets of the General Partner to
such Qualifying Party (which assets may be encumbered), including assets to be
designated by the Qualifying Party and
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acquired (with or without debt financing) by the General Partner. In effecting
any such exchange by negotiated agreement, neither the General Partner nor the
Qualifying Party, shall incur any liability to any other Limited Partner or have
any duty to offer the same or similar terms for exchange of any other Qualifying
Party.
Section 8.8 Obligation of Limited Partners with Respect to Rights of First
Refusal.
A. Reference is made to the rights of certain tenants to acquire
interests in certain of the Contributed Properties (collectively, the
"Encumbered Properties"), as more particularly described in Exhibit B hereto
(collectively, the "Rights of First Refusal"). In the event that prior to the
tenth anniversary of the date on which an Encumbered Property was contributed to
the Partnership (the "Contribution Date") either (i) a Right of First Refusal
with respect to such Encumbered Property is exercised (an "Exercise Event"), or
(ii) upon the sale, exchange or other disposition of such Encumbered Property or
the exercise by the Liquidator of any rights under Article 13 with respect to
such Encumbered Property, the Right of First Refusal with respect to such
Encumbered Property has not been terminated forever without exercise thereof,
whether by expiration, waiver or agreement of the applicable parties (a
"Disposition Event"), the Limited Partners who held an interest in such
Encumbered Property prior to the Contribution Date shall immediately surrender
and deliver to the General Partner a number of Units (the "Returned Units")
equal to the quotient of (a) the Diminished Value Amount (as defined below),
divided, by (b) the value of one REIT Share as of the Contribution Date
calculated in accordance with Section 1.3 of the Contribution Agreement covering
such Encumbered Property (the "Initial Units Value"). The portion of the
aggregate number of Returned Units relating to an Encumbered Property that each
such Limited Partner shall be obligated to deliver to the General Partner shall
be in the same ratio as the value of all Units and other consideration received
by such Limited Partner with respect to such Encumbered Property bears to the
value of all of Units and other consideration received by all Limited Partners
with respect to such Encumbered Property. All Returned Units surrendered and
delivered to the General Partner pursuant to this Section 8.8 shall immediately
convert into a General Partner Interest and be distributed to the General
Partner.
B. The Diminished Value Amount for each Encumbered Property will equal
the positive difference, if any, between (i) the Agreed Value with respect to
such Encumbered Property as of the Contribution Date, minus (ii) the present
value (calculated for the period from the contribution of such Encumbered
Property to the Partnership through the date of the Exercise Event or
Disposition Event) of the sum of the net sales proceeds (after deducting,
without limitation, all mortgage prepayment penalties (but without deducting the
principal amount of any repaid mortgage indebtedness) and other transaction
costs) received by the Partnership for such Encumbered Property (or, if the
Disposition Event is an exercise of rights under Article 13, the value assigned
to such Encumbered Party for purposes of Article 13), plus all net cash flow
received by the Partnership from the lease of the Encumbered Property (after
deducting, without limitation, any property management fees paid for the
management of, the cost of any capital
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improvements made to, and interest expense on or principal amortization of any
indebtedness secured by, the Encumbered Property). For purposes of calculating
the present value of the net sales price and cash flow, the following discount
rates shall apply during the periods indicated: (a) 10.5% if the date of the
Exercise Event or Disposition Event (the "Event Date") is prior to the first
anniversary of the Contribution Date; (b) 11.0% if the Event Date is on or after
the first anniversary, but prior to the second anniversary, of the Contribution
Date; (c) 11.5% if the Event Date is on or after the second anniversary, but
prior to the third anniversary, of the Contribution Date, and; (d) 12.0% if the
Event Date is on or after the fourth anniversary of the Contribution Date.
Notwithstanding the foregoing, the aggregate Diminished Value Amount for all
Encumbered Properties (the "Maximum Diminished Value Amount") shall not exceed
the sum of $1,000,000 plus up to $750,000 of the aggregate amount by which the
total value of all Units held by the Initial Limited Partners have appreciated
in value since the Contribution Date. In addition, immediately following the
Event Date with respect to an Encumbered Property, the Maximum Diminished Value
Amount for the remaining Encumbered Properties shall be reduced by an amount
equal to the greater of (i) $250,000 and (ii) the actual Diminished Value Amount
of such Encumbered Property. The appreciation in value of the Limited Partners'
Units shall be equal to the number of Units for which the appreciation in value
is calculated multiplied by the difference between (x) the closing price of one
REIT Share (or such other number of whole or partial REIT Shares as may be
applicable after giving effect to any adjustments to the Adjustment Factor) on
the NYSE as of the Event Date or the date on which the General Partner receives
a request for a transfer of Units, as the case may be, unless such day is not a
trading day on the NYSE in which case the closing price on the immediately
preceding trading day shall apply, or, for any Units that are redeemed prior to
the Event Date, the Cash Amount applicable to such Units, minus (y) the Initial
Units Value.
C. As security for their obligations hereunder, each Limited Partner
with obligations under this Section 8.8 shall pledge and deliver to the
Partnership the number of Units set forth for such Limited Partner on Exhibit B.
In the event that any Units held by the Limited Partners are redeemed or
transferred (by a sale or otherwise) prior to the tenth anniversary of the
Contribution Date, at the time of such redemption or transfer the appreciation
in value of such Units shall be calculated and additional Units or, at the sole
and absolute discretion of the General Partner, Exchange Shares shall be pledged
to the General Partner as security for the selling or transferring Limited
Partner's obligations hereunder. The number of such pledged additional Units or
Exchange Shares shall be equal to the aggregate appreciation amount for the
redeemed or transferred Units divided by the Initial Units Value; provided,
however, that the aggregate value (based on the Initial Units Value) of the
additional pledged Units and Exchange Shares for each Limited Partner shall not
exceed such Limited Partner's pro rata share of $750,000 based on the ratio of
the value of all Units and other consideration received by such Limited Partner
with respect to the Encumbered Properties to the value of all Units and other
consideration received by all Limited Partners with respect to the Encumbered
Properties. Without limiting any other term of this Agreement, in the event of a
failure by a Limited Partner to perform any of its material obligations under
this Section 8.8, the General Partner shall be
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entitled to cancel the Units or, at the sole and absolute discretion of the
General Partner, Exchange Shares in lieu of Units that are required to be
surrendered, including, without limitation, any Units or Exchange Shares held as
security for the Limited Partners' obligations hereunder, and thereafter such
Units or Exchange Shares will be deemed to have been transferred to the General
Partner and, in the case of canceled Units, converted into a General Partner
Interest, and will not entitle the Limited Partners to receive any distributions
(including, without limitation, any accrued distributions) or other rights with
respect to the canceled Units or Exchange Shares.
D. In the event Units are forfeited by Limited Partners, converted into
a General Partner Interest and distributed to the General Partner under this
Section 8.8, such forfeiture, conversion and distribution (1) shall result in a
reduction in (a) the Agreed Value of the Contributed Property with respect to
which such Units were received by such Limited Partners, and (b) the Capital
Contributions and the Unrecovered Capital Amounts of such Limited Partners by an
aggregate amount equal to the value of the Units forfeited and converted,
calculated on the basis of the Initial Units Value, and (2) shall increase the
Unrecovered Capital Amount of the General Partner by an aggregate amount equal
to the value of the Units forfeited and converted, calculated on the basis of
the Initial Units Value. All adjustments to the Agreed Value of Contributed
Properties, Capital Contributions and Unrecovered Capital Amounts of Limited
Partners and the Unrecovered Capital Amount of the General Partner pursuant to
this Section 8.8 shall be made as reasonably determined by the General Partner.
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting
The General Partner shall keep or cause to be kept at the principal office
of the Partnership those records and documents required to be maintained by the
Act and other books and records deemed by the General Partner to be appropriate
with respect to the Partnership's business, including, without limitation, all
books and records necessary to provide to the Limited Partners any information,
lists and copies of documents required to be provided pursuant to Section 9.3
hereof. Any records maintained by or on behalf of the Partnership in the regular
course of its business may be kept on, or be in the form of, magnetic tape,
photographs, micrographics or any other information storage device. The books of
the Partnership shall be maintained, for financial and tax reporting purposes,
on an accrual basis in accordance with generally accepted accounting principles,
or such other basis as the General Partner determines to be necessary or
appropriate.
Section 9.2 Fiscal Year
The fiscal year of the Partnership shall be the calendar year, unless
otherwise elected by
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the General partner in its sole and absolute discretion.
Section 9.3 Reports
A. As soon as practicable, but in no event later than one hundred
twenty (120) days after the close of each Partnership fiscal year, the General
Partner shall cause to be mailed to each Limited Partner as of the close of the
Partnership fiscal year, an annual report containing unaudited financial
statements of the Partnership, for such Partnership fiscal year, presented in
accordance with generally accepted accounting principles.
B. As soon as practicable, but in no event later than sixty (60) days
after the close of each of the first three quarters of the Partnership's fiscal
year, the General Partner shall cause to be mailed to each Limited Partner as of
the last day of the quarter, a report containing unaudited financial statements
of the Partnership, and such other information as may be required by applicable
law or regulation, or as the General Partner determines to be appropriate.
C. The General Partner may keep confidential from the Limited Partners,
for such period of time as the General Partner determines in its sole and
absolute discretion to be reasonable, any information that (i) the General
Partner reasonably believes to be in the nature of trade secrets or other
information, the disclosure of which the General Partner in good faith believes
is not in the best interests of the Partnership or could damage the Partnership
or its business or (ii) the Partnership is required by law or by an agreement
with an unaffiliated third party to keep confidential.
ARTICLE 10
TAX MATTERS
Section 10.1 Preparation of Tax Returns
The General Partner shall arrange for the preparation and timely
(including valid extensions) filing of all returns of Partnership income, gains,
deductions, losses and other items required of the Partnership for federal and
state income tax purposes and shall use all reasonable efforts to furnish,
within ninety (90) days of the close of each taxable year, the tax information
required to be furnished to the Limited Partners for federal income tax
reporting purposes.
Section 10.2 Tax Elections
Except as otherwise provided herein, the General Partner shall, in its
sole and absolute discretion, determine whether to make any available election
pursuant to the Code. The General Partner shall have the right to seek to revoke
any tax election it makes (including, without limitation, any election under
Section 754 of the Code) upon the General Partner's
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determination, in its sole and absolute discretion, that such revocation is in
the best interests of the Partners.
Section 10.3 Tax Matters Partner
A. The General Partner shall be the "tax matters partner" of the
Partnership for federal income tax purposes. Pursuant to Section 6230(e) of the
Code, upon receipt of notice from the IRS of the beginning of an administrative
proceeding with respect to the Partnership, the tax matters partner shall
furnish the IRS with the name, address, taxpayer identification number, and
profit interest of each of the Limited Partners; provided, however, that such
information is provided to the Partnership by the Limited Partners.
B. Except to the extent any action described below conflicts with the
General Partner's prohibition on causing a tax termination of the Partnership as
described in Section 7.3.B hereof, the tax matters partner is authorized, but
not required:
(1) to enter into any settlement with the IRS with respect
to any administrative or judicial proceedings for the
adjustment of Partnership items required to be taken
into account by a Partner for income tax purposes (such
administrative proceedings being referred to as a "tax
audit" and such judicial proceedings being referred to
as "judicial review"), and in the settlement agreement
the tax matters partner may expressly state that such
agreement shall bind all Partners, except that such
settlement agreement shall not bind any Partner (i) who
(within the time prescribed pursuant to the Code and
Regulations) files a statement with the IRS providing
that the tax matters partner shall not have the
authority to enter into a settlement agreement on behalf
of such Partner; or (ii) who is a "notice partner" (as
defined in Section 6231(a)(8) of the Code) or a member
of a "notice group" (as defined in Section 6223(b)(2) of
the Code);
(2) in the event that a notice of a final administrative
adjustment at the Partnership level of any item required
to be taken into account by a Partner for tax purposes
(a "final adjustment") is mailed to the tax matters
partner, to seek judicial review of such final
adjustment, including the filing of a petition for
readjustment with the Tax Court or the filing of a
complaint for refund with the United States Claims Court
or the District Court of the United States for the
district in which the Partnership's principal place of
business is located;
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(3) to intervene in any action brought by any other Partner
for judicial review of a final adjustment;
(4) to file a request for an administrative adjustment with
the IRS and, if any part of such request is not allowed
by the IRS, to file an appropriate pleading (petition or
complaint) for judicial review with respect to such
request;
(5) to enter into an agreement with the IRS to extend the
period for assessing any tax which is attributable to
any item required to be taken account of by a Partner
for tax purposes, or an item affected by such item; and
(6) to take any other action on behalf of the Partners or
the Partnership in connection with any tax audit or
judicial review proceeding to the extent permitted by
applicable law or regulations.
The taking of any action and the incurring of any expense by the tax
matters partner in connection with any such proceeding, except to the extent
required by law, is a matter in the sole and absolute discretion of the tax
matters partner and the provisions relating to indemnification of the General
Partner set forth in Section 7.6 of this Agreement shall be fully applicable to
the tax matters partner in its capacity as such.
C. The tax matters partner shall receive no compensation for its
services. All third party costs and expenses incurred by the tax matters partner
in performing its duties as such (including legal and accounting fees and
expenses) shall be borne by the Partnership. Nothing herein shall be construed
to restrict the Partnership from engaging an accounting firm to assist the tax
matters partner in discharging its duties hereunder, so long as the compensation
paid by the Partnership for such services is reasonable.
Section 10.4 Organizational Expenses
The Partnership shall elect to deduct expenses, if any, incurred by it in
organizing the Partnership ratably over a sixty (60) month period as provided in
Section 709 of the Code.
Section 10.5 Withholding
Each Limited Partner hereby authorizes the Partnership to withhold from,
or pay on behalf of or with respect to, such Limited Partner any amount of
federal, state, local, or foreign taxes that the General Partner determines that
the Partnership is required to withhold or pay with respect to any amount
distributable or allocable to such Limited Partner pursuant to this Agreement,
including, without limitation, any taxes required to be withheld or paid by the
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Partnership pursuant to Sections 1441, 1442, 1445, or 1446 of the Code. Any
amount paid on behalf of or with respect to a Limited Partner shall constitute a
loan by the Partnership to such Limited Partner, which loan shall be repaid by
such Limited Partner within fifteen (15) days after notice from the General
Partner that such payment must be made unless (i) the Partnership withholds such
payment from a distribution which would otherwise be made to the Limited
Partner; or (ii) the General Partner determines, in its sole and absolute
discretion, that such payment may be satisfied out of the available funds of the
Partnership which would, but for such payment, be distributed to the Limited
Partner. Any amounts withheld pursuant to the foregoing clauses (i) or (ii)
shall be treated as having been distributed to such Limited Partner. Each
Limited Partner hereby unconditionally and irrevocably grants to the Partnership
a security interest in such Limited Partner's Partnership Interest to secure
such Limited Partner's obligation to pay to the Partnership any amounts required
to be paid pursuant to this Section 10.5. In the event that a Limited Partner
fails to pay any amounts owed to the Partnership pursuant to this Section 10.5
when due, the General Partner may, in its sole and absolute discretion, elect to
make the payment to the Partnership on behalf of such defaulting Limited
Partner, and in such event shall be deemed to have loaned such amount plus the
amount of its attorneys' fees incurred in connection with making and enforcing
the terms of such loan, to such defaulting Limited Partner and shall succeed to
all rights and remedies of the Partnership as against such defaulting Limited
Partner. Without limitation, in such event the General Partner shall have the
right to receive distributions that would otherwise be distributable to such
defaulting Limited Partner until such time as such loan, together with all
interest thereon, has been paid in full, and any such distributions so received
by the General Partner shall be treated as having been distributed to the
defaulting Limited Partner and immediately paid by the defaulting Limited
Partner to the General Partner in repayment of such loan. Any amounts payable by
a Limited Partner hereunder shall bear interest at the lesser of (A) the base
rate on corporate loans at large United States money center commercial banks, as
published from time to time in the Wall Street Journal, plus four (4) percentage
points, or (B) the maximum lawful rate of interest on such obligation, such
interest to accrue from the date such amount is due until such amount is paid in
full. Each Limited Partner shall take such actions as the Partnership or the
General Partner shall request in order to perfect or enforce the security
interest created hereunder.
ARTICLE 11
TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer
No Partnership Interest shall be Transferred, in whole or in part, except
in accordance with the terms and conditions of this Agreement. Any Transfer or
purported Transfer of a Partnership Interest not made in accordance with this
Article 11 shall be null and void.
Section 11.2 Transfer of the General Partner Interest
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A. The General Partner may not Transfer any of its General Partner
Interest or withdraw as General Partner, except as provided in this Section 11.2
unless the Limited Partners holding a majority by Percentage Interest of the
Limited Partner Interests consent to such transfer or withdrawal; provided,
however, that without the consent of any Limited Partner, the General Partner
may Transfer all or any portion of its General Partner Interest to one or more
wholly-owned subsidiaries of TriNet.
B. Notwithstanding anything to the contrary contained in this
Agreement, the General Partner and/or TriNet may engage in any merger,
consolidation or other combination with or into another Person regardless of
whether such other person is a REIT, or sell all or substantially all of their
assets, or effect any reclassification or recapitalization or change in the
terms of outstanding REIT Shares (each, a "Transaction"), all without the prior
approval of any Limited Partner, provided that following any such Transaction
any Qualifying Party continues to be entitled to exchange all or any portion of
the Limited Partner Interests held by such Qualifying Party for REIT Shares or
other similar securities, taking into account following such Transaction any
adjustments to the Adjustment Factor as a result of such Transaction, such other
similar securities are publicly traded on a nationally recognized securities
exchange or quotation system and such Qualifying Parties continue to be entitled
to the benefits of any applicable Registration Rights Agreement or other rights
substantially the same as those provided to them in any applicable Registration
Rights Agreement.
Section 11.3 Limited Partners' Restrictions on Transfer
No Limited Partner shall have the right to Transfer all or any portion of
its Partnership Interest, including, without limitation, all or any portion of
the economic rights appurtenant thereto, without the consent of the General
Partner, which consent may be withheld in its sole and absolute discretion.
Section 11.4 Substituted Limited Partners
A. No Limited Partner shall have the right to substitute a transferee
as a Limited Partner in his or its place. The General Partner shall, however,
have the right to consent to the admission of a proposed transferee of all or
any portion of the Partnership Interest of a Limited Partner pursuant to this
Section 11.4 as a "Substituted Limited Partner," which consent may be given or
withheld by the General Partner in its sole and absolute discretion. Admission
as a Substitute Limited Partner shall not be effective until such transferee
executes and delivers to the General Partner the following investment documents
(collectively, the "Investment Documents"): (i) a signed copy of this Limited
Partnership Agreement (and the Transferee agrees to be bound to all rights and
responsibilities of a Limited Partner hereof); (ii) a Prospective Subscriber
Questionnaire substantially in the form of the Prospective Subscriber
Questionnaire attached hereto as Exhibit D, and (iii) a certificate representing
and warranting to
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the General Partner the investment representations and warranties as set forth
in Exhibit E to this Agreement with respect to such transferee. The General
Partner's failure or refusal under this Section 11.4.A to permit a transferee of
any such Limited Partner Interests to become a Substituted Limited Partner shall
not give rise to any cause of action against the Partnership or any Partner.
B. A transferee who has been admitted as a Substituted Limited Partner
in accordance with this Article 11 shall have all the rights and powers and be
subject to all the restrictions and liabilities of a Limited Partner under this
Agreement.
C. Upon the admission of a Substituted Limited Partner, the General
Partner shall amend Exhibit A and Exhibit B to reflect the admission of such
Substituted Limited Partner and the elimination or adjustment, if necessary, of
the interest of the predecessor of such Substituted Limited Partner.
Section 11.5 General Provisions
A. No Partner may withdraw from the Partnership other than as a result
of a permitted transfer of all of such Partner's Partnership Interest in
accordance with this Article 11.
B. Any Limited Partner who shall transfer all of its Partnership
Interest in a transfer permitted pursuant to this Article 11 shall cease to be a
Limited Partner upon the admission of all transferees of such Partnership
Interest as Substitute Limited Partners.
C. If all or any portion of a Partnership Interest is transferred or
assigned during any quarterly segment of the Partnership's fiscal year in
compliance with the provisions of this Article 11 on any day other than the
first day of a Partnership fiscal year, then Profits, Losses, each item of
income, gain, expense or deduction and all other items attributable to such
Partnership Interest or economic interest therein for such Partnership fiscal
year shall be divided and allocated between the transferor and the transferee by
taking into account their varying interests during the Partnership fiscal year
in accordance with Section 706(d) of the Code, using the interim closing of the
books method or such other method permitted by the Code as the General Partner
considers appropriate. Solely for purposes of making such allocations, each of
such items for the calendar month in which the transfer or assignment occurs
shall be allocated to the transferee Partner; provided, however, that the
General Partner may adopt such other conventions relating to allocations in
connection with transfers, assignments or exchanges as it determines are
necessary or appropriate. All distributions of Available Cash attributable to
such Partnership Interest before the date of such transfer, assignment, or
redemption shall be made to the transferor, and in the case of a transfer or
assignment other than a redemption, all distributions of Available Cash
thereafter attributable to such Partnership Interest therein shall be made to
the transferee.
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ARTICLE 12
ADMISSION OF PARTNERS
Section 12.1 Admission of Successor General Partner
A successor to all or any portion of the General Partner's Partnership
Interest pursuant to Section 11.2 hereof shall be admitted to the Partnership as
a General Partner, effective upon such transfer. Any such transferee shall carry
on the business of the Partnership without dissolution. The successor General
Partner shall execute and deliver to the Partnership and the Limited Partners a
signed copy of this Limited Partnership Agreement and an agreement to be bound
by all rights and responsibilities of the General Partner hereof. In the case of
such admission on any day other than the first day of a Partnership fiscal year,
all items attributable to the General Partner's Partnership Interest for such
Partnership fiscal year shall be allocated between the transferring General
Partner and such successor as provided in Section 11.5.C hereof.
Section 12.2 Amendment of Agreement and Certificate of Limited Partnership
For the admission to the Partnership of any Partner, the General Partner
shall take all steps necessary and appropriate under the Act to amend the
records of the Partnership and, if necessary, to prepare as soon as practical an
amendment of this Agreement (including an amendment of Exhibit A and Exhibit B)
and, if required by law, shall prepare and file an amendment to the Certificate
and may for this purpose exercise the power of attorney granted pursuant to
Section 2.4 hereof.
ARTICLE 13
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 Dissolution
The Partnership shall not be dissolved by the admission of Substituted
Limited Partners or by the admission of a successor General Partner in
accordance with the terms of this Agreement. Upon the withdrawal of the General
Partner, any successor General Partner shall continue the business of the
Partnership. The Partnership shall dissolve, and its affairs shall be wound up,
only upon the first to occur of any of the following ("Liquidating Events"):
A. the expiration of its term as provided in Section 2.5 hereof;
B. an event of withdrawal of the General Partner, as defined in the Act
(other than an event of bankruptcy), unless, within ninety (90) days after such
event of withdrawal a majority by Percentage Interest of the Limited Partners
agree in writing to continue the business of the
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Partnership and to the appointment, effective as of the date of withdrawal, of a
successor General Partner;
C. subject to making the payments, if any, required by the terms of
Section 7.3.C, an election to dissolve the Partnership made by the General
Partner, which shall not require the consent of any Limited Partner;
D. entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act; or
E. subject to making the payments, if any, required by the terms of
Section 7.3.C, the sale or distribution of all or substantially all of the
assets and properties of the Partnership, in the case of a sale as long as the
proceeds of such sale are distributed to the Partners in accordance with the
terms of this Agreement.
Section 13.2 Winding Up
A. Upon the occurrence of a Liquidating Event, the Partnership shall
continue solely for the purposes of winding up its affairs in an orderly manner,
liquidating its assets, and satisfying the claims of its creditors and Partners.
No Partner shall take any action that is inconsistent with, or not necessary to
or appropriate for, the winding up of the Partnership's business and affairs.
The General Partner or, in the event there is no remaining General Partner, any
Person elected by a majority by Percentage Interest of the Limited Partners (the
General Partner or such other Person being referred to herein as the
"Liquidator") shall be responsible for overseeing the winding up and dissolution
of the Partnership and shall take full account of the Partnership's liabilities
and property. The Partnership property shall be liquidated as promptly as is
consistent with obtaining the fair value thereof, and the proceeds therefrom
shall be applied and distributed in the following order:
(1) First, to the payment and discharge of all of the
Partnership's debts and liabilities to creditors other
than the Partners;
(2) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to the General
Partner;
(3) Third, to the payment and discharge of all of the
Partnership's debts and liabilities to the other
Partners; and
(4) The balance, if any, to the General Partner and Limited
Partners in accordance with Section 5.1.B.
The General Partner shall not receive any additional compensation for any
services
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performed pursuant to this Article 13.
B. Notwithstanding the provisions of Section 13.2.A hereof which
require liquidation of the assets of the Partnership, but subject to the order
of priorities set forth therein, (i) if prior to or upon dissolution of the
Partnership the Liquidator determines that an immediate sale of part or all of
the Partnership's assets would be impractical or would cause undue loss to the
Partners, the Liquidator may, in its sole and absolute discretion, defer for a
reasonable time the liquidation of any assets except those necessary to satisfy
liabilities of the Partnership (including to Partners as creditors) or (ii) in
lieu of liquidating the assets of the Partnership and distributing the proceeds
thereof, the Liquidator may, in its sole and absolute discretion, elect to pay
in cash to each Limited Partner such amount as such Limited Partner would have
received pursuant to the terms of Section 13.2.A had the Partnership property
been liquidated for an amount equal to its fair market value as reasonably
determined by the Liquidator. Additionally, the Liquidator may distribute to the
Partners, in lieu of cash, as tenants in common and in accordance with the
provisions of Section 13.2.A hereof, undivided interests in such Partnership
assets as the Liquidator deems not suitable for liquidation. The Liquidator
shall determine the fair market value of any property distributed in kind using
such reasonable method of valuation as it may adopt.
C. In the discretion of the Liquidator, a pro rata portion of the
distributions that would otherwise be made to the General Partner and Limited
Partners pursuant to this Article 13 may be:
(1) distributed to a trust established for the benefit of
the General Partner and Limited Partners for the
purposes of liquidating Partnership assets, collecting
amounts owed to the Partnership, and paying any
contingent or unforeseen liabilities or obligations of
the Partnership or the General Partner arising out of or
in connection with the Partnership. The assets of any
such trust shall be distributed to the General Partner
and the Limited Partners from time to time, in the
reasonable discretion of the Liquidator, in the same
proportions as the amount distributed to such trust by
the Partnership would otherwise have been distributed to
the General Partner and Limited Partners pursuant to
this Agreement; or
(2) withheld or escrowed to provide a reasonable reserve for
Partnership liabilities (contingent or otherwise) and to
reflect the unrealized portion of any installment
obligations owed to the Partnership, provided that such
withheld or escrowed amounts shall be distributed to the
General Partner and Limited Partners in the manner and
order of priority set forth in Section 13.2.A as soon as
practicable.
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Section 13.3 Rights of Partners
Each Partner shall look solely to the assets of the Partnership for the
return of its Capital Contributions and shall have no right or power to demand
or receive property other than cash from the Partnership. Except as otherwise
provided in this Agreement, as it may be amended, no Partner shall have priority
over any other Partner as to the return of its Capital Contributions,
distributions or allocations.
Section 13.4 Notice of Dissolution
In the event a Liquidating Event occurs or an event occurs that would, but
for the provisions of an election or objection by one or more Partners pursuant
to Section 13.1, result in a dissolution of the Partnership, the General Partner
shall, within thirty (30) days thereafter, provide written notice thereof to
each of the Partners.
Section 13.5 Termination of Partnership and Cancellation of Certificate of
Limited Partnership
Upon the completion of the liquidation of the Partnership's assets, as
provided in Section 13.2 hereof, the Partnership shall be terminated, a
certificate of cancellation shall be filed, and all qualifications of the
Partnership as a foreign limited partnership in jurisdictions other than the
State of Delaware shall be canceled and such other actions as may be necessary
to terminate the Partnership shall be taken.
Section 13.6 Reasonable Time for Winding-Up
A reasonable time shall be allowed for the orderly winding-up of the
business and affairs of the Partnership and the liquidation of its assets
pursuant to Section 13.2 hereof, in order to minimize any losses otherwise
attendant upon such winding-up, and the provisions of this Agreement shall
remain in effect during the period of liquidation.
Section 13.7 Waiver of Partition
Each Partner hereby waives any right to partition of the Partnership
property.
ARTICLE 14
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS
Section 14.1 Amendments
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A. Amendments to this Agreement may be proposed only by the General
Partner. The General Partner shall submit any such proposed amendment to this
Agreement to the Limited Partners. The General Partner shall seek the written
vote of the Limited Partners on the proposed amendment or shall call a meeting
to vote thereon and to transact any other business that it may deem appropriate.
For purposes of obtaining a written vote, the General Partner may require a
response within a reasonable specified time, but not less than fifteen (15)
days, and failure to respond in such time period shall constitute a vote which
is consistent with the General Partner's recommendation with respect to the
proposal. A proposed amendment shall be adopted and be effective as an amendment
hereto if it is approved by the General Partner and it receives the consent of
Limited Partners holding a majority in interest of the Percentage Interests of
the Limited Partners.
B. Notwithstanding the foregoing, amendments may be made to this
Agreement by the General Partner, without the consent of any Limited Partner, to
(i) add to the representations, duties or obligations of the General Partner or
surrender any right or power granted to the General Partner herein; (ii) cure
any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein or make any other provisions with
respect to matters or questions arising hereunder which will not be inconsistent
with any other provision hereof; (iii) reflect the admission, substitution,
termination or withdrawal of Partners in accordance with this Agreement and
amend any terms relating to returns, distributions and allocations to such
Partners, or any other terms whatsoever, agreed to by such Partners and the
General Partner in its sole and absolute discretion, or (iv) satisfy any
requirements, conditions or guidelines contained in any order, directive,
opinion, ruling or regulation of a federal or state agency or contained in
federal or state law. The General Partner shall reasonably promptly notify the
Limited Partners whenever it exercises its authority pursuant to this Section
14.1.B.
C. Within ten (10) days of the making of any proposal to amend this
Agreement, the General Partner shall give all Partners notice of such proposal
(along with the text of the proposed amendment and a statement of its purposes).
Section 14.2 Meetings of the Partners
A. Meetings of Partners may be called by the General Partner. The
General Partner shall give all Partners Notice of the purpose of such proposed
meeting not less than seven (7) days nor more than thirty (30) days prior to the
date of the meeting. Meetings shall be held at a reasonable time and place
selected by the General Partner. Whenever the vote or consent of Limited
Partners is permitted or required hereunder, such vote or consent shall be
requested by the General Partner and may be given by the Limited Partners in the
same manner as set forth for a vote with respect to an amendment to this
Agreement in Section 14.1.A.
B. Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth the
action to be taken is signed by the
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Partners owning the Percentage Interests required to vote in favor of such
action, which consent may be evidenced in one or more instruments. Consents need
not be solicited from any other Partner if the written consent of a sufficient
number of Partners has been obtained to take the action for which such
solicitation was required.
C. Each Limited Partner may authorize any Person or Persons, including
without limitation the General Partner, to act for him by proxy on all matters
on which a Limited Partner may participate. Every proxy (i) must be signed by
the Limited Partner or his attorney-in-fact, (ii) shall expire eleven (11)
months from the date thereof unless the proxy provides otherwise and (iii)
unless specifically stated otherwise, shall be revocable at the discretion of
the Limited Partner granting such proxy.
ARTICLE 15
GENERAL PROVISIONS
Section 15.1 Addresses and Notice
Any notice, demand, request or report required or permitted to be given or
made to a Partner under this Agreement shall be in writing and shall be deemed
given or made when delivered in person or two (2) days following deposit with a
nationally recognized overnight courier service that issues a receipt upon
delivery, such as Federal Express, at the address set forth in Exhibit A or such
other address of which the Partner shall notify the General Partner in writing.
Section 15.2 Titles and Captions
All article or section titles or captions in this Agreement are for
convenience only. They shall not be deemed part of this Agreement and in no way
define, limit, extend or describe the scope or intent of any provisions hereof.
Except as specifically provided otherwise, references to "Articles" and
"Sections" are to Articles and Sections of this Agreement.
Section 15.3 Pronouns and Plurals
Whenever the context may require, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns, pronouns and verbs shall include the plural and vice versa.
Section 15.4 Further Action
The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
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Section 15.5 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
Section 15.6 Creditors
Other than as expressly set forth herein with respect to the Indemnitees,
none of the provisions of this Agreement shall be for the benefit of, or shall
be enforceable by, any creditor of the Partnership.
Section 15.7 Waiver
No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute a waiver of
any such breach or any other covenant, duty, agreement or condition.
Section 15.8 Counterparts
This Agreement may be executed in counterparts, all of which together
shall constitute one agreement binding on all of the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Agreement immediately
upon affixing its signature hereto.
Section 15.9 Applicable Law
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware, without regard to the principles
of conflicts of law.
Section 15.10 Invalidity of Provisions
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
Section 15.11 Entire Agreement
This Agreement contains the entire understanding and agreement among the
Partners with respect to the subject matter hereof and supersedes any other
prior written or oral understandings or agreements among them with respect
thereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Limited Partnership as of the date first written above.
GENERAL PARTNER:
TRINET REALTY INVESTORS I, INC.
a Maryland corporation
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Vice President and Assistant Secretary
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LIMITED PARTNER
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
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LIMITED PARTNER
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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LIMITED PARTNER
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT A
Partners' Contributions and Percentage Interests
NAME AND ADDRESS OF PARTNER INITIAL NUMBER CASH CONTRIBUTED AGREED VALUE TOTAL PRIORITY
PERCENTAGE OF UNITS CONTRIBUTIONS PROPERTY OF CONTRIBUTED CONTRIBUTION* RETURN RATE
INTEREST PROPERTY
-----------------------------------------------------------------------------------------------------------------------------------
General Partner: 25.0%
TriNet Realty Investors I, Inc. 99.00% --- $17,733,147.55 --- --- $17,733,147.55
c/o TriNet Corporate Realty
Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Limited Partners: 6.50%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ .39% (1) --- $296,203 $296,203 $296,203
▇▇▇▇▇▇/▇▇▇▇▇ Company, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ .37% (1) --- $285,421 $285,421 $285,421
▇▇▇▇▇▇/▇▇▇▇▇ Company, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ .01% (1) --- $ 9,000 $ 9,000 $ 9,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ .23% (1) $173,930 $173,930 $173,930
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TOTAL LIMITED PARTNERS 1.00% (1) --- $764,554 $764,554 $764,554
------------
* This amount represents the Partner's initial Unreturned Capital Amount.
(1) Number of Units to be determined in accordance with Section 1.3 of the
Contribution Agreement.
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EXHIBIT B
Encumbered Properties, Pledged Units, Restricted Period
Expiration Date, Minimum Debt Amount and Call Date
(a) Encumbered Properties and Applicable Purchase Price:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇: $ 5,400,000
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇: $13,000,000
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇: $ 4,900,000
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇: $ 4,700,000
(b) Pledge of Units under Section 8.8:
▇▇. ▇▇▇▇▇▇: [Units valued at $__________, in accordance with the
provisions of Section 1.3 of the Contribution Agreement]
▇▇. ▇▇▇▇▇: [Units valued at $___________, in accordance with the
provisions of Section 1.3 of the Contribution Agreement]
▇▇. ▇▇▇▇▇▇▇▇▇▇: [Units valued at $173,930, in accordance with the
provisions of Section 1.3 of the Contribution Agreement]
(c) Adjustment Limitations:
None
(d) Restricted Period Expiration Date
December 31, 1999 for ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇.
December 31, 2002 for ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇,
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ and ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ and ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇.
February 20, 1998 for ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ and 60
Columbian, Braintree, MA.
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(e) Minimum Debt Amount:
For all Contributed Properties together, the difference between (i)
$13,953,000 and (ii) the sum of (x) regularly scheduled principal payments
on such indebtedness and (y) the aggregate amount of any reduction in the
negative capital accounts of Messrs. ▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇, other than
a reduction pursuant to regularly scheduled principal payments under
clause (x) above, and (z) the reduction in Partnership indebtedness
guaranteed by such Limited Partners pursuant to Bottom Dollar Guarantees.
(f) Call Date:
For each of Messrs. Keller, Davis, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ the earlier of
(i) December 31, 2002 or (ii) the date on which more than sixty-six
percent (66%) of the Units originally issued to such Limited Partner for
Contributed Properties other than the Contributed Property referred to as
the "Development Land" in the Contribution Agreement, dated as of the date
hereof, among the General Partner and the Initial Limited Partners have
previously been redeemed or exchanged for REIT Shares.
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EXHIBIT C
FORM OF
-----------------
NOTICE OF EXCHANGE
------------------
Reference is hereby made to that certain Agreement of Limited Partnership
of TriNet Property Partners, L.P. (the "Partnership"), dated as of ________ __,
1997 (the "Partnership Agreement"), by and among TriNet Realty Investors I, Inc.
(the "General Partner") and those limited partners listed on the signature pages
thereto (the "Limited Partners"). Pursuant to Section 8.5 of the Partnership
Agreement, the undersigned (the "Undersigned" or "Tendering Party"), hereby
notifies the General Partner of his, her or its intention to tender the number
of units of Limited Partner Interest (the "Units") in the Partnership set forth
below for cash or in the General Partner's sole discretion, shares of Common
Stock of TriNet Corporate Realty Trust, Inc. ("TriNet"), $.01 par value ("REIT
Shares"). Any capitalized terms used herein and not otherwise defined shall have
the meaning ascribed to such terms in the Partnership Agreement. PLEASE COMPLETE
THE INFORMATION BELOW AND SIGN WHERE INDICATED. FAILURE TO COMPLETE THIS NOTICE
OF EXCHANGE FULLY AND ACCURATELY MAY RESULT IN A DELAY IN YOUR EXCHANGE.
1. Name and Address:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
2. The number of shares of Common Stock of TriNet owned by the Undersigned as
of the date of execution of this Notice of Exchange:____________
To the knowledge of the Undersigned, the number of shares of Common Stock
of TriNet owned by any Related Party(1) of the Undersigned as of the date
of execution of this Notice
----------
(1) "Related Party" means, with respect to any Person, any other Person
whose ownership of the capital stock of TriNet would be attributed to the first
such Person under Section 544 (as modified by Section 856(b)(1)(B)) of the
Internal Revenue Code of 1986, as amended (the "Code").
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of Exchange:_____________
3. Number of Units to be exchanged: _____________________ (minimum of 15,000
or, if the Tendering Party owns less than 15,000, then all of the Units
owned by the Tendering Party).
4. Does the number indicated in Paragraph No. 3 above represent all of the
Units held by the Undersigned? [ ] Yes [ ] No
5. By signing below, the Undersigned represents and warrants to TriNet that
(i) the Undersigned owns beneficially and of record, free and clear of any
claim, lien, pledge, voting agreement, option, charge, security interest,
mortgage, deed of trust, encumbrance, rights of assignment, purchase
rights or other rights of any nature whatsoever, except as provided in the
Partnership Agreement and pursuant to the securities laws (each being a
"Claim"), all of his, her or its legal and beneficial interest in the
Units which are being tendered pursuant to this Notice of Exchange, (ii)
the Undersigned has full power and authority to convey the Units free and
clear all Claims and (iii) such Units are being delivered to the General
Partner pursuant to this Notice of Exchange free and clear of all Claims.
6. By signing below, the Undersigned represents and warrants to the General
Partner and TriNet that he, she or it is a Qualifying Party, as defined in
the Partnership Agreement, and that he, she or it has the right to demand
this exchange pursuant to the terms of the Partnership Agreement.
7. By signing below, the Undersigned makes the following investment
representations and warranties to the General Partner and TriNet as to
himself, herself or itself as of the date of this Notice of Exchange:
(a) The Undersigned has had an opportunity to review all
registration statements and amendments thereto furnished to the Undersigned by
or on behalf of TriNet and all other reports and other documents filed by TriNet
with the Securities and Exchange Commission (the "SEC") (all of the foregoing
registration statements, reports and other documents collectively, the "TriNet
Documents") and understands the risks of, and other considerations relating to,
the acquisition of REIT Shares as disclosed in the TriNet Documents. The
Undersigned by reason of his, her or its business and financial experience,
together with the business and financial experience of those persons, if any,
retained by him,
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73
her or it to represent or advise him, her or it with respect to his, her or its
potential investment in the REIT Shares, has such knowledge, sophistication and
experience in financial and business matters and in making investment decisions
of this type that he, she or it (A) is capable of evaluating the merits and
risks of an investment in TriNet and of making an informed investment decision,
(B) is capable of protecting his, her or its own interest or has engaged
representatives or advisors to assist him, her or it in protecting his, her or
its interests and (C) is capable of bearing the economic risk of such
investment.
(b) The Undersigned understands that an investment in TriNet
involves substantial risks. Based on the disclosure contained in the TriNet
Documents, the Undersigned has been given the opportunity to make a thorough
investigation of the current and proposed activities of TriNet.
(c) The address set forth on the first page of this Notice of
Exchange is the Undersigned's principal place of business or residence, as the
case may be, which address has not changed within one year immediately preceding
the date hereof, except as disclosed in writing to TriNet prior to the date
hereof, and the Undersigned has no present intention of becoming a resident of
any country, state or jurisdiction other than the country and state in which
such principal place of business or residence is sited.
8. By signing below, the Undersigned represents, acknowledges or covenants
the following to TriNet:
(a) To the Undersigned's knowledge, the Undersigned has disclosed
in Section 2 above its actual and constructive ownership, as determined for
purposes of Code Sections 856(a)(6) and 856(h), of REIT Shares as of the date of
execution of this Notice of Exchange by (i) the Undersigned and (ii) any Related
Party of the Undersigned;
(b) Neither the Undersigned nor to its knowledge any Related Party
has any present intention to acquire any additional REIT Shares during the
period commencing on the date that this Notice of Exchange is signed by the
Tendering Party and ending on the date on which REIT Shares and/or cash are
received by the Undersigned pursuant to this Exchange; and
(c) The Undersigned shall not be entitled to receive REIT Shares
if, as a result of the tender of Units hereunder, the actual and constructive
ownership of REIT Shares by the Undersigned and any Related Party would violate
the Ownership Limit.2
9. The Undersigned understands and acknowledges that (i) the REIT Shares for
which the Units may be exchanged are subject to the terms of the
Registration Rights Agreement, dated as of the Closing Date, by and among
TriNet and those persons listed on the signature pages thereto (the
"Registration Rights Agreement"), and (ii) unless such REIT Shares have
been registered pursuant to an Issuance Registration Statement (as defined
in the Registration Rights Agreement) which has been declared effective by
the SEC, such
----------
2 With limited exceptions, no person shall at any time directly or
indirectly acquire or hold beneficial ownership of shares of any class or series
of stock of TriNet with an aggregate value in excess of 9.3% of the aggregate
value of all outstanding stock of TriNet.
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REIT Shares may be restricted securities and as restricted securities may
not be resold under the federal and state securities laws unless and until
the sale of such REIT Shares is registered under the Securities Act of
1933, as amended, pursuant to an effective Registration Statement or
unless an exemption from registration under federal and state securities
laws is available.
10. The Undersigned agrees to complete the attached PROSPECTIVE SUBSCRIBER
QUESTIONNAIRE and send it along with this Notice of Exchange to TriNet
with a copy to ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, at the addresses listed below.
FAILURE TO COMPLETE THE PROSPECTIVE SUBSCRIBER QUESTIONNAIRE FULLY AND
ACCURATELY AND FAILURE TO RETURN IT WITH THIS NOTICE OF EXCHANGE MAY DELAY
THE EXCHANGE OF UNITS.
SIGNATURE: _______________________________________________________________
NAME OF ENTITY AND TITLE IF APPLICABLE: __________________________________
DATE: _____________________
Please send the Notice of Exchange along with the completed Prospective
Subscriber Questionnaire via regular, overnight or certified mail or by hand
delivery to TriNet with a copy to ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, at the addresses
listed below:
TriNet Corporate Realty Trust, Inc.
Four ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP
Exchange Place
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
FOR TRINET USE ONLY: Received by TriNet on ______________________________
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EXHIBIT D
Form of Prospective Subscriber Questionnaire
Name: ________________
PROSPECTIVE SUBSCRIBER QUESTIONNAIRE
--------------------------------
TRINET CORPORATE REALTY TRUST, INC.
-------------------------------
The shares (the "Shares") of the common stock, par value $.01 per share,
of TriNet Corporate Realty Trust, Inc. (the "Company") are being offered without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), and the securities laws of certain states. The Shares are being offered
in reliance on an exemption from registration under Regulation D of the
Securities Act ("Regulation D") and similar state law exemptions. To satisfy the
requirements of Regulation D and applicable state law exemptions, the Company
must determine whether a prospective shareholder meets the Regulation D and
state law definitions of "accredited investor" before selling (or, in some
states, offering) securities to such person. This Questionnaire is intended to
assist the Company in making this determination.
Please complete, execute and date this Prospective Subscriber
Questionnaire and deliver it to the address set forth above. Your answers will,
at all times, be kept confidential except as necessary to establish that the
offering and sale of the Shares will not result in a violation of the
registration provisions of the Securities Act or a violation of the securities
laws of any state.
1) To establish the basis of the Subscriber's status as an accredited
investor, please answer the questions set forth below.
a) Is the Subscriber an individual with a net worth (or net worth
with his or her spouse) in excess of $1 million:
Yes__________ No__________
b) Is the Subscriber an individual with income (without including
any income of the Subscriber's spouse) in excess of $200,000,
or joint income with the Subscriber's spouse, in excess of
$300,000, in each of the two most recent
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years, and does the Subscriber reasonably expect to reach the
same income level in the current year?
Yes__________ No__________
c) Is the Subscriber an employee benefit plan within the meaning
of the Employee Retirement Income Security Act of 1974
(hereinafter "ERISA") whose decision to invest in the Company
is being made by a plan fiduciary which is either a bank,
savings and loan association, insurance company or registered
investment adviser or, alternatively, does the employee
benefit plan have total assets in excess of $5,000,000 or is
the employee benefit plan "self-directed" with investment
decisions made solely by person(s) who answered "Yes" to item
1(a) or 1(b) above or item 1(g) below? -- --
Yes__________ No__________
d) Is the Subscriber a retirement plan established and maintained
by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions for
the benefit of its employees with total assets in excess of
$5,000,000?
Yes__________ No__________
e) Is the Subscriber a trust (including an individual retirement
arrangement formed as a trust or a tax-qualified pension and
profit sharing plan (e.g., a ▇▇▇▇▇ Plan) formed as a trust but
not subject to ERISA) with total assets in excess of
$5,000,000 that was not formed for the specific purpose of
acquiring the Shares and whose purchase is directed by a
person with such knowledge and experience in financial and
business matters that such person is capable of evaluating the
merits and risks of the prospective investment?
Yes__________ No__________
f) Is the Subscriber a corporation, partnership, Massachusetts or
similar business trust or an organization described in Section
501(c)(3) of the Internal Revenue Code that was not formed for
the specific purpose of acquiring the Shares and whose total
assets exceed $5,000,000?
Yes__________ No__________
g) Is the Subscriber one of the following entities:
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(i) A "bank" as defined in Section 3(a)(2) of the Securities
Act or any "savings and loan association" or other
institution as defined in Section 3(a)(5)(A) of the
Securities Act, whether acting in an individual or
fiduciary capacity;
(ii) A "broker/dealer" registered pursuant to Section 15 of
the Securities Exchange Act of 1934, as amended;
(iii) An "insurance company," as defined in Section 2(13) of
the Securities Act;
(iv) An "investment company" registered under the Investment
Company Act of 1940 or a "business development company"
as defined in Section 2(a)(48) of the Investment Company
Act of 1940;
(v) A "Small Business Investment Company" licensed by the
U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958; or
(vi) A "Private Business Development Company"as defined in
Section 202(a)(22) of the Investment Advisers Act of
1940?
Yes__________ No__________
If yes, then which entity (i.e., (g)(i) through (vi)
above)?
-----------------------------
h) Is the Subscriber an entity (other than a trust, but including
a grantor trust) in which all of the equity owners can answer
"Yes" to any one question set forth in Sections 1(a) through
1(g) immediately above?
Yes__________ No__________
2) Is the Subscriber acquiring the Shares of the Company as a principal for
the purposes of investment and not with a view to resale or distribution?
Yes__________ No__________
3) By signing this Questionnaire, the Subscriber hereby confirms the
following
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statements:
a) The Subscriber understands and acknowledges that the Shares may be
restricted securities and as restricted securities may not be resold
under the federal and state securities laws unless and until such
Shares are registered under the Securities Act of 1933, as amended,
pursuant to an effective Registration Statement (which TriNet has
agreed to file subject to and in accordance with the terms of the
Registration Rights Agreement) or unless an exemption from
registration under federal and state securities laws is available.
b) The Subscriber shall immediately provide the Company with corrected
information in the event any information given herein was or, prior
to the issuance of Shares to the Subscriber, becomes untrue.
c) The Subscriber acknowledges that any delivery of information
relating to the Company prior to the determination by the Company of
the suitability of the Subscriber as a shareholder shall not
constitute an offer of Shares until such determination of
suitability shall be made.
d) The Subscriber acknowledges that the Company will rely on the
Subscriber's representations contained herein as a basis for
exemption from registration.
e) The Subscriber, either alone or with his or her purchaser
representative, has such knowledge and experience in financial and
business matters as to be capable of evaluating the risks and merits
of the prospective investment in the Shares.
f) The answers of the Subscriber to the foregoing questions are true
and complete to the best of the information and belief of the
undersigned.
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--------------------------------------------------
Signature of Subscriber (or duly authorized agent)
--------------------------------------------------
Title:
--------------------------------------------------
Print Name Signed Above
Principal Residence (if Subscriber is an
individual) or Business Address of Subscriber:
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
Date
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EXHIBIT E
Investment Representations and Warranties
The proposed transferee ("Transferee") makes the following representations
and warranties to the Partnership, the General Partner and TriNet Corporate
Realty Trust, Inc. ("TriNet"):
Transferee acknowledges that Transferee's admission as a Substitute
Limited Partner in the Partnership ("Admission") is contingent upon the veracity
of each of the representations and warranties contained herein and the accuracy
and completeness of all responses entered in the prospective subscriber
questionnaire provided to Transferee. Transferee further acknowledges that
TriNet or the Partnership may refuse Transferee's Admission if such Admission
would be in violation of the Securities Act or any other applicable federal or
state securities laws, regulations or rules.
Transferee has had an opportunity to review all registration statements,
reports and amendments thereto filed with the Securities and Exchange Commission
on behalf of TriNet (collectively, the "TriNet Documents") and understands the
risks of, and other considerations relating to, an investment in the
Partnership. Transferee, by reason of its, his or her business and financial
experience, together with the business and financial experience of those
persons, if any, retained by it to represent or advise it with respect to its
investment in the Partnership, has such knowledge, sophistication and experience
in financial and business matters and in making investment decisions of this
type that it, he or she (A) is capable of evaluating the merits and risks of an
investment in the Partnership and of making an informed investment decision, (B)
is capable of protecting its own interest or has engaged representatives or
advisors to assist it in protecting its, his or her interests and (C) is capable
of bearing the economic risk of such investment.
Transferee understands that an investment in the Partnership involves
substantial risks. Transferee has been given the opportunity to make a thorough
investigation of the current and proposed activities of the Partnership and has
been furnished with materials relating to the Partnership and its current and
proposed activities, including, without limitation, the Limited Partnership
Agreement, the Registration Rights Agreement and the other documents and
materials distributed to Limited Partners of the Partnership pursuant to Section
9.3 of the Limited Partnership Agreement (collectively, the "Partnership
Materials"). Transferee has relied only upon, and is making its investment
decisions only upon, the Partnership Materials.
Any interest in the Partnership will be acquired by Transferee for its,
his or her own account (or if such Transferee is a trustee, for a trust account)
for investment only and not with a view to, or with any intention of, a
distribution or resale thereof, in whole or in part, or the grant of any
participation therein. Transferee has not been formed for the specific purpose
of acquiring
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an interest in the Partnership or TriNet.
Transferee acknowledges that (A) the limited partnership interests in the
Partnership have not been registered under the Securities Act or any state
securities laws by reason of a specific exemption or exemptions from
registration under the Securities Act and applicable state securities laws and,
if such interests are represented by certificates, such certificates will bear a
legend to such effect, (B) TriNet's and the Partnership's reliance on such
exemptions is predicated in part on the accuracy and completeness of the
representations and warranties of Transferee contained herein, (C) such
interests, therefore, cannot be resold unless registered under the Securities
Act and applicable state securities laws, or unless an exemption from
registration is available, (D) there is no public market for such interests and
(E) the Partnership has no obligation or intention to register such interests
for resale under the Securities Act or any state securities laws or to take any
action that would make available any exemption from the registration
requirements of such laws. Transferee hereby acknowledges that because of the
restrictions on transfer or assignment of the interests which are set forth in
the Limited Partnership Agreement, the Transferee may have to bear the economic
risk of the investment in the Partnership for an indefinite period of time.
The address set forth under Transferee's name is the Transferee's
principal place of business or residence, as the case may be, which address has
not changed (except for relocations within the same state) within the two (2)
years immediately preceding the date hereof, except as disclosed in writing to
TriNet prior to the date hereof, and Transferee has no present intention of
becoming a resident of any country, state or jurisdiction other than the country
and state in which such Transferee's principal place of business or residence is
sited.
77