MULTI-EMPLOYER PROPERTY TRUST PARTICIPATION AGREEMENTNEWT(OWIER
TRUST C O M P A N Y
MULTI-EMPLOYER PROPERTY TRUST
PARTICIPATION AGREEMENT
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This Participation Agreement is made this Zq day of? 20/0, between
NewTower Trust Company, as trustee ("Trustee") and Ci ?V j C le0.rWCL+e-1-
the fiduciary who is named or identified as a
fiduciary under section 402(a)(2) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or other person authorized to enter into this Participation
Agreement ("Named Fiduciary") on behalf of C _V ?CGA.? W cC"?
("Participant").
WITNESSETH:
WHEREAS, the Multi-Employer Property Trust (the "Trust") was established as a
collective investment fund pursuant to the Declaration of Trust dated June 22, 1981, as
amended and restated as of October 31, 2003, and further amended as of June 14, 2005,
for the purpose of providing a collective investment vehicle for investments in Real Estate
Investments by Qualified Participants; and
WHEREAS, Participant is a Qualified Participant, and, as determined by Named
Fiduciary, desires to become a Participant in the Trust;
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements herein contained, Named Fiduciary, on behalf of Participant, and Trustee agree
as follows:
ARTICLE I
Section 1.1 Definitions. Unless otherwise specified herein, any capitalized word
or phrase shall have the same meaning as set forth in the Declaration of Trust.
ARTICLE II
Section 2.1 Appointment as Trustee. Named Fiduciary hereby appoints
NewTower Trust Company as Trustee, to hold in trust, as fiduciary, on behalf of
Participant such sums of money, or other property of Participant, together with all
earnings, profits, increments, and accruals thereon, as shall be received from time to time
by Trustee from any source, and to invest and reinvest the same without distinction
between principal and income and to make payment therefrom, subject to the provisions of
this Participation Agreement. Trustee hereby accepts this appointment and acknowledges
that it is a "fiduciary" and "investment manager" within the meaning of Title I of ERISA,
with respect to monies or property of Participant deposited hereunder with Trustee. The
terms of such appointment shall be as set forth herein. Trustee shall be responsible only
for those funds as are actually received by it for the account of Participant. Trustee shall
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receive and credit to Participant's account, without distinction between principal and
income, all dividends and interest paid on securities at any time held therein.
Section 2.2 Authority of Trustee. Trustee hereby confirms and represents to
Participant that Trustee is duly authorized to enter into this Participation Agreement and to
accept any and all sums of money or other property of Participant as may be contemplated
hereby, that the legal instruments creating or embodying such authorization are valid and
in full force and effect, and that any other actions necessary to authorize Trustee to enter
into this Participation Agreement have been duly taken. Trustee will immediately notify
Participant if authority is revoked or rescinded. Trustee will immediately notify
Participant in writing if any statement made in this Section 2.2 changes and will provide
Participant with current correct information.
Section 2.3 Qualified Professional Asset Manager. The Trustee is a "qualified
professional asset manager" within the meaning of Part V of Prohibited Transaction Class
Exemption 84-14, and any successor exemption or regulation.
ARTICLE III
Section 3.1 Qualification of Participant. Named Fiduciary hereby warrants that
Participant is and shall remain exempt from Federal income taxes under section 501(a) of
the Code, by reason of qualifying under section 401(a) of the Code, or is an entity
otherwise permitted under law to participate in the Trust, but only to the extent the
requirements of section 584 of the Internal Revenue Code, and applicable regulations of
the Comptroller of the Currency will continue to be satisfied. Named Fiduciary shall
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simultaneously with the execution of this Participation Agreement furnish to Trustee a
copy of the latest determination letter issued by the Internal Revenue Service pursuant to
which such exempt status of Participant has been granted; or a copy of the request for such
determination letter accompanied by an opinion of counsel that Participant meets the
requirements for approval of tax-exempt status under section 401(a) of the Code; or an
opinion of counsel that Participant is otherwise qualified to participate in the Trust. If a
determination letter has been requested, Named Fiduciary shall furnish to Trustee a copy
of the determination letter upon its receipt from the Internal Revenue Service.
Section 3.2 Authority of Named Fiduciary; Certain Information. Named Fiduciary
hereby confirms and represents to the Trustee that Named Fiduciary is duly authorized, by
its governing trust agreement and such other documents as may be applicable, to enter into
this Participation Agreement and to transfer to Trustee any and all such sums of money as
may be contemplated hereby, that the legal instruments creating or embodying such
authorization are valid and in full force and effect, and that any other actions necessary to
authorize Named Fiduciary to enter into this Participation Agreement have been duly
taken. Named Fiduciary immediately will notify Trustee if such authority is revoked or
rescinded. Concurrent with the execution hereof, Named Fiduciary is delivering to the
Trustee a true and correct statement evidencing the proper legal name of Named Fiduciary,
its address, and the names of its administrators, legal counsel, and all trustees. If any
change occurs in such information, Named Fiduciary immediately will so notify Trustee in
writing, providing current correct information.
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Section 3.3 Notice of Disqualification. In the events that: (a) Participant receives
notice from the Internal Revenue Service that Participant's tax-exempt status has been
revoked, terminated, or modified, so that Participant is no longer exempt from Federal
income tax under the Internal Revenue Code, (b) the Participant's governing instrument is
amended or altered so as to no longer authorize investment in the Trust, or (c) Participant
does not receive a favorable determination letter from the Internal Revenue Service, if
applicable, or (d) Participant is for any reason no longer eligible to participate in the Trust,
Named Fiduciary shall provide notice of such revocation, amendment, unfavorable
determination, or modification to Trustee within 15 days of its execution. Upon receipt of
such notice, Participant's Participation in the Trust shall thereupon be withdrawn in
accordance with the provisions of the Declaration of Trust.
Section 3.4 Exclusive Investment Policy. The Trust shall be operated and
maintained for investment by Qualified Participants. The Trust's investment objective is to
provide Qualified Participants with investment opportunities through holdings primarily in
Real Estate Investments. The Trust shall not be bound by any other investment policy or
by any investment guidelines applicable to individual Qualified Participants.
ARTICLE IV
Section 4.1 Receipt of Documents. Named Fiduciary acknowledges that it has
received and reviewed the Declaration of Trust For The Multi-Employer Property Trust, as
amended and restated effective October 31, 2003 and as further amended as of June 14,
2005; the May 27, 1981 determination letter from the Internal Revenue Service concerning
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the qualification of the Trust under section 584 of the Internal Revenue Code; and the most
recent audited financial statements of the Trust.
Section 4.2 Informed Decision. Named Fiduciary acknowledges that it has been
given the opportunity to review with Trustee the terms and conditions of this Participation
Agreement and the Declaration of Trust. Named Fiduciary further acknowledges that it
has carefully considered the advisability of an investment of assets in the Trust, has taken
into account the fact that funds in the Trust are invested principally or exclusively in real
estate and that the value of such real estate may be affected positively or negatively by a
variety of factors; has determined, after due deliberation, and based solely upon
independent investigations made, directly or indirectly, that an investment by Participant
of a portion of the assets of Participant in the Trust is consistent with Named Fiduciary's
duties to diversify the Participant's assets and to invest such assets with care, skill,
prudence and diligence; and has determined that such investment by Participant is legal
and permissible in all respects and that all other actions required to authorize Participant to
make such investment have been duly taken. Named Fiduciary further acknowledges and
understands that (i) although the Trust will seek diversification in types of property, as
well as location and other characteristics, the Trust's portfolio may, at any given time, not
be diversified; (ii) the Trustee shall not be under an obligation to effect or maintain the
diversification of the Participant's assets; (iii) the Units have not been registered under the
Securities Act of 1933, as amended; and (iv) the Trust has not been registered under the
Investment Company Act of 1940, as amended.
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Section 4.3 Reaffirmation of Representations. Each additional contribution of
funds by Participant to the Trust shall constitute a reaffirmation by Named Fiduciary that
the representations contained herein are true and correct on and as of the date each such
additional contribution is made.
ARTICLE V
Section 5.1 Records; Securities Registration. At all times, monies, securities and
other funds held for the Participant's account shall be clearly recorded and identified on the
Trustee's books and records as being held in trust for Participant. Any such securities at
any time held under this Participation Agreement may be registered in the name of one of
the Trustee's nominees for the purpose of convenience, or may be held unregistered or in
such form as to pass by delivery; and the Trustee's liability or responsibility shall be
neither increased nor decreased by such registration or holding. In connection with the
safe-keeping of such securities and other funds, Trustee shall assume complete
responsibility for all acts or failure to act of any of its officers, employees, or agents and
for the furnishing of such vaults and the employment of such security precautions and
procedures as are practicable and appropriate.
Section 5.2 Trustee's Investment Powers. Pending the investment of monies or
properties deposited hereunder in Units of the Trust, Trustee shall have the duty, power,
and authority to invest and reinvest, without distinction between principal and income, the
monies and properties of the Participant held from time to time hereunder in such
mortgages, loans, bonds, common stocks, certificates of deposit, treasury bills and notes,
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bankers' acceptances, other government or private corporate debt securities, common trust
funds and commingled or collective investment funds, money market mutual funds,
repurchase agreements and short-term investment funds, including those offered through
Trustee, as Trustee in its sole discretion shall deem proper and suitable without complying
with the requirements or customs for investments of trust funds under the law, rules, or
regulations prevailing in any jurisdiction in which this Trust may be effective, and in so
seeking any such investments, Trustee shall exercise the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of any enterprise of a like
character and with like aims. It is understood that the monies and property deposited
hereunder, along with any earnings thereon, will be invested in the Trust as soon as
permitted by the Declaration of Trust creating the Trust.
Section 5.3 Termination. This Participation Agreement shall terminate upon the
complete withdrawal of the Participant's Participation in the Trust.
Section 5.4 Fees to Trustee. Participant shall pay to Trustee for its services
hereunder compensation in accordance with the Statement of Compensation and any
amendments thereto. Such compensation shall be payable out of the principal and income
of the Trust allocable to Participant. Nothing hereunder shall obligate Participant to pay
any fee (other than the fee imposed pursuant to the Statement of Compensation) with
respect to monies invested in the Trust.
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AR taxes of any or all kinds whatsoever which may be levied or assessed under
existing or future laws upon, or in respect of, the assets held hereunder or the income
therefrom shall be paid from the Participant's account.
Section 5.5 Authori . A third party dealing with Trustee shall not make, or be
required by any person to make, any inquiry as to whether Trustee has authority to take or
omit any action under this Participation Agreement.
Section 5.6 Reliance b Trustee. Trustee shall be fully protected in acting upon
any instrument, certificate or paper, reasonably believed by it to be genuine and to have
been signed and presented by the proper person or persons, and Trustee shall be under no
duty to make any investigation or inquiry as to any statement contained in any such
writing, but may accept the same as conclusive evidence of the truth and accuracy of the
statement therein contained.
Section 5.7 Successors. Any corporation or association which shall by merger,
consolidation, purchase, or otherwise, succeed to substantially all the trust business of
Trustee, or which is appointed as successor Trustee of the Trust in accordance with the
Declaration of Trust, shall, upon such succession and without any appointment or other
action by any person, be and become successor Trustee hereunder and shall be bound by
all the terms and provisions of this Participation Agreement. Notice of such succession
will be given to Participant as legally permissible.
Section 5.8 Incorporation of Declaration of Trust. All terms and provisions of the
Declaration of Trust creating the Multi-Employer Property Trust are herein incorporated
by reference. The Statement of Compensation attached to this Participation Agreement is
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also incorporated. If any provision hereof and of the Declaration of Trust shall be in
conflict, the terms of the Declaration of Trust shall govern. Any amendment to the
Declaration of Trust shall be automatically incorporated by reference herein.
Section 5.9 Amendments. Amendments to this Participation Agreement must be
made by the mutual written agreement of the parties.
Section 5.10 Withdrawals and Other Distributions. Upon request of Participant,
Trustee will take such action as is necessary to exercise, on behalf of Participant, the
withdrawal rights or any other rights of Participant under the Declaration of Trust. Trustee
will promptly distribute and pay over to Participant any distributions made by the Trust
with respect to the Participant's Participation in the Trust.
Section 5.11 Severability. If any one or more of the covenants, agreements,
provisions or terms of this agreement shall be held contrary to policy,of express law,
although not expressly prohibited, or against public policy, or shall for any reason
whatever be held invalid, then such covenants, agreements, provisions and terms shall be
deemed severable from the remaining covenants, agreements, provisions and terms of this
Participation Agreement and shall in no way effect the validity or enforceability of the
other provisions of this Participation Agreement.
Section 5.12 Additional Documents. Named Fiduciary shall deliver to the Trustee
any and all documents reasonably requested from time to time.
Section 5.13 Governing Laws. This Participation Agreement and the trust created
hereby, and the rights and obligations of persons affected thereby, shall be construed and
determined in accordance with applicable Federal law to the extent such law supersedes
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applicable laws of the state of Maryland and shall be construed under the laws of the state
of Maryland to the extent federal law is inapplicable or does not supersede Maryland law.
For purposes of the preceding sentence, the term "law" shall include applicable judicial or
administrative decisions, rules, and regulations. All transfers of property to the Trustee
shall be deemed to take place in Maryland.
IN WITNESS WHEREOF, Participant, by its duly authorized agents or
representatives, has executed this Participation Agreement, and NewTower Trust
Company has caused this Participation Agreement to be executed in its corporate name
and its corporate seal to be hereunto affixed and duly attested, by its duly authorized
officers, this a.Y day of , 201d.
PARTICIPANT
(Full Legal Name)
By
By
By
ATTEST: NewTower Trust Company
r Q
By ?l`1 By ?,. y.
Its 455j'-5 V PresickA4 its Ereslded
[CORPORATE SEAL]
0018-001 p1041508 9/6/06 -12-
Countersigned: CITY OF CLEARWATER, FLORIDA
By:
William B. Horne II
City Manager
test:
Cy is E. Goudeau
City erk
NEwTowiEp,
TIILIJST COMPANY
STATEMENT OF COMPENSATION
NewTower Trust Company (the "Bank"), as Trustee of the NewTower Trust Company Multi-
Employer Property Trust (the "Property Trust"), shall be entitled to an annual fee for the management
and administration of the Property Trust of 1.25% of the first $1 billion of Property Trust net assets,
1.00% of the second $1 billion of Property Trust net assets, and 0.75% of Property Trust net assets
above $2 billion. Cash balances in excess of 7.5% of Property Trust net assets are excluded.from the
above fee calculation and will be subject to an annual fee of 0.15%.
These fees shall be charged against the Property Trust on a monthly basis.
The Property Trust shall bear. in addition to the Bank's compensation, only those costs
and expenses payable in accordance with the Declaration of Trust. No indirect or overhead
expenses of the Bank shall be reimbursed by the Property Trust.
PARTICIPANT:
(Full Legal Name)
ACKNOWLEDGED:
By:
Its:
Date:
By:
Its:
Date:
By:
Its:
Date:
3 Bethesda. Metro Center, Suite 1600 . Bethesda, MD 20814
(Tel) 240-235--9960 . (Fat) 240-.235--9961