SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
December 1, 1995
(Date of Report; Date of Earliest Event Reported)
PRUDENTIAL REALTY TRUST
(Exact Name of Registrant as specified in its Charter)
Massachusetts 1-8965 22-6400284
(State of Incorporation) (Commission File Number) (IRS Employer
Identification No.)
Prudential Plaza, Newark, New Jersey 07102
(Address of Principal Executive Offices) (Zip Code)
(201) 802-4302
(Registrant's telephone no., including area code)
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Items 1 through 4. Not applicable.
Item 5. Other Events.
Prudential Realty Trust on December 1, 1995 made a
distribution in the amount of $5.30 per Income Share to
holders of Income Shares of record on November 16, 1995.
Since Income Shareholders will receive total liquidation
payments of less than $8.00 per Income Share, there will be
no distribution to Capital Shareholders.
Prudential Realty Trust has terminated its
existence as of December 1, 1995 by filing a certificate of
termination with the Commonwealth of Massachusetts. A copy
of the form of certificate of termination is an exhibit to
this Form 8-K. Upon the filing of such certificate, the
shareholders of Prudential Realty Trust have no further
rights under the Declaration of Trust and cease to be
shareholders. Prudential Realty Trust will file a Form 15
with the Securities and Exchange Commission in order to
suspend its reporting obligations under the Securities
Exchange Act of 1934.
The remaining assets and liabilities of the Trust
were transferred effective immediately after the close of
business on December 1, 1995 to a liquidating trust. The
Income Shareholders of record as of November 16, 1995 will
be holders of beneficial interests in the liquidating trust
in proportion to their former interests as Income
Shareholders. Beneficial interests in the liquidating trust
will not be transferable, except upon death of the holder of
such beneficial interest or by operation of law.
The assets of the Trust transferred to the
liquidating trust consist of receivables in an estimated
amount of approximately $1,646,000 and cash in the amount of
$486,000. The amount ultimately recovered from the
receivables is not determinable at this time and could be
substantially less than the amount claimed. The liabilities
of the Trust transferred to the liquidating trust consist of
payables estimated in the amount of approximately
$1,165,000. The ultimate amount of liabilities transferred
and the expenses of the liquidating trust are not
determinable at this time and, consequently, the amount
ultimately received by former Income Shareholders is also
not determinable at this time.
After collection of all receivables and the
settlement of all liabilities transferred to the liquidating
trust, a final distribution will be made to holders of
beneficial interests of the liquidating trust against
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surrender of Certificates for their Income Shares. It is
currently anticipated that all receivables will be collected
before March 31, 1996.
The trustee of the liquidating trust will be State
Street Bank and Trust Company, pursuant to a Liquidating
Trust Agreement, effective immediately after the close of
business on the 1st day of December, 1995, by and between
Prudential Realty Trust and State Street Bank and Trust
Company. The form of Liquidating Trust Agreement is an
exhibit to this Form 8-K and the description herein is
qualified in its entirety by reference to such form of
Agreement. State Street Bank and Trust Company will retain
The Prudential Realty Advisors, Inc. as advisor to assist it
in collecting the claims and paying the liabilities
transferred to the liquidating trust, pursuant to an
Advisory and Support Services Agreement, effective
immediately after the close of business on December 1, 1995,
between The Prudential Realty Advisors, Inc. and State
Street Bank and Trust Company. The form of Advisory and
Support Services Agreement is an exhibit to this Form 8-K
and the description herein is qualified in its entirety by
reference to such form of Agreement. The Prudential Realty
Advisors, Inc. has served as advisor to Prudential Realty
Trust. The Prudential Realty Advisors, Inc. will not
receive compensation for advising the liquidating trust with
respect to the collection of receivables and the settlement
of liabilities transferred to the liquidating trust but may
receive compensation for additional services to the
liquidating trust if there are any. It is not expected that
there will be any additional services.
Item 6. Not Applicable.
Item 7. Financial Statements,
Pro Forma Financial Information and Exhibits.
(a) and (b) Not applicable.
(c) Exhibits Required by Item 601 of Regulation S-K.
Exhibit
No.
4.1 Form of certificate of termination.
10.1 Form of Liquidating Trust Agreement,
effective immediately after the close of
business on the 1st day of December, 1995, by
and between Prudential Realty Trust, a
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Massachusetts business trust, and State
Street Bank and Trust Company, a trust
company organized under the laws of the
Commonwealth of Massachusetts.
10.2 Form of Advisory and Support Services
Agreement, effective immediately after the
close of business on December 1, 1995,
between The Prudential Realty Advisors, Inc.,
a New Jersey corporation, and State Street
Bank and Trust Company, a trust company
organized under the laws of the Commonwealth
of Massachusetts.
Item 8. Not Applicable.
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SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned
hereunto duly authorized.
Dated: December 4, 1995
PRUDENTIAL REALTY TRUST
By: /s/ James W. McCarthy
Name: James W. McCarthy
Title: Vice President,
Comptroller and Principal
Accounting Officer
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EXHIBIT INDEX
Exhibit No. Description Page No.
4.1 Form of certificate of termination
10.1 Form of Liquidating Trust Agreement,
effective immediately after the close of
business on the 1st day of December,
1995, by and between Prudential Realty
Trust, a Massachusetts business trust,
and State Street Bank and Trust Company,
a trust company organized under the laws
of the Commonwealth of Massachusetts.
10.2 Form of Advisory and Support Services
Agreement, effective immediately after
the close of business on December 1,
1995, between The Prudential Realty
Advisors, Inc., a New Jersey
corporation, and State Street Bank and
Trust Company, a trust company organized
under the laws of the Commonwealth of
Massachusetts.
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EXHIBIT 4.1
CERTIFICATE OF TERMINATION OF TRUST
PRUDENTIAL REALTY TRUST
WHEREAS Prudential Realty Trust (the "Trust") was
organized by Declaration of Trust dated June 19, 1985 and
filed on said date with the Secretary of State of the
Commonwealth of Massachusetts (said Declaration of Trust as
subsequently amended hereinafter the "Declaration") and
thereafter issued an equal number of Income Shares and
Capital Shares with liquidation preferences and other rights
as set forth in the Declaration;
WHEREAS Section 8.1 of the Declaration directs
that "The Trustees will terminate the Trust upon liquidation
of the Trust's investments as required under Section 5.1" of
the Declaration;
WHEREAS Section 8.2 of the Declaration provides as
follows:
"8.2. Termination of Trust
(a) Upon the termination of the Trust;
(i) the Trust shall carry on no business except
for the purpose of winding up its affairs;
(ii) the Trustees shall proceed to wind up the
affairs of the Trust and all the powers of the Trustees
under this Declaration shall continue until the affairs
of the Trust shall have been wound up, including the
power to fulfill or discharge the contracts of the
Trust, collect its assets, sell, convey, assign,
exchange, transfer or otherwise dispose of all or any
part of the remaining Trust Estate to one or more
persons at public or private sale for consideration
which may consist in whole or in part of cash,
Securities or other property of any kind, discharge or
pay its liabilities, and do all other acts appropriate
to liquidate its business; and
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(iii) after paying or adequately providing for
the payment of all liabilities, and upon receipt of
such releases, indemnities and refunding agreements, as
they deem necessary for their protection, the Trustees
may distribute the remaining Trust Estate, in cash or
in kind or partly each, among the Shareholders
according to their respective rights.
(b) After termination of the Trust and
distribution to the Shareholders as herein provided, the
Trustees shall execute and lodge among the records of the
Trust an instrument in writing setting forth the fact of
such termination and such distribution, a copy of which
instrument shall be filed with the Secretary of State of the
Commonwealth of Massachusetts, and the Trustees shall
thereupon be discharged from all further liabilities and
duties hereunder and the rights and interests of all
Shareholders shall thereupon cease."
NOW, THEREFORE, the undersigned, being all of the
Trustees of the Trust, hereby certify that:
1. The Trustees have adopted a plan of complete
liquidation and dissolution and termination of the Trust
("Liquidation Plan") in conformity with Section 5.1 of the
Declaration.
2. In accordance with the Liquidation Plan and
as provided in Sections 5.1, 8.1 and 8.2 of the Declaration,
the Trustees have (a) sold or otherwise liquidated all of
the real properties and other non-cash assets comprising the
Trust Estate (as defined in the Declaration) of the Trust
other than certain claims for insurance reimbursement and
operating receivables (the "Receivables"), (b) paid or
provided for the payment of all liabilities of the Trust,
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(c) received such releases and indemnities as they deem
necessary for their protection, and (d) distributed the
remaining Trust Estate among the Shareholders of the Trust
according to their respective rights. Such distribution has
consisted of cash in the amount of $5.30 per share to the
holder of each Income Share and the assignment of the
Receivables and remaining cash, subject to any remaining
operating liabilities of the Trust ("the Remaining
Liabilities"), to State Street Bank and Trust Company as
Trustee of a newly formed liquidating trust without
transferable shares for the pro rata benefit of the holders
of Income Shares (the "Liquidating Trust"). The sum of the
cash that has been distributed and the maximum amount of the
Receivables and cash, less Remaining liabilities, that may
become distributable from the Liquidation Trust is less than
the full amount of the liquidation preference of the Income
Shares provided for in the Declaration, with the result that
no portion of the Trust Estate is or will be available for
distribution to holders of Capital Shares.
3. Accordingly, the Trustees have terminated the
Trust, and the Trust is now terminated.
4. Duplicate original copies of this certificate
executed by the Trustees are being lodged with the records
of the Trust and filed with the Secretary of State of the
Commonwealth of Massachusetts, whereupon (as provided in
Section 8.2(b) of the Declaration) the Trustees shall be
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discharged from all further liabilities and duties under the
Declaration and the rights and interests of all Shareholders
shall cease.
WITNESS the execution hereof under seal by each of
the undersigned this day of , 1995.
-------------------------
Jeffrey L. Danker
_________________________
Joseph M. Selzer
_________________________
Richard J. Boyle
_________________________
Francis L. Bryant, Jr.
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EXHIBIT 10.1
LIQUIDATING TRUST AGREEMENT
THIS LIQUIDATING TRUST AGREEMENT (this "Trust
Agreement"), made as of the close of business on the 1st day
of December, 1995, by and between Prudential Realty Trust, a
Massachusetts business trust ("PRT"), and State Street Bank
and Trust Company, a trust company organized under the laws
of the Commonwealth of Massachusetts (in its capacity as
trustee hereunder, the "Trustee");
W I T N E S S E T H :
WHEREAS, the Trustees of PRT (the "PRT Trustees")
adopted a Plan of Complete Liquidation and Dissolution (the
"Plan") at a meeting of the PRT Trustees held on June 2,
1995;
WHEREAS, PRT holds assets not expeditiously or
conveniently distributable in kind at the present time;
WHEREAS, the PRT Trustees, at a meeting held on
November 2, 1995, which meeting was recessed and concluded
on November 6, 1995, authorized the proper officers of
PRT to transfer for the benefit of the holders of Income
Shares of PRT (the "Income Shareholders") a part or all of
PRT's assets to one or more liquidating trustees; and
NOW, THEREFORE, in consideration of the premises
and the mutual covenants and agreements contained herein:
ARTICLE 1.
TRANSFER TO THE TRUSTEE
1.1 Transfer of the Assets to the Trustee. PRT
transfers and assigns to the Trustee, and the
Trustee hereby accepts, PRT's entire right, title
and interest in and to the assets described in
Exhibit A attached hereto and made a part hereof
(the "Assets") and all proceeds and income from
investment and reinvestment in respect thereof
(together with the Assets, the "Trust Property").
The Trustee shall keep the Trust Property in a
separate account. PRT transfers and assigns to
the Trustee, for satisfaction out of the Trust
Property, all of its obligations and liabilities
of any kind and nature, including those described
in Exhibit B attached hereto and made a part
hereof, whether liquidated or unliquidated, known
or unknown, contingent or fixed, other than those
as to which PRT or the Trustees of PRT have been
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indemnified by third parties and the obligation of
such third parties to pay such claims has been
admitted or established (collectively "Trust
Obligations"), and the Trustee in its capacity as
Trustee assumes, and agrees to pay, Trust
Obligations out of the Trust Property, except to
the extent the same shall be contested in good
faith and by appropriate proceedings. The Trustee
shall have no duty to pay or satisfy any
obligations or liabilities which are not Trust
Obligations.
1.2 Intention of Parties. It is the intention of
the parties that the Trustee shall acquire title
to the Trust Property so that the complete
liquidation and dissolution of PRT shall be
completed within the twenty-four (24) month period
following the effectiveness of the Plan, thus
qualifying as a complete liquidation for purposes
of Subchapter C of the Internal Revenue Code of
1986, as amended. Although PRT has transferred
the Assets directly to the Trustee, the parties
intend that, for Federal income tax purposes only,
such transfer is to be considered in substance a
transfer from PRT to the "Former Shareholders" (as
hereinafter defined) and from them to the Trustee.
The Assets are transferred and assigned to the
Trustee, and the Trustee shall hold and deal with
the Trust Property, in trust for the sole benefit
of the "Beneficiaries" (as hereinafter defined),
on the terms and conditions herein set forth. The
creditors of PRT are not intended to be
Beneficiaries of the Trust and the Trustee shall
have no fiduciary duty to them.
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ARTICLE 2.
BENEFICIARIES
2.1 Shareholders as Beneficiaries. A list as of
November 16, 1995 (the "Record Date") of the
Income Shareholders of PRT (the "Former
Shareholders"), is set forth in Exhibit C attached
hereto and made a part hereof. The Former
Shareholders shall be the initial Beneficiaries
with the same beneficial interest ("Beneficial
Interest") in the trust created hereby (the
"Trust") as is shown on Exhibit C. For this
purpose, the term Beneficial Interest shall mean,
for each Beneficiary, the percentage determined by
dividing the number of Income Shares of PRT held
by the Beneficiary on the Record Date by the total
number of Income Shares outstanding on the Record
Date. For ease of administration, the Trustee
may, if it so elects, express the Beneficial
Interest of each Former Shareholder in terms of
units. Each distribution by the Trustee to the
Beneficiaries shall be made to the Former
Shareholders, or their legal representatives or
successors in interest authorized by Section 2.3
(together with the Former Shareholders, the
"Beneficiaries"), pro rata according to their
Beneficial Interest in the Trust.
2.2 Record of Beneficiaries. The Trustee shall
maintain at its place of business a record of the
name of a each Beneficiary, if such name is known
to the Trustee, and of his Beneficial Interest in
the Trust.
2.3 Transfer of Interests. The Beneficial
Interest of a Beneficiary in the Trust may not be
transferred in any manner whatsoever (including,
without limitation, by sale, exchange, gift,
pledge or creation of a security interest) except
(a) by bequest or inheritance in the case of an
individual Beneficiary or (b) by operation of law
(collectively, "Permitted Transfers"). All Trust
Certificates, if any, issued hereunder will bear
an appropriate legend restricting their transfer
to Permitted Transfers alone. A Permitted
Transfer shall be effective only upon receipt by
the Trustee of such documents of transfer,
including, if any Trust Certificates are issued by
the Trustee, the Trust Certificates being
transferred, as the Trustee reasonably may
require. If Trust Certificates are not so issued,
the Trustee may effect a Permitted Transfer upon
receipt from a Beneficiary of a document
requesting a transfer, together with such
supporting documentation as the Trustee deems
appropriate. If the Trustee is reasonably in
doubt as to whether a transfer is a Permitted
Transfer, it may require an opinion of counsel
from the person requesting the transfer.
2.4 Missing Beneficiaries. A Missing Beneficiary
shall be defined as a Former Shareholder who has
not cashed one or more checks issued to him in
payment of liquidating distributions or has not
given a receipt for the delivery of property
addressed to him as part of a liquidation
distribution. If a notice of distribution is
mailed by the Trustee to a Beneficiary and either
the notice is returned by United States Postal
Service to the Trustee as undeliverable or any
check included in such notice is not cashed within
a reasonable period of time, such Beneficiary
shall thereafter be a Missing Beneficiary. Any
person designated as being a Missing Beneficiary
may request from the Trustee, and upon such
request shall be given, an explanation of the
circumstances causing such designation.
The Trustee need not give such explanation unless it
receives such request.
<PAGE>
ARTICLE 3.
PURPOSE, LIMITATIONS AND DISTRIBUTIONS TO BENEFICIARIES
3.1 Purpose of Trust. This Trust is established
for the sole purpose of holding the Assets
transferred to it by PRT on behalf of the
Beneficiaries, enforcing the rights of the
Beneficiaries thereto, collecting the income
thereon, distributing the Trust Property to the
Beneficiaries (after provision for claims and
liabilities, as contemplated by Section 3.2), and
taking such other action as is necessary to
conserve and protect the Trust Property and to
provide for the orderly liquidation of any and all
of the Trust Property. Under no circumstances
shall the Trust or the Trustee in its capacity as
trustee hereunder have any power to engage in any
trade or business, or in any other activity except
as is necessary to the orderly liquidation and
distribution of any and all of the Assets.
3.2 Operation of Trust. The Trustee in its
capacity as trustee shall receive and hold all the
Trust Property and shall, from time to time,
establish a record date for distribution (a "Trust
Record Date") and pay over to the Beneficiaries as
of the applicable Trust Record Date any cash which
is received as the result of (a) the collection of
any income derived from investment or reinvestment
of the Trust Property, (b) any disposition of the
Trust Property and (c) any collection with respect
to Assets which are receivables. Such
distribution shall be made pro rata according to
the Beneficiaries' respective Beneficial Interest
in the Trust; provided, however, that no
distribution shall be made to Beneficiaries
without first satisfying or adequately providing
for (i) Trust Obligations, (ii) a reserve for the
fees of the Trustee and the reasonable expenses
incurred or to be incurred by the Trustee and
(iii) a reasonable reserve for payments to be paid
to Missing Beneficiaries or in escheat in
accordance with applicable law; provided, further,
however, that if the amount which the Trustee may
distribute to the Beneficiaries is less than the
cost of making such distribution, the Trustee
shall not be required to distribute such amount
and may (x) if the distribution is not a
Terminating Distribution (as defined below),
retain such distribution as Trust Property or
(y) if the distribution is intended to terminate
this Trust Agreement pursuant to Section 8.1
hereof or is made following the revocation of this
Trust Agreement pursuant to Section 9.2 hereof
(collectively, "Terminating Distributions"),
donate the Terminating Distribution to a
charitable institution to be determined by the
Trustee. All distributions of cash to the
Beneficiaries shall be rounded to the nearest
whole cent. In addition, the Trustee may, in its
absolute discretion, distribute any of the Trust
Property to the Beneficiaries in kind; provided,
however, that no such distribution shall be made
to the Beneficiaries unless such Trust Property,
if a "security" under the Securities Act of 1933,
as amended (the "Securities Act"), is registered
pursuant to the Securities Act and applicable
state securities laws, or available exemptions
therefrom are obtained, to the satisfaction of
counsel to the Trustee. The Trustee shall take
such action as it deems appropriate to enforce its
rights to the Trust Property so that the
Beneficiaries may receive the full benefit
thereof.
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3.3 No Payment to PRT. In no event shall the
Trustee reconvey to PRT any Trust Property.
3.4 Payment Procedures. The Trustee may
establish reasonable standards and procedures
(which may include the establishment of a date
after which claims need not be considered and paid
or satisfied as Trust Obligations) for the
assertion by third parties that claims should be
considered to be Trust Obligations, payable by the
Trustee from Trust Property. The Trustee need not
pay or satisfy any claims not asserted in
accordance with such standards and procedures.
ARTICLE 4.
AUTHORITY OF TRUSTEE
4.1 Authority of Trustee. Among the other powers
stated or implied herein, in connection with the
administration of this Trust, the Trustee in its
fiduciary capacity may exercise the following
powers, authority and discretion:
(a) to hold legal title to any and all
rights of the Beneficiaries in or arising
from the sale of any Trust Property, and to
receive and collect any and all payments due
in connection with any such sales;
(b) to receive, hold, maintain, grant, sell,
exchange, convey, release, assign or
otherwise transfer legal title to any Trust
Property;
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(c) to hold Trust Property in the name of a
nominee or in any other way without
disclosing the trust relationship;
(d) to enter into contracts;
(e) to execute and deliver, upon proper
payment, partial and complete release of any
third-party obligations transferred to the
Trust;
(f) to protect and enforce the rights vested
in the Trustee to the Trust Property by this
Trust Agreement by any method deemed
appropriate, including, without limitation,
by judicial proceedings;
(g) to take any steps necessary to establish
clear title to any Trust Property;
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(h) to employ legal counsel,
accountants, advisors, custodians and
other agents, including, without
limitation, The Prudential Realty
Advisors, Inc., a New Jersey corporation
("PRA"), and its employees, in
connection with the administration or
termination of this Trust, to delegate
to any of them any powers of the
Trustee, and to pay out of the Trust
Property to such legal counsel,
accountants, advisors, custodians and
other agents reasonable compensation for
services rendered;
(i) to enter into an advisory and support
services agreement with PRA (the "Advisory
and Support Services Agreement") in
substantially the form attached hereto as
Exhibit D;
(j) to file any and all tax returns required
in connection with the Trust created hereby
and to pay any taxes properly payable by the
Trust out of the Trust Property;
(k) to select a fiscal year for the Trust;
(l) to compromise, adjust, arbitrate,
defend, pay from the Trust Property or
otherwise deal with and settle Trust
Obligations;
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(m) to compromise, adjust, arbitrate,
sue on or defend, abandon or otherwise
deal with and settle claims in favor of
or against the Trust as the Trustee
shall deem best;
(n) to make distributions to Missing
Beneficiaries either by continuing to hold
amounts distributed in trust, without payment
to such Missing Beneficiaries of interest on
the amount of such distributions, or by
mailing a distribution to State Street Bank
and Trust Company, or such other entity as
may be chosen by the Trustee, as escrow agent
for the Missing Beneficiaries; and
(o) to file a petition in bankruptcy or
similar action to effect the final
liquidation of the Trust, in which case the
fees and expenses of the Trustee payable
hereunder or in such proceeding are intended
to be those of a custodian entitled to
priority under Section 543 of the Bankruptcy
Code.
4.2 Limitations of Trustee's Investment
Authority. The Trustee in its capacity as trustee
hereunder shall not engage in any income-producing
activity, except that the Trustee may, without
being required to diversify the Trust Property,
keep the Trust Property invested in any of the
"sweep" funds in which the Trustee regularly
invests its excess funds for the benefit of other
trusts administered by its Corporate Trust
Department.
<PAGE>
ARTICLE 5.
THE TRUSTEE
5.1 Generally. The Trustee in its capacity as
trustee hereunder shall perform such duties, and
only such duties, as are specifically set forth in
this Trustee Agreement or are reasonably implied
for the administration of the Trust.
5.2 Liability of Trustee. No provision of this
Trust Agreement shall be construed to relieve the
Trustee from liability for its own negligent
actions, its own negligent failure to act or its
own fraud or willful misconduct, except that:
(a) the Trustee shall be liable only for the
performance of such duties and obligations as
are specifically set forth in this Trust
Agreement or directed by the Beneficiaries
following a meeting of Beneficiaries held in
accordance with Article X hereof;
(b) the Trustee shall not be liable for any
error of judgment made in good faith, unless
the Trustee was grossly negligent; and
(c) the Trustee shall not be liable with
respect to any action taken or omitted to be
taken in good faith in accordance with the
direction of the Beneficiaries following a
meeting of Beneficiaries held in accordance
with Article X hereof.
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5.3 Reliance by Trustee. Except as otherwise
provided in Section 5.2:
(a) the Trustee may rely, and shall be
protected in acting upon, any resolution,
certificate, statement, instrument, opinion,
report, notice, request, consent, order or
other paper or document believed by it to be
genuine and to have been signed or presented
by the proper party or parties, including,
without limitation, documents delivered to
the Trustee pursuant to Section 2.3 hereof
and directions from the Beneficiaries adopted
at a meeting of Beneficiaries held in
accordance with Article X hereof;
(b) the Trustee may consult with legal
counsel (including tax counsel), accountants,
advisors, custodians and other agents
employed pursuant to Section 4.1(h) hereof,
and the Trustee shall not be liable for any
action taken or omitted to be taken by it in
good faith in accordance with the advice of
such persons;
(c) persons dealing with the Trustee, acting
in its capacity as trustee hereunder, shall
look only to the Trust Property to satisfy
any liability incurred by the Trustee to such
person in carrying out the terms of this
Trust, and the Trustee shall have no personal
obligation to satisfy any such liability; and
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(d) the Trustee may rely on certificates and
advice of former officers, trustees and
employees (designated in writing by such
former officers and trustees) of PRT and on
the certificates and advice of PRA rendered
pursuant to the Advisory and Support Services
Agreement in determining how to liquidate
non-cash portions of the Trust Property and
how to settle existing or future claims
payable out of the Trust Property, including
Trust Obligations, and may sell all or any
portion of the Trust Property to any of such
persons including, without limitation, PRA,
it being understood that the validity of any
transaction entered into by the Trustee
pursuant to the powers, rights and authority
granted to it hereunder shall not be affected
or impaired by reason of the fact or
circumstance that the Trustee is dealing with
a person who is a former trustee, officer,
employee or stockholder of PRT or is
otherwise affiliated with such a former
trustee, officer, employee or stockholder,
provided that such transaction is entered
into by the Trustee in good faith and for
what the Trustee, in its sole discretion,
believes is fair consideration.
<PAGE>
5.4 Safekeeping of Trust Property. All moneys
and other assets received by the Trustee shall,
until distributed or paid over as herein provided,
be held in trust for the benefit of the
Beneficiaries, but need not be segregated from
other trust assets, unless and to the extent
required by law. The Trustee shall be under no
liability for interest or producing income on any
moneys received by it hereunder and held for
distribution or payment to the Beneficiaries,
except as such interest shall actually be received
by the Trustee in its capacity as Trustee
hereunder.
5.5 Expense Reimbursement and Compensation. The
Trustee shall be entitled to reimburse itself out
of the Trust Property for all out-of-pocket
expenses, including but not limited to the fees
and expenses of persons employed pursuant to
Section 4.1(h) hereof, and to pay itself
reasonable compensation out of the Trust Property
for all services rendered by it in the execution
of the Trust and in the exercise and performance
of any of its powers and duties.
5.6 No Bond. The Trustee shall serve without
bond.
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5.7 Indemnification of Trustee. The Trustee
shall be indemnified by, and may reimburse itself
out of, the Trust Property, against and from any
and all loss, liability, expense or damage which
the Trustee may sustain in good faith and without
willful misconduct, gross negligence or fraud in
the exercise and performance of any of the powers
and duties of the Trustee under this Trust
Agreement.
ARTICLE 6.
SUCCESSOR TRUSTEE
6.1 Resignation, Removal and Succession. The
Trustee may resign at any time. Such resignation
shall become effective upon the appointment of a
successor and the acceptance by such successor of
such appointment. The Trustee may be removed at
any time, with or without cause, by Beneficiaries
having an aggregate Beneficial Interest of more
than 50 percent. Any corporation or other entity
to which the Trustee shall transfer all or
substantially all of its corporate trust business
(including the Trust and the Trustee's duties and
obligations under this Trust Agreement) shall
become the successor Trustee without further act,
provided that it is otherwise entitled to serve in
that capacity.
6.2 Appointment of Successor. In the event of
any vacancy in the office of Trustee, a successor
Trustee shall be selected by the resigning Trustee
or, in the event of a removal of the Trustee by
Beneficiaries pursuant to Section 6.1, by
Beneficiaries having an aggregate Beneficial
Interest of more than 50 percent.
6.3 Acceptance of Appointment by Successor
Trustee. Any successor Trustee appointed
hereunder shall execute an instrument accepting
such appointment hereunder and shall file such
acceptance with the trust records. Thereupon,
such successor Trustee shall, without any further
act, become vested with all the estates,
properties, right, powers, trusts and duties of
its predecessor in the trust with like effect as
if originally named herein; provided, however,
that a retiring Trustee shall, nevertheless, when
requested in writing by the Successor Trustee,
execute and deliver an instrument or instruments
conveying and transferring to such successor
Trustee under the Trust all the estates,
properties, rights, powers and trusts of such
predecessor Trustee.
ARTICLE 7.
REPORTS TO BENEFICIARIES
7.1 Reports to Beneficiaries. As soon as
practicable after the end of each fiscal year and
upon termination of the Trust, the Trustee shall
submit a written report and account to the
Beneficiaries showing (i) the assets and the
liabilities of the Trust at the end of such fiscal
year or upon such termination and the receipts and
disbursements of the Trustee for such period,
(ii) any changes in the Trust Property not
previously reported and (iii) any action taken by
the Trustee in the performance of its duties which
materially affects the Trust; provided, however,
that reports need not be submitted to Missing
Beneficiaries. The Trustee may submit similar
reports for such interim periods as it deems
advisable. In addition, as soon as practicable
after the close of each calendar year, the Trustee
shall supply each Beneficiary other than Missing
Beneficiaries with a statement reflecting
information which may be helpful in determining
the amount of taxable income from the Trust that
the Beneficiary should include in such
Beneficiary's federal income tax return.
ARTICLE 8.
TERMINATION OF TRUST
8.1 Termination of Trust. This Trust Agreement
shall terminate upon payment to the Beneficiaries
of all of the Trust Property (it being understood
that a payment to an escrow agent pursuant to
Section 4.1(n) shall be considered a payment to
beneficiaries for the purposes of this clause);
provided, however, that the Trust Property which
has not been distributed to an escrow agent
pursuant to Section 4.1(n) hereof and which would
otherwise be distributed to Missing Beneficiaries
shall continue to be held by the Trustee until
each Missing Beneficiary is located and
distribution can be made to him or until such
earlier time as the Trustee, acting pursuant to
and in accordance with local escheat or other
applicable law, shall distribute the Trust
Property theretofore held in trust for the Missing
Beneficiaries; provided, further, however, that
this Trust Agreement shall in no event continue to
exist beyond three years from the date hereof, and
shall terminate one year from the date hereof,
unless the Trustee in its sole discretion
determines that the shortened term of the Trust
and the possible impracticability of paying or
satisfying Trust Obligations or distributing a
portion of the Trust Property in kind to the
Beneficiaries may require that the Trustee sell
portions of the Trust Property for less than the
maximum price that would be realized if the Trust
were not required to terminate within such one-
year or three-year period, as applicable, in which
case the Trustee may extend the term for such
additional periods as the Trustee may determine is
necessary to accomplish the purposes of this Trust
Agreement.
ARTICLE 9.
AMENDMENT
9.1 Method of Amendment. The Beneficiaries shall
have the right at any time by vote of
Beneficiaries having an aggregate Beneficial
Interest of more than 50% to alter, amend or
revoke this Trust Agreement in whole or in part,
provided that (i) any such alteration or amendment
which shall affect the duties of the Trustee
hereunder shall not become effective until
consented to by the Trustee in writing and (ii) no
such alteration or amendment shall cause any of
the Trust Property to be reconveyed to PRT, cause
the Trustee in its capacity as trustee hereunder
to engage in any activity other than that
appropriate for a liquidating trustee.
9.2 Effect of Revocation. In the case of
revocation, the Trustee as soon as practicable and
in no event later than one year from the date of
its receipt of written notice thereof, shall,
subject to making provision for paying or
satisfying and Trust Obligations and paying the
amounts described in Section 5.5, distribute all
cash held in trust, to the Beneficiaries pro rata
according to their respective Beneficial Interests
or and distribute the rights to any other Trust
Property held by the Trustee to the Beneficiaries
by whatever means it shall deem appropriate, and,
in this latter regard, reliance on an opinion of
counsel shall be full and complete authorization
and protection for any such action taken
hereunder; provided, however, that any Trust
Property which has not been distributed to an
escrow agent pursuant to Section 4.1(n) hereof and
would otherwise be distributable to any Missing
Beneficiary shall continue to be held by the
Trustee until such Missing Beneficiary is located
and distribution can be made to such Missing
Beneficiary, or until such earlier time as the
Trustee, acting pursuant to and in accordance with
local escheat or other applicable law shall
distribute the Trust Property theretofore held in
trust for such Missing Beneficiaries. In the case
of revocation, the Trustee shall be authorized to
pay out of the Trust Property the reasonable
costs, including attorneys' fees, of effecting the
complete distribution of the Trust Property to the
Beneficiaries.
ARTICLE 10.
MEETINGS OF BENEFICIARIES
10.1 Purpose of Meetings; Vote Required. Meetings of
the Beneficiaries may be called at any time and
from time to time pursuant to the provisions of
this Article X for the purpose of taking any
action which Beneficiaries are required or
permitted to take under the terms of this
Agreement or applicable law. The Beneficiaries
shall act at any such meeting by majority vote,
subject to Section 9.1.
10.2 Meetings Called by Trustee. The Trustee may at
any time call a meeting of the Beneficiaries to be
held at such time and at such place as the Trustee
shall determine. Notice of any meeting of the
Beneficiaries shall be given by the Trustee (or by
the Beneficiaries in the event the Trustee shall
fail to give notice after a request by the
Beneficiaries pursuant to Section 10.3); provided,
however, that no notice need be sent to Missing
Beneficiaries. Such notice shall set forth the
time and place of the meeting and in general terms
the actions to be proposed at the meeting, and
shall be mailed not more than 60 nor less than
10 days before the meeting is to be held to all of
the Beneficiaries as of a record date not more
than 60 days before the date of the meeting.
10.3 Meetings Called on Request of Beneficiaries.
Within 30 days after request to the Trustee by
Beneficiaries having an aggregate Beneficial
Interest of at least 25% to call a meeting of all
of the Beneficiaries, which request shall specify
in reasonable detail the action to be proposed,
the Trustee shall call a meeting of the
Beneficiaries pursuant to Section 10.2. If the
Trustee fails to call such meeting within such 30-
day period, such meeting may be noticed by
Beneficiaries having an aggregate Beneficial
Interest of at least 25% or by their designated
representative. Except as specifically provided
in this Section 10.3, nothing in this Agreement
shall be deemed to require the Trustee to call a
meeting of the Beneficiaries.
10.4 Person Entitled to Vote at Meetings of
Beneficiaries. Each Beneficiary as of the record
date shall be entitled to vote at a meeting of the
Beneficiaries, either in person or by his proxy
duly authorized in writing. The signature of the
Beneficiary on such written authorization need not
be witnessed or notarized and the Trustee may
assume without further inquiry that the signature
appearing on such written authorization is the
valid signature of such Beneficiary.
10.5 Quorum. At any meeting of Beneficiaries, the
presence of Beneficiaries having an aggregate
Beneficial Interest of 50% or more of the total
Beneficial Interests outstanding shall be
necessary to constitute a quorum. If less than a
quorum is present, Beneficiaries having an
aggregate Beneficial Interest of more than 50% of
the aggregate Beneficial Interest of all
Beneficiaries represented at the meeting may
adjourn such meeting with the same effect and for
all intents and purposes as though a quorum had
been present.
10.6 Adjournment of Meetings. Any meeting of
Beneficiaries may be adjourned from time to time
and a meeting may be held at such adjourned time
and place without further notice.
10.7 Conduct of Meetings. The Trustee shall appoint
a Chairperson and a Secretary of the meeting. The
vote upon any resolution submitted to any meeting
of Beneficiaries shall be by written ballot. Two
Inspectors of Votes, appointed by the Chairperson
of the meeting, shall count all votes cast at the
meeting for or against any resolution and shall
make and file with the Secretary of the meeting
their verified written report.
10.8 Record of Meetings. A record of the proceedings
of each meeting of Beneficiaries shall be prepared
by the Secretary of the meeting. The record shall
be signed and verified by the Secretary of the
meeting and shall be delivered to the Trustee to
be preserved by it. Any record so signed and
verified shall be conclusive evidence of the
matters therein stated.
ARTICLE 11.
MISCELLANEOUS PROVISIONS
11.1 Intention of Parties to Establish Trust. This
Trust Agreement is not intended to create, and
shall not be interpreted as creating, an
association, partnership or joint venture of any
kind. It is intended as a trust to be governed
and construed in all respects as a trust.
11.2 Laws as to Construction. This Trust Agreement
shall be governed by and construed in accordance
with the laws of the Commonwealth of
Massachusetts.
11.3 Separability. In the event any provision of
this Trust Agreement or the application thereof to
any person or circumstance shall be finally
determined by a court of proper jurisdiction to be
invalid or unenforceable to any extent, the
remainder of this Trust Agreement or the
application of such provision to any person or
circumstance other than those as to which it is
held invalid or unenforceable, shall not be
affected thereby, and each provision of this Trust
Agreement shall be valid and enforced to the
fullest extent permitted by law.
11.4 Notices. Any notice or other communication
hereunder shall be deemed to have been
sufficiently given, for all purposes, if
deposited, postage prepaid, in a post office or
letter box addressed to the person for whom such
notice is intended at his address last known to
the person giving such notice.
11.5 Counterparts. This Trust Agreement may be
executed in any number of counterparts, each of
which shall be an original, but such counterparts
shall together constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have either
executed and acknowledged this Trust Agreement, or caused it
to be executed and acknowledged on their behalf by their
duly authorized officers, all as of the date first above
written.
PRUDENTIAL REALTY TRUST
By
STATE STREET BANK AND TRUST
COMPANY
By
<PAGE>
EXHIBIT A
ASSETS
1. Cash in the amount of $486,145.27.
2. $ 17,442.00; Maple Plaza Tenant; November rent receivable.
3. $ 14,144.00; Union Transport; August rent receivable.
4. $ 40,034.00; Wright Printing; June, July and August rent
receivable.
5. $308,946.00; Sullivan & Cromwell; escrow held until PRA has
letter of credit security deposits transferred to owner of
Maple Plaza.
6. $116,471.00; Maple Plaza and Huntington Business Campus
escalations and tenant electric billings; billings to be
collected by PRA through the new owner to extent possible.
7. $923,866.00; Prudential Risk Management; fire insurance
recovery.
8. $225,000.00; Reliance Insurance Co.; D&O insurance recovery.
9. Any other assets of Prudential Realty Trust, a Massachusetts
business trust, of any kind and wherever located.
<PAGE>
EXHIBIT B
OBLIGATIONS
1. $1,139,411.00; J.P. Morgan Securities Inc.; for real estate
brokerage fees and comfort letter. Amount not to be paid
until acceptable comfort letter received by PRA.
2. $16,000.00; Various; for printing and mailing of 12/1/95 3rd
quarter report and liquidating distribution.
<PAGE>
EXHIBIT C
LIST OF BENEFICIARIES
<PAGE>
Exhibit 10.2
ADVISORY AND SUPPORT SERVICES AGREEMENT
Advisory and Support Services Agreement, effective as of
the close of business on December 1, 1995, between The Prudential
Realty Advisors, Inc., a New Jersey corporation ("Contractor"), and
State Street Bank and Trust Company, as trustee ("Trustee") under
the Liquidating Trust Agreement, dated as of the date hereof,
between Prudential Realty Trust ("PRT") and the Trustee (the "Trust
Agreement");
WHEREAS, as part of its liquidation under a Plan of
Complete Liquidation and Dissolution adopted at a meeting of the
Trustees of PRT held on June 2, 1995, and pursuant to the terms and
conditions of the Trust Agreement, PRT has transferred to Trustee
for the benefit of the Income Shareholders of record on November
16, 1995 certain assets (together with investment proceeds and
income thereon, the "Trust Property");
WHEREAS, pursuant to the terms and conditions of the
Trust Agreement, PRT has assigned and transferred to Trustee, for
satisfaction out of the Trust Property, all of its obligations and
liabilities of any kind and nature, whether known or unknown,
contingent or fixed, other than those as to which PRT or the
Trustees of PRT have been indemnified by third parties (the "Trust
Obligations"), and Trustee in its capacity as Trustee has assumed
and agreed to pay the Trust Obligations out of the Trust Property,
except to the extent the same shall be contested in good faith and
by appropriate proceedings;
WHEREAS, Trustee requires certain advice and support
services in connection with Trustee's investment and disposition of
the Trust Property and satisfaction or payment of the Trust
Obligations;
WHEREAS, Trustee, as contemplated by the Trust Agreement
determined to retain Contractor to provide advice and support
services to Trustee on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing and the
mutual conditions and covenants contained herein, it is hereby
agreed as follows:
<PAGE>
1. Qualifications. Contractor represents, warrants and
agrees with Trustee that (a) it is qualified to serve as Trustee's
adviser and to perform the advisory and service functions
undertaken by it pursuant to this Agreement; and (b) its staff is
or will be sufficient in size and has the requisite training,
experience and other qualifications necessary to perform such
functions, consistent with the adequate performance of all other
duties now or hereafter undertaken by Contractor for itself.
Contractor will submit to Trustee materials descriptive of
Contractor as Trustee may reasonably request to assist Trustee and
Trustee's personnel in utilizing the advice and support services to
be provided by Contractor pursuant to this Agreement.
2. Advice and Services. During the term of this
Agreement, at the request of Trustee, Contractor shall make
available to Trustee, on a non-exclusive basis, members of its
executive management and staff, or engage others, as reasonably
required to assist Trustee in the settlement of claims included in,
and the investment and disposition of, the Trust Property and the
satisfaction or payment of Trust Obligations, including, without
limitation:
(a) Contractor's executive management personnel, for
overall executive supervision and control of Contractor's
performance under this Agreement;
(b) its internal investment staff, for financial advice
and services;
(c) outside legal counsel, for legal advice and services
to members of Contractor's management who provide advice and
services to Trustee under this Agreement;
(d) outside tax experts, for tax advice;
(e) its internal accounting staff, for accounting and
bookkeeping advice and services and outside auditors;
(f) outside risk management experts, for insurance and
risk management advice and services, including, without limitation,
assistance in determining and obtaining proper insurance coverage
for risks assumed by the Trustee;
(g) its internal data-processing staff, for data-
processing advice and services; and
<PAGE>
(h) such other personnel of Contractor and others
engaged hereunder whose services the parties agree are necessary
and desirable to assist Trustee in discharging its obligations
under the Trust Agreement.
<PAGE>
3. Limitation on Assignments.
(a) Contractor shall not be delegated responsibility for
the holding or investment of any Trust Property consisting of
liquid assets, including without limitation promissory notes,
except insofar as Contractor serves as a collection agent for
Trustee.
(b) It is understood that Contractor cannot and is not
committing any specific employee of Contractor to advise or provide
services to Trustee under this Agreement.
4. Authority of Contractor. Contractor shall not
purchase, sell, encumber, satisfy, settle or compromise any part of
the Trust Property or Trust Obligations except with the advance
approval of Trustee. Contractor shall be considered to be and
shall conduct itself as an independent contractor, and shall not
have the right or power to bind Trustee.
5. Records. Contractor shall maintain and make
available to representatives of Trustee appropriate records of its
activities hereunder.
6. Fees and Expenses. There will be no fee to
Contractor for services in connection with the collection of the
receivables initially included in the Trust Property or the payment
of the payables initially included in the Trust Obligations. As
compensation for any services in addition to those specified in the
immediately preceding sentence, Trustee shall pay to Contractor, on
a monthly basis, a fee to be determined as follows:
(a) Any fees will be determined as a function of the
hours spent by Exempt personnel attending to Trustee matters and
will include a 20% surcharge. The charges for each Exempt
employee's time in any monthly period shall be computed in
accordance with the following formula:
Charges = A x B x 1.20
1695
where A = Hours Spent by Exempt Employee Providing Advice or
Services to Trustee and
B = Exempt Employee's Annual Salary.
<PAGE>
There will be no separate charge for time spent by non-Exempt
personnel on Trustee affairs.
(b) As used in this paragraph 7, "Exempt" refers to an
employee who is exempt from the overtime provisions of the Fair
Labor Standards Act.
(c) Contractor shall be reimbursed against bills
submitted to Trustee for all reasonable expenses directly related
to the performance by Contractor of its obligations hereunder,
including, without limitation, third party consulting, legal,
accounting or other fees, and out-of-pocket expenses such as
travel, lodging and telephone toll charges.
(d) Each of Contractor's bills to Trustee shall include
the calculations by which fees were established, together with such
additional information, if any, as the Trustee may reasonably
request. Absent manifest error, the Trustee may assume that fees
have been properly computed.
7. Access to Information. Each party hereto will give
the other reasonable access (including duplication rights) to any
books, records, contracts, instruments, and other information
regarding the Trust Property and Trust Obligations, and Contractor
shall keep and make available to Trustee books and records
reasonably necessary to verify the accuracy of Contractor's
billings for fees and expenses. Each party shall keep confidential
any and all of such information which is valuable confidential
information proprietary to the other.
8. Limitation of Liability. Neither Contractor nor any
officer, director, employee or agent of Contractor shall be liable
to Trustee for any error of judgment or mistake of law or for any
loss incurred by Trustee in connection with the matters to which
this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of
Contractor or from Contractor's reckless disregard of obligations
and duties under this Agreement.
9. Indemnification of Contractor by Trustee. Trustee
shall indemnify out of the Trust Property, but not out of its own
assets or any other property, and hold harmless Contractor, and its
subsidiaries and the officers, directors and employees of
Contractor and its subsidiaries out of the Trust Property, but not
out of its own assets or any other property, from and against any
<PAGE>
and all losses, liabilities, claims, damages, costs and expenses
(including reasonable attorneys' fees and other expenses of
litigation) to which such party may become subject arising out of
the provision by Contractor to Trustee of advice and support
services to be provided under this Agreement; provided, that such
indemnity shall not protect Contractor or such other persons
against any liability to which Contractor would otherwise be
subject under the terms of this Agreement by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard of
its or their obligations and duties under this Agreement.
10. Litigation. All actions filed for the benefit of
the Beneficiaries named in the Trust Agreement shall be filed in
the name of Trustee for the benefit of such Beneficiaries. In the
case of actions filed against PRT and included in the Trust
Obligations, the parties will cooperate to substitute the name of
Trustee as defendant where appropriate.
11. Conflicts and Disclosure. Trustee recognizes that
Contractor formerly was an advisor to PRT and that certain trustees
and officers of PRT are directors or officers of Contractor
(Contractor's prior relationship with PRT shall be referred to
hereinafter as "Affiliations").
(a) Before requesting advice or services from Contractor
in relation to any claim against PRT or the Trust Property or Trust
Obligations, Trustee will consider the significance of any
Affiliation and shall decide whether to confer or consult with
Contractor with specific instructions regarding, or limits to,
Contractor's advising on or servicing such claim. Trustee will,
however, provide prompt notice of any such claim to Contractor,
which notice shall include reasonable detail, to the extent known
by Trustee, of the nature of such claim.
(b) In the case of a proposed sale, encumbrance,
satisfaction, settlement or compromise involving any asset
constituting part of the Trust Property or Trust Obligations which
involves any Affiliation, the Trustee may elect (i) not to retain
the advice or services of Contractor or (ii) to retain the advice
or services of Contractor in part and, in part, at the expense of
the Trust Property, the advice or services of an independent third
party.
(c) Without the prior written consent of Trustee, which
in each case may be granted or withheld in the sole discretion of
<PAGE>
Trustee, Contractor shall not participate in any transaction in
which Contractor or any officer or director of Contractor shall
arrange to receive or accept any fee or other payment (other than
the fees payable and expenses reimbursable to Contractor under this
Agreement) from developers, financial partners or other persons for
services rendered or work performed with respect to or in
connection with any part of the Trust Property or Trust
Obligations.
12. Other Business. Nothing contained herein shall
prevent Contractor or any affiliate or associate of Contractor from
engaging in any other business. In the event Trustee believes that
a conflict between Trustee's requirement for advice or support
services under this Agreement and the requirements of Contractor's
own business is affecting Contractor's performance hereunder, at
Trustee's request, the parties agree to meet and agree on a
resolution of such conflict which is satisfactory to both parties.
13. Termination. This Agreement shall remain in effect
until the earlier of the termination of the trust formed pursuant
to the Trust Agreement or the first anniversary of the date hereof.
14. Further Assurances. Each of the parties will make,
execute, acknowledge and deliver such other instruments and
documents, and take all such other actions, as the other party may
reasonably request and as may reasonably be required in order to
effectuate the purposes of this Agreement and to carry out the
terms hereof.
15. Notices. All communications hereunder shall be in
writing and shall be addressed, if intended for Contractor, to The
Prudential Realty Advisors, Inc., 751 Broad Street, 3rd Floor,
Newark, New Jersey 07102-3777, Attention: Joseph M. Selzer, with a
copy to Donna Dellechiaie, Esq., at Prudential Realty Group, 100
Mulberry Street, 13th Floor, Newark, New Jersey 07102, or such
other address as it shall have furnished to Trustee in writing; and
if intended for Trustee, to State Street Bank and Trust Company, 2
International Place, Boston, MA 02110, Attention: Corporate Trust
Department (1995 Prudential Realty Trust Liquidating Trust), with a
copy to Shipman & Goodwin, One American Row, Hartford, CT 06103-
2819, Attention: Daniel P. Brown, Jr., Esq., or such other address
as it shall have furnished to Contractor in writing.
16. Amendment and Modification. Neither this Agreement
nor any term hereof may be changed, waived, discharged or
terminated other than by agreement in writing signed by the parties
hereto.
<PAGE>
17. Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the respective successors and
assigns of the parties hereto, provided, however, that this
Agreement may not be assigned by either of the parties hereto
without the prior written consent of the other.
18. Miscellaneous. The headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. This
Agreement constitutes the entire agreement, and supersedes all
prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter hereof. This
Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which together shall
constitute one and the same instrument. This Agreement shall be
governed in all respects, including validity, interpretation and
effect, by the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
STATE STREET BANK AND TRUST COMPANY
___________________________________
By: ______________________________
Name:
Title
THE PRUDENTIAL REALTY ADVISORS, INC.
____________________________________
By: ________________________________
Name:
Title:
