EXHIBIT 2.2
FORBEARANCE AND RESTRUCTURING AGREEMENT
THIS FORBEARANCE AND RESTRUCTURING AGREEMENT (this
"Agreement") is made as of May 21, 1998 by and among NINE PENN CENTER
ASSOCIATES, L.P., a Pennsylvania limited partnership ("NPCA"), having an address
x/x XXXXX-Xxxxx, Xxx Xxxxxxxx, 0xx Xxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx,
XX 00000, THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New York
corporation ("Equitable"), having an address at 1290 Avenue of the Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000, TRANSPORTATION ASSOCIATES, a Pennsylvania
limited partnership ("Transportation"), having an address x/x XXXXX-Xxxxx, Xxx
Xxxxxxxx, 0xx Xxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 (NPCA,
Equitable, and Transportation are collectively referred to in this Agreement as
the "NPCA Parties"), and HEALTH AND RETIREMENT PROPERTIES TRUST, a Maryland real
estate investment trust ("HRPT") having an address at 000 Xxxxxx Xxxxxx, Xxxxxx,
XX 00000 and 0000 XXXXXX XXXXXX PROPERTIES TRUST, a Maryland real estate
investment trust having an address at 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000
("1735") (HRPT and 1735 are referred to collectively in this Agreement as the
"REITS").
BACKGROUND
A. NPCA is a Pennsylvania limited partnership composed of
Equitable and Transportation, pursuant to that certain "Joint Venture Agreement"
dated as of June 30, 1987, as amended by that certain "Supplement and Amendment
to Joint Venture Agreement of Limited Partnership of Nine Penn Center
Associates, L.P." dated as of April 24, 1992 (such Joint Venture Agreement as
amended being referred to herein as the "Joint Venture Agreement").
B. NPCA is the owner of certain real property located in
Philadelphia, Pennsylvania known as "Nine Penn Center" and/or "Mellon Bank
Center", and the buildings, improvements, and certain other property (both real
and personal) situated thereon or associated therewith (collectively, the "Real
Estate"). On or about May 25, 1988 NPCA, as borrower, entered into a loan
transaction (the "Loan") as detailed in that certain Construction Loan Agreement
("Construction Loan Agreement"), dated May 25, 1988, with Banque Paribas, a
French banking corporation ("Paribas") acting through its New York branch as
agent for a group of lenders (each lender being, individually, a "Lender" and
all Lenders being, collectively, the "Lenders"). In connection with the
Construction Loan Agreement, NPCA executed and delivered in favor of Paribas
that certain "Construction Loan Mortgage Note" (the "Note"), dated May 25, 1988,
together with that certain "Construction Loan Mortgage, Assignment of Leases and
Rents and Security Agreement", dated May 25, 1988 (the "Mortgage"), and other
related documents and instruments (the foregoing Construction Loan Agreement,
the Note, the Mortgage, and all other such documents delivered in favor of
Paribas being collectively referred to herein as the "Loan Documents").
C. HRPT and Paribas have entered into that certain "Purchase
Agreement" dated as of April 29, 1998 (the "Note Purchase Agreement") by which
HRPT has agreed to acquire from the Lenders the Note, together with all of the
Lenders' right, title and interest in the Loan Documents. Closing under the Note
Purchase Agreement and consummation of the transactions contemplated thereby
(the "Note Closing") has been scheduled for Friday, May 22, 1998.
D. HRPT will, at the Note Closing, assign the Note Purchase
Agreement to 1735.
E. In anticipation of the Note Closing under the Note Purchase
Agreement, and conditioned upon the completion of the Note Closing as described
in the Note Purchase Agreement, NPCA and the REITS have reached certain
agreements and understandings which are set forth in this Agreement, including
such agreements as relate to the REITS's acquisition of partnership interests in
NPCA at a closing described in Section 5 of this Agreement (the "Equity
Closing").
AGREEMENTS
NOW, THEREFORE, for and in consideration of the Background and
the mutual agreements provided in this Agreement, and intending to be legally
bound hereby, the parties to this Agreement agree as follows:
1. Representations of NPCA Parties. Each of the NPCA Parties
(as to itself only and not as to any other), in order to induce the REITS to
enter into this Agreement and to complete the Equity Closing, makes the
following representations and warranties to the REITS as of the date of this
Agreement:
1.1 The subject NPCA Party is duly organized and validly
existing under the laws of their respective State of organization.
1.2 The subject NPCA Party has obtained all consents,
approvals, and authorizations from all persons, entities, and authorities
required to enter into this Agreement, and to consummate the transactions
contemplated hereby.
1.3 There has not been filed by or against the subject
NPCA Party , a petition in bankruptcy or insolvency proceedings or for
reorganization or for the appointment of receiver or trustee under any state or
federal laws, nor has the subject NPCA Party made an assignment for the benefit
of creditors or filed a petition for an arrangement or entered into an
arrangement with creditors which petition, proceedings, assignment, or
arrangement has not been dismissed by a final nonappealable order of the court
or body having jurisdiction over the matter; and the subject NPCA Party has not
admitted in writing the inability to pay its debts as they become due.
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1.4 Each NPCA Party has the full, lawful, and
unrestricted right and power to execute, deliver and perform its obligations
under this Agreement and to complete the transactions contemplated hereby
including the Equity Closing.
1.5 There are no rights, options, or other agreements of
any kind to sell or otherwise dispose of the Real Property as a whole to which
the subject NPCA Party is a party except as set forth in the Joint Venture
Agreement and the Loan Documents.
1.6 Each NPCA Party's execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized and no other action is required by law, by the charter
documents of any NPCA Party, or otherwise for such authorization; and this
Agreement is the legal, valid and binding obligation of, and is enforceable
against, each NPCA Party in accordance with its terms except to the extent such
enforcement may be affected by general principles of equity, or other laws,
including bankruptcy laws, affecting the rights of creditors generally; the
execution of this Agreement and the compliance with its terms and conditions by
each NPCA Party will not breach or conflict with the terms, conditions or
provisions of any other agreement or instrument to which such NPCA Party is a
party or by which such NPCA Party is bound, or constitute a default thereunder.
1.7 The Construction Loan Agreement, the Note, the
Mortgage, and the other Loan Documents are the legal, valid and binding
obligations of NPCA, and the same have not been modified or amended in any
fashion except as described in this Agreement.
1.8 Notwithstanding the foregoing, no NPCA Party makes
any representation or warranty to the REITS concerning the character, nature, or
physical qualities of the Real Estate.
2. Representations of REITS. The REITS, in order to induce the
NPCA Parties to enter into this Agreement and to complete the Equity Closing,
make the following representations and warranties to the NPCA Parties as of the
date of this Agreement:
2.1 Each of the REITS is a real estate investment trust
duly organized and validly existing under the laws of the State of Maryland.
2.2 Each of the REITS has obtained all consents,
approvals, and authorizations from all persons, entities, and authorities
required to enter into this Agreement, and to consummate the transactions
contemplated hereby including the Equity Closing.
2.3 There has not been filed by or against any of the
REITS, a petition in bankruptcy or insolvency proceedings or for reorganization
or for the appointment of receiver or trustee under any state or federal laws,
nor has any of the REITS made an assignment for the benefit of creditors or
filed a petition for an arrangement or entered into an arrangement with
creditors which petition, proceedings, assignment, or arrangement has not been
dismissed by final nonappealable order of the court or body having jurisdiction
over the matter; and the REITS are not insolvent and have not admitted in
writing the inability to pay its debts as they become due.
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2.4 Each of the REITS has the full, lawful, and
unrestricted right and power to execute, deliver, and perform its obligations
under this Agreement and to complete the transactions contemplated hereby.
2.5 Each of the REITS' execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the boards of directors of the
REITS and no other action is required by any REITS's organizational documents,
or by law, by any of the REITSs' charter documents (including, without
limitation, their Declarations of Trust ) or otherwise for such authorization;
and this Agreement is the legal, valid and binding obligation of, and is
enforceable against, the REITS in accordance with its terms except to the extent
such enforcement may be affected by general principles of equity, or other laws,
including bankruptcy laws, affecting the rights of creditors generally; the
execution of this Agreement and the compliance with its terms and conditions by
the REITS will not breach or conflict with the terms, conditions or provisions
of any other agreement or instrument to which the REITS are a party or by which
the REITS are bound, or constitute a default thereunder.
2.6 HRPT has no actual knowledge that any "Event of
Default" (as defined under the "Loan Documents") exists as of the date of this
Agreement under the Note or any of the other Loan Documents excepting only an
interest payment otherwise due on or about May 18, 1998.
2.7 HRPT is aware that Section 5.15 of the Mortgage
contains, among other things, a provision to the effect that the mortgagee will
not become a "party in interest" (within the meaning of the Employee Retirement
Income Security Act of 1974, as now or hereafter amended) to any pension or
profit sharing plan which at any time has assets allocated to the Prime Property
Fund of Equitable and prohibiting the sale conveyance or transfer of the
Mortgage to a person or entity which would be such a "party in interest." HRPT
represents and warrants to NPCA that (i) the sale of the Note and Loan Documents
to HRPT will not result in a violation of the provisions of said Section 5.15 of
the Mortgage.; and (ii) upon such sale HRPT shall not be a "party in interest"
(as defined above).
2.8 Upon the Equity Closing, the REITS shall expressly
acknowledge, represent, warrant, and agree (in a form reasonably satisfactory)
that the "Guaranty of Interest, Taxes and Operating Expenses" and "Guaranty of
Completion" which are part of the Loan Documents and which were delivered by
Equitable and Mr. Xxxxxx Xxxxx, will have expired and/or have terminated by
their terms, and as of such date, there will be no surviving claims thereunder
against any of the parties thereto.
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3. Forbearance.
3.1 The parties to this Agreement acknowledge and agree
that in accordance with the terms of the Note (and the other Loan Documents) and
Pennsylvania law, the Note matures on May 26, 1998 and is payable in full on
that date. The REITS hereby agree that, subject to the terms set forth in this
Agreement, the REITS shall refrain from exercising or otherwise pursuing any
Lender Remedies (as that term is hereinafter defined) on account of such
maturity or otherwise until July 1, 1998 (the "Forbearance Date"). The term
"Lender Remedies" shall mean any and all remedies available to Paribas or the
Lenders (or any successor in interest to any of them, or any party claiming, by
through, or under any of them including the REITS) which is provided under the
terms of the Loan Documents, or otherwise available in equity or at law,
including, without limitation, foreclosure, acceleration, declaration of
default, notification of tenants, confession of judgment, ejectment, or other
form of possession or dispossession.
3.2 The REITS may exercise any and all of the Lender
Remedies at any time on or after the Forbearance Date to the extent provided and
exercisable under the terms of the applicable Loan Documents, without the
necessity of any additional or other notices or the passage of any grace
periods.
3.3 In the event that any NPCA Party files any petition
in bankruptcy, or any petition in bankruptcy is filed against any NPCA by any
partner of NPCA, then upon such filing the agreements to forbear set forth in
Section 3.1 above shall terminate and the REITS may exercise any and all of the
Lender Remedies.
4. Sale of Paribas Note. Each of the NPCA Parties hereby
consents to the sale of the Note and the other Loan Documents to HRPT under the
terms set forth in the Note Purchase Agreement.
5. Restructuring Transaction. The REITS and the NPCA Parties
agree that the Joint Venture Agreement, and the structure of NPCA itself, shall
be amended as part of the Equity Closing, all as described and provided in
Exhibit A attached hereto.
6. [Intentionally deleted]
7. Cost of a "Challenge". Each of the parties hereto agrees
that in the event that any party brings a Challenge (as that term is hereinafter
defined), such party shall be personally liable to, and indemnify and hold
harmless, the non-challenging parties with respect to any harm, damage, cost,
expense, injury, loss or the like, incurred by the non-challenging parties as a
result of the Challenge including, without limitation, any reasonable attorneys'
fees and expenses, court costs, filing costs, or the like, which shall be paid
to the subject non-challenging parties immediately upon demand therefor, and
such obligation shall not be subject to any limitation which may be set forth in
any of the Loan Documents or elsewhere including any non-recourse language which
may be set forth in any of the Loan Documents. The term "Challenge" shall mean
the filing or initiation of any suit, action, contest, claim, request for
investigation,
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hearing, or other proceeding (whether legal, equitable,
administrative, in bankruptcy, or otherwise) challenging the legal and binding
nature of this Agreement or any element or component of this Agreement. For the
avoidance of doubt, if the parties fail to close on the restructure transaction
as set forth in Exhibit A attached hereto, any suit, action, contest, claim,
request for investigation, hearing, or other proceeding (whether legal,
equitable, administrative, in bankruptcy, or otherwise, including any such
proceedings initiated for the purpose of enforcing this Agreement (as opposed to
challenging its legality) shall be deemed not to be a "Challenge". Furthermore,
it is agreed that (i) the obligations and liabilities under this Section 7 are
the several (but not joint) obligations and liabilities of the parties to this
Agreement; and (ii) Equitable shall have no responsibility or liability to
either REIT with respect to any Challenge brought or effected by NPCA or
Transportation unless Equitable affirmatively joins in such Challenge; at the
request of either REIT, Equitable agrees to certify with respect to any
Challenge brought by NPCA or Transportation whether it is or is not joining in
such Challenge (and if Equitable is not joining in the subject Challenge Then
Equitable shall cooperate with the REITS in opposing such Challenge).
8. Arm's Length Negotiations; Independent Counsel. The parties
to this Agreement acknowledge that, all the terms of the Agreement were
negotiated at arm's length and that this Agreement was prepared and executed
without duress, undue influence or coercion of any kind exerted by any party
upon the other. Each party stipulates that (i) it has been represented by, and
has relied upon, independent counsel of its own choosing in the negotiation and
preparation of this Agreement; and (ii) it and such counsel have each read this
Agreement, have had its contents fully explained to it by such counsel; and
(iii) it is fully aware of and understands all of the terms and the legal
consequences of this Agreement. It is acknowledged that the parties have,
through their respective counsel, mutually participated in the preparation of
this Agreement.
9. Consent to Lifting of Automatic Stay. If NPCA (or any
partner of NPCA) shall (i) file, or be the subject of, a bankruptcy petition in
any state court or the United States Bankruptcy Court, (ii) be the subject of
any order for relief issued under any state bankruptcy law or the U.S. Code,
(iii) file, or be the subject of, any petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act, law or regulation
relating to bankruptcy, insolvency or other relief for debtors, (iv) have
sought, consented to or acquiesced in the appointment of any trustee, receiver,
conservator or liquidation (v) be the subject of any order, judgment or decree
entered by any court of competent jurisdiction approving a petition filed
against such party for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future federal or state act, law or regulation relating to bankruptcy,
insolvency or relief for debtors, then, so long as NPCA or any partner of NPCA
would not breach any duty owing to the bankruptcy estate or other constituencies
in the bankruptcy proceeding, neither NPCA nor any partner of NPCA shall assert
or request any other party to assert that the automatic stay provided by Section
362 of the Bankruptcy Code shall operate or be interpreted to stay, interdict,
condition, reduce or inhibit the ability of the REITS to enforce any rights it
has by virtue of this Agreement at law or equity, or any other rights any REIT
has,
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whether now or hereafter acquired, against NPCA or against any collateral owned
by NPCA. Specifically, without limiting the foregoing, in the event of any such
voluntary or involuntary bankruptcy filing following the execution and delivery
of this Agreement, the REITS shall be entitled and each of NPCA and its partners
irrevocably consents to an order granting the REITS immediate relief from all
stays including the automatic stay imposed by Section 362 of the Bankruptcy Code
so as to permit the REITS to exercise any and all other rights and remedies the
REITS may have under this Agreement or at law or in equity, and NPCA and each of
its partners hereby irrevocably waives any right to object to such relief. This
provision shall be construed as liberally as the law permits to accomplish the
purpose stated.
10. Limitation. Each of the parties to this Agreement hereby
represents, warrants, acknowledges, and agrees that this Agreement shall not
constitute or be deemed: (i) a novation of the Note or any of the other Loan
Documents; (ii) an extension of any applicable notice or cure periods as
provided under the Note or the other Loan Documents; (iii) a modification,
deferral or waiver of any of the Lender's Remedies with respect to Events of
Default occurring after the Forbearance Date or a waiver or forgiveness of such
defaults; or (iv) a waiver, amendment, or modification of the "non-recourse"
language and agreements benefiting any of the NPCA Parties under any of the Loan
Documents. Nonetheless, in the event of any conflict or inconsistency between
the terms of this Agreement and the terms of the Note or any of the other Loan
Documents, the terms of this Agreement shall govern and control.
11. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS
AGREEMENT KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND EXPRESSLY WAIVES THE RIGHT
OF TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT UNDER OR WITH
RESPECT TO THIS AGREEMENT OR ANY DISPUTE ARISING UNDER THIS AGREEMENT.
12. No Partnership. Nothing in this Agreement or the Loan
Documents, shall create or be deemed to create a partnership between the NPCA
Parties or any of them and the REITS or any of their affiliates; and none of the
REITS and none of the NPCA Parties shall be deemed liable for any of the debts,
liabilities, or obligations of any of the others.
13. Entire Agreement. This Agreement represents the entire
understanding and agreement among the parties with respect to the subject matter
hereof, superseding all prior understandings or communications of any kind,
written or oral. This Agreement may be modified only by an express written
agreement signed by all parties hereto.
14. Miscellaneous.
14.1 Captions. The captions in this Agreement are
inserted for convenience of reference only, and in no way define, describe, or
limit the scope or intent of this Agreement of any of the provisions hereof.
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14.2 Time Periods. Any time periods provided herein which
shall end on a Saturday, Sunday, or legal U.S., Massachusetts or Pennsylvania
holiday, shall extend to 5:00 p.m. of the next full business day.
14.3 Exhibits. All Exhibits to this Agreement are
incorporated herein and made an integral part hereof.
14.4 Governing Law. This Agreement shall be governed by
and interpreted and enforced in accordance with the laws of the Commonwealth of
Pennsylvania.
14.5 Recitals. The recitals set forth above are
incorporated herein as though the same were set forth at length.
14.6 Authority and Capacity. Each party hereto (and each
signatory therefor) hereby represents, warrants, and agrees that it, he, or she
(as applicable) has full power, authority and/or capacity to execute and deliver
this Agreement and the execution and delivery hereof does not require the
consent or approval of any party which has not been obtained.
14.7 Successors and Assigns. This Agreement and its terms
are binding upon, and shall inure to the benefit of, the parties hereto and
their respective successors and assigns.
14.8 No Third Party Beneficiaries. Notwithstanding
anything to the contrary contained herein, no provision of this Agreement is
intended to benefit Paribas, the Lenders, or any party other than the
signatories hereto and their permitted successors and assigns, and no provision
of this Agreement shall be enforceable by any other party.
14.9 Gender; Plural Terms; Persons. The masculine,
feminine, or neuter pronoun shall each include the masculine, feminine, and
neuter genders. A reference to person or entity shall mean a natural person, a
trustee, a corporation, a partnership, and any other form of legal entity. All
references (including pronouns) in the singular or plural number shall be deemed
to have been made, respectively, in the plural or singular number as well, as
the context may require.
14.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which shall constitute one and the same agreement.
14.11 Non-Waiver. The failure of any party hereto in any
one or more instances to insist upon the strict performance of any one or more
of the agreements, terms, covenants, conditions or obligations of this
Agreement, or to exercise any right, remedy or election herein contained, shall
not be construed as a waiver or relinquishment of the right to insist upon such
performance or exercise in the future, and such right shall continue and remain
in full force and effect with respect to any subsequent breach, act or omission.
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14.12 Partial Invalidity. If any of the provisions of
this Agreement, or the application thereof to any person, entity, or
circumstances, shall, to any extent, be invalid or unenforceable, the remainder
of this Agreement, or the application of such provision or provisions to persons
or circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected thereby, and every provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
14.13 Notices.
(a) Any and all notices, demands, consents, approvals,
offers, elections, and other communications required or permitted under this
Agreement shall be deemed adequately given if in writing and the same shall be
delivered either in hand, by telecopier with written confirmation of receipt, or
by mail or Federal Express or similar expedited commercial carrier, addressed to
the recipient of the notice, postpaid and registered or certified with return
receipt requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).
(b) All notices required or permitted to be sent
hereunder shall be deemed to have been given for all purposes of this Agreement
upon the date of acknowledged receipt, in the case of a notice by telecopier,
and in all other cases, upon the date of receipt or refusal, except that
whenever under this Agreement a notice is either received on a day which is not
a Business Day or is required to be delivered on or before a specific day which
is not a Business Day, the day of receipt or required delivery shall
automatically be extended to the next Business Day.
(c) All such notice shall be addressed,
If to NPCA: Nine Penn Center Associates, L.P.
c/o PREIT-Xxxxx
Third Floor
The Bellevue
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Mr. Xxxxxx Xxxxx
[Telecopier No. (000) 000-0000]
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with a copy to:
Obermayer Xxxxxxx Xxxxxxx & Hippel LLP
One Penn Center
19th Floor
0000 Xxxx X. Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
[Telecopier No. (000) 000-0000]
with a copy to:
ERE Yarmouth
Xxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxxxx
[Telecopier No. (000) 000-0000]
If to the REITS: Health and Retirement Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
[Telecopier No. (000) 000-0000]
If to Equitable: The Equitable Life Assurance Society of
The United States
c/o ERE Yarmouth
Xxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxxxx
[Telecopier No. (000) 000-0000]
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with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxxx, Esquire
[Telecopier No. (000) 000-0000]
If to Transportation: Transportation Associates
c/o PREIT-Xxxxx
Third Floor
The Bellevue
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
[Telecopier No. (000) 000-0000]
with a copy to:
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esquire
[Telecopier No. (000) 000-0000]
(d) By notice given as herein provided, the parties
hereto and their respective successor and assigns shall have the right from time
to time and at any time during the terms of this Agreement to change their
respective addresses effective upon receipt by the other parties of such notice
and each shall have the right to specify as its address any other address within
the United States of America.
14.14 Recording. Neither this Agreement nor any
memorandum thereof, or the like, shall be recorded in any real estate records
maintained for the benefit of the public in any jurisdiction for any purpose.
14.15 Condition Precedent. As provided in paragraph D of
the Background of this Agreement, the agreements and understandings set forth
herein are expressly conditioned upon the completion of the Note Closing under
the terms of the Note Purchase Agreement. Furthermore, in the event that the
Note Closing has not occurred (for any reason on or before May 26, 1998, then
this Agreement shall terminate and be of no further force or effect (without
notice or any act of any party required to effect such termination).
14.16 Financials. The NPCA Parties shall provide copies
of audited financial statements for the NPCA partnership with respect to the
1995, 1996 and 1997 calendar years and unaudited financials for the period
ending March 31, 1998, such financial statements having been prepared at NPCA's
sole cost and expense. The NPCA shall, at the REITS' expense, cooperate with the
REITS in the preparation of audited financial statements for the Real
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Estate for the above listed periods. NPCA and its accountants shall provide the
REITS and their accountants with such certifications with respect to such
financials as the REITS shall from time to time reasonably require. Each of the
REITS hereby agrees to indemnify, defend, and hold harmless each of the NPCA
Parties with respect to any and all suits, claims, xxxxx, expenses, and the like
(including all reasonable attorneys fees) which arise out of any of the
certifications provided under the terms of this Section 14.16 (excepting,
however, the gross negligence or willful misconduct of the subject NPCA Party).
To the extent that any of the foregoing requires any services from NPCA's
auditors not already incurred by NPCA or ordinarily contracted for by NPCA, then
HRPT shall pay for the same upon demand therefor.
14.17. NON-LIABILITY OF TRUSTEES. THE DECLARATIONS OF
TRUST ESTABLISHING THE REITS, A COPY OF EACH OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (COLLECTIVELY, THE "DECLARATIONS"), IS DULY FILED WITH THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT
THE NAMES "HEALTH AND RETIREMENT PROPERTIES TRUST" AND "1735 MARKET STREET
PROPERTIES TRUST", RESPECTIVELY, REFER TO THE TRUSTEES UNDER THE DECLARATIONS
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NOT
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE REITS SHALL BE HELD TO
ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATIONS OF, OR CLAIM
AGAINST, THE REITS. ALL PERSONS DEALING WITH THE REITS, IN ANY WAY, SHALL LOOK
ONLY TO THE ASSETS OF THE REITS FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF
ANY OBLIGATIONS.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by their duly authorized representatives, intending to be legally
bound, as of the date written above.
NINE PENN CENTER ASSOCIATES, L.P.
a Pennsylvania limited partnership, by its partners:
BY: The Equitable Life Assurance Society
of the United States, a New York corporation:
By: /s/ Xxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Investment Officer
BY: Transportation Associates, a Pennsylvania limited
partnership, by a general partner:
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: General Partner
HEALTH AND RETIREMENT PROPERTIES
TRUST, a Maryland real estate investment trust:
BY: /s/
Name:
Title:
TRANSPORTATION ASSOCIATES, a
Pennsylvania limited partnership:
BY: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: General Partner
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES, a
New York corporation:
BY: /s/ Xxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Investment Officer
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0000 XXXXXX XXXXXX PROPERTIES
TRUST, a Maryland real estate investment trust:
BY: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title:
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Exhibit A to the Forbearance and Restructuring Agreement has been
omitted and will be provided to the Securities and Exchange Commission upon
request. Exhibit A contains details regarding the tax structure of the
transaction, pro ration of expenses and income pending the acquisition of the
property and certain operational matters.
