<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-K
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
/ / TRANSITION REPORT PURSUANT TO SECTION 13(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM _________ TO _________.
COMMISSION FILE NUMBER: 1-13589
PRIME GROUP REALTY TRUST
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 36-4173047
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
77 WEST WACKER DRIVE, SUITE 3900, CHICAGO, ILLINOIS 60601
(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code:
(312) 917-1300
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<S> <C>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
- ---------------------------------------------- ----------------------------------------------
Common Shares of Beneficial Interest, New York Stock Exchange
$.01 par value per share
</TABLE>
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes __X__ No _____
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ] / /
The aggregate market value of the shares of common stock held by
non-affiliates was approximately $266,090,000 million based on the closing price
on the New York Stock Exchange for such shares on March 2, 1998.
The number of the Registrant's shares of common stock outstanding was
12,980,000 as of March 2, 1998.
DOCUMENTS INCORPORATED BY REFERENCE
Part III of this report incorporates information by reference from the
definitive Proxy Statement for the Annual Meeting of Stockholders, to be held in
May 1998.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART I
ITEM 1. BUSINESS
BACKGROUND AND FORMATION TRANSACTION
Prime Group Realty Trust (the "Company"), a Maryland real estate investment
trust, through its controlling interest in Prime Group Realty, L.P., a Delaware
limited partnership (the "Operating Partnership"), is engaged in the management,
leasing, acquisition, development, redevelopment, construction, marketing,
financing and other activities relating to commercial office and industrial
properties primarily located in the Chicago, Illinois metropolitan area (the
"Chicago Metropolitan Area"). As of December 31, 1997 the Company's portfolio of
properties included 19 office properties (the "Office Properties"), 45
industrial properties (the "Industrial Properties"), one parking facility and
one retail center (collectively the "Properties") containing an aggregate of 9.9
million net rentable square feet.
The Company was incorporated in Maryland in July 1997 and formed to succeed
and expand the office and industrial real estate business of The Prime Group,
Inc., an Illinois corporation ("PGI"). On November 17, 1997, the Company
completed an initial public offering (the "Offering") of 12,380,000 common
shares of beneficial interest (the "Common Shares") and a private placement (the
"Private Placement") of 2,000,000 preferred shares of beneficial interest (the
"Preferred Shares"). The offering price of the Common Shares and the Preferred
Shares was $20.00 per share resulting in gross proceeds of $247.6 million and
$40.0 million, respectively. In addition, a joint venture partnership owned by
PGI, Blackstone, BRE/Primestone Investment L.L.C. and BRE/Primestone Management
Investment L.L.C. purchased 4,569,893 common units of the Operating Partnership
("Common Units") resulting in gross proceeds of $85.0 million. On December 15,
1997, the underwriters of the Offering exercised an over allotment option and,
accordingly, the Company issued an additional 600,000 Common Shares and received
gross proceeds of $12.0 million. The aggregate proceeds to the Company of the
Offering, the Private Placement and the exercise of the over-allotment option,
net of underwriter's discount, advisory fee and offering costs aggregating $27.6
million, were approximately $272.0 million. The Company contributed the net
proceeds of the Offering, the Private Placement and the exercise of the
over-allotment option to the Operating Partnership.
Concurrently with the consummation of the Offering, the Company and the
Operating Partnership, together with the Operating Partnership's limited
partners, including certain partners of PGI, engaged in certain transactions
(the "Formation Transactions") which, among other things, resulted in the
contribution to and the acquisition by the Company and Operating Partnership of
63 of the 66 Properties.
The Formation Transactions included the following:
- PGI contributed to the Operating Partnership (i) its ownership interests
in the property partnerships ("PGI Partnerships") that own certain of the
Properties (the "Predecessor Properties"), (ii) its rights to purchase the
subordinate mortgage encumbering the PGI Partnership that owns the 77 West
Wacker Drive Building from certain third-party lenders and its rights to
acquire certain third parties' ownership interests in the PGI Partnerships
that own certain Predecessor Properties and (iii) substantially all of its
assets and liabilities relating to its office and industrial development,
leasing and management business. In exchange, PGI received 3,465,000
Common Units (with an aggregate value of $69.3 million, assuming the value
of each Common Unit is equal to the initial offering price of a Common
Share). As described below, PGI contributed 3,375,000 of such Common Units
to a joint venture between PGI and certain affiliates of Blackstone Real
Estate Advisors, L.P. and certain of its affiliates ("Blackstone"),
BRE/Primestone Investment L.L.C., a Delaware limited liability company and
BRE/Primestone Management Investment L.L.C., a Delaware limited liability
company (the "Primestone Joint Venture"), resulting in the direct
ownership by PGI of a 0.5% limited partnership interest in the Operating
Partnership as of December 31,
2
<PAGE>
1997. In addition, Jeffrey A. Patterson, an executive of the Company,
contributed his interest in the assets of the office and industrial
division of PGI. In exchange, Mr. Patterson received 110,000 Common Units,
representing approximately a 0.5% limited partnership interest in the
Operating Partnership as of December 31, 1997.
- Certain individuals (collectively, the "NAC Contributors") contributed six
office and 14 industrial properties to the Operating Partnership. In
exchange, the NAC Contributors received 927,100 common units of general
partnership interest ("GP Common Units"), representing a 3.9% general
partnership interest in the Operating Partnership as of December 31, 1997
(with an aggregate value of $18.5 million, assuming the value of each
Common Unit is equal to the initial public offering price of a Common
Share). In addition, the Operating Partnership paid the NAC Contributors
approximately $14.8 million in cash.
- Certain individuals (collectively, the "IBD Contributors") contributed to
the Operating Partnership their ownership interests in one office property
and six industrial properties in exchange for 922,317 Common Units
representing a 3.9% limited partnership interest in the Operating
Partnership as of December 31, 1997 (with an aggregate value of $18.4
million, assuming the value of each Common Unit is equal to the initial
public offering price of a Common Share). In addition, the Operating
Partnership paid the IBD Contributors approximately $0.9 million in cash,
assumed approximately $6.4 million in debt and provided the IBD
Contributors a note in the amount of $3.9 million (the properties
contributed by the NAC Contributors and IBD Contributors are collectively
the "Contribution Properties).
- PGI, Blackstone, BRE/Primestone Investment L.L.C. and BRE/Primestone
Management Investment L.L.C. formed the Primestone Joint Venture to invest
in Common Units. To capitalize the Primestone Joint Venture, PGI
contributed to the Primestone Joint Venture 3,375,000 of the Common Units
it received in exchange for its contributions to the Operating
Partnership. In addition, Primestone Joint Venture purchased 4,569,893
Common Units from the Operating Partnership at a price per Common Unit
equal to the per share initial public offering price of the Common Shares,
net of an amount equal to the underwriting discounts and commissions
applicable to the Common Shares, simultaneously with the other Formation
Transactions. As a result, the Primestone Joint Venture owns 7,944,893
Common Units, representing a 34.2% limited partnership interest in the
Operating Partnership as of December 31, 1997.
- The Operating Partnership borrowed $83.5 million under three separate
mortgage loans secured by certain of the Contribution Properties (the "New
Mortgage Notes") and assumed $10.4 million in mortgage notes.
- The Operating Partnership repaid third-party lenders approximately $359.9
million (including prepayment fees) of obligations of the entities that
own the Properties (the "Property Partnerships") or indebtedness
encumbering the Properties.
- The Operating Partnership obtained a line of credit (the "Credit
Facility") used to fund future acquisitions and to replace the outstanding
letters of credit which secure the payment of principal and interest on
$74.5 million of tax-exempt bond financing (the "Tax-Exempt Bonds").
- The Operating Partnership paid approximately $40.0 million to acquire four
office properties and one industrial property (collectively, the
"Acquisition Properties") and approximately $5.2 million to acquire the
assets and business of Continental Offices, Ltd. and Continental Offices,
Ltd. Realty (collectively, the "Continental Management Business") from
third parties. The purchase price for the Acquisition Properties and the
Continental Management Business was in each case negotiated in
arm's-length transactions with third parties based on a multiple of the
net operating income of each of the Acquisition Properties and the
Continental Management Business, respectively.
3
<PAGE>
- The Operating Partnership paid approximately $1.8 million in cash to third
parties for the balance of the ownership interests and subordinate debt
interests relating to certain of the Predecessor Properties.
- The Operating Partnership paid approximately $1.7 million in fees to
obtain the Credit Facility and the New Mortgage Notes.
- The Operating Partnership contributed the Continental Management Business,
the health club facility located in the 77 West Wacker Drive Building and
the office and industrial development, leasing and property management
business to a newly formed company, Prime Group Realty Services, Inc. (the
"Services Company") in exchange for (i) 100% of the non-voting
participating preferred stock of the Services Company (the "Services
Company Preferred Stock") and (ii) a promissory note issued by the
Services Company with an initial principal balance of $4.8 million,
bearing interest at 11% per annum (the "Note"). Messrs. Reschke and Curto
contributed an aggregate of $50,000 for 100% of the Services Company's
voting common stock. The Operating Partnership is expected to receive
approximately 95.0% of the economic benefits of the operations of the
Services Company by virtue of payments on the Note and distributions in
respect of its ownership of the Services Company Preferred Stock.
Upon completion of the Offering and the consummation of the Formation
Transactions, the Company owned 63 properties, which consisted of 16 office
properties, 45 industrial properties, one parking facility and one retail center
containing an aggregate of 8.1 net rentable square feet. Between the closing of
the Offering and December 31, 1997, the Company acquired one additional property
and the first mortgage notes of two additional properties. See "Recent
Developments".
The Company currently is involved in only one industry segment, the
ownership, management and development of real estate. Therefore, all of the
financial statements contained herein relate to this industry segment. See
"Financial Statements and Supplementary Data".
TAX STATUS
The Company has elected to be taxed as a REIT under Sections 856 through 860
of the Internal Revenue Code of 1986, as amended. As a REIT, the Company
generally will not be subject to federal income tax at the corporate level on
income it distributes to its stockholders so long as it distributes at least 95%
of its taxable income (excluding any net capital gain) each year. Since the
Offering the Company believes that it has complied with the tax regulations to
maintain its REIT status. If the Company fails to qualify as a REIT in any
taxable year, the Company will be subject to federal income tax (including any
applicable alternative minimum tax) on its taxable income at regular corporate
rates. Even if the Company qualifies as a REIT, the Company may be subject to
certain state and local taxes on its income and property.
BUSINESS AND GROWTH STRATEGIES
The Properties owned by the Company as of December 31, 1997 contain
approximately 9.9 million rentable square feet. The Company currently intends to
invest primarily in the acquisition, development and redevelopment of commercial
real estate properties located in the (i) Chicago Central Business District
("Chicago CBD") office market, (ii) suburban Chicago office market, (iii)
Chicago Metropolitan Area warehouse/distribution market and (iv) Chicago
Metropolitan Area overhead crane/manufacturing market. The Company's primary
business objective is to achieve sustainable long-term growth in cash flow per
share and to enhance the value of its portfolio through the implementation of
effective operating, acquisition, development and financing strategies. The
Company believes that opportunities exist to increase cash flow per share by:
- contractual rent increases in existing leases;
4
<PAGE>
- leasing all or a portion of the existing vacant space in the Properties;
- acquiring office and industrial properties (or entities that own or
control such properties) at or below replacement cost and at positive
spreads to its cost of capital;
- increasing rental and occupancy rates and decreasing tenant concessions as
vacancy rates in the Company's submarkets generally continue to decline;
- developing office and industrial properties for the benefit of the Company
where such development will result in a favorable risk-adjusted return on
investment;
- expanding its property management, leasing and corporate advisory services
business; and
- using, when available, long-term, tax-exempt bonds (which typically have
lower interest costs) to finance the acquisition and renovation of
existing industrial facilities and the development of new industrial
facilities.
The Company believes that a number of factors will enable it to achieve its
business objectives, including: (a) the opportunity to lease available space at
attractive rental rates because of increasing demand and, with respect to the
Office Properties, the present limited level of new construction in the Chicago
Metropolitan Area; (b) the presence of distressed sellers and inadvertent owners
(through foreclosure or otherwise) of office and industrial properties in the
Company's submarkets, as well as the Company's ability to acquire properties
with Common Units (thereby deferring the seller's taxable gain), all of which
create enhanced acquisition opportunities; and (c) the quality and location of
the Properties.
Management believes that the Company is well-positioned to take advantage of
these opportunities because of its extensive experience in its markets, its
seasoned management team, its significant land holdings and option rights and
its ability to develop, redevelop, lease and efficiently manage office and
industrial properties. In addition, the Company believes that public ownership
and its capital structure will provide the Company with enhanced access to the
public debt and equity capital markets and new opportunities for growth.
OPERATING STRATEGY. The Company will focus on enhancing its cash flow per
share by: (a) maximizing cash flow from its Properties through contractual rent
increases, pro-active leasing programs and effective property management; (b)
managing operating expenses through the use of in-house management, leasing,
marketing, financing, accounting, legal, construction, management and data
processing functions; (c) maintaining and developing long-term relationships
with a diverse tenant group; (d) attracting and retaining motivated employees by
providing financial and other incentives to meet the Company's operating and
financial goals; and (e) continuing to emphasize value-added capital
improvements to enhance the Properties' competitive advantages in their
submarkets.
ACQUISITION STRATEGY. The Company will seek to increase its cash flow per
share by acquiring additional office and industrial properties at prices below
replacement cost, including properties that: (a) may provide attractive initial
yields and significant potential for growth in cash flow from property
operations; (b) are well-located, high quality and competitive in their
respective submarkets; (c) are located in the Company's existing submarkets
and/or in other strategic submarkets where the demand for office and industrial
space exceeds available supply; or (d) have been undermanaged or are otherwise
capable of improved performance through intensive management, marketing and
leasing.
The Company plans to concentrate its acquisition activities in the Chicago
Metropolitan Area and, to a lesser extent, in other midwestern markets. The
Company believes that attractive opportunities exist to acquire office and
industrial properties in these markets at prices below replacement cost. Each
acquisition opportunity will be reviewed to evaluate whether it meets one or
more of the following criteria: (a) potential for higher occupancy levels and/or
rents as well as for lower tenant turnover and/or operating expenses; (b)
ability to generate returns in excess of the Company's weighted average cost of
capital, taking
5
<PAGE>
into account the estimated costs associated with renovation and tenant turnover
(I.E., tenant improvements and leasing commissions); and (c) a purchase price at
or below estimated replacement cost.
The Company believes it has certain competitive advantages that enhance its
ability to identify and complete acquisitions on a timely and efficient basis,
including: (a) management's significant local market experience with, and
knowledge of, properties, submarkets and potential tenants; (b) management's
long-standing relationships with commercial real estate brokers and
institutional and other owners of commercial real estate in the Chicago
Metropolitan Area; (c) the Company's fully-integrated real estate operations,
which allow it to quickly evaluate and respond to acquisition opportunities; (d)
the Company's ability to access relatively low-cost financing through the
capital markets; and (e) management's reputation as an experienced purchaser of
office and industrial properties with the ability to execute transactions in an
efficient and timely manner. The Company also believes it could add a number of
office and industrial properties to its portfolio without the need for a
significant increase in general and administrative expenses, due to the
Company's expertise and depth of management and the efficiencies created by its
centralized management structure.
The Company believes that many of the owners of commercial real estate
properties located in the Chicago Metropolitan Area have a low tax basis in
their properties and have the corresponding potential for the recognition of
substantial taxable gains as a result of the disposition of such properties.
Management believes that the Company's capital structure and ability to acquire
properties in exchange for Common Units, and thereby defer a seller's potential
taxable gain, will enhance the ability of the Company to consummate transactions
quickly and to structure more competitive acquisitions than other real estate
companies in the market which lack the Company's access to capital and ability
to acquire property with Common Units.
DEVELOPMENT STRATEGY. As opportunities arise and where market conditions
support a favorable risk-adjusted return on investment, the Company intends to
pursue opportunities for growth through the development of new office and
industrial properties. The Company believes that the strength and experience of
its management in the development of office and industrial properties will
provide it with a competitive advantage in evaluating and pursuing opportunities
to develop additional properties. During the next few years, the Company expects
that most of its development activities will be focused on suburban office and
industrial properties in the Chicago Metropolitan Area.
Based on ongoing marketing activities and discussions with prospective
tenants, the Company expects that over the next several years there will be
significant demand from several large tenants that are unable to find large
blocks of contiguous Class A office space in downtown Chicago which may lead to
significant office development opportunities. The Company believes that its
significant land holdings and land option rights will provide it with a distinct
advantage in competing for future development opportunities. The Company owns
approximately 83.4 acres and has rights to acquire approximately 157.2 acres of
developable land, which management believes could be developed with
approximately 1.2 million square feet of additional office space in the Chicago
CBD and approximately 4.4 million square feet of additional industrial space
primarily in the Chicago Metropolitan Area. The Company's option rights include
an option to acquire a development site containing approximately 58,000 square
feet known as 300 N. LaSalle in downtown Chicago which, to the extent the
Company is able to obtain significant preleasing commitments for such a project,
the Company believes it could develop as an office or mixed-use project
containing up to approximately 1.2 million net rentable square feet.
The Services Company's corporate advisory activities with third parties are
expected to give the Company further access to future development opportunities.
The Services Company also will continue to undertake build-to-suit projects for
third parties.
FINANCING STRATEGY. The Company's financing strategy and objectives are
determined by the Company's Board of Trustees. The Company presently intends to
operate with a ratio of debt-to-total market capitalization (defined as the
total debt of the Company as a percentage of the sum of the market value of
6
<PAGE>
issued and outstanding shares, including the Common Units exchangeable for
Common Shares, plus total debt) in the range of 25.0% to 50.0%. The Company also
intends to operate in a manner that will facilitate its ability to secure an
investment grade rating on future unsecured debt. However, such objectives may
be altered without the consent of the Company's shareholders, and the Company's
organizational documents do not limit the amount or type of indebtedness that
the Company may incur.
The Company intends to use one or more sources of capital for future
acquisitions and development activities. These capital sources may include
undistributed cash flow, borrowings under certain acquisition facilities,
proceeds from the issuance of long-term, tax-exempt bonds and other debt or
equity securities and other bank and/or institutional borrowings.
RECENT DEVELOPMENTS
During the period November 17, 1997 through December 31, 1997, the Company
increased its office portfolio from 16 to 19 properties by acquiring one
suburban Milwaukee, Wisconsin property and the first mortgage notes of one
Chicago CBD property and one suburban Chicago property encompassing in total
approximately 1.8 million square feet for an aggregate purchase price of
approximately $172.2 million consisting of $167.2 million in cash and Common
Units with an aggregate value of $5.1 million (representing a 1.1% limited
partnership interest in the Operating Partnership as of December 31, 1997). In
addition, 801 Technology Way was completed and included in the Company's
industrial portfolio.
Set forth below is a brief description of the property acquired by the
Company during the period November 17, 1997 through December 31, 1997:
2675 N. MAYFAIR. 2675 N. Mayfair is an office building located in
Wauwatosa, Wisconsin. It contains approximately 102,660 net rentable square feet
of office space. As of December 31, 1997, the property was 96.0% leased to 14
tenants.
The Company also acquired the first mortgage notes encumbering the following
properties during the period November 17, 1997 through December 31, 1997:
CONTINENTAL TOWERS. Continental Towers consists of three 12-story office
towers in Rolling Meadows, Illinois that contain approximately 916,000 net
rentable square feet of office space. As of December 31, 1997, the property was
99.1% leased to 71 tenants. The operations of Continental Towers have been
consolidated with those of the company for financial statement purposes.
180 N. LASALLE STREET. 180 N. LaSalle Street is a 39-story office building
in the Chicago CBD that contains approximately 729,000 net rentable square feet
of office space. As of December 31, 1997, the property was 81.4% leased to 95
tenants. The operations of 180 N. LaSalle have been reflected as a note
receivable for financial statement purposes.
On March 25, 1998, the Company issued and sold 2,579,994 Common Shares in a
private placement to institutional investors. The net proceeds to the Company
from the private placement were approximately $49.25 million, and are expected
to be used for additional property acquisitions. The Company has granted certain
registration rights to the institutional investors with respect to the Common
Shares purchased by them in the private placement.
In addition, 801 Technology Way was available for occupancy and included in
the Company's industrial portfolio at December 31, 1997.
COMPETITION
The Company competes with other owners and developers that may have greater
resources and more experience than the Company. Additionally, the number of
competitive properties in any particular market or submarket in which the
Properties are located could have a material adverse effect on both the
7
<PAGE>
Company's ability to lease space at the Properties or any newly-acquired
property and on the rents charged at the Properties. The Company believes that
the Credit Facility and the Company's access as a public company to the capital
markets to raise funds during periods when conventional sources of financing may
be unavailable or prohibitively expensive provide the Company with substantial
competitive advantages. Further, the Company believes that its capital structure
and ability to acquire properties in exchange for Common Units, and thereby
defer a seller's potential taxable gain, enhance the Company's ability to
consummate transactions quickly and to structure more competitive acquisitions
than other real estate companies in the market which lack the Company's access
to capital and ability to acquire property with Common Units. See "Business and
Growth Strategies--Acquisition Strategy". The Company believes that the number
of real estate developers has decreased as a result of the recessionary market
conditions and tight credit markets during the early 1990s as well as the
reluctance on the part of more conventional financing sources to fund
development and acquisition projects. In addition, the Company believes that it
is one of a limited number of publicly-traded real estate companies primarily
focusing on the office and industrial market in the Chicago Metropolitan Area.
GOVERNMENT REGULATION
ENVIRONMENTAL MATTERS. All of the Properties were subject to Phase I or
similar environmental assessments by independent environmental consultants in
connection with the formation of the Company. Phase I assessments are intended
to discover information regarding, and to evaluate the environmental condition
of, the surveyed property and surrounding properties. Phase I assessments
generally include an historical review, a public records review, an
investigation of the surveyed site and surrounding properties, and preparation
and issuance of a written report, but do not include soil sampling or subsurface
investigations.
The Company is aware of environmental contamination at certain of the older
Industrial Properties: the Chicago Enterprise Center (the "CEC"), the East
Chicago Enterprise Center (the "ECEC") and the Hammond Enterprise Center (the
"HEC"), which are already in remediation programs sponsored by the appropriate
state environmental agencies. PGI has contractually agreed to retain liability,
and indemnify the Company, for environmental remediation with regard to these
Industrial Properties, which environmental consultants have estimated will cost,
in the aggregate, up to $3.2 million. Based on such estimates, certain of the
Property Partnerships have recorded provisions for environmental remediation
costs totaling $3.2 million.
The Company also is aware of contamination at 455 Academy Drive, one of the
Contribution Properties. The current tenant of the Property, National Service
Industries, has provided the Company with an indemnity for all of the costs of
environmental remediation regarding the Property caused by National Service
Industries either knowingly or unknowingly. The Company also is aware of
contamination at 1301 E. Tower Road, one of the properties contributed by the
NAC Contributors. The Property has been submitted into a remediation program
sponsored by the Illinois Environmental Protection Agency. The Company's
environmental consultants estimate that the remedial action will cost
approximately $200,000.
The Company believes that the other Properties are in compliance in all
material respects with all federal, state and local laws, ordinances and
regulations regarding hazardous or toxic substances. The Company has not been
notified by any governmental authority, and is not otherwise aware, of any
material noncompliance, liability or claim relating to hazardous or toxic
substances in connection with any of its other Properties. None of the Company's
environmental assessments of the Properties has revealed any environmental
liability that, after giving effect to the contractual indemnities described
above, the Company believes would have a material adverse effect on the
Company's financial condition or results of operations taken as a whole, nor is
the Company aware of any such material environmental liability. Nonetheless, it
is possible that the Company's assessments do not reveal all environmental
liabilities or that there are material environmental liabilities of which the
Company is unaware. Moreover, there can be no assurance that (i) future laws,
ordinances or regulations will not impose any material environmental
8
<PAGE>
liability or (ii) the current environmental condition of the Properties will not
be affected by tenants, by the condition of land or operations in the vicinity
of the Properties (such as the presence of underground storage tanks) or by
third parties unrelated to the Company. If compliance with the various laws and
regulations, now existing or hereafter adopted, exceeds the Company's budgets
for such items, the Company's ability to make expected distributions to
shareholders could be adversely affected.
COSTS OF COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT. Under the ADA,
all public accommodations and commercial facilities are required to meet certain
federal requirements related to access and use by disabled persons. These
requirements became effective in 1992. Compliance with the ADA requirements
could require removal of access barriers, and noncompliance could result in the
imposition of fines by the federal government or an award of damages to private
litigants. Although the Company believes that the Properties are substantially
in compliance with these requirements, the Company may incur additional costs to
comply with the ADA. Although the Company believes that such costs will not have
a material adverse effect on the Company, if required changes involve a greater
amount of expenditures than the Company currently anticipates, the Company's
ability to make expected distributions could be adversely affected.
OTHER REGULATIONS. The Properties are also subject to various federal,
state and local regulatory requirements, such as state and local fire and life
safety requirements. Failure to comply with these requirements could result in
the imposition of fines by governmental authorities or awards of damages to
private litigants. The Company believes that the Properties are currently in
material compliance with all such regulatory requirements. However, there can be
no assurance that these requirements will not be changed or that new
requirements will not be imposed which would require significant unanticipated
expenditures by the Company and could have an adverse effect on the Company's
funds from operations and expected distributions.
INSURANCE
Management believes that the Properties are covered by adequate
comprehensive liability, rental loss, and all-risk insurance, provided by
reputable companies, with commercially reasonable deductibles, limits and policy
specifications customarily carried for similar properties. There are, however,
certain types of losses which may be either uninsurable or not economically
insurable, such as losses due to floods, riots or acts of war. Should an
uninsured loss occur, the Company could lose both its invested capital in, and
anticipated profits from, the property.
EMPLOYEES
As of December 31, 1997, the Company had 226 full-time employees.
ITEM 2. PROPERTIES
GENERAL
The Company (through the Operating Partnership) owns 19 Office Properties
encompassing an aggregate of approximately 4.1 million net rentable square feet,
45 Industrial Properties encompassing an aggregate of approximately 5.8 million
net rentable square feet, one parking facility with 398 parking spaces and one
retail center. The Properties are owned in fee simple by the respective Property
Partnerships, except for Continental Towers and 180 N. LaSalle. The Company owns
the first mortgage notes of these two properties. Fourteen of the 19 Office
Properties and 38 of the 45 Industrial Properties are located in the Chicago
Metropolitan Area. In the Chicago Metropolitan Area, the most notable Office
Property is the 77 West Wacker Drive Building, a premier 50-story landmark
office tower in downtown Chicago, which contains approximately 944,600 net
rentable square feet. The building has won numerous awards, including, in 1993,
the Sun-Times Real Estate Development of the Year and the Best New Building
Award from Friends of Downtown. Three Office Properties are located in
Knoxville, Tennessee, one Office
9
<PAGE>
Property is located in downtown Nashville, Tennessee, one Office Property is
located in the Milwaukee, Wisconsin metropolitan area, six Industrial Properties
are located in the Columbus, Ohio metropolitan area, the parking facility is
located in Knoxville, Tennessee and the retail center is located in a suburb of
Chicago. As of December 31, 1997, the Office Properties were approximately 91.9%
leased to more than 390 tenants, and the Industrial Properties were
approximately 87.5% leased to more than 65 tenants.
Management has developed or redeveloped, leased and managed 38 of the 45
Industrial Properties (79.5%, in terms of net rentable square feet) and 13 of
the 19 Office Properties (69.3%, in terms of net rentable square feet). In the
course of such development and redevelopment, the Company has acquired
experience across a broad range of development and redevelopment projects. For
example, the Company has developed both Office Properties, such as the 77 West
Wacker Drive Building, and Industrial Properties, such as the Contribution
Properties. The Company also has redeveloped both Office Properties, such as 201
4th Avenue in Nashville, and Industrial Properties, such as the CEC, the ECEC
and the HEC, in the Chicago Metropolitan Area. The Company believes that all of
its Properties are well maintained and, based on recent engineering reports, do
not require significant capital improvements.
In addition to its interests in the Office Properties and Industrial
Properties, the Company owns approximately 83.4 acres and has the rights to
acquire an additional 157.2 acres of developable land including rights to
acquire one development site located in the Chicago CBD containing approximately
58,000 square feet. Management believes that approximately 1.2 million square
feet of additional office space in the Chicago CBD and approximately 4.4 million
square feet of additional industrial space, primarily in the Chicago
Metropolitan Area can be developed on this land. The Company also has an option
to acquire one additional industrial property, 901 Technology Way, in the
Libertyville Business Park, in Libertyville, Illinois, from certain of the IBD
Contributors and a 15-year right of first offer to develop all or any portion of
360 acres of undeveloped office and industrial land in the Huntley Business
Park, in Huntley, Illinois, currently owned and controlled by an affiliate of
PGI, subject to a participation interest in such property held by a third-party
lender.
10
<PAGE>
The Office Properties are leased to tenants either on a net basis with
tenants obligated to pay their proportionate share of real estate taxes,
insurance, utility and operating expenses or on a full service basis, with the
landlord responsible for the payment of taxes, insurance and operating expenses
up to the amount incurred during the tenant's first year of occupancy ("Base
Year") or a negotiated amount approximating the tenant's pro rata share of real
estate taxes, insurance and operating expenses ("Expense Stop"). The tenant pays
its pro rata share of increases in expenses above the Base Year or Expense Stop.
Most of the leases for the Industrial Properties are written on a net basis,
with tenants paying their proportionate share of real estate taxes, insurance,
utility and operating expenses.
PROPERTIES
The following table sets forth certain information relating to each of the
Properties as of December 31, 1997, unless indicated otherwise. Through the
Operating Partnership, the Company owns a 100% interest in all of the Office
Properties and the Industrial Properties, except for Continental Towers and 180
N. LaSalle. The Company owns the first mortgage notes on these properties.
<TABLE>
<CAPTION>
NET PERCENTAGE
YEAR BUILT/ RENTABLE LEASED AS OF
PROPERTY LOCATION RENOVATED SQUARE FEET 12/31/97(%)
- -------------------------------------------- ----------------------- ----------------- ----------- -------------
<S> <C> <C> <C> <C>
OFFICE PROPERTIES (OWNED):
77 West Wacker Drive...................... Chicago, IL 1992 944,556 96.0
1990 Algonquin Road/2000-2060 Algonquin
Road (Salt Creek Office Center)(1)...... Schaumburg, IL 1979/1986 125,922 92.0
1699 E. Woodfield Road (Citibank Office
Plaza).................................. Schaumburg, IL 1979 105,400 99.3
555 Huehl Road............................ Northbrook, IL 1987 74,000 100.0
201 4th Avenue N.......................... Nashville, TN 1968/1985 250,566 91.0
620 Market Street......................... Knoxville, TN 1988 93,711 91.4
625 Gay Street............................ Knoxville, TN 1988 91,426 90.0
4823 Old Kingston Pike.................... Knoxville, TN 1988 34,638 100.0
2675 N. Mayfair........................... Wauwatosa, WI 1979 102,660 96.0
941-961 Weigel Drive...................... Elmhurst, IL 1989/1994 123,077 100.0
4100 Madison Street....................... Hillside, IL 1978 24,536 58.2
350 N. Mannheim Road...................... Hillside, IL 1977/1987 4,850 --
1600-1700 167th Street.................... Calumet City, IL 1981 65,394 59.5
4343 Commerce Court....................... Lisle, IL 1989 170,708 90.0
1301 E. Tower Road........................ Schaumburg, IL 1992 50,400 100.0
280 Shuman Blvd........................... Naperville, IL 1979 65,001 97.0
2205-2255 Enterprise Drive................ Westchester, IL 1987 129,574 97.0
OFFICE PROPERTIES (FOR WHICH THE COMPANY
OWNS A MORTGAGE NOTE):
Continental Towers (2).................... Rolling Meadows, IL 1977/1981 916,000 99.1
180 N. LaSalle (3)........................ Chicago, IL 1982/1998 729,000 81.4
----------- -----
Office Properties Subtotal................ 4,101,419 91.9
----------- -----
INDUSTRIAL PROPERTIES:
WAREHOUSE/DISTRIBUTION FACILITIES:
425 E. Algonquin Road..................... Arlington Heights, IL 1978 304,506 100.0
1001 Technology Way....................... Libertyville, IL 1996 212,831 100.0
3818 Grandville/1200 Northwestern......... Gurnee, IL 1961/1990 345,232 100.0
306-310 Era Drive......................... Northbrook, IL 1984 36,495 100.0
2160 McGaw Road........................... Obetz, OH 1974 310,100 100.0
4849 Groveport Road....................... Obetz, OH 1968 132,100 100.0
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
NET PERCENTAGE
YEAR BUILT/ RENTABLE LEASED AS OF
PROPERTY LOCATION RENOVATED SQUARE FEET 12/31/97(%)
- -------------------------------------------- ----------------------- ----------------- ----------- -------------
<S> <C> <C> <C> <C>
2400 McGaw Road........................... Obetz, OH 1972 86,400 100.0
5160 Blazer Memorial Parkway (4).......... Dublin, OH 1983 85,962 66.8
600 London Road........................... Delaware, OH 1981 52,441 100.0
1401 S. Jefferson......................... Chicago, IL 1965/1985 17,265 100.0
1051 N. Kirk Road......................... Batavia, IL 1990 120,004 100.0
4211 Madison Street....................... Hillside, IL 1977/1992 90,344 100.0
200 E. Fullerton Avenue................... Carol Stream, IL 1968/1995 66,254 100.0
350 Randy Road............................ Carol Stream, IL 1974 25,200 87.5
4248, 4250 and 4300 Madison Street........ Hillside, IL 1980 127,129 100.0
370 Carol Lane............................ Elmhurst, IL 1977/1994 60,290 100.0
388 Carol Lane............................ Elmhurst, IL 1979 40,920 88.4
342-346 Carol Lane........................ Elmhurst, IL 1989 67,935 100.0
343 Carol Lane............................ Elmhurst, IL 1989 30,084 100.0
4160-4190 Madison Street.................. Hillside, IL 1974/1992 79,532 100.0
11039 Gage Avenue......................... Franklin Park, IL 1965/1993 21,935 100.0
11045 Gage Avenue......................... Franklin Park, IL 1970/1992 136,600 100.0
550 Kehoe Blvd............................ Carol Stream, IL 1997 44,575 100.0
475 Superior Avenue....................... Munster, IN 1989 450,000 100.0
801 Technology Way........................ Libertyville, IL 1997 68,824 63.4
OVERHEAD CRANE/MANUFACTURING FACILITIES:
1301 Ridgeview Drive...................... McHenry, IL 1995 217,600 100.0
515 Huehl Road/500 Lindberg............... Northbrook, IL 1988 201,244 100.0
455 Academy Drive......................... Northbrook, IL 1976 105,444 100.0
4411 Marketing Place...................... Groveport, OH 1984 65,804 100.0
Chicago Enterprise Center................... Chicago, IL 1916/1991-1996
13535-A S. Torrence Avenue................ 384,806 37.9
13535-B S. Torrence Avenue................ 239,752 100.0
13535-C S. Torrence Avenue................ 99,333 100.0
13535-D S. Torrence Avenue................ 77,325 100.0
13535-E S. Torrence Avenue................ 57,453 15.3
13535-F S. Torrence Avenue................ 44,800 100.0
13535-G S. Torrence Avenue................ 54,743 --
13535-H S. Torrence Avenue................ 73,612 56.3
East Chicago Enterprise Center.............. East Chicago, IN 1917/1991-1997
Building 2 (4407 Railroad Avenue)......... 169,435 --
Building 3 (4407 Railroad Avenue)......... 291,550 100.0
Building 4 (4407 Railroad Avenue)......... 87,483 98.1
4440 Railroad Avenue (5).................. 40,000 100.0
4635 Railroad Avenue...................... 14,070 --
Hammond Enterprise Center................... Hammond, IN 1920-1952
4507 Columbia Avenue...................... 256,595 98.8
4527 Columbia Avenue (6).................. 16,701 62.8
4531 Columbia Avenue...................... 250,266 74.1
Industrial Properties Subtotal.............. 5,760,974 87.9
----------- -----
Portfolio Total............................. 9,862,393 89.6
----------- -----
----------- -----
OTHER PROPERTIES:
398 Unit Parking Facility................. Knoxville, TN 1981
371-385 N. Gary Avenue (7)................ Carol Stream, IL 1978 11,276
</TABLE>
12
<PAGE>
- ------------------------
(1) This property complex is comprised of 1990 Algonquin Road (a two-story
office building) and 2000-2060 Algonquin Road (seven single-story office
buildings), but is treated as one Office Property.
(2) The Company holds a mortgage note receivable on the property and has
consolidated the underlying property operations.
(3) The Company holds a mortgage note receivable on the property. The operating
results of this property have not been consolidated with the operating
results of the Company.
(4) This property is a mixed use Industrial/Office Property that has been
classified as an Industrial Property.
(5) This property is an office building adjacent to the East Chicago Enterprise
Center.
(6) This property is an office building within the Hammond Enterprise Center.
(7) This is a retail center.
ITEM 3. LEGAL PROCEEDINGS
The Company is not presently subject to any material litigation nor, to the
Company's knowledge, is any material litigation threatened against the Company,
other than routine litigation arising in the ordinary course of business, some
of which is expected to be covered by liability insurance and all of which
collectively is not expected to have a material adverse effect on the
consolidated financial statements of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITYHOLDERS
No matters were submitted to a vote of stockholders during the period from
November 17, 1997 (inception) through December 31, 1997.
13
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The Common Shares began trading on the New York Stock Exchange ("NYSE") on
November 17, 1997, under the symbol "PGE". On March 2, 1998, the reported
closing sale price on the NYSE was $20 1/2, and there were approximately 4,100
holders of record of Common Shares. The following table sets forth the high and
low closing sales prices per Common Share reported on the NYSE and the
distribution paid by the Company during the period from November 17, 1997
through December 31, 1997.
<TABLE>
<CAPTION>
HIGH LOW DISTRIBUTION
--------- --------- -----------
<S> <C> <C> <C>
December 31, 1997 (from November 17, 1997)...................................... 20 5/16 19 1/2 $.16644(1)
</TABLE>
- ------------------------
(1) The Company paid a distribution of $.16644 per share of Common Stock on
January 23, 1998, to stockholders of record on December 31, 1997. That
distribution was for the period from November 17, 1997 through December 31,
1997 and is equivalent to a quarterly distribution of $.3375 and an annual
distribution of $1.35.
Concurrently with the completion of the Offering and consummation to the
Formation Transactions, the Operating Partnership issued 9,994,310 Common Units
to PGI, the Primestone Joint Venture, the IBD Contributors, the NAC Contributors
and certain members of management of the Company. In addition, the Operating
Partnership issued 256,572 Common Units as partial consideration in the
acquisition of the first mortgage note of 180 N. LaSalle, which was purchased by
the Company subsequent to the Offering. Holders of the Common Units may redeem
part or all of the Common Units for Common Shares on a one-for-one basis, or at
the option of the Company, cash equal to the fair market value of a Common Share
at the time of exchange. This exchange right may not be exercised prior to the
first anniversary of the consummation of the Offering.
Additionally with the completion of the Offering and consummation of the
Formation Transactions, the Company issued 2,000,000 cumulative convertible
preferred shares of beneficial interest, $0.01 par value per share (the
"Convertible Preferred Shares") in a private placement to Security Capital
Preferred Growth Incorporated. Holders of the Convertible Preferred Shares may
convert them to Common Shares on September 17, 1998 or the earlier occurrence of
certain events.
The issuance of Common Units and the Convertible Preferred Shares pursuant
to the Formation Transactions constitutes private placements of securities which
are exempt from the registration requirements of the Securities Act of 1933, as
amended, pursuant to Section 4(2) thereof.
14
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The following table sets for the selected consolidated/combined financial
data for the Company and the Predecessor Properties (in thousands except per
share amounts) and should be read in conjunction with the consolidated/combined
financial statements included elsewhere in this Form 10-K.
<TABLE>
<CAPTION>
(IN THOUSANDS, EXCEPT PER SHARE DATA)
------------------------------------------------------------------------
COMPANY -
CONSOLIDATED
HISTORICAL PREDECESSOR PROPERTIES--COMBINED HISTORICAL
------------- ---------------------------------------------------------
PERIOD FROM PERIOD FROM
NOVEMBER 17, JANUARY 1,
1997 THROUGH 1997 THROUGH YEAR ENDED DECEMBER 31,
DECEMBER 31, NOVEMBER 16, ------------------------------------------
1997 1997 1996 1995 1994 1993
------------- ------------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
STATEMENTS OF OPERATIONS DATA:
REVENUE:
Rental....................................... $ 7,293 $ 27,947 $ 30,538 $ 33,251 $ 30,352 $ 28,177
Tenant reimbursements........................ 2,041 12,490 14,225 14,382 12,451 10,750
Insurance settlement......................... -- -- -- 7,257 -- --
Other........................................ 496 1,515 3,397 2,715 3,170 1,527
------ ------------- --------- --------- --------- ---------
Total revenue................................ 9,830 41,952 48,160 57,605 45,973 40,454
------ ------------- --------- --------- --------- ---------
EXPENSES:
Property operations.......................... 2,213 8,622 9,767 9,479 8,852 8,452
Real estate taxes............................ 1,765 8,575 9,383 9,445 9,057 7,167
Depreciation and amortization................ 2,478 11,241 12,409 12,646 11,624 11,739
Interest..................................... 1,680 24,613 26,422 27,671 25,985 22,827
Interest--affiliate.......................... -- 9,804 10,795 8,563 7,402 6,335
Property and asset management fee--
affiliate.................................. -- 1,348 1,561 1,496 1,388 1,106
Financing fees............................... -- 1,180 1,232 -- -- --
General and administrative................... 267 2,414 4,927 4,508 3,727 3,657
Provision for environmental remediation
costs...................................... -- 3,205 -- -- -- --
Write-off of deferred tenant costs........... -- -- 3,081 13,373 -- --
------ ------------- --------- --------- --------- ---------
Total expenses................................... 8,403 71,002 79,577 87,181 68,035 61,283
------ ------------- --------- --------- --------- ---------
Income (loss) before minority interest and
extraordinary item......................... 1,427 (29,050) (31,417) (29,576) (22,062) (20,829)
Minority interest............................ (635) 666 894 3,281 5,393 10,531
------ ------------- --------- --------- --------- ---------
Net income (loss) before extraordinary item.. 792 (28,384) (30,523) (26,295) (16,669) (10,298)
Extraordinary (loss) gain on early
extinguishment of debt, net of minority
interests' share in the amount of $1,127... -- 65,990 -- -- -- --
------ ------------- --------- --------- --------- ---------
Net income (loss)............................ 792 $ 37,606 $ (30,523) $ (26,295) $ (16,669) $ (10,298)
------------- --------- --------- --------- ---------
------------- --------- --------- --------- ---------
Net income allocated to preferred
shareholders............................... 345
------
Net income available to common
shareholders............................... $ 447
------
------
NET INCOME AVAILABLE PER WEIGHTED AVERAGE
COMMON SHARE OF BENEFICIAL INTEREST-- BASIC
AND DILUTED (1)............................ $ 0.04
------
------
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
(IN THOUSANDS)
--------------------------------------------------------
COMPANY - PREDECESSOR PROPERTIES--COMBINED
CONSOLIDATED HISTORICAL
HISTORICAL DECEMBER 31,
DECEMBER 31, ------------------------------------------
1997 1996 1995 1994 1993
------------ --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Real estate assets, before accumulated
depreciation..................................... $ 589,279 $ 291,757 $ 289,558 $ 285,687 $ 281,316
Total assets....................................... 741,468 325,230 343,641 356,421 357,158
Mortgages notes and bonds payable.................. 328,044 421,983 405,562 388,309 361,832
Total liabilities.................................. 370,192 447,927 434,993 421,257 397,539
Minority interest.................................. 147,207 (6,905) (6,047) 886 (11,527)
Shareholders' equity (partners' deficit)........... 224,069 (115,792) (85,305) (65,722) (28,854)
</TABLE>
<TABLE>
<CAPTION>
(IN THOUSANDS)
-----------------------------------------------------------------
COMPANY -
CONSOLIDATED
HISTORICAL PREDECESSOR PROPERTIES--COMBINED HISTORICAL
------------ ---------------------------------------------------
PERIOD FROM PERIOD FROM
NOVEMBER 17, JANUARY 1,
1997 THROUGH 1997 THROUGH YEAR ENDED DECEMBER 31,
DECEMBER 31, NOVEMBER 16, -------------------------------------
1997 1997 1996 1995 1994
------------ ------------ ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
OTHER DATA:
Funds from Operations(2)............................. $ 3,964 $ (14,461) $ (17,367) $ (12,733) $ (12,930)
Cash flows provided by (used in):
Operating activities............................... 6,658 (5,700) (3,165) (1,259) (13,875)
Investing activities............................... (353,816) (2,467) 1,126 (9,176) (6,495)
Financing activities............................... 335,390 6,331 5,733 10,873 15,422
Office Properties:
Square footage..................................... 4,101,419 2,353,759 1,414,897 1,414,897 1,414,897
Occupancy (%)...................................... 91.9 88.0 92.5 95.8 93.7
Industrial Properties:
Square footage..................................... 5,760,974 5,696,355 2,462,430 2,551,624 2,547,388
Occupancy (%)...................................... 87.9 87.9 73.5 72.9 62.3
</TABLE>
- ------------------------
(1) Net income available per weighted-average common share of beneficial
interest--basic and diluted equals net income divided by the 12,593,000
Common Shares. See Note 9 to the Company's consolidated financial statements
for further information.
(2) As defined by the National Association of Real Estate Investment Trusts
("NAREIT"), Funds from Operations represents net income (loss) before
minority interest of holders of Common Units (computed in accordance with
GAAP), excluding gains (or losses) from debt restructuring and sales of
property, plus real estate related depreciation and amortization (excluding
amortization of deferred financing costs) and after adjustments for
unconsolidated partnerships and joint ventures. Non-cash adjustments to
Funds from Operations were as follows: in all periods, depreciation and
amortization, for the period from January 1, 1997 through November 16, 1997,
provision for environmental remediation cost, for the years ended December
31, 1996, 1995, 1994, gains on the sale of real estate, for the years ended
December 31, 1996 and 1995, write-off of deferred tenant costs, for the year
ended December 31, 1995, excess proceeds from insurance claims, and for the
year ended December 31, 1994, lease termination fees. Management considers
Funds from Operations an appropriate measure of performance of an office
and/or industrial REIT because industry analysts have accepted it as such.
The Company computes Funds from Operations in accordance with standards
established by the Board of Governors of NAREIT in its March 1995 White
Paper (with the exception that the Company expects to report rental revenues
on a cash basis, rather than a straight-line GAAP basis,
16
<PAGE>
which the Company believes will result in a more accurate presentation of
its actual operating activities), which may differ from the methodology for
calculating Funds from Operations used by certain other office and/or
industrial REITs and, accordingly, may not be comparable to such other
REITs. Further, Funds from Operations does not represent amounts available
for management's discretionary use because of needed capital replacement or
expansion, debt repayment obligations, or other commitments and
uncertainties. Funds from Operations should not be considered as an
alternative for net income as a measure of profitability nor is it
comparable to cash flows provided by operating activities determined in
accordance with GAAP.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
OVERVIEW
The following discussion should be read in conjunction with the historical
consolidated financial statements of the Company and the combined financial
statements of the Predecessor Properties and related notes thereto included
elsewhere in this Form 10-K.
PGI, through the PGI Partnerships which own the Predecessor Properties,
engaged in the ownership, management, operation, and leasing of commercial
office and industrial properties located in the Chicago Metropolitan Area. On
November 17, 1997, following completion of the Offering and the consummation of
the Formation Transactions, the Company owned 63 properties (including the
Predecessor Properties, the Contribution Properties and the Acquisition
Properties) and succeeded to the office and industrial real estate business of
PGI and certain of its affiliates.
The Company owns all of its interests in the Properties through its
investment in the Operating Partnership. At December 31, 1997 the Company's
portfolio of real estate properties included 19 office properties and 45
industrial properties containing an aggregate of approximately 9.9 million net
rentable square feet.
During the period from November 17, 1997 to December 31, 1997, the Company
acquired one office property and the first mortgage notes of two properties,
encompassing approximately 1.8 million square feet.
Income is derived primarily from rental revenue (including tenant
reimbursements) from owned properties supplemented by interest income on
mortgage notes owned. The Company expects that revenue growth over the next
several years will come from a combination of additional acquisitions and
revenue generated through increased rental and occupancy rates in the current
portfolio.
CAUTIONARY STATEMENTS
The following discussion in "Management's Discussion and Analysis of
Financial Condition and Results of Operations" contain certain forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of
1995 which reflect management's current views with respect to future events and
financial performance. Such forward-looking statements are subject to certain
risks and uncertainties; including, but not limited to, the effects of future
events on the Company's financial performance; the risk that the Company may be
unable to finance its planned acquisition and development activities; risks
related to the industrial and office industry in which the Company's properties
compete, including the potential adverse impact of external factors such as
inflation, consumer confidence, unemployment rates and consumer tastes and
preferences; risks associated with the Company's development activities, such as
the potential for cost overruns, delays and lack of predictability with respect
to the financial returns associated with these development activities; the risk
of potential increase in market interest rates from current rates; and risks
associated with real estate ownership, such as the potential
17
<PAGE>
adverse impact of changes in the local economic climate on the revenues and the
value of the Company's properties.
RESULTS OF OPERATIONS
The following analysis provides a comparison of the property operations for
the years ended December 31, 1997 and 1996. The period from January 1, 1997
through November 16, 1997 records the activity of the Predecessor Properties and
the period from November 17, 1997 through December 31, 1997 records the activity
of the Company.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
Total revenue increased $3.6 million, or 7.5%, to $51.8 million for the year
ended December 31, 1997 compared to $48.2 million for the year ended December
31, 1996 primarily due to the addition of the activity of the Acquisition and
Contribution Properties. Rental revenue increased $4.7 million, or 15.4%, to
$35.2 million in 1997 from $30.5 million in 1996. In 1997, rental revenue from
the Office Properties increased $3.2 million, or 13.0%, to $27.9 million from
$24.7 million in 1996. In 1997, rental revenue from the Industrial Properties
increased $1.5 million, or 25.9%, to $7.3 million from $5.8 million in 1996.
Tenant reimbursements increased $0.3 million, or 2.1%, to $14.5 million in 1997
from $14.2 million in 1996. Tenant reimbursements from the Office Properties
remained consistent at $12.1 million for both 1997 and 1996. During 1996 Keck,
Mahin & Cate ("Keck") paid no tenant reimbursements until a final restructuring
agreement was reached in late 1996. During 1997, Keck paid $0.6 million of
tenant reimbursements. Tenant reimbursements from the Industrial Properties
increased $0.3 million, or 14.3%, to $2.4 million in 1997 from $2.1 million in
1996. Other nonrecurring items recorded in 1996 resulted in a net decrease of
$1.4 million, or 41.2%, in all other revenue to $2.0 million in 1997 from $3.4
million in 1996. Included in the historical financials of the Company , related
to the period from November 17, 1997 to December 31, 1997 are rental revenues of
$3.5 million, tenant reimbursements of $0.8 million and $0.4 million of other
revenue related to the contribution and Acquisition Properties.
Total expenses decreased $0.2 million, or 0.3%, to $79.4 million for the
year ended December 31, 1997 compared to $79.6 million for the year ended
December 31, 1996. Property operating expenses increased $1.0 million, or 11.2%,
to $10.8 million in 1997 from $9.8 million in 1996. In 1997, property operating
expenses from the Office Properties increased $1.6 million, or 19.5%, to $9.8
million for the year ended December 31, 1997 compared to $8.2 million for the
year ended December 31, 1996. The property operating expenses from the
Industrial Properties decreased $0.6 million, or 37.5%, to $1.0 million for the
year ended December 31, 1997 compared to $1.6 million for the year ended
December 31, 1996. In 1997, real estate tax expenses increased $1.0 million, or
10.6%, to $10.4 million from $9.4 million in 1996 primarily due to higher
property assessments in 1997. In 1997, total interest expense decreased $1.1
million, or 3.0%, to $36.1 million from $37.2 million in 1996 primarily due to
the paydown of the 77 West Wacker Mortgage note agreement. In 1997, general and
administrative expenses decreased $2.2 million, or 44.5%, to $2.7 million from
$4.9 million in 1996 primarily due to the nonrecurring expenses recorded in the
last six months of 1996. In 1997, the Industrial Properties recorded a provision
for environmental remediation costs of $3.2 million, which represents the
probable costs to be incurred for the clean-up of environmental contamination at
the properties. PGI has contractually agreed to indemnify the Company from any
environmental liabilities the PGI Partnerships may have incurred and has pledged
$1.0 million and approximately 485,000 partnership units in an operating
partnership that can be converted to common shares of a publicly traded real
estate investment trust to cover these costs. Other expenses decreased $2.1
million on a net basis in 1997 from $18.3 million in 1996 compared to $16.2
million in 1997 primarily due to the write-off of deferred tenant costs in 1996.
Included in the historical financials of the Company, related to the period from
November 17, 1997 to December 31, 1997, are property operating expenses of $0.6
million, real estate tax expense of $0.6 million, interest expense of $1.3
million and general and administrative expense of $0.7 million related to the
Contribution Properties and Acquisition Properties.
18
<PAGE>
In 1997, net income allocated to minority interest increased $2.0 million,
or 222.2%, to $1.1 from ($0.9 million) in 1996, primarily due to an
extraordinary gain resulting from early extinguishment of debt.
In 1997, net income of $38.4 million was reported compared to a loss of
$30.5 million in 1996, primarily due to the changes described above and the
extraordinary gain on early extinguishment of debt of $65,990, net of minority
interest, recorded in 1997.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
Total revenue decreased $9.4 million, or 16.3%, to $48.2 million for the
year ended December 31, 1996 as compared to $57.6 million for the year ended
December 31, 1995. This decrease was primarily due to the realization of a $7.3
million gain in 1995 from a non-recurring insurance settlement payment to the
Company relating to fire damage to one of the Industrial Properties. Total
rental revenue decreased $2.8 million, or 8.4%, to $30.5 million in 1996 from
$33.3 million in 1995. In 1996, rental revenue from Office Properties decreased
$3.8 million, or 13.3%, to $24.7 million from $28.5 million in 1995 primarily
due to the restructuring of Keck's lease. The restructuring resulted in a
decrease in the average percentage of office space leased from 94.7% in 1995 to
94.1% in 1996 leased and a decrease in net rent per leased square foot from
$21.40 in 1995 to 18.74 in 1996. In 1996, rental revenue from Industrial
Properties increased $1.0 million, or 20.8%, to $5.8 million from $4.8 million
in 1995 primarily due to increased average percentage leased (73.2% in 1996 and
67.6% in 1995) and net rent per leased square foot ($3.18 in 1996 and $2.77 in
1995). Tenant reimbursements decreased $0.2 million, or 1.4%, to $14.2 million
in 1996 from $14.4 million in 1995. In 1996, tenant reimbursements from Office
Properties decreased $0.4 million, or 3.2%, to $12.1 million from $12.5 million
in 1995 primarily due to the restructuring of Keck's lease. In 1996, tenant
reimbursements from Industrial Properties increased $0.3 million, or 16.6%, to
$2.1 million from $1.8 million in 1995 primarily due to the increased occupancy
described above. In 1995, one of the Industrial Properties received a final
insurance settlement of $7.3 million related to a fire that destroyed the
Property. No such proceeds were received in 1996. Other revenue increased to
$2.2 million in 1996 from $1.6 million in 1995 primarily due to a $0.6 million
increase in interest income. All other revenue amounts remained comparable
between 1996 and 1995.
Total expenses decreased $7.6 million, or 8.7%, to $79.6 million for the
year ended December 31, 1996 compared to $87.2 million for the year ended
December 31, 1995. This decrease was primarily due to the fact that in 1995 the
Company booked a $13.3 million write-off of deferred tenant costs as part of the
restructuring of the Keck lease and only $3.1 million of such write-offs for
Keck was booked in 1996. Property operating expenses increased $0.3 million, to
$9.8 million in 1996 from $9.5 million in 1995. Property operating expenses from
Office Properties remained constant at $8.2 million in both 1996 and 1995.
Although there was a decline in Office Properties' occupancy in 1996, property
operations were at such a level that a decline in occupancy had a minimal effect
on the overall property operations. In 1996, property operating expenses from
Industrial Properties decreased $0.1 million, or 7.6%, to $1.2 million. In 1996,
depreciation and amortization expense decreased $0.2 million, or 1.6%, to $12.4
million primarily due to the restructuring of Keck's lease. This decrease was
offset by an increase in occupancy and additional tenant improvements at the
Industrial Properties. In 1996, total interest expense increased $1.0 million,
or 2.8%, to $37.2 million primarily due to a $16.4 million increase in
outstanding debt during May 1996. Financing fees increased $1.2 million in 1996
due to a letter of credit facility obtained in 1996 on behalf of the Industrial
Properties. In 1996, general and administrative expenses increased $0.4 million,
or 8.9%, to $4.9 million primarily due to a $0.5 million allowance for
uncollectible tenant receivables due from the restructured lease with Keck
recorded in 1996. All other expenses remained comparable between 1996 and 1995.
In 1996, loss allocated to minority interest decreased $2.4 million, or
74.4%, to $0.9 million from $3.3 million in 1995 primarily due to a reduction of
the minority interest's ownership in the Prime Properties during 1995.
19
<PAGE>
Net loss increased $4.2 million to $30.5 million in 1996 compared to a net
loss of $26.3 million in 1995, primarily due to the changes described above.
LIQUIDITY AND CAPITAL RESOURCES
CREDIT FACILITY. The Company has a Credit Facility of $235.0 million from
BankBoston, N.A. and Prudential Securities Credit Corporation ("PSCC"), which is
secured by first mortgages on certain properties owned by the Operating
Partnership. Subject to compliance by the Company with the applicable loan
covenants, the Credit Facility may be used to provide funds for acquisitions and
development activities and to provide the replacement letters of credit for the
$74.5 million of Tax-Exempt Bonds.
MORTGAGE NOTES. The Company borrowed $83.5 million aggregate principal
amount from PSCC under the Mortgage Notes at the date of the Offering. PSCC
agreed to provide the Mortgage Notes financing for a 90-day term, convertible at
the option of the Company into a seven-year term, subject to certain conditions.
The Mortgage Notes consist of two separate notes secured, respectively, by first
mortgages on all of the IBD Properties and all of the NAC Properties, together
in each case, with certain of the Acquisition Properties. Interest on the
Mortgage Notes accrues at a rate equal to seven-year U.S. Treasury Notes, plus
1.27%. Prior to the expiration of the Mortgage Notes, the Company expects to
refinance the Mortgage Notes with a seven to ten year loan. On March 23, 1998,
the Company refinanced the notes on the IBD Properties with a loan of $29.4
million which matures on March 23, 2008 to refinance one of the notes. Interest
on this loan accrues at a rate of 6.85% and is payable monthly. The Company
expects to refinance the second note during April 1998.
ANALYSIS OF LIQUIDITY AND CAPITAL RESOURCES.
The Company expects to meet its short-term liquidity requirements through
net cash provided by operations. The Properties require periodic investments of
capital for tenant-related capital expenditures and for general capital
improvements. Over the past three years, the Company's recurring tenant
improvements and leasing commissions for the Predecessor Properties averaged
$7.13 per square foot of leased office space and $0.49 per square foot of leased
industrial space per year. The Company's estimated annual cost of recurring
tenant improvements and leasing commissions is approximately $7.2 million based
upon average annual square feet for leases expiring during the years ending
December 31, 1997 through December 31, 2000. The Company's cost of general
capital improvements to the Properties averages approximately $0.8 million
annually based upon an estimate of $0.08 per square foot.
The Company expects to meet its long-term liquidity requirements for the
funding of property development, property acquisitions and other non-recurring
capital improvements through a combination of net cash from operations,
long-term secured and unsecured indebtedness (including the Credit Facility) and
the issuance of additional equity securities. The terms of the Credit Facility
and the Preferred Shares impose restrictions on the Company's ability to incur
indebtedness and issue additional preferred shares.
HISTORICAL CASH FLOWS
Historically, the Predecessor Properties' principal sources of funding for
operations and capital expenditures were from debt financings. PGI incurred net
losses before extraordinary items in each of the last five years. However, after
adding back depreciation and amortization, the Predecessor Properties have
generated positive net operating cash flows for each of the last four years.
The Company and the Predecessor Properties had combined net cash provided by
operating activities of $1.0 million for the year ended December 31, 1997 and
the Predecessor Properties had net cash used in operating activities of $3.2
million and $1.3 million for the years ended December 31, 1996 and 1995,
respectively. The $4.2 million increase in net cash provided by operating
activities for the year ended December 31, 1997 from the year ended December 31,
1996 was primarily due to a $68.9 million increase
20
<PAGE>
in net income, a $1.3 million decrease in tenant receivables from
straight-lining rent, a $0.6 million decrease in gain on sale of real estate, a
$1.3 million increase in depreciation and amortization expense, a $0.9 million
decrease in loss allocated to minority interest, a $7.7 million increase in
accrued real estate taxes and a $9.3 million increase in accounts payable and
accrued expenses, offset by a $0.2 million decrease in interest added to
principal, a $3.1 million decrease in the write-off of deferred tenant costs, a
$66.0 million increase in extraordinary item, a $2.9 million increase in tenant
receivables, a $0.8 million increase in deferred costs, a $10.1 million increase
in other assets, a $1.6 million decrease in accrued interest and a $1.1 million
increase in other liabilities. The $1.9 million increase in net cash used in
operating activities for the year ended December 31, 1996 from the year ended
December 31, 1995 is primarily due to a $12.1 million increase in loss before
minority interest (exclusive of the write-off of deferred tenant costs in 1995
and 1996), offset by a $8.1 million decrease in the adjustment related to the
straight-lining of rent and a $1.6 million increase in interest added to
principal on mortgage note payable-affiliate.
The Company and the Predecessor Properties had combined net cash used in
investing activities of ($356.3 million) for the year ended December 31, 1997
and the Predecessor Properties had net cash provided by (used in) investing
activities of $1.1 million and ($9.2 million) for the years ended December 31,
1996 and 1995, respectively. The $357.4 million increase in net cash used in
investing activities for the year ended December 31, 1997 from the year ended
December 31, 1996 was primarily due to a $1.8 million decrease in proceeds from
the sale of real estate, a $298.8 million increase in real estate expenditures,
a $51.2 million purchase of a mortgage note receivable, a $5.2 million increase
in amounts due from affiliates and a $0.4 million cash contribution to the
Services Company. The $10.3 million increase in net cash provided by investing
activities for the year ended December 31, 1996 from the year ended December 31,
1995 was primarily due to an $8.1 million net repayment of advances to
affiliates, a $1.2 million increase in proceeds from sale of real estate and a
$10.0 million decrease in real estate expenditures.
The Company and the Predecessor Properties had combined net cash provided by
financing activities of $361.7 million for the year ended December 31,1997 and
the Predecessor Properties had net cash provided by financing activities of $5.7
million and $10.9 million for the years ended December 31, 1996 and 1995,
respectively. The $356.0 million increase in net cash provided by financing
activities for the year ended December 31, 1997 from the year ended December 31,
1996 was primarily due to $272.0 million in net proceeds from the Offering,
Private Placement and overallotment, $85.0 million from the sale of Operating
Partnership units, a $242.4 million increase in proceeds from mortgage notes
payable, and a $44.3 million increase in contributions from partners, offset by
a $235.7 increase in the repayment of mortgage notes payable, a $46.1 million
increase in the repayment of mortgage notes payable affiliates, the payment of
$5.0 million of deferred financing costs and debt termination fees and a $0.5
million decrease in due to affiliates. The $5.2 million decrease in net cash
provided by financing activities from the year ended December 31, 1996 from the
year ended December 31, 1995 was primarily due to a $5.4 million decrease in
proceeds from mortgage notes payable, offset by a $0.2 million decrease in
distributions to partners.
FUNDS FROM OPERATIONS
Industry analysts generally consider Funds from Operations, as defined by
the National Association of Real Estate Investment Trusts, Inc. ("NAREIT"), an
alternative measure of performance of an equity REIT. Funds from Operations is
defined by NAREIT to mean net income (loss) determined in accordance with GAAP,
excluding gains (or losses) from debt restructuring and sales of property, plus
depreciation and amortization (other than amortization of deferred financing
costs and depreciation of non-real estate assets) and after adjustment for
unconsolidated partnerships and joint ventures. The Company believes that in
order to facilitate a clear understanding of the combined historical operating
results of the Company, Funds from Operations should be examined in conjunction
with net income (loss) as presented
21
<PAGE>
in the audited Combined Financial Statements and selected financial data
included elsewhere in this Form 10-K. The Company computes Funds from Operations
in accordance with standards established by the Board of Governors of NAREIT in
its March 1995 White Paper (with the exception that the Company expects to
report rental revenues on a cash basis, rather than a straight-line GAAP basis,
which the Company believes will result in a more accurate presentation of its
actual operating activities), which may differ from the methodology for
calculating Funds from Operations used by other certain office and/or industrial
REITs and, accordingly, may not be comparable to such other REITs. As a result
of the Company's reporting rental revenues on a cash basis, contractual rent
increases will cause reported Funds from Operations to increase. Further, Funds
from Operations does not represent amounts available for management's
discretionary use because of needed capital replacement or expansion, debt
repayment obligations, or other commitments and uncertainties. Funds from
Operations should not be considered as an alternative to net income (loss), as
an indication of the Company's performance or to cash flows as a measure of
liquidity or the ability to pay dividends or make distributions.
IMPACT OF YEAR 2000
In the year 2000, many existing computer programs that use only two digits
(rather than four) to identify a year in the date field could fail or create
erroneous results if not corrected. This computer flaw is expected to affect
virtually all companies and organizations . The Company cannot quantify the
potential costs and uncertainties associated with this computer program flaw at
this time, but does not anticipate that the effect of this computer program flaw
on the operations of the Company will be significant. However, the Company may
be required to spend time and monetary resources addressing any necessary
computer program changes.
INFLATION
The Company's leases with the majority of its tenants require the tenants to
pay most operating expenses, including real estate taxes and insurance, and
increases in common area maintenance expenses, which reduce the Company's
exposure to increases in costs and operating expenses resulting from inflation.
ITEM 7A. QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements and supplementary data required by Regulation S-X
are included in this Report on Form 10-K commencing on page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
22
<PAGE>
PART III
Certain information required by Part III is omitted from this Report in that
the Company will file a definitive proxy statement within 120 days after the end
of its fiscal year pursuant to Regulation 14A for its Annual Meeting of
Stockholders to be held in May 1998 (the "Proxy Statement") and the information
included therein is incorporated herein by reference.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information contained in the section captioned "Election of Trustees" of
the Proxy Statement is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION
The information contained in the sections captioned "Compensation of
Executives" and "Executive Officers" of the Proxy Statement is incorporated
herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information contained in the section captioned "Principal Security
Holders of the Company" of the Proxy Statement is incorporated herein by
reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information contained in the section captioned "Certain Relationships
and Related Transactions" of the Proxy Statement is incorporated herein by
reference.
23
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) (1 and 2) Financial Statements and Schedules
Prime Group Realty Trust and Predecessor Properties:
<TABLE>
<S> <C>
Report of Independent Auditors.................................................... F-1
Consolidated Balance Sheet of the Company as of December 31, 1997 and Combined
Balance Sheet of the Predecessor Properties as of December 31, 1996............. F-2
Consolidated Statement of Operations of the Company for the period from November
17, 1997 to December 31, 1997 and Combined Statements of Operations of the
Predecessor Properties for the period from January 1, 1997 to November 16, 1997
and for the years ended December 31, 1996 and 1995.............................. F-3
Consolidated Statement of Changes in Shareholders' Equity for the period from
November 17, 1997 to December 31, 1997.......................................... F-4
Combined Statement of Changes in Predecessors' Deficit for the period from January
1, 1997 to November 16, 1997 and for the years ended December 31, 1996 and
1995............................................................................ F-5
Consolidated Statements of Cash Flows of the Company for the period from November
17, 1997 to December 31, 1997 and the Combined Statements of Cash Flows of the
Predecessor Properties for the period from January 1, 1997 to November 16, 1997
and for the years ended December 31, 1996 and 1995.............................. F-6
Notes to Consolidated and Combined Financial Statements........................... F-9
</TABLE>
All schedules are omitted since the required information is not present in
amounts sufficient to require submission of the schedule or because the
information required is included in the financial statements and notes thereto.
(3) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------ --------------------------------------------------------------------------
<C> <S>
3.1 Articles of Amendment and Restatement of Declaration of Trust of Prime
Group Realty Trust
3.2 Amended and Restated Bylaws of Prime Group Realty Trust
3.3 Amended and Restated Agreement of Limited Partnership of Prime Group
Realty, L.P.
10.1 Form of Indemnification Agreement between Prime Group Realty Trust and
each of its trustees
10.2 Right of First Offer Agreement by and between Prime Group Realty, L.P. and
The Prime Group, Inc.
10.3 Share Incentive Plan
10.4 Employment Agreement by and between the Company and Michael W. Reschke
10.5 Employment Agreement by and between the Company and Richard S. Curto
10.6 Employment Agreement by and between the Company and W. Michael Karnes
10.7 Employment Agreement by and between the Company and Robert J. Rudnik
10.8 Employment Agreement by and between the Company and Jeffrey A. Patterson
10.9 Employment Agreement by and between the Company and Kevork M. Derderian
10.10 Employment Agreement by and between the Company and Edward S. Hadesman
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------ --------------------------------------------------------------------------
<C> <S>
10.11 Contribution Agreement dated as of October 20, 1997 by and among the Prime
Group, Inc., Prime Group Realty, L.P., Prime Group Realty Trust, Narco
River Business Center, Narco Tower Road Associates, Olympian Office
Center, Tri-State Industrial Park Joint Venture, Carol Stream Industrial
Park Joint Venture, Narco Enterprises, Inc., The Nardi Group Ltd., Narco
Construction Inc., Nardi & Co., Nardi Asset Management, Inc. and Nardi
Architectural, Inc. as filed as an exhibit to Registration Statement on
Form S-11 (No. 333-33547) and incorporated herein by reference.
10.12 Option to Purchase Partnership Interests dated as of June 17, 1994 by and
between KILICO Realty Corporation, and The Prime Group, Inc., as amended
by that certain First Amendment to Option Purchase Partnership Interests
dated as of January 21, 1997 by and between KILICO Realty Corporation and
The Prime Group, Inc.; as further amended by that certain Second Amendment
to Option to Purchase Partnership Interests dated as if July 15, 1997 by
and between KILICO Realty Corporation and The Prime Group, Inc as filed as
an exhibit to Registration Statement on Form S-11 (No. 333-33547) and
incorporated herein by reference.
10.13 Option Agreement Regarding 300 N. LaSalle by and between Prime Group
Realty, L.P. and 300 N. LaSalle, L.L.C.
10.14 Registration Rights Agreement among Prime Group Realty Trust, Prime Group
Realty, L.P., Prime Group Limited Partnership, Primestone Investment
Partners L.P. and the other investors named herein
10.15 Contribution Agreement dated as of July 8, 1997 by and among LaSalle
National Trust, N.A., not personally, but solely as Trustee under Trust
Agreement dated June 15, 1982 and known as Trust No. 10-40113-09, LaSalle
National Trust, N.A., not personally, but solely as Trustee under Trust
Agreement dated September 7, 1994 and known as Trust No. 11-9051, LaSalle
National Trust, N.A., not personally, but solely as Trustee under Trust
Agreement dated March 30, 1984 and known as Trust No. 11-107825, LaSalle
National Trust, N.A., not personally, but solely as Trustee under Trust
Agreement dated August 1, 1986 and known as Trust No. 11-1358, LaSalle
National Trust, N.A., not personally, but solely as Trustee under Trust
Agreement dated August 1, 1986 and known as Trust No. 11-1357, LaSalle
National Trust N.A., not personally, but solely as Trustee under Trust
Agreement dated August 1, 1986 and known as Trust No. 11-1357, LaSalle
National Trust N.A., not personally, but solely as Trustee under Trust
Agreement dated January 17,1974 and known as Trust No. 286-34, LaSalle
National Trust, N.A., not personally, but solely as Trustee under Trust
Agreement dated October 15, 1995 and known as Trust No. 11-9869, LaSalle
National Trust, N.A., not personally, but solely as Trustee under Trust
Agreement dated December 1, 1987 and known as Trust No. 11-2868, 310 ERA
Limited Partnership, MacArthur Drive Properties, CLE Limited Partnership,
500 Lindberg Limited Partnership, 515 Huehl Limited Partnership, 555 Huehl
Limited Partnership, Sky Harbor Associates, 1001 Technology Way, LLC, The
Grandville Road Limited Partnership, Industrial Building and Development
Company and The Prime Group, Inc.; as amended by the First Amendment to
the Contribution Agreement dated as of August 12, 1997, by and between The
Prime Group, Inc., an Illinois corporation, and LaSalle National Trust,
NA, t/u/t 10-40113-09 dated June 15, 1982; LaSalle National Trust, NA,
t/u/t 11-9051 dated September 7, 1994; LaSalle National Trust, NA, t/u/t
11-107825 dated March 30, 1984; LaSalle National Trust, NA, t/u/t 11-1358
dated August 1, 1986; LaSalle National Trust, NA, t/u/t 11-1357 dated
August 1, 1986; LaSalle National Trust, NA, t/u/t 286-34 dated January 17,
1974; LaSalle National Trust, NA, t/u/t 11-9869 dated October 15, 1995;
LaSalle National Trust, NA, t/u/t 11-2868 dated December 1, 1987 as filed
as an exhibit to Registration Statement on Form S-11 (No. 333-33547) and
incorporated herein by reference.
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------ --------------------------------------------------------------------------
<C> <S>
10.16 [Reserved]
10.17 Formation Agreement by and among Prime Group Realty Trust, Prime Group
Realty, L.P., Prime Group Realty Services, Inc., The Prime Group, Inc.,
Prime Group Limited Partnership and Jeffrey A. Patterson
10.18 Asset Purchase Agreement by and among Continental Offices, Ltd.,
Continental Offices Ltd. Realty and Prime Group Realty, L.P. as filed as
an exhibit to Registration Statement on Form S-11 (No. 333-33547) and
incorporated herein by reference.
10.19 Non-Compete Agreement by and among Prime Group Realty Trust, The Prime
Group, Inc. and Michael W. Reschke
10.20 Option Agreement dated as of August 4, 1997 by and between Lumbermens
Mutual Casualty Company and The Prime Group, Inc. as filed as an exhibit
to Registration Statement on Form S-11 (No. 333-33547) and incorporated
herein by reference.
10.21 Amended and Restated Agreement dated as of July 15, 1997 by and among
Kemper Investors Life Insurance Company, Federal Kemper Life Assurance
Company, KILICO Realty Corporatio, FKLA Realty Corporation, KR 77 Fitness
Center, Inc., 77 West Wacker Limited Partnership, K/77 Investors Limited
Partnership, The Prime Group, Inc., Prime Group Limited Partnership and
Prime 77 Fitness Center, Inc. as filed as an exhibit to Registration
Statement on Form S-11 (No. 333-33547) and incorporated herein by
reference.
10.22 Agreement dated as of July 18, 1997 by and among The Prime Group, Inc.,
KILICO Realty Corporation, KFC Portfolio Corp. and Kemper Investors Life
Insurance Company as filed as an exhibit to Registration Statement on Form
S-11 (No. 333-33547) and incorporated herein by reference.
10.23 Series A Convertible Preferred Securities Agreement by and between
Security Capital Preferred Growth Incorporated and Prime Group Realty
Trust
10.24 Tax Indemnification Agreement by and between Prime Group Realty Trust and
the IBD Contributors
10.25 Tax Indemnification Agreement by and between Prime Group Realty Trust and
one of its general partners
10.26 Credit Facility between Prime Group Realty Trust, BankBoston, N.A. and
Prudential Securities Credit Corporation
10.27 Underwriting Agreement between Prime Group Realty Trust and Prudential
Securities Incorporated, Friedman, Billings, Ramsey & Co., Inc., Smith
Barney Inc. and Morgan Keegan & Company, Inc., as representatives of the
other underwriters
10.28 Registration Rights Agreement between Prime Group Realty Trust and certain
holders of Common Units of Prime Group Realty, L.P.
10.29 Environmental Remediation and Indemnification Agreement between Prime
Group Realty, L.P. and The Prime Group, Inc.
10.30 Registration Rights Agreement between Prime Group Realty Trust and
Security Capital Preferred Growth Incorporated
12.1 Statements re: computation of ratios
19.1 Form of Common Share Certificate
19.2 Form of Convertible Preferred Share certificate
22.1 List of subsidiaries
</TABLE>
26
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------ --------------------------------------------------------------------------
<C> <S>
27.1 Financial Data Schedule
</TABLE>
- ------------------------
(b) Reports on Form 8-K
On December 30, 1997, the Company filed a report on Form 8-K relating to the
acquisition of certain real estate properties. On January 14, 1998, the Company
filed a report on Form 8-K relating to the acquisition of certain real estate
properties. The Company filed the required financial statements and information
under cover of Form 8-K/A on February 27, 1998.
27
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized on March 31, 1998.
<TABLE>
<S> <C> <C>
PRIME GROUP REALTY TRUST
DATED: MARCH 31, 1998 By: /s/ RICHARD S. CURTO
-----------------------------------------
Richard S. Curto
PRESIDENT AND CHIEF
EXECUTIVE OFFICER
Dated: March 31, 1998 By: /s/ WILLIAM M. KARNES
-----------------------------------------
William M. Karnes
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
NAME TITLE DATE
- ------------------------------ --------------------------- -------------------
/s/ MICHAEL W. RESCHKE Chairman of the Board and
- ------------------------------ Trustee March 31, 1998
Michael W. Reschke
/s/ RICHARD S. CURTO President, Chief Executive
- ------------------------------ Officer and Trustee March 31, 1998
Richard S. Curto
/s/ KATHRYN A. DEANE Vice President and
- ------------------------------ Controller March 31, 1998
Kathryn A. Deane
/s/ STEPHEN J. NARDI Trustee
- ------------------------------ March 31, 1998
Stephen J. Nardi
/s/ JAMES R. THOMPSON Trustee
- ------------------------------ March 31, 1998
James R. Thompson
/s/ JACQUE M. DUCHARME Trustee
- ------------------------------ March 31, 1998
Jacque M. Ducharme
/s/ CHRISTOPHER J. NASSETTA Trustee
- ------------------------------ March 31, 1998
Christopher J. Nassetta
/s/ THOMAS J. SAYLAK Trustee
- ------------------------------ March 31, 1998
Thomas J. Saylak
28
<PAGE>
REPORT OF INDEPENDENT AUDITORS
Board of Trustees
Prime Group Realty Trust
We have audited the accompanying consolidated balance sheet of Prime Group
Realty Trust (the Company) as of December 31, 1997, and the related consolidated
statements of operations, shareholders' equity and cash flows for the period
from November 17, 1997 (date of formation) through December 31, 1997. We have
also audited the accompanying combined balance sheet of Predecessor Properties
(the Predecessor to the Company) as of December 31, 1996, and the related
combined statements of operations, changes in predecessors' deficit, and cash
flows for the period from January 1, 1997 through November 16, 1997, and for
each of the two years in the period ended December 31, 1996. These financial
statements are the responsibility of the Company's and Predecessor's management.
Our responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Prime Group
Realty Trust at December 31, 1997, and the consolidated results of its
operations and its cash flows for the period from November 17, 1997 through
December 31, 1997, and the combined financial position of Predecessor Properties
at December 31, 1996 and the combined results of its operations and its cash
flows for the period from January 1, 1997 through November 16, 1997, and for
each of the two years in the period ended December 31, 1996, in conformity with
generally accepted accounting principles.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
March 27, 1998
F-1
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
CONSOLIDATED BALANCE SHEET OF THE COMPANY AND
COMBINED BALANCE SHEET OF THE PREDECESSOR
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AMOUNTS)
<TABLE>
<CAPTION>
PRIME GROUP PREDECESSOR
REALTY TRUST PROPERTIES
AT AT
DECEMBER 31 DECEMBER 31
1997 1996
-------------- ------------
<S> <C> <C>
ASSETS
Real estate at cost:
Land.............................................................................. $ 92,440 $ 23,530
Building and improvements......................................................... 496,839 268,227
-------------- ------------
589,279 291,757
Accumulated depreciation............................................................ (2,338) (44,411)
-------------- ------------
586,941 247,346
Mortgage note receivable............................................................ 56,263 --
Cash and cash equivalents........................................................... 11,969 5,573
Tenant receivables.................................................................. 41,648 41,384
Deferred costs -- Net............................................................... 28,472 26,883
Due from affiliates................................................................. 5,258 2,894
Other............................................................................... 10,917 1,150
-------------- ------------
Total assets........................................................................ $ 741,468 $ 325,230
-------------- ------------
-------------- ------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Mortgage notes payable.............................................................. $ 249,610 $ 235,886
Mortgage notes payable -- Affiliates................................................ 3,984 99,647
Bonds payable....................................................................... 74,450 74,450
Bonds payable -- Affiliates......................................................... -- 12,000
Accrued interest payable............................................................ 1,245 2,538
Accrued real estate taxes........................................................... 17,915 9,944
Accounts payable and accrued expenses............................................... 13,903 4,213
Liabilities for leases assumed...................................................... 5,758 7,157
Dividends declared.................................................................. 2,505 --
Due to affiliates................................................................... -- 708
Other............................................................................... 822 1,384
-------------- ------------
Total liabilities................................................................... 370,192 447,927
Minority interest................................................................... 147,207 (6,905)
Predecessors' net deficit........................................................... -- (115,792)
Shareholders' equity:
Preferred shares, $.01 par value; 30,000,000 shares
authorized, 2,000,000 cumulative convertible preferred shares
issued and outstanding.......................................................... 20 --
Common Shares, $.01 par value; 100,000,000 shares
authorized, 12,980,000 shares issued and outstanding............................ 130 --
Additional paid-in capital........................................................ 225,632 --
Distributions in excess of earnings............................................... (1,713) --
-------------- ------------
Total shareholders' equity.......................................................... 224,069 --
-------------- ------------
Total liabilities and shareholders' equity.......................................... $ 741,468 $ 325,230
-------------- ------------
-------------- ------------
</TABLE>
See accompanying notes.
F-2
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
CONSOLIDATED STATEMENT OF OPERATIONS OF THE COMPANY AND
COMBINED STATEMENTS OF OPERATIONS OF THE PREDECESSOR
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AMOUNTS)
<TABLE>
<CAPTION>
PRIME GROUP
REALTY TRUST -- PREDECESSOR
PERIOD FROM PROPERTIES -- PREDECESSOR PROPERTIES
NOVEMBER 17, 1997 PERIOD FROM YEAR ENDED DECEMBER 31
TO DECEMBER 31, JANUARY 1, 1997 ----------------------
1997 TO NOVEMBER 16, 1997 1996 1995
----------------- -------------------- ---------- ----------
<S> <C> <C> <C> <C>
REVENUE
Rental......................................... $ 7,293 $ 27,947 $ 30,538 $ 33,251
Tenant reimbursements.......................... 2,041 12,490 14,225 14,382
Parking........................................ 60 264 320 345
Mortgage note interest......................... 248 -- -- --
Gain on sale of assets......................... -- 286 846 771
Insurance settlement........................... -- -- -- 7,257
Other.......................................... 188 965 2,231 1,599
------ ------- ---------- ----------
Total revenue.................................. 9,830 41,952 48,160 57,605
EXPENSES
Property operations............................ 2,213 8,622 9,767 9,479
Real estate taxes.............................. 1,765 8,575 9,383 9,445
Depreciation and amortization.................. 2,478 11,241 12,409 12,646
Interest....................................... 1,680 24,613 26,422 27,671
Interest -- Affiliates......................... -- 9,804 10,795 8,563
Financing fees................................. -- 1,180 1,232 --
Property and asset management fees --
Affiliates................................... -- 1,348 1,561 1,496
General and administrative..................... 267 2,414 4,927 4,508
Provision for environmental remediation
costs........................................ -- 3,205 -- --
Write-off deferred tenant costs................ -- -- 3,081 13,373
------ ------- ---------- ----------
Total expenses................................. 8,403 71,002 79,577 87,181
------ ------- ---------- ----------
Income (loss) before minority interest and
extraordinary item........................... 1,427 (29,050) (31,417) (29,576)
Minority interest.............................. (635) 666 894 3,281
------ ------- ---------- ----------
Income (loss) before extraordinary gain........ 792 (28,384) (30,523) (26,295)
Extraordinary item; gain on extinguishment of
debt, net of minority interest in the amount
of $1,127.................................... -- 65,990 -- --
------ ------- ---------- ----------
Net income (loss).............................. 792 $ 37,606 $ (30,523) $ (26,295)
------- ---------- ----------
------- ---------- ----------
Net income allocated to preferred
shareholders................................. 345
------
Net income available to common shareholders.... $ 447
------
------
Net income available per weighted-average
common share of beneficial interest -- Basic
and diluted.................................. $ 0.04
------
------
</TABLE>
See accompanying notes.
F-3
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
PERIOD FROM NOVEMBER 17, 1997 TO DECEMBER 31, 1997
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AMOUNTS)
<TABLE>
<CAPTION>
ADDITIONAL DISTRIBUTIONS
PREFERRED COMMON PAID-IN IN EXCESS OF
STOCK STOCK CAPITAL EARNINGS TOTAL
----------- ----------- ---------- ------------ ----------
<S> <C> <C> <C> <C> <C>
Issuance of 2,000,000 shares
of preferred stock................................. $ 20 $ -- $ 39,580 $ -- $ 39,600
Issuance of 12,980,000 shares
of common stock.................................... -- 130 232,222 -- 232,352
Step-up in basis from the purchase of third-party
owner's interest in predecessor--.................. -- -- 1,430 -- 1,430
Reclassification of predecessor's minority
interest........................................... -- -- (6,564) -- (6,564)
Reclassification of net deficit of predecessor....... -- -- (33,976) -- (33,976)
Additional contribution by predecessor............... -- -- 11,873 -- 11,873
Contribution of net liabilities to service company... -- -- 380 -- 380
Additional paid-in capital allocated to minority
interest........................................... -- -- (19,313) -- (19,313)
Net income........................................... -- -- -- 792 792
Preferred dividends declared
($0.173 per share)................................. -- -- -- (345) (345)
Common dividends declared
($0.166 per share)................................. -- -- -- (2,160) (2,160)
----------- ----- ---------- ------------ ----------
Balance at December 31, 1997......................... $ 20 $ 130 $ 225,632 $ (1,713) $ 224,069
----------- ----- ---------- ------------ ----------
----------- ----- ---------- ------------ ----------
</TABLE>
See accompanying notes.
F-4
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
COMBINED STATEMENTS OF CHANGES IN PREDECESSORS' DEFICIT
PERIOD FROM JANUARY 1, 1997 TO NOVEMBER 16, 1997
AND FOR THE YEARS ENDED DECEMBER 31, 1996 AND 1995
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AMOUNTS)
<TABLE>
<S> <C>
Balance at January 1, 1995........................................................ $ (65,722)
Contributions..................................................................... 732
Distributions..................................................................... (179)
Assignment of minority interest................................................... 3,243
Forgiveness of notes payable to minority interest................................. 2,916
Net loss.......................................................................... (26,295)
---------
Balance at December 31, 1995...................................................... (85,305)
Contributions..................................................................... 40
Distributions..................................................................... (4)
Net loss.......................................................................... (30,523)
---------
Balance at December 31, 1996...................................................... (115,792)
Contributions..................................................................... 44,330
Distributions..................................................................... (120)
Net income........................................................................ 37,606
---------
Balance at November 16, 1997...................................................... $ (33,976)
---------
---------
</TABLE>
See accompanying notes.
F-5
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
CONSOLIDATED STATEMENT OF CASH FLOWS OF THE COMPANY AND
COMBINED STATEMENTS OF CASH FLOWS OF THE PREDECESSOR
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AMOUNTS)
<TABLE>
<CAPTION>
PREDECESSOR
PRIME GROUP PROPERTIES
REALTY TRUST FROM
FROM JANUARY 1, PREDECESSOR PROPERTIES
NOVEMBER 17, 1997 YEAR ENDED DECEMBER 31
1997 TO NOVEMBER
TO DECEMBER 31, 16, ----------------------
1997 1997 1996 1995
---------------- -------------- ---------- ----------
<S> <C> <C> <C> <C>
OPERATING ACTIVITIES
Net income (loss)...................................... $ 792 $ 37,606 $ (30,523) $ (26,295)
Adjustments to reconcile net income (loss) to net cash
provided by (used in) used in operating activities:
Amortization of costs for leases assumed (included in
rental revenue)...................................... 142 1,022 1,244 1,539
Decrease (increase) in tenant receivables from
straight-lining rent................................. 180 487 (645) (8,779)
Gain on sale of real estate.......................... -- (286) (846) (771)
Depreciation and amortization........................ 2,478 11,241 12,409 12,646
Interest added to principal on mortgage note payable
affiliate............................................ -- 9,772 10,002 8,427
Standby loan fee-affiliate added to principal on
mortgage note payable affiliate...................... -- 460 522 498
Write-off of deferred tenant costs................... -- -- 3,081 13,373
Minority interest.................................... 635 (666) (894) (3,281)
Extraordinary item................................... -- (65,990) -- --
Changes in operating assets and liabilities:
Decrease (increase) in tenant receivables.......... (15) (916) 1,990 2,326
Increase in deferred costs......................... (48) (1,459) (703) (907)
(Increase) decrease in other assets................ (10,032) 506 566 2,937
(Decrease) increase in accrued interest payable.... (175) (1,118) 316 (1,221)
Increase in accrued real estate taxes.............. 7,556 415 251 5
Increase (decrease) increase in accounts payable
and accrued expenses............................. 7,202 3,498 1,380 (34)
Decrease in liabilities for assumed leases......... (350) (1,049) (1,532) (1,985)
Increase (decrease) in other liabilities........... (1,707) 777 217 263
---------------- -------------- ---------- ----------
Net cash provided by (used in) operating activities.... 6,658 (5,700) (3,165) (1,259)
</TABLE>
F-6
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
CONSOLIDATED STATEMENT OF CASH FLOWS OF THE COMPANY AND
COMBINED STATEMENTS OF CASH FLOWS OF THE PREDECESSOR (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AMOUNTS)
<TABLE>
<CAPTION>
PREDECESSOR
PRIME GROUP PROPERTIES
REALTY TRUST FROM
FROM JANUARY 1, PREDECESSOR PROPERTIES
NOVEMBER 17, 1997 YEAR ENDED DECEMBER 31
1997 TO NOVEMBER
TO DECEMBER 31, 16, ----------------------
1997 1997 1996 1995
---------------- -------------- ---------- ----------
<S> <C> <C> <C> <C>
INVESTING ACTIVITIES
Proceeds from sale of real estate...................... $ -- $ 298 $ 2,110 $ 921
Expenditures for real estate........................... (297,019) (5,659) (3,842) (4,842)
Purchase of mortgage note receivable................... (51,163) -- -- --
Cash contributed to service company.................... (376) -- -- --
Decrease (increase) in due from affiliates............. (5,258) 2,894 2,858 (5,255)
---------------- -------------- ---------- ----------
Net cash (used in) provided by investing activities.... (353,816) (2,467) 1,126 (9,176)
FINANCING ACTIVITIES
Proceeds from the sale of preferred shares............. 39,600 -- -- --
Proceeds from the sale of common shares................ 232,352 -- -- --
Proceeds from sale of operating partnership units...... 85,000 -- -- --
Additions to deferred financing costs.................. (3,328) -- (10) (225)
Proceeds from mortgage notes payable................... 243,198 480 1,239 9,815
Proceeds from mortgage notes payable -- Affiliates..... -- 5,647 5,891 2,693
Repayment of mortgage notes payable.................... (236,537) (119) (83) (384)
Repayment of mortgage notes payable -- Affiliates...... (4,895) (41,367) (1,150) (1,079)
Increase (decrease) in due to affiliates............... -- (708) (226) (347)
Contributions from partners............................ -- 44,330 80 872
Distributions to partners.............................. -- (120) (8) (357)
Distributions to minority interest..................... -- (120) -- --
Debt termination fees.................................. -- (1,692) -- --
Acquisition of partnership interest.................... -- -- -- (115)
---------------- -------------- ---------- ----------
Net cash provided by financing activities.............. 355,390 6,331 5,733 10,873
---------------- -------------- ---------- ----------
Net increase (decrease) in cash and cash equivalents... 8,232 (1,836) 3,694 438
Cash and cash equivalents at beginning of period....... 3,737 5,573 1,879 1,441
---------------- -------------- ---------- ----------
Cash and cash equivalents at end of period............. $ 11,969 $ 3,737 $ 5,573 $ 1,879
---------------- -------------- ---------- ----------
---------------- -------------- ---------- ----------
</TABLE>
F-7
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
CONSOLIDATED STATEMENT OF CASH FLOWS OF THE COMPANY AND
COMBINED STATEMENTS OF CASH FLOWS OF THE PREDECESSOR (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AMOUNTS)
<TABLE>
<S> <C>
Supplemental disclosure of non-cash investing and financing activities:
The following assets and liabilities (Represents the Predecessor Properties,
$12,000 of bonds receivable, $241 of other assets and $368 of other liabilities
contributed by the Predecessor. The bonds receivable have been netted against
the corresponding bonds payable of the Predecessor Properties.) were contributed
by certain minority interest partners to the Company on November 17, 1997:
Real estate, net................................................................ $ 243,637
Cash and cash equivalents....................................................... 3,737
Tenant receivable............................................................... 41,813
Deferred costs, net............................................................. 25,270
Other assets.................................................................... 885
---------
Total assets...................................................................... 315,342
Mortgage notes payable............................................................ 241,432
Bonds payable..................................................................... 74,450
Accrued interest payable.......................................................... 1,420
Accrued real estate taxes......................................................... 10,359
Accounts payable and accrued expenses............................................. 7,711
Liabilities for leases assumed.................................................... 6,108
Other liabilities................................................................. 2,529
Minority interests................................................................ (6,564)
---------
Total liabilities and minority interests.......................................... 337,445
---------
Predecessor owners' net contribution.............................................. $ (22,103)
---------
---------
</TABLE>
The following represents non-cash activity for the Company during the period
from November 17, 1997 to December 31, 1997:
<TABLE>
<S> <C>
Mortgage note receivable........................................................... $ 5,100
Real estate........................................................................ 48,814
---------
$ 53,914
---------
Debt assumed....................................................................... $ 10,396
Partnership units issued to minority interest...................................... 42,088
Step-up in basis from purchase of third-party owner's interest in predecessor...... 1,430
---------
$ 53,914
---------
---------
</TABLE>
See accompanying notes.
F-8
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
1. FORMATION AND ORGANIZATION OF THE COMPANY
Prime Group Realty Trust (together with its consolidated subsidiaries and
unconsolidated investment subsidiary, the "Company") was organized in Maryland
on July 21, 1997. The Company was formed to continue the business of The Prime
Group, Inc. and certain of its affiliates (collectively "PGI"). The Company will
make an election to qualify as a real estate investment trust ("REIT") for the
period ended December 31, 1997, under the Internal Revenue Code of 1986, as
amended, for Federal income tax purposes. On November 17, 1997, the Company
completed an initial public offering (the "Offering") of 12,380,000 Common
Shares of Beneficial Interest ("Common Shares") at $20.00 per share and the
private placement (the "Private Placement") of 2,000,000 Cumulative Convertible
Preferred Shares of Beneficial Interest ("Preferred Shares") at $20.00 per
share. Net of underwriting discounts and expenses, the Company received
approximately $260,792 in net proceeds from the Offering and Private Placement.
On December 12, 1997, the underwriters of the Offering exercised their
overallotment option to purchase 600,000 shares of Common Shares at $20.00 per
share ("Overallotment"). The Company received net proceeds of approximately
$11,160 on December 15, 1997, with respect to the overallotment option.
Upon consummation of the Offering and Private Placement, the Company
contributed the initial net proceeds from the Offering and Private Placement in
exchange for 12,380,000 common units of partnership interest ("Common Units")
and 2,000,000 preferred units of partnership interest ("Preferred Units") in
Prime Group Realty, L.P. (the "Operating Partnership"). The Operating
Partnership also sold 4,569,893 Common Units for $85,000 to Primestone Joint
Venture ("Primestone"--PGI obtained a 60% ownership interest in Primestone in
exchange for the contribution of 3,375,000 of its Common Units received from the
contribution of its interest in the Prime Properties to the Operating
Partnership described below. Primestone has at 34.2% limited partner ownership
interest in the Operating Partnership at December 31, 1997). The Operating
Partnership used such proceeds primarily to repay certain mortgages and other
indebtedness, acquired interests in certain of the properties ("Prime
Properties") owned or controlled by the PGI (the "Predecessor") and other
contributor's (defined below) and purchase various office and industrial
properties from an unaffiliated third parties. The Company contributed the net
proceeds from the Overallotment to the Operating Partnership in exchange for
600,000 Common Units. The Operating Partnership, in turn, used such proceeds
primarily for property acquisitions.
The Company is the managing general partner of the Operating Partnership and
owns all of the Preferred Units and 55.9% of the Common units issued at December
31, 1997. Each Common Unit entitles the Company to receive distributions from
the Operating Partnership. Distributions declared or paid to holders of Common
Stock are based upon such distributions received by the Company with respect to
its Common Units.
Upon consummation of the Offering, PGI contributed its interest in the Prime
Properties to the Operating Partnership in exchange for 3,465,000 Common Units
(After the contribution of 3,375,000 Common Units to Primestone, PGI has a 0.5%
direct limited partner interest in the Operating Partnership at December 31,
1997), and received approximately $6,487 for the reimbursement of formation
costs advanced by PGI. A senior executive of the Company contributed his
interest in the Prime Properties to the Operating Partnership in exchange for
110,000 Common Units (a 0.5% limited partner interest of the Operating
Partnership at December 31, 1997). In addition, the Operating Partnership was
required to acquire a third-party ownership interest in certain of the Prime
Properties for $1,797, resulting in a step-up in the basis of real estate of
$3,227. Certain individuals (collectively, the "Contributors") contributed their
F-9
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
1. FORMATION AND ORGANIZATION OF THE COMPANY (CONTINUED)
ownership interests in various properties, including the related debt, to the
Operating Partnership in exchange for cash of approximately $15,761 and
1,849,417 Common Units (a 3.9% general partner interest of the Operating
Partnership and a 3.9% limited partner interest of the Operating Partnership at
December 31, 1997), valued at $20.00 per unit (Total value of $36,988.). These
properties, along with other acquired properties are controlled by the Operating
Partnership (the "New Entities") and are described below. PGI, the senior
executive and the Contributors have been reflected as minority interest in the
consolidated financial statements of the Company.
On November 17, 1997, the Operating Partnership acquired the assets and
business of Continental Offices, Ltd. and Continental Offices, Ltd. Realty
("Continental Office Management") and contributed these entities and certain
other assets to a newly formed corporation, Prime Group Realty Services, Inc.
(the "Service Company"). In exchange for its contribution, the Company received
100% of the non-voting preferred stock of the Service Company and a note
receivable in the amount of $4,800 (see Note 11). Certain members of management
of the Company own 100% of the voting common stock. The Service Company was
formed primarily to operate business lines of the Company that are not directly
associated with the collection of rents. The Service Company is subject to
federal, state and local taxes.
Unless the context requires otherwise, all references to the Company herein
mean Prime Group Realty Trust and those entities owned or controlled by Prime
Group Realty Trust, including the Operating Partnership.
The Prime Properties represent a combination of 23 partnerships described
below (PGI Partnerships) that own, operate, and manage office and industrial
properties in the greater Chicagoland area and Tennessee. The Prime Properties
were under common management and ownership of PGI as either the managing general
partner (responsible for the operations of the Prime Properties) or 100% owner.
Prior to the contribution of the Properties, six of the Partnerships had third
party owners (Third Party), whose ownership interests have been reflected as a
minority interest in the combined financial statements of the Predecessor.
The Prime Properties consisted of the following at November 16, 1997.
<TABLE>
<CAPTION>
PARTNERSHIP PROPERTY
- ---------------------------------------------- ----------------------------------------------
<S> <C>
77 West Wacker Limited Partnership (77 West 77 West Wacker Building
Wacker)
Nashville Office Building I, Ltd. Nashville Office Building
Professional Plaza, Ltd. Professional Plaza
Old Kingston Properties, Ltd. Old Kingston
Two Centre Square, Ltd. Two Centre Square
Hammond Enterprise Center Limited Partnership Hammond Enterprise Center
(HEC)
</TABLE>
F-10
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
1. FORMATION AND ORGANIZATION OF THE COMPANY (CONTINUED)
<TABLE>
<CAPTION>
PARTNERSHIP PROPERTY
- ---------------------------------------------- ----------------------------------------------
<S> <C>
East Chicago Enterprise Center Limited East Chicago Enterprise Center
Partnership (ECEC)
Kemper/Prime Industrial Partners (KP) Chicago Enterprise Center
Enterprise Center I, L.P. (ECI) Enterprise Center I
Enterprise Center II, L.P. Enterprise Center II
Enterprise Center III, L.P. Enterprise Center III
Enterprise Center IV, L.P. Enterprise Center IV
Enterprise Center V, L.P. Enterprise Center V
Enterprise Center VI, L.P. Enterprise Center VI
Enterprise Center VII, L.P. Enterprise Center VII
Enterprise Center VIII, L.P. Enterprise Center VIII
Enterprise Center IX, L.P. Enterprise Center IX
Enterprise Center X, L.P. Enterprise Center X
Arlington Heights I, L.P. Arlington Heights I
Arlington Heights II., L.P. Arlington Heights II
Arlington Heights III, L.P. Arlington Heights III
Triad Parking Company, Ltd. Triad Parking Facility
77 Fitness Center, Ltd. (1) Executive Sports and Fitness Center
</TABLE>
- ------------------------
(1) The Operating Partnership contributed this entity to the Service Company on
November 17, 1997, including net equipment of $83, cash of $376 and accounts
payable of $839.
F-11
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
1. FORMATION AND ORGANIZATION OF THE COMPANY (CONTINUED)
The entity name and related property of the New Entities (the properties
were either contributed or acquired at the Offering date, unless otherwise
noted) operated by the Operating Partnership at December 31, 1997 are as
follows:
<TABLE>
<CAPTION>
ENTITY PROPERTY
- ---------------------------------------------- ----------------------------------------------
<S> <C>
1990 Algonquin Road, L.L.C. 1990 Algonquin Road
2010 Algonquin Road, L.L.C. 2010 Algonquin Road
555 Huehl Road, L.L.C. 555 Huehl Road
1669 Woodfield Road, L.L.C. 1669 Woodfield Road
475 Superior Avenue, L.L.C. 475 Superior Avenue
Enterprise Drive, L.L.C. 2205-2255 Enterprise Drive
280 Shuman Blvd., L.L.C. 280 Shuman Blvd.
Continental Towers, L.P. (1) Continental Towers
2675 N. Mayfair Road, L.L.C. (2) 2675 N. Mayfair Road
Prime Columbus Industrial, L.L.C. 2160 McGaw Road, 4849 Groveport Road, 2400
McGaw Road, 5160 Blazer Memorial Parkway, 600
London Road and 4411 Marketing Place
Libertyville Tech Way, L.L.C. 1001 Technology Way
801 Technology Way, L.L.C. 801 Technology Way
3818 Grandville, L.L.C. 3818 Grandville/1200 Northwestern
306 Era Drive, L.L.C. 306-310 Era Drive
1301 Ridgeview Drive, L.L.C. 1301 Ridgeview Drive
515 Huehl Road, L.L.C. 515 Huehl Road/500 Lindberg
455 Academy Drive, L.L.C. 455 Academy Drive
1051 N. Kirk Road, L.L.C. 1051 N. Kirk Road
4211 Madison Street, L.L.C. 4211 Madison Street
200 E. Fullerton, L.L.C. 200 E. Fullerton
350 Randy Road, L.L.C. 350 Randy Road
4300 Madison Street, L.L.C. 4300, 4248, 4250 Madison Street
</TABLE>
F-12
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
1. FORMATION AND ORGANIZATION OF THE COMPANY (CONTINUED)
<TABLE>
<CAPTION>
ENTITY PROPERTY
- ---------------------------------------------- ----------------------------------------------
<S> <C>
370 Carol Lane, L.L.C. 370 Carol Lane
388 Carol Lane, L.L.C. 388 Carol Lane
941 Weigel Drive, L.L.C. 941-961 Weigel Drive
342 Carol Lane, L.L.C. 342-346 Carol Lane
343 Carol Lane, L.L.C. 343 Carol Lane
371 N. Gary Avenue, L.L.C. 371-385 N. Gary Avenue
350 N. Mannheim Road, L.L.C. 350 N. Mannheim Road
1600 167th Street, L.L.C. 1600-1700 167th Street
1301 E. Tower Road, L.L.C. 1301 E. Tower Road
4343 Commerce Court, L.L.C. 4343 Commerce Court
11039 Gage Avenue, L.L.C. 11039 Gage Avenue
11045 Gage Avenue, L.L.C. 11045 Gage Avenue
1401 S. Jefferson, L.L.C. 1401 S. Jefferson
4100 Madison Street, L.L.C. 4100 Madison Street
4160 Madison Street, L.L.C. 4160-4190 Madison Street
550 Kehoe Blvd., L.L.C. 550 Kehoe Blvd.
</TABLE>
- ------------------------
(1) On December 15, 1997, the Company acquired the first mortgage note
encumbering the property for $108,870. The note has a face value of $157,161
at December 31, 1997, has a base interest rate of 6.5% per annum payable
monthly, contingent interest rate of 6.5% per annum, payable from available
cash flow as defined. All unpaid interest is added to principal. The note
matures January 2013. The Company will receive all of the economic benefits
from its interest in the property and therefore, the Company has
consolidated the operations of the property from the acquisition date.
(2) The Company acquired the property on December 30, 1997 for $8,000.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION
The consolidated financial statements of the Company include the accounts of
the Company, the Operating Partnership and the partnerships in which the Company
has majority interest or control. The combined financial statements of the
Predecessor include the accounts of the PGI Partnerships. The
F-13
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Investments in corporations and partnerships in which the Company does not
have operational control or a majority interest are accounted for on the equity
method of accounting.
Significant intercompany accounts and transactions have been eliminated in
consolidation and combination.
REAL ESTATE
Depreciation is calculated on the straight-line method over the estimated
useful lives of assets, which are as follows:
<TABLE>
<S> <C>
Building and improvements 40-50 years
Tenant improvement Term of related leases
</TABLE>
Development costs, which include fees and costs incurred in developing new
properties, are capitalized as incurred. Upon completion of construction,
development costs are amortized over the useful lives of the respective
properties on a straight-line basis. Interest and other direct costs incurred
during construction periods are capitalized as a component of the building
costs.
Real estate is carried at depreciated cost. Expenditures for ordinary
maintenance and repairs are expensed to operations as incurred. Significant
renovations and improvements which improve and/or extend the useful life of the
asset are capitalized and depreciated over their estimated useful life.
CASH EQUIVALENTS
The Company considers highly liquid investments with a maturity of three
months or less when purchased to be cash equivalents.
DEFERRED COSTS
Deferred financing costs are amortized on the straight-line method over the
terms of the loans. Deferred leasing costs are amortized on the straight-line
method over the terms of the related lease agreements.
LEASES ASSUMED
In connection with obtaining certain tenant leases 77 West Wacker assumed
liability for the remaining terms of the tenants' existing leases. 77 West
Wacker has recorded a liability for the difference between total remaining costs
for leases assumed and the expected benefits from subleases of the assumed lease
properties. The related incentive to lessee has been capitalized as a deferred
charge and is being amortized
F-14
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
to rental revenue over the life of the respective lease. The deferred charge and
related liability are adjusted for changes in the expected benefits from
subleases. During the period from January 1, 1997 to November 16, 1997, and for
the year ended December 31, 1996, 77 West Wacker wrote off $1,049 and $3,893,
respectively, of deferred charges and reduced the related liability due to
changes in the estimated benefits from subleases.
RENTAL REVENUE
Rental revenue is recorded on the straight-line method over the terms of the
related lease agreements. As a result, $180 and $487 of cash was received in
excess of recorded rental revenue during the period from November 17, 1997 to
December 31, 1997, and the period from January 1, 1997 to November 16, 1997,
respectively, and $645 and $8,779 of noncash rent was recorded as rental revenue
during the years ended December 31, 1996 and 1995, respectively, and are
included in accounts receivable. As of December 31, 1997 and 1996, the balance
of the accounts receivable relating to the straight-lining of rental revenue is
$37,784 and $38,451, respectively.
INTEREST RATE SWAP AGREEMENT
77 West Wacker has entered into an interest rate swap agreement to
effectively convert its variable-rate borrowing into a fixed-rate obligation.
(The agreement was terminated November 16, 1997 -- see Note 5)
EARNINGS PER SHARE
On December 31, 1997, the Company adopted Statement of Financial Accounting
Standards ("SFAS") No. 128, "Earnings per Share" which specifies the method of
computation, presentation, and disclosure for earnings per share ("EPS"). SFAS
No. 128 requires the presentation of basic EPS and diluted EPS. Basic EPS is
calculated by dividing net income available to common shareholders by the
weighted average number of shares outstanding during the period. Diluted EPS
includes the potentially dilutive effect, if any, which would occur if
outstanding (i) Common Stock options were exercised, (ii) Common Units were
converted into shares of Common Stock, and (iii) Preferred Shares were converted
into shares of Common Stock.
STOCK BASED COMPENSATION
The Company accounts for stock option grants in accordance with Accounting
Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees"
("APB 25"). Under APB 25, no compensation expense is recognized for the stock
option grants because the exercise price of the options equals the market price
of the underlying stock at the date of grant.
INCOME TAXES
Commencing with the period ended December 31, 1997, it is the intent of the
Company to qualify as a real estate investment trust (REIT) under the Internal
Revenue Code of 1986, as amended. As a REIT, the Company generally will not be
subject to federal income tax to the extent that is distributes at lease 95% of
F-15
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
its REIT taxable income to its shareholders. REITs are subject to a number of
organizational and operational requirements. If the Company fails to qualify as
a REIT in any taxable year, the Company will be subject to federal income tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate tax rates.
As of December 31, 1997, for income tax purposes, tenant receivables has a
basis of $3,744, real estate has a gross and net basis of $672,618 and $647,565,
respectively and deferred costs has a gross and net basis of $43,835 and
$28,472, respectively.
The Partnerships pay no income taxes, and the income or loss from the
Partnerships is includable on the respective income tax returns of the Partners.
3. MORTGAGE NOTE RECEIVABLE
On December 16, 1997, the Company acquired the first mortgage note
encumbering the office property known as 180 North LaSalle Street, which is a
39-story office building, located in Chicago, Illinois, that contains 729,000
square feet of rentable space, including 15,000 square feet of retail space and
is approximately 81% leased at December 31, 1997. The first mortgage note, which
has a face value of $63,329 at December 31, 1997 and an interest rate of 8.25%,
was purchased for approximately $51,163 in cash and $5,100 in Common Units
(256,572 Common Units, a 1.1% limited partner interest in the Operating
Partnership at December 31, 1997). Included in the purchase the Company acquired
an option, exercisable until July 30, 2000, to acquire the existing $85.0
million second mortgage on the property for 220,000 Common Units (5,000 Common
Units per month during the option period which are non-refundable) of the
Operating Partnership (subject to certain adjustments as defined) and has an
option to purchase the equity ownership of the property during the period from
January 15, 2004 to February 15, 2004 for a price equal to the greater of the
fair market value of the interest or $2,000. The Company will also provide
property management and leasing services for the property pursuant to a 10-year
management and leasing contract.
4. DEFERRED COSTS
Deferred costs consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31
----------------------
<S> <C> <C>
1997 1996
---------- ----------
Financing costs....................................................... $ 5,572 $ 6,757
Leasing costs......................................................... 23,182 35,386
---------- ----------
28,754 42,143
Less: Accumulated amortization........................................ (282) (15,260)
---------- ----------
$ 28,472 $ 26,883
---------- ----------
---------- ----------
</TABLE>
F-16
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
5. MORTGAGE NOTES AND BONDS PAYABLE
<TABLE>
<CAPTION>
DECEMBER 31
-------------------------
<S> <C> <C>
1997 1996
------------- ----------
Line-of-credit (Line-of-Credit) with various financial institutions, collateralized by
the 77 West Wacker Building with maximum draw of $235,000, bearing interest at rates
ranging from the higher of prime rate or federal funds rate plus 1/2%, to Eurodollar
rate plus 1.2% to 1.5%, per annum (7.23% at December 31, 1997), as defined, with
interest payable monthly and principal due November 2000. The Line-of-Credit has also
been used to provide letters-of-credit totaling $75,848 as of December 31, 1997, on
bonds payable described below........................................................ $ 159,000 $ --
Mortgage note payable to a financial institution, collateralized by 1001 Technology
Way, interest at 8.3% per annum with principal and interest payable monthly through
October 2011......................................................................... 6,412 --
Mortgage notes payable to a financial institution, collateralized by various of the New
Enties interest at 7.19% per annum with interest payable monthly and principal due
April 30, 1998 (See Note 17.)........................................................ 83,500 --
Mortgage note payable to a financial institution collateralized by Continental Towers,
interest at prime rate (8.50% at December 31, 1997) per annum with principal and
interest payable monthly through January 1998........................................ 698 --
Mortgage notes payable to various commercial lenders(A)................................ -- 229,361
Mortgage notes payable to various financial institutions, interest at variable rate of
prime plus 1/2% per annum and a fixed rate of 7.375% per annum with principal and
interest payable monthly through October 1998........................................ -- 6,525
------------- ----------
$ 249,610 $ 235,886
------------- ----------
------------- ----------
Bonds payable:
Variable rate taxable and tax-exempt bonds issued by various state and local
government authorities(B),(C)...................................................... $ 74,450 $ 74,450
------------- ----------
------------- ----------
</TABLE>
- ------------------------
(A) 77 West Wacker had entered into a mortgage note agreement (Agreement) with a
consortium of commercial lenders providing a maximum loan of $230,000 (Loan)
and was collateralized by a first mortgage on the 77 West Wacker Building.
The Loan was repaid with proceeds of the Offering and Private Placement.
Under the terms of the Agreement, 77 West Wacker made monthly interest-only
payments. Interest was calculated using certain variable rate indices, as
defined. To reduce the impact of increases in interest rates, 77 West Wacker
also entered into an interest rate swap agreement with affiliates of one of
77 West Wacker's Third Party owner (Counterparties) for the outstanding
principal balance on the Agreement up to a maximum principal amount of
$230,000. Under the terms of the interest rate swap agreement, 77 West
Wacker paid the Counterparties interest monthly at a fixed rate
F-17
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
5. MORTGAGE NOTES AND BONDS PAYABLE (CONTINUED)
of 10% per annum. 77 West Wacker was to receive monthly interest payments
from the Counterparties at the variable rate and was then responsible for
making the monthly interest payments required under the terms of the
Agreement. 77 West Wacker incurred $692 of fees to terminate the swap
agreement, which have been reflected in the extraordinary item --
extinguishment of debt in the period from January 1, 1997 to November 16,
1997.
(B) Permanent financing for the development of certain industrial properties has
been provided by $48,150 of tax exempt industrial development revenue bonds
(Bonds). (See Note 6--on December 13, 1995, and on May 20, 1996, the Bonds
were acquired by independent third party financial institutions from an
affiliate of PGI.) The Bonds mature on June 1, 2022.
Under the terms of the Bond loan agreements, the borrowing partnerships are
to make interest-only payments monthly, calculated using a floating rate
determined by the Remarketing Agent of the Bonds. The rates ranged from
3.35% to 4.75% during 1997, 2.85% to 4.40% during 1996, and 5.25% to 5.51%
during 1995. The rate at December 31, 1997, was 4.40% and at December 31,
1996, was 4.40%.
The maximum annual interest rate on the Bonds is 13%. Under certain
conditions, the interest rate on the Bonds may be converted to a fixed rate
at the request of the borrowing Partnership.
Beginning November 17, 1997, the Bonds were collateralized by letters of
credit totaling $48,918 from the Line-of-Credit. From May 1996 to November
16, 1997, the Bonds were collateralized by letters of credit that required
the borrowing PGI Partnerships to pay financing fees of 1.75% per annum of
the face amount, payable quarterly in advance.
The bondholders may tender bonds on any business day during the variable
interest rate period discussed above and receive principal, plus accrued
interest through the tender date. Upon tender, the remarketing agent shall
immediately remarket the Bonds. In the event the remarketing agent fails to
remarket any Bonds, the borrowing Partnerships are obligated to purchase
those Bonds. The remarketing agent receives a fee of .11% per annum of the
outstanding Bonds balance, payable quarterly in advance.
(C) Permanent financing for the development of certain office properties has
been provided by $26,300 of tax exempt industrial revenue bonds (IRBs). The
IRB's mature on December 1, 2014. Under the terms of the IRB agreements, the
borrowing Partnerships are to make interest-only payments monthly,
calculated using a floating rate determined by the remarketing agent of the
IRBs. The rates ranged from 3.35% to 3.85% during the 1997, 3.40% to 4.05%
during 1996, and 3.40% to 4.50% during 1995. The rates at December 31, 1997,
were 3.85% and at December 31, 1996, were 3.50%.
Under certain conditions, the interest rates on the IRBs may be converted to
a fixed rate at the request of the borrowing partnerships.
The IRBs are collateralized by letters of credit totaling $26,930 from the
Line-of-Credit.
Under the terms of the IRB agreements, the bondholders have the option to
require the borrowing Partnerships to purchase any of its IRBs on the 15th
day of any month while the IRBs are outstanding. Upon the exercise of the
bondholders' option to purchase the IRBs, the remarketing agent shall
F-18
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
5. MORTGAGE NOTES AND BONDS PAYABLE (CONTINUED)
immediately remarket the IRBs. In the event the remarketing agent fails to
remarket the IRBs, the borrowing Partnerships are obligated to purchase
those IRBs.
Total interest paid on the mortgage notes payable and bonds payable was
$1,855 and $25,731 for the period from November 17, 1997 to December 31,
1997, and the period from January 1, 1997 to November 16, 1997,
respectively, and $25,643 and $25,490 for the years ended December 31, 1996
and 1995, respectively.
6. MORTGAGE NOTES AND BONDS PAYABLE--AFFILIATES
<TABLE>
<CAPTION>
DECEMBER 31
--------------------
<S> <C> <C>
1997 1996
--------- ---------
Mortgage note payable--Limited partner, collateralized by 801 Technology Way, interest at 7.0%,
per annum, with interest principal and interest due January 2, 1998........................... $ 3,984 $ --
Mortgage notes payable--Affiliate(A)............................................................ -- 99,357
Mortgage note payable--Affiliate; interest at 9.5% per annum with interest payable quarterly and
principal and accrued interest due on maturity date of March 7, 1998.......................... -- 290
--------- ---------
$ 3,984 $ 99,647
--------- ---------
--------- ---------
Bonds payable--Affiliate:
Variable rate taxable and tax-exempt bonds issued by state and local government authorities(B) $ -- $ 12,000
--------- ---------
--------- ---------
</TABLE>
- ------------------------
(A) 77 West Wacker had entered into a 11% subordinate loan agreement with
affiliates of its Third Party owner for a maximum disbursement amount of
$60,000. A portion of the loan was repaid ($4,895) with proceeds of the
Offering and the Private Placement, and a portion was considered repaid from
the swap agreement between PGI and the Third Party related to the Loan in
Note 5 ($42,584 was recorded as a contribution from PGI in the period from
January 1, 1997 to November 17, 1997.) and the remainder was forgiven
($67,847), as of November 16, 1997 and included in the extraordinary item --
extinguishment of debt in the period from January 1, 1997 to November 16,
1997. As of December 31, 1996 and 1995, $56,787 and $50,896, respectively,
has been funded under this agreement, and $40,873 and $30,871, respectively,
of accrued interest and $1,697 and $1,175, respectively, of standby loan
fees, have been added to the principal balance in accordance with the terms
of the agreement. The Third Party owner has provided a guarantee of 77 West
Wacker's first mortgage note payable and charges 77 West Wacker a standby
loan fee, as defined, which is included as a component of interest expense.
Standby loan fees incurred were $460 for the period from January 1, 1997 to
November 16, 1997, and $522 and $498 for the years ended December 31, 1996
and 1995, respectively, (included in general and administrative expenses in
the combined statements of operations of the Predecessor). Under the terms
of the subordinate loan agreement, 77 West Wacker was not required to make
any periodic principal or interest payments prior to the date of
stabilization, as defined; unpaid interest is added to the principal balance
monthly. Subsequent to the date of stabilization, as
F-19
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
6. MORTGAGE NOTES AND BONDS PAYABLE--AFFILIATES (CONTINUED)
defined, monthly payments of interest only are payable to the extent of
available cash flow, as defined, during the operating period, with the
entire outstanding balance due upon maturity.
(B) Permanent financing for the development of certain industrial and Private
Placement properties has been provided by $12,000 of tax exempt bonds which
were converted to taxable debt industrial development revenue bonds (IDBs).
The Bonds mature on June 1, 2022. On November 17, 1997, PGI contributed the
related bond receivables held by an affiliate as part of its contribution to
the Operating Partnership. On December 13, 1995, $60,150 of IDBs were
acquired by an affiliate of PGI from the Third Party. On December 13, 1995,
$28,300 and on May 20, 1996, $19,850 of the IDBs were sold to independent
third party financial institutions by the affiliate of PGI.
Under the terms of the IDB loan agreement, the borrowing Partnerships are to
make interest-only payments semi-annually, calculated using a floating rate
determined by the Remarketing Agent of the IDBs. The rates were 5.501%
during 1997, 3.90% to 5.501% during 1996, and 5.25% to 5.51% during 1995.
The rates at December 31, 1997, were 5.501% and at December 31, 1996, were
5.501%.
The maximum annual interest rate on the IDBs is 13%. Under certain
conditions, the interest rate on the IDBs may be converted to a fixed rate
at the request of the respective borrowing Partnership. The bondholders may
tender bonds on any business day during the variable interest rate period
discussed above and receive principal, plus accrued interest through the
tender date. Upon tender, the remarketing agent shall immediately remarket
the IDBs. In the event the remarketing agent fails to remarket any IDBs, the
borrowing Partnership is obligated to purchase those IDBs. The remarketing
agent receives a fee of .11% per annum of the outstanding IDB balance,
payable quarterly in advance.
Included in the extraordinary item -- extinguishment of debt in the period
from January 1, 1997 to November 16, 1997, are $1,000 in loan termination fees
paid to an affiliate of the Third Party and the write-off of unamortized
deferred financing of $165.
In 1995, mortgage notes payable to the Third Party totaling $2,716 and
accrued interest of $200 were forgiven by the Third Party. The notes bore
interest at 8.5%, payable quarterly from available cash flow.
Total interest paid on the mortgage notes payable and bonds payable to
affiliates was $32 for the period from January 1, 1997 to November 16, 1997,
respectively, and $1,256 and $3,538 for the years ended December 31, 1996 and
1995, respectively. No interest was paid for the period from November 17, 1997
to December 31, 1997.
7. FUTURE MINIMUM LEASE INCOME AND PAYMENTS
The Company has entered into lease agreements with lease terms ranging from
one-year to twenty years. The leases generally provide for tenants to share in
increases in operating expenses and real estate taxes in excess of specified
base amounts.
Approximately 39% and 57%, 60% and 65%, of the rental revenue for the period
from November 17, 1997 to December 31, 1997, and the period from January 1, 1997
to November 16, 1997, and for the years ended December 31, 1996 and 1995,
respectively, was received from four tenants.
F-20
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
7. FUTURE MINIMUM LEASE INCOME AND PAYMENTS (CONTINUED)
The total future minimum rentals to be received under such noncancelable
operating leases executed through December 31, 1997, exclusive of tenant
reimbursements and contingent rentals, are as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31 AMOUNT
- -------------------------------------------------------------- ----------
<S> <C>
1998.......................................................... $ 56,322
1999.......................................................... 52,738
2000.......................................................... 47,232
2001.......................................................... 40,373
2002.......................................................... 35,763
Thereafter.................................................... 145,908
----------
$ 378,336
----------
----------
</TABLE>
Future minimum rentals include amounts to be received from the Company
totaling $2,546 and from PGI totaling $3,710.
In addition, as a part of lease agreement entered into with certain tenants
of 77 West Wacker Building, 77 West Wacker assumed the tenants' leases at other
properties and subsequently executed subleases for certain of the assumed lease
space. Net future minimum rental payments due under leases assumed and subleases
executed through December 31, 1997, are as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31 AMOUNT
- ----------------------------------------------------------------- ---------
<S> <C>
1998............................................................. $ 1,210
1999............................................................. 1,235
2000............................................................. 1,263
2001............................................................. 1,293
2002............................................................. 757
---------
$ 5,758
---------
---------
</TABLE>
During 1995, a tenant of the 77 West Wacker Building experienced financial
difficulties and began negotiations with 77 West Wacker to reduce its leased
space, resulting in an amendment to the tenant's lease agreement. As a result of
the lease amendment, 77 West Wacker wrote-off $13,373 of deferred tenant costs,
representing $10,296 of tenant receivables related to straight-lining of the
tenant's rental revenue, $2,257 of deferred leasing costs, and $820 of tenant
improvements. The same tenant continued to experience financial difficulty and
in 1997 defaulted on certain 1997 rental payments. As a result of the default,
as of December 31, 1996, 77 West Wacker wrote-off $3,081 of deferred tenant
costs, representing $940 of tenant receivables related to straight-lining of the
tenant's rental revenue and $2,141 of deferred leasing costs. In early November
1997, 77 West Wacker reached an agreement with the tenant to terminate the
lease. During the period from January 1, 1997 to November 16, 1997, 77 West
Wacker recognized revenue from this tenant only to the extent cash was received.
F-21
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
8. PREFERRED SHARES
The Company is authorized to issue up to 30,000,000 of non-voting preferred
shares of beneficial interest in one or more series. At December 31, 1997,
2,000,000 Cumulative Convertible Preferred Shares of Beneficial Interest with a
$0.01 par value were outstanding. The Preferred Shares have a liquidation
preference equivalent to $20.00 per share plus the amount equal to any accrued
and unpaid dividends thereon ("Liquidation Preference").
Dividends on the Preferred Shares are payable quarterly at the greater of:
(i) (x) an annual rate equal to the product of the Issue Price ($20.00)
multiplied by 0.07% for Dividend Periods ending before November 17, 1998 (The
Company declared a dividend of $0.173 per Preferred Share on December 31,
1997.), and (y) an annual rate equal to the product of the Issue Price
multiplied by 0.075% for dividend periods ending after November 17, 1998, or
(ii) the regular cash dividends (determined on each dividend payment date) on
the Common Shares, or portion thereof, into which a Preferred Share is
convertible. The amount of dividends referred to in clause (i) above payable for
each full dividend period on the Preferred Shares, other than the dividend
period commencing October 1, 1998, shall be computed by dividing the annual
dividend rate by four. For the dividend period commencing October 1, 1998, the
amount of dividends through November 17, 1998, on the Preferred Shares shall be
computed by dividing the product of the Issue Price times 0.07% by 365 and
multiplying the result by number of days from October 1, 1998 through November
17, 1998 and dividends from November 18, 1998 through December 31, 1998, on the
Preferred Shares shall be computed by dividing the product of the Issue Price
times .075% by 365 and multiplying the result by the number of days from
November 18, 1998 through December 31, 1998. The amount of dividends referred to
in clause (ii) above shall equal the number of Common Shares, or portion
thereof, into which a Preferred Share will be convertible on or after the
conversion date as defined, multiplied by the most current quarterly dividend on
a Common Share on or before the applicable dividend payment date. The Preferred
Shares are convertible into shares of Common Shares, at the shareholders'
option, upon the earliest to occur of: (i) September 17, 1998, (ii) the first
day on which a change of control occurs, as defined, (iii) the occurrence of a
REIT termination event, as defined, or (iv) such date as determined by the
Company (the Conversion Date), to convert all or any portion of such shares (or
such shares as determined by the Company if pursuant to clause (iv) above) into
the number of fully paid and non-assessable Common Shares obtained by dividing
the aggregate Liquidation Preference Amount of such shares by the conversion
price by surrendering such shares to be converted. In the case of Preferred
Shares called for redemption, conversion rights shall expire at the close of
business on the fifth business day prior to the redemption date fixed for such
redemption.
The Company has the right to redeem the Preferred Shares beginning on and
after November 17, 2007, in cash equal to 100% of the Liquidation Preference.
Notwithstanding, anything above to the contrary, beginning on June 17, 1998, and
ending on September 17, 1998, the Company, at its option, may redeem all, but
not less than all, of the Preferred Shares at a premium (the "Special Redemption
Price") calculated to result in a total internal rate of return to the holder
(including the receipt of dividends and calculated on an annual compounded basis
as if the holder had owned the shares since the Issue Date) of 20.0%. The
Special Redemption Price may be paid, at the Company's option, in any
combination of: (i) cash, and (ii) Common Shares valued at fair market value;
provided, that the cash portion of the Special Redemption Price shall equal at
least 75.0% of the Special Redemption Price.
F-22
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
8. PREFERRED SHARES (CONTINUED)
The holders of the Preferred Shares have the right to elect two additional
members to the Company's Board of Directors if the equivalent of two quarterly
dividends are in arrears. Each of such two directors will be elected to serve
until the earlier of: (1) the election and qualification of such directors'
successor, or (2) payment of the dividend average.
9. EARNINGS PER SHARE
The following table sets forth the computation of basic and diluted: net
income available per weighted-average common share of beneficial interest for
the period from November 17, 1997 to December 31, 1997:
<TABLE>
<S> <C>
Numerator:
Net income available to common shareholders................... $ 447
---------
---------
Denominator:
Weighted-average common shares of beneficial interest......... 12,593,000
---------
---------
Net income available per weighted-average common share of
beneficial interest--basic and diluted:....................... $ .04
---------
---------
</TABLE>
Options to purchase 1,223,000 Common Shares at $20.00 per share were
outstanding during the period from November 17, 1997 to December 31, 1997 but
were not included in the computation of diluted earnings per share because the
options' exercise price was greater than the average market price of the common
shares and, therefore, the effect would be antidilutive.
The Company had 10,250,882 Common Units outstanding during the period from
November 17, 1997 to December 31, 1997, of which 9,323,782 may be converted into
Common Shares, after one year from the completion of the Offering at the option
of the Company. The Convertible Common Units, on a one for one basis, were not
included in the computation of diluted earnings per share because the conversion
would be antidilutive.
The Company had 2,000,000 Preferred Shares outstanding during the period
from November 17, 1997 to December 31, 1997 but were not included in the
computation of diluted earnings per share because the conversion would be
antidilutive.
10. EMPLOYEE BENEFIT PLANS
On November 17, 1997 the Company established a Share Incentive Plan (the
"Plan") which permits the grant of stock options, stock appreciation rights,
restricted stock, restricted units and performance units to officers and other
key employees of the Company, its subsidiaries, the Operating Partnership, the
Services Company and Company-owned partnerships. The Plan also permits the grant
of stock options to non-employee Trustees.
Under the Plan, up to 1,850,000 Common Shares may be issued of transferred
to participants. The maximum aggregate number of Common Shares and Share
equivalent units that may be subject to awards granted during any calendar year
to any one participant under the Plan, regardless of the type of awards,
F-23
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
10. EMPLOYEE BENEFIT PLANS (CONTINUED)
will be 200,000. This limit will apply regardless of whether such compensation
is paid Common Share of its cash.
The effects on unaudited pro forma net income and pro forma earnings per
common share for the period from November 17, 1997 to December 31, 1997of
amortizing to expense the estimated fair value of stock options are not
necessarily representative of the effects on net income to be reported in future
years due to such things as vesting period of the stock options, and the
potential for issuance of additional stock options in future years. For purposes
of pro forma disclosures, the estimated fair value of the options is amortized
to expense over the options' vesting period.
Under the Plan, each person serving as a Trustee on November 17, 1997,
received options to acquire 5,000 shares. Stock options granted to the Trustees
have a term of 10 years and will vest and be exercisable at the rate of 33.3%
per year over three years commencing on the first anniversary of their date of
grant. On November 17, 1997, each of the seven Trustees received options to
acquire 5,000 shares at $20.00 per share (the closing price on the day of the
grant of the options).
The Board administers the Plan and has the authority to determine, among
other things, the individuals to be granted options, the exercise price at which
shares may be acquired, the number of shares subject to options and the vesting
requirements and the exercise period of each option. The Board is granted
discretion to determine the term of each option granted under the Plan to
employees, executives and Trustees, but in no event will the term exceed ten
years and one day from the date of the grant. On November 17, 1997, the Board
granted options to purchase a total of 1,113,000 shares at an exercise price of
$20.00 per share (the closing price on the day of the grant of the options) to
various executives and employees of the Company. Options for the shares granted
under the Plan to executives and employees have a term of 10 years and will be
exercisable and vest in installments as follows: (i) 33.3% of the number of
shares commencing in the first anniversary of the date of grant; (ii) an
additional 33.3% for the shares commencing on the second anniversary of the date
of the grant; and (iii) the remainder of the shares commencing on the third
anniversary of the date of grant.
Under a consulting agreement between the Company and an executive of the
Company, the Board granted options to purchase 75,000 shares at an exercise
price of $20.00 per share. Pursuant to the agreement, the options granted have a
term of 10 years and will be exercisable and vest at the rate of 33.3% per year
over three years commencing on the first anniversary of their date of grant.
The unaudited pro forma information regarding net income and earnings per
share is required by SFAS No. 123, and has been determined as if the Company had
accounted for its options under the fair value method of that statement. The
fair value for the options was estimated at the date of grant using a
Black-Scholes option pricing model with the following weighted average
assumptions for 1997; risk free interest rate of 5.41%, dividend yield of 6.7%;
volatility factor of the expected market price of the Company's common stock of
.156; and a weighted-average expected life of the options of ten years. The
unaudited pro forma expense would be $69 ($0.01 per Common Share) for the period
from November 17, 1997 to December 31, 1997.
The Black-Scholes options valuation model was developed for use in
estimating the fair value of traded options which have no vesting restrictions
and are fully transferable. In addition, option valuation models require the
input of highly subjective assumptions including the expected stock price
volatility.
F-24
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
10. EMPLOYEE BENEFIT PLANS (CONTINUED)
Because changes in the subjective input assumptions can materially affect the
fair value estimate, in management's opinion the existing models do not
necessarily provide a reliable single measure of the fair value of the options
granted under the Plan.
A summary of the Company's stock option activity, and related information
for the period from November 17, 1997 through December 31, 1997 follows:
<TABLE>
<CAPTION>
WEIGHTED
SHARES AVERAGE
SUBJECT TO EXERCISE
OPTION PRICE PER SHARE
---------- ---------------
<S> <C> <C>
Initial options granted......................................... 1,223,000 $ 20.00
Options canceled................................................ -- --
---------- ------
Balance at December 31, 1997.................................... 1,223,000 $ 20.00
---------- ------
---------- ------
</TABLE>
At December 31, 1997, no options were exercised and options on 627,000
shares were available for future grant. Exercise prices for options outstanding
at December 31, 1997 were $20.00 per share. The remaining weighted-average
contractual life of these options was 9.88 years. The weighted-average grant
date fair value of all options granted during the period is $1.39.
11. RELATED PARTY TRANSACTIONS
The Company owns 100% of the nonvoting preferred stock of the Service
Company which has an initial carrying value of $425 and has provided a loan in
the amount of $4,800 to the Service Company (included in due from affiliates at
December 31, 1997). The loan bears interest at 11% per annum, with interest
payable monthly and principal due November 2007. During the period from November
17, 1997 to December 31, 1997, the Company recorded interest income of $66
(included in due from affiliates) related to the loan and $19, representing the
Company's share of the Service Company's loss from operations for the same
period. (The net of $47 is included in other income.) No interest income was
received during the period. In addition, the Company has made non-interest
bearing advances to the Service Company, of which approximately $392 is
outstanding at December 31, 1997 and included in due from affiliates.
F-25
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
RELATED PARTY TRANSACTIONS (CONTINUED)
In connection with the leasing and management of the Prime Properties, PGI
was entitled to payments and fees for services performed. Such amounts incurred
during the period from January 1, 1997 to November 16, 1997, and for the years
ended December 31, 1996 and 1995, are summarized as follows:
<TABLE>
<CAPTION>
PERIOD FROM
JANUARY 1, YEAR ENDED DECEMBER
1997 TO 31
NOVEMBER 16, --------------------
1997 1996 1995
------------- --------- ---------
<S> <C> <C> <C>
Property management fee(a).................................. $ 1,238 $ 1,429 $ 1,364
Administration fees(b)...................................... 463 468 730
Construction management(c).................................. -- 102 115
Legal fees(d)............................................... 271 127 77
Leasing fees(e)............................................. 2 19 280
Reimbursables(f)............................................ 252 184 352
Asset management fee(g)..................................... 110 132 132
</TABLE>
- ------------------------
(a) PGI was entitled to a property management fee ranging from 2.5% to 4% of
gross receipts, payable monthly in arrears. Amounts are included in property
and asset management fees to affiliates in the combined financial statements
of the Predecessor.
(b) PGI was entitled to an annual administration fee as defined in the
Partnership agreement. Amounts are included in general and administrative
expenses in the combined financial statements of the Predecessor.
(c) PGI was entitled to a construction management fee equal to 3% of
construction costs.
(d) PGI was reimbursed for reasonable legal and accounting expenses incurred in
connection with the operations of the Partnerships. Amounts are included in
general and administrative expenses in the combined financial statements of
the Predecessor.
(e) PGI was entitled to leasing commissions for all leases signed. The
commissions are equal to 1.5% to 3% of rent, exclusive of tenant
reimbursements, during the base term of the lease; commissions were payable
upon commencement of the respective leases.
(f) PGI was entitled to reimbursement for expenses paid for the benefit of the
Partnerships. Amounts are included in general and administrative expenses in
the combined financial statements of the Predecessor.
(g) PGI was entitled to an annual fee from providing asset management services
to the Partnership which is payable from available cash flows. Amounts are
included in property and asset management fees to affiliates in the combined
financial statements of the Predecessor.
Amounts due to affiliates are for amounts due for advances made by
affiliates. Amounts due from affiliates are for advances made by the Partnership
to affiliates. Amounts due from and due to affiliates bore interest at prime
plus 2% and were payable upon demand. Any unpaid amounts due to affiliates or
F-26
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
RELATED PARTY TRANSACTIONS (CONTINUED)
amounts due from affiliates as of November 16, 1997, have been reflected as
distributions to contributions from PGI.
Average balances of amounts due from and due to affiliates for the period
from January 1, 1997 to November 16, 1997, and for the years ended December 31,
1996 and 1995, were summarized as follows:
<TABLE>
<CAPTION>
PERIOD FROM YEAR ENDED DECEMBER
JANUARY 1, 1997 31
TO --------------------
NOVEMBER 16, 1997 1996 1995
----------------- --------- ---------
<S> <C> <C> <C>
Due from affiliates.................................... $ 1,447 $ 4,323 $ 3,251
Due to affiliates...................................... 354 821 1,107
</TABLE>
12. INSURANCE SETTLEMENT
On July 16, 1994, the Enterprise Center I property was destroyed by a fire.
During 1995, ECI received a final insurance settlement of $10,871 related to the
fire. The proceeds settled an insurance receivable of $1,755 recorded at
December 31, 1994, and additional costs of $1,859 incurred in 1995 related to
the cleanup of the property. ECI believes that all material costs of the fire
were incurred prior to December 31, 1995. The remaining proceeds of $7,257 have
been recorded as revenue in the 1995 combined statement of operations.
13. FAIR VALUES OF FINANCIAL INSTRUMENTS
Statements of Financial Accounting Standards No. 107, Disclosures About Fair
Value of Financial Instruments (SFAS No. 107) and No. 119, Disclosure about
Derivative Financial Instruments and Fair Value of Financial Instruments
requires disclosures of the fair value of certain on-and off-balance sheet
financial instruments for which it is practicable to estimate. Fair value is
defined by SFAS No. 107 as the amount at which the instrument could be exchanged
in a current transaction between willing parties, other than in a forced or
liquidation sale.
The following methods and assumptions were used by the Company and the PGI
Partnerships in estimating their fair value disclosures for financial
instruments.
CASH AND CASH EQUIVALENTS
The carrying amount of cash and cash equivalents reported in the
consolidated and combined balance sheets approximates its fair value.
The Company maintains its cash and cash equivalents at financial
institutions. The combined account balances at each institution periodically
exceed FDIC insurance coverage, and as a result, there is a concentration of
credit risk related to amounts on deposit in excess of FDIC insurance coverage.
Management believes that the risk is not significant.
F-27
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
13. FAIR VALUES OF FINANCIAL INSTRUMENTS (CONTINUED)
MORTGAGE NOTES AND BONDS PAYABLE
The carrying amount of the Company's and the PGI Partnerships' variable and
fixed rate borrowings approximate fair value based on the current borrowing rate
for similar types of borrowing arrangements.
The carrying amount of accrued interest in the consolidated and combined
balance sheets approximates fair value.
14. COMMITMENTS AND CONTINGENCIES
The Company is a defendant in legal actions arising during the normal course
of business. Management believes that the ultimate outcome of those actions will
not materially affect the Company's consolidated financial position.
All of the Prime Properties and New Entities were subject to Phase I or
similar environmental assessment by independent environmental consultants which
were intended to discover information regarding, and to evaluate the
environmental condition of, the surveyed property and surrounding properties.
Management is aware of contamination at certain of the industrial properties
included in the Prime Properties, which are already in remediation programs
sponsored by the state in which they are located. The Phase I assessments
estimate that remedial action plans will have a probable cost of approximately
$3,205. During 1997, PGI initiated lawsuits against a former environmental
consultant and a former tenant of one of these properties for damages to cover
the cost of the remedial action plans. However, the outcome of the lawsuits
cannot yet be determined and the actual cost to be incurred by the Company
cannot yet be determined. During 1997, the PGI Partnerships recorded a liability
of $3,205 (included in accounts payable and accrued expenses at December 31,
1997). PGI has contractually agreed to indemnify the Company from any
environmental liabilities the Company may incur and has pledged $1,000 and
approximately 485,000 partnership units in an operating partnership that can be
converted to common shares of a publicly traded real estate investment trust to
cover these costs.
15. UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
The accompanying unaudited Pro Forma Condensed Consolidated Statements of
Operations of the Company are presented as if, at January 1, 1996, (i) the
Company had completed the Offering, the Private Placement, and the Overallotment
and contributed the net proceeds to the Operating Partnership, (ii) PGI and
Contributors had contributed certain of their respective properties and
operations (the Contribution Properties) to the Operating Partnership, (iii) the
Operating partnership had completed the sale of Common Units to Primestone, (iv)
the Operating Partnership acquired various office and industrial properties (the
Acquisition Properties), and Continental Management Business from various third
parties, and (v) the Operating Partnership repaid debt on certain of the
Contribution Properties. The unaudited pro forma Condensed Consolidated
Statements of Operations should be read in conjunction with unaudited Pro Forma
condensed consolidated financial statements and all of the historical financial
statements contained in the Prospectus. In management's opinion, all adjustments
necessary to reflect the effects of the Offering and the Private Placement have
been made.
The unaudited Pro Forma Condensed Consolidated Statements of Operations of
the Company are not necessarily indicative of what the actual results of
operations would have been assuming the Offering,
F-28
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
15. UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(CONTINUED)
the Private Placement, and the Overallotment had occurred at the dates indicated
above, nor do they purport to represent the future results of operations of the
Company.
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------
1997 1996
------------ ------------
<S> <C> <C>
Total revenue.................................................... $ 100,308 $ 98,128
------------ ------------
------------ ------------
Net income....................................................... $ 7,725 $ 6,243
------------ ------------
------------ ------------
Earnings per common share........................................ $ 0.60 $ 0.48
------------ ------------
------------ ------------
</TABLE>
16. REAL ESTATE AND ACCUMULATED DEPRECIATION
<TABLE>
<CAPTION>
COST CAPITALIZED
INITIAL COST TO SUBSEQUENT TO
GROSS AMOUNT CARRIED
COMPANY ACQUISITION AT DECEMBER 31, 1997
---------------------- ---------------------- ---------------------------------
DECEMBER 31, BUILDING BUILDING BUILDING
1997 AND AND AND
------------- IMPROVE- IMPROVE- IMPROVE-
DESCRIPTION ENCUMBRANCES LAND MENTS LAND MENTS LAND MENTS TOTAL
- ------------------ ------------- --------- ----------- --------- ----------- --------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
OFFICE
77 W.Wacker Bldg.. $ 159,000 $ 17,637 $ 162,755 $ -- $ -- $ 17,637 $ 162,755 180,392
Nashville Office
Bldg............ 4,800 1,530 7,072 -- -- 1,530 7,072 8,602
Professional
Plaza........... 9,000 -- 7,090 -- -- -- 7,090 7,090
Old Kingston...... 3,500 378 2,808 -- -- 378 2,808 3,186
Two Center
Square.......... 9,000 -- 7,379 -- -- -- 7,379 7,379
Triad Parking
Facility........ -- 507 1,046 -- -- 507 1,046 1,553
Hammond Enterprise
Center.......... -- 26 614 -- -- 26 614 640
Chicago Enterprise
Center.......... -- 775 975 -- -- 775 975 1,750
1990 Algonquin
Road(1)......... -- 1,554 6,393 -- -- 1,554 6,393 7,947
2010 Algonquin
Road(1)......... -- 509 2,044 -- -- 509 2,044 2,553
555 Huehl
Road(1)......... -- 1,291 5,164 -- -- 1,291 5,164 6,455
1669 Woodfield
Road(1)......... -- 1,962 7,853 -- -- 1,962 7,853 9,815
475 Superior
Avenue.......... -- 2,700 10,801 -- -- 2,700 10,801 13,501
2205-2255
Enterprise
Drive(1)........ -- 2,304 9,259 -- -- 2,304 9,259 11,563
280 Shuman Blvd... -- 1,264 5,056 -- -- 1,264 5,056 6,320
Continental
Towers.......... 698 21,831 87,324 -- -- 21,831 87,324 109,155
2675 Mayfair...... -- 1,613 6,450 -- -- 1,613 6,450 8,063
<CAPTION>
DECEMBER 31,
1997
--------------- DATE OF
ACCUMULATED ACQUISITION(A)
DESCRIPTION DEPRECIATION(1) CONTRIBUTION(C)
- ------------------ --------------- ---------------
<S> <C> <C>
OFFICE
77 W.Wacker Bldg.. $ (835) 1997(C)
Nashville Office
Bldg............ (29) 1997(C)
Professional
Plaza........... (71) 1997(C)
Old Kingston...... (25) 1997(C)
Two Center
Square.......... (74) 1997(C)
Triad Parking
Facility........ (5) 1997(C)
Hammond Enterprise
Center.......... (4) 1997(C)
Chicago Enterprise
Center.......... (162) 1997(C)
1990 Algonquin
Road(1)......... (19) 1997(A)
2010 Algonquin
Road(1)......... (6) 1997(A)
555 Huehl
Road(1)......... (27) 1997(A)
1669 Woodfield
Road(1)......... (24) 1997(A)
475 Superior
Avenue.......... (29) 1997(A)
2205-2255
Enterprise
Drive(1)........ (27) 1997(A)
280 Shuman Blvd... (16) 1997(A)
Continental
Towers.......... (126) 1997(A)
2675 Mayfair...... (1) 1997(A)
</TABLE>
F-29
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
16. REAL ESTATE AND ACCUMULATED DEPRECIATION (CONTINUED)
<TABLE>
<CAPTION>
COST CAPITALIZED
INITIAL COST TO SUBSEQUENT TO
GROSS AMOUNT CARRIED
COMPANY ACQUISITION AT DECEMBER 31, 1997
---------------------- ---------------------- ---------------------------------
DECEMBER 31, BUILDING BUILDING BUILDING
1997 AND AND AND
------------- IMPROVE- IMPROVE- IMPROVE-
DESCRIPTION ENCUMBRANCES LAND MENTS LAND MENTS LAND MENTS TOTAL
- ------------------ ------------- --------- ----------- --------- ----------- --------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
INDUSTRIAL
ECEC(2)........... $ -- $ 27 $ 533 $ -- $ -- $ 27 $ 553 $ 560
EC I.............. 2,900 595 -- -- -- 595 -- 595
EC II............. 5,000 18 2,360 -- -- 18 2,360 2,378
EC III............ 4,500 20 7,038 -- -- 20 7,038 7,058
EC IV............. 2,600 11 1,217 -- -- 11 1,217 1,228
EC V.............. 5,000 81 2,883 -- -- 81 2,883 2,964
EC VI............. 4,900 101 2,936 -- -- 101 2,936 3,037
EC VII............ 7,200 548 4,968 -- -- 548 4,968 5,516
ECVIII............ 7,000 151 2,493 -- -- 151 2,493 2,644
EC IX............. 4,750 269 1,127 -- -- 269 1,127 1,396
EC X.............. 4,300 275 2,836 -- -- 275 2,836 3,111
Arlington Heights
I............... -- 617 2,638 -- -- 617 2,638 3,255
Arlington Heights
II.............. -- 456 2,062 -- -- 456 2,062 2,518
Arlington Heights
III............. -- 452 1,938 -- -- 452 1,938 2,390
2160 McGraw Rd.... -- 904 3,617 -- -- 904 3,617 4,521
4849 Groveport.... -- 507 2,030 -- -- 507 2,030 2,537
2400 McGraw Rd.... -- 348 1,392 -- -- 348 1,392 1,740
5160 Blazer
Memorial Pkwy... -- 470 1,880 -- -- 470 1,880 2,350
600 London Rd..... -- 223 890 -- -- 223 890 1,113
4411 Marketing
Place........... -- 445 1,780 -- -- 445 1,780 2,225
1001 Technology
Way............. 6,412 1,909 7,637 -- -- 1,909 7,637 9,546
801 Technology
Way............. 3,984 813 3,253 -- -- 813 3,253 4,066
3818
Grandville/1200
Northwestern(1)... -- 2,125 8,505 -- -- 2,125 8,505 10,630
306-310 Era
Drive(1)........ -- 719 2,878 -- -- 719 2,878 3,597
1301 Ridgeview
Drive(1)........ -- 2,287 9,148 -- -- 2,287 9,148 11,435
515 Huehl Road/500
Lindburg(1)..... -- 1,775 7,100 -- -- 1,775 7,100 8,875
455 Academy
Drive(1)........ -- 754 3,018 -- -- 754 3,018 3,772
1051 N. Kirk
Road(1)......... -- 911 3,645 -- -- 911 3,645 4,556
4211 Madison
Street(1)....... -- 690 2,759 -- -- 690 2,759 3,449
200 E.
Fullerton(1).... -- 525 2,100 -- -- 525 2,100 2,625
350 Randy
Road(1)......... -- 267 1,063 -- -- 267 1,063 1,330
4300,4248,4250
Madison
Street(1)....... -- 1,147 4,588 -- -- 1,147 4,588 5,735
370 Carol
Lane(1)......... -- 527 2,107 -- -- 527 2,107 2,634
388 Carol
Lane(1)......... -- 332 1,329 -- -- 332 1,329 1,661
941-961 Wiegel
Drive(1)........ -- 3,268 13,060 -- -- 3,268 13,060 16,328
342-346 Carol
Lane(1)......... -- 600 2,398 -- -- 600 2,398 2,998
<CAPTION>
DECEMBER 31,
1997
--------------- DATE OF
ACCUMULATED ACQUISITION(A)
DESCRIPTION DEPRECIATION(1) CONTRIBUTION(C)
- ------------------ --------------- ---------------
<S> <C> <C>
INDUSTRIAL
ECEC(2)........... $ (4) 1997(C)
EC I.............. (4) 1997(C)
EC II............. (14) 1997(C)
EC III............ (41) 1997(C)
EC IV............. (16) 1997(C)
EC V.............. 22 1997(C)
EC VI............. (20) 1997(C)
EC VII............ (51) 1997(C)
ECVIII............ -- 1997(C)
EC IX............. (13) 1997(C)
EC X.............. (44) 1997(C)
Arlington Heights
I............... (28) 1997(C)
Arlington Heights
II.............. (19) 1997(C)
Arlington Heights
III............. (18) 1997(C)
2160 McGraw Rd.... (47) 1997(A)
4849 Groveport.... (26) 1997(A)
2400 McGraw Rd.... (18) 1997(A)
5160 Blazer
Memorial Pkwy... (24) 1997(A)
600 London Rd..... (11) 1997(A)
4411 Marketing
Place........... (23) 1997(A)
1001 Technology
Way............. (40) 1997(A)
801 Technology
Way............. (17) 1997(A)
3818
Grandville/1200
Northwestern(1)... (42) 1997(A)
306-310 Era
Drive(1)........ (15) 1997(A)
1301 Ridgeview
Drive(1)........ (48) 1997(A)
515 Huehl Road/500
Lindburg(1)..... (37) 1997(A)
455 Academy
Drive(1)........ (16) 1997(A)
1051 N. Kirk
Road(1)......... (11) 1997(A)
4211 Madison
Street(1)....... (9) 1997(A)
200 E.
Fullerton(1).... (7) 1997(A)
350 Randy
Road(1)......... (3) 1997(A)
4300,4248,4250
Madison
Street(1)....... (14) 1997(A)
370 Carol
Lane(1)......... (7) 1997(A)
388 Carol
Lane(1)......... (4) 1997(A)
941-961 Wiegel
Drive(1)........ (41) 1997(A)
342-346 Carol
Lane(1)......... (7) 1997(A)
</TABLE>
F-30
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
16. REAL ESTATE AND ACCUMULATED DEPRECIATION (CONTINUED)
<TABLE>
<CAPTION>
COST CAPITALIZED
INITIAL COST TO SUBSEQUENT TO
GROSS AMOUNT CARRIED
COMPANY ACQUISITION AT DECEMBER 31, 1997
---------------------- ---------------------- ---------------------------------
DECEMBER 31, BUILDING BUILDING BUILDING
1997 AND AND AND
------------- IMPROVE- IMPROVE- IMPROVE-
DESCRIPTION ENCUMBRANCES LAND MENTS LAND MENTS LAND MENTS TOTAL
- ------------------ ------------- --------- ----------- --------- ----------- --------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
343 Carol
Lane(1)......... $ -- $ 350 $ 1,398 $ -- $ -- $ 350 $ 1,398 $ 1,748
371-385 N. Gary
Avenue(1)....... -- 218 871 -- -- 218 871 1,089
350 N. Mannheim
Road(1)......... -- 81 325 -- -- 81 325 406
1600-1700 167th
Street(1)....... -- 1,073 4,291 -- -- 1,073 4,291 5,364
1301 E. Tower
Road(1)......... -- 1,005 4,020 -- -- 1,005 4,020 5,025
4343 Commerce
Court(1)........ -- 5,370 21,480 -- -- 5,370 21,480 26,850
11039 Gage
Avenue(1)....... -- 191 767 -- -- 191 767 958
11045 Gage
Avenue(1)....... -- 1,274 5,092 -- -- 1,274 5,092 6,366
1401 S.
Jefferson(1).... -- 171 685 -- -- 171 685 856
4100 Madison
Street(1)....... -- 42 169 -- -- 42 169 211
4160-4190 Madison
Street(1)....... -- 931 3,708 -- -- 931 3,708 4,639
550 Kehoe
Blvd.(1)........ -- 686 2,743 -- -- 686 2,743 3,429
------------- --------- ----------- --------- ----------- --------- ----------- ---------
Total............. $ 244,544 $ 92,440, $ 496,839 $ -- $ -- $ 92,440 $ 496,839 $ 589,279
------------- --------- ----------- --------- ----------- --------- ----------- ---------
------------- --------- ----------- --------- ----------- --------- ----------- ---------
<CAPTION>
DECEMBER 31,
1997
--------------- DATE OF
ACCUMULATED ACQUISITION(A)
DESCRIPTION DEPRECIATION(1) CONTRIBUTION(C)
- ------------------ --------------- ---------------
<S> <C> <C>
343 Carol
Lane(1)......... $ (4) 1997(A)
371-385 N. Gary
Avenue(1)....... (3) 1997(A)
350 N. Mannheim
Road(1)......... (1) 1997(A)
1600-1700 167th
Street(1)....... (13) 1997(A)
1301 E. Tower
Road(1)......... (13) 1997(A)
4343 Commerce
Court(1)........ (67) 1997(A)
11039 Gage
Avenue(1)....... (2) 1997(A)
11045 Gage
Avenue(1)....... (16) 1997(A)
1401 S.
Jefferson(1).... (2) 1997(A)
4100 Madison
Street(1)....... (4) 1997(A)
4160-4190 Madison
Street(1)....... (11) 1997(A)
550 Kehoe
Blvd.(1)........ (9) 1997(A)
---------------
Total............. $ (2,338)
---------------
---------------
</TABLE>
- ------------------------
(1) These properties are collateral for $83,500 in mortgage notes payable. See
Note 5.
The aggregate gross cost of the property included above, for federal income
tax purposes, approximated $672,618 as of December 31, 1997.
The following table reconciles the historical cost of the Company from
November 17, 1997 to December 31, 1997.
<TABLE>
<CAPTION>
PERIOD FROM
NOVEMBER 17,
1997 TO
DECEMBER 31,
1997
------------
<S> <C>
Additions during period -- Contributions, acquisition, improvements, etc............................ $ 589,279
------------
Balance, close of period............................................................................ $ 589,279
------------
------------
</TABLE>
F-31
<PAGE>
PRIME GROUP REALTY TRUST (THE COMPANY)
AND PREDECESSOR PROPERTIES (THE PREDECESSOR TO THE COMPANY)
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS (CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR SHARE AND UNIT AMOUNTS)
16. REAL ESTATE AND ACCUMULATED DEPRECIATION (CONTINUED)
The following table reconciles the accumulated depreciation from November
17, 1997 to December 31, 1997.
<TABLE>
<CAPTION>
PERIOD FROM
NOVEMBER 17,
1997 TO
DECEMBER 31,
1997
------------
<S> <C>
Additions during period--Depreciation and amortization for the period............................... $ 2,338
------------
Balance, close of period............................................................................ $ 2,338
------------
------------
</TABLE>
17. SUBSEQUENT EVENTS
On January 14, 1998, the Company purchased 33 North Dearborn, an office
building, located in Chicago, Illinois, for a purchase price of $32,250.
On January 23, 1998, the Company paid a distributions of $.173 per Preferred
Share and $.166 per Common Share, to stockholders of record on December 31,
1997.
On January 29, 1998, the Company refinanced a portion of certain mortgage
notes payable ($27,500 of the total face value of $83,500--see Note 5). The
amount refinanced, with a new mortgage note payable with an initial principal
balance of $29,430 (Refinanced Note). The Refinanced Note has a maturity of 10
years, bears interest at 6.85% per annum and requires monthly principal and
interest payments of $205 with unpaid principal due upon maturity.
On February 20, 1998, the Company purchased Commerce Center, an office
building, located in Arlington Heights, Illinois, for a purchase price of
$28,438.
F-32
<PAGE>
Exhibit 3.1
ARTICLES OF AMENDMENT AND RESTATEMENT
OF
PRIME GROUP REALTY TRUST
Prime Group Realty Trust, a Maryland real estate investment trust (the "Trust"),
certifies as follows:
FIRST: the Trust desires to amend and restate its Declaration of Trust as
currently in effect as hereinafter provided.
SECOND: the following provisions are all the provisions of the Declaration
of Trust as currently in effect.
1. THE TRUST.
1.1. NAME. The name of the trust (the "Trust") is Prime Group Realty
Trust. So far as may be practicable, the business of the Trust shall be
conducted and transacted under that name. Under circumstances in which the
Trustees determine that the use of the name "Prime Group Realty Trust" is not
practicable, they may use any other designation or name for the Trust.
1.2. FORMATION. The Trust is a real estate investment trust (a "REIT")
within the meaning under Title 8 of the Corporations and Associations Article
of the Annotated Code of Maryland (the "Maryland REIT law"). The Trust shall
not be deemed to be a general partnership, limited partnership, joint
venture, joint stock company or a corporation (but nothing herein shall
preclude the Trust from being treated for tax purposes as an association
under the Internal Revenue Code of 1986, as amended (the "Code")).
1.3. PURPOSES AND POWERS. The Trust is organized as a real estate
investment trust under the Maryland REIT law for the purpose of engaging in
any activity permitted to real estate investment trusts generally by the
Maryland REIT law and shall have all further powers consistent with law and
appropriate to attain its
<PAGE>
purposes, including, without limitation or obligation, engaging in business
as a REIT under the Code.
1.4. RESIDENT AGENT AND PRINCIPAL OFFICE. The name and address of the
Trust's initial resident agent in the State of Maryland is The Corporation
Trust Inc., 32 South Street, 2nd Floor, Baltimore, Maryland 21202, which is a
resident of the State of Maryland. The address of the Trust's principal
office is 77 West Wacker Drive, Suite 3900, Chicago, Illinois 60601. The
Trust may have such other offices and places of business within or outside
the State of Maryland as the Board of Trustees may from time to time
determine.
1.5. DEFINITIONS. For purposes of this Declaration of Trust, the
following terms shall have the meanings indicated:
"Beneficial Ownership" shall mean ownership of Equity Shares or
options to acquire Equity Shares by a Person who would be treated as an owner
of such Equity Shares under Section 542(a)(2) of the Code either directly or
constructively through the application of Section 544 of the Code, as
modified by Section 856(h)(1)(B) of the Code but without regard to Section
856(h)(3) of the Code. The terms "Beneficial Owner," "Beneficially Owns,"
"Beneficially Own" and "Beneficially Owned" shall have the correlative
meanings.
"Beneficiary" shall mean a beneficiary of the Trust as determined
in accordance with the provisions of Section 4.8 hereof.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City, New York are authorized or required by law, regulation or
executive order to close.
"Call Date" shall mean the date specified in the notice to holders
required under Section 3.3.3(d) hereof as the Call Date.
"Change of Control" shall have the meaning set forth in Section
3.3.4(a) hereof.
"Closing Date of the Initial Public Offering" shall mean the time
and date of payment for and delivery of Common Shares issued pursuant to the
Initial Public Offering, excluding the Common Shares issuable upon exercise
of the over-allotment option granted in connection with the Initial Public
Offering.
<PAGE>
"Common Shares" shall have the meaning set forth in Section 3.1
hereof.
"Constituent Person" shall have the meaning set forth in Section
3.3.4(e) hereof.
"Constructive Ownership" shall mean ownership of Equity Shares or
options to acquire Equity Shares by a Person who would be treated as an owner
of such Equity Shares either directly or indirectly through the application
of Section 318 of the Code, as modified by Section 856(d)(5) of the Code.
The terms "Constructive Owner," "Constructively Owns," "Constructively Own"
and "Constructively Owned" shall have correlative meanings.
"Conversion Date" shall have the meaning set forth in Section
3.3.4(a) hereof.
"Conversion Price" shall mean the conversion price per Common Share
for which the Convertible Preferred Shares are convertible, as such
Conversion Price may be adjusted pursuant to Section 3.3.4 hereof. The
initial conversion price shall be $20.00.
"Convertible Preferred Shares" shall have the meaning set forth in
Section 3.1 hereof.
"Current Market Price" of publicly traded Common Shares or any
other class of shares of beneficial interest or other security of the Trust
or any other issuer for any day shall mean the last reported sales price,
regular way on such day, or, if no sale takes place on such day, the average
of the reported closing bid and asked prices on such day, regular way, in
either case as reported on the New York Stock Exchange ("NYSE") or, if such
security is not listed or admitted for trading on the NYSE, on the principal
national securities exchange on which such security is listed or admitted for
trading or, if not listed or admitted for trading on any national securities
exchange, on the NASDAQ Stock Market ("NASDAQ") or, if such security is not
quoted on such National Market System, the average of the closing bid and
asked prices on such day in the over-the-counter market as reported by NASDAQ
or, if bid and asked prices for such security on such day shall not have been
reported through NASDAQ, the average of the bid and asked prices on such day
as furnished by any NYSE member firm regularly making a market in such
security selected for such purpose by the Board of Trustees.
-3-
<PAGE>
"Dividend Payment Date" shall mean (i) for any Dividend Period with
respect to which the Trust pays a dividend on the Common Shares, the date on
which such dividend is paid, or (ii) for any Dividend Period with respect to
which the Trust does not pay a dividend on the Common Shares, a date to be
set by the Board of Trustees, which date shall not be later than the 45th
calendar day after the end of the applicable Dividend Period.
"Dividend Periods" shall mean quarterly dividend periods commencing
on January 1, April 1, July I and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period with respect to any Convertible Preferred Shares (other than the
initial Dividend Period, which shall commence on the Issue Date for such
Convertible Preferred Shares and end on and include the last day of the
calendar quarter immediately following such Issue Date, and other than the
Dividend Period during which any Convertible Preferred Shares shall be
redeemed pursuant to Section 3.3.3 hereof or converted pursuant to Section
3.3.4 hereof, which shall end on and include the Call Date with respect to
the Convertible Preferred Shares being redeemed).
"Equity Shares" shall mean any of the Common Shares, the Preferred
Shares or the Convertible Preferred Shares, or any combination thereof, that
have been issued and are outstanding. The term "Equity Shares" shall include
all of the Common Shares, the Preferred Shares and the Convertible Preferred
Shares that are held as Excess Shares in accordance with the provisions of
Section 4.2 hereof.
"Excess Shares" shall have the meaning set forth in Section 4.2
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expiration Time" shall have the meaning set forth in Section
3.3.4(d)(iv) hereof.
"Fair Market Value" shall mean (except in Section 3.3.3(e) hereof)
as of any day the average of the daily Current Market Prices of a Common
Share on the five (5) consecutive Trading Days selected by the Trust
commencing not more than 20 Trading Days before, and ending not later than,
the earlier of the day in question and the day before the "ex date," with
respect to the issuance or distribution requiring such computation. The term
"ex date," when used with respect to any issuance or distribution, means the
first day on which the Common Shares trade regular way,
-4-
<PAGE>
without the right to receive such issuance or distribution, on the exchange
or in the market, as the case may be, used to determine that day's Current
Market Price.
"Fully Junior Shares" shall mean the Common Shares and any other
class or series of shares of beneficial interest of the Trust now or
hereafter issued and outstanding over which the Convertible Preferred Shares
have preference or priority in both (i) the payment of dividends and (ii) the
distribution of assets on any liquidation, dissolution or winding up of the
Trust.
"Funds from Operations" shall mean net income (loss) (computed in
accordance with generally accepted accounting principles) excluding gains (or
losses) from debt restructuring, and distributions in excess of earnings
allocated to other Operating Partnership interests or minority interests (as
reflected in the financial statements of the Trust) plus
depreciation/amortization of assets unique to the real estate industry, all
computed in a manner consistent with the revised definition of Funds From
Operations adopted by the National Association of Real Estate Investment
Trusts, in its White Paper dated March 1995, as such definitions may be
modified from time to time, as determined by the Trust in good faith.
"Initial Public Offering" shall mean the sale of Common Shares
pursuant to the Trust's first effective registration statement for such
Common Shares filed under the Securities Act.
"Issue Date" shall mean the date on which the Convertible Preferred
Shares are issued.
"Issue Price" shall be $20.00.
"Junior Shares" shall mean the Common Shares and any other class or
series of shares of beneficial interest of the Trust now or hereafter issued
and outstanding over which the Convertible Preferred Shares have preference
or priority in the payment of dividends or in the distribution of assets on
any liquidation, dissolution or winding up of the Trust.
"Market Price" on any date shall mean the average of the Closing
Price for the five (5) consecutive Trading Days ending on such date. The
"Closing Price" on any date shall mean the last sale price, regular way, or,
in case no such sale takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported on the NYSE or, if
the Equity Shares are not listed or admitted for trading on the NYSE, on the
-5-
<PAGE>
principal national securities exchange on which the Equity Shares are listed
or admitted for trading or, if not listed or admitted for trading on any
national securities exchange, on NASDAQ or, if the Equity Shares are not
quoted on such National Market System, the average of the closing bid and
asked prices on such day in the over-the-counter market as reported by NASDAQ
or, if bid and asked prices for the Equity Shares on such day shall not have
been reported through NASDAQ, the average of the bid and asked prices on such
day as furnished by any NYSE member firm regularly making a market in the
Equity Shares selected for such purpose by the Board of Trustees.
"Non-Electing Share" shall have the meaning set forth in Section
3.3.4(e) hereof.
"Operating Partnership" shall mean Prime Group Realty, L.P., a
Delaware limited partnership.
"Ownership Limit" shall initially mean 9.9%, in number of shares or
value, of the outstanding Equity Shares. The number and value of shares of
the outstanding Equity Shares of the Trust shall be determined by the
Trustees in good faith, which determination shall be conclusive for all
purposes hereof.
"Parity Shares" shall have the meaning set forth in Section
3.3.7(b) hereof.
"Permitted Transferee" shall mean any Person designated as a
Permitted Transferee in accordance with the provisions of Section 4.8(e)
hereof.
"Person" shall mean an individual, corporation, partnership,
estate, trust, a portion of a trust permanently set aside for or to be used
exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of the
Code, joint stock company or other entity and also includes a "group" as that
term is used for purposes of Section 13(d)(3) of the Exchange Act and shall
include any successor (by merger or otherwise) of such entity or group; but
does not include an underwriter which participated in any public offering
registered under the Securities Act of any shares of the Trust for a period
of 90 days following the purchase by such underwriter of the Equity Shares;
PROVIDED, that the restrictions contained in Section 4.1 hereof will not be
violated following the distribution by such underwriter of such shares.
-6-
<PAGE>
"Preferred Shares" shall have the meaning set forth in Section 3.1
hereof.
"Prohibited Transferee" shall mean, with respect to any purported
Transfer, any Person who, but for the provisions of Section 4.1 hereof, would
own record title to Equity Shares.
"Purchased Shares" shall have the meaning set forth in Section
3.3.4(d)(iv) hereof.
"REIT Termination Event" shall mean the earliest to occur of:
(i) the filing of a federal income tax return by the Trust for any
taxable year on which the Trust does not elect to be taxed as a real estate
investment trust;
(ii) the approval by the shareholders of the Trust of a proposal for
the Trust to cease to qualify as a real estate investment trust;
(iii) a determination by the Board of Trustees of the Trust, based on
the advice of counsel, that the Trust has ceased to qualify as a real
estate investment trust; or
(iv) a "determination" within the meaning of Section 1313(a) of the
Code that the Trust has ceased to qualify as a real estate investment
trust.
"Restriction Termination Date" shall mean the first day on which
the Board of Trustees of the Trust determines that it is no longer in the
best interests of the Trust to attempt to, or continue to, qualify as a REIT.
"Securities" and "Security" shall have the meanings set forth in
Section 3.3.4(d)(iii) hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Trust in its accounting
ledgers of any accounting or bookkeeping entry which indicates, pursuant to a
declaration of dividends or other distribution by the Board of Trustees, the
allocation of funds to be so paid on any series or class of shares of
beneficial interest of the Trust; PROVIDED, HOWEVER, that if any funds for
any
-7-
<PAGE>
class or series of Junior Shares or any class or series of shares of
beneficial interest ranking on a parity with the Convertible Preferred Shares
as to the payment of dividends are placed in a separate account of the Trust
or delivered to a disbursing, paying or other similar agent, then "set apart
for payment" with respect to the Convertible Preferred Shares shall mean
placing such funds in a separate account or delivering such funds to a
disbursing, paying or other similar agent.
"Share Trust" shall mean any separate trust created pursuant to
Section 4.2 hereof and administered in accordance with the terms of Section
4.8 hereof, for the exclusive benefit of any Beneficiary.
"Share Trustee" shall mean any person or entity unaffiliated with
both the Trust and any Prohibited Transferee, such Share Trustee to be
designated by the Trust to act as trustee of any Share Trust, or any
successor trustee thereof.
"Trading Day" shall mean any day on which the securities in
question are traded on the NYSE, or if such securities are not listed or
admitted for trading on the NYSE, on the principal national securities
exchange on which such securities are listed or admitted, or if not listed or
admitted for trading on any national securities exchange, on the National
Market System of NASDAQ, or if such securities are not quoted on such
National Market System, in the securities market in which the securities are
traded.
"Transaction" shall have the meaning set forth in Section 3.3.4(e)
hereof.
"Transfer" shall mean any sale, transfer, gift, assignment, devise
or other disposition of Equity Shares (including (i) the granting of any
option or entering into any agreement for the sale, transfer or other
disposition of Equity Shares or (ii) the sale, transfer, assignment or other
disposition of any securities or rights convertible into or exchangeable for
Equity Shares), whether by operation of law or otherwise. The terms
"Transfers" and "Transferred" shall have the correlative meanings.
"Transfer Agent" shall mean the Trust, or such other agent or
agents of the Trust as may be designated by the Board of Trustees or their
designee as the transfer agent, registrar and dividend disbursing agent for
the Convertible Preferred Shares.
"Voting Preferred Shares" shall have the meaning set forth in
Section 3.3.6 hereof.
-8-
<PAGE>
"Weighted Average Trading Price" shall mean, for any period, the
number obtained by dividing (i) the sum of the products, for each sale of
Common Shares on each Trading Day in such period, of (a) the sale price per
Common Share and (b) the number of Common Shares sold by (ii) the total
number of Common Shares sold during such period.
2. BOARD OF TRUSTEES.
2.1. POWERS.
(a) Subject to the limitations herein or in the Bylaws of the
Company (the "Bylaws"), (i) the business and affairs of the Trust shall be
managed under the direction of the Board of Trustees and (ii) the Board of
Trustees shall have full, exclusive and absolute power, control and authority
over the property of the Trust and over the business of the Trust. The Board
of Trustees may take any actions as in its sole judgment and discretion are
necessary or desirable to conduct the business of the Trust. This
Declaration of Trust shall be construed with a presumption in favor of the
grant of power and authority to the Board of Trustees. Any construction of
this Declaration of Trust or determination made in good faith by the Board of
Trustees concerning its powers and authority hereunder shall be conclusive.
The enumeration and definition of particular powers of the Board of Trustees
included in this Declaration of Trust or in the Bylaws shall in no way be
construed or deemed by inference or otherwise in any manner to exclude or
limit the powers conferred upon the Board of Trustees under the general laws
of the State of Maryland or any other applicable laws.
(b) Except as otherwise provided in the Bylaws, the Board of
Trustees, without any action by the shareholders of the Trust, shall have and
may exercise, on behalf of the Trust, without limitation, the power to adopt,
amend and repeal Bylaws; to elect officers in the manner prescribed in the
Bylaws; to solicit proxies from holders of shares of beneficial interest of
the Trust; and to do any other acts and deliver any other documents necessary
or appropriate to the foregoing powers.
(c) It is intended that the Board of Trustees will ensure that
the Trust satisfies the requirements for qualification as a REIT under the
Code, including, but not limited to, the ownership of outstanding shares of
its beneficial interest, the nature of its assets, the sources of its income
and the amount and timing of its distributions to its shareholders. The
Board of
-9-
<PAGE>
Trustees shall take no action to disqualify the Trust as a REIT or to
otherwise revoke the Trust's election to be taxed as a REIT without the
affirmative vote of two-thirds of the shares of beneficial interest entitled
to vote on such matter at a meeting of the shareholders.
2.2. CLASSIFICATION AND NUMBER.
(a) The Trustees of the Trust (the "Trustees") shall be
classified, with respect to the terms for which they severally hold office,
into three classes, as nearly equal in number as possible, one class ("Class
I") to hold office initially for a term expiring at the first annual meeting
of shareholders, another class ("Class II") to hold office initially for a
term expiring at the second annual meeting of shareholders and another class
("Class III") to hold office initially for a term expiring at the third
annual meeting of shareholders, with the Trustees of each class to hold
office until their successors are duly elected and qualified. At each annual
meeting of shareholders, the successors to the class of Trustees whose term
expires at such meeting shall be elected to hold office for a term expiring
at the annual meeting of shareholders held in the third year following the
year of their election. Shareholder votes to elect Trustees shall be
conducted in the manner provided in the Bylaws.
(b) The number of Trustees shall be seven (7), which number may
be increased or decreased pursuant to the Bylaws and increased pursuant to
Section 3.3.8 hereof, but shall not be less than three (3). The name and
class of the Trustees serving at the time of adoption of this amendment and
restatement and who shall serve until their successors are duly elected and
qualified are:
Name Class
- ---- -----
Michael W. Reschke Class I
Richard S. Curto Class II
Stephen J. Nardi Class III
James R. Thompson Class III
Christopher J. Nassetta Class II
Thomas J. Saylak Class III
Jacque M. Ducharme Class I
-10-
<PAGE>
It shall not be necessary to list in this Declaration of Trust the names of
any Trustees hereinafter elected.
(c) If a vacancy in the Board of Trustees shall occur or be
created (whether arising through death, retirement, resignation or removal or
through an increase in the number of Trustees), the vacancy shall be filled
by the affirmative vote of a majority of the remaining Trustees, at any
regular meeting or any special meeting called for that purpose, even though
less than a quorum of the Board of Trustees may exist.
2.3. RESIGNATION OR REMOVAL. Any Trustee may resign by written notice
to the Board, effective upon execution and delivery to the Trust of such
written notice or upon any future date specified in the notice. Subject to
the rights of holders of one or more classes or series of Preferred Shares to
elect one or more Trustees, a Trustee may be removed at any time, with cause
only, at a meeting of the shareholders, by the affirmative vote of the
holders of not less than two-thirds of the shares of beneficial interest then
outstanding and entitled to vote generally in the election of Trustees.
2.4. PERFORMANCE OF DUTIES AS A TRUSTEE. A Trustee shall perform his
or her duties as a Trustee: (i) in good faith, (ii) in a manner he or she
reasonably believes to be in the best interest of the Trust and (iii) with
the care that an ordinarily prudent person in a like position would use under
similar circumstances. In performing his or her duties, a Trustee is
entitled to rely on any information, opinion, report or statement, including
any financial statement or other financial data, prepared or presented by,
(i) an officer or employee of the Trust whom the Trustee reasonably believes
to be reliable and competent in the matters presented, (ii) a lawyer,
certified public accountant or other person, as to matters which the Trustee
reasonably believes to be within the person's professional competence, or
(iii) a committee of the Board of Trustees on which the Trustee does not
serve, as to matters within its designated authority, if the Trustee
reasonably believes the committee to merit confidence.
3. SHARES OF BENEFICIAL INTEREST.
3.1. AUTHORIZED SHARES AND PAR VALUE. The beneficial interest in the
Trust shall be divided into shares (the "Shares"). The total number of
shares of beneficial interest which the Trust has authority to issue is
195,000,000 shares, consisting of (i)
-11-
<PAGE>
30,000,000 preferred shares having a par value of $0.01 per share (the
"Preferred Shares"), amounting to an aggregate par value of $300,000, of
which 2,000,000 shares shall be designated as 7.0% Series A Cumulative
Convertible Redeemable Preferred Shares of Beneficial Interest (the
"Convertible Preferred Shares"), (ii) 65,000,000 excess shares having a par
value of $0.01 per share (the "Excess Shares"), amounting to an aggregate par
value of $650,000, and (iii) 100,000,000 common shares of beneficial interest
having a par value of $0.01 per share (the "Common Shares"), amounting to an
aggregate par value of $1,000,000. The aggregate par value of all the shares
that the Trust shall have authority to issue is $1,950,000. In addition, the
Trustees may amend this Declaration of Trust to create and authorize from
time to time additional types, series or classes of securities or to increase
or decrease the aggregate number of shares of any class that the Trust is
authorized to issue, without any action of the shareholders of the Trust.
3.2. COMMON SHARES.
(a) VOTING RIGHTS. Subject to the voting rights of the
Convertible Preferred Shares, any additional Preferred Shares and the Excess
Shares, holders of Common Shares shall be entitled to vote on all matters
(for which holders of Common Shares shall be entitled to vote thereon) at all
meetings of the shareholders of the Trust and shall be entitled to one vote
for each Common Share entitled to vote at such meeting. Holders of Common
Shares may not engage in cumulative voting in the election of Trustees.
(b) RIGHTS UPON LIQUIDATION. Subject to the preferential rights
upon liquidation of the Convertible Preferred Shares, any additional
Preferred Shares and the Excess Shares, holders of Common Shares shall be
entitled to share ratably in the assets of the Trust legally available for
distribution to the shareholders in the event of the liquidation, dissolution
or winding-up of the Trust after payment of, or adequate provision for, all
known debts and liabilities of the Trust.
(c) GENERAL NATURE OF COMMON SHARES. Holders of Common Shares
shall have no conversion, sinking fund, redemption, exchange, preference,
appraisal (except as provided by Maryland law) or preemptive rights.
3.3. CONVERTIBLE PREFERRED SHARES.
3.3.1. DIVIDENDS.
-12-
<PAGE>
(a) Subject to the preferential rights of the holders of any
Preferred Shares that rank senior in the payment of dividends to the
Convertible Preferred Shares, the holders of Convertible Preferred Shares
shall be entitled to receive, when, as and if declared by the Board of
Trustees, out of funds legally available for the payment of dividends,
cumulative preferential dividends payable in cash in an amount per share
equal to the greater of (i) (x) an annual rate equal to the product of the
Issue Price multiplied by 0.07 for Dividend Periods ending before November
17, 1998 and (y) an annual rate equal to the product of the Issue Price
multiplied by 0.075 for Dividend Periods ending after November 17, 1998 or
(ii) the regular cash dividends (determined on each Dividend Payment Date) on
the Common Shares, or portion thereof, into which a Convertible Preferred
Share is convertible. The dividends referred to in clause (ii) of the
preceding sentence shall equal the number of Common Shares, or portion
thereof, into which a Convertible Preferred Share will be convertible on or
after the Conversion Date, multiplied by the most current quarterly dividend
on a Common Share on or before the applicable Dividend Payment Date. If the
Trust pays a regular cash dividend on the Common Shares with respect to a
Dividend Period after the date on which the Dividend Payment Date is declared
pursuant to clause (ii) of the definition of Dividend Payment Date and the
dividend calculated pursuant to clause (ii) of this paragraph (a) with
respect to such Dividend Period is greater than the dividend previously
declared on the Convertible Preferred Shares with respect to such Dividend
Period, the Trust shall pay an additional dividend to the holders of the
Convertible Preferred Shares on the date on which the dividend on the Common
Shares is paid, in an amount equal to the difference between (y) the dividend
calculated pursuant to clause (ii) of this paragraph (a) and (z) the amount
of dividends previously declared on the Convertible Preferred Shares with
respect to such Dividend Period. The dividends shall begin to accrue and
shall be fully cumulative from the first day of the applicable Dividend
Period, whether or not in any Dividend Period or Periods there shall be funds
of the Trust legally available for the payment of such dividends, and shall
be payable quarterly, when, as and if declared by the Board of Trustees, in
arrears on Dividend Payment Dates. Each such dividend shall be payable in
arrears to the holders of record of Convertible Preferred Shares as they
appear in the records of the Trust at the close of business on such record
dates, not less than 10 nor more than 50 days preceding such Dividend Payment
Dates thereof, as shall be fixed by the Board of Trustees. Accrued and
unpaid dividends for any past Dividend Periods may be declared and paid at
any time and for such interim periods, without reference to any regular
Dividend Payment Date, to holders of record on such date, not less than 10
nor more than 50
-13-
<PAGE>
days preceding the payment date thereof, as may be fixed by the Board of
Trustees. Any dividend payment made on Convertible Preferred Shares shall
first be credited against the earliest accrued but unpaid dividend due with
respect to Convertible Preferred Shares which remains payable.
(b) The amount of dividends referred to in clause (i) of Section
3.3.1(a) payable for each full Dividend Period on the Convertible Preferred
Shares, other than the Dividend Period commencing October 1, 1998, shall be
computed by dividing the annual dividend rate by four. For the Dividend
Period commencing October 1, 1998, the amount of dividends through November
17, 1998 on the Convertible Preferred Shares shall be computed by dividing
Issue Price times 0.07 by 365 and multiplying the result by the number of
days from October 1, 1998 through November 17, 1998 and dividends from
November 18, 1998 through December 31, 1998 on the Convertible Preferred
Shares shall be computed by dividing the Issue Price times 0.075 by 365 and
multiplying the result by the number of days from November 18, 1998 through
December 31, 1998. The initial Dividend Period for the Convertible Preferred
Shares will include a partial dividend for the period from the Issue Date
until the last day of the calendar quarter immediately following such Issue
Date. The amount of dividends payable for such period, or any other period
shorter than a full Dividend Period, on the Convertible Preferred Shares
shall be computed by dividing the number of days in such period by 365 and
multiplying the result by the product of the annual dividend rate multiplied
by the Issue Price. Holders of Convertible Preferred Shares shall not be
entitled to any dividends, whether payable in cash, property or shares, in
excess of cumulative dividends, as herein provided, on the Convertible
Preferred Shares. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on the Convertible
Preferred Shares which may be in arrears.
(c) So long as any Convertible Preferred Shares are outstanding,
no dividends, except as described in the immediately following sentence,
shall be declared or paid or set apart for payment on any class or series of
Parity Shares for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on the Convertible Preferred
Shares for all Dividend Periods terminating on or prior to the dividend
payment date on such class or series of Parity Shares. When dividends are
not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon Convertible Preferred Shares and all
dividends declared upon any
-14-
<PAGE>
other class or series of Parity Shares shall be declared ratably in
proportion to the respective amounts of dividends accumulated and unpaid on
the Convertible Preferred Shares and accumulated and unpaid on such Parity
Shares.
(d) So long as any Convertible Preferred Shares are outstanding,
no dividends (other than dividends or distributions paid solely in shares of,
or options, warrants or rights to subscribe for or purchase shares of, Fully
Junior Shares) shall be declared or paid or set apart for payment or other
distribution shall be declared or made or set apart for payment upon Junior
Shares, nor shall any Junior Shares be redeemed, purchased or otherwise
acquired (other than a redemption, purchase or other acquisition of Common
Shares made for purposes of an employee incentive or benefit plan of the
Trust or any subsidiary) for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any Junior Shares) by
the Trust, directly or indirectly (except by conversion into or exchange for
Fully Junior Shares), unless in each case (i) the full cumulative dividends
on all outstanding Convertible Preferred Shares and any other Parity Shares
of the Trust shall have been or contemporaneously are declared and paid or
declared and set apart for payment for all past Dividend Periods with respect
to the Convertible Preferred Shares and all past dividend periods with
respect to such Parity Shares and (ii) sufficient funds shall have been or
contemporaneously are declared and paid or declared and set apart for the
payment of the dividend for the current Dividend Period with respect to the
Convertible Preferred Shares and the current dividend period with respect to
such Parity Shares.
(e) No distributions on Convertible Preferred Shares shall be
declared by the Board of Trustees or paid or set apart for payment by the
Trust at such time as the terms and provisions of any agreement of the Trust,
including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
3.3.2. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of
the Trust, whether voluntary or involuntary, subject to the prior preferences
and other rights of any series of shares of beneficial interest ranking
senior to the Convertible Preferred Shares upon liquidation, dissolution or
winding up of the Trust,
-15-
<PAGE>
before any payment or distribution of the assets of the Trust (whether
capital or surplus) shall be made to or set apart for the holders of Junior
Shares, the holders of the Convertible Preferred Shares shall be entitled to
receive twenty dollars ($20.00) (the "Liquidation Preference") per
Convertible Preferred Share plus an amount equal to all dividends (whether or
not earned or declared) accrued and unpaid thereon to the date of final
distribution to such holders; but such holders shall not be entitled to any
further payment; PROVIDED, that the dividend payable with respect to the
Dividend Period containing the date of final distribution shall be equal to
the greater of (i) the dividend provided in Section 3.3.1(a)(i) hereof or
(ii) the dividend determined pursuant to Section 3.3.1(a)(ii) hereof for the
preceding Dividend Period. If, upon any liquidation, dissolution or winding
up of the Trust, the assets of the Trust, or proceeds thereof, distributable
among the holders of the Convertible Preferred Shares shall be insufficient
to pay in full the preferential amount aforesaid and liquidating payments on
any other shares of any class or series of Parity Shares, then such assets,
or the proceeds thereof, shall be distributed among the holders of
Convertible Preferred Shares and any such other Parity Shares ratably in
accordance with the respective amounts that would be payable on such
Convertible Preferred Shares and any such other Parity Shares if all amounts
payable thereon were paid in full. For the purposes of this Section 3.3.2,
(i) a consolidation or merger of the Trust with one or more corporations,
real estate investment trusts or other entities, (ii) a sale, lease or
conveyance of all or substantially all of the Trust's property or business or
(iii) a statutory share exchange shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary, of the Trust.
(b) Subject to the rights of the holders of shares of any series
or class or classes of shares of beneficial interest ranking on a parity with
or prior to the Convertible Preferred Shares upon liquidation, dissolution or
winding up, upon any liquidation, dissolution or winding up of the Trust,
after payment shall have been made in full to the holders of the Convertible
Preferred Shares, as provided in this Section 3.3.2, the holders of
Convertible Preferred Shares shall have no other claim to the remaining
assets of the Trust and any other series or class or classes of Junior Shares
shall, subject to the respective terms and provisions (if any) applying
thereto, be entitled to receive any and all assets remaining to be paid or
distributed, and the holders of the Convertible Preferred Shares shall not be
entitled to share therein.
3.3.3. REDEMPTION AT THE OPTION OF THE TRUST.
-16-
<PAGE>
(a) Except as provided in Section 3.3.3(e) below, the Convertible
Preferred Shares shall not be redeemable by the Trust prior to November 17,
2007. On and after November 17, 2007, the Trust, at its option, may redeem
the Convertible Preferred Shares, in whole at any time or from time to time
in part out of funds legally available therefor at a redemption price payable
in cash equal to 100% of the Liquidation Preference per Convertible Preferred
Share (plus all accumulated, accrued and unpaid dividends as provided below).
(b) Upon any redemption of Convertible Preferred Shares pursuant
to this Section 3.3.3, the Trust shall pay all accrued and unpaid dividends,
if any, thereon to the Call Date, without interest. If the Call Date falls
after a dividend payment record date and prior to the corresponding Dividend
Payment Date, then each holder of Convertible Preferred Shares at the close
of business on such dividend payment record date shall be entitled to the
dividend payable on such shares on the corresponding Dividend Payment Date
notwithstanding any redemption of such shares before such Dividend Payment
Date. Except as provided above, the Trust shall make no payment or allowance
for unpaid dividends, whether or not in arrears, on Convertible Preferred
Shares called for redemption.
(c) If full cumulative dividends on the Convertible Preferred
Shares and any other class or series of Parity Shares have not been declared
and paid or declared and set apart for payment, the Convertible Preferred
Shares may not be redeemed under this Section 3.3.3 in part and the Trust may
not purchase or acquire Convertible Preferred Shares, otherwise than pursuant
to a purchase or exchange offer made on the same terms to all holders of
Convertible Preferred Shares.
(d) Notice of the redemption of any Convertible Preferred Shares
under this Section 3.3.3 (other than paragraph (e)) shall be mailed by
first-class mail to each holder of record of Convertible Preferred Shares to
be redeemed at the address of each such holder as shown on the Trust's
records, not less than 30 nor more than 90 days prior to the Call Date.
Neither the failure to mail any notice required by this paragraph (d), nor
any defect therein or in the mailing thereof, to any particular holder, shall
affect the sufficiency of the notice or the validity of the proceedings for
redemption with respect to the other holders. Each such mailed notice shall
state, as appropriate: (1) the Call Date; (2) the number of Convertible
Preferred Shares to be redeemed and, if fewer than all the shares held by
such holder are to be
-17-
<PAGE>
redeemed, the number of such shares to be redeemed from such holder; (3) the
redemption price; (4) the place or places at which certificates for such
shares are to be surrendered; (5) the then-current Conversion Price; and (6)
that dividends on the shares to be redeemed shall cease to accrue on such
Call Date except as otherwise provided herein. Notice having been mailed as
aforesaid, from and after the Call Date (unless the Trust shall fail to make
available an amount of cash necessary to effect such redemption), (i) except
as otherwise provided herein, dividends on the Convertible Preferred Shares
so called for redemption shall cease to accrue, (ii) such shares shall no
longer be deemed to be outstanding and (iii) all rights of the holders
thereof as holders of Convertible Preferred Shares shall cease (except the
rights to convert and to receive the cash payable upon such redemption,
without interest thereon, upon surrender and endorsement of their
certificates if so required and to receive any dividends payable thereon).
The Trust's obligation to provide cash in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the Call Date, the Trust
shall deposit with a bank or trust company (which may be an affiliate of the
Trust) that has an office in the Borough of Manhattan, City of New York, and
that has, or is an affiliate of a bank or trust company that has, capital and
surplus of at least $50,000,000, necessary for such redemption, in trust,
with irrevocable instructions that such cash be applied to the redemption of
the Convertible Preferred Shares so called for redemption. No interest shall
accrue for the benefit of the holders of Convertible Preferred Shares to be
redeemed on any cash so set aside by the Trust. Subject to applicable
escheat laws, any such cash unclaimed at the end of two years from the Call
Date shall revert to the general funds of the Trust, after which reversion
the holders of such shares so called for redemption shall look only to the
general funds of the Trust for the payment of such cash.
As promptly as practicable after the surrender in accordance with
such notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Trust shall so require and if the
notice shall so state), such shares shall be exchanged for any cash (without
interest thereon) for which such shares have been redeemed. If fewer than
all the outstanding Convertible Preferred Shares are to be redeemed, shares
to be redeemed shall be selected by the Trust from outstanding Convertible
Preferred Shares not previously called for redemption pro rata (as nearly as
may be), by lot or by any other method determined by the Trust in its sole
discretion to be equitable. If fewer than all the Convertible Preferred
Shares represented by any certificate are redeemed, then new certificates
representing the
-18-
<PAGE>
unredeemed shares shall be issued without cost to the holder thereof.
(e) Notwithstanding anything herein to the contrary, beginning on
June 17, 1998 and ending on September 17, 1998, the Trust, at its option, may
redeem all, but not less than all, of the Convertible Preferred Shares at a
premium (the "Special Redemption Price") calculated to result in a total
internal rate of return to the holder (including the receipt of dividends and
calculated on an annual compounded basis as if the holder had owned the
shares since the Issue Date) of 20.0%. The Special Redemption Price may be
paid, at the Trust's option, in any combination of (i) cash and (ii) Common
Shares valued at Fair Market Value; PROVIDED, that the cash portion of the
Special Redemption Price shall equal at least 75% of the Special Redemption
Price. For purposes of this Section 3.3.3(e), Fair Market Value shall mean
the Weighted Average Trading Price for the Common Shares for the 20 Trading
Days preceding the date of the special redemption (the "Special Redemption
Call Date").
Notice of the redemption of any Convertible Preferred Shares under
this Section 3.3.3(e) shall be mailed by first-class mail to each holder of
record of Convertible Preferred Shares to be redeemed at the address of each
such holder as shown on the Trust's records, not less than 30 nor more than
90 days prior to the Special Redemption Call Date. Neither the failure to
mail any notice required by this paragraph (e), nor any defect therein or in
the mailing thereof, to any particular holder, shall affect the sufficiency
of the notice or the validity of the proceedings for redemption with respect
to the other holders. Each such mailed notice shall state, as appropriate:
(1) the Special Redemption Call Date; (2) the Special Redemption Price
(including the amount of the Special Redemption Price consisting of cash and
the amount of the Special Redemption Price consisting of Common Shares,
together with calculations supporting the determination of the number Common
Shares constituting a portion of the Special Redemption Price); (3) the place
or places at which certificates for such shares are to be surrendered; and
(4) that dividends on the shares to be redeemed shall cease to accrue on such
Call Date except as otherwise provided herein. Notice having been mailed as
aforesaid, from and after the Special Redemption Call Date (unless the Trust
shall fail to make available an amount of cash necessary to effect such
redemption), (i) except as otherwise provided herein, dividends on the
Convertible Preferred Shares so called for redemption shall cease to accrue,
(ii) such shares shall no longer be deemed to be outstanding and (iii) all
rights of the holders thereof as holders of Convertible Preferred Shares
shall cease (except the right to
-19-
<PAGE>
receive the Special Redemption Price, without interest thereon, upon
surrender and endorsement of their certificates if so required). The Trust's
obligation to provide cash and Common Shares in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the Special Redemption
Call Date, the Trust shall deposit with a bank or trust company (which may be
an affiliate of the Trust) that has an office in the Borough of Manhattan,
City of New York, and that has, or is an affiliate of a bank or trust company
that has, capital and surplus of at least $50,000,000, necessary for such
redemption, in trust, with irrevocable instructions that such cash and/or
Common Shares be applied to the redemption of the Convertible Preferred
Shares so called for redemption. No interest shall accrue for the benefit of
the holders of Convertible Preferred Shares to be redeemed on any cash so set
aside by the Trust. Subject to applicable escheat laws, any such cash or
Common Shares unclaimed at the end of two years from the Special Redemption
Call Date shall revert to the general funds of the Trust, after which
reversion the holders of such shares so called for redemption shall look only
to the general funds of the Trust for the payment of such cash or Common
Shares.
As promptly as practicable after the surrender in accordance with
such notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Trust shall so require and if the
notice shall so state), such shares shall be exchanged for any cash (without
interest thereon) and Common Shares for which such shares have been redeemed.
3.3.4. CONVERSION. Holders of Convertible Preferred Shares
shall have the right to convert all or a portion of such shares into Common
Shares, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 3.3.4, a holder of Convertible Preferred Shares shall have the
right, at his or her option, upon the earliest to occur of (i) September
17, 1998, (ii) the first day on which a Change of Control occurs, (iii) the
occurrence of a REIT Termination Event or (iv) such date as determined by
the Trust (the "Conversion Date"), to convert all or any portion of such
shares (or such shares as determined by the Trust if pursuant to clause
(iv) above) into the number of fully paid and non-assessable Common Shares
obtained by dividing the aggregate Liquidation Preference of such shares
(inclusive of accrued but unpaid dividends) by the Conversion Price (as in
effect at the time and on the date provided for in the last paragraph of
paragraph (b) of this Section 3.3.4) by surrendering such shares to be
converted, such surrender to
-20-
<PAGE>
be made in the manner provided in paragraph (b) of this Section 3.3.4;
PROVIDED, HOWEVER, that the right to convert shares called for
redemption pursuant to Section 3.3.3 hereof shall terminate at the close
of business on the fifth Business Day prior to the Call Date fixed for
such redemption, unless the Trust shall default in making payment of the
cash payable upon such redemption under Section 3.3.3.
"Change of Control" means each occurrence of any of the following:
(i) the acquisition, directly or indirectly, by any individual or entity or
group (as such term is used in Section 13(d)(3) of the Exchange Act) of
beneficial ownership (as defined in Rule 13d-3 under the Exchange Act, except
that such individual or entity shall be deemed to have beneficial ownership
of all shares that any such individual or entity has the right to acquire,
whether such right is exercisable immediately or only after passage of time)
of more than 25% of the Trust's outstanding shares of beneficial interest
with voting power, under ordinary circumstances, to elect Trustees of the
Trust; (ii) other than with respect to the election, resignation or
replacement of any trustee designated, appointed or elected by the holders of
the Convertible Preferred Shares (each a "Preferred Trustee"), during any
period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Trustees (together with any new trustees
whose election by such Board of Trustees or whose nomination for election by
the shareholders of the Trust was approved by a vote of 66-2/3% of the
Trustees (excluding Preferred Trustees) then still in office who were either
Trustees at the beginning of such period, or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Trustees then in office; and (iii) (A) the Trust
consolidating with or merging into another entity or conveying, transferring
or leasing all or substantially all of its assets (including, but not limited
to, real property investments) to any individual or entity or (B) any
corporation consolidating with or merging into the Trust, which in either
event (A) or (B) is pursuant to a transaction in which the outstanding voting
shares of beneficial interest of the Trust are reclassified or changed into
or exchanged for cash, securities or other property; PROVIDED, HOWEVER, that
the events described in clause (iii) above shall not be deemed to be a Change
of Control (a) if the sole purpose of such event is that the Trust is seeking
to change its domicile or to change its form of organization from a trust to
a corporation or (b) if the holders of the exchanged securities of the Trust
immediately after such transaction beneficially own at least a majority of
the securities of the
-21-
<PAGE>
merged or consolidated entity normally entitled to vote in elections of
trustees.
(b) In order to exercise the conversion right, the holder of each
Convertible Preferred Share to be converted shall surrender the certificate
representing such share, duly endorsed or assigned to the Trust or in
blank, at the office of the Transfer Agent, accompanied by written notice
to the Trust that the holder thereof irrevocably elects to convert such
Convertible Preferred Shares. Unless the shares issuable on conversion are
to be issued in the same name as the name in which such Convertible
Preferred Share is registered, each share surrendered for conversion shall
be accompanied by instruments of transfer, in form satisfactory to the
Trust, duly executed by the holder or such holder's duly authorized
attorney and an amount sufficient to pay any transfer or similar tax (or
evidence reasonably satisfactory to the Trust demonstrating that such taxes
have been paid).
Holders of Convertible Preferred Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment
record date and prior to such Dividend Payment Date. However, Convertible
Preferred Shares surrendered for conversion during the period between the
close of business on any dividend payment record date and the opening of
business on the corresponding Dividend Payment Date (except shares
converted after the issuance of notice of redemption with respect to a Call
Date during such period, such Convertible Preferred Shares being entitled
to such dividend on the Dividend Payment Date) must be accompanied by
payment of an amount equal to the dividend payable on such shares on such
Dividend Payment Date. A holder of Convertible Preferred Shares on a
dividend payment record date who (or whose transferee) tenders any such
shares for conversion into Common Shares on the corresponding Dividend
Payment Date will receive the dividend payable by the Trust on such
Convertible Preferred Shares on such date, and the converting holder need
not include payment of the amount of such dividend upon surrender of
Convertible Preferred Shares for conversion. Except as provided above, the
Trust shall make no payment or allowance for unpaid dividends, whether or
not in arrears, on converted shares or for dividends on the Common Shares
issued upon such conversion.
-22-
<PAGE>
As promptly as practicable after the surrender of certificates for
Convertible Preferred Shares as aforesaid, the Trust shall issue and shall
deliver at such office to such holder, or on his or her written order, a
certificate or certificates for the number of full Common Shares issuable
upon the conversion of such shares in accordance with provisions of this
Section 3.3.4, and any fractional interest in respect of a Common Share
arising upon such conversion shall be settled as provided in paragraph (c)
of this Section 3.3.4.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Convertible Preferred Shares shall have been surrendered and such notice
shall have been received by the Trust as aforesaid (and if applicable,
payment of an amount equal to the dividend payable on such shares shall
have been received by the Trust as described above), and the person or
persons in whose name or names any certificate or certificates for Common
Shares shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of the shares represented thereby at
such time on such date and such conversion shall be at the Conversion Price
in effect at such time on such date unless the share transfer books of the
Trust shall be closed on that date, in which event such person or persons
shall be deemed to have become such holder or holders of record at the
close of business on the next succeeding day on which such share transfer
books are open, but such conversion shall be at the Conversion Price in
effect on the date on which such shares shall have been surrendered and
such notice received by the Trust.
(c) No fractional shares or scrip representing fractions of Common
Shares shall be issued upon conversion of the Convertible Preferred Shares.
Instead of any fractional interest in a Common Share that would otherwise
be deliverable upon the conversion of a Convertible Preferred Share, the
Trust shall pay to the holder of such share an amount in cash based upon
the Current Market Price of the Common Shares on the Trading Day
immediately preceding the date of conversion. If more than one share shall
be surrendered for conversion at one time by the same holder, the number of
full Common Shares issuable upon conversion thereof shall be computed on
the basis of the aggregate number of Convertible Preferred Shares so
surrendered.
-23-
<PAGE>
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Trust shall after the Issue Date (A) pay a dividend
or make a distribution on its capital shares in Common Shares, (B)
subdivide its outstanding Common Shares into a greater number of
shares, (C) combine its outstanding Common Shares into a smaller
number of shares or (D) issue any shares of beneficial interest by
reclassification of its Common Shares, the Conversion Price in effect
at the opening of business on the day following the date fixed for
the determination of shareholders entitled to receive such dividend
or distribution or at the opening of business on the Business Day
next following the day on which such subdivision, combination or
reclassification becomes effective, as the case may be, shall be
adjusted so that the holder of any Convertible Preferred Share
thereafter surrendered for conversion shall be entitled to receive
the number of Common Shares that such holder would have owned or have
been entitled to receive after the happening of any of the events
described above as if such Convertible Preferred Shares had been
converted immediately prior to the record date in the case of a
dividend or distribution or the effective date in the case of a
subdivision, combination or reclassification. An adjustment made
pursuant to this subparagraph (i) shall become effective immediately
after the opening of business on the Business Day next following the
record date (except as provided in paragraph (h) below) in the case
of a dividend or distribution and shall become effective immediately
after the opening of business on the Business Day next following the
effective date in the case of a subdivision, combination or
reclassification.
(ii) If the Trust shall issue after the Issue Date rights,
options or warrants to all holders of Common Shares entitling them
(for a period expiring within 45 days after the record date mentioned
below) to subscribe for or purchase Common Shares at a price per
share less than 94% (100% if a stand-by underwriter is used and
charges the Trust a commission) of the Fair Market Value per Common
Share on the record date for the determination of shareholders
entitled to receive such rights, options or warrants, then the
Conversion Price in effect at the opening of business on the Business
Day next following such record date shall be adjusted to equal the
price
-24-
<PAGE>
determined by multiplying (A) the Conversion Price in effect
immediately prior to the opening of business on the Business Day next
following the date fixed for such determination by (B) a fraction,
the numerator of which shall be the sum of (x) the number of Common
Shares outstanding on the close of business on the date fixed for
such determination and (y) the number of shares that the aggregate
proceeds to the Trust from the exercise of such rights, options or
warrants for Common Shares would purchase at 94% of such Fair Market
Value (or 100% in the case of a stand-by underwriting), and the
denominator of which shall be the sum of (x) the number of Common
Shares outstanding on the close of business on the date fixed for
such determination and (y) the number of additional Common Shares
offered for subscription or purchase pursuant to such rights, options
or warrants. Such adjustment shall become effective immediately
after the opening of business on the day next following such record
date (except as provided in paragraph (h) below). In determining
whether any rights, options or warrants entitle the holders of Common
Shares to subscribe for or purchase Common Shares at less than 94% of
such Fair Market Value (or 100% in the case of a stand-by
underwriting), there shall be taken into account any consideration
received by the Trust upon issuance and upon exercise of such rights,
options or warrants, the value of such consideration, if other than
cash, to be determined by the Board of Trustees.
(iii) If the Trust shall distribute to all holders of its
Common Shares any securities of the Trust (other than Common Shares)
or evidence of its indebtedness or assets (excluding cumulative cash
dividends or distributions paid with respect to the Common Shares
after December 31, 1996 which are not in excess of the following: the
sum of (A) the Trust's cumulative undistributed Funds from Operations
at December 31, 1996, plus (B) the cumulative amount of Funds from
Operations, as determined by the Board of Trustees, after December
31, 1996, minus (C) the cumulative amount of dividends accrued or
paid in respect of the Convertible Preferred Shares or any other
class or series of preferred shares of beneficial interest of the
Trust after the Issue Date) or rights, options or warrants to
subscribe for or purchase any of its securities (excluding those
rights, options and warrants issued to all holders of Common
-25-
<PAGE>
Shares entitling them for a period expiring within 45 days after the
record date referred to in subparagraph (ii) above to subscribe for
or purchase Common Shares, which rights and warrants are referred to
in and treated under subparagraph (ii) above) (any of the foregoing
being hereinafter in this subparagraph (iii) collectively called the
"Securities" and individually a "Security"), then in each such case
the Conversion Price shall be adjusted so that it shall equal the
price determined by multiplying (x) the Conversion Price in effect
immediately prior to the close of business on the date fixed for the
determination of shareholders entitled to receive such distribution
by (y) a fraction, the numerator of which shall be the Fair Market
Value per Common Share on the record date mentioned below less the
then fair market value (as determined by the Board of Trustees, whose
determination shall be conclusive), of the portion of the Securities
or assets or evidences of indebtedness so distributed or of such
rights, options or warrants applicable to one Common Share, and the
denominator of which shall be the Fair Market Value per Common Share
on the record date mentioned below. Such adjustment shall become
effective immediately at the opening of business on the Business Day
next following (except as provided in paragraph (h) below) the record
date for the determination of shareholders entitled to receive such
distribution. For the purposes of this subparagraph (iii), the
distribution of a Security, which is distributed not only to the
holders of the Common Shares on the date fixed for the determination
of shareholders entitled to such distribution of such Security, but
also is distributed with each Common Share delivered to a Person
converting a Convertible Preferred Share after such determination
date, shall not require an adjustment of the Conversion Price
pursuant to this subparagraph (iii); PROVIDED, that on the date, if
any, on which a person converting a Convertible Preferred Share would
no longer be entitled to receive such Security with a Common Share
(other than as a result of the termination of all such Securities), a
distribution of such Securities shall be deemed to have occurred and
the Conversion Price shall be adjusted as provided in this
subparagraph (iii) (and such day shall be deemed to be "the date
fixed for the determination of the shareholders entitled to receive
such distribution" and "the record date" within the meaning of the
two preceding sentences).
-26-
<PAGE>
(iv) In case a tender or exchange offer (which term shall not
include open market repurchases by the Trust) made by the Trust or
any subsidiary of the Trust for all or any portion of the Common
Shares shall expire and such tender or exchange offer shall involve
the payment by the Trust or such subsidiary of consideration per
Common Share having a fair market value (as determined in good faith
by the Board of Trustees, whose determination shall be conclusive and
described in a resolution of the Board of Trustees), at the last time
(the "Expiration Time") tenders or exchanges may be made pursuant to
such tender or exchange offer, that exceeds the Current Market Price
per Common Share on the Trading Day next succeeding the Expiration
Time, the Conversion Price shall be reduced so that the same shall
equal the price determined by multiplying the Conversion Price in
effect immediately prior to the effectiveness of the Conversion Price
reduction contemplated by this subparagraph (iv) by a fraction of
which the numerator shall be the number of Common Shares outstanding
(including any tendered or exchanged shares) at the Expiration Time,
multiplied by the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, and the denominator
shall be the sum of (A) the fair market value (determined as
aforesaid) of the aggregate consideration payable to shareholders
based upon the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any maximum, being referred to as the
"Purchased Shares") and (B) the product of the number of Common
Shares outstanding (less any Purchased Shares) at the Expiration Time
and the Current Market Price per Common Share on the Trading Day next
succeeding the Expiration Time, such reduction to become effective
immediately prior to the opening of business on the day following the
Expiration Time.
(v) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or
decrease of at least 1% in such price; PROVIDED, HOWEVER, that any
adjustments that by reason of this subparagraph (v) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment until made; and PROVIDED,
-27-
<PAGE>
FURTHER, that any adjustment shall be required and made in accordance
with the provisions of this Section 3.3.4 (other than this
subparagraph (v)) not later than such time as may be required in
order to preserve the tax-free nature of a distribution to the
holders of Common Shares. Notwithstanding any other provisions of
this Section 3.3.4, the Trust shall not be required to make any
adjustment of the Conversion Price for the issuance of any Common
Shares pursuant to any plan providing for the reinvestment of
dividends or interest payable on securities of the Trust and the
investment of additional optional amounts in Common Shares under such
plan. All calculations under this Section 3.3.4 shall be made to the
nearest cent (with $0.005 being rounded upward) or to the nearest
one-tenth of a share (with 0.05 of a share being rounded upward), as
the case may be. Anything in this paragraph (d) to the contrary
notwithstanding, the Trust shall be entitled, to the extent permitted
by law, to make such reductions in the Conversion Price, in addition
to those required by this paragraph (d), as it in its discretion
shall determine to be advisable in order that any share dividends,
subdivision of shares, reclassification or combination of shares,
distribution of rights or warrants to purchase shares or securities,
or distribution of other assets (other than cash dividends) hereafter
made by the Trust to its shareholders shall not be taxable.
(e) If the Trust shall be a party to any transaction (including,
without limitation, a merger, consolidation, statutory share exchange, self
tender offer for all or substantially all of its Common Shares, sale of all
or substantially all of the Trust's assets or recapitalization of the
Common Shares and excluding any transaction as to which subparagraph (d)(i)
of this Section 3.3.4 applies) (each of the foregoing being referred to
herein as a "Transaction"), in each case as a result of which all or
substantially all of the Common Shares are converted into the right to
receive shares, securities or other property (including cash or any
combination thereof), each Convertible Preferred Share which is not
redeemed or converted into the right to receive shares, securities or other
property prior to such Transaction shall thereafter be convertible into the
kind and amount of shares, securities and other property (including cash or
any combination thereof) receivable upon the consummation of such
Transaction by a holder of that number of Common Shares into which one
Convertible Preferred Share was convertible
-28-
<PAGE>
immediately prior to such Transaction, assuming such holder of Common
Shares (i) is not a Person with which the Trust consolidated or into
which the Trust merged or which merged into the Trust or to which such
sale or transfer was made, as the case may be ("Constituent Person"), or
an affiliate of a Constituent Person and (ii) failed to exercise his rights
of election, if any, as to the kind or amount of shares, securities and
other property (including cash) receivable upon such Transaction (provided
that if the kind or amount of shares, securities and other property
(including cash) receivable upon such Transaction is not the same for each
Common Share held immediately prior to such Transaction by other than a
Constituent Person or an affiliate thereof and in respect of which such
rights of election shall not have been exercised ("Non-Electing Share"),
then for the purpose of this paragraph (e) the kind and amount of shares,
securities and other property (including cash) receivable upon such
Transaction by each Non-Electing Share shall be deemed to be the kind and
amount so receivable per share by a plurality of the Non-Electing Shares).
The Trust shall not be a party to any Transaction unless the terms of such
Transaction are consistent with the provisions of this paragraph (e), and
it shall not consent or agree to the occurrence of any Transaction until
the Trust has entered into an agreement with the successor or purchasing
entity, as the case may be, for the benefit of the holders of the
Convertible Preferred Shares that will contain provisions enabling the
holders of the Convertible Preferred Shares that remain outstanding after
such Transaction to convert into the consideration received by holders of
Common Shares at the Conversion Price in effect immediately prior to such
Transaction. The provisions of this paragraph (e) shall similarly apply
to successive Transactions.
(f) If:
(i) the Trust shall declare a dividend (or any other
distribution) on its Common Shares (other than cash dividends or
distributions paid with respect to the Common Shares after December
31, 1996 not in excess of the sum of the Trust's cumulative
undistributed Funds from Operations at December 31, 1996, plus the
cumulative amount of Funds from Operations, as determined by the
Board of Trustees, after December 31, 1996, minus the cumulative
amount of dividends accrued or paid in respect of the Convertible
Preferred Shares or any other class or
-29-
<PAGE>
series of preferred shares of beneficial interest of the Trust
after the Issue Date);
(ii) the Trust shall authorize the granting to all holders of
Common Shares of rights, options or warrants to subscribe for or
purchase any shares of any class or any other rights, options or
warrants;
(iii) there shall be any reclassification of the Common Shares
(other than an event to which subparagraph (d)(i) of this Section
3.3.4 applies) or any consolidation or merger to which the Trust is a
party (other than a merger in which the Trust is the surviving
entity) and for which approval of any shareholders of the Trust is
required, or a statutory share exchange, or a self tender offer by
the Trust for all or substantially all of its outstanding Common
Shares or the sale or transfer of all or substantially all of the
assets of the Trust as an entirety; or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Trust;
then the Trust shall cause to be filed with the Transfer Agent and shall
cause to be mailed to the holders of Convertible Preferred Shares at their
addresses as shown on the records of the Trust, as promptly as possible,
but at least 10 days prior to the applicable date hereinafter specified, a
notice stating (A) the date on which a record is to be taken for the
purpose of such dividend, distribution or granting of rights, options or
warrants, or, if a record is not to be taken, the date as of which the
holders of Common Shares of record to be entitled to such dividend,
distribution or rights, options or warrants are to be determined or (B) the
date on which such reclassification, consolidation, merger, statutory share
exchange, sale, transfer, liquidation, dissolution or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Shares of record shall be entitled to exchange their
Common Shares for securities or other property, if any, deliverable upon
such reclassification, consolidation, merger, statutory share exchange,
sale, transfer, liquidation, dissolution or winding up. Failure to give or
receive such notice or any defect therein shall not affect the legality or
validity of the proceedings described in this Section 3.3.4.
-30-
<PAGE>
(g) Whenever the Conversion Price is adjusted as herein provided,
the Trust shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Trust shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each Convertible
Preferred Share at such holder's last address as shown on the records of
the Trust.
(h) In any case in which paragraph (d) of this Section 3.3.4
provides that an adjustment shall become effective on the day next
following the record date for an event, the Trust may defer until the
occurrence of such event (A) issuing to the holder of any Convertible
Preferred Share converted after such record date and before the occurrence
of such event the additional Common Shares issuable upon such conversion by
reason of the adjustment required by such event over and above the Common
Shares issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount of cash in lieu of any
fraction pursuant to paragraph (c) of this Section 3.3.4.
(i) There shall be no adjustment of the Conversion Price in case of
the issuance of any shares of beneficial interest of the Trust in a
reorganization, acquisition or other similar transaction except as
specifically set forth in this Section 3.3.4. If any action or transaction
would require adjustment of the Conversion Price pursuant to more than one
paragraph of this Section 3.3.4, only one adjustment shall be made and such
adjustment shall be the amount of adjustment that has the highest absolute
value.
(j) If the Trust shall take any action affecting the Common Shares,
other than action described in this Section 3.3.4, that in the opinion of
the Board of Trustees would materially and adversely affect the conversion
rights of the holders of the Convertible Preferred Shares, the Conversion
Price for the Convertible Preferred Shares may be adjusted, to the extent
permitted by law, in such manner, if any, and at such time, as the Board of
Trustees, in its sole discretion, may determine to be equitable in the
circumstances.
-31-
<PAGE>
(k) The Trust covenants that it will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Shares, for the purpose of effecting
conversion of the Convertible Preferred Shares, the full number of Common
Shares deliverable upon the conversion of all outstanding Convertible
Preferred Shares not theretofore converted. For purposes of this paragraph
(k), the number of Common Shares that shall be deliverable upon the
conversion of all outstanding Convertible Preferred Shares shall be
computed as if at the time of computation all such outstanding shares were
held by a single holder.
The Trust covenants that any Common Shares issued upon
conversion of the Convertible Preferred Shares shall be validly issued,
fully paid and non-assessable. Before taking any action that would cause
an adjustment reducing the Conversion Price below the then-par value of the
Common Shares deliverable upon conversion of the Convertible Preferred
Shares, the Trust will take any action that, in the opinion of its counsel,
may be necessary in order that the Trust may validly and legally issue
fully paid and (subject to any customary qualification based upon the
nature of a real estate investment trust) non-assessable Common Shares at
such adjusted Conversion Price.
The Trust shall endeavor to list the Common Shares required to
be delivered upon conversion of the Convertible Preferred Shares, prior to
such delivery, upon each national securities exchange, if any, upon which
the outstanding Common Shares are listed at the time of such delivery.
The Trust shall endeavor to comply with all federal and state
securities laws and regulations thereunder in connection with the issuance
of any securities that the Trust shall be obligated to deliver upon
conversion of the Convertible Preferred Shares. The certificates
evidencing such securities shall bear such legends restricting transfer
thereof in the absence of registration under applicable securities laws or
an exemption therefrom as the Trust may in good faith deem appropriate.
(l) The Trust will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of
Common Shares or other securities or property on conversion of the
Convertible Preferred Shares
-32-
<PAGE>
pursuant hereto; PROVIDED, HOWEVER, that the Trust shall not be required to
pay any tax that may be payable in respect of any transfer involved in the
issue or delivery of Common Shares or other securities or property in a
name other than that of the holder of the Convertible Preferred Shares to
be converted, and no such issue or delivery shall be made unless and until
the person requesting such issue or delivery has paid to the Trust the
amount of any such tax or established, to the reasonable satisfaction of
the Trust, that such tax has been paid.
3.3.5. FIXED CHARGE COVERAGE; LIMITATION ON ISSUANCE OF ADDITIONAL
PREFERRED SHARES AND INDEBTEDNESS.
(a) Without the written consent of the holders of 66-2/3% of the
issued and outstanding Convertible Preferred Shares, none of the Trust, the
Operating Partnership or any of their subsidiaries may issue any additional
preferred securities of any such entity or incur any indebtedness (other than
trade payables or accrued expenses incurred in the ordinary course of business)
if, immediately following such issuance and after giving effect to such issuance
and the application of the net proceeds therefrom, such entity would be
reasonably expected to not satisfy one or both of the following ratios for the
fiscal quarter immediately preceding such issuance:
(i) Total Debt and liquidation value of non-convertible
preferred shares of beneficial interest to Total Market Capitalization of
less than .65 to 1.0 as of the end of the applicable fiscal quarter, or
(ii) Consolidated EBITDA to Consolidated Fixed Charges of at
least 1.4 to 1.0 for the applicable fiscal quarter.
(b) In the event that the Trust fails to satisfy one or both of the
ratios in Section 3.3.5(a)(i) and (ii) above for two consecutive quarters, the
holders of Convertible Preferred Shares shall have the right to require that the
Trust, to the extent that the Trust shall have funds legally available therefor,
repurchase any or all of each holder's Convertible Preferred Shares at a
repurchase price payable in cash in an amount equal to 100% of the Liquidation
Preference thereof, plus accrued and unpaid dividends whether or not declared,
if any (the "Repurchase Payment"), to the date of repurchase or the date payment
is made available (the "Repurchase Date"), pursuant to the offer described in
paragraph (c) below (the "Repurchase Offer").
-33-
<PAGE>
(c) Within 15 days following the second consecutive quarter that the
Trust fails to satisfy one or both of the ratios in Section 3.3.5(a)(i) and (ii)
above, the Trust shall mail by first class mail or overnight courier a notice to
all holders of Convertible Preferred Shares stating (i) that the Trust failed to
satisfy one or both of the tests (naming the test(s) failed), (ii) that the
holders of Convertible Preferred Shares have the right to require the Trust to
repurchase any or all Convertible Preferred Shares then held by such holder in
cash, (iii) the date of repurchase (which shall be a Business Day, no earlier
than 120 days and no later than 150 days from the date such notice is mailed, or
such later date as may be necessary to comply with the requirements of the
Exchange Act), (iv) the repurchase price for the repurchase and (v) the
instructions determined by the Trust, consistent with this paragraph (c), that
the holder must follow in order to have its Convertible Preferred Shares
repurchased.
(d) On the Repurchase Date, the Trust will, to the extent lawful,
accept for payment Convertible Preferred Shares or portions thereof tendered
pursuant to the Repurchase Offer and promptly mail by first class mail or
overnight courier or by wire transfer of immediately available funds to the
holder of Convertible Preferred Shares, as directed by such holder, payment in
an amount equal to the Repurchase Payment in respect of all Convertible
Preferred Shares or portions thereof so tendered.
(e) Notwithstanding anything else herein, to the extent they are
applicable to any Repurchase Offer, the Trust will comply with any federal and
state securities laws, rules and regulations and all time periods and
requirements shall be adjusted accordingly.
(f) "Total Debt" means the sum of (without duplication) any
indebtedness, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures, or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or representing the
balance deferred and unpaid of the purchase price of any property (including
pursuant to capital leases), except any such balance that constitutes an accrued
expense or trade payable, if and to the extent such indebtedness would appear as
a liability upon a balance sheet of such entity prepared on a consolidated basis
in accordance with Generally Accepted Accounting Principles ("GAAP"), and also
includes, to the extent not otherwise included, the guarantee of items which
would be included within this definition.
-34-
<PAGE>
(g) "Total Market Capitalization" means the sum of: (a) the Fair
Market Value of the outstanding Common Shares, assuming (i) the full exchange of
outstanding partnership units (in each case not held by the Trust) of the
Operating Partnership for Common Shares and (ii) the conversion of the
outstanding shares of Convertible Preferred Shares into Common Shares; (b) the
aggregate liquidation value of any outstanding preferred shares of beneficial
interest other than the Convertible Preferred Shares; and (c) the Total Debt of
the Trust.
(h) "Consolidated EBITDA" for any period means the consolidated net
income of the Trust (before extraordinary income or gains) as reported in the
Trust's financial statements filed with the Securities and Exchange Commission
increased by the sum of the following (without duplication):
a. all income and state franchise taxes paid or accrued according to
GAAP for such period (other than income taxes attributable to
extraordinary, unusual or non-recurring gains or losses except to
the extent that such gains were not included in Consolidated
EBITDA),
b. all interest expense paid or accrued in accordance with GAAP for
such period (including financing fees and amortization of
deferred financing fees and amortization of original issue
discount),
c. depreciation and depletion reflected in such reported net income,
d. amortization reflected in such reported net income, including,
without limitation, amortization of capitalized debt issuance
costs (only to the extent that such amounts have not been
previously included in the amount of Consolidated EBITDA pursuant
to clause (b) above), goodwill, other intangibles and management
fees, and
e. any other non-cash charges or discretionary prepayment penalties,
to the extent deducted from consolidated net income (including,
but not limited to, income allocated to minority interests).
(i) "Consolidated Fixed Charges" for any period means the sum of:
-35-
<PAGE>
a. all interest expense paid or accrued in accordance with GAAP for
such period (including financing fees and amortization of
deferred financing fees and amortization of original issue
discount),
b. preferred shares of beneficial interest dividend requirements for
such period, whether or not declared or paid, and
c. regularly scheduled amortization of principal during such period
(other than any balloon payments at maturity).
(j) Notwithstanding the provisions of this Section 3.3.5, in no event
shall the Trust be required to repurchase any Convertible Preferred Shares at
any time that such repurchase is prohibited by this Declaration of Trust or the
Trust's debt instruments.
3.3.6. SHARES TO BE RETIRED. All Convertible Preferred Shares
which shall have been issued and reacquired in any manner by the Trust shall be
restored to the status of authorized but unissued preferred shares of beneficial
interest, without distinction as to class or series, and subject to applicable
limitations set forth in this Declaration of Trust may thereafter be reissued as
shares of any series of preferred shares of beneficial interest.
3.3.7. RANKING. Any class or series of shares of beneficial
interest of the Trust shall be deemed to rank:
(a) prior to the Convertible Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to
the holders of Convertible Preferred Shares;
(b) on a parity with the Convertible Preferred Shares, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share thereof shall
be different from those of the Convertible Preferred Shares, if the holders
of such class or series and the Convertible Preferred Shares shall be
entitled to the receipt of dividends and of amounts
-36-
<PAGE>
distributable upon liquidation, dissolution or winding up in proportion
to their respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the
other ("Parity Shares");
(c) junior to the Convertible Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Junior Shares; and
(d) junior to the Convertible Preferred Shares, as to the payment of
dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Fully Junior
Shares.
3.3.8. VOTING RIGHTS. If and whenever (i) two consecutive
quarterly dividends payable on the Convertible Preferred Shares or any series or
class of Parity Shares shall be in arrears (which shall, with respect to any
such quarterly dividend, mean that any such dividend has not been paid in full),
whether or not earned or declared, or (ii) for two consecutive quarterly
dividend periods the Trust fails to pay dividends on the Common Shares in an
amount per share at least equal to $0.3375 (subject to adjustment consistent
with any adjustment of the Conversion Price pursuant to Section 3.3.4(d) hereof)
the number of Trustees then constituting the Board of Trustees shall be
increased by one (unless the then current Board of Trustees consists of more
than 10 Trustees in which case it shall be increased by two) and the holders of
Convertible Preferred Shares, together with the holders of shares of every other
series of Parity Shares (any such other series, the "Voting Preferred Shares"),
voting as a single class regardless of series, shall be entitled to elect the
one or two additional Trustees to serve on the Board of Trustees at any annual
meeting of shareholders or special meeting held in place thereof, or at a
special meeting of the holders of the Convertible Preferred Shares and the
Voting Preferred Shares called as hereinafter provided. Whenever all arrears in
dividends on the Convertible Preferred Shares and the Voting Preferred Shares
then outstanding shall have been paid and dividends thereon for the current
quarterly dividend period shall have been paid or declared and set apart for
payment, or the Trust has paid dividends on the Common Shares in an amount per
share at least equal to $0.3375 (subject to adjustment consistent with any
adjustment of the Conversion Price pursuant to Section 3.3.4(d)) for two
consecutive quarters, then the right of the holders of the Convertible Preferred
Shares and the Voting Preferred Shares to elect such
-37-
<PAGE>
additional Trustee(s) shall cease (but subject always to the same provision
for the vesting of such voting rights in the case of any similar future
arrearage in quarterly dividends), and the terms of office of all persons
elected as Trustee(s) by the holders of the Convertible Preferred Shares and
the Voting Preferred Shares shall forthwith terminate and the number of the
Board of Trustees shall be reduced accordingly. At any time after such voting
power shall have been so vested in the holders of Convertible Preferred
Shares and the Voting Preferred Shares, the Secretary of the Trust may, and
upon the written request of any holder of Convertible Preferred Shares
(addressed to the Secretary at the principal office of the Trust) shall, call
a special meeting of the holders of the Convertible Preferred Shares and of
the Voting Preferred Shares for the election of the Trustee(s) to be elected
by them as herein provided, such call to be made by notice similar to that
provided in the Bylaws for a special meeting of the shareholders or as
required by law. If any such special meeting required to be called as above
provided shall not be called by the Secretary within 20 days after receipt of
any such request, then any holder of Convertible Preferred Shares may call
such meeting, upon the notice above provided, and for that purpose shall have
access to the records of the Trust. The Trustee(s) elected at any such
special meeting shall hold office until the next annual meeting of the
shareholders or special meeting held in lieu thereof if such office shall not
have previously terminated as above provided. If any vacancy shall occur
among the Trustee(s) elected by the holders of the Convertible Preferred
Shares and the Voting Preferred Shares, a successor shall be elected by the
Board of Trustees, upon the nomination of the then-remaining Trustee elected
by the holders of the Convertible Preferred Shares and the Voting Preferred
Shares or, if there is no such remaining Trustee, upon the nomination of the
holders of a majority of the voting power of the Convertible Preferred Shares
and the Voting Preferred Shares, to serve until the next annual meeting of
the shareholders or special meeting held in place thereof if such office
shall not have previously terminated as provided above.
So long as any Convertible Preferred Shares are outstanding, in
addition to any other vote or consent of shareholders required by law or by this
Declaration of Trust, the affirmative vote of at least 66-2/3% of the votes
entitled to be cast by the holders of the Convertible Preferred Shares given in
person or by proxy, either in writing without a meeting or by vote at any
meeting called for the purpose, shall be necessary for effecting or validating:
-38-
<PAGE>
Any amendment, alteration or repeal of any of the provisions of this
Declaration of Trust that materially and adversely affects the voting powers,
rights or preferences of the holders of the Convertible Preferred Shares;
PROVIDED, HOWEVER, that the amendment of the provisions of this Declaration of
Trust so as to authorize or create, or to increase the authorized amount of, any
Fully Junior Shares, Junior Shares that are not senior in any respect to the
Convertible Preferred Shares or any Parity Shares shall not be deemed to
materially adversely affect the voting powers, rights or preferences of the
holders of Convertible Preferred Shares; or
A share exchange that affects the Convertible Preferred Shares, a
consolidation with, or merger of the Trust into, another entity, or a
consolidation with, or merger of another entity into, the Trust, unless in each
such case each Convertible Preferred Share (i) shall remain outstanding without
a material and adverse change to its terms and rights or (ii) shall be converted
into or exchanged for convertible preferred shares of the surviving entity
having preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications and term or conditions of redemption
thereof identical to that of a Convertible Preferred Share (except for changes
that do not materially and adversely affect the holders of the Convertible
Preferred Shares);
PROVIDED, HOWEVER, that no such vote of the holders of Convertible Preferred
Shares shall be required if, at or prior to the time when such amendment,
alteration or repeal is to take effect, or when the issuance of any such prior
shares or convertible security is to be made, as the case may be, provision is
made for the redemption of all Convertible Preferred Shares at the time
outstanding to the extent such redemption is authorized by Section 3.3.3 hereof.
For purposes of the foregoing provisions of this Section 3.3.8, each
Convertible Preferred Share shall have one (1) vote per share, except that when
any other series of Preferred Shares shall have the right to vote with the
Convertible Preferred Shares as a single class on any matter, then the
Convertible Preferred Shares and such other series shall have with respect to
such matters one (1) vote per $20.00 (or less pursuant to Section 3.3.2(a)
hereof) of the stated liquidation preference. Except as otherwise required by
applicable law or as set forth herein, the Convertible Preferred Shares shall
not have any relative, participating, optional or other special voting rights
and powers other than as set forth herein, and the consent of the holders
thereof shall not be required for the taking of any Trust action.
-39-
<PAGE>
3.3.9. RECORD HOLDERS. The Trust and the Transfer Agent may deem
and treat the record holder of any Convertible Preferred Shares as the true and
lawful owner thereof for all purposes, and neither the Trust nor the Transfer
Agent shall be affected by any notice to the contrary.
3.4. ADDITIONAL PREFERRED SHARES. The Trustees shall have power from time
to time to classify or reclassify unissued additional Preferred Shares in one or
more series and to establish for each series the terms, preferences, conversion
or other rights, voting powers, restrictions, distribution limitations,
qualifications and redemption terms and conditions, and to set or change the
number of shares in each series, and, in such event, the Trust shall file for
record with the State Department of Assessments and Taxation of the State of
Maryland (the "SDAT") articles supplementary to this Declaration of Trust in
substance and form as prescribed by Maryland law.
3.5. AUTHORIZATION BY BOARD OF SHARE ISSUANCE. The Board of Trustees may
authorize the issuance from time to time of Shares of any class or series,
whether now or hereafter authorized, or securities or rights convertible into
Shares of any class or series, whether now or hereafter authorized, for such
consideration (whether in cash, property, past or future services, obligation
for future payment or otherwise) as the Board of Trustees may deem advisable (or
without consideration in the case of a Share split or Share dividend), subject
to such restrictions or limitations, if any, as may be set forth herein or in
the Bylaws, and all Shares so issued will be fully paid and non-assessable.
Notwithstanding any other provision herein, no determination shall be made by
the Board of Trustees nor shall any transaction be entered into by the Trust
which would cause any Shares or other beneficial interest in the Trust not to
constitute "transferable shares" or "transferable certificates of beneficial
interest" under Section 856(a)(2) of the Code or which would cause any
distribution to constitute a preferential dividend as described in Section
562(c) of the Code.
3.6. DIVIDENDS AND DISTRIBUTIONS. Subject to the dividend rights and the
preferential rights upon liquidation of the Convertible Preferred Shares, any
additional Preferred Shares and the Excess Shares, holders of Common Shares will
participate equally in dividends payable to holders of Common Shares when and as
authorized and declared by the Board of Trustees and in net assets available for
distribution to holders of Common Shares upon liquidation or dissolution. The
Board of Trustees may from time to time authorize and declare to shareholders
such dividends or
-40-
<PAGE>
distributions, in cash or other assets of the Trust or in securities of the
Trust or from any other source as the Board of Trustees in its discretion
shall determine. The Board of Trustees shall endeavor to declare and pay
such dividends and distributions as shall be necessary for the Trust to
qualify as a REIT under the Code; however, shareholders shall have no right
to any dividend or distribution unless and until authorized and declared by
the Board of Trustees. The exercise of the powers and rights of the Board of
Trustees pursuant to this Section 3.6 shall be subject to the provisions of
any class or series of Shares at the time outstanding.
3.7. GENERAL NATURE OF SHARES. All Shares shall be personal property
entitling the shareholders only to those rights provided in this Declaration
of Trust. The shareholders shall have no interest in the property of the
Trust and shall have no right to compel any partition, division, dividend or
distribution of the Trust or of the property of the Trust. The death of a
shareholder shall not terminate the Trust. The Trust is entitled to treat as
shareholders only those persons in whose names Shares are registered as
holders of Shares on the beneficial interest ledger of the Trust.
3.8. FRACTIONAL SHARES. The Trust may, without the consent or approval
of any shareholder, issue fractional Shares, eliminate a fraction of a Share
by rounding up or down to a full Share, arrange for the disposition of a
fraction of a Share by the person entitled to it, or pay cash for the fair
value of a fraction of a Share.
3.9. DECLARATION OF TRUST AND BYLAWS. All shareholders are subject to
the provisions of this Declaration of Trust and the Bylaws.
4. RESTRICTIONS ON TRANSFER, ACQUISITION AND REDEMPTION OF EQUITY SHARES;
EXCHANGE FOR EXCESS SHARES.
4.1. RESTRICTIONS ON OWNERSHIP AND TRANSFER.
(a) Except as provided in Section 4.6 hereof, from and after the
Closing Date of the Initial Public Offering and prior to the Restriction
Termination Date, no Person shall Beneficially Own or Constructively Own
Equity Shares in excess of the Ownership Limit.
(b) Except as provided in Section 4.6 hereof, from and after the
Closing Date of the Initial Public Offering and prior to
-41-
<PAGE>
the Restriction Termination Date, any Transfer that, if effective, would
result in any Person Beneficially Owning or Constructively Owning Equity
Shares in excess of the Ownership Limit shall be void AB INITIO as to the
Transfer of such Equity Shares which would be otherwise Beneficially Owned or
Constructively Owned by such Person in excess of the Ownership Limit, and
such Person shall acquire no rights in such Equity Shares.
(c) Except as provided in Section 4.6 hereof, from and after the
Closing Date of the Initial Public Offering and prior to the Restriction
Termination Date, any Transfer that, if effective, would result in the Equity
Shares being Beneficially Owned or Constructively Owned by less than 100
Persons (determined without reference to any rules of attribution) shall be
void AB INITIO as to the Transfer of such shares of Equity Shares which would
be otherwise Beneficially Owned or Constructively Owned by the transferee,
and the intended transferee shall acquire no rights in such Equity Shares;
PROVIDED, HOWEVER, that this Section 4.1(c) shall not apply to the Transfer
of Equity Shares from the Trust to the underwriters of the Initial Public
Offering.
(d) Except as provided in Section 4.6 hereof, from and after the
Closing Date of the Initial Public Offering and prior to the Restriction
Termination Date, any Transfer that, if effective, would result in the Trust
being "closely held" within the meaning of Section 856(h) of the Code shall
be void AB INITIO as to the Transfer of the shares of Equity Shares which
would cause the Trust to be "closely held" within the meaning of Section
856(h) of the Code or any successor statute, and the intended transferee
shall acquire no rights in such Equity Shares.
4.2 CONVERSION TO EXCESS SHARES AND TRANSFER TO SHARE TRUST.
(a) If, notwithstanding the other provisions contained in this
Section 4, at any time from and after the Closing Date of the Initial Public
Offering and prior to the Restriction Termination Date, there is a purported
Transfer, change in the capital structure of the Trust or other event such
that any Person would Beneficially Own or Constructively Own Equity Shares in
excess of the applicable Ownership Limit, then, subject to Section 4.6 and
Section 4.7 hereof, such Equity Shares in excess of such Ownership Limit
(rounded up to the nearest whole share) shall be automatically converted into
an equal number of "Excess Shares" and, in accordance with the provisions of
this Section 4, be transferred automatically, by operation of law, to a Share
Trust to be held in accordance with this Section 4. Such conversion and
-42-
<PAGE>
transfer shall be effective as of the close of business on the Business Day
prior to the date of the purported Transfer, change in capital structure of
the Trust or other event.
(b) If, notwithstanding the other provisions contained in this
Section 4, at any time from and after the Closing Date of the Initial Public
Offering and prior to the Restriction Termination Date, there is a purported
Transfer, change in the capital structure of the Trust or other event which,
if effective, would (i) result in the Equity Shares being Beneficially Owned
or Constructively Owned by fewer than 100 Persons (determined without
reference to rules of attribution) or (ii) cause the Trust to become "closely
held" within the meaning of Section 856(h) of the Code or any successor
statute, then such number of Equity Shares (rounded up to the nearest whole
share) being transferred which would cause the Trust to be "closely held"
within the meaning of Section 856(h) of the Code or any successor statute
shall be automatically converted into an equal number of "Excess Shares" and,
in accordance with the provisions of this Section 4, be transferred
automatically, by operation of law, to a Share Trust to be held in accordance
with this Section 4. Such conversion and transfer shall be effective as of
the close of business on the Business Day prior to the date of the purported
Transfer, change in capital structure or other event.
4.3. REMEDIES FOR BREACH. If the Trustees or their designee shall at
any time determine in good faith that a Transfer has taken place in violation
of Section 4.1 hereof, or that a Person intends to acquire or has attempted
to acquire Beneficial Ownership or Constructive Ownership of any Shares of
the Trust in violation of Section 4.1, the Trustees or their designee shall
take such action as they deem advisable to refuse to give effect to or to
prevent such Transfer, including, but not limited to, refusing to give effect
to such Transfer on the books of the Trust, directing the Trust's transfer
agent and/or registrar to refuse to give effect to such Transfer on the books
of the Trust or instituting proceedings to enjoin such Transfer; PROVIDED,
HOWEVER, that any Transfer or attempted Transfer in violation of Section 4.1
shall automatically result in the conversion and transfer described in
Sections 4.2(a) and 4.2(b) hereof irrespective of any action (or non-action)
by the Trustees or their designee.
4.4. NOTICE TO TRUST OF RESTRICTED TRANSFER. Any Person who acquires
or attempts to acquire shares in violation of Section 4.1 hereof, or any
Person who is a transferee such that Excess Shares result under Section 4.2
hereof, shall immediately give the Trust written notice of such event and
shall provide to the Trust such
-43-
<PAGE>
other information as the Trust may request in order to determine the effect,
if any, of such Transfer or attempted Transfer on the Trust's status as a
REIT.
4.5. OWNERS REQUIRED TO PROVIDE INFORMATION FOR TRUST. From and after
the Closing Date of the Initial Public Offering and prior to the Restriction
Termination Date:
(a) Every Beneficial Owner or Constructive Owner of more than
5.0% (or such lower percentage as required pursuant to regulations under the
Code) of the number or value of outstanding Equity Shares of the Trust shall,
within 30 days after January 1 of each year, give a written statement or
affidavit to the Trust stating the name and address of such Beneficial Owner
or Constructive Owner, the number of Equity Shares Beneficially Owned or
Constructively Owned and a description of how such Equity Shares are held.
Each such Beneficial Owner shall provide to the Trust such additional
information as the Trust may reasonably request in order to determine the
effect, if any, of such Beneficial Ownership or Constructive Ownership on the
Trust's status as a REIT or to ensure compliance with the Ownership Limit.
(b) Each Person who is a Beneficial Owner or Constructive Owner
of Equity Shares and each Person (including the shareholder of record) who is
holding Equity Shares for a Beneficial Owner or Constructive Owner shall
provide to the Trust a written statement or affidavit stating such
information as the Trust may reasonably request in order to determine the
Trust's status as a REIT or to ensure compliance with the Ownership Limit.
4.6. EXCEPTIONS TO OWNERSHIP LIMIT. The Ownership Limit shall not
apply to the acquisition of Equity Shares by an underwriter that participates
in a public offering of such shares for a period of 90 days following the
purchase by such underwriter of such shares; PROVIDED, that the restrictions
contained in Section 4.1 hereof will not be violated following the
distribution by such underwriter of such shares. In addition, the Board of
Trustees, upon receipt of a ruling from the Internal Revenue Service or an
opinion of counsel satisfactory to it, in each case to the effect that the
restrictions contained in Section 4.1 hereof will not be violated and that
REIT status will not otherwise be lost, and upon such other conditions as the
Trustees may direct, may in its discretion exempt a Person from, or provide
such Person with a limited exception to, the Ownership Limit if such Person
is not an individual for purposes of Section 542(a)(2) of the Code; PROVIDED,
HOWEVER, that (i) the Board of Trustees must obtain such representations and
undertakings from such Person as are reasonably
-44-
<PAGE>
necessary to ascertain that no individual's Beneficial Ownership or
Constructive Ownership of Equity Shares will violate the Ownership Limit,
(ii) such Person agrees that any exemption or exception provided pursuant to
this Section 4.6 shall only apply to such Person and that any subsequent
Transfer by such Person which would cause any violation or attempted
violation of the Ownership Limit with respect to any other Person pursuant to
Section 4.1 shall cause the revocation of the exemption or exception and any
resulting Excess Shares will be transferred to the Share Trust pursuant to
Section 4.2 hereof and (iii) such Person agrees that the acquisition of the
Equity Shares that is the subject of the exemption or exception does not and
will not cause the Trust to actually or Constructively Own more than a
certain percentage interest (within the meaning of Section 856(d)(2)(B) of
the Code and as determined by the Board of Trustees but in no event more than
9.9%) in any tenant of the Trust's real property determined without regard to
any other interests in any such tenant which the Company may actually or
Constructively Own, provided that this clause (iii) shall not apply if such
ownership would not cause the Trust to fail the income tests set forth in
Section 856(c) of the Code for any taxable year.
4.7. SETTLEMENTS ON A NATIONAL SECURITIES EXCHANGE. Notwithstanding
any provision contained herein to the contrary, nothing in this Section 4
shall preclude the settlement of any transaction entered into through the
facilities of the NYSE. The fact that the settlement occurs shall not negate
the effect of any other provision of this Section 4, and any transferee in
such a transaction and the Shares so transferred shall be subject to all of
the provisions and limitations set forth in this Section 4.
4.8. EXCESS SHARES AND SHARE TRUST.
(a) SHARE TRUST. Any Equity Shares transferred to a Share Trust
and converted into Excess Shares pursuant to Section 4.2 hereof shall be held
for the exclusive benefit of the Beneficiary. The Trust shall name a
Beneficiary of each Share Trust within five days after discovery of the
existence thereof. Any conversion of Equity Shares into Excess Shares and
transfer to a Share Trust pursuant to Section 4.2 shall be effective as of
the close of business on the Business Day prior to the date of the purported
Transfer, change in capital structure or other event that results in the
transfer to the Share Trust. Excess Shares shall remain issued and
outstanding shares of the Trust and shall be entitled to the same rights and
privileges on identical terms and conditions as are all other issued and
outstanding Equity Shares of the same class and series as the class and
series from which such
-45-
<PAGE>
Excess Shares were converted. When transferred to a Permitted Transferee in
accordance with the provisions of Section 4.8(e) hereof, such Excess Shares
shall be automatically converted into shares of the class and series from
which they were converted into Excess Shares.
(b) DIVIDEND RIGHTS. The Share Trustee shall be entitled to
receive all dividends and distributions with respect to Excess Shares as may
be declared by the Board of Trustees on the Equity Shares from which such
Excess Shares were converted and shall hold such dividends or distributions
in trust for the benefit of the Beneficiary. The Prohibited Transferee with
respect to Excess Shares shall repay to the Share Trust the amount of any
dividends or distributions received by it that (i) are attributable to any
Equity Shares converted into Excess Shares and (ii) the record date for which
was on or after the date that such shares became Excess Shares. The Trust
shall take all measures that it determines reasonably necessary to recover
the amount of any such dividend or distribution paid to a Prohibited
Transferee, including, if necessary, withholding any portion of future
dividends or distributions payable on Equity Shares purported to be
Beneficially Owned or Constructively Owned by the Person who, but for the
provisions of Section 4.1 hereof, would Constructively Own or Beneficially
Own the Excess Shares; and, as soon as reasonably practicable following the
Trust's receipt or withholding thereof, shall pay over to the Share Trust for
the benefit of the Beneficiary the dividends so received or withheld, as the
case may be.
(c) RIGHTS UPON LIQUIDATION FOR EXCESS SHARES. In the event of
any voluntary or involuntary liquidation, dissolution or winding up of, or
any other distribution of all or substantially all of the assets of, the
Trust, each holder of Excess Shares shall be entitled to receive, ratably
with each other holder of Equity Shares of the same class and series as the
class and series from which such Excess Shares were converted, that portion
of the assets of the Trust available for distribution to the holders of such
class and series of Equity Shares. The Share Trust shall distribute to the
Prohibited Transferee the amounts received upon such liquidation,
dissolution, winding up or distribution; PROVIDED, HOWEVER, that the
Prohibited Transferee shall not be entitled to receive amounts pursuant to
this Section 4.8(c) in excess of, (i) in the case of a purported Transfer in
which the Prohibited Transferee gave value for Equity Shares and which
Transfer resulted in the transfer of the shares to the Share Trust, the price
per share, if any, such Prohibited Transferee paid for the Equity Shares and,
(ii) in the case of a purported Transfer in
-46-
<PAGE>
which the Prohibited Transfer did not give value for such shares (e.g., if
the shares were received through a gift or devise) and which purported
Transfer resulted in the transfer of shares to the Share Trust, the price per
share equal to the Market Price on the date of such purported Transfer. Any
remaining amount in such Share Trust shall be distributed to the Beneficiary.
(d) VOTING RIGHTS FOR EXCESS SHARES. The Share Trustee shall be
entitled to vote all Excess Shares, which Excess Shares shall have the same
voting rights as the Equity Shares of the class and series from which such
Excess Shares were converted. Any vote by a Prohibited Transferee as a
holder of Equity Shares prior to the discovery by the Trust that the Equity
Shares are Excess Shares shall, subject to applicable law, be rescinded and
shall be void AB INITIO with respect to such Excess Shares and the Prohibited
Transferee shall be deemed to have given, as of the close of business on the
Business Day prior to the date of the purported Transfer that results in the
transfer to the Share Trust of Equity Shares under Section 4.2 hereof, an
irrevocable proxy to the Share Trustee, coupled with an interest, to vote the
Excess Shares in the manner in which the Share Trustee, in its sole and
absolute discretion, desires.
(e) DESIGNATION OF PERMITTED TRANSFEREE. The Share Trustee
shall have the exclusive and absolute right, at any time after the 90-day
period referred to in Section 4.8(g) hereof, to designate a Permitted
Transferee of any and all Excess Shares. In an orderly fashion so as not to
materially adversely affect the Market Price of the Excess Shares, the Share
Trustee shall designate any Person as Permitted Transferee; PROVIDED,
HOWEVER, that (i) the Permitted Transferee so designated purchases for
valuable consideration (whether in a public or private sale), at a price as
set forth in Section 4.8(g), the Excess Shares and (ii) the Permitted
Transferee so designated may acquire such Excess Shares without such
acquisition resulting in a transfer to a Share Trust and the redesignation of
such Equity Shares so acquired as Excess Shares under Section 4.2 hereof.
Upon the designation by the Share Trustee of a Permitted Transferee in
accordance with the provisions of this Section 4.8(e), (i) the Share Trustee
shall, upon receipt of consideration therefor, cause to be transferred to the
Permitted Transferee that number of Excess Shares acquired by the Permitted
Transferee, (ii) the Share Trustee shall cause to be recorded on the books of
the Trust that the Permitted Transferee is the holder of record of such
number of Equity Shares, (iii) such number of Excess Shares shall be
automatically converted into an equal number of Equity Shares of the class
and series from which such Excess Shares were converted and (iv) the Share
Trustee shall
-47-
<PAGE>
distribute to the Beneficiary any and all amounts held with respect to the
Excess Shares after making the payment to the Prohibited Transferee pursuant
to Section 4.8(f) hereof.
(f) COMPENSATION TO RECORD HOLDER OF EQUITY SHARES THAT BECOME
EXCESS SHARES. Any Prohibited Transferee shall be entitled (following
discovery of the Excess Shares and subsequent designation of the Permitted
Transferee in accordance with Section 4.8(e) hereof or following the
acceptance of the offer to purchase such shares in accordance with Section
4.8(g) hereof) to receive from the Share Trustee following the sale or other
disposition of such Excess Shares the lesser of (i) in the case of (a) a
purported Transfer in which the Prohibited Transferee gave value for Equity
Shares and which Transfer resulted in the transfer of the shares to the Share
Trust, the price per share such Prohibited Transferee paid for the Equity
Shares or (b) a Transfer in which the Prohibited Transferee did not give
value for such shares (e.g., if the shares were received through a gift or
devise) and which Transfer resulted in the transfer of shares to the Share
Trust, the Market Price on the date of such Transfer and (ii) the price per
share received by the Share Trustee from the sale or other disposition of
such Excess Shares in accordance with Section 4.8(e) or 4.8(g). Any amounts
received by the Share Trustee in respect of such Excess Shares and in excess
of such amounts to be paid the Prohibited Transferee pursuant to this Section
4.8(f) shall be distributed to the Beneficiary in accordance with the
provisions of Section 4.8(e). Each Beneficiary and Prohibited Transferee
waive any and all claims that they may have against the Share Trustee and the
Share Trust arising out of the disposition of Excess Shares, except for
claims arising out of the gross negligence or willful misconduct of, or any
failure to make payments in accordance with this Section 4.8 by, such Share
Trustee or the Trust.
(g) PURCHASE RIGHT IN EXCESS SHARES. Excess Shares shall be
deemed to have been offered for sale by the Share Trustee to the Trust, or
its designee, at a price per share equal to the lesser of (i) the price per
share in the transaction that created such Excess Shares (or, in the case of
devise or gift, the Market Price at the time of such devise or gift) and (ii)
the Market Price on the date the Trust, or its designee, accepts such offer.
The Trust shall have the right to accept such offer for a period of 90 days
after the later of (i) the date of the purported Transfer which resulted in
such Excess Shares and (ii) the date the Trust determines in good faith that
a Transfer resulting in Excess Shares has occurred, if the Trust does not
receive a notice of such Transfer pursuant to Section 4.4 hereof.
-48-
<PAGE>
4.9. REMEDIES NOT LIMITED. Other than with respect to Section 4.7
hereof, nothing contained in this Section 4 shall limit the authority of the
Trustees to take such other action as they deem necessary or advisable to
protect the Trust and the interest of the shareholders by preservation of the
Trust's status as a REIT and to ensure compliance with the Ownership Limit.
4.10. AMBIGUITIES. In the case of an ambiguity in the application of
any of the provisions of this Section 4, the Trustees shall have the power to
determine the application of the provisions of this Section 4 with respect to
any situation based on the facts known to the Trustees.
4.11. LEGEND.
Each certificate for Common Shares, Preferred Shares and
Convertible Preferred Shares shall bear the following legend:
"The Equity Shares represented by this certificate are
subject to restrictions on transfer for the purpose of
the Trust's maintenance of its status as a real estate
investment trust under the Internal Revenue Code of
1986, as amended (the "Code"). Subject to certain
further restrictions, no Person may (i) Beneficially or
Constructively Own Equity Shares in excess of 9.9% of
the number of shares or value of outstanding Equity
Shares, (ii) Beneficially or Constructively Own Equity
Shares that would result in the Equity Shares being
Beneficially or Constructively Owned by fewer than 100
Persons (determined without reference to any rules of
attribution) or (iii) Beneficially or Constructively Own
Equity Shares that would result in the Trust being
"closely held" under Section 856(h) of the Code, unless
the conditions of Section 4.6 of the Trust's Declaration
of Trust are satisfied. Any Person who attempts to
Beneficially or Constructively Own Equity Shares in
excess of the above limitations must immediately notify
the Trust in writing of such proposed or attempted
Transfer. If any restrictions described above are
violated, the Equity Shares represented hereby will be
converted automatically into Excess Shares which will be
-49-
<PAGE>
transferred automatically, by operation of law, to a
Share Trust to be held for the exclusive benefit of a
Beneficiary to be named by the Trust. In addition, upon
the occurrence of certain events, attempted Transfers in
violation of the restrictions described above may be
void AB INITIO. All capitalized terms in this legend
have the meanings defined in the Trust's Declaration of
Trust, as the same may be further amended from time to
time, a copy of which, including the restrictions on
Transfer, will be sent without charge to each
shareholder who so requests. Such requests must be made
to the Secretary of the Trust at its principal office."
4.13. SEVERABILITY. If any provision of this Section 4 or any
application of any such provision is determined to be void, invalid or
unenforceable by any court having jurisdiction over the issue, the validity
and enforceability of the remaining provisions shall not be affected and
other applications of such provision shall be affected only to the extent
necessary to comply with the determination of such court.
5. SHAREHOLDERS.
5.1. MEETINGS. There shall be an annual meeting of the shareholders,
to be held on proper notice at such time (after the delivery of the annual
report) and convenient location as shall be determined by or in the manner
prescribed in the Bylaws, for the election of the Trustees, if required, and
for the transaction of any other business within the powers of the Trust.
Except as otherwise provided in this Declaration of Trust, special meetings
of shareholders may be called in the manner provided in the Bylaws. If there
are no Trustees, the officers of the Trust shall promptly call a special
meeting of the shareholders entitled to vote for the election of successor
Trustees. Any meeting may be adjourned and reconvened as the Trustees
determine or as provided in the Bylaws.
5.2. VOTING RIGHTS. Subject to the provisions of any class or series
of Shares then outstanding, the shareholders shall be entitled to vote only
on the following matters: (a) termination of REIT status as provided in
Section 2.1(c) hereof; (b) election of Trustees as provided in Section 2.2(a)
hereof and the removal of Trustees as provided in Section 2.3 hereof; (c)
amendment of this Declaration of Trust as provided in Section 7 hereof; (d)
-50-
<PAGE>
termination of the Trust as provided in Section 9.2 hereof; (e) merger or
consolidation of the Trust, or the sale or disposition of all or
substantially all of the property of the Trust, as provided in Section 8
hereof; (f) any matter for which a vote of shareholders is required by a
national securities exchange on which the Shares are traded; and (g) such
other matters with respect to which a vote of the shareholders is required by
applicable law or the Board of Trustees has adopted a resolution declaring
that a proposed action is advisable and directing that the matter be
submitted to the shareholders for approval or ratification. Except with
respect to the foregoing matters, no action taken by the shareholders at any
meeting shall in any way bind the Board of Trustees.
5.3. PREEMPTIVE AND APPRAISAL RIGHTS. Except as may be provided by the
Board of Trustees in setting the terms of any class or series of Shares pursuant
to Section 3.5 hereof, no holder of Shares shall, as such holder: (a) have any
preemptive or preferential right to purchase or subscribe for any additional
Shares or any other security of the Trust which it may issue or sell or (b)
except as expressly required by Maryland law, have any right to require the
Trust to pay it the fair value of its Shares in an appraisal or similar
proceeding.
6. LIABILITY LIMITATION AND INDEMNIFICATION.
6.1. LIMITATION OF SHAREHOLDER LIABILITY. No shareholder shall be
personally liable for any debt, claim, demand, judgment or obligation of any
kind of, against or with respect to the Trust by reason of its being a
shareholder, nor shall any shareholder be subject to any personal liability
whatsoever, in tort, contract or otherwise, to any Person in connection with the
property of the Trust or the affairs of the Trust.
6.2. LIMITATION OF TRUSTEE AND OFFICER LIABILITY. To the maximum extent
that Maryland law in effect from time to time permits limitation of the
liability of trustees and officers of a real estate investment trust, no Trustee
or officer of the Trust shall be liable to the Trust or to any shareholder for
money damages. Neither the amendment nor repeal of this Section 6.2, nor the
adoption or amendment of any other provision of this Declaration of Trust
inconsistent with this Section 6.2, shall apply to or affect in any respect the
applicability of the preceding sentence with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption. In the absence
of any Maryland statute limiting the liability of trustees
-51-
<PAGE>
and officers of a Maryland real estate investment trust for money damages in
a suit by or on behalf of the Trust or by any shareholder, no Trustee or
officer of the Trust shall be liable to the Trust or to any shareholder for
money damages except to the extent that (i) the Trustee or officer actually
received an improper benefit or profit in money, property or services, in
which case the liability shall not exceed the amount of the benefit or profit
in money, property or services actually received; or (ii) a judgment or other
final adjudication adverse to the Trustee or officer is entered in a
proceeding based on a finding in the proceeding that the Trustee's or
officer's action or failure to act was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding.
6.3. EXPRESS EXCULPATORY CLAUSES IN INSTRUMENTS. Neither the shareholders
nor the Trustees, officers, employees or agents of the Trust shall be liable
under any written instrument creating an obligation of the Trust, and all
Persons shall look solely to the property of the Trust for the payment of any
claim under or for the performance of that instrument. The omission of the
foregoing exculpatory language from any instrument shall not affect the validity
or enforceability of such instrument and shall not render any shareholder,
Trustee, officer, employee or agent liable thereunder to any third party, nor
shall the Trustees or any officer, employee or agent of the Trust be liable to
anyone for such omission.
6.4. INDEMNIFICATION AND ADVANCEMENT FOR EXPENSES. The Trust shall
indemnify, to the fullest extent permitted by Maryland law, as applicable from
time to time, all persons who at any time were or are trustees or officers of
the Trust for any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) relating to any
action alleged to have been taken or omitted in such capacity as a trustee or an
officer. The Trust shall pay or reimburse all reasonable expenses incurred by a
present or former trustee or officer of the Trust in connection with any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative) in which the present or former
trustee or officer is a party, in advance of the final disposition of the
proceeding, to the fullest extent permitted by, and in accordance with the
applicable requirements of, Maryland law, as applicable from time to time. The
Trust may indemnify any other persons permitted but not required to be
indemnified by Maryland law, as applicable from time to time, if and to the
extent indemnification is authorized and determined to be appropriate, in each
case in accordance with applicable law, by the Board of Trustees, the majority
of the
-52-
<PAGE>
shareholders of the Trust entitled to vote thereon or special legal counsel
appointed by the Board of Trustees. No amendment of this Declaration of
Trust or repeal of any of its provisions shall limit or eliminate any of the
benefits provided to trustees and officers under this Section 6.4 in respect
of any act or omission that occurred prior to such amendment or repeal.
7. AMENDMENTS.
7.1. GENERAL. The Trust reserves the right from time to time to make any
amendment to this Declaration of Trust, now or hereafter authorized by law,
including any amendment altering the terms or contract rights, as expressly set
forth in this Declaration of Trust, of any Shares. All rights and powers
conferred by this Declaration of Trust on shareholders, Trustees and officers
are granted subject to this reservation. All references to this Declaration of
Trust shall include all amendments thereto.
7.2. BY TRUSTEES. The Trustees by a two-thirds vote may amend this
Declaration of Trust from time to time, in the manner provided by Maryland REIT
law, without any action by the shareholders, to qualify as a REIT under the Code
or under Maryland REIT law.
7.3. BY SHAREHOLDERS. Other than amendments pursuant to Section 3.1 or
Section 7.2 hereof, any amendment to this Declaration of Trust shall be valid
only if approved by the affirmative vote of at least a majority of all the votes
entitled to be cast on the matter, except that any amendment to Section 2.1(c),
2.2(a) or 2.3 or this Section 7.3 of this Declaration of Trust shall be valid
only if approved by the affirmative vote of two-thirds of all the votes entitled
to be cast on the matter.
8. MERGER, CONSOLIDATION OR SALE OF THE PROPERTY OF THE TRUST.
Subject to the provisions of any class or series of Shares at the time
outstanding, the Trust may (a) merge with or into another entity, (b)
consolidate with one or more other entities into a new entity or (c) sell,
lease, exchange or otherwise transfer all or substantially all of the property
of the Trust. Any such action must be approved by the Board of Trustees and,
after notice to all shareholders entitled to vote on the matter, by the
affirmative vote of a majority of all the votes entitled to be cast on the
matter.
-53-
<PAGE>
9. DURATION AND TERMINATION OF TRUST.
9.1. DURATION OF TRUST. The Trust shall continue perpetually unless
terminated pursuant to Section 9.2 hereof or pursuant to any applicable
provision of Maryland REIT law.
9.2. TERMINATION OF TRUST.
(a) Subject to the provisions of any class or series of Shares at
the time outstanding, the Trust may be terminated at any meeting of shareholders
called for that purpose by the affirmative vote of the holders of not less than
two-thirds of the Shares then outstanding and entitled to vote thereon. 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 of the powers of the Trustees under this Declaration of Trust
shall continue, including the powers to fulfill or discharge the Trust's
contracts, collect its assets, sell, convey, assign, exchange, transfer or
otherwise dispose of all or any part of the remaining property of the Trust 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
(iii) After paying or adequately providing for the payment of
all liabilities, and upon receipt of such releases, indemnities and agreements
as they deem necessary for their protection, the Trustees may distribute the
remaining property of the Trust, in cash or in kind or partly each, among the
shareholders according to their respective rights, so that after payment in full
or the setting apart for payment of such preferential amounts, if any, to which
the holders of any Shares (other than Common Shares) at the time outstanding
shall be entitled, the remaining property of the Trust available for payment and
distribution to shareholders shall, subject to any participating or similar
rights of Shares (other than Common Shares) at the time outstanding, be
distributed ratably among the holders of Common Shares at the time outstanding.
(b) After termination of the Trust, the liquidation of its business
and the distribution to the shareholders as herein provided, a majority of the
Trustees shall execute and file with
-54-
<PAGE>
the Trust's records a document certifying that the Trust has been duly
terminated, and thereupon the Trustees shall be discharged from all
liabilities and duties hereunder, and the rights and interests of all
shareholders shall cease.
10. MISCELLANEOUS.
10.1. GOVERNING LAW. The rights of all parties and the validity,
construction and effect of every provision of this Declaration of Trust shall be
subject to and construed according to the laws of the State of Maryland without
regard to conflicts of laws provisions thereof.
10.2 RELIANCE BY THIRD PARTIES. Any certificate shall be final and
conclusive as to any Person dealing with the Trust if executed by an individual
who, according to the records of the Trust or of any recording office in which
this Declaration of Trust may be recorded, appears to be the Secretary or an
Assistant Secretary of the Trust or a Trustee, and if certifying to: (a) the
number or identity of Trustees, officers of the Trust or shareholders; (b) the
due authorization of the execution of any document; (c) the action or vote
taken, and the existence of a quorum, at a meeting of the Board of Trustees or
shareholders; (d) a copy of this Declaration of Trust or of the Bylaws as a true
and complete copy as then in force; (e) an amendment to this Declaration of
Trust; (f) the termination of the Trust; or (g) the existence of any fact which
relates to the affairs of the Trust. No purchaser, lender, transfer agent or
other Person shall be bound to make any inquiry concerning the validity of any
transaction purporting to be made on behalf of the Trust by the Trustees or by
any officer, employee or agent of the Trust.
10.3. SEVERABILITY.
(a) The provisions of this Declaration of Trust are severable, and
if the Board of Trustees shall determine, with the advice of counsel, that any
one or more of such provisions (the "Conflicting Provisions") are in conflict
with the REIT provisions of the Code, the Maryland REIT law or other applicable
federal or state laws, the Conflicting Provisions shall be deemed never to have
constituted a part of this Declaration of Trust, even without any amendment of
this Declaration of Trust pursuant to Section 7 hereof; PROVIDED, HOWEVER, that
such determination by the Board of Trustees shall not affect or impair any of
the remaining provisions of this Declaration of Trust or render invalid or
improper any
-55-
<PAGE>
action taken or omitted prior to such determination. No Trustee shall be
liable for making or failing to make such a determination.
(b) If any provision of this Declaration of Trust shall be held
invalid or unenforceable in any jurisdiction, such holding shall not in any
manner affect or render invalid or unenforceable such provision in any other
jurisdiction or any other provision of this Declaration of Trust in any
jurisdiction.
10.4. CONSTRUCTION. In this Declaration of Trust, unless the context
otherwise requires, words used in the singular or in the plural include both the
plural and singular and words denoting any gender include all genders. The
title and headings of different parts are inserted for convenience and shall not
affect the meaning, construction or effect of this Declaration of Trust.
10.5. RECORDATION. This Declaration of Trust and any amendment hereto
shall be filed for record with the SDAT and may also be filed or recorded in
such other places as the Trustees deem appropriate, but failure to file for
record this Declaration of Trust or any amendment hereto in any office other
than in the State of Maryland shall not affect or impair the validity or
effectiveness of this Declaration of Trust or any amendment hereto. A restated
Declaration of Trust shall, upon filing, be conclusive evidence of all
amendments contained therein and may thereafter be referred to in lieu of the
original Declaration of Trust and the various amendments thereto.
THIRD: the amendment and restatement of the Declaration of Trust was
approved and advised by the Board of Trustees and approved by the sole
shareholder of the Trust in accordance with the Maryland REIT law.
[signature page follows]
-56-
<PAGE>
IN WITNESS WHEREOF, these Articles of Amendment and Restatement have been signed
on this 14th day of November, 1997, by the undersigned President of the Trust
who acknowledges that these Articles of Amendment and Restatement are the act of
the Trust and that, to the best of his knowledge, information and belief, the
matters and facts set forth herein are true in all material respects and that
the statement is made under the penalties for perjury.
PRIME GROUP REALTY TRUST
By: /s/ Richard S. Curto [Seal]
---------------------------
Name: Richard S. Curto
Title: President
ATTEST:
By: /s/ Robert J. Rudnik
---------------------------
Name: Robert J. Rudnik
Title: Secretary
-57-
<PAGE>
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
PRIME GROUP REALTY TRUST
A MARYLAND REAL ESTATE INVESTMENT TRUST
ARTICLE I
OFFICES AND FISCAL YEAR
Section 1.1. REGISTERED OFFICE. Prime Group Realty Trust (the
"Trust") shall maintain a registered office in the State of Maryland as
required by law.
Section 1.2. PRINCIPAL OFFICE. The Trust also has a principal office
located at 77 West Wacker Drive, Suite 3900, Chicago, Illinois 60601,
telephone number 312/917-1500.
Section 1.3. OTHER OFFICES. The Trust may also have offices other
than its principal office at such other places both within and without the
State of Maryland as the Board of Trustees may from time to time determine or
as the business of the Trust may require.
Section 1.4. FISCAL AND TAXABLE YEARS. The fiscal and taxable years
of the Trust shall begin on January 1 and end on December 31.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1. PLACE. All meetings of shareholders shall be held at the
principal office of the Trust or at such other place within the United States
as shall be stated in the notice of the meeting.
Section 2.2. ANNUAL MEETINGS. An annual meeting of the shareholders
for the election of Trustees and the transaction of any business within the
powers of the Trust shall be held each year beginning with the year 1998,
after the delivery of the annual report referred to in Section 2.14 of this
Article II, at a convenient location and on proper notice, on a date and at
the time set by the Trustees. Failure to hold an annual meeting does not
<PAGE>
invalidate the Trust's existence or affect any otherwise valid acts of the
Trust.
Section 2.3. SPECIAL MEETINGS. The chairman of the Board of Trustees,
the president or the Board of Trustees may call special meetings of the
shareholders. Special meetings of shareholders shall also be called by the
secretary upon the written request of the holders of shares entitled to cast
not less than a majority of all the votes entitled to be cast at such
meeting. Such request shall state the purpose of such meeting and the
matters proposed to be acted on at such meeting. The secretary shall inform
such shareholders of the reasonably estimated cost of preparing and mailing
notice of the meeting and, upon payment by such shareholders to the Trust of
such costs, the secretary shall give notice to each shareholder entitled to
notice of the meeting. Each special meeting shall be held upon such date and
at such time and place either within or without the State of Maryland as
shall be designated by the person or persons calling such special meeting at
least ten (10) days prior to the special meeting.
Section 2.4. NOTICE OF MEETING. Not less than ten (10) nor more than
ninety (90) days before such meeting of shareholders, the secretary shall
give to each shareholder entitled to vote at such meeting and to each
shareholder not entitled to vote who is entitled to notice of the meeting,
written or printed notice stating the time and place of the meeting and, in
the case of a special meeting or as otherwise may be required by any statute,
the purpose for which the meeting is called, either by mail or by presenting
it to such shareholder personally or by leaving it at its residence or usual
place of business. If mailed, such notice shall be deemed to be given when
deposited in the United States mail addressed to the shareholder at its post
office address which appears in the records of the Trust, with postage
thereon prepaid.
Section 2.5. SCOPE OF NOTICE. Any business of the Trust may be
transacted at an annual meeting of shareholders without being specifically
designated in such notice, except such business as is required by any statute
to be stated in such notice. No business shall be transacted at a special
meeting of shareholders except as specifically designated in the notice.
Section 2.6. ORGANIZATION. Meetings of shareholders shall be presided
over by the chairman of the Board of Trustees, if any, or in his or her
absence one of the following officers present shall conduct the meeting in
the order stated: the president; the vice presidents in their order of rank
and seniority; or a chairman chosen by the shareholders entitled to cast a
majority of the votes which all shareholders present in person or by proxy
are entitled to cast. The secretary, or, in his or her absence, an assistant
<PAGE>
secretary, or in the absence of both the secretary and assistant secretaries,
a person appointed by the chairman, shall act as secretary.
Section 2.7. QUORUM. Unless otherwise provided by law or the Articles
of Amendment and Restatement of Declaration of Trust of the Trust (the
"Declaration of Trust"), at each meeting of shareholders, the presence in
person or representation by proxy of the holders entitled to cast a majority
of all the votes entitled to be cast at such meeting shall constitute a
quorum for the transaction of business. In the absence of a quorum, the
shareholders so present and represented may, by vote of the holders of a
majority of the shares of the Trust so present and represented, adjourn the
meeting from time to time until a quorum shall attend, and Section 2.8 of
these Bylaws shall apply to each such adjournment.
Section 2.8. ADJOURNMENTS. Any meeting of shareholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Trust may transact any business which
might have been transacted at the original meeting. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each shareholder of record entitled to vote at the meeting.
Section 2.9. VOTING. Subject to the provisions of the Declaration of
Trust, a plurality of all the votes cast at a meeting of shareholders duly
called and at which a quorum is present shall be sufficient to elect a
Trustee. A majority of the votes cast at a meeting of shareholders duly
called and at which a quorum is present shall be sufficient to approve any
other matter which may properly come before the meeting, unless more than a
majority of the votes cast is required herein or by statute or by the
Declaration of Trust. Unless otherwise provided in the Declaration of Trust,
each share shall be entitled to one vote on each matter submitted to a vote
at a meeting of shareholders. Shareholders will have no right to cumulative
voting for the election of Trustees.
Section 2.10. PROXIES. A shareholder may cast the votes entitled to be
cast due to the shares owned of record by him or her either in person or by a
proxy, executed in writing by the shareholder or by his or her duly
authorized agent. Such proxy shall be filed with the secretary of the Trust
before or at the time of the meeting. No proxy shall be valid after eleven
(11)
-3-
<PAGE>
months from the date of its execution, unless otherwise provided in the proxy.
Section 2.11. FIXING DATE FOR DETERMINATION OF SHAREHOLDERS OF RECORD.
In order that the Trust may determine the shareholders entitled to notice of
or to vote at any meeting of shareholders or any adjournment thereof or
entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of Common Shares or for the purpose of any
other lawful action, the Board of Trustees may fix, in advance, a record
date, which shall not be (i) more than ninety (90) nor less than ten (10)
days before the date of such meeting nor (ii) more than ninety (90) days
prior to any other action. If no record date is fixed: (a) the record date
for determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the day next preceding the
day on which notice is given or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held; and
(b) the record date for determining shareholders for any other purpose shall
be at the close of business on the day on which the Board of Trustees adopts
the resolution relating thereto. A determination of shareholders of record
entitled to notice of or to vote at a meeting of shareholders shall apply to
any adjournment of the meeting; PROVIDED, HOWEVER, that the Board of Trustees
may fix a new record date for the adjourned meeting.
Section 2.12. VOTING OF SHARES BY CERTAIN HOLDERS. Any shares
registered in the name of a corporation, partnership, trust or other entity,
if entitled to be voted, may be voted by the president, a vice president, a
general partner or trustee thereof, as the case may be, or a proxy appointed
by any of the foregoing individuals, unless some other person who has been
appointed to vote such shares pursuant to a bylaw or a resolution of the
governing board of such corporation or other entity or agreement of the
partners of the partnership presents a certified copy of such bylaw,
resolution or agreement, in which case such person may vote such shares. Any
trustee or other fiduciary may vote shares registered in his name as such
fiduciary, either in person or by proxy.
Shares of the Trust directly or indirectly owned by it shall not be
voted at any meeting and shall not be counted in determining the total number
of outstanding shares entitled to be voted at any given time, unless they are
held by it in a fiduciary capacity, in which case they may be voted and shall
be counted in determining the total number of outstanding shares at any given
time.
-4-
<PAGE>
The Trustees may adopt by resolution a procedure by which a shareholder
may certify in writing to the Trust that any shares registered in the name of
the shareholder are held for the account of a specified person other than the
shareholder. The resolution shall set forth the class of shareholders who
may make the certification, the purpose for which the certification may be
made, the form of certification and the information to be contained in it; if
the certification is with respect to a record date or closing of the share
transfer books, the time after the record date or closing of the share
transfer books within which the certification must be received by the Trust;
and any other provisions with respect to the procedure which the Trustees
consider necessary or desirable. On receipt of such certification, the
person specified in the certification shall be regarded as, for the purposes
set forth in the certification, the shareholder of record of the specified
shares in place of the shareholder who makes the certification.
Notwithstanding any other provision contained in the Declaration of
Trust or these Bylaws, Title 3, Subtitle 7 of the Corporations and
Associations Article of the Annotated Code of Maryland (or any successor
statute) shall not apply to any acquisition by any person of shares of
beneficial interest of the Trust. This Section 2.12 may be repealed, in
whole or in part, at any time.
Section 2.13. INSPECTORS. At any meeting of shareholders, the
chairman of the meeting may, or upon the request of any shareholder shall,
appoint one or more persons as inspectors for such meetings. Such inspectors
shall ascertain and report the number of shares represented at the meeting
based upon their determination of the validity and effect of proxies, count
all votes, report the results and perform such other acts as are proper to
conduct the election and voting with impartiality and fairness to all the
shareholders.
Each report of an inspector shall be in writing and signed by him or
her, or by a majority of them if there is more than one inspector acting at
such meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or
inspectors on the number of shares represented at the meeting and the results
of the voting shall be prima facie evidence thereof.
Section 2.14. REPORTS TO SHAREHOLDERS.
(a) The Trustees shall submit to the shareholders at or before the
annual meeting of shareholders a report of the business and operations of the
Trust during such fiscal year, containing a
-5-
<PAGE>
balance sheet and a statement of income and surplus of the Trust, accompanied
by the certification of an independent certified public accountant, and such
further information as the Trustees may determine is required pursuant to any
law or regulation to which the Trust is subject. Within the earlier of
twenty (20) days after the annual meeting of shareholders or one hundred and
twenty (120) days after the end of the fiscal year of the Trust, the Trustees
shall place the annual report on file at the principal office of the Trust
and with any governmental agencies as may be required by law and as the
Trustees may deem appropriate.
(b) Not later than forty-five (45) days after the end of each of
the first three (3) quarterly periods of each fiscal year, the Trustees shall
deliver or cause to be delivered an interim report to the shareholders
containing unaudited financial statements for such quarter and for the period
from the beginning of the fiscal year to the end of such quarter, and such
further information as the Trustees may determine is required pursuant to any
law or regulation to which the Trust is subject.
Section 2.15. LIST OF SHAREHOLDERS ENTITLED TO VOTE. The Secretary
shall make, at least ten (10) days before every meeting of shareholders, a
complete list of the shareholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each shareholder and the
number of Common Shares registered in the name of each shareholder. Such
list shall be open to the examination of any Shareholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at
least ten (10) days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice
of the meeting, or, if not so specified, at the place where the meeting is to
be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof and may be inspected by any
shareholder who is present.
Section 2.16. NOMINATIONS AND SHAREHOLDER BUSINESS.
(a) ANNUAL MEETINGS OF SHAREHOLDERS.
(1) Nominations of persons for election to the Board of
Trustees and the proposal of business to be considered by the shareholders
may be made at an annual meeting of shareholders (i) pursuant to the Trust's
notice of meeting, (ii) by or at the direction of the Trustees or (iii) by
any shareholder of the Trust who was a shareholder of record both at the time
of giving of notice provided for in this Section 2.16 and at the time of the
annual meeting, who is entitled to vote at the meeting and who complied with
the notice procedures set forth in this Section 2.16.
-6-
<PAGE>
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (iii) of
paragraph (a)(1) of this Section 2.16, the shareholder must have given timely
notice thereof in writing to the Secretary of the Trust and such other
business must otherwise be a proper matter for action by shareholders. To be
timely, a shareholder's notice shall be delivered to the Secretary at the
principal executive offices of the Trust not later than the close of business
on the 60th day nor earlier than the close of business on the 90th day prior
to the first anniversary of the preceding year's annual meeting; PROVIDED,
HOWEVER, that in the event that the date of the annual meeting is advanced by
more than thirty (30) days or delayed by more than sixty (60) days from such
anniversary date or if the Trust has not previously held an annual meeting,
notice by the shareholder to be timely must be so delivered not earlier than
the close of business on the 90th day prior to such annual meeting and not
later than the close of business on the later of the 60th day prior to such
annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made by the Trust. In no
event shall the public announcement of a postponement or adjournment of an
annual meeting to a later date or time commence a new time period for the
giving of a shareholder's notice as described above. Such shareholder's
notice shall set forth (i) as to each person whom the shareholder proposes to
nominate for election or reelection as a Trustee all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of Trustees, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a Trustee if elected);
(ii) as to any other business that the shareholder proposes to bring before
the meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such shareholder and of the beneficial
owner, if any, on whose behalf the proposal is made; and (iii) as to the
shareholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made: (x) the name and address of such
shareholder as they appear on the Trust's books; (y) the name and address of
such beneficial owner; and (z) the number of each class of Common Shares of
the Trust which are ownd beneficially and of record by such shareholder and
such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this Section 2.16 to the contrary, in the event that the
number of Trustees to be elected to the Board of
-7-
<PAGE>
Trustees is increased and there is no public announcement by the Trust naming
all of the nominees for Trustee or specifying the size of the increased Board
of Trustees at least seventy (70) days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice required by this
Section 2.16 shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it is delivered
to the Secretary at the principal executive offices of the Trust not later
than the close of business on the tenth day following the day on which such
public announcement is first made by the Trust.
(b) SPECIAL MEETING OF SHAREHOLDERS. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the Trust's notice of meeting. Nominations of
persons for election to the Board of Trustees may be made at a special
meeting of shareholders at which Trustees are to be elected (i) pursuant to
the Trust's notice of the meeting, (ii) by or at the direction of the Board
of Trustees or (iii) provided that the Board of Trustees has determined that
Trustees shall be elected at such special meeting, by any shareholder of the
Trust who was a shareholder of record both at the time of giving of notice
provided for in this Section 2.16 and at the time of the special meeting, who
is entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section 2.16. In the event the Trust calls a
special meeting of shareholders for the purpose of electing one or more
Trustees to the Board of Trustees, any such shareholder may nominate a person
or persons (as the case may be) for election to such position as specified in
the Trust's notice of meeting, if the shareholder's notice containing the
information required by paragraph (a)(2) of this Section 2.16 shall be
delivered to the Secretary at the principal office of the Trust not earlier
than the close of business on the 90th day prior to such special meeting and
not later than the close of business on the later of the 60th day prior to
such special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Trustees to be elected at such meeting. In no event
shall the public announcement of a postponement or adjournment of a special
meeting to a later date or time commence a new time period for the giving of
a shareholder's notice as described above.
(c) GENERAL.
(1) Only such persons who are nominated in accordance with
the procedures set forth in this Section 2.16 shall be eligible to serve as
Trustees and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in accordance with
procedures set forth in this
-8-
<PAGE>
Section 2.16. The chairman of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be, in accordance
with the procedures set forth in this Section 2.16 and, if any proposed
nomination or business is not in compliance with this Section 2.16, to
declare that such nomination or proposal shall be disregarded.
(2) For purposes of this Section 2.16, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones New Service,
Associated Press or comparable news service or in a document publicly filed by
the Trust with the Securities and Exchange Commission pursuant to Section 13,
14, or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
2.16, a shareholder shall also comply with all applicable requirements of state
law and of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 2.16. Nothing in this Section
2.16 shall be deemed to affect any rights of shareholder to request inclusion of
proposals in, nor any of the rights of the Trust to omit a proposal from, the
Trust's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.17. INFORMAL ACTION BY SHAREHOLDERS. Any action required or
permitted to be taken at a meeting of shareholders may be taken without a
meeting if a consent in writing, setting forth such action, is signed by each
shareholder entitled to vote on the matter and any other shareholder entitled to
notice of a meeting of shareholders (but not to vote thereat) has waived in
writing any right to dissent from such action, and such consent and waiver are
filed with the minutes of proceedings of the shareholders.
Section 2.18. VOTING BY BALLOT. Voting on any question or in any
election may be viva voce unless the presiding officer shall order or any
shareholder shall demand that voting be by ballot.
-9-
<PAGE>
ARTICLE III
BOARD OF TRUSTEES
Section 3.1. POWERS; QUALIFICATIONS. Unless otherwise provided by law
or the Declaration of Trust, the business and affairs of the Trust shall be
managed by or under the direction of the Board of Trustees. Unless otherwise
provided by the Declaration of Trust, Trustees need not be shareholders. A
Trustee shall be an individual at least 21 years of age who is not under
legal disability.
Section 3.2. ANNUAL AND REGULAR MEETINGS. An annual meeting of the
Trustees shall be held immediately after and at the same place as the annual
meeting of shareholders, no notice other than this Bylaw being necessary.
The Trustees may provide, by resolution, the time and place, either within or
without the State of Maryland, for the holding of regular meetings of the
Trustees without other notice than such resolution.
Section 3.3 SPECIAL MEETINGS. Special meetings of the Trustees may
be called by or at the request of the chairman or chief executive officer or
by one-half or more of the Trustees then in office. The person or persons
authorized to call special meetings of the Trustees may fix any place, either
within or without the State of Maryland, as the place for holding any special
meeting of the Trustees called by them.
Section 3.4. NOTICE. Notice of any special meeting shall be given by
written notice delivered personally, transmitted by facsimile, telegraphed or
mailed to each Trustee at his or her business or residence address or by
telephone or facsimile transmission. Personally delivered, facsimile
transmitted or telegraphed notices shall be given at least two (2) days prior
to the meeting. Telephone notice shall be given at least twenty-four (24)
hours prior to the meeting. Notice by mail shall be given at least five (5)
days prior to the meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail properly addressed, with
postage thereon prepaid. If given by telegram, such notice shall be deemed
to be given when the telegram is delivered to the telegraph company.
Telephone notice shall be deemed given when the Trustee is personally given
notice in a telephone call to which such Trustee personally is a party.
Facsimile transmission shall be deemed given upon receipt by the sender of
confirmation indicating receipt of the transaction. Neither the business to
be transacted at, nor the purpose of, any annual, regular or special meeting
of the Trustees need be stated in the notice, unless specifically required by
statute or these Bylaws.
-10-
<PAGE>
Section 3.5. QUORUM; VOTE REQUIRED FOR ACTION. A majority of the
entire Board of Trustees shall constitute a quorum for transaction of
business at any meeting of the Trustees; PROVIDED, that if less than a
majority of such Trustees are present at said meeting, a majority of the
Trustees present may adjourn the meeting from time to time without further
notice; and PROVIDED FURTHER, that if pursuant to the Declaration of Trust or
these Bylaws the vote of a majority of a particular group of Trustees is
required for action, a quorum must also include a majority of such group.
The Trustees present at a meeting which has been duly called and
convened may continue to transact business until adjournment, notwithstanding
the withdrawal of enough Trustees to leave less than a quorum.
Section 3.6. VOTING.
(a) The action of the majority of the Trustees present at a
meeting at which a quorum is present shall be the action of the Trustees,
unless the concurrence of a greater proportion is required for such action by
applicable statute.
Section 3.7. TELEPHONIC MEETINGS PERMITTED. The Board of Trustees may
participate in a meeting of the Board of Trustees through use of conference
telephone or similar communication equipment by means of which all persons
participating in the meeting can hear each other. Participation in the
meeting pursuant to this Bylaw shall constitute presence in person at such
meeting.
Section 3.8. INFORMAL ACTION BY TRUSTEES. Unless otherwise provided
by the Declaration of Trust, any action required or permitted to be taken at
any meeting of the Board of Trustees may be taken without a meeting if all
members of the Board of Trustees consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board of
Trustees.
Section 3.9. VACANCIES. If for any reason any or all of the
Trustees cease to be Trustees, such event shall not terminate the Trust or
affect these Bylaws or the powers of the remaining Trustees hereunder (even
if fewer than two Trustees remain). Any vacancy (including a vacancy created
by an increase in the number of Trustees) shall be filled, at any regular
meeting or at any special meeting called for that purpose, by a majority of
the remaining Trustees. Any individual so elected as Trustee shall hold
office for the unexpired term of the Trustee he or she is replacing.
-11-
<PAGE>
Section 3.10. COMPENSATION OF TRUSTEES. Unless otherwise provided by
the Declaration of Trust, the Board of Trustees shall have the authority to
fix the compensation of Trustees. Such compensation may, by resolution of
the Trustees, include a fixed sum of cash and/or shares of beneficial
interest of the Trust (or options to acquire shares) per year and/or per
visit to real property owned or to be acquired by the Trust and for any
service or activity they performed or engaged in as Trustees. Trustees may
be reimbursed for expenses of attendance, if any, at each annual, regular or
special meeting of the Trustees or of any committee thereof; and for their
expenses, if any, in connection with each property visit and any other
service or activity performed or engaged in as Trustees; but nothing herein
contained shall be construed to preclude any Trustees form serving the Trust
in any other capacity and receiving compensation therefor.
Section 3.11. REMOVAL OF TRUSTEES. The shareholders may, at any
time, remove any Trustee in the manner provided in the Declaration of Trust.
Section 3.12. LOSS OF DEPOSITS. No Trustee shall be liable for any
loss which may occur by reason of the failure of a bank, trust company,
savings and loan association, or other institution with whom moneys or shares
have been deposited.
Section 3.13. SURETY BOND. Unless required by law, no Trustee shall
be obligated to give any bond or surety or other security for the performance
of any of his or her duties.
Section 3.14. RELIANCE. Each Trustee, officer, employee and agent of
the Trust shall, in the performance of his or her duties with respect to the
Trust, be fully justified and protected with regard to any act or failure to
act in reliance in good faith upon the books of account or other records of
the Trust, upon an opinion of counsel or upon reports made to the Trust by
any of its officers or employees or by the adviser, accountants, appraisers
or other experts or consultants selected by the Trustees or officers of the
Trust, regardless of whether such counsel or expert may also be a Trustee.
Section 3.15. NUMBER AND CLASSIFICATION. The number of Trustees of
the Trust shall initially be seven (7). The Trustees shall be classified,
with respect to the terms for which they severally hold office, into separate
classes in the manner prescribed in the Declaration of Trust. At any regular
meeting or at any special meeting called for that purpose, by the affirmative
vote of at least two-thirds of the members, the Board of Trustees may
increase or decrease the number of Trustees; PROVIDED, that the number
thereof shall not be fewer than three (3) nor more than
-12-
<PAGE>
thirteen (13); and PROVIDED FURTHER, that the tenure of office of a Trustee
shall not be affected by any decrease in the number of Trustees.
ARTICLE IV
COMMITTEES
Section 4.1. NUMBER, TENURE AND VACANCIES. The Board of Trustees may,
by resolution passed by a majority of the Trustees in office, appoint from
among its members committees comprised of two (2) or more Trustees. Notice
of committee meetings shall be given in the same manner as notice for special
meetings of the Board of Trustees. Subject to the provisions hereof, the
Board of Trustees shall have the power at any time to change the membership
of any committee, to fill all vacancies, to designate alternative members to
replace any absent or disqualified member or to dissolve any such committee.
Section 4.2. POWER OF COMMITTEES. The Board of Trustees may delegate
to any committee designated under Section 4.1 hereof any of the powers and
authority of the Board of Trustees in the management of the business and
affairs of the Trust. No such committee, however, shall have power or
authority in reference to (i) amending the Declaration of Trust or the
Bylaws; (ii) approving any merger or share exchange which does not require
shareholder approval; (iii) recommending to the shareholders any action which
requires shareholder approval; and (iv) declaring a dividend or a
distribution with respect to shares.
Section 4.3. MEETINGS. In the absence of any member of any such
committee, the members thereof present at any meeting, whether or not they
constitute a quorum, may appoint another Trustee to act in the place of such
absent member.
One-third, but not less than two (2), of the members of any committee
shall be present in person at any meeting of such committee in order to
constitute a quorum for the transaction of business at such meeting, and the
act of the majority present shall be the act of such committee. The Board of
Trustees may designate a chairman of any committee, and such chairman or any
two members of any committee may fix the time and place of its meetings
unless the Board shall otherwise provide. In the absence or disqualification
of any member of any committee, the members thereof present at any meeting
and not disqualified from voting, whether or not they constitute a quorum,
may unanimously appoint another Trustee to act at the meeting in the place of
such absent or disqualified members; PROVIDED, HOWEVER, that in the event of
-13-
<PAGE>
the absence or disqualification of an Independent Trustee, such appointee
shall be an Independent Trustee.
Each committee shall keep minutes of its proceedings and shall report
the same to the Board of Trustees at the meeting next succeeding, and any
action by the committees shall be subject to revision and alteration by the
Board of Trustees; PROVIDED that no rights of third persons shall be affected
by any such revision or alteration.
Section 4.4. TELEPHONE MEETINGS. Members of a committee of the
Trustees may participate in a meeting by means of a conference telephone or
similar communications equipment if all persons participating in the meeting
can hear each other at the same time. Participation in a meeting by these
means shall constitute presence in person at the meeting.
Section 4.5. INFORMAL ACTION BY COMMITTEES. Any action required or
permitted to be taken at any meeting of a committee of the Trustees may be
taken without a meeting, if a consent in writing to such action is signed by
each member of the committee and such written consent is filed with the
minutes of proceedings of such committee.
ARTICLE V
OFFICERS
Section 5.1 GENERAL PROVISIONS. The officers of the Trust may
consist of a chairman of the board, one or more chief operating officers, one
or more chief executive officers, a president, one or more vice presidents, a
chief financial officer, a treasurer, one or more assistant treasurers, a
secretary, and one or more assistant secretaries. In addition, the Trustees
may from time to time appoint such other officers with such powers and duties
as they shall deem necessary or desirable. The officers of the Trust shall
be elected annually by the Trustees at the first meeting of the Trustees held
after each annual meeting of shareholders. If the election of officers shall
not be held at such meeting, such election shall be held as soon thereafter
as may be convenient. Each officer shall hold office until his or her
successor is elected and qualifies or until his or her death, resignation or
removal in the manner hereinafter provided. Any two or more offices may be
held by the same person. In their discretion, the Trustees may leave
unfilled any office except that of president and secretary. Election of an
officer or agent shall not of itself create contract rights between the Trust
and such officer or agent.
-14-
<PAGE>
Section 5.2. REMOVAL AND RESIGNATION. Any officer or agent of the
Trust may be removed by a majority of the members of the Board of Trustees if
in their judgment the best interests of the Trust would be served thereby,
but any such removal shall be without prejudice to the contractual rights, if
any, of the person so removed. Any officer of the Trust may resign at any
time by giving written notice of his or her resignation to the Trustees, the
chairman of the board, the president or the secretary. Any resignation shall
take effect at any time subsequent to the time specified therein or, if the
time when it shall become effective is not specified therein, immediately
upon its receipt. The acceptance of a resignation shall not be necessary to
make such resignation effective unless otherwise stated in the resignation.
Section 5.3. VACANCIES. A vacancy in any office may be filled by the
Trustees for the balance of the term.
Section 5.4. CHAIRMAN OF THE BOARD. The chairman of the board shall
supervise and direct the chief executive officer and the president, subject
to the control of the board of trustees. The chairman of the board shall
preside over the meetings of the Trustees and of the shareholders at which he
or she shall be present and shall in general oversee all of the business and
affairs of the Trust. The chairman shall perform such other duties as may be
assigned to him or her by the Trustees. The chairman of the board may
execute any deed, mortgage, bond, contract or other instrument, except in
cases where the execution thereof shall be expressly delegated by the
Trustees or by these Bylaws to some other officer or agent of the Trust or
shall be required by law to be otherwise executed.
Section 5.5. CHIEF EXECUTIVE OFFICER. The Trustees may designate a
chief executive officer from among the elected officers. The chief executive
officer shall have general responsibility for implementation of the policies
of the Trust, as determined by the Trustees, and for the management of the
business affairs of the Trust. The chief executive officer shall report
directly to the chairman of the board. In the absence of the chairman of the
board, the chief executive officer shall preside over the meetings of the
Trustees and of the shareholders at which he or she shall be present.
Section 5.6. CHIEF OPERATING OFFICER. The Trustees may designate one
or more chief operating officers from among the elected officers. Said
officer will have the responsibilities and duties as set forth by the
Trustees.
Section 5.7. CHIEF FINANCIAL OFFICER. The Trustees may designate a
chief financial officer from among the elected
-15-
<PAGE>
officers. Said officer will have such responsibilities and duties as set
forth by the Trustees or the chief executive officer.
Section 5.8. PRESIDENT. In the absence of the chairman of the board
and the chief executive officer, the president shall preside over the
meetings of the Trustees and of the shareholders at which he or she shall be
present. The president shall report directly to the chairman of the board
or, if so directed by the Trustees or the chairman of the board, the chief
executive officer. In the absence of a designation of a chief executive
officer by the Trustees, the president shall be the chief executive officer
and shall be ex officio a member of all committees that may, from time to
time, be constituted by the Trustees. The president may execute any deed,
mortgage, bond, contract or other instrument, except in cases where the
execution thereof shall be expressly delegated by the Trustees or by these
Bylaws to some other officer or agent of the Trust or shall be required by
law to be otherwise executed; and in general shall perform all duties
incident to the office of president and such other duties as may be
prescribed by the Trustees from time to time.
Section 5.9. VICE PRESIDENTS. In the absence of the president or in
the event of a vacancy in such office, the vice president (or in the event
there by more than one vice president, the vice presidents in the order
designated at the time of their election or, in the absence of any
designation, then in the order of their election) shall perform the duties of
the president and when so acting shall have all the powers of and be subject
to all the restrictions upon the president. Such vice president also shall
perform such other duties as from time to time may be assigned to him or her
by the president or by the Trustees. The Trustees may designate one or more
vice presidents as executive vice president or as vice president for
particular areas of responsibility.
Section 5.10. CONTROLLER. The controller shall have the custody of
the funds and securities of the Trust and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Trust and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Trust in such depositories as may be designated by the
Trustees. The controller shall disburse the funds of the Trust as may be
ordered by the Trustees, taking proper vouchers for such disbursements, and
shall render to the chief executive officer and Trustees, at the regular
meetings of the Trustees or whenever they may require it, an account of all
his or her transactions as controller and of the financial condition of the
Trust. If required by the Trustees, he or she shall give the Trust a bond in
such sum and with such surety or sureties as shall be satisfactory to the
Trustees for the
-16-
<PAGE>
faithful performance of the duties of his or her office and for the
restoration of the Trust, in case of his or her death, resignation,
retirement or removal from office, all books, papers, vouchers, moneys and
other property of whatever kind in his or her possession or under his or her
control belonging to the Trust. Such controller also shall perform such
other duties as from time to time may be assigned to him or her by the
president, the chief financial officer or the Trustees.
Section 5.11. SECRETARY. The secretary shall (a) keep the minutes of
the proceedings of the shareholders, the Trustees and committees of the
Trustees in one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these Bylaws or
as required by law; (c) be custodian of the trust records and of the seal of
the Trust; (d) keep a register of the post office address of each shareholder
which shall be furnished to the Secretary by such shareholder; (e) have
general charge of the share transfer books of the Trust; and (f) in general
perform such other duties as from time to time may be assigned to him or her
by the chief executive officer, the president or by the Trustees.
Section 5.12. ASSISTANT SECRETARIES AND ASSISTANT CONTROLLERS. The
assistant secretaries, in general, shall perform such duties as shall be
assigned to them by the secretary or by the controller, respectively, or by
the president and assistant controllers or the Trustees. The assistant
controllers shall, if required by the Trustees, give bonds for the faithful
performance of their duties in such sums and with such surety or sureties as
shall be satisfactory to the Trustees.
Section 5.13. COMPENSATION. The salaries of the officers shall be
fixed from time to time by the Trustees and no officer shall be prevented
from receiving such salary by reason of the fact that he or she is also a
Trustee.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 6.1. CONTRACTS. The Trustees may authorize any officer or
agent to enter into any contract or to execute and deliver any instrument in
the name of and on behalf of the Trust and such authority may be general or
confined to specific instances. Any agreement, deed, mortgage, lease or
other document executed by one or more of the Trustees or by an authorized
person shall be deemed valid and binding upon the Trustees and upon the Trust
when so authorized or ratified by action of the Trustees.
-17-
<PAGE>
Section 6.2. CHECKS AND DRAFTS. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in
the name of the Trust shall be signed by such officer or officers, agent or
agents of the Trust and in such manner as shall from time to time be
determined by the Trustees.
Section 6.3. DEPOSITS. All funds of the Trust not otherwise employed
shall be deposited from time to time to the credit of the Trust in such
banks, trust companies or other depositories as the Trustees may designate.
ARTICLE VII
SHARES OF BENEFICIAL INTEREST
Section 7.1. CERTIFICATES. Every shareholder shall be entitled to a
certificate or certificates which shall represent and certify the number of
shares of each class of beneficial interest held by such shareholder in the
Trust. Each certificate shall be signed by or in the name of the Trust by
the chairman and the president or a vice president and countersigned by the
secretary or an assistant secretary or the treasurer or an assistant
treasurer and may be sealed with the seal, if any, of the Trust. The
signatures may be either manual or facsimile. Certificates shall be
consecutively numbered; and if the Trust shall, from time to time, issue
several classes of shares, each class may have its own number series. A
certificate is valid and may be issued whether or not an officer who signed
it is still an officer when it is issued. Each certificate representing
shares which are restricted as to their transferability or voting powers,
which are preferred or limited as to their dividends or as to their allocable
portion of the assets upon liquidation or which are redeemable at the option
of the Trust, shall have a statement of such restriction, limitation,
preference or redemption provision, or a summary thereof, plainly stated on
the certificate. In lieu of such statement or summary, the Trust may set
forth upon the face or back of the certificate a statement that the Trust
will furnish to any shareholder, upon request and without charge, a full
statement of such information.
Section 7.2. TRANSFERS. Certificates shall be treated as negotiable,
and title thereto and to the shares they represent shall be transferred by
delivery thereof to the same extent as those of a Maryland stock corporation.
No transfers of shares of the Trust shall be made if (i) void AB INITIO
pursuant to any provision of the Declaration of Trust or (ii) the Board of
Trustees, pursuant to any provision of the Declaration of Trust,
-18-
<PAGE>
shall have refused to permit the transfer of such shares. Permitted
transfers of shares of the Trust shall be made on the share records of the
Trust only upon the instruction of the registered holder thereof, or by its
attorney thereunto authorized by power of attorney duly executed and filed
with the Secretary or with a transfer agent or transfer clerk, and upon
surrender of the certificate or certificates, if issued, for such shares
properly endorsed or accompanied by a duly executed share transfer power and
the payment of all taxes thereon. Upon surrender to the Trust or the
transfer agent of the Trust of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, as to any transfers not prohibited by any provision of the
Declaration of Trust or by action of the Board of Trustees thereunder, it
shall be the duty of the Trust to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon
its books.
Section 7.3. REPLACEMENT CERTIFICATE. Any officer designated by the
Trustees may direct a new certificate to be issued in place of any
certificate previously issued by the Trust alleged to have been lost, stolen
or destroyed upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, stolen or destroyed. When authorizing
the issuance of a new certificate, the officer designated by the Trustees
may, in his or her own discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or the owner's legal representative to advertise the same in such
manner as he or she shall require and/or to give bond, with sufficient
surety, to the Trust to indemnify it against any loss or claim which may
arise as a result of the issuance of a new certificate.
Section 7.4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The
Trustees may set, in advance, a record date for the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders
or determining shareholders entitled to receive payment of any dividend or
the allotment of any other rights, or in order to made a determination of
shareholders for any other purpose. Such date, in any case, shall not be
prior to the close of business on the day the record date is fixed and shall
be not more than ninety (90) days and, in the case of a meeting of
shareholders not less than ten (10) days, before the date on which the
meeting or particular action requiring such determination of shareholders of
record is to be held or taken.
In lieu of fixing a record date, the Trustees may provide that the share
transfer books shall be closed for a stated period but not longer than twenty
(20) days. If the share transfer books are
-19-
<PAGE>
closed for the purpose of determining shareholders entitled to notice of or
to vote at a meeting of shareholders, such books shall be closed for at least
ten (10) days before the date of such meeting.
If no record date is fixed and the share transfer books are not closed
for the determination of shareholders, (a) the record date for the
determination of shareholders entitled to notice of or to vote at a meeting
of shareholders shall be at the close of business on the day on which the
notice of meeting is mailed or the 30th day before the meeting, whichever is
the closer date to the meeting; and (b) the record date for the determination
of shareholders entitled to receive payment of a dividend or an allotment of
any other rights shall be the close of business on the day on which the
resolution of the Trustees, declaring the dividend or allotment of rights is
adopted.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this Section 7.4, such
determination shall apply to any adjournment thereof, except when (i) the
determination has been made through the closing of the transfer books and the
stated period of closing has expired or (ii) the meeting is adjourned to a
date more than one hundred and twenty (120) days after the record date fixed
for the original meeting, in either of which case a new record shall be
determined as set forth herein.
Section 7.5. SHARE LEDGER. The Trust shall maintain at its principal
office or at the office of its counsel, accountants or transfer agent, an
original or duplicate share ledger containing the name and address of each
shareholder and the number of shareholders of each class held by such
shareholder.
Section 7.6. FRACTIONAL SHARES; ISSUANCE OF UNITS. Trustees may issue
fractional shares or provide for the issuance of scrip, all on such terms and
under such conditions as they may determine. Notwithstanding any other
provision of the Declaration of Trust or these Bylaws, the Trustees may issue
units consisting of different securities of the Trust. Any security issued
in a unit shall have the same characteristics as any identical securities
issued by the Trust, except that the Trustees may provide that for a
specified period securities of the Trust issued in such unit may be
transferred on the books of the Trust only in such unit.
-20-
<PAGE>
ARTICLE VIII
DIVIDENDS
Section 8.1. AUTHORIZATION AND DECLARATION. Dividends upon the shares
of the Trust may be declared by the Trustees, subject to the provisions of
law and the Declaration of Trust. Dividends may be paid in cash, property or
shares of the Trust, subject to the provisions of law and the Declaration of
Trust.
Section 8.2. CONTINGENCIES. Before payment of any dividends, there
may be set aside out of any funds of the Trust available for dividends such
sum or sums as the Trustees may from time to time, in their absolute
discretion, think proper as the reserve fund for contingencies, for
equalizing dividends, for repairing or maintaining any property of the Trust
or for such other purpose as the Trustees shall determine to be in the best
interest of the Trust, and the Trustees may modify or abolish any such
reserve in the manner in which it was created.
ARTICLE IX
MISCELLANEOUS
Section 9.1. RIGHT TO INDEMNIFICATION. The Trust shall indemnify, to
the fullest extent permitted by Maryland law, as applicable from time to
time, all persons who at any time were or are trustees or officers of the
Trust for any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) relating to any
action alleged to have been taken or omitted in such capacity as a trustee or
an officer. The Trust shall pay or reimburse all reasonable expenses
incurred by a present or former trustee or officer of the Trust in connection
with any threatened, pending or completed action, suit or proceeding (whether
civil, criminal, administrative or investigative) in which the present or
former trustee or officer is a party, in advance of the final disposition of
the proceeding, to the fullest extent permitted by, and in accordance with
the applicable requirements of, Maryland law, as applicable from time to
time. The Trust may indemnify any other persons permitted but not required
to be indemnified by Maryland law, as applicable from time to time, if and to
the extent indemnification is authorized and determined to be appropriate, in
each case in accordance with applicable law, by the Board of Trustees, the
majority of the shareholders of the Trust entitled to vote thereon or special
legal counsel appointed by the Board of Trustees. No amendment of this
amendment and restatement or repeal of any of its provisions shall
-21-
<PAGE>
limit or eliminate any of the benefits provided to trustees and officers
under this Section 9.1 in respect of any act or omission that occurred prior
to such amendment or repeal.
Section 9.2. NON-EXCLUSIVITY OF RIGHTS UNDER THIS ARTICLE. The rights
to indemnification and to the advancement of expenses conferred in this
Article shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the Declaration of
Trust, Bylaw, agreement, vote of shareholders or disinterested Trustees or
otherwise.
Section 9.3. INSURANCE. The Trust may, but shall not be required to,
purchase and maintain insurance on its own behalf or on behalf of any person
who is or was a Trustee, officer, employee or agent of the Trust, or is or
was serving at the request of the Trust as a Trustee, director, officer,
employee or agent of another Trust, partnership, joint venture, trust or
other enterprise against any expense, liability or loss asserted against him
or her in any such capacity, or arising out of his or her status as such,
whether or not the Trust would have the power to indemnify such person
against such expense, liability or loss under Maryland law.
Section 9.4. SEAL.
(a) The Trust may have a seal which shall have the name of the
Trust inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Trustees. The Trustees may authorize one or
more duplicate seals and provide for the custody thereof.
(b) Whenever the Trust is required to place its seal to a
document, it shall be sufficient to meet the requirements of any law, rule or
regulation relating to a seal to place the word "(SEAL)" adjacent to the
signature of the person authorized to execute the document on behalf of the
Trust.
Section 9.5. WAIVER OF NOTICE. Whenever notice is required to be
given by law, the Declaration of Trust or these Bylaws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Unless
otherwise provided by the Declaration of Trust, neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
shareholders, Trustees or members of a
-22-
<PAGE>
committee of Trustees need be specified in any written waiver of notice.
Section 9.6. BOOKS AND RECORDS. The books and records of the Trust
may be kept within or without the State of Maryland at such place or places
as may be designated from time to time by the Board of Trustees. Any records
maintained by the Trust in the regular course of its business, including its
share ledger, books of account and minute books, may be kept on, or be in the
form of, punch cards, magnetic tape, photographs, microphotographs or any
other information storage device provided that the records so kept can be
converted into clearly legible form within a reasonable time. The Trust
shall so convert any records so kept upon the request of any person entitled
to inspect the same.
Section 9.7. AMENDMENT OF BYLAWS. The Board of Trustees shall have
the exclusive power to amend or repeal any provision of these Bylaws and to
adopt new Bylaws; PROVIDED, HOWEVER, that any amendment or repeal of this
Section 9.7, Section 3.11 hereof or Section 3.15 hereof shall require the
affirmative vote of at least two-thirds of the shareholders entitled to vote
thereon. All references to the Declaration of Trust shall include any
amendments thereto.
-23-
<PAGE>
Exhibit 3.3
EXECUTION COPY
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
PRIME GROUP REALTY, L.P.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE 1
DEFINED TERMS
<S> <C> <C>
Section 1.1 Definitions.................................................................................... 1
ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1 Organization...................................................................................16
Section 2.2 Name...........................................................................................16
Section 2.3 Resident Agent; Principal Office...............................................................17
Section 2.4 Power of Attorney..............................................................................17
Section 2.5 Term. ........................................................................................18
Section 2.6 Filings........................................................................................18
ARTICLE 3
PURPOSE
Section 3.1 Purpose and Business...........................................................................19
Section 3.2 Powers.........................................................................................19
Section 3.3 Representations and Warranties by the Parties..................................................20
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contributions of the Partners..........................................................21
Section 4.2 Loans by Third Parties.........................................................................22
Section 4.3 Additional Funding and Capital Contributions...................................................22
Section 4.4 Share Incentive Plan...........................................................................23
Section 4.5 Other Contribution Provisions..................................................................24
Section 4.6 Purchase of Shares by the Managing General Partner.............................................24
Section 4.7 No Interest on Capital Contributions...........................................................24
ARTICLE 5
DISTRIBUTIONS
Section 5.1 Requirement and Characterization of Distributions..............................................25
Section 5.2 Distributions in Kind..........................................................................26
Section 5.3 Distributions Upon Liquidation.................................................................26
Section 5.4 Distributions to Reflect Issuance of Additional Partnership Interests..........................26
Section 5.5 Distributions to Limited Partners Exercising Exchange Rights...................................26
<PAGE>
ARTICLE 6
ALLOCATIONS
Section 6.1 Timing and Amount of Allocations of Net Income and Net Loss....................................27
Section 6.2 General Allocations............................................................................27
Section 6.3 Allocations to Reflect Issuance of Additional Partnership Interests............................28
Section 6.4 Guaranteed Payments............................................................................29
Section 6.5 Allocations with Respect to Transferred Interests..............................................29
Section 6.6 Additional Allocation Provisions...............................................................29
Section 6.7 Tax Allocations................................................................................31
ARTICLE 7
MANAGEMENT AND OPERATION OF BUSINESS
Section 7.1 Management.....................................................................................33
Section 7.2 Certificate of Limited Partnership.............................................................37
Section 7.3 Restrictions on Managing General Partner's Authority...........................................37
Section 7.4 Reimbursement of the Managing General Partner..................................................40
Section 7.5 Contracts with Affiliates......................................................................41
Section 7.6 Indemnification................................................................................41
Section 7.7 Liability of the General Partners..............................................................44
Section 7.8 Other Matters Concerning the Managing General Partner..........................................45
Section 7.9 Title to Partnership Assets....................................................................45
Section 7.10 Reliance by Third Parties......................................................................46
ARTICLE 8
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS AND GENERAL PARTNERS
Section 8.1 Limitation of Liability........................................................................46
Section 8.2 No Participation in Management of Business.....................................................46
Section 8.3 Outside Activities of Partners.................................................................47
Section 8.4 Return of Capital..............................................................................47
Section 8.5 Rights of Partners Relating to the Partnership.................................................47
Section 8.6 Grant of Rights................................................................................48
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting.........................................................................48
Section 9.2 Fiscal Year....................................................................................49
Section 9.3 Reports........................................................................................49
ii
<PAGE>
ARTICLE 10
TAX MATTERS
Section 10.1 Preparation of Tax Returns.....................................................................49
Section 10.2 Tax Elections..................................................................................49
Section 10.3 Tax Matters Partner............................................................................50
Section 10.4 Organizational and Start-Up Expenses...........................................................51
Section 10.5 Withholding....................................................................................51
Section 10.6 Limitation to Preserve REIT Status.............................................................52
ARTICLE 11
TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer.......................................................................................53
Section 11.2 Transfer of General Partner's Partnership Interest.............................................53
Section 11.3 Limited Partners' Rights to Transfer...........................................................55
Section 11.4 Substituted Limited Partners...................................................................56
Section 11.5 Assignees......................................................................................57
Section 11.6 General Provisions.............................................................................57
ARTICLE 12
ADMISSION OF PARTNERS
Section 12.1 Admission of Successor Managing General Partner................................................59
Section 12.2 Admission of Additional Limited Partners.......................................................59
Section 12.3 Amendment of Agreement and Certificate of Limited Partnership..................................60
ARTICLE 13
DISSOLUTION AND LIQUIDATION
Section 13.1 Dissolution....................................................................................60
Section 13.2 Winding Up.....................................................................................61
Section 13.3 Compliance with Timing Requirements of Regulations; Deficit
Capital Account................................................................................62
Section 13.4 Deemed Contribution and Interest Distribution..................................................63
Section 13.5 Rights of Partners.............................................................................63
Section 13.6 Notice of Dissolution..........................................................................63
Section 13.7 Cancellation of Certificate of Limited Partnership.............................................63
Section 13.8 Reasonable Time for Winding-Up.................................................................63
Section 13.9 Waiver of Partition............................................................................64
iii
<PAGE>
ARTICLE 14
AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS
Section 14.1 Amendments. ...................................................................................64
Section 14.2 Action by the Partners.........................................................................64
ARTICLE 15
REPRESENTATIONS AND WARRANTIES
Section 15.1 Representations and Warranties of Prime........................................................65
Section 15.2 Survival of Representations and Warranties.....................................................65
Section 15.3 Indemnification................................................................................65
Section 15.4 Limitations on Indemnification Obligations.....................................................66
Section 15.5 Remedies.......................................................................................66
Section 15.6 Limitation of Liability........................................................................67
Section 15.7 Subrogation....................................................................................67
ARTICLE 16
GENERAL PROVISIONS
Section 16.1 Addresses and Notice...........................................................................67
Section 16.2 Titles and Captions............................................................................67
Section 16.3 Pronouns and Plurals...........................................................................67
Section 16.4 Further Action.................................................................................67
Section 16.5 Binding Effect.................................................................................68
Section 16.6 Creditors......................................................................................68
Section 16.7 Waiver.........................................................................................68
Section 16.8 Counterparts. ................................................................................68
Section 16.9 Applicable Law.................................................................................68
Section 16.10 Invalidity of Provisions.......................................................................68
Section 16.11 Entire Agreement...............................................................................68
Section 16.12 No Rights as Shareholders......................................................................68
</TABLE>
Exhibits
<TABLE>
<CAPTION>
<S> <C>
Exhibit A Schedule of Partners, Number of Units, Capital Contributions and Capital Accounts (Section 1.1)
Exhibit B Schedule for Contributed Assets and Assumed Contracts and Liabilities (Section 1.1)
Exhibit C Rights Terms (Section 8.6)
Exhibit D [Reserved]
Exhibit E Form of Common Unit Certificate (Section 1.1)
Exhibit F Limited Partner Ownership of Interests in Tenants (Section 3.3.C(1))
Exhibit G Limited Partner Ownership of Interests in General Partner (Section 3.3.C(2))
iv
<PAGE>
Exhibit H Representations and Warranties of the General Partner (Section 15.1)
Exhibit I Schedule of Contributors (Section 1.1)
Exhibit J Schedule of Property Partnerships (Section 1.1)
</TABLE>
v
<PAGE>
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF PRIME
GROUP REALTY, L.P. (the "Partnership"), dated as of November 17, 1997, is
entered into by and among Prime Group Realty Trust, a Maryland real estate
investment trust (the "Company"), and The Nardi Group, L.L.C., a Delaware
limited liability company, as the General Partners and the Persons whose names
are set forth on Exhibit A hereof, as the Limited Partners, together with any
other Persons who become Partners in the Partnership as provided herein.
WHEREAS, the limited partnership was formed on March 19, 1997 and an
original agreement of limited partnership was entered into with the Company as
general partner;
WHEREAS, the Company proposes to effect a public offering of its common
shares of beneficial interest, to acquire and cause the Partnership to acquire
direct and indirect interests in certain office and industrial properties and
other assets, to cause the Partnership to enter into certain financing
transactions, and to contribute the remaining net proceeds from the public
offering to the Partnership;
WHEREAS, the Partnership will issue Partnership Interests to the
Company, the other General Partner, the Limited Partners and other persons in
accordance with the foregoing transactions;
WHEREAS, upon the completion of the foregoing transactions, the
Partnership shall return the original capital contributions made by the Company
and any ongoing interest in the Partnership of the Company shall be based on its
contributions as contemplated below; and
WHEREAS, by virtue of its execution of this Agreement, the Company
hereby consents to the amendment and restatement of the original agreement of
limited partnership;
NOW, THEREFORE, BE IT RESOLVED, that for good and adequate
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
DEFINED TERMS
Section 1.1 Definitions.
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
"Act" means the Delaware Revised Uniform Limited Partnership Act, as it
may be amended from time to time, and any successor to such statute.
"Additional Funds" shall have the meaning set forth in Section 4.3.A
hereof.
<PAGE>
"Additional Limited Partner" means a Person admitted to the Partnership
as a Limited Partner pursuant to Section 12.2 hereof and who is shown as such on
the books and records of the Partnership.
"Adjusted Capital Account Deficit" means, with respect to any Partner,
the deficit balance, if any, in such Partner's Capital Account as of the end of
the relevant Partnership taxable year, after giving effect to the following
adjustments:
(a) decrease such deficit by any amounts which such Partner is
obligated to restore pursuant to this Agreement or is deemed to be obligated to
restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate
sentence of each of Regulations Sections 1.704-2(i)(5) and 1.704-2(g); and
(b) increase such deficit by the items described in Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall
be interpreted consistently therewith.
"Adjustment Date" means, with respect to any Capital Contribution, the
close of business on the Business Day last preceding the date of the Capital
Contribution; provided, that if such Capital Contribution is being made by the
Managing General Partner in respect of the proceeds from the issuance of Shares
(or the issuance of the Managing General Partner's securities exercisable for,
convertible into or exchangeable for Shares), then the Adjustment Date shall be
as of the close of business on the day of the issuance of such securities.
"Administrative Expenses" shall mean (i) all administrative and
operating costs and expenses incurred by the Partnership, (ii) all
administrative, operating and other costs and expenses incurred by the Property
Partnerships, which expenses are being assumed by the Partnership pursuant to
Section 7.4.B hereof, (iii) those administrative costs and expenses of the
Managing General Partner, including salaries paid to officers of the Managing
General Partner, and accounting and legal expenses undertaken by the Managing
General Partner on behalf or for the benefit of the Partnership, and (iv) to the
extent not included in clause (iii) above, REIT Expenses.
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by or under common control with such Person.
"Agreement" means this Amended and Restated Agreement of Limited
Partnership, as it may be amended, modified, supplemented or restated from time
to time.
"Appraisal" means with respect to any assets, the opinion of an
independent third party experienced in the valuation of similar assets, selected
by the Managing General Partner in good faith; such opinion may be in the form
of an opinion by such independent third party that the
2
<PAGE>
value for such asset as set by the Managing General Partner is fair, from a
financial point of view, to the Partnership.
"Assignee" means a Person to whom one or more Units have been
transferred in a manner permitted under this Agreement, but who has not become a
Substituted Limited Partner, and who has the rights set forth in Section 11.5
hereof.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in Chicago, Illinois and New York, New York are
authorized or required by law to be closed.
"Capital Account" means, with respect to any Partner, the Capital
Account maintained for such Partner in accordance with the following provisions:
(a) To each Partner's Capital Account there shall be added such
Partner's Capital Contributions, such Partner's share of Net Income and any
items in the nature of income or gain which are specially allocated to such
Partner pursuant to Section 6.6 hereof, and the amount of any Partnership
liabilities assumed by such Partner or which are secured by any property
distributed to such Partner.
(b) From each Partner's Capital Account there shall be subtracted the
amount of cash and the Gross Asset Value of any property distributed to such
Partner pursuant to any provision of this Agreement, such Partner's distributive
share of Net Losses and any items in the nature of expenses or losses which are
specially allocated to such Partner pursuant to Section 6.6 hereof, and the
amount of any liabilities of such Partner assumed by the Partnership or which
are secured by any property contributed by such Partner to the Partnership.
(c) In the event any interest in the Partnership is transferred in
accordance with the terms of this Agreement (which does not result in a
termination of the Partnership for federal income tax purposes), the transferee
shall succeed to the Capital Account of the transferor to the extent it relates
to the transferred interest.
(d) In determining the amount of any liability for purposes of
subsections (a) and (b) hereof, there shall be taken into account Code section
752(c) and any other applicable provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement relating to
the maintenance of Capital Accounts are intended to comply with Regulations
Sections 1.704-1(b) and 1.704-2, and shall be interpreted and applied in a
manner consistent with such Regulations. In the event the Managing General
Partner shall determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities which are secured by
contributed or distributed property or which are assumed by the Partnership, the
General Partners, or the Limited Partners) are computed in order to comply with
such Regulations, the Managing General Partner may make such modification. The
Managing General Partner also shall (i) make any adjustments that are necessary
or appropriate to comply with Regulations Section 1.704-1(b)(2)(iv)(q) and (ii)
make any appropriate modifications in the event
3
<PAGE>
unanticipated events might otherwise cause this Agreement not to comply with
Regulations Sections 1.704-1(b) or 1.704-2 or Section 514(c)(9).
"Capital Contribution" means, with respect to any Partner, the amount
of money and the initial Gross Asset Value of any property (other than money),
net of any liability to which such property is subject or which is secured by
such property, contributed to the Partnership by such Partner.
"Cash Purchase Price" shall have the meaning set forth in Paragraph 4
of Exhibit C attached hereto.
"Certificate" means the Certificate of Limited Partnership relating to
the Partnership filed in the office of the Secretary of State of Delaware on
March 19, 1997, as amended or restated from time to time in accordance with the
terms hereof and the Act.
"Charter" means the Declaration of Trust of the Managing General
Partner filed with the Maryland State Department of Assessments and Taxation on
July 21, 1997, as amended or restated from time to time.
"Claim" shall have the meaning set forth in Section 15.4(b) herein.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time or any successor statute thereto, as interpreted by the applicable
regulations thereunder. Any reference herein to a specific section or sections
of the Code shall be deemed to include a reference to any corresponding
provision of future law.
"Common Shares" means the common shares of beneficial interest, par
value $.01 per share, of the Managing General Partner.
"Common Unit" means, with respect to any class of Partnership Interest,
a fractional, undivided share of such class of Partnership Interest issued
pursuant to Sections 4.1 and 4.3 hereof. The ownership of Common Units may be
evidenced by a certificate for units substantially in the form of Exhibit E
hereof (including the restricted legends thereon) or as the Managing General
Partner may determine with respect to any class of Common Units issued from time
to time under Sections 4.1 and 4.3 hereof.
"Consent" means the consent to, approval of, or vote on a proposed
action by a Partner given in accordance with Article 14 hereof.
"Consent of the Limited Partners" means the Consent of a Majority in
Interest of the Limited Partners, which Consent shall be obtained prior to the
taking of any action for which it is required by this Agreement and may be given
or withheld by a Majority in Interest of the Limited Partners, unless otherwise
expressly provided herein, in their sole and absolute discretion.
4
<PAGE>
"Consent of the Partners" means the Consent of Partners holding Units
that in the aggregate are equal to or greater than 50% of the aggregate Units of
all Partners, which Consent shall be obtained prior to the taking of any action
for which it is required by this Agreement and may be given or withheld by such
Partners, in their sole and absolute discretion.
"Constructively Own" means ownership under the constructive ownership
rules described in Exhibit C hereof.
"Contributed Property" means (i) with respect to Prime or the
Contributors, each property or other asset as set forth on Exhibit B hereof, and
(ii) with respect to any other Partners, each property or other asset as set
forth in such Partner's respective contribution agreement.
"Contributors" shall mean the parties identified as such on Exhibit I
attached hereto.
"Convertible Preferred Distribution" means an amount equal to the
quarterly dividend payable in respect of the Series A Cumulative Convertible
Preferred Shares of the Managing General Partner pursuant to Section 3.3.1 of
the Managing General Partner's Declaration of Trust.
"Convertible Preferred Distribution Shortfall" shall have the meaning
set forth in Section 5.1(i).
"Convertible Preferred Shares" means the Series A Cumulative
Convertible Preferred Shares of beneficial interest, par value $.01 per share,
of the Managing General Partner.
"Convertible Preferred Unit Redemption Amount" means, with respect to
any Convertible Preferred Unit, the amount payable by the Managing General
Partner on account of the redemption of one Convertible Preferred Share pursuant
to Section 3.3.3 of the Managing General Partner's Declaration of Trust, using
the amount, if any, of Convertible Preferred Distribution Shortfall as the
amount of accrued and unpaid dividends thereon.
"Convertible Preferred Units" shall mean the Units designated as Series
A Cumulative Convertible Preferred Units under this Agreement, received by the
Managing General Partner in exchange for a portion of its capital contribution,
having the rights described in this Agreement. The initial number of Convertible
Preferred Units outstanding is as set forth on Exhibit A.
"Debt" means, as to any Person, as of any date of determination, (a)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services; (b) all amounts owed by such Person to banks or
other Persons in respect of reimbursement obligations under letters of credit,
surety bonds and other similar instruments guaranteeing payment or other
performance of obligations by such Person; (c) all indebtedness for borrowed
money or for the deferred purchase price of property or services secured by any
lien on any property owned by such Person, to the extent attributable to such
Person's interest in such property, even though such Person has not assumed or
become liable for the payment thereof; and (d) lease obligations of such Person
which, in accordance with generally accepted accounting principles, should be
capitalized.
5
<PAGE>
"Depreciation" means, for each Partnership taxable year or other
period, an amount equal to the depreciation, amortization or other cost recovery
deduction allowable with respect to an asset for such year or other period,
except that if the Gross Asset Value of an asset differs from its adjusted basis
for federal income tax purposes at the beginning of such year or other period,
Depreciation shall be an amount which bears the same ratio to such beginning
Gross Asset Value as the federal income tax depreciation, amortization or other
cost recovery deduction for such year or other period bears to such beginning
adjusted tax basis; provided, however, that if the federal income tax
depreciation, amortization or other cost recovery deduction for such year is
zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the Managing General
Partner.
"Effective Date" means the date of closing of the initial public
offering of Common Shares upon which date contributions set forth on Exhibit A
hereof shall become effective.
"Exchange Exercise Notice" shall have the meaning set forth in
Paragraph 2 of Exhibit C attached hereto.
"Fair Market Value" means, with respect to any share of beneficial
interest of the Managing General Partner, the average of the daily market price
for the ten (10) consecutive trading days immediately preceding the date with
respect to which "Fair Market Value" must be determined hereunder or, if such
date is not a Business Day, the immediately preceding Business Day. The market
price for each such trading day shall be: (a) if such shares are listed or
admitted to trading on any securities exchange or the NASDAQ National Market,
the closing price, regular way, on such day, or if no such sale takes place on
such day, the average of the closing bid and asked prices on such day, (b) if
such shares are not listed or admitted to trading on any securities exchange or
the NASDAQ National Market, the last reported sale price on such day or, if no
sale takes place on such day, the average of the closing bid and asked prices on
such day, as reported by a reliable quotation source designated by the Managing
General Partner or (c) if such shares are not listed or admitted to trading on
any securities exchange or the NASDAQ National Market and no such last reported
sale price or closing bid and asked prices are available, the average of the
reported high bid and low asked prices on such day, as reported by a reliable
quotation source designated by the Managing General Partner, or if there shall
be no bid and asked prices on such day, the average of the high bid and low
asked prices, as so reported, on the most recent day (not more than 10 days
prior to the date in question) for which prices have been so reported; provided,
that if there are no bid and asked prices reported during the 10 days prior to
the date in question, the Fair Market Value of such shares shall be determined
by the Managing General Partner acting in good faith on the basis of such
quotations furnished by a professional market maker making a market in such
shares and other information as it considers, in its reasonable judgment,
appropriate. In the event such shares include rights that a holder of such
shares would be entitled to receive, then the Fair Market Value of such rights
shall be determined by the Managing General Partner acting in good faith on the
basis of such quotations and other information as it considers, in its
reasonable judgment, appropriate; and provided further, that in connection with
determining the deemed value of the Partnership Interests for purposes of
determining the number of additional Units issuable upon a Capital Contribution
funded by an underwritten public offering of shares of beneficial interest of
the Managing General Partner (including upon exercise of any over-allotment
option granted to the Underwriters in
6
<PAGE>
connection with such public offering), the Fair Market Value of such shares
shall be the public offering price per share of such class of beneficial
interest sold.
"Funding Debt" means the incurrence of any Debt by or on behalf of the
Managing General Partner for the purpose of providing funds to the Partnership.
"General Partner Interest" means a Partnership Interest held by the
Managing General Partner or any other General Partner. A General Partner
Interest shall be expressed as a number of Units.
"General Partners" shall mean collectively, Prime Group Realty Trust, a
Maryland real estate investment trust, and The Nardi Group, L.L.C., a Delaware
limited liability company, and their successors or assigns, if any.
"Gross Asset Value" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a Partner
to the Partnership shall be the gross fair market value of such asset, as
determined by the contributing Partner and the Managing General Partner (as set
forth on Exhibit A hereof, as such Exhibit may be amended from time to time);
provided, that if the contributing Partner is the Managing General Partner then,
except with respect to the Managing General Partner's initial Capital
Contribution which shall be determined as set forth on Exhibit A hereof, or
capital contributions of cash, Shares or other shares of beneficial interest of
the Managing General Partner, the determination of the fair market value of the
contributed asset shall be determined by (i) the price paid by the Managing
General Partner if the asset is acquired by the Managing General Partner
contemporaneously with its contribution to the Partnership or (ii) by Appraisal
if otherwise acquired by the Managing General Partner.
(b) As of the times listed below, the Gross Asset Values of all
Partnership assets shall be adjusted to equal their respective gross fair market
values, as determined by the Managing General Partner using such reasonable
method of valuation as it may adopt; provided, however, that for such purpose,
the net value of all of the Partnership assets, in the aggregate, shall be equal
to the fair market value of all classes of Partnership Interests then
outstanding, regardless of the method of valuation adopted by the Managing
General Partner:
(i) the acquisition of an additional interest in the
Partnership by a new or existing Partner in exchange for more than a de minimis
Capital Contribution, if the Managing General Partner reasonably determines that
such adjustment is necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership;
(ii) the distribution by the Partnership to a Partner of more
than a de minimis amount of Partnership property as consideration for an
interest in the Partnership if the Managing General Partner reasonably
determines that such adjustment is necessary or appropriate to reflect the
relative economic interests of the Partners in the Partnership;
7
<PAGE>
(iii) the liquidation of the Partnership within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g); and
(iv) at such other times as the Managing General Partner shall
reasonably determine necessary or advisable in order to comply with Regulations
Sections 1.704-1(b) and 1.704-2.
(c) The Gross Asset Value of any Partnership asset distributed to a
Partner shall be the gross fair market value of such asset on the date of
distribution as determined by the distributee and the Managing General Partner
or, if the distributee and the Managing General Partner cannot agree on such a
determination, by Appraisal.
(d) The Gross Asset Values of Partnership assets shall be increased (or
decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that
Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to
the extent that the Managing General Partner reasonably determines that an
adjustment pursuant to subparagraph (b) is necessary or appropriate in
connection with a transaction that would otherwise result in an adjustment
pursuant to this subparagraph (d).
(e) If the Gross Asset Value of a Partnership asset has been determined
or adjusted pursuant to subparagraph (a), (b) or (d) above, such Gross Asset
Value shall thereafter be adjusted by the Depreciation taken into account with
respect to such asset for purposes of computing Net Income and Net Losses.
"Holder" means either the Partner or Assignee owning a Unit.
"Immediate Family" means with respect to any natural Person, such
natural Person's estate or heirs or current spouse or former spouse, parents,
parents-in-law, children, siblings and grandchildren and any trust or estate,
all of the beneficiaries of which consist of such Person or such Person's
spouse, former spouse, parents, parents-in-law, children, siblings or
grandchildren; provided, further that "Immediate Family", means, with respect to
a trust, the trust's beneficiary's estate or heirs or current spouse or former
spouse, parents, parents-in-law, children, siblings and grandchildren.
"Incapacity" or "Incapacitated" means, (a) as to any individual
Partner, if any, death, total physical disability or entry by a court of
competent jurisdiction adjudicating him or her incompetent to manage his or her
Person or his or her estate; (b) as to any corporation or limited liability
company, as the case may be, which is a Partner, the filing of a certificate of
dissolution, or its equivalent, for the corporation or limited liability
company, as the case may be, or the revocation of its charter unless reinstated;
(c) as to any partnership which is a Partner, the dissolution and commencement
of winding up of the partnership; (d) as to any estate which is a Partner, the
distribution by the fiduciary of the estate's entire interest in the
Partnership; (e) as to any trustee of a trust which is a Partner, the
termination of the trust (but not the substitution of a new trustee); or (f) as
to any Partner, the bankruptcy of such Partner. For purposes of this definition,
bankruptcy of a
8
<PAGE>
Partner shall be deemed to have occurred when (s) the Partner commences a
voluntary proceeding seeking liquidation, reorganization or other relief under
any bankruptcy, insolvency or other similar law now or hereafter in effect, (t)
the Partner is adjudged as bankrupt or insolvent, or a final and nonappealable
order for relief under any bankruptcy, insolvency or similar law now or
hereafter in effect has been entered against the Partner, (u) the Partner
executes and delivers a general assignment for the benefit of the Partner's
creditors, (v) the Partner files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against the
Partner in any proceeding of the nature described in clause (t) above, (w) the
Partner seeks, consents to or acquiesces in the appointment of a trustee,
receiver or liquidator for the Partner or for all or any substantial part of the
Partner's properties, (x) any proceeding seeking liquidation, reorganization or
other relief under any bankruptcy, insolvency or other similar law now or
hereafter in effect has not been dismissed within 120 days after the
commencement thereof, (y) the appointment without the Partner's consent or
acquiescence of a trustee, receiver or liquidator has not been vacated or stayed
within 90 days of such appointment, or (z) an appointment referred to in clause
(y) above is not vacated within 90 days after the expiration of any such stay.
"Indemnification Claim" shall have the meaning set forth in Section
15.5(b) hereof.
"Indemnification Date" shall have the meaning set forth in Section
15.5(c) hereof.
"Indemnification Notice" shall have the meaning set forth in Section
15.5(b) hereof.
"Indemnitee" means (a) any Person subject to a claim or demand or made
or threatened to be made a party to, or involved or threatened to be involved
in, an action, suit or proceeding by reason of his or her status as (i) a
General Partner or (ii) a director, officer, member, manager, employee or agent
of the Partnership or a General Partner, and (b) such other Persons (including
Affiliates of a General Partner or the Partnership) as the Managing General
Partner may designate from time to time, in its sole and absolute discretion.
"IRS" means the Internal Revenue Service, which administers the
internal revenue laws of the United States, and any successor agency of the
United States federal government.
"Limited Partner" means any Person named as a Limited Partner in
Exhibit A hereof, as such Exhibit may be amended from time to time, or any
Substituted Limited Partner or Additional Limited Partner, in such Person's
capacity as a Limited Partner in the Partnership.
"Limited Partner Interest" means a Partnership Interest of a Limited
Partner representing part of the Partnership Interests of all Limited Partners
and includes any and all benefits to which the holder of such a Partnership
Interest may be entitled as provided in this Agreement, together with all
obligations of such Person to comply with the terms and provisions of this
Agreement. A Limited Partner Interest shall be expressed as a number of Units.
"Liquidating Events" shall have the meaning set forth in Section 13.1
hereof.
"Liquidator" shall have the meaning set forth in Section 13.2.A hereof.
9
<PAGE>
"Lock-Up Agreements" means the Lock-Up Agreements, dated the date
hereof, between each of the Limited Partners, respectively, and the
Underwriters.
"Majority in Interest of the Limited Partners" means Limited Partners
(other than the Managing General Partner and any Limited Partner 50% or more of
whose equity is owned, directly or indirectly, by the Managing General Partner)
holding Units that in the aggregate are greater than fifty percent (50%) of the
aggregate Units of all Limited Partners (other than the Managing General Partner
and any Limited Partner 50% or more of whose equity is owned, directly or
indirectly, by the Managing General Partner).
"Managing General Partner" means the Company or its successors as
managing general partner of the Partnership.
"Managing General Partner Loan" shall have the meaning set forth in
Section 4.3.B hereof.
"Managing General Partner Payment" shall have the meaning set forth in
Section 10.6 hereof.
"Minimum Gain Capital Account" shall mean, with respect to the Managing
General Partner, the sum of the Managing General Partner's Capital Account plus
the Managing General Partner's share of Partner Minimum Gain, as described in
Section 1.704-2(i)(5) of the Regulations, and Partnership Minimum Gain, as
described in Section 1.704-2(g) of the Regulations. For purposes of determining
Minimum Gain Capital Account, Nonrecourse Deductions and Partner Nonrecourse
Deductions for a Partnership taxable year or other applicable period shall be
allocated in a manner that is consistent with the method of allocation adopted
under Section 6.3 or Section 6.5 (to the extent applicable for such Partnership
taxable year).
"Net Cash Flow" means, with respect to the applicable period of
measurement (i.e., any period beginning on the first day of the fiscal year,
quarter or other period commencing immediately after the last day of the fiscal
year, quarter or other applicable period for purposes of the most recent
calculation of Net Cash Flow for or with respect to which a distribution has
been made, and ending on the last day of the fiscal year, quarter or other
applicable period immediately preceding the date of the calculation) the excess,
if any, as of such date, of (a) the gross cash receipts of the Partnership for
such period from all sources whatsoever, including, without limitation, the
following:
(i) all rents, revenues, income and proceeds derived by the Partnership
from its operations, including, without limitation, distributions received by
the Partnership from any Person in which the Partnership has an interest; (ii)
all proceeds and revenues received by the Partnership on account of any sales of
property of the Partnership or as a refinancing of or payments of principal,
interest, costs, fees, penalties or otherwise on account of any borrowings or
loans made by the Partnership or financings or refinancings of any property of
the Partnership; (iii) the amount of any insurance proceeds and condemnation
awards received by the Partnership; (iv) all Capital Contributions or loans
received by the Partnership from its Partners; (v) any reduction in the cash
amounts previously reserved by the Partnership and described in subsection
(b)(ix) below, if the
10
<PAGE>
Managing General Partner determines that such amounts are no longer needed; and
(vi) the proceeds of liquidation of the Partnership's property in accordance
with this Agreement,
over (b) the sum of:
(i) all operating costs and expenses of the Partnership and capital
expenditures paid during such period (without deduction, however, for any
capital expenditures, charges for Depreciation or other expenses not paid in
cash or expenditures from reserves described in (ix) below); (ii) to the extent
not included in any other clause of this subparagraph (b), all costs and
expenses expended or paid during such period in connection with the sale or
other disposition, or financing or refinancing, of property of the Partnership
or the recovery of insurance or condemnation proceeds; (iii) to the extent not
included in any other clause of this subparagraph (b), all fees provided for
under this Agreement and paid by the Partnership during such period (other than
fees paid from reserves described in subsection (b)(iv) below); (iv) to the
extent not included in any other clause of this subparagraph (b), all debt
service, including principal and interest, paid during such period on all
indebtedness of the Partnership; (v) all capital contributions, advances,
reimbursements or similar payments made to any Person in which the Partnership
has an interest; (vi) all loans made by the Partnership in accordance with the
terms of this Agreement; (vii) to the extent not included in any other clause of
this subparagraph (b), all reimbursements to the Managing General Partner or its
Affiliates during such period, including Administrative Expenses (exclusive of
REIT Expenses) to the extent not paid or payable by the Managing General Partner
pursuant to the third sentence of Section 7.4.B; (viii) any distributions
pursuant to the proviso of the second sentence of Section 5.1 hereof; and (ix)
any increases in reserves reasonably determined by the Managing General Partner
to be necessary for working capital, capital improvements, payments of periodic
expenditures, debt service or other purposes for the Partnership or any Person
in which the Partnership has an interest.
"Net Income" or "Net Loss" shall mean, for each fiscal year or other
applicable period, an amount equal to the Partnership's net income or loss for
such year or period as determined for federal income tax purposes by the
Managing General Partner, determined in accordance with Section 703(a) of the
Code (for this purpose, all items of income, gain, loss or deduction required to
be stated separately pursuant to Section 703(a) of the Code shall be included in
taxable income or loss), adjusted as follows: (i) by including as an item of
gross income any tax-exempt income received by the Partnership and not otherwise
taken into account in computing Net Income or Net Loss; (ii) by treating as a
deductible expense any expenditure of the Partnership described in Section
705(a)(2)(B) of the Code and not otherwise taken into account in computing Net
Income or Net Loss, including amounts paid or incurred to organize the
Partnership (unless an election is made pursuant to Section 709(b) of the Code)
or to promote the sale of interests in the Partnership; (iii) by treating
deductions for any losses incurred in connection with the sale or exchange of
Partnership property which are disallowed pursuant to Sections 267(a)(1) or
707(b) of the Code as expenditures described in Section 705(a)(2)(B) of the
Code; (iv) by taking into account Depreciation in lieu of depreciation,
depletion, amortization, and other cost recovery deductions taken into account
in computing taxable income or loss; (v) by computing gain or loss resulting
from any disposition of Partnership property with respect to which gain or loss
is recognized for federal income tax purposes by reference to the Gross Asset
Value of such property rather than its adjusted tax basis; (vi) in the event of
an adjustment of the Gross Asset Value of any Partnership asset which requires
that the
11
<PAGE>
Capital Accounts of the Partnership be adjusted pursuant to Sections
1.704-1(b)(2)(iv)(e), (f) and (m) of the Regulations, by taking into account the
amount of such adjustment as additional Net Income or Net Loss pursuant to
Article VI; and (vii) subject to the immediately preceding clause (vi), by
excluding the Partnership items of income, gain, loss or deduction that are
specially allocated pursuant to Section 6.6.
"New Securities" means (a) any rights, options, warrants or convertible
or exchangeable securities having the right to subscribe for or purchase Common
Shares or other shares of beneficial interest of the Managing General Partner,
excluding grants under any Share Incentive Plan or (b) any Debt issued by the
Managing General Partner that provides any of the rights described in clause (a)
hereof.
"Nonrecourse Deductions" shall have the meaning set forth in
Regulations Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for
a Partnership taxable year shall be determined in accordance with the rules of
Regulations Section 1.704-2(c).
"Nonrecourse Liability" shall have the meaning set forth in Regulations
Section 1.752-1(a)(2).
"Notice of Breach" shall have the meaning set forth in Section 15.2
hereof.
"Partner" means a General Partner or a Limited Partner, and "Partners"
means the General Partners and the Limited Partners.
"Partner Minimum Gain" means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
"Partner Nonrecourse Debt" shall have the meaning set forth in
Regulations Section 1.704-2(b)(4).
"Partner Nonrecourse Deductions" shall have the meaning set forth in
Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a Partnership taxable
year shall be determined in accordance with the rules of Regulations Section
1.704-2(i)(2).
"Partnership" means the limited partnership formed under the Act and
pursuant to this Agreement, and any successor thereto.
"Partnership Interest" means, an ownership interest in the Partnership
of either a Limited Partner or a General Partner and includes any and all
benefits to which the holder of such a Partnership Interest may be entitled as
provided in this Agreement, together with all obligations of such Person to
comply with the terms and provisions of this Agreement. There may be one or more
classes of Partnership Interests as provided in Section 4.3 hereof. A
Partnership Interest within a class of Partnership Interests shall be expressed
as a number of units of such class. In the event that
12
<PAGE>
the Partnership has more than one class of Partnership Interests, the
Partnership Interest of a Partner with respect to all classes of Partnership
Interests shall be expressed as the sum of each Partnership Interest owned by
such Partner for each class of Partnership Interests, weighting each such
Partnership Interest for each class based on the relative aggregate fair market
value of each class. Unless otherwise expressly provided for by the Managing
General Partner at the time of the original issuance of any Partnership
Interests, all Partnership Interests (whether of a Limited Partner or a General
Partner) shall be of the same class.
"Partnership Minimum Gain" shall have the meaning set forth in
Regulations Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain,
as well as any net increase or decrease in Partnership Minimum Gain, for a
Partnership taxable year shall be determined in accordance with the rules of
Regulations Section 1.704-2(d).
"Partnership Payment Date" means the payment date established by the
Managing General Partner for the distribution of Net Cash Flow pursuant to
Section 5.1 hereof, which payment date shall be the same as the payment date
established by the Managing General Partner for a distribution to its
shareholders of some or all of its portion of such distribution.
"Partnership Year" means the fiscal year of the Partnership, which
shall be the calendar year.
"Permitted Debt Allocation Method" shall mean each of the following
methods of allocating the Partnership's excess nonrecourse liabilities for
purposes of Regulations Section 1.752-3(a)(3) in any Partnership taxable year:
(a) Excess nonrecourse liabilities shall be allocated in accordance
with the Partners' respective interests in Partnership profits, determined by
reference to reasonably consistent allocations of a significant item of
Partnership income or gain, not taking into account how the Partners will share
taxable income under Code Section 704(c);
(b) Excess nonrecourse liabilities shall be allocated in accordance
with how the Partners will share future Profits, taking into account as well how
the Partners will share taxable income under Code Section 704(c); one such
method will consist of aggregating as of the end of the immediately preceding
Partnership taxable year, the excess, computed for each Partner under Code
Section 704(c), of the Gross Asset Value of each Property on the relevant
Adjustment Date, over the adjusted tax basis of such Property on such Adjusted
Date ("net built-in gain"), less any such built-in gain that has been taken into
account pursuant to the allocation rule within Section 6.7, and any portion of
such built-in gain that was taken into account in making an allocation of
Nonrecourse Liabilities under Regulations Section 1.752-3(a)(2) allocating
excess nonrecourse liabilities of the Partnership shall be allocated for the
relevant Partnership taxable year based upon each Partner's relative percentage
of such net built-in gain; or
(c) Excess nonrecourse liabilities shall be allocated in accordance
with how it is reasonably expected that items of deduction attributable to such
excess Nonrecourse Liabilities will be allocated,
13
<PAGE>
(d) In each case, as determined by the Managing General Partner in
accordance with Regulations Section 1.752-3 and Revenue Ruling 95-41, 1995-1
C.B. 132.
"Person" means an individual or a corporation, partnership, limited
liability company, trust, unincorporated organization, association or other
entity.
"Pledge" shall have the meaning set forth in Section 11.3.A hereof.
"Preferred Shares" means the preferred shares of beneficial interest,
par value $.01 per share, of the Managing General Partner.
"Preferred Unit" means, with respect to any preferred class of
Partnership Interest, a fractional, undivided share of such class of Partnership
Interest issued pursuant to Section 4.1 and 4.3 hereof. The ownership of
Preferred Units may be evidenced by a certificate for preferred units
substantially in the form of Exhibit E hereof (including the restricted legends
thereon) or as the Managing General Partner may determine with respect to any
class of Preferred Units issued from time to time under Sections 4.1 and 4.3
hereof.
"Prime" means Prime Group Limited Partnership, an Illinois limited
partnership and its affiliates.
"Primestone Transfer Events" means a Put Event or Change in Control
Event, each as defined in that certain partnership agreement dated the date
hereof by and among BRE/Primestone Investment Management L.L.C, BRE/Primestone
Investment L.L.C. and the Prime Partners (as defined in such partnership
agreement).
"Properties" means such interests in real property and personal
property including without limitation, fee interests, interests in ground
leases, interests in joint ventures, interests in mortgages, and Debt
instruments as the Partnership may hold from time to time.
"Property Partnerships" shall mean the partnerships and limited
liability companies identified as such on Exhibit J attached hereto.
"Put Option Agreement" shall mean that certain Put Option Agreement
dated as of November 17, 1997, between The Nardi Group, L.L.C. and the
Partnership and the Company.
"Qualified REIT Subsidiary" means any Subsidiary of the Managing
General Partner that is a "qualified REIT subsidiary" within the meaning of
Section 856(i) of the Code.
"Qualified Transferee" means an "Accredited Investor" as defined in
Rule 501 promulgated under the Securities Act.
"Recapture Gain" shall have the meaning set forth in Section 6.7.D
hereof.
14
<PAGE>
"Regulations" means the Income Tax Regulations promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Regulatory Allocations" shall have the meaning set forth in Section
6.6 hereof.
"REIT" means a real estate investment trust under Sections 856 through
860 of the Code.
"REIT Expenses" shall mean (i) costs and expenses relating to the
formation and continuity of existence of the Managing General Partner and its
subsidiaries, if any, (which subsidiaries shall, for purposes of this definition
be included within the definition of Managing General Partner), including taxes,
fees and assessments associated therewith and any and all costs, expenses or
fees payable to any director, officer or trustee of the Managing General Partner
or such subsidiaries (including, without limitation, any costs of
indemnification), (ii) costs and expenses relating to any offer or registration
of securities by the Managing General Partner and all statements, reports, fees
and expenses incidental thereto, including, without limitation, underwriting
discounts and selling commissions applicable to any such offer of securities and
any costs and expenses associated with any claims made by any holder of such
securities or any underwriter or placement agent therefor, (iii) costs and
expenses associated with the preparation and filing of any periodic reports by
any of the General Partners under federal, state or local laws or regulations,
including filings with the SEC, (iv) costs and expenses associated with
compliance by any of the General Partners with laws, rules and regulations
promulgated by any regulatory body, including the SEC, and (v) all other
operating or administrative costs of the Managing General Partner incurred in
the ordinary course of its business.
"REIT Requirements" shall have the meaning set forth in Section 5.1
hereof.
"SEC" means the United States Securities and Exchange Commission and
any successor agency of the United States federal government.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Specified Exchange Date" means the day of receipt by the Managing
General Partner of an Exchange Exercise Notice.
"Share" means either a Common Share or a Preferred Share, as the case
may be.
"Share Incentive Plan" means any share incentive plan of the Managing
General Partner.
15
<PAGE>
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of (a) the voting power of the voting equity
securities or (b) the outstanding equity interests is owned, directly or
indirectly, by such Person.
"Subsidiary Partnership" means any partnership that is a Subsidiary of
the Partnership.
"Substituted Limited Partner" means a Person who is admitted as a
Limited Partner to the Partnership pursuant to Section 11.4 hereof.
"Surviving Partnership" shall have the meaning set forth in Section
11.2.C hereof.
"Tax Items" shall have the meaning set forth in Section 6.7.A hereof.
"Tenant" means any tenant from which the Managing General Partner
derives rent either directly or indirectly through partnerships, including the
Partnership.
"Terminating Capital Transaction" means any sale or other disposition
of all or substantially all of the assets of the Partnership or a related series
of transactions that, taken together, result in the sale or other disposition of
all or substantially all of the assets of the Partnership.
"Underwriter" means any of and "Underwriters" means all of Prudential
Securities Incorporated, Friedman, Billings, Ramsey & Co., Inc., Smith Barney
Inc. and Morgan Keegan & Company, Inc.
"Underwriting Agreement" means that certain Underwriting Agreement,
dated November 11, 1997 among the Company, the Partnership and the Underwriters
as representatives for the several underwriters named in Schedule 1 thereto.
"Unit" means either a Common Unit or a Preferred Unit, as the case may
be.
ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1 Organization. The Partnership is a limited partnership
formed pursuant to the provisions of the Act and upon the terms and conditions
set forth in this Agreement. Except as expressly provided herein, the rights and
obligations of the Partners and the administration and termination of the
Partnership shall be governed by the Act. The Partnership Interest of each
Partner shall be personal property for all purposes.
Section 2.2 Name. The name of the Partnership is Prime Group Realty,
L.P. The Partnership's business may be conducted under any other name or names
deemed advisable by the Managing General Partner, including the name of the
Managing General Partner or any Affiliate thereof. The words "Limited
Partnership," "L.P.," "Ltd." or similar words or letters shall be included in
the Partnership's name where necessary for the purposes of complying with the
laws of any jurisdiction that so requires. The Managing General Partner in its
sole and absolute discretion may
16
<PAGE>
change the name of the Partnership at any time and from time to time and shall
notify the Partners of such change in the next regular communication to the
Partners.
Section 2.3 Resident Agent; Principal Office. The name and address of
the resident agent of the Partnership in the State of Delaware is The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801. The address of the principal office of the
Partnership in the State of Delaware is Prime Group Realty, L.P., c/o The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801. The principal office of the Partnership is located
at 77 West Wacker Drive, Suite 3900, Chicago, Illinois 60601, or such other
place as the Managing General Partner may from time to time designate by notice
to the Limited Partners. The Managing General Partner, in its sole and absolute
discretion, may change the resident agent and appoint successor resident agents.
The Partnership may maintain offices at such other place or places within or
outside the State of Delaware as the Managing General Partner deems advisable.
Section 2.4 Power of Attorney.
A. Each Partner and each Assignee constitutes and appoints the Managing
General Partner, any Liquidator, and authorized officers and attorneys-in-fact
of each, and each of those acting singly, in each case with full power of
substitution, as its true and lawful agent and attorney-in-fact, with full power
and authority in its name, place and stead to:
(1) execute, swear to, acknowledge, deliver, file and record
in the appropriate public offices (a) all certificates, documents and other
instruments (including, without limitation, this Agreement and the Certificate
and all amendments or restatements thereof) that the Managing General Partner or
the Liquidator deems appropriate or necessary to form, qualify or continue the
existence or qualification of the Partnership as a limited partnership (or a
partnership in which the Partners have limited liability) in the State of
Delaware and in all other jurisdictions in which the Partnership may conduct
business or own property; (b) all instruments that the Managing General Partner
or any Liquidator deems appropriate or necessary to reflect any amendment,
change, modification or restatement of this Agreement in accordance with its
terms; (c) all conveyances and other instruments or documents that the Managing
General Partner or any Liquidator deems appropriate or necessary to reflect the
dissolution and liquidation of the Partnership pursuant to the terms of this
Agreement, including, without limitation, a certificate of cancellation; (d) all
instruments relating to the admission, withdrawal, removal or substitution of
any Partner pursuant to, or other events described in, Articles 11, 12 and 13
hereof or the Capital Contribution of any Partner; and (e) all certificates,
documents and other instruments relating to the determination of the rights,
preferences and privileges of Partnership Interests; and
(2) execute, swear to, acknowledge and file all ballots,
consents, approvals, waivers, certificates and other instruments appropriate or
necessary, in the sole and absolute discretion of the Managing General Partner
or any Liquidator, to make, evidence, give, confirm or ratify any vote, consent,
approval, agreement or other action which is made or given by the Partners
hereunder or is consistent with the terms of this Agreement or appropriate or
necessary, in the sole discretion of the Managing General Partner or any
Liquidator, to effectuate the terms or intent of this Agreement.
17
<PAGE>
Nothing contained herein shall be construed as authorizing the Managing General
Partner or any Liquidator to amend this Agreement except in accordance with
Article 14 hereof or as may be otherwise expressly provided for in this
Agreement.
B. The foregoing power of attorney is hereby declared to be irrevocable
and a power coupled with an interest, in recognition of the fact that each of
the Partners will be relying upon the power of the Managing General Partner and
any Liquidator to act as contemplated by this Agreement in any filing or other
action by it on behalf of the Partnership, and it shall survive and not be
affected by the subsequent Incapacity of any Partner or Assignee and the
transfer of all or any portion of such Partner's or Assignee's Units and shall
extend to such Partner's or Assignee's heirs, successors, assigns and personal
representatives. Each such Partner or Assignee hereby agrees to be bound by any
representation made by the Managing General Partner or any Liquidator, acting in
good faith pursuant to such power of attorney; and each such Partner or Assignee
hereby waives any and all defenses which may be available to contest, negate or
disaffirm the action of the Managing General Partner or any Liquidator, taken in
good faith under such power of attorney. Each Partner or Assignee shall execute
and deliver to the Managing General Partner or any Liquidator, within 15 days
after receipt of the Managing General Partner's or Liquidator's request
therefor, such further designation, powers of attorney and other instruments as
the Managing General Partner or the Liquidator, as the case may be, deems
necessary to effectuate this Agreement and the purposes of the Partnership.
Section 2.5 Term. The term of the Partnership commenced on March 19,
1997 upon the filing of the Certificate in accordance with the Act and shall
continue until December 31, 2050 unless it is dissolved sooner pursuant to the
provisions of Article 13 hereof or as otherwise provided by law.
Section 2.6 Filings. A. The Managing General Partner shall take any and
all other actions reasonably necessary to perfect and maintain the status of the
Partnership as a limited partnership under the laws of the State of Delaware.
The Managing General Partner shall cause amendments to the Certificate to be
filed whenever required by the Act. Such amendments may be executed by the
Managing General Partner only.
B. The Managing General Partner shall execute and cause to be filed
original or amended Certificates and shall take any and all other actions as may
be reasonably necessary to perfect and maintain the status of the Partnership as
a limited partnership or similar type of entity under the laws of any other
states or jurisdictions in which the Partnership engages in business.
C. Upon the dissolution of the Partnership, the Managing General
Partner (or, in the event there is no remaining Managing General Partner, the
Person responsible for winding up and dissolution of the Partnership pursuant to
Article 13 hereof) shall promptly execute and cause to be filed certificates of
dissolution in accordance with the Act and the laws of any other states or
jurisdictions in which the Partnership has filed certificates.
18
<PAGE>
ARTICLE 3
PURPOSE
Section 3.1 Purpose and Business. The purpose and nature of the
business to be conducted by the Partnership is (A) to acquire and own real
property, to acquire, lease, own, mortgage or otherwise encumber personal
property, fixtures and real property, to operate, manage, lease (or, to the
extent determined by the Managing General Partner to be appropriate, cause the
operation, management and leasing by independent contractors including a Partner
or its Affiliates) any Property owned by the Partnership, (B) to develop real
property and to construct improvements on real property, (C) to enter into any
partnership, joint venture or other similar arrangement to engage in any of the
foregoing or to own interests in any entity engaged, directly or indirectly, in
any of the foregoing, (D) to conduct any business that may be lawfully conducted
by a limited partnership organized pursuant to the Act and (E) otherwise deal in
and with the business and assets of the Partnership, and to do anything
necessary or incidental to the foregoing; provided, however, that such business
shall be limited to and conducted in such manner to permit the Managing General
Partner at all times to be classified as a REIT for federal income tax purposes,
unless the Managing General Partner has determined to cease to qualify as a
REIT. In connection with the foregoing, and without limiting the Managing
General Partner's right in its sole discretion to cease qualifying as a REIT,
the Partners acknowledge that the Managing General Partner's status as a REIT
inures to the benefit of all the Partners and not solely to the Managing General
Partner. The Managing General Partner shall also be empowered to do any and all
acts and things necessary or prudent to ensure that the Partnership will not be
classified as a "publicly traded partnership" for purposes of Section 7704 of
the Code, including but not limited to, imposing restrictions on transfers and
restrictions on redemptions; provided, however, that no such restrictions shall
be made on The Nardi Group, L.L.C. pursuant to this Section 3.1 except to the
extent set forth in the Put Option Agreement.
Section 3.2 Powers. The Partnership is empowered to do any and all acts
and things necessary, appropriate, proper, advisable, incidental to or
convenient for the furtherance and accomplishment of the purposes and business
described herein and for the protection and benefit of the Partnership,
including, without limitation, full power and authority, directly or through its
ownership interest in other entities, to enter into, perform and carry out
contracts of any kind, borrow money and issue evidences of indebtedness, whether
or not secured by mortgage, deed of trust, pledge or other lien, acquire and
develop real property, and manage, lease, sell, transfer and dispose of real
property; provided, that the Partnership shall not take, or shall refrain from
taking, any action which, in the judgment of the Managing General Partner, in
its sole and absolute discretion, (i) could adversely affect the ability of the
Managing General Partner to continue to qualify as a REIT, (ii) could subject
the Managing General Partner to any additional taxes under Section 857 or
Section 4981 of the Code or any successor or newly enacted provisions of the
Code imposing other additional taxes or enacted provisions of the Code imposing
other additional taxes or penalties on the Managing General Partner or (iii)
could violate any law or regulation of any governmental body or agency having
jurisdiction over the Managing General Partner or its securities, unless any
such action (or inaction) under clauses (i), (ii) or (iii) of this proviso shall
have been specifically consented to by the Managing General Partner in writing.
19
<PAGE>
Section 3.3 Representations and Warranties by the Parties.
In addition to the representations and warranties included in Article
15 and elsewhere in this Agreement:
A. Each Partner represents and warrants to each other Partner that (1)
such Partner has the power and authority to enter into this Agreement and
perform such Partner's obligations hereunder, (2) the execution and delivery of
this Agreement by such Partner and the performance by such Partner of all
transactions contemplated by this Agreement to be performed by such Partner have
been duly authorized by all necessary action, including without limitation, that
of its general partner(s), committee(s), trustee(s), member(s), beneficiaries,
directors and/or shareholder(s), as the case may be, as required, (3) the
consummation of such transactions shall not result in a breach or violation of,
or a default under, its certificate of limited partnership, partnership
agreement, trust agreement, limited liability company operating agreement,
charter, certificate or articles of incorporation or by-laws, as the case may
be, any agreement by which such Partner or any of such Partner's properties or
any of its partners, beneficiaries, members, trustees or shareholders, as the
case may be, is or are bound, or any statute, regulation, order or other law to
which such Partner or any of its partners, trustees, beneficiaries or
shareholders, as the case may be, is or are subject, (4) such Partner is neither
a "foreign person" within the meaning of Section 1445(f) of the Code nor a
"foreign partner" within the meaning of Section 1446(e) of the Code, and (5)
this Agreement has been duly executed and delivered by such Partner and is
binding upon, and enforceable against, such Partner in accordance with its
terms.
B. Each Partner represents, warrants and agrees that it has acquired
and continues to hold its interest in the Partnership for its own account for
investment only and not for the purpose of, or with a view toward, the resale or
distribution of all or any part thereof, nor with a view toward selling or
otherwise distributing such interest or any part thereof at any particular time
or under any predetermined circumstances. Each Partner further represents and
warrants that it is a sophisticated investor, able and accustomed to handling
sophisticated financial matters for itself, particularly real estate
investments, and that it has a sufficiently high net worth that it does not
anticipate a need for the funds it has invested in the Partnership in what it
understands to be a highly speculative and illiquid investment.
C. Each Partner further represents, warrants and agrees as follows:
(1) Except as provided in Exhibit F hereof, it does not and
will not, without the prior written consent of the Managing General Partner,
actually own or Constructively Own (a) with respect to any Tenant that is a
corporation, any stock of such Tenant and (b) with respect to any Tenant that is
not a corporation, any interests in either the assets or net profits of such
Tenant; provided, however, that each Partner may own or Constructively Own with
one or more other Partners (x) with respect to any Tenant that is a corporation,
stock of such Tenant possessing less than ten percent (10%) of the total
combined voting power of all classes of stock entitled to vote and less than ten
percent (10%) of the total number of shares of all classes of stock of such
Tenant and (y) with respect to any Tenant that is not a corporation, interests
in such Tenant representing less than ten percent (10%) of the assets and ten
percent (10%) of the net profits of such Tenant, so long
20
<PAGE>
as such actual or Constructive Ownership otherwise permitted under clause (x) or
(y) above would not cause the Managing General Partner to receive amounts
described in Section 856 (d)(2)(B) of the Code.
(2) Except as provided in Exhibit G hereof, it does not, and
agrees that it will not without the prior written consent of the Managing
General Partner, actually own or Constructively Own, any shares in the Managing
General Partner, other than any Common Shares or other shares of beneficial
interest of the Managing General Partner such Partner may acquire (a) as a
result of an exchange pursuant to Section 8.6 hereof or (b) upon the exercise of
options granted or delivery of Shares pursuant to any Share Incentive Plan, in
each case subject to the ownership limitations set forth in the Managing General
Partner's Charter.
(3) Upon request of the Managing General Partner, it will
disclose to the Managing General Partner the amount of Common Shares or other
shares of beneficial interest of the Managing General Partner that it actually
owns or Constructively Owns.
(4) It understands that if, for any reason, (a) the
representations, warranties or agreements set forth in subparagraph C(1) or (2)
of this Section 3.3 are violated or (b) the Partnership's actual or Constructive
Ownership of the Common Shares or other shares of beneficial interest of the
Managing General Partner violates the limitations set forth in the Charter, then
(x) some or all of the exchange rights of the Partners may become
non-exercisable, and (y) some or all of the Shares owned by the Partners may be
automatically transferred to a trust for the benefit of the Managing General
Partner, as provided in the Charter.
D. The representations and warranties contained in Sections 3.3.A,
3.3.B and 3.3.C hereof shall survive the execution and delivery of this
Agreement by each Partner and the dissolution and winding up of the Partnership.
E. Each Partner hereby acknowledges that no representations as to
potential profit, cash flows, funds from operations or yield, if any, in respect
of the Partnership or the Managing General Partner have been made by any Partner
or any employee or representative or Affiliate of any Partner, and that
projections and any other information, including, without limitation, financial
and descriptive information and documentation, which may have been in any manner
submitted to such Partner shall not constitute any representation or warranty of
any kind or nature, express or implied.
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contributions of the Partners. At the time of their
respective execution of this Agreement, the Partners shall make Capital
Contributions as set forth in Exhibit A hereof. The Partners shall own Units of
the class and in the amounts set forth in Exhibit A hereof, which shall be
adjusted from time to time by the Managing General Partner to the extent
necessary to accurately reflect exchanges, Capital Contributions, the issuance
of additional Units or similar events having an effect on a Partner's number of
Units. Except as required by law or as otherwise
21
<PAGE>
provided in Sections 4.3, 4.4 and 10.5 hereof, no Partner shall be required or
permitted to make any additional Capital Contributions or loans to the
Partnership.
Section 4.2 Loans by Third Parties. Subject to Section 4.3 hereof, the
Partnership may incur Debt, or enter into other similar credit, guarantee,
financing or refinancing arrangements for any purpose (including, without
limitation, in connection with any further acquisition of Properties) with any
Person that is not the Managing General Partner upon such terms as the Managing
General Partner determines to be appropriate; provided, that the Partnership
shall not incur any Debt that is recourse to any General Partner, except to the
extent otherwise agreed to by such General Partner in the sole discretion of
such General Partner, or to any Limited Partner, except to the extent otherwise
agreed to by such Limited Partner in the sole discretion of such Limited
Partner.
Section 4.3 Additional Funding and Capital Contributions.
A. General. The Managing General Partner may, at any time and from time
to time, determine that the Partnership requires additional funds ("Additional
Funds") for the acquisition of additional Properties or for such other
Partnership purposes as the Managing General Partner may determine. Additional
Funds may be raised by the Partnership, at the election of the Managing General
Partner, in any manner provided in, and in accordance with, the terms of this
Article 4. No Person shall have any preemptive, preferential or similar right or
rights to subscribe for or acquire any Partnership Interest, except as set forth
in this Section 4.3.
B. Managing General Partner Loans. The Managing General Partner may
enter into a Funding Debt, including, without limitation, a Funding Debt that is
convertible into Common Shares, and lend to the Partnership the net proceeds
received by the Partnership from such Funding Debt (a "Managing General Partner
Loan"); provided, however, that the Managing General Partner shall not be
obligated to lend the net proceeds of any Funding Debt to the Partnership in a
manner that would be inconsistent with the Managing General Partner's ability to
remain qualified as a REIT or would trigger any indemnity obligation on the part
of the Managing General Partner or the Partnership. If the Managing General
Partner enters into such a Funding Debt, the Managing General Partner Loan will
consist of the net proceeds from such Funding Debt and will be on comparable
terms and conditions, including interest rate, repayment schedule and costs and
expenses, as shall be applicable with respect to or incurred in connection with
such Funding Debt.
C. Issuance of Additional Partnership Interests. The Managing General
Partner may raise all or any portion of the Additional Funds by accepting
additional Capital Contributions, including, without limitation, the issuance of
Units for property or interests in property. In connection with any such
additional Capital Contributions (of cash or property), the Managing General
Partner is hereby authorized to cause the Partnership from time to time to issue
to Partners (including the Managing General Partner) or other Persons
(including, without limitation, in connection with the contribution of property
to the Partnership) additional Units or other Partnership Interests in one or
more classes, or one or more series of any of such classes, with such
designations, preferences and relative participating, optional or other special
rights, powers, and duties, including rights, powers, and duties senior to then
existing Partnership Interests, all as shall be determined by the Managing
General Partner in its sole and absolute discretion subject to Delaware law, and
as
22
<PAGE>
may be set forth by amendment to this Agreement to reflect the foregoing,
including without limitation, (1) the allocations of items of Partnership
income, gain, loss, deduction, and credit to such class or series of Partnership
Interests; (2) the right of each such class or series of Partnership Interests
to share in Partnership distributions; (3) the rights of each such class or
series of Partnership Interests upon dissolution and liquidation of the
Partnership; and (4) the right to vote, including, without limitation, the
approval rights set forth in Section 11.2.A hereof; provided, that no such
additional Units or other Partnership Interests shall be issued to the Managing
General Partner unless either (a) the additional Partnership Interests are
issued in connection with the grant, award, or issuance of shares of the
Managing General Partner pursuant to Section 4.3.D below, which shares have
designations, preferences, and other rights (except voting rights) such that the
economic interests attributable to such shares are substantially similar to the
designations, preferences and other rights of the additional Partnership
Interests issued to the Managing General Partner in accordance with this Section
4.3.C, or (b) the additional Partnership Interests are issued to all Partners
holding Partnership Interests in the same class in proportion to their
respective Partnership Interests in such class; provided, however, that any
Limited Partner Interests acquired by the Managing General Partner, whether
pursuant to exercise by a Limited Partner of its exchange rights, or otherwise,
shall be automatically converted into a General Partner Interest comprised of an
identical number of Units of the same class. In the event that the Partnership
issues additional Partnership Interests pursuant to this Section 4.3.C, the
Managing General Partner shall make such revisions to this Agreement (including
but not limited to the revisions described in Section 5.4, Section 6.2.B, and
Section 8.6 hereof) as it determines are necessary to reflect the issuance of
such additional Partnership Interests.
D. Issuance of Shares or Other Securities by the Managing General
Partner. The Managing General Partner shall not issue any additional Shares
(other than Shares issued pursuant to Section 8.6 hereof or pursuant to a
dividend or distribution (including any share split) of Shares to all of its
shareholders), other shares of beneficial interest of the Managing General
Partner or New Securities unless the Managing General Partner shall make a
Capital Contribution of the net proceeds from the issuance of such additional
Shares, other shares of beneficial interest or New Securities, as the case may
be, and from the exercise of the rights contained in such additional New
Securities, as the case may be and receive Units from the Partnership with
rights, preferences and terms corresponding to such Shares, other shares of
beneficial interest or New Securities, as the case may be; provided further,
that in the case of Convertible Preferred Shares or other securities senior or
junior to the Common Shares as to dividends and distributions on liquidation,
the Managing General Partner shall contribute to the Partnership the proceeds or
consideration (including any property or other non-cash assets) received for
such securities and from any subsequent exercise, exchange or conversion thereof
(if applicable), and receive from the Partnership Convertible Preferred Units or
other interests in the Partnership in consideration therefor with the same terms
and conditions, including dividend, dividend priority and liquidation
preference, as are applicable to such securities.
Section 4.4 Share Incentive Plan. If at any time or from time to time
the Managing General Partner sells or issues Shares pursuant to any Share
Incentive Plan, the Managing General Partner shall contribute the net proceeds
therefrom to the Partnership as an additional Capital Contribution and shall
receive the number of Common Units corresponding to the number of Shares
23
<PAGE>
delivered by the Managing General Partner to such exercising party multiplied by
a fraction the numerator of which is one and the denominator of which is the
Exchange Factor (as defined in Exhibit C hereto) in effect on the date of such
contribution.
Section 4.5 Other Contribution Provisions. In the event that any
Partner is admitted to the Partnership and is given a Capital Account in
exchange for services rendered to the Partnership, such transaction shall be
treated by the Partnership and the affected Partner as if the Partnership had
compensated such Partner in cash, and the Partner had contributed such cash to
the capital of the Partnership. In addition, with the written consent of the
Managing General Partner (which may be granted or denied in its sole
discretion), one or more Partners may enter into agreements or other instruments
with the Partnership which have the effect of providing a guarantee of certain
obligations of the Partnership or one or more of its Subsidiaries.
Section 4.6 Purchase of Shares by the Managing General Partner. In the
event the Managing General Partner exercises its rights under the Charter to
purchase Shares, then the Managing General Partner shall cause the Partnership
to purchase from it a number of Units of the appropriate class equal to the
number of Shares so purchased multiplied by a fraction the numerator of which is
one and the denominator of which is the Exchange Factor (as defined in Exhibit C
hereto) in effect on the date of such contribution, on the same terms that the
Managing General Partner purchased such Shares.
Section 4.7 No Interest on Capital Contributions. No interest or
additional share of Net Income shall be paid or credited to the Partners on
their Capital Accounts, or on any undistributed Net Income of funds left on
deposit with the Partnership; provided, however, that nothing contained herein
shall be construed to prevent or prohibit the payment of interest on account of
loans made by the Partners to the Partnership. Any loans made to the Partnership
by a Partner shall not increase its Capital Contribution or interest in the Net
Income, Net Loss or Net Cash Flow of the Partnership, but shall be a debt due
from the Partnership and repaid accordingly.
Section 4.8 Conversion of Convertible Preferred Units.
A. If at any time holders of the Managing General Partner's Convertible
Preferred Shares shall exercise their rights under the Managing General
Partner's Declaration of Trust to convert any Convertible Preferred Shares to
Common Shares, in whole or in part (including any fractions thereof), then,
simultaneously with such conversion, an equal number of Convertible Preferred
Units shall be automatically converted into the number of Common Units equal to
the product of (x) the number of Common Shares into which the Convertible
Preferred Shares are converted, multiplied by (y) a fraction the numerator of
which is one and the denominator of which is the Exchange Factor in effect on
such date.
B. If at any time Convertible Preferred Shares are to be redeemed
pursuant to the Managing General Partner's Declaration of Trust or purchased by
the Managing General Partner, the Partnership shall redeem an equal number of
Convertible Preferred Units by payment of the Convertible Preferred Unit
Redemption Amount therefor or purchase price paid by the Managing General
Partner immediately prior to or concurrently with such redemption or purchase.
24
<PAGE>
C. The Managing General Partner shall amend Exhibit A as applicable to
reflect each conversion of Convertible Preferred Units, and the issuance of
additional Common Units in connection therewith and each redemption of
Convertible Preferred Units.
ARTICLE 5
DISTRIBUTIONS
Section 5.1 Requirement and Characterization of Distributions. Except
as set forth in Section 13.2 hereof, the Managing General Partner shall cause
the Partnership to distribute from time to time, but not less frequently than
quarterly, all, or such portion as the Managing General Partner may in its
discretion determine, of Net Cash Flow generated by the Partnership during such
quarter to the Partners who are Partners on the Partnership Payment Date with
respect to such quarter, and in the following priority:
(i) First, to the extent that the amount of cash already
distributed to the Managing General Partner for all prior quarters pursuant to
clause (ii) below (other than the immediately preceding quarter) was less than
the Convertible Preferred Distribution for each of the outstanding Convertible
Preferred Units for all such quarters, and such deficiency was not previously
distributed pursuant to this subsection (i) or paid as part of a Convertible
Preferred Unit Redemption Amount (a "Convertible Preferred Distribution
Shortfall"), Net Cash Flow shall be distributed to the Managing General Partner
in an amount equal to such Convertible Preferred Distribution Shortfall for all
such prior quarters.
(ii) Second, Net Cash Flow shall be distributed to the
Managing General Partner in an amount equal to the Convertible Preferred
Distribution for the immediately preceding quarter for each outstanding
Convertible Preferred Unit then held by the Managing General Partner.
(iii) Third, Net Cash Flow shall be distributed to the holders
of Common Units, pro rata in accordance with their respective Common Units.
Unless otherwise expressly provided for herein or in an agreement at
the time a new class of Partnership Interests is created in accordance with
Article 4 hereof, no Partnership Interest shall be entitled to a distribution in
preference to any other Partnership Interest; provided, however, that
notwithstanding any other provision in this Agreement, from time to time and at
such times as the Managing General Partner shall determine, and prior to any
determination or distribution of Net Cash Flow pursuant to this Section 5.1,
there shall be distributed to the applicable General Partner from the revenues,
proceeds or other funds of the Partnership, an amount equal to any REIT Expenses
(other than those described in clause (ii) of the definition of REIT Expenses),
to the extent not paid or payable by the Managing General Partner from cash
distributions which it receives directly from any Property Partnerships on
account of any interest in the Property Partnership which it holds directly (as
opposed to through the Partnership). The Managing General Partner shall take
such reasonable efforts, as determined by it in its sole and absolute discretion
and consistent with its qualification as a REIT, to cause the Partnership to
distribute sufficient amounts to enable the Managing General Partner to pay
shareholder dividends that will (X) satisfy the requirements for
25
<PAGE>
qualifying as a REIT under the Code and Regulations ("REIT Requirements") and
(Y) avoid any federal income or excise tax liability of the Managing General
Partner.
Section 5.2 Distributions in Kind. No right is given to any Partner to
demand and receive property or cash. The Managing General Partner may determine,
in its sole and absolute discretion, to make a distribution in kind to the
Partners of Partnership assets, and such assets shall be distributed in such a
fashion as to ensure that such assets are distributed and allocated in
accordance with Articles 5, 6 and 10 hereof based on the fair market value of
such assets on the date of such distribution.
Section 5.3 Distributions Upon Liquidation. Proceeds from a Terminating
Capital Transaction shall be distributed to the Partners in accordance with
Section 13.2 hereof.
Section 5.4 Distributions to Reflect Issuance of Additional Partnership
Interests. In the event that the Partnership issues additional Partnership
Interests to a General Partner or any Additional Limited Partner pursuant to
Section 4.3 or 4.4 hereof, the Managing General Partner shall make such
revisions to this Article 5 as it determines are necessary to reflect the
issuance of such additional Partnership Interests, including making preferential
distributions to certain classes of Partnership Interests.
Section 5.5 Distributions to Limited Partners Exercising Exchange
Rights. With respect to any Limited Partner(s) from whom the Managing General
Partner receives an Exercise Notice to exercise Rights in accordance with
Section 8.6 hereof for which the Managing General Partner elects to pay the Cash
Purchase Price pursuant to Exhibit C, the Managing General Partner shall cause
the Partnership to distribute to such Limited Partner(s), with respect to the
Units for which the Cash Purchase Price is paid, (i) on the Partnership Payment
Date, if any, thereafter occurring during the quarter in which the Cash Purchase
Price is paid, an amount equal to a full pro rata share of any Net Cash Flow to
which such Limited Partner would have been entitled to receive pursuant to
Section 5.1 had such Limited Partner held such Units on the Partnership Payment
Date occurring in such quarter and (ii) on the Partnership Payment Date, if any,
occurring during the next succeeding quarter after such Exercise Notice is
received, an amount equal to the Net Cash Flow to which such Limited Partner
would have been entitled to receive pursuant to Section 5.1 had such Limited
Partner held such Units on the Partnership Payment Date, multiplied by a
fraction, the numerator of which is the number of days in the preceding quarter
(based on three 30-day months) that the Limited Partner held such Units and the
denominator of which is 90.
ARTICLE 6
ALLOCATIONS
Section 6.1 Timing and Amount of Allocations of Net Income and Net
Loss. Net Income and Net Loss of the Partnership shall be determined and
allocated with respect to each Partnership taxable year of the Partnership as of
the end of each such year. Subject to the other provisions of this Article 6, an
allocation to a Partner of a share of Net Income or Net Loss shall be treated as
an allocation of the same share of each item of income, gain, loss or deduction
that is taken into account in computing Net Income or Net Loss.
26
<PAGE>
Section 6.2 General Allocations. Except as otherwise provided herein,
Net Income and Net Loss for any Partnership taxable year or other applicable
period of the Partnership shall be allocated in the following order and
priority:
A. First, subject to Section 6.2.D, Net Income (or, if necessary,
Partnership items of income and gain) shall be allocated to the Managing General
Partner in an amount equal to the excess of (1) the amount of Net Cash Flow
distributed to the Managing General Partner pursuant to subsections (i) and (ii)
of Section 5.1 for the current and all prior Partnership taxable years over (2)
the amount of Net Income (or Partnership items of income and gain) previously
allocated to the Managing General Partner pursuant to this Section 6.2.A (and
Section 6.2.D to the extent that Section 6.2.D operates to allocate an amount to
the Managing General Partner in respect of an increase in the liquidation
preference for the Convertible Preferred Shares under the Managing General
Partner's Articles of Incorporation due to accrued but unpaid dividends on the
Convertible Preferred Shares).
B. Second, subject to Section 6.2.D (and to the extent not already
allocated pursuant to Section 6.2.D in respect of an increase in the Convertible
Preferred Units Redemption Amount due to accrued but unpaid dividends on the
Convertible Preferred Shares), for any Partnership taxable year ending on or
after a date in which Convertible Preferred Units are redeemed, Net Income (or
Net Loss), or, if necessary, Partnership items of income, gain, loss and
deduction thereof, shall be allocated to the Managing General Partner in an
amount equal to the excess (or deficit) of (1) the sum of the Convertible
Preferred Unit Redemption Amount for Convertible Preferred Units that have been
or are being redeemed during the Partnership taxable year over (2) the product
of $20.00 times the number of such Convertible Preferred Units.
C. Third, subject to Sections 6.2.D and 6.2.E, the remaining Net Income
or Net Loss, if any, shall be allocated to each of the Partners in the following
order and priority:
(i) The remaining Net Income, if any, shall be allocated among
the Partners holding Common Units in proportion to, and to the extent of, the
aggregate amounts of Net Cash Flow distributed in respect of the Partners'
Common Units pursuant to subsection (iii) of Section 5.1 (including those
amounts of Net Cash Flow distributed within the fiscal year or other applicable
period under Section 5.5 that are in respect of subsection (iii) of Section 5.1,
only if either (A) such Net Cash Flow is distributed on or prior to the date on
which the Cash Purchase Price is paid or (B) the Partner to whom such Net Cash
Flow is distributed otherwise continues to own one or more Common Units on the
date such distribution is made),
(ii) Upon a Liquidating Capital Event, any remaining Net
Income or Net Loss (or remaining Partnership items of income, gain, loss and
deduction thereof), computed by including the Net Income or Net Loss resulting
from such Liquidating Capital Event, shall be allocated among the Partners
holding Common Units to the extent possible, until each Limited Partner has a
Capital Account balance equal to (and the Managing General Partner has a Capital
Account balance equal to the sum of the Preferred Sum (defined in Section 6.2.D)
plus an additional amount equal to) the pro rata portion, based on the number of
Common Units held by each Partner, of the net positive
27
<PAGE>
sum of the Capital Account balances for all Partners (determined after taking
into account the allocations required under Section 6.6) less the Preferred Sum.
(iii) Any remaining Net Income or Net Loss shall be allocated
to the Partners holding Common Units pro rata in accordance with their
respective Common Units.
D. Notwithstanding Sections 6.2.A, B and C the Managing General Partner
shall allocate Net Income or Net Loss (or Partnership items of income, gain,
loss and deduction thereof) among the Partners to the extent possible such that
the Minimum Gain Capital Account balance, as of the end of the Partnership
taxable year or other applicable period for which such allocations are made, is
not less than the sum (the "Preferred Sum") of the product of the number of
Convertible Preferred Units held by the Managing General Partner multiplied by
the liquidation preference for a share of Convertible Preferred Shares pursuant
to the Managing General Partner's Articles of Incorporation.
E. In the event allocations are made pursuant to Section 6.2.D
("Reallocated Income" and "Reallocated Loss") in prior Partnership taxable years
or other applicable periods, any Net Income or Net Loss (or Partnership items of
income, gain, loss and deduction thereof) that would otherwise have been
allocated pursuant to subsection (iii) of Section 6.2.C shall be allocated among
the Partners so that, to the extent possible, the net amount of such allocations
of Net Income or Net Loss (or Partnership items of income, gain, loss or
deduction thereof) under subsection (iii) of Section 6.2.C and the allocations
of Reallocated Income and Reallocated Loss to each Partner shall be equal to the
net amount that would have been allocated to each such Partner if the
allocations of Reallocated Income and Reallocated Loss had not occurred;
provided, however, that allocations under this Section 6.2.E shall not be made
to the extent such allocations would cause the Minimum Gain Capital Account
balance to be less than the Preferred Sum.
Section 6.3 Allocations to Reflect Issuance of Additional Partnership
Interests. In the event that the Partnership issues additional Partnership
Interests to a General Partner or any Additional Limited Partner pursuant to
Section 4.3 or 4.4 hereof, the Managing General Partner shall make such
revisions to this Article 6 as it determines are necessary to reflect the terms
of the issuance of such additional Partnership Interests, including making
preferential allocations to certain classes of Partnership Interests.
Section 6.4 Guaranteed Payments. To the extent that a General Partner
receives any reimbursement of REIT Expenses pursuant to Section 5.1, such
General Partner shall be allocated items of income and gain equal to the amount
of such payment.
Section 6.5 Allocations with Respect to Transferred Interests. Unless
otherwise required by the Code and/or the Regulations or as agreed to and by the
Managing General Partner, in its sole and absolute discretion, any Net Income or
Net Loss allocable to a Partnership Interest which has been transferred during
any year shall be allocated among the Persons who were holders of such
Partnership Interest during such year in the manner described in Section 11.6
below.
28
<PAGE>
Section 6.6 Additional Allocation Provisions.
Notwithstanding the foregoing provisions of this Article 6 the
following special allocations shall be made in the following order and priority:
A. Regulatory Allocations.
(1) Minimum Gain Chargeback. Except as otherwise provided in
Regulations Section 1.704-2(f), notwithstanding the provisions of Section 6.2
hereof, or any other provision of this Article 6, if there is a net decrease in
Partnership Minimum Gain during any Partnership taxable year, each Partner shall
be specially allocated items of Partnership income and gain for such year (and,
if necessary, subsequent Partnership taxable years) in an amount equal to such
Partner's share of the net decrease in Partnership Minimum Gain, as determined
under Regulations Section 1.704-2(g). Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Partner pursuant thereto. The items to be allocated shall be
determined in accordance with Regulations Sections 1.704-2(f)(6) and
1.704-2(j)(2). This Section 6.6.A(1) is intended to qualify as a "minimum gain
chargeback" within the meaning of Regulation Section 1.704-2(f) which shall be
controlling in the event of a conflict between such Regulation and this Section
6.6.A(1).
(2) Partner Minimum Gain Chargeback. Except as otherwise
provided in Regulations Section 1.704-2(i)(4), and notwithstanding the
provisions of Section 6.2 hereof, or any other provision of this Article 6
(except Section 6.6.A(1) hereof), if there is a net decrease in Partner Minimum
Gain attributable to a Partner Nonrecourse Debt during any Partnership taxable
year, each Partner who has a share of the Partner Minimum Gain attributable to
such Partner Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(5), shall be specially allocated items of Partnership income and gain
for such year (and, if necessary, subsequent Partnership taxable years) in an
amount equal to such Partner's share of the net decrease in Partner Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in accordance with
Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence
shall be made in proportion to the respective amounts required to be allocated
to each General Partner and Limited Partner pursuant thereto. The items to be so
allocated shall be determined in accordance with Regulations Sections
1.704-2(i)(4) and 1.704-2(j)(2). This Section 6.6.A(2) is intended to qualify as
a "chargeback of partner nonrecourse debt minimum gain" within the meaning of
Regulation Section 1.704-2(i) which shall be controlling in the event of a
conflict between such Regulation and this Section 6.6.A(2).
(3) Nonrecourse Deductions and Partner Nonrecourse Deductions.
Any Nonrecourse Deductions for any Partnership taxable year generally shall be
allocated to the Partners in accordance with their Partnership Interests;
provided, however, that the Managing General Partner may allocate Nonrecourse
Deductions in a different manner so long as such allocation is reasonably
consistent with allocations of some other significant Partnership item
attributable to the Property securing the relevant Nonrecourse Liability that
have substantial economic effect in accordance with Regulations Section
1.702-2(e)(2). Any Partner Nonrecourse Deductions for any Partnership taxable
year shall be specially allocated to the Partner(s) who bears the economic risk
of loss with respect
29
<PAGE>
to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are
attributable, in accordance with Regulations Sections 1.704-2(b)(4) and
1.704-2(i).
(4) Qualified Income Offset. If any Partner unexpectedly
receives an adjustment, allocation or distribution described in Regulations
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership income and
gain shall be allocated, in accordance with Regulations Section
1.704-1(b)(2)(ii)(d), to the Partner in an amount and manner sufficient to
eliminate, to the extent required by such Regulations, the Adjusted Capital
Account Deficit of the Partner as quickly as possible; provided, that an
allocation pursuant to this Section 6.6.A(4) shall be made if and only to the
extent that such Partner would have an Adjusted Capital Account Deficit after
all other allocations provided in this Article 6 have been tentatively made as
if this Section 6.6.A(4) were not in the Agreement. It is intended that this
Section 6.6.A(4) qualify and be construed as a "qualified income offset" within
the meaning of Regulations 1.704-1(b)(2)(ii)(d), which shall be controlling in
the event of a conflict between such Regulations and this Section 6.6.A(4).
(5) Gross Income Allocation. In the event any Partner has a
deficit Capital Account at the end of any Partnership taxable year which is in
excess of the sum of (a) the amount (if any) such Partner is obligated to
restore to the Partnership, and (b) the amount such Partner is deemed to be
obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the
penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5),
each such Partner shall be specially allocated items of Partnership income and
gain, pro rata, in proportion to the amount of such excess Capital Account
deficit, as quickly as possible until no Partner has such an excess Capital
Account deficit; provided, that an allocation pursuant to this Section 6.6.A(5)
shall be made if and only to the extent that such Partner would have an excess
Capital Account deficit after all other allocations provided in this Article 6
have been tentatively made as if this Section 6.6.A(5) and Section 6.6.A(4)
hereof were not in the Agreement.
(6) Limitation on Allocation of Loss. No items of loss or
deduction will be allocated to any Partner to the extent that any such
allocation would cause the Partner to have an, or increase the amount of an
existing, Adjusted Capital Account Deficit at the end of any Partnership taxable
year. All items of loss or deduction in excess of the limitation set forth in
this Section 6.6.A(6) will be allocated among such other Partners, which do not
have Adjusted Capital Account Deficit balances, pro rata, in proportion to their
Partnership Interests, until no Partner may be allocated any such items of loss
or deduction without having or increasing an Adjusted Capital Account Deficit.
Thereafter, any remaining items of loss or deduction will be allocated to the
Managing General Partner.
(7) Section 754 Adjustment. To the extent an adjustment to the
adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or
Code Section 743(b) is required, pursuant to Regulations Section
1.704-1(b)(2)(iv)(m)(2) or Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be
taken into account in determining Capital Accounts as the result of a
distribution to a Partner in complete liquidation of his interest in the
Partnership, the amount of such adjustment to the Capital Accounts shall be
treated as an item of gain (if the adjustment increases the basis of the asset)
or loss (if the adjustment decreases such basis) and such gain or loss shall be
specially allocated to the Partners in accordance with their interests in the
Partnership in the event
30
<PAGE>
that Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Partners to
whom such distribution was made in the event that Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies.
(8) Curative Allocation. The allocations set forth in Sections
6.6.A(1), (2), (3), (4), (5), (6) and (7) hereof (the "Regulatory Allocations")
are intended to comply with certain regulatory requirements, including the
requirements of Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the
provisions of Sections 6.1 and 6.2 hereof, the Regulatory Allocations shall be
taken into account in allocating other items of income, gain, loss and deduction
among the Partners so that, to the extent possible, the net amount of such
allocations of other items and the Regulatory Allocations to each Partner shall
be equal to the net amount that would have been allocated to each such Partner
if the Regulatory Allocations had not occurred.
B. Nonrecourse Liability Allocation. For purposes of Regulations
Section 1.752-3(a)(3), the Partners agree that Nonrecourse Liabilities of the
Partnership in excess of the amount of Partnership Minimum Gain, shall be
allocated in each Partnership taxable year in accordance with a Permitted Debt
Allocation Method.
C. Distributions of Proceeds from Nonrecourse Liabilities. To the
extent permitted by Sections 1.704-2(h)(3) and 1.704-2(i)(6) of the Regulations,
the Partners shall endeavor to treat distributions of Net Cash Flow as having
been made from the proceeds of a Nonrecourse Liability or a Partner Nonrecourse
Debt only to the extent that such distribution would not cause or increase an
Adjusted Capital Account Deficit for any Partner.
D. Interpretation. The foregoing provisions of this Section 6.6 are
intended to comply with Treasury Regulation Sections 1.704-1(b) and 1.704-2 and
shall be interpreted consistently with this intention. Any terms used in such
provisions that are not specifically defined in this Agreement shall have the
meaning, if any, given such terms in the Regulations cited above.
Section 6.7 Tax Allocations.
A. In General. Except as otherwise provided in this Section 6.7, for
income tax purposes each item of income, gain, loss and deduction (collectively,
"Tax Items") shall be allocated among the Partners in the same manner as its
correlative item of "book" income, gain, loss or deduction is allocated pursuant
to Sections 6.2 and 6.6 hereof.
B. Allocations Respecting Section 704(c) Revaluations. Notwithstanding
Section 6.7.A hereof, Tax Items with respect to Partnership property that is
contributed to the Partnership by a Partner shall be shared among the Partners
for income tax purposes pursuant to Regulations promulgated under Section 704(c)
of the Code, so as to take into account the variation, if any, between the
adjusted tax basis of the property to the Partnership and its initial Gross
Asset Value. With respect to Partnership property that is initially contributed
to the Partnership upon its formation pursuant to Section 4.1 hereof, such
variation between basis and initial Gross Asset Value shall be taken into
account under the "traditional method" as described in Regulations Section
1.704-3(b). With respect to properties subsequently contributed to the
Partnership, the Partnership shall account for such variation under any method
approved under Section 704(c) of the Code and the applicable
31
<PAGE>
regulations as chosen by the Managing General Partner. In the event the Gross
Asset Value of any Partnership asset is adjusted pursuant to subparagraph (b) of
the definition of Gross Asset Value (provided in Article 1 of this Agreement),
subsequent allocations of Tax Items with respect to such asset shall take
account of the variation, if any, between the adjusted basis of such asset and
its Gross Asset Value in the same manner as under Section 704(c) of the Code and
the applicable regulations consistent with the requirements of Regulations
Section 1.704-1(b)(2)(iv)(g) using any method approved under 704(c) of the Code
and the applicable regulations as chosen by the Managing General Partner.
C. Alternative Minimum Tax. If any taxable item of income or gain is
computed differently from the taxable item of income or gain which results for
purposes of the alternative minimum tax, then to the extent possible, without
changing the overall allocations of items for purposes of either the Partners'
Capital Accounts or the regular federal income tax (i) each Partner will be
allocated items of taxable income or gain for alternative minimum tax purposes
taking into account the prior allocations of originating tax preferences or
alternative minimum tax adjustments to such Partner (and its predecessors) and
(ii) other Partnership items of income or gain for alternative minimum tax
purposes of the same character that would have been recognized, but for the
originating tax preferences or alternative minimum tax adjustments, will be
allocated away from those Partners that are allocated amounts pursuant to clause
(i) so that, to the extent possible, the other Partners are allocated the same
amount, and type, of alternative minimum tax income and gain that would have
been allocated to them had the originating tax preferences or alternative
minimum tax adjustments not occurred.
D. Recapture Gain. If any portion of gain recognized from the
disposition of property by the Partnership represents the "recapture" of
previously allocated deductions by virtue of the application of Code Section
1245 or 1250 ("Recapture Gain"), such Recapture Gain will be allocated as
follows:
First, to the Partners, pro rata, in proportion to the lesser of each
Partner's (i) allocable share of the total gain recognized from the disposition
of such Partnership property and (ii) share of depreciation or amortization with
respect to such property (as determined under Regulations Sections
1.1245-1(e)(2) and (3)), until each such Partner has been allocated Recapture
Gain equal to such lesser amount; and
Second, the balance of Recapture Gain will be allocated among the
Partners whose allocable shares of total gain exceed their shares of
depreciation or amortization with respect to such property (as determined under
Regulations Section 1.1245-1(e)(2) and (3)), in proportion to their shares of
total gain (including Recapture Gain) from the disposition of such property;
provided, however, that no Partner will be allocated Recapture Gain under this
Section 6.7.D in excess of the total gain allocated to such Partner from such
disposition.
32
<PAGE>
ARTICLE 7
MANAGEMENT AND OPERATION OF BUSINESS
Section 7.1 Management.
A. Except as otherwise expressly provided in this Agreement or as
required by applicable law, all management powers over the business and affairs
of the Partnership are fully, exclusively and completely vested in the Managing
General Partner, and no other Partner shall have any right to transact business
for, participate in the management or decisions of, or exercise control or
management power over the business and affairs of, the Partnership. The Managing
General Partner may not be removed by the other Partners with or without cause,
except with the consent of the Managing General Partner. In addition to the
powers now or hereafter granted a general partner of a limited partnership under
the Act and other applicable law or which are granted to the Managing General
Partner under any other provision of this Agreement, the Managing General
Partner, subject to the other provisions hereof including Section 7.3, shall
have full power and authority to do all things deemed necessary or desirable by
it to conduct the business of the Partnership, to exercise all powers set forth
in Section 3.2 hereof and to effectuate the purposes set forth in Section 3.1
hereof, including, without limitation:
(1) the making of any expenditures, the lending or borrowing
of money (including, without limitation, making prepayments on loans and
borrowing money to permit the Partnership to make distributions to its Partners
in such amounts as will permit the Managing General Partner (so long as the
Managing General Partner has determined to qualify as a REIT) to avoid the
payment of any federal income tax (including, for this purpose, any excise tax
pursuant to Section 4981 of the Code) and to make distributions to its
shareholders sufficient to permit the Managing General Partner to maintain REIT
status), the assumption or guarantee of, or other contracting for, indebtedness
and other liabilities, the issuance of evidences of indebtedness (including the
securing of same by mortgage, deed of trust or other lien or encumbrance on all
or any of the Partnership's assets) and the incurring of any obligations it
deems necessary for the conduct of the activities of the Partnership;
(2) the making of tax, regulatory and other filings, or
rendering of periodic or other reports to governmental or other agencies having
jurisdiction over the business or assets of the Partnership, the registration of
any class of securities of the Partnership under the Securities Exchange Act of
1934, as amended, and the listing of any debt securities of the Partnership on
any exchange;
(3) the acquisition, disposition, mortgage, pledge,
encumbrance, hypothecation or exchange of any assets of the Partnership or the
merger or other combination of the Partnership with or into another entity;
(4) the mortgage, pledge, encumbrance or hypothecation of all
or any assets of the Partnership, and the use of the assets of the Partnership
(including, without limitation, cash on hand) for any purpose consistent with
the terms of this Agreement and on any terms it sees fit, including, without
limitation, the financing of the conduct or the operations of the Managing
General Partner
33
<PAGE>
or the Partnership, the lending of funds to other Persons (including, without
limitation, the Managing General Partner (if necessary to permit the financing
or capitalization of a subsidiary of the Managing General Partner or the
Partnership) and any Subsidiaries of the Partnership) and the repayment of
obligations of the Partnership, any of its Subsidiaries and any other Person in
which it has an equity investment;
(5) the negotiation, execution, and performance of any
contracts, leases, conveyances or other instruments that the Managing General
Partner considers useful or necessary to the conduct of the Partnership's
operations or the implementation of the Managing General Partner's powers under
this Agreement;
(6) the distribution of Partnership Net Cash Flow or other
Partnership assets in accordance with this Agreement;
(7) the selection and dismissal of employees of the
Partnership (including, without limitation, employees having titles such as
"president," "vice president," "secretary" and "treasurer"), and agents, outside
attorneys, accountants, consultants and contractors of the Partnership, the
determination of their compensation and other terms of employment or hiring,
including waivers of conflicts of interest and the payment of their expenses and
compensation out of the Partnership's assets;
(8) the maintenance of such insurance for the benefit of the
Partnership and the Partners as it deems necessary or appropriate;
(9) the formation of, or acquisition of an interest in, and
the contribution of property to, any further limited or general partnerships,
joint ventures or other relationships that it deems desirable (including,
without limitation, the acquisition of interests in, and the contributions of
property to, any Subsidiary and any other Person in which the Partnership has an
equity investment from time to time); provided, that as long as the Managing
General Partner has determined to continue to qualify as a REIT, the Partnership
may not engage in any such formation, acquisition or contribution that would
cause the Managing General Partner to fail to qualify as a REIT;
(10) the control of any matters affecting the rights and
obligations of the Partnership, including the conduct of litigation and the
incurring of legal expense and the settlement of claims and litigation, and the
indemnification of any Person against liabilities and contingencies to the
extent permitted by law;
(11) the undertaking of any action in connection with the
Partnership's direct or indirect investment in any Person (including, without
limitation, contributing or loaning Partnership funds to, incurring indebtedness
on behalf of, or guarantying the obligations of any such Persons);
(12) subject to the other provisions in this Agreement, the
determination of the fair market value of any Partnership property distributed
in kind using such reasonable method of valuation as it may adopt; provided,
that such methods are otherwise consistent with requirements of this Agreement;
34
<PAGE>
(13) the management, operation, leasing, landscaping, repair,
alteration, demolition or improvement of any real property or improvements owned
by the Partnership or any Subsidiary of the Partnership or by any other Person
in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and
other assets of the Partnership;
(15) the collection and receipt of revenues and income of the
Partnership;
(16) the exercise, directly or indirectly through any
attorney-in-fact acting under a general or limited power of attorney, of any
right, including the right to vote, appurtenant to any asset or investment held
by the Partnership;
(17) the exercise of any of the powers of the Managing General
Partner enumerated in this Agreement on behalf of or in connection with any
Subsidiary of the Partnership or any other Person in which the Partnership has a
direct or indirect interest, or jointly with any such Subsidiary or other
Person;
(18) the exercise of any of the powers of the Managing General
Partner enumerated in this Agreement on behalf of any Person, pursuant to
contractual or other arrangements between the Partnership and such Person;
(19) the making, execution and delivery of any and all deeds,
leases, notes, deeds to secure debt, mortgages, deeds of trust, security
agreements, conveyances, contracts, guarantees, warranties, indemnities,
waivers, releases or legal instruments or other agreements in writing necessary
or appropriate in the judgment of the Managing General Partner for the
accomplishment of any of the powers of the Managing General Partner enumerated
in or granted by this Agreement;
(20) the amendment and restatement of Exhibit A to reflect
accurately at all times the Capital Contributions and Units ownership of the
Partners as the same are adjusted from time to time to the extent necessary to
reflect redemptions, conversions, Capital Contributions, the issuance of Units
(including Convertible Preferred Units), the admission of any Additional Limited
Partner or any Substituted Limited Partner or otherwise, which amendment and
restatement, notwithstanding anything in this Agreement to the contrary, shall
not be deemed an amendment of this Agreement, as long as the matter or event
being reflected in Exhibit A otherwise is authorized by this Agreement;
(21) the maintenance of the Partnership's books and records;
and
(22) the preparation and delivery, or causing to be prepared
and delivered by the Partnership's accountants, all financial and other reports
with respect to the operations of the Partnership, and the preparation and
filing of all Federal and state tax returns and reports.
35
<PAGE>
B. Each of the Partners agrees that the Managing General Partner is
authorized to execute, deliver and perform the above-mentioned agreements and
transactions on behalf of the Partnership without any further act, approval or
vote of the Partners, notwithstanding any other provisions of this Agreement
(except as provided in Section 7.3 hereof), the Act or any applicable law, rule
or regulation; provided, that the Partners agree that the Partnership shall not
take, or refrain from taking, any action which, in the judgment of the Managing
General Partner, in its sole and absolute discretion, (A) could adversely affect
the ability of the Managing General Partner to continue to qualify as a REIT,
(B) could subject the Managing General Partner to any taxes under Section 857 or
Section 4981 of the Code, or (C) could violate any law or regulation of any
governmental body or agency having jurisdiction over the Managing General
Partner or its securities, unless any such action (or inaction) under (A), (B)
or (C) above shall have been specifically consented to by the Managing General
Partner in writing. The execution, delivery or performance by the Managing
General Partner or the Partnership of any agreement authorized or permitted
under this Agreement shall not constitute a breach by the Managing General
Partner of any duty that the Managing General Partner may owe the Partnership,
any other General Partner or the Limited Partners or any other Persons under
this Agreement or of any duty stated or implied by law or equity.
Except as otherwise provided in this Agreement, no Partner shall have
any authority to act for, bind, commit or assume any obligation or
responsibility on behalf of the Partnership, its properties or any other
Partner. No Partner, in its capacity as a Partner under this Agreement, shall be
responsible or liable for any indebtedness or obligation of another Partner, nor
shall the Partnership be responsible or liable for any indebtedness or
obligation of any Partner, incurred either before or after the execution and
delivery of this Agreement by such Partner, except as to those responsibilities,
liabilities, indebtedness or obligations incurred pursuant to and as limited by
the terms of this Agreement and the Act.
C. At all times from and after the date hereof, the Managing General
Partner may cause the Partnership to obtain and maintain (1) casualty, liability
and other insurance on the properties of the Partnership and (2) liability
insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the Managing General
Partner may cause the Partnership to establish and maintain working capital and
other reserves in such amounts as the Managing General Partner, in its sole and
absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the Managing
General Partner may, but shall be under no obligation to, take into account the
tax consequences to any Partner (including the Managing General Partner) of any
action taken by the Managing General Partner. The Managing General Partner, any
other General Partner and the Partnership shall not have liability to a Limited
Partner under any circumstances as a result of an income tax liability incurred
by such Limited Partner as a result of an action (or inaction) by the Managing
General Partner pursuant to its authority under this Agreement, except as may be
otherwise provided in any separate agreement between the Managing General
Partner or the Partnership and any Limited Partner; provided, that any such
separate agreement which subjects a General Partner or the Partnership to
liability to a
36
<PAGE>
Limited Partner under any circumstances as a result of an income tax liability
incurred by such Limited Partner as a result of an action (or inaction) by the
Partnership or the Managing General Partner pursuant to its authority under this
Agreement, must be approved by such General Partner or the Partnership. The
Partners expressly acknowledge that, in any action undertaken by the Managing
General Partner or the Partnership in accordance with the terms of this
Agreement, the Managing General Partner is acting for the benefit of the
Partnership, any other General Partners, the Limited Partners, itself, and the
Managing General Partner's shareholders, collectively.
F. Except as otherwise provided herein, to the extent the duties of the
Managing General Partner require expenditures of funds to be paid to third
parties, the Managing General Partner shall not have any obligations hereunder
except to the extent that Partnership funds are reasonably available to it for
the performance of such duties, and nothing herein contained shall be deemed to
authorize or require the Managing General Partner, in its capacity as such, to
expend its individual funds for payment to third parties or to undertake any
individual liability or obligation on behalf of the Partnership.
Section 7.2 Certificate of Limited Partnership. To the extent that such
action is determined by the Managing General Partner to be reasonable and
necessary or appropriate, the Managing General Partner shall file amendments to
and restatements of the Certificate and do all the things to maintain the
Partnership as a limited partnership (or a partnership in which the limited
partners have limited liability) under the laws of the State of Delaware and to
maintain the Partnership's qualification to do business as a foreign limited
partnership in each other state, the District of Columbia or other jurisdiction,
in which the Partnership may elect to do business or own property. Subject to
the terms of Section 8.5.A(4) hereof, the Managing General Partner shall not be
required, before or after filing, to deliver or mail a copy of the Certificate
or any amendment thereto to any Limited Partner. The Managing General Partner
shall use all reasonable efforts to cause to be filed such other certificates or
documents as may be reasonable and necessary or appropriate for the formation,
continuation, qualification and operation of a limited partnership (or a
partnership in which the limited partners have limited liability) in the State
of Delaware, and any other state, or the District of Columbia or other
jurisdiction, in which the Partnership may elect to do business or own property.
Section 7.3 Restrictions on Managing General Partner's Authority.
A. The Managing General Partner may not take any action in
contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on
the ordinary business of the Partnership, except as otherwise provided in this
Agreement;
(2) possess Partnership property, or assign any rights in
specific Partnership property, for other than a Partnership purpose except as
otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided
in this Agreement;
37
<PAGE>
(4) perform any act that would subject a Limited Partner to
liability as a general partner in any jurisdiction or any other liability except
as provided herein or under the Act; or
(5) enter into any contract, mortgage, loan or other agreement
that prohibits or restricts, or has the effect of prohibiting or restricting,
the ability of a Partner to exercise in full its rights under Section 8.6
hereof, except with the written consent of such Partner.
B. The Managing General Partner shall not, without the prior Consent of
the Partners, undertake, on behalf of the Partnership, any of the following
actions or enter into any transaction which would have the effect of such
transactions:
(1) except as provided in Sections 7.1(A) and 7.3.D hereof,
amend, modify or terminate this Agreement other than to reflect the admission,
substitution, termination or withdrawal of partners pursuant to Article 12
hereof;
(2) make a general assignment for the benefit of creditors or
appoint or acquiesce in the appointment of a custodian, receiver or trustee for
all or any part of the assets of the Partnership; or
(3) institute any proceeding for bankruptcy on behalf of the
Partnership;
(4) approve or acquiesce to the transfer of the Partnership
Interest of the Managing General Partner to any Person other than the
Partnership;
(5) admit into the Partnership any additional or substitute
General Partners; or
(6) except as provided in Section 7.9, take title to any
property of the Partnership other than in the name of the Partnership or a
Property Partnership.
C. If the aggregate Limited Partner Interests of all Limited Partners
represents 10.0% or more of the aggregate Partnership Interests, the Managing
General Partner shall not, without the prior Consent of the Limited Partners,
undertake, on behalf of the Partnership, to dissolve the Partnership.
D. Notwithstanding Sections 7.3.B and 7.3.C hereof, but subject to
Section 7.3.E hereof, the Managing General Partner shall have the power, without
the Consent of the Limited Partners, to amend this Agreement as may be required
to facilitate or implement any of the following purposes:
(1) to add to the obligations of the Managing General Partner
or surrender any right or power granted to the Managing General Partner or any
Affiliate of the Managing General Partner for the benefit of the other Partners;
38
<PAGE>
(2) to reflect the issuance of additional Partnership
Interests pursuant to Sections 4.3.C and 4.4 hereof or the admission,
substitution, termination, or withdrawal of Partners in accordance with this
Agreement;
(3) to reflect a change that is of an inconsequential nature
and does not adversely affect the Partners in any material respect, or to cure
any ambiguity in, correct or supplement any provision in, or make other changes
with respect to matters arising under, this Agreement that will not be
inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions, or guidelines
contained in any order, directive, opinion, ruling or regulation of a federal or
state agency or contained in federal or state law;
(5) to reflect such changes as are reasonably necessary for
the Managing General Partner to maintain its status as a REIT, including changes
which may be necessitated due to a change in applicable law (or an authoritative
interpretation thereof) or a ruling of the IRS; and
(6) to modify, as set forth in the definition of "Capital
Account," the manner in which Capital Accounts are computed.
The Managing General Partner will provide notice to the other Partners when any
action under this Section 7.3.D is taken.
E. Notwithstanding Sections 7.3.B, 7.3.C, and 7.3.D hereof, this
Agreement shall not be amended, and no action may be taken by the Managing
General Partner, without the Consent of each Partner adversely affected if such
amendment or action would (1) convert a Limited Partner's interest in the
Partnership into a general partner's interest (except as the result of the
Managing General Partner acquiring such interest), (2) modify the limited
liability of a Limited Partner, (3) alter rights of the Partner to receive
distributions pursuant to Article 5 or Section 13.2.A(4) hereof, or the
allocations specified in Article 6 (except as permitted pursuant to Section 4.3
and Section 7.3.D(2) hereof), (4) alter or modify the rights set forth in
Section 8.6 hereof, and related definitions herein, (5) reduce the percentage of
Partners required to consent to any matter in this Agreement or (6) amend this
Section 7.3.E. Further, no amendment may alter the restrictions on the Managing
General Partner's authority set forth elsewhere in this Section 7.3 without the
Consent specified in such section. In addition, notwithstanding Sections 7.3.B,
7.3.C and 7.3.D hereof, Section 11.2 hereof shall not be amended, and no action
in contravention of Section 11.2 hereof shall be taken, without the Consent of
the Limited Partners.
F. Notwithstanding Section 7.3.B, no General Partner may, without the
prior written consent of each of the other General Partners, undertake, except
as set forth in the Put Option Agreement, any of the following actions or enter
into any transaction which would have the effect of such transactions:
39
<PAGE>
(1) approve or acquiesce to the transfer of all or any portion
of the General Partner Interest (whether by sale, statutory merger or
consolidation, liquidation or otherwise) of such General Partner to any Person
other than the Partnership; or
(2) admit into the Partnership any additional or
substitute General Partners; or
(3) withdraw from the Partnership or assign all or any part of
its General Partner Interest in the Partnership.
Section 7.4 Reimbursement of the Managing General Partner.
A. Except as provided in this Section 7.4 and elsewhere in this
Agreement (including the provisions of Articles 5 and 6 hereof regarding
distributions, payments and allocations to which it may be entitled), the
Managing General Partner shall not be compensated for its services as general
partner of the Partnership.
B. Subject to Article 15 hereof, the Partnership shall assume and pay
when due, or reimburse the Managing General Partner for, on a monthly basis, or
such other basis as the Managing General Partner may determine in its sole and
absolute discretion, all costs and expenses it incurs. The Partnership shall
also assume, and pay when due, all Administrative Expenses other than REIT
Expenses, but only to the extent not paid or payable by the Managing General
Partner from cash distributions received by the Managing General Partner
directly from any Property Partnership. The Managing General Partner shall use
any cash distributions which it receives directly from any Property Partnerships
on account of any interest in the Property Partnership which it holds directly
(as opposed to through the Partnership) to pay REIT Expenses. The Partners
acknowledge that the Managing General Partner's sole business is the ownership
of interests in and operation of the Partnership and that such expenses are
incurred for the benefit of the Partnership; provided, that the Managing General
Partner shall not be reimbursed for expenses it incurs relating to the
organization of the Partnership and the Managing General Partner or the initial
public offering or subsequent public offerings of Common Shares, other shares of
beneficial interest or Funding Debt by the Managing General Partner, but shall
be reimbursed for expenses it incurs with respect to any other issuance of
additional Partnership Interests pursuant to the provisions hereof. Any amounts
paid pursuant to this Section 7.4 shall be in addition to, but not duplicative
of, any amounts paid to the Managing General Partner as indemnification pursuant
to Section 7.6 hereof.
C. Any reimbursements to the Managing General Partner pursuant to this
Section 7.4 which constitute gross income of the Managing General Partner shall
be reported as distributions for purposes of computing the Partners' Capital
Accounts, and shall not be reported as guaranteed payments within the meaning of
Section 707(c) of the Code.
Section 7.5 Contracts with Affiliates.
A. The Partnership may lend or contribute to Persons in which the
Partnership has an equity investment, and such Persons may borrow funds from the
Partnership, on terms and
40
<PAGE>
conditions established in the sole and absolute discretion of the Managing
General Partner. The foregoing authority shall not create any right or benefit
in favor of any Person.
B. The Partnership may transfer assets to joint ventures, other
partnerships, corporations or other business entities in which it is or thereby
becomes a participant upon such terms and subject to such conditions consistent
with this Agreement and applicable law.
C. The Managing General Partner, in its sole and absolute discretion
and without the approval of the Partners, may propose and adopt on behalf of the
Partnership employee benefit plans funded by the Partnership for the benefit of
employees of the Managing General Partner, the Partnership, Subsidiaries of the
Partnership or any Affiliate of any of them in respect of services performed,
directly or indirectly, for the benefit of the Partnership, the Managing General
Partner, or any of the Partnership's Subsidiaries. The Managing General Partner
also is expressly authorized to cause the Partnership to issue to it Units
corresponding to Shares issued by the Managing General Partner pursuant to its
Share Incentive Plan or any similar or successor plan and to repurchase such
Units from the Managing General Partner to the extent necessary to permit the
Managing General Partner to repurchase such Shares in accordance with such plan.
D. The Managing General Partner is expressly authorized to enter into,
in the name and on behalf of the Partnership, a right of first opportunity
arrangement and other conflict avoidance agreements with various Affiliates of
the Partnership and the Managing General Partner, on such terms as the Managing
General Partner, in its sole and absolute discretion, believes are advisable.
E. Except as expressly permitted by this Agreement and except for those
transactions occurring on the date hereof in connection with the formation of
the Partnership and the Company, no General Partner nor any Affiliate of a
General Partner shall sell, transfer or convey any property to, or purchase any
property from, the Partnership, directly or indirectly, unless the Managing
General Partner determines in good faith that such transactions are fair and
reasonable.
Section 7.6 Indemnification.
A. The Partnership shall indemnify an Indemnitee from and against any
and all losses, claims, damages, liabilities, joint or several, expenses
(including reasonable legal fees and expenses), judgments, fines, settlements,
and other amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative, that relate to
the operations of the Partnership as set forth in this Agreement in which any
Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise, and the Company shall indemnify The Nardi Group, L.L.C. from and
against claims, losses, damages, liabilities, reasonable expenses, judgments,
fines and settlements relating to any environmental liability with regard to the
properties owned by the Company, the Partnership or affiliates thereof and which
were not contributed to the Partnership or its affiliates by The Nardi Group,
L.L.C. or any of its affiliates unless it is established that: (1) the act or
omission of the Indemnitee (or The Nardi Group, L.L.C.) was material to the
matter giving rise to the claim, demand, action, suit or proceeding and either
was committed in bad faith by the Indemnitee (or The Nardi Group, L.L.C.) or was
the result of active and deliberate dishonesty of the Indemnitee (or The Nardi
Group, L.L.C.); (2) the Indemnitee (or The Nardi Group,
41
<PAGE>
L.L.C.) actually received an improper personal benefit in money, property or
services; or (3) in the case of any criminal proceeding, the Indemnitee had
reasonable cause to believe that the act or omission was unlawful. Without
limitation, the foregoing indemnity shall extend to any liability of any
Indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of
the Partnership or any Subsidiary of the Partnership (including, without
limitation, any indebtedness which the Partnership or any Subsidiary of the
Partnership has assumed or taken subject to), and the Managing General Partner
is hereby authorized and empowered, on behalf of the Partnership, to enter into
one or more indemnity agreements consistent with the provisions of this Section
7.6 in favor of any Indemnitee having or potentially having liability for any
such indebtedness. The termination of any proceeding by judgment, order or
settlement does not create a presumption that the Indemnitee did not meet the
requisite standard of conduct set forth in this Section 7.6.A. Any
indemnification pursuant to this Section 7.6 shall be made only out of the
assets of the Partnership, and neither the General Partners nor any Limited
Partner shall have any obligation to contribute to the capital of the
Partnership or otherwise provide funds, to enable the Partnership to fund its
obligations under this Section 7.6.
B. Reasonable expenses incurred by an Indemnitee who is a party to a
proceeding may be paid or reimbursed by the Partnership in advance of the final
disposition of the proceeding upon receipt by the Partnership of (1) a written
affirmation by the Indemnitee of the Indemnitee's good faith belief that the
standard of conduct necessary for indemnification by the Partnership as
authorized in subparagraph A of this Section 7.6 has been met and (2) a written
undertaking by or on behalf of the Indemnitee to repay the amount if it shall
ultimately be determined that the standard of conduct has not been met.
C. The indemnification provided by this Section 7.6 shall be in
addition to any other rights to which an Indemnitee or any other Person may be
entitled under any agreement, pursuant to any vote of the Partners, as a matter
of law or otherwise, and shall continue as to an Indemnitee who has ceased to
serve in a capacity which affords such Person the rights of an Indemnitee.
D. The Partnership may purchase and maintain insurance, on behalf of
the Indemnitees and such other Persons as the Managing General Partner shall
determine, against any liability that may be asserted against or expenses that
may be incurred by any such Person in connection with the Partnership's
activities, regardless of whether the Partnership would have the power to
indemnify such Person against such liability under the provisions of this
Agreement.
E. For purposes of this Section 7.6, the Partnership shall be deemed to
have requested an Indemnitee to serve as fiduciary of an employee benefit plan
of the Managing General Partner or the Partnership whenever the performance by
it of its duties to the Partnership also imposes duties on, or otherwise
involves services by, it to such plan or participants or beneficiaries of such
plan; excise taxes assessed on an Indemnitee with respect to an employee benefit
plan pursuant to applicable law shall constitute fines within the meaning of
this Section 7.6; and actions taken or omitted by the Indemnitee with respect to
an employee benefit plan in the performance of its duties for a purpose
reasonably believed by it to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Partnership.
42
<PAGE>
F. In no event may an Indemnitee subject the Limited Partners or any of
the General Partners (except for the liability of the Managing General Partner
to The Nardi Group, L.L.C. pursuant to Section 7.6 A) to personal liability by
reason of the indemnification provisions set forth in this Agreement.
G. An Indemnitee shall not be denied indemnification in whole or in
part under this Section 7.6 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the Indemnitee
would otherwise be entitled to indemnification.
H. The provisions of this Section 7.6 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Section 7.6 or any provision hereof
shall be prospective only and shall not in any way affect the limitations on the
Partnership's liability to any Indemnitee under this Section 7.6 as in effect
immediately prior to such amendment, modification or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior
to such amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
I. If and to the extent any reimbursements to any General Partner
pursuant to this Section 7.6 constitute gross income of such General Partner (as
opposed to the repayment of advances made by the such General Partner on behalf
of the Partnership) such amounts shall constitute guaranteed payments within the
meaning of Section 707(c) of the Code, shall be treated consistently therewith
by the Partnership and all Partners, and shall not be treated as distributions
for purposes of computing the Partners' Capital Accounts.
J. Any indemnification hereunder is subject to, and limited by, the
provisions of Section 17-108 of the Act.
K. In the event the Partnership is made a party to any litigation or
otherwise incurs any loss or expense as a result of or in connection with any
Partner's personal obligations or liabilities unrelated to Partnership business,
such Partner shall indemnify and reimburse the Partnership for all such loss and
expense incurred, including legal fees, and the Partnership Interest of such
Partner may be charged therefor. The liability of a Partner under this Section
7.6.K shall not be limited to such Partner's Partnership Interest, and shall be
enforceable against such Partner personally.
Section 7.7 Liability of the General Partners.
A. Notwithstanding anything to the contrary set forth in this
Agreement, to the maximum extent that Maryland law or Delaware law, as the case
may be, in effect from time to time permits limitation of the liability of
trustees and officers of a real estate investment trust or limited liability
company, as the case may be, no trustee, member, manager or officer of a General
Partner shall be liable to the Partnership or any Partner for money damages.
Neither the amendment nor repeal of this Section, nor the adoption or amendment
of any other provision of this Agreement inconsistent with this Section, shall
apply to or affect in any respect the applicability of the
43
<PAGE>
preceding sentence with respect to any act or failure to act which occurred
prior to such amendment, repeal or adoption. In the absence of any Maryland
statute or Delaware statute, as the case may be, limiting the liability of
trustees and officers of a Maryland real estate investment trust or members or
managers of a Delaware limited liability company, as the case may be, for money
damages in a suit by or on behalf of the Partnership or by any Partner, no
trustee, member, manager or officer of a General Partner shall be liable to the
Partnership or to any Partner for money damages except to the extent that (i)
the trustee, member, manager or officer actually received an improper benefit or
profit in money, property or services, in which case the liability shall not
exceed the amount of the benefit or profit in money, property or services
actually received; or (ii) a judgment or other final adjudication adverse to the
trustee, member, manager or officer is entered in a proceeding based on a
finding in the proceeding that, the trustee's or officer's action or failure to
act was the result of active and deliberate dishonesty and was material to the
cause of action adjudicated in the proceeding.
B. The Limited Partners and the General Partners expressly acknowledge
that, as stated in Section 7.1.E, the Managing General Partner is acting for the
benefit of the Partnership, itself, the Limited Partners, the other General
Partners and the Managing General Partner's shareholders collectively, and that
the Managing General Partner is under no obligation to give priority to the
separate interests of the Limited Partners, the other General Partners or the
Managing General Partner's shareholders (including, without limitation, the tax
consequences to the Limited Partners, the General Partners or Assignees or to
shareholders) in deciding whether to cause the Partnership to take (or decline
to take) any actions and that the Managing General Partner shall not be liable
to the Partnership or to any General Partner or Limited Partner for monetary
damages for losses sustained, liabilities incurred, or benefits not derived by
General Partners or Limited Partners in connection with such decisions.
C. Subject to its obligations and duties as Managing General Partner
set forth in Section 7.1.A hereof, the Managing General Partner may exercise any
of the powers granted to it by this Agreement and perform any of the duties
imposed upon it hereunder either directly or by or through its agents.
D. Any amendment, modification or repeal of this Section 7.7 or any
provision hereof shall be prospective only and shall not in any way affect the
limitations on the liability of the General Partners and any of their officers,
members, managers, directors, agents and employees to the Partnership and the
Limited Partners under this Section 7.7 as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claims may arise or be asserted.
Section 7.8 Other Matters Concerning the Managing General Partner.
A. The Managing General Partner may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
44
<PAGE>
B. The Managing General Partner may consult with legal counsel,
accountants, appraisers, management consultants, investment bankers and other
consultants and advisers selected by it, and any act taken or omitted to be
taken in reliance upon the opinion of such Persons as to matters which such
Managing General Partner reasonably believes to be within such Person's
professional or expert competence shall be conclusively presumed to have been
done or omitted in good faith and in accordance with such opinion.
C. The Managing General Partner shall have the right, in respect of any
of its powers or obligations hereunder, to act through any of its duly
authorized officers and a duly appointed attorney or attorneys-in-fact. Each
such attorney shall, to the extent provided by the Managing General Partner in
the power of attorney, have full power and authority to do and perform all and
every act and duty which is permitted or required to be done by the Managing
General Partner hereunder.
D. Notwithstanding any other provisions of this Agreement or any
non-mandatory provision of the Act, any action of the Managing General Partner
on behalf of the Partnership or any decision of the Managing General Partner to
refrain from acting on behalf of the Partnership, undertaken in the good faith
belief that such action or omission is necessary or advisable in order (1) to
protect the ability of the Managing General Partner to continue to qualify as a
REIT or (2) to avoid the Managing General Partner incurring any taxes under
Section 857 or Section 4981 of the Code, is expressly authorized under this
Agreement and is deemed approved by all of the Partners.
Section 7.9 Title to Partnership Assets. Title to Partnership assets,
whether real, personal or mixed and whether tangible or intangible, shall be
deemed to be owned by the Partnership as an entity, and no Partners,
individually or collectively, shall have any ownership interest in such
Partnership assets or any portion thereof. Subject to Section 7.5, title to any
or all of the Partnership assets may be held in the name of the Partnership, the
Managing General Partner or one or more nominees, as the Managing General
Partner may determine, including Affiliates of the Managing General Partner. The
Managing General Partner hereby declares and warrants that any Partnership
assets for which legal title is held in the name of the Managing General Partner
or any nominee or Affiliate of the Managing General Partner shall be deemed held
by the Managing General Partner or such nominee or Affiliate for the use and
benefit of the Partnership in accordance with the provisions of this Agreement;
provided, however, that the Managing General Partner shall use its best efforts
to cause beneficial and record title to such assets to be vested in the
Partnership as soon as reasonably practicable. All Partnership assets shall be
recorded as the property of the Partnership in its books and records,
irrespective of the name in which legal title to such Partnership assets is
held. Any such title holder shall perform any and all of its respective
functions to the extent and upon such terms and conditions as may be determined
from time to time by the Managing General Partner.
Section 7.10 Reliance by Third Parties. Notwithstanding anything to the
contrary in this Agreement, any Person dealing with the Partnership shall be
entitled to assume that the Managing General Partner has full power and
authority to encumber, sell or otherwise use in any manner any and all assets of
the Partnership and to enter into any contracts on behalf of the Partnership,
and such
45
<PAGE>
Person shall be entitled to deal with the Managing General Partner as if it were
the Partnership's sole party in interest, both legally and beneficially. Each
Partner hereby waives any and all defenses or other remedies which may be
available against such Person to contest, negate or disaffirm any action of the
Managing General Partner in connection with any such dealing. In no event shall
any Person dealing with the Managing General Partner or its representatives be
obligated to ascertain that the terms of this Agreement have been complied with
or to inquire into the necessity or expedience of any act or action of the
Managing General Partner or its representatives. Each and every certificate,
document or other instrument executed on behalf of the Partnership by the
Managing General Partner or its representatives shall be conclusive evidence in
favor of any and every Person relying thereon or claiming thereunder that (A) at
the time of the execution and delivery of such certificate, document or
instrument, this Agreement was in full force and effect, (B) the Person
executing and delivering such certificate, document or instrument was duly
authorized and empowered to do so for and on behalf of the Partnership and (C)
such certificate, document or instrument was duly executed and delivered in
accordance with the terms and provisions of this Agreement and is binding upon
the Partnership.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF
LIMITED PARTNERS AND GENERAL PARTNERS
Section 8.1 Limitation of Liability. The Limited Partners shall have no
liability under this Agreement except as expressly provided in this Agreement or
under the Act.
Section 8.2 No Participation in Management of Business. No Limited
Partner, General Partner or Assignee (other than the Managing General Partner,
any of its Affiliates or any officer, director, employee, general partner,
member, manager, agent or trustee of the Managing General Partner, the
Partnership or any of their Affiliates, in their capacity as such) shall take
part in the operations, management or control (within the meaning of the Act) of
the Partnership's business, transact any business in the Partnership's name or
have the power to sign documents for or otherwise bind the Partnership. The
transaction of any such business by the Managing General Partner, any of its
Affiliates or any officer, director, employee, general partner, agent or trustee
of the Managing General Partner, the Partnership or any of their Affiliates, in
their capacity as such, shall not affect, impair or eliminate the limitations on
the liability of the Limited Partners or Assignees under this Agreement.
Section 8.3 Outside Activities of Partners. Subject to any agreements
entered into by a Partner or its Affiliate with the Managing General Partner,
Partnership or a Subsidiary, any Partner and any officer, director, employee,
agent, trustee, member, manager, Affiliate or shareholder of, or partner in, any
Partner shall be entitled to and may have business interests and engage in
business activities in addition to those relating to the Partnership, including
business interests and activities in direct competition with the Partnership or
that are enhanced by the activities of the Partnership. Neither the Partnership
nor any Partners shall have any rights by virtue of this Agreement in any
business ventures of any Partner or Assignee. Subject to such agreements, none
of the Partners nor any other Person shall have any rights by virtue of this
Agreement or the partnership relationship established hereby in any business
ventures of any other Person, other than the Partners benefitting
46
<PAGE>
from the business conducted by the Partnership in accordance with this
Agreement, and such other Person shall have no obligation pursuant to this
Agreement to offer any interest in any such business ventures to the
Partnership, any Partner or any such other Person, even if such opportunity is
of a character which, if presented to the Partnership, any Partner or such other
Person, could be taken or pursued by such other Person.
Section 8.4 Return of Capital. Except pursuant to the exchange rights
set forth in Section 8.6, no Partner shall be entitled to the withdrawal or
return of his or her Capital Contribution, except to the extent of distributions
made pursuant to this Agreement or upon termination of the Partnership as
provided herein. No Limited Partner or Assignee shall have priority over any
other Limited Partner or Assignee either as to the return of Capital
Contributions, or, except as otherwise expressly provided in this Agreement, as
to profits, losses, distributions or credits.
Section 8.5 Rights of Partners Relating to the Partnership.
A. In addition to other rights provided by this Agreement or by the
Act, and except as limited by Section 8.5.B hereof, each Partner shall have the
right, for a purpose reasonably related to such Partner's interest as a partner
in the Partnership, upon written demand with a statement of the purpose of such
demand and at the Partnership's expense:
(1) to obtain a copy of the most recent annual and quarterly
reports filed with the SEC by the Managing General Partner pursuant to the
Securities Exchange Act, and each communication sent to the shareholders of the
Managing General Partner;
(2) to obtain a copy of the Partnership's federal, state and
local income tax returns for each Partnership taxable year;
(3) to obtain a current list of the name and last known
business, residence or mailing address of each Partner;
(4) to obtain a copy of this Agreement and the Certificate and
all amendments thereto, together with executed copies of any written powers of
attorney pursuant to which this Agreement, the Certificate and all amendments
thereto have been executed; and
(5) to obtain true and full information regarding the amount
of cash and a description and statement of any other property or services
contributed by each Partner and which each Partner has agreed to contribute in
the future, and the date on which each became a Partner.
B. Notwithstanding any other provision of this Section 8.5, the
Managing General Partner may keep confidential from the Limited Partners, for
such period of time as the Managing General Partner determines in its sole and
absolute discretion to be reasonable, any information that (1) the Managing
General Partner believes to be in the nature of trade secrets or other
information the disclosure of which the Managing General Partner in good faith
believes is not in the best interests of the Partnership or could damage the
Partnership or (2) the Partnership or the Managing
47
<PAGE>
General Partner is required by law or by agreements with unaffiliated third
parties to keep confidential.
Section 8.6 Grant of Rights.
A. The Managing General Partner does hereby grant to the Limited
Partners and the Limited Partners do hereby accept the right, but not the
obligations (hereinafter such right sometimes referred to as the "Rights"), to
exchange all or a portion of their Units on the terms and subject to the
conditions and restrictions contained in Exhibit C. The Rights granted hereunder
may be exercised by any one or more of the Limited Partners, on the terms and
subject to the conditions and restrictions contained in Exhibit C, upon delivery
to the Managing General Partner of an Exchange Exercise Notice in the form of
Schedule 1 to Exhibit C, which notice shall specify the Units to be exchanged by
such Limited Partner. Once delivered, the Exchange Exercise Notice shall be
irrevocable, subject to payment by the Managing General Partner of the Purchase
Price in respect of such Units in accordance with the terms hereof.
B. The terms and provisions applicable to the Rights shall be as set
forth in Exhibit C.
C. Any Units acquired by the Managing General Partner pursuant to an
exercise by any Limited Partner of the Rights shall be deemed to be acquired by
and reallocated or reissued to the Managing General Partner. The Managing
General Partner shall amend Exhibit A hereto to reflect each such exchange and
reallocation or reissuance of Units and each corresponding recalculation of the
Units of the Partners.
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting.
A. The Managing General Partner shall keep or cause to be kept at the
principal office of the Partnership appropriate books and records with respect
to the Partnership's business, including without limitation, all books and
records necessary to provide to the Limited Partners any information, lists and
copies of documents required to be provided pursuant to Section 9.3 hereof. Any
records maintained by or on behalf of the Partnership in the regular course of
its business may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, micrographics or any other information storage device; provided,
that the records so maintained are convertible into clearly legible written form
within a reasonable period of time. The books of the Partnership shall be
maintained, for financial and tax reporting purposes, on an accrual basis in
accordance with generally accepted accounting principles, consistently applied.
B. The Managing General Partner shall provide Stephen J. Nardi and any
other duly authorized representatives of any other General Partners the right at
any reasonable time during normal business hours to visit and inspect any of the
properties of the Partnership and to examine and take copies or extracts from
its books of record and accounts.
48
<PAGE>
Section 9.2 Fiscal Year. The fiscal year of the Partnership
shall be the calendar year.
Section 9.3 Reports.
A. As soon as practicable, but in no event later than 105 days after
the close of each Partnership Year, or such earlier date as they are filed with
the SEC, the Managing General Partner shall cause to be mailed to each Partner
as of the close of the Partnership Year, an annual report containing financial
statements of the Partnership, or of the Managing General Partner if such
statements are prepared solely on a consolidated basis with the Managing General
Partner, for such Partnership Year, presented in accordance with generally
accepted accounting principles, consistently applied, such statements to be
audited by a nationally recognized firm of independent public accountants
selected by the Managing General Partner.
B. As soon as practicable, but in no event later than 45 days after the
close of each calendar quarter (except the last calendar quarter of each year),
or such earlier date as they are filed with the SEC, the Managing General
Partner shall cause to be mailed to each Partner as of the last day of the
calendar quarter, a report containing unaudited financial statements of the
Partnership, or of the Managing General Partner, if such statements are prepared
solely on a consolidated basis with the Managing General Partner, presented in
accordance with the applicable law or regulation, or as the Managing General
Partner determines to be appropriate.
ARTICLE 10
TAX MATTERS
Section 10.1 Preparation of Tax Returns. The Managing General Partner
shall arrange for the preparation and timely filing of all tax returns of the
Partnership and shall use all reasonable efforts to furnish, within 90 days of
the close of each taxable year, the tax information reasonably required by
Partners for federal and state income tax reporting purposes.
Section 10.2 Tax Elections. Except as otherwise provided herein, the
Managing General Partner shall, in its sole and absolute discretion, determine
whether to make any available election pursuant to the Code, including the
election under Section 754 of the Code; provided, however, the Managing General
Partner may file an election on behalf of the Partnership pursuant to Section
754 of the Code to adjust the basis of the Partnership property in the case of a
transfer of a Partnership Interest, including transfers made in connection with
the exercise of Rights, made in accordance with the provisions of this
Agreement. The Managing General Partner shall have the right to seek to revoke
any such election (including without limitation, any election under Section 754
of the Code) upon the Managing General Partner's determination in its sole and
absolute discretion that such revocation is the best interests of the Partners.
However, no Partner shall file an election for the Partnership to be taxed as a
corporation under the Code without the written consent of all the Partners.
Section 10.3 Tax Matters Partner.
49
<PAGE>
A. The Managing General Partner shall be the "tax matters partner" of
the Partnership for federal income tax purposes. Pursuant to Section 6223(c) of
the Code, upon receipt of notice from the IRS of the beginning of an
administrative proceeding with respect to the Partnership, the tax matters
partner shall furnish the IRS with the name, address and profit interest of each
of the Partners and Assignees; provided, however, that such information is
provided to the Partnership by the Partners and Assignees.
B. The tax matters partner is authorized, but not required:
(1) to enter into any settlement with the IRS with respect to
any administrative or judicial proceedings for the adjustment of Partnership
items required to be taken into account by a Partner for income tax purposes
(such administrative proceedings being referred to as a "tax audit" and such
judicial proceedings being referred to as "judicial review"), and in the
settlement agreement the tax matters partner may expressly state that such
agreement shall bind all Partners, except that such settlement agreement shall
not bind any Partner (a) who (within the time prescribed pursuant to the Code
and Regulations) files a statement with the IRS providing that the tax matters
partner shall not have the authority to enter into a settlement agreement on
behalf of such Partner or (b) who is a "notice partner" (as defined in Section
6231 of the Code) or a member of a "notice group" (as defined in Section
6223(b)(2) of the Code);
(2) in the event that a notice of a final administrative
adjustment at the Partnership level of any item required to be taken into
account by a Partner for tax purposes (a "final adjustment") is mailed to the
tax matters partner, to seek judicial review of such final adjustment, including
the filing of a petition for readjustment with the Tax Court or the United
States Claims Court, or the filing of a complaint for refund with the District
Court of the United States for the district in which the Partnership's principal
place of business is located;
(3) to intervene in any action brought by any other Partner
for judicial review of a final adjustment;
(4) to file a request for an administrative adjustment with
the IRS at any time and, if any part of such request is not allowed by the IRS,
to file an appropriate pleading (petition or complaint) for judicial review with
respect to such request;
(5) to enter into an agreement with the IRS to extend the
period for assessing any tax which is attributable to any item required to be
taken into account by a Partner for tax purposes, or an item affected by such
item; and
(6) to take any other action on behalf of the Partners or the
Partnership in connection with any tax audit or judicial review proceeding to
the extent permitted by applicable law or regulations.
The taking of any action and the incurring of any expense by the tax
matters partner in connection with any such proceeding, except to the extent
required by law, is a matter in the sole and absolute discretion of the tax
matters partner and the provisions relating to indemnification of
50
<PAGE>
the Managing General Partner set forth in Section 7.6 hereof shall be fully
applicable to the tax matters partner in its capacity as such.
C. The tax matters partner shall receive no compensation for its
services. All third party costs and expenses incurred by the tax matters partner
in performing its duties as such (including legal and accounting fees) shall be
borne by the Partnership. Nothing herein shall be construed to restrict the
Partnership from engaging an accounting firm or law firm to assist the tax
matters partner in discharging its duties hereunder, so long as the compensation
paid by the Partnership for such services is reasonable.
Section 10.4 Organizational and Start-Up Expenses. The Partnership
shall elect to deduct expenses, if any, incurred by it in organizing the
Partnership ratably over a 60-month period as provided in Sections 709(b) and
195(b) of the Code.
Section 10.5 Withholding. Each Partner hereby authorizes the
Partnership to withhold from or pay on behalf of or with respect to such Partner
any amount of federal, state, local, or foreign taxes that the Managing General
Partner determines that the Partnership is required to withhold or pay with
respect to any amount distributable or allocable to such Partner pursuant to
this Agreement, including, without limitation, any taxes required to be withheld
or paid by the Partnership pursuant to Sections 1441, 1442, 1445 or 1446 of the
Code. Any amount paid on behalf of or with respect to a Partner shall constitute
a loan by the Partnership to such Partner, which loan shall be repaid by such
Partner within 15 days after notice from the Managing General Partner that such
payment must be made unless (A) the Partnership withholds such payment from a
distribution which would otherwise be made to the Partner or (B) the Managing
General Partner determines, in its sole and absolute discretion, that such
payment may be satisfied out of the available funds of the Partnership which
would, but for such payment, be distributed to the Partner. Any amounts withheld
pursuant to the foregoing clauses (A) or (B) shall be treated as having been
distributed to such Partner. Each Partner hereby unconditionally and irrevocably
grants to the Partnership a security interest in such Partner's Partnership
Interest to secure such Partner's obligation to pay to the Partnership any
amounts required to be paid pursuant to this Section 10.5. In the event that a
Partner fails to pay any amounts owed to the Partnership pursuant to this
Section 10.5 when due, the Managing General Partner may, in its sole and
absolute discretion, elect to make the payment to the Partnership on behalf of
such defaulting Partner, and in such event shall be deemed to have loaned such
amount to such defaulting Partner and shall succeed to all rights and remedies
of the Partnership as against such defaulting Partner (including, without
limitation, the right to receive distributions and the holding of a security
interest in such Partner's Partnership Interest). Any amounts payable by a
Partner hereunder shall bear interest at the base rate on corporate loans at
large United States money center commercial banks, as published from time to
time in the Wall Street Journal, plus two percentage points (but not higher than
the maximum lawful rate) from the date such amount is due (i.e., 15 days after
demand) until such amount is paid in full. Each Partner shall take such actions
as the Partnership or the Managing General Partner shall request in order to
perfect or enforce the security interest created under this Section 10.5.
Section 10.6 Limitation to Preserve REIT Status. To the extent that any
amount paid or credited to the Managing General Partner or its officers,
directors, employees or agents pursuant to
51
<PAGE>
Section 7.4 or 7.6 hereof would constitute gross income to the Managing General
Partner for purposes of Sections 856 (c) (2) or 856 (c) (3) of the Code (a
"Managing General Partner Payment") then, notwithstanding any other provision of
this Agreement, the amount of such Managing General Partner Payments for any
Partnership taxable year shall not exceed the lesser of:
(A) the amount of such Managing General Partner Payments derived from
sources other than those described in subsections (A) through (H) at Section
856(c)(2) of the Code cannot exceed 5% of the total amount of the Managing
General Partner Payments for the taxable year and;
(B) the amount of such Managing General Partner Payments derived from
sources other than those described in subsections (A) through (I) of Section
856(c)(3) of the Code cannot exceed 25% of the total amount of the Managing
General Partner Payments for the taxable year;
provided, however, that Managing General Partner Payments in excess of the
amounts set forth in subparagraphs (A) and (B) above may be made if the Managing
General Partner, as a condition precedent, obtains an opinion of tax counsel
that the receipt of such excess amounts would not adversely affect the Managing
General Partner's ability to qualify as a REIT. To the extent Managing General
Partner Payments may not be made in a year due to the foregoing limitations,
such Managing General Partner Payments shall carry over and be treated as
arising in the following year; provided, however, that such amounts shall not
carry over for more than five years, and if not paid within such five year
period, shall expire; provided further, that (a) as Managing General Partner
Payments are made, such payments shall be applied first to carry over amounts
outstanding, if any and (b) with respect to carry over amounts for more than one
Partnership taxable year, such payments shall be applied to the earliest
Partnership taxable year first.
ARTICLE 11
TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer.
A. The term "transfer," when used in this Article 11 with respect to a
Partnership Interest, shall be deemed to refer to a transaction by which a
General Partner purports to assign its General Partner Interest to another
Person or by which a Limited Partner purports to assign its Limited Partner
Interest to another Person, and includes a sale, assignment, gift (outright or
in trust), pledge, encumbrance, hypothecation, mortgage, exchange or any other
disposition by law or otherwise. The term "transfer" when used in this Article
11 does not include any exchange for Shares pursuant to Section 8.6 hereof. No
part of the interest of a Limited Partner shall be subject to the claims of any
creditor, any spouse for alimony or support, or to legal process, and may not be
voluntarily or involuntarily alienated or encumbered, except as may be
specifically provided for in this Agreement.
B. No Partnership Interest shall be transferred, in whole or in part,
except in accordance with the terms and conditions set forth in this Article 11.
Any transfer or purported transfer of a Partnership Interest not made in
accordance with this Article 11 shall be null and void.
52
<PAGE>
Section 11.2 Transfer of General Partner's Partnership Interest.
A. Except as may be provided in the Put Option Agreement, no General
Partner may withdraw from the Partnership or transfer or assign all or any
portion of its General Partner Interest in the Partnership (whether by sale,
statutory merger or consolidation, liquidation or otherwise) without the Consent
of the Partners, which may be given or withheld by each Partner in its sole and
absolute discretion, and only upon the admission of a successor General Partner
pursuant to Section 12.1 hereof; provided, that, as provided in Section 7.3.G,
neither the Managing General Partner nor any other General Partner may withdraw
from the Partnership or assign all or any part of its General Partner Interest
in the Partnership without the prior consent of all other General Partners,
except as may be provided in the Put Option Agreement. Upon any transfer of a
General Partner Interest in accordance with the provisions of this Section 11.2,
the transferee shall become a substitute General Partner for all purposes
herein, and shall be vested with the powers and rights of the transferor General
Partner, and shall be liable for all obligations and responsible for all duties
of the transferor General Partner, once such transferee has executed such
instruments as may be necessary to effectuate such admission and to confirm the
agreement of such transferee to be bound by all the terms and provisions of this
Agreement with respect to the General Partner Interest so acquired. It is a
condition to any transfer otherwise permitted hereunder that the transferee
assumes, by operation of law or express agreement, all of the obligations of the
transferor General Partner under this Agreement with respect to such transferred
General Partner Interest, and no such transfer (other than pursuant to (i) a
statutory merger or consolidation wherein all obligations and liabilities of the
transferor General Partner are assumed by a successor corporation by operation
of law or (ii) the Put Option Agreement, which shall remove The Nardi Group,
L.L.C. from all obligations hereunder) shall relieve the transferor General
Partner of its obligations under this Agreement without the Consent of the
Partners, in their reasonable discretion. In the event the Managing General
Partner withdraws from the Partnership, in violation of this Agreement or
otherwise, or otherwise dissolves or terminates, or upon the Incapacity of the
Managing General Partner, all of the remaining Partners may elect to continue
the Partnership business by selecting a substitute Managing General Partner in
accordance with the Act. Notwithstanding anything contained herein to the
contrary, neither the Limited Partners nor the other General Partners shall have
any right whatsoever to remove the Managing General Partner from the
Partnership.
B. Neither the Managing General Partner nor the Partnership shall
engage in any merger, consolidation or other combination with or into another
person, sale of all or substantially all of its assets or any reclassification,
recapitalization or change of its outstanding equity interests (each, a
"Termination Transaction"), unless (1) if the holders of the Shares approve the
Termination Transaction, the Managing General Partner will not consummate such
Termination Transaction unless (i) the Managing General Partner first conducts a
vote of holders of Units (including the Managing General Partner) on the matter,
(ii) the Managing General Partner votes the Units held by it in the same
proportion as the holders of the Shares voted on the matter at the shareholder
vote and (iii) the result of such vote of the holders of the Units (including
the proportionate vote of the Units of the Managing General Partner) is that had
such vote been a vote of holders of Shares, the Termination Transaction would
have been approved (provided, however, that this Section 11.2.B(1) shall not be
interpreted to enable or require the Managing
53
<PAGE>
General Partner to engage in a Termination Transaction which requires the
approval of the holders of the Shares if the Managing General Partner did not
receive such required approval) and (2) (x) such Termination Transaction has
been approved by a Consent of the Limited Partners or (y) except as otherwise
provided in Section 11.2.C hereof, in connection with such Termination
Transaction all Limited Partners either will receive or will have the right to
elect to receive for each Common Unit an amount of cash, securities, or other
property equal to the product of the number of Common Shares into which the
Common Units held by such Limited Partner are exchangeable and the greatest
amount of cash, securities or other property paid to a holder of one Common
Share in consideration of one Common Share pursuant to the terms of the
Termination Transaction; provided, that if, in connection with the Termination
Transaction, a purchase, tender or exchange offer shall have been made to and
accepted by the holders of a majority of the outstanding Shares, each holder of
Units shall receive, or shall have the right to elect to receive, the greatest
amount of cash, securities, or other property which such holder would have
received had it exercised its Exchange Rights (as set forth in Section 8.6
hereof) and received Shares in exchange for its Units immediately prior to the
expiration of such purchase, tender or exchange offer and had thereupon accepted
such purchase, tender or exchange offer and then such Termination Transaction
shall have been consummated.
C. A Managing General Partner or the Partnership may merge, or
otherwise combine its assets, with another entity without satisfying the
requirements of Section 11.2.B hereof if: (1) immediately after such merger or
other combination, substantially all of the assets directly or indirectly owned
by the surviving entity, other than Units held by such Managing General Partner,
are owned directly or indirectly by the Partnership or another limited
partnership or limited liability company which is the survivor of a merger,
consolidation or combination of assets with the Partnership (in each case, the
"Surviving Partnership"); (2) the Limited Partners own a Partnership Interest of
the Surviving Partnership based on the relative fair market value of the net
assets of the Partnership (as determined pursuant to Section 11.2.D hereof) and
the other net assets of the Surviving Partnership (as determined pursuant to
Section 11.2.D hereof) immediately prior to the consummation of such
transaction; (3) the rights, preferences and privileges of the Limited Partners
in the Surviving Partnership are at least as favorable as those in effect
immediately prior to the consummation of such transaction and as those generally
applicable to limited partners or non-managing members of the Surviving
Partnership holding a comparable class of interest; and (4) such rights of the
Limited Partners include the right to exchange their interests in the Surviving
Partnership for at least one of: (a) the consideration available to such Limited
Partners pursuant to Section 11.2.B hereof or (b) if the ultimate controlling
person of the Surviving Partnership has publicly traded common equity
securities, such common equity securities, with an exchange ratio based on the
relative fair market value of such securities (as determined pursuant to Section
11.2.D hereof) and the Shares.
D. In connection with any transaction permitted by Section 11.2.B or
11.2.C hereof, the relative fair market values shall be reasonably determined by
the Managing General Partner as of the time of such transaction and, to the
extent applicable, shall be no less favorable to the Limited Partners than the
relative values reflected in the terms of such transaction.
Section 11.3 Limited Partners' Rights to Transfer.
54
<PAGE>
A. In addition to the restrictions set forth in the Lock-Up Agreements,
no Limited Partner shall, for a period of one year from the date hereof,
transfer all or any portion of its Partnership Interest to any transferee
without the consent of the Managing General Partner, which consent may be
withheld in the Managing General Partner's sole and absolute discretion;
provided, however, Primestone Investment Partners, L.P., a Delaware limited
partnership, may, at any time, without such consents, transfer its Partnership
Interest upon the occurrence of a Primestone Transfer Event; and provided
further that any Limited Partner may, at any time, without such consents, (1)
transfer all or any portion of its Partnership Interest to the Managing General
Partner, (2) transfer all or any portion of its Partnership Interest to an
Affiliate or to an Immediate Family member, subject to the provisions of Section
11.6 hereof, or to such Limited Partner's shareholders, members, partners or
beneficiaries, as the case may be, (3) transfer all or any portion of its
Partnership Interest to a trust for the benefit of a charitable beneficiary or
to a charitable foundation, subject to the provisions of Section 11.6 hereof and
(4) subject to the provisions of Section 11.6 hereof, pledge or transfer (a
"Pledge") all or any portion of its Partnership Interest to a lender, which is
not an Affiliate of such Limited Partner, as collateral or security for a bona
fide loan or other extension of credit, and transfer such pledged Partnership
Interest to such lender in connection with the exercise of remedies under such
loan or extension or credit. After the first anniversary of the date hereof,
each Limited Partner or Assignee (resulting from a transfer made pursuant to
clauses (1)-(4) of the proviso of the preceding sentence) shall have the right
to transfer all or any portion of its Partnership Interest to a Qualified
Transferee, subject to the provisions of Section 11.6 hereof (in addition to the
right of each such Limited Partner or Assignee to continue to make any such
transfer permitted by clauses (1)-(4) of the proviso of the immediately
preceding sentence).
It is a condition to any transfer otherwise permitted hereunder that
the transferee assumes by operation of law or express agreement all of the
obligations of the transferor Limited Partner under this Agreement with respect
to such transferred Partnership Interest and no such transfer (other than
pursuant to a statutory merger or consolidation wherein all obligations and
liabilities of the transferor Partner are assumed by a successor corporation by
operation of law) shall relieve the transferor Partner of its obligations under
this Agreement without the approval of the Managing General Partner, in its
reasonable discretion; provided, however, that such transfer shall relieve the
transferor Partner from any future obligations under this Agreement from and
after the date of the transfer. Notwithstanding the foregoing, any transferee of
any transferred Partnership Interest shall be subject to any and all ownership
limitations contained in the Charter and the representations in Section 3.3.D
hereof. Any transferee, whether or not admitted as a Substituted Limited
Partner, shall take subject to the obligations of the transferor hereunder.
Unless admitted as a Substitute Limited Partner, no transferee, whether by a
voluntary transfer, by operation of law or otherwise, shall have rights
hereunder, other than the rights of an Assignee as provided in Section 11.5
hereof.
B. If a Limited Partner is subject to Incapacity, the executor,
administrator, trustee, committee, guardian, conservator, or receiver of such
Limited Partner's estate shall have all the rights of a Limited Partner, but no
more rights than those enjoyed by other Limited Partners, for the purpose of
settling or managing the estate, and such power as the Incapacitated Limited
Partner possessed to transfer all or any part of his or its interest in the
Partnership. The Incapacity of a Limited Partner, in and of itself, shall not
dissolve or terminate the Partnership.
55
<PAGE>
C. The Managing General Partner may prohibit any transfer otherwise
permitted under this Section 11.3 by a Limited Partner of his or her Units if,
in the opinion of legal counsel to the Partnership, such transfer would require
the filing of a registration statement under the Securities Act by the
Partnership or would otherwise violate any federal or state securities laws or
regulations applicable to the Partnership or the Unit.
Section 11.4 Substituted Limited Partners.
A. No Limited Partner shall have the right to substitute a transferee
as a Limited Partner in place of such Limited Partner (including any transferee
permitted by Section 11.3 hereof). The Managing General Partner shall, however,
have the right to consent to the admission of a permitted transferee of the
interest of a Limited Partner as a Substituted Limited Partner, pursuant to this
Section 11.4 hereof, which consent may be given or withheld by the Managing
General Partner in its sole and absolute discretion. The Managing General
Partner's failure or refusal to permit a transferee of any such interests to
become a Substituted Limited Partner shall not give rise to any cause of action
against the Partnership or any Partner.
B. A transferee who has been admitted as a Substituted Limited Partner
in accordance with this Article 11 shall have all the rights and powers and be
subject to all the restrictions and liabilities of a Limited Partner under this
Agreement. The admission of any transferee as a Substituted Limited Partner
shall be subject to (i) the transferee executing and delivering to the
Partnership an acceptance of all of the terms and conditions of this Agreement
(including without limitation, the provisions of Section 2.4 hereof and such
other documents or instruments as may be required to effect the admission, each
in form and substance satisfactory to the Managing General Partner), (ii) the
acknowledgment by such transferee that each of the representations and
warranties set forth in Section 3.3.D hereof are true and correct with respect
to such transferee as of the date of the transfer of the Partnership Interest to
such transferee and (iii) if requested by the Managing General Partner, an
opinion of counsel to the transferee that favorably covers the matters set forth
in clauses (i) through (xii) of Section 11.6.E.
C. Upon the admission of a Substituted Limited Partner, the Managing
General Partner shall amend Exhibit A to reflect the name, address, and number
of Units of such Substituted Limited Partner and to eliminate or adjust, if
necessary, the name, address and interest of the predecessor of such Substituted
Limited Partner.
Section 11.5 Assignees. If the Managing General Partner, in its sole
and absolute discretion, does not consent to the admission of any permitted
transferee under Section 11.3 hereof as a Substituted Limited Partner, as
described in Section 11.4 hereof, such transferee shall be considered an
Assignee for purposes of this Agreement. An Assignee shall be entitled to all
the rights of an assignee of a limited partner interest under the Act, including
the right to receive distributions from the Partnership and the share of Net
Income, Net Losses, gain and loss attributable to the Units assigned to such
transferee, the rights to transfer the Units provided in this Article 11, and
the exchange rights provided in Section 8.6 hereof, but shall not be deemed to
be a holder of Units for any other purpose under this Agreement, and shall not
be entitled to effect a Consent of the Partners or Consent of the Limited
Partners with respect to such Units on any matter presented
56
<PAGE>
to the Limited Partners for approval (such Consent of the Partners or Consent of
the Limited Partners remaining with the transferor Limited Partner). In the
event any such transferee desires to make a further assignment of any such
Units, such transferee shall be subject to all the provisions of this Article 11
to the same extent and in the same manner as any Limited Partner desiring to
make an assignment of Units.
Section 11.6 General Provisions.
A. No Limited Partner may withdraw from the Partnership other than as a
result of (1) a permitted transfer of all of such Limited Partner's Units in
accordance with this Article 11 and the transferee(s) of such Units being
admitted to the Partnership as a Substituted Limited Partner(s) or (2) pursuant
to the exercise of its exchange rights of all of such Limited Partner's Units
under Section 8.6 hereof.
B. Any Limited Partner who shall transfer all of such Limited Partner's
Units in a transfer permitted pursuant to this Article 11 where such transferee
was admitted as a Substituted Limited Partner or pursuant to the exercise of its
exchange rights of all of such Limited Partner's Units under Section 8.6 hereof
shall cease to be a Limited Partner.
C. If any Partnership Interest is transferred, assigned or exchanged
during any quarterly segment of the Partnership's taxable year in compliance
with the provisions of this Article 11 or transferred or exchanged pursuant to
Section 8.6 hereof on any day other than the first day of a Partnership taxable
year, then Net Income, Net Losses, each item thereof and all other items
attributable to such Partnership Interest for such Partnership taxable year
shall be divided and allocated between the transferor Partner and the transferee
Partner by taking into account their varying interests during the Partnership
taxable year in accordance with Section 706(d) of the Code, using the interim
closing of the books method. Except as otherwise required by Section 706(d) of
the Code, solely for purposes of making such allocations, each of such items for
the calendar month in which the transfer, assignment or exchange occurs shall be
allocated to the Person who is a Partner as of midnight on the last day of said
month and none of such items for the calendar month in which an exchange occurs
will be allocated to the transferring, assigning or exchanging Partner. All
distributions of Net Cash Flow attributable to such Partnership Interest with
respect to which the Partnership Payment Date is before the date of such
transfer, assignment or exchange shall be made to the transferor Partner, and
all distributions of Net Cash Flow thereafter, in the case of a transfer or
assignment, shall be made to the transferee Partner, or in the case of an
exchange, the Managing General Partner.
D. No transfer of any Units may be made to a lender to the Partnership
or any Person who is related (within the meaning of Section 1.752-4(b) of the
Regulations) to any lender to the Partnership whose loan constitutes a
Nonrecourse Liability, without the consent of the Managing General Partner, in
its sole and absolute discretion; provided, that as a condition to such consent,
the lender will be required to enter into an arrangement with the Partnership
and the Managing General Partner to exchange for Shares any Units in which a
security interest is held simultaneously with the time at which such lender
would be deemed to be a partner in the Partnership for purposes of allocating
liabilities to such lender under Section 752 of the Code.
57
<PAGE>
E. In addition to any other restrictions on transfer herein contained,
including without limitation the provisions of this Article 11, in no event may
any transfer or assignment of a Partnership Interest by any Partner be made (1)
to any person or entity who lacks the legal right, power or capacity to own a
Partnership Interest; (2) in violation of applicable law; (3) of any component
portion of a Partnership Interest, such as the Capital Account, or rights to
distributions, separate and apart from all other components of a Partnership
Interest; (4) if in the opinion of legal counsel for the Partnership such
transfer would cause a termination of the Partnership for federal or state
income tax purposes (except as a result of the exchange for Shares of all Units
held by all Partners or pursuant to a Termination Transaction expressly
permitted under Section 11.2 hereof); (5) if in the opinion of legal counsel for
the Partnership such transfer would cause the Partnership to cease to be
classified as a partnership for federal or state income tax purposes (except as
a result of the exchange for Shares of all Units held by all Limited Partners);
(6) if such transfer would cause the Partnership to become, with respect to any
employee benefit plan subject to Title I of ERISA, a "party-in-interest" (as
defined in Section 3(14) of ERISA) or a "disqualified person" (as defined in
Section 4975(c) of the Code); (7) if such transfer would, in the opinion of
counsel to the Partnership, cause any portion of the assets of the Partnership
to constitute assets of any employee benefit plan pursuant to Department of
Labor Regulations Section 2510.2-101; (8) if such transfer requires the
registration of such Partnership Interest pursuant to any applicable federal or
state securities laws; (9) if such transfer is effectuated through an
"established securities market" or a "secondary market" (or the substantial
equivalent thereof) within the meaning of Section 7704 of the Code or such
transfer causes there to be more than 100 Partners for purposes of Code Section
7704 or otherwise causes the Partnership to become a "Publicly Traded
Partnership," as such term is defined in Sections 469(k)(2) or 7704(b) of the
Code; (10) if such transfer subjects the Partnership to be regulated under the
Investment Company Act of 1940, the Investment Advisors Act of 1940 or the
Employee Retirement Income Security Act of 1974, each as amended; (11) if the
transferee or assignee of such Partnership Interest is unable to make the
representations set forth in Section 3.3.D hereof or such transfer could
otherwise adversely affect the ability of the Managing General Partner to remain
qualified as a REIT; or (12) if in the opinion of legal counsel for the
Partnership such transfer would adversely affect the ability of the Managing
General Partner to continue to qualify as a REIT or subject the Managing General
Partner to any additional taxes under Section 857 or Section 4981 of the Code.
F. The Managing General Partner shall monitor the transfers of
interests in the Partnership to determine (1) if such interests are being traded
on an "established securities market" or a "secondary market (or the substantial
equivalent thereof)" within the meaning of Section 7704 of the Code and (2)
whether additional transfers of interests would result in the Partnership being
unable to qualify for at least one of the "safe harbors" set forth in
Regulations Section 1.7704-1 (or such other guidance subsequently published by
the IRS setting forth safe harbors under which interests will not be treated as
"readily tradable on a secondary market (or the substantial equivalent thereof)"
within the meaning of Section 7704 of the Code) (the "Safe Harbors"). The
Managing General Partner shall take all steps reasonably necessary or
appropriate to prevent any trading of interests or any recognition by the
Partnership of transfers made on such markets and, except as otherwise provided
herein, to insure that at least one of the Safe Harbors is met.
58
<PAGE>
ARTICLE 12
ADMISSION OF PARTNERS
Section 12.1 Admission of Successor Managing General Partner. A
successor to all of the Managing General Partner's General Partner Interest
pursuant to Section 11.2 hereof who is proposed to be admitted as a successor
Managing General Partner shall be admitted to the Partnership as the Managing
General Partner, effective upon such transfer. Any such transferee shall carry
on the business of the Partnership without dissolution. In each case, the
admission shall be subject to the successor Managing General Partner executing
and delivering to the Partnership an acceptance of all of the terms and
conditions of this Agreement and such other documents or instruments as may be
required to effect the admission. In the case of such admission on any day other
than the first day of a Partnership taxable year, all items attributable to the
General Partner Interest for such Partnership taxable year shall be allocated
between the transferring Managing General Partner and such successor as provided
in Article 11 hereof.
Section 12.2 Admission of Additional Limited Partners.
A. After the admission to the Partnership of the Limited Partners on
the date hereof, a Person who makes a Capital Contribution to the Partnership in
accordance with this Agreement shall be admitted to the Partnership as an
Additional Limited Partner subject to (i) the transferee executing and
delivering to the Partnership an acceptance of all of the terms and conditions
of this Agreement (including without limitation, the provisions of Section 2.4
hereof and such other documents or instruments as may be required to effect the
admission, each in form and substance satisfactory to the Managing General
Partner), (ii) the acknowledgment by such transferee that each of the
representations and warranties set forth in Section 3.3.D hereof are true and
correct with respect to such transferee as of the date of the transfer of the
Partnership Interest to such transferee and (iii) if requested by the Managing
General Partner, an opinion of counsel to the transferee that favorably covers
the matters set forth in clauses (i) through (xii) of Section 11.6.E.
B. Notwithstanding anything to the contrary in this Section 12.2, no
Person shall be admitted as an Additional Limited Partner without the consent of
the Managing General Partner, which consent may be given or withheld in the
Managing General Partner's sole and absolute discretion. The admission of any
Person as an Additional Limited Partner shall become effective on the date upon
which the name of such Person is recorded on the books and records of the
Partnership, following the receipt of the Capital Contribution in respect of
such Limited Partner, the documents set forth in paragraph A of this Section
12.2 and the consent of the Managing General Partner to such admission. If any
Additional Limited Partner is admitted to the Partnership on any day other than
the first day of a Partnership taxable year, then Net Income, Net Losses, each
item thereof and all other items allocable among Partners and Assignees for such
Partnership taxable year shall be allocated among such Limited Partner and all
other Partners and Assignees by taking into account their varying interests
during the Partnership taxable year in accordance with Section 706(d) of the
Code, using the interim closing books method. Solely for purposes of making such
allocations, each of such items for the calendar month in which an admission of
an Additional Limited Partner occurs shall be allocated among all the Partners
and Assignees including such Additional Limited Partner. All distributions of
Net Cash Flow with respect to which the
59
<PAGE>
Partnership Payment Date is before the date of such admission shall be made
solely to Partners and Assignees other than the Additional Limited Partner
(other than in its capacity as an Assignee) and except as otherwise agreed to by
the Additional Limited Partners and the Managing General Partner, and all
distributions of Net Cash Flow thereafter shall be made to all Partners and
Assignees including such Additional Limited Partner.
Section 12.3 Amendment of Agreement and Certificate of Limited
Partnership. For the admission to the Partnership of any Partner, the Managing
General Partner shall take all steps necessary and appropriate under the Act to
amend the records of the Partnership and, if necessary, to prepare as soon as
practical an amendment of this Agreement (including an amendment of Exhibit A
hereof) and, if required by law, shall prepare and file an amendment to the
Certificate and may for this purpose exercise the power of attorney granted
pursuant to Section 2.4 hereof.
ARTICLE 13
DISSOLUTION AND LIQUIDATION
Section 13.1 Dissolution. The Partnership shall not be dissolved by the
admission of Substituted Limited Partners or Additional Limited Partners or by
the admission of a successor Managing General Partner in accordance with the
terms of this Agreement. Upon the withdrawal of the Managing General Partner,
any successor Managing General Partner (selected as described in Section 13.1.B
hereof) shall continue the business of the Partnership. The Partnership shall
dissolve, and its affairs shall be wound up, upon the first to occur of any of
the following ("Liquidating Events"):
A. the expiration of its term as provided in Section 2.5 hereof;
B. an event of withdrawal of the Managing General Partner, as defined
in the Act, unless, within 90 days after the withdrawal, all of the remaining
Partners agree in writing, in their sole and absolute discretion, to continue
the business of the Partnership and to the appointment, effective as of the date
of withdrawal, of a substitute Managing General Partner;
C. subject to the provisions of Section 7.3.C hereof, an election to
dissolve the Partnership made by the Managing General Partner;
D. entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act;
E. the sale of all or substantially all of the assets and properties of
the Partnership unless the Managing General Partner, with the Consent of the
Limited Partners (which consent may not be unreasonably withheld), elects to
continue the Partnership business for the purpose of the receipt and the
collection of indebtedness or the collection of any other consideration to be
received in exchange for the assets of the Partnership (which activities shall
be deemed to be part of the winding up of the affairs of the Partnership);
60
<PAGE>
F. the Incapacity of the Managing General Partner, unless all of the
remaining Partners in their sole and absolute discretion agree in writing to
continue the business of the Partnership and to the appointment, effective as of
a date prior to the date of such Incapacity, of a substitute Managing General
Partner; or
G. the exchange for Shares of all Units (other than those of the
Managing General Partner).
Section 13.2 Winding Up.
A. Upon the occurrence of a Liquidating Event, the Partnership shall
continue solely for the purposes of winding up its affairs in an orderly manner,
liquidating its assets, and satisfying the claims of its creditors and of the
Partners. No Partner shall take any action that is inconsistent with, or not
necessary to or appropriate for, the winding up of the Partnership's business
and affairs. The Managing General Partner (or, in the event there is no
remaining Managing General Partner, any Person elected by a Majority in Interest
of the Limited Partners) (the "Liquidator") shall be responsible for overseeing
the winding up and dissolution of the Partnership and shall take full account of
the Partnership's liabilities and assets, and the Partnership property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof,
and the proceeds therefrom (which may, to the extent determined by the Managing
General Partner, include shares of beneficial interest of the Managing General
Partner) shall be applied and distributed in the following order:
(1) First, to the payment and discharge of all of the
Partnership's debts and liabilities to creditors other than the Partners;
(2) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to the Managing General Partner, including
any Convertible Preferred Distribution Shortfall;
(3) Third, to the payment and discharge of all of the
Partnership's debts and liabilities to the other Partners; and
(4) The balance, if any, to the General Partners and Limited
Partners in accordance with their positive Capital Account balances, determined
after taking into account all Capital Account adjustments for the Partnership
taxable year during which the liquidation occurs (other than those made as a
result of the liquidating distribution set forth in this Section 13.2.A(4)).
The Managing General Partner shall not receive any additional compensation for
any services performed pursuant to this Article 13 other than reimbursement of
its expenses as provided in Section 7.4 hereof.
B. Notwithstanding the provisions of Section 13.2.A hereof which
require liquidation of the assets of the Partnership, but subject to the order
of priorities set forth therein, if prior to or upon dissolution of the
Partnership the Liquidator determines that an immediate sale of part or all of
the Partnership's assets would be impractical or would cause undue loss to the
Partners, the
61
<PAGE>
Liquidator may, in its sole and absolute discretion, defer for a reasonable time
the liquidation of any assets except those necessary to satisfy liabilities of
the Partnership (including to those Partners as creditors) and/or distribute to
the Partners, in lieu of cash, as tenants in common and in accordance with the
provisions of Section 13.2.A hereof, undivided interests in such Partnership
assets as the Liquidator deems not suitable for liquidation. Any such
distributions in kind shall be made only if, in the good faith judgment of the
Liquidator, such distributions in kind are in the best interest of the Partners,
and shall be subject to such conditions relating to the disposition and
management of such properties as the Liquidator deems reasonable and equitable
and to any agreements governing the operation of such properties at such time.
The Liquidator shall determine the fair market value of any property distributed
in kind using such reasonable method of valuation as it may adopt.
Section 13.3 Compliance with Timing Requirements of Regulations;
Deficit Capital Account. In the event the Partnership is "liquidated" within the
meaning of Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made
pursuant to this Article 13 to the General Partners and Limited Partners who
have positive Capital Accounts in compliance with Regulations Section
1.704-1(b)(2)(ii)(b)(2). If any Partner has a deficit balance in its Capital
Account (after giving effect to all contributions, distributions and allocations
for the taxable years, including the year during which such liquidation occurs),
such Partner shall have no obligation to make any contribution to the capital of
the Partnership with respect to such deficit, and such deficit shall not be
considered a debt owed to the Partnership or to any other Person for any purpose
whatsoever. In the discretion of the Liquidator or the Managing General Partner,
a pro rata portion of the distributions that would otherwise be made to the
General Partners and Limited Partners pursuant to this Article 13 may be:
A. distributed to a trust established for the benefit of the General
Partners and Limited Partners for the purposes of liquidating Partnership
assets, collecting amounts owed to the Partnership, and paying any contingent or
unforeseen liabilities or obligations of the Partnership or of the Managing
General Partner arising out of or in connection with the Partnership. The assets
of any such trust shall be distributed to the General Partners and Limited
Partners from time to time, in the reasonable discretion of the Liquidator, in
the same proportions and the amount distributed to such trust by the Partnership
would otherwise have been distributed to the General Partners and Limited
Partners pursuant to this Agreement; or
B. withheld to provide a reasonable reserve for Partnership liabilities
(contingent or otherwise) and to reflect the unrealized portion of any
installment obligations owed to the Partnership; provided, that such withheld
amounts shall be distributed to the General Partners and Limited Partners as
soon as practicable.
Section 13.4 Deemed Contribution and Interest Distribution.
Notwithstanding any other provision of this Article 13, in the event the
Partnership is liquidated within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g) but no Liquidating Event has occurred, the Partnership's
property shall not be liquidated, the Partnership's liabilities shall not be
paid or discharged, and the Partnership's affairs shall not be wound up.
Instead, the Partnership shall be deemed to have contributed the Partnership
property in kind to a new partnership which shall be deemed to have assumed and
taken such property subject to all Partnership liabilities. Immediately
thereafter, the
62
<PAGE>
General Partners and Limited Partners shall be deemed to have been distributed
interests in such new partnership consisting of their Partnership Interests.
Section 13.5 Rights of Partners. Except as otherwise provided in this
Agreement, each Partner shall look solely to the assets of the Partnership for
the return of such Partner's Capital Contribution and shall have no right or
power to demand or receive property from the Managing General Partner. No
Partner shall have priority over any other Partner as to the return of such
Partner's Capital Contributions, distributions or allocations.
Section 13.6 Notice of Dissolution. In the event a Liquidating Event
occurs, the Managing General Partner shall, within 30 days thereafter, provide
written notice thereof to each of the Partners and to all other parties with
whom the Partnership regularly conducts business (as determined in the
discretion of the Managing General Partner) and shall publish notice thereof in
a newspaper of general circulation in each place in which the Partnership
regularly conducts business (as determined in the discretion of the Managing
General Partner).
Section 13.7 Cancellation of Certificate of Limited Partnership. Upon
the completion of the liquidation of the Partnership cash and property as
provided in Section 13.2 hereof, the Partnership shall be terminated and the
Certificate and all qualifications of the Partnership as a foreign limited
partnership in jurisdictions other than the State of Delaware shall be canceled
and such other actions as may be necessary to terminate the Partnership shall be
taken.
Section 13.8 Reasonable Time for Winding-Up. A reasonable time shall be
allowed for the orderly winding-up of the business and affairs of the
Partnership and the liquidation of its assets pursuant to Section 13.2 hereof,
in order to minimize any losses otherwise attendant upon such winding-up, and
the provisions of this Agreement shall remain in effect between the Partners
during the period of liquidation; provided, however, that such winding up shall
be completed not later than 90 days after the end of the Partnership taxable
year in which the Liquidating Event occurred.
Section 13.9 Waiver of Partition. Each Partner hereby waives any right
to partition of the Partnership property.
ARTICLE 14
AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS
Section 14.1 Amendments.
A. The actions requiring consent or approval of the Partners or of the
Limited Partners pursuant to this Agreement, including Section 7.3 hereof, or
otherwise pursuant to applicable law, are subject to the procedures in this
Article 14.
B. Amendments to this Agreement requiring the consent or approval of
Limited Partners may be proposed by the Managing General Partner, by any other
General Partner or by any Limited Partner or Limited Partners holding, in the
aggregate, 10% or more of the Partnership Interests. Following such proposal,
the Managing General Partner shall submit any proposed amendment to
63
<PAGE>
the Partners. The Managing General Partner shall seek the written consent or
approval of the Partners or of the Limited Partners, as applicable, on the
proposed amendment or shall call a meeting to vote thereon and to transact any
other business that it may deem appropriate. For purposes of obtaining a written
consent, the Managing General Partner may require a response within a reasonable
specified time, but not less than 15 days, and failure to respond in such time
period shall constitute a consent which is consistent with the Managing General
Partner's recommendation (if so recommended) with respect to the proposal;
provided, that an action shall become effective at such time as requisite
consents are received even if prior to such specified time.
Section 14.2 Action by the Partners.
A. Meetings of the Partners may be called by the Managing General
Partner and shall be called upon the receipt by the Managing General Partner of
a written request by Partners holding 25 percent or more of the Partnership
Interests held by all Partners other than the Managing General Partner. The call
shall state the nature of the business to be transacted. Notice of any such
meeting shall be given to all Partners not less than seven days nor more than 30
days prior to the date of such meeting. Partners may vote in person or by proxy
at such meeting. Whenever the vote of the Partnership Interests of the Partners,
or the Consent of the Partners or Consent of the Limited Partners is permitted
or required under this Agreement, such vote or Consent may be given at a meeting
of Partners or may be given in accordance with the procedure prescribed in
Section 14.1 hereof.
B. Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth the
action so taken is signed by the percentage as is expressly required by this
Agreement for the action in question. Such consent may be in one instrument or
in several instruments, and shall have the same force and effect as a vote of
such percentage of the Partners (expressly required by this Agreement). Such
consent shall be filed with the Managing General Partner. An action so taken
shall be deemed to have been taken at a meeting held on the effective date so
certified.
C. Each Partner may authorize any Person or Persons to act for such
Partner by proxy on all matters in which a Partner is entitled to participate,
including waiving notice of any meeting, or voting or participating at a
meeting. Every proxy must be signed by the Partner or such Partner's
attorney-in-fact. No proxy shall be valid after the expiration of 11 months from
the date thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Partner executing it at any time prior to the
time the holder of the proxy votes or otherwise acts pursuant to the proxy.
D. Each meeting of Partners shall be conducted by the Managing General
Partner or such other Person as the Managing General Partner may appoint
pursuant to such rules for the conduct of the meeting as the Managing General
Partner or such other Person deems appropriate.
ARTICLE 15
REPRESENTATIONS AND WARRANTIES
64
<PAGE>
Section 15.1 Representations and Warranties of Prime. Prime represents
and warrants to the Partnership and the General Partners the matters set forth
in Exhibit H.
Section 15.2 Survival of Representations and Warranties. All
representations and warranties in this Article 15 and in attached Exhibit H
shall survive formation of the Partnership; provided, however, that no claim for
a breach of any representation or warranty contained in this Article 15 or
attached Exhibit H may be maintained by the Partnership or the Managing General
Partner unless the Partnership or the Managing General Partner shall have
delivered a written notice ("Notice of Breach") specifying the details of such
claimed breach to Prime on or before the first to occur of (a) one (1) year
after the date on which the independent directors of the Managing General
Partner knew of such breach, or (b) the second (2nd) anniversary of the date on
which the initial public offering of the Company is completed. The time period
set forth above shall be extended and shall not lapse with respect to Prime if,
prior to the expiration of such time period, there has been delivered to Prime a
Notice of Breach and the indemnification obligation with respect thereto remains
unsatisfied, or there is pending a dispute with respect to such obligation,
until such dispute is finally resolved or satisfied in accordance with Section
15.5; provided, however, the time period shall be so extended only with respect
to the matters specifically set forth in such Notice of Breach.
Section 15.3 Indemnification.
A. Prime shall be obligated with respect to all indemnification
obligations arising from its representations and warranties to indemnify and
hold harmless the Partnership (or any of the General Partners, to the extent a
loss, cost, damage or expense is suffered or incurred directly by any of the
General Partners (as opposed to indirectly in connection with any loss, cost,
damage or expense of the Partnership)) against and from all liability, demands,
claims, actions or causes of action, assessments, losses, fines, penalties,
costs, damages and expenses (including, without limitation, reasonable
attorneys' and accountants' fees and expenses) sustained or incurred by the
Partnership (or the General Partners, if applicable) as a result of or arising
out of (i) any inaccuracy in any representation or warranty or (ii) any
liability of the Partnership or the General Partners arising from any inaccuracy
in any representation or warranty under the Underwriting Agreement.
B. Notwithstanding anything herein to the contrary, any right or claim
for indemnification pursuant to this Section 15.3 arising out of an inaccuracy
of the representation and warranty made by Prime in item (h) of Exhibit H shall
first be satisfied by recourse to any applicable title insurance before the
Partnership or any of the General Partners shall be entitled to recovery from
Prime.
Section 15.4 Limitations on Indemnification Obligations.
A. The Partnership and the General Partners shall not be entitled to
indemnification under Section 15.3 hereof unless a Notice of Breach has been
respectively delivered by the Partnership or the General Partners within the
time period specified in Section 15.2 hereof.
B. If a claim for indemnification is asserted by the Partnership or any
of the General Partners against a Partner, such Partner shall have the right, at
its own expense, to participate in the
65
<PAGE>
defense of any claim, action or proceeding ("Claim") asserted against the
Partnership or any of the General Partners which resulted in the claim for
indemnification, and if such right is exercised, the parties shall cooperate in
the defense of such action or proceeding.
C. Indemnification of the Partnership and the General Partners pursuant
to Section 15.3 hereof and the remedies in respect thereof as set forth in
Section 15.5 hereof shall be the exclusive remedy of the Partnership and the
General Partners for any breach of any representation or warranty contained
herein, and the only legal action which may be asserted against Prime under this
Article 15 shall be an action asserted pursuant to Section 15.5 hereof.
Section 15.5 Remedies.
A. Each indemnification obligation of Prime under this Agreement shall
be payable by Prime, subject to any limitations contained in a separate
agreement between Prime and the Partnership in existence on the date hereof.
B. In the event the Partnership asserts, within the time period set
forth in Section 15.2 hereof, that Prime has an indemnification obligation to
the Partnership under this Article 15, the Managing General Partner shall
deliver written notice (the "Indemnification Notice") to Prime describing in
reasonable detail the circumstances giving rise to such obligation and the
amount of the Indemnification obligation (an "Indemnification Claim"). In the
event Prime objects to any such Indemnification Claim and provides a written
response to the Partnership within thirty (30) days after delivery of the
Indemnification Notice, which response describes in reasonable detail Prime's
objection to such Indemnification Claim (whether as to the facts giving rise
thereto, the amount thereof, or otherwise) and, if applicable, providing a
recalculation of the amount thereof, Prime and the Managing General Partner
shall meet within ten (10) days to discuss and negotiate in good faith the
Indemnification Claim and Prime's objection thereto. In the event that no
resolution or compromise is reached within thirty (30) days of such meeting, the
dispute regarding the Indemnification Claim shall be submitted to and determined
by the U.S. District Court, Northern District of Illinois or, if such court does
not have jurisdiction over such dispute, such dispute shall be submitted to and
determined by the Circuit Court of Cook County, Cook County, Illinois.
Section 15.6 Limitation of Liability. Notwithstanding anything
contained in this Article 15 (except as contemplated by Section 15.7.B in the
event of a Transfer or exercise of Rights), the aggregate amount of liability of
Prime to the Partnership pursuant to this Article 15 shall be $69,300,000.00.
Section 15.7 Subrogation. In the event that Prime has paid an
indemnification obligation pursuant to this Article 15, and a third party is or
may have liability to the Partnership with respect to the matter which resulted
in the indemnification obligation, Prime shall be subrogated to the rights of
the Partnership against or with respect to such party. Neither the Partnership
nor the Managing General Partner shall have any affirmative obligation or shall
be obligated to incur any cost or expense, as a result of any such subrogation
of rights to Prime.
66
<PAGE>
ARTICLE 16
GENERAL PROVISIONS
Section 16.1 Addresses and Notice. Any notice, demand, request or
report required or permitted to be given or made to a Partner or Assignee under
this Agreement shall be in writing and shall be deemed given or made when
delivered in person or when sent by certified first class United States mail,
nationally recognized overnight delivery service or facsimile transmission to
the Partner or Assignee at the address set forth in Exhibit A hereof or such
other address as the Partners shall notify the Managing General Partner in
writing.
Section 16.2 Titles and Captions. All article or section titles or
captions in this Agreement are for convenience only. They shall not be deemed
part of this Agreement and in no way define, limit, extend or describe the scope
or intent of any provisions hereof. Except as specifically provided otherwise,
references to "Articles" and "Sections" are to Articles and Sections of this
Agreement.
Section 16.3 Pronouns and Plurals. Whenever the context may require,
any pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
Section 16.4 Further Action. The parties shall execute and deliver all
documents, provide all information and take or refrain from taking action as may
be necessary or appropriate to achieve the purposes of this Agreement.
Section 16.5 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns.
Section 16.6 Creditors. Other than as expressly set forth herein with
respect to Indemnitees, none of the provisions of this Agreement shall be for
the benefit of, or shall be enforceable by, any creditor of the Partnership.
Section 16.7 Waiver. No failure or delay by any party to insist upon
the strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon any breach thereof
shall constitute waiver of any such breach or any other covenant, duty,
agreement or condition.
Section 16.8 Counterparts. This Agreement may be executed in
counterparts, all of which together shall constitute one agreement binding on
all the parties hereto, notwithstanding that all such parties are not
signatories to the original or the same counterpart. Each party shall become
bound by this Agreement immediately upon affixing its signature hereto.
Section 16.9 Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
regard to the principles of conflicts of law.
67
<PAGE>
Section 16.10 Invalidity of Provisions. If any provision of this
Agreement is or becomes invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby.
Section 16.11 Entire Agreement. This Agreement contains the entire
understanding and agreement among the Partners with respect to the subject
matter hereof and supersedes any other prior written or oral understandings or
agreements among them with respect thereto; provided, however, that the Partners
agree and acknowledge that the Partnership and the Contributors have signed
separate Tax Indemnity Agreements (individually, a "TIA"), dated as of November
17, 1997. To the extent there is or arises a conflict between a provision in any
of the TIA and this Agreement, the provision of the applicable TIA shall
supersede this Agreement. Further, to the extent there is or arises a conflict
between a provision of the Put Option Agreement and this Agreement, the
provision of the Put Option Agreement shall supersede this Agreement.
Section 16.12 No Rights as Shareholders. Nothing contained in this
Agreement shall be construed as conferring upon the holders of Units any rights
whatsoever as shareholders of the Managing General Partner, including without
limitation any right to receive dividends or other distributions made to
shareholders of the Managing General Partner or to vote or to consent or to
receive notice as shareholders in respect of any meeting of shareholders for the
election of directors of the Managing General Partner or any other matter.
[SIGNATURE PAGE FOLLOWS]
68
<PAGE>
IN WITNESS WHEREOF, the parties hereof have executed this Agreement as
of the date first written above.
MANAGING GENERAL PARTNER:
PRIME GROUP REALTY TRUST
By: /s/ W. Michael Karnes
Name:W. Michael Karnes
Title:Executive VP
<PAGE>
GENERAL PARTNER:
THE NARDI GROUP, L.L.C.
By:/s/ Stephen J. Nardi
Name: Stephen J. Nardi
Title: CEO
<PAGE>
LIMITED PARTNERS:
EDWARD S. HADESMAN
TRUST DATED MAY 22, 1992
By: /s/ Edward S. Hadesman
Name: Edward S. Hadesman
Title: Trustee
GRANDVILLE/NORTHWESTERN
MANAGEMENT CORPORATION,
an Illinois corporation
By:/s/ Edward S. Hadesman
Name: Edward S. Hadesman
Title: President
CAROLYN B. HADESMAN
TRUST DATED MAY 21, 1992
By: /s/ Carolyn B. Hadesman
Name: Carolyn B. Hadesman
Title: Trustee
LISA HADESMAN 1991 TRUST
By:/s/ Edward S. Hadesman
Name: Edward S. Hadesman
Title: Trustee
CYNTHIA HADESMAN 1991 TRUST
By:/s/ Edward S. Hadesman
Name: Edward S. Hadesman
Title: Trustee
<PAGE>
TUCKER B. MAGID
/s/ Tucker B. Magid
FRANCES S. SHUBERT
/s/ Frances S. Shubert
GRANDVILLE ROAD PROPERTY, INC.,
an Illinois corporation
By:/s/ Edward S. Hadesman
Name: Edward S. Hadesman
Title: President
SKY HARBOR ASSOCIATES,
an Illinois limited partnership
By:/s/ Edward S. Hadesman
Name: Edward S. Hadesman
Title: Managing General Partner
<PAGE>
JEFFREY A. PATTERSON
/s/ Jeffrey A. Patterson
<PAGE>
PRIMESTONE INVESTMENT PARTNERS, L.P.
By: PG/PRIMESTONE. L.L.C.
Its general partner
By:THE PRIME GROUP, INC.
Its Administrative Member
By: /s/ Robert J. Rudnik
Name: Robert J. Rudnik
Title: Executive VP
By:BRE/PRIMESTONE INVESTMENT MANAGEMENT L.L.C.
its General Partner
By: /s/ Steve J. Orbuch
Name: Steve J. Orbuch
Title:
<PAGE>
PRIME GROUP LIMITED PARTNERSHIP,
an Illinois limited partnership
By: /s/ Michael W. Reshcke
Name: Michael W. Reschke
Title: Managing General Partner
<PAGE>
EXHIBIT A
PARTNERS, NUMBER OF UNITS AND CAPITAL CONTRIBUTIONS
<TABLE>
<CAPTION>
NUMBER OF CAPITAL
MANAGING GENERAL PARTNER COMMON UNITS CONTRIBUTION
- ------------------------------- -------------- --------------
<S> <C> <C>
Prime Group Realty Trust
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Attn: Richard S. Curto
James F. Hoffman 12,380,000 */
General Partner
The Nardi Group, L.L.C
c/o Stephen J. Nardi
4100 Madison Street
Hillside, IL 60162 927,100 $ 18,542,000
Limited Partners
Edward S. Hadesman
Trust Dated May 22, 1992
c/o Edward S. Hadesman
2500 North Lakeview,
Unit 1401
Chicago, IL 60614 388,677 $ 7,773,540
Grandville/Northwestern
Management Corporation
c/o Edward S. Hadesman
2500 North Lakeview,
Unit 1401
Chicago, IL 60614 9,750 $ 195,000
Carolyn B. Hadesman
Trust Dated May 21, 1992
c/o Edward S. Hadesman
2500 North Lakeview,
Unit 1401
Chicago, IL 60614 54,544 $ 1,090,880
<PAGE>
<CAPTION>
NUMBER OF CAPITAL
MANAGING GENERAL PARTNER COMMON UNITS CONTRIBUTION
- ------------------------------- -------------- --------------
<S> <C> <C>
Limited Partners
Lisa Hadesman 1991 Trust
c/o Edward S. Hadesman
2500 North Lakeview,
Unit 1401
Chicago, IL 60614 169,053 $ 3,381,060
Cynthia Hadesman 1991 Trust
c/o Edward S. Hadesman
2500 North Lakeview,
Unit 1401
Chicago, IL 60614 169,053 $ 3,381,060
Tucker B. Magid
545 Ridge Road
Highland Park, IL 60035 33,085 $ 661,700
Frances S. Shubert
511 Lynn Terrace
Waukegan, IL 60085 28,805 $ 576,100
Grandville Road Property, Inc.
c/o Ms. Frances S. Shubert
511 Lynn Terrace
Waukegan, IL 60085 7,201 $ 144,020
Sky Harbor Associates
c/o Howard I. Bernstein
6541 North Kilbourn
Lincolnwood, IL 60646 62,149 $ 1,242,980
Jeffrey A. Patterson
c/o Prime Group Realty Trust
77 West Wacker Drive
Suite 3900
Chicago, IL 60601 110,000 $ 2,200,000
Limited Partners
Primestone Investment Partners, L.P.
c/o The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Attn: Paul A. Roehri 7,944,893 */
Prime Group Limited Partnership
c/o The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Attn: Michael W. Reshcke
Robert J. Rudnik 90,000 $ 1,800,000
</TABLE>
- -------------------------------
*/ This amount shall be inserted by the Managing General Partner.
<PAGE>
EXHIBIT A - CONTD
PARTNERS, NUMBER OF UNITS AND CAPITAL CONTRIBUTIONS
<TABLE>
<CAPTION>
NUMBER OF CONVERTIBLE CAPITAL
MANAGING GENERAL PARTNER PREFERRED UNITS CONTRIBUTION
- ------------------------------- ----------------------- ----------------
<S> <C> <C>
Prime Group Realty Trust
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Attn: Richard S. Curto
James F. Hoffman 2,000,000 */
</TABLE>
- ------------------------
*/ This amount shall be inserted by the Managing General Partner.
<PAGE>
EXHIBIT B
Contributed Assets and Assumed Contracts and Liabilities
See attached Schedules 1,2,3,4, and 5.
<PAGE>
EXHIBIT B
Contributed Assets and Assumed Contracts and Liabilities
SCHEDULE 1
<TABLE>
<CAPTION>
Interest Being Interest Being
Transferred to Transferred to
Entity Operating Partnership the Company Assignor
- ---------------------------- ---------------------- --------------- ----------
<S> <C> <C> <C>
K/77 Investors Limited
Partnership (dissolve after
assignments)................. 98.9% L.P. .1% L.P. PGLP
1% G.P. Kilico Realty
77 West Wacker Limited
Partnership.................. 5% G.P. Kilico Realty
5% G.P. PGI
34.9% L.P. % L.P. PGI
55% L.P. K/77 Investors
Limited
Partnership
77 Fitness Center Limited
Partnership.................. 89.9% L.P. % L.P. PGLP
10% G.P. PGI (from Prime 77
Fitness Center, Inc.)
1669 Woodfield
Road, L.L.C.................. 98% L.L.C. PGLP (includes 1% from
PGLP, Inc. and 1% from
Prime International, Inc.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Interest Being Interest Being
Transferred to Transferred to
Entity Operating Partnership the Company Assignor
- ---------------------------- ---------------------- --------------- ----------
<S> <C> <C> <C>
1% L.L.C. PGI
1% L.L.C. Prime Group II, L.P.
Triad Development Company
(dissolve after assignments) 25% G.P. Kilico Realty
(PGC Development, Ltd. to
distribute its ownership
interests prior to
assignments) 25% L.P. KILICO
1% G.P. PGI (from Prime of
Tennessee, Inc.)
.48% L.P. (from PGC PGI (from PGC, Inc.)
Development, Ltd.)
16.04% L.P. (from PGC Professional Plaza,
Development, Ltd.) Ltd. (from R. Dan Culp)
32.38% L.P. (31.48% .1% L.P. PGI
from PGC
Development, Ltd.)
Nashville Office Building I, Ltd. 49% G.P. Triad
50.9% L.P. .1% L.P. PGI (from Suzette
Rand)(1)
Professional Plaza, Ltd. (1) 49% G.P. Triad
<FN>
- ---------------------------
(1) Use Power of Attorney granted to Triad Development Company to assign to PGI
and then assign to Operating Partnership and the Company.
(2) Operating Partnership will assign a 1% L.P. interest in this limited
partnership to R. Dan Culp.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Interest Being Interest Being
Transferred to Transferred to
Entity Operating Partnership the Company Assignor
- ---------------------------- ---------------------- --------------- ----------
<S> <C> <C> <C>
50.9% L.P. .1% L.P. PGI (from Tom
Dolinak(2)
Centre Square II, Ltd....... 49% G.P Triad
50.9% L.P. .1% L.P. PGI (from Peter Rowley(2)
-
Old Kingston Properties, Ltd. ....... 49% G.P. Triad
50.9% L.P. .1% L.P. PGI (from Donna
Wadzita)(2)
Triad Parking Corporation
(dissolve after assignments)......... 50% stock PGI
50% stock Kilico Realty
Triad Parking Company, Ltd........... 98.9% L.P. .1% L.P. Triad
1% G.P. Triad Parking
Corporation
Prime Columbus
Industrial, L.L.C.................... 98% LLC PGLP (includes 1% from
Prime International,
Inc.
<FN>
- ------------------------------------------------------------------
(2) Use Power of Attorney granted to Triad Development Company to assign to
PGI and then assign to Operating Partnership and the Company.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Interest Being Interest Being
Transferred to Transferred to
Entity Operating Partnership the Company Assignor
- ---------------------------- ---------------------- --------------- ----------
<S> <C> <C> <C>
and 1% from
PGLP, Inc.)
1% LLC PGI
1% LLC Prime Group II,
L.P.
Arlington Heights I, L.P..... 48.9% L.P. .1% L.P. Prime Group IV,
L.P.
50% L.P. PGLP
1% G.P.* PGI
Arlington Heights II, L.P.... 48.9% L.P. .1% L.P. Prime Group IV,
L.P.
50% L.P. PGLP
1% G.P.* PGI
Arlington Heights III, L.P... 48.9% L.P. .1% L.P. Prime Group IV, L.P.
50% L.P. PGLP
1% G.P.* PGI
Prime IRB Holdings, L.P (to
be dissolved after
assignments and transfer
of Bonds).................... 98.9% L.P. .1% L.P. PGI
1% G.P. PGLP (from Prime
<FN>
- ------------------------------------
* 1% G.P. interest to be assigned to PGI from Prime/AH Industrial Center,
Inc. prior to assignments.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Interest Being Interest Being
Transferred to Transferred to
Entity Operating Partnership the Company Assignor
- ---------------------------- ---------------------- --------------- ----------
<S> <C> <C> <C>
IRB, Inc.)
East Chicago Enterprise
Center Limited
Partnership................. 50% L.P. Prime Group IV, L.P.
22.5% G.P. PGI
27.4% L.P. .1% L.P. PGI
Kemper/Prime Industrial
Partners.................... 50% G.P. Prime Group IV, L.P.
49.9% G.P. .1% G.P. PGI
Hammond Enterprise Center
Limited Partnership......... 50% L.P. Prime Group IV, L.P.
25% G.P. PGI
24.9% L.P. .1% L.P. PGI
K-P Enterprise Centers, Inc. 50% stock PGLP
(dissolve after assignments). 50% stock Prime Group IV, L.P.
K-P Enterprise Centers
Limited Partnership (dissolve
after assignments).......... 49% L.P. PGLP
50% L.P. Prime Group IV, L.P.
1% G.P. K-P Enterprise
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Interest Being Interest Being
Transferred to Transferred to
Entity Operating Partnership the Company Assignor
- ---------------------------- ---------------------- --------------- ----------
<S> <C> <C> <C>
Centers, Inc.
Enterprise Center I, L.P.... 50% G.P. K-P Enterprise
Centers Limited
Partnership
49.9% L.P. .1% L.P. PGLP
Enterprise Center II, L.P.... 50% G.P. K-P Enterprise
Centers Limited
Partnership
49.9% L.P. .1% L.P. PGLP
Enterprise Center III, L.P.... 50% G.P. K-P Enterprise
Centers Limited
Partnership
49.9% L.P. .1% L.P. PGLP
Enterprise Center IV, L.P..... 50% G.P. K-P Enterprise
Centers Limited
Partnership
49.9% L.P. .1% L.P. PGLP
Enterprise Center V, L.P...... 50% G.P. K-P Enterprise
Centers Limited
Partnership
49.9% L.P. .1% L.P. PGLP
Enterprise Center VI, L.P..... 50% G.P. K-P Enterprise
Centers Limited
Partnership
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Interest Being Interest Being
Transferred to Transferred to
Entity Operating Partnership the Company Assignor
- ---------------------------- ---------------------- --------------- ----------
<S> <C> <C> <C>
49.9% L.P. .1% L.P. PGLP
Enterprise Center VII, L.P... 50% G.P. K-P Enterprise
Centers Limited
Partnership
49.9% L.P. .1% L.P. PGLP
Enterprise Center VIII, L.P... 50% G.P. K-P Enterprise
Centers Limited
Partnership
49.9% L.P. .1% L.P. PGLP
Enterprise Center IX, L.P..... 50% G.P. K-P Enterprise
Centers Limited
Partnership
49.9% L.P. .1% L.P. PGLP
Enterprise Center X, L.P...... 50% G.P. K-P Enterprise
Centers Limited
Partnership
49.9% L.P. .1% L.P. PGLP
<FN>----------------------------
All entities on this Schedule 1 are Prime Entities other than 1669
Woodfield Road, L.L.C. and Prime Columbus Industrial, L.L.C. which are Prime
Contribution Entities.
</TABLE>
<PAGE>
EXHIBIT C
RIGHTS TERMS
The Rights granted by the Managing General Partner to the Limited
Partners pursuant to Section 8.6 of the Agreement shall be subject to the
following terms and conditions:
1. Definitions. The following terms and phrases shall, for
purposes of this Exhibit C and the Agreement, have the meanings set forth
below:
"Beneficially Own" shall mean the ownership of Common Shares by a
Person who would be treated as an owner of such Common Shares either
directly or constructively through the application of Section 544 of the
Code, as modified by Section 856(h)(1)(B) of the Code.
"Cash Purchase Price" shall have the meaning set forth in Paragraph 4
hereof.
"Change of Control Event" means the occurrence after the date of this
Agreement of any of the following events:
(i) any person (as defined in or for purposes of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act, or any
successor provision to either of such sections, including
any "group" acting for purposes of acquiring, holding, or
disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act), other than Prime or
any other current Limited Partner or a group (as defined
below) controlling, controlled by or under common control
with Prime or any other Limited Partner, together with
such persons' associates (as defined in Rule 12b-2 under
the Exchange Act) and their respective affiliates (as
defined in Rule 12b-2 under the Exchange Act)
(A) shall become the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of, and shall have the
right to control and exercise, more than 10% of the
total voting power of all of the outstanding Common
Shares; or
(B) shall succeed in having a sufficient number of its
nominees elected to the Managing General Partner's
board of trustees such that such nominees so elected
(whether new or continuing) shall
<PAGE>
constitute a majority of the board of trustees of the
Managing General Partner; or
(ii) a tender offer is commenced (within the meaning of Rule
14d-2 under the Exchange Act) which, if completed, would
result in the offeror owning beneficially 20% or more
of the outstanding Common Shares; or
(iii) any person or group of persons solicits a proxy (as those
terms are defined in Rule 14a-1 under the Exchange Act) for
the purpose of opposing a solicitation of proxies by
management of the Managing General Partner with respect to
any matter, including the election or removal of trustees of
the Managing General Partner, at any annual or special
meeting of shareholders.
"Closing Price" on any date shall mean the average of the daily market
price for the ten (10) consecutive trading days immediately preceding the
date with respect to which the "Closing Price" must be determined hereunder
or, if such date is not a business day, the immediately preceding business
day. The market price for each such trading day shall be: (a) if such shares
are listed or admitted to trading on any securities exchange or the NASDAQ
National Market, the closing price, regular way, on such day, or if no such
sale takes place on such day, the average of the closing bid and asked prices
on such day, (b) if such shares are not listed or admitted to trading on any
securities exchange or the NASDAQ National Market, the last reported sale
price on such day or, if no sale takes place on such day, the average of the
closing bid and asked prices on such day, as reported by a reliable quotation
source designated by the Company, or (c) if such shares are not listed or
admitted to trading on any securities exchange or the NASDAQ National Market
and no such last reported sale price or closing bid and asked prices are
available, the average of the reported high bid and low asked prices on such
day, as reported by a reliable quotation source designated by the Company, or
if there shall be no bid and asked prices on such day, the average of the
high bid and low asked prices, as so reported, on the most recent day (not
more than 10 days prior to the date in question) for which prices have been
no reported; provided, that if there are no bid and asked prices reported
during the 10 days prior to the date in question, the Closing Price of such
shares shall be determined by the Company acting in good faith on the basis
of such
C-2
<PAGE>
quotations and other information as it considers, in its reasonable judgment,
appropriate.
"Computation Date" shall mean the date on which an Exchange
Exercise Notice is delivered to the Managing General Partner.
"Current Per Share Market Price" on any date shall mean the average
of the Closing Price for the five consecutive Trading Days (as defined
herein) ending on such date.
"Election Notice" shall mean the written notice to be given by the
Managing General Partner to the Exercising Partner(s) in response to the
receipt by the Managing General Partner of an Exchange Exercise Notice from
such Exercising Partner(s), the form of which Election Notice is attached
hereto as Schedule 2.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor statute.
"Exchange Exercise Notice" shall have the meaning set forth in
Paragraph 2 hereof.
"Exchange Factor" shall mean 100%; provided, that such factor shall
be adjusted in accordance with the Antidilution Provisions of Paragraph 11
hereof.
"Exchange Rights" shall have the meaning set forth in Paragraph 2
hereof.
"Exercising Partners" shall have the meaning set forth in Paragraph
2 hereof.
"Hart Scott Act" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Offered Common Units" shall mean the Common Units of the
Exercising Partner(s) identified in an Exchange Exercise Notice which,
pursuant to the exercise of Exchange Rights, can be acquired by the Managing
General Partner under the terms hereof.
"Ownership Limit" shall have the meaning set forth in Paragraph 3
hereof.
"Purchase Price" shall mean the Cash Purchase Price or the Share
Purchase Price.
C-3
<PAGE>
"Registration Rights Agreement" shall mean the agreement respecting the
registration rights attributable to Common Shares, if any, issued to Limited
Partners in accordance with the provisions hereof, the form of which is
attached hereto as Schedule 3.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor statute.
"Share Purchase Price" shall have the meaning set forth in
Paragraph 4 hereof.
2. Delivery of Exchange Exercise Notices and Election Notices.
Any one or more Limited Partners ("Exercising Partners") may, subject to the
limitations set forth herein, deliver to the Managing General Partner written
notice (the "Exchange Exercise Notice") pursuant to which such Exercising
Partners elect to exercise their rights to convert (the "Exchange Rights")
all or any portion of their Common Units into Common Shares subject to the
limitations contained in Paragraph 3 below. Within thirty (30) days after
receipt by the Managing General Partner of the Exchange Exercise Notice, the
Managing General Partner shall deliver a notice (the "Election
Notice")substantially in the form of Schedule 2 attached hereto, specifying
the election by the Managing General Partner to deliver either the Share
Purchase Price or the Cash Purchase Price to the Exercising Partner(s).
3. Limitation on Exercise of Exchange Rights. The Exchange
Rights shall expire with respect to any Common Units for which an Exchange
Exercise Notice has not been delivered to the Managing General Partner on
January 1, 2051. Exchange Rights may be exercised at any time after the
first anniversary of the date hereof and from time to time thereafter prior
to January 1, 2051, subject to the limitations contained herein and in the
Managing General Partner's Declaration of Trust, as amended (the "Ownership
Limit"). For purposes of computing the Ownership Limit as of any date, each
Limited Partner and its Affiliates shall be deemed to own all Common Shares
issuable to such Limited Partner and its Affiliates upon the exercise of
stock options granted on or before such date under the Share Incentive Plan.
If an Exchange Exercise Notice is delivered to the Managing General Partner
but, as a result of the Ownership Limit, the Exchange Rights cannot be
exercised in full, the Exchange Exercise Notice shall be deemed to be
modified such that the Exchange Rights shall be exercised only to the extent
permitted under the Ownership Limit, with the exercise of the remainder of
such Exchange Rights being deemed to have been withdrawn.
4. Computation of Purchase Price/Form of Payment. The
C-4
<PAGE>
Purchase Price payable by the Managing General Partner to each Exercising
Partner for the Offered Common Units shall be payable by the issuance by the
Managing General Partner of the number of shares of its Common Shares equal
to the product, expressed as a whole number, of (i) the number of Common
Units being converted, multiplied by (ii) the Exchange Factor (the "Share
Purchase Price"). At the election of the Managing General Partner
exercisable by the independent trustees of the Managing General Partner in
their sole and absolute discretion, the Purchase Price may be paid in whole
(but not in part) in cash rather than in Common Shares (the "Cash Purchase
Price"). The Cash Purchase Price shall mean, with respect to the applicable
number of Offered Common Units which are being purchased for cash upon the
exercise of any Exchange Right, an amount of cash (in immediately available
funds) equal to (i) the number of Common Shares of the Managing General
Partner that would be issued to the Exercising Partner if the Share Purchase
Price were paid for such Offered Common Units (taking into account the
adjustments required pursuant to the definition of "Exchange Factor")
multiplied by (ii) the Current Per Share Market Price computed as of the
Computation Date. The Cash Purchase Price shall, in the sole and absolute
discretion of the Managing General Partner, be paid in the form of cash, or
cashier's or certified check, or by wire transfer of immediately available
funds to the Exercising Partner's designated account.
5. Closing; Delivery of Election Notice. The closing of the
acquisition of Offered Common Units shall, unless otherwise mutually agreed,
be held at the principal office of the Managing General Partner, on the
following date(s):
(a) With respect to the exercise of Exchange Rights for which
the Managing General Partner elects to pay the Share Purchase Price,
the closing shall occur on the date agreed to by the Managing
General Partner and the Exercising Partner(s), which date shall in
no event be on or after the date which is the later of (i) ten (10)
days after the delivery of the Election Notice; (ii) the expiration
or termination of the waiting period applicable to each Exercising
Partner, if any, under the Hart Scott Act; and (iii) forty (40)
days after receipt of the Exchange Exercise Notice delivered in
accordance with the requirements of Paragraph 3 hereof; and
(b) With respect to the exercise of Exchange Rights for which
the Managing General Partner elects to pay the Cash Purchase Price,
the closing shall occur on the date agreed to by the Managing General
Partner and the Exercising Partner(s), which date shall in no event
be later than sixty (60) days after the Computation Date for such
Exchange Exercise Notice; provided, however, that such sixty (60) day
period may be
C-5
<PAGE>
extended for an additional period of up to thirty (30) additional
days to the extent required for the Managing General Partner to cause
additional Common Shares to be issued to provide financing to be used
to acquire the Offered Common Units. Notwithstanding the foregoing,
the Managing General Partner agrees to use its best efforts to cause
the closing of the acquisition of Offered Common Units hereunder to
occur as quickly as possible.
6. Further Limitations on Exercise.
(a) Any exercise of Exchange Rights that would cause the
Partnership to cease to qualify as a partnership for Federal income tax
purposes (including for purposes of Code Section 7704) or would violate the
Managing General Partner's Declaration of Trust shall be null and void, and
shall not be recognized by the Managing General Partner or the Partnership
for any purpose whatsoever. This requirement may be waived by the
independent trustees of the Managing General Partner, and shall not apply to
(i) the exercise by the sole remaining Limited Partner of the Exchange Rights
with respect to all of his or its Common Units or (ii) the exercise by any of
the Limited Partners or any of their Affiliates if (A) all of the Limited
Partners and their Affiliates (whether or not they are beneficiaries of any
pledge of Common Units by Prime) are exercising Exchange Rights with respect
to all Common Units then held by them; (B) after the consummation of the
proposed Exchange, all Limited Partners beneficially and constructively own
less than twenty percent (20%) of the Managing General Partner's outstanding
Common Shares; or (C) all of the Common Shares to be received by such Limited
Partners or their Affiliates as a result of such Exchange are registered
under the Securities Act for sale to the public and are sold to the public
contemporaneously with the Exchange.
(b) Each Limited Partner acknowledges and agrees that the
issuance of Common Shares pursuant to the exercise of the Exchange Rights
will not be registered under the Securities Act or any state securities laws.
Accordingly, Common Shares issued to such Limited Partner may be required to
be held indefinitely and the Managing General Partner shall have no
obligation to register such shares under the Securities Act or any state
securities laws unless required to do so pursuant to the Registration Rights
Agreement. In addition, such Limited Partner will be required to meet such
other requirements and to provide such other information and representations
as the Managing General Partner may require, which are required in the
opinion of its counsel to lawfully allow it to issue such Common Shares
without registration under the Securities Act and any applicable state
securities laws. Each Limited Partner acknowledges that the certificates
representing
C-6
<PAGE>
Common Shares issued will also bear a legend with respect to any restrictions
on transfer required in the opinion of counsel for the Managing General
Partner.
(c) The Exchange Rights shall not be exercised with respect
to fewer than one thousand (1000) Common Units at any one time or all Common
Units then owned by such Person exercising such Exchange Rights.
7. Closing Deliveries. At the closing, payment of the Purchase
Price shall be accompanied by proper instruments of transfer and assignment
and by the delivery of (i) representations and warranties of (A) the
Exercising Partner with respect to its due authority to sell all of the
right, title and interest in and to such Offered Common Units to the Managing
General Partner and with respect to the status of the Offered Common Units
being sold, free and clear of all Liens and (B) the Managing General Partner
with respect to due authority for the purchase of such Offered Common Units,
and (ii) to the extent that Common Shares are issued in payment of the Share
Purchase Price, (A) an opinion of counsel for the Managing General Partner,
reasonably satisfactory to the Exercising Partner(s), to the effect that such
Common Shares have been duly authorized, are validly issued, fully-paid and
nonassessable and (B) a certificate or certificates evidencing the Common
Shares to be issued and registered in the name of the Exercising Partner(s)
or its (their) designee. The delivery of the Offered Common Units to the
Managing General Partner shall be a condition to the receipt by the
Exercising Partner of the Purchase Price.
8. Term of Rights. Unless sooner terminated, the rights of the
parties to exercise the Exchange Rights shall lapse for all purposes and in
all respects on January 1, 2051; provided, however, that the parties hereto
shall continue to be bound by an Exchange Exercise Notice delivered to the
Managing General Partner prior to such date.
9. Covenants of the Managing General Partner. To facilitate the
Managing General Partner's ability to fully perform its obligations
hereunder, the Managing General Partner covenants and agrees as follows:
(a) At all times during the pendency of the Exchange Rights,
the Managing General Partner shall reserve for issuance such number
of Common Shares as may be necessary to enable the Managing General
Partner to issue such shares in full payment of the Share Purchase
Price in regard to all Common Units held by Limited Partners and
which are from time to time outstanding.
C-7
<PAGE>
(b) As long as the Managing General Partner shall be obligated
to file periodic reports under the Exchange Act, the Managing General
Partner will timely file such reports in such manner as shall enable
any recipient of Common Shares issued to Limited Partners hereunder
in reliance upon an exemption from registration under the Securities
Act to continue to be eligible to utilize Rule 144 promulgated by the
Securities and Exchange Commission pursuant to the Securities Act, or
any successor rule or regulation or statute thereunder, for the
resale thereof.
(c) During the pendency of the Exchange Rights, the Limited
Partners shall receive in a timely manner all reports filed by the
Managing General Partner with the Securities and Exchange Commission
and all other communications transmitted from time to time by the
Managing General Partner to its shareholders generally.
(d) The Managing General Partner shall cooperate with the
Limited Partners in the exercise of their Exchange Rights hereunder.
10. Limited Partners' Covenants. (a) Each Limited Partner
covenants and agrees with the Managing General Partner that all Offered
Common Units tendered to the Managing General Partner in accordance with the
exercise of Exchange Rights herein provided shall be delivered to the
Managing General Partner free and clear of all Liens (or will be released
from such Liens concurrently with the exchange of offered Common Units) and
should any Liens exist or arise with respect to such Offered Common Units,
the Managing General Partner shall be under no obligation to acquire the same
unless, in connection with such acquisition, the Managing General Partner has
elected to pay a portion of the purchase price in the form of the Cash
Purchase Price in circumstances where such Cash Purchase Price will be
sufficient to cause such existing Lien to be discharged in full upon
application of all or a part of the Cash Purchase Price and the Managing
General Partner is expressly authorized to apply such portion of the Cash
Purchase Price as may be necessary to satisfy any indebtedness in full and to
discharge such Lien in full. Each Limited Partner further agrees that, in
the event any state or local property transfer tax is payable as a result of
the transfer of its Offered Common Units to the Managing General Partner (or
its designee), such Limited Partner shall assume and pay such transfer tax.
Finally, each Limited Partner agrees that, to the extent it receives an
amount of Net Cash Flow under Section 5.5 of the Agreement in respect of
Section 5.1 of the Agreement that is treated as a distribution to the
Managing General Partner for purposes of determining the Capital Account of
the Managing General Partner, such Limited Partner will treat such
C-8
<PAGE>
amount of Net Cash Flow for income tax purposes as an additional amount paid
by the Managing General Partner and realized by it in exchange for the
Offered Common Units.
11. Antidilution Provisions.
(a) The Exchange Factor shall be subject to adjustment from time to
time effective upon the occurrence of the following events and shall be
expressed as a percentage, calculated to the nearest one-thousandth of one
percent (.001%):
(i) In case the Managing General Partner shall pay or make
a dividend or other distribution in Common Shares to all holders
of the Common Shares, the Exchange Factor in effect at the
opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend
or other distribution shall be increased in proportion to the
increase in outstanding Common Shares resulting from such
dividend or other distribution, such increase to become effective
immediately after the opening of business on the day following
the record date fixed for such dividend or other distribution.
(ii) In case outstanding Common Shares shall be subdivided
into a greater number of shares, the Exchange Factor in effect at
the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately
increased, and, conversely, in case the outstanding Common Shares
shall be combined into a smaller number of shares, the Exchange
Factor in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case
may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision
or combination becomes effective.
(b) In case the Managing General Partner shall issue rights,
options or warrants to all holders of its Common Shares entitling them to
subscribe for or purchase Common Shares at a price per share less than the
current market price per share (as determined in the next sentence), each
holder of a Common Unit shall be entitled to receive such number of rights,
options or warrants for Common Units, as the case may be, as he would have
been entitled to receive had he converted his Common Units immediately prior
to the record date for such issuance by the Managing General Partner (except
to the extent such receipt shall cause such holder to exceed the Ownership
Limit). For the purpose of any computation pursuant to the preceding
sentence, the current market price per
C-9
<PAGE>
share of Common Shares on any date shall be deemed to be the average of the
daily Closing Prices for the five consecutive Trading Days selected by the
Managing General Partner commencing not more than twenty (20) Trading Days
before, and ending not later than, the earlier of the day in question and the
day before the "ex" date with respect to the issuance or distribution
requiring such computation. For purposes of this Exhibit C, the term "Trading
Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday, other
than any day which securities are not traded on such exchange or in such
market and the term "'ex' date", when used in respect of any issuance or
distribution, shall mean the first date on which the shares trade regular way
on such exchange or in such market without the right to receive such issuance
or distribution.
(c) In case the Common Shares shall be changed into the same or a
different number of shares of any class or classes of shares, whether by
capital reorganization, reclassification, or otherwise (other than
subdivision or combination of shares or a share dividend described in
subparagraph (a)(ii) of this Paragraph 11) then and in each such event the
Limited Partners shall have the right thereafter to convert their Common
Units into the kind and amount of shares and other securities and property
which would have been received upon such reorganization, reclassification or
other change by holders of the number of shares into which the Common Units
might have been converted immediately prior to such reorganization,
reclassification or change.
(d) The Managing General Partner may, but shall not be required to,
make such adjustments to the number of Common Shares issuable upon conversion
of a Common Unit, in addition to those required by this Paragraph 11, as the
Managing General Partner's board of trustees considers to be advisable in
order that any event treated for federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients. The Managing
General Partner's board of trustees shall have the power to resolve any
ambiguity or correct any error in the adjustments made pursuant to this
Paragraph and its actions in so doing shall be final and conclusive.
12. Fractions of Shares. No fractional Common Shares shall be
issued upon conversion of Common Units. If more than one Common Unit shall
be surrendered for conversion at one time by the same Exercising Partner, the
number of full Common Shares which shall be issuable upon conversion thereof
(or the cash equivalent amount thereof if the Cash Purchase Price is paid)
shall be computed on the basis of the aggregate amount of Common Units so
surrendered. Instead of any fractional Common Share which would otherwise be
issuable upon conversion of any Common Unit or Common Units, the
C-10
<PAGE>
Managing General Partner shall pay a cash adjustment in respect of such
fraction in an amount equal to the same fraction of the current market price
per share at the close of business on the day of closing specified in
Paragraph 5(b) hereof (or, if such day is not a Trading Day, on the Trading
Day immediately preceding such day).
13. Notice of Adjustments of Exchange Factor. Whenever the
Exchange Factor is adjusted as herein provided:
(a) the Managing General Partner shall compute the adjusted
Exchange Factor in accordance with Paragraph 11 hereof and shall
prepare a certificate signed by the chief financial officer or the
Treasurer of the Managing General Partner setting forth the adjusted
Exchange Factor and showing in reasonable detail the facts upon which
such adjustment is based; and
(b) a notice stating that the Exchange Factor has been adjusted
and setting forth the adjusted Exchange Factor shall forthwith be
mailed by the Managing General Partner to all holders of Exchange
Rights at their last addresses on record under this Agreement.
14. Notice of Certain Corporate Actions. In case:
(a) the Managing General Partner shall declare a dividend (or
any other distribution) on its Common Shares payable otherwise than
in cash; or
(b) the Managing General Partner shall authorize the granting
to the holders of its Common Shares of rights, options or warrants to
subscribe for or purchase any shares of any class or of any other
rights; or
(c) of any reclassification of the Common Shares (other than a
subdivision or combination of its outstanding Common Shares, or of any
consolidation, merger or share exchange to which the Managing General
Partner is a party and for which approval of any shareholders of the
Managing General Partner is required), or of the sale or transfer of
all or substantially all of the assets of the Managing General
Partner; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Managing General Partner;
then the Managing General Partner shall cause to be mailed to all holders of
Exchange Rights at their last addresses on record under
C-11
<PAGE>
this Agreement, at least 20 days (or 12 days in any case specified in clause
(a) or (b) above) prior to the applicable record date hereinafter specified,
a notice stating (i) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights, options or warrants, or, if a
record is not to be taken, the date as of which the holders of Common Shares
of record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined or (ii) the date on which such
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and
the date as of which it is expected that holders of Common Shares of record
shall be entitled to exchange their shares for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, share
exchange, sale, transfer, dissolution, liquidation or winding up.
15. Provisions in Case of Consolidation, Merger or Sale of Assets.
In case of (i) any consolidation of the Managing General Partner with, or
merger of the Managing General Partner into, any other Person, (ii) any
merger or consolidation of another Person into the Managing General Partner
(other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding Common Shares of the
Managing General Partner), or (iii) any sale or transfer of all or
substantially all of the assets of the Managing General Partner, the Person
formed by such consolidation or resulting from such merger or which acquires
such assets of the Managing General Partner, as the case may be, shall
execute and deliver to each holder of Exchange Rights an agreement providing
that such holder shall have the right thereafter, during the period such
Exchange Rights shall be exercisable as specified herein, to require the
conversion of Common Units for the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer
by a holder of the number of Common Shares into which such Common Unit might
have been converted immediately prior to such consolidation, merger, sale or
transfer, assuming such holder of Common Shares is not a Person with which
the Managing General Partner consolidated or into which the Managing General
Partner merged or which merged into the Managing General Partner, or to which
such sale or transfer, was made, as the case may be (a "Constituent Person"),
or an Affiliate of a Constituent Person, and failed to exercise his right of
election, if any, as to the kind or amount of securities, cash or other
property receivable upon such consolidation, merger, sale or transfer;
provided, that if the kind or amount of securities,
C-12
<PAGE>
cash and other property receivable upon such consolidation, merger, sale or
transfer is not the same for each Common Share in respect of which such
rights of election shall not have been exercised (a "non-electing Share"),
then for the purpose of this Paragraph 15 the kind and amount of
securities, cash and other property receivable upon such consolidation,
merger, sale or transfer by each non-electing Share shall be deemed to be
the kind and amount so receivable per share by a plurality of the
non-electing Shares. Such agreement shall provide for adjustments which,
for events subsequent to the effective date of such agreement, shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Exhibit C. The above provisions of this Paragraph 15 shall similarly
apply to successive consolidations, mergers, sales or transfers.
C-13
<PAGE>
SCHEDULE 1
EXCHANGE EXERCISE NOTICE
To: Prime Group Realty Trust
Reference is made to that certain Agreement of Limited Partnership
of Prime Group Realty, L.P. dated November 17, 1997 (the "Partnership
Agreement"), pursuant to which Prime Group Realty Trust, a Maryland real
estate investment trust, and certain other persons, including the
undersigned, formed a Delaware limited partnership known as Prime Group
Realty, L.P. (the "Partnership"). Capitalized terms used but not defined
herein shall have the meanings set forth in the Partnership Agreement.
Pursuant to Section 8.6 and Paragraph 2 of Exhibit C of the Partnership
Agreement, each of the undersigned, being a limited partner of the
Partnership (an "Exercising Partner"), hereby elects to exercise its Exchange
Rights as to the number of Offered Common Units specified opposite its name
below:
Dated: _________________
Number of Offered
Name of Exercising Partner Common Units
- --------------------------- ------------------
Exercising Partners:
- --------------------------
- --------------------------
(Authorized Signatory)
C-14
<PAGE>
SCHEDULE 2
ELECTION NOTICE
To: Exercising Partner(s)
Reference is made to that certain Agreement of Limited Partnership
of Prime Group Realty, L.P. dated November 17, 1997 (the "Partnership
Agreement"), pursuant to which the undersigned and certain other persons,
including the Exercising Partners, formed a Delaware limited partnership
known as Prime Group Realty, L.P. (the "Partnership"). All capitalized terms
used but not defined herein shall have the meanings set forth in the
Partnership Agreement. Pursuant to subsection (b) of Paragraph 5 of Exhibit
C to the Partnership Agreement, the undersigned, being the managing general
partner of the Partnership, hereby notifies the Exercising Partner(s) that
[(a) the Share Purchase Price is payable by issuance of the number of Common
Shares to the Exercising Partner(s), as set forth below,] [(b) it has elected
to pay the Cash Purchase Price by payment of cash to the Exercising Partner(s)
for the number of Offered Common Units, as set forth below,] (c) the
computation of the [Share Purchase Price and Cash Purchase Price] is
as set forth on an attachment hereto, (d) the closing of the purchase and
sale of the Offered Common Units by payment of the
[Share Purchase Price shall take place at the offices of __________________
on [date]] and [(e) the closing of the payment of the Cash Purchase Price shall
take place at the offices of _____________________ on [date].
<TABLE>
<CAPTION>
NUMBER OF
EXERCISING OFFERED SHARE CASH
PARTNER(S) COMMON UNITS PURCHASE PRICE PURCHASE PRICE
- ------------- ---------------- ----------------- ----------------
<S> <C> <C> <C>
Dated:_______________
</TABLE>
PRIME GROUP REALTY TRUST, a
Maryland real estate investment trust
By: ________________________________
Its:________________________________
C-15
<PAGE>
EXHIBIT E
FORM OF SPECIMEN COMMON UNIT CERTIFICATE
COMMON UNITS
Certificate No.
THIS CERTIFICATE IS
TRANSFERABLE IN
CHICAGO, ILLINOIS
AT THE OFFICES OF
PRIME GROUP REALTY, L.P.
PRIME GROUP REALTY, L.P.
ORGANIZED UNDER THE LAWS
OF THE STATE OF DELAWARE
SEE THE REVERSE FOR CERTAIN RESTRICTIONS
THIS CERTIFIES THAT --------------------------------------------
IS THE OWNER OF ------------------------------------------------
Common Units of Prime Group Realty, L.P., a limited partnership organized
under the laws of the State of Delaware (the 'Partnership'), transferable
only on the books of the Partnership by the holder hereof in person or by
duly authorized attorney upon the surrender of this Certificate properly
endorsed. The Common Units evidenced by this Certificate are subject to the
Amended and Restated Agreement of Limited Partnership of the Partnership, as
amended from time to time. The holder hereof has no interest, legal or
equitable, in any specific property of the Partnership. This Certificate is
not valid unless countersigned by the Managing General Partner of the
Partnership.
WITNESS the signatures of duly authorized officers of the
Managing General Partner of the Partnership.
Dated: --------------
Prime Group Realty Trust
Managing General Partner
By: -----------------------
President
Attest: --------------------
<PAGE>
PRIME GROUP REALTY, L.P.
THE PARTNERSHIP IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF
UNIT. THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (THE
"PARTNERSHIP AGREEMENT") OF THE PARTNERSHIP ON FILE IN THE OFFICE OF THE
MANAGING GENERAL PARTNER OF THE PARTNERSHIP SETS FORTH A FULL STATEMENT OF
(A) ALL OF THE DESIGNATIONS, PREFERENCES, RIGHTS, VOTING POWERS,
RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND TERMS AND
CONDITIONS OF REDEMPTIONS, AND OTHER RELATIVE RIGHTS OF THE UNITS OF EACH
CLASS OF UNITS AUTHORIZED TO BE ISSUED AND (B) THE AUTHORITY OF THE MANAGING
GENERAL PARTNER TO ISSUE ANY PREFERRED OR SPECIAL CLASS IN SERIES, THE
DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES BETWEEN THE UNITS OF EACH
SERIES TO THE EXTENT THEY HAVE BEEN SET AND THE AUTHORITY OF THE MANAGING
GENERAL PARTNER TO SET THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT
SERIES OF PREFERRED UNITS.
THE COMMON UNITS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS,
AND THE UNITS CANNOT BE SOLD UNLESS SUBSEQUENTLY REGISTERED UNDER THE
SECURITIES ACT AND SUCH LAWS, OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. THE UNITS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION.
THE TRANSFER OF THESE COMMON UNITS IS RESTRICTED AS SET FORTH
IN THE PARTNERSHIP AGREEMENT AND MAY ONLY BE TRANSFERRED BY THE COMPLIANCE BY
THE TRANSFEROR AND TRANSFEREE WITH ALL THE TERMS AND CONDITIONS SET FORTH IN
THE PARTNERSHIP AGREEMENT.
All capitalized terms in this legend have the meanings defined
in the Partnership Agreement, a copy of which, including information
regarding classes of units authorized to be issued by the Partnership and the
restrictions on transfer, will be sent without charge to each unitholder on
request to the Secretary of the Managing General Partner of the Partnership
at 77 West Wacker Drive, Suite 3900, Chicago, Illinois or at such other
address as the Managing General Partner shall direct.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were written
out in fulfill to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of survivorship
and not as tenants in common
<PAGE>
For Value Received,----------------- hereby sells, assigns, and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF
ASSIGNEE)
- ---------------------------------------------------- Common Units
represented by the within Certificate, and do hereby irrevocably
constitute and appoint --------------------------------
- --------------------------- Attorney to transfer the said shares on
the books of the within named Partnership with full power of substitution
in the premises.
Dated ------------------
Signature:---------------------------
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of the Certificate in every
particular, without alteration or enlargement
or any change whatsoever.
<PAGE>
EXHIBIT F
LIMITED PARTNER OWNERSHIP OF INTERESTS IN TENANTS
The Prime Group, Inc. or Prime Group Limited Partnership has an interest
in three of the tenants of the 77 West Wacker Drive Building:
1. Brookdale Living Communities, Inc.
2. The Prime Group, Inc.
3. Ambassador Apartments, Inc.
<PAGE>
EXHIBIT G
Limited Partner Ownership of Interests (Common Shares) in Managing
General Partner
NONE
<PAGE>
EXHIBIT H
REPRESENTATIONS AND WARRANTIES OF PRIME
Prime hereby represents and warrants as to the same matters and to the same
extent as set forth in Section 6 of the Formation Agreement dated as of November
17, 1997 among Prime Group Realty Trust, Prime Group Realty, L.P., Prime Group
Realty Services, Inc., Prime, Prime Group Limited Partnership and Jeffrey A.
Patterson.
<PAGE>
EXHIBIT I
CONTRIBUTORS
The Nardi Group, L.L.C.
Edward S. Hadesman Trust Dated May 22, 1992
Grandville/Northwestern Management Corporation
Carolyn B. Hadesman Trust Dated May 21, 1992
Lisa Hadesman 1991 Trust
Cynthia Hadesman 1991 Trust
Tucker B. Magid
Frances S. Shubert
Grandville Road Property, Inc.
Sky Harbor Associates
<PAGE>
EXHIBIT J
PROPERTY PARTNERSHIPS
77 West Wacker Limited Partnership
Enterprise Center I, L.P.
Enterprise Center II, L.P.
Enterprise Center III, L.P.
Enterprise Center IV, L.P.
Enterprise Center V, L.P.
Enterprise Center VI, L.P.
Enterprise Center VII, L.P.
Enterprise Center VIII, L.P.
Enterprise Center IX, L.P.
Enterprise Center X, L.P.
Arlington Heights I, L.P.
Arlington Heights II, L.P.
Arlington Heights III, L.P.
East Chicago Enterprise Center Limited Partnership
Hammond Enterprise Center Limited Partnership
Nashville Office Building I, Ltd.
Old Kingston Properties, Ltd.
Professional Plaza, Ltd.
Centre Square II, Ltd.
Triad Parking Company, Ltd.
1990 Algonquin Road, L.L.C.
2010 Algonquin Road, L.L.C.
555 Huehl Road, L.L.C.
1669 Woodfield Road, L.L.C.
475 Superior Avenue, L.L.C.
Enterprise Drive, L.L.C.
280 Shuman Blvd., L.L.C.
77 Fitness Center Limited Partnership
Libertyville Tech Way, L.L.C.
3818 Grandville, L.L.C.
306 Era Drive, L.L.C.
1301 Ridgeview Drive, L.L.C.
515 Huehl Road, L.L.C.
455 Academy Drive, L.L.C.
801 Technology Way, L.L.C.
Prime Columbus Industrial, L.L.C.
Kemper/Prime Industrial Partners
1051 N. Kirk Road, L.L.C.
<PAGE>
4211 Madison Street, L.L.C.
200 E. Fullerton L.L.C.
350 Randy Road, L.L.C.
4300 Madison Street, L.L.C.
370 Carol Lane, L.L.C.
388 Carol Lane, L.L.C.
941 Weigel Drive, L.L.C.
342 Carol Lane, L.L.C.
343 Carol Lane, L.L.C.
371 N. Gary Avenue, L.L.C.
350 N. Mannheim Road, L.L.C.
1600 167th Street, L.L.C.
1301 E. Tower Road, L.L.C.
4343 Commerce Court, L.L.C.
11039 Gage Avenue, L.L.C.
11045 Gage Avenue, L.L.C.
1401 S. Jefferson, L.L.C.
4100 Madison Street, L.L.C.
4160 Madison Street, L.L.C.
550 Kehoe Blvd., L.L.C.
<PAGE>
AMENDMENT NO. 1 TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF PRIME GROUP REALTY, L.P.
This AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF PRIME GROUP REALTY, L.P. (this "Amendment") is made as of
December 15, 1997 by Prime Group Realty Trust, a Maryland real estate investment
trust ("PGRT"), as the Managing General Partner of Prime Group Realty, L.P., a
Delaware limited partnership (the "Partnership"), and on behalf of the other
Partners (as hereinafter defined) of the Partnership. Capitalized terms used but
not otherwise defined herein shall have the meanings given to such terms in the
Amended and Restated Agreement of Limited Partnership of the Partnership, dated
as of November 17, 1997, by and among PGRT and the other parties signatory
thereto (the "Limited Partnership Agreement").
W I T N E S S E T H:
WHEREAS, on December 15, 1997, 600,000 Common Shares (the
"Over-Allotment Shares") were issued and sold by PGRT to the Underwriters (as
defined in the Underwriting Agreement) pursuant to the Underwriters'
over-allotment option granted under the Underwriting Agreement;
WHEREAS, pursuant to Section 4.3.D. of the Limited Partnership
Agreement, (i) PGRT has made a Capital Contribution of the net proceeds from the
issuance and sale of the Over-Allotment Shares, and (ii) PGRT shall receive
Common Units corresponding to such Over-Allotment Shares;
WHEREAS, the Partners desire to amend the Limited Partnership Agreement
to reflect the increase in outstanding Common Units as a result of the issuance
of 600,000 Common Units to PGRT in connection with the issuance and sale by PGRT
of the Over-Allotment Shares to the Underwriters; and
WHEREAS, Section 2.4 of the Limited Partnership Agreement authorizes,
among other things, the Managing General Partner, as true and lawful agent and
attorney-in-fact, to execute, swear to, acknowledge, deliver, file and record
this Amendment on behalf of each Partner that has executed the Limited
Partnership Agreement and on behalf of the Partnership.
NOW, THEREFORE, for good and adequate consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
<PAGE>
Section 1. Issuance of Common Units Pursuant to Section 4.3.D. of the
Limited Partnership Agreement. The net proceeds from the issuance and sale of
the Over-Allotment Shares have been received by the Partnership as a Capital
Contribution from PGRT. The Partnership hereby issues 600,000 Common Units of
General Partner Interest to PGRT, pursuant to Section 4.3.D. of the Limited
Partnership Agreement, which shall correspond to the Over-Allotment Shares. Such
Common Units of General Partner Interest issued pursuant to this Section 1 shall
not be evidenced by a Common Unit certificate unless hereafter requested by
PGRT.
Section 2. Amendment of Exhibit A to Limited Partnership Agreement.
Exhibit A to the Limited Partnership Agreement is hereby amended and restated to
reflect the aforementioned change(s) by deleting Exhibit A attached thereto in
its entirety, and by attaching in lieu thereof a replacement exhibit in the form
of Exhibit A attached hereto. From and after the effectiveness of this
Amendment, the amended and restated Exhibit A attached hereto shall be the only
Exhibit A to the Limited Partnership Agreement, unless and until it is hereafter
further amended.
Section 3. Reference to and Effect on the Limited Partnership
Agreement.
A. The Limited Partnership Agreement is hereby deemed to be
amended to the extent necessary to effect the matters contemplated by this
Amendment. Except as specifically provided for herein above, the provisions of
the Limited Partnership Agreement shall remain in full force and effect.
B. The execution, delivery and effectiveness of this Amendment
shall not operate (i) as a waiver of any provision, right or obligation of the
Managing General Partner, the other General Partner or any Limited Partner under
the Limited Partnership Agreement except as specifically set forth herein or
(ii) as a waiver or consent to any subsequent action or transaction.
Section 4. Applicable Law. This Amendment shall be
construed in accordance with and governed by the laws of the State of
Delaware, without regard to the principles of conflicts of law.
[signature page follows]
-2-
<PAGE>
AMENDMENT NO. 1 TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF PRIME
GROUP REALTY, L.P.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
MANAGING GENERAL PARTNER:
PRIME GROUP REALTY TRUST, a
Maryland real estate investment trust
By: /s/ W. Michael Karnes
----------------------
Name: W. Michael Karnes
------------------
Title: Chief Financial Officer
-----------------------
LIMITED PARTNERS:
--------------------
Each Limited Partner hereby executes
this Amendment to the Limited
Partnership Agreement.
By: PRIME GROUP REALTY TRUST, a
Maryland real estate investment
trust, as attorney-in-fact
By: /s/ W. Michael Karnes
---------------------
Name: W. Michael Karnes
------------------
Its: Chief Financial Officer
-----------------------
-3-
<PAGE>
-4-
<PAGE>
EXHIBIT A*/
Partners, Number of Units and Capital Contributions
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Number of Capital
Common Units Contribution
------------ ------------
<S> <C> <C>
Managing General Partner
- ------------------------
Prime Group Realty Trust 12,980,000 **/
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Attn: Richard S. Curto
James F. Hoffman
General Partner
- ---------------
The Nardi Group, L.L.C 927,100 $18,542,000
c/o Stephen J. Nardi
4100 Madison Street
Hillside, IL 60162
Limited Partners
- ----------------
Edward S. Hadesman 388,677 $7,773,540
Trust Dated May 22, 1992
c/o Edward S. Hadesman
2500 North Lakeview, Unit 1401
Chicago, IL 60614
Grandville/Northwestern 9,750 $195,000
Management Corporation
c/o Edward S. Hadesman
2500 North Lakeview, Unit 1401
Chicago, IL 60614
Carolyn B. Hadesman 54,544 $1,090,880
Trust Dated May 21, 1992
c/o Edward S. Hadesman
2500 North Lakeview, Unit 1401
Chicago, IL 60614
</TABLE>
*/ As amended by Amendment No. 2 to the Amended and Restated Agreement of
Limited Partnership of Prime - Group Realty, L.P.
**/ This amount shall be inserted by the Managing General Partner.
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Number of Capital
Common Units Contribution
------------ ------------
<S> <C> <C>
Limited Partners
- ----------------
Lisa Hadesman 1991 Trust 169,053 $3,381,060
c/o Edward S. Hadesman
2500 North Lakeview, Unit 1401
Chicago, IL 60614
Cynthia Hadesman 1991 Trust 169,053 $3,381,060
c/o Edward S. Hadesman
2500 North Lakeview, Unit 1401
Chicago, IL 60614
Tucker B. Magid 33,085 $661,700
545 Ridge Road
Highland Park, IL 60035
Frances S. Shubert 28,805 $576,100
511 Lynn Terrace
Waukegan, IL 60085
Grandville Road Property, Inc. 7,201 $144,020
c/o Ms. Frances S. Shubert
511 Lynn Terrace
Waukegan, IL 60085
Sky Harbor Associates 62,149 $1,242,980
c/o Howard I. Bernstein
6541 North Kilbourn
Lincolnwood, IL 60646
Jeffrey A. Patterson 110,000 $2,200,000
c/o Prime Group Realty Trust
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Limited Partners
- ----------------
Primestone Investment Partners, L.P. 7,944,893 **/
c/o The Prime Group, Inc. --
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
</TABLE>
**/ This amount shall be inserted by the Managing General Partner.
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Number of Capital
Common Units Contribution
------------ ------------
<S> <C> <C>
Attn: Paul A. Roehri
Prime Group Limited Partnership 90,000 $1,800,000
c/o The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Attn: Michael W. Reshcke
Robert J. Rudnik
</TABLE>
<PAGE>
EXHIBIT A - CONT'D
Partners, Number of Units and Capital Contributions
<TABLE>
<CAPTION>
Number of Convertible Capital
Preferred Units Contribution
--------------- ------------
<S> <C> <C>
Managing General Partner
- ------------------------
Prime Group Realty Trust 2,000,000 **/
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Attn: Richard S. Curto
James F. Hoffman
</TABLE>
**/ This amount shall be inserted by the Managing General Partner.
<PAGE>
AMENDMENT NO. 2 TO AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF PRIME GROUP REALTY, L.P.
This AMENDMENT NO. 2 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF PRIME GROUP REALTY, L.P. (this "Amendment") is made as of
December 15, 1997 by and between Prime Group Realty Trust, a Maryland real
estate investment trust ("PGRT"), as the Managing General Partner of Prime
Group Realty, L.P., a Delaware limited partnership (the "Partnership"), and
on behalf of the other Partners (as hereinafter defined) and H Group LLC, a
Delaware limited liability company ("HG"). Capitalized terms used but not
otherwise defined herein shall have the meanings given to such terms in the
Amended and Restated Agreement of Limited Partnership of the Partnership,
dated as of November 17, 1997, by and among PGRT and the other parties
signatory thereto, as amended therafter (as so amended, the "Limited
Partnership Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to Section 4.3.C. of the Limited Partnership
Agreement, the Managing General Partner may raise all or any portion of
Additional Funds required by the Partnership for the acquisition of
additional properties by accepting additional Capital Contributions,
including the issuance of Common Units for Capital Contributions that consist
of property or interests in property;
WHEREAS, pursuant to that certain Exchange Agreement dated as of
December 15, 1997 by and between HG and the Partnership (the "Exchange
Agreement"), HG has agreed, among other things, to exchange (the "Exchange")
its rights (the "Allstate Loan Acquisition Rights") to acquire the Allstate
Loan (as defined in the Exchange Agreement) for $5,000,000, which $5,000,000
is payable in that number of Common Units of Limited Partner Interest
("Common Units") equal to (i) $5,000,000 divided by (ii) $19.875, which is
the average of the closing sale prices of PGRT's Common Shares of Beneficial
Interest ("Common Shares") on the New York Stock Exchange during the seven
(7) trading days immediately preceding the date hereof;
WHEREAS, pursuant to the Exchange Agreement, the Partnership has
agreed, among other things, to exchange such number of Common Units for HG's
Allstate Loan Acquisition Rights;
WHEREAS, pursuant to the Exchange Agreement, HG has also agreed to
grant to the Partnership an option (the "First Option") to exchange the
Underlying Option (as defined in the Exchange Agreement) for 220,000 Common
Units (subject to adjustment pursuant to the terms of the Exchange
Agreement), which grant of the First Option contemplates the transfer by the
Partnership to HG of 5,000
<PAGE>
Common Units on the date hereof and, subject to the terms of the First
Option, 5,000 Common Units (subject to adjustment pursuant to the terms of
the Exchange Agreement) on the 15th day of each month hereafter for such
number of months set forth in the Exchange Agreement;
WHEREAS, the Partnership has agreed to the terms of the grant by HG
of the First Option set forth in the Exchange Agreement;
WHEREAS, it is a condition to the closing of the Exchange Agreement
that HG be admitted as an Additional Limited Partner of the Partnership;
WHEREAS, pursuant to Section 12.2.A. of the Limited Partnership
Agreement, a Person who makes a Capital Contribution to the Partnership in
accordance with the Limited Partnership Agreement shall be admitted to the
Partnership as an Additional Limited Partner subject to, among other things,
(i) the transferee of the Partnership Interest executing and delivering to
the Partnership an acceptance of all of the terms and conditions of the
Limited Partnership Agreement (including without limitation, the provisions
of Section 2.4 thereof and such other documents or instruments as may be
required to effect such admission, each in form and substance satisfactory to
the Managing General Partner and (ii) the acknowledgment by such transferee
of Partnership Interest that each of the representations and warranties set
forth in Section 3.3.D. thereof are true and correct with respect to such
transferee as of the date of the transfer of the Partnership Interest to such
transferee;
WHEREAS, the Partners desire to amend the Limited Partnership
Agreement to reflect (i) the increase in outstanding Common Units resulting
from the issuance of Common Units to HG in connection with the Exchange and
the grant of the First Option; and (ii) the admission of HG as an Additional
Limited Partner;
WHEREAS, Sections 2.4 and 12.3 of the Limited Partnership Agreement
authorizes, among other things, the Managing General Partner, as true and
lawful agent and attorney-in fact, to execute, swear to, acknowledge,
deliver, file and record this Amendment on behalf of each Partner that has
executed the Limited Partnership Agreement and on behalf of the Partnership.
NOW, THEREFORE, for good and adequate consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Acceptance of Capital Contribution in Exchange for Common
Units. (a) PGRT, as Managing General Partner and on behalf of the
Partnership, hereby accepts the Allstate Loan Acquisition Rights from HG as a
Capital Contribution having a value on the date hereof of $5,000,000, in
exchange for 251,572 Common
2
<PAGE>
Units of Limited Partner Interest which are hereby issued by the Partnership
to HG pursuant to Section 4.3.C. of the Limited Partnership Agreement, and
which are evidenced by Common Unit Certificate No. 20 of the Partnership.
(b) PGRT, as Managing General Partner and on behalf of the
Partnership, hereby accepts the grant of the rights consisting of the First
Option during the initial month of the term of First Option from HG as a
Capital Contribution having a value on the date hereof of $100,000, in
exchange for 5,000 Common Units of Limited Partner Interest which are hereby
issued by the Partnership to HG pursuant to Section 4.3.C. of the Limited
Partnership Agreement, and which are evidenced by Common Unit Certificate No.
21 of the Partnership.
(c) Each of the Common Units of Limited Partner Interest
issued to HG pursuant to this Section 1 shall have the same terms and
provisions of the Common Units of Limited Partner Interest issued by the
Partnership on November 17, 1997 except that (i) the Exchange Rights relating
thereto may be exercised at any time after the first anniversary of the date
of this Amendment (as opposed to November 17, 1998) and (ii) such Common
Units of Limited Partner Interest will be subject to the New Registration
Rights Agreement (as hereinafter defined) as opposed to the Registration
Rights Agreement entered into by PGRT and the Partnership on November 17,
1997.
Section 2. Acceptance of Terms and Conditions of the Limited
Partnership Agreement. HG hereby acknowledges its receipt of a true and
complete copy of the Limited Partnership Agreement and hereby further agrees
to be bound by all of the terms and conditions of the Limited Partnership
Agreement, including without limitation, the provisions of Section 2.4 of the
Limited Partnership Agreement.
Section 3. Representations and Warranties of Additional Limited
Partner. HG hereby acknowledges, represents and warrants to PGRT and the
other Partners that each of the representations and warranties set forth in
Section 3.3.D. of the Limited Partnership Agreement are true and correct with
respect to HG as of the date hereof.
Section 4. Admission of Additional Limited Partner. HG is hereby
admitted to the Partnership as an Additional Limited Partner and shall have
the rights, and be subject to the obligations, of a Limited Partner of the
Partnership.
Section 5. Amendment of Exhibit A to the Limited Partnership
Agreement. Exhibit A to the Limited Partnership Agreement is hereby amended
and restated to reflect the aforementioned change(s) by deleting Exhibit A
attached thereto in its entirety, and by attaching in lieu thereof a
replacement
3
<PAGE>
exhibit in the form of Exhibit A attached hereto. From and after the
effectiveness of this Amendment, the amended and restated Exhibit A attached
hereto shall be the only Exhibit A to the Limited Partnership Agreement,
unless and until it is hereafter further amended.
Section 6. Conditions to Effectiveness. This Amendment shall become
effective contemporaneously with (and subject to):
(i) the consummation of the closing transactions contemplated by
the Exchange Agreement;
(ii) the execution and delivery by the Partnership to HG of (x) a
Common Unit certificate evidencing 251,572 Common Units and
(y) a Common Unit certificate evidencing 5,000 Common Units,
in each case in the form of Exhibit E attached to the Limited
Partnership Agreement; and
(iii) the execution and delivery by the Partnership and HG of a
Registration Rights Agreement in the form of Exhibit B
attached hereto (the "New Registration Rights Agreement").
Section 7. Reference to and Effect on the Limited Partnership
Agreement.
A. The Limited Partnership Agreement is hereby deemed to be
amended to the extent necessary to effect the matters contemplated by this
Amendment. Except as specifically provided for herein above, the provisions
of the Limited Partnership Agreement shall remain in full force and effect.
B. The execution, delivery and effectiveness of this
Amendment shall not operate (i) as a waiver of any provision, right or
obligation of the Managing General Partner, the other General Partner or any
Limited Partner under the Limited Partnership Agreement except as
specifically set forth herein or (ii) as a waiver or consent to any
subsequent action or transaction.
Section 8. Counterparts. This Amendment may be executed in
counterparts, all of which together shall constitute one agreement binding on
all the parties hereto, notwithstanding that all such parties are not
signatories to the original or the same counterpart. Each party shall become
bound by this Amendment immediately upon affixing its signatories hereto.
Section 9. Applicable Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Delaware, without
regard to the principles of conflicts of law.
[signature page follows]
4
<PAGE>
AMENDMENT NO. 2 TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF PRIME GROUP REALTY, L.P.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first written above.
MANAGING GENERAL PARTNER:
-------------------------
PRIME GROUP REALTY TRUST, a
Maryland real estate investment trust
By: /s/ Jeffrey A. Patterson
-------------------------
Name: Jeffrey A. Patterson
-----------------------
Title: Executive VP
----------------------
LIMITED PARTNERS:
-----------------
Each Limited Partner hereby executes
this Amendment to the Limited
Partnership Agreement.
By: PRIME GROUP REALTY TRUST, a
Maryland real estate investment
trust, as attorney-in fact
By: /s/ Jeffrey A. Patterson
----------------------------
Name: Jeffrey A. Patterson
--------------------------
Title: Executive VP
-------------------------
ADDITIONAL LIMITED PARTNER:
---------------------------
H GROUP LLC, a Delaware limited
liability company
By: /s/ Eric D. Mayer
----------------------------
Name: Eric D. Mayer
--------------------------
Its: President
---------------------------
5
<PAGE>
6
<PAGE>
EXHIBIT A*/
Partners, Number of Units and Capital Contributions
<TABLE>
<CAPTION>
Number of Capital
Common Units Contribution
------------ ------------
Managing General Partner
- ------------------------
<S> <C> <C>
Prime Group Realty Trust 12,980,000 **/
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Attn: Richard S. Curto
James F. Hoffman
General Partner
- ---------------
The Nardi Group, L.L.C 927,100 $18,542,000
c/o Stephen J. Nardi
4100 Madison Street
Hillside, IL 60162
Limited Partners
- ----------------
Edward S. Hadesman 388,677 $7,773,540
Trust Dated May 22, 1992
c/o Edward S. Hadesman
2500 North Lakeview, Unit 1401
Chicago, IL 60614
Grandville/Northwestern 9,750 $195,000
Management Corporation
c/o Edward S. Hadesman
2500 North Lakeview, Unit 1401
Chicago, IL 60614
Carolyn B. Hadesman 54,544 $1,090,880
Trust Dated May 21, 1992
c/o Edward S. Hadesman
2500 North Lakeview, Unit 1401
Chicago, IL 60614
</TABLE>
- -----------------------------
*/ As amended by Amendment No. 1 to the Amended and Restated Agreement
of Limited Partnership of Prime-Group Realty, L.P.
**/ This amount shall be inserted by the Managing General Partner.
<PAGE>
<TABLE>
<CAPTION>
Number of Capital
Common Units Contribution
------------ ------------
Limited Partners
- ----------------
<S> <C> <C>
Lisa Hadesman 1991 Trust 169,053 $3,381,060
c/o Edward S. Hadesman
2500 North Lakeview, Unit 1401
Chicago, IL 60614
Cynthia Hadesman 1991 Trust 169,053 $3,381,060
c/o Edward S. Hadesman
2500 North Lakeview, Unit 1401
Chicago, IL 60614
Tucker B. Magid 33,085 $661,700
545 Ridge Road
Highland Park, IL 60035
Frances S. Shubert 28,805 $576,100
511 Lynn Terrace
Waukegan, IL 60085
Grandville Road Property, Inc. 7,201 $144,020
c/o Ms. Frances S. Shubert
511 Lynn Terrace
Waukegan, IL 60085
Sky Harbor Associates 62,149 $1,242,980
c/o Howard I. Bernstein
6541 North Kilbourn
Lincolnwood, IL 60646
Jeffrey A. Patterson 110,000 $2,200,000
c/o Prime Group Realty Trust
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Limited Partners
- ----------------
Primestone Investment Partners, L.P. 7,944,893 **/
--
c/o The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
</TABLE>
- -----------------------------
**/ This amount shall be inserted by the Managing General Partner.
<PAGE>
<TABLE>
<CAPTION>
Number of Capital
Common Units Contribution
------------ ------------
<S> <C> <C>
Attn: Paul A. Roehri
Prime Group Limited Partnership 90,000 $1,800,000
c/o The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Attn: Michael W. Reshcke
Robert J. Rudnik
H Group LLC 256,572 $5,100,000
c/o Heitman Financial Ltd.
180 N. LaSalle
Suite 3600
Chicago, IL 60601
Attn: Norman Perlmutter
</TABLE>
<PAGE>
EXHIBIT A - CONT'D
Partners, Number of Units and Capital Contributions
<TABLE>
<CAPTION>
Number of Convertible Capital
Preferred Units Contribution
--------------------- ------------
<S> <C> <C>
Managing General Partner
- ------------------------
Prime Group Realty Trust 2,000,000 **/
77 West Wacker Drive
Suite 3900
Chicago, IL 60601
Attn: Richard S. Curto
James F. Hoffman
</TABLE>
- -----------------------------
**/ This amount shall be inserted by the Managing General Partner.
<PAGE>
Exhibit 10.1
FORM OF
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT between Prime Group Realty Trust, a
Maryland real estate investment trust (the "Trust"), and ________________, an
officer and/or trustee of the Trust (the "Indemnitee"), dated as of November 17,
1997.
WHEREAS, the Indemnitee has agreed to serve as an officer and
/or trustee of the Trust; and
WHEREAS, the Articles of Amendment and Restatement of the
Declaration of Trust of the Trust (the "Declaration of Trust") and the Amended
and Restated Bylaws of the Trust (the "Bylaws") provide for certain
indemnification of certain of the Trust's officers and each of the Trust's
trustees;
NOW, THEREFORE, in consideration of the Indemnitee's agreement
to serve as an officer and/or trustee of the Trust and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Trust has agreed to the covenants set forth herein for the
purpose of further securing to the Indemnitee the indemnification provided by
the Declaration of Trust and the Bylaws.
Section 1. In the event that the Indemnitee was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that the Indemnitee is or
was a trustee, officer or employee of the Trust or a nominee for any such office
or is or was serving at the request of the Trust as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such actual or threatened proceeding is alleged
action in an official capacity as a director, officer, employee or agent or a
nominee for any such office or in any other capacity while serving as a
director, officer, employee or agent, the Indemnitee shall be indemnified and
held harmless by the Trust to the fullest extent permitted by the law of the
State of Maryland ("Maryland Law") as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Trust to provide broader indemnification rights than said
law permitted the Trust to provide prior to such amendment), against all
expense, liability
<PAGE>
and loss (including, without limitation, attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the Indemnitee in connection therewith and
such indemnification shall continue as to the Indemnitee if the Indemnitee
ceases to be a director, officer, employee, agent or a nominee for any such
office and shall inure to the benefit of the Indemnitee's heirs, executors and
administrators; provided, however, that except as provided in Section 2 of this
Indemnification Agreement with respect to proceedings seeking to enforce rights
to indemnification, the Trust shall indemnify the Indemnitee in connection with
a proceeding (or part hereof) initiated by the Indemnitee only if such
proceeding (or part thereof) was authorized by the Board of Trustees of the
Trust.
Section 2. If a claim under Section 1 of this Indemnification
Agreement is not paid in full by the Trust within 30 days after a written claim
has been received by the Trust, the Indemnitee may at any time thereafter bring
suit against the Trust to recover the unpaid amount of the claim and, if
successful in whole or in part, the Indemnitee shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any actual or threatened proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Trust) that the Indemnitee has not met the standards of conduct
which make it permissible under Maryland Law for the Trust to indemnify the
Indemnitee for the amount claimed, but the burden of proving such defense shall
be on the Trust. Neither the failure of the Trust (including its Board of
Trustees, independent legal counsel or shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in Maryland Law, nor an actual
determination by the Trust (including its Board of Trustees, independent legal
counsel or shareholders) that the Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the Indemnitee has not met the applicable standard of conduct.
Section 3. Following any "change in control" of the Trust of
the type required to be reported under Item 1 of Form 8-K promulgated under the
Securities Exchange Act of 1934, as amended, any determination as to entitlement
to indemnification shall be made by independent legal counsel selected by the
Indemnitee, which independent legal counsel shall be retained by the Board of
Trustees on behalf of the Trust.
Section 4. The right to indemnification and the payment
2
<PAGE>
of expenses incurred in defending any actual or threatened proceeding in advance
of its final disposition conferred in this Indemnification Agreement shall not
be exclusive of any other right which the Indemnitee may have or hereafter
acquire under any statute, provision of the Declaration of Trust, Bylaws,
agreement, vote of shareholders or disinterested trustees or otherwise.
Section 5. In the event that the Trust maintains insurance to
protect itself and any trustee or officer of the Trust against any expense,
liability or loss, such insurance shall cover the Indemnitee to at least the
same extent as any other trustee or officer of the Trust.
Section 6. The right to indemnification conferred by this
Indemnification Agreement shall include the right to be paid by the Trust the
expenses incurred in defending any actual or threatened proceeding in advance of
its final disposition; provided, however, that if Maryland Law requires, the
payment of such expenses incurred by the Indemnitee in the Indemnitee's capacity
as a trustee or officer (and not in any other capacity in which service was or
is rendered by the Indemnitee while a trustee or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of any actual or threatened proceeding, shall be made only upon
delivery to the Trust of an undertaking by or on behalf of the Indemnitee to
repay all amounts so advanced if it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified under this Indemnification
Agreement or otherwise.
Section 7. This Indemnification Agreement may not be changed,
modified or amended except in writing signed by the parties hereto.
[signature page follows]
3
<PAGE>
IN WITNESS WHEREOF, the Trust and the Indemnitee have executed
this Indemnification Agreement in duplicate on the day and year first above
written.
PRIME GROUP REALTY TRUST
By:
-----------------------
Name:
-----------------------
Title:
------------------------
------------------------------
4
<PAGE>
Exhibit 10.2
EXECUTION COPY
RIGHT OF FIRST OFFER AGREEMENT
by and between
PRIME GROUP REALTY, L.P.
a Delaware limited partnership
and
THE PRIME GROUP, INC.,
an Illinois corporation
Dated as of: November 17, 1997
<PAGE>
RIGHT OF FIRST OFFER AGREEMENT
------------------------------
THIS RIGHT OF FIRST OFFER AGREEMENT (the "Agreement") is made as of the
17th day of November, 1997, by and between PRIME GROUP REALTY, L.P., a Delaware
limited partnership ("Purchaser") and THE PRIME GROUP, INC., an Illinois
corporation ("Seller").
WITNESSETH:
-----------
WHEREAS, Huntley Development Limited Partnership, an Illinois limited
partnership ("HDLP"), an affiliate of Seller, is the fee owner of that certain
parcel of unimproved real estate comprising approximately 360 acres in the
Village of Huntley, County of Kane and State of Illinois, which parcel is
legally described on Exhibit A attached hereto and made a part hereof (the
"Property"); and
WHEREAS, concurrently with the execution and delivery of this
Agreement, Purchaser is acquiring from Seller and/or certain affiliates of
Seller, interests in certain other buildings, facilities and parcels of land in
which Seller and/or certain of its affiliates have an interest; and
WHEREAS, Purchaser desires to acquire, a right of first offer to
develop (or develop and acquire an ownership interest in) (to "Develop") the
Property, or a portion thereof, upon and subject to the terms and conditions
hereinafter set forth; and
NOW, THEREFORE, in consideration of Purchaser's acquisition of
interests in the certain buildings, facilities and parcels of land from Seller
and certain of its affiliates, the mutual covenants and agreements contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. Grant of Right of First Offer. Seller hereby grants, or agrees to
cause to be granted, to Purchaser the exclusive right of first offer to Develop
the Property (the "Right") upon the following terms and conditions:
If, at any time prior to the termination of this Agreement, Seller or
HDLP should determine, in its sole discretion, that all or a portion of the
Property shall be utilized for the construction of an office or industrial
facility to be either (a) owned and leased to third parties by Seller, HDLP or
another affiliate of Seller or (b) held by Seller, HDLP or another affiliate of
Seller for sale to a third party after such construction, Seller shall offer, or
shall cause HDLP or such other affiliate of Seller to offer, Purchaser the right
to Develop such office or industrial facility before developing, or allowing the
development of, the Property for such uses. Seller shall notify, or shall cause
HDLP or such other affiliate of Seller to notify (the entity providing such
notice is referred to as the "Offeree"), Purchaser of the offer in the manner
provided herein for the giving of notice of their decision to so Develop the
Property and the general terms and conditions of the proposed development, and
Purchaser shall have the right of first offer to Develop that portion of the
Property to be Developed (which may be all of the Property) (the "Subject
Parcel") by notifying Offeree of the general terms and conditions upon which
Purchaser is willing to Develop the Subject Parcel (the "Offer"), which Offer
may differ from the terms of the notice from the Offeree. Purchaser shall give
the Offer to
<PAGE>
Offeree within thirty (30) days after Purchaser's receipt of the
notice from Offeree. In the event Purchaser fails to notify Offeree of its
election within said thirty (30) day period or elects not to Develop the Subject
Parcel, or Purchaser and Offeree are unable to reach agreement on all the
material terms and conditions of the development of the Subject Parcel, Seller,
HDLP, or such affiliate of Seller shall be entitled to offer to third parties
the opportunity to Develop the Subject Parcel on commercially reasonable terms
in an arms' length transaction or Seller, HDLP or such affiliate of Seller may
develop the Subject Parcel substantially in accordance with the terms described
in the notice from Offeree described above, provided, however, that in the event
either Seller, HDLP, such affiliate of Seller or another party does not commence
to Develop the Subject Parcel, or the sale of the Subject Parcel to a third
party does not close within one hundred fifty (150) days of the date of the
delivery of the Offer, Seller shall renotify Purchaser and the Subject Parcel
shall again be subject to all of the terms and provisions of this Agreement.
Notwithstanding anything to the contrary contained herein, Seller and
HDLP reserve the right, and shall be entitled, at any time, to sell or otherwise
convey, dedicate or grant the Property or any portion thereof or any interest
therein to a third party or parties which intends to use the Property for any
purpose whatsoever (including for use as an office or industrial building or
facility) so long as neither Seller, HDLP nor any affiliate of Seller
participates in the development of such portion of the Property that is
contemplated to be used for office or industrial purposes, and the Right shall
not apply in connection with any such sale, conveyance, dedication or grant. The
construction of public and common infrastructure improvements (including roads,
utility lines, storm and sanitary sewer lines and detention ponds) serving such
portions of the Property shall not be deemed to be participation by Seller, HDLP
or any affiliate of Seller in the development of such Property.
2. Expiration Date. If Purchaser does not timely exercise the Right in
the manner provided herein on or before November 17, 2012 (the "Expiration
Date"), regardless of whether or not Purchaser has an opportunity to exercise
the Right, or if Purchaser elects not to exercise the Right (or is deemed to
have so elected because of its failure to timely exercise the Right) and the
Property is developed by a third-party developer, or if the property is sold or
otherwise conveyed, dedicated or granted to a party which intends to use the
Property for primarily non-office or non-industrial purposes, or if construction
of improvements on the Property which thereafter will be used for primarily
non-office or non-industrial purposes at all times prior to the Expiration Date
is commenced, then in any such event this Agreement and the Right shall, without
further action of any party, automatically terminate and be null, void and of no
further force or effect, and neither party shall have any further rights or
obligations hereunder or with respect to the Right.
3. Entry onto the Property. Upon the receipt by Offeree of the Offer
described in Section 1 hereof, Purchaser and/or Purchaser's agents shall have
the right during the period of time when this Agreement is in effect, at
reasonable times and on reasonable advance notice to Offeree, to enter onto the
Property or portion thereof set forth in the Offer for purposes of surveying the
Property and undertaking soil boring and other tests. All surveying and soil
boring and other tests shall be performed at Purchaser's sole cost and expense
and Purchaser shall deliver copies of all such surveys and the results of all
such tests to Offeree at no cost or expense to Offeree. Purchaser hereby
indemnifies, protects and holds Seller, HDLP and the affiliates of Seller
harmless and agrees to defend
2
<PAGE>
Seller, HDLP and the affiliates of Seller from and against any and all claims,
demands, loss, cost, damage, expense and liability (including, without
limitation, personal injury and property damage claims and mechanics' or other
liens), including reasonable attorneys' fees and litigation costs, caused by or
occurring in connection with the presence of Purchaser or Purchaser's agents on
the Property or the exercise by Purchaser of any of its surveying and testing
rights under this Section 3. In addition, Purchaser shall keep the Property free
from any liens of its surveying and testing rights under this Section 3.
Purchaser, at its sole cost and expense, shall restore the Property to the same
condition as existed prior to its entry onto the Property. Notwithstanding
anything to the contrary contained herein, the provisions of this Section shall
survive the term of this Agreement (regardless of whether or not the Right is
exercised), as well as any closing of the sale of the Property pursuant hereto
or to any contract entered into between Seller, HDLP or an affiliate of Seller
and Purchaser pursuant to any Offer.
4. Time of the Essence. Purchaser and Seller hereby acknowledge and
agree that time is and shall be of the essence hereof. Notwithstanding anything
to the contrary contained herein, in the event the due date for performance of
any obligation hereunder falls on a day other than a business day, the date for
performance of such obligation shall be extended to the next following business
day.
5. Covenants Running with the Land; Specific Performance. The covenants
and agreements of Seller under this Agreement are intended to be and shall be
covenants running with the land with respect to the Property and shall be
binding upon Seller and Seller's heirs, representatives, successors and assigns.
This Agreement shall be specifically enforceable by Purchaser and by Purchaser's
heirs, representatives, successors and assigns.
6. Notices. Any notice, request, demand, instruction or other document
to be given or served hereunder or under any documents or instrument executed
pursuant hereto shall be in writing and shall be delivered personally or sent by
United States registered or certified mail, return receipt requested, or by
overnight express courier, postage prepaid and addressed to the parties at their
respective addresses set forth below, and the same shall be effective upon
receipt if delivered personally or two (2) business days after deposit in the
mails or deposit with an overnight express courier. A party may change its
address for receipt of notices by service of a notice of such change in
accordance herewith.
If to Purchaser: Prime Group Realty Trust
35 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: General Counsel
With a copy to: Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attn: Wayne Boberg
3
<PAGE>
If to Seller: The Prime Group, Inc.
35 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: President
With a copy to: The Prime Group, Inc.
35 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: General Counsel
7. Successors and Assigns; No Merger. All the terms and conditions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. The terms and provisions of this
Agreement shall survive the entity and shall not merge or be deemed to merge,
into any contract entered into between Seller and Purchaser pursuant to any
Offer.
8. Severability. In the event that any term or provisions of this
Agreement, or the application thereof to any particular party or circumstance,
is found by a court of competent jurisdiction to be invalid or unenforceable (in
whole or in its application to a particular party or circumstance), the
remaining terms and provisions of this Agreement or the application thereof to
different parties or circumstances, as the case may be, shall not be affected
thereby and this agreement shall remain in full force and effect in all other
respects.
9. Governing Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois. This Agreement
and any document or instrument executed pursuant hereto may be executed in any
number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
10. Due Authorization; Binding Agreement. Seller and Purchaser each
hereby represent and warrant to each other that the execution, delivery and
performance of this Agreement has been duly and validly authorized by all
necessary action of such party, and constitutes a legal, valid and binding
obligation of such party enforceable against such party in accordance with the
terms hereof.
11. Consents and Approvals. Seller and Purchaser each hereby represent
and warrant to each other that no consent, waiver, approval or authorization of,
or notice to, any other person, is required to be obtained or given by such
party in connection with the execution, delivery and performance of this
Agreement, except for such consents, approvals or authorizations which have been
obtained.
4
<PAGE>
12. Further Assurances; Good Faith. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use his or its best
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary and proper under applicable laws and regulations or
otherwise to consummate and effect the transactions contemplated by this
Agreement including, without limitation, obtaining all required consents and
approvals, making all required filings and applications and complying with or
responding to any requests by governmental agencies, in each case to the extent
reasonably required. The parties hereto agree to negotiate the terms and
conditions to Develop the Subject Parcel in good faith with one another.
[signature page follows]
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
PURCHASER:
PRIME GROUP REALTY, L.P., a Delaware
limited partnership
By: PRIME GROUP REALTY TRUST, a
Maryland real estate investment
trust, its Managing General Partner
By: /s/ W. Michael Karnes
----------------------------------
Name: W. Michael Karnes
-----------------------------
Title: Executive VP
----------------------------
SELLER:
THE PRIME GROUP, INC.,
an Illinois corporation
By: /s/ Robert J. Rudnik
-------------------------------------
Name: Robert J. Rudnik
-------------------------------------
Title Executive VP
-----------------------------------
<PAGE>
EXHIBIT A TO RIGHT OF FIRST OFFER AGREEMENT
That portion of the following that is still owned by Huntley Development Limited
Partnership, an Illinois limited partnership:
The West Half of the Northwest Quarter, the West Half of the East Half of the
Northwest Quarter and the West Half of the Southwest Quarter of Section 9;
that part of the Northwest Quarter of Section 16 lying northerly of a line drawn
parallel with and 150.0 feet northerly of the center line (measured at right
angles thereto) of the Illinois State Toll Highway Commission except the
premises conveyed to the Illinois State Toll Highway Authority by Document
1212496 and that part of the premises conveyed to the Illinois State Toll
Highway Commission by Document 831056 lying 33.0 feet southerly of the north
line (measured at right angles to said north line) of the Northwest Quarter of
said Section 16;
that part of the South Half of Section 7 lying northerly of the northerly right
of way line of the Illinois State Toll Highway Commission;
that part of the South Half of Section 8 lying northerly of the northerly line
of premises conveyed to the Illinois State Toll Highway Commission by Warranty
Deed recorded as Document 903854 and Quit Claim Deed recorded as Document
824832, excepting there- from the premises described in Grant of Easement
recorded as Document 824833;
that part of the Southwest Quarter of Section 4, part the South-east Quarter
of Section 5, part of the North Half of Section 8, part of the Southeast
Quarter of Section 6 and part of the North Half of Section 7 lying southerly
of the following described line: Commencing at the point of intersection of a
line drawn parallel with and 60.0 feet easterly of the center line (measured
at right angles thereto) of Illinois State Route No. 47 with the south line
of the Southwest Quarter of Section 9; thence northerly along said parallel
line 5469.12 feet for a point of beginning; thence westerly at right angles
to the last described course 940.0 feet; thence northerly at right angles to
the last described course 565.0 feet; thence westerly at right angles to the
last described course 140.0 feet; thence southwesterly along a line forming
an angle of 128DEG.00'49" with the last described course (measured clockwise
therefrom) 252.02 feet; thence southwesterly along a line forming an angle
of 141DEG.21'07" with the last described course (measured counter-clockwise
therefrom) 295.0 feet; thence northwesterly along a line forming an angle of
134DEG.20'16" with the last described course (measured counter-clockwise
therefrom) 200.0 feet; thence southwesterly, along a line forming an angle of
96DEG.16'40" with the last described course (measured clockwise therefrom)
200.0 feet; thence southeasterly
<PAGE>
along a line forming an angle of 86DEG.03'40" with the last described course
(measured clockwise therefrom) 525.0 feet; thence southerly along a line
forming an angle of 124DEG.53'15" with the last described course (measured
counter-clockwise therefrom) 215.0 feet; thence southwesterly along a line
forming an angle of 143DEG.54'11" with the last described course (measured
counter-clockwise therefrom) 350.0 feet; thence southwesterly along a line
forming an angle of 158DEG.06'47" with the last described course (measured
counter-clockwise therefrom) 730.0 feet; thence southerly along a line
forming an angle of 122DEG.24'21" with the last described course (measured
clockwise therefrom) 354.58 feet; thence westerly and northwesterly along a
curve to the right having a radius of 4210.0 feet tangent to a line forming
an angle of 86DEG.43'27" with the prolongation of the last described course
(measured clockwise therefrom) 2541.42 feet; thence northwesterly tangent to
the last described curve at the last described point 674.67 feet; thence
northwesterly along a curve to the left having a radius of 1300.0 feet
tangent to the last described course 169.33 feet to the northwest corner of
the Northwest Quarter of said Section 8; thence continuing northwesterly and
westerly along the prolongation of the last described curve 819.43 feet;
thence westerly tangent to the last described curve at the last described
point 200.0 feet; thence westerly along a curve to the right having a radius
of 2440.0 feet tangent to the last described course 516.61 feet; thence
westerly tangent to the last described curve at the last described point,
being along the north line extended and the north line of the Northwest
Quarter of said Section 7, 3653.57 feet to a point on said north line that is
197.91 feet easterly of the northwest corner of said Northwest Quarter;
thence southwesterly, along a line forming an angle of 134DEG.59'21" with the
last described course (measured clockwise therefrom) 279.83 feet to the west
line of the Northwest Quarter of said Section 7 for the terminus of said
line (except that part thereof lying within premises acquired by the Illinois
State Toll Highway Commission through condemnation proceedings of the Circuit
Court of the Sixteenth Judicial Circuit filed in Kane County as Case No.
56-1213, and also except Lots 2 and 3 in Fred Ahrens Subdivision), and also;
that part of the Northeast Quarter of Section 17 lying northerly of the
northeasterly right of way line of the Illinois State Toll Highway Commission,
northerly of the northerly line of Parcel N-4C-38.5 as conveyed by Document
1230382 and westerly of a line drawn parallel with and 250.0 feet westerly of
the westerly line (measured at right angles thereto) of Parcel N-4C-38.1 as
ac-quired through proceedings of the Circuit Court of the Sixteenth Judicial
Circuit as Case No. 56-1242, all in Township 42 North, Range 7 East of the Third
Principal Meridian, Rutland Township, Kane County, Illinois,
2
<PAGE>
EXCEPTING THOSE PARTS THEREOF DESCRIBED AS FOLLOWS:
That part of the Northeast Quarter of Section 8 described as follows:
Commencing at the point of intersection of a line drawn parallel with and
60.0 feet westerly of the center line (measured at right angles thereto) of
Illinois State Route No. 47 with the south line of the Southeast Quarter of
said Section 8; thence northerly along said parallel line 3107.14 feet for a
point of beginning; thence continuing northerly along said parallel line
1427.89 feet; thence westerly at right angles to the last de-scribed course
157.85 feet; thence westerly and southwesterly along a curve to the left
having a radius of 900.0 feet tangent to the last described course 349.42
feet; thence southwesterly tangent to the last described curve at the last
described point 200.15 feet; thence southwesterly and westerly along a curve
to the right having a radius of 4310.0 feet tangent to the last described
course 1370.75 feet; thence southerly along a line forming an angle of
94DEG.01'19" with a line drawn tangent to the last described curve at the last
described point (measured clockwise therefrom) 354.76 feet; thence
southerly, southeasterly, easterly and northeasterly along a curve to the
left having a radius of 980.0 feet tangent to the last described course
2407.19 feet to a line drawn at right angles to said center line from the
point of beginning; thence easterly along said line 274.33 feet to the point
of beginning, also excepting;
that part of the Northeast Quarter of Section 7 and part of the Northwest
Quarter of Section 8 described as follows: Commencing at the point of
intersection of a line drawn parallel with and 60.0 feet westerly of the center
line (measured at right angles thereto) of Illinois State Route No. 47 with the
south line of the Southeast Quarter of said Section 8; thence northerly along
said parallel line 4535.03 feet; thence westerly at right angles to the last
described course 157.85 feet; thence westerly and southwesterly along a curve to
the left having a radius of 900.0 feet tangent to the last described course
349.42 feet; thence southwesterly tangent to the last described curve at the
last described point 200.15 feet; thence southwesterly, westerly and
northwesterly along a curve to the right having a radius of 4310.0 feet tangent
to the last described course 3277.40 feet for a point of beginning; thence
continuing along the prolongation of the last described curve 763.69 feet;
thence northwesterly tangent to the last described curve at the last described
point 674.67 feet; thence northwesterly along a curve to the left having a
radius of 1200.0 feet tangent to the last described course 274.09 feet; thence
southwesterly along a line forming an angle of 96DEG.07'33" with a line drawn
tangent to the last de- scribed curve at the last described point (measured
counter-clockwise therefrom) 338.62 feet; thence southwesterly along a line
forming an angle of 133DEG.23'16" with the last described course (measured
counter-clockwise therefrom) 355.0 feet; thence southwesterly along a line
forming an angle of 224DEG.19'51" with
3
<PAGE>
the last described course (measured counter-clockwise therefrom) 130.0 feet;
thence southeasterly along a line forming an angle of 237DEG.59'12" with the
last described course (measured counter- clockwise therefrom) 420.0 feet;
thence southeasterly along a line forming an angle of 146DEG.E24'47" with the
last described course (measured counter-clockwise therefrom) 810.0 feet;
thence easterly along a line forming an angle of 101DEG.36'55" with the last
described course (measured clockwise therefrom) 744.17 feet; thence
northeasterly along a line forming an angle of 159DEG.01'15" with the last
described course (measured clockwise therefrom) 550.0 feet; thence
northeasterly along a line forming an angle of 125DEG.18'11" with the last
described course (measured clockwise therefrom) 810.06 feet to the point of
beginning, also excepting;
that part Of the North Half of Section 7 described as follows: Commencing at
the point of intersection of a line drawn parallel with and 60.0 feet
westerly of the center line (measured at right angles thereto) of Illinois
State Route No. 47 with the south line of the Southeast Quarter of said
Section 8; thence northerly along said parallel line 4535.03 feet; thence
westerly at right angles to the last described course 157.85 feet; thence
westerly and southwesterly along a curve to the left having a radius of 900.0
feet tangent to the last described course 349.42 feet; thence southwesterly
tangent to the last described curve at the last described point 200.15 feet;
thence southwesterly, westerly and northwesterly along a curve to the right
having a radius of 4310.0 feet tangent to the last described course 4041.09
feet; thence northwesterly tangent to the last described curve at the last
described point 674.67 feet; thence northwesterly, westerly and southwesterly
along a curve to the left having a radius of 1200.0 feet tangent to the last
described course 912.70 feet; thence southwesterly tangent to the last
described curve at the last described point 200.0 feet; thence southwesterly
and westerly along a curve to the right having a radius of 2540.0 feet
tangent to the last described course 514.51 feet for a point of beginning;
thence southerly along a line forming an angle of 90DEG.31'29" with a line
drawn tangent to the last described curve at the last described point
(measured clockwise therefrom) 925.11 feet; thence westerly at right angles
to the last described course 340.0 feet; thence southerly at right angles to
the last described course 100.0 feet; thence southwesterly along a line
forming an angle of 156DEG.38'08" with the last described course (measured
clockwise therefrom) 282.56 feet; thence southwesterly, along a line forming
an angle of 173DEG.53'10" with the last described course (measured
counter-clockwise therefrom) 418.99 feet; thence westerly along a line
forming an angle of 120DEG.08'51" with the last described course (measured
counter-clockwise therefrom) 577.26 feet; thence westerly and northwesterly
along a curve to the right having a radius of 675.0 feet tangent to the last
described course 649.78 feet; thence northwesterly, tangent to the last
described curve at the last
4
<PAGE>
described point 282.06 feet; thence northwesterly and westerly along a curve to
the left having a radius of 390.0 feet tangent to the last described course
373.26 feet; thence westerly tangent to the last described curve at the last
described point 172.68 feet; thence northerly at right angles to the last
described course 981.08 feet to a line drawn parallel with and 100.0 feet
southerly of the north line of the Northwest Quarter of said Section 7 (measured
at right angles thereto); thence easterly along said parallel line 2431.89 feet;
thence easterly along a curve to the left having a radius of 2540.0 feet tangent
to the last described course 23.27 feet to the point of beginning, also
excepting;
that part of the Northeast Quarter of Section 7 described as follows:
Commencing at the point of intersection of a line drawn parallel with and
60.0 feet westerly of the center line (measured at right angles thereto) of
Illinois State Route No. 47 with the south line of the Southeast Quarter of
said Section 8; thence northerly along said parallel line 4535.03 feet;
thence westerly at right angles to the last described course 157.85 feet;
thence westerly and southwesterly along a curve to the left having a radius
of 900.0 feet tangent to the last described course 349.42 feet; thence
southwesterly tangent to the last described curve at the last described point
200.15 feet; thence southwesterly, westerly and northwesterly along a curve
to the right having a radius of 4310.0 feet tangent to the last described
course 4041.09 feet; thence northwesterly tangent to the last described curve
at the last described point 674.67 feet; thence northwesterly, westerly and
southwesterly along a curve to the left having a radius of 1200.0 feet
tangent to the last described course 912.70 feet; thence southwesterly
tangent to the last described curve at the last described point 200.0 feet;
thence southwesterly and westerly along a curve to the right having a radius
of 2540.0 feet tangent to the last described course 514.51 feet; thence
southerly along a line forming an angle of 90DEG.31'29" with a line drawn
tangent to the last described curve at the last described point (measured
clockwise therefrom) 925.11 feet; thence westerly at right angles to the last
described course 340.0 feet; thence southerly at right angles to the last
described course 100.0 feet; thence southwesterly along a line forming an
angle of 156DEG.38'08" with the last described course (measured clockwise
therefrom) 282.56 feet; thence southwesterly along a line forming an angle of
173DEG.53'10" with the last described course (measured counter-clockwise
therefrom) 418.99 feet; thence easterly along a line forming an angle of
59DEG.51'09" with the last described course (measured clockwise therefrom)
34.85 feet; thence easterly and southeasterly along a curve to the right
having a radius of 675.0 feet tangent to the last described course 161.19
feet for a point of beginning; thence continuing southeasterly along the
prolongation of the last described curve 226.37 feet; thence southeasterly
tangent to the last described curve at the last described point 717.92 feet;
5
<PAGE>
thence southeasterly along a curve to the left having a radius of 1550.0 feet
tangent to the last described course 513.47 feet; thence northerly along a
line forming an angle of 107DEG.14'53" with a line drawn tangent to the last
described curve at the last described point (measured counter-clockwise
therefrom) 832.17 feet; thence northwesterly along a line forming an angle of
128DEG.20'47" with the last described course (measured clockwise therefrom)
910.0 feet; thence southwesterly along a line forming an angle of 90DEG.51'35"
with the last described course (measured clockwise therefrom) 827.91 feet to
the point of beginning, and also excepting;
that part of the Northwest Quarter of Section 7, lying southerly of the
southerly right of way line of the Illinois State Toll Highway Commission, all
in Township 42 North, Range 7 East of the Third Principal Meridian, Rutland
Township, Kane County, Illinois.
6
<PAGE>
Exhibit 10.3
PRIME GROUP REALTY TRUST
SHARE INCENTIVE PLAN
<PAGE>
PRIME GROUP REALTY TRUST
SHARE INCENTIVE PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Article 1. Establishment, Objectives and Duration. . . . . . . . . . .1
Article 2. Definitions . . . . . . . . . . . . . . . . . . . . . . . .2
Article 3. Administration. . . . . . . . . . . . . . . . . . . . . . .7
Article 4. Shares Subject to the Plan and Maximum Awards . . . . . . .7
Article 5. Eligibility and Participation . . . . . . . . . . . . . . .9
Article 6. Stock Options . . . . . . . . . . . . . . . . . . . . . . .9
Article 7. Stock Appreciation Rights . . . . . . . . . . . . . . . . 11
Article 8. Restricted Stock and Restricted Units . . . . . . . . . . 13
Article 9. Performance Units . . . . . . . . . . . . . . . . . . . . 14
Article 10. Performance Measures. . . . . . . . . . . . . . . . . . . 16
Article 11. Beneficiary Designation . . . . . . . . . . . . . . . . . 17
Article 12. Deferrals . . . . . . . . . . . . . . . . . . . . . . . . 17
Article 13. Rights of Employees . . . . . . . . . . . . . . . . . . . 18
Article 14. Change in Control . . . . . . . . . . . . . . . . . . . . 18
Article 15. Amendment, Modification and Termination . . . . . . . . . 19
Article 16. Withholding . . . . . . . . . . . . . . . . . . . . . . . 20
Article 17. Indemnification . . . . . . . . . . . . . . . . . . . . . 20
Article 18. Successors. . . . . . . . . . . . . . . . . . . . . . . . 21
Article 19. Legal Construction. . . . . . . . . . . . . . . . . . . . 21
i
<PAGE>
<S> <C> <C>
Article 20. Shareholder Approval. . . . . . . . . . . . . . . . . . . 22
</TABLE>
ii
<PAGE>
PRIME GROUP REALTY TRUST
SHARE INCENTIVE PLAN
ARTICLE 1. ESTABLISHMENT, OBJECTIVES AND DURATION
1.1 ESTABLISHMENT OF THE PLAN. Prime Group Realty Trust, a Maryland
real estate investment trust (hereinafter referred to as the "COMPANY"), hereby
establishes a long-term incentive compensation plan to be known as the "Prime
Group Realty Trust Share Incentive Plan" (hereinafter referred to as the
"PLAN"), as set forth in this document. The Plan permits the grant of
Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights,
Restricted Stock, Restricted Units and Performance Units.
Subject to the approval of the Company's shareholders, the Plan shall
become effective as of November __, 1997 (the "EFFECTIVE DATE") and shall remain
in effect as provided in Section 1.3 hereof.
1.2 OBJECTIVES OF THE PLAN. The objectives of the Plan are to optimize
the profitability and growth of the Company through long-term incentives which
are consistent with the Company's objectives and which link the interests of
Participants to those of the Company's shareholders; to provide Participants
with an incentive for excellence in individual performance; and to promote
teamwork among Participants; and to give the Company a significant advantage in
attracting and retaining officers, key employees and trustees.
The Plan is further intended to provide flexibility to the Company in its
ability to motivate, attract and retain the services of Participants who make
significant contributions to the Company's success and to allow Participants to
share in the success of the Company.
1.3 DURATION OF THE PLAN. The Plan shall commence on the Effective Date,
as described in Section 1.1 hereof, and shall remain in effect, subject to the
right of the Board of Trustees to amend or terminate the Plan at any time
pursuant to Article 15 hereof, until all Shares subject to the Plan pursuant to
Article 4 shall have been purchased or acquired according to the provisions
hereof. In no event, however, may an Award be granted under the Plan on or
after October 31, 2007.
ARTICLE 2. DEFINITIONS
<PAGE>
Whenever used in the Plan, the following terms shall have the meanings set
forth below, and when the meaning is intended, the initial letter of the word
shall be capitalized:
2.1 "AWARD" means, individually or collectively, a grant under this Plan
of Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation
Rights, Restricted Stock, Restricted Units or Performance Units.
2.2 "AWARD AGREEMENT" means an agreement entered into by the Company and
a Participant setting forth the terms and provisions applicable to an Award or
Awards granted under this Plan to such Participant.
2.3 "BOARD" or "BOARD OF TRUSTEES" means the Board of Trustees of the
Company.
2.4 "CAUSE" shall have the meaning set forth in any unexpired employment
or severance agreement between the Participant and the Company or another
Employer, in the absence of any such agreement, shall mean (i) the willful and
continued failure of the Participant to substantially perform his or her duties
with or for the Company or another Employer, (ii) the engaging by the
Participant in conduct which is significantly injurious to the Company or
another Employer, monetarily or otherwise, (iii) the Participant's conviction of
a felony, (iv) the Participant's abuse of illegal drugs or other controlled
substances or (v) the Participant's habitual intoxication. Unless otherwise
defined in the Participant's employment or severance agreement, an act or
omission is "willful" for this purpose if such act or omission was knowingly
done, or knowingly omitted to be done, by the Participant not in good faith and
without reasonable belief that such act or omission was in the best interest of
the Company or another Employer.
2.5 "CHANGE IN CONTROL"shall be deemed to have occurred if
(a) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company, a corporation or
trust owned directly or indirectly by the shareholders of the Company in
substantially the same proportions as their ownership of the Shares,
Michael W. Reschke or The Prime Group, Inc. or any of their respective
affiliates, becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the total voting power represented by the
Company's then outstanding securities which vote generally in the election
of Trustees (referred to herein as "Voting Securities");
<PAGE>
(b) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board and any new Trustees
whose election by the Board or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the Trustees
then still in office who either were Trustees at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Board;
(c) the shareholders of the Company approve a merger or
consolidation of the Company with any other trust or corporation, other
than a merger or consolidation which would result in the Voting Securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
Voting Securities of the surviving entity) more than 50% of the total
voting power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; or
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company (in one transaction or a series of transactions) of all or
substantially all of the Company's assets.
2.6 "CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
2.7 "COMMITTEE" means, as specified in Article 3 herein, the Compensation
Committee of the Board or such other committee as may be appointed by the Board
to administer the Plan.
2.8 "COMPANY" means Prime Group Realty Trust, a Maryland real estate
investment trust, and any successor thereto as provided in Article 18 herein.
2.9 "DISABILITY" shall mean (a) long-term disability as defined under a
long-term disability plan maintained by an Employer and covering that
individual, or (b) if the individual is not covered by such a long-term
disability plan, disability as defined for purposes of eligibility for a
disability award under the Social Security Act.
2.10 "EFFECTIVE DATE" shall have the meaning ascribed to such term in
Section 1.1 hereof.
<PAGE>
2.11 "ELIGIBLE EMPLOYEE" means any officer or other key employee of the
Company or of any other Employer. Trustees who are not employed by the Company
or another Employer shall not be considered Eligible Employees under this Plan.
2.12 "EMPLOYER" means, individually, the Company, each Subsidiary, the
Operating Partnership, the Services Company and any other corporation, trust or
partnership in which the Company owns directly or indirectly at least 50% in
value of the outstanding capital or profits interest.
2.13 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor act thereto.
2.14 "EXERCISE PRICE" means the price at which a Share may be purchased
pursuant to the exercise of an Option.
2.15 "FAIR MARKET VALUE" means the per share value of the Shares as of a
given date, determined as follows:
(a) If the Shares are listed or admitted for trading on the New York
Stock Exchange (or if not, on another national securities exchange upon
which the Shares are listed), the Fair Market Value of a Share is the
closing quotation for such shares based on composite transactions for the
New York Stock Exchange (or if not listed on it, such other national
securities exchange) on the last trading day for the Shares prior to such
given date.
(b) If the Shares are not traded on any national securities
exchange, but are quoted on the National Association of Securities Dealers,
Inc. Automated Quotation System (NASDAQ System) or any similar system of
automated dissemination of quotations of prices in common use, the Fair
Market Value of a Share is the last sales price (if the Shares are then
listed as a national market issue under the NASDAQ System) or the mean
between the closing representative bid and asked prices (in all other
cases) for the Shares on the last 5 trading days for the Shares preceding
such given date as reported by the NASDAQ System (or such similar quotation
system).
(c) If neither clause (a) nor clause (b) of this Section 2.15 is
applicable, the Fair Market Value of a Share is the fair market value per
share as of such valuation date, as determined by the Board in good faith
and in accordance with uniform principles consistently
<PAGE>
applied; provided, however, that the Fair Market Value of a Share on the
date of the completion of an initial public offering of the Shares shall
be the initial public offering price.
2.16 "FREESTANDING SAR" means an SAR that is granted independently of any
Option, as described in Article 7 herein.
2.17 "INCENTIVE STOCK OPTION" or "ISO" means an option to purchase Shares
granted under Article 6 herein which is designated as an Incentive Stock Option
and that is intended to meet the requirements of Code Section 422.
2.18 "NONEMPLOYEE TRUSTEE" means an individual who is a member of the
Board of Trustees of the Company but who is not an employee of the Company or
any other Employer.
2.19 "NONQUALIFIED STOCK OPTION" or "NQSO" means an option to purchase
Shares granted under Article 6 herein that is not intended to meet the
requirements of Code Section 422.
2.20 "OPERATING PARTNERSHIP" means Prime Group Realty, L.P., a Delaware
limited partnership.
2.21 "OPTION" means an Incentive Stock Option or a Nonqualified Stock
Option, as described in Article 6 herein.
2.22 "PARTICIPANT" means an Eligible Employee who has been selected by the
Committee to participate in the Plan pursuant to Section 5.2 and who has
outstanding an Award granted under the Plan. The term "Participant" shall not
include Nonemployee Trustees.
2.23 "PERFORMANCE-BASED EXCEPTION" means the performance-based exception
from the tax deductibility limitations of Code Section 162(m) and any
regulations promulgated thereunder.
2.24 "PERFORMANCE UNIT" means a Share equivalent Award granted to a
Participant, as described in Article 9 herein.
2.25 "RESTRICTION PERIOD" means the period during which the transfer of
Shares of Restricted Stock is limited in some way (based on the passage of time,
the achievement of performance objectives, or upon the occurrence of other
events as determined by the Committee, at its discretion), and/or the Restricted
Stock/Units are not vested.
<PAGE>
2.26 "RESTRICTED STOCK" means a contingent grant of Shares awarded to a
Participant pursuant to Article 8 herein.
2.27 "RESTRICTED UNIT" means a Share equivalent Award granted to a
Participant, as described in Article 8 herein.
2.28 "RETIREMENT" shall mean termination of employment on or after (a)
attaining the age established as the normal retirement age in any unexpired
employment agreement between the Participant and the Company or another
Employer or, in the absence of such an agreement, the normal retirement age
under the tax-qualified defined benefit retirement plan or, if none, the
tax-qualified defined contribution retirement plan, sponsored by the Company
or another Employer in which the Participant participates, or (b) attaining
age sixty-two with ten years of continuous service with one or more Employers
provided that the retirement is approved by the Chief Executive Officer of
the Company unless the Participant is an officer subject to Section 16 of the
Exchange Act in which case the retirement must be approved by the Committee.
2.29 "SERVICES COMPANY" means Prime Group Realty Services, Inc., a
Maryland corporation.
2.30 "SHARES" means the Company's common shares.
2.31 "STOCK APPRECIATION RIGHT" or "SAR" means an Award, granted alone
or in connection with a related Option, designated as an SAR, pursuant to the
terms of Article 7 herein.
2.32 "SUBSIDIARY" means a subsidiary corporation of the Company within
the meaning of Code Section 424(f).
2.33 "TANDEM SAR" means an SAR that is granted in connection with a
related Option pursuant to Article 7 herein, the exercise of which requires
forfeiture of the right to purchase a Share under the related Option (and
when a Share is purchased under the Option, the Tandem SAR shall similarly be
canceled).
2.34 "TRUSTEE" means any individual who is a member of the Board of
Trustees.
<PAGE>
ARTICLE 3. ADMINISTRATION
3.1 THE COMMITTEE. The Plan shall be administered by the
Compensation Committee of the Board, or by any other Committee appointed by
the Board, which Committee (unless otherwise determined by the Board) shall
satisfy the "nonemployee director" requirements of Rule 16b-3 under the
Exchange Act and the regulations thereunder and the "outside director"
provisions of Code Section 162(m), or any successor regulations or
provisions. The members of the Committee shall be appointed from time to
time by, and shall serve at the discretion of, the Board. The Committee
shall act by a majority of its members at the time in office and eligible to
vote on any particular matter, and such action may be taken either by a vote
at a meeting or in writing without a meeting.
3.2 AUTHORITY OF THE COMMITTEE. Except as limited by law and subject
to the provisions herein, the Committee shall have full power and discretion
to: select Eligible Employees who shall participate in the Plan; select
Nonemployee Trustees to receive Awards under Article 6; determine the sizes
and types of Awards; determine the terms and conditions of Awards in a manner
consistent with the Plan; construe and interpret the Plan and any agreement
or instrument entered into under the Plan; establish, amend or waive rules
and regulations for the Plan's administration; and, subject to the provisions
of Article 15 herein, amend the terms and conditions of any outstanding Award
to the extent such terms and conditions are within the discretion of the
Committee as provided in the Plan. Further, the Committee shall make all
other determinations which may be necessary or advisable for the
administration of the Plan. As permitted by law and consistent with Section
3.1, the Committee may delegate its authority as identified herein.
3.3 DECISIONS BINDING. All determinations and decisions made by the
Committee pursuant to the provisions of the Plan shall be final, conclusive
and binding on all persons, including the Company, its Board of Trustees, its
shareholders, all Employers, employees, Participants and their estates and
beneficiaries.
ARTICLE 4. SHARES SUBJECT TO THE PLAN AND MAXIMUM AWARDS
4.1 NUMBER OF SHARES AVAILABLE FOR GRANTS. Subject to adjustment as
provided in Section 4.3 herein, the number of Shares that may be issued or
transferred to Participants under the Plan shall be 1,800,000 Shares.
The maximum number of Shares and Share equivalent units that may be
granted during any calendar year to any one Participant under Options,
Freestanding SARs, Restricted Stock, Restricted
<PAGE>
Units or Performance Units, shall be 200,000 (on an aggregate basis for all
such types of Awards), which limit shall apply regardless of whether such
compensation is paid in Shares or in cash.
4.2 LAPSED AWARDS. If any Award granted under this Plan is canceled,
terminates, expires or lapses for any reason, any Shares subject to such
Award again shall be available for the grant of an Award under the Plan, but
shall continue to count for the purpose of the annual individual award limit
set forth in Subsection 4.1 above.
4.3 ADJUSTMENTS IN AUTHORIZED SHARES.
(a) In the event the Shares, as presently constituted, shall be changed
into or exchanged for a different number or kind of shares of
securities of the Company or of another corporation (whether by
reason of merger, consolidation, recapitalization, reclassification,
split, reverse split, combination of shares, or otherwise) or if the
number of such Shares shall be increased through the payment of a
share dividend, then there shall be substituted for or added to each
Share theretofore appropriated or thereafter subject or which may
become subject to an Award under this Plan, the number and kind of
shares of securities into which each outstanding Share shall be so
changed, or for which each such Share shall be exchanged, or to
which each such Share shall be entitled, as the case may be.
Outstanding Awards shall also be appropriately amended as to price
and other terms as may be necessary to reflect the foregoing events.
In the event there shall be any other change in the number or kind
of the outstanding Shares, or of any stock or other securities into
which such Shares shall have been changed, or for which it shall
have been exchanged, then, if the Committee shall, in its sole
discretion, determine that such change equitably requires an
adjustment in any Award therefore granted or which may be granted
under the Plan, such adjustments shall be made in accordance with
such determination.
(b) Fractional Shares resulting from any adjustment in Awards pursuant
to this section may be settled in cash or otherwise as the Committee
shall determine. Notice of any adjustment shall be given by the
Company to each Participant who holds an Award which has been so
adjusted and such adjustment (whether or not such notice is given)
shall be effective and binding for all purposes of the Plan.
4.4 EMPLOYER PAYMENT. In the case of Shares delivered pursuant to an
Award granted to an employee of an Employer other than the Company or a
Subsidiary, such Employer shall make
<PAGE>
a payment to the Company with respect to such Shares in an amount equal to
(i) the Fair Market Value of the Shares on the date as of which they are so
delivered, less (ii) in the case of an option, the aggregate exercise price
for such Shares. For this purpose, the obligation to deliver Shares shall
first be satisfied from any Shares transferred in payment of an exercise
price.
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
5.1 ELIGIBILITY. Individuals eligible to participate in this Plan
consist of all Eligible Employees, including Eligible Employees who are
members of the Board, and Nonemployee Trustees but only to the extent
provided herein.
5.2 ACTUAL PARTICIPATION. Subject to the provisions of the Plan, the
Committee may, from time to time, select from all Eligible Employees, those
to whom Awards shall be granted and shall determine the nature and amount of
each Award.
ARTICLE 6. STOCK OPTIONS
6.1 GRANT OF OPTIONS. Subject to the terms and provisions of the
Plan, Options may be granted to Eligible Employees in such number, and upon
such terms, and at any time and from time to time as shall be determined by
the Committee. Options granted to Eligible Employees who are employees of
the Company or a Subsidiary may be either ISOs or NQSOs. Options granted to
other Eligible Employees may only be NQSOs. In addition, NQSOs may be
granted to Nonemployee Trustees in such number, and upon such terms, and at
any time and from time to time as shall be determined by the Committee.
6.2 AWARD AGREEMENT. Each Option grant shall be evidenced by an
Award Agreement that shall specify the Exercise Price, the duration of the
Option, the number of Shares to which the Option pertains, the manner, time
and rate of exercise or vesting of the Option, and such other provisions as
the Committee shall determine. The Award Agreement also shall specify
whether the Option is intended to be an ISO within the meaning of Code
Section 422 or an NQSO which is not intended to qualify under the provisions
of Code Section 422.
6.3 EXERCISE PRICE. The Exercise Price for each Share subject to an
Option granted under this Plan shall be at least equal to one hundred percent
of the Fair Market Value of a Share on the date the Option is granted;
provided, however, that, in the case of an ISO, the price per share shall not
be less than 110% of the Fair Market Value of such Share if on the date of
grant the Participant
<PAGE>
owns (within the meaning of Code Section 424(d)) more than 10% of the total
combined voting power of all classes of shares of beneficial interest of the
Company or any Subsidiary.
6.4 DURATION OF OPTIONS. Each Option granted to an Eligible Employee
or a Nonemployee Trustee shall expire at such time as the Committee shall
determine at the time of grant; provided, however, that no Option shall be
exercisable later than the tenth anniversary of the date of its grant;
provided, further, that in the case of an ISO granted to a Participant owning
(within the meaning of Code Section 424(d)), on the date of grant, more than
110% of the total combined voting power of all classes of shares of
beneficial interest of the Company or any Subsidiary, the Option shall not be
exercisable later than the fifth anniversary of the date of its grant.
6.5 DIVIDEND EQUIVALENTS. The Committee may grant dividend
equivalents in connection with Options granted under this Plan. Such
dividend equivalents may be payable in cash or in Shares, upon such terms as
the Committee, in its sole discretion, deems appropriate.
6.6 EXERCISE OF OPTIONS. Options granted under this Article 6 shall
be exercisable at such times and be subject to such restrictions and
conditions as the Committee shall in each instance approve, which need not be
the same for each Award or for each Participant. To the extent that the
aggregate Fair Market Value of the Shares with respect to which Incentive
Stock Options (within the meaning of Section 422 of the Code, but without
regard to Section 422(d) of the Code) are exercisable for the first time by
the Participant during any calendar year (under the Plan and all other
incentive stock option plans of the Company) exceeds $100,000, such Options
shall be treated as Nonqualified Options. The rule set forth in the
preceding sentence shall be applied by taking Options into account in the
order in which they were granted, and the Fair Market Value of the Shares
shall be determined as of the time the Option with respect to such Shares is
granted.
6.7 PAYMENT. Options granted under this Article 6 shall be exercised
by the delivery of a written notice of exercise to the Company, setting forth
the number of Shares with respect to which the Option is to be exercised
accompanied by full payment for the Shares and any withholding tax relating
to the exercise of the Option.
The Exercise Price, and any related withholding taxes, upon exercise of
any Option shall be payable: (a) in cash, or its equivalent, in United States
dollars, or (b) if permitted in the governing Award Agreement, by tendering
previously acquired Shares having an aggregate Fair Market Value at the time
of exercise equal to the total Exercise Price, or (c) if permitted in the
governing Award Agreement, by a combination of (a) and (b). The Committee
also may allow cashless exercise as
<PAGE>
permitted under Federal Reserve Board's Regulation T, subject to applicable
securities law restrictions, or by any other means which the Committee
determines to be consistent with the Plan's purpose and applicable law.
6.8 TERMINATION OF EMPLOYMENT. Each Option Award Agreement shall set
forth the extent to which the Participant shall have the right to exercise
the Option following termination of the Participant's employment with the
Company and all other Employers. Such provisions shall be determined by the
Committee, shall be included in the Award Agreement entered into with each
Participant or Nonemployee Trustee, need not be uniform among all Options
issued pursuant to this Article 6, and may reflect distinctions based on the
reasons for termination of employment.
6.9 NONTRANSFERABILITY OF OPTIONS. No Option granted under the Plan
may be sold, transferred, pledged, assigned or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution.
Further, all Options granted to a Participant under the Plan shall be
exercisable during the Participant's lifetime only by such Participant or the
Participant's guardian or legal representative. The Committee may require a
Participant's guardian or legal representative to supply it with such
evidence as the Committee deems necessary to establish the authority of the
guardian or legal representative to act on behalf of the Participant.
ARTICLE 7. STOCK APPRECIATION RIGHTS
7.1 GRANT OF SARS. Subject to the terms and conditions of the Plan,
SARs may be granted to Participants at any time and from time to time as
shall be determined by the Committee. The Committee may grant Freestanding
SARs, Tandem SARs or any combination of these forms of SAR.
Subject to Article 4 hereof, the Committee shall determine the number of
SARs granted to each Participant and, consistent with the provisions of the
Plan, determine the terms and conditions pertaining to such SARs.
The grant price of a Freestanding SAR shall equal the Fair Market Value
of a Share on the date of grant of the SAR. The grant price of Tandem SARs
shall equal the Exercise Price of the related Option.
7.2 EXERCISE OF TANDEM SARS. Tandem SARs may be exercised for all or
part of the Shares subject to the related Option upon the surrender of the
right to exercise the equivalent portion
<PAGE>
of the related Option. A Tandem SAR may be exercised only with respect to
the Shares for which its related Option is then exercisable.
7.3 EXERCISE OF FREESTANDING SARS. Freestanding SARs may be
exercised upon whatever terms and conditions the Committee imposes upon them.
7.4 AWARD AGREEMENT. Each SAR grant shall be evidenced by an Award
Agreement that shall specify the grant price, the term of the SAR and such
other provisions as the Committee shall determine.
7.5 DURATION OF SARS. The term of an SAR granted under the Plan
shall be determined by the Committee; provided, however, that such term shall
not exceed ten years.
7.6 PAYMENT OF SAR AMOUNT. Upon exercise of an SAR, a Participant
shall be entitled to receive payment from his or her Employer in an amount
determined by multiplying:
(a) the excess (or some portion of such excess as determined at the
time of the grant by the Committee) if any, of the Fair Market
Value of a Share on the date of exercise of the SAR over the
grant price specified in the Award Agreement; by
(b) the number of Shares with respect to which the SAR is exercised.
At the discretion of the Committee, the payment upon SAR exercise may be
in cash, in Shares of equivalent Fair Market Value or in some combination
thereof.
7.7 TERMINATION OF EMPLOYMENT. Each SAR Award Agreement shall set
forth the extent to which the Participant shall have the right to exercise
the SAR following termination of the Participant's employment with the
Company and all other Employers. Such provisions shall be determined by the
Committee, shall be included in the Award Agreement entered into with
Participants, need not be uniform among all SARs issued pursuant to the Plan,
and may reflect distinctions based on the reasons for termination of
employment.
7.8 NONTRANSFERABILITY OF SARS. Except as otherwise provided in a
Participant's Award Agreement, no SAR granted under the Plan may be sold,
transferred, pledged, assigned or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Further, except as
otherwise provided in a Participant's Award Agreement, all SARs granted to a
Participant
<PAGE>
under the Plan shall be exercisable during the Participant's lifetime only by
such Participant or the Participant's guardian or legal representative. The
Committee may require a Participant's guardian or legal representative to
supply it with such evidence as the Committee deems necessary to establish
the authority of the guardian or legal representative to act on behalf of the
Participant.
ARTICLE 8. RESTRICTED STOCK AND RESTRICTED UNITS
8.1 GRANT OF RESTRICTED STOCK/UNITS. Subject to the terms and
provisions of the Plan, the Committee may, at any time and from time to time,
grant Restricted Stock and/or Restricted Units to Participants in such
amounts as the Committee shall determine. Each grant of Restricted Stock
shall be represented by the number of Shares to which the Award relates.
Each grant of Restricted Units shall be represented by the number of Share
equivalent units to which the Award relates.
8.2 AWARD AGREEMENT. Each Restricted Stock/Unit grant shall be
evidenced by an Award Agreement that shall specify the Restriction Periods,
the number of Shares or Share equivalent units granted, and such other
provisions as the Committee shall determine.
8.3 NONTRANSFERABILITY. Except as provided in this Article 8, the
Restricted Stock/Units granted herein may not be sold, transferred, pledged,
assigned or otherwise alienated or hypothecated until the end of the
applicable Restriction Period established by the Committee and as specified
in the Award Agreement, or upon earlier satisfaction of any other conditions,
as specified by the Committee and as set forth in the Award Agreement. All
rights with respect to Restricted Stock/Units granted to a Participant under
the Plan shall be available during the Participant's lifetime only to such
Participant or the Participant's guardian or legal representative. The
Committee may require a Participant's guardian or legal representative to
supply it with such evidence as the Committee deems necessary to establish
the authority of the guardian or legal representative to act on behalf of the
Participant.
8.4 OTHER RESTRICTIONS. The Committee may impose such other
conditions and/or restrictions on any restricted Stock/Units granted pursuant
to the Plan as it deems advisable including, without limitation, restrictions
based upon the achievement of specific performance objectives (Company-wide,
business unit, and/or individual), time-based restrictions on vesting
following the attainment of the performance objectives, and/or restrictions
under applicable federal or state securities laws.
<PAGE>
The Company shall retain the certificates representing Shares of restricted
Stock in the Company's possession until such time as all conditions and/or
restrictions applicable to such Shares have been satisfied.
8.5 PAYMENT OF AWARDS. Except as otherwise provided in this Article 8,
(i) Shares covered by each Restricted Stock grant made under the Plan shall
become freely transferable by the Participant after the last day of the
applicable Restriction Period and (ii) Share equivalent units covered by each
Restricted Unit under Section 8.1 shall be paid out in cash or Shares to the
Participant following the last day of the applicable Restriction Period or such
later date as provided in the Award Agreement.
8.6 VOTING RIGHTS. During the Restriction Period, Participants holding
Shares of Restricted Stock granted hereunder may exercise full voting rights
with respect to those Shares.
8.7 DIVIDENDS AND OTHER DISTRIBUTIONS. During the Restriction Period,
Participants holding Shares of Restricted Stock/Units hereunder shall be
credited with regular cash dividends or dividend equivalents paid with respect
to the underlying Shares or Share equivalent units while they are so held. Such
dividends may be paid currently, accrued as contingent cash obligations, or
converted into additional Shares or units of Restricted Stock/Units, upon such
terms as the Committee establishes.
The Committee may apply any restrictions to the crediting and payment of
dividends and other distributions that the Committee deems advisable. Without
limiting the generality of the preceding sentence, if the grant or vesting of
Restricted Stock/Units is designed to qualify for the Performance-Based
Exception, the Committee may apply any restrictions it deems appropriate to the
payment of dividends declared with respect to such Restricted Stock/Units, such
that the dividends and/or the Restricted Stock/Units maintain eligibility for
the Performance-Based Exception.
8.8 TERMINATION OF EMPLOYMENT. Each Award Agreement shall set forth the
extent to which the Participant shall have the right to retain unvested
Restricted Stock/Units following termination of the Participant's employment
with the Company and all other Employers. Such provisions shall be determined
by the Committee, shall be included in the Award Agreement entered into with
each Participant, need not be uniform among all Awards of Restricted Stock/Units
issued pursuant to the Plan, and may reflect distinctions based on the reasons
for termination of employment.
ARTICLE 9. PERFORMANCE UNITS
<PAGE>
9.1 GRANT OF PERFORMANCE UNITS. Subject to the terms of the Plan,
Performance Units may be granted to Participants in such amounts and upon such
terms, and at any time and from time to time, as shall be determined by the
Committee.
9.2 VALUE OF PERFORMANCE UNITS. Each grant of Performance Units shall
be represented by the number of Share equivalent units to which the Award
relates. The Committee shall set performance objectives in its discretion
which, depending on the extent to which they are met, will determine the number
of Performance Units that will be paid out to the Participant. For purposes of
this Article 9, the time period during which the performance objectives must be
met shall be called a "PERFORMANCE PERIOD" and shall be set by the Committee in
its discretion.
9.3 EARNING OF PERFORMANCE UNITS. Subject to the terms of this Plan,
after the applicable Performance Period has ended, the holder of Performance
Units shall be entitled to receive payout on the number of Performance Units
earned by the Participant over the Performance Period, to be determined as a
function of the extent to which the corresponding performance objectives have
been achieved.
9.4 AWARD AGREEMENT. Each grant of Performance Units shall be evidenced
by an Award Agreement which shall specify the material terms and conditions of
the Award, and such other provisions as the Committee shall determine.
9.5 FORM AND TIMING OF PAYMENT OF PERFORMANCE UNITS. Except as
provided in Article 12, payment of earned Performance Units shall be made
within seventy-five calendar days following the close of the applicable
Performance Period in a manner determined by the Committee. Payment of earned
Performance Units may be in the form of cash or in Shares (or in a
combination thereof).
9.6 TERMINATION OF EMPLOYMENT DUE TO DEATH, DISABILITY, OR RETIREMENT.
Unless determined otherwise by the Committee and set forth in the Participant's
Award Agreement, in the event the employment of a Participant is terminated by
reason of death, Disability or Retirement during a Performance Period, the
Participant shall receive a payout of the Performance Units which is prorated,
as specified by the Committee in the Award Agreement. Payment of earned
Performance Units shall be made at a time specified by the Committee and set
forth in the Participant's Award Agreement.
<PAGE>
9.7 TERMINATION OF EMPLOYMENT FOR OTHER REASONS. In the event that a
Participant's employment terminates during a Performance Period for any reason
other than those reasons set forth in Section 9.6 herein, all Performance Units
shall be forfeited by the Participant, unless determined otherwise by the
Committee in the Participant's Award Agreement.
9.8 NONTRANSFERABILITY. Except as otherwise provided in a Participant's
Award Agreement, Performance Units may not be sold, transferred, pledged,
assigned or otherwise alienated or hypothecated, other than by will or by the
laws of descent and distribution. Further, except as otherwise provided in a
Participant's Award Agreement, a Participant's rights under the Plan shall be
exercisable during the Participant's lifetime only by such Participant or
Participant's guardian or legal representative. The Committee may require a
Participant's guardian or legal representative to supply it with such evidence
as the Committee deems necessary to establish the authority of the guardian or
legal representative to act on behalf of the Participant.
ARTICLE 10. PERFORMANCE MEASURES
Unless and until the Committee proposes for shareholder approval and the
Company's shareholders approve a change in the general performance measures set
forth in this Article 10, the attainment of which may determine the degree of
payout and/or vesting with respect to Awards which are designed to qualify for
the Performance-Based Exception, the performance measure(s) to be used for
purposes of such awards shall be chosen from among the following alternatives:
(a) return to shareholders (absolute or peer-group comparative);
(b) stock price increase (absolute or peer-group comparative);
(c) cumulative net income (absolute or competitive growth rates
comparative);
(d) return on equity;
(e) return on capital;
(f) cash flow, including operating cash flow, free cash flow,
discounted cash flow return on investment, and cash flow in excess
of cost of capital;
(g) economic value added (income in excess of capital costs); or
<PAGE>
(h) market share.
The Committee shall have the discretion to adjust the determinations of the
degree of attainment of the preestablished performance objectives; provided,
however, that Awards which are designed to qualify for the Performance-Based
Exception may not be adjusted except to the extent permitted under Code Section
162(m).
In the event that Code Section 162(m) or applicable tax and/or securities
laws change to permit Committee discretion to alter the governing performance
measures without obtaining shareholder approval of such changes, the Committee
shall have sole discretion to make such changes without obtaining shareholder
approval. In addition, in the event that the Committee determines that it is
advisable to grant Awards which shall not qualify for the Performance-Based
Exception, the Committee may make such grants without satisfying the
requirements of Code Section 162(m).
ARTICLE 11. BENEFICIARY DESIGNATION
Each Participant under the Plan may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or successively) to
whom any benefit under the Plan is to be paid in case of the death of the
Participant before he or she receives any or all of such benefit. Each such
designation shall revoke all prior designations by the same Participant, shall
be in a form prescribed by the Committee during the Participant's lifetime. If
the Participant's designated beneficiary predeceases the Participant or no
beneficiary has been designated, benefits remaining unpaid at the Participant's
death shall be paid to the Participant's spouse or if none, the Participant's
estate.
<PAGE>
ARTICLE 12. DEFERRALS
The Committee may permit or require a Participant to defer such
Participant's receipt of the payment of cash or the delivery of Shares that
would otherwise be due to such Participant by virtue of the exercise of an
Option or SAR, the lapse or waiver of restrictions with respect to Restricted
Stock/Units, or the satisfaction of any requirements or objectives with respect
to Performance Units. If any such deferral election is permitted or required,
the Committee shall, in its sole discretion, establish rules and procedures for
such deferrals. Notwithstanding the foregoing, the Committee in its sole
discretion may defer payment of cash or the delivery of Shares that would
otherwise be due to a Participant under the Plan if such payment or delivery
would result in compensation not deductible by the Company or any other Employer
by virtue of Code Section 162(m). Such a deferral may continue until the
payment or delivery would result in compensation deductible by the Company or
such other Employer under Code Section 162(m).
ARTICLE 13. RIGHTS OF EMPLOYEES
13.1 EMPLOYMENT. Nothing in the Plan shall interfere with or limit in
any way the right of the Company or any other Employer to terminate any
Participant's employment at any time, or confer upon any Participant any right
to continue in the employ of the Company or any other Employer.
13.2 PARTICIPATION. No Eligible Employee shall have the right to be
selected to receive an Award under this Plan, or, having been so selected, to be
selected to receive a future Award.
ARTICLE 14. CHANGE IN CONTROL
14.1 TREATMENT OF OUTSTANDING AWARDS. Upon the occurrence of a Change
in Control, unless otherwise specifically prohibited under applicable laws, or
by the rules and regulations of any governing governmental agencies or national
securities exchanges:
(a) Any and all outstanding Options and SARs granted hereunder shall
become immediately exercisable, and shall remain exercisable
throughout their entire term.
(b) Any Periods of Restriction and restrictions imposed on Restricted
Stock/Units shall lapse; provided, however, that the degree of
vesting associated with Restricted Stock/Units which has been
conditioned upon the achievement of performance
<PAGE>
conditions pursuant to Section 8.4 herein shall be determined in the
manner set forth in Section 14.1(c) herein.
(c) Except as otherwise provided in the Award Agreement, the vesting of
all Performance Units shall be accelerated as of the effective date
of the Change in Control, and there shall be paid out in cash to
Participants within thirty days following the effective date of the
Change in Control a pro rata amount based upon an assumed
achievement of all relevant performance objectives at target
levels, and upon the length of time within the Performance Period
which has elapsed prior to the effective date of the Change in
Control; provided, however, that in the event the Committee
determines that actual performance to the effective date of the
Change in Control exceeds target levels, the prorated payouts
shall be made at levels commensurate with such actual performance
(determined by extrapolating such actual performance to the end of
the Performance Period), based upon the length of time within the
Performance Period which has elapsed prior to the effective date
of the Change in Control.
14.2 TERMINATION, AMENDMENT, AND MODIFICATIONS OF CHANGE IN CONTROL
PROVISIONS. Notwithstanding any other provision of this Plan or any Award
Agreement provision, the provisions of this Article 14 may not be terminated,
amended, or modified on or after the effective date of a Change in Control to
affect adversely any Award theretofore granted under the Plan without the prior
written consent of the Participant with respect to his or her outstanding
Awards.
ARTICLE 15. AMENDMENT, MODIFICATION AND TERMINATION
15.1 AMENDMENT, MODIFICATION AND TERMINATION. Subject to Section 14.2
herein, the Board may at any time and from time to time, alter, amend, modify or
terminate the Plan in whole or in part.
Subject to the terms and conditions of the Plan, the Committee may modify,
extend or renew outstanding Awards under the Plan, or accept the surrender of
outstanding Awards (to the extent not theretofore exercised) and grant new
Awards in substitution therefor (to the extent not theretofore exercised). The
Committee shall not, however, modify any outstanding Incentive Stock Option so
as to specify a lower Exercise Price. Notwithstanding the foregoing, no
modification of an Award shall, without the consent of the Participant, alter or
impair any rights or obligations under any Award theretofore granted under the
Plan.
<PAGE>
15.2 ADJUSTMENT OF AWARDS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR
NONRECURRING EVENTS. The Committee may make adjustments in the terms and
conditions of, and the criteria included in, Awards in recognition of unusual or
nonrecurring events (including, without limitation, the events described in
Section 4.3 hereof) affecting the Company or the financial statements of the
Company or of changes in applicable laws, regulations, or accounting principles,
whenever the Committee determines that such adjustments are appropriate in order
to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, subject to the requirements of
Code Section 162(m) for the Performance-Based Exception in the case of Awards
designed to qualify for the Performance-Based Exception.
15.3 AWARDS PREVIOUSLY GRANTED. No termination, amendment or
modification of the Plan shall adversely affect in any material way any Award
previously granted under the Plan, without the written consent of the
Participant holding such Award.
15.4 COMPLIANCE WITH CODE SECTION 162(m). Awards, when Code Section
162(m) is applicable, shall comply with the requirements of Code Section 162(m);
provided, however, that in the event the Committee determines that such
compliance is not desired with respect to any Award or Awards available for
grant under the Plan, then compliance with Code Section 162(m) will not be
required. In addition, in the event that changes are made to Code Section
162(m) to permit greater flexibility with respect to any Award or Awards
available under the Plan, the Committee may, subject to this Article 15, make
any adjustments it deems appropriate.
ARTICLE 16. WITHHOLDING
16.1 TAX WITHHOLDING. Each Employer shall have the power and the right
to deduct or withhold, or require a Participant to remit to the Employer, an
amount (either in cash or Shares) sufficient to satisfy federal, state, and
local taxes, domestic or foreign, required by law or regulation to be withheld
with respect to any taxable event arising as a result of this Plan.
16.2 SHARE WITHHOLDING. With respect to withholding required upon the
exercise of Options or SARs, upon the lapse of restrictions on Restricted Stock,
or upon any other taxable event arising as a result of Awards granted hereunder,
an Employer may satisfy the minimum withholding requirement for supplemental
wages, in whole or in part, by withholding from the Award Shares having a Fair
Market Value (determined on the date the Participant recognizes taxable income
on the Award) equal to the withholding tax required to be collected on the
transaction. The Participant may elect, subject to the approval of the
Committee, to deliver the necessary funds to satisfy the
<PAGE>
withholding obligation to an Employer, in which case there will be no
reduction in the Shares otherwise distributable to the Participant.
ARTICLE 17. INDEMNIFICATION
Each person who is or has been a member of the Committee, or of the Board,
shall be indemnified and held harmless by the Company against and from any loss,
cost, liability, or expense that may be imposed upon or reasonably incurred by
such person in connection with or resulting from any claim, action, suit, or
proceeding to which such person may be a party or in which such person may be
involved by reason of any action taken or failure to act under the Plan and
against and from any and all amounts paid by such person in a settlement
approved by the Company, or paid by such person in satisfaction of any judgment
in any such action, suit, or proceeding against such person, provided such
person shall give the Company an opportunity, at its own expense, to handle and
defend the same before such person undertakes to handle and defend it. The
foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the Company's
Articles of Incorporation or By-Laws, as a matter of law, or otherwise, or any
power that the Company may have to indemnify them or hold them harmless.
ARTICLE 18. SUCCESSORS
All obligations of an Employer under the Plan or any Award Agreement with
respect to Awards granted hereunder shall be binding on any successor to the
Employer, whether the existence of such successor is the result of a direct or
indirect purchase of all or substantially all of the business and/or assets of
the Employer, or a merger, consolidation, or otherwise.
ARTICLE 19. LEGAL CONSTRUCTION
19.1 GENDER AND NUMBER. Except where otherwise indicated by the
context, any masculine term used herein also shall include the feminine; the
plural shall include the singular and the singular shall include the plural.
19.2 SEVERABILITY. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the Plan, and the Plan shall be construed and enforced as
if the illegal or invalid provision had not been included.
<PAGE>
19.3 REQUIREMENTS OF LAW. The granting of Awards and the issuance of
Share and/or cash payouts under the Plan shall be subject to all applicable
laws, rules, and regulations, and to such approvals by any governmental agencies
or national securities exchanges as may be required. The Committee may impose
such restrictions on any Shares delivered pursuant to any Award granted under
this Plan as the Committee deems necessary or advisable, including, without
limitation, restrictions under applicable federal securities laws, under the
requirements of any stock exchange or market upon which such Shares are then
listed and/or traded, and under any blue sky or state securities laws applicable
to such Shares.
19.4 SECURITIES LAW COMPLIANCE. With respect to any individual who is,
on the relevant date, an officer, director or ten percent beneficial owner of
any class of the Company's equity securities that is registered pursuant to
Section 12 of the Exchange Act, all as defined under Section 16 of the Exchange
Act, transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 under the Exchange Act, or any successor rule. To the
extent any provision of the Plan or action by the Committee fails to so comply,
it shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee.
19.5 AWARDS TO FOREIGN NATIONALS AND EMPLOYEES OUTSIDE THE UNITED
STATES. To the extent the Committee deems it necessary, appropriate or
desirable to comply with foreign law of practice and to further the purposes of
this Plan, the Committee may, without amending the Plan, (i) establish rules
applicable to Awards granted to Participants who are foreign nationals, are
employed outside the United States, or both, including rules that differ from
those set forth in this Plan, and (ii) grant Awards to such Participants in
accordance with those rules.
19.6 UNFUNDED STATUS OF THE PLAN. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments or deliveries of Shares not yet made to a Participant by the Company or
any other Employer, nothing contained herein shall give any rights that are
greater than those of a general creditor. The Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Shares or payments hereunder consistent with the foregoing.
19.7 GOVERNING LAW. To the extent not preempted by federal law, the
Plan, and all agreements hereunder, shall be construed in accordance with and
governed by the laws of the State of Maryland.
ARTICLE 20. SHAREHOLDER APPROVAL
<PAGE>
This Plan will be submitted for the approval of the Company's shareholders
within twelve months before or after the date of the Board's initial adoption of
the Plan. Awards may be granted prior to such shareholder approval; provided,
however, that such Awards shall not be exercisable or payable prior to the time
when the Plan is approved by the shareholders; provided, further, that if such
approval has not been obtained at the end of said twelve-month period, all
Awards previously granted under the Plan shall thereupon be cancelled and become
null and void.
<PAGE>
Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this
17th day of November, 1997 by and among Prime Group Realty Trust, a Maryland
real estate investment trust ("PGRT"), Prime Group Realty, L.P., a Delaware
limited partnership and the operating partnership for PGRT ("Prime") (Prime and
PGRT are hereinafter sometimes collectively referred to as "Employer"), and
Michael W. Reschke, an individual domiciled in the State of Illinois
("Executive").
W I T N E S S E T H
A. Employer is engaged primarily in the ownership, management,
leasing, marketing, acquisition, development and construction of office and
industrial real estate facilities throughout the United States.
B. Employer believes that it would benefit from the application of
Executive's particular and unique skill, experience, and background to the
development of office properties and the management thereof.
C. Executive wishes to commit to serve Employer in the position set
forth herein on the terms herein provided.
D. The parties wish by this Agreement to set forth the terms and
conditions of the employment relationship between Employer and Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein set forth, and for other good and valuable consideration,
Employer and Executive hereby agree as follows:
1. EMPLOYMENT AND DUTIES. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Executive, and Executive agrees
to be employed by Employer, as the Chairman of the Board of Employer on the
terms and conditions provided in this Agreement. Executive shall conduct,
operate, manage and promote the business and business concept of Employer.
The Board of Directors of Employer may from time to time further define and
clarify Executive's duties and services hereunder as Chairman of the Board of
Employer. Executive agrees to devote Executive's sufficient time, attention,
energy and skill to perform Executive's duties as Chairman of the Board of
Employer. Executive shall have no obligation to devote full-time to
Executive's duties, it being expressly understood that Executive has other
professional and managerial duties and responsibilities to companies other
than Employer. Further, during the Employment Term, Employer agrees to
recommend Executive to be elected as a member of the Board of Trustees of
PGRT (the "Board").
<PAGE>
2. TERM. The initial term of this Agreement (the "Initial Term")
shall commence on November 17, 1997 and expire on November 17, 2000,
provided, however, this Agreement shall automatically extend for one year
terms following the Initial Term (each a "Renewal Term", together with the
Initial Term, the "Employment Term"), unless prior to six (6) months, in the
case of a non-renewal by Employer, or prior to thirty (30) days, in the case
of a non-renewal by Executive, before the end of the Initial Term or any
Renewal Term, as applicable, either party shall give the other written notice
of its intention to terminate this Agreement.
3. COMPENSATION AND RELATED MATTERS. (a) BASE SALARY. As
compensation for performing the services required by this Agreement during
the Employment Term, Employer shall pay to Executive an annual salary of no
less than One Hundred Fifty Thousand Dollars ($150,000) ("Base
Compensation"), payable in accordance with the general policies and
procedures for payment of salaries to its executive personnel maintained,
from time to time, by Employer (but no less frequently than monthly), subject
to withholding for applicable federal, state, and local taxes. Increases in
Base Compensation, if any, shall be determined by the Compensation Committee
(the "Committee") of the Board based on periodic reviews of Executive's
performance conducted on at least an annual basis.
(b) BONUS. In addition to Base Compensation, the Board and the
Committee, in their sole and absolute discretion, may, but in no event shall
be obligated to, authorize the payment of a cash bonus (a "Performance Bonus
Distribution") to Executive based upon achievement of such corporate and
individual performance goals and objectives as may be established or
determined by the Board or the Committee from time to time.
(c) BENEFITS. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Executive
and Executive's eligible dependents shall have the right to participate in
the medical and dental benefit plan to be established by Employer (which may
include contributions by Executive) and in any other retirement, pension,
insurance, health or other benefit plan or program that has been or is
hereafter adopted by Employer (or in which Employer participates), as such
plans and programs may be amended or modified from time to time by Employer,
according to the terms of such plan or program with all the benefits, rights
and privileges as are enjoyed by any other executive officers of Employer.
Employer expects to have in place a life insurance program in which Executive
will be entitled to participate. If the participation of Executive would
adversely affect the qualification of a plan intended to be qualified under
Section 401(a) of the Internal Revenue Code as the same may be amended from
time to time (the "Code"), Employer shall have the right to exclude Executive
from that plan in return for Executive's participation in (i) a nonqualified
deferred compensation plan or (ii) an arrangement providing substantially
comparable benefits under a plan that is either a qualified or nonqualified
under the Code at Employer's option.
(d) EXPENSES. Executive shall be reimbursed, subject to
Employer's receipt of invoices or similar records as Employer may reasonably
request in accordance with its policies and procedures, as such policies and
procedures may be amended or modified from time to time by Employer, for all
reasonable and necessary expenses incurred by Executive in the performance of
2
<PAGE>
Executive's duties hereunder, including expenses for business entertainment
and meals (whether in or out of town) and gas for business travel, but
excluding automobile insurance.
4. SHARE OPTIONS. PGRT has established a share incentive plan (the
"Share Incentive Plan"). The Share Incentive Plan initially provides, among
other things, for the issuance from time to time to certain officers,
directors and other employees of PGRT and Employer, including Executive, of
share options. Pursuant to the Share Incentive Plan, on the date hereof, PGRT
shall grant to Executive 175,000 share options ("Options") that will have
such terms and conditions as are set forth in the Share Incentive Plan and
the Share Option Agreement to be entered into between PGRT and Executive.
Such Options granted to Executive shall vest immediately (i) upon the death
or disability of Executive or (ii) upon termination of this Agreement and
Executive's employment for any reason other than (A) a termination for cause
by Employer or (B) or if Executive terminates Executive's employment for any
reason other than pursuant to Section 5(b)(i) hereof. In the case of a
termination for cause or if Executive terminates Executive's employment for
any reason other than pursuant to Section 5(b)(i) hereof, all unvested
Options shall be forfeited by Executive, but Executive shall have the right
to exercise within the time period provided for in the Share Incentive Plan
all Options vested prior to such termination.
5. TERMINATION AND TERMINATION BENEFITS. (a) TERMINATION BY
EMPLOYER. (i) WITHOUT CAUSE. Employer may terminate this Agreement and
Executive's employment at any time for any reason or for no reason at all
upon thirty (30) days' prior written notice to Executive following notice of
termination. In connection with the termination of Executive's employment
pursuant to this Section 5(a)(i), Executive shall (A) be paid Executive's
Base Compensation in accordance with Section 3(a) hereof up to the effective
date of such termination, (B) be paid a pro rata portion of any bonus
otherwise payable to Executive for or with respect to the calendar year in
which such termination occurs in accordance with Section 3(b) hereof up to
the effective date of such termination and, to the extent not previously
paid, Executive shall be entitled to all bonuses payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar years
prior to the calendar year in which such termination occurs, (C) be entitled
to the benefits set forth in Sections 3(c) and 3(d) hereof up to the
effective date of such termination and (D) receive the Termination
Compensation specified in Section 5(e) hereof. For purposes of calculating
Executive's pro rata portion of any bonus pursuant to clause (B) in the
previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata (based on the number of days in the year) portion of
which Executive shall be entitled to receive, shall be deemed to be 50% of
Executive's then current annual Base Compensation. For purposes of this
Agreement, the "effective date of termination" shall mean the last day on
which Executive is employed with Employer which may be later than the date of
the delivery of any applicable notice of termination.
(ii) WITH CAUSE. Employer may terminate this Agreement with
cause immediately upon written notice to Executive. Employer may elect to
require Executive to continue to perform Executive's duties under this
Agreement for an additional thirty (30) days following notice of termination.
In connection with the termination of Executive's employment pursuant to
this Section 5(a)(ii), Executive shall (A) be paid Executive's Base
Compensation in accordance with
3
<PAGE>
Section 3(a) hereof up to the effective date of such termination, and, to the
extent not previously paid, Executive shall be entitled to any bonuses
payable to Executive in accordance with Section 3(b) hereof for or with
respect to any calendar years prior to the calendar year in which such
termination occurs and (B) be entitled to the benefits set forth in Sections
3(c) and 3(d) hereof up to the effective date of such termination. For
purposes of this Section 5(a)(ii), "cause" shall mean (1) a finding by the
Board that Executive has materially harmed Employer, its business, assets or
employees through an act of dishonesty, material conflict of interest, gross
misconduct or willful malfeasance, (2) Executive's conviction of (or pleading
nolo contendere to) a felony, (3) Executive's failure to perform (which shall
not include inability to perform due to disability) in any material respects
Executive's material duties under this Agreement after written notice
specifying the failure and a reasonable opportunity to cure (it being
understood that if Executive's failure to perform is not of a type requiring
a single action to fully cure, then Executive may commence the cure promptly
after such written notice and thereafter diligently prosecute such cure to
completion), (4) the breach by Executive of any of Executive's material
obligations hereunder (other than those covered by clause (3) above) and the
failure of Executive to cure such breach within thirty (30) days after
receipt by Executive of a written notice of Employer specifying in reasonable
detail the nature of the breach, or (5) Executive's sanction (including
restrictions, prohibitions and limitations agreed to under a consent decree
or agreed order) under, or conviction for violation of, any federal or state
securities law, rule or regulation (provided that in the case of a sanction,
such sanction materially impedes or impairs the ability of Executive to
perform Executive's duties and exercise Executive's responsibilities
hereunder in a satisfactory manner).
(iii) DISABILITY. If due to illness, physical or mental
disability, or other incapacity, Executive shall fail during any four (4)
consecutive months to perform the duties required by this Agreement, Employer
may, upon thirty (30) days' written notice to Executive, either terminate
this Agreement or suspend Executive's right to any Base Compensation or
Performance Bonus Distributions without terminating this Agreement. In any
such event, Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise payable to
Executive for or with respect to the calendar year in which such termination
occurs in accordance with Section 3(b) hereof up to the first day of such
four (4) month period and, to the extent not previously paid, Executive shall
be entitled to all bonuses payable to Executive in accordance with Section
3(b) hereof for or with respect to any calendar years prior to the calendar
year in which such termination occurs and (C) be entitled to the benefits set
forth in Sections 3(c) (or the after-tax cash equivalent) and 3(d) hereof up
to the effective date of such termination. For purposes of calculating
Executive's pro rata portion of any bonus pursuant to clause (B) in the
previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation. In the event Employer elects to suspend Executive's right to
Base Compensation and Performance Bonus Distributions, at such time as
Executive is able to resume the duties required under this Agreement,
Executive shall be entitled to receive Base Compensation and Performance
Bonus Distributions from the date Executive commences the performance of such
duties following the disability in accordance with the terms and provisions
of this Agreement. This Section 5(a)(iii) shall not limit the entitlement of
Executive,
4
<PAGE>
Executive's estate or beneficiaries to any disability or other benefits
available to Executive under any disability insurance or other benefits plan
or policy which is maintained by Employer for Executive's benefit. For
purposes of this Agreement, the "date of disability" shall mean the first day
of the consecutive period during which Executive fails to perform the duties
required by this Agreement due to illness, physical or mental disability or
other incapacity.
(b) TERMINATION BY EXECUTIVE. (i) AFTER CHANGE OF CONTROL.
Executive may terminate this Agreement upon thirty (30) days' written notice
to Employer following any "change of control" of Employer and a resulting
"diminution event", each as defined below, but in no event later than two
years after the change of control event. Executive shall continue to
perform, at the election of Employer, Executive's duties under this Agreement
for an additional thirty (30) days following notice of termination. In such
event, Executive shall (A) be paid Executive's Base Compensation up to the
effective date of such termination, (B) be paid a pro rata portion of any
bonus otherwise payable to Executive for or with respect to the calendar year
in which such termination occurs in accordance with Section 3(b) hereof up to
the effective date of such termination and, to the extent not previously
paid, Executive shall be entitled to all bonuses payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar years
prior to the calendar year in which such termination occurs, (C) be entitled
to the benefits set forth in Sections 3(c) and 3(d) hereof up to the
effective date of such termination and (D) receive the Termination
Compensation specified in Section 5(e) hereof. For purposes of calculating
Executive's pro rata portion of any bonus pursuant to clause (B) in the
previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation. For purposes of this Agreement, in the event Employer defaults
in its obligation under Section 9 hereof and, as a consequence thereof,
Executive's employment with Employer (or Employer's successor or assign)
terminates, such termination shall be deemed to be a termination under this
Section 5(b)(i).
For purposes of this Section 5(b)(i), (A) a "change of control" of
Employer shall be deemed to have occurred if: (1) any person (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including a "group" as defined in Section
13(d)(3) of the Exchange Act (but excluding The Prime Group, Inc. or any of
its affiliates or any group in which The Prime Group, Inc. or any of its
affiliates has a significant interest and excluding a trustee or other
fiduciary holding securities under an employee benefit plan of Employer),
becomes the beneficial owner of shares of beneficial interests or limited
partnership interests, as applicable, of Employer having at least fifty
percent (50%) of the total number of votes that may be cast for the election
of directors of Employer; (2) the merger or other business combination of
Employer, sale of all or substantially all of Employer's assets or
combination of the foregoing transactions (a "Transaction"), other than a
Transaction immediately following which the shareholders of Employer
immediately prior to the Transaction continue to have a majority of the
voting power in the resulting entity (excluding for this purpose any
shareholder, other than The Prime Group, Inc. and its affiliates, owning
directly or indirectly more than ten percent (10%) of the shares of the other
company involved in the Transaction); or (3) within any twenty-four (24)
month period beginning on or after the date hereof, the persons who were
directors of Employer immediately before the beginning of
5
<PAGE>
such period (the "Incumbent Directors") shall cease to constitute at least a
majority of the Board or a majority of the board of directors of any
successor to Employer, provided that, any director who was not a director as
of the date hereof shall be deemed to be an Incumbent Director if such
director was elected to the Board by, or on the recommendation of or with the
approval of, at least two-thirds of the directors who then qualified as
Incumbent Directors either actually or by prior operation of this provision,
unless such election, recommendation or approval was the result of an actual
or threatened election contest of the type contemplated by Regulation 14a-11
promulgated under the Exchange Act or any successor provision; and (B) a
"diminution event" shall mean any material diminution in (1) the duties and
responsibilities of Executive (other than a mere title change unless the new
title is not Chairman of the Board) or (2) the compensation package for
Executive.
(ii) WITHOUT GOOD REASON. Executive may terminate this
Agreement and Executive's employment at any time for any reason or for no
reason at all upon thirty (30) days' written notice to Employer, during which
period Executive shall continue to perform Executive's duties under this
Agreement if Employer so elects. In connection with the termination of
Executive's employment pursuant to this Section 5(b)(ii), Executive shall (A)
be paid Executive's Base Compensation in accordance with Section 3(a) hereof
up to the effective date of such termination, and, to the extent not
previously paid, Executive shall be entitled to all bonuses payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such termination occurs
and (B) be entitled to the benefits set forth in Sections 3(c) and 3(d)
hereof up to the effective date of such termination.
(c) DEATH. Notwithstanding any other provision of this Agreement,
this Agreement shall terminate on the date of Executive's death. In such
event, Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the date of such death, (B) be paid
a pro rata portion of any bonus otherwise payable to Executive for or with
respect to the calendar year in which such death occurs in accordance with
Section 3(b) hereof up to the effective date of such death and, to the extent
not previously paid, Executive shall be entitled to all bonuses payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such death occurs and (C)
be entitled to the benefits set forth in Sections 3(c) (or the after-tax
cash equivalent) and 3(d) hereof up to the date of such death. This Section
5(c) shall not limit the entitlement of Executive, Executive's estate or
beneficiaries under any insurance or other benefits plan or policy which is
maintained by Employer for Executive's benefit. For purposes of calculating
Executive's pro rata portion of any bonus pursuant to clause (B) in the
previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation.
(d) REMOVAL AS DIRECTOR. Notwithstanding any other provision of
this Agreement, if Executive shall be removed from office as a director of
Employer at any time during the Employment Term, then Executive may notify
Employer in writing of Executive's election to terminate this Agreement with
good reason upon written notice to Employer and such notice shall be
effective immediately upon receipt by Employer. In such event, Executive
shall (A) be paid
6
<PAGE>
Executive's Base Compensation in accordance with Section 3(a) hereof up to
the effective date of such termination, (B) be paid a pro rata portion of any
bonus otherwise payable to Executive for or with respect to the calendar year
in which such termination occurs in accordance with Section 3(b) hereof up to
the effective date of such termination and, to the extent not previously
paid, Executive shall be entitled to all bonuses payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar years
prior to the calendar year in which such termination occurs, (B) be entitled
to the benefits set forth in Sections 3(c) (or the after-tax cash equivalent)
and 3(d) hereof up to the effective date of such termination and (C) be
entitled to the Termination Compensation specified in Section 5(e) hereof.
(e) TERMINATION COMPENSATION. In the event of a termination of
this Agreement pursuant to Section 5(a)(i), 5(b)(i) or 5(d) hereof, Employer
shall pay to Executive, within thirty (30) days of termination, an amount in
one lump sum ("Termination Compensation") equal to (i) in the case of a
termination pursuant to Section 5(a)(i) or 5(d) hereof, Executive's annual
Base Compensation as of the effective date of such termination, or (ii) in
the case of a termination pursuant to Section 5(b)(i) hereof, two times (A)
the average annual Base Compensation paid or payable to Executive for or with
respect to the two full calendar years immediately preceding the calendar
year in which the date of termination occurs, plus (B) the average annual
Performance Bonus Distribution paid or payable to Executive for or with
respect to the two full calendar years immediately preceding the calendar
year in which the date of termination occurs. For purposes of calculating
Employee's Termination Compensation pursuant to clause (ii) above, if the
termination takes place prior to December 31, 1999, the Termination
Compensation for any applicable calendar year in which the termination takes
place shall be determined as follows:
(1) if the termination takes place on or prior to December
31, 1998, the full Termination Compensation described in clause (d)(ii) above
shall be deemed to be 350% of Executive's Base Compensation for the 1998
calendar year; or
(2) if the termination takes place after December 31, 1998
but on or prior to December 31, 1999, the Performance Bonus Distribution
component of the Termination Compensation calculation described in clause
(d)(ii) above shall be deemed to be two times the average of (A) the amount
of the Performance Bonus Distribution paid to Executive or to which Executive
is entitled for the 1998 calendar year pursuant to Section 3(b) hereof and
(B) the greater of (1) 75% of Executive's Base Compensation for the 1998
calendar year or (2) 133% of the Performance Bonus Distribution paid to
Executive or to which Executive is entitled for the 1998 calendar year
pursuant to Section 3(b) hereof.
6. PRIOR AGREEMENTS. This Agreement, together with the Stock
Incentive Plan, supersedes and is in lieu of any and all other employment
arrangements between Executive and Employer or its predecessor or any
subsidiary and any and all such employment agreements and arrangements are
hereby terminated and deemed of no further force or effect.
7. ASSIGNMENT. Neither this Agreement nor any rights or duties of
Executive hereunder shall be assignable by Executive and any such purported
assignment by him shall be void. Employer
7
<PAGE>
may assign all or any of its rights hereunder provided that substantially all
of the assets of Employer are also transferred to the same party.
8. SUCCESSOR TO EMPLOYER. Employer will require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all the business and/or assets of
Employer, as the case may be, by agreement in form and substance reasonably
satisfactory to Executive, expressly, absolutely and unconditionally to
assume and agree to perform this Agreement in the same manner and to the same
extent that Employer would be required to perform it if no such succession or
assignment had taken place. Any failure of Employer to obtain such agreement
prior to the effectiveness of any such succession or assignment shall be a
material breach of this Agreement giving Executive the right to terminate
this Agreement, in which case Executive shall be entitled to receive the
compensation specified in Section 5(b)(i) hereof. This Agreement shall inure
to the benefit of and be enforceable by Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amounts are still
payable to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee or other designee or, if there be no such
designee, to Executive's estate.
9. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent
by courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Executive, to:
Michael W. Reschke
c/o Prime Group Realty Trust
77 W. Wacker Drive
Suite 3900
Chicago, IL 60601
(b) if to Employer, to:
Prime Group Realty Trust
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: Chief Executive Officer
WITH A COPY TO:
Prime Group Realty Trust
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
8
<PAGE>
Attn: General Counsel
AND TO:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
Attn: Wayne D. Boberg
Any notice, claim, demand, request or other communication given as provided
in this Section 9, if delivered personally, shall be effective upon delivery;
and if given by courier, shall be effective one (1) business day after
deposit with the courier if next day delivery is guaranteed; and if given by
certified mail, shall be effective three (3) business days after deposit in
the mail. Either party may change the address at which it is to be given
notice by giving written notice to the other party as provided in this
Section 9.
10. AMENDMENT. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
11. WAIVER OF BREACH. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by either party.
12. SEVERABILITY. Employer and Executive each expressly agree and
contract that it is not the intention of either party to violate any public
policy, statutory or common law, and that if any covenant, sentence,
paragraph, clause or combination of the same of this Agreement (a
"Contractual Provision") is in violation of the law of any state where
applicable, such Contractual Provision shall be void in the jurisdictions
where it is unlawful, and the remainder of such Contractual Provision, if
any, and the remainder of this Agreement shall remain binding on the parties
such that such Contractual Provision shall be binding only to the extent that
such Contractual Provision is lawful or may be lawfully performed under then
applicable laws. In the event that any part of any Contractual Provision of
this Agreement is determined by a court of competent jurisdiction to be
overly broad thereby making the Contractual Provision unenforceable, the
parties hereto agree, and it is their desire, that such court shall
substitute a judicially enforceable limitation in its place, and that the
Contractual Provision, as so modified, shall be binding upon the parties as
if originally set forth herein.
13. INDEMNIFICATION BY EXECUTIVE. Executive shall indemnify Employer
for any and all damages, costs and expenses resulting from any material harm
to Employer, its business, assets or employees through an act of dishonesty,
material conflict of interest, gross misconduct or willful malfeasance by
Executive. Executive also shall indemnify Employer for any and all damages,
costs and expenses resulting from Executive's acts of omission constituting
reckless disregard of Executive's duties to Employer following notice thereof
by Employer after it becomes aware of such conduct and Executive's failure to
so cure within thirty (30) days.
9
<PAGE>
14. GOVERNING LAW. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of
Illinois, exclusive of the conflict of laws provisions of the State of
Illinois.
[signature page follows]
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EMPLOYER:
PRIME GROUP REALTY TRUST
By: /s/ Richard S. Curto
-------------------------------
Title: President
-------------------------------
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust,
its General Partner
By: /s/ Richard S. Curto
--------------------------
Title: President
--------------------------
EXECUTIVE:
/s/ Michael W. Reschke
-------------------------------------
Michael W. Reschke
11
<PAGE>
Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 17th day of November, 1997 by and among Prime Group Realty Trust, a
Maryland real estate investment trust ("PGRT"), Prime Group Realty, L.P., a
Delaware limited partnership and the operating partnership for PGRT ("Prime")
(Prime and PGRT are hereinafter sometimes collectively referred to as
"Employer"), and Richard S. Curto, an individual domiciled in the State of
Illinois ("Executive").
W I T N E S S E T H
A. Employer is engaged primarily in the ownership, management, leasing,
marketing, acquisition, development and construction of office and industrial
real estate facilities throughout the United States.
B. Employer believes that it would benefit from the application of
Executive's particular and unique skill, experience, and background to the
development of office properties and the management thereof.
C. Executive wishes to commit to serve Employer in the position set
forth herein on the terms herein provided.
D. The parties wish by this Agreement to set forth the terms and
conditions of the employment relationship between Employer and Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein set forth, and for other good and valuable consideration,
Employer and Executive hereby agree as follows:
1. Employment and Duties. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Executive, and Executive agrees to
be employed by Employer, as the President and Chief Executive Officer of
Employer on the terms and conditions provided in this Agreement. Executive shall
conduct, operate, manage and promote the business and business concept of
Employer. The Chairman of the Board of Employer may from time to time further
define and clarify Executive's duties and services hereunder as President and
Chief Executive Officer of Employer. Executive agrees to devote Executive's best
efforts and substantially all of Executive's business time, attention, energy
and skill to perform Executive's duties as President and Chief Executive Officer
of Employer. Further, during the Employment Term, Employer agrees to recommend
Executive to be elected as a member of the Board of Trustees of PGRT (the
"Board").
2. Term. The initial term of this Agreement (the "Initial Term") shall
commence on November 17, 1997 and expire on November 17, 2000, provided,
however, this Agreement shall
<PAGE>
automatically extend for one year terms following the Initial Term (each a
"Renewal Term", together with the Initial Term, the "Employment Term"), unless
prior to six (6) months, in the case of a non-renewal by Employer, or prior to
thirty (30) days, in the case of a non-renewal by Executive, before the end of
the Initial Term or any Renewal Term, as applicable, either party shall give the
other written notice of its intention to terminate this Agreement.
3. Compensation and Related Matters. (a) Base Salary. As compensation
for performing the services required by this Agreement during the Employment
Term, Employer shall pay to Executive an annual salary of no less than Two
Hundred Seventy-Five Thousand Dollars ($275,000) ("Base Compensation"), payable
in accordance with the general policies and procedures for payment of salaries
to its executive personnel maintained, from time to time, by Employer (but no
less frequently than monthly), subject to withholding for applicable federal,
state, and local taxes. Increases in Base Compensation, if any, shall be
determined by the Compensation Committee (the "Committee") of the Board based on
periodic reviews of Executive's performance conducted on at least an annual
basis.
(b) Bonus. In addition to Base Compensation, the Board and the
Committee, in their sole and absolute discretion, may, but in no event shall be
obligated to, authorize the payment of a cash bonus (a "Performance Bonus
Distribution") to Executive based upon achievement of such corporate and
individual performance goals and objectives as may be established or determined
by the Board or the Committee from time to time.
(c) Benefits. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Executive and
Executive's eligible dependents shall have the right to participate in the
medical and dental benefit plan to be established by Employer (which may include
contributions by Executive) and in any other retirement, pension, insurance,
health or other benefit plan or program that has been or is hereafter adopted by
Employer (or in which Employer participates), as such plans and programs may be
amended or modified from time to time by Employer, according to the terms of
such plan or program with all the benefits, rights and privileges as are enjoyed
by any other executive officers of Employer. Employer expects to have in place a
life insurance program in which Executive will be entitled to participate. If
the participation of Executive would adversely affect the qualification of a
plan intended to be qualified under Section 401(a) of the Internal Revenue Code
as the same may be amended from time to time (the "Code"), Employer shall have
the right to exclude Executive from that plan in return for Executive's
participation in (i) a nonqualified deferred compensation plan or (ii) an
arrangement providing substantially comparable benefits under a plan that is
either a qualified or nonqualified under the Code at Employer's option.
(d) Expenses. Executive shall be reimbursed, subject to
Employer's receipt of invoices or similar records as Employer may reasonably
request in accordance with its policies and procedures, as such policies and
procedures may be amended or modified from time to time by Employer, for all
reasonable and necessary expenses incurred by Executive in the performance of
Executive's duties hereunder, including expenses for business entertainment and
meals (whether in or out of town) and gas for business travel, but excluding
automobile insurance.
2
<PAGE>
(e) Vacations. During the Employment Term, Executive shall be
entitled to vacation in accordance with Employer's practices, as such practices
may be amended or modified from time to time by Employer, provided that
Executive shall be entitled to at least three (3) weeks paid vacation in each
full calendar year. Executive may accrue unused vacation time if not used in any
calendar year or years, however, the maximum cumulative amount of vacation time
that Executive may accrue and carry over to the next year is two (2) weeks.
Executive shall be entitled to a payment for any vacation time which has accrued
but has not been used as of the date of the termination of Executive's
employment with Employer, unless Executive's employment is terminated pursuant
to Section 5(a)(ii) hereof.
4. Share Options. PGRT has established a share incentive plan (the
"Share Incentive Plan"). The Share Incentive Plan initially provides, among
other things, for the issuance from time to time to certain officers, directors
and other employees of PGRT and Employer, including Executive, of share options.
Pursuant to the Share Incentive Plan, on the date hereof, PGRT shall grant to
Executive 175,000 share options ("Options") that will have such terms and
conditions as are set forth in the Share Incentive Plan and the Share Option
Agreement to be entered into between PGRT and Executive. Such Options granted to
Executive shall vest immediately (i) upon the death or disability of Executive
or (ii) upon termination of this Agreement and Executive's employment for any
reason other than (A) a termination for cause by Employer or (B) if Executive
terminates Executive's employment for any reason other than pursuant to Section
5(b)(i) hereof. In the case of a termination for cause or if Executive
terminates Executive's employment for any reason other than pursuant to Section
5(b)(i) hereof, all unvested Options shall be forfeited by Executive, but
Executive shall have the right to exercise within the time period provided for
in the Share Incentive Plan all Options vested prior to such termination.
5. Termination and Termination Benefits. (a) Termination by Employer.
(i) Without Cause. Employer may terminate this Agreement and Executive's
employment at any time for any reason or for no reason at all upon thirty (30)
days' prior written notice to Executive following notice of termination. In
connection with the termination of Executive's employment pursuant to this
Section 5(a)(i), Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise payable to
Executive for or with respect to the calendar year in which such termination
occurs in accordance with Section 3(b) hereof up to the effective date of such
termination and, to the extent not previously paid, Executive shall be entitled
to all bonuses payable to Executive in accordance with Section 3(b) hereof for
or with respect to any calendar years prior to the calendar year in which such
termination occurs, (C) be entitled to the benefits set forth in Sections 3(c),
3(d) and 3(e) hereof up to the effective date of such termination and (D)
receive the Termination Compensation specified in Section 5(d) hereof. For
purposes of calculating Executive's pro rata portion of any bonus pursuant to
clause (B) in the previous sentence, if the termination takes place prior to
receipt by Executive of any Performance Bonus Distribution, the Performance
Bonus Distribution, a pro rata (based on the number of days in the year) portion
of which Executive shall be entitled to receive, shall be deemed to be 50% of
Executive's then current annual Base Compensation. For purposes of this
Agreement, the "effective date of termination" shall mean the
3
<PAGE>
last day on which Executive is employed with Employer which may be later than
the date of the delivery of any applicable notice of termination.
(ii) With Cause. Employer may terminate this Agreement with
cause immediately upon written notice to Executive. Employer may elect to
require Executive to continue to perform Executive's duties under this Agreement
for an additional thirty (30) days following notice of termination. In
connection with the termination of Executive's employment pursuant to this
Section 5(a)(ii), Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the effective date of such
termination, and, to the extent not previously paid, Executive shall be entitled
to any bonuses payable to Executive in accordance with Section 3(b) hereof for
or with respect to any calendar years prior to the calendar year in which such
termination occurs and (B) be entitled to the benefits set forth in Sections
3(c), 3(d) and 3(e) hereof up to the effective date of such termination. For
purposes of this Section 5(a)(ii), "cause" shall mean (1) a finding by the Board
that Executive has materially harmed Employer, its business, assets or employees
through an act of dishonesty, material conflict of interest, gross misconduct or
willful malfeasance, (2) Executive's conviction of (or pleading nolo contendere
to) a felony, (3) Executive's failure to perform (which shall not include
inability to perform due to disability) in any material respects Executive's
material duties under this Agreement after written notice specifying the failure
and a reasonable opportunity to cure (it being understood that if Executive's
failure to perform is not of a type requiring a single action to fully cure,
then Executive may commence the cure promptly after such written notice and
thereafter diligently prosecute such cure to completion), (4) the breach by
Executive of any of Executive's material obligations hereunder (other than those
covered by clause (3) above) and the failure of Executive to cure such breach
within thirty (30) days after receipt by Executive of a written notice of
Employer specifying in reasonable detail the nature of the breach, or (5)
Executive's sanction (including restrictions, prohibitions and limitations
agreed to under a consent decree or agreed order) under, or conviction for
violation of, any federal or state securities law, rule or regulation (provided
that in the case of a sanction, such sanction materially impedes or impairs the
ability of Executive to perform Executive's duties and exercise Executive's
responsibilities hereunder in a satisfactory manner).
(iii) Disability. If due to illness, physical or mental
disability, or other incapacity, Executive shall fail during any four (4)
consecutive months to perform the duties required by this Agreement, Employer
may, upon thirty (30) days' written notice to Executive, either terminate this
Agreement or suspend Executive's right to any Base Compensation or Performance
Bonus Distributions without terminating this Agreement. In any such event,
Executive shall (A) be paid Executive's Base Compensation in accordance with
Section 3(a) hereof up to the effective date of such termination, (B) be paid a
pro rata portion of any bonus otherwise payable to Executive for or with respect
to the calendar year in which such termination occurs in accordance with Section
3(b) hereof up to the first day of such four (4) month period and, to the extent
not previously paid, Executive shall be entitled to all bonuses payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such termination occurs, (C)
be entitled to the benefits set forth in Sections 3(c) (or the after-tax cash
equivalent), 3(d) and 3(e) hereof up to the effective date of such termination
and (D) be entitled to the Termination Compensation specified in Section 5(d)
hereof. For purposes of calculating Executive's pro rata
4
<PAGE>
portion of any bonus pursuant to clause (B) in the previous sentence, if the
termination takes place prior to receipt by Executive of any Performance Bonus
Distribution, the Performance Bonus Distribution, a pro rata portion of which
Executive shall be entitled to receive, shall be deemed to be 50% of Executive's
then current annual Base Compensation. In the event Employer elects to suspend
Executive's right to Base Compensation and Performance Bonus Distributions, at
such time as Executive is able to resume the duties required under this
Agreement, Executive shall be entitled to receive Base Compensation and
Performance Bonus Distributions from the date Executive commences the
performance of such duties following the disability in accordance with the terms
and provisions of this Agreement. This Section 5(a)(iii) shall not limit the
entitlement of Executive, Executive's estate or beneficiaries to any disability
or other benefits available to Executive under any disability insurance or other
benefits plan or policy which is maintained by Employer for Executive's benefit.
For purposes of this Agreement, the "date of disability" shall mean the first
day of the consecutive period during which Executive fails to perform the duties
required by this Agreement due to illness, physical or mental disability or
other incapacity.
(b) Termination by Executive. (i) After Change of Control.
Executive may terminate this Agreement upon thirty (30) days' written notice to
Employer following any "change of control" of Employer and a resulting
"diminution event", each as defined below, but in no event later than two years
after the change of control event. Executive shall continue to perform, at the
election of Employer, Executive's duties under this Agreement for an additional
thirty (30) days following notice of termination. In such event, Executive shall
(A) be paid Executive's Base Compensation up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise payable to
Executive for or with respect to the calendar year in which such termination
occurs in accordance with Section 3(b) hereof up to the effective date of such
termination and, to the extent not previously paid, Executive shall be entitled
to all bonuses payable to Executive in accordance with Section 3(b) hereof for
or with respect to any calendar years prior to the calendar year in which such
termination occurs, (C) be entitled to the benefits set forth in Sections 3(c),
3(d) and 3(e) hereof up to the effective date of such termination and (D)
receive the Termination Compensation specified in Section 5(d) hereof. For
purposes of calculating Executive's pro rata portion of any bonus pursuant to
clause (B) in the previous sentence, if the termination takes place prior to
receipt by Executive of any Performance Bonus Distribution, the Performance
Bonus Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation. For purposes of this Agreement, in the event Employer defaults in
its obligation under Section 9 hereof and, as a consequence thereof, Executive's
employment with Employer (or Employer's successor or assign) terminates, such
termination shall be deemed to be a termination under this Section 5(b)(i).
For purposes of this Section 5(b)(i), (A) a "change of control" of
Employer shall be deemed to have occurred if: (1) any person (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including a "group" as defined in Section
13(d)(3) of the Exchange Act (but excluding The Prime Group, Inc. or any of its
affiliates or any group in which The Prime Group, Inc. or any of its affiliates
has a significant interest and excluding a trustee or other fiduciary holding
securities under an employee benefit plan of Employer), becomes the beneficial
owner of shares of beneficial interests or limited partnership interests, as
applicable, of
5
<PAGE>
Employer having at least fifty percent (50%) of the total number of votes that
may be cast for the election of directors of Employer; (2) the merger or other
business combination of Employer, sale of all or substantially all of Employer's
assets or combination of the foregoing transactions (a "Transaction"), other
than a Transaction immediately following which the shareholders of Employer
immediately prior to the Transaction continue to have a majority of the voting
power in the resulting entity (excluding for this purpose any shareholder, other
than The Prime Group, Inc. and its affiliates, owning directly or indirectly
more than ten percent (10%) of the shares of the other company involved in the
Transaction); or (3) within any twenty-four (24) month period beginning on or
after the date hereof, the persons who were directors of Employer immediately
before the beginning of such period (the "Incumbent Directors") shall cease to
constitute at least a majority of the Board or a majority of the board of
directors of any successor to Employer, provided that, any director who was not
a director as of the date hereof shall be deemed to be an Incumbent Director if
such director was elected to the Board by, or on the recommendation of or with
the approval of, at least two-thirds of the directors who then qualified as
Incumbent Directors either actually or by prior operation of this provision,
unless such election, recommendation or approval was the result of an actual or
threatened election contest of the type contemplated by Regulation 14a-11
promulgated under the Exchange Act or any successor provision; and (B) a
"diminution event" shall mean any material diminution in (1) the duties and
responsibilities of Executive (other than a mere title change unless the new
title is not Chief Executive Officer or President) or (2) the compensation
package for Executive.
(ii) Without Good Reason. Executive may terminate this
Agreement and Executive's employment at any time for any reason or for no reason
at all upon thirty (30) days' written notice to Employer, during which period
Executive shall continue to perform Executive's duties under this Agreement if
Employer so elects. In connection with the termination of Executive's employment
pursuant to this Section 5(b)(ii), Executive shall (A) be paid Executive's Base
Compensation in accordance with Section 3(a) hereof up to the effective date of
such termination, and, to the extent not previously paid, Executive shall be
entitled to all bonuses payable to Executive in accordance with Section 3(b)
hereof for or with respect to any calendar years prior to the calendar year in
which such termination occurs and (B) be entitled to the benefits set forth in
Sections 3(c), 3(d) and 3(e) hereof up to the effective date of such
termination.
(c) Death. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of Executive's death. In
such event, Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the date of such death, (B) be paid a
pro rata portion of any bonus otherwise payable to Executive for or with respect
to the calendar year in which such death occurs in accordance with Section 3(b)
hereof up to the effective date of such death and, to the extent not previously
paid, Executive shall be entitled to all bonuses payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar years
prior to the calendar year in which such death occurs and (C) be entitled to the
benefits set forth in Sections 3(c) (or the after-tax cash equivalent), 3(d) and
3(e) hereof up to the date of such death. This Section 5(c) shall not limit the
entitlement of Executive, Executive's estate or beneficiaries under any
insurance or other benefits plan or policy which is maintained by Employer for
Executive's benefit. For purposes of calculating Executive's pro rata portion of
any bonus pursuant to clause (B) in the previous sentence, if the termination
takes place prior to receipt by
6
<PAGE>
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation.
(d) Termination Compensation. In the event of a termination of
this Agreement pursuant to Section 5(a)(i), 5(a)(iii) or 5(b)(i) hereof,
Employer shall pay to Executive, within thirty (30) days of termination, an
amount in one lump sum ("Termination Compensation") equal to (i) in the case of
a termination pursuant to Section 5(a)(i) or 5(a)(iii) hereof, Executive's
annual Base Compensation as of the effective date of such termination, or (ii)
in the case of a termination pursuant to Section 5(b)(i) hereof, two times (A)
the average annual Base Compensation paid or payable to Executive for or with
respect to the two full calendar years immediately preceding the calendar year
in which the date of termination occurs, plus (B) the average annual Performance
Bonus Distribution paid or payable to Executive for or with respect to the two
full calendar years immediately preceding the calendar year in which the date of
termination occurs. For purposes of calculating Employee's Termination
Compensation pursuant to clause (ii) above, if the termination takes place prior
to December 31, 1999, the Termination Compensation for any applicable calendar
year in which the termination takes place shall be determined as follows:
(1) if the termination takes place on or prior to
December 31, 1998, the full Termination Compensation described in clause (d)(ii)
above shall be deemed to be 350% of Executive's Base Compensation for the 1998
calendar year; or
(2) if the termination takes place after December 31,
1998 but on or prior to December 31, 1999, the Performance Bonus Distribution
component of the Termination Compensation calculation described in clause
(d)(ii) above shall be deemed to be two times the average of (A) the amount of
the Performance Bonus Distribution paid to Executive or to which Executive is
entitled for the 1998 calendar year pursuant to Section 3(b) hereof and (B) the
greater of (1) 75% of Executive's Base Compensation for the 1998 calendar year
or (2) 133% of the Performance Bonus Distribution paid to Executive or to which
Executive is entitled for the 1998 calendar year pursuant to Section 3(b)
hereof.
6 Covenants of Executive.
(a) No Conflicts. Executive represents and warrants that
Executive is not personally subject to any agreement, order or decree which
restricts Executive's acceptance of this Agreement and the performance of
Executive's duties with Employer hereunder.
(b) Non-Competition. In return for the performance of the
management duties described in Section 1 hereof, during the Employment Term and,
in the event of the termination of this Agreement pursuant to the provisions of
Section 5(a)(ii) or 5(b)(ii) hereof, for a period of two years thereafter,
Executive shall not, directly or indirectly, in any capacity whatsoever, either
on Executive's own behalf or on behalf of any other person or entity with whom
Executive may be employed or associated, own any interest in, participate or
engage in the day-to-day supervision, management, development, marketing or
operation of any office or industrial real estate facilities or
7
<PAGE>
such other business as Employer may be engaged in during the Employment Term
(the "Business") which is competitive with any of Employer's facilities. For
purposes hereof, a facility will be deemed competitive with one of Employer's
facilities if such facility is located within ten (10) miles of a facility
owned, operated or managed by Employer or within ten (10) miles of a facility
which Employer is developing or with respect to which Employer has signed a
letter of intent or term sheet or binding contract for the acquisition,
development or management thereof dated on or prior to the date of such
termination. Furthermore, for a period of two years after any applicable Section
5 termination event, Executive shall not, directly or indirectly, solicit,
attempt to hire or hire any employee or client of Employer or solicit or attempt
to lease space to or lease space to any tenant of Employer. Notwithstanding the
foregoing, nothing herein shall prohibit Executive from owning 5% or less of any
securities of a competitor engaged in the same Business if such securities are
listed on a nationally recognized securities exchange or traded over-the-counter
on the National Association of Securities Dealers Automated Quotation System or
otherwise.
(c) Non-Disclosure. During the Employment Term and for a
period of two years after the expiration or termination of this Agreement for
any reason, Executive shall not disclose or use, except in the pursuit of the
Business for or on behalf of Employer, any Trade Secret (as hereinafter defined)
of Employer, whether such Trade Secret is in Executive's memory or embodied in
writing or other physical form. For purposes of this Section 6(c), "Trade
Secret" means any information which derives independent economic value, actual
or potential, with respect to Employer from not being generally known to, and
not being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use and is the subject of efforts to
maintain its secrecy that are reasonable under the circumstances, including, but
not limited to, trade secrets, customer lists, sales records and other
proprietary commercial information. Said term, however, shall not include
general "know-how" information acquired by Executive prior to or during the
course of Executive's service which could have been obtained by him from public
sources without the expenditure of significant time, effort and expense which
does not relate to Employer.
(d) Business Opportunities. During the Employment Term,
Executive agrees to bring to Employer any and all business opportunities which
come to Executive's attention for the acquisition, development, management,
leasing or marketing of real estate for industrial or office use. In the event
that Employer elects not to participate or take advantage of any such business
opportunity, upon termination of Executive's employment with Employer for any
reason, Executive shall be free to pursue such business opportunity, provided
that such business opportunity does not cause any tenant to relocate from a
facility owned and/or operated by Employer, PGRT or any of their respective
subsidiaries.
(e) Return of Documents. Upon termination of Executive's
services with Employer, Executive shall return all originals and copies of
books, records, documents, customer lists, sales materials, tapes, keys, credit
cards and other tangible property of Employer within Executive's possession or
under Executive's control.
(f) Equitable Relief. In the event of any breach by Executive
of any of the covenants contained in this Section 6, it is specifically
understood and agreed that Employer shall be
8
<PAGE>
entitled, in addition to any other remedy which it may have, to equitable relief
by way of injunction, an accounting or otherwise and to notify any employer or
prospective employer of Executive as to the terms and conditions hereof.
(g) Acknowledgment. Executive acknowledges that Executive will
be directly and materially involved as a senior executive in all important
policy and operational decisions of Employer. Executive further acknowledges
that the scope of the foregoing restrictions has been specifically bargained
between Employer and Executive, each being fully informed of all relevant facts.
Accordingly, Executive acknowledges that the foregoing restrictions of Section 6
are fair and reasonable, are minimally necessary to protect Employer, its other
partners and the public from the unfair competition of Executive who, as a
result of Executive's performance of services on behalf of Employer, will have
had unlimited access to the most confidential and important information of
Employer, its business and future plans. Executive furthermore acknowledges that
no unreasonable harm or injury will be suffered by him from enforcement of the
covenants contained herein and that Executive will be able to earn a reasonable
livelihood following termination of Executive's services notwithstanding
enforcement of the covenants contained herein.
7. Prior Agreements. This Agreement, together with the Stock Incentive
Plan, supersedes and is in lieu of any and all other employment arrangements
between Executive and Employer or its predecessor or any subsidiary and any and
all such employment agreements and arrangements are hereby terminated and deemed
of no further force or effect.
8. Assignment. Neither this Agreement nor any rights or duties of
Executive hereunder shall be assignable by Executive and any such purported
assignment by him shall be void. Employer may assign all or any of its rights
hereunder provided that substantially all of the assets of Employer are also
transferred to the same party.
9. Successor to Employer. Employer will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of Employer, as the case may
be, by agreement in form and substance reasonably satisfactory to Executive,
expressly, absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place. Any
failure of Employer to obtain such agreement prior to the effectiveness of any
such succession or assignment shall be a material breach of this Agreement
giving Executive the right to terminate this Agreement, in which case Executive
shall be entitled to receive the compensation specified in Section 5(b)(i)
hereof. This Agreement shall inure to the benefit of and be enforceable by
Executive's personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amounts are still payable to Executive hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee or other designee or, if there be
no such designee, to Executive's estate.
9
<PAGE>
10. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent by
courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Executive, to:
Richard S. Curto
c/o Prime Group Realty Trust
77 W. Wacker Dr.
Suite 3900
Chicago, IL 60601
Attn: Connie Klimkowski
(b) if to Employer, to:
Prime Group Realty Trust
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: Chief Executive Officer
With a copy to:
Prime Group Realty Trust
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: General Counsel
and to:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
Attn: Wayne D. Boberg
10
<PAGE>
Any notice, claim, demand, request or other communication given as provided in
this Section 10, if delivered personally, shall be effective upon delivery; and
if given by courier, shall be effective one (1) business day after deposit with
the courier if next day delivery is guaranteed; and if given by certified mail,
shall be effective three (3) business days after deposit in the mail. Either
party may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Section 10.
11. Amendment. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. Waiver of Breach. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
13. Severability. Employer and Executive each expressly agree and
contract that it is not the intention of either party to violate any public
policy, statutory or common law, and that if any covenant, sentence, paragraph,
clause or combination of the same of this Agreement (a "Contractual Provision")
is in violation of the law of any state where applicable, such Contractual
Provision shall be void in the jurisdictions where it is unlawful, and the
remainder of such Contractual Provision, if any, and the remainder of this
Agreement shall remain binding on the parties such that such Contractual
Provision shall be binding only to the extent that such Contractual Provision is
lawful or may be lawfully performed under then applicable laws. In the event
that any part of any Contractual Provision of this Agreement is determined by a
court of competent jurisdiction to be overly broad thereby making the
Contractual Provision unenforceable, the parties hereto agree, and it is their
desire, that such court shall substitute a judicially enforceable limitation in
its place, and that the Contractual Provision, as so modified, shall be binding
upon the parties as if originally set forth herein.
14. Indemnification by Executive. Executive shall indemnify Employer
for any and all damages, costs and expenses resulting from any material harm to
Employer, its business, assets or employees through an act of dishonesty,
material conflict of interest, gross misconduct or willful malfeasance by
Executive. Executive also shall indemnify Employer for any and all damages,
costs and expenses resulting from Executive's acts of omission constituting
reckless disregard of Executive's duties to Employer following notice thereof by
Employer after it becomes aware of such conduct and Executive's failure to so
cure within thirty (30) days.
15. Governing Law. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of Illinois,
exclusive of the conflict of laws provisions of the State of Illinois.
[signature page follows]
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EMPLOYER:
PRIME GROUP REALTY TRUST
By: /s/ Michael W. Reschke
---------------------------------
Title: Chairman of the Board
-------------------------------
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust,
its General Partner
By: /s/ Michael W. Reschke
------------------------
Title: Chairman of the Board
---------------------
EXECUTIVE:
/s/ Richard S. Curto
--------------------------------------
Richard S. Curto
12
<PAGE>
Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 17th day of November, 1997 by and among Prime Group Realty Trust, a
Maryland real estate investment trust ("PGRT"), Prime Group Realty, L.P., a
Delaware limited partnership and the operating partnership for PGRT ("Prime")
(Prime and PGRT are hereinafter sometimes collectively referred to as
"Employer"), and W. Michael Karnes, an individual domiciled in the State of
Illinois ("Executive").
W I T N E S S E T H
A. Employer is engaged primarily in the ownership, management, leasing,
marketing, acquisition, development and construction of office and industrial
real estate facilities throughout the United States.
B. Employer believes that it would benefit from the application of
Executive's particular and unique skill, experience, and background to the
development of office properties and the management thereof.
C. Executive wishes to commit to serve Employer in the position set
forth herein on the terms herein provided.
D. The parties wish by this Agreement to set forth the terms and
conditions of the employment relationship between Employer and Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein set forth, and for other good and valuable consideration,
Employer and Executive hereby agree as follows:
1. Employment and Duties. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Executive, and Executive agrees to
be employed by Employer, as the Executive Vice President and Chief Financial
Officer of Employer on the terms and conditions provided in this Agreement.
Executive shall conduct, operate, manage and promote the business and business
concept of Employer. The Chief Executive Officer or the President of Employer
may from time to time further define and clarify Executive's duties and services
hereunder as Executive Vice President and Chief Financial Officer of Employer.
Executive agrees to devote Executive's best efforts and substantially all of
Executive's business time, attention, energy and skill to perform Executive's
duties as Executive Vice President and Chief Financial Officer of Employer.
2. Term. The term of this Agreement shall commence on November 17, 1997
and expire on November 17, 2000 (the "Employment Term").
<PAGE>
3. Compensation and Related Matters. (a) Base Salary. As compensation
for performing the services required by this Agreement during the Employment
Term, Employer shall pay to Executive an annual salary of no less than Two
Hundred Thousand Dollars ($200,000) ("Base Compensation"), payable in accordance
with the general policies and procedures for payment of salaries to its
executive personnel maintained, from time to time, by Employer (but no less
frequently than monthly), subject to withholding for applicable federal, state,
and local taxes. Increases in Base Compensation, if any, shall be determined by
the Compensation Committee (the "Committee") of the Board of Trustees of PGRT
(the "Board"), based on periodic reviews of Executive's performance conducted on
at least an annual basis. Executive's Base Compensation shall be increased to
Two Hundred Fifteen Thousand Dollars ($215,000) on July 1, 1998 and to Two
Hundred Twenty-Five Thousand Dollars ($225,000) on July 1, 1999.
(b) Bonus. In addition to Base Compensation, Executive shall
be entitled to payment of a cash bonus in the amount of $20,000 on January 15,
1998 and the Board and the Committee, in their sole and absolute discretion,
may, but in no event shall be obligated to, authorize the payment of additional
cash bonuses (a "Performance Bonus Distribution") to Executive based upon
achievement of such corporate and individual performance goals and objectives as
may be established or determined by the Board or the Committee from time to
time.
(c) Benefits. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Executive and
Executive's eligible dependents shall have the right to participate in the
medical and dental benefit plan to be established by Employer (which may include
contributions by Executive) and in any other retirement, pension, insurance,
health or other benefit plan or program that has been or is hereafter adopted by
Employer (or in which Employer participates), as such plans and programs may be
amended or modified from time to time by Employer, according to the terms of
such plan or program with all the benefits, rights and privileges as are enjoyed
by any other executive officers of Employer. Employer expects to have in place a
life insurance program in which Executive will be entitled to participate. If
the participation of Executive would adversely affect the qualification of a
plan intended to be qualified under Section 401(a) of the Internal Revenue Code
as the same may be amended from time to time (the "Code"), Employer shall have
the right to exclude Executive from that plan in return for Executive's
participation in (i) a nonqualified deferred compensation plan or (ii) an
arrangement providing substantially comparable benefits under a plan that is
either a qualified or nonqualified under the Code at Employer's option.
(d) Expenses. Executive shall be reimbursed, subject to
Employer's receipt of invoices or similar records as Employer may reasonably
request in accordance with its policies and procedures, as such policies and
procedures may be amended or modified from time to time by Employer, for all
reasonable and necessary expenses incurred by Executive in the performance of
Executive's duties hereunder, including expenses for business entertainment and
meals (whether in or out of town) and gas for business travel, but excluding
automobile insurance.
(e) Vacations. During the Employment Term, Executive shall be
entitled to vacation in accordance with Employer's practices, as such practices
may be amended or modified
2
<PAGE>
from time to time by Employer, provided that Executive shall be entitled to at
least three (3) weeks paid vacation in each full calendar year. Executive may
accrue unused vacation time if not used in any calendar year or years, however,
the maximum cumulative amount of vacation time that Executive may accrue and
carry over to the next year is two (2) weeks. Executive shall be entitled to a
payment for any vacation time which has accrued but has not been used as of the
date of the termination of Executive's employment with Employer, unless
Executive's employment is terminated pursuant to Section 5(a)(ii) hereof.
4. Share Options and Grants. PGRT has established a share incentive
plan (the "Share Incentive Plan"). The Share Incentive Plan initially provides,
among other things, for the issuance from time to time to certain officers,
directors and other employees of PGRT and Employer, including Executive, of
share options. Pursuant to the Share Incentive Plan, on the date hereof, PGRT
shall grant to Executive 70,000 share options ("Options") that will have such
terms and conditions as are set forth in the Share Incentive Plan and the Share
Option Agreement to be entered into between PGRT and Executive. Such Options
granted to Executive shall vest immediately (i) upon the death or disability of
Executive or (ii) upon termination of this Agreement and Executive's employment
for any reason other than (A) a termination for cause or by Employer or (B) if
Executive terminates Executives employment for any reason other than pursuant to
Section 5(b)(i) hereof. In the case of a termination for cause or if Executive
terminates Executives employment for any reason other than pursuant to Section
5(b)(i) hereof, all unvested Options shall be forfeited by Executive, but
Executive shall have the right to exercise within the time period provided for
in the Stock Incentive Plan all Options vested prior to such termination. In
addition, on the date hereof, PGRT shall grant to Executive 10,000 shares of
beneficial interests of PGRT.
5. Termination and Termination Benefits. (a) Termination by Employer.
(i) Without Cause. Employer may terminate this Agreement and Executive's
employment at any time for any reason or for no reason at all upon thirty (30)
days' prior written notice to Executive following notice of termination. In
connection with the termination of Executive's employment pursuant to this
Section 5(a)(i), Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise payable to
Executive for or with respect to the calendar year in which such termination
occurs in accordance with Section 3(b) hereof up to the effective date of such
termination and, to the extent not previously paid, Executive shall be entitled
to all bonuses payable to Executive in accordance with Section 3(b) hereof for
or with respect to any calendar years prior to the calendar year in which such
termination occurs, (C) be entitled to the benefits set forth in Sections 3(c),
3(d) and 3(e) hereof up to the effective date of such termination and (D)
receive the Termination Compensation specified in Section 5(d) hereof. For
purposes of calculating Executive's pro rata portion of any bonus pursuant to
clause (B) in the previous sentence, if the termination takes place prior to
receipt by Executive of any Performance Bonus Distribution, the Performance
Bonus Distribution, a pro rata (based on the number of days in the year) portion
of which Executive shall be entitled to receive, shall be deemed to be 50% of
Executive's then current annual Base Compensation. For purposes of this
Agreement, the "effective date of termination" shall mean the last day on which
Executive is employed with Employer which may be later than the date of the
delivery of any applicable notice of termination.
3
<PAGE>
(ii) With Cause. Employer may terminate this Agreement with
cause immediately upon written notice to Executive. Employer may elect to
require Executive to continue to perform Executive's duties under this Agreement
for an additional thirty (30) days following notice of termination. In
connection with the termination of Executive's employment pursuant to this
Section 5(a)(ii), Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the effective date of such
termination, and, to the extent not previously paid, Executive shall be entitled
to any bonuses payable to Executive in accordance with Section 3(b) hereof for
or with respect to any calendar years prior to the calendar year in which such
termination occurs and (B) be entitled to the benefits set forth in Sections
3(c), 3(d) and 3(e) hereof up to the effective date of such termination. For
purposes of this Section 5(a)(ii), "cause" shall mean (1) a finding by the Board
that Executive has materially harmed Employer, its business, assets or employees
through an act of dishonesty, material conflict of interest, gross misconduct or
willful malfeasance, (2) Executive's conviction of (or pleading nolo contendere
to) a felony, (3) Executive's failure to perform (which shall not include
inability to perform due to disability) in any material respects Executive's
material duties under this Agreement after written notice specifying the failure
and a reasonable opportunity to cure (it being understood that if Executive's
failure to perform is not of a type requiring a single action to fully cure,
then Executive may commence the cure promptly after such written notice and
thereafter diligently prosecute such cure to completion), (4) the breach by
Executive of any of Executive's material obligations hereunder (other than those
covered by clause (3) above) and the failure of Executive to cure such breach
within thirty (30) days after receipt by Executive of a written notice of
Employer specifying in reasonable detail the nature of the breach, or (5)
Executive's sanction (including restrictions, prohibitions and limitations
agreed to under a consent decree or agreed order) under, or conviction for
violation of, any federal or state securities law, rule or regulation (provided
that in the case of a sanction, such sanction materially impedes or impairs the
ability of Executive to perform Executive's duties and exercise Executive's
responsibilities hereunder in a satisfactory manner).
(iii) Disability. If due to illness, physical or mental
disability, or other incapacity, Executive shall fail during any four (4)
consecutive months to perform the duties required by this Agreement, Employer
may, upon thirty (30) days' written notice to Executive, either terminate this
Agreement or suspend Executive's right to any Base Compensation or Performance
Bonus Distributions without terminating this Agreement. In any such event,
Executive shall (A) be paid Executive's Base Compensation in accordance with
Section 3(a) hereof up to the effective date of such termination, (B) be paid a
pro rata portion of any bonus otherwise payable to Executive for or with respect
to the calendar year in which such termination occurs in accordance with Section
3(b) hereof up to the first day of such four (4) month period and, to the extent
not previously paid, Executive shall be entitled to all bonuses payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such termination occurs and
(C) be entitled to the benefits set forth in Sections 3(c) (or the after-tax
cash equivalent), 3(d) and 3(e) hereof up to the effective date of such
termination. For purposes of calculating Executive's pro rata portion of any
bonus pursuant to clause (B) in the previous sentence, if the termination takes
place prior to receipt by Executive of any Performance Bonus Distribution, the
Performance Bonus Distribution, a pro rata portion of which Executive shall be
entitled to receive, shall be deemed to be 50% of Executive's then current
annual Base Compensation. In the event Employer elects to suspend
4
<PAGE>
Executive's right to Base Compensation and Performance Bonus Distributions, at
such time as Executive is able to resume the duties required under this
Agreement, Executive shall be entitled to receive Base Compensation and
Performance Bonus Distributions from the date Executive commences the
performance of such duties following the disability in accordance with the terms
and provisions of this Agreement. This Section 5(a)(iii) shall not limit the
entitlement of Executive, Executive's estate or beneficiaries to any disability
or other benefits available to Executive under any disability insurance or other
benefits plan or policy which is maintained by Employer for Executive's benefit.
For purposes of this Agreement, the "date of disability" shall mean the first
day of the consecutive period during which Executive fails to perform the duties
required by this Agreement due to illness, physical or mental disability or
other incapacity.
(b) Termination by Executive. (i) After Change of Control.
Executive may terminate this Agreement upon thirty (30) days' written notice to
Employer following (x) any "change of control" of Employer and a resulting
"diminution event", each as defined below, but in no event later than two years
after the change of control event or (y) any relocation of Executive's office to
a location outside of the Chicago metropolitan area. Executive shall continue to
perform, at the election of Employer, Executive's duties under this Agreement
for an additional thirty (30) days following notice of termination. In such
event, Executive shall (A) be paid Executive's Base Compensation up to the
effective date of such termination, (B) be paid a pro rata portion of any bonus
otherwise payable to Executive for or with respect to the calendar year in which
such termination occurs in accordance with Section 3(b) hereof up to the
effective date of such termination and, to the extent not previously paid,
Executive shall be entitled to all bonuses payable to Executive in accordance
with Section 3(b) hereof for or with respect to any calendar years prior to the
calendar year in which such termination occurs, (C) be entitled to the benefits
set forth in Sections 3(c), 3(d) and 3(e) hereof up to the effective date of
such termination and (D) receive the Termination Compensation specified in
Section 5(d) hereof. For purposes of calculating Executive's pro rata portion of
any bonus pursuant to clause (B) in the previous sentence, if the termination
takes place prior to receipt by Executive of any Performance Bonus Distribution,
the Performance Bonus Distribution, a pro rata portion of which Executive shall
be entitled to receive, shall be deemed to be 50% of Executive's then current
annual Base Compensation. For purposes of this Agreement, in the event Employer
defaults in its obligation under Section 9 hereof and, as a consequence thereof,
Executive's employment with Employer (or Employer's successor or assign)
terminates, such termination shall be deemed to be a termination under this
Section 5(b)(i).
For purposes of this Section 5(b)(i), (A) a "change of control" of
Employer shall be deemed to have occurred if: (1) any person (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including a "group" as defined in Section
13(d)(3) of the Exchange Act (but excluding The Prime Group, Inc. or any of its
affiliates or any group in which The Prime Group, Inc. or any of its affiliates
has a significant interest and excluding a trustee or other fiduciary holding
securities under an employee benefit plan of Employer), becomes the beneficial
owner of shares of beneficial interests or limited partnership interests, as
applicable, of Employer having at least fifty percent (50%) of the total number
of votes that may be cast for the election of directors of Employer; (2) the
merger or other business combination of Employer, sale of all or substantially
all of Employer's assets or combination of the foregoing transactions (a
5
<PAGE>
"Transaction"), other than a Transaction immediately following which the
shareholders of Employer immediately prior to the Transaction continue to have a
majority of the voting power in the resulting entity (excluding for this purpose
any shareholder, other than The Prime Group, Inc. and its affiliates, owning
directly or indirectly more than ten percent (10%) of the shares of the other
company involved in the Transaction); or (3) within any twenty-four (24) month
period beginning on or after the date hereof, the persons who were directors of
Employer immediately before the beginning of such period (the "Incumbent
Directors") shall cease to constitute at least a majority of the Board or a
majority of the board of directors of any successor to Employer, provided that,
any director who was not a director as of the date hereof shall be deemed to be
an Incumbent Director if such director was elected to the Board by, or on the
recommendation of or with the approval of, at least two-thirds of the directors
who then qualified as Incumbent Directors either actually or by prior operation
of this provision, unless such election, recommendation or approval was the
result of an actual or threatened election contest of the type contemplated by
Regulation 14a-11 promulgated under the Exchange Act or any successor provision;
and (B) a "diminution event" shall mean any material diminution in (1) the
duties and responsibilities of Executive (other than a mere title change) or (2)
the compensation package for Executive.
(ii) Without Good Reason. Executive may terminate this
Agreement and Executive's employment at any time for any reason or for no reason
at all upon thirty (30) days' written notice to Employer, during which period
Executive shall continue to perform Executive's duties under this Agreement if
Employer so elects. In connection with the termination of Executive's employment
pursuant to this Section 5(b)(ii), Executive shall (A) be paid Executive's Base
Compensation in accordance with Section 3(a) hereof up to the effective date of
such termination, and, to the extent not previously paid, Executive shall be
entitled to all bonuses payable to Executive in accordance with Section 3(b)
hereof for or with respect to any calendar years prior to the calendar year in
which such termination occurs and (B) be entitled to the benefits set forth in
Sections 3(c), 3(d) and 3(e) hereof up to the effective date of such
termination.
(c) Death. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of Executive's death. In
such event, Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the date of such death, (B) be paid a
pro rata portion of any bonus otherwise payable to Executive for or with respect
to the calendar year in which such death occurs in accordance with Section 3(b)
hereof up to the effective date of such death and, to the extent not previously
paid, Executive shall be entitled to all bonuses payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar years
prior to the calendar year in which such death occurs and (C) be entitled to the
benefits set forth in Sections 3(c) (or the after-tax cash equivalent), 3(d) and
3(e) hereof up to the date of such death. This Section 5(c) shall not limit the
entitlement of Executive, Executive's estate or beneficiaries under any
insurance or other benefits plan or policy which is maintained by Employer for
Executive's benefit. For purposes of calculating Executive's pro rata portion of
any bonus pursuant to clause (B) in the previous sentence, if the termination
takes place prior to receipt by Executive of any Performance Bonus Distribution,
the Performance Bonus Distribution, a pro rata portion of which Executive shall
be entitled to receive, shall be deemed to be 50% of Executive's then current
annual Base Compensation.
6
<PAGE>
(d) Termination Compensation. In the event of a termination of this
Agreement pursuant to Section 5(a)(i) or 5(b)(i) hereof, Employer shall pay to
Executive, within thirty (30) days of termination, an amount in one lump sum
("Termination Compensation") equal to the greater of (i) one hundred percent
(100%) of Executive's then current annual Base Compensation and (ii) one hundred
percent (100%) of the remaining aggregate Base Compensation payable to Executive
over the remainder of the Employment Term.
6. Covenants of Executive.
(a) No Conflicts. Executive represents and warrants that
Executive is not personally subject to any agreement, order or decree which
restricts Executive's acceptance of this Agreement and the performance of
Executive's duties with Employer hereunder.
(b) Non-Competition. In return for the performance of the
management duties described in Section 1 hereof, during the Employment Term and,
in the event of the termination of this Agreement pursuant to the provisions of
Section 5(a)(ii) or 5(b)(ii) hereof, for a period of two years thereafter,
Executive shall not, directly or indirectly, in any capacity whatsoever, either
on Executive's own behalf or on behalf of any other person or entity with whom
Executive may be employed or associated, own any interest in, participate or
engage in the day-to-day supervision, management, development, marketing or
operation of any office or industrial real estate facilities or such other
business as Employer may be engaged in during the Employment Term (the
"Business") which is competitive with any of Employer's facilities. For purposes
hereof, a facility will be deemed competitive with one of Employer's facilities
if such facility is located within ten (10) miles of a facility owned, operated
or managed by Employer or within ten (10) miles of a facility which Employer is
developing or with respect to which Employer has signed a letter of intent or
term sheet or binding contract for the acquisition, development or management
thereof dated on or prior to the date of such termination. Furthermore, for a
period of two years after any applicable Section 5 termination event, Executive
shall not, directly or indirectly, solicit, attempt to hire or hire any employee
or client of Employer or solicit or attempt to lease space to or lease space to
any tenant of Employer. Notwithstanding the foregoing, nothing herein shall
prohibit Executive from owning 5% or less of any securities of a competitor
engaged in the same Business if such securities are listed on a nationally
recognized securities exchange or traded over-the-counter on the National
Association of Securities Dealers Automated Quotation System or otherwise.
(c) Non-Disclosure. During the Employment Term and for a
period of two years after the expiration or termination of this Agreement for
any reason, Executive shall not disclose or use, except in the pursuit of the
Business for or on behalf of Employer, any Trade Secret (as hereinafter defined)
of Employer, whether such Trade Secret is in Executive's memory or embodied in
writing or other physical form. For purposes of this Section 6(c), "Trade
Secret" means any information which derives independent economic value, actual
or potential, with respect to Employer from not being generally known to, and
not being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use and is the subject of efforts to
maintain its secrecy that are reasonable under the circumstances, including, but
not limited to, trade
7
<PAGE>
secrets, customer lists, sales records and other proprietary commercial
information. Said term, however, shall not include general "know-how"
information acquired by Executive prior to or during the course of Executive's
service which could have been obtained by him from public sources without the
expenditure of significant time, effort and expense which does not relate to
Employer.
(d) Business Opportunities. During the Employment Term,
Executive agrees to bring to Employer any and all business opportunities which
come to Executive's attention for the acquisition, development, management,
leasing or marketing of real estate for industrial or office use. In the event
that Employer elects not to participate or take advantage of any such business
opportunity, upon termination of Executive's employment with Employer for any
reason, Executive shall be free to pursue such business opportunity, provided
that such business opportunity does not cause any tenant to relocate from a
facility owned and/or operated by Employer, PGRT or any of their respective
subsidiaries.
(e) Return of Documents. Upon termination of Executive's
services with Employer, Executive shall return all originals and copies of
books, records, documents, customer lists, sales materials, tapes, keys, credit
cards and other tangible property of Employer within Executive's possession or
under Executive's control.
(f) Equitable Relief. In the event of any breach by Executive
of any of the covenants contained in this Section 6, it is specifically
understood and agreed that Employer shall be entitled, in addition to any other
remedy which it may have, to equitable relief by way of injunction, an
accounting or otherwise and to notify any employer or prospective employer of
Executive as to the terms and conditions hereof.
(g) Acknowledgment. Executive acknowledges that Executive will
be directly and materially involved as a senior executive in all important
policy and operational decisions of Employer. Executive further acknowledges
that the scope of the foregoing restrictions has been specifically bargained
between Employer and Executive, each being fully informed of all relevant facts.
Accordingly, Executive acknowledges that the foregoing restrictions of Section 6
are fair and reasonable, are minimally necessary to protect Employer, its other
partners and the public from the unfair competition of Executive who, as a
result of Executive's performance of services on behalf of Employer, will have
had unlimited access to the most confidential and important information of
Employer, its business and future plans. Executive furthermore acknowledges that
no unreasonable harm or injury will be suffered by him from enforcement of the
covenants contained herein and that Executive will be able to earn a reasonable
livelihood following termination of Executive's services notwithstanding
enforcement of the covenants contained herein.
7. Prior Agreements. This Agreement, together with the Stock Incentive
Plan, supersedes and is in lieu of any and all other employment arrangements
between Executive and Employer or its predecessor or any subsidiary and any and
all such employment agreements and arrangements are hereby terminated and deemed
of no further force or effect.
8
<PAGE>
8. Assignment. Neither this Agreement nor any rights or duties of
Executive hereunder shall be assignable by Executive and any such purported
assignment by him shall be void. Employer may assign all or any of its rights
hereunder provided that substantially all of the assets of Employer are also
transferred to the same party.
9. Successor to Employer. Employer will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of Employer, as the case may
be, by agreement in form and substance reasonably satisfactory to Executive,
expressly, absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place. Any
failure of Employer to obtain such agreement prior to the effectiveness of any
such succession or assignment shall be a material breach of this Agreement
giving Executive the right to terminate this Agreement, in which case Executive
shall be entitled to receive the compensation specified in Section 5(b)(i)
hereof. This Agreement shall inure to the benefit of and be enforceable by
Executive's personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amounts are still payable to Executive hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee or other designee or, if there be
no such designee, to Executive's estate.
10. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent by
courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Executive, to:
W. Michael Karnes
C/O Prime Group Realty Trust
77 W. Wacker Dr.
Suite 3900
Chicago, IL. 60601
9
<PAGE>
(b) if to Employer, to:
Prime Group Realty Trust
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: Chief Executive Officer
With a copy to:
Prime Group Realty Trust
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: General Counsel
and to:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
Attn: Wayne D. Boberg
Any notice, claim, demand, request or other communication given as provided in
this Section 10, if delivered personally, shall be effective upon delivery; and
if given by courier, shall be effective one (1) business day after deposit with
the courier if next day delivery is guaranteed; and if given by certified mail,
shall be effective three (3) business days after deposit in the mail. Either
party may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Section 10.
11. Amendment. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. Waiver of Breach. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
13. Severability. Employer and Executive each expressly agree and
contract that it is not the intention of either party to violate any public
policy, statutory or common law, and that if any covenant, sentence, paragraph,
clause or combination of the same of this Agreement (a "Contractual Provision")
is in violation of the law of any state where applicable, such Contractual
Provision shall be void in the jurisdictions where it is unlawful, and the
remainder of such Contractual Provision, if any, and the remainder of this
Agreement shall remain binding on the parties such that such Contractual
Provision shall be binding only to the extent that such Contractual Provision is
lawful or may be lawfully performed under then applicable laws. In the event
that any part of any Contractual
10
<PAGE>
Provision of this Agreement is determined by a court of competent jurisdiction
to be overly broad thereby making the Contractual Provision unenforceable, the
parties hereto agree, and it is their desire, that such court shall substitute a
judicially enforceable limitation in its place, and that the Contractual
Provision, as so modified, shall be binding upon the parties as if originally
set forth herein.
14. Indemnification by Executive. Executive shall indemnify Employer
for any and all damages, costs and expenses resulting from any material harm to
Employer, its business, assets or employees through an act of dishonesty,
material conflict of interest, gross misconduct or willful malfeasance by
Executive. Executive also shall indemnify Employer for any and all damages,
costs and expenses resulting from Executive's acts of omission constituting
reckless disregard of Executive's duties to Employer following notice thereof by
Employer after it becomes aware of such conduct and Executive's failure to so
cure within thirty (30) days.
15. Governing Law. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of Illinois,
exclusive of the conflict of laws provisions of the State of Illinois.
[signature page follows]
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EMPLOYER:
PRIME GROUP REALTY TRUST
By: /s/ Richard S. Curto
------------------------------
Title: President
-----------------------------
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust,
its General Partner
By: /s/ Richard S. Curto
------------------------
Title: President
---------------------
EXECUTIVE:
/s/ W. Michael Karnes
----------------------------------
W. Michael Karnes
Document Number: 237155.8
March 28, 1998
12
<PAGE>
Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this
17th day of November, 1997 by and among Prime Group Realty Trust, a Maryland
real estate investment trust ("PGRT"), Prime Group Realty, L.P., a Delaware
limited partnership and the operating partnership for PGRT ("Prime") (Prime and
PGRT are hereinafter sometimes collectively referred to as "Employer"), and
Robert J. Rudnik, an individual domiciled in the State of Illinois
("Executive").
W I T N E S S E T H
A. Employer is engaged primarily in the ownership, management, leasing,
marketing, acquisition, development and construction of office and industrial
real estate facilities throughout the United States.
B. Employer believes that it would benefit from the application of
Executive's particular and unique skill, experience, and background to the
development of office properties and the management thereof.
C. Executive wishes to commit to serve Employer in the position set forth
herein on the terms herein provided.
D. The parties wish by this Agreement to set forth the terms and
conditions of the employment relationship between Employer and Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein set forth, and for other good and valuable consideration, Employer and
Executive hereby agree as follows:
1. EMPLOYMENT AND DUTIES. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Executive, and Executive agrees to
be employed by Employer, as the Executive Vice President, General Counsel and
Secretary of Employer on the terms and conditions provided in this Agreement.
Executive shall conduct, operate, manage and promote the business and business
concept of Employer. The Chief Executive Officer or the President of Employer
may from time to time further define and clarify Executive's duties and services
hereunder as Executive Vice President, General Counsel and Secretary of
Employer. Executive shall have no obligation to devote full time to Executive's
duties, it being expressly understood that Executive has other professional and
management duties and responsibilities to companies other than Employer.
2. TERM. The term of this Agreement shall commence on November 17, 1997
and expire on November 17, 2000 (the "Employment Term").
<PAGE>
3. COMPENSATION AND RELATED MATTERS. (a) BASE SALARY. As compensation
for performing the services required by this Agreement during the Employment
Term, Employer shall pay to Executive an annual salary of no less than One
Hundred Fifty Thousand Dollars ($150,000) ("Base Compensation"), payable in
accordance with the general policies and procedures for payment of salaries to
its executive personnel maintained, from time to time, by Employer (but no less
frequently than monthly), subject to withholding for applicable federal, state,
and local taxes. Increases in Base Compensation, if any, shall be determined by
the Compensation Committee (the "Committee") of the Board of Trustees of PGRT
(the "Board"), based on periodic reviews of Executive's performance conducted on
at least an annual basis.
(b) BONUS. In addition to Base Compensation, the Board and the
Committee, in their sole and absolute discretion, may, but in no event shall be
obligated to, authorize the payment of a cash bonus (a "Performance Bonus
Distribution") to Executive based upon achievement of such corporate and
individual performance goals and objectives as may be established or determined
by the Board or the Committee from time to time.
(c) BENEFITS. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Executive and
Executive's eligible dependents shall have the right to participate in the
medical and dental benefit plan to be established by Employer (which may include
contributions by Executive) and in any other retirement, pension, insurance,
health or other benefit plan or program that has been or is hereafter adopted by
Employer (or in which Employer participates), as such plans and programs may be
amended or modified from time to time by Employer, according to the terms of
such plan or program with all the benefits, rights and privileges as are enjoyed
by any other executive officers of Employer. Employer expects to have in place
a life insurance program in which Executive will be entitled to participate. If
the participation of Executive would adversely affect the qualification of a
plan intended to be qualified under Section 401(a) of the Internal Revenue Code
as the same may be amended from time to time (the "Code"), Employer shall have
the right to exclude Executive from that plan in return for Executive's
participation in (i) a nonqualified deferred compensation plan or (ii) an
arrangement providing substantially comparable benefits under a plan that is
either a qualified or nonqualified under the Code at Employer's option.
(d) EXPENSES. Executive shall be reimbursed, subject to Employer's
receipt of invoices or similar records as Employer may reasonably request in
accordance with its policies and procedures, as such policies and procedures may
be amended or modified from time to time by Employer, for all reasonable and
necessary expenses incurred by Executive in the performance of Executive's
duties hereunder, including expenses for business entertainment and meals
(whether in or out of town) and gas for business travel, but excluding
automobile insurance.
(e) VACATIONS. During the Employment Term, Executive shall be
entitled to vacation in accordance with Employer's practices, as such practices
may be amended or modified from time to time by Employer, provided that
Executive shall be entitled to at least three (3) weeks paid vacation in each
full calendar year. Executive may accrue unused vacation time if not used in
any calendar year or years, however, the maximum cumulative amount of vacation
time that
2
<PAGE>
Executive may accrue and carry over to the next year is two (2) weeks.
Executive shall be entitled to a payment for any vacation time which has
accrued but has not been used as of the date of the termination of
Executive's employment with Employer, unless Executive's employment is
terminated pursuant to Section 5(a)(ii) hereof.
4. SHARE OPTIONS. PGRT has established a share incentive plan (the
"Share Incentive Plan"). The Share Incentive Plan initially provides, among
other things, for the issuance from time to time to certain officers,
directors and other employees of PGRT and Employer, including Executive, of
share options. Pursuant to the Share Incentive Plan, on the date hereof, PGRT
shall grant to Executive 85,000 share options ("Options") that will have such
terms and conditions as are set forth in the Share Incentive Plan and the
Share Option Agreement to be entered into between PGRT and Executive. Such
Options granted to Executive shall vest immediately (i) upon the death or
disability of Executive or (ii) upon termination of this Agreement and
Executive's employment for any reason other than (A) a termination for cause
by Employer or (B) if Executive terminates Executive's employment for any
reason other than pursuant to Section 5(b)(i) hereof. In the case of a
termination for cause or if Executive terminates Executive's employment for
any reason other than pursuant to Section 5(b)(i) hereof, all unvested
Options shall be forfeited by Executive, but Executive shall have the right
to exercise within the time period provided for in the Share Incentive Plan
all Options vested prior to such termination.
5. TERMINATION AND TERMINATION BENEFITS. (a) TERMINATION BY
EMPLOYER. (i) WITHOUT CAUSE. Employer may terminate this Agreement and
Executive's employment at any time for any reason or for no reason at all
upon thirty (30) days' prior written notice to Executive following notice of
termination. In connection with the termination of Executive's employment
pursuant to this Section 5(a)(i), Executive shall (A) be paid Executive's
Base Compensation in accordance with Section 3(a) hereof up to the effective
date of such termination, (B) be paid a pro rata portion of any bonus
otherwise payable to Executive for or with respect to the calendar year in
which such termination occurs in accordance with Section 3(b) hereof up to
the effective date of such termination and, to the extent not previously
paid, Executive shall be entitled to all bonuses payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar years
prior to the calendar year in which such termination occurs, (C) be entitled
to the benefits set forth in Sections 3(c), 3(d) and 3(e) hereof up to the
effective date of such termination and (D) receive the Termination
Compensation specified in Section 5(d) hereof. For purposes of calculating
Executive's pro rata portion of any bonus pursuant to clause (B) in the
previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata (based on the number of days in the year) portion of
which Executive shall be entitled to receive, shall be deemed to be 50% of
Executive's then current annual Base Compensation. For purposes of this
Agreement, the "effective date of termination" shall mean the last day on
which Executive is employed with Employer which may be later than the date of
the delivery of any applicable notice of termination.
(ii) WITH CAUSE. Employer may terminate this Agreement with
cause immediately upon written notice to Executive. Employer may elect to
require Executive to continue to perform Executive's duties under this Agreement
for an additional thirty (30) days following notice
3
<PAGE>
of termination. In connection with the termination of Executive's employment
pursuant to this Section 5(a)(ii), Executive shall (A) be paid Executive's
Base Compensation in accordance with Section 3(a) hereof up to the effective
date of such termination, and, to the extent not previously paid, Executive
shall be entitled to any bonuses payable to Executive in accordance with
Section 3(b) hereof for or with respect to any calendar years prior to the
calendar year in which such termination occurs and (B) be entitled to the
benefits set forth in Sections 3(c), 3(d) and 3(e) hereof up to the effective
date of such termination. For purposes of this Section 5(a)(ii), "cause"
shall mean (1) a finding by the Board that Executive has materially harmed
Employer, its business, assets or employees through an act of dishonesty,
material conflict of interest, gross misconduct or willful malfeasance, (2)
Executive's conviction of (or pleading nolo contendere to) a felony, (3)
Executive's failure to perform (which shall not include inability to perform
due to disability) in any material respects Executive's material duties under
this Agreement after written notice specifying the failure and a reasonable
opportunity to cure (it being understood that if Executive's failure to
perform is not of a type requiring a single action to fully cure, then
Executive may commence the cure promptly after such written notice and
thereafter diligently prosecute such cure to completion), (4) the breach by
Executive of any of Executive's material obligations hereunder (other than
those covered by clause (3) above) and the failure of Executive to cure such
breach within thirty (30) days after receipt by Executive of a written notice
of Employer specifying in reasonable detail the nature of the breach, or (5)
Executive's sanction (including restrictions, prohibitions and limitations
agreed to under a consent decree or agreed order) under, or conviction for
violation of, any federal or state securities law, rule or regulation
(provided that in the case of a sanction, such sanction materially impedes or
impairs the ability of Executive to perform Executive's duties and exercise
Executive's responsibilities hereunder in a satisfactory manner).
(iii) DISABILITY. If due to illness, physical or mental
disability, or other incapacity, Executive shall fail during any four (4)
consecutive months to perform the duties required by this Agreement, Employer
may, upon thirty (30) days' written notice to Executive, either terminate this
Agreement or suspend Executive's right to any Base Compensation or Performance
Bonus Distributions without terminating this Agreement. In any such event,
Executive shall (A) be paid Executive's Base Compensation in accordance with
Section 3(a) hereof up to the effective date of such termination, (B) be paid a
pro rata portion of any bonus otherwise payable to Executive for or with respect
to the calendar year in which such termination occurs in accordance with Section
3(b) hereof up to the first day of such four (4) month period and, to the extent
not previously paid, Executive shall be entitled to all bonuses payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such termination occurs and
(C) be entitled to the benefits set forth in Sections 3(c) (or the after-tax
cash equivalent), 3(d) and 3(e) hereof up to the effective date of such
termination. For purposes of calculating Executive's pro rata portion of any
bonus pursuant to clause (B) in the previous sentence, if the termination takes
place prior to receipt by Executive of any Performance Bonus Distribution, the
Performance Bonus Distribution, a pro rata portion of which Executive shall be
entitled to receive, shall be deemed to be 50% of Executive's then current
annual Base Compensation. In the event Employer elects to suspend Executive's
right to Base Compensation and Performance Bonus Distributions, at such time as
Executive is able to resume the duties required under this Agreement, Executive
shall be entitled to receive Base Compensation and Performance Bonus
Distributions from the date Executive
4
<PAGE>
commences the performance of such duties following the disability in
accordance with the terms and provisions of this Agreement. This Section
5(a)(iii) shall not limit the entitlement of Executive, Executive's estate or
beneficiaries to any disability or other benefits available to Executive
under any disability insurance or other benefits plan or policy which is
maintained by Employer for Executive's benefit. For purposes of this
Agreement, the "date of disability" shall mean the first day of the
consecutive period during which Executive fails to perform the duties
required by this Agreement due to illness, physical or mental disability or
other incapacity.
(b) TERMINATION BY EXECUTIVE. (i) AFTER CHANGE OF CONTROL.
Executive may terminate this Agreement upon thirty (30) days' written notice to
Employer following any "change of control" of Employer and a resulting
"diminution event", each as defined below, but in no event later than two years
after the change of control event. Executive shall continue to perform, at the
election of Employer, Executive's duties under this Agreement for an additional
thirty (30) days following notice of termination. In such event, Executive
shall (A) be paid Executive's Base Compensation up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise payable to
Executive for or with respect to the calendar year in which such termination
occurs in accordance with Section 3(b) hereof up to the effective date of such
termination and, to the extent not previously paid, Executive shall be entitled
to all bonuses payable to Executive in accordance with Section 3(b) hereof for
or with respect to any calendar years prior to the calendar year in which such
termination occurs, (C) be entitled to the benefits set forth in Sections 3(c),
3(d) and 3(e) hereof up to the effective date of such termination and (D)
receive the Termination Compensation specified in Section 5(d) hereof. For
purposes of calculating Executive's pro rata portion of any bonus pursuant to
clause (B) in the previous sentence, if the termination takes place prior to
receipt by Executive of any Performance Bonus Distribution, the Performance
Bonus Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation. For purposes of this Agreement, in the event Employer defaults in
its obligation under Section 9 hereof and, as a consequence thereof, Executive's
employment with Employer (or Employer's successor or assign) terminates, such
termination shall be deemed to be a termination under this Section 5(b)(i).
For purposes of this Section 5(b)(i), (A) a "change of control" of Employer
shall be deemed to have occurred if: (1) any person (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), including a "group" as defined in Section 13(d)(3) of the
Exchange Act (but excluding The Prime Group, Inc. or any of its affiliates or
any group in which The Prime Group, Inc. or any of its affiliates has a
significant interest and excluding a trustee or other fiduciary holding
securities under an employee benefit plan of Employer), becomes the beneficial
owner of shares of beneficial interests or limited partnership interests, as
applicable, of Employer having at least fifty percent (50%) of the total number
of votes that may be cast for the election of directors of Employer; (2) the
merger or other business combination of Employer, sale of all or substantially
all of Employer's assets or combination of the foregoing transactions (a
"Transaction"), other than a Transaction immediately following which the
shareholders of Employer immediately prior to the Transaction continue to have a
majority of the voting power in the resulting entity (excluding for this purpose
any shareholder, other than The Prime Group, Inc. and its affiliates, owning
directly or indirectly more than ten percent (10%) of the shares of the other
company
5
<PAGE>
involved in the Transaction); or (3) within any twenty-four (24) month period
beginning on or after the date hereof, the persons who were directors of
Employer immediately before the beginning of such period (the "Incumbent
Directors") shall cease to constitute at least a majority of the Board or a
majority of the board of directors of any successor to Employer, provided
that, any director who was not a director as of the date hereof shall be
deemed to be an Incumbent Director if such director was elected to the Board
by, or on the recommendation of or with the approval of, at least two-thirds
of the directors who then qualified as Incumbent Directors either actually or
by prior operation of this provision, unless such election, recommendation or
approval was the result of an actual or threatened election contest of the
type contemplated by Regulation 14a-11 promulgated under the Exchange Act or
any successor provision; and (B) a "diminution event" shall mean any material
diminution in (1) the duties and responsibilities of Executive (other than a
mere title change) or (2) the compensation package for Executive.
(ii) WITHOUT GOOD REASON. Executive may terminate this
Agreement and Executive's employment at any time for any reason or for no reason
at all upon thirty (30) days' written notice to Employer, during which period
Executive shall continue to perform Executive's duties under this Agreement if
Employer so elects. In connection with the termination of Executive's
employment pursuant to this Section 5(b)(ii), Executive shall (A) be paid
Executive's Base Compensation in accordance with Section 3(a) hereof up to the
effective date of such termination, and, to the extent not previously paid,
Executive shall be entitled to all bonuses payable to Executive in accordance
with Section 3(b) hereof for or with respect to any calendar years prior to the
calendar year in which such termination occurs and (B) be entitled to the
benefits set forth in Sections 3(c), 3(d) and 3(e) hereof up to the effective
date of such termination.
(c) DEATH. Notwithstanding any other provision of this Agreement,
this Agreement shall terminate on the date of Executive's death. In such
event, Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the date of such death, (B) be paid
a pro rata portion of any bonus otherwise payable to Executive for or with
respect to the calendar year in which such death occurs in accordance with
Section 3(b) hereof up to the effective date of such death and, to the extent
not previously paid, Executive shall be entitled to all bonuses payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such death occurs and (C)
be entitled to the benefits set forth in Sections 3(c) (or the after-tax
cash equivalent), 3(d) and 3(e) hereof up to the date of such death. This
Section 5(c) shall not limit the entitlement of Executive, Executive's estate
or beneficiaries under any insurance or other benefits plan or policy which
is maintained by Employer for Executive's benefit. For purposes of
calculating Executive's pro rata portion of any bonus pursuant to clause (B)
in the previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation.
(d) TERMINATION COMPENSATION. In the event of a termination of this
Agreement pursuant to Section 5(a)(i), 5(a)(iii) or 5(b)(i) hereof, Employer
shall pay to Executive, within thirty (30) days of termination, an amount in one
lump sum ("Termination Compensation") equal to (i) in
6
<PAGE>
the case of a termination pursuant to Section 5(a)(i) or 5(a)(iii) hereof,
the greater of (A) fifty percent (50%) of Executive's then current annual
Base Compensation and (B) fifty percent (50%) of the remaining aggregate Base
Compensation payable to Executive over the remainder of the Employment Term
or (ii) in the case of a termination pursuant to Section 5(b)(i) hereof, the
greater of (A) one hundred percent (100%) of Executive's then current annual
Base Compensation and (B) one hundred percent (100%) of the remaining
aggregate Base Compensation payable to Executive over the remainder of the
Employment Term.
6. COVENANTS OF EXECUTIVE.
(a) NO CONFLICTS. Executive represents and warrants that Executive
is not personally subject to any agreement, order or decree which restricts
Executive's acceptance of this Agreement and the performance of Executive's
duties with Employer hereunder.
(b) NON-COMPETITION. In return for the performance of the
management duties described in Section 1 hereof, during the Employment Term and,
in the event of the termination of this Agreement pursuant to the provisions of
Section 5(a)(ii) or 5(b)(ii) hereof, for a period of two years thereafter,
Executive shall not, directly or indirectly, in any capacity whatsoever, either
on Executive's own behalf or on behalf of any other person or entity with whom
Executive may be employed or associated, own any interest in, participate or
engage in the day-to-day supervision, management, development, marketing or
operation of any office or industrial real estate facilities or such other
business as Employer may be engaged in during the Employment Term (the
"Business") which is competitive with any of Employer's facilities. For
purposes hereof, a facility will be deemed competitive with one of Employer's
facilities if such facility is located within ten (10) miles of a facility
owned, operated or managed by Employer or within ten (10) miles of a facility
which Employer is developing or with respect to which Employer has signed a
letter of intent or term sheet or binding contract for the acquisition,
development or management thereof dated on or prior to the date of such
termination. Furthermore, for a period of two years after any applicable
Section 5 termination event, Executive shall not, directly or indirectly,
solicit, attempt to hire or hire any employee or client of Employer or solicit
or attempt to lease space to or lease space to any tenant of Employer.
Notwithstanding the foregoing, nothing herein shall prohibit Executive from
owning 5% or less of any securities of a competitor engaged in the same Business
if such securities are listed on a nationally recognized securities exchange or
traded over-the-counter on the National Association of Securities Dealers
Automated Quotation System or otherwise.
(c) NON-DISCLOSURE. During the Employment Term and for a period of
two years after the expiration or termination of this Agreement for any reason,
Executive shall not disclose or use, except in the pursuit of the Business for
or on behalf of Employer, any Trade Secret (as hereinafter defined) of Employer,
whether such Trade Secret is in Executive's memory or embodied in writing or
other physical form. For purposes of this Section 6(c), "Trade Secret" means
any information which derives independent economic value, actual or potential,
with respect to Employer from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use and is the subject of efforts to maintain its
secrecy that are reasonable under the circumstances, including, but not limited
to, trade
7
<PAGE>
secrets, customer lists, sales records and other proprietary commercial
information. Said term, however, shall not include general "know-how"
information acquired by Executive prior to or during the course of
Executive's service which could have been obtained by him from public sources
without the expenditure of significant time, effort and expense which does
not relate to Employer.
(d) BUSINESS OPPORTUNITIES. During the Employment Term, Executive
agrees to bring to Employer any and all business opportunities which come to
Executive's attention for the acquisition, development, management, leasing or
marketing of real estate for industrial or office use. In the event that
Employer elects not to participate or take advantage of any such business
opportunity, upon termination of Executive's employment with Employer for any
reason, Executive shall be free to pursue such business opportunity, provided
that such business opportunity does not cause any tenant to relocate from a
facility owned and/or operated by Employer, PGRT or any of their respective
subsidiaries.
(e) RETURN OF DOCUMENTS. Upon termination of Executive's services
with Employer, Executive shall return all originals and copies of books,
records, documents, customer lists, sales materials, tapes, keys, credit cards
and other tangible property of Employer within Executive's possession or under
Executive's control.
(f) EQUITABLE RELIEF. In the event of any breach by Executive of any
of the covenants contained in this Section 6, it is specifically understood and
agreed that Employer shall be entitled, in addition to any other remedy which it
may have, to equitable relief by way of injunction, an accounting or otherwise
and to notify any employer or prospective employer of Executive as to the terms
and conditions hereof.
(g) ACKNOWLEDGMENT. Executive acknowledges that Executive will be
directly and materially involved as a senior executive in all important policy
and operational decisions of Employer. Executive further acknowledges that the
scope of the foregoing restrictions has been specifically bargained between
Employer and Executive, each being fully informed of all relevant facts.
Accordingly, Executive acknowledges that the foregoing restrictions of Section
6 are fair and reasonable, are minimally necessary to protect Employer, its
other partners and the public from the unfair competition of Executive who, as
a result of Executive's performance of services on behalf of Employer, will have
had unlimited access to the most confidential and important information of
Employer, its business and future plans. Executive furthermore acknowledges
that no unreasonable harm or injury will be suffered by him from enforcement of
the covenants contained herein and that Executive will be able to earn a
reasonable livelihood following termination of Executive's services
notwithstanding enforcement of the covenants contained herein.
7. PRIOR AGREEMENTS. This Agreement, together with the Stock
Incentive Plan, supersedes and is in lieu of any and all other employment
arrangements between Executive and Employer or its predecessor or any
subsidiary and any and all such employment agreements and arrangements are
hereby terminated and deemed of no further force or effect.
8. ASSIGNMENT. Neither this Agreement nor any rights or duties of
Executive hereunder shall be assignable by Executive and any such purported
assignment by him shall be void. Employer
8
<PAGE>
may assign all or any of its rights hereunder provided that substantially all
of the assets of Employer are also transferred to the same party.
9. SUCCESSOR TO EMPLOYER. Employer will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of Employer, as the case may
be, by agreement in form and substance reasonably satisfactory to Executive,
expressly, absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place. Any
failure of Employer to obtain such agreement prior to the effectiveness of any
such succession or assignment shall be a material breach of this Agreement
giving Executive the right to terminate this Agreement, in which case Executive
shall be entitled to receive the compensation specified in Section 5(b)(i)
hereof. This Agreement shall inure to the benefit of and be enforceable by
Executive's personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amounts are still payable to Executive hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee or other designee or, if there be
no such designee, to Executive's estate.
10. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent by
courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Executive, to:
Robert J. Rudnik
1366 Kimmer Court
Lake Forest, IL 60045
(b) if to Employer, to:
Prime Group Realty Trust
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: Chief Executive Officer
WITH A COPY TO:
Prime Group Realty Trust
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: General Counsel
9
<PAGE>
AND TO:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
Attn: Wayne D. Boberg
Any notice, claim, demand, request or other communication given as provided in
this Section 10, if delivered personally, shall be effective upon delivery; and
if given by courier, shall be effective one (1) business day after deposit with
the courier if next day delivery is guaranteed; and if given by certified mail,
shall be effective three (3) business days after deposit in the mail. Either
party may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Section 10.
11. AMENDMENT. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. WAIVER OF BREACH. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
13. SEVERABILITY. Employer and Executive each expressly agree and
contract that it is not the intention of either party to violate any public
policy, statutory or common law, and that if any covenant, sentence, paragraph,
clause or combination of the same of this Agreement (a "Contractual Provision")
is in violation of the law of any state where applicable, such Contractual
Provision shall be void in the jurisdictions where it is unlawful, and the
remainder of such Contractual Provision, if any, and the remainder of this
Agreement shall remain binding on the parties such that such Contractual
Provision shall be binding only to the extent that such Contractual Provision is
lawful or may be lawfully performed under then applicable laws. In the event
that any part of any Contractual Provision of this Agreement is determined by a
court of competent jurisdiction to be overly broad thereby making the
Contractual Provision unenforceable, the parties hereto agree, and it is their
desire, that such court shall substitute a judicially enforceable limitation in
its place, and that the Contractual Provision, as so modified, shall be binding
upon the parties as if originally set forth herein.
14. INDEMNIFICATION BY EXECUTIVE. Executive shall indemnify Employer for
any and all damages, costs and expenses resulting from any material harm to
Employer, its business, assets or employees through an act of dishonesty,
material conflict of interest, gross misconduct or willful malfeasance by
Executive. Executive also shall indemnify Employer for any and all damages,
costs and expenses resulting from Executive's acts of omission constituting
reckless disregard of Executive's duties to Employer following notice thereof by
Employer after it becomes aware of such conduct and Executive's failure to so
cure within thirty (30) days.
10
<PAGE>
15. GOVERNING LAW. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of Illinois,
exclusive of the conflict of laws provisions of the State of Illinois.
[signature page follows]
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EMPLOYER:
PRIME GROUP REALTY TRUST
By: /s/ Richard S. Curto
-----------------------------
Title: President
-----------------------------
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust,
its General Partner
By: /s/ Richard S. Curto
-----------------------------
Title: President
-----------------------------
EXECUTIVE:
/s/ Robert J. Rudnik
-----------------------------
Robert J. Rudnik
12
<PAGE>
Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this
17th day of November, 1997 by and among Prime Group Realty Trust, a Maryland
real estate investment trust ("PGRT"), Prime Group Realty, L.P., a Delaware
limited partnership and the operating partnership for PGRT ("Prime") (Prime and
PGRT are hereinafter sometimes collectively referred to as "Employer"), and
Jeffrey A. Patterson, an individual domiciled in the State of Illinois
("Executive").
W I T N E S S E T H
A. Employer is engaged primarily in the ownership, management, leasing,
marketing, acquisition, development and construction of office and industrial
real estate facilities throughout the United States.
B. Employer believes that it would benefit from the application of
Executive's particular and unique skill, experience, and background to the
development of office properties and the management thereof.
C. Executive wishes to commit to serve Employer in the position set forth
herein on the terms herein provided.
D. The parties wish by this Agreement to set forth the terms and
conditions of the employment relationship between Employer and Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein set forth, and for other good and valuable consideration, Employer and
Executive hereby agree as follows:
1. EMPLOYMENT AND DUTIES. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Executive, and Executive agrees to
be employed by Employer, as the Executive Vice President and Chief Investment
Officer of Employer on the terms and conditions provided in this Agreement.
Executive shall conduct, operate, manage and promote the business and business
concept of Employer. The Chief Executive Officer or the President of Employer
may from time to time further define and clarify Executive's duties and services
hereunder as Executive Vice President and Chief Investment Officer of Employer.
Executive agrees to devote Executive's best efforts and substantially all of
Executive's business time, attention, energy and skill to perform Executive's
duties as Executive Vice President and Chief Investment Officer of Employer.
2. TERM. The term of this Agreement shall commence on November 17, 1997
and expire on November 17, 2000 ("Employment Term").
<PAGE>
3. COMPENSATION AND RELATED MATTERS. (a) BASE SALARY. As compensation
for performing the services required by this Agreement during the Employment
Term, Employer shall pay to Executive an annual salary of no less than Two
Hundred Thousand Dollars ($200,000) ("Base Compensation"), payable in accordance
with the general policies and procedures for payment of salaries to its
executive personnel maintained, from time to time, by Employer (but no less
frequently than monthly), subject to withholding for applicable federal, state,
and local taxes. Increases in Base Compensation, if any, shall be determined by
the Compensation Committee (the "Committee") of the Board of Trustees of PGRT
(the "Board"), based on periodic reviews of Executive's performance conducted on
at least an annual basis.
(b) BONUS. In addition to Base Compensation, the Board and the
Committee, in their sole and absolute discretion, may, but in no event shall be
obligated to, authorize the payment of a cash bonus (a "Performance Bonus
Distribution") to Executive based upon achievement of such corporate and
individual performance goals and objectives as may be established or determined
by the Board or the Committee from time to time.
(c) BENEFITS. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Executive and
Executive's eligible dependents shall have the right to participate in the
medical and dental benefit plan to be established by Employer (which may include
contributions by Executive) and in any other retirement, pension, insurance,
health or other benefit plan or program that has been or is hereafter adopted by
Employer (or in which Employer participates), as such plans and programs may be
amended or modified from time to time by Employer, according to the terms of
such plan or program with all the benefits, rights and privileges as are enjoyed
by any other executive officers of Employer. Employer expects to have in place
a life insurance program in which Executive will be entitled to participate. If
the participation of Executive would adversely affect the qualification of a
plan intended to be qualified under Section 401(a) of the Internal Revenue Code
as the same may be amended from time to time (the "Code"), Employer shall have
the right to exclude Executive from that plan in return for Executive's
participation in (i) a nonqualified deferred compensation plan or (ii) an
arrangement providing substantially comparable benefits under a plan that is
either a qualified or nonqualified under the Code at Employer's option.
(d) EXPENSES. Executive shall be reimbursed, subject to Employer's
receipt of invoices or similar records as Employer may reasonably request in
accordance with its policies and procedures, as such policies and procedures may
be amended or modified from time to time by Employer, for all reasonable and
necessary expenses incurred by Executive in the performance of Executive's
duties hereunder, including expenses for business entertainment and meals
(whether in or out of town) and gas for business travel, but excluding
automobile insurance.
(e) VACATIONS. During the Employment Term, Executive shall be
entitled to vacation in accordance with Employer's practices, as such practices
may be amended or modified from time to time by Employer, provided that
Executive shall be entitled to at least three (3) weeks paid vacation in each
full calendar year. Executive may accrue unused vacation time if not used in
any calendar year or years, however, the maximum cumulative amount of vacation
time that
2
<PAGE>
Executive may accrue and carry over to the next year is two (2) weeks.
Executive shall be entitled to a payment for any vacation time which has
accrued but has not been used as of the date of the termination of
Executive's employment with Employer, unless Executive's employment is
terminated pursuant to Section 5(a)(ii) hereof.
4. SHARE OPTIONS AND GRANTS. PGRT has established a share incentive
plan (the "Share Incentive Plan"). The Share Incentive Plan initially
provides, among other things, for the issuance from time to time to certain
officers, directors and other employees of PGRT and Employer, including
Executive, of share options. Pursuant to the Share Incentive Plan, on the
date hereof, PGRT shall grant to Executive 85,000 share options ("Options")
that will have such terms and conditions as are set forth in the Share
Incentive Plan and the Share Option Agreement to be entered into between PGRT
and Executive. Such Options granted to Executive shall vest immediately (i)
upon the death or disability of Executive or (ii) upon termination of this
Agreement and Executive's employment for any reason other than (A) a
termination for cause by Employer or (B) if Executive terminates Executive's
employment for any reason other than pursuant to Section 5(b)(i) hereof. In
the case of a termination for cause or if Executive terminates Executive's
employment for any reason other than pursuant to Section 5(b)(i) hereof, all
unvested Options shall be forfeited by Executive, but Executive shall have
the right to exercise within the time period provided for in the Share
Incentive Plan all Options vested prior to such termination. In addition, on
the date hereof, PGRT Executive shall be entitled to receive 110,000 shares
of beneficial interests of PGRT in exchange for certain assets contributed by
Executive to Prime pursuant to the Formation Agreement dated November 17,
1997 among PGRT, Prime, Prime Group Services, Inc., The Prime Group, Inc.,
Prime Group Limited Partnership and Executive, which shares shall be subject
to pro-rata forfeiture (based on number of days) if Executive voluntarily
terminates Executive's employment with Employer prior to November 17, 1998.
Such shares shall not be subject to forfeiture in the event of termination of
Executive's employment with Employer for any other reason.
5. TERMINATION AND TERMINATION BENEFITS. (a) TERMINATION BY EMPLOYER.
(i) WITHOUT CAUSE. Employer may terminate this Agreement and Executive's
employment at any time for any reason or for no reason at all upon thirty (30)
days' prior written notice to Executive following notice of termination. In
connection with the termination of Executive's employment pursuant to this
Section 5(a)(i), Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise payable to
Executive for or with respect to the calendar year in which such termination
occurs in accordance with Section 3(b) hereof up to the effective date of such
termination and, to the extent not previously paid, Executive shall be entitled
to all bonuses payable to Executive in accordance with Section 3(b) hereof for
or with respect to any calendar years prior to the calendar year in which such
termination occurs, (C) be entitled to the benefits set forth in Sections 3(c),
3(d) and 3(e) hereof up to the effective date of such termination and (D)
receive the Termination Compensation specified in Section 5(d) hereof. For
purposes of calculating Executive's pro rata portion of any bonus pursuant to
clause (B) in the previous sentence, if the termination takes place prior to
receipt by Executive of any Performance Bonus Distribution, the Performance
Bonus Distribution, a pro rata (based on the number of days in the year) portion
of which Executive shall be entitled to receive, shall be deemed to be 50% of
Executive's then current annual Base
3
<PAGE>
Compensation. For purposes of this Agreement, the "effective date of
termination" shall mean the last day on which Executive is employed with
Employer which may be later than the date of the delivery of any applicable
notice of termination.
(ii) WITH CAUSE. Employer may terminate this Agreement with
cause immediately upon written notice to Executive. Employer may elect to
require Executive to continue to perform Executive's duties under this
Agreement for an additional thirty (30) days following notice of termination.
In connection with the termination of Executive's employment pursuant to
this Section 5(a)(ii), Executive shall (A) be paid Executive's Base
Compensation in accordance with Section 3(a) hereof up to the effective date
of such termination, and, to the extent not previously paid, Executive shall
be entitled to any bonuses payable to Executive in accordance with Section
3(b) hereof for or with respect to any calendar years prior to the calendar
year in which such termination occurs and (B) be entitled to the benefits set
forth in Sections 3(c), 3(d) and 3(e) hereof up to the effective date of such
termination. For purposes of this Section 5(a)(ii), "cause" shall mean (1) a
finding by the Board that Executive has materially harmed Employer, its
business, assets or employees through an act of dishonesty, material conflict
of interest, gross misconduct or willful malfeasance, (2) Executive's
conviction of (or pleading nolo contendere to) a felony, (3) Executive's
failure to perform (which shall not include inability to perform due to
disability) in any material respects Executive's material duties under this
Agreement after written notice specifying the failure and a reasonable
opportunity to cure (it being understood that if Executive's failure to
perform is not of a type requiring a single action to fully cure, then
Executive may commence the cure promptly after such written notice and
thereafter diligently prosecute such cure to completion), (4) the breach by
Executive of any of Executive's material obligations hereunder (other than
those covered by clause (3) above) and the failure of Executive to cure such
breach within thirty (30) days after receipt by Executive of a written notice
of Employer specifying in reasonable detail the nature of the breach, or (5)
Executive's sanction (including restrictions, prohibitions and limitations
agreed to under a consent decree or agreed order) under, or conviction for
violation of, any federal or state securities law, rule or regulation
(provided that in the case of a sanction, such sanction materially impedes or
impairs the ability of Executive to perform Executive's duties and exercise
Executive's responsibilities hereunder in a satisfactory manner).
(iii) DISABILITY. If due to illness, physical or mental
disability, or other incapacity, Executive shall fail during any four (4)
consecutive months to perform the duties required by this Agreement, Employer
may, upon thirty (30) days' written notice to Executive, either terminate
this Agreement or suspend Executive's right to any Base Compensation or
Performance Bonus Distributions without terminating this Agreement. In any
such event, Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise payable to
Executive for or with respect to the calendar year in which such termination
occurs in accordance with Section 3(b) hereof up to the first day of such
four (4) month period and, to the extent not previously paid, Executive shall
be entitled to all bonuses payable to Executive in accordance with Section
3(b) hereof for or with respect to any calendar years prior to the calendar
year in which such termination occurs and (C) be entitled to the benefits set
forth in Sections 3(c) (or the after-tax cash equivalent), 3(d) and 3(e)
hereof up to the effective date of such termination. For purposes of
calculating Executive's
4
<PAGE>
pro rata portion of any bonus pursuant to clause (B) in the previous
sentence, if the termination takes place prior to receipt by Executive of any
Performance Bonus Distribution, the Performance Bonus Distribution, a pro
rata portion of which Executive shall be entitled to receive, shall be deemed
to be 50% of Executive's then current annual Base Compensation. In the event
Employer elects to suspend Executive's right to Base Compensation and
Performance Bonus Distributions, at such time as Executive is able to resume
the duties required under this Agreement, Executive shall be entitled to
receive Base Compensation and Performance Bonus Distributions from the date
Executive commences the performance of such duties following the disability
in accordance with the terms and provisions of this Agreement. This Section
5(a)(iii) shall not limit the entitlement of Executive, Executive's estate or
beneficiaries to any disability or other benefits available to Executive
under any disability insurance or other benefits plan or policy which is
maintained by Employer for Executive's benefit. For purposes of this
Agreement, the "date of disability" shall mean the first day of the
consecutive period during which Executive fails to perform the duties
required by this Agreement due to illness, physical or mental disability or
other incapacity.
(b) TERMINATION BY EXECUTIVE. (i) AFTER CHANGE OF CONTROL.
Executive may terminate this Agreement upon thirty (30) days' written notice
to Employer following any "change of control" of Employer and a resulting
"diminution event", each as defined below, but in no event later than two
years after the change of control event. Executive shall continue to
perform, at the election of Employer, Executive's duties under this Agreement
for an additional thirty (30) days following notice of termination. In such
event, Executive shall (A) be paid Executive's Base Compensation up to the
effective date of such termination, (B) be paid a pro rata portion of any
bonus otherwise payable to Executive for or with respect to the calendar year
in which such termination occurs in accordance with Section 3(b) hereof up to
the effective date of such termination and, to the extent not previously
paid, Executive shall be entitled to all bonuses payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar years
prior to the calendar year in which such termination occurs, (C) be entitled
to the benefits set forth in Sections 3(c), 3(d) and 3(e) hereof up to the
effective date of such termination and (D) receive the Termination
Compensation specified in Section 5(d) hereof. For purposes of calculating
Executive's pro rata portion of any bonus pursuant to clause (B) in the
previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation. For purposes of this Agreement, in the event Employer defaults
in its obligation under Section 9 hereof and, as a consequence thereof,
Executive's employment with Employer (or Employer's successor or assign)
terminates, such termination shall be deemed to be a termination under this
Section 5(b)(i).
For purposes of this Section 5(b)(i), (A) a "change of control" of
Employer shall be deemed to have occurred if: (1) any person (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including a "group" as defined in Section
13(d)(3) of the Exchange Act (but excluding The Prime Group, Inc. or any of
its affiliates or any group in which The Prime Group, Inc. or any of its
affiliates has a significant interest and excluding a trustee or other
fiduciary holding securities under an employee benefit plan of Employer),
becomes the beneficial owner of shares of beneficial interests or limited
partnership interests, as applicable, of
5
<PAGE>
Employer having at least fifty percent (50%) of the total number of votes
that may be cast for the election of directors of Employer; (2) the merger or
other business combination of Employer, sale of all or substantially all of
Employer's assets or combination of the foregoing transactions (a
"Transaction"), other than a Transaction immediately following which the
shareholders of Employer immediately prior to the Transaction continue to
have a majority of the voting power in the resulting entity (excluding for
this purpose any shareholder, other than The Prime Group, Inc. and its
affiliates, owning directly or indirectly more than ten percent (10%) of the
shares of the other company involved in the Transaction); or (3) within any
twenty-four (24) month period beginning on or after the date hereof, the
persons who were directors of Employer immediately before the beginning of
such period (the "Incumbent Directors") shall cease to constitute at least a
majority of the Board or a majority of the board of directors of any
successor to Employer, provided that, any director who was not a director as
of the date hereof shall be deemed to be an Incumbent Director if such
director was elected to the Board by, or on the recommendation of or with the
approval of, at least two-thirds of the directors who then qualified as
Incumbent Directors either actually or by prior operation of this provision,
unless such election, recommendation or approval was the result of an actual
or threatened election contest of the type contemplated by Regulation 14a-11
promulgated under the Exchange Act or any successor provision; and (B) a
"diminution event" shall mean any material diminution in (1) the duties and
responsibilities of Executive (other than a mere title change) or (2) the
compensation package for Executive.
(ii) WITHOUT GOOD REASON. Executive may terminate this
Agreement and Executive's employment at any time for any reason or for no
reason at all upon thirty (30) days' written notice to Employer, during which
period Executive shall continue to perform Executive's duties under this
Agreement if Employer so elects. In connection with the termination of
Executive's employment pursuant to this Section 5(b)(ii), Executive shall (A)
be paid Executive's Base Compensation in accordance with Section 3(a) hereof
up to the effective date of such termination, and, to the extent not
previously paid, Executive shall be entitled to all bonuses payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such termination occurs
and (B) be entitled to the benefits set forth in Sections 3(c), 3(d) and 3(e)
hereof up to the effective date of such termination.
(c) DEATH. Notwithstanding any other provision of this Agreement,
this Agreement shall terminate on the date of Executive's death. In such
event, Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the date of such death, (B) be paid
a pro rata portion of any bonus otherwise payable to Executive for or with
respect to the calendar year in which such death occurs in accordance with
Section 3(b) hereof up to the effective date of such death and, to the extent
not previously paid, Executive shall be entitled to all bonuses payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such death occurs and (C)
be entitled to the benefits set forth in Sections 3(c) (or the after-tax
cash equivalent), 3(d) and 3(e) hereof up to the date of such death. This
Section 5(c) shall not limit the entitlement of Executive, Executive's estate
or beneficiaries under any insurance or other benefits plan or policy which
is maintained by Employer for Executive's benefit. For purposes of
calculating Executive's pro rata portion of any bonus pursuant to clause (B)
in the previous sentence, if the termination takes place prior to receipt by
6
<PAGE>
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation.
(d) TERMINATION COMPENSATION. In the event of a termination of
this Agreement pursuant to Section 5(a)(i) or 5(b)(i) hereof, Employer shall
pay to Executive, within thirty (30) days of termination, an amount in one
lump sum ("Termination Compensation") equal to the greater of (i) one hundred
percent (100%) of Executive's then current annual Base Compensation and (ii)
one hundred percent (100%) of the remaining aggregate Base Compensation
payable to Executive over the remainder of the Employment Term.
6. COVENANTS OF EXECUTIVE.
(a) NO CONFLICTS. Executive represents and warrants that
Executive is not personally subject to any agreement, order or decree which
restricts Executive's acceptance of this Agreement and the performance of
Executive's duties with Employer hereunder.
(b) NON-COMPETITION. In return for the performance of the
management duties described in Section 1 hereof, during the Employment Term
and, in the event of the termination of this Agreement pursuant to the
provisions of Section 5(a)(ii) or 5(b)(ii) hereof, for a period of two years
thereafter, Executive shall not, directly or indirectly, in any capacity
whatsoever, either on Executive's own behalf or on behalf of any other person
or entity with whom Executive may be employed or associated, own any interest
in, participate or engage in the day-to-day supervision, management,
development, marketing or operation of any office or industrial real estate
facilities or such other business as Employer may be engaged in during the
Employment Term (the "Business") which is competitive with any of Employer's
facilities. For purposes hereof, a facility will be deemed competitive with
one of Employer's facilities if such facility is located within ten (10)
miles of a facility owned, operated or managed by Employer or within ten (10)
miles of a facility which Employer is developing or with respect to which
Employer has signed a letter of intent or term sheet or binding contract for
the acquisition, development or management thereof dated on or prior to the
date of such termination. Furthermore, for a period of two years after any
applicable Section 5 termination event, Executive shall not, directly or
indirectly, solicit, attempt to hire or hire any employee or client of
Employer or solicit or attempt to lease space to or lease space to any tenant
of Employer. Notwithstanding the foregoing, nothing herein shall prohibit
Executive from owning 5% or less of any securities of a competitor engaged in
the same Business if such securities are listed on a nationally recognized
securities exchange or traded over-the-counter on the National Association of
Securities Dealers Automated Quotation System or otherwise.
(c) NON-DISCLOSURE. During the Employment Term and for a period
of two years after the expiration or termination of this Agreement for any
reason, Executive shall not disclose or use, except in the pursuit of the
Business for or on behalf of Employer, any Trade Secret (as hereinafter
defined) of Employer, whether such Trade Secret is in Executive's memory or
embodied in writing or other physical form. For purposes of this Section
6(c), "Trade Secret" means any information which derives independent economic
value, actual or potential, with respect to Employer
7
<PAGE>
from not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from its
disclosure or use and is the subject of efforts to maintain its secrecy that
are reasonable under the circumstances, including, but not limited to, trade
secrets, customer lists, sales records and other proprietary commercial
information. Said term, however, shall not include general "know-how"
information acquired by Executive prior to or during the course of
Executive's service which could have been obtained by him from public sources
without the expenditure of significant time, effort and expense which does
not relate to Employer.
(d) BUSINESS OPPORTUNITIES. During the Employment Term, Executive
agrees to bring to Employer any and all business opportunities which come to
Executive's attention for the acquisition, development, management, leasing
or marketing of real estate for industrial or office use. In the event that
Employer elects not to participate or take advantage of any such business
opportunity, upon termination of Executive's employment with Employer for any
reason, Executive shall be free to pursue such business opportunity, provided
that such business opportunity does not cause any tenant to relocate from a
facility owned and/or operated by Employer, PGRT or any of their respective
subsidiaries.
(e) RETURN OF DOCUMENTS. Upon termination of Executive's
services with Employer, Executive shall return all originals and copies of
books, records, documents, customer lists, sales materials, tapes, keys,
credit cards and other tangible property of Employer within Executive's
possession or under Executive's control.
(f) EQUITABLE RELIEF. In the event of any breach by Executive of
any of the covenants contained in this Section 6, it is specifically
understood and agreed that Employer shall be entitled, in addition to any
other remedy which it may have, to equitable relief by way of injunction, an
accounting or otherwise and to notify any employer or prospective employer of
Executive as to the terms and conditions hereof.
(g) ACKNOWLEDGMENT. Executive acknowledges that Executive will be
directly and materially involved as a senior executive in all important
policy and operational decisions of Employer. Executive further acknowledges
that the scope of the foregoing restrictions has been specifically bargained
between Employer and Executive, each being fully informed of all relevant
facts. Accordingly, Executive acknowledges that the foregoing restrictions
of Section 6 are fair and reasonable, are minimally necessary to protect
Employer, its other partners and the public from the unfair competition of
Executive who, as a result of Executive's performance of services on behalf
of Employer, will have had unlimited access to the most confidential and
important information of Employer, its business and future plans. Executive
furthermore acknowledges that no unreasonable harm or injury will be suffered
by him from enforcement of the covenants contained herein and that Executive
will be able to earn a reasonable livelihood following termination of
Executive's services notwithstanding enforcement of the covenants contained
herein.
7. PRIOR AGREEMENTS. This Agreement, together with the Stock
Incentive Plan, supersedes and is in lieu of any and all other employment
arrangements between Executive and
8
<PAGE>
Employer or its predecessor or any subsidiary and any and all such employment
agreements and arrangements are hereby terminated and deemed of no further
force or effect.
8. ASSIGNMENT. Neither this Agreement nor any rights or duties of
Executive hereunder shall be assignable by Executive and any such purported
assignment by him shall be void. Employer may assign all or any of its
rights hereunder provided that substantially all of the assets of Employer
are also transferred to the same party.
9. SUCCESSOR TO EMPLOYER. Employer will require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all the business and/or assets of
Employer, as the case may be, by agreement in form and substance reasonably
satisfactory to Executive, expressly, absolutely and unconditionally to
assume and agree to perform this Agreement in the same manner and to the same
extent that Employer would be required to perform it if no such succession or
assignment had taken place. Any failure of Employer to obtain such agreement
prior to the effectiveness of any such succession or assignment shall be a
material breach of this Agreement giving Executive the right to terminate
this Agreement, in which case Executive shall be entitled to receive the
compensation specified in Section 5(b)(i) hereof. This Agreement shall inure
to the benefit of and be enforceable by Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amounts are still
payable to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee or other designee or, if there be no such
designee, to Executive's estate.
10. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent
by courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Executive, to:
Jeffrey A. Patterson
403 N. Lincoln
Hinsdale, IL 60521
WITH A COPY TO:
Donatelli & Coules
15 Salt Creek Lane, Suite 312
Hinsdale, IL 60521
Attn: Mark R. Donatelli
(b) if to Employer, to:
Prime Group Realty Trust
Suite 3900
9
<PAGE>
77 West Wacker Drive
Chicago, IL 60601
Attn: Chief Executive Officer
WITH A COPY TO:
Prime Group Realty Trust
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: General Counsel
AND TO:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
Attn: Wayne D. Boberg
Any notice, claim, demand, request or other communication given as provided
in this Section 10, if delivered personally, shall be effective upon
delivery; and if given by courier, shall be effective one (1) business day
after deposit with the courier if next day delivery is guaranteed; and if
given by certified mail, shall be effective three (3) business days after
deposit in the mail. Either party may change the address at which it is to
be given notice by giving written notice to the other party as provided in
this Section 10.
11. AMENDMENT. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. WAIVER OF BREACH. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by either party.
13. SEVERABILITY. Employer and Executive each expressly agree and
contract that it is not the intention of either party to violate any public
policy, statutory or common law, and that if any covenant, sentence,
paragraph, clause or combination of the same of this Agreement (a
"Contractual Provision") is in violation of the law of any state where
applicable, such Contractual Provision shall be void in the jurisdictions
where it is unlawful, and the remainder of such Contractual Provision, if
any, and the remainder of this Agreement shall remain binding on the parties
such that such Contractual Provision shall be binding only to the extent that
such Contractual Provision is lawful or may be lawfully performed under then
applicable laws. In the event that any part of any Contractual Provision of
this Agreement is determined by a court of competent jurisdiction to be
overly broad thereby making the Contractual Provision unenforceable, the
parties hereto agree, and it is their desire, that such court shall
substitute a judicially enforceable limitation in its place, and that the
10
<PAGE>
Contractual Provision, as so modified, shall be binding upon the parties as
if originally set forth herein.
14. INDEMNIFICATION BY EXECUTIVE. Executive shall indemnify Employer
for any and all damages, costs and expenses resulting from any material harm
to Employer, its business, assets or employees through an act of dishonesty,
material conflict of interest, gross misconduct or willful malfeasance by
Executive. Executive also shall indemnify Employer for any and all damages,
costs and expenses resulting from Executive's acts of omission constituting
reckless disregard of Executive's duties to Employer following notice thereof
by Employer after it becomes aware of such conduct and Executive's failure to
so cure within thirty (30) days.
15. GOVERNING LAW. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of
Illinois, exclusive of the conflict of laws provisions of the State of
Illinois.
[signature page follows]
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EMPLOYER:
PRIME GROUP REALTY TRUST
By:/s/ Richard S. Curto
---------------------------
Title: President
---------------------------
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust,
its General Partner
By:/s/ Richard S. Curto
---------------------------
Title: President
---------------------------
EXECUTIVE:
/s/ Jeffrey A. Patterson
--------------------------------
Jeffrey A. Patterson
DOCUMENT NUMBER: 237990.6
March 23, 1998
12
<PAGE>
EMPLOYMENT AGREEMENT Exhibit 10.9
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into this 17th day of November, 1997 by and between Prime Group Realty, L.P.,
a Delaware limited partnership ("Employer"), and Kevork M. Derderian, an
individual domiciled in the State of Illinois ("Executive").
W I T N E S S E T H
A. Employer is engaged primarily in the ownership, management,
leasing, marketing, acquisition, development and construction of office and
industrial real estate facilities throughout the United States.
B. Employer believes that it would benefit from the application
of Executive's particular and unique skill, experience, and background to the
development of office properties and the management thereof.
C. Executive wishes to commit to serve Employer in the position
set forth herein on the terms herein provided.
D. The parties wish by this Agreement to set forth the terms and
conditions of the employment relationship between Employer and Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein set forth, and for other good and valuable consideration,
Employer and Executive hereby agree as follows:
1. EMPLOYMENT AND DUTIES. During the Employment Term (as defined
in Section 2 hereof), Employer agrees to employ Executive, and Executive
agrees to be employed by Employer, as the President of Employer's Office
Division on the terms and conditions provided in this Agreement. Executive
shall conduct, operate, manage and promote the business and business concept
of Employer. The Chief Executive Officer or the President of Employer may
from time to time further define and clarify Executive's duties and services
hereunder as President of Employer's Office Division, which principal duties
will include the development, management, leasing, marketing and acquisition
of office properties. Executive agrees to devote Executive's best efforts
and substantially all of Executive's business time, attention, energy and
skill to perform Executive's duties as President of Employer's Office
Division.
2. TERM. The term of this Agreement shall commence on November
17, 1997 and expire on November 17, 2000 (the "Employment Term").
3. COMPENSATION AND RELATED MATTERS. (a) BASE SALARY. As
compensation for performing the services required by this Agreement during
the Employment Term, Employer shall pay to Executive an annual salary of no
less than Two Hundred Thousand Dollars ($200,000) ("Base
<PAGE>
Compensation"), payable in accordance with the general policies and
procedures for payment of salaries to its executive personnel maintained,
from time to time, by Employer (but no less frequently than monthly), subject
to withholding for applicable federal, state, and local taxes. Increases in
Base Compensation, if any, shall be determined by the Compensation Committee
(the "Committee") of the Board of Trustees (the "Board") of Prime Group
Realty Trust ("PGRT"), the general partner of Prime, based on periodic
reviews of Executive's performance conducted on at least an annual basis.
(b) BONUS. In addition to Base Compensation, Executive shall
have the right to receive, and Employer agrees to distribute to Executive, a
performance bonus distribution for each calendar year during the Employment
Term, commencing on January 1, 1998, in such amounts as determined by the two
point formula delineated hereinbelow (collectively, a yearly "Performance
Bonus Distribution"); provided, however, that the aggregate Performance Bonus
Distribution for any calendar year distributable in accordance with the
provisions of this Section 3(b) shall in no event exceed 100% of the Base
Compensation for such calendar year. The amount of the Performance Bonus
Distribution for each calendar year distributable to Executive hereunder
shall be determined by the Committee based upon the achievement of Employer's
annual business plan approved by the Board for such calendar year, as
reflected in the audited financial statements of Employer prepared in
accordance with generally accepted accounting principles and auditing
standards and practices, consistently applied ("GAAP"). Prior to issuance of
the final audited financial statements for each calendar year, Executive
shall have the right to review and approve or challenge any calculation or
determination of the amount of the Performance Bonus Distribution
distributable for such calendar year. Any amount of Performance Bonus
Distribution required to be distributed to Executive for any calendar year
during the Employment Term shall be distributed by Employer to Executive
during the pay period of Employer following finalization of the audit for
such calendar year and final review and approval of the bonus calculation by
the Committee and, in all events, on or before April 15 of the year
immediately following the end of the calendar year for which such Performance
Bonus Distribution is attributable.
The two point formula to determine a Performance Bonus
Distribution for any calendar year during the Employment Term shall be as
follows:
(i) FUNDS FROM OPERATIONS. Executive's Performance Bonus
Distribution in an amount of up to seventy-five percent (75%) of Executive's
Base Compensation for any given calendar year shall be based on Employer's
Funds From Operations publicly announced by Employer ("FFO") such calendar
year in relation to projected budget for FFO disclosed to shareholders of
PGRT set forth in Employer's Board approved annual business plan for such
calendar year ("Public FFO") as follows:
(A) If FFO is less than Public FFO, Executive shall not be
entitled to any Performance Bonus Distribution under this Section 3(b)(i).
(B) If FFO is one hundred and three percent (103%) or more
of Public FFO, Executive shall be entitled to a Performance Bonus
Distribution under this Section 3(b)(i) equal to seventy-five percent (75%)
of Executive's Base Compensation for such calendar year.
2
<PAGE>
(C) If FFO is equal to Public FFO but less than one hundred
and three percent (103%) of Public FFO, Executive shall be entitled to a
Performance Bonus Distribution under this Section 3(b)(i) equal to thirty
seven and one-half percent (37.5%) of Executive's Base Compensation for such
calendar year.
(D) If FFO is greater than Public FFO but less than one
hundred and three percent (103%) of Public FFO, then a pro rata adjustment
shall be made to the Performance Bonus Distribution to which Executive is
entitled under this Section 3(b)(i) for such calendar year.
(ii) DISCRETIONARY. Executive's Performance Bonus
Distribution in an amount of up to twenty-five percent (25%) of Executive's
Base Compensation for any given calendar year shall be determined at the sole
discretion of the Board or the Committee based upon achievement of such
corporate or individual performance goals and objectives as may be
established or determined by the Board or the Committee from time to time.
Within ninety (90) days after the date hereof, Employer and Executive shall
negotiate in good faith a revised Performance Bonus Distribution formula
which more accurately measures the performance by Executive of Executive's
duties and responsibilities related to Employer's Office Division for which
Executive has direct authority and oversight.
(c) BENEFITS. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Executive
and Executive's eligible dependents shall have the right to participate in
the medical and dental benefit plan to be established by Employer (which may
include contributions by Executive) and in any other retirement, pension,
insurance, health or other benefit plan or program that has been or is
hereafter adopted by Employer (or in which Employer participates), as such
plans and programs may be amended or modified from time to time by Employer,
according to the terms of such plan or program with all the benefits, rights
and privileges as are enjoyed by any other executive officers of Employer.
Employer expects to have in place a life insurance program in which Executive
will be entitled to participate. If the participation of Executive would
adversely affect the qualification of a plan intended to be qualified under
Section 401(a) of the Internal Revenue Code as the same may be amended from
time to time (the "Code"), Employer shall have the right to exclude Executive
from that plan in return for Executive's participation in (i) a nonqualified
deferred compensation plan or (ii) an arrangement providing substantially
comparable benefits under a plan that is either a qualified or nonqualified
under the Code at Employer's option.
(d) EXPENSES. Executive shall be reimbursed, subject to
Employer's receipt of invoices or similar records as Employer may reasonably
request in accordance with its policies and procedures, as such policies and
procedures may be amended or modified from time to time by Employer, for all
reasonable and necessary expenses incurred by Executive in the performance of
Executive's duties hereunder, including expenses for business entertainment
and meals (whether in or out of town) and gas for business travel, but
excluding automobile insurance. Subject to the policies and procedures
referred to in the previous sentence, Employer agrees to reimburse Executive
3
<PAGE>
for membership dues for the following organizations (i) NACORE, (ii) ULI and
(iii) U.S. Green Building - Council and for travel and related expenses
incurred by Executive to attend the annual conventions and board and council
meetings of such organizations.
(e) VACATIONS. During the Employment Term, Executive shall be
entitled to vacation in accordance with Employer's practices, as such
practices may be amended or modified from time to time by Employer, provided
that Executive shall be entitled to at least four (4) weeks paid vacation in
each full calendar year. Executive may accrue unused vacation time if not
used in any calendar year or years, however, the maximum cumulative amount of
vacation time that Executive may accrue and carry over to the next year is
two (2) weeks. Executive shall be entitled to a payment for any vacation time
which has accrued but has not been used as of the date of the termination of
Executive's employment with Employer, unless Executive's employment is
terminated pursuant to Section 5(a)(ii) hereof.
4. SHARE OPTIONS. PGRT has established a share incentive plan (the
"Share Incentive Plan"). The Share Incentive Plan initially provides, among
other things, for the issuance from time to time to certain officers,
directors and other employees of PGRT and Employer, including Executive, of
share options. Pursuant to the Share Incentive Plan, on the date hereof, PGRT
shall grant to Executive 70,000 share options ("Options") that will have such
terms and conditions as are set forth in the Share Incentive Plan and the
Share Option Agreement to be entered into between PGRT and Executive. Such
Options granted to Executive shall vest immediately (i) upon the death or
disability of Executive or (ii) upon termination of this Agreement and
Executive's employment for any reason other than (A) a termination for cause
by Employer or (B) if Executive terminates Executive's employment for any
reason other than pursuant to Section 5(b)(i) hereof. In the case of a
termination for cause or if Executive terminates Executive's employment for
any reason other than pursuant to Section 5(b)(i) hereof, all unvested
Options shall be forfeited by Executive, but Executive shall have the right
to exercise within the time period provided for in the Share Incentive Plan
all Options vested prior to such termination.
5. TERMINATION AND TERMINATION BENEFITS. (a) TERMINATION BY
EMPLOYER. (i) WITHOUT CAUSE. Employer may terminate this Agreement and
Executive's employment at any time for any reason or for no reason at all
upon thirty (30) days' prior written notice to Executive following notice of
termination. In connection with the termination of Executive's employment
pursuant to this Section 5(a)(i), Executive shall (A) be paid Executive's
Base Compensation in accordance with Section 3(a) hereof up to the effective
date of such termination, (B) be paid a pro rata portion of any bonus
otherwise payable to Executive for or with respect to the calendar year in
which such termination occurs in accordance with Section 3(b) hereof up to
the effective date of such termination and, to the extent not previously
paid, Executive shall be entitled to all bonuses payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar years
prior to the calendar year in which such termination occurs, (C) be entitled
to the benefits set forth in Sections 3(c), 3(d) and 3(e) hereof up to the
effective date of such termination and (D) receive the Termination
Compensation specified in Section 5(d) hereof. For purposes of calculating
Executive's pro rata portion of any bonus pursuant to clause (B) in the
previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
4
<PAGE>
Distribution, a pro rata (based on the number of days in the year) portion of
which Executive shall be entitled to receive, shall be deemed to be 50% of
Executive's then current annual Base Compensation. For purposes of this
Agreement, the "effective date of termination" shall mean the last day on
which Executive is employed with Employer which may be later than the date of
the delivery of any applicable notice of termination.
(ii) WITH CAUSE. Employer may terminate this Agreement with
cause immediately upon written notice to Executive. Employer may elect to
require Executive to continue to perform Executive's duties under this
Agreement for an additional thirty (30) days following notice of termination.
In connection with the termination of Executive's employment pursuant to this
Section 5(a)(ii), Executive shall (A) be paid Executive's Base Compensation
in accordance with Section 3(a) hereof up to the effective date of such
termination, and, to the extent not previously paid, Executive shall be
entitled to any bonuses payable to Executive in accordance with Section 3(b)
hereof for or with respect to any calendar years prior to the calendar year
in which such termination occurs and (B) be entitled to the benefits set
forth in Sections 3(c), 3(d) and 3(e) hereof up to the effective date of such
termination. For purposes of this Section 5(a)(ii), "cause" shall mean (1) a
finding by the Board that Executive has materially harmed Employer, its
business, assets or employees through an act of dishonesty, material conflict
of interest, gross misconduct or willful malfeasance, (2) Executive's
conviction of (or pleading nolo contendere to) a felony, (3) Executive's
failure to perform (which shall not include inability to perform due to
disability) in any material respects Executive's material duties under this
Agreement after written notice specifying the failure and a reasonable
opportunity to cure (it being understood that if Executive's failure to
perform is not of a type requiring a single action to fully cure, then
Executive may commence the cure promptly after such written notice and
thereafter diligently prosecute such cure to completion), (4) the breach by
Executive of any of Executive's material obligations hereunder (other than
those covered by clause (3) above) and the failure of Executive to cure such
breach within thirty (30) days after receipt by Executive of a written notice
of Employer specifying in reasonable detail the nature of the breach, or (5)
Executive's sanction (including restrictions, prohibitions and limitations
agreed to under a consent decree or agreed order) under, or conviction for
violation of, any federal or state securities law, rule or regulation
(provided that in the case of a sanction, such sanction materially impedes or
impairs the ability of Executive to perform Executive's duties and exercise
Executive's responsibilities hereunder in a satisfactory manner).
(iii) DISABILITY. If due to illness, physical or mental
disability, or other incapacity, Executive shall fail during any four (4)
consecutive months to perform the duties required by this Agreement, Employer
may, upon thirty (30) days' written notice to Executive, either terminate
this Agreement or suspend Executive's right to any Base Compensation or
Performance Bonus Distributions without terminating this Agreement. In any
such event, Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise payable to
Executive for or with respect to the calendar year in which such termination
occurs in accordance with Section 3(b) hereof up to the first day of such
four (4) month period and, to the extent not previously paid, Executive shall
be entitled to all bonuses payable to Executive in accordance with Section
3(b) hereof for or with respect to any calendar years prior to the calendar
year in which such termination occurs
5
<PAGE>
and (C) be entitled to the benefits set forth in Sections 3(c) hereof (or the
after-tax cash equivalent) up to the effective date of such termination, and
be entitled to the benefits set forth in Sections 3(d) and 3(e) hereof up to
the date of such termination. For purposes of calculating Executive's pro
rata portion of any bonus pursuant to clause (B) in the previous sentence, if
the termination takes place prior to receipt by Executive of any Performance
Bonus Distribution, the Performance Bonus Distribution, a pro rata portion of
which Executive shall be entitled to receive, shall be deemed to be 50% of
Executive's then current annual Base Compensation. In the event Employer
elects to suspend Executive's right to Base Compensation and Performance
Bonus Distributions, at such time as Executive is able to resume the duties
required under this Agreement, Executive shall be entitled to receive Base
Compensation and Performance Bonus Distributions from the date Executive
commences the performance of such duties following the disability in
accordance with the terms and provisions of this Agreement. This Section
5(a)(iii) shall not limit the entitlement of Executive, Executive's estate or
beneficiaries to any disability or other benefits available to Executive
under any disability insurance or other benefits plan or policy which is
maintained by Employer for Executive's benefit. For purposes of this
Agreement, the "date of disability" shall mean the first day of the
consecutive period during which Executive fails to perform the duties
required by this Agreement due to illness, physical or mental disability or
other incapacity.
(b) TERMINATION BY EXECUTIVE. (i) AFTER CHANGE OF CONTROL.
Executive may terminate this Agreement upon thirty (30) days' written notice
to Employer following any "change of control" of PGRT and a resulting
"diminution event", each as defined below, but in no event later than two
years after the change of control event. Executive shall continue to
perform, at the election of Employer, Executive's duties under this Agreement
for an additional thirty (30) days following notice of termination. In such
event, Executive shall (A) be paid Executive's Base Compensation up to the
effective date of such termination, (B) be paid a pro rata portion of any
bonus otherwise payable to Executive for or with respect to the calendar year
in which such termination occurs in accordance with Section 3(b) hereof up to
the effective date of such termination and, to the extent not previously
paid, Executive shall be entitled to all bonuses payable to Executive in
accordance with Section 3(b) hereof for or with respect to any calendar years
prior to the calendar year in which such termination occurs, (C) be entitled
to the benefits set forth in Sections 3(c), 3(d) and 3(e) hereof up to the
effective date of such termination and (D) receive the Termination
Compensation specified in Section 5(d) hereof. For purposes of calculating
Executive's pro rata portion of any bonus pursuant to clause (B) in the
previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation. For purposes of this Agreement, in the event Employer defaults
in its obligation under Section 9 hereof and, as a consequence thereof,
Executive's employment with Employer (or Employer's successor or assign)
terminates, such termination shall be deemed to be a termination under this
Section 5(b)(i).
For purposes of this Section 5(b)(i), (A) a "change of control" of PGRT
shall be deemed to have occurred if: (1) any person (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), including a "group" as defined in Section 13(d)(3) of
the Exchange Act (but excluding The Prime Group, Inc. or any of its
affiliates or any
6
<PAGE>
group in which The Prime Group, Inc. or any of its affiliates has a
significant interest and excluding a trustee or other fiduciary holding
securities under an employee benefit plan of PGRT), becomes the beneficial
owner of shares of beneficial interests of PGRT having at least fifty percent
(50%) of the total number of votes that may be cast for the election of
trustees of PGRT; (2) the merger or other business combination of PGRT or
Employer, sale of all or substantially all of PGRT's or Employer's assets or
combination of the foregoing transactions (a "Transaction"), other than a
Transaction immediately following which the shareholders of PGRT immediately
prior to the Transaction continue to have a majority of the voting power in
the resulting entity (excluding for this purpose any shareholder, other than
The Prime Group, Inc. and its affiliates, owning directly or indirectly more
than ten percent (10%) of the shares of the other company involved in the
Transaction); or (3) within any twenty-four (24) month period beginning on or
after the date hereof, the persons who were trustees of PGRT immediately
before the beginning of such period (the "Incumbent Trustees") shall cease to
constitute at least a majority of the Board or a majority of the board of
trustees of any successor to PGRT, provided that, any trustee who was not a
trustee as of the date hereof shall be deemed to be an Incumbent Trustee if
such trustee was elected to the Board by, or on the recommendation of or with
the approval of, at least two-thirds of the trustees who then qualified as
Incumbent Trustees either actually or by prior operation of this provision,
unless such election, recommendation or approval was the result of an actual
or threatened election contest of the type contemplated by Regulation 14a-11
promulgated under the Exchange Act or any successor provision; and (B) a
"diminution event" shall mean any material diminution in (1) the duties and
responsibilities of Executive (other than a mere title change, unless the new
title is not President) or (2) the compensation package for Executive.
(ii) WITHOUT GOOD REASON. Executive may terminate this
Agreement and Executive's employment at any time for any reason or for no
reason at all upon thirty (30) days' written notice to Employer, during which
period Executive shall continue to perform Executive's duties under this
Agreement if Employer so elects. In connection with the termination of
Executive's employment pursuant to this Section 5(b)(ii), Executive shall (A)
be paid Executive's Base Compensation in accordance with Section 3(a) hereof
up to the effective date of such termination, and, to the extent not
previously paid, Executive shall be entitled to all bonuses payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such termination occurs
and (B) be entitled to the benefits set forth in Sections 3(c), 3(d) and 3(e)
hereof up to the effective date of such termination.
(c) DEATH. Notwithstanding any other provision of this Agreement,
this Agreement shall terminate on the date of Executive's death. In such
event, Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the date of such death, (B) be paid
a pro rata portion of any bonus otherwise payable to Executive for or with
respect to the calendar year in which such death occurs in accordance with
Section 3(b) hereof up to the effective date of such death and, to the extent
not previously paid, Executive shall be entitled to all bonuses payable to
Executive in accordance with Section 3(b) hereof for or with respect to any
calendar years prior to the calendar year in which such death occurs and (C)
be entitled to the benefits set forth in Sections 3(c) (or the after-tax
cash equivalent), 3(d) and 3(e) hereof up to the date of such death. This
Section 5(c) shall not limit the entitlement of Executive, Executive's estate
or
7
<PAGE>
beneficiaries under any insurance or other benefits plan or policy which
is maintained by Employer for Executive's benefit. For purposes of
calculating Executive's pro rata portion of any bonus pursuant to clause (B)
in the previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation.
(d) TERMINATION COMPENSATION. In the event of a termination of
this Agreement pursuant to Section 5(a)(i) or 5(b)(i) hereof, Employer shall
pay to Executive, within thirty (30) days of termination, an amount in one
lump sum ("Termination Compensation") equal to (i) in the case of a
termination pursuant to Section 5(a)(i) hereof, the product of (A) the sum of
(1) Executive's then current annual Base Compensation and (2) Executive's
last annualized Performance Bonus Distribution times (B) a fraction, the
numerator of which is the number of days between such date of termination and
expiration of the Employment Term (but in no event less than 365) and the
denominator of which is 365 or (ii) in the case of a termination pursuant to
Section 5(b)(i) hereof, two times the sum of (A) Executive's then current
annual Base Compensation and (B) Executive's last annualized Performance
Bonus Distribution. For purposes of calculating Executive's Termination
Compensation, if the termination takes place prior to receipt by Executive of
any Performance Bonus Distribution, the Performance Bonus Distribution
component of the Termination Compensation calculation shall be deemed to be
50% of Executive's then current annual Base Compensation.
6. COVENANTS OF EXECUTIVE.
(a) NO CONFLICTS. Executive represents and warrants that
Executive is not personally subject to any agreement, order or decree which
restricts Executive's acceptance of this Agreement and the performance of
Executive's duties with Employer hereunder.
(b) NON-COMPETITION. In return for the performance of the
management duties described in Section 1 hereof, during the Employment Term,
and for a period of two years after any applicable Section 5 termination
event, Executive shall not, directly or indirectly, attempt to hire or hire
any employee or client of Employer or solicit or attempt to lease space to or
lease space to any tenant of Employer. Notwithstanding the foregoing,
nothing herein shall prohibit Executive from owning 5% or less of any
securities of a competitor engaged in the same Business if such securities
are listed on a nationally recognized securities exchange or traded
over-the-counter on the National Association of Securities Dealers Automated
Quotation System or otherwise.
(c) NON-DISCLOSURE. During the Employment Term and for a period
of two years after the expiration or termination of this Agreement for any
reason, Executive shall not disclose or use, except in the pursuit of the
Business for or on behalf of Employer, any Trade Secret (as hereinafter
defined) of Employer, whether such Trade Secret is in Executive's memory or
embodied in writing or other physical form. For purposes of this Section
6(c), "Trade Secret" means any information which derives independent economic
value, actual or potential, with respect to Employer from not being generally
known to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure or use and is the
subject of efforts to
8
<PAGE>
maintain its secrecy that are reasonable under the circumstances, including,
but not limited to, trade secrets, customer lists, sales records and other
proprietary commercial information. Said term, however, shall not include
general "know-how" information acquired by Executive prior to or during the
course of Executive's service which could have been obtained by him from
public sources without the expenditure of significant time, effort and
expense which does not relate to Employer.
(d) BUSINESS OPPORTUNITIES. During the Employment Term, Executive
agrees to bring to Employer any and all business opportunities which come to
Executive's attention for the acquisition, development, management, leasing
or marketing of real estate for industrial or office use. In the event that
Employer elects not to participate or take advantage of any such business
opportunity, upon termination of Executive's employment with Employer for any
reason, Executive shall be free to pursue such business opportunity, provided
that such business opportunity does not cause any tenant to relocate from a
facility owned and/or operated by Employer, PGRT or any of their respective
subsidiaries.
(e) RETURN OF DOCUMENTS. Upon termination of Executive's
services with Employer, Executive shall return all originals and copies of
books, records, documents, customer lists, sales materials, tapes, keys,
credit cards and other tangible property of Employer within Executive's
possession or under Executive's control.
(f) EQUITABLE RELIEF. In the event of any breach by Executive of
any of the covenants contained in this Section 6, it is specifically
understood and agreed that Employer shall be entitled, in addition to any
other remedy which it may have, to equitable relief by way of injunction, an
accounting or otherwise and to notify any employer or prospective employer of
Executive as to the terms and conditions hereof.
(g) ACKNOWLEDGMENT. Executive acknowledges that Executive will be
directly and materially involved as a senior executive in all important
policy and operational decisions of Employer. Executive further acknowledges
that the scope of the foregoing restrictions has been specifically bargained
between Employer and Executive, each being fully informed of all relevant
facts. Accordingly, Executive acknowledges that the foregoing restrictions
of Section 6 are fair and reasonable, are minimally necessary to protect
Employer, its other partners and the public from the unfair competition of
Executive who, as a result of Executive's performance of services on behalf
of Employer, will have had unlimited access to the most confidential and
important information of Employer, its business and future plans. Executive
furthermore acknowledges that no unreasonable harm or injury will be suffered
by him from enforcement of the covenants contained herein and that Executive
will be able to earn a reasonable livelihood following termination of
Executive's services notwithstanding enforcement of the covenants contained
herein.
7. PRIOR AGREEMENTS. This Agreement, together with the Stock
Incentive Plan, supersedes and is in lieu of any and all other employment
arrangements between Executive and Employer or its predecessor or any
subsidiary and any and all such employment agreements and arrangements are
hereby terminated and deemed of no further force or effect.
9
<PAGE>
8. ASSIGNMENT. Neither this Agreement nor any rights or duties of
Executive hereunder shall be assignable by Executive and any such purported
assignment by him shall be void. Employer may assign all or any of its
rights hereunder provided that substantially all of the assets of Employer
are also transferred to the same party.
9. SUCCESSOR TO EMPLOYER. Employer will require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all the business and/or assets of
Employer, as the case may be, by agreement in form and substance reasonably
satisfactory to Executive, expressly, absolutely and unconditionally to
assume and agree to perform this Agreement in the same manner and to the same
extent that Employer would be required to perform it if no such succession or
assignment had taken place. Any failure of Employer to obtain such agreement
prior to the effectiveness of any such succession or assignment shall be a
material breach of this Agreement giving Executive the right to terminate
this Agreement, in which case Executive shall be entitled to receive the
compensation specified in Section 5(b)(i) hereof. This Agreement shall inure
to the benefit of and be enforceable by Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amounts are still
payable to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
Executive's devisee, legatee or other designee or, if there be no such
designee, to Executive's estate.
10. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent
by courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Executive, to:
Kevork M. Derderian
680 Leland Court
Lake Forest, IL 60045
WITH A COPY TO:
J. Steve Santacruz
Continental Offices, Ltd.
2700 River Road, Suite 109
Des Plaines, IL 60018
10
<PAGE>
(b) if to Employer, to:
Prime Group Realty, L.P.
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: Chief Executive Officer
WITH A COPY TO:
Prime Group Realty, L.P.
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: General Counsel
AND TO:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
Attn: Wayne D. Boberg
Any notice, claim, demand, request or other communication given as provided
in this Section 10, if delivered personally, shall be effective upon
delivery; and if given by courier, shall be effective one (1) business day
after deposit with the courier if next day delivery is guaranteed; and if
given by certified mail, shall be effective three (3) business days after
deposit in the mail. Either party may change the address at which it is to
be given notice by giving written notice to the other party as provided in
this Section 10.
11. AMENDMENT. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. WAIVER OF BREACH. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by either party.
13. SEVERABILITY. Employer and Executive each expressly agree and
contract that it is not the intention of either party to violate any public
policy, statutory or common law, and that if any covenant, sentence,
paragraph, clause or combination of the same of this Agreement (a
"Contractual Provision") is in violation of the law of any state where
applicable, such Contractual Provision shall be void in the jurisdictions
where it is unlawful, and the remainder of such Contractual Provision, if
any, and the remainder of this Agreement shall remain binding on the parties
such that such Contractual Provision shall be binding only to the extent that
such Contractual Provision is lawful or may be lawfully performed under then
applicable laws. In the event that any part of any Contractual
11
<PAGE>
Provision of this Agreement is determined by a court of competent
jurisdiction to be overly broad thereby making the Contractual Provision
unenforceable, the parties hereto agree, and it is their desire, that such
court shall substitute a judicially enforceable limitation in its place, and
that the Contractual Provision, as so modified, shall be binding upon the
parties as if originally set forth herein.
14. INDEMNIFICATION BY EXECUTIVE. Executive shall indemnify Employer
for any and all damages, costs and expenses resulting from any material harm
to Employer, its business, assets or employees through an act of dishonesty,
material conflict of interest, gross misconduct or willful malfeasance by
Executive. Executive also shall indemnify Employer for any and all damages,
costs and expenses resulting from Executive's acts of omission constituting
reckless disregard of Executive's duties to Employer following notice thereof
by Employer after it becomes aware of such conduct and Executive's failure to
so cure within thirty (30) days.
15. GOVERNING LAW. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of
Illinois, exclusive of the conflict of laws provisions of the State of
Illinois.
[signature page follows]
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EMPLOYER:
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust,
its General Partner
By: /s/ Jeffrey A. Patterson
-----------------------------
Jeffrey A. Patterson
Title: Executive VP
EXECUTIVE:
/s/ Kevork M. Derderian
-----------------------------
Kevork M. Derderian
DOCUMENT NUMBER: 230515.5
March 23, 1998
13
<PAGE>
Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this
17th day of November, 1997 by and between Prime Group Realty, L.P., a Delaware
limited partnership ("Employer"), and Edward S. Hadesman, an individual
domiciled in the State of Illinois ("Executive").
W I T N E S S E T H
A. Employer is engaged primarily in the ownership, management, leasing,
marketing, acquisition, development and construction of office and industrial
real estate facilities throughout the United States.
B. Employer believes that it would benefit from the application of
Executive's particular and unique skill, experience, and background to the
development of industrial properties and the management thereof.
C. Executive wishes to commit himself to serve Employer in the position
set forth herein on the terms herein provided.
D. The parties wish by this Agreement to set forth the terms and
conditions of the employment relationship between Employer and Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein set forth, and for other good and valuable consideration, Employer and
Executive hereby agree as follows:
1. EMPLOYMENT AND DUTIES. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Executive, and Executive agrees to
be employed by Employer, as the President of Employer's Industrial Division on
the terms and conditions provided in this Agreement. Executive shall conduct,
operate, manage and promote the business and business concept of Employer, and
exercise such other powers and authority as are provided by the Partnership
Agreement of Employer ("Partnership Agreement"). The Chief Executive Officer or
the President of Employer may from time to time further define and clarify
Executive's duties and services hereunder or under the Partnership Agreement as
President of Employer's Industrial Division, which principal duties will include
the development, management, leasing, marketing and acquisition of industrial
properties. Executive agrees to devote Executive's best efforts and
substantially all of Executive's business time, attention, energy and skill to
perform Executive's duties as President of Employer's Industrial Division.
Employer agrees to maintain the suburban office currently located at 3184
MacArthur Boulevard, Northbrook, Illinois or such other suburban location as may
be mutually agreeable to Employer and Executive. Employer represents to
Executive that it currently intends to engage in the acquisition and development
of industrial properties.
<PAGE>
2. TERM. The initial term of this Agreement (the "Initial Term") shall
commence on November 17, 1997 and expire on November 17, 2000, provided,
however, this Agreement shall automatically extend for one year terms following
the Initial Term (each a "Renewal Term", together with the Initial Term, the
"Employment Term"), unless prior to six (6) months, in the case of a non-renewal
by Employer, or prior to thirty (30) days, in the case of a non-renewal by
Executive, before the end of the Initial Term or any Renewal Term, as
applicable, either party shall give the other written notice of its intention to
terminate this Agreement.
3. COMPENSATION AND RELATED MATTERS. (a) BASE SALARY. As compensation
for performing the services required by this Agreement during the Employment
Term, Employer shall pay to Executive an annual salary of no less than Two
Hundred Thousand Dollars ($200,000) ("Base Compensation"), payable in accordance
with the general policies and procedures for payment of salaries to its
executive personnel maintained, from time to time, by Employer (but no less
frequently than monthly), subject to withholding for applicable federal, state,
and local taxes. Increases in Base Compensation, if any, shall be determined by
the Compensation Committee (the "Committee") of the Board of Trustees (the
"Board") of Prime Group Realty Trust ("PGRT"), the general partner of Employer,
based on periodic reviews of Executive's performance conducted on at least an
annual basis.
(b) BONUS. In addition to Base Compensation, the Board and the
Committee in its sole and absolute discretion may, but in no event shall be
obligated to, authorize the payment of a cash bonus (a "Performance Bonus
Distribution") to Executive based upon achievement of such partnership and
individual performance goals and objectives as may be established or determined
by the Board or the Committee from time to time which shall be determined in
part by (i) the profitability of industrial properties acquired or developed by
Employer for which Executive had primary responsibility and (ii) the
profitability or success of PGRT.
(c) BENEFITS. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Executive and
Executive's eligible dependents shall have the right to participate in the
medical and dental benefit plan to be established by Employer (which may include
contributions by Executive) and in any other retirement, pension, insurance,
health or other benefit plan or program that has been or is hereafter adopted by
Employer (or in which Employer participates), as such plans and programs may be
amended or modified from time to time by Employer, according to the terms of
such plan or program with all the benefits, rights and privileges as are enjoyed
by any other executive officers of Employer. Employer expects to have in place
a life insurance program in which Executive will be entitled to participate. If
the participation of Executive would adversely affect the qualification of a
plan intended to be qualified under Section 401(a) of the Internal Revenue Code
as the same may be amended from time to time (the "Code"), Employer shall have
the right to exclude Executive from that plan in return for Executive's
participation in (i) a nonqualified deferred compensation plan or (ii) an
arrangement providing substantially comparable benefits under a plan that is
either a qualified or nonqualified under the Code at Employer's option.
Employer agrees to provide Executive, at Employer's cost and expense, a
membership in the Executive Sports and Fitness Center located at 77 W. Wacker
Drive, Chicago, Illinois.
<PAGE>
(d) EXPENSES. Executive shall be reimbursed, subject to Employer's
receipt of invoices or similar records as Employer may reasonably request in
accordance with its policies and procedures, as such policies and procedures may
be amended or modified from time to time by Employer, for all reasonable and
necessary expenses incurred by Executive in the performance of Executive's
duties hereunder, including expenses for business entertainment and meals
(whether in or out of town) and gas for business travel, but excluding
automobile insurance.
(e) VACATIONS. During the Employment Term, Executive shall be
entitled to vacation in accordance with Employer's practices, as such practices
may be amended or modified from time to time by Employer, provided that
Executive shall be entitled to at least three (3) weeks paid vacation in each
full calendar year. Executive may accrue unused vacation time if not used in
any calendar year or years, however, the maximum cumulative amount of vacation
time that Executive may accrue and carry over to the next year is two (2) weeks.
Executive shall be entitled to a payment for any vacation time which has accrued
but has not been used as of the date of the termination of Executive's
employment with Employer, unless Executive's employment is terminated pursuant
to Section 5(a)(ii) hereof.
(f) AUTOMOBILE. During the Employment Term, Employer shall pay
Executive an automobile allowance of $1350 per month.
4. SHARE OPTIONS. PGRT has established a share incentive plan (the
"Share Incentive Plan"). The Share Incentive Plan initially provides, among
other things, for the issuance from time to time to certain officers, directors
and other employees of PGRT and Employer, including Executive, of share options.
Pursuant to the Share Incentive Plan, on the date hereof, PGRT shall grant to
Executive 70,000 share options ("Options") that will have such terms and
conditions as are set forth in the Share Incentive Plan and the Share Option
Agreement to be entered into between PGRT and Executive. Such Options granted
to Executive shall vest immediately upon the death or disability of Executive or
upon termination of this Agreement and Executive's employment for any reason
other than a termination for cause by Employer. In the case of a termination
for cause, all unvested Options shall be forfeited by Executive, but Executive
shall have the right to exercise within the time period provided for in the
Share Incentive Plan all Options vested prior to such termination for cause.
5. TERMINATION AND TERMINATION BENEFITS. (a) TERMINATION BY EMPLOYER.
(i) WITHOUT CAUSE. Employer may terminate this Agreement and Executive's
employment at any time for any reason or for no reason at all upon thirty (30)
days' prior written notice to Executive following notice of termination. In
connection with the termination of Executive's employment pursuant to this
Section 5(a)(i), Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise payable to
Executive for or with respect to the calendar year in which such termination
occurs in accordance with Section 3(b) hereof up to the effective date of such
termination and, to the extent not previously paid, Executive shall be entitled
to all bonuses payable to Executive in accordance with Section 3(b) hereof for
or with respect to any calendar years prior to the calendar year in which such
termination occurs, (C) be entitled to the benefits set forth in Sections 3(c),
3(d),
3
<PAGE>
3(e) and 3(f) hereof up to the effective date of such termination and (D)
receive the Termination Compensation specified in Section 5(d) hereof. For
purposes of calculating Executive's pro rata portion of any bonus pursuant to
clause (B) in the previous sentence, if the termination takes place prior to
receipt by Executive of any Performance Bonus Distribution, the Performance
Bonus Distribution, a pro rata (based on the number of days in the year)
portion of which Executive shall be entitled to receive, shall be deemed to
be 50% of Executive's then current annual Base Compensation.
(ii) WITH CAUSE. Employer may terminate this Agreement with
cause immediately upon written notice to Executive. Employer may elect to
require Executive to continue to perform Executive's duties under this Agreement
for an additional thirty (30) days following notice of termination. In
connection with the termination of Executive's employment pursuant to this
Section 5(a)(ii), Executive shall (A) be paid Executive's Base Compensation in
accordance with Section 3(a) hereof up to the effective date of such
termination, and, to the extent not previously paid, Executive shall be entitled
to any bonuses payable to Executive in accordance with Section 3(b) hereof for
or with respect to any calendar years prior to the calendar year in which such
termination occurs and (B) be entitled to the benefits set forth in Sections
3(c), 3(d), 3(e) and 3(f) hereof up to the effective date of such termination.
For purposes of this Section 5(a)(ii), "cause" shall mean (A) a finding by the
Board that Executive has materially harmed Employer, its business, assets or
employees through an act of dishonesty, material conflict of interest, gross
misconduct or willful malfeasance, (B) Executive's conviction of (or pleading
nolo contendere to) a felony, (C) Executive's failure to perform (which shall
not include inability to perform due to disability) in any material respects
Executive's material duties under this Agreement after written notice specifying
the failure and a reasonable opportunity to cure (it being understood that if
Executive's failure to perform is not of a type requiring a single action to
fully cure, then Executive may commence the cure promptly after such written
notice and thereafter diligently prosecute such cure to completion), (D) the
breach by Executive of any of Executive's material obligations hereunder (other
than those covered by clause (C) above) and the failure of Executive to cure
such breach within thirty (30) days after receipt by Executive of a written
notice of Employer specifying in reasonable detail the nature of the breach, or
(E) Executive's sanction (including restrictions, prohibitions and limitations
agreed to under a consent decree or agreed order) under, or conviction for
violation of, any federal or state securities law, rule or regulation (provided
that in the case of a sanction, such sanction materially impedes or impairs the
ability of Executive to perform Executive's duties and exercise Executive's
responsibilities hereunder in a satisfactory manner).
(iii) DISABILITY. If due to illness, physical or mental
disability, or other incapacity, Executive shall fail during any four (4)
consecutive months to perform the duties required by this Agreement, Employer
may, upon thirty (30) days' written notice to Executive, either terminate this
Agreement or suspend Executive's right to any Base Compensation or Performance
Bonus Distributions without terminating this Agreement. In any such event,
Executive shall (A) be paid Executive's Base Compensation in accordance with
Section 3(a) hereof up to the effective date of such termination, (B) be paid a
pro rata portion of any bonus otherwise payable to Executive for or with respect
to the calendar year in which such disability occurs in accordance with Section
3(b) hereof up to the first day of such four (4) month period and, to the extent
not previously paid,
4
<PAGE>
Executive shall be entitled to all bonuses payable to Executive in accordance
with Section 3(b) hereof for or with respect to any calendar years prior to
the calendar year in which such termination occurs and (C) be entitled to the
benefits set forth in Sections 3(c) hereof (or the after-tax cash equivalent)
up to the effective date of such termination, and be entitled to the benefits
set forth in Sections 3(d), 3(e), and 3(f) hereof up to the date of such
termination. For purposes of calculating Executive's pro rata portion of any
bonus pursuant to clause (B) in the previous sentence, if the termination
takes place prior to receipt by Executive of any Performance Bonus
Distribution, the Performance Bonus Distribution, a pro rata portion of which
Executive shall be entitled to receive, shall be deemed to be 50% of
Executive's then current annual Base Compensation. In the event Employer
elects to suspend Executive's right to Base Compensation and Performance
Bonus Distributions, at such time as Executive is able to resume the duties
required under this Agreement, Executive shall be entitled to receive Base
Compensation and Performance Bonus Distributions from the date Executive
commences the performance of such duties following the disability in
accordance with the terms and provisions of this Agreement. This Section
5(a)(iii) shall not limit the entitlement of Executive, Executive's estate or
beneficiaries to any disability or other benefits available to Executive
under any disability insurance or other benefits plan or policy which is
maintained by Employer for Executive's benefit. For purposes of this
Agreement, the "date of disability" shall mean the first day of the
consecutive period during which Executive fails to perform the duties
required by this Agreement due to illness, physical or mental disability or
other incapacity.
(b) TERMINATION BY EXECUTIVE. (i) AFTER CHANGE OF CONTROL.
Executive may terminate this Agreement upon thirty (30) days' written notice to
Employer following any "change of control" of Employer and a resulting
"diminution event", each as defined below, but in no event later than two years
after the change of control event. Executive shall continue to perform, at the
election of Employer, Executive's duties under this Agreement for an additional
thirty (30) days following notice of termination. In such event, Executive
shall (A) be paid Executive's Base Compensation up to the effective date of such
termination, (B) be paid a pro rata portion of any bonus otherwise payable to
Executive for or with respect to the calendar year in which such termination
occurs in accordance with Section 3(b) hereof up to the effective date of such
termination and, to the extent not previously paid, Executive shall be entitled
to all bonuses payable to Executive in accordance with Section 3(b) hereof for
or with respect to any calendar years prior to the calendar year in which such
termination occurs, (C) be entitled to the benefits set forth in Sections 3(c),
3(d), 3(e) and 3(f) hereof up to the effective date of such termination and (D)
receive an amount equal to two times the sum of (1) Executive's then current
annual Base Compensation and (2) Executive's last annualized Performance Bonus
Distribution (if the termination takes place prior to receipt by Executive of
any Performance Bonus Distribution, the Performance Bonus Distribution shall be
deemed to be 50% of Executive's then current Base Compensation). For purposes
of calculating Executive's pro rata portion of any bonus pursuant to clause (B)
in the previous sentence, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation. For purposes of this Agreement, in the event Employer defaults in
its obligation under Section 9 hereof and, as a consequence thereof, Executive's
employment with Employer (or Employer's successor or assign) terminates, such
termination shall be deemed to be a termination under this Section 5(b)(i).
5
<PAGE>
For purposes of this Section 5(b)(i), (A) a "change of control" of Employer
shall be deemed to have occurred if: (1) any person (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), including a "group" as defined in Section 13(d)(3) of the
Exchange Act (but excluding The Prime Group, Inc. or any of its affiliates or
any group in which The Prime Group, Inc. or any of its affiliates has a
significant interest and excluding a trustee or other fiduciary holding
securities under an employee benefit plan of Employer), becomes the beneficial
owner of shares of common stock of Employer having at least fifty percent (50%)
of the total number of votes that may be cast for the election of directors of
Employer; (2) the merger or other business combination of Employer, sale of all
or substantially all of Employer's assets or combination of the foregoing
transactions (a "Transaction"), other than a Transaction immediately following
which the shareholders of Employer immediately prior to the Transaction continue
to have a majority of the voting power in the resulting entity (excluding for
this purpose any shareholder, other than The Prime Group, Inc. and its
affiliates, owning directly or indirectly more than ten percent (10%) of the
shares of the other company involved in the Transaction); or (3) within any
twenty-four (24) month period beginning on or after the date hereof, the persons
who were directors of Employer immediately before the beginning of such period
(the "Incumbent Directors") shall cease to constitute at least a majority of the
Board or a majority of the board of directors of any successor to Employer,
provided that, any director who was not a director as of the date hereof shall
be deemed to be an Incumbent Director if such director was elected to the Board
by, or on the recommendation of or with the approval of, at least two-thirds of
the directors who then qualified as Incumbent Directors either actually or by
prior operation of this provision, unless such election, recommendation or
approval was the result of an actual or threatened election contest of the type
contemplated by Regulation 14a-11 promulgated under the Exchange Act or any
successor provision; and (B) a "diminution event" shall mean any material
diminution in (1) the duties and responsibilities of Executive (other than a
mere title change, unless the new title is not President) or (2) the
compensation package for Executive.
(ii) WITHOUT GOOD REASON. Executive may terminate this
Agreement and Executive's employment at any time for any reason or for no reason
at all upon thirty (30) days' written notice to Employer, during which period
Executive shall continue to perform Executive's duties under this Agreement if
Employer so elects. In connection with the termination of Executive's
employment pursuant to this Section 5(b)(ii), Executive shall (A) be paid
Executive's Base Compensation in accordance with Section 3(a) hereof up to the
effective date of such termination, and, to the extent not previously paid,
Executive shall be entitled to all bonuses payable to Executive in accordance
with Section 3(b) hereof for or with respect to any calendar years prior to the
calendar year in which such termination occurs and (B) be entitled to the
benefits set forth in Sections 3(c), 3(d), 3(e) and 3(f) hereof up to the
effective date of such termination.
(c) DEATH. Notwithstanding any other provision of this Agreement,
this Agreement shall terminate on the date of Executive's death. In such event,
Executive shall (A) be paid Executive's Base Compensation in accordance with
Section 3(a) hereof up to the date of such death, (B) be paid a pro rata portion
of any bonus otherwise payable to Executive for or with respect to the calendar
year in which such death occurs in accordance with Section 3(b) hereof up to the
6
<PAGE>
effective date of such death and, to the extent not previously paid, Executive
shall be entitled to all bonuses payable to Executive in accordance with Section
3(b) hereof for or with respect to any calendar years prior to the calendar year
in which such death occurs and (C) be entitled to the benefits set forth in
Sections 3(c) (or the after-tax cash equivalent), 3(d), 3(e) and 3(f) hereof up
to the date of such death. This Section 5(c) shall not limit the entitlement of
Executive, Executive's estate or beneficiaries under any insurance or other
benefits plan or policy which is maintained by Employer for Executive's benefit.
For purposes of calculating Executive's pro rata portion of any bonus pursuant
to clause (B) in the previous sentence, if the termination takes place prior to
receipt by Executive of any Performance Bonus Distribution, the Performance
Bonus Distribution, a pro rata portion of which Executive shall be entitled to
receive, shall be deemed to be 50% of Executive's then current annual Base
Compensation.
(d) TERMINATION COMPENSATION. In the event of a termination of this
Agreement pursuant to Section 5(a)(i) hereof, Employer shall pay to Executive,
within thirty (30) days of termination, an amount in one lump sum ("Termination
Compensation") equal to the product of (i) the sum of (a) Executive's then
current annual Base Compensation and (b) Executive's last annualized Performance
Bonus Distribution times (ii) a fraction, the numerator of which is the number
of days between such date of termination and expiration of the Employment Term,
and the denominator of which is 365. For purposes of calculating Executive's
Termination Compensation, if the termination takes place prior to receipt by
Executive of any Performance Bonus Distribution, the Performance Bonus
Distribution component of the Termination Compensation calculation shall be
deemed to be 50% of Executive's then current annual Base Compensation.
6. COVENANTS OF EXECUTIVE.
(a) NO CONFLICTS. Executive represents and warrants that Executive
is not personally subject to any agreement, order or decree which restricts
Executive's acceptance of this Agreement and the performance of Executive's
duties with Employer hereunder.
(b) NON-COMPETITION. In return for the performance of the
management duties described in Section 1 hereof, during the Employment Term,
Executive shall not, directly or indirectly, in any capacity whatsoever,
either on Executive's own behalf or on behalf of any other person or entity
with whom Executive may be employed or associated, own any interest in,
participate or engage in the day-to-day supervision, management, development,
marketing or operation of any office or industrial real estate facilities or
such other business as Employer may be actively engaged in during the
Employment Term (the "Business"). Furthermore, for a period of one year
after any applicable Section 5 termination event, Executive shall not,
directly or indirectly, solicit, attempt to hire or hire any employee or
client of Employer or solicit or attempt to lease space to or lease space to
any tenant of Employer. Notwithstanding the foregoing, nothing herein shall
prohibit Executive from (i) owning 5% or less of any securities of a
competitor engaged in the same Business if such securities are listed on a
nationally recognized securities exchange or traded over-the-counter on the
National Association of Securities Dealers Automated Quotation System or
otherwise, (ii) owning that certain 69-acre semi-improved industrial park
located in Libertyville, Illinois, the office/industrial building located at
901 Technology Way, Libertyville Business Park,
7
<PAGE>
Libertyville, Illinois, and any other real property not purchased by Employer
under the terms of the Contribution Agreement between Executive, certain
limited partnership controlled by Executive and Employer, (iii) soliciting,
attempting to hire or hiring Tucker Magid and (iv) responding to contacts
initiated by those tenants identified in Exhibit A attached hereto which
occupy facilities owned and/or operated by Edward Hadesman and Executive (the
"Tenants") and entering into leasing transactions with such Tenants provided
that such transactions do not result in such Tenants relocating from a
facility owned and/or operated by Employer, PGRT, or any of their respective
subsidiaries. Executive shall be entitled to manage the building located at
901 Technology Way, Libertyville Business Park, Libertyville, Illinois, prior
to their acquisition by PGRT, on the business time of Employer and Employer
or PGRT or any of their respective subsidiaries will not receive any fees
with respect to such property.
(c) NON-DISCLOSURE. During the Employment Term and for a period
of two years after the expiration or termination of this Agreement for any
reason, Executive shall not disclose or use, except in the pursuit of the
Business for or on behalf of Employer, any Trade Secret (as hereinafter
defined) of Employer, whether such Trade Secret is in Executive's memory or
embodied in writing or other physical form. For purposes of this Section
6(c), "Trade Secret" means any information which derives independent economic
value, actual or potential, with respect to Employer from not being generally
known to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure or use and is the
subject of efforts to maintain its secrecy that are reasonable under the
circumstances, including, but not limited to, trade secrets, customer lists,
sales records and other proprietary commercial information. Said term,
however, shall not include general "know-how" information acquired by
Executive prior to or during the course of Executive's service which could
have been obtained by him from public sources without the expenditure of
significant time, effort and expense which does not relate to Employer.
(d) BUSINESS OPPORTUNITIES. During the Employment Term, Executive
agrees to bring to Employer any and all business opportunities which come to
Executive's attention for the acquisition, development, management, leasing or
marketing of real estate for industrial or office use. In the event that
Employer elects not to participate or take advantage of any such business
opportunity, upon termination of Executive's employment with Employer for any
reason, Executive shall be free to pursue such business opportunity, provided
that such business opportunity does not cause any tenant to relocate from a
facility owned and/or operated by Employer, PGRT or any of their respective
subsidiaries.
(e) RETURN OF DOCUMENTS. Upon termination of Executive's services
with Employer, Executive shall return all originals and copies of books,
records, documents, customer lists, sales materials, tapes, keys, credit cards
and other tangible property of Employer within Executive's possession or under
Executive's control.
(f) EQUITABLE RELIEF. In the event of any breach by Executive of any
of the covenants contained in this Section 6, it is specifically understood and
agreed that Employer shall be entitled, in addition to any other remedy which it
may have, to equitable relief by way of injunction, an accounting or otherwise
and to notify any employer or prospective employer of Executive as to
8
<PAGE>
the terms and conditions hereof.
(g) ACKNOWLEDGMENT. Executive acknowledges that Executive will be
directly and materially involved as a senior executive in all important policy
and operational decisions of Employer. Executive further acknowledges that the
scope of the foregoing restrictions has been specifically bargained between
Employer and Executive, each being fully informed of all relevant facts.
Accordingly, Executive acknowledges that the foregoing restrictions of Section
6 are fair and reasonable, are minimally necessary to protect Employer, its
other partners and the public from the unfair competition of Executive who, as
a result of Executive's performance of services on behalf of Employer, will have
had unlimited access to the most confidential and important information of
Employer, its business and future plans. Executive furthermore acknowledges
that no unreasonable harm or injury will be suffered by him from enforcement of
the covenants contained herein and that Executive will be able to earn a
reasonable livelihood following termination of Executive's services
notwithstanding enforcement of the covenants contained herein.
7. PRIOR AGREEMENTS. This Agreement, together with the Stock Incentive
Plan, supersedes and is in lieu of any and all other employment arrangements
between Executive and Employer or its predecessor or any subsidiary and any and
all such employment agreements and arrangements are hereby terminated and deemed
of no further force or effect.
8. ASSIGNMENT. Neither this Agreement nor any rights or duties of
Executive hereunder shall be assignable by Executive and any such purported
assignment by him shall be void. Employer may assign all or any of its rights
hereunder provided that substantially all of the assets of Employer are also
transferred to the same party.
9. SUCCESSOR TO EMPLOYER. Employer will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of Employer, as the case may
be, by agreement in form and substance reasonably satisfactory to Executive,
expressly, absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession or assignment had taken place. Any
failure of Employer to obtain such agreement prior to the effectiveness of any
such succession or assignment shall be a material breach of this Agreement
giving Executive the right to terminate this Agreement, in which case Executive
shall be entitled to receive the compensation specified in Section 5(a)(i)
hereof. This Agreement shall inure to the benefit of and be enforceable by
Executive's personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amounts are still payable to Executive hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee or other designee or, if there be
no such designee, to Executive's estate.
10. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered, sent by
courier or by certified mail, postage or delivery charges prepaid, to the
following addresses:
9
<PAGE>
(a) if to Executive, to:
Edward S. Hadesman
3184 MacArthur Blvd.
Northbrook, IL 60062
WITH A COPY TO:
Shefsky & Froelich Ltd.
444 N. Michigan Avenue
Suite 2500
Chicago, IL 60611
Attn: James M. Teper
(b) if to Employer, to:
Prime Group Realty, L.P.
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: Chief Executive Officer
WITH A COPY TO:
Prime Group Realty, L.P.
Suite 3900
77 West Wacker Drive
Chicago, IL 60601
Attn: General Counsel
AND TO:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
Attn: Wayne D. Boberg
Any notice, claim, demand, request or other communication given as provided in
this Section 10, if delivered personally, shall be effective upon delivery; and
if given by courier, shall be effective one (1) business day after deposit with
the courier if next day delivery is guaranteed; and if given by certified mail,
shall be effective three (3) business days after deposit in the mail. Either
party may change the address at which it is to be given notice by giving written
notice to the other party as provided in this Section 10.
10
<PAGE>
11. AMENDMENT. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. WAIVER OF BREACH. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
13. SEVERABILITY. Employer and Executive each expressly agree and
contract that it is not the intention of either party to violate any public
policy, statutory or common law, and that if any covenant, sentence, paragraph,
clause or combination of the same of this Agreement (a "Contractual Provision")
is in violation of the law of any state where applicable, such Contractual
Provision shall be void in the jurisdictions where it is unlawful, and the
remainder of such Contractual Provision, if any, and the remainder of this
Agreement shall remain binding on the parties such that such Contractual
Provision shall be binding only to the extent that such Contractual Provision is
lawful or may be lawfully performed under then applicable laws. In the event
that any part of any Contractual Provision of this Agreement is determined by a
court of competent jurisdiction to be overly broad thereby making the
Contractual Provision unenforceable, the parties hereto agree, and it is their
desire, that such court shall substitute a judicially enforceable limitation in
its place, and that the Contractual Provision, as so modified, shall be binding
upon the parties as if originally set forth herein.
14. INDEMNIFICATION BY EXECUTIVE. Executive shall indemnify Employer for
any and all damages, costs and expenses resulting from any material harm to
Employer, its business, assets or employees through an act of dishonesty,
material conflict of interest, gross misconduct or willful malfeasance by
Executive. Executive also shall indemnify Employer for any and all damages,
costs and expenses resulting from Executive's acts of omission constituting
reckless disregard of Executive's duties to Employer following notice thereof by
Employer after it becomes aware of such conduct and Executive's failure to so
cure within thirty (30) days.
15. INDEMNIFICATION BY EMPLOYER AND INSURANCE. The Partnership Agreement
will contain normal and customary indemnification provisions whereby Employer
agrees to indemnify the partners and officers of Employer, including Executive.
In addition, during the Employment Term, Employer shall maintain appropriate D&O
insurance coverage in such amount as may be determined by Employer in Employer's
reasonable business judgment for the benefit of Employer's partners and
officers, including Executive.
16. GOVERNING LAW. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of Illinois,
exclusive of the conflict of laws provisions of the State of Illinois.
[signature page follows]
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EMPLOYER:
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust.,
its General Partner
By: /s/ Jeffrey A. Patterson
----------------------------
Title: Executive Vice President
------------------------------
EXECUTIVE:
/s/ Edward S. Hadesman
- -------------------------------
Edward S. Hadesman
12
<PAGE>
EXHIBIT A
TENANTS
1. Rank Video Services America, Inc.
2. Motorola, Inc.
3. Major Reflector/National Service Industries
4. Arlington Industries
5. Laboratory Corporation of America
6. Northern Illinois Clinical Laboratories
7. Lionstone International
8. Sun Space Designs
9. Production Associates
10. Moore USA, Inc.
13
<PAGE>
Exhibit 10.13
EXECUTION COPY
OPTION AGREEMENT
by and between
PRIME GROUP REALTY, L.P.,
a Delaware limited partnership
and
300 N. LASALLE, L.L.C.,
an Illinois limited liability company
Dated as of: November 17, 1997
<PAGE>
OPTION AGREEMENT
THIS OPTION AGREEMENT is made as of the 17th day of November, 1997, by and
between 300 N. LASALLE, L.L.C., an Illinois liability company ("SELLER") and
PRIME GROUP REALTY, L.P., a Delaware limited partnership ("PURCHASER").
WITNESSETH:
WHEREAS, Seller, an affiliate of The Prime Group, Inc., an Illinois
corporation ("PGI"), is the fee owner of the Parcel (as hereinafter defined)
consisting of approximately 58,000 square feet of land located at 300 North
LaSalle Street in Chicago, Illinois; and
WHEREAS, on the date hereof, Purchaser is acquiring from PGI and certain of
its affiliates interests in certain buildings, facilities and parcels of land;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
ARTICLE I
DEFINITIONS
1.01 CERTAIN DEFINITIONS. When used herein, the following terms shall
have the respective meanings set forth opposite each such term:
"AGREEMENT" means this Option Agreement, including the Exhibits attached
hereto, which are by this reference incorporated herein and made a part hereof.
"CLOSING" means the closing of the sale and purchase of the Parcel as
evidenced by the delivery of the Deed thereto by Seller to Purchaser and the
payment of the Purchase Price to Seller.
"DEED" means a special warranty deed to be delivered by Seller to Purchaser
at the Closing, conveying the Parcel to Purchaser subject only to the Permitted
Title Exceptions.
"LEGAL REQUIREMENTS" means all laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, orders, directions and requirements of all governments and
governmental authorities (including any local Board of Fire Underwriters) having
jurisdiction of or over the Parcel or the operation thereof.
"OPTION" shall mean the Purchaser's option to purchase the Parcel pursuant
to the terms of this Agreement.
-1-
<PAGE>
"OPTION PRICE" means a sum equal to 95.0% of the fair market value of the
Parcel at the time of the exercise of the Option as determined by the parties
hereto or (if the parties hereto do not agree), by a duly licensed independent
third-party appraiser mutually agreed to by the Purchaser and the Seller.
"PARCEL" means the real property containing approximately 58,000 square
feet of land which is legally described on EXHIBIT A attached hereto, together
with all improvements thereon and therein and all privileges, rights, easements,
hereditaments and appurtenances thereto belonging.
"PERMITTED TITLE EXCEPTIONS" means the matters listed and described on
EXHIBIT B attached hereto.
"TITLE COMMITMENT" means a commitment for an ALTA Form B Owner's Title
Insurance Policy for the Parcel issued by the Title Insurer in the amount of the
Option Price, covering title to the Parcel showing Seller as owner of the Parcel
in fee simple, subject only to the Permitted Title Exceptions and other
exceptions pertaining to liens or encumbrances of a definite or ascertainable
amount with respect to the Parcel which may be removed by the payment of money
at the Closing and which Seller shall so remove, and providing for full extended
coverage over all general title exceptions contained in such policies and
special endorsements mutually and reasonably agreed upon by Seller and
Purchaser. In the event the Title Commitment discloses exceptions to title
other than the Permitted Title Exceptions, Seller shall have the right to cause
the Title Insurer to insure over such exceptions so long as the manner thereof
is reasonably acceptable to Purchaser.
"TITLE INSURER" means Chicago Title Insurance Company, First American Title
Insurance Company or another reputable title insurance company designated by
Seller and reasonably acceptable to Purchaser.
"TITLE POLICY" means the title policies to be issued for the Parcel
pursuant to Title Commitment, in the amount of the Option Price, insuring good
and marketable fee simple title to the Parcel in Purchaser as of the Closing
applicable to the Parcel, subject only to the Permitted Title Exceptions
applicable thereto.
1.02 ADDITIONAL DEFINITIONS. The definitions of certain other terms are
contained in the text of this Agreement.
ARTICLE II
PURCHASE AND SALE; OPTION; PURCHASE PRICE
2.01 PURCHASE AND SALE. Upon the exercise of the Option by the Purchaser,
subject to the conditions and on the terms contained in this Agreement, Seller
agrees to sell and convey and Purchaser agrees to purchase and acquire from
Seller good and marketable fee simple title to the Parcel, subject to the
Permitted Title Exceptions applicable thereto.
-2-
<PAGE>
2.02 THE OPTION. Purchaser shall have the right to exercise the Option at
any time commencing on or after the date hereof and ending on November 17, 2007.
Upon Purchaser's exercise of the Option, Purchaser shall have the right to
select the date of the Closing, which date shall be reasonably acceptable to
Seller and shall be no earlier than the date which is ninety (90) days after
Purchaser's exercise of the Option and no later than November 17, 2007.
2.03 METHOD OF EXERCISE. Purchaser shall exercise the Option by giving
Seller written notice of its election to exercise such Option at any time during
the applicable time periods described in SECTIONS 2.02, in the manner provided
in SECTION 9.08 for the giving of notices.
2.04 PURCHASE PRICE. At the Closing, Purchaser shall pay to Seller the
Purchase Price in cash, by wire transfer of immediately available funds to a
bank account designated by Seller.
ARTICLE III
CONDITIONS PRECEDENT TO CLOSING
3.01 The obligation of Purchaser to purchase the Parcel is subject to the
condition that Seller shall perform each and every obligation of Seller under
this Agreement to be performed by Seller on or before the date of the Closing.
ARTICLE IV
CLOSING MATTERS
4.01 POSSESSION, CLOSING ADJUSTMENTS AND EXPENSES.
(a) Sole and exclusive possession of the Parcel, subject to the
Permitted Title Exceptions applicable thereto shall be delivered to Purchaser
concurrently with the Closing.
(b) Following the Closing, Purchaser shall pay to Seller all rents
which Purchaser shall collect with respect to the Parcel which are attributable
to periods preceding the Closing, except that all such rents collected by
Purchaser shall first be applied to satisfy all current rents due Purchaser; and
Seller shall pay to Purchaser all rents received by Seller from any tenant with
respect to the Parcel after the Closing which are attributable to periods
succeeding the Closing.
(c) All title charges and premiums shall be paid by Seller. All
charges for additional title endorsements shall be paid by Purchaser. All state
and county transfer taxes shall be paid by Seller. All municipal transfer taxes
shall be paid by Purchaser. The parties shall each be solely responsible for
the fees and disbursements of their respective counsel and other professional
advisers.
-3-
<PAGE>
4.02 CLOSING.
(a) On or before the Closing, Seller shall deliver to Purchaser the
following:
(i) the original Deed, in appropriate recordable form, for
the Parcel, executed by Seller;
(ii) an original affidavit executed by Seller, sufficient to
exempt the transactions contemplated hereby from the
withholding tax requirement imposed by Section 1445A of
the Internal Revenue Code;
(iii) an updated Title Commitment with respect thereto dated
not earlier than fifteen (15) days prior to the Closing
showing good and marketable fee simple title to the
Parcel in Seller, subject only to the Permitted Title
Exemptions applicable to the Parcel; and
(iv) such other documents, instruments, certifications and
confirmations as may be reasonably required and
designated by Purchaser or the Title Insurer to fully
effect and consummate the transactions contemplated
hereby.
(b) On or before the Closing, Purchaser shall deliver to Seller the
following:
(i) the Purchase Price;
(ii) an original assumption agreement executed by Purchaser,
pursuant to which Purchaser agrees to assume Seller's
obligations, from and after the Closing Date, with
respect to the Parcel, except to the extent otherwise
specified by Purchaser and Seller; and
(iii) such other documents, instruments, certifications and
confirmations as may be reasonably required and
designated by Seller or the Title Insurer to fully effect
and consummate the transactions contemplated hereby.
(c) Seller and Purchaser shall cooperate to provide original,
executed certificates complying with the provisions of state, county and local
law applicable to the determination of documentary and transfer taxes.
-4-
<PAGE>
ARTICLE V
COVENANTS, REPRESENTATIONS AND WARRANTIES
5.01 COVENANTS OF SELLER.
(a) On the Closing, Seller shall tender possession of the Parcel to
Purchaser in the same or similar condition the Parcel was in when last inspected
by Purchaser or its agents or contractors prior to the date of this Agreement,
except for ordinary wear and tear or changes resulting from actions taken by or
on behalf of Purchaser or approved by Purchaser.
(b) Seller has previously delivered or made available to Purchaser
at Seller's sole cost and expense true, correct and complete copies of the
following:
(i) the title insurance policy insuring Seller's interest in the
Parcel, disclosing no exceptions to title other than the
Permitted Title Exceptions (and liens and encumbrances which
will be removed at the Closing);
(ii) the most recent real estate tax bills pertaining to the Parcel;
and
(iii) an environmental report relating to the Parcel.
5.02 REPRESENTATIONS AND WARRANTIES OF SELLER. Purchaser hereby
acknowledges that Seller has made no representations or warranties whatsoever to
Purchaser with respect to the subject matter of this Agreement or in connection
with the execution and delivery hereof.
5.03 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Seller hereby
acknowledges that Purchaser has made no representations or warranties whatsoever
to Seller with respect to the subject matter of this Agreement or in connection
with the execution and delivery hereof.
ARTICLE VI
INDEMNIFICATION
6.01 SELLER'S INDEMNITY. As acknowledged by Purchaser in SECTION 5.02
above, Seller has made no representations or warranties to Purchaser with
respect to the subject matter of this Agreement or in connection with the
execution and delivery hereof. Accordingly, Purchaser shall have no rights or
remedies against Seller by reason of any alleged inaccuracy of any such alleged
representation or warranty, and Seller shall have no indemnification obligations
hereunder with respect thereto.
6.02 PURCHASER'S INDEMNITY. Purchaser hereby agrees to indemnify, defend
and hold Seller, and the partners, members, officers, shareholders, directors,
employees and agents of Seller and its
-5-
<PAGE>
partners, members and shareholders harmless from and against any and all
claims, losses, damages, liabilities and expenses which arise out of, are
with respect to, or are based upon:
(i) the inaccuracy in any material respect of any representation or
warranty, or a material breach of any covenant of Purchaser
contained herein or in any certificate or instrument furnished
to Seller by or on behalf of Purchaser;
(ii) any obligations, liabilities or charges of Seller that are
expressly assumed by Purchaser; or
(iii) the operation and management of any portion of the Parcel by or
for Purchaser after the Closing.
ARTICLE VII
ADDITIONAL PROVISIONS
7.01 AMENDMENTS AND WAIVERS. This Agreement may not be amended, modified
or discharged nor may any of its terms be waived except by an instrument in
writing signed by the party to be bound thereby.
7.02 FURTHER ASSURANCES. The parties each agree to do, execute,
acknowledge and deliver all such further acts, instruments assurances and to
take all such further action after the Closing as shall be necessary or
desirable to fully carry out this Agreement and to fully consummate and effect
the transaction contemplated hereby.
7.03 SURVIVAL AND BENEFIT. All agreements, obligations and indemnities
of Purchaser hereunder shall survive for a period of one (1) year from and after
the Closing, and the same shall inure to the benefit of Seller's successors and
assigns and be binding upon Purchaser's successors and assigns.
7.04 NO THIRD PARTY BENEFITS. This Agreement is for the sole and
exclusive benefit of the parties hereof and their respective successors and
assigns, and no third party is intended to or shall have any rights hereunder.
7.05 PURCHASER'S INVESTIGATION AND INSPECTIONS. Any investigation or
inspection conducted by Purchaser, or any agent or representative of Purchaser,
pursuant to this Agreement or the transaction contemplated hereby, in order to
verify independently Seller's satisfaction of any conditions precedent to
Purchaser's obligations hereunder or to determine whether Seller's warranties
are true and accurate, shall not affect, or constitute a waiver by Purchaser of,
any of Seller's obligations hereunder or Purchaser's reliance thereon.
7.06 BROKERAGE. Each party hereby represents and warrants to that it has
not dealt with any broker or finder with the transaction contemplated hereby,
and each party hereby agrees to
-6-
<PAGE>
indemnify the other for any claim for brokerage commission or finder's fee
asserted by a person, firm or corporation claiming to have been engaged by
the indemnifying party.
7.07 NOTICES. Any notice, request, demand, instructions or other
document to be given or served hereunder or under any document or instrument
executed pursuant hereto shall be in writing and shall be delivered personally
or sent by United States registered or certified mail, return receipt requested,
or by overnight express courier guaranteeing next business day delivery, postage
prepaid and addressed to the parties at their respective addresses set forth
below, and the same shall be effective upon receipt if delivered personally or
three (3) business days after deposit in the mails or one (1) business day after
deposit with an overnight express courier. A party may change its address for
receipt of notices by service of a notice of such change in accordance herewith.
If to Purchaser: Prime Group Realty Trust
77 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: Richard S. Curto
With a copy to: Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attn: Wayne D. Boberg
If to Seller: c/o The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: Michael W. Reschke
With a copy to: The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: Robert J. Rudnik
7.08 INTERPRETATION.
(a) The headings and captions herein are inserted for convenient
reference only and the same shall not limit or construe the Articles or Sections
to which they apply or otherwise affect the interpretation hereof.
(b) Words importing persons shall include firms, associations,
partnerships (including limited partnerships), trusts, corporations and other
legal entities, including public bodies, as well as natural persons.
-7-
<PAGE>
(c) The terms "include", "including" and similar terms shall be
construed as if followed by the phrase "without being limited to".
(d) This Agreement and any document or instrument executed pursuant
hereto may be executed in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
(e) Whenever under the terms of this Agreement the time for
performance of a covenant or condition falls upon a Saturday, Sunday or holiday,
such time for performance shall be extended to the next business day.
Otherwise, all references herein to "days" shall mean calendar days.
(f) This Agreement shall be governed by and construed by and
construed in accordance with the laws of the State of Illinois.
(g) Time is of the essence of this Agreement.
7.9 DEFAULTS/REMEDIES. Except as otherwise provided in or limited by
SECTION 6.01, in the event of a breach or default by Seller of any of the terms
and provisions of this Agreement, Purchaser shall have all of its rights and
remedies available at law or in equity. In the event of a breach or default by
Purchaser of any of the terms and provisions of this Agreement, Seller shall
have all of its rights and remedies available at law or in equity.
[Signature Page Follows]
-8-
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
Seller and Purchaser each as of the date first hereinabove set forth.
PURCHASER:
PRIME GROUP REALTY, L.P.,
a Delaware limited partnership
By: PRIME GROUP REALTY TRUST,
a Maryland real estate investment trust,
its Managing General Partner
By: /s/ W. Michael Karnes
------------------------------------
Name: W. Michael Karnes
------------------------------------
Title: Executive VP
------------------------------------
SELLER:
300 N. LASALLE, L.L.C.,
an Illinois limited liability company
By: PRIME GROUP LIMITED PARTNERSHIP,
its Administrative Member
By: /s/ Michael W. Reschke
------------------------------------
Name: Michael W. Reschke
------------------------------------
Title: Managing General Partner
------------------------------------
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF PARCEL
PARCEL 1:
LOT 1, (EXCEPT THE EAST 20 FEET THEREOF, CONVEYED TO THE CITY OF CHICAGO FOR
THE WIDENING OF NORTH LASALLE STREET); ALL OF LOT 2, AND THE EAST 79 FEET 1.5
INCHES OF LOT 3 (EXCEPT THE NORTH 11 FEET OF SAID LOTS) IN BLOCK 4, IN
ORIGINAL TOWN OF CHICAGO, IN SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF
THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
PARCEL 2:
THAT PIECE OF PARCEL OF LAND, LYING SOUTH OF AND ADJACENT TO LOTS 1, 2, AND
THE EAST 79 FEET 1.5 INCHES OF LOT 3, AS SAID LOTS ARE SHOWN ON THE PLAT OF
THE ORIGINAL TOWN OF CHICAGO, RECORDED MAY 29, 1837, IN BOOK "H" OF PLATS,
PAGE 298, AND SOUTH OF THE NORTH LINE OF OLD NORTH WATER STREET, AS LOCATED
ON SAID PLAT, WEST OF THE WEST LINE OF THE EAST 20 FEET OF LOT 1, EXTENDED
SOUTH, TO THE NORTH DOCK LINE OF THE CHICAGO RIVER, SAID LINE BEING THE WEST
LINE OF NORTH LASALLE STREET, AS WIDENED, EAST OF A LINE, DRAWN 79 FEET 1.5
INCHES, WEST OF AND PARALLEL WITH THE EAST LINE OF SAID LOT 3, EXTENDED, AND
NORTH OF THE DOCK LINE ON THE NORTH SIDE OF THE CHICAGO RIVER, IN THE SOUTH
EAST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
PARCEL 3:
LOT 3, AND THE EAST 6 FEET OF LOT 4, (EXCEPT THAT PART OF SAID LOTS, TAKEN
AND USED FOR WEST CARROLL AVENUE), IN THE SUBDIVISION OF LOT 6; ALL IN BLOCK
4, IN THE CANAL TRUSTEES' SUBDIVISION OF LOTS IN THE ORIGINAL TOWN OF
CHICAGO, IN SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
PARCEL 4:
THAT PART OF THE FOLLOWING DESCRIBED PROPERTY LYING ABOVE A HORIZONTAL PLANE
22.6 FEET ABOVE CHICAGO CITY DATUM AND DESCRIBED AS FOLLOWS:
THE NORTH 11 FEET OF LOT 1 (EXCEPT THE EAST 20 FEET THEREOF), ALL OF LOT 2
AND THE EAST 79 FEET 1.5 INCHES OF LOT 3 IN BLOCK 4 IN ORIGINAL TOWN OF
CHICAGO AND THAT PART OF THE ORIGINAL 18 FOOT PUBLIC ALLEY (NOW FALLING IN
THE CENTER OF CARROLL AVENUE) AS SHOWN ON THE PLAT OF THE ORIGINAL TOWN OF
CHICAGO, WHICH LIES NORTH OF ADJOINING SAID LOTS, AND THOSE PARTS OF LOT 3
AND THE EAST 6 FEET OF LOT 4 IN THE SUBDIVISION OF LOT 6 IN BLOCK 4 IN THE
CANAL TRUSTEES' SUBDIVISION OF LOTS IN THE ORIGINAL TOWN OF CHICAGO LYING
SOUTH OF THE NORTH LINE OF WEST CARROLL AVENUE, IN SECTION 9, TOWNSHIP 39
NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY,
ILLINOIS.
Common Address: 320 North LaSalle Street
Chicago, Illinois 60610
PIN Numbers: 17-09-404-015-0000
17-09-405-004-0000
17-09-404-005-0000
<PAGE>
EXHIBIT B
PERMITTED TITLE EXCEPTIONS
1. REAL ESTATE TAXES NOT YET DUE AND PAYABLE.
2. MATTERS CLAIMED BY OR THROUGH PURCHASER, IF ANY.
3. RIGHTS OF THE PUBLIC, THE CITY OF CHICAGO AND ALL PERSONS OR CORPORATIONS
CLAIMING UNDER SAID CITY OF CHICAGO, UNDER ANY OF ITS GRANTS OR ORDINANCES
TO THAT PORTION OF THE LAND AS TAKEN OR USED FOR NEW NORTH WATER STREET,
NOW CALLED CARROLL AVENUE.
(AFFECTS PARCEL 1)
4. EASEMENT FOR PRIVATE ALLEY IN, OVER AND UPON THE WEST 10 FEET OF THE EAST
79 FEET 1 1/2 INCHES OF LOT 3 IN BLOCK 4 IN ORIGINAL TOWN OF CHICAGO
RUNNING SOUTH FROM NORTH WATER STREET TO A POINT 20 FEET NORTH FROM THE
RIVER CREATED BY AGREEMENT BETWEEN MATTHEW LAFLIN, AND OTHERS AND WESTERN
WAREHOUSING COMPANY DATED NOVEMBER 18, 1886 AND RECORDED DECEMBER 4, 1886
AS DOCUMENT 778847 IN BOOK 2004 PAGE 359.
(AFFECTS PARCELS 1, 2 AND OTHER PROPERTY)
5. RIGHTS OF THE UNITED STATES OF AMERICA, THE STATE OF ILLINOIS, THE PUBLIC,
THE CITY OF CHICAGO AND OF THE SANITARY DISTRICT OF CHICAGO IN THE CHICAGO
RIVER AND THE FLOWAGE OF THE WATER THEREOF.
(AFFECTS PARCEL 2)
6. RIGHTS OF THE CHICAGO AND NORTHWESTERN RAILROAD COMPANY, ITS SUCCESSORS AND
ASSIGNS, TO MAINTAIN RAILROAD TRACKS BENEATH PARCEL 4.
(AFFECTS PARCEL 4)
7. RIGHTS OF THE PUBLIC AND QUASI-PUBLIC UTILITIES IN AND TO THAT PART OF THE
LAND FALLING IN (VACATED) CARROLL AVENUE.
(AFFECTS PARCELS 1 AND 4)
8. EASEMENT RESERVED BY THE CITY OF CHICAGO IN THE ORDINANCE OF VACATION, A
COPY OF WHICH WAS RECORDED MAY 17, 1984 AS DOCUMENT 27090087, FOR THE
BENEFIT OF THE COMMONWEALTH EDISON COMPANY, THE ILLINOIS BELL TELEPHONE
COMPANY, AND WESTERN UNION, TO OPERATE, MAINTAIN, CONSTRUCT, REPLACE, AND
RENEW OVERHEAD POLES, WIRES, AND ASSOCIATED EQUIPMENT AND UNDERGROUND
CONDUIT, CABLES, AND ASSOCIATED EQUIPMENT FOR THE TRANSMISSION AND
DISTRIBUTION OF ELECTRICAL ENERGY AND
<PAGE>
TELEPHONIC AND ASSOCIATED SERVICES UNDER, OVER, AND ALONG ALL OF WEST
CARROLL AVENUE AS THEREIN VACATED.
(AFFECTS PARCEL 4)
9. POSSIBLE RIGHTS AND INTEREST OF DEPARTMENT OF PUBLIC WORKS TO MAINTAIN
UNDERGROUND FREIGHT TUNNELS AS DISCLOSED BY LETTER DATED OCTOBER 30, 1989
AND FREIGHT TUNNELS ATLAS ATTACHED THERETO, WHICH IS ALSO SHOWN ON THE PLAT
OF SURVEY MADE BY NATIONAL SURVEY SERVICE, INC., DATED MARCH 15, 1991, AS
ORDER NO. N-116015.
(AFFECTS PARCELS 1 AND 4)
10. POSSIBLE RIGHTS AND INTEREST OF WESTERN UNION TELEGRAPH COMPANY AS
DISCLOSED BY LETTER DATED OCTOBER 30, 1989 AND PLAT ATTACHED THERETO.
(AFFECTS PARCELS 1 AND 4)
11. POSSIBLE RIGHTS AND INTEREST OF DEPARTMENT OF WATER AS DISCLOSED BY LETTER
DATED NOVEMBER 9, 1989, ATLAS AND SERVICE PIPE PLAT ATTACHED THERETO.
(AFFECTS PARCEL 4)
12. POSSIBLE RIGHTS AND INTEREST OF THE COMMONWEALTH EDISON COMPANY, TO
MAINTAIN UNDERGROUND FACILITIES AS DISCLOSED BY LETTER DATED NOVEMBER 21,
1989 AND THE DRAWINGS ATTACHED THERETO.
(AFFECTS PARCELS 1, 2, 3 AND 4)
13. POSSIBLE ENCROACHMENT OF CONCRETE RAMP AND STEEL SUPPORTS AND BRACES ONTO
THE PROPERTY LYING BELOW PARCEL 4 AND ALSO ONTO CARROLL AVENUE.
(AFFECTS PARCEL 4)
14. ENCROACHMENT OF BRICK FACING ONTO THE PROPERTY EAST AND ADJOINING BY
APPROXIMATELY 0.39 FEET AS DISCLOSED BY SURVEY MADE BY NATIONAL SURVEY
SERVICE, INC. DATED MARCH 15, 1991 AS ORDER NO. N-116015.
(AFFECTS PARCEL 1)
15. ENCROACHMENT OF PARKING GARAGE ONTO THE PRIVATE ALLEY NOTED AT EXCEPTION C
BY APPROXIMATE 11 INCHES RUNNING THE LENGTH OF THE ALLEY AS DISCLOSED BY B.
A. FENGER DATED SEPTEMBER 18, 1974 AND RECERTIFIED SEPTEMBER 6, 1989 AS
ORDER NO. 74-8-13A.
(AFFECTS PARCEL 1)
<PAGE>
16. ENCROACHMENT OF SIGN ONTO THE PUBLIC PROPERTY EAST AND ADJOINING AS
DISCLOSED BY SURVEY MADE BY B. A. FENDER DATED SEPTEMBER 18, 1974 AND
RECERTIFIED SEPTEMBER 6, 1989 AS ORDER NO. 74-8-13A.
(AFFECTS PARCEL 1)
17. ENCROACHMENT OF 12 INCH CONCRETE RAIL LOCATED MAINLY ON THE PROPERTY AND
ONTO THE PUBLIC PROPERTY NORTH AND ADJOINING BY APPROXIMATELY 8 FEET AS
DISCLOSED BY SURVEY MADE BY B. A. FENDER DATED SEPTEMBER 18, 1974 AND
RECERTIFIED SEPTEMBER 6, 1989 AS ORDER NO. 74-8-13A.
(AFFECTS PARCEL 1)
18. ENCROACHMENT OF CONCRETE CANOPY LOCATED MAINLY ON THE LAND ONTO THE PUBLIC
LAND NORTH AND ADJOINING BY APPROXIMATE 1.22 FEET AS DISCLOSED BY PLAT OF
SURVEY NUMBER N-116015 PREPARED BY NATIONAL SURVEY SERVICE, INC. DATED
MARCH 15, 1991.
(AFFECTS PARCEL 3)
19. ENCROACHMENT OF CONCRETE PILLAR LOCATED MAINLY ON THE LAND ONTO THE PUBLIC
LAND NORTH AND ADJOINING BY APPROXIMATE 0.11 FEET AS DISCLOSED ON PLAT OF
SURVEY NUMBER N-116015 PREPARED BY NATIONAL SURVEY SERVICE, INC. DATED
MARCH 15, 1991.
20. ENCROACHMENT OF CONCRETE BUMPER ONTO THE PUBLIC WAY NORTH AND ADJOINING BY
APPROXIMATE 1 FOOT AND NORTH WESTERLY AND ADJOINING BY APPROXIMATE .77 FEET
AS DISCLOSED BY SURVEY MADE BY B. A. FENDER DATED SEPTEMBER 18, 1974 AND
RECERTIFIED SEPTEMBER 6, 1989 AS ORDER NO. 74-8-13B.
(AFFECTS PARCEL 3)
[NOTE: ENCROACHMENT ENDORSEMENT APPROVED FOR POLICY.]
21. ENCROACHMENT OF 4 FOOT BY 6 FOOT, 1 STORY METAL STRUCTURE ON A 6 BY 6 FOOT
CONCRETE BASE ONTO THE PROPERTY WEST AND ADJOINING AS DISCLOSED ON PLAT OF
SURVEY NUMBER N-116015 PREPARED BY NATIONAL SURVEY SERVICE, INC. DATED
MARCH 15, 1991.
(AFFECTS PARCEL 3)
22. RIGHTS OF SOUTHWESTERN BELL MOBILE SYSTEMS, INC., DOING BUSINESS AS
CELLULAR ONE - CHICAGO, UNDER MICROCELL SITE AGREEMENT.
23. ENCROACHMENT OF THE BLACKTOP LOCATED MAINLY ON THE PROPERTY WEST AND
ADJOINING ONTO THE LAND BY APPROXIMATELY 1.21 FEET, AS SHOWN ON PLAT OF
SURVEY NUMBER N-116014 PREPARED BY NATIONAL SURVEY SERVICE, INC. DATED
MARCH 15, 1991.
(AFFECTS PARCEL 1)
<PAGE>
24. ENCROACHMENT OF THE BUILDING LOCATED MAINLY ON THE LAND ONTO THE PROPERTY
EAST AND ADJOINING BY APPROXIMATELY 0.05 FEET, AS SHOWN ON PLAT OF SURVEY
NUMBER N-116015 PREPARED BY NATIONAL SURVEY SERVICE, INC. DATED MARCH 15,
1991.
(AFFECTS PARCEL 2)
25. ENCROACHMENT OF THE 3 STORY BRICK BUILDING LOCATED MAINLY ON THE PROPERTY
EAST AND ADJOINING ONTO THE LAND BY APPROXIMATELY 0.45 FEET, AS SHOWN ON
PLAT OF SURVEY NUMBER N-116015 PREPARED BY NATIONAL SURVEY SERVICE, INC.,
DATED MARCH 15, 1991.
(AFFECTS PARCEL 3)
26. ENCROACHMENT OF THE OVERHEAD SIGN LOCATED MAINLY ON THE LAND ONTO THE
PROPERTY NORTH AND ADJOINING BY APPROXIMATELY 8.0 FEET, AS SHOWN ON PLAT OF
SURVEY NUMBER N-116015 PREPARED BY NATIONAL SURVEY SERVICE, INC. DATED
MARCH 15, 1991.
(AFFECTS PARCEL 3)
27. ENCROACHMENT OF THE WOOD DOCK AND CONCRETE DOCK LOCATED MAINLY ON THE
PROPERTY EAST AND ADJOINING ONTO THE LAND BY APPROXIMATELY 8.0 FEET, AS
SHOWN ON PLAT OF SURVEY NUMBER N-116015 PREPARED BY NATIONAL SURVEY
SERVICE, INC., DATED MARCH 15, 1991.
(AFFECTS PARCEL 3)
28. COVENANTS CONTAINED IN PARKING AGREEMENT DATED AS OF MARCH 14, 1991 AND
RECORDED MARCH 18, 1991 AS DOCUMENT 91119741 AND RECORDED MAY 16, 1991 AS
DOCUMENT 91233616 MADE BY AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, AS TRUSTEE UNDER TRUST AGREEMENT DATED DECEMBER 19, 1989 AND KNOWN
AS TRUST NUMBER 110024-09 TO 77 W. WACKER LIMITED PARTNERSHIP, AN ILLINOIS
LIMITED PARTNERSHIP; RE: EASEMENT APPURTENANT IN FAVOR OF THE PARTNERSHIP,
FOR PARKING PURPOSES IN THE LAND CONSISTING OF 169 PARKING SPACES, TOGETHER
WITH THE TERMS, PROVISIONS, CONDITIONS AND LIMITATIONS CONTAINED THEREIN.
29. THE LAND LIES WITHIN THE BOUNDARIES OF A SPECIAL SERVICE AREA AS DISCLOSED
BY ORDINANCE RECORDED AS DOCUMENT 91075841, AND IS SUBJECT TO ADDITIONAL
TAXES UNDER THE TERMS OF SAID ORDINANCE AND SUBSEQUENT RELATED ORDINANCES.
NOTE: EACH ENCROACHMENT LISTED IN THIS EXHIBIT B SHALL NOT BE DEEMED A PERMITTED
TITLE EXCEPTION UNLESS THE TITLE INSURER PROVIDES PURCHASER WITH AN ENCROACHMENT
ENDORSEMENT IN THE FORM PROVIDED ON SCHEDULE 1 ATTACHED HERETO.
<PAGE>
Exhibit 10.14
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
AMONG
PRIME GROUP REALTY TRUST
PRIME GROUP REALTY, L.P.
PRIME GROUP LIMITED PARTNERSHIP
PRIMESTONE INVESTMENT PARTNERS L.P.
and
THE OTHER INVESTORS NAMED HEREIN
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of the 17th day of
November, 1997 (this "Agreement"), among PRIME GROUP REALTY TRUST, a Maryland
real estate investment trust (the "Company"), PRIME GROUP REALTY, L.P., a
Delaware limited partnership (the "Partnership"), EDWARD S. HADESMAN TRUST DATED
MAY 22, 1992, GRANDVILLE/NORTHWESTERN MANAGEMENT CORPORATION, an Illinois
corporation, CAROLYN B. HADESMAN, TRUST DATED MAY 21, 1992, LISA HADESMAN 1991
TRUST, CYNTHIA HADESMAN 1991 TRUST, TUCKER B. MAGID, FRANCES S. SHUBERT,
GRANDVILLE ROAD PROPERTY, INC., an Illinois corporation, SKY HARBOR ASSOCIATES,
an Illinois limited partnership (the foregoing other than the Company and the
Partnership being hereafter referred to collectively as a "Contributor"),
PRIMESTONE INVESTMENT PARTNERS, L.P., a Delaware limited partnership
("Primestone"), PRIME GROUP LIMITED PARTNERSHIP, an Illinois limited partnership
("Prime") and the Permitted Transferees (as defined below) of each of the
foregoing entities (such entities or Permitted Transferees are sometimes
referred to herein individually as an "Investor" and collectively as the
"Investors"). Jeffrey Patterson is referred to herein as a "Management
Investor".
W I T N E S S E T H:
WHEREAS, the Investors and the Management Investor will hold the
limited partnership interests in the Partnership set forth in Exhibit A hereto
(the "Common Units"), which Common Units
<PAGE>
may be exchanged for common shares of beneficial interest of the Company (the
"Common Shares") pursuant to certain exchange rights set forth on Exhibit C to
that certain Amended and Restated Agreement of Limited Partnership of Prime
Group Realty, L.P., dated November 17, 1997 (the "Partnership Agreement"); and
WHEREAS, the Company has agreed to provide the Investors and the
Management Investor with certain registration rights as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
I.1. "Agreement" is defined in the first paragraph of this Agreement.
I.2. "Blackout Termination Right" is defined in Section 5.3(b) hereof.
I.3. "Business Day" means any day on which the New York Stock Exchange
is open for trading.
I.4. "Company" is defined in the first paragraph of this Agreement.
I.5. "Contributor" is defined in the first paragraph of this Agreement.
I.6. "Contributor Investor Group" means collectively the Contributor
and their Permitted Transferees.
I.7. "Effectiveness Period" is defined in Section 4.3 hereof.
2
<PAGE>
I.8. "Eligible Securities" means all or any portion of the Common
Shares acquired by the Investors and the Management Investor upon exchange of
the Common Units. As to any proposed offer or sale of Eligible Securities, such
securities shall cease to be Eligible Securities with respect to such proposed
offer or sale when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement or (ii) such securities are permitted to be disposed of pursuant to
Rule 144(k) (or any successor provision to such Rule) under the Securities Act
as confirmed in a written opinion of counsel to the Company addressed to the
Investors and the Management Investor, (iii) such securities shall have been
otherwise transferred pursuant to Rule 144 (or any successor rule) or pursuant
to another applicable exemption under the Securities Act, new certificates for
such securities not bearing a legend restricting further transfer shall have
been delivered by the Company and such securities shall be freely transferable
to the public without registration under the Securities Act or (iv) such
securities are no longer outstanding.
I.9. "Information Blackout" is defined in Section 5.3(a) hereof.
I.10. "Investor Group" means any of the Contributor Investor Group,
the Primestone Investor Group or the Prime Investor Group.
I.11. "Investor" means any of the Contributors, the Primestone
Investor Group and the Prime Investor roup, and any of their Permitted
Transferees.
I.12. "IPO" means the Company's initial public offering of Common
Shares and any other capital stock of the Company offered simultaneously with
the Common Shares.
I.13. "IPO Date" means the date of the final prospectus used by the
Company in the IPO.
3
<PAGE>
I.14. "Lock-Up Agreements" means (i) the Lock-Up Agreement, dated
November 11, 1997, among the Prime Investor Group and the Underwriter, (ii) the
Lock-Up Agreement, dated November 11, 1997, 1997, among the Contributor and the
Underwriter, (iii) the Lock-Up Agreement, dated November 11, 1997, among the
Management Investor and the Underwriter, and (iv) the Lock-Up Agreement, dated
November 11, 1997 among Primestone Investor Group and the Underwriter.
I.15. "Management Investor" is defined in the first paragraph of
this Agreement.
I.16. "Partnership" is defined in the first paragraph of this
Agreement.
I.17. "Partnership Agreement" means that certain Amended
and Restated Agreement of Limited Partnership of Prime Group Realty, L.P.,
dated November 17, 1997.
I.18. "Participating Investor" is defined in Section 3.3(a) hereof.
I.19. "Person" means an individual, a partnership (general or limited),
corporation, real estate investment trust, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
I.20. "Permitted Transferees" with respect to each Investor means the
Persons which qualify as Qualified Transferees under the Partnership Agreement.
The parties hereto agree that Prudential Securities Credit Corporation, as
Lender is a Permitted Transferee of Primestone.
I.21. "Prime" is defined in the first paragraph of this Agreement.
4
<PAGE>
I.22. "Primestone" is defined in the first paragraph of this
Agreement.
I.23. "Prime Investor Group" means collectively Prime and its
Permitted Transferees.
I.24. "Primestone Investor Group" mean collectively Primestone and
its Permitted Transferees.
I.25. "Primestone Registration" means at any time after the
occurrence of the Twelve Month Date the request for registration under the
Securities Act and the subsequent registration of all of the Eligible
Securities requested by Primestone to be registered.
I.26. "Registration Date" is defined in Section 2.1 hereof.
I.27. "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with the registration requirements set
forth in this Agreement including, without limitation, the following: (i) the
fees, disbursements and expenses of the Company's counsel(s) (United States
and foreign), accountants and experts in connection with the registration of
Eligible Securities to be disposed of under the Securities Act; (ii) all
expenses in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus, any
other offering document and amendments and supplements thereto and the
mailing and delivering of copies thereof to the underwriters and dealers;
(iii) the cost of printing or producing any agreement(s) among underwriters,
underwriting agreement(s) and blue sky or legal investment memoranda, any
selling agreements and any other documents in connection with the offering,
sale or delivery of Eligible Securities to be disposed of; (iv) all expenses
in connection with the qualification of Eligible Securities to be disposed of
for offering and sale under state securities laws, including the fees and
disbursements of counsel for the underwriters in connection with such
5
<PAGE>
qualification and in connection with any blue sky and legal investment
surveys; (v) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of
Eligible Securities to be disposed of; and (vi) fees and expenses incurred in
connection with the listing of Eligible Securities on each securities
exchange or quotation system on which the Common Shares are then listed;
provided, however, that Registration Expenses with respect to any
registration pursuant to this Agreement shall not include underwriting
discounts or commissions attributable to Eligible Securities, SEC or blue sky
registration fees attributable to Eligible Securities or transfer taxes
applicable to Eligible Securities.
I.28. "Requesting Investor" means an Investor requesting
registration of its Eligible Securities in accordance with the terms hereof.
I.29. "Sales Blackout Period" is defined in Section 5.3(a)(iii)
hereof.
I.30. "SEC" means the United States Securities and Exchange
Commission.
I.31. "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
I.32. "Selling Investor" means the Requesting Investor and each
Participating Investor or any Investor or Management Investor who has requested
registration pursuant to Section 4.1 hereof, as applicable.
I.33. "Shelf Registration Statement" is defined in Section 4.3
hereof.
I.34. "Twelve Month Date" means the date that is twelve months after
the IPO Date, and if such date is not a Business Day, the next succeeding date
that is a Business Day.
I.35. "Underwriter" means Prudential Securities Incorporated.
6
<PAGE>
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
SECTION 2.1 Effectiveness of Registration Rights. This Agreement shall
become effective on the date hereof, provided, however, that the registration of
any Eligible Securities pursuant to Articles 3 and 4 hereof by the Investors and
Management Investor prior to the Twelve- Month Date (each such dates being
hereinafter referred to as a "Registration Date"), shall be subject to the prior
receipt of the written consent of the Company and the Underwriter to the waiver
of the restrictions on transfer of the Common Shares held by the Investors or
the Management Investor requesting such consent under the terms of the
Partnership Agreement and their respective Lock-Up Agreements.
ARTICLE III
REGISTRATION REQUEST
SECTION 3.1 Request. Upon written request from an Investor requesting
that the Company effect the registration under the Securities Act of all or part
of the Eligible Securities held by such Investor, which notice may be delivered
at any time after 90 days prior to the Registration Date for the applicable
Investor Group and which notice shall specify the intended method or methods of
disposition of such Eligible Securities, the Company will use all reasonable
efforts to effect (at the earliest possible date) the registration, under the
Securities Act, of such Eligible Securities for disposition in accordance with
the intended method or methods of disposition stated in such request; provided
that:
7
<PAGE>
III.1. if the Company shall have previously effected a
registration with respect to Eligible Securities pursuant to Article IV
hereof, the Company shall not be required to effect a registration
pursuant to this Article III until a period of one hundred twenty (120)
days shall have elapsed from the effective date of the most recent such
previous registration;
III.2. if, upon receipt of a registration request pursuant to
this Article 3, the Company is advised in writing (with a copy to the
Selling Investors) by a nationally recognized independent investment
banking firm selected by the Company to act as lead underwriter in
connection with a public offering of securities by the Company that, in
such firm's opinion, a registration at the time and on the terms
requested would materially adversely affect such public offering of
securities by the Company (other than an offering in connection with
employee benefit and similar plans) (a "Company Offering") that prior
to the receipt of the notice by the Requesting Investor had been
contemplated by the Company's Board of Trustees to be filed (and which
is in fact filed) within sixty (60) days of receipt of the notice by
the Requesting Investors, the Company shall not be required to effect a
registration pursuant to this Article III until the earliest of (i)
three months after the completion of such Company Offering, (ii) the
termination of any blackout period, if any, required by the
underwriters to be applicable to the Selling Investors in connection
with such Company Offering and agreed to in writing by the Selling
Investors, (iii) promptly after abandonment of such Company Offering or
(iv) four months after the date of written notice requesting
registration from the Investor who initially requested registration;
8
<PAGE>
III.3. if, while a registration request is pending pursuant to
this Article III, the Company determines in the good faith judgment of
the Board of Trustees of the Company, with the advice of counsel, that
the filing of a registration statement would require the disclosure of
non-public material information the disclosure of which would have a
material adverse effect on the Company or would otherwise adversely
affect a material financing, acquisition, disposition, merger or other
comparable transaction, the Company shall deliver a certificate to such
effect signed by its Chief Executive Officer, President, or any
Executive Vice President to the Selling Investors, and the Company
shall not be required to effect a registration pursuant to this Article
III until the earlier of (i) the date upon which such material
information is disclosed to the public or ceases to be material or (ii)
60 days after the Company makes such good faith determination; and
III.4. the Company shall not be required to effect (i) more
than two registrations pursuant to this Article III in any calendar
year per each Investor Group and (ii) a registration of Eligible
Securities, the Fair Market Value of which on the date of the
registration request (determined as set forth in the Partnership
Agreement) is less than $2,500,000. No registration of Eligible
Securities under this Article IV shall relieve the Company of its
obligation (if any) to effect registrations of Eligible Securities
pursuant to Article 4 hereof.
SECTION 3.2 Registration Expenses. With respect to the registrations
requested pursuant to this Article III and any registration arising from an
exercise of a Blackout Termination Right (as defined below), the Company shall
pay all Registration Expenses.
9
<PAGE>
SECTION 3.3 Other Investor Shares. (a) Upon receipt of the written
notice from a Requesting Investor, the Company shall give written notice to each
other Investor and to the Management Investor. Subject to Section 3.3(b) hereof,
the Company shall be required to cause the registration of securities for sale
for the account of any Investor or the Management Investor (the "Participating
Investor") in any registration of Eligible Securities requested pursuant to this
Article III who has delivered written notice to the Company within fifteen (15)
Business Days of the date of receipt by such Participating Investor of the
above-referenced written notice from the Company (which notice from the
Participating Investor to the Company shall specify the number of shares to be
disposed of and the intended method of disposition); provided, that the Company
shall not be required to cause the registration of all of the securities
requested to be registered by Participating Investors if the Requesting Investor
is advised in writing (with a copy to the Company) by a nationally recognized
independent investment banking firm selected by the Requesting Investors (or as
determined by Section 3.3(c)) that, in such firm's opinion, registration of all
of such securities would materially adversely affect the offering and sale of
Eligible Securities then contemplated by the Requesting Investor.
(b) If the Company cannot, pursuant to the terms of this
Section 3.3, register all of the shares requested to be registered, the Company
shall register the Maximum Amount (as defined below), and, other than for a
Primestone Registration, such amount shall be allocated between the Contributor
Investor Group, the Primestone Investor Group and the Prime Investor Group, pro
rata according to the number of shares for which registration was initially
requested by each Investor Group without giving any effect to any shares
requested to be registered by the Management
10
<PAGE>
Investor. The amount allocated to each Investor Group shall be further allocated
to each Selling Investor within such Investor Group pro rata according to the
number of shares for which registration was initially requested by each Selling
Investor within such Investor Group. Solely for purposes of the preceding
sentence, the Management Investor shall be treated as a Selling Investor within
the Prime Investor Group. Notwithstanding the foregoing, in the event the
Requesting Investor is Primestone requesting a Primestone Registration, then the
amount of Eligible Securities which the Contributor Investor Group, Prime
Investor Group and the Management Investor shall be allowed to register shall be
the Maximum Amount less the number of Eligible Securities requested to be
registered by Primestone in the Primestone Registration. For purposes of this
Section 3.3, "Maximum Amount" shall mean the largest number of shares (if any)
that, in the opinion of the nationally recognized underwriter selected by the
Requesting Investor (or as determined by Section 3.3(c) hereof), for purposes of
Section 3.3(a) hereof, could be offered to the public without materially
adversely affecting the offering and sale of Eligible Securities as then
contemplated by the Selling Investors.
(c) In the event that more than one Investor exercises
registration rights on the same day, the Investor who requested a registration
of the larger number of shares on such day shall be entitled to select the lead
underwriter for such registered offering (if such offering will be
underwritten). In all other cases, the first Investor to exercise registration
rights with respect to any particular registration demand shall be entitled to
select the lead underwriter for such registered offering (if such offering will
be underwritten).
11
<PAGE>
Notwithstanding this Article III, each Selling Investor may elect, in
writing prior to the effective date of the registration statement filed in
connection with a registration under this Article III, not to register its
Eligible Securities in connection with such registration; provided, that if such
Selling Investor is one of the Requesting Investors, such Selling Investor will
be deemed to have used one of the two rights each year to request registration
of Eligible Securities under this Article III allocated to the Investor Group of
which it is a member pursuant to Section 3.1(d) hereof.
ARTICLE IV
INCIDENTAL REGISTRATION
SECTION 4.1 Notice and Registration. If the Company proposes to
register any Common Shares, any equity securities exercisable for, convertible
into or exchangeable for Common Shares, or other securities issued by it having
terms substantially similar to Eligible Securities ("Other Securities") for
public sale under the Securities Act (whether proposed to be offered for sale by
the Company or by any other Person) on a form and in a manner which would permit
registration of Eligible Securities for sale to the public under the Securities
Act, it will give prompt written notice to the Investors and the Management
Investor of its intention to do so, and upon the written request of any Investor
or the Management Investor delivered to the Company within fifteen (15) Business
Days after the giving of any such notice (which request shall specify the number
of Eligible Securities intended to be disposed of by such Investor or Management
Investor and the intended method of disposition thereof), the Company will use
all reasonable efforts to effect, in connection with the registration of the
Other Securities, the registration under the Securities Act of all Eligible
Securities
12
<PAGE>
which the Company has been so requested to register by the Selling Investor(s),
to the extent required to permit the disposition (in accordance with the
intended method or methods thereof as aforesaid) of Eligible Securities so to be
registered; provided that:
IV.1. if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register the Other Securities, the Company may, at its election, give
written notice of such determination to the Investors and the
Management Investor and thereupon the Company shall be relieved of its
obligation to register such Eligible Securities in connection with the
registration of such Other Securities (but not from its obligation to
pay Registration Expenses to the extent incurred in connection
therewith as provided in Section 4.2 hereof), without prejudice,
however, to the rights (if any) of the Investors immediately to request
that such registration be effected as a registration under Article III
hereof;
IV.2. The Company will not be required to effect any
registration pursuant to this Article IV if the Company shall have been
advised in writing (with a copy to the Selling Investors) by a
nationally recognized independent investment banking firm selected by
the Company to act as lead underwriter in connection with the public
offering of securities by the Company that, in such firm's opinion, a
registration of Eligible Securities requested to be registered at that
time would materially and adversely affect the Company's own scheduled
offering of Other Securities; provided, however, that if an offering of
some but not all of the Eligible Securities requested to be registered
by the Investor(s) and the Management Investor
13
<PAGE>
would not materially adversely affect the Company's offering of Other
Securities, the aggregate number of Eligible Securities requested to be
included in such offering by the Investors and the Management Investor
shall be reduced pro rata according to the total number of Eligible
Securities requested to be registered by such Persons;
IV.3. The Company shall not be required to effect any
registration of Eligible Securities under this Article IV incidental to
the registration of any of its securities in connection with mergers,
acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or share options or other employee benefit plans.
IV.4. Notwithstanding any request under Section 4.1(a) hereof,
a Selling Investor may elect in writing prior to the effective date of
a registration under this Article IV, not to register its Eligible
Securities in connection with such registration.
IV.5. No registration of Eligible Securities effected under
this Article IV shall relieve the Company of its obligation (if any) to
effect registrations of Eligible Securities pursuant to Article III
hereof.
SECTION 4.2 Registration Expenses. The Company shall be responsible for
the payment of all Registration Expenses in connection with any registration
pursuant to this Article IV.
SECTION 4.3 Shelf Registration Statement
(a) Shelf Registration Statement. The Company shall as
promptly as reasonably practicable subsequent to the Twelve Month Date file with
the SEC a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Eligible Securities (the "Shelf
Registration Statement"). If the Shelf Registration Statement shall be on the
appropriate
14
<PAGE>
form permitting registration of such Eligible Securities for resale
by Investors in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Company will notify each
Investor when such Shelf Registration Statement has become effective.
The Company shall use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act as
promptly as practicable after the filing of the Shelf Registration Statement and
(subject to compliance with the restrictions on registrations set forth in
Articles III and IV hereof which shall be applicable with respect to the Shelf
Registration) to keep the Shelf Registration Statement continuously effective
under the Securities Act until the date which is two and one half years from the
date of its initial effectiveness ("Effectiveness Period"), or such period
ending when all Eligible Securities covered by the Shelf Registration Statement
have been sold in the manner set forth and as contemplated in the Shelf
Registration Statement.
(b) Withdrawal of Stop Orders. If the Shelf Registration
Statement ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the securities
registered thereunder), the Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof.
(c) Supplement and Amendments. The Company shall promptly
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Act.
ARTICLE V
REGISTRATION PROCEDURES
15
<PAGE>
SECTION 5.1 Registration and Qualification. If and whenever the Company
is required to use all reasonable efforts to effect the registration of any
Eligible Securities under the Securities Act as provided in Articles 3 or 4
hereof, the Company will, as promptly as is practicable:
V.1. prepare, file and use all reasonable efforts to cause to
become effective a registration statement under the Securities Act
regarding the Eligible Securities to be offered;
V.2. prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all Eligible Securities until
the earlier of such time as all of such Eligible Securities have been
disposed of in accordance with the intended methods of disposition by
the Selling Investors set forth in such registration statement or the
expiration of twelve months after such Registration Statement becomes
effective;
V.3. furnish to the Selling Investors and to any underwriter
of such Eligible Securities such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act, such documents incorporated by
reference in such registration statement or prospectus, and such other
documents as the Selling Investors or such underwriter may reasonably
request;
16
<PAGE>
V.4. use all reasonable efforts to register or qualify all
Eligible Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as the Selling
Investors or any underwriter of such Eligible Securities shall
reasonably request, and do any and all other acts and things which may
be reasonably requested by the Selling Investors or any underwriter to
consummate the disposition in such jurisdictions of the Eligible
Securities covered by such registration statement, except the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it is not
so qualified, or to subject itself to taxation in any jurisdiction
where it is not then subject to taxation, or to consent to general
service of process in any jurisdiction where it is not then subject to
service of process;
V.5. use all reasonable efforts to list the Eligible
Securities on each national securities exchange or quotation system on
which the Common Shares are then listed, if the listing of such
securities is then permitted under the rules of such exchange;
V.6. (i) furnish to the Selling Investors an opinion of
counsel for the Company, addressed to them, dated the date of the
closing under the underwriting agreement, and (ii) upon such Selling
Investor's request, use all reasonable efforts to furnish to the
Selling Investors a "comfort letter" signed by the independent public
accountants who have certified the Company's financial statements
included in such registration statement, addressed to them; provided
that with respect to such opinion and "comfort letter," the following
shall apply: (A) the opinion and "comfort letter" shall cover
substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily
covered
17
<PAGE>
in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of
securities and such other matters as the Selling Investors may
reasonably request; and (B) the "comfort letter" also shall cover
events subsequent to the date of such financial statements; and
V.7. notify the Selling Investors immediately upon the
happening of any event as a result of which a prospectus included in a
registration statement, relating to a registration pursuant to Article
III or 4 hereof, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and at
the request of the Selling Investors prepare and furnish to the Selling
Investors as many copies of a supplement to or an amendment of such
prospectus as the Selling Investors reasonably request so that, as
thereafter delivered to the purchasers of such Eligible Securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
The Company may require the Selling Investors to furnish the Company such
information regarding the Selling Investors and the distribution of such
securities as the Company may from time to time reasonably request in writing
and as shall be required by law or by the SEC in connection with any
registration. Failure of the Selling Investors to provide such information will
relieve the Company of its obligation to register such Selling Investor's
Eligible Securities.
18
<PAGE>
SECTION 5.2 Underwriting. (a) If requested by the underwriters for any
underwritten offering of Eligible Securities pursuant to a registration
described in this Agreement, the Company will enter into and perform its
obligations under an underwriting agreement with such underwriters for such
offering, such agreement to contain such representations and warranties by the
Company and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Article VII hereof and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section 5.1(f)
hereof. The holders of Eligible Securities on whose behalf Eligible Securities
are to be distributed by such underwriters shall be parties to any such
underwriting agreement and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Eligible Securities.
(b) In the event that any registration pursuant to Article IV
hereof shall involve, in whole or in part, an underwritten offering, the Company
may require Eligible Securities requested to be registered pursuant to Article
IV hereof to be included in such underwriting on the same terms and conditions
as shall be applicable to the Other Securities being sold through underwriters
under such registration. In such case, the holders of Eligible Securities on
whose behalf Eligible Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement. Such agreement shall
contain such representations and warranties by the Company and the Selling
Investors and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the
19
<PAGE>
effect and to the extent provided in Article VII hereof. The representations and
warranties in such underwriting agreement by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such holders of Eligible Securities.
SECTION 5.3 Blackout Periods. (a) At any time when a registration
statement effected pursuant to Article III hereof relating to Eligible
Securities is effective, upon written notice from the Company to the Selling
Investors that the Company determines in the good faith judgment of the Board of
Trustees of the Company, with the advice of counsel, that the Selling Investors'
sale of Eligible Securities pursuant to the registration statement would require
disclosure of non-public material information the disclosure of which would have
a material adverse effect on the Company (an "Information Blackout"), the
Selling Investors shall suspend sales of Eligible Securities pursuant to such
registration statement until the earliest of:
(i) the date upon which such material information is
disclosed to the public or ceases to be material;
(ii) 60 days after the Company makes a good faith
determination that such material information ceases to be material; and
(iii) such time as the Company notifies the Selling
Investors that sales pursuant to such registration statement may be
resumed.
(The number of days from such suspension of sales by the Selling Investors until
the day when such sales may be resumed under clause (i), (ii) or (iii) hereof is
hereinafter called a "Sales Blackout Period".)
20
<PAGE>
(b) Any delivery by the Company of notice of an Information
Blackout during the 90 days immediately following effectiveness of any
registration statement effected pursuant to Article III hereof shall give the
Investors the right, by written notice to the Company within 20 Business Days
after the end of such Sales Blackout Period, to cancel such registration and
obtain one additional registration right during such calendar year (a "Blackout
Termination Right") under Article III hereof.
(c) If there is an Information Blackout and if the Investors
do not exercise their cancellation right, if any, pursuant to Section 5.3(b)
hereof, or, if such cancellation right is not available, the time period set
forth in Section 5.1(b) hereof shall be extended for a number of days equal to
the number of days in the Sales Blackout Period.
SECTION 5.4 Qualification for Rule 144 Sales. The Company will take all
actions reasonably necessary to comply with the filing requirements described in
Rule 144(c)(1) so as to enable the Investors or the Management Investor to sell
Eligible Securities without registration under the Securities Act and, upon the
written request of any Investor or the Management Investor, the Company will
deliver to such Investor or Management Investor a written statement as to
whether it has complied with such filing requirements.
ARTICLE VI
PREPARATION; REASONABLE INVESTIGATION
SECTION 6.1 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the
21
<PAGE>
Company will give the Selling Investors and the underwriters, if any, and
their respective counsel and accountants, drafts of such registration
statement for their review and comment prior to filing and such reasonable
and customary access to its books and records and such opportunities to
discuss the business of the Company with its officers, counsel and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of the Selling Investors and such
underwriters or their respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION
<PAGE>
SECTION 7.1 Indemnification. (a) In the event of any registration of
Eligible Securities hereunder, the Company and the Partnership jointly and
severally will, and hereby do, indemnify and hold harmless, each Selling
Investor, its respective directors, trustees, officers, partners, agents,
employees and affiliates and each other person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls each such Selling Investor or any such underwriter within the
meaning of the Securities Act, against any and all losses, claims, damages,
expenses or liabilities, joint or several, actions or proceedings (whether
commenced or threatened) in respect thereof, to which each such indemnified
party may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading,
and the Company and the Partnership will reimburse each such Selling Investor
and each such director, trustee, officer, partner, agent, employee or affiliate,
underwriter and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, expense, liability, action, or proceeding; provided,
however, that (i) the Company and the Partnership shall not be liable in any
such case to the extent that any such loss, claim, damage, expense or liability
(or action or proceeding
23
<PAGE>
in respect thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of such Selling Investor or
underwriter specifically stating that it is for use in the preparation
thereof and (ii) the Company and the Partnership shall not be liable to any
person who participates as an underwriter in the offering or sale of Eligible
Securities or any other person, if any, who controls or is controlled by such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, expense or liability (or action or
proceeding in respect thereof) arises out of such underwriter's failure to
send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Eligible Securities to such person if
such statement or omission was corrected in such final prospectus.
(b) Each Selling Investor severally will, and hereby does,
indemnify and hold harmless the Company, its trustees, its officers who sign the
registration statement, each Person who participates as an underwriter in the
offering or sale of such securities, and each Person, if any, who controls the
Company or any such underwriter within the meaning of the Securities Act against
any and all losses, claims, damages, expenses or liabilities, joint or several,
actions or proceedings (whether commenced or threatened) in respect thereof, to
which each such indemnified party may become subject under the Securities Act or
otherwise insofar as such losses, claims, damages,
24
<PAGE>
expenses or liabilities (or actions or proceedings, whether commenced or
threatened in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact in or omission or
alleged omission to state a material fact in such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, but only to the extent that
such statement or omission was made in reliance upon and in conformity with
written information furnished by such Selling Investor to the Company through an
instrument duly executed by or on behalf of such Selling Investor specifically
stating that it is for use in preparation thereof.
(c) Promptly after receipt by any indemnified party hereunder
of notice of the commencement of any action or proceeding involving a claim
referred to in paragraphs (a) or (b) of this Section 7.1, the indemnified party
will notify the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under paragraphs (a) or (b) of this Section 7.1.
(d) If for any reason the indemnity under this Section 7.1 is
unavailable or is insufficient to hold harmless any indemnified party under
paragraphs (a) or (b) of this Section 7.1, then the indemnifying parties shall
contribute to the amount paid or payable to the indemnified party as a result of
any loss, claim, expense, damage or liability (or actions or proceedings,
whether commenced or threatened, in respect thereof), and legal or other
expenses reasonably incurred by the indemnified party in connection with
investigating or defending any such loss, claim, expense, damage, liability,
action or proceeding, in such proportion as is appropriate to reflect the
relative fault
25
<PAGE>
of the indemnifying party on the one hand and the indemnified party on the
other. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Investor and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. If, however, the allocation provided in the
second preceding sentence is not permitted by applicable law, or if the
allocation provided in the second preceding sentence provides a lesser sum to
the indemnified party than the amount hereinbefore calculated, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party in such proportion as is appropriate to reflect not only such
relative fault but also the relative benefits of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this paragraph (d) of Section 7.1 were to be determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the preceding sentences of this
paragraph (d) of Section 7.1.
(e) Indemnification and contribution similar to that specified
in this Section 7.1 (with appropriate modifications) shall be given by the
Company and the Partnership and the Selling Investors with respect to any
required registration or other qualification of securities under any federal,
state or blue sky law or regulation of any governmental authority other than the
Securities Act.
26
<PAGE>
(f) Notwithstanding any other provision of this Section 7.1,
to the extent that any director, trustee, officer, partner, agent, employee,
affiliate, or other representative (current or former) of any indemnified party
is a witness in any action or proceeding, the indemnifying party agrees to pay
to the indemnified party all expenses reasonably incurred by, or on the behalf
of, the indemnified party and such witness in connection therewith.
(g) All legal and other expenses incurred by or on behalf of
any Selling Investor in connection with investigating or defending any loss,
claim, expense, damage, liability, action or proceeding shall be paid by the
Company or the Partnership in advance of the final disposition of such
investigation, defense, action or proceeding within twenty days after the
receipt by the Company or the Partnership of a statement or statements from the
Selling Investor requesting from time to time such payment, advance or advances.
The entitlement of each Selling Investor to such payment or advancement of
expenses shall include those incurred in connection with any action or
proceeding by the Selling Investor seeking an adjudication or award in
arbitration pursuant to this Section 7.1. Such statement or statements shall
reasonably evidence such expenses incurred by the Selling Investor in connection
therewith.
(h) The termination of any proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, adversely affect the rights of any indemnified party to
indemnification hereunder or create a presumption that any indemnified party
violated any federal or state securities laws.
(i) (i) In the event that advances are not made pursuant to
this Section 7.1 or payment has not otherwise been timely made, each indemnified
party shall be entitled to seek a final
27
<PAGE>
adjudication in an appropriate court of competent jurisdiction of the
entitlement of the indemnified party to indemnification or advances hereunder.
(ii) The Company, the Partnership and the
Selling Investors agree that they shall be precluded from asserting that the
procedures and presumptions of this Section 7.1 are not valid, binding and
enforceable. The Company, the Partnership and the Selling Investors further
agree to stipulate in any such court that the Company, the Partnership, and the
Selling Investors are bound by all the provisions of this Section 7.1 and are
precluded from making any assertion to the contrary.
(iii) To the extent deemed appropriate by the court,
interest shall be paid by the indemnifying party to the indemnified party at a
reasonable interest rate for amounts which the indemnifying party has not timely
paid as the result of its indemnification and contribution obligations
hereunder.
(j) In the event that any indemnified party is a party to or
intervenes in any proceeding in which the validity or enforceability of this
Section 7.1 is at issue or seeks an adjudication to enforce the rights of any
indemnified party under, or to recover damages for breach of, this Section 7.1,
the indemnified party, if the indemnified party prevails in whole in such
action, shall be entitled to recover from the indemnifying party and shall be
indemnified by the indemnifying party against, any expenses incurred by the
indemnified party. If it is determined that the indemnified party is entitled to
indemnification for part (but not all) of the indemnification so requested,
expenses incurred in seeking enforcement of such partial indemnification shall
be reasonably prorated among
28
<PAGE>
the claims, issues or matters for which the indemnified party is entitled to
indemnification and for such claims, issues or matters for which the indemnified
party is not so entitled.
(k) The indemnity agreements contained in this Section 7.1
shall be in addition to any other rights (to indemnification, contribution or
otherwise) which any indemnified party may have pursuant to law or contract and
shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party and shall
survive the transfer of any Eligible Securities by any Investor or the
Management Investor.
ARTICLE VIII
BENEFITS OF REGISTRATION RIGHTS
SECTION 8.1 Benefits of Registration Rights. Subject to the limitations
of Sections 3.1 and 4.1 hereof, each member of the Contributor Investor Group
and the Prime Investor Group, and their Permitted Transferees of Eligible
Securities may severally or jointly exercise the registration rights hereunder
in such proportion as they shall agree among themselves. No consent of any
Investor shall be required for Permitted Transferees to exercise registration
rights under this Agreement or otherwise to be entitled to the benefits of this
Agreement as applicable to all Investors. The Management Investor may not
transfer his rights under this Agreement to any other Person. The Company agrees
that monetary damages would not compensate the Investors and Management Investor
for a breach by the Company hereof and the Investors and the Management Investor
shall be entitled to specific performance of this Agreement.
29
<PAGE>
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Captions. The captions or headings in this Agreement are
for convenience and reference only, and in no way define, describe, extend or
limit the scope or intent of this Agreement.
SECTION 9.2 Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
SECTION 9.3 Governing Law. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of Maryland, without
reference to its rules as to conflicts or choice of laws.
SECTION 9.4 Modification and Amendment. This Agreement may not be
changed, modified, discharged or amended, except by an instrument signed by all
of the parties hereto.
SECTION 9.5 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
SECTION 9.6 Entire Agreement. This Agreement constitutes the entire
agreement and understanding among the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
SECTION 9.7 Notices. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and
30
<PAGE>
delivered by hand, by overnight courier delivery service or by certified mail,
return receipt requested, postage prepaid. Notices shall be deemed given when
actually received, which shall be deemed to be not later than the next Business
Day if sent by overnight courier or after five (5) Business Days if sent by
mail. Notice to Investors and Management Investor shall be made to the address
listed on the share transfer records of the Company.
31
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
PRIME GROUP REALTY TRUST
By: /s/ W. Michael Karnes
-------------------------
Name: W. Michael Karnes
Title: Executive VP
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust
its general partner
By: /s/ W. Michael Karnes
-------------------------
Name: W. Michael Karnes
Title: Executive VP
PRIME GROUP LIMITED PARTNERSHIP
By: /s/ W. Michael Karnes
------------------------
Name: Michael W. Reschke
Title: Managing General Partner
32
<PAGE>
PRIMESTONE INVESTMENT PARTNERS, L.P.
By: PG/PRIMESTONE, L.L.C.
its general partner
By: THE PRIME GROUP, INC.
its Administrative Member
By: /s/ Robert J. Rudnik
--------------------------
Name: Robert J. Rudnik
Title: Executive Vice President
By: BRE/PRIMESTONE INVESTMENT
MANAGEMENT L.L.C. its
general partner
By: /s/ Steven J. Orbuch
--------------------
Name: Steven J. Orbuch
Title: Vice President
33
<PAGE>
EDWARD S. HADESMAN
TRUST DATED MAY 22, 1992
By: /s/ Edward S. Hadesman
------------------------
Name: Edward S. Hadesman
Title: Trustee
GRANDVILLE/NORTHWESTERN
MANAGEMENT CORPORATION,
an Illinois corporation
By: /s/ Edward S. Hadesman
------------------------
Name: Edward S. Hadesman
Title: President
CAROLYN B. HADESMAN
TRUST DATED MAY 21, 1992
By: /s/ Carolyn S. Hadesman
------------------------
Name: Carolyn B. Hadesman
Title: Trustee
LISA HADESMAN 1991 TRUST
By: /s/ Edward S. Hadesman
------------------------
Name: Edward S. Hadesman
Title: Trustee
CYNTHIA HADESMAN 1991 TRUST
By: /s/ Edward S. Hadesman
------------------------
Name: Edward S. Hadesman
Title: Trustee
34
<PAGE>
TUCKER B. MAGID
/s/ Tucker B. Magid
-------------------
FRANCES S. SHUBERT
/s/ Frances S. Shubert
----------------------
GRANDVILLE ROAD PROPERTY, INC.,
an Illinois corporation
By: /s/ Edward S. Hadesman
------------------------
Name: Edward S. Hadesman
Title: President
SKY HARBOR ASSOCIATES,
an Illinois limited partnership
By: /s/ Edward S. Hadesman
--------------------------
Name: Edward S. Hadesman
Title: Managing General Partner
35
<PAGE>
JEFFREY A. PATTERSON
/s/ Jeffrey A. Patterson
------------------------
36
<PAGE>
PRIME GROUP LIMITED PARTNERSHIP,
an Illinois Limited Partnership
By: /s/ Michael W. Reschke
--------------------------
Name: Michael W. Reschke
Title: Managing General Partner
37
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
<S> <C> <C>
Prime Group Limited Partnership 90,000 Common Units
Jeffrey Patterson 110,000 Common Units
Primestone Investment Partners, L.P. 7,944,893 Common Units
Edward S. Hadesman Trust Dated May 22, 1992 388,677 Common Units
Grandville/Northwestern Management
Corporation 9,750 Common Units
Carolyn B. Hadesman Trust
dated May 21, 1992 54,544 Common Units
Lisa Hadesman 1991 Trust 169,053 Common Units
Cynthia Hadesman 1991 Trust 169,053 Common Units
Tucker B. Magid 33,085 Common Units
Frances S. Shubert 28,805 Common Units
Grandville Road Property, Inc. 7,201 Common Units
Sky Harbor Associates 62,149 Common Units
</TABLE>
<PAGE>
Exhibit 10.17
FORMATION AGREEMENT
THIS FORMATION AGREEMENT (this "Agreement") is made and entered into as
of the 17th day of November, 1997 by and among (i) PRIME GROUP REALTY TRUST, a
Maryland real estate investment trust (the "Company"), (ii) PRIME GROUP REALTY,
L.P., a Delaware limited partnership (the "Operating Partnership"), (iii) PRIME
GROUP REALTY SERVICES, INC., a Delaware corporation ("Services Company"), (iv)
THE PRIME GROUP, INC., an Illinois corporation ("PGI"), (v) PRIME GROUP LIMITED
PARTNERSHIP, an Illinois limited partnership ("PGLP"), and (vi) JEFFREY A.
PATTERSON ("Patterson").
RECITALS:
A. The Company is a recently organized real estate investment trust
formed for the purpose of, among other things, acquiring substantially all of
the office and industrial real estate business and operations of PGI and its
affiliates (including, without limitation, PGI's contractual rights to acquire
additional office and industrial properties). Concurrently with the
contributions contemplated by this Agreement, the Company will issue in an
initial public offering (the "Offering") Common Shares of Beneficial Interest in
the Company (the "Common Shares").
B. The business and operations of the Company will be conducted through
the Operating Partnership and the Services Company. The Operating Partnership
will issue limited partnership interests (the "Common Units") to the Company and
to other entities, including PGI and/or its affiliates, in connection with
contributions contemplated hereby and the other transactions contemplated to
occur in connection with the formation of the Company and the Offering (the
"Formation Transactions").
C. PGI and PGLP (collectively, the "Prime Transferors") desire to
convey and cause to be conveyed to the Company and to the Operating Partnership
all the right, title and interest held by the Prime Transferors and their
affiliates in and to (i) the entities identified on Schedule 1 hereto (such
entities being hereinafter referred to collectively as the "Prime Entities"),
together with all other interests of PGI and PGLP in and to each of the
businesses and facilities operated and owned by the Prime Entities (the Prime
Entities and all of such other assets being together referred to herein as the
"Prime Projects") and (ii) the entities identified on Schedule 1 hereto (such
entities being hereinafter referred to collectively as the "Prime Contribution
Entities" and together with the Prime Entities, the "Contributed Entities"),
together with all other interests of PGI and PGLP in and to each of the
businesses and facilities operated and owned by the Prime Contribution Entities
(Contributed Entities and all of such other assets being together referred to
herein as the "Contributed Projects").
D. Patterson desires to convey his rights and interests in the
Contributed Projects to the Operating Partnership in exchange for Common Units.
<PAGE>
E. PGI has entered into (i) that certain option agreement dated as of
August 4, 1997 (the "Lumbermens Agreement") with Lumbermens Mutual Casualty
Company, an Illinois insurance corporation ("Lumbermens"), pursuant to which
Lumbermens granted to PGI an option to purchase all right, title and interest of
Lumbermens in the LMCC 77 Subordinate Loan Interests (as defined in the
Lumbermens Agreement) and (ii) that certain Amended and Restated Agreement dated
as of July 15,1997 (the "Kemper Subordinate Agreement") by and among Kemper
Investors Life Insurance Company, an Illinois insurance corporation ("KILICO"),
Federal Kemper Life Assurance Company, an Illinois insurance corporation
("FKLA"), KILICO Realty Corporation an Illinois corporation ("KRC"), FKLA Realty
Corporation, an Illinois corporation ("FRC"), KR 77 Fitness Center, Inc., a
Delaware corporation ("KR Fitness"), 77 West Wacker Limited Partnership, an
Illinois limited partnership ("77 L.P."), K/77 Investors Limited Partnership, an
Illinois limited partnership ("K/77 L.P."), PGLP and Prime 77 Fitness Center,
Inc., an Illinois corporation (KILICO, FKLA, KRC, FRC and KR Fitness are
hereinafter referred to as the "Kemper Parties") pursuant to which the Kemper
Parties have granted to PGI an option to purchase all right, title and interest
of the Kemper Parties in and to the Subordinate Loan Documents (as defined
therein); such interests, among other things, encumber the real estate commonly
known as 77 West Wacker Drive, Chicago, Illinois, owned by 77 L.P.;
F. PGI has entered into that certain (i) letter agreement dated July
18, 1997 (the "Triad Agreement") with KILICO, KRC and KRC Portfolio Corp. and
(ii) Option To Purchase Partnership Interests dated as of June 17, 1994 but made
effective as of March 22, 1994, as amended by that certain Amendment To Option
To Purchase Partnership Interests dated as of January 21, 1997 and that certain
Second Amendment To Option To Purchase Partnership Interests dated as of July
15, 1997 (as amended, the "Partnership Option Agreement"), pursuant to which it
has the right to acquire the partnership interests in 77 L.P. and K/77 L.P. held
by one or more of the Kemper Parties.
G. PGI has agreed to convey and assign to the Operating Partnership,
the rights under the Lumbermens Agreement, the Kemper Subordinate Agreement, the
Triad Agreement and the Partnership Option Agreement (the Lumbermens Agreement,
the Kemper Subordinate Agreement, the Triad Agreement and the Purchase Option
Agreement and the related agreements and documents are hereinafter referred to
as the "Kemper Agreements"), and the Operating Partnership has agreed to assume
the obligation to pay the purchase price therefor as set forth in the Kemper
Agreements.
H. The Prime Transferors desire to convey to the Operating Partnership
all of their respective right, title and interest in substantially all the
assets and liabilities relating to their office and industrial development,
leasing and management business, which assets and liabilities are set forth on
Schedules 2 and 3 attached hereto (collectively, the "Contributed Personal
Property").
I. PGI has entered into that certain Contribution Agreement dated as of
July 8, 1997 with (i) LaSalle National Trust, N.A., not personally, but solely
as Trustee under Trust Agreement dated June 15, 1982 and known as Trust No.
10-40113-09, (ii) LaSalle National Trust, N.A., not personally, but solely as
Trustee under Trust Agreement dated September 7, 1994 and known as Trust No.
11-9051, (iii) LaSalle National Trust, N.A., not personally, but solely as
Trustee under Trust Agreement dated March 30, 1984 and known as Trust No.
11-107825, (iv) LaSalle National Trust, N.A., not personally, but solely as
Trustee under Trust Agreement dated August 1, 1986 and
2
<PAGE>
known as Trust No. 11-1358, (v) LaSalle National Trust, N.A., not personally,
but solely as Trustee under Trust Agreement dated August 1, 1986 and known as
Trust No. 11-1357, (vi) LaSalle National Trust, N.A., not personally, but solely
as Trustee under Trust Agreement dated January 17, 1974 and known as Trust No.
286-34, (vii) LaSalle National Trust, N.A., not personally, but solely as
Trustee under Trust Agreement dated October 15, 1995 and known as Trust No.
11-9869, (viii) LaSalle National Trust, N.A., not personally, but solely as
Trustee under Trust Agreement dated December 1, 1987 and known as Trust No.
11-2868, (ix) 310 ERA Limited Partnership, (x) MacArthur Drive Properties, (xi)
CLE Limited Partnership, (xii) 500 Lindberg Limited Partnership, (xiii) 515
Huehl Limited Partnership, (xiv) 555 Huehl Limited Partnership, (xv) Sky Harbor
Associates, (xvi) 1001 Technology Way, LLC, (xvii) The Grandville Road Limited
Partnership and (xviii) Industrial Building and Development Company
(collectively, the "Contributors") as amended by the First Amendment to the
Contribution Agreement dated as of August 12, 1997, with LaSalle National Trust,
NA, as Trustee under the Trust Agreements identified in clauses (i) through
(viii) above (as amended, the "IBD Contribution Agreement") pursuant to which
the Contributors will contribute their interests in such entities to the
Operating Partnership in exchange for Common Units.
J. PGI has entered into that certain Contribution Agreement dated as of
October 20, 1997 (the "NAC Contribution Agreement") with (i) the Operating
Partnership, (ii) the Company, (iii) Narco River Business Center, (iv) Narco
Tower Road Associates, (v) Olympian Office Center, (vi) Tri-State Industrial
Park Joint Venture, (vii) Carol Stream Industrial Park Joint Venture, (viii)
Narco Enterprises, Inc., (ix) The Nardi Group Ltd., (x) Narco Construction Inc.,
(xi) Nardi & Co., (xii) Nardi Asset Management, Inc., (xiii) Nardi Asset
Management, Inc., and (xiv) Nardi Architectural, Inc. (collectively the entities
identified in clauses (iii) through (xiv), the "NAC Contributors") pursuant to
which the NAC Contributors will contribute their interests in properties owned
by them to the Operating Partnership in exchange for Common Units.
K. PGI has agreed to convey to the Operating Partnership or its
designee all of PGI's rights under the IBD Contribution Agreement and the NAC
Contribution Agreement, and the Operating Partnership has agreed to assume all
of PGI's obligations under the IBD Contribution Agreement and the NAC
Contribution Agreement.
L. PGI has entered those certain purchase agreements set forth on
Schedule 4 hereto (the "Facility Acquisition Agreements") with certain third
parties (the "Facility Transferors") pursuant to which PGI has the contractual
right to acquire the certain office and industrial facilities, or interests
therein, owned or held by the Facility Transferors as set forth on Schedule 4
hereto.
M. PGI has agreed to convey and assign to the Operating Partnership or
its designee all of PGI's rights under the Facility Acquisition Agreements, and
the Operating Partnership has agreed to assume all of PGI's obligations under
the Facility Acquisition Agreements.
N. PGI has entered into those certain option agreements set forth on
Schedule 5 hereof (the "Land Option Agreements") pursuant to which it has been
granted the right to purchase the real estate indicated on Schedule 5 hereto.
3
<PAGE>
O. PGI has agreed to convey and assign to the Operating Partnership or
its designee all of PGI's rights under the Land Option Agreements, and the
Operating Partnership has agreed to assume all of PGI's obligations under the
Land Option Agreements.
P. The parties desire to enter into this Agreement to set forth their
understanding with respect to the manner in which the Company, Operating
Partnership or their designee will acquire interests in the Contributed
Projects, the Contributed Personal Property, the operations relating thereto and
the rights of PGI under the Contributed Contracts (as hereinafter defined) in
exchange for Common Units, cash and the assumption of certain liabilities.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. TRANSFER OF CONTRIBUTED ENTITIES, CONTRACTUAL RIGHTS AND CERTAIN
OTHER ASSETS. As part of a single plan, on the Closing Date (as hereinafter
defined) the Prime Transferors and Patterson will convey to the Company, the
Operating Partnership, or their designees, (w) their interests in the
Contributed Entities, (x) the contractual rights of PGI and PGLP under the
Kemper Agreements and the Facility Acquisition Agreements, (y) the Contributed
Personal Property and (z) the contractual rights of PGI under the Land Option
Agreements, the IBD Contribution Agreement and the NAC Contribution Agreement
(the Kemper Agreements, the Facility Acquisition Agreements, the Land Option
Agreements, the IBD Contribution Agreement and the NAC Contribution Agreement
are hereinafter referred to collectively as the "Contributed Contracts"; and the
assets and rights described in clauses (w), (x), (y) and (z) are hereinafter
collectively referred to as the "Contributed Assets") in consideration for,
among other things, the issuance by the Operating Partnership of Common Units
(which are exchangeable into Common Shares subject to the conditions and
restrictions contained in Section 8.6 and Exhibit C to the Amended and Restated
Agreement of Limited Partnership of the Operating Partnership dated as of the
date hereof) to the Prime Transferors or their designees and Patterson as
provided in Section 3 hereof, the assumption by the Company, the Operating
Partnership or their designee of the liabilities associated with the Contributed
Projects, the Contributed Contracts and the other Contributed Assets referred to
herein and the cash payments required to be made in accordance with Section 4
hereof, all in a transaction designed to meet the requirements of section 351(a)
of the Internal Revenue Code of 1986, as amended (the "Code"). The Company and
the Operating Partnership will acquire the Contributed Projects subject to the
existing debt, liabilities and contractual and other obligations of such
Contributed Entities existing on the date hereof, except for the liabilities and
obligations identified on Schedule 9 hereof.
In furtherance of the foregoing, on the Closing Date:
(a) PGI shall transfer or cause to be transferred to the
Operating Partnership the following:
4
<PAGE>
(i) The general partnership interests, the limited
partnership interests, stock interests and limited liability company interests
set forth on Schedule 1 hereof.
(ii) All of its right, title and interest in the Facility
Acquisition Agreements, the Kemper Agreements and the Land Option Agreements.
(iii) All of its interests in all other assets and properties
of the office and industrial real estate division of PGI and its affiliates, all
as more fully described on Schedule 2 hereto.
(b) PGLP shall transfer or cause to be transferred to the
Operating Partnership the following:
(i) The general partnership interests, limited partnership
interests and limited liability company interests set forth on Schedule 1
hereof.
(ii) All of its rights under the Kemper Agreements.
(c) PGLP shall transfer to the Company a one tenth of one percent
(.1%) limited partnership interest in the entities listed on Schedule 1 hereof.
(d) PGI shall pay the transfer taxes relating to the transfer to
the Company of the Contributed Entities to the extent such taxes exceed
$2,500,000.
(e) PGI shall transfer to the Company a one tenth of one percent
(.1%) limited partnership interest in the entities listed on Schedule 1 hereto
and a one tenth of one percent (.1%) general partnership interest in
Kemper/Prime Industrial Partners.
(f) Patterson shall transfer to the Operating Partnership all of
his rights and interests in the Contributed Projects.
2. CERTAIN DISTRIBUTIONS. On or prior to the Closing Date, the Prime
Transferors shall have the right to receive distributions from the Contributed
Entities, net of all advances to PGI by the Contributed Entities.
3. ISSUANCE OF COMMON UNITS. In partial consideration of the transfer
of the assets provided for in Section 1, on the Closing Date, the Operating
Partnership shall issue (a) an aggregate of 3,465,000 of its Common Units to
Prime Transferors and (b) 110,000 of its Common Units to Patterson subject to
the terms of the employment agreement between the Company and Patterson. All
such Common Units shall be fully paid and nonassessable.
4. ASSUMPTION OF LIABILITIES; CERTAIN PAYMENTS.
(a) As further consideration for the transfer of the assets by
the Prime Transferors to the Company, the Operating Partnership or their
designees as provided for in Section 1, on the Closing Date the Operating
Partnership will enter into an Assignment and Assumption Agreement
5
<PAGE>
substantially in the form of Exhibit A hereto pursuant to which the Operating
Partnership shall assume all of the outstanding liabilities of each Prime
Transferor and their affiliates with respect to the Contributed Assets
(including the assets and operations of the Contributed Projects, the
Contributed Contracts and the operations of the office and industrial real
estate division of PGI and its affiliates), whether or not reflected on the
books and records of the Prime Transferors or the Contributed Entity, and
whether known or unknown, accrued or unaccrued, absolute, contingent or
otherwise, except for those liabilities and obligations identified on Schedule 9
hereto.
(b) In addition, on the Closing Date, the Operating
Partnership or its designee will make cash payments as described in Schedule 6
to this Agreement.
5. CLOSING DATE. The closing of the transactions contemplated by this
Agreement (the "Closing") shall occur on the day (the "Closing Date")
immediately following the day that all of the conditions precedent of the
parties under this Agreement have been met or waived by the party entitled to
the benefit thereof, but in any event no later than the date of closing of the
Offering.
6. REPRESENTATIONS AND WARRANTIES.
(a) Each of PGI and PGLP hereby represents and warrants to the
Company and the Operating Partnership as follows (except as set forth in the
Disclosure Schedule attached hereto as Schedule 7):
(i) Organization; Authority. Each of PGI and PGLP and each of
the Contributed Entities (collectively, the "Applicable Partnerships"),
are either (A) in the case of such Persons (as hereinafter defined)
which are corporations, duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation or (B) in
the case of such Persons which are partnerships or limited liability
companies, a partnership or a limited liability company, as the case
may be, duly formed, validly existing and in good standing (to the
extent applicable) under the laws of its jurisdiction of formation.
Each of PGI and PGLP has the requisite authority to enter into and
perform its obligations under this Agreement. For the purposes hereof,
"Person" means a natural person, partnership, corporation, limited
liability company, association, joint stock company, trust, estate,
joint venture, unincorporated organization or other entity.
(ii) Due Authorization; Binding Agreement. The execution,
delivery and performance of this Agreement by each of PGI and PGLP has
been duly and validly authorized by all necessary action of each of PGI
and PGLP. This Agreement has been duly executed and delivered by each
of PGI and PGLP, and constitutes a legal, valid and binding obligation
of each of PGI and PGLP, enforceable against each of PGI and PGLP in
accordance with the terms hereof, except to the extent enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors rights generally or
general principles of equity.
(iii) Consents and Approvals. No consent, waiver, approval or
authorization of, or filing, registration or qualification with, or
notice to, any governmental unit or any other
6
<PAGE>
Person is required to be made, obtained or given by any Applicable
Partnership in connection with the execution, delivery and performance
by the Prime Transferors of their obligations under this Agreement,
except for such consents, approvals or authorizations which have been
obtained or for which the failure to obtain would not have a Material
Adverse Effect. For the purposes hereof, "Material Adverse Effect"
means a material adverse effect on the business, assets or financial
condition of the Company and its affiliates, taken as a whole.
(iv) No Violation. None of the execution, delivery or
performance of this Agreement by either of PGI or PGLP does or will,
with or without the giving of notice, lapse of time or both, (A)
violate, conflict with or constitute a default (which violation,
conflict or default would result in a Material Adverse Effect) under
any term or condition of (y) the organizational documents of any
Applicable Partnership or any Significant Agreement (as defined below)
to which any Applicable Partnership is a party or by which it is bound,
or (z) any term or provision of any judgment, decree, order, statute,
injunction, rule or regulation of a governmental unit applicable to an
Applicable Partnership or (B) result in the creation of any Lien or
other encumbrance upon the interest of either of PGI or PGLP in any
Contributed Entity or the assets or properties of the Contributed
Entities. For the purposes hereof, "Liens" shall mean any mortgage,
deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, encumbrance for the payment of money, lien
(statutory or otherwise), preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever,
including, but not limited to, any conditional sale or other title
retention agreement or the interest of a lessor under a capital lease.
(v) Ownership of the Contributed Entities. Other than for the
interests of the Kemper Parties which are to be acquired by the
Operating Partnership and the Company on the date hereof, each of the
Persons identified as an Assignor on Schedule 1 hereto is the sole
owner of the partnership interests of a Contributed Entity contributed
by it to the Company or the Operating Partnership (the "Contributed
Partnership Interests") and has good and valid title to such interests,
free and clear of all Liens (subject to the rights and interests of
Patterson that are being contributed pursuant to this Agreement). The
Contributed Partnership Interests have been issued in compliance with
the partnership agreements (as then in effect) of the Contributed
Entities and were not issued in violation of any federal or state
securities laws. There are no rights, subscriptions, warrants, options,
conversion rights or agreements of any kind outstanding to purchase or
to otherwise acquire any securities or obligations of any kind
convertible into any partnership interest or other equity interests or
profit participation of any kind in the Contributed Entities or the
real estate owned by them (the "Properties")(or any part thereof) which
will not be terminated or contributed to the Operating Partnership
prior to Closing.
(vi) Compliance with Laws. Each of the Prime Entities has
complied with all laws (excepting, however, Environmental Laws (as
hereinafter defined), which are specifically covered by subsection
(vii) below) applicable to the conduct of the business of the Prime
Entities and the ownership, use and operation of the Property owned by
a Prime Entity and has obtained all licenses and permits required for
the conduct thereof, except where the failure to so comply or obtain
could not have a Material Adverse Effect. To the best of the
7
<PAGE>
knowledge of each of PGI and PGLP, (A) such licenses and permits are in
full force and effect and (B) neither PGI nor PGLP has received any
notice of violation from any federal, state or municipal entity or
notice of an intention by any such government entity to revoke any
certificate of occupancy or other certificate, license or permit issued
by it in connection with the use of any of the Properties owned by a
Prime Entity, that in each case has not been cured or otherwise
resolved to the satisfaction of such government entity, except where
such failure or such action could not have a Material Adverse Effect.
For the purposes hereof, "Environmental Laws" means all federal, state
and local laws, ordinances and rules of common law relating to
environmental safety or health matters, including those relating to
fines, orders, injunctions, penalties, damages, contribution, cost
recovery compensation, losses or injuries resulting from the release or
threatened release of hazardous substances and the generation, use,
storage, transportation or disposal of hazardous substances.
(vii) Environmental Matters. Except as disclosed in
environmental reports, no Prime Entity has knowingly caused or
permitted any Hazardous Material (as defined under applicable
Environmental Laws) to be improperly maintained or disposed of on,
under or at the Prime Entity's Property or any part thereof in
violation of any Environmental Law. To the knowledge of each of PGI and
PGLP and except for such matters as disclosed in environmental reports
and except for such matters as would not have a Material Adverse
Effect: (A) the Prime Entities are in compliance, and have heretofore
complied, with all Environmental Laws, (B) none of the Prime Entities
has received any written notice from any governmental unit or other
person that it, its current or former operations or the properties now
or heretofore owned, leased or used by it or any of its predecessors,
are not or have not been in compliance with the Environmental Laws or
that it has any material liability with respect thereto, (C) there are
no administrative, regulatory or judicial proceedings pending or
threatened against the Prime Entities pursuant to, or alleging any
material violation of, or material liability under, any Environmental
Laws, (D) none of the properties now or heretofore owned, leased or
used by the Prime Entities has been used as a disposal site for any
Hazardous Materials.
(viii) Ownership of Properties. With respect to each of the
Prime Entities, said Prime Entity (A) is the sole owner of the Property
as indicated on the Schedules hereto and (B) has good, valid and
marketable title to such Property, free and clear of all Liens other
than the Permitted Exceptions. For purposes hereof, "Permitted
Exceptions" shall mean with respect to real property or any interest or
estate therein owned by any Person:
A. Liens or deposits made to secure the release of
such Liens, securing taxes, the payment of which is at the
time not delinquent or the payment of which is actively being
contested in good faith by appropriate proceedings diligently
pursued and for which appropriate reserves shall have been
established on the Applicable Partnership's books in
accordance with generally accepted accounting principles
consistently applied ("GAAP");
B. attachments, judgments and other similar Liens
arising in connection with court or administrative
proceedings, provided that the execution or other enforcement
of such Liens is effectively stayed or secured and the claims
secured by
8
<PAGE>
such Liens are actively being contested in good faith by
appropriate proceedings diligently pursued and for which
appropriate reserves shall have been established on the
Applicable Partnership's books in accordance with GAAP;
C. zoning laws and ordinances; provided that the
Prime Entities' Property is not in violation thereof and that
such laws and ordinances do not require the demolition,
vacation or cessation of the present use of such Property or
require the discontinuance of the use of all or any material
portion of such Property as an office building, an industrial
building or a parking facility, as applicable;
D. any laws, ordinances, deeds of trust, mortgages,
Liens, easements, rights of way, restrictions, exemptions,
reservations, conditions, limitations, covenants, adverse
rights or interests, matters disclosed in the title reports
delivered in connection with the transactions contemplated
hereby (the "Title Reports") and other matters described as
exceptions on the Disclosure Schedule; provided that the
applicable Property is not in violation thereof and the same
do not require the demolition, vacation or cessation of the
present use of such Property or require the discontinuance of
the use of all or any material portion of such Property as an
office building, an industrial building or a parking facility,
as applicable;
E. any other easements, rights of way, restrictions,
exceptions, reservations, conditions, limitations, covenants,
adverse rights or interests, licenses, minor irregularities in
title and other similar encumbrances which do not in the
aggregate have a Material Adverse Effect;
F. any law or governmental regulation or other right
of any governmental unit, which (Y) requires the person to
maintain certain facilities or perform certain acts as a
condition of its occupancy or use of its assets and
properties, or (Z) condemns, appropriates or recaptures the
person's assets or property; and
G. Liens imposed by laws, such as carriers',
warehouseman's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure
payment of obligations not more than 60 days past due or which
are being contested in good faith by appropriate proceedings
diligently pursued, and for which adequate reserves shall have
been established as of the date hereof on the Applicable
Partnership's books in accordance with GAAP.
(ix) Tenant Leases. The rent roll described in subparagraph
(xvi) below lists each of the leases to which a Prime Entity is a party
which is currently in effect with respect to the Property owned by such
Prime Entity, as the same have been amended or modified to the date
hereof. The parties hereto acknowledge that the Disclosure Schedule
does not list, and neither PGI nor PGLP makes any representation with
respect to, (A) subleases, concessions, or license agreements which may
have been entered into by tenants or subtenants or (B) license or
concession agreements which have terms not in excess of sixty (60)
days; provided that, in the case of a sublease or assignment, each of
PGI and PGLP represents that the tenant
9
<PAGE>
listed in the rent roll described in subparagraph (xvi) below remains
liable for the performance of the lease.
(x) Absence of Undisclosed Liabilities and Contractual
Obligations. Except for liabilities arising in the ordinary course of
business, since the date of the Applicable Partnerships' most recent
financial statements and for those matters specifically and adequately
accrued or reserved for in the financial statements of the Applicable
Partnerships, the Prime Entities have no liabilities of any material
nature, required by GAAP to be included in the financial statements of
such Prime Entity, and which would have, individually or in the
aggregate, a Material Adverse Effect. To the knowledge of each of PGI
and PGLP, there are no Significant Agreements of the Prime Entities
other than as set forth in the Title Reports or reflected in the final
prospectus for the initial public offering of securities of the Company
or in the most recent financial statements of the Applicable
Partnerships delivered to the Company. For purposes hereof,
"Significant Agreement" of a Prime Entity means and includes any of the
following to which such Person is a party or by which such Person or
any of its assets or properties may be subject or bound, in each such
case as amended and currently in effect, inclusive of any waivers
relating thereto:
A. all agreements, instruments and documents evidencing
or securing the contractual obligations of the Prime
Property that involve annual payments in excess of
$100,000;
B. all leases where the Prime Entity is the lessee
(including capital leases), contracts, agreements or
commitments (whether written or oral) that are not
terminable without penalty on not more than 90 days'
notice and that involve annual gross payments in
excess of $100,000;
C. all ground leases where the Prime Entity is a ground
lessee; and
D. all reciprocal easement agreements affecting the
Prime Entities.
(xi) Significant Agreements; Binding Agreements. To the
knowledge of PGI and PGLP, each of the Significant Agreements is valid
and binding obligation of the applicable Prime Entity enforceable
against the Prime Entity party thereto in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors rights generally and general equitable principles.
(xii) Litigation. There are no claims, actions, suits or
proceedings pending, and, to the knowledge of each of PGI and PGLP,
there are no investigations pending or claims, actions, suits,
proceedings or investigations threatened, before any court,
governmental unit or any arbitrator with respect to the Prime Entities
in which an adverse determination is reasonably likely and would have a
Material Adverse Effect.
10
<PAGE>
(xiii) Property Improvements. To the knowledge of each of PGI
and PGLP, except as previously disclosed, the improvements at each
Property owned by a Prime Entity is in good condition and repair,
ordinary wear and tear excepted, and has not suffered any material
casualty or other material damage which has not been repaired in all
material respects. To the knowledge of each of PGI and PGLP except as
previously disclosed, there is no material latent or patent structural,
mechanical or other significant defect or deficiency in the
improvements owned by a Prime Entity.
(xiv) Condemnation Proceedings. Except as disclosed in the
Title Reports or as otherwise previously disclosed, no proceedings have
been commenced, or, to the knowledge of each of PGI and PGLP,
threatened, by an authority having the power of eminent domain to
condemn any part of any Property owned by a Prime Entity or any
improvements thereon or, to the knowledge of each of PGI and PGLP, any
property owned by a party to a reciprocal easement agreement affecting
any Prime Entity, except such as would not have a Material Adverse
Effect.
(xv) Bankruptcy and Insolvency. To the knowledge of each of
PGI and PGLP, none of the tenants now occupying any Property owned by a
Prime Entity, is the subject of any bankruptcy, reorganization,
insolvency or similar proceedings.
(xvi) Rent Roll. The rent roll for the Property owned by a
Prime Entity, contained in the closing certificates dated November 17,
1997 for each such entity, is true, correct and complete and, as of the
date thereof, there are no prospective tenant cancellation rights,
prospective renewal or extension options or future rent abatements or
unpaid tenant concessions or other unpaid landlord obligations other
than those summarized on such rent roll, except in each case to the
extent any inaccuracies would not, individually or in the aggregate,
have a Material Adverse Effect.
(xvii) Neither PGI nor PGLP is a "foreign person" within the
meaning of Section 1445 (f) of the Code nor a "foreign partner" within
the meaning of Section 1446 of the Code.
(xviii) Neither PGI nor PGLP owns, directly or indirectly, (i)
five percent (5%) or more of the total combined voting power of all
classes of stock entitled to vote, or five percent (5%) or more of the
total number of shares of all classes of stock, of any corporation that
is a tenant in a Property owned by a Prime Entity or (ii) an interest
of five percent (5%) or more in the assets or net income of any tenant
in a Property owned by a Prime Entity.
(xix) To the knowledge of each of PGI and PGLP, no condition
exists which, with the giving of notice or the passage of time, or
both, would permit any party to cancel its obligations under any
reciprocal easement agreement to which any Prime Entity is a party or
to be relieved of its operating covenants thereunder, except as set
forth in the rent roll described in subparagraph (xvi) above.
(xx) Neither PGI nor PGLP has received or been informed in
writing of the receipt of any written notice which is still in effect
that there is any violation of a condition
11
<PAGE>
or agreement contained in any easement, restrictive covenant or any
similar instrument or agreement affecting any Property or any portion
thereof.
(xxi) Transfer Taxes. There are no transfer taxes payable,
accruing or otherwise arising out of the transfer of the Contributed
Entities to the Company or to the Operating Partnership (including any
reconstitution of the limited partnership interests to general
partnership interests) which shall not have been paid on or prior to
the date hereof, other than transfer taxes relating to the transfer to
the Company of the Contributed Entities in the amount of no more than
$2,500,000.
(b) For the purposes of the representations and warranties of
PGI and PGLP made pursuant hereto, a statement that a fact is true to "the
knowledge" means, that after reasonable investigation, none of the following
Persons actually knows such statement to be untrue: Michael W. Reschke, Richard
S. Curto, Jeffrey A. Patterson, Gary J. Skoien, Robert J. Rudnik and Donald
Faloon. For purposes of this Agreement, any written notice given to the on-site
property manager of a Property shall be deemed to have been given to the
Contributed Entity and PGI.
(c) Patterson hereby represents and warrants to the Company
and the Operating Partnership as follows:
(i) This Agreement constitutes his valid and legally
binding obligation, enforceable against him in accordance with its terms.
(ii) He owns the rights and interests to be conveyed
by him to the Operating Partnership pursuant to the terms of this Agreement free
and clear of all liens and encumbrances.
(d) Except as specifically warranted in this Section, the
Prime Transferors and Patterson make no representations and warranties to the
Company or the Operating Partnership whatsoever regarding the Contributed
Entities, the assets or properties to be acquired under the Contributed
Contracts, or the assets of the Contributed Entities, including, but not limited
to, THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH
ARE SPECIFICALLY DISCLAIMED. The Operating Partnership acknowledges that all of
the assets to be conveyed by the Prime Transferors and Patterson to the
Operating Partnership (and all of the assets of the Contributed Entities) will
be conveyed "as is, where is." The Prime Transferors and Patterson make no
representation or warranty with respect to any asset which is the subject of any
of the Facility Acquisition Agreements.
(e) The Company hereby represents, warrants and covenants with
and to the Prime Transferors and Patterson as follows:
(i) It is a real estate investment trust duly
organized and validly existing under the laws of the State of Maryland.
12
<PAGE>
(ii) It has the full power and authority under the
terms of its trust agreement to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
(iii) This Agreement constitutes its valid and
legally binding obligation, enforceable against it in accordance with its terms.
(iv) On the Closing Date, except as otherwise agreed
to by PGI, the Operating Partnership and/or the Services Company will hire all
of the employees of the Prime Transferors associated with the Contributed
Entities and will assume all liabilities and obligations to or with respect to
such employees, including any accrued but unpaid benefits, bonuses and vacation
pay.
(f) The Operating Partnership hereby represents, warrants and
covenants with and to the Prime Transferors and Patterson as follows:
(i)It is a limited partnership duly organized and
validly existing under the laws of the State of Delaware.
(ii) It has full legal power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby.
(iii) This Agreement constitutes its valid and
legally binding obligation, enforceable against it in accordance with its terms.
(iv) On the Closing Date, except as otherwise agreed
to by PGI, the Operating Partnership and/or the Services Company will hire all
of the employees of the Prime Transferors associated with the Contributed
Entities and will assume all liabilities and obligations to or with respect to
such employees, including any accrued but unpaid benefits, bonuses and vacation
pay.
(v) The Common Units to be issued by the Operating
Partnership to the Prime Transferors and Patterson pursuant to the terms of this
Agreement will, when issued in accordance herewith be duly authorized, fully
paid and nonassessable.
(vi) The Operating Partnership will not take any
action which would cause the transfers provided for in Section 1 not to qualify
for tax-free treatment under section 351 of the Code.
(g) All of the representations and warranties provided for in
this Section 6 shall survive the Closing Date and the delivery of the closing
documents on the Closing Date for a period of two years.
7. CONDITIONS PRECEDENT.
13
<PAGE>
(a) The obligation of the Prime Transferors and Patterson to
consummate the transactions contemplated hereby is subject to the satisfaction
of the following conditions (any of which may be waived by the Prime Transferors
and Patterson in writing):
(i) All the terms, covenants and conditions of this
Agreement to be complied with and performed by the Company or the Operating
Partnership on or before the Closing Date shall have been fully complied with
and performed in all respects.
(ii) All the representations and warranties made by
the Company and Operating Partnership herein shall be true and correct in all
material respects on and as of the Closing Date.
(iii) All consents required for the valid and
effective transfer of the assets to be transferred in accordance with Section 1
shall have been obtained and the consent to the assumption by the Operating
Partnership of the obligations to be assumed by the Operating Partnership
pursuant to Section 4 shall have been obtained, except for any approvals and
consents described in Schedule 8 to this Agreement.
(iv) There shall be no pending or threatened
litigation against any of the parties hereto concerning or relating to the
transactions contemplated hereby.
(v) The approval of all administrative agencies, if
any, whose approval of the transactions contemplated hereby is necessary or
desirable shall have been obtained.
(vi) The Company, the Operating Partnership, PGI and
the other parties signatory thereto shall have entered into a Registration
Rights Agreement in a form mutually agreeable to the parties thereto.
(vii) The Company, the Operating Partnership, Michael
W. Reschke and PGI shall have entered into a Non-Compete Agreement substantially
in a form mutually agreeable to the parties thereto.
(viii) PGI shall have entered into an Indemnity
Agreement in a form mutually agreeable to the parties thereto.
(ix) PGI and the Operating Partnership shall have
entered into a Right of First Offer Agreement in a form mutually agreeable to
the parties thereto.
(b) The obligations of the Company and the Operating
Partnership to consummate the transactions contemplated hereby are subject to
the satisfaction of the following conditions (any of which may be waived by the
Company and Operating Partnership in writing):
(i) All the terms, covenants and conditions of this
Agreement to be complied with and performed by the Prime Transferors and
Patterson on or before the Closing Date shall have been fully complied with and
performed in all respects.
14
<PAGE>
(ii) All the representations and warranties made by
the Prime Transferors and Patterson herein shall be true and correct in all
material respects on and as of the Closing Date.
(iii) All required consents necessary for the valid
and effective transfer of the assets to be transferred to the Operating
Partnership in accordance with the provisions of Section 1 shall have been
obtained and the consent to the assumption by the Operating Partnership of the
obligations to be assumed by the Operating Partnership pursuant to Section 4
shall have been obtained, except for any approvals and consents described in
Schedule 8 to this Agreement.
(iv) The Operating Partnership shall have obtained
title insurance (or endorsed commitment) insuring that all real property owned
by the Contributed Entities are vested in the respective entities free and clear
of all mortgages, liens and encumbrances except those reasonably acceptable to
the Operating Partnership.
(v) The conditions referred to in Sections 7(a)(iv)
through 7(a)(ix) shall have been complied with or otherwise satisfied.
(vi) PGI shall have entered into an Environmental
Remediation and Indemnification Agreement with the Operating Partnership in a
form mutually agreeable to the parties thereto.
8. INDEMNIFICATION
(a) Each Prime Transferor and Patterson hereby agrees to
indemnify the Company and the Operating Partnership for, and to hold the Company
and the Operating Partnership harmless from, the following:
(i) Any and all liabilities, damages, losses, costs
or deficiencies including any liabilities, damages, losses, costs or
deficiencies under the Securities Act of 1933, as amended, resulting from any
misrepresentation, breach of any warranty or nonfulfillment of any agreement or
covenant on the part of the Prime Transferor or Patterson, whether contained in
this Agreement or in any document furnished in connection with the transactions
contemplated hereby; and
(ii) Any and all actions, suits, proceedings,
demands, assessments, judgments, costs and expenses incident to the foregoing,
including reasonable attorney's fees.
(b) Each of the Company and the Operating Partnership hereby
agrees to indemnify each Prime Transferor and Patterson for, and to hold each
Prime Transferor and Patterson harmless from, the following:
15
<PAGE>
(i) Any and all indebtedness, lease, contract or
other liabilities and obligations assumed by the Company and the Operating
Partnership in accordance with the terms hereof;
(ii) Any and all liabilities, losses, costs, damages
or deficiencies resulting from any misrepresentations, breach of any warranty or
nonfulfillment of any agreement or covenant on the part of the Company or the
Operating Partnership, whether contained in this Agreement or in any document
furnished in connection with the transactions contemplated hereby;
(iii) Any and all liabilities, damages, losses, costs
or deficiencies resulting from any act or circumstance relating to any of the
assets transferred (including the assets and operations of the Contributed
Entities and operations of PGI's office and industrial real estate division)
whenever occurring;
(iv) Any loss, claim, damage, or liability, including
any loss, claim, damage, or liability under the Securities Act of 1933, as
amended, or any applicable state securities laws, arising out of, or
attributable to the Offering, except for losses, claims, damages or liabilities
arising from the inaccuracy of information supplied by PGI for inclusion in the
prospectus relating to the Offering; and
(v) Any and all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses incident to any of the foregoing,
including reasonable attorneys' fees.
(c) Any party seeking indemnification ("Indemnitee") pursuant
to this Section 8 shall promptly (within 20 days of service to the Indemnitee if
a third party has commenced actual litigation against the Indemnitee) give
written notice to the party from which indemnification is sought ("Indemnitor")
after the Indemnitee has knowledge of any claim against the Indemnitor as to
which recovery may be sought against the Indemnitee pursuant to this Section 8,
or of the commencement of any legal proceedings against the Indemnitee as to
such claim after the Indemnitee has knowledge of such proceedings, whichever
shall first occur, and shall permit the Indemnitor to assume the defense of any
such claim or any litigation resulting from such claim. Such notice shall
specify in reasonable detail the facts known to the Indemnitee giving rise to
such indemnification rights and, if possible, an estimate of the amount of
liability which could result therefrom. The right of the Indemnitee to
indemnification hereunder shall be deemed agreed to unless, within ten days
after the receipt of such notice, the Indemnitee is notified in writing by the
Indemnitor that it disputes the right to indemnification as set forth in such
notice. Failure by the Indemnitor to notify the Indemnitee of the Indemnitor's
election to defend such action within ten days after notice thereof shall have
been given to the Indemnitor, or failure to deliver notification to the
Indemnitee by the Indemnitor that the Indemnitee's right to indemnification is
being disputed, shall be deemed an acknowledgment by Indemnitor that Indemnitee
is entitled to indemnification hereunder and shall be deemed to be an election
by Indemnitor to defend such action. The Indemnitor shall not, in the defense of
such claim or any litigation resulting therefrom, consent to entry of any
judgment (except with the consent of the Indemnitee) or enter into any
settlement (except with the consent of the Indemnitee) which does not include as
an unconditional term thereof the giving by the claimant or the plaintiff to the
Indemnitee of a full, absolute and unconditional release from all liability in
respect of such claim or litigation.
16
<PAGE>
(d) If the Indemnitor shall not assume the defense of any such
claim or litigation resulting therefrom, the Indemnitee may defend against such
claim or litigation in such manner as it may deem appropriate. The Indemnitee
may settle such claim or litigation on such terms as it may deem appropriate and
the Indemnitor shall promptly reimburse the Indemnitee for the amount of such
settlement, and all expenses, legal or otherwise, incurred by the Indemnitee in
connection with the defense against, or settlement of, such claim or litigation.
If no settlement of such claim or litigation is made, the Indemnitor shall
promptly reimburse the Indemnitee for the amount of any judgment rendered with
respect to such claim or in such litigation, and of all expenses, legal or
otherwise, incurred by the Indemnitee in the defense against such claim or
litigation. Notwithstanding the foregoing, if the Indemnitor has disputed the
Indemnitee's right to indemnification in accordance with the provisions of
Section 8(c), the Indemnitor shall not be obligated to pay the Indemnitee the
amount provided for in this Section 8(d) until such dispute has been resolved
and it has been determined that the Indemnitor is required to make such
indemnification payment.
(e) The right of any party to seek indemnification hereunder
shall expire as to any claim not made on or prior to the second anniversary of
the Closing whether or not the basis for any such claim was known on such date.
(f) The Prime Transferors maximum liability under this Section
8 shall be limited to $69,300,000.
(g) The recourse against Patterson for indemnity claims under
this Section 8 shall be limited to the reconveyance by Patterson to the
Operating Partnership of that certain amount of Common Units equal in value
(based on the then trading value of the Common Shares of the Company) to the
amount of the indemnity claim. Further, in no event shall Patterson be liable
for further amounts after the reconveyance to the Operating Partnership of his
full 110,000 Common Units received on the date hereof. Without the prior written
consent of the Operating Partnership, Patterson agrees not to assign, transfer,
pledge or otherwise convey such 110,000 Common Units for a period expiring on
the later of (i) November 17, 1999, or (ii) the satisfaction of any claim for
indemnification made of Patterson pursuant to this Section 8.
(h) As between the Prime Transferors and Patterson all
liabilities under this Section 8 shall be shared on a pro-rata basis in
accordance with the maximum amount of liability under this Section 8 of the
Prime Transferors as set forth in Section 8(f) of $69,300,000 and an amount for
Patterson of $2,200,000, unless the liability is caused by the gross negligence
or willful misconduct of either the Prime Transferors or Patterson, in which
event, as between the Prime Transferors and Patterson, the Person guilty of the
gross negligence or willful misconduct shall be solely liable.
17
<PAGE>
9. MISCELLANEOUS.
(a) Each of the parties hereto hereby covenants and agrees
that subsequent to the Closing Date they will, at any time, and from time to
time, upon the request and at the expense of the Company, do, acknowledge and
deliver, or cause to be done, executed, acknowledged and delivered, all such
further acts, deeds, assignments, transfers, conveyances, powers of attorney and
assurances as may reasonably be required to fully effectuate the transactions
contemplated by this Agreement. Each of the Prime Transferors and Patterson
hereby constitutes and appoints the Company as its true and lawful
attorney-in-fact, with full power of substitution, to collect for the account of
the Company or the Operating Partnership, as applicable, any receivables and
other items conveyed to the Company or the Operating Partnership, as applicable,
pursuant to the provisions of Section 1, to endorse in the name of the Prime
Transferor, Patterson, the Company or the Operating Partnership, or any of them,
any check received on account of any receivable, claim or other item, to
institute and prosecute in the name of a Prime Transferor, Patterson or
otherwise, any and all proceedings which the Company or the Operating
Partnership may deem proper in order to collect, assert or enforce any claim,
right or title of any kind in and to any of such transferred assets.
(b) All notices, requests, demands or other communications
required or permitted under this Agreement shall be in writing and be personally
delivered against a written receipt, delivered to a reputable overnight courier,
for overnight delivery, transmitted by confirmed telephonic facsimile (fax) or
transmitted by mail, registered, express or certified, return receipt requested,
postage prepaid, addressed as follows:
If to the Company or the Operating Partnership:
Prime Group Realty Trust
77 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: President
Fax: (312) 782-5867
With a copy to:
Prime Group Realty Trust
77 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: General Counsel
Fax: (312) 917-1684
18
<PAGE>
If to PGI or PGLP:
c/o The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: Michael W. Reschke
Fax: (312) 917-1511
With a copy to:
The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: Robert J. Rudnik
Fax: (312) 917-1684
and
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attn: Wayne D. Boberg
Fax: (312) 558-5700
If to Patterson:
Jeffrey A. Patterson
403 North Lincoln Street
Hinsdale, Illinois 60521
All notices, demands and requests shall be effective upon being properly
personally delivered, one (1) business day after delivery to a reputable
overnight courier, upon transmission of a confirmed fax, or upon being deposited
in the United States mail in the manner provided in this Section 9. However, the
time period in which a response to any such notice, demand or request must be
given shall commence to run from the date of personal delivery, one (1) business
day after delivery to a reputable overnight courier, the date on the
confirmation of a fax, or the date on the return receipt, as applicable. If any
party refuses delivery, the notice, demand or request shall be deemed received
(i) one business day after personal delivery of the notice, demand or request
was attempted or the notice, demand or request was delivered to a reputable
overnight courier or was transmitted by fax or (ii) three business days after
the notice, demand or request was deposited in the United States mail.
(a) This Agreement may be modified or amended from time to
time only by a written instrument executed by all of the parties hereto.
19
<PAGE>
(b) Captions contained in this Agreement are inserted only as
a matter of convenience and reference, and in no way define, limit, extend or
describe the scope of this Agreement, or the intent of any provision hereof. All
references to Sections herein shall refer to Sections of this Agreement unless
the context clearly requires otherwise.
(c) This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
(d) This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Illinois without regard to
its conflicts of laws rules.
(e) This Agreement represents the entire agreement of the
parties hereto with respect to the subject matter hereof.
(f) This Agreement may be executed in counterparts which,
taken together, shall constitute one and the same instrument.
(g) Notwithstanding anything in this Agreement to the
contrary, there shall be no recourse for any of the obligations set forth herein
against the partners of PGLP or to or against their personal assets.
[signature page follows]
20
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
PRIME GROUP REALTY TRUST
By: /s/ W. Michael Karnes
-----------------------------------
Its: Executive VP
-------------------------
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Group
Its General Partner
By: /s/ W. Michael Karnes
-----------------------------------
Its Executive VP
--------------------------
PRIME GROUP REALTY SERVICES, INC.
By: /s/ W. Michael Karnes
-----------------------------------
Its Executive VP
--------------------------
THE PRIME GROUP, INC.
By: /s/ Ray Grinvalds
------------------------------------
Name: Ray Grinvalds
---------------------------------
Title: SVP
--------------------------------
PRIME GROUP LIMITED PARTNERSHIP
By: /s/ Michael W. Reshcke
-----------------------------------
Michael W. Reschke,
Managing General Partner
/s/ Jeffrey A. Patterson
-----------------------------------
21
<PAGE>
SCHEDULE 1
TO
FORMATION AGREEMENT
<TABLE>
<CAPTION>
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Interest Being Transferred to Interest Being
Operating Partnership Transferred to
Entity the Company Assignor
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
<S> <C> <C> <C>
K/77 Investors Limited Partnership
(dissolve after assignments)........... 98.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% G.P. Kilico Realty
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
77 West Wacker Limited Partnership..... 5% G.P. Kilico Realty
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
5% G.P. PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
34.9% L.P. .1% L.P. PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
55% L.P. K/77 Investors Limited
Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
77 Fitness Center Limited Partnership.. 89.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
10% G.P. PGI (from Prime 77
Fitness Center, Inc.)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1669 Woodfield
Road, L.L.C............................ 98% L.L.C. PGLP (includes 1% from
PGLP, Inc. and 1% from
Prime International,
Inc.)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% L.L.C. PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% L.L.C. Prime Group II, L.P.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Interest Being Transferred to Interest Being
Operating Partnership Transferred to
Entity the Company Assignor
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
<S> <C> <C> <C>
Triad Development Company (dissolve after
assignments) 25% G.P. Kilico Realty
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
(PGC Development, Ltd. to distribute its 25% L.P. KILICO
ownership interests prior to assignments)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% G.P. PGI (from Prime of
Tennessee, Inc.)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
.48% L.P. (from PGC PGI (from PGC, Inc.)
Development, Ltd.)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
16.04% L.P. (from PGC Professional Plaza,
Development, Ltd.) Ltd. (from R. Dan Culp)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
32.38% L.P. (31.48% from PGC .1% L.P. PGI
Development, Ltd.)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Nashville Office Building I, Ltd...... 49% G.P. Triad
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
50.9% L.P. .1% L.P. PGI (from Suzette
Rand)(1)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Professional Plaza, Ltd.(1)............ 49% G.P. Triad
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
50.9% L.P. .1% L.P. PGI (from Tom Dolinak(2)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
</TABLE>
- -------------------
(1) Use Power of Attorney granted to Triad Development Company to assign to
PGI and then assign to Operating Partnership and the Company.
(2) Operating Partnership will assign a .1% L.P. interest in this limited
partnership to R. Dan Culp.
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Interest Being Transferred to Interest Being
Operating Partnership Transferred to
Entity the Company Assignor
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
<S> <C> <C> <C>
Centre Square II, Ltd.................. 49% G.P Triad
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
50.9% L.P. .1% L.P. PGI (from Peter Rowley(2)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Old Kingston Properties, Ltd. ....... . 49% G.P. Triad
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
50.9% L.P. .1% L.P. PGI (from Donna
Wadzita)(2)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Triad Parking Corporation (dissolve after 50% stock PGI
assignments)...........................
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
50% stock Kilico Realty
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Triad Parking Company, Ltd............. 98.9% L.P. .1% L.P. Triad
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% G.P. Triad Parking
Corporation
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Prime Columbus
Industrial, L.L.C...................... 98% LLC PGLP (includes 1% from
Prime International,
Inc. and 1% from PGLP,
Inc.)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- -------------------
</TABLE>
(2) Use Power of Attorney granted to Triad Development Company to assign to
PGI and then assign to Operating Partnership and the Company.
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Interest Being Transferred to Interest Being
Operating Partnership Transferred to
Entity the Company Assignor
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
<S> <C> <C> <C>
1% LLC PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% LLC Prime Group II, L.P.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Arlington Heights I, L.P............... 48.9% L.P. .1% L.P. Prime Group IV, L.P.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
50% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% G.P.* PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Arlington Heights II, L.P.............. 48.9% L.P. .1% L.P. Prime Group IV, L.P.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
50% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% G.P.* PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Arlington Heights III, L.P............. 48.9% L.P. .1% L.P. Prime Group IV, L.P.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
50% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% G.P.* PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Prime IRB Holdings, L.P (to be dissolved
after assignments and transfer of Bonds) 98.9% L.P. .1% L.P. PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% G.P. PGLP (from Prime IRB,
Inc.)
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
</TABLE>
* 1% G.P. interest to be assigned to PGI from Prime/AH Industrial Center,
Inc. prior to assignments.
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Interest Being Transferred to Interest Being
Operating Partnership Transferred to
Entity the Company Assignor
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
<S> <C> <C> <C>
East Chicago Enterprise Center Limited
Partnership............................ 50% L.P. Prime Group IV, L.P.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
22.5% G.P. PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
27.4% L.P. .1% L.P. PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Kemper/Prime Industrial Partners....... 50% G.P. Prime Group IV, L.P.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% G.P. .1% G.P. PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Hammond Enterprise Center Limited
Partnership............................ 50% L.P. Prime Group IV, L.P.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
25% G.P. PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
24.9% L.P. .1% L.P. PGI
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
K-P Enterprise Centers, Inc. 50% stock PGLP
(dissolve after assignments)........... 50% stock Prime Group IV, L.P.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
K-P Enterprise Centers
Limited Partnership (dissolve after
assignments)........................... 49% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
50% L.P. Prime Group IV, L.P.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
1% G.P. K-P Enterprise Centers,
Inc.
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Enterprise Center I, L.P............... 50% G.P. K-P Enterprise
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Interest Being Transferred to Interest Being
Operating Partnership Transferred to
Entity the Company Assignor
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
<S> <C> <C> <C>
Centers
Limited Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Enterprise Center II, L.P.............. 50% G.P. K-P Enterprise Centers
Limited Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Enterprise Center III, L.P............. 50% G.P. K-P Enterprise Centers
Limited Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Enterprise Center IV, L.P.............. 50% G.P. K-P Enterprise Centers
Limited Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Enterprise Center V, L.P............... 50% G.P. . K-P Enterprise Centers
Limited Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Enterprise Center VI, L.P.............. 50% G.P. K-P Enterprise Centers
Limited Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Interest Being Transferred to Interest Being
Operating Partnership Transferred to
Entity the Company Assignor
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
<S> <C> <C> <C>
Enterprise Center VII, L.P............. 50% G.P. K-P Enterprise Centers
Limited Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Enterprise Center VIII, L.P............ 50% G.P. . K-P Enterprise Centers
Limited Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Enterprise Center IX, L.P.............. 50% G.P. K-P Enterprise Centers
Limited Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
Enterprise Center X, L.P............... 50% G.P. K-P Enterprise Centers
Limited Partnership
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
49.9% L.P. .1% L.P. PGLP
- ------------------------------------------- ------------------------------- -------------------------- -------------------------
</TABLE>
- -------------------
All entities on this Schedule 1 are Prime Entities other than 1669
Woodfield Road, L.L.C. and Prime Columbus Industrial, L.L.C. which are Prime
Contribution Entities.
<PAGE>
SCHEDULE 4 TO FORMATION AGREEMENT
Asset Purchase Agreement by and among Continental Offices, Ltd.,
Continental Offices Ltd. Realty and Prime Group Realty, L.P.
Agreement for Purchase or Exchange dated June 13, 1997 by and between
Sun Annex Partners and Salt Creek Partners, Ltd. and The Prime Group, Inc.
Assignment and Assumption of Real Estate Purchase and Sale Agreement
dated November 16, 1997 by and between The Prime Group, Inc. and 1990
Algonquin Road, L.L.C. and 2010 Algonquin Road, L.L.C.
Purchase and Sale Agreement dated October, 1997, by and between The
Mutual Life Insurance Company of New York, a New York mutual life insurance
company and The Prime Group, Inc.
Contract of Sale dated October 13, 1997, by and between The Mutual Life
Insurance Company of New York, a New York mutual life insurance company and
The Prime Group, Inc.
Contract of Sale dated October 13, 1997 between MGI Properties
(formerly known as Mortgage Growth Investors), One Winthrop Square, Boston,
Massachusetts 02110 (Seller) and The Prime Group, Inc., 77 West Wacker
Limited Partnership (Purchaser).
Purchase and Sale Agreement and Joint Escrow instructions dated October
1, 1997 by and between Mission Land Company and The Prime Group, Inc.
<PAGE>
SCHEDULE 5 TO FORMATION AGREEMENT
NONE
<PAGE>
Schedule 6
ESCROW RECEIPT AND DISBURSEMENT AUTHORIZATION PAGE 1
ESCROW NUM: 097070239-001 ORDER NUM: 01401-097070239 D2
CLOSER: NANCY CASTRO
BUYER: XX
SELLER: XX
PROPERTY:
RECEIPTS
THE PRIME GROUP, INC. 31,865.20
PARTNERSHIP FUNDING (KNOXV) 273,560.00
PARTNERSHIP FUNDING RE: 77 893,827.00
PRIMESTONE - PGI PRIMESTON 240,000.00
PRIMESTONE - BLACKSTONE 45,160,000.00
PRIMESTONE - PRUDENTIAL SE 39,600,000.00
SECURITY CAPITAL 39,000,000.00
PRUDENTIAL SECURITIES LOAN 82,613,370.00
PRUDENTIAL SECURITIES RE: 232,125,000.00
EM/TICOR TO COME 373,579.61
CT&TCO./JO EM TO COME 800,000.00
--------------
TOTAL RECEIPTS 441,711,202.01
--------------
--------------
DISBURSEMENTS
A BANK OF MONTREAL, CHICAGO BRANCH W 000000002390 11/17/97
230,802,639.78
CHECK TOTAL 230,802,639.78
B HELLER FINANCIAL, INC. W 000000002391 11/17/97
8,512,403.26
CHECK TOTAL 8,512,403.26
C ALLIED CAPITAL W 000000002392 11/17/97
11,258,519.92
2,011,805.55
CHECK TOTAL 13,270,325.47
D MCHENRY STATE BANK W 000000002473 11/17/97
7,707,033.45
CHECK TOTAL 7,707,033.45
E NATIONWIDE LIFE INSURANCE COMPANY W 000000002396 11/17/97
6,443,983.60
CHECK TOTAL 6,443,983.60
F NATIONWIDE LIFE INSURANCE COMPANY W 000000002398 11/17/97
690,426.27
CHECK TOTAL 690,426.27
G GENERAL AMERICAN LIFE INS CO W 000000002399 11/ 17/97
5,423,246.28
H GENERAL AMERICAN LIFE INS CO W 000000002402 11/ 17/97
2,480,104.36
CHECK TOTAL 2,480,104.36
<PAGE>
ESCROW RECEIPT AND DISBURSEMENT AUTHORIZATION PAGE 2
ESCROW NUM: 097070239-001 ORDER NUM: 01401-097070239 D2
CLOSER: NANCY CASTRO
I GENERAL AMERICAN LIFE INS CO W 000000002403 11/ 17/97
1,756,335.41
CHECK TOTAL 1,756,335.41
J GENERAL AMERICAN LIFE INS CO W 000000002404 11/ 17/97
4,006,541.08
CHECK TOTAL 4,006,541.08
K FIRST TENNESSEE BK NATL ASOC KNOXVILLE W 000000002405 11/ 17/97
1,123,676.59
CHECK TOTAL 1,123,676.59
L FIRST TENNESSEE BK NATL ASSOC KNOXVILLE W 000000002406 11/17/97
5,293,736.78
CHECK TOTAL 5,293,736.78
M MID NORTH FINANCIAL SERVICES, INC W 000000002461 11/17/97
1,380,605.72
CHECK TOTAL 1,380,605.72
N BANK ONE ILLINOS, NA W 000000002408 11/17/97
6,851,602.96
CHECK TOTAL 6,851,602.96
O LASALLE BANK NI W 000000002409 11/17/97
3,586,653.61
CHECK TOTAL 3,586,653.61
P LASALLE NATIONAL BANK W 000000002411 11/17/97
1,916,681.97
CHECK TOTAL 1,916,681.97
Q LASALLE BANK NA W 000000002412 11/17/97
3,830,113.09
CHECK TOTAL 3,830,113.09
R MELLON MORTGAGE COMPANY W 000000002413 11/17/97
647,496.75
CHECK TOTAL 647,496.75
S WEST SUBURBAN BANK W 000000002415 11/17/97
495,084.05
CHECK TOTAL 495,084.05
T LASALLE BANK NA W 000000002416 11/17/97
498,577.10
CHECK TOTAL 498,577.10
U AID ASSOCIATION FOR LUTHERANS W 000000002417 11/17/97
3,711,924.67
CHECK TOTAL 3,711,924.67
<PAGE>
ESCROW RECEIPT AND DISBURSEMENT AUTHORIZATION PAGE 3
ESCROW NUM: 097070239-001 ORDER NUM: 01401-097070239 D2
CLOSER: NANCY CASTRO
V MIDLAND LOAN SERVICES W 000000002418 11/17/97
13,988,172.25
CHECK TOTAL 13,988,172.25
W WEST SUBURBAN BANK W 000000002421 11/17/97
153,383.85
CHECK TOTAL 153,383.85
X LASALLE BANK NA W 000000002423 11/17/97
1,057,253.72
CHECK TOTAL 1,057,253.72
Y LASALLE BANK NA W 000000002424 11/17/97
254,109.37
CHECK TOTAL 254,109.37
A LASALLE BANK NA W 000000002426 11/17/97
3,302,323.64
CHECK TOTAL 3,302,323.64
AA MERCANTILE BANK W 000000002428 11/17/97
4,705,340.59
CHECK TOTAL 4,705,340.59
AB MERCANTILE BANK W 000000002430 11/17/97
1,077,115.42
CHECK TOTAL 1,077,115.42
AC MERCANTILE BANK W 000000002434 11/17/97
2,350,893.56
CHECK TOTAL 2,350,893.56
AD NATIONAL CANADA CORPORATION W 0000000002419 11/17/97
19,444,186.94
CHECK TOTAL 19,444,186.94
AE CHICAGO TITLE AND TRUST COMPANY
200,000.00
CHECK TOTAL 200,000.00
AF RICHARD S. HOMER W 000000002436 11/17/97
144,026.72
CHECK TOTAL 144,026.72
AG LUMBERMANS MUTUAL CASUALTY COMPANY W 000000002437 11/17/97
PER CLOSING STATEMENT (KEMPER) 3,050,000.00
CHECK TOTAL 3,050,000.00
AH KILICO REAL ESTATE ACCOUNT W 000000002439 11/17/97
2,524,272.00
CHECK TOTAL 2,524,272.00
AI U.S. TITLE GUARANTY CO, INC W 000000002463 11/17/97
SALT CREEK NET PROCEEDS 1,365,284.71
CHECK TOTAL 1,365,284.71
AJ AMERICAN UNITED LIFE INSURANCE COMPANY W 000000002441 11/17/97
2,350,950.57
<PAGE>
ESCROW RECEIPT AND DISBURSEMENT AUTHORIZATION PAGE 4
ESCROW NUM: 097070239-001 ORDER NUM: 01401-097070239 D2
CLOSER: NANCY CASTRO
CHECK TOTAL 2,350,950.57
AK NARCO 4300 ASSOCIATES W 000000002442 11/17/97
PYT. AS DIR., PROCEEDS 334,676.00
CHECK TOTAL 334,676.00
AL CAROL STREAM INDUSTRIAL PARK W 000000002443 11/17/97
PYT. AS DIR., PROCEEDS 348,335.00
CHECK TOTAL 348,335.00
AM NARCO ENTERPRISES, INC. W 000000002445 11/17/97
PYT. AS DIR., PROCEEDS 238,774.00
CHECK TOTAL 238,774.00
AN NARCO LISLE ASSOCIATES W 000000002446 11/17/97
PYT. AS DIR., PROCEEDS 3,228,760.00
CHECK TOTAL 3,228,760.00
AO RAWLS 130 W 000000002450 11/17/97
PYT. AS DIR., PROCEEDS 952,036.00
CHECK TOTAL 952,036.00
AP TRI-STATE INDUSTRIAL PARK W 000000002451 11/17/97
PYT. AS DIR., PROCEEDS 51,869.00
CHECK TOTAL 51,869.00
AQ UTAH FIRST EXCHANGE, INC. W 000000002452 11/17/97
EDWARD E. JOHNSON PROCEEDS 169,522.98
CHECK TOTAL 169,522.98
AR IBD W 000000002453 11/17/97
PROCEEDS 427,987.00
CHECK TOTAL 47,987.00
AS SHEFSKY FORELICH & DIVINE LTD. W 000000002454 11/17/97
LEGAL FEES 111,000.00
CHECK TOTAL 111,000.00
AT CREDIT SUISSE, FIRST BOSTON W 000000002454 11/17/97
LETTER OF CREDIT EXTENSION FEE 75,000.00
CHECK TOTAL 75,000.00
AU CHICAGO TITLE 97970059
5,856,255.57
143,744.43
CHECK TOTAL 6,000,000.00
AW STEPHEN J. NARDI W 000000002502 11/17/97
AFFILIATE LOAN PAYMENT 6,114,204.00
CHECK TOTAL 6,114,204.00
AX SAM SAX
PROCEEDS/HADESMAN 100,000.00
CHECK TOTAL 100,000.00
<PAGE>
ESCROW RECEIPT AND DISBURSEMENT AUTHORIZATION PAGE 5
ESCROW NUM: 097070239-001 ORDER NUM: 01401-097070239 D2
CLOSER: NANCY CASTRO
AY TO COME
PYT RE: SURVEY 4,700.00
CHECK TOTAL 4,700.00
B CT&T CO.
TITLE - OTHER HADESMAN 17,665.00
CHECK TOTAL 17,665.00
BA CT&T CO.
PYT RE TECHNOLOGY 1,337.00
CHECK TOTAL 1,337.00
BB CT&T CO.
TRANSFER TAX RE 801N TECHNOLOGY 6,075.00
CHECK TOTAL 6,075.00
BC CT&T CO.
ALL OTHER TRANSFER TAX 70,632.00
CHECK TOTAL 70,632.00
BD BENNETT & KAHNWEILER
BROKER 50,000.00
CHECK TOTAL 50,000.00
BE PRUDENTIAL SECURITIES, INC. W 000000002485 11/17/97
PYT RE FINANCIAL ADVISORY FEE 1,841,618.50
CHECK TOTAL 1,841,618.50
BF BANK OF BOSTON W 000000002494 11/17/97
940,062.27
CHECK TOTAL 940,062.27
BG PRUDENTIAL SECURITIES, BK OR NY W 000000002497 11/17/97
562,500.00
CHECK TOTAL 562,500.00
BH VERRILL & DANA
132,500.00
CHECK TOTAL 132,500.00
BI BELL, BOYD & LLOYD
PYT. AS DIR., FEES & EXPENSES 291,200.00
CHECK TOTAL 291,200.00
BJ THE PRIME GROUP, INC. W 000000002491 11/17/97
PROCEEDS 7,420,509.79
CHECK TOTAL 7,420,509.79
BK FIRST AMERICAN TITLE W 000000002521 11/17/97
PYT. AS DIR., RE NARDI 202,824.30
CHECK TOTAL 202,824.30
BL BAKER DONELSON
BOND COUNSEL FEE 30,600.00
CHECK TOTAL 30,600.00
<PAGE>
ESCROW RECEIPT AND DISBURSEMENT AUTHORIZATION PAGE 6
ESCROW NUM: 097070239-001 ORDER NUM: 01401-097070239 D2
CLOSER: NANCY CASTRO
BM KEMPER
LETTER OF CREDIT FEE 9,776.00
ASSET MANAGEMENT FEE 6,209.72
CHECK TOTAL 15,985.72
BN SAM SAX
PARTNERSHIP PORTION 100,000.00
CHECK TOTAL 100,000.00
BO TO COME
SURVEYS RE HADESMAN 14,878.02
CHECK TOTAL 14,878.02
BQ AMERICAN NATIONAL BANK
TRUST FEES RE NARDI 125.00
CHECK TOTAL 125.00
BR WINSTON & STRAWN
CONTINENTAL OFFICE ESCROW 700,000.00
CHECK TOTAL 700,000.00
BS CONTINENTAL OFFICES LIMITED
PURCHSE OF ASSETS 5,225,129.00
CHECK TOTAL 5,225,129.00
BT KEMPER
PYT. AS DIR., RE TRIAD 1,597,851.41
CHECK TOTAL 1,597,851.41
BU TICOR TITLE
33,186.02
CHECK TOTAL 33,186.02
BV CB COMMERCIAL
270,000.00
CHECK TOTAL 270,000.00
BW STEPHEN J. NARDI W 00000002520 11/17/97
PROCEEDS 3,277,025.00
CHECK TOTAL 3,277,025.00
BX CHICAGO TITLE
RETAIN RE MUNSTER 13,450,000.00
CHECK TOTAL 13,450,000.00
--------------
TOTAL DISBURSEMENTS 431,486,698.00
--------------
--------------
BALANCE 10,224,503.41
--------------
--------------
<PAGE>
Schedule 7
To Formation Agreement
Disclosure Schedule
1. All matters disclosed in any title insurance reports or commitments
delivered in connection with the transactions contemplated by the Formation
Agreement.
2. All matters disclosed in any environmental assessments or reports
delivered in connection with the transactions contemplated by the Formation
Agreement.
3. All matters disclosed in the Registration Statement and Prospectus,
dated November 11, 1997, including the exhibits thereto and the financial
statements included therein.
4. Tenants in which The Prime Group, Inc. or Prime Group Limited
Partnership has a 5% or more interest:
<TABLE>
<CAPTION>
Entity Address of Project
<S> <C>
Brookdale Living Communities, Inc. 77 West Wacker Drive
48th Floor
Chicago, IL 60601
The Prime Group, Inc. 77 West Wacker Drive
42nd Floor
Chicago, IL 60601
Ambassador Apartments, Inc. 77 West Wacker Drive
40th Floor
Chicago, IL 60601
The Prime Group, Inc.* 77 West Wacker Drive
39th Floor
Chicago, IL 60601
</TABLE>
*Will be assumed by Prime Group Realty Trust
5. Pending litigation:
(a) Karen McIntosh v. The Prime Group, Inc. . Pepper Construction Company,
77 West Wacker Limited Partnership, and all unknown owners of 77 West Wacker,
Case No. 94 M2 1646, filed on June 9, 1994, in the Circuit Court of Cook
County, Illinois, Municipal Department - Second District. Plaintiff, an
employee of a tenant in the 77 West Wacker Drive Building (the "77 Project'),
alleges that she was struck by a board providing protection to the wood
paneling in the elevator cab in the 77 Project and, as a result thereof,
sustained injuries. Pepper Construction
<PAGE>
Company ("Pepper") constructed the protective barrier in the elevator cab.
The plaintiff alleges that The Prime Group, Inc. ("PGI") and 77 West Wacker
Limited Partnership (the "77 Partnership") were negligent in failing to
maintain, inspect and repair the elevator cab in a reasonable manner and,
that her injuries were proximately caused by such negligence. This matter
has been forwarded to the 77 Partnership's insurance carrier. The 77
Partnership's insurance carrier has tendered the defense of this action to
the insurance carrier for Pepper, which has accepted the tender. It is
expected that any and all damages awarded to the plaintiff against the 77
Partnership or PGI will be fully covered by insurance.
(b) Michael Spiezio v. Schal Associates, Inc. , Pepper Construction, The
Prime Group, Inc. and Carrera Marble & Mosaics, Case No. 92L15284, filed on
December 15, 1992, in the Circuit Court of Cook County, Illinois, County
Department, Law Division. Plaintiff alleges that he was an employee of
Carrera Marble & Mosaics ("Carrera"), which performed work and/or supplied
materials for or in connection with the construction of the 77 Project. The
plaintiff alleges that, while working on the 77 Project, the plaintiff
sustained injuries, and is seeking damages therefor. The defense of this
case is being handled by Carrera's insurance carrier. It is expected that
any and all damages awarded to the plaintiff against the 77 Partnership or
PGI will be fully covered by insurance.
(c) Giuseppe Fricano v. Schal Associate, Inc. and 77 West Wacker Limited
Partnership, Case No. 92LI4542, filed in the Circuit Court, Cook County,
Illinois on November 20, 1992. The plaintiff in this action, alleges that he
was an employee of GMI Corporation ("GMI") , a subcontractor retained by
Schal to perform work in connection with the construction of the 77 Project,
and that he was injured while performing work on the 77 Project. The 77
Partnership has tendered defense of this lawsuit to the 77 Partnership's
insurance carrier, which, in turn, tendered defense of the action to
Massachusetts Bay Insurance Company ("MBIC") , the insurance carrier of GMI,
which has accepted the defense of this lawsuit. The defense of this action is
being handled by attorneys retained by MBIC. It is expected that any and all
damages awarded to the plaintiff against the 77 Partnership will be fully
covered by insurance.
(d) Charles O. Dowler v. Schal Associates, Inc., The Prime Group, Inc.,
Prime Group Realty, Inc. and 77 West Wacker Limited Partnership, Case No.
93L07708, filed on June 25, 1993, in the Circuit Court of Cook County,
Illinois, County Department, Law Division. Plaintiff in this action alleges
that he was employed by PDM Structural Group ("PDM") , a subcontractor
retained by Schal to perform work in connection with the construction of the
77 Project, and that, on or about July 2, 1991, the plaintiff was injured
while working on the 77 Project. The defense of PGI, Prime Group Realty,
Inc. and the 77 Partnership in this action was tendered to the insurance
carrier for Schal, which, in turn, tendered the defense on behalf of Schal,
PGI, Prime Grout) Realty, Inc. and the 77 Partnership to the insurance
carrier for PDM. The insurance carrier for PDM has accepted tender of the
defense on behalf of all defendants of this action. The defense of this
action is being handled by attorneys retained by PDM's insurance carrier. It
is expected that any and all damages awarded to the plaintiff against the 77
Partnership, PGI or Prime Group Realty, Inc. will be fully covered by
insurance.
2
<PAGE>
(e) Robert Ochoa v. 77 West Wacker Limited Partnership, American National
Bank as Trustee under Trust Agreement No. 110025-08, The Prime Group, Inc. ,
R.R. Donnelley Building, Schal Construction Company, Pepper Construction,
LaSalle Construction, Robert Irsay Company and TOR Construction, Case No.
93L010010, filed on August 17, 1993, in the Circuit Court of Cook County,
Illinois, County Department, Law Division. The plaintiff alleges that he was
an employee of Great Lakes Plumbing Heating Company ("Great Lakes"), a
subcontractor of Schal, and that, on or about May 2, 1992, plaintiff fell off
scaffolding while performing work in connection with the construction of the
77 Project and, as a result thereof, sustained injuries. The 77 Partnership
has tendered defense of this action on behalf of the 77 Partnership to the 77
Partnership's insurance carrier, which, in turn, tendered defense of this
action to the insurance carrier for Schal. The insurance carrier for Schal,
in turn, tendered defense of this action to the insurance carrier for Great
Lakes, which has accepted such tender. The defense of this action was being
handled by attorneys retained by the insurance carrier for Great Lakes. it is
expected that any and all damages awarded to the plaintiff against the 77
Partnership will be fully covered by insurance.
(f) Michael Schumacher v. Schal Associates, Inc. and The Prime Group, Inc.,
Case No. 94L08011, filed on June 29, 1994, in the Circuit Court of Cook
County, Illinois, County Department, Law Division. The plaintiff alleges
that he was an employee of Riggio Caulking, Inc., a subcontractor of Schal,
and that he was injured on September 16, 1992 while performing work on or
with respect to the 77 Project. This matter has been forwarded to the 77
Partnership's insurance carrier, which tendered defense of this action to
Schal's insurance carrier. The defense of this action is being handled by
attorneys retained by Schal's insurance carrier. The 77 Partnership expects
that any and all damages awarded to the plaintiff against the 77 Partnership
will be fully covered
(g) Terrance Sullivan v. The Prime Group, Inc., Schal Associates, Inc.
n/k/a Schal Bovis, Inc., 77 West Wacker Limited Partnership, Pitt-Des Moines,
Inc. and Tribco Construction Co., Case No. 94L09311, filed on July 27, 1994,
in the Circuit Court of Cook County, Illinois, County Department, Law
Division. The plaintiff, alleges that he was an employee of Gateway Steel
which, in turn, was a subcontractor of Schal, and that, on August 18, 1990,
the plaintiff was injured while performing work in connection with the
construction of the 77 Project. This matter has been forwarded to the 77
Partnership's insurance carrier, which tendered defense of this action to
Schal's insurance carrier. Schal's insurance carrier subsequently tendered
this action to the insurance carrier for Tribco Construction Co. ("Tribco") .
The defense of this action is being handled by attorneys retained by Tribco's
insurance carrier. It is expected that any and all damages awarded to the
plaintiff against the 77 Partnership will be fully covered by insurance.
(h) Terrance Sullivan v. The Prime Group, Inc., Schal Associates, Inc. and
n/k/a Schal Bovis, Inc., and PDM Structural Group, a division of Pitt-Des
Moines, Inc., Case No. 95L00481, filed on January 11, 1995 in the Circuit
Court of Cook County, Illinois, County Department, Law Division. The
plaintiff alleges that he was an employee of Gateway Erectors, which, in
turn, was a subcontractor of Schal, and that, on or about, May 30, 1991,
while working at the 77 Project,
3
<PAGE>
the plaintiff was injured when the plaintiff was required to lift a metal
re-enforcing bar at the 77 Project. Defense of this action on behalf of all
defendants is being handled by attorneys retained by the insurance carrier
for a subcontractor of Schal. It is expected that any and all damages awarded
to plaintiff against the 77 Partnership will be fully covered by insurance.
This case is in the discovery stage.
(i) Roger P. Ward d/b/a Roger Ward & Company v. Bank of Montreal, Kemper
Investors Life Insurance Company, 77 West Wacker Limited Partnership, The
Prime Group, Inc., The John Buck Company and Keck, Mahin & Cate, Case No.
96CH02007284, filed on July 11, 1996, in the Circuit Court of Cook County,
Illinois, County Department, Chancery Division. The plaintiff in this action
alleges that he provided real estate brokerage services in connection with a
sublease between Keck, Mahin & Cate, as sublandlord, and Michael, Best &
Friedrich, as subtenant, for space in the 77 Project. Plaintiff claims he is
entitled to a commission payment of $117,530.00 for such services, plus
interest, fees and costs. The plaintiff seeks foreclosure and other
available relief. Motions to Dismiss this action, filed by the defendants,
have been granted. The defendants are seeking to recover attorneys' fees and
costs. The plaintiff has indicated that he intends to appeal the granting of
the Motions to Dismiss. The 77 Partnership and PGI are represented in this
matter by Kenneth P. Purcell, Esq. of Winston & Strawn.
(j) McOuay Services v. The Prime Group, Inc., Case No. 97MI-158877, filed
on October 29, 1997, in the Circuit Court of Cook County, Illinois, Municipal
Department, First District, Contract. The plaintiff in this action seeks
$10,353.01, plus interest, which plaintiff alleges is due for a piece of
equipment supplied by plaintiff for the 77 Project. PGI and 77 Partnership
claim that the equipment was defective and, therefore, no amount is owed to
plaintiff. PGI and 77 Partnership intend to defend this action.
(k) In Re: Clark Material Handling, Inc. In 1995, Clark Material Handling,
Inc. ("Clark") filed for protection against creditors under Chapter 11 of the
United States Bankruptcy Code (Case No. 95-60258 in the United States
Bankruptcy Court, Northern District of Indiana, Hammond Division at
Gary/LaFayette). Clark was the lessee under the Lease for space in the
facility now owned by Enterprise Center I, L.P. ("ECLLP"). The business
conducted in the premises leased by Clark was conducted under the name of
Rubber Material Handling, Inc. ("RMH") , which, to the best knowledge of the
undersigned, is an affiliate of Clark. Clark is delinquent in the payment of
rent and other amounts under its Lease. EC1LP has made a claim in the
bankruptcy proceedings in the amount of $2,208,432.46 for administrative
costs and expenses and for contingent and unliquidated pre-petition costs and
expenses. Clark has disputed EC1LP's claim, and, based on Clark's financial
condition, it is unlikely that EC1LP will recover the full amount of its
claims against Clark. EC1LP is represented in this matter by Terry Malik,
Esq. and John B. Griffith, Esq. of Winston & Strawn.
(l) Cametco Illinois, Inc.; Granulation Services, Inc. Cametco Illinois,
Inc. ("Cametco") leases space in the building owned by Enterprise Center II,
L.P. ("EC2LP") . Cametco apparently sublet this space to Granulation
Services, Inc. ("Granulation") . EC2LP made
4
<PAGE>
demands on Cametco that Cametco repair damages to the building owned by EC2LP
caused by the corrosive nature of the substances used in the business
operated in the leased premises. EC2LP, Cametco, Granulation and Boyd Cass
(the guarantor of a portion of Cametco's obligations under its lease with
EC2LP) entered into that certain Second Amendment to Lease Agreement (the
"Second Amendment") , dated as of January 28, 1997, in connection with the
settlement of this dispute. The Second Amendment provides, in part, (i) that
Granulation will pay $208,348.00 to EC2LP, (ii) that Cametco and Boyd Cass
will pay $90,000.00 to EC2LP, and (iii) that Granulation will make certain
repairs to the leased premises, which obligation is secured by a cash escrow
of $100,000.00 (the "Escrowed Funds") made by Granulation. The foregoing
payments have been made by Granulation, Cametco and Boyd Cass, as applicable,
and the required repairs have been completed by Granulation. EC2LP has
delivered a Joint Order to Granulation for the release of the Escrowed Funds
to the contractor which performed the work, but the Joint Order has not yet
been returned to EC2LP, and, therefore the Escrowed Funds have not been
released. The Second Amendment also extends the termination date of
Cametco's lease with EC2LP from January 31, 1997 to July 31, 1997. EC2LP is
represented in this matter by Daniel J. Biederman, Esq. of Hinshaw &
Culbertson.
(m) Illiana Steel, Inc. Illiana Steel, Inc. ("Illiana") , a tenant in the
building owned by Enterprise Center IV, L.P. ("EC4LP"), has not paid all
amounts which EC4LP has determined is owed under its lease. Illiana has
disputed the calculation of additional rent under the lease and, as a result,
has not paid all of the amounts invoiced by EC4LP. In addition, a dispute
exists between Illiana. and EC4LP over whether EC4LP is responsible for
tuckpointing brick on the exterior of the leased premises or for the repairs
of certain cranes in the leased premises. The parties currently are
negotiating a settlement of the matter.
(n) David Van Lul, Kathleen Van Lul and Sean Holloway v. The Prime Group,
Inc., Cause No 450049702CT00144, filed on February 19, 1997, in the Superior
Court of Lake County, Indiana, Civil Division, Room Four. In August, 1995, a
trailer on the property owned by EC1LP was blown over by wind, injuring David
van Lul's left arm, wrist and back, injuring Sean Holloway's spine and
extremities and causing damage to the car owned by Mr. Holloway. The
plaintiffs allege that Prime was negligent and that such negligence caused
the incident. The defense in this action is being handled by EC1LP's
insurance carrier. It is expected that any damages awarded against PGI in
this action will be fully covered by insurance.
(o) Slitting Services, Inc. Slitting Services, Inc. ("Slitting"), a former
tenant in the project owned by EC5LP, has claimed that Enterprise Center V,
L.P. ("EC5LP") has not satisfied its obligations to perform certain tenant
improvement work under its lease with Slitting. Slitting and EC5LP have
agreed on a settlement of this dispute under which EC5LP will make certain
payments to Slitting. In addition, EC5LP has demanded Slitting to pay
approximately $107,100, representing the estimated cost to remediate a
petroleum spill on EC5LP's property which was allegedly caused by Slitting.
EC5LP has withheld this amount from amounts otherwise payable by EC5LP to
Slitting under the terms of the above-referenced settlement.
5
<PAGE>
(p) Kerola Enterprises, Inc. On or about April 25, 1995, HECLP sent a
letter to Kerola Enterprises, Inc. ("Kerola") , a former tenant in the
facility owned by Hammond Enterprise Center Limited Partnership ("HECLP") ,
demanding payment by Kerola of past due a-mounts aggregating $156,871.08.
HECLP and Kerola had agreed to settle this dispute for the payment by Kerola
to HECLP in the aggregate amount of $28,725.38, plus interest thereon at the
rate of twelve percent (12!k) per annum, payable in monthly installments of
$1,500.00 each, commencing December 1, 1995, but Kerola has not made the
required payments. Kerola currently owes at least $45,053.90 in past due
rent and $387,914.05 in late charges. HECLP is currently considering
initiating litigation against Kerola.
(q) John Garcia and Norma Garcia v. Brian Moore, The Prime Group, Inc. and
Deeann B. Auto Sales, Inc., Cause No. 45D019605CT 447, filed on May 6, 1996,
in the Lake County Superior Court, Room 1, Hammond, Indiana. The plaintiffs
in this action allege that, on or about May 16, 1994, John Garcia was
involved in an automobile accident with a vehicle driven by Brian Moore, who,
at the time, was employed by PGI and worked through PGI's office in Hammond,
Indiana. PGI has tendered the defense of this action to its insurance
carrier. It is expected that all damages awarded to plaintiffs against PGI
in this action will be fully covered by insurance.
(r) Carol Riepe, Special Administratrix of the estate of Frank J. Rieve,
deceased v. Sterling Steel Services, Ltd., Sterling Steel, Inc., The Prime
Group, Inc. and Whiting Corporation, Case No. 96L02402, filed on March 1,
1996, in the Circuit Court of Cook County, Illinois County Department, Law
Division. The plaintiff in this action seeks damages allegedly suffered by
the plaintiff by reason of the death of Frank J. Riepe. Mr. Riepe was an
employee of Whiting Corporation ("Whiting"). Whiting was retained by
Enterprise Center X, L.P. ("EC10LP") to perform certain work in the space
leased by Sterling. While working in the space leased by Sterling, Mr. Riepe
fell off scaffolding and died. It is expected that any damages awarded in
this action to plaintiff against PGI or EC10LP will be fully covered by
insurance. The defense of this action on behalf of PGI and EC10LP is being
handled by attorneys retained by EC10LP's insurance carrier.
(s) Norfolk and Western Railway Company v. Torrence Partners Limited
Partnership, Saville Chicago, Inc., Principal Mutual Life Insurance Company,
Container Recycling Alliance, L.P., Kemper/Prime Industrial Partners, The
Prime Group, Inc. Enterprise Center VII. L.P. , Enterprise Center VIII, L.P.,
Enterprise Center IX, L.P., Enterprise Center X, L.P., K-P Enterprise
Centers, Inc., Galaxy Steel & Tube, Inc., LaSalle National Bank, Limited
Partners of Torrence Partners Limited Partnership), Edward J. Rosewell, as
County Treasurer and unknown owners, Case No. 97L 50613, filed on June 4,
1997, in the Circuit Court of Cook County, Illinois, County Department, Law
Division. The plaintiff filed a Complaint for Condemnation to condemn the
property owned by Torrence Partners Limited Partnership (the "Torrence
Property"). The Torrence Property is located in the Chicago Enterprise
Center, but is not owned by any of the CEC Partnerships (defined below). The
CEC Partnerships were named in this action on account of their interests in
the Torrence Property by reason of various easement agreements.
6
<PAGE>
(t) Wojciech Chryczyk and Boquska Chryczvk v. The Prime Group, Inc.,
Arlington Heights I, L.P., Arlington Heights II, L.P., Arlington Heights III,
L.P., International Components Corporation, Lech Construction Company and
Belcore Electric Construction Co., Case No. 96-L-009297, filed on August 13,
1996, in the Circuit Court of Cook County, Illinois, County Department, Law
Division. This action was brought by the plaintiffs to recover damages
suffered on account of an incident which occurred on or about April 28, 1995,
in the facility owned by Arlington Heights I, L.P. ("AHlLP"), Arlington
Height II, L.P. ("AH2LP") and Arlington Heights III, L.P. ("AH3LP";
collectively the "AH Partnerships"). On or about such date, Wojciech
Chryczyk, an electrician working in the facility owned by the AH
Partnerships, was severely burned as a result of an electrical explosion
which occurred from an electrical panel in the facility. Mr. Chryczyk
sustained burns over more than sixty percent off his body and, thus far, has
incurred more than $780,000.00 in medical expenses. Mr. Chryczyk was employed
by Sigma Electric Company, a subcontractor of Lech Construction Company,
which was retained by International Components Corporation ("ICC"), a tenant
in the facility, to perform certain tenant build-out work for ICC. This
action is in the discovery stage. PGI and the AH Partnerships are represented
in this action by attorneys retained by the insurance carrier for PGI and the
AH Partnerships. It is expected that any damages awarded to plaintiffs
against Prime and the AH Partnership will by fully covered by insurance.
6. Pending Litigation - Retained Liabilities:
(a) Jesse Garcia, Gilbert Garcia, Sr., Ted Zagar on behalf of themselves
and all other similarly situated v. The Prime Group Real Estate Investment
Trust, Rubber Material Handling, Inc., Dan McArdle, Enterprise Center I,
L.P., K-P Enterprise Centers Limited Partnership, K-P Enterprise Centers,
Inc., East Chicago Enterprise Center Limited Partnership, KILICO Realty
Corporation and The Prime Group, Inc., Case No. 45C019408CT01629, filed in
the Circuit Court of Lake County, Crown Point, Indiana, on August 9, 1994
(First Amended Complaint filed on March 18, 1995). This class action was
brought on behalf of the people residing in the vicinity of the building
owned by Enterprise Center I, L.P. ("EC1LP") The plaintiffs alleged that the
storing of tires and shredded tires on the premises owned by EC1LP was an
ultrahazardous activity and that the smoke released as a result of the fire
contained hazardous and toxic substances. The plaintiffs further allege
that, as a result of the fire and the smoke released as a result thereof, the
plaintiffs suffered personal injuries, bodily pain, mental anguish and
property damage and were deprived of the use and enjoyment of their homes,
for which they are entitled to damages in unspecified amounts. The
plaintiffs alleged that EC1LP, its general partner (K-P Enterprise Centers
Limited Partnership), the general partner of its general partner (K-P
Enterprise Centers, Inc.), its predecessor in interest (East Chicago
Enterprise Center Limited Partnership) and the general partners of its
predecessor in interest (KILICO Realty Corporation and Prime) were negligent
in allowing the allegedly hazardous situation to exist. A settlement in this
action was reached in October, 1996, and, in February, 1997, pursuant to the
terms of the settlement agreement, EC1LP make a payment of $400,000 in full
and final settlement of this action. EC1LP, The Prime Group, Inc. and the
other related defendants were represented in this action by Scott J. Szala,
Esq. of Winston & Strawn. Recently, approximately 60 additional people who
7
<PAGE>
were not included in the certified class have sought to intervene in this
action. If these people are not allowed to intervene, it is expected that
they will file a separate action. Liability resulting from the foregoing
will be retained by PGI.
(b) Enterprise Center VII, L.P., Enterprise Center VIII . L.P., Enterprise
Center IX, L.P. , Enterprise Center X, L.P. and Kemper/Prime Industrial
Partners v. USX Corporation, Illinois Tool Works, Inc. and Signode
Corporation; and USX Corporation v. The Prime Group, Inc., Case No. 96C 5283,
filed on August 22, 1996, in the United States District Court for the
Northern District of Illinois, Eastern Division. The CEC Partnerships
brought this action to recover from USX Corporation ("USX"), Illinois Tool
Works, Inc. ("ITW") and Signode Corporation ("Signode"), a division or an
affiliate of ITW, response costs incurred by Kemper/Prime Industrial Partners
("KPIP"), Enterprise Center VII, L.P. ("EC7LP"), Enterprise Center VIII ,
L.P. ("EC8LP"), Enterprise Center IX, L.P. ("EC9LP") or Enterprise Center X,
L.P. ("ECl0LP"; collectively, the CEC Partnerships") in investigating and
responding to releases and threatened releases of hazardous waste from the
property owned by the CEC Partnerships (the "Property") and to obtain a
declaratory judgment to the effect that USX is responsible for all future
response costs for the remediation of the environmental conditions on the
Property. USX is the former owner of the Property. Signode is a tenant at
the Property. On October 10, 1996, USX filed a Third-Party Complaint against
PGI for contribution. There have been many settlement meetings and
discussions among the CEC Partnerships and USX relating to this action, and,
on May 12, 1997, USX made a payment to the CEC Partnerships in the amount of
$591,443.26 to reimburse the CEC Partnerships for a portion of the costs
previously incurred by the CEC Partnerships in connection with this matter.
This payment was made "as a good faith effort to demonstrate
[USX's] willingness to achieve a fair and final settlement" of this action.
The terms of the settlement which have been discussed between the CEC
Partnerships and USX relating to this action involve the payment by
USX to the CEC Partnerships of an additional $1,822,305. The CEC
Partnerships believe that USX is responsible for most of the environmental
conditions on the Property that will be required to be remediated. The
CEC Partnerships and Prime are represented in this matter by Daniel J.
Biederman, Esq. of Hinshaw & Culbertson. This claim and any liability
resulting from this action will be retained by PGI.
(c) Kemper/Prime Industrial Partners v. Montgomery Watson Americas, Inc.
(as successor by merger to Warzyn Inc. f/k/a Warzyn Engineering, Inc.), Case
No. 97 C 4278, filed on June 13, 1997, in the United States District Court
for the Northern District of Illinois, Eastern Division (the "Court") .
Kemper/Prime Industrial Partners ("KPIP") brought this action against
Montgomery Watson Americas, Inc. . the successor in interest to Warzyn
Engineering ("Warzyn"). In connection with the acquisition by KPIP of the
property owned by the CEC Partnerships (the "Property") , KPIP retained
Warzyn to conduct an environmental assessment of the Property. In conducting
such assessment, Telarzyn failed to discover 26 underground storage tanks on
the Property. On account of the presence of these storage tanks, KPIP has
incurred and may incur significant costs in remediating the environmental
conditions on the Property caused by leakage from the storage tanks on the
Property. KPIP believes that Warzyn may be liable to KPIP for failing to
discover and/or disclose the presence of these storage tanks. Warzyn,
8
<PAGE>
however, has disclaimed any liability and has asserted that period in which
KPIP could make a claim has expired. Warzyn filed an Answer and Affirmative
Defenses and has filed a Motion for Summary Judgment. The Court has not yet
set a briefing schedule for this Motion. KPIP is represented in this matter
by Daniel J. Biederman, Esq. of Hinshaw & Culbertson. This claim will be
retained by PGI.
(d) Howard White, et al., including 67 individuals in United States
Steelworkers of America, Local 3127-12 v. The Prime Group Real Estate
Investment Trust, Rubber Material Handling Enterprise Center I, L.P,
Enterprise Centers Limited Partnership. K-P Enterprise Centers, Inc., East
Chicago Enterprise Center Limited Partnership, KILICO Realty Corporation and
The Prime Group, Inc., Cause No. 45C019606CT01208, filed on June 14, 1996, in
the Lake County Circuit Court, Sitting in Crown Point, Indiana. This action
was filed by and on behalf of certain workers at the General American
Transportation Corporation ("GATX") plant in East Chicago, Indiana, located
in the vicinity of the facility owned by EC1LP (the "EC1LP Facility"). The
plaintiffs allege that, on account of the fire which occurred at the
Facility, the GATX plant was shut down for approximately three weeks. The
plaintiffs seek to recover wages lost during the period during which the GATX
plant was shut down. PGI, EC1LP and the related defendants, K-P Enterprise
Centers Limited Partnership and K-P Enterprise Centers, Inc., believe that
they have meritorious defenses to this action. Such defendants are
represented in this action by Scott J. Szala, Esq. of Winston Strawn. This
liability will be retained by PGI.
(e) Other Claims. As a consequence of the abovementioned fire, several
businesses located in the vicinity of the building owned by EC1LP were shut
down for various periods of time. Shortly after the fire, EC1LP received a
notice from General American Transportation Corporation ("GATX") indicating
that GATX suffered both property damage and business interruption as a result
of the fire and that GATX and its insurance carrier intend to hold EC1LP
responsible for the damages incurred. GATX has not made a formal claim
against EC1LP. It is possible that other businesses will make similar claims
against EC1LP. Although EC1LP may have meritorious defenses to such claims,
it currently is not possible to evaluate EC1LP's potential liability in
connection with GATX's claims or any similar claims which other businesses,
or their insurance carriers, may make. This liability will be retained by PGI.
(f) Teresa Long v. The Prime Group, Inc., Prime of Tennessee, Inc., Triad
Development Company Centre Square II, Ltd., and R. Dan Culp, case number
131388-2, filed in the Chancery Court for Knox County, Tennessee. In this
action, plaintiff, a former employee of Triad, seeks a declaratory judgment
as to plaintiff's status with respect to the Centre Square II, Ltd. ("CS2")
and seeks an unspecified amount of compensatory and punitive damages for
breach of contract. This dispute arose from an improper assumption made by
Triad, the managing general partner of CS2, that plaintiff was an assignee of
the limited partnership interests in CS2. When notified by plaintiff's
counsel that plaintiff never accepted an assignment of such partnership
interests, Triad acknowledged this and corrected its files accordingly. In
this action, plaintiff asserts that plaintiff should be found to be a limited
partner in the Partnership and that the defendants, by involving plaintiff in
the Partnership without plaintiff's knowledge or consent, are
9
<PAGE>
liable for breach of contract. The defendants have denied all material
allegations made by plaintiff in this action and intend to vigorously defend
this action. The defendants have filed a motion to dismiss this action,
which motion in pending. CS2 and all other defendants are represented in
this matter by Baker, Donelson, Bearman & Caldwell. This liability will be
retained by PGI.
10
<PAGE>
SCHEDULE 8
TO
FORMATION AGREEMENT
POST-CLOSING CONSENTS
NONE
----
----
<PAGE>
Schedule 9
Retained Liabilities
1. All liability arising or resulting from the items described in Schedule
7 under item 6 Pending Litigation - Retained Liabilities.
2. "Known Contamination", as such term is defined in the Environmental
Remediation and Indemnification Agreement, dated as of November 17,
1997, between The Prime Group, Inc., and Prime Group Realty, L.P.,
relating to existing environmental conditions at Chicago Enterprise
Center, Hammond Enterprise Center and East Chicago Enterprise Center.
<PAGE>
EXHIBIT A
TO
FORMATION AGREEMENT
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR TRANSFER OF CONTRIBUTED ASSETS
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, JEFFREY A. PATTERSON, an individual, THE PRIME
GROUP, INC., an Illinois corporation, and PRIME GROUP LIMITED PARTNERSHIP, an
Illinois limited partnership (collectively, "Assignors") do hereby assign,
transfer and convey to PRIME GROUP REALTY, L.P., a Delaware limited partnership
(the "Operating Partnership" or the "Assignee"), any and all of their respective
rights, title and interests in and to the assets (collectively, the "Contributed
Assets") described on Schedule A attached hereto and made a part hereof and any
other rights, privileges and benefits appertaining thereto.
Assignee hereby (i) accepts the assignment and transfer of the
Contributed Assets and expressly assumes any and all duties, obligations and
liabilities, whether arising prior to or after the date hereof, with respect to
the Contributed Assets and the properties and assets owned by the Contributed
Entities (as defined in the hereinafter defined Formation Agreement) as further
described on Schedule A (collectively the "Assumed Obligations") and (ii) agrees
to indemnify and hold harmless Assignors, and Assignors' respective partners,
directors, officers, employees and agents, and its and their respective heirs,
legal representatives, successors and assigns, from and against any liability,
demand, claim or action in relation to any and all duties, obligations and
liabilities so assumed.
Assignors hereby certify that they have full power to make
this Assignment. Except as expressly set forth herein and for the warranties
made by the Assignors in that certain Formation Agreement dated as of the date
hereof (the "Formation Agreement") among Assignors, Assignee, Prime Group Realty
Trust and the other parties signatory thereto, this Assignment is made without
representation or warranty. All capitalized terms used in this Assignment and
the Schedule hereto without definition have the meanings assigned to them in the
Formation Agreement.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, Assignors and Assignee have executed this
Assignment as of the 17th day of November, 1997.
ASSIGNORS:
----------------------------------------
JEFFREY A. PATTERSON
THE PRIME GROUP, INC., an Illinois corporation
By:
-----------------------------------
Name:
-----------------------------------
Its:
-----------------------------------
PRIME GROUP LIMITED PARTNERSHIP, an
Illinois limited partnership
By:
-----------------------------------
Michael W. Reschke,
Managing General Partner
ASSIGNEE:
PRIME GROUP REALTY, L.P., a Delaware
limited partnership
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
<PAGE>
SCHEDULE A
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
I. ASSUMED OBLIGATIONS
A. Kemper Agreements
B. Facility Acquisition Agreements
C. Land Option Agreements
D. Liabilities associated with Contributed Projects and with
office and industrial real estate division of PGI and its
affiliates except for those liabilities identified on Schedule
9 to the Formation Agreement which will be retained by the
Prime Transferor identified on such Schedule 9
E. IBD Contribution Agreement
F. NAC Contribution Agreement
G. Lease, dated May 1, 1992, between 77 West Wacker Limited
Partnership, as landlord, and The Prime Group, Inc., as
tenant, relating to the 39th Floor (the "Office Lease")
II. CONTRIBUTED ASSETS
A. General partnership interests, limited partnership interests,
stock interests, limited liability company interests and other
interests in the entities identified on Schedule 1 to the
Formation Agreement
B. Kemper Agreements
C. Facility Acquisition Agreements
D. Contributed Personal Property
E. Land Option Agreements
F. IBD Contribution Agreement
G. NAC Contribution Agreement
H. the Office Lease
I. All of PGI's interests in all assets and properties of the
office and industrial real estate division of PGI and its
affiliates, all as more fully described on Schedule 2 to the
<PAGE>
Formation Agreement
<PAGE>
Exhibit 10.19
NON-COMPETITION AND RESTRICTION AGREEMENT
THIS NON-COMPETITION AND RESTRICTION AGREEMENT (this "Agreement")
is made and entered into as of November 17, 1997, by and among PRIME GROUP
REALTY TRUST, a Maryland real estate investment trust (the "Company"), PRIME
GROUP REALTY, L.P., a Delaware limited partnership (the "Operating
Partnership"), THE PRIME GROUP, INC., an Illinois corporation ("TPG"), PRIME
GROUP LIMITED PARTNERSHIP, an Illinois limited partnership ("PGLP" and,
together with TPG, the "TPG Group"), and MICHAEL W. RESCHKE, an individual
("Reschke").
W I T N E S S E T H:
WHEREAS, the Company, through its subsidiaries and affiliates, is
engaged primarily in the business of the acquisition, development, leasing,
marketing and management of office and industrial real estate properties;
WHEREAS, on the date hereof the Company and the Operating
Partnership are entering into a series of related transactions pursuant to
which, among other things, they will acquire substantially all of the
interests of the office and industrial real estate development, leasing and
management business of the TPG Group and its affiliates (the "Formation");
WHEREAS, Reschke and the TPG Group will continue to engage in
certain real estate-related activities after the date hereof; and
WHEREAS, as a condition to the consummation of the transactions
described above, and in an effort to eliminate potential conflicts of
interest that may arise in the future as a result of the continuing
activities of Reschke and the TPG Group, the parties hereto desire, subject
to certain conditions and exceptions set forth herein, to enter into this
Agreement restricting certain activities of Reschke and the TPG Group while
Reschke is Chairman of the Board of the Company or while the TPG Group,
Reschke and their Affiliates (as hereinafter defined) own, in the aggregate,
five percent (5%) or more of the issued and outstanding common shares of
beneficial interest of the Company ("Common Shares") and limited partner
interests in the Operating Partnership exchangeable into Common Shares on a
fully diluted basis after giving effect to the exchange into Common Shares of
all limited partner interests in the Operating Partnership and after taking
into consideration the interests of all general partners in the Operating
Partnership.
<PAGE>
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. Certain capitalized terms used but not otherwise
defined herein shall have the meanings set forth below:
"Affiliate" means (i) any entity in which Reschke and the TPG Group
(either individually or collectively) own or control, directly or indirectly,
fifty percent (50%) or more of the outstanding equity interests, (ii) any
entity with respect to which Reschke and the TPG Group (either individually
or collectively) have the right or power, directly or indirectly, to cause
such entity to acquire an interest in any property within the Primary
Business of the Company without the consent or approval of a third party
equity owner and (iii) any entity with respect to which Reschke and the TPG
Group (either individually or collectively) have the right or power, directly
or indirectly, to withhold consent or approval of an acquisition by such
entity of an interest in any property within the Primary Business of the
Company where such consent or approval is required as a condition to
consummation of such acquisition.
"Primary Business of the Company" means any interest in any real
property within the office and industrial real estate acquisition, ownership,
development, leasing and management business, unless and until any such
business is no longer within the primary business of the Company, as
determined from time to time by a majority vote of the independent trustees
of the Company.
2. PROHIBITIONS RELATING TO OFFICE AND INDUSTRIAL PROPERTIES.
(a) Subject to SUBSECTIONS 2(b) AND 2(c) below, from and after the
date hereof and during the term of this Agreement, neither Reschke, the TPG
Group nor any Affiliate will own any real estate property or acquire any real
estate property or any direct or indirect interest therein (except any
ownership resulting from foreclosure of indebtedness), or manage any real
estate property, that is within the Primary Business of the Company,
PROVIDED, HOWEVER, that the foregoing shall not prohibit Reschke, the TPG
Group or any Affiliate from providing any mortgage financing, from acting as
lessor in a sale-leaseback transaction, from providing any other subordinated
debt with respect to any facilities or properties of the type included within
the Primary Business of the Company or from obtaining a preferred equity
position in any owner or lessee of any such type of facilities or properties.
(b) Excluded from the restrictions set forth in SUBSECTION 2(a)
are the following properties and interests: (i) any interest in the Company
or the Operating Partnership; (ii) any activity which a majority of the
independent members of the board of trustees of the Company determine not to
be competitive with any
-2-
<PAGE>
facility or property which the Company or Operating Partnership owns or
intends to acquire; (iii) any properties in which the TPG Group or Reschke or
any Affiliate had a direct or indirect interest prior to the Formation; and
(iv) the ownership by the TPG Group or Reschke or any Affiliate of less than
five percent (5%) of any class of securities listed on a national securities
exchange or included in the Nasdaq National Market.
(c) The restrictions set forth in SUBSECTION 2(a) shall not
prohibit the sale, lease or other disposition, or any activities incident
thereto, of any property in which the TPG Group or Reschke or any Affiliate
has an interest on the date hereof.
3. TERM. This Agreement shall be in effect from and after the date
hereof and shall continue in effect until (a) Reschke ceases to serve as
Chairman of the Board of the Company and (b) Reschke, the TPG Group and their
Affiliates cease to own five percent (5%) or more of the Common Shares of the
Company and limited partner interests in the Operating Partnership
exchangeable for Common Shares, on a fully-diluted basis after giving effect
to the exchange into Common Shares of any limited partner interests in the
Operating Partnership owned by such parties and any other party and after
taking into consideration the interests of all general partners in the
Operating Partnership.
4. REASONABLE LIMIT. The parties hereto have attempted to set forth
certain restrictions only to the extent necessary to protect the interests of
the Company. Each of Reschke and the TPG Group expressly acknowledges that
the restrictive covenant contained in SUBSECTION 2(a) above along with the
exceptions thereto contained in SUBSECTIONS 2(b) AND 2(c) above, constitutes
a reasonable restriction. If, however, the scope of enforceability of the
restrictive covenant contained in this Agreement is disputed at any time, a
court or other trier of fact may modify and enforce the covenant to the
extent that it believes is reasonable under the circumstances existing at the
time.
5. BREACH OF AGREEMENT.
(a) A party aggrieved shall notify the other party in writing of
any conflicts, disputes or claims of breach arising under this Agreement.
Within ten (10) business days after such notice is sent, the parties shall
meet, shall develop, as fully as possible, the facts relating to the
conflict, dispute or alleged breach, and shall attempt to resolve the same,
it being understood and agreed that any such resolution shall be subject to
the consent and approval of a majority of the Company's independent trustees.
If resolution of the dispute is not made to the satisfaction of the
aggrieved party within thirty (30) days after the notice is sent, the
aggrieved party may pursue its legal and equitable remedies.
-3-
<PAGE>
(b) In the event of breach of this Agreement, each of Reschke and
the TPG Group acknowledges that the remedy at law would be inadequate and
that, in addition to monetary damages, the Company shall be entitled, after
compliance with the dispute mechanism described in SUBSECTION 5(a) above, to
seek an injunctive order restraining such breach.
6. TRANSFERABILITY. The parties hereto agree that this Agreement
shall inure to the benefit of the Company, and its successors and assigns and
shall be transferrable and assignable by the Company in connection with the
sale or other transfer of a controlling (50%) interest in the Company to an
entity that is not an Affiliate. Upon such transfer or assignment, this
Agreement shall remain in full force and effect, under the terms herein,
between Reschke, the TPG Group and such transferees, assignees or successors
in interest. This Agreement shall be binding upon the successors and
assigns of all or substantially all of the business of the TPG Group.
7. WAIVER. The waiver by an party to this Agreement of a breach by
any party or any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by any other party. No waiver
of any provision of this Agreement shall be effective, unless in writing and
signed by the party waiving its rights, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given, provided further that no waiver by the Company shall be
effective unless accompanied by a certificate of an executive officer of the
Company certifying that a majority of the independent trustees of the Company
have consented to and approved such waiver.
8. NOTICES. All notices, requests, demands and other communications
given by any party hereto shall be in writing and shall be deemed to be duly
given if delivered, or if mailed first class, return receipt requested
addressed as follows:
To the Company or the Operating To the TPG Group or any member thereof:
Partnership:
Prime Group Realty Trust c/o The Prime Group, Inc.
77 West Wacker Drive 77 W. Wacker Drive
Chicago, IL 60601 Chicago, IL 60601
Attention: Chief Executive Attention: Michael W. Reschke
Officer
With a copy to: With a copy to:
Prime Group Realty Trust The Prime Group, Inc.
-4-
<PAGE>
77 West Wacker Drive 77 West Wacker Drive
Chicago, IL 60601 Chicago, IL 60601
Attention: General Counsel Attention: General Counsel
To Michael W. Reschke:
c/o The Prime Group, Inc.
77 W. Wacker Drive
Chicago, IL 60601
Attention: Michael W. Reschke
9. ENTIRE AGREEMENT. This instrument supersedes all prior
understandings and agreements of the parties hereto and contains the entire
agreement of the parties with respect to the subject matter hereof and may
not be amended or changed, except by an agreement in writing entered into by
the parties hereto.
10. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Illinois.
11. SEVERABILITY. If a court of competent jurisdiction adjudicates any
one or more of provisions of this Agreement as invalid, illegal or
unenforceable in any respect, such provision(s) shall be ineffective only to
the extent and duration of such invalidity, illegality or unenforceability
and such invalidity, illegality or unenforceability shall not affect the
remaining substance of such provision or any of this Agreement's other
provisions, and this Agreement shall be construed as if it had never
contained such invalid, illegal and unenforceable provision.
12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[signature page follows]
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Non-Competition and Restriction Agreement to be duly executed as of the date
first above written.
COMPANY: RESCHKE AND THE TPG GROUP:
PRIME GROUP REALTY TRUST,
a Maryland real estate
investment trust
/s/ Michael W. Reschke
------------------------------
Michael W. Reschke
By: /s/ W. Michael Karnes
-------------------------------
Its: Executive VP
-------------------------------
THE PRIME GROUP, INC.,
an Illinois corporation
PRIME GROUP REALTY, L.P.,
a Delaware limited partnership
By: /s/ Robert J. Rudnik
--------------------------
By: Prime Group Realty Trust,
its Managing General Its: Executive Vice President
Partner --------------------------
PRIME GROUP LIMITED
By: /s/ W. Michael Karnes PARTNERSHIP, an Illinois
-------------------------------- limited partnership
Its: Executive VP
-------------------------------- By: /s/ Michael W. Reschke
--------------------------
Michael W. Reschke,
Managing General Partner
-6-
<PAGE>
Exhibit 10.23
SERIES A PREFERRED SECURITIES
PURCHASE AGREEMENT
DATED AS OF NOVEMBER 11, 1997
AMONG
SECURITY CAPITAL PREFERRED GROWTH INCORPORATED,
PRIME GROUP REALTY, L.P.
AND
PRIME GROUP REALTY TRUST
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
-------
<S> <C>
I. PURCHASE AND SALE OF SECURITIES
1.1 Sale and Issuance of Series A Preferred Shares
1.2 Closing
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.1 Organization, Good Standing and Qualification
2.2 Power, Authority and Enforceability
2.3 Capitalization; Registration Rights
2.4 Valid Issuance of Series A Preferred Shares
2.5 Compliance with Other Instruments
2.6 No Registration Under the Securities Act; No General Solicitation
2.7 Conformity to Securities Act; No Misstatement or Omission
2.8 Financial Statements
2.9 No Material Adverse Changes
2.10 Litigation
2.11 Title to Properties; Leasehold Interests
2.12 Environmental Compliance
2.13 Taxes
2.14 Insurance
2.15 Employees; ERISA
2.16 REOC Status
2.17 Legal Compliance
2.18 Governmental Consent
2.19 Investment Company
2.20 Knowledge Defined
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
3.1 Power, Authority and Enforceability
3.2 Compliance with Other Instruments
3.3 Ownership Limitations
3.4 Sophisticated Investor
3.5 Unregistered Securities
3.6 Access to Information
IV. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING
4.1 Execution and Delivery of Amended and Restated Partnership Agreement
4.2 Series A Preferred Designation
4.3 Representations and warranties
4.4 Performance
4.5 No Material Adverse Change
4.6 Opinion of Company Counsel
4.7 Registration Rights Agreement
4.8 Tag-Along Agreement
<PAGE>
<CAPTION>
Page
-------
<S> <C>
4.9 Officer's Certificate
4.10 Payment of Placement Fee
4.11 Proceedings
4.12 Limited Waiver of Ownership Limitations
4.13 No Injunction
4.15 Consummation of the IPO
V. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING
5.1 Representations and Warranties
5.2 Performance
5.3 No Injunction
5.4 Officer's Certificate
VI. COVENANTS
6.1 No Sale of Security
6.2 No General Solicitation
6.3 Filing of Exchange Act Reports
6.4 Consultation and Related Rights
6.5 Maintenance of REIT Status
6.6 Change of Control
6.7 Waiver of Ownership Limitations
6.8 No Public Disclosure
6.9 Annual Certificate of Independent Public Accountants Company Counsel
6.10 Prohibition on Issuance of Series A Preferred Shares
6.11 Structure of Operating Partnership Agreement
6.12 Standstill Provisions
6.13 Certificate of Company Security Ownership
6.14 Ownership in Strategic Hotel Capital Incorporated
VII. TERMINATION
7.1 Termination
7.2 Notice of Termination
7.3 Effect of Termination
VIII. MISCELLANEOUS
8.1 Survival of Warranties
8.2 Successors and Assigns
8.3 Governing Law
8.4 Counterparts
8.5 Titles and Subtitles
8.6 Notices
8.7 Finder's Fees
8.8 Expenses
8.9 Amendments and Waivers
8.10 Severability
<PAGE>
<CAPTION>
Page
-------
<S> <C>
8.11 Entire Agreement
</TABLE>
<PAGE>
SERIES A PREFERRED SECURITIES PURCHASE AGREEMENT
This SERIES A PREFERRED SECURITIES PURCHASE AGREEMENT (this
"Agreement") is made as of the 11th day of November, 1997 by and among Prime
Group Realty Trust, a Maryland real estate investment trust (the "Company"),
Prime Group Realty, L.P., a Delaware limited partnership (the "Operating
Partnership"), and Security Capital Preferred Growth Incorporated, a Maryland
corporation (the "Investor").
W I T N E S S E T H
WHEREAS, the Company wishes to issue and sell to the Investor Series A
Cumulative Convertible Preferred Shares of Beneficial Interest, $.01 par value
per share (the "Series A Preferred Shares"), the terms of which shall be as set
forth in the Articles of Amendment and Restatement of the Company's Declaration
of Trust (the "Declaration") to be filed with the SDAT (as defined below) in
connection with the IPO (as defined below) in substantially the form of Exhibit
A hereto, in accordance with and subject to the terms and conditions set forth
herein; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and warranties herein contained, the parties hereby agree
as follows:
I. PURCHASE AND SALE OF SECURITIES.
1.1 Sale and Issuance of Series A Preferred Shares.
(a) Company shall adopt and file with the State Department of
Assessments and Taxation of Maryland (the "SDAT") on or before the Closing Date
(as defined below) the Declaration.
(b) Subject to the terms and conditions of this Agreement, the
Company agrees to issue and sell to the Investor, and the Investor agrees to
purchase from the Company, 2 million Series A Preferred Shares.
(c) The aggregate purchase price (the "Aggregate Purchase
Price") for the Series A Preferred Shares issued and sold pursuant to this
Agreement shall be equal to $40 million.
(d) The price per Series A Preferred Share (the "Per Share
Price") shall be equal to $20.00.
1.2 Closing.
Upon the terms and subject to the satisfaction or waiver of
all the conditions to closing set forth in this Agreement, the closing (the
"Closing") of the purchase and sale of the Series A Preferred Shares shall take
place at the offices of Winston & Strawn, 35 West Wacker Drive, Chicago,
Illinois or at such other location as may be agreed upon by the Company and the
Investor.
<PAGE>
Such Closing shall take place at 10:00 a.m., Chicago time, on the date of the
closing of the IPO, which shall be the third or fourth business day following
the pricing of the Company's initial public offering (the "IPO"), or at such
other time as may be agreed upon by the Company and the Investor (the "Closing
Date"). At the Closing, the Company shall issue and deliver to the Investor a
certificate or certificates in definitive form, registered in the name of the
Investor, representing the Series A Preferred Shares being purchased by the
Investor hereunder and the Investor shall deliver to the Company, against
delivery of the certificate or certificates representing the Series A Preferred
Shares, the Aggregate Purchase Price by wire transfer of immediately available
funds payable to the Company's order.
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Each of the Company and the Operating Partnership represents
and warrants, as of the date of this Agreement and as of the Closing Date, that:
2.1 Organization, Good Standing and Qualification.
(a) The Company has been duly organized and is validly
existing as a real estate investment trust in good standing under the laws of
the State of Maryland with full power and authority to own, lease and operate
its properties and conduct its business as now being conducted, and has been
duly qualified to transact business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, except where the failure to so
qualify would not have a Material Adverse Effect. "Material Adverse Effect"
means any material adverse effect on the operations, assets, business, affairs,
prospects, properties, or financial or other condition of the Company, the
operating Partnership and the Subsidiaries (as defined below) taken as a whole.
(b) The operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under the Delaware
Revised Uniform Limited Partnership Act with partnership power and authority to
own, lease and operate its properties and conduct its business as now being
conducted and has been duly qualified to transact business and is in good
standing under the laws of each jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
except where the failure to so qualify would not have a Material Adverse Effect.
(c) The subsidiaries of the Company and the operating
Partnership set forth on Schedule 2.1 (the "Subsidiaries") have each been duly
organized and are validly existing and in good standing under the laws of their
respective jurisdictions of incorporation or formation and have full power and
authority to own, lease and operate their Properties and to conduct their
businesses as now being conducted, and each Subsidiary has been duly qualified
to transact business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, except where the failure to be in good
standing or to so qualify would not have a Material Adverse Effect. None of the
Company's or the Operating Partnership's subsidiaries that are not included on
Schedule 2.1 individually or in the aggregate constitute a "Significant
Subsidiary" as defined in Rule 1-02 of Regulation S-X.
3
<PAGE>
2.2 Power, Authority and Enforceability
(a) Each of the Company and the Operating Partnership has all
requisite trust or partnership power and authority, and has taken all required
trust or partnership action necessary, to execute, deliver, and perform its
obligations under, this Agreement. The Company has all requisite trust power and
authority, and has taken all required trust action necessary, to issue and sell
the Series A Preferred Shares and the Common Shares.
(b) This Agreement has been duly executed and delivered by
each of the Company and the Operating Partnership and constitutes the legal,
valid and binding obligation of each of the Company and the operating
Partnership enforceable against each of the Company and the Operating
Partnership in accordance with its terms, except as may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, and
(ii) equitable principles of general applicability relating to the availability
of specific performance, injunctive relief, or other equitable remedies.
2.3 Capitalization; Registration Rights.
After giving effect to the Company's adoption of the
Declaration, the authorized beneficial interests of the Company consists of 30
million preferred shares, par value $.01 per share, of which 2 million shares
are designated as "Series A Cumulative Convertible Preferred Shares," 65 million
excess shares, $.01 par value per share, and 100 million common shares, $.01 par
value per share. All of the issued and outstanding shares of beneficial interest
of the Company have been duly and validly authorized and issued and are fully
paid and are nonassessable. All of the issued and outstanding partnership
interests of the Operating Partnership have been duly and validly authorized and
issued. Except as disclosed in the Company's Registration Statement on Form
S-11, Registration No. 333-33547 (the "Registration Statement") , there are no
persons with registration rights or other similar rights with respect to any
securities of the Company or the Operating Partnership.
2.4 Valid Issuance of Series A Preferred Shares.
The Series A Preferred Shares when issued, sold and delivered
in accordance with the terms hereof for the consideration expressed herein, will
be duly and validly issued and nonassessable. The common shares of Beneficial
Interest of the Company issuable upon the conversion or redemption of the Series
A Preferred Shares (the "Common Shares"), when issued upon such conversion in
accordance with the Declaration will be duly and validly issued, fully paid and
nonassessable and, subject to the accuracy of the Investor's representations set
forth in Article III, will be issued in compliance with all applicable federal
and state securities laws.
2.5 Compliance with Other Instruments.
The execution, delivery and performance of this Agreement by
the Company and the Operating Partnership and the consummation by the company
and the Operating Partnership of the
4
<PAGE>
transactions contemplated hereby do not (i) result in a violation of the
Declaration, the Company's Amended and Restated Bylaws (the "Bylaws") or of the
operating Partnership's Amended and Restated Agreement of Limited Partnership or
(ii) conflict with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company, the Operating
Partnership or any of the Subsidiaries is a party, or result in a violation of
any law, rule, regulation, order, judgment or decree applicable to the Company,
the Operating Partnership or any of the Subsidiaries or by which any property or
asset of the Company, the Operating Partnership or any of the Subsidiaries is
bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect or materially
impair the Company's or the Operating Partnership's ability to perform its
obligations under this Agreement).
2.6 No Registration Under the Securities Act; No General
Solicitation.
Assuming the accuracy of the Investor's representations set
forth in Article III, it is not necessary in connection with the offer, sale and
delivery of the Series A Preferred Shares and the Common Shares in the manner
contemplated by this Agreement to register the Series A Preferred Shares or the
Common Shares under the Securities Act of 1933, as amended (the "Securities
Act").
None of the Company, the Operating Partnership nor any of their
respective affiliates (as defined in Rule 501(b) of Regulation D under the
Securities Act, an "Affiliate") has directly, or through any agent, (i) sold,
offered for sale, solicited offers to buy or otherwise negotiated n respect of,
any security (as defined in the Securities Act) which is or will be integrated
with the sale of the Series A Preferred Shares in a manner that would require
registration under the Securities Act of the Series A Preferred Shares or (ii)
engaged in any form of general solicitation or general advertising in connection
with the offering of the Series A Preferred Shares (as those terms are used in
Regulation D under the Securities Act), or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
2.7 Conformity to Securities Act; No Misstatement or Omission.
As of the date hereof, as of the time the Company's prospectus with
respect to its IPO, dated November 11, 1997 (the "Prospectus"), is filed with
the Securities and Exchange Commission (the "Commission") pursuant to Rule 424
(b) under the Securities Act, at any time prior to the Closing Date that any
subsequent amendment or supplement to the Company's Registration Statement on
Form S-11 (No. 333-33547) (the "Registration Statement") or the Prospectus is
filed with the Commission and at the Closing Date: (i) the Registration
Statement, as amended as of any such time and the Prospectus, as amended or
supplemented as of any such time will comply in all material respects with the
applicable requirements of the Securities Act and the respective rules and
regulations of the Commission thereunder, (ii) the Registration Statement, as
amended as of any such time, will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) the
Prospectus, as
5
<PAGE>
amended or supplemented as of any such time, will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
2.8 Financial Statements.
The financial statements and supporting schedules included in
the Registration Statement are complete and correct in all material respects and
present fairly the consolidated financial position of the Company and its
consolidated Subsidiaries as of the dates specified and the consolidated results
of their operations for the periods specified, in each case, in conformity with
generally accepted accounting principles applied on a consistent basis during
the periods involved, except as indicated therein or in the notes thereto.
2.9 No Material Adverse Changes.
Since December 31, 1996, (i) there has been no change in the
business, operations or financial condition, of the Company, the Operating
Partnership or the Subsidiaries or in the earnings or the ability to continue to
conduct business in the usual and ordinary course of the Company, the Operating
Partnership and the Subsidiaries, whether or not arising in the ordinary course
of business, which has a Material Adverse Effect; and (ii) except for the
transactions contemplated by this Agreement or described in the Registration
Statement, there has been no transaction entered into by the Company, the
Operating Partnership or any of the Subsidiaries other than transactions in the
ordinary course of business or transactions which would not, individually or in
the aggregate, have a Material Adverse Effect; and (iii) there have not been any
changes in the Company's or the Operating Partnership's authorized capital
(except as set forth in Section 2.3 of this Agreement) or any material increases
in the debt of the Company, the Operating Partnership and the Subsidiaries
considered as one enterprise; and (iv) there has been no actual or, to the
knowledge of the Company or the Operating Partnership, threatened revocation of,
or default under, any material contract to which the Company, the Operating
Partnership or any of the Subsidiaries is a party, which could reasonably be
expected to result in a Material Adverse Effect, except for the default by Keck,
Mahin & Cate under its lease at the 77 West Wacker Drive building.
2.10 Litigation.
Except as set forth in the Registration Statement, after
giving effect to the IPO and the transactions contemplated thereby, there is no
action, suit or proceeding (whether or not purportedly on behalf of the Company,
the Operating Partnership or any of the Subsidiaries) before or by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of the Company or the Operating Partnership, threatened against or
affecting the Company, the Operating Partnership or any of the Subsidiaries
which, either alone or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or materially impair the Company's or the Operating
Partnership's ability to perform its obligations under this Agreement or the
compliance by the Company with the terms, conditions and provisions of the
Series A Preferred Shares or the Common
6
<PAGE>
Shares.
2.11 Title to Properties; Leasehold Interests.
(a) Schedule 2.11(a) sets forth a complete and accurate list
and the address of all real property owned or leased by the Company, the
Operating Partnership or any Subsidiaries or are otherwise used in the operation
or conduct of the Company's or Operating Partnership's business (collectively,
and together with the land at each address referenced in Schedule 2.11(a) and
all buildings, structures and other improvements and fixtures located on or
under such land and all easements, rights and other appurtenances to such land,
the "Company Properties"). The Company, the Operating Partnership, or in the
case of Company Properties owned by Subsidiaries that are not wholly owned
Subsidiaries of the Company, to the Company's knowledge, such Subsidiaries, owns
or own, as the case may be, good and marketable fee simple title (or, if so
indicated in Schedule 2.11(a), leasehold title) to each of the Company
Properties, in each case free and clear of any Liens, title defects, contractual
restrictions or covenants, laws, ordinances or regulations affecting use or
occupancy (including zoning regulation and building codes) or reservations of
interests in title (collectively, "Property Restrictions"), except for (i)
mortgage liens disclosed in the Registration Statement or on Schedule 2.11(a);
(ii) Property Restrictions imposed or promulgated by law or by any Government
Authority (as hereinafter defined) which are customary and typical for similar
properties and (iii) other Property Restrictions that do not individually or in
the aggregate materially impair the use or operation of any Company Property
(collectively, "Permitted Liens"). To the Company's knowledge, none of the
matters described in clauses (i), (ii) or (iii) of the immediately preceding
sentence materially interferes with, materially impairs, or is materially
violated by, the existence of any building or other structure or improvement
which constitutes a part of, or the present use, occupancy or operation (or, if
applicable, development) of, the Company Properties taken as a whole, and such
matters do not, individually or in the aggregate, have a Material Adverse
Effect. At or prior to the closing of the IPO, American Land Title Association
policies of title insurance (or marked title insurance commitments having the
same force and effect as title insurance policies) will have been issued by
national title insurance companies insuring the fee simple or leasehold, as
applicable, title of the Company, the Operating Partnership or any Subsidiaries,
as applicable, to each of the Company Properties in amounts at least equal to
the original cost thereof, subject only to Permitted Liens and, to the Company's
knowledge, such policies are valid and in full force and effect and no claim has
been made under any such policy.
(b) Except as set forth in Schedule 2.11(b), and except for
matters which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, the Company has no knowledge (i)
that any currently required certificate, permit or license (including building
permits and certificates of occupancy for tenant spaces) from any Government
Authority having jurisdiction over any Company Property or any agreement,
easement or other right which is necessary to permit the lawful use, occupancy
or operation of the existing buildings, structures or other improvements which
constitute a part of any of the Company Properties or which are necessary to
permit the lawful use and operation of utility service to any Company Property
or of any existing driveways, roads or other means or egress and ingress to and
from any of the Company Properties has
7
<PAGE>
not been obtained or is not in full force and effect, or of any pending threat
of modification or cancellation of any of same, or (ii) of any violation by any
Company Property of any federal, state or municipal law, ordinance, order,
regulation or requirement, including any applicable zoning law or building code,
as a result of the use or occupancy of such Company Property or otherwise.
Except as set forth in Schedule 2.11(b), the Company has no knowledge of
uninsured physical damage to any Company Property which would individually or in
the aggregate have a Material Adverse Effect. To the Company's knowledge, except
for repairs identified in Schedule 2.11(b), each Company Property, identified as
an operating property in Schedule 2.11(a) (the "Operating Properties"), (i) is
in good operating condition and repair and is structurally sound and free of
defects, with no material alterations or repairs being required thereto under
applicable law or insurance company requirements, and (ii) consists of
sufficient land, parking areas, driveways and other improvements and lawful
means of access and utility service and capacity to permit the use thereof in
the manner and for the purposes to which it is presently devoted, except, in
such case, to the extent that failure to meet such standards would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(c) The Company has no knowledge (i) that any condemnation,
eminent domain or rezoning proceedings are pending or threatened with respect to
any of the Company Properties, (ii) that any road widening or change of grade of
any road adjacent to any Company Property is underway or has been proposed,
(iii) of any proposed change in the assessed valuation of any Company Property
other than customarily scheduled revaluations, (iv) of any special assessment
made or threatened against any Company Property, or (v) that any of the Company
Properties is subject to any so-called "impact fee" or to any agreement with any
Government Authority to pay for sewer extension, oversizing utilities, lighting
or like expenses or charges for work or services by such Government Authority,
except, in the case of each of the foregoing, to the extent that same would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(d) To the Company's knowledge, each of the Operating
Properties is an independent unit which does not rely on any facilities located
on any property not included in such Operating Property to fulfill any municipal
or governmental requirement or for the furnishing to such Operating Property of
any essential building systems or utilities, other than facilities the benefit
of which inures to the Operating Properties pursuant to one or more valid
easements. Each of the Operating Properties is served by public water and
sanitary systems and all other utilities, and, to the Company's knowledge, each
of the Operating Properties has lawful access to public roads, in all cases
sufficient for the current use and occupancy of each Operating Property. To the
Company's knowledge, all parcels of land included in each operating Property
that purport to be contiguous are contiguous and are not separated by strips or
gores. To the Company's knowledge, no portion of any Company Property lies in
any flood plain area (as defined, as of the date hereof, by the U.S. Army Corps
of Engineers (the "Army Corps of Engineers") or otherwise) or includes any
wetlands or vegetation or species protected by any applicable laws. None of the
Company Properties lies in any 100-year flood plain area, as established by the
Army Corps of Engineers. To the Company's knowledge, no improvements
constituting a part of any Company Property encroach on real property not
constituting a part of such Company Property. No representation set forth in
this subsection (d) shall be deemed to be untrue unless such untruths are,
individually or in the aggregate, reasonably
8
<PAGE>
expected to have a Material Adverse Effect.
(e) To the knowledge of the Company, no Operating Property
fails to comply with the requirements of the Americans with Disabilities Act
(the "ADA") except for such non-compliance as the Company believes will not,
individually or in the aggregate, have a Material Adverse Effect.
(f) With respect to each lease of space in each Company
Property (collectively, the "Company Leases") for premises larger than 100,000
square feet of rentable space as identified on Schedule 2. 11(f) or if leased to
a tenant or affiliate of a tenant listed on Schedule 2.11(f) (collectively, the
"Material Company Leases"), except for matters which are not, individually or in
the aggregate, reasonably expected to have a Material Adverse Effect, (i) except
as noted on Schedule 2.11(f), each of the Material Company Leases is valid and
subsisting and in full force and effect as against the Company or Subsidiary, as
applicable, and, to the Company's knowledge, as against the tenant, and has not
been amended, modified or supplemented, (ii) except as noted on Schedule
2.11(f), the tenant under each of the Material Company Leases is in actual
possession of the premises leased thereunder, (iii) except as set forth on
Schedule 2.11(f), no tenant under any Material Company Lease is more than 60
days in arrears in the payment of regular recurring monthly rent, (iv) except as
noted on Schedule 2.11(f), none of the Company, the Operating Partnership or any
Subsidiaries has received any written notice from any tenant under any Material
Company Lease of its intention to vacate, (v) none of the Company, the Operating
Partnership or any Subsidiaries has collected payment of rent under any Material
Company Lease (other than security deposits) accruing for a period which is more
than one month in advance, (vi) no notice of default has been sent or received
by the landlord under any Material Company Lease which remains uncured as of the
date hereof, except as noted on Schedule 2.11(f), no default has occurred under
any Material Company Lease and, to the Company's knowledge, no event has
occurred and is continuing which, with notice or lapse of time or both, would
constitute a default under any Material Company Lease, (vii) except as disclosed
in the Registration Statement, no tenant under any of the Material Company
Leases has any purchase options or kick-out rights or is entitled to any
concessions, allowances, abatements, set-offs, rebates or refunds, (viii) except
as assigned in connection with Mortgages discussed in the Registration Statement
and except for Collateral Assignments by tenants in connection with the
financing of fixtures and inventory in the premises with bona fide institutional
lenders, none of the Material Company Leases and none of the rents or other
amounts payable thereunder has been mortgaged, assigned, pledged or encumbered
by any party thereto or otherwise, (ix) no space of a material size in the
Company Property is occupied by a tenant rent-free, (x) no tenant under any of
the Material Company Leases has asserted any claim which is likely to affect the
collection of rent from such tenant, and (xi) the landlord under each Material
Company Lease has fulfilled all of its obligations thereunder in respect of
tenant improvements and capital expenditures. Other than parties to easement
agreements, no third party has any right to occupy or use any portion of any
Company Property, with the exception of kiosk or pushcart operators, that would,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(g) Except as disclosed in the Registration Statement,
Schedule 2.11(g) sets forth a complete and accurate list of all material
commitments, letters of intent, options or similar written
9
<PAGE>
understandings made or entered into by the Company or any of its Subsidiaries as
of the date hereof, (i) to sell, mortgage, pledge or hypothecate any Company
Property or Properties, which, individually or in the aggregate, constitute at
least $50 million, or to otherwise enter into a material transaction in respect
of the ownership or financing of any Company Property, or (ii) to purchase or to
acquire an option, right of first refusal or similar right in respect of any
real property, which, individually or in the aggregate, constitute at least $50
million, which, in any such case, has not yet been reduced to a written lease or
contract, and sets forth with respect to each such commitment, letter of intent
or other understanding the principal terms thereof, with the exception of the
rights of the Company to acquire vacant land, in which case Schedule 2.11(g)
shall only set forth the location where the Company has the rights to acquire
such vacant land.
(h) The Company has disclosed to Investor all adverse matters
known to the Company with respect to or in connection with the Company
Properties which arose subsequent to the period covered by the Registration
Statement (including the Company Leases and the Tenancy Leases (as defined
below)), which would, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(i) The ground leases underlying the leased Company Properties
referenced in Schedule 2.11(a) (collectively, the "Tenancy Leases") are
accurately described in Schedule 2.11(i). Each of the Tenancy Leases is valid,
binding and in full force and effect as against the Subsidiary and, to the
Company's knowledge, as against the other party thereto. Except as indicated in
Schedule 2.11(i) or disclosed in the Registration Statement in connection with
only mortgage liens, none of the Tenancy Leases is subject to any mortgage,
pledge, Lien, sublease, assignment, license or other agreement granting to any
third party any interest therein, collateral or otherwise, or any right to the
use or occupancy of any premises leased thereunder with the exception of
sub-leases with tenants of the centers constructed on the land. To the Company's
knowledge, except as set forth in Schedule 2.11(i), there is no pending or
threatened proceeding which is reasonably likely to interfere with the quiet
enjoyment of the tenant under any of the Tenancy Leases. Except as set forth in
Schedule 2.11(i), as of the last day of the month preceding the date hereof and
as of the last day of the month preceding the date of the Closing, no payments
under any Tenancy Lease are delinquent and no notice of default thereunder has
been sent or received by the Company, the Operating Partnership or any
Subsidiaries. There does not exist under any of the Tenancy Leases any default,
and, to the Company's knowledge, no event has occurred which, with notice or
lapse of time or both, would constitute such a default, except as would not,
individually or in the aggregate, be reasonably expected to result in a Material
Adverse Effect.
(j) The Company, the Operating Partnership and all
Subsidiaries have good and sufficient title to all personal and non-real
properties and assets reflected in their books and records as being owned by
them (including those reflected in the balance sheets of the Company, the
Operating Partnership and all Subsidiaries as of December 31, 1996, except as
since sold or otherwise disposed of in the ordinary course of business), free
and clear of all Liens, except for Permitted Liens which are not, individually
or in the aggregate, reasonably expected to have a Material Adverse Effect.
10
<PAGE>
2.12 Environmental Compliance.
(a) Except as disclosed in the Registration Statement, the
Company, the Operating Partnership and each of the Subsidiaries has complied and
is in compliance with all Environmental Statutes (as hereinafter defined) except
as such non-compliance would not have a Material Adverse Effect.
(b) Except as disclosed in the Registration Statement, none of
the Company, the Operating Partnership or any of the Subsidiaries intends to use
any real property owned or occupied by any such party for the purpose of
handling, burying, storing, retaining, refining, transporting, processing,
manufacturing, generating, producing, spilling, seeping, leaking, escaping,
leaching, pumping, pouring, emitting, emptying, discharging, injecting, dumping,
transferring or otherwise disposing of or dealing with Hazardous Materials.
(c) Except as disclosed in the Registration Statement, none of
the Company, the Operating Partnership or any of the Subsidiaries has any
knowledge of any seepage, leak, escape, leach, discharge, injection, release,
emission, spill, pumping, pouring, emptying or dumping of Hazardous Materials
into waters on or adjacent to any real property owned or occupied by any such
party, or onto lands from which Hazardous Materials might seep, flow or drain
into such waters.
(d) Except as disclosed in the Registration Statement, none of
the Company, the operating Partnership or any of the Subsidiaries has any
knowledge of any occurrence or circumstance that, with notice or passage of time
or both, would give rise to a claim under or pursuant to any federal, state or
local Environmental Statute pertaining to Hazardous Materials on or originating
from any real property owned or occupied by the Company, the Operating
Partnership or any of the Subsidiaries arising out of the conduct of any such
party, including without limitation pursuant to any Environmental Statute.
(e) Except as disclosed in the Registration statement, to the
knowledge of the Company, no land owned by the Company, the Operating
Partnership or any of the Subsidiaries is included or proposed for inclusion on
the National Priorities List issued pursuant to CERCLA (as hereinafter defined)
by the United States Environmental Protection Agency (the "EPA") or on the
inventory of other potential "Problem" sites issued by the EPA and has not
otherwise been publicly identified by the EPA as a potential CERCLA site or
included or proposed for inclusion on any list or inventory issued pursuant to
any other Environmental Statute or issued by any other Governmental Authority
(as hereinafter defined).
(f) As used herein, "Hazardous Material" shall include without
limitation any flammable explosives, radioactive materials, hazardous materials,
hazardous wastes, toxic substances or related materials, asbestos or any
hazardous material as defined by any federal, state or local environmental law,
ordinance, rule or regulation, including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sections 9601 et seq. ("CERCLA"), the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. Sections 1801 et
11
<PAGE>
seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Sections
9601 et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Sections 11001 et seq., the Toxic Substances Control Act, 15 U.S.C.
Sections 2601 et seq., the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. Sections 136 et seq., the Clean Air Act, 42 U.S.C. Sections
7401 et seq., the Clean Water Act (Federal Water Pollution Control Act), 33
U.S.C. Sections 1251 et seq., the Safe Drinking Water Act, 42 U.S.C. Sections
300F to 300j-11, and the Occupational Safety and Health Act, 29 U.S.C.
Sections 651 et seq, as any of the above statutes may be amended from time to
time, and in the regulations adopted and publications promulgated pursuant to
each of the foregoing (individually, an "Environmental Statute") or by any
federal, state or local governmental authority having or claiming
jurisdiction over the properties and assets described in the Company's
periodic reports filed pursuant to the Exchange Act (a "Governmental
Authority").
2.13 Taxes.
(a) The Company, the Operating Partnership and the
Subsidiaries have filed or caused to be filed all federal, state, local, foreign
and other tax returns, reports, information returns and statements (except for
returns, reports, information returns and statements the failure to file which
will not result in any Material Adverse Effect) required to be filed by them.
The Company, the Operating Partnership and the Subsidiaries have paid or caused
to be paid all taxes (including interest and penalties) that are shown as due
and payable on such returns or claimed by any taxing authority to be due and
payable with respect to such returns, except those which are being contested by
them in good faith by appropriate proceedings and in respect of which adequate
reserves are being maintained on their books in accordance with generally
accepted accounting principles consistently applied. The Company, the Operating
Partnership and the Subsidiaries do not have any material liabilities for taxes
other than those incurred in the ordinary course of business and in respect of
which adequate reserves are being maintained by them in accordance with
generally accepted accounting principles consistently applied. Federal and state
income tax returns for the Company, the Operating Partnership and the
Subsidiaries have not been audited by the Internal Revenue Service or state
authorities. No deficiency, assessment with respect to or proposed adjustment of
the Company's, the Operating Partnership's or any of the Subsidiaries' federal,
state, local, foreign or other tax returns is pending or, to the best of the
Company's, the Operating Partnership's or any of the Subsidiaries, knowledge,
threatened. There is no tax lien, whether imposed by any federal, state, local
or other tax authority, outstanding against the assets, properties or business
of the Company, the Operating Partnership or any of the Subsidiaries. There are
no applicable taxes, fees or other governmental charges payable by the Company,
the Operating Partnership or any of the Subsidiaries in connection with the
execution and delivery of this Agreement or the issuance by the Company of the
Series A Preferred Shares or the Common Shares.
(b) The Company has qualified, and will elect, to be taxed as
a real estate investment trust pursuant to Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code"), for its taxable year
ending December 31, 1997, and the Company expects under present law to so
qualify in the future.
(c) The Operating Partnership is not a publicly traded
partnership that is taxed as a
12
<PAGE>
corporation under Section 7704 of the Code.
2.14 Insurance.
The Company, the operating Partnership and each of the
Subsidiaries carries or is entitled to the benefits of insurance in such amounts
and covering such risks as is reasonably sufficient under the circumstances or
is customary in the industry and all such insurance is in full force and effect.
2.15 Employees; ERISA.
The Company and the Operating Partnership have good
relationships with their employees and have not had any substantial labor
problems. Neither the Company nor the Operating Partnership has any knowledge as
to any intentions of any key employee or any group of employees to leave the
employ of the Company or the Operating Partnership. Other than as disclosed in
the Registration Statement, neither the Company nor the Operating Partnership
has established, sponsored, maintained, made any contributions to or been
obligated by law to establish, maintain, sponsor or make any contributions to
any "employee pension benefit plan" or "employee welfare benefit plan" (as such
terms are defined in ERISA), including, without limitation, any "multi-employer
plan." Each of the Company and the Operating Partnership is in compliance with
all applicable laws relating to the employment of labor, including provisions
relating to wages, hours, equal opportunity, collective bargaining and the
payment of Social Security and other taxes, and with ERISA, except where the
failure to so comply would not have a Material Adverse Effect.
2.16 REOC Status.
The Operating Partnership is, at all times since its creation
has been, and will continue to be a real estate operating company ("REOC") (as
such term is defined in 29 CFR 2510.3-101(e)).
2.17 Legal Compliance.
(a) Each of the Company, the Operating Partnership and each of
the Subsidiaries is in compliance with all applicable laws, rules, regulations,
orders, licenses, judgments, writs, injunctions, decrees or demands of any court
or administrative body, domestic or foreign, or of any other governmental agency
or instrumentality, domestic or foreign, except to the extent that failure to
comply would not have a Material Adverse Effect. The Company, the Operating
Partnership and each of the Subsidiaries have all necessary permits, licenses
and other authorizations required to conduct their businesses as currently
conducted, and as proposed to be conducted, except where the failure to have
such permits, licenses or other authorizations would not have a Material Adverse
Effect.
(b) Except as disclosed in the Registration Statement, there
are no adverse orders, judgments, writs, injunctions, decrees or demands of any
court or administrative body, domestic or foreign, or of any other governmental
agency or instrumentality, domestic or foreign, outstanding
13
<PAGE>
against the Company, the operating Partnership or any of the Subsidiaries which
could reasonably be expected to result in a Material Adverse Effect.
2.18 Governmental Consent.
Other than such consents, approvals, authorizations,
declarations or filings as have already been obtained or made or which will be
made at or prior to the Closing Date, no consent, approval or authorization of,
or declaration or filing with, any governmental authority on the part of the
Company is required for the valid execution and delivery of this Agreement or
performance hereunder or the valid offer, issue, sale and delivery of the Series
A Preferred Shares pursuant to this Agreement.
2.19 Investment Company.
The Company is not an "investment company", as defined in the
Investment Company Act of 1940, as amended, nor is the Company controlled by an
"investment company."
2.20 Knowledge Defined.
As used herein the phrase "to the Company's knowledge" or
words of similar import means the actual knowledge of the individuals listed on
Schedule 2.20.
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
The Investor represents and warrants, as of the date of
this Agreement and as of the Closing Date, that:
3.1 Power, Authority and Enforceability.
(a) The Investor is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of
Maryland. The Investor has the requisite corporate power and
authority, and has taken all required corporate action necessary, to
execute, deliver, and perform its obligations under, this Agreement
and to purchase the Series A Preferred Shares hereunder.
(b) This Agreement has been duly executed and delivered by
the Investor and constitutes the legal, valid and binding obligation
of the Investor enforceable against the Investor in accordance with
its terms, except as may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors, rights generally, and
(ii) equitable principles of general applicability relating to the
availability of specific performance, injunctive relief, or other
equitable remedies.
14
<PAGE>
3.2 Compliance with Other Instruments.
The execution, delivery and performance of this Agreement by
the investor and the consummation by the Investor of the transactions
contemplated hereby do not (i) result in a violation of the
Investor's Articles of Incorporation or Bylaws or (ii) conflict with,
or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of,
any agreement, indenture or instrument to which the Investor is a
party, or result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Investor or by which any
property or asset of the Investor is bound or affected (except for
such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the
aggregate, materially impair the Investor's ability to perform its
obligations under this Agreement).
3.3 Ownership Limitations.
The Investor has received a copy of the Declaration
and understands the restrictions on transfer and ownership of the
Company's shares of beneficial interest included therein related to
the qualification by the Company as a real estate investment trust
for federal income tax purposes pursuant to Sections 856 through 860
of the Code.
3.4 Sophisticated Investor.
In the normal course of its business or its
investing activities, the Investor invests in or purchases securities
similar to the Series A Preferred Shares and it has such knowledge
and experience in financial and business matters that it is capable
of evaluating the merits and risks of purchasing the Series A
Preferred Shares. The Investor is aware that it may be required to
bear the economic risk of an investment in the Series A Preferred
Shares for an indefinite period of time and it is able to bear such
risk for an indefinite period.
3.5 Unregistered Securities.
The Investor understands and acknowledges and
agrees that the Series A Preferred Shares and Common Shares have not
been registered under the Securities Act or any other applicable
securities law and, unless so registered, may not be offered, sold or
otherwise transferred except in compliance with the registration
requirements of the Securities Act or any other applicable securities
law, pursuant to an exemption therefrom or in a transaction not
subject thereto.
3.6 Access to Information.
The Investor has had access to such financial and
other information concerning the Company or any of its affiliates and
the Series A Preferred Shares as it
15
<PAGE>
deemed necessary in connection with its decision to purchase any of
the Series A Preferred Shares, including an opportunity to ask
questions and request information from the Company.
IV. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING.
The Investor's obligations at the Closing under Section 1.2 of this
Agreement are subject to the satisfaction or waiver by the Investor
on or before the Closing of each of the following conditions:
4.1 Execution and Delivery of Amended and Restated Partnership
Agreement.
At or prior to the Closing, the Amended and Restated
Partnership Agreement contemplated by Section 6.11 shall have been
executed and delivered.
4.2 Series A Preferred Designation.
At or prior to the Closing, the Declaration shall have been
filed with and accepted for recording by the SDAT.
4.3 Representations and Warranties.
The representations and warranties of each of the Company
and the Operating Partnership contained in Article II shall be true
on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of
the Closing.
4.4 Performance.
Each of the Company and the Operating Partnership shall have
performed and complied in all material respects with all agreements,
obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the
Closing Date.
4.5 No Material Adverse Change.
After the date of this Agreement and through the Closing
Date, there shall not have occurred any change or event that has had
a Material Adverse Effect.
4.6 Opinion of Company Counsel.
The Investor shall have received from each of Winston &
Strawn and Miles & Stockbridge, counsel for the Company, an opinion
in form and substance reasonably satisfactory to the Investor. In
rendering such opinion, Winston & Strawn may rely, as to
16
<PAGE>
matters governed by the laws of the State of Maryland, upon the
opinion of Miles & Stockbridge.
4.7 Registration Rights Agreement.
Simultaneous with the Closing, the Company and the Investor
shall have entered into a Registration Rights Agreement in
substantially the form attached hereto as Exhibit B.
4.8 Tag-Along Agreement.
Simultaneous with the Closing, the Investor shall have
entered into a Tag-Along Agreement with the other parties named
therein in substantially the form attached hereto as Exhibit C.
4.9 Officer's Certificate.
Each of the Company and the Operating Partnership shall have
delivered to the Investor on the Closing Date a certificate or
certificates signed by an authorized officer of such entity to the
effect that the facts required to exist by Sections 4.1, 4.2, 4.3,
4.4, 4.5, 4,12, and 4,13 continue to exist on the Closing Date.
4.10 Payment of Placement Fee.
At or prior to the Closing, the Company shall have entered
into a letter agreement with Security Capital Markets Group
Incorporated in the form attached hereto as Exhibit D and shall have
paid, or shall simultaneously pay, a placement fee equal to 1% of the
Aggregate Purchase Price to Security Capital Markets Group
Incorporated.
4.11 Proceedings.
All proceedings to be taken in connection with the
transactions contemplated by this Agreement and all documents
incidental thereto, shall be reasonably satisfactory in form and
substance to the Investor; and the Investor shall have received
copies of all documents which the Investor may reasonably request in
connection with said transactions and copies of the records of all
proceedings of the Company in connection therewith in form and
substance reasonably satisfactory to the Investor.
4.12 Limited Waiver of Ownership Limitations.
Subject to the Company's receipt of a certificate (the
"Certificate") from the Investor in form and substance acceptable to
the Company containing the representations and undertakings of the
nature set forth in Section 4.6 of the Declaration, the Board of
Trustees of the Company shall have duly adopted a resolution in form
and substance reasonably
17
<PAGE>
satisfactory to the Investor, thereby waiving the application of the
Ownership Limit defined therein to the Investor and its Affiliates to
the extent provided in such resolution.
4.13 No Injunction
There shall not be in effect any order, decree or injunction
of a court or agency of competent jurisdiction which enjoins or
prohibits consummation of the transactions contemplated hereby and
there shall be no actual or threatened action, suit, arbitration,
inquiry, proceedings or investigation by or before any Governmental
Authority, court or agency of competent jurisdiction, which would
reasonably be expected to materially impair the ability of the
Company to consummate the transactions contemplated hereby or to
issue the Series A Preferred Shares or the Common Shares.
4.14 Consummation of the Formation Transactions.
The Company shall have consummated the Formation
Transactions (as defined in the Registration Statement) and the gross
issue price per common Share in the IPO shall not exceed the product
of 11.0 times Fully Diluted Pro Forma 1998 Funds from Operations per
Share. "Fully Diluted Pro Forma 1998 Funds from Operations per Share"
means (x) the Company's estimated "Funds from Operations," computed
in accordance with the resolution adopted by the Board of Governors
of the National Association of Real Estate Investments Trusts, Inc.
in its March 1995 White Paper, except with base rents reported on a
cash basis rather than a straight-line GAAP basis, for the 12 months
ended June 30, 1998 divided by (y) the number of outstanding common
shares of beneficial interest of the Company (assuming all securities
exchangeable for, exercisable for, or convertible into common shares
of beneficial interest are so exchanged, exercised or converted).
4.15 Consummation of the IPO.
The Company shall have closed the IPO on or before December
31, 1997.
V. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING.
The obligations of the Company under Section 1.2 of this Agreement
are subject to the fulfillment on or before the Closing of each of
the following conditions:
5.1 Representations and Warranties.
The representations and warranties of the Investor contained
in Article III shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on
and as of the date of the Closing.
18
<PAGE>
5.2 Performance.
The Investor shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement
that are required to be performed or complied with by it on or
before the date of the Closing.
5.3 No Injunction.
There shall not be in effect any order, decree or
injunction of a court or agency of competent jurisdiction which
enjoins or prohibits consummation of the transactions contemplated
hereby and there shall be no actual or threatened action, suit,
arbitration, inquiry, proceedings or investigation by or before
any Governmental Authority, court or agency of competent
jurisdiction, which would reasonably be expected to materially
impair the ability of the Investor to consummate the transactions
contemplated hereby.
5.4 Officer's Certificate.
The Investor shall have delivered to the Company and the
Operating Partnership on the Closing Date a certificate or
certificates signed by an authorized officer of the Investor to
the effect that the circumstances described in the Certificate and
the facts required to exist by Sections 5.1, 5.2 and 5.3 continue
to exist on the Closing Date.
VI. COVENANTS.
6.1 No Sale of Security.
None of the Company, the Operating Partnership or any
Affiliate of either party will sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security
(as defined in the Securities Act) which would be integrated with
the sale of the Series A Preferred Shares or the Common Shares in
a manner which would require registration under the Securities Act
of the Series A Preferred Shares or the Common Shares.
6.2 No General Solicitation.
None of the Company, the Operating Partnership or any
Affiliate of either party will solicit any offer to buy or offer
to sell the Series A Preferred Shares or the Common Shares by
means of any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
19
<PAGE>
6.3 Filing of Exchange Act Reports.
After the date of this Agreement, the Company
will timely file all documents required to be filed with the
Commission pursuant to Section 13 or 15 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") , and so long as any
of the Series A Preferred Shares or the Common Shares remain
issued and outstanding, shall provide to the Investor copies of
all such documents, including, without limitation, all financial
statements of the Company required to be filed with the Commission.
6.4 Consultation and Related Rights.
For so long as the Investor holds at least 50%
of the Series A Preferred Shares that it held immediately after
the Closing Date (or 50% of the Common Shares that the investor
could have obtained at that time upon conversion of such Series A
Preferred Shares whether or not such shares are then convertible),
the Investor shall have the right to directly participate (within
the meaning of 29 CFR 2510.3 -101(d)(3)(ii) ) in the management of
the Company and the Operating Partnership through and by the
following rights and powers:
(a) The right to be consulted on the appointment and
dismissal of (i) the chief executive officer, the
chief operating officer and the chief financial
officer (or any person fulfilling similar duties)
and the public accountants and public auditors for
the Company and its subsidiaries and (ii) the
managing general partner, the chief executive
officer, the chief operating officer and the chief
financial officer, or any person or persons
fulfilling similar duties, and the public auditors
and public accountants for the Operating
Partnership and its subsidiaries.
(b) The right to inspect the books and records of the
Company and the Operating Partnership.
(c) The right to be consulted concerning the
development of the Company' s and the Operating
Partnership's and their subsidiaries, annual
strategic plan that incorporates a specific
business strategy, an operating agenda, investment
and disposition objectives, and capitalization and
funding strategies.
(d) The right to be consulted concerning the annual
operating and capital budgets of the Company and
the Operating Partnership and their subsidiaries.
(e) The right to be consulted concerning Major
Transactions. "Major Transactions" means (i) any
acquisition or disposition of any assets in any
single transaction or any series of related
transactions where the aggregate purchase price
paid or received by the Company, the Operating
Partnership or
20
<PAGE>
their subsidiaries exceeds $50,000,000, or, in
the case of dispositions, where the purchase
price received does not approximate the fair
market value of the asset sold, (ii) additional
financings in excess of $50,000,000 and (iii) a
determination by the Company's Board of
Trustees to terminate the Company's status as a
real estate investment trust pursuant to
Sections 856 through 860 of the Code.
Notwithstanding the foregoing, the Company shall have no
obligation to comply with any advice offered by the Investor in
any consultation referred to in this Section 6.3.
Investor agrees that any information obtained
through the foregoing consultation rights which is not public
shall be kept confidential, and shall not be disclosed to any
persons other than the directors, officers, employees, financial
advisors, legal advisors, and accountants of Investor who
reasonably need to have access to such information and who are
advised of the confidential nature of such information and agree
to maintain the confidentiality of such information; provided that
the foregoing obligation of Investor shall not (a) relate to any
information that (i) is or becomes generally available other than
as a result of unauthorized disclosure by Investor or by persons
to whom Investor has made such information available, or (ii) is
or becomes available to investor on a non-confidential basis from
a third party that is not, to Investor's knowledge, bound by any
other confidentiality agreement with the Company or its
Subsidiaries, or (b) prohibit disclosure of any information if
required by law, rule, regulation, court order, or other legal or
governmental process.
6.5 Maintenance of REIT Status.
(a) So long as any of the Series A Preferred Shares or
the Common Shares remain issued and outstanding,
the Company will continue to be taxed as a real
estate investment trust pursuant to Sections 856
through 860 of the Code.
(b) If the Company shall fail to continue to be
taxed as a real estate investment trust pursuant
to Sections 856 through 860 of the Code (a
"REIT-Repurchase Event") , the Investor shall
have the right to require the Company, to the
extent the Company shall have funds legally
available therefor, to repurchase any or all of
the Series A Preferred Shares or the Common
Shares held by the Investor at a repurchase
price payable in cash in an amount equal to 115%
of the liquidation preference thereof, plus
accrued and unpaid dividends whether or not
declared, if any (the "REIT-Repurchase
Payment"), to the date of repurchase or the date
payment is made available (the "REIT-Repurchase
Date") , pursuant to the offer described in
subsection (c) below (the "REIT-Repurchase
offer").
(c) Within 15 days following the Company becoming
aware that a REIT-Repurchase Event has occurred,
the Company shall mail by first class mail or
21
<PAGE>
overnight courier a notice to the Investor
stating (A) that a REIT-Repurchase Event has
occurred and that the Investor has the right to
require the Company to repurchase any or all of
the Series A Preferred Shares or the Common
Shares then held by the investor in cash, (3)
the date of repurchase (which shall be a
business day, no earlier than 30 days and no
later than 60 days from the date such notice is
mailed, or such later date as may be necessary
to comply with the requirements of the Exchange
Act) , (C) the repurchase price and (D) the
instructions determined by the Company,
consistent with this subsection, that the
Investor must follow in order to have the Series
A Preferred Shares or the Common Shares
repurchased.
(d) On the REIT-Repurchase Date, the Company, to the
extent lawful, shall accept for payment Series A
Preferred Shares or Common Shares or portions
thereof tendered by the Investor or an affiliate
of the Investor pursuant to the REIT-Repurchase
offer and promptly mail by first class mail or
overnight courier or by wire transfer of
immediately available funds to the Investor, as
directed by the Investor, in an amount equal to
the REIT-Repurchase Payment in respect of all
Series A Preferred Shares or Common shares or
portions thereof so tendered.
(e) Notwithstanding anything else herein, to the
extent they are applicable to any
REIT-Repurchase Offer, the Company will comply
with any federal and state securities laws,
rules and regulations and all time periods and
requirements shall be adjusted accordingly.
(f) Notwithstanding the provisions of this Section
6.4, in no event shall the Company be required
to repurchase any Series A Preferred Shares at
any time that such repurchase is prohibited by
the Declaration or the Company's debt
instruments.
6.6 Change of Control
(a) If a Change of Control (as defined in Section
3.3.4(a) of the Declaration) occurs (a "Change
of Control Repurchase Event"), the Investor
shall have the right to require the Company, to
the extent the Company shall have funds legally
available therefor, to redeem any or all of the
Series A Preferred Shares or the Common Shares
held by the Investor at a repurchase price
payable in cash in an amount equal to 100% of
the liquidation preference thereof, plus accrued
and unpaid dividends whether or not declared, if
any (the "Change of Control"), to the date of
repurchase or the date payment is made available
(the "Change of Control Date"), pursuant to the
offer described in subsection (c) below (the
"Change of Control-Repurchase Offer").
22
<PAGE>
(b) Within 15 days following the Company becoming
aware that a Change of Control Repurchase Event
has occurred, the Company shall mail by first
class mail or overnight courier a notice to the
investor stating (A) that a Change of Control
Repurchase Event has occurred and that the
Investor has the right to require the Company to
repurchase any or all of the Series A Preferred
Shares or the Common Shares then held by the
Investor in cash, (B) the date of repurchase
(which shall be a business day, no earlier than
30 days and no later than 60 days from the date
such notice is mailed, or such later date as may
be necessary to comply with the requirements of
the Exchange Act), (C) the repurchase price and
(D) the instructions determined by the Company,
consistent with this subsection, that the
Investor must follow in order to have the Series
A Preferred Shares or the Common Shares
repurchased.
(c) On the change of Control Repurchase Date, the
Company, to the extent lawful, shall accept for
payment Series A Preferred Shares or Common
Shares or portions thereof tendered by the
Investor or an affiliate of the Investor
pursuant to the Change of Control Repurchase
Offer and promptly mail by first class mail or
overnight courier or by wire transfer of
immediately available funds to the Investor, as
directed by the Investor, in an amount equal to
the Change of Control Repurchase Payment in
respect of all Series A Preferred Shares or
Common Shares or portions thereof so tendered.
(d) Notwithstanding anything else herein, to the
extent they are applicable to any Change of
Control Repurchase Offer, the Company will
comply with any federal and state securities
laws, rules and regulations and all time periods
and requirements shall be adjusted accordingly.
(e) Notwithstanding the provisions of this Section
6.5, in no event shall the Company be required
to repurchase any Series A Preferred Shares at
any time that such repurchase is prohibited by
the Declaration or the Company's debt
instruments.
6.7 Waiver of Ownership Limitations.
So long as any of the Series A Preferred Shares remain
issued and outstanding or the Investor owns more than 9.9% of the
Company's outstanding common shares of beneficial interest, the
Company shall not reverse or rescind the waiver required to be
granted pursuant to Section 4.12 of this Agreement.
6.8 No Public Disclosure.
Neither the Company nor any affiliate of the Company will
make any public disclosure concerning the transactions
contemplated by this Agreement unless the Investor has had a
reasonable time to review such disclosure. Unless in the
reasonable opinion of counsel to the Company that such disclosure
is required by applicable law, neither the Company nor any
23
<PAGE>
affiliate of the Company will make any such public disclosure
without the Investor's Prior written consent.
6.9 Annual Certificate of Independent Public Accountants or
Company Counsel.
So long as any of the Series A Preferred Shares or the
Common Shares remain outstanding, the Company shall, on an annual
basis no later than March 31 of each year, cause its independent
public accountants or a nationally recognized law firm to provide
the Investor an opinion in form and substance reasonably
satisfactory to the Investor.
6.10 Prohibition on Issuance of Series A Preferred Shares.
The Company will not issue any Series A Preferred Shares
to any party other than the Investor or any direct or indirect
transferee and then only in compliance with the terms of the
Declaration.
6.11 Structure of Operating Partnership Agreement.
The Company and Operating Partnership shall use their
best efforts to structure the Agreement of Limited Partnership in
order to effect the transactions contemplated hereby.
6.12 Standstill Provisions.
(a) During the Standstill Period (as defined below),
except as provided in Section 6.12(a)(iii), each Security Capital
Investor will not, and will cause each of its controlled
Affiliates not to, and will use its reasonable best efforts to
cause each of its other Affiliates not to, directly or indirectly:
(i) act in concert with any other person or
Group by becoming a member of a 13D Group (as defined below) ,
other than any 13D Group comprised exclusively of Investor and one
or more of its Affiliates;
(ii) sell, transfer, pledge (other than pledges
made to commercial lending institutions securing indebtedness for
borrowed money) or otherwise dispose of (collectively, "Transfer")
any Series A Preferred Shares or Common Shares to any person if
the acquisition of such capital stock by such person would violate
the provisions of Section 4.1 of the Declaration; provided that
this Section shall not prohibit Transfers (A) between the Investor
and an Affiliate of the Investor or (2) between one or more
Affiliates of the Investor;
(iii) so long as the sum of (i) the aggregate
number of common shares of beneficial interest held by all
Security Capital Investors and (ii) the aggregate number of common
shares of beneficial interest into which the Series A Preferred
Shares held by all Security Capital Investors are convertible
(assuming that all such Series A Preferred Shares
24
<PAGE>
are immediately convertible) is greater than 9.9% of the Company's
outstanding common shares of beneficial interest, purchase or
otherwise acquire any common shares of beneficial interest or
other securities of the Company if, after giving effect to such
purchase or acquisition, the Security Capital Investors and their
Affiliates (and any persons that are members of a 13D Group of
which any Security Capital Investor or any of their Affiliates may
be a member, notwithstanding the provisions of clause W above)
collectively would Beneficially Own more than 20.'6 of the
outstanding common shares of beneficial interest of the Company;
provided that the Security Capital Investors shall not be deemed
to have breached this covenant solely as a result of a decrease in
the aggregate number of common shares of beneficial interest
outstanding.
(iv) solicit or propose to effect or negotiate
any merger, consolidation, other business combination,
liquidation, sale of the Company or all or substantially all of
the assets of the Company and its subsidiaries or any other change
of control of the Company or similar extraordinary transaction;
(v) except with respect to seeking
representation on the Board of Trustees of the Company or a change
in the size of the Board of Trustees as provided in Section 6.12
(a)(vi), solicit, initiate or participate in any "solicitation" of
"proxies" or become a "participant" in an "election contest" (as
such terms are defined or used in Regulation 14A under the 1934
Act, disregarding clause (iv) of Rule 14a-1(1) (2) and including
an exempt solicitation pursuant to Rule 14a-2 (b) (i) ; call, or
in any way participate in a call for, any special meeting of
stockholders of the Company (or take any action with respect to
acting by written consent of the stockholders of the Company);
request, or take any action to obtain or retain any list of
holders of any securities of the Company; or initiate or propose
any stockholder proposal or participate in the making of, or
solicit stockholders of the Company for the approval of, one or
more stockholder proposals; provided that Investor shall not he
prohibited from communicating with a security holder who is
engaged in any "solicitation" of "proxies" or who is a "a
participant" in any "election contest";
(vi) seek representation on the Board of Trustees
of the Company or a change in the size of the Board of Trustees
other than in accordance with the provisions of the Series A
Preferred Shares following a default in the payment of dividends
thereon for two or more quarters;
(vii) Transfer any capital stock of such
Security Capital Investor or any capital stock of any Affiliate of
such Security Capital Investor that owns any capital stock of the
Company, or Transfer any options, warrants, convertible
securities, or other similar rights to acquire any capital stock
of such Security Capital Investor or any such Affiliate, if, after
giving effect thereto, the Beneficial Owner of such shares of
capital stock of the Company would (A) Beneficially own more than
20% of the outstanding common shares of beneficial interest of the
Company or (B) violate the Provisions of Section 4.1 of the
Declaration;
25
<PAGE>
(viii) request the Company or any of its
trustees, officers, employees or agents to amend or waive the
provisions of this Section 6.12 or seek to challenge the legality
or effect thereof; or
(ix) assist, advise, encourage or act in concert
with any person with respect to, or seek to do, any of the
foregoing.
(b) As used in this Section, the following terms have the
respective meanings set forth below:
"Affiliate" shall have the meaning ascribed thereto in
Rule 12b-2 promulgated under the 1934 Act, as such rule is in
effect on the date hereof.
"Beneficially Own" shall mean, with respect to any
security, having direct or indirect (including through any
Affiliate) "beneficial ownership" of such security, as determined
pursuant to Rule 13d-3 under the 1934 Act, including pursuant to
any agreement, arrangement or understanding, whether or not in
writing. "Beneficial ownership" and "Beneficial Owner" shall have
correlative meanings. As used with respect to the common shares of
beneficial interest of the Company, the term shall include any
common shares of beneficial interest issuable, without regard to
any requirement of notice or the passage of time or the occurrence
of any event, pursuant to any options, warrants, or other
convertible or exchangeable securities held by the applicable
person, its Affiliates, or any member of a 13D Group of which such
person is a member.
"Covered Transaction" shall mean any merger,
consolidation, other business combination, liquidation, sale of
the Company or all or substantially all of the assets of the
Company and its subsidiaries or any other change of control of the
Company or similar extraordinary transaction, other than any
transaction in which the Company is the surviving and acquiring
corporation and in which the business or assets so acquired do
not, or would not reasonably be expected to, have a value greater
than 50% of the assets of the Company (on a consolidated basis)
prior to such transaction.
"Group" shall mean a "group" as such term is used in
Section 13(d)(3) of the 1934 Act.
"1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
"person" shall mean any individual, corporation,
partnership, limited liability company, joint venture, trust,
unincorporated organization, or other form of business or legal
entity.
"Prime Investor" shall mean The Prime Group, Inc., an
Illinois corporation ("Prime"), and any Affiliate thereof.
26
<PAGE>
"Security Capital Investor" shall mean the investor and
any person controlled (as such term is defined in Rule 12b-2 under
the 1934 Act) , directly or indirectly, by Security Capital Group
Incorporated, to which any Series A Preferred Shares or Common
Shares are transferred and to which the rights under this
Agreement are assigned, by the Investor or another Security
Capital Investor, and which agrees to be bound by the terms of
this Agreement.
"Standstill Period" shall mean the period beginning on
the date hereof and ending on the first date following the date on
which the aggregate Beneficial Ownership by the Security Capital
Investors and their Affiliates (and any persons that are members
of a 13D Group of such Security Capital Investors or any of their
Affiliates are members, notwithstanding the provisions of clause W
of Section 6.12(a)) of common shares of beneficial interest of the
Company shall have been less than 9.9% of the number of
outstanding common shares of beneficial interest of the Company
(treating any common shares of beneficial interest issuable under
options, warrants, or other convertible or exchangeable securities
Beneficially owned by such Security Capital Investors, their
Affiliates, and any member of such a 13D Group as being
outstanding for this purpose) for a continuous period of 180 days.
Notwithstanding the foregoing, the Standstill Period also shall be
terminated on the earliest of:
(i) the acquisition by any person or Group other
than a Security Capital Investor or any
Affiliate thereof or a Prime Investor of
Beneficial Ownership of 20% or more of the
outstanding common shares of beneficial interest
of the Company, on a fully diluted basis;
(ii) the fifteenth business day after the
written submission by any person or Group other
than a Security Capital Investor or Affiliate of
a proposal to the Company (including to the
Board or any agent, representative or Affiliate
of the Company) with respect to, or otherwise
expressing an interest in pursuing, a Covered
Transaction; provided that, except as described
in the next paragraph, the Standstill Period
shall not terminate pursuant to this clause (ii)
if, within such period, the Board of Trustees
determines that such proposal is not in the best
interest of the Company and its stockholders and
for so long as the Board continues to reject
such proposal as a result of such determination.
If any Security Capital Investor desires to
tender any common shares of beneficial interest
into a tender offer made by a third party, which
tender offer has not been approved by the Board
of Trustees, such Security Capital Investor
shall provide a notice (the "Tender Notice") the
Company does not so elect to purchase the Tender
Shares, the Security Capital Investor may tender
the Tender Shares into the tender offer;
(iii) any breach by the Company of this
Agreement that is neither cured nor desisted
from within 30 days of receipt of written notice
of such breach and
27
<PAGE>
which would reasonably be expected to materially
adversely affect a Security Capital Investor; or
(iv) if and whenever the Company shall be in
arrears in the payment of dividends on the
Series A Preferred Shares for two consecutive
quarters (which shall, with respect to any such
quarterly dividend, mean that any such dividend
has not been paid in full) , whether or not
earned or declared, or (ii) for two consecutive
quarterly dividend periods the Company fails to
pay dividends on its common shares of beneficial
interest in an amount per share at least equal
to $1.35 (subject to adjustment). whenever all
arrears in dividends on the Series A Preferred
Shares shall have been paid and dividends
thereon for the current quarterly dividend
period shall have been paid or declared and set
apart for payment, or the Corporation has paid
dividends on the Company's common shares of
beneficial interest in an amount per share at
least equal to $1.35 (subject to adjustment) for
two consecutive quarters, the Standstill Period
shall be reinstated, unless the Standstill
Period is terminated pursuant to any other
provisions of this Section.
"13D Group" shall mean any group of persons
acquiring, holding, voting, or disposing of capital stock of the
Company that would be required under Section 13 (d) of the 1934
Act and the rules and regulations thereunder (as in effect, and
based on legal interpretations thereof existing, on the date
hereof) to file a statement on Schedule 13D with the Securities
and Exchange Commission as a "person" within the meaning of
Section 13(d) (3) for the 1934 Act if such group Beneficially
Owned capital stock representing more than 5% of any class of
capital stock of the Company then outstanding.
6.13 Certificate of Company Security Ownership.
Upon the Company's written request, within 30 days after
December 31 of each year, the Investor shall provide to the
Company written notice stating the name and address of the
Investor, the number of Series A Preferred Shares, Common Shares
or other stock of the Company owned by the Investor or its
Affiliates, and a description of the manner in which such shares
are owned, together with such other additional information as the
Company may reasonably request in order to determine the effect,
if any, of such ownership on the Company's status as a REIT and to
ensure compliance with its undertakings, if any, set forth in the
Certificate.
6.14 Ownership in Strategic Hotel Capital Incorporated.
The Company acknowledges that an entity that may be
deemed to be an affiliate of the Investor owns more than 100% of
the capital stock of Strategic Hotel Capital Incorporated, which
is a tenant of the Company. The Company agrees that such ownership
shall not result in any shares of beneficial interest of the
Company owned by the Investor
28
<PAGE>
being treated as Excess Shares (as defined in the Declaration).
VII. TERMINATION.
7.1 Termination
This Agreement may be terminated as follows:
(a) Mutual Consent. With the mutual written consent of
the Investor and the Company; or
(b) By the Company. By the Company, if by the Closing
Date any of the conditions provided in Article V shall not have
been satisfied, complied with or performed in any material
respect, and the Company shall not have waived the failure of
satisfaction, noncompliance, or nonperformance; or
(c) By the Investor. By the Investor, if by the Closing
Date any of the conditions provided in Article IV shall not have
been satisfied, complied with or performed in any material
respect, and the Investor shall not have waived the failure of
satisfaction, noncompliance, or nonperformance; or
(d) Automatic Termination. Automatically if the Closing
Date shall not have occurred on or before December 31, 1997, or
such later date as shall have been agreed to in writing by the
Company and the Investor.
7.2 Notice of Termination.
In the event of any termination pursuant to Section 7.1
(other than pursuant to Section 7.1(a) or Section 7.1(d) ) ,
written notice setting forth the reasons for termination shall
promptly be given by the terminating party to the other in writing.
7.3 Effect of Termination.
(a) In the event of termination of this Agreement, no
party hereto shall have any liability to any other party to this
Agreement, except as provided in this Section 7.3 and except that
nothing herein shall relieve any party from liability for any
breach of this Agreement.
(b) If this Agreement shall have been terminated for any
reason other than (i) the Investor's failure to perform any
material obligation under this Agreement or (ii) the reasons
described in Section 7.3(c), then the Company shall promptly, and
in no event later than two days after such termination, reimburse
the Investor for its reasonable out-of-pocket expenses, including
fees and disbursements of counsel.
29
<PAGE>
(c) Notwithstanding the termination of this Agreement, if
the IPO is consummated after December 31, 1997, the Investor shall
have the right (but not the obligation) to participate in the IPO.
VIII. MISCELLANEOUS
8.1 Survival of Warranties.
The representations and warranties of the Company, the
Operating Partnership and the Investor contained in or made
pursuant to Articles II or III of this Agreement shall survive the
Closing hereunder through and until one year following the
Closing. The covenants contained in or made pursuant to Article VI
of this Agreement shall survive the Closing indefinitely, except
for any provisions which expire by their terms. The
representations and warranties contained in this Agreement shall
in no way be affected by any investigation of the subject matter
thereof made by or on behalf of the Investor or the Company.
8.2 Successors and Assigns.
Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties
hereto. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement.
Except as specifically provided hereby, the Investor shall not be
permitted to assign any of its rights hereunder to any third
party, provided, however, that the Investor's rights hereunder may
be assigned to another entity controlled directly or indirectly by
Security Capital Group Incorporated that agrees in writing to be
bound by the terms of this Agreement.
8.3 Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without giving
effect to the conflict of law Provisions thereof.
8.4 Counterparts.
This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
8.5 Titles and Subtitles.
The title and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or
interpreting this Agreement.
30
<PAGE>
8.6 Notices.
Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall
be deemed effectively given (a) upon personal delivery to the
party to be notified, (b) on the fifth business day after deposit
with the United States Post Office, by registered or certified
mail, postage prepaid, (c) on the next business day after dispatch
via nationally recognized overnight courier or (d) upon
confirmation of transmission by facsimile, all addressed to the
party to be notified at the address indicated for such party
below, or at such other address as such party may designate by ten
(10) days' advance written notice to the other parties. Notices
should be provided in accordance with this Section at the
following addresses:
If to the Investor, to:
Security Capital Preferred Growth Incorporated
11 South LaSalle Street
Chicago, Illinois 60603
Attention: Daniel F. Miranda
David E. Rosenbaum
Joshua D. Goldman
Facsimile (312) 345-5888
with a copy to:
Philip J. Niehoff
Mayer, Brown & Platt
190 South LaSalle
Chicago, IL 60603
Facsimile: (312) 701-7711
If to the Company or the Operating Partnership, to:
Richard S. Curto
77 West Wacker Drive, Suite 3900
Chicago, Illinois 60601
Facsimile: (312)782-5867
with a copy to:
Robert J. Rudnik
Prime Group Realty Trust
77 West Wacker Drive, Suite 3900
Chicago, Illinois 60601
31
<PAGE>
Facsimile (312) 917-1684
and a copy to:
Wayne D. Boberg
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Facsimile: (312) 558-5700
8.7 Finder's Fees.
Each party represents that it neither is nor will be
obligated for any finders, fee or commission in connection with
this transaction, except that the Company shall pay a placement
fee equal to 1% of the Aggregate Purchase Price to Security
Capital Markets Group Incorporated, a broker-dealer affiliate of
the Investor. The Investor agrees to indemnify and hold harmless
the Company from any liability for any commission or compensation
in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted liability) for which
the Investor or any of its officers, employees or representatives
is responsible. The Company agrees to indemnify and hold harmless
the Investor from any liability for any commission or compensation
in the nature of a finders, fee (and the costs and expenses of
defending against such liability or asserted liability) for which
the Company or any of its officers, employees or representatives
is responsible.
8.8 Expenses.
Except as described in Article VII or in this Section
8.8, each party shall pay all costs and expenses that it incurs
with respect to the negotiation, execution, delivery and
performance of this Agreement. If any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement,
the Amended and Restated Agreement of Limited Partnership or the
Declaration, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
8.9 Amendments and Waivers.
Any term of this Agreement may be amended, and the
observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) , only with the written consent of the Company and
the Investor. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each holder of any securities
purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each
future holder of all such securities, and the Company.
32
<PAGE>
8.10 Severability.
If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement
shall be interpreted as if such provision were so excluded and
shall be enforceable in accordance with its terms.
8.11 Entire Agreement.
This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and no party
shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically
set forth herein.
[SIGNATURE PAGE FOLLOWS]
33
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
SECURITY CAPITAL PREFERRED
GROWTH INCORPORATED
By:
--------------------------------
Name: /s/ Daniel F. Miranda
--------------------------------
Its: Managing Editor
--------------------------------
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust, its managing
general partner
By:
--------------------------------
Name: /s/ W. Michael Karnes
--------------------------------
Its:
--------------------------------
PRIME GROUP REALTY TRUST
By:
--------------------------------
Name: /s/ W. Michael Karnes
--------------------------------
Its: Executive Vice President
--------------------------------
34
<PAGE>
Exhibit 10.24
TAX INDEMNIFICATION AGREEMENT
TAX INDEMNIFICATION AGREEMENT (the "Agreement"), dated as of November
17, 1997 between ED HADESMAN, an individual ("Hadesman"),EDWARD S. HADESMAN
TRUST DATED MAY 22, 1992, Edward S. Hadesman, Trustee; GRANDVILLE/NORTHWESTERN
MANAGEMENT CORPORATION, an Illinois corporation; CAROLYN B. HADESMAN TRUST DATED
MAY 21, 1992, Carolyn B. Hadesman, Trustee; LISA HADESMAN 1991 TRUST, Edward S.
Hadesman, Trustee; CYNTHIA HADESMAN 1991 TRUST, Edward S. Hadesman, Trustee;
TUCKER B. MAGID, an individual; FRANCES S. SHUBERT, an individual; GRANDVILLE
ROAD PROPERTY, INC., an Illinois corporation; and SKY HARBOR ASSOCIATES, an
Illinois limited partnership (Hadesman and the foregoing persons are "Hadesman
Indemnitees"), and PRIME GROUP REALTY, L.P., a Delaware limited partnership
("UpREIT").
WHEREAS, each Hadesman Indemnitee has an interest ("Hadesman
Partnership Interest") in one or more of those certain partnerships set forth on
Exhibit A hereto ("Hadesman Partnerships");
WHEREAS, each Hadesman Indemnitee has entered into the that certain
Amended and Restated Agreement of Limited Partnership of Prime Group Realty,
L.P. (the "Partnership Agreement"), pursuant to which the Hadesman Partnerships
contributed certain real properties ("Hadesman Properties") or the Hadesman
Indemnitees contributed certain Hadesman Partnership Interests to the UpREIT,
all as set forth on Exhibit A hereto;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions. For purposes of the Agreement,
capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Partnership Agreement. Any term defined by
reference to an agreement, instrument or other document shall have the meaning
so assigned to it whether or not such document is in effect. Unless otherwise
indicated, references in the Agreement to articles, Sections, paragraphs,
clauses, appendices, schedules and exhibits are to the same contained in or
attached to this Agreement.
For purposes of this Tax Indemnification Agreement, the
following terms shall apply:
(a) The term "After-Tax Basis" shall mean, with respect to any
payment to be received hereunder, the amount of such payment supplemented by a
further amount so that, after deduction of the amount of all federal and
applicable state income taxes that are required to be paid by the recipient
thereof (assuming that the recipient is taxable at the highest marginal federal
and
<PAGE>
applicable state income tax rate then applicable to the recipient and taking
into account any tax benefits to be realized by such recipient from the receipt
of the indemnified amount) with respect to the receipt by it of such amounts,
the net amount received is equal to the payment required to be made.
(b) The term "Realistic Possibility of Success" shall mean
such circumstances that tax counsel may properly advise reporting such position
on a tax return in accordance with Section 10.34 of 31 C.F.R.
part 10, governing practice before the Internal Revenue Service.
(c) The term "Indemnity Term" shall mean the period beginning
as of the date of the Partnership Agreement and ending December 31, 2007.
(d) The term "Final Determination" shall mean (i) a decision,
judgment, decree or other order by any court of competent jurisdiction, which
decision, judgment, decree or other order has become final after all allowable
appeals by either party to the action have been exhausted or the time for filing
such appeal has expired, or in any case where judicial review shall at the time
be unavailable because the proposed adjustment involves a decrease in net
operating loss carry forward or a business credit carry forward, a decision,
judgment, decree or other order of an administrative official or agency of
competent jurisdiction, which decision, judgment, decree or other order has
become final (i.e., where all administrative appeals have been exhausted by all
parties thereto), (ii) a closing agreement entered into under Section 7121 of
the Code, or any other final settlement agreement entered into in connection
with an administrative or judicial proceeding and with the consent of UpREIT or
as otherwise permitted in Section 6 or the Partnership Agreement, or (iii) the
expiration of the time for instituting a claim for refund, or if such a claim
was filed, the expiration of the time for instituting suit with respect thereto.
(e) The term "Indemnity Debt Allocation Method" shall mean the
allocation of the Partnership's excess nonrecourse liabilities in any UpREIT
taxable year for purposes of Regulations Section 1.752-3(a)(3) based upon each
Partner's relative ownership of Common Units as of the beginning of such UpREIT
taxable year; provided, that nothing in this Agreement shall be interpreted as
prohibiting the UpREIT from actually using a different debt allocation than that
based upon the Indemnity Debt Allocation Method.
Section 2. Tax Representations. Each Hadesman Indemnitee represents,
warrants and covenants as follows:
(a) immediately prior to the relevant Adjustment Date, the Hadesman
Properties are subject to aggregate Nonrecourse Liabilities, allocable among the
Hadesman Properties, as shown on Exhibit B to be attached hereto;
(b) each Nonrecourse Liability, described in Section 2(a) of this
Agreement, was incurred by the Hadesman Partnership, which owned the Hadesman
Properties to which such Nonrecourse
-2-
<PAGE>
Liability is allocated, either (i) more than two years prior to the date of that
certain Contribution Agreement, dated July 8, 1997, by and between The Prime
Group, Inc. and the parties set forth on Schedule 1 to such agreement (the
"Contribution Agreement"), or (ii) not in anticipation of the transfer of such
Hadesman Property to the UpREIT (within the meaning of Regulations Section
1.707-5(a)(6);
(c) each Nonrecourse Liability, described in Section 2(a) of this
Agreement, has encumbered such Hadesman Properties throughout the period
beginning on the earlier of the date two years prior to the date of the
Contribution Agreement and the date such liability was incurred by the Hadesman
Partnership, and ending on the Adjustment Date in respect of such Hadesman
Properties;
(d) each Nonrecourse Liability, described in Section 2(a) of this
Agreement, is nonrecourse for purposes of Regulations Section 1.752-1(a)(2);
(e) immediately prior to the relevant Adjustment Date, the adjusted tax
basis in each Hadesman Partnership Interest is as shown on Exhibit B hereto, and
each Hadesman Partnership has an adjusted tax basis in each Hadesman Property as
shown on Exhibit B hereto;
(f) immediately prior to the relevant Adjustment Date, each Hadesman
Indemnitee's share of Partnership Minimum Gain under Regulations Section
1.704-2(g)(1) is as shown on Exhibit B to be attached hereto;
(g) immediately prior to the relevant Adjustment Date, each Hadesman
Indemnitee is allocated Nonrecourse Liabilities under Code Section 752 and the
Regulations as shown on Exhibit B to be attached hereto;
(h) immediately prior to the relevant Adjustment Date, each Hadesman
Indemnitee has "passive losses" under Code Section 469(d) and the Regulations
from the activity in respect of the Hadesman Partnerships, as shown on Exhibit B
to be attached hereto;
(i) immediately prior to the relevant Adjustment Date, each Hadesman
Indemnitee has an amount "at risk" under Code Section 465(a)(2) and the
Regulations from the activity in respect of the Hadesman Partnerships, and
"suspended losses" in respect of such activity under Code Section 465 and the
Regulations, as shown on Exhibit B to be attached hereto;
(j) the gross fair market value of any Hadesman Property or Hadesman
Interest equals the initial Gross Asset Value of such Property credited to the
relevant Hadesman Indemnitee's Capital Account;
(k) each Hadesman Indemnitee will report any payment received by it
under this Agreement as a payment made within Section 707(a) of the Code.
-3-
<PAGE>
(l) each Hadesman Indemnitee has and will have a taxable year that is
the calendar year; and
(m) each Hadesman Property constitutes nonresidential real property
under Code Section 168.
Section 3. Indemnified Income Inclusions. If any Hadesman
Indemnitee shall be required to include in its gross income for federal or
applicable state income tax purposes, with respect to any of its taxable years
ending on or prior to the end of the Indemnity Term, any of the following:
(a) UpREIT items of income and gain attributable to such Hadesman
Indemnitee's share of the net decrease in Partnership Minimum Gain from Hadesman
Interests or Hadesman Properties (to the extent not duplicative with subsection
(c));
(b) Gain under Code Section 731 from a deemed distribution under Code
Section 752 from the retirement or refinancing of either the Nonrecourse
Liabilities shown on Exhibit B to be attached hereto, or the debt which
refinances or replaces such Nonrecourse Liabilities (to the extent not
duplicative with subsection (f));
(c) gain from the sale or disposition of Hadesman Properties;
(d) income under Code Section 465(e) from a refinancing or retirement
of either the Nonrecourse Liabilities shown on Exhibit B to be attached hereto,
or the debt which refinances or replaces such Nonrecourse Liabilities (to the
extent not duplicative with subsection (f));
(e) income under Code Section 704(c) in excess of that allocable to
such Hadesman Indemnitee under the "traditional method" of Regulations Section
1.704-3(b); or
(f) solely in respect of Sky Harbor Associates, either (i) gain under
Code Section 731 from a deemed distribution under Code Section 752 that
constitutes a recapture of all or a portion of the negative Capital Accounts of
the Sky Harbor Associates partners, as determined as of the date hereof and set
forth on Exhibit B, or (ii) income under Code Section 465(e) that constitutes a
recapture of all or a portion of the aggregate amount described in Code Section
465(e)(2) for the Sky Harbor Associates partners, determined as of the date
hereof and as set forth on Exhibit B,
(such an inclusion being an "Income Inclusion"), UpREIT shall pay to such
Hadesman Indemnitee an indemnity with respect to the additional federal and
applicable state income tax liability from such Income Inclusion in the amount
determined in Section 4 hereof.
-4-
<PAGE>
Section 4. Amount of Indemnification.
(a) In the case of any Income Inclusion that is indemnifiable pursuant
to Section 3 of this Agreement, the relevant Hadesman Indemnitee shall give
UpREIT a written certificate setting forth in reasonable detail (i) the
computation of the amount of such Income Inclusion and (ii) the computation of
such amount or amounts that shall equal, on an After-Tax Basis, the actual net
increase in federal and applicable state income tax (including any interest,
penalties, fines, or other additions thereto) ("Inclusion Taxes") actually
payable by a Hadesman Indemnitee as a result of such Income Inclusion,
determined after (1) offsetting such Income Inclusion by the amount of such
Hadesman Indemnitee's "passive losses" under Code Section 469(d) and the
Regulations from the activity in respect of the Hadesman Partnerships, and (to
the extent not duplicative) "suspended losses" in respect of such activity under
Code Section 465 and the Regulations, each as shown on Exhibit B to be attached
hereto (to the extent such losses would be available under the Code and
Regulations and have not already been taken into account in offsetting other
Income Inclusions indemnifiable under this Agreement), and (2) taking into
account all deductions, credits, or other federal and applicable state income
tax benefits then realized and resulting from (a) such Income Inclusion, (b) the
incurrence of the tax liability indemnified under this Agreement, or (c) the
receipt of any indemnity payment made under this Agreement (computed in
accordance with Sections 3 and 6 of this Agreement).
(b) Each Hadesman Indemnitee agrees to act in good faith to claim any
tax benefits (including filing claims for refunds and amended tax returns) and
take such other actions as may be reasonable to minimize the net amount of any
indemnity payment due from UpREIT hereunder and to maximize the amount of its
tax savings; provided, however, that such Hadesman Indemnitee shall not be
required to take any action which, in its good faith judgment, would have any
material adverse business consequences to it. If UpREIT shall disagree with such
computation and so requests in a written notice delivered to such Hadesman
Indemnitee within thirty (30) days following UpREIT's receipt of the
certificate, such amount shall be reviewed and determined by an independent
public accounting firm of national recognition selected by Hadesman and
reasonably acceptable to UpREIT. The costs of such verification shall be borne
by UpREIT unless such verification shall result in an adjustment in UpREIT's
favor by an amount of more than 5% of the Inclusion Taxes actually due, in which
case such costs shall be borne by such Hadesman Indemnitee. Each Hadesman
Indemnitee agrees to cooperate with such independent accounting firm and to
supply it with all information reasonably necessary to permit it to accomplish
such review and determination. Such information shall be for the confidential
use of such accountants and shall not be disclosed to UpREIT or any other
person. UpREIT and each Hadesman Indemnitee agree that the sole responsibility
of the independent public accounting firm shall be to verify the amount of a
payment pursuant to this Agreement and that matters of interpretation of this
Agreement are not within the scope of the independent accounting firm's
responsibilities.
(c) To the extent an Income Inclusion is indemnifiable pursuant to
Section 3(c) of this Agreement, UpREIT will pay each Hadesman Indemnitee as its
indemnity obligation under this
-5-
<PAGE>
Agreement a percentage of the amount described in Section 4(a) based upon the
period in which the relevant taxable sale or disposition of Hadesman Properties
occurs, as follows:
<TABLE>
<CAPTION>
Period Ending Percentage of Amount Calculated
------------- in Section 4(a)
---------------
<S> <C>
December 31, 1998 100%
December 31, 1999 90%
December 31, 2000 80%
December 31, 2001 70%
December 31, 2002 60%
December 31, 2003 50%
December 31, 2004 40%
December 31, 2005 30%
December 31, 2006 20%
December 31, 2007 10%
</TABLE>
(d) To the extent that a Hadesman Indemnitee recognizes an amount in
respect of an Income Inclusion that is indemnifiable pursuant to Section 3(a),
3(b), 3(d), 3(e) or 3(f) of this Agreement for any UpREIT taxable year ending
within the Indemnity Term, UpREIT will pay such Hadesman Indemnitee as its
indemnity obligation under this Agreement 100% of the amount described in
Section 4(a).
(e) Any payment due to a Hadesman Indemnitee pursuant to this Section 4
shall be paid upon the earlier of the date that (1) the additional federal
income tax in respect of such Income Inclusion is due from the Hadesman
Indemnitee, or (2) the Hadesman Indemnitee has filed a return that reflects or
would reflect such additional federal income tax; provided, however, that (A)
obligations of such Hadesman Indemnitee and UpREIT will first be set off against
each other, and (B) no payment shall be due earlier than completion of the
computation of such indemnity amount as described in Section 4(a).
Section 5. Exclusions.
-6-
<PAGE>
(a) Notwithstanding the foregoing, UpREIT shall not have any liability
for indemnification under this Agreement for any Inclusion Taxes to the extent
such Inclusion Taxes are payable by such Hadesman Indemnitee as a result of one
or more of the following:
(i) Any Hadesman Indemnitee recognizing gain in respect of the
Capital Contribution of its Hadesman Partnership Interests or Hadesman
Properties under Code section 707(a)(2) (including notwithstanding the agreed
treatment of such Capital Contribution as described in Section 3.05 of the
Contribution Agreement), assuming that each Nonrecourse Liability described in
Section 2(a) of this Agreement is a "qualified liability" within the meaning of
Regulations Section 1.707-5(a)(6), except as a result of a sale or disposition
of such Hadesman Property or an indemnity payment under this Agreement;
(ii) Any Hadesman Indemnitee's receipt of cash in respect of
the Capital Contribution of its Hadesman Partnership Interests or Hadesman
Properties (including notwithstanding the agreed treatment of such cash as
described in Section 3.04 of the Contribution Agreement);
(iii) Any Hadesman Indemnitee's Interest in the UpREIT not
being respected as a partnership interest to the extent, and as provided in, the
Partnership Agreement;
(iv) The allocations of income, gain, loss, deduction and
credit set forth in the Partnership Agreement not being respected under Sections
704(b) and 704(c) of the Code, except as a result of the exercise of discretion
by the General Partner of the UpREIT in respect of (A) an adjustment to the
"Gross Asset Values" of UpREIT assets, as described in clause (b) of the
definition thereof, or (B) the allocation of Nonrecourse Deductions under the
proviso within Section 6.6.A of the Partnership Agreement;
(v) The UpREIT not being the owner of the Hadesman Properties
for federal income tax purposes as of the relevant Adjustment Date;
(vi) Immediately after the relevant Adjustment Date, any
Hadesman Indemnitee's share of Partnership Minimum Gain under Regulations
Section 1.704-2(g)(1) not being as shown on Exhibit B to be attached hereto;
(vii) Immediately after the relevant Adjustment Date, any
Hadesman Indemnitee's amount at risk under Code Section 465 from the activity in
respect of the UpREIT not being as shown on Exhibit B to be attached hereto;
(viii) (1) any change in, or amendment to, the Code or any
other federal tax statute, which is effective on or after the relevant
Adjustment Date, (2) any final or temporary regulation, which is enacted or
adopted after the relevant Adjustment Date, or (3) any court decision issued
after the relevant Adjustment Date;
-7-
<PAGE>
(ix) The status of any Hadesman Indemnitee or any Hadesman
Partnership for federal income tax purposes;
(x) A determination that any Hadesman Indemnitee did not enter
the transactions contemplated by the Partnership Agreement for profit or with a
sufficient business purpose;
(xi) A voluntary or involuntary sale, assignment, transfer or
other disposition by any Hadesman Indemnitee of any interest in the UpREIT or
any part thereof;
(xii) The failure of any Hadesman Indemnitee to claim or to
follow the proper procedure in claiming in a timely manner any UpREIT item
allocated to such Hadesman Indemnitee by the Partnership;
(xiii) The failure of any Hadesman Indemnitee to take timely
action or follow the proper procedures in reporting his distributive share from
the UpREIT or contesting a claim made by the Internal Revenue Service in
accordance with the Partnership Agreement;
(xiv) The gross negligence or the willful misconduct of any
Hadesman Indemnitee or any affiliate thereof;
(xv) Any breach by any Hadesman Indemnitee of any of its
representations, warranties or covenants in Sections 7.1.A., 8.2, 10.5, 11.3.A.,
11.6.A., D or E., of the Partnership Agreement, Sections 2 or 6 of this
Agreement, or Sections 2.01(b), 11.01, or 12.01 of the Contribution Agreement;
(xvi) Any guarantee by any Hadesman Indemnitee or a person
related to any Hadesman Indemnitee of any Nonrecourse Liability encumbering a
Hadesman Property or Hadesman Interest or any other debt of the UpREIT or its
affiliates;
(xvii) Any Hadesman Indemnitee recognizing taxable income
under Code Section 704(c), except to the extent such income results from either
a sale or other disposition of a Hadesman Property or income under Code Section
704(c) in excess of that allocable to such Hadesman Indemnitee under the
"traditional method" of Regulations Section 1.704-3(b); or
(xviii) Any recapture under Code Section 1245 or 1250 of
depreciation attributable to Hadesman Properties that was allocated to any
Hadesman Indemnitee after the relevant Adjustment Date.
(b) Further, notwithstanding anything to the contrary within this
Agreement, after taking into account any amounts thereof excluded under Section
5(a), the cumulative Income
-8-
<PAGE>
Inclusions for all Hadesman Indemnitees in respect of Section 3(a), 3(b), 3(c)
and 3(f) that will be indemnifiable by the UpREIT shall not exceed the
following:
(i) For any Income Inclusion under Section 3(b), the aggregate
negative Capital Accounts of all Hadesman Indemnitees as set forth on Exhibit B;
(ii) For any Income Inclusion under Section 3(a), the
aggregate Minimum Gain of all Hadesman Indemnitees as set forth on Exhibit B;
(iii) For any Income Inclusion under Section 3(c), the excess
of the aggregate Gross Asset Value of the Hadesman Properties and Hadesman
Interests contributed to the UpREIT on the relevant Adjustment Dates, over the
aggregate initial adjusted tax bases of such Hadesman Properties and Hadesman
Interests on such relevant Adjustment Dates; and
(iv) For any Income Inclusion under Section 3(f), the
aggregate negative Capital Accounts of Sky Harbor Associates partners, as set
forth on Exhibit B.
(c) Finally, notwithstanding anything to the contrary within this
Agreement, after taking into account any amounts thereof excluded under Sections
5(a) and 5(b), UpREIT shall not be liable for indemnification under this
Agreement in respect of an Income Inclusion under Section 3(a) or (b), to the
extent of that such Income Inclusion arises from a Final Determination that the
amount of debt of UpREIT allocable to such Hadesman Indemnitee for purposes of
Section 752 of the Code and Regulations Section 1.752-3(a)(3) is less than the
amount of debt such Hadesman Indemnitee would be allocated if the UpREIT used
the Indemnity Debt Allocation Method for purposes of Section 752 of the Code and
Regulations Section 1.752-3(a)(3); provided, however, that UpREIT actually
allocates to such Hadesman Indemnity, on the UpREIT's applicable federal and
state income tax returns, debt at least equal to the amount of debt such
Hadesman Indemnitee would be allocated if the UpREIT used the Indemnity Debt
Allocation Method for purposes of Section 752 of the Code and Regulations
Section 1.752-3(a)(3).
Section 6. Contests.
(a) Nothing in this Agreement shall be construed to prevent
UpREIT from contesting, as the Tax Matters Partner in accordance with the
Partnership Agreement as part of the unified audit of the Partnership, any claim
involving a UpREIT item that, if successful, would result in an Income Inclusion
(a "Partnership Level Issue").
(b) If UpREIT contests a Partnership Level Issue that, if
successful, would result in an Income Inclusion, UpREIT's liability for
indemnification under Section 4 hereof shall, at UpREIT's election, be deferred
until thirty (30) days after a Final Determination of such Hadesman Indemnitee's
federal income tax liability in respect of an Income Inclusion.
-9-
<PAGE>
(c) If any audit or proceeding involving an indemnifiable
adjustment is being conducted in a proceeding involving such Hadesman
Indemnitee, which cannot be transferred to the UpREIT as a partnership item (a
"Hadesman Level Issue"), such Hadesman Indemnitee hereby agrees (i) promptly to
notify UpREIT in writing of such adjustment (and the failure of such Hadesman
Indemnitee to so notify UpREIT shall preclude any indemnity hereunder to the
extent UpREIT's right to effect its contest rights hereunder has been precluded
by such failure), and (ii) upon UpREIT's delivery to Hadesman of a written
opinion of nationally recognized tax counsel reasonably acceptable to such
Hadesman Indemnitee ("Tax Counsel") to the effect that there is a Realistic
Possibility of Success upon contest, such Hadesman Indemnitee will contest that
adjustment by filing a protest and administrative appeal and prosecuting the
same in good faith; provided, however, that such Hadesman Indemnitee will not be
obligated to pursue an administrative appeal if such Hadesman Indemnitee instead
pursues relief in Tax Court or a court having refund jurisdiction.
(d) If, within 30 days following the failure of such
administrative proceedings with respect to a Hadesman Level Issue, UpREIT
delivers to Hadesman Indemnitee written opinion of Tax Counsel to the effect
that there is a Realistic Possibility of Success if the proposed adjustment is
presented to a court for resolution, then such Hadesman Indemnitee will contest
the proposed adjustment in good faith in the Tax Court or by paying the tax (and
any applicable interest and penalties) and suing for refund in the Court of
Federal Claims or appropriate Federal District Court. If, within 30 days
following a final adverse decision of such court with respect to such Hadesman
Level Issue, UpREIT delivers to such Hadesman Indemnitee a written opinion of
Tax Counsel to the effect that it is more likely than not that such decision
would be reversed on appeal, then such Hadesman Indemnitee will appeal such
decision to the appropriate Federal Court of Appeals. With respect to any of the
above-described proceedings, such Hadesman Indemnitee will keep UpREIT and its
counsel informed as to the progress of such proceedings, give UpREIT and its
counsel the opportunity to review and comment in advance on all written
submissions and filings relevant to indemnifiable issues (after making
appropriate redactions to preserve the confidentiality of the such Hadesman
Indemnitee return as to other issues), and consider in good faith any
suggestions made by UpREIT or its counsel.
(e) Such Hadesman Indemnitee shall present any settlement
offer provided to such Hadesman Indemnitee pursuant to a Hadesman Level Issue to
UpREIT. If UpREIT recommends acceptance of a settlement offer of a Hadesman
Level Issue or if the Tax Matters Partner recommends acceptance of a settlement
offer in respect of a Partnership Level Issue, but such Hadesman Indemnitee
declines to accept such offer in writing within 30 days (if such Hadesman
Indemnitee does not respond within 30 days, such lack of response shall be
treated as acceptance of UpREIT's or the Tax Matters Partner's recommendation,
respectively), (1) the obligation of UpREIT to make indemnity payments as the
result of any such contest or proceedings shall not thereafter exceed the
obligation that it would have had if such contest had been settled or proceeding
terminated on the basis recommended by UpREIT or the Tax Matters
-10-
<PAGE>
Partner, as applicable, and (2) in the case of a Hadesman Level Issue, UpREIT
shall have no further liability for costs or other expenses in respect of such
contest.
(f) Notwithstanding the foregoing, such Hadesman Indemnitee
will have no obligation to contest any action with respect to a Hadesman Level
Issue (i) unless such items could give rise to a federal income tax liability
(disregarding other items in the assessment and considering effects in future
years) in excess of $25,000, (ii) without UpREIT paying when due, reasonable
third-party costs and out-of-pocket expenses including reasonable legal, witness
and accounting fees and other expenses and, in the case of proceedings before
the Court of Federal Claims or Federal District Court, the amount of tax (and
any applicable interest and penalties) for which refund is claimed, and (iii) to
the extent such Hadesman Indemnitee waives in writing UpREIT's obligation to
indemnify such Hadesman Indemnitee for such items, in which case all third-party
costs and out-of-pocket expenses described in clause (ii) thereafter incurred
and all taxes would be paid by such Hadesman Indemnitee.
(g) such Hadesman Indemnitee shall not settle any such
Hadesman Level Issue without UpREIT's consent; provided that such Hadesman
Indemnitee shall not be required to contest any proposed adjustment and may
settle any such proposed adjustment if such Hadesman Indemnitee shall waive its
right to indemnity under this Agreement with respect to such adjustment and any
Income Inclusion that results from such adjustment and, in the case of
proceedings before the Court of Federal Claims or Federal District Court, shall
pay to UpREIT the amount of tax (and any applicable interest and penalties)
previously paid or advanced by UpREIT with respect to such adjustment or the
contest of such adjustment under Section 6(f), plus interest at the rate under
Code Section 6621(a)(2) computed from the time such amounts were paid or
advanced by UpREIT.
(h) Within thirty (30) days after a Final Determination of the
liability of such Hadesman Indemnitee in respect of a Hadesman Level Issue,
UpREIT and each Hadesman Indemnitee agree to pay each other, as applicable, the
net amount of (i) the payment owed by the UpREIT to such Hadesman Indemnitee of
any indemnification hereunder, not theretofore paid resulting from the outcome
of such contest, and (ii) in the case of proceedings before the Court of Federal
Claims or Federal District Court, the repayment owed by such Hadesman Indemnitee
to UpREIT of the amount of tax (and any applicable interest and penalties)
previously paid or advanced by UpREIT with respect to such adjustment or the
contest of such adjustment under Section 6(f), together with any interest
received by or credited to such Hadesman Indemnitee that is attributable to such
advance.
Section 7. State Tax. For purposes of this Agreement, each
Hadesman Indemnitee will be treated as having an Income Inclusion, realizing any
deductions, credits or other income tax benefits, having the same tax savings
and having the same tax attributes and status for applicable state income tax
purposes at the same time, in the same amount and in the same manner, as such
Hadesman Indemnitee does for federal income tax purposes.
-11-
<PAGE>
Section 8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
Section 9. Notices. All notices, demands, declarations,
consents, directions, approvals, instructions, requests and other communications
required or permitted by the terms hereof shall be given in the manner described
in Section 14.1 of the Partnership Agreement.
Section 10. Successors and Assigns. The terms of this Tax
Indemnification Agreement may not be assigned by any Hadesman Indemnitee
(including, without limitation, by descent or will), without the written consent
of UpREIT.
Section 11. Miscellaneous. This Agreement may be executed in
any number of counterparts, each executed counterpart constituting an original
but all together only one Agreement. Any provision of this Agreement which is
prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Neither this Agreement
nor any of the terms hereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement, waiver
or modification is sought.
Section 12. Anticipated Hadesman Indemnitee Debt Allocation
Methodology. UpREIT acknowledges and agrees with each Hadesman Indemnitee that
the aggregate nonrecourse indebtedness of UpREIT that is apportioned to the
Hadesman Indemnities collectively under this Agreement and the Partnership
Agreement pursuant to Code Section 752 and Regulations Sections 1.702-3(a)(2)
and (a)(3) shall be apportioned among the various Hadesman Indemnitees using a
method substantially similar to that within the debt allocation model set forth
on Exhibit C hereto.
Section 13. Term. The term of this Agreement shall be from the
date hereof until such time as the applicable statute of limitations under the
Code bars any claim by the Internal Revenue Service against a Hadesman
Indemnitee for Inclusion Taxes otherwise indemnifiable under this Agreement.
Section 14. Exhibits. Each of the Hadesman Indemnitees agrees
to reasonably cooperate to supply all information required to be set forth in
Exhibit A and Exhibit B referred to herein as promptly as possible, but in no
event later than December 31, 1997.
Section 15. Application of Definitions to Section 3(f). If
there is an indemnified income inclusion under Section 3(f), the definition of
the term "Hadesman Indemnitee" shall be
-12-
<PAGE>
expanded to include the partners of Sky
Harbor Associates wherever necessary to fulfill the purposes of this Agreement.
[SIGNATURE PAGE FOLLOWS]
-13-
<PAGE>
IN WITNESS WHEREOF, the parties hereof have executed this Agreement as
of the date first written above.
PRIME GROUP REALTY, L.P.
By: PRIME GROUP REALTY TRUST
Its: Managing General Partner
By:/s/ Jeffrey A. Patterson
---------------------------
Name: Jeffrey A. Patterson
Title: Executive Vice President
EDWARD S. HADESMAN
TRUST DATED MAY 22, 1992
By: /s/ Edward S. Hadesman
--------------------------
Name: Edward S. Hadesman
Title: Trustee
GRANDVILLE/NORTHWESTERN
MANAGEMENT CORPORATION,
an Illinois corporation
By:/s/ Edward S. Hadesman
-------------------------
Name: Edward S. Hadesman
Title: President
CAROLYN B. HADESMAN
TRUST DATED MAY 21, 1992
By:/s/ Carolyn B. Hadesman
--------------------------
Name: Carolyn B. Hadesman
Title: Trustee
-14-
<PAGE>
LISA HADESMAN 1991 TRUST
By: /s/ Edward S. Hadesman
--------------------------
Name: Edward S. Hadesman
Title: Trustee
CYNTHIA HADESMAN 1991 TRUST
By: /s/ Edward S. Hadesman
--------------------------
Name: Edward S. Hadesman
Title: Trustee
TUCKER B. MAGID
/s/ Tucker B. Magid
-------------------
FRANCES S. SHUBERT
/s/ Frances S. Shubert
----------------------
GRANDVILLE ROAD PROPERTY, INC.,
an Illinois corporation
By:/s/ Edward S. Hadesman
-------------------------
Name: Edward S. Hadesman
Title: President
-15-
<PAGE>
SKY HARBOR ASSOCIATES,
an Illinois limited partnership
By: /s/ Edward S. Hadesman
--------------------------
Name: Edward S. Hadesman
Title: Managing General Partner
-16-
<PAGE>
Exhibit 10.25
TAX INDEMNIFICATION AGREEMENT
TAX INDEMNIFICATION AGREEMENT (the "Agreement"), dated as of November
17, 1997 between STEPHEN J. NARDI, an individual ("SJ Nardi"), NARCO
ENTERPRISES, INC., an Illinois corporation, and NARDI GROUP LIMITED, a Delaware
corporation, (collectively, the "Nardi Indemnitees"), and PRIME GROUP REALTY,
L.P., a Delaware limited partnership ("UpREIT").
WHEREAS, certain of the Nardi Indemnitees (or their predecessors in
interest) had interests in one or more of those certain partnerships set forth
on Exhibit A hereto ("Nardi Partnerships"), which owned the "Nardi Properties"
(as such term is defined in that certain Contribution Agreement, between the
parties set forth on Schedule I attached to such agreement, The Prime Group,
Inc., Prime Group Realty, L.P. and Prime Group Realty Trust, dated October 20,
1997 (the "Contribution Agreement");
WHEREAS, certain each of the Nardi Indemnitees is a member of a limited
liability company, (the "Nardi LLC"), which has entered into the that certain
Agreement of Limited Partnership of Prime Group Realty, L.P. (the "Partnership
Agreement"), dated the date hereof,
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions. For purposes of the Agreement,
capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Partnership Agreement or the Contribution
Agreement. Any term defined by reference to an agreement, instrument or other
document shall have the meaning so assigned to it whether or not such document
is in effect. Unless otherwise indicated, references in the Agreement to
articles, Sections, paragraphs, clauses, appendices, schedules and exhibits are
to the same contained in or attached to this Agreement.
For purposes of this Tax Indemnification Agreement, the
following terms shall apply:
(a) The term "After-Tax Basis" shall mean, with respect to any
payment to be received, the amount of such payment supplemented by a further
amount so that, after deduction of the amount of all federal, applicable state
and Burr Ridge income taxes that are required to be paid by the recipient
thereof (assuming that the recipient is taxable at the highest marginal federal,
applicable state and Burr Ridge income tax rates then applicable to the
recipient and taking into account any tax benefits to be realized by such
recipient from the receipt of the indemnified amount) with respect to the
receipt by it of such amounts, the net amount received is equal to such payment.
(b) The term "Realistic Possibility of Success" shall mean
such circumstances that tax counsel may properly advise reporting such position
on a tax return in accordance with Section
<PAGE>
10.34 of 31 C.F.R. part 10, governing practice before the Internal Revenue
Service.
(c) The term "GP Termination Date" shall mean the period
beginning the date hereof and ending on the date on which the Nardi LLC (or its
successor) is no longer a General Partner in the Partnership.
(d) The term "Indemnity Term" shall mean the period beginning
on the GP Termination Date and ending on the tenth anniversary thereof.
(e) The term "Final Determination" shall mean (i) a decision,
judgment, decree or other order by any court of competent jurisdiction, which
decision, judgment, decree or other order has become final after all allowable
appeals by either party to the action have been exhausted or the time for filing
such appeal has expired, or in any case where judicial review shall at the time
be unavailable because the proposed adjustment involves a decrease in net
operating loss carry forward or a business credit carry forward, a decision,
judgment, decree or other order of an administrative official or agency of
competent jurisdiction, which decision, judgment, decree or other order has
become final (i.e., where all administrative appeals have been exhausted by all
parties thereto), (ii) a closing agreement entered into under Section 7121 of
the Code, or any other final settlement agreement entered into in connection
with an administrative or judicial proceeding and with the consent of UpREIT or
as otherwise permitted in Section 6 of the Partnership Agreement, or (iii) the
expiration of the time for instituting a claim for refund, or if such a claim
was filed, the expiration of the time for instituting suit with respect thereto.
(f) The term "Indemnity Debt Allocation Method" shall mean the
allocation of the Partnership's excess nonrecourse liabilities in any UpREIT
taxable year for purposes of Regulations Section 1.752-3(a)(3) based upon each
Partner's relative ownership of Units as of the beginning of such UpREIT taxable
year-provided, that nothing in this Agreement shall be interpreted as
prohibiting the UpREIT from actually using a different debt allocation than that
based upon the Indemnity Debt Allocation Method.
(g) The term "Burr Ridge" shall mean the municipality of the
Village of Burr Ridge, Illinois.
Section 2. Tax Representations. The Nardi Indemnitees jointly and
severally represent, warrant and covenant as follows:
(a) immediately prior to the relevant Adjustment Date, the
Nardi Properties are subject to aggregate Nonrecourse Liabilities, allocable
among the Nardi Properties, as shown on Exhibit B attached hereto;
(b) each Nonrecourse Liability, described in Section 2(a) of
this Agreement, was incurred by the Nardi Partnership or Nardi Indemnitee, which
owned the Nardi Properties to which such Nonrecourse Liability is allocated,
either (i) more than two years prior to the date of the Contribution Agreement,
or (ii) not in anticipation of the transfer of such Nardi Property to UpREIT
(within the meaning of Regulations Section 1.707-5(a)(6));
<PAGE>
(c) each Nonrecourse Liability, described in Section 2(a) of
this Agreement, has encumbered such Nardi Properties throughout the period
beginning on the earlier of the date two years prior to the date of the
Contribution Agreement and the date such liability was incurred by the Nardi
Partnership or Nardi Indemnitee, as applicable, and ending on the Adjustment
Date in respect of such Nardi Properties;
(d) each Nonrecourse Liability, described in Section 2(a) of
this Agreement, is nonrecourse for purposes of Regulations Section
1.752-1(a)(2),
(e) immediately prior to the relevant Adjustment Date, each
Nardi Indemnitee's share of Partnership Minimum Gain under Regulations Section
1.704-2(g)(1) is as shown on Exhibit B attached hereto;
(f) immediately prior to the relevant Adjustment Date, each
Nardi Indemnitee is allocated Nonrecourse Liabilities under Code Section 752 and
the Regulations as shown on Exhibit B attached hereto;
(g) intentionally omitted;
(h) intentionally omitted;
(i) the gross fair market value of any Nardi Property equals
the initial Gross Asset Value of such Property credited to the Capital Account
of the relevant contributing Nardi Partnership or Nardi Indemnitee;
(j) each Nardi Indemnitee will report any payment received by
it under this Agreement as a payment made within Section 707(a) of the Code.
(k) each Nardi Indemnitee has and will have a taxable year
that is the calendar year; and
(l) each Nardi Property constitutes nonresidential real
property under Code Section 168;
provided, however that the breach of any of the foregoing representations,
warranties and covenants shall operate only to reduce the UpREIT's indemnity
obligation under this Agreement, and no one shall have any other rights, damages
or recoveries in respect of any such breach.
Section 3. Indemnified Income Inclusions. If any Nardi Indemnitee shall
be required to include in its gross income for federal, applicable state or Burr
Ridge income tax purposes (including by way of either an adjustment proposed by
an examining agent during audit or at a closing conference or the receipt of a
"30-day letter" by a Nardi Indemnitee or a `60-day letter" by the Tax Matters
Partner of the UpREIT proposing an adjustment to the tax returns of the Nardi
Indemnitee or the UpRE1T, respectively, and treating the Nardi Indemnitee's
distributive share of taxable items of the UpREIT allocated to the Nardi
Indemnitee under the Partnership Agreement as "required" for
<PAGE>
this purpose), with respect to any of its taxable years which begin prior to the
end of the Indemnity Term, any of the following:
(a) UpREIT items of income and gain attributable to such Nardi
Indemnitee's share of the net decrease in Partnership Minimum Gain from Nardi
Properties (to the extent not duplicative with subsection (c));
(b) Gain under Code Section 731 from a deemed distribution
under Code Section 752 from the retirement or refinancing of either the
Nonrecourse Liabilities shown on Exhibit B attached hereto, or the debt which
refinances or replaces such Nonrecourse Liabilities; or
(c) gain from the sale, transfer or disposition of Nardi
Properties,
(d) income under Code Section 704(c) in excess of that
allocable to such Nardi Indemnitee under the "traditional method" of Regulations
Section 1.704-3(b), (such an inclusion being an "Income Inclusion"), UpREIT
shall pay to such Nardi Indemnitee an indemnity with respect to the additional
federal, applicable state and Burr Ridge income tax liability from such Income
Inclusion in the amount determined in Section 4 hereof.
Section 4. Amount of Indemnification.
(a) In the case of any Income Inclusion that is indemnifiable
pursuant to Section 3 of this Agreement, the relevant Nardi Indemnitee (x) shall
notify UpREIT orally and in writing as soon as possible (so as to minimize
indemnifiable costs and expenses incurred under this Agreement prior to such
Income Inclusion), and (y) shall give UpREIT a written certificate setting forth
in reasonable detail (i) the computation of the amount of such Income Inclusion
and (ii) the computation of such amount or amounts that shall equal the sum of
(1) the actual net increase in federal, applicable state and Burr Ridge income
tax (including any interest, penalties, fines, or other additions thereto)
("Inclusion Taxes") actually payable by a Nardi Indemnitee on an After-Tax
Basis, as a result of such Income Inclusion, determined after taking into
account all deductions, credits, or other federal, applicable state and Burr
Ridge income tax benefits then realized and resulting from (a) such Income
Inclusion, (b) the incurrence of the tax liability indemnified under this
Agreement, or (c) the receipt of any indemnity payment made under this Agreement
(computed in accordance with Sections 3 and 6 of this Agreement), plus (2) the
reasonable costs and expenses incurred by such Nardi Indemnitee in respect of
such Income Inclusion.
(b) Each Nardi Indemnitee agrees to act in good faith to claim
any tax benefits (including filing claims for refunds and amended tax returns)
and take such other actions as may be reasonable to minimize the net amount of
any indemnity payment due from UpREIT hereunder and to maximize the amount of
its tax savings; provided, however that such Nardi Indemnitee shall not be
required to take any action which, in its good faith judgment, would have any
material adverse business consequences to it. If UpREIT shall disagree with such
computation and so requests in a written notice delivered to such Nardi
Indemnitee within thirty (30) days following UpREIT's receipt of the
certificate, such amount shall be reviewed and determined by an independent
public accounting firm of national recognition selected by SJ Nardi and
reasonably acceptable to UpREIT. The costs
<PAGE>
of such verification shall be borne by UpREIT unless such verification shall
result in an adjustment in UpREIT's favor by an amount of more than 5 % of the
Inclusion Taxes actually due, in which case such costs shall be borne by such
Nardi Indemnitee. Each Nardi Indemnitee agrees to cooperate with such
independent accounting firm and to supply it with all information reasonably
necessary to permit it to accomplish such review and determination. Such
information shall be for the confidential use of such accountants and shall not
be disclosed to UpREIT or any other person. UpREIT and each Nardi Indemnitee
agree that the sole responsibility of the independent public accounting firm
shall be to verify the amount of a payment pursuant to this Agreement and that
matters of interpretation of this Agreement are not within the scope of the
independent accounting firm's responsibilities.
(c) To the extent that a Nardi Indemnitee recognizes an amount
in respect of an Income Inclusion that is indemnifiable pursuant to Section 3 of
this Agreement for any UpREIT taxable year beginning prior to the Indemnity
Term, UpREIT will pay such Nardi Indemnitee as its indemnity obligation under
this Agreement 100% of the amount described in Section 4(a).
(d) Any payment due to a Nardi Indemnitee pursuant to this
Section 4 shall be paid upon the earlier of the date that (1) the additional
federal income tax in respect of such Income Inclusion is due from the Nardi
Indemnitee, or (2) the Nardi Indemnitee has filed a return that reflects or
would reflect such additional federal income tax; provided, however that (A)
obligations of such Nardi Indemnitee and UpREIT under this Agreement will first
be set off against each other, and (B) no payment shall be due earlier than
completion of the computation of such indemnity amount as described in Section
4(a).
Section 5. Exclusions.
(a) Notwithstanding the foregoing, UpREIT shall not have any
liability for indemnification under this Agreement (other than for reasonable
costs and expenses incurred by a Nardi Indemnitee in accordance with this
Agreement) to the extent the amount otherwise indemnifiable is payable by such
Nardi Indemnitee as a result of one or more of the following:
(i) Any Nardi Indemnitee recognizing gain in respect of
the Capital Contribution of Nardi Properties under Code section 707(a)(2),
assuming that each Nonrecourse Liability described in Section 2(a) of this
Agreement is a "qualified liability" within the meaning of Regulations Section
1.707-5(a)(6), except as a result of either a sale or disposition of such Nardi
Property, an indemnity payment under this Agreement, or the general partner
nature of the Nardi LLC's interest in the Partnership and the put right
described in the Put Agreement;
(ii) Any payment of cash to a Contributor under Section
3.02(a)(i) of the Contribution Agreement;
(iii) Any Nardi Indemnitee's Interest in the UpREIT not
being respected as a partnership interest to the extent, and as provided in, the
Partnership Agreement;
(iv) The allocations of income, gain, loss, deduction and
credit set forth in the Partnership Agreement not being respected under Sections
704(b) and 704(c) of the Code, except
<PAGE>
as a result of the exercise of discretion by the Managing General Partner of the
UpREIT in respect of (A) an adjustment to the "Gross Asset Values" of UpREIT
assets, as described in clause (b) of the definition thereof, or (B) the
allocation of Nonrecourse Deductions under the proviso within Section 6.6.A. of
the Partnership Agreement;
(v) The UpREIT not being the owner of the Nardi Properties
for federal income tax purposes as of the relevant Adjustment Date;
(vi) Immediately after the relevant Adjustment Date, any
Nardi Indemnitee's share of Partnership Minimum Gain under Regulations Section
1.704-2(g)(1) not being as shown on Exhibit B attached hereto;
(vii) (1) any change in, or amendment to, the Code or any
other federal tax statute, which is effective on or after the relevant
Adjustment Date, (2) any final or temporary regulation, which is enacted or
adopted after the relevant Adjustment Date, or (3) any court decision issued
after the relevant Adjustment Date;
(viii) No Nardi Indemnitee is or will be a tax-exempt
entity or person;
(ix) A determination that any Nardi Indemnitee did not
enter the transactions contemplated by the Partnership Agreement for profit or
with a sufficient business purpose;
(x) A voluntary or involuntary sale, assignment, transfer
or other disposition by any Nardi Indemnitee of any interest in the UpREIT or
any part thereof,
(xi) The failure of any Nardi Indemnitee to claim or to
follow the proper procedure in claiming in a timely manner any UpREIT item
allocated to such Nardi Indemnitee by the Partnership;
(xii) The failure of any Nardi Indemnitee to take timely
action or follow the proper procedures in reporting his distributive share from
the UpREIT or contesting a claim made by the Internal Revenue Service in
accordance with the Partnership Agreement;
(xiii) The gross negligence or the willful misconduct of
any Nardi Indemnitee or any affiliate thereof,
(xiv) Any breach by any Nardi Indemnitee of any of its
representations, warranties or covenants in Sections 7.1.A. or 8.2 of the
Partnership Agreement (prior to the GP Termination Date), Sections 10.5,
11.3.A., 11.6.A., D or E. of the Partnership Agreement, Sections 2 or 6 of this
Agreement, or the Contribution Agreement;
(xv) Any guarantee by any Nardi Indemnitee or a person
related to any Nardi Indemnitee of any Nonrecourse Liability encumbering a Nardi
Property or Nardi Interest or any other debt of the UpREIT or its affiliates;
<PAGE>
(xvi) Any Nardi Indemnitee recognizing taxable income
under Code Section 704(c), except to the extent such income results from either
a sale or other disposition of a Nardi Property or income under Code Section
704(c) in excess of that allocable to such Nardi Indemnitee under the
"traditional method" of Regulations Section 1.704-3(b);
(xvii) Any recapture under Code Section 1245 or 1250 of
depreciation attributable to Nardi Properties that was allocated to any Nardi
Indemnitee after the relevant Adjustment Date.;
(xviii) the sale, transfer or other disposition of any
Nardi Property after the fifth anniversary of the GP Termination Date; provided,
however, that the UpREIT uses its best efforts to cause such sale, transfer or
other disposition to be on a tax-deferred or tax-exempt basis- or
(xix) the sale, transfer or other disposition of all or
any portion of the land described in Exhibit D hereto (the "Land"); provided,
however, that the UpREIT uses its best efforts to cause such sale, transfer or
other disposition of the Land that occurs within the period ending on or prior
to the fifth anniversary of the GP Termination Date, to be on a tax-deferred or
tax-exempt basis;
(xx) The exercise of the lessee purchase option with
respect to the property at 1301 E. Tower Road (but not including any purchase
pursuant to the right of first refusal thereto).
(b) Further, notwithstanding anything to the contrary within
this Agreement, after taking into account any amounts thereof excluded under
Section 5(a), the cumulative Income Inclusions for all Nardi Indemnitees in
respect of Section 3(a), 3(b) and 3(c) that will be indemnifiable by the UpREIT
shall not exceed the following:
(i) For any Income Inclusion under Section 3(b),the
aggregate negative Capital Accounts of all Nardi Indemnitees as set forth on
Exhibit B;
(ii) For any Income Inclusion under Section 3(a), the
aggregate Minimum Gain of all Nardi Indemnitees as set forth on Exhibit B; and
(iii) For any Income Inclusion under Section 3(c), the
excess of the aggregate Gross Asset Value of the Nardi Properties contributed to
the UpREIT on the relevant Adjustment Dates, over the aggregate initial adjusted
tax bases of such Nardi Properties on such relevant Adjustment Dates.
(c) Finally, notwithstanding anything to the contrary within
this Agreement, after taking into account any amounts thereof excluded under
Sections 5(a) and 5(b), UpREIT shall not be liable for indemnification under
this Agreement in respect of an Income Inclusion under Section 3(a) or (b), to
the extent of that such Income Inclusion arises from a Final Determination that
the amount of debt of UpREIT allocable to such Nardi Indemnitee for purposes of
Section 752 of the Code and Regulations Section 1.752-3(a)(3) is less than the
amount of debt such Nardi Indemnitee
<PAGE>
would be allocated if the UpREIT allocated the Nardi Indemnitees collectively an
aggregate amount of debt, using the Indemnity Debt Allocation Method for
purposes of Section 752 of the Code and Regulations Section 1.752-3(a)(3), of at
least $25,000,000 (with such amount to be increased in respect of the
contribution subsequent to the date hereof of the Rawls Road Property, the Craig
Place Property, the property located at 2050 Hammond Drive, Schaumburg, Illinois
or the property located at 5600 Proviso Drive, Berkeley, Illinois, by $600,000,
$4,000,000, $500,000 and $2,000,000, respectively- provided, however, that
UpREIT actually allocates to the Nardi Indemnitee, collectively, on the UpREIT's
federal, applicable state and Burr Ridge income tax returns, at least such
aggregate amount of debt.
Section 6. Contests.
(a) Nothing in this Agreement shall be construed to prevent
UpREIT from contesting, through its Tax Matters Partner in accordance with the
Partnership Agreement as part of the unified audit of the UpREIT, any claim in
respect of any "partnership" item of the UpREIT that, if successful, would
result in an Income Inclusion (a "Partnership Level Issue").
(b) If UpREIT contests a Partnership Level Issue that, if
successful, would result in an Income Inclusion, UpREIT's liability for
indemnification under Section 4 hereof (other than reasonable costs and expenses
described in Section 6(f) of the Agreement) shall, at UpREIT's election, be
deferred until thirty (30) days after a Final Determination of such Nardi
Indemnitee's federal income tax liability in respect of an Income Inclusion.
(c) If any audit or proceeding involving an indemnifiable
adjustment is being conducted in a proceeding involving such Nardi Indemnitee,
which cannot be transferred to the UpREIT as a partnership item (a "Nardi Level
Issue"), such Nardi Indemnitee hereby agrees (i) promptly to notify UpREIT in
writing of such adjustment (and the failure of such Nardi Indemnitee to so
notify UpREIT shall preclude any indemnity hereunder to the extent UpREIT's
right to effect its contest rights hereunder has been precluded by such
failure), and (ii) upon UpREIT's delivery to of a written opinion of nationally
recognized tax counsel reasonably acceptable to such Nardi Indemnitee ("Tax
Counsel") to the effect that there is a Realistic Possibility of Success upon
contest of such Nardi Level Issue, such Nardi Indemnitee will contest that
adjustment by filing a protest and administrative appeal and prosecuting the
same in good faith; provided, however, that such Nardi Indemnitee will not be
obligated to pursue an administrative appeal if such Nardi Indemnitee instead
pursues relief in Tax Court or a court having refund jurisdiction.
(d) If , within 30 days following the failure of such
administrative proceedings with respect to a Nardi Level Issue, UpREIT delivers
to a Nardi Indemnitee a written opinion of Tax Counsel to the effect that there
is a Realistic Possibility of Success if the proposed adjustment is presented to
a court for resolution, then such Nardi Indemnitee will contest the proposed
adjustment in good faith in the Tax Court or by paying the tax (and any
applicable interest and penalties) and suing for refund in the Court of Federal
Claims or appropriate Federal District Court. If, within 30 days following a
final adverse decision of such court with respect to such Nardi Level Issue,
UpREIT delivers to such Nardi Indemnitee a written opinion of Tax Counsel to the
effect that it is more likely than not that such decision would be reversed on
appeal, then such Nardi Indemnitee will appeal such
<PAGE>
decision to the appropriate Federal Court of Appeals. With respect to any of the
above-described proceedings, such Nardi Indemnitee will keep UpREIT and its
counsel informed as to the progress of such proceedings, give UpREIT and its
counsel the opportunity to review and comment in advance on all written
submissions and filings relevant to indemnifiable issues (after making
appropriate redactions to preserve the confidentiality of the such Nardi
Indemnitee return as to other issues), and consider in good faith any
suggestions made by UpREIT or its counsel.
(e) Such Nardi Indemnitee shall present any settlement offer
provided to such Nardi Indemnitee pursuant to a Nardi Level Issue to UpREIT. If
UpREIT recommends acceptance of a settlement offer of a Nardi Level Issue or if
the Tax Matters Partner recommends acceptance of a settlement offer in respect
of a Partnership Level Issue, but such Nardi Indemnitee declines to accept such
offer in writing within 30 days (if such Nardi Indemnitee does not respond
within 30 days, such lack of response shall be treated as acceptance of UpREIT's
or the Tax Matters Partner's recommendation, respectively), (1) the obligation
of UpREIT to make indemnity payments as the result of any such contest or
proceedings shall not thereafter exceed the obligation that it would have had if
such contest had been settled or proceeding terminated on the basis recommended
by UpREIT or the Tax Matters Partner, as applicable, and (2) in the case of a
Nardi Level Issue, UpREIT shall have no further liability for costs or other
expenses in respect of such contest.
(f) Notwithstanding the foregoing, such Nardi Indemnitee will
have no obligation to contest any action with respect to a Nardi Level Issue (i)
unless such items could give rise to a federal income tax liability
(disregarding other items in the assessment and considering effects in future
years) in excess of $10,000, (ii) without UpREIT paying when due, reasonable
third-party costs and out-of-pocket expenses including reasonable legal, witness
and accounting fees and other expenses and, in the case of proceedings before
the Court of Federal Claims or Federal District Court, the amount of tax (and
any applicable interest and penalties) for which refund is claimed, and (iii) to
the extent such Nardi Indemnitee waives in writing UpREIT's obligation to
indemnify such Nardi Indemnitee for such items, in which case all third-party
costs and out-of-pocket expenses described in clause (ii) thereafter incurred
and all taxes would be paid by such Nardi Indemnitee.
(g) such Nardi Indemnitee shall not settle any such Nardi
Level Issue without UpREIT's consent; provided that such Nardi Indemnitee shall
not be required to contest any proposed adjustment and may settle any such
proposed adjustment if such Nardi Indemnitee shall waive its right to indemnity
under this Agreement with respect to such adjustment and any Income Inclusion
that results from such adjustment and, in the case of proceedings before the
Court of Federal Claims or Federal District Court, shall pay to UpREIT the
amount of tax (and any applicable interest and penalties) previously paid or
advanced by UpREIT with respect to such adjustment or the contest of such
adjustment under Section 6(f), plus interest at the rate per annum equal to the
weighted average cost of debt capital to the UpREIT, computed from the time such
amounts were paid or advanced by UpREIT.
(h) Within thirty (30) days after a Final Determination of the
liability of such Nardi Indemnitee in respect of a Nardi Level Issue, UpREIT and
each Indemnitee agree to pay each other, as applicable, the net amount of (i)
the payment owed by the UpREIT to such Nardi Indemnitee of any indemnification
hereunder, not theretofore paid resulting from the outcome of such contest, and
<PAGE>
(ii) in the case of proceedings before the Court of Federal Claims or Federal
District Court, the repayment owed by such Nardi Indemnitee to UpREIT of the
amount of tax (and any applicable interest and penalties) previously paid or
advanced by UpREIT with respect to such adjustment or the contest of such
adjustment under Section 6(f), together with any interest received by or
credited to such Nardi Indemnitee that is attributable to such advance.
Section 7. Tax Savings.
(a) In the event that UpREIT makes an indemnity payment
pursuant to Section 4, if such Nardi Indemnitee shall realize with respect to
any year, any federal, applicable state or Burr Ridge income tax savings that
would not have been realized but for receipt of such payment, the related Income
Inclusion or the event giving rise thereto, (and which tax savings were not
taken into account in calculating UpREIT's indemnity payment to such Nardi
Indemnitee), such Nardi Indemnitee shall pay to UpREIT, on an After-Tax Basis,
an amount equal to the actual net reduction in federal, applicable state and
Burr Ridge income tax actually realized by such Nardi Indemnitee. Each Nardi
Indemnitee agrees to act in good faith to claim any tax benefits or savings
(including filing claims for refunds and amended tax returns) and take such
other actions as may be reasonable to minimize the net amount of any indemnity
payment due from UpREIT hereunder and to maximize the amount of its tax savings;
provided, however, that such Nardi Indemnitee shall not be required to take any
action which, in its good faith judgment, would have any material adverse
business consequences to it.
(b) Any payment due to UpRE1T pursuant to this Section 7 shall
be paid within one business day after such Nardi Indemnitee has (1) received (or
is deemed to have received) a refund or (2) has filed a return that reflects or
would reflect such tax saving; provided, however, that (A) obligations of such
Nardi Indemnitee and UpREIT under this Agreement will first be set off against
each other, and (B) any loss of such tax savings by such Nardi Indemnitee
subsequent to the year of realization by such Nardi Indemnitee shall be treated
as an Income Inclusion that is indemnifiable pursuant to the provisions of this
Agreement.
Section 8. State and Burr Ridge Tax. For purposes of this
Agreement, each Indemnitee will be treated as having an Income Inclusion,
realizing any deductions, credits or other income tax benefits, having the same
tax savings and having the same tax attributes and status for applicable state
income and Burr Ridge tax purposes at the same time, in the same amount and in
the same manner, as such Nardi Indemnitee does for federal income tax purposes.
Section 9. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois.
Section 10. Notices. All notices, demands, declarations,
consents, directions, approvals, instructions, requests and other communications
required or permitted by the terms hereof shall be given in the manner described
in Section 14.1 of the Partnership Agreement.
Section 11. Successors and Assigns. The terms of this Tax
Indemnification Agreement may not be assigned by any Indemnitee (including,
without limitation, by descent or will),
<PAGE>
without the written consent of UpREIT.
Section 12. Miscellaneous. This Agreement may be executed in
any number of counterparts, each executed counterpart constituting an original
but all together only one Agreement. Any provision of this Agreement which is
prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Neither this Agreement
nor any of the terms hereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement, waiver
or modification is sought.
Section 13. Anticipated Indemnitee Debt Allocation
Methodology. UpREIT acknowledges and agrees with each Indemnitee that the
aggregate nonrecourse indebtedness of UpREIT that is apportioned to the
Indemnities collectively under this Agreement and the Partnership Agreement
pursuant to Code Section 752 and Regulations Sections 1.702-3(a)(2) shall be
apportioned among the various Indemnitees using a method substantially similar
to that within the debt allocation model set forth on Exhibit C hereto.
Section 14. Term. The term of this Agreement shall be from the
date hereof until such time as the applicable statute of limitations under the
Code bars any claim by the Internal Revenue Service against a Indemnitee for
Inclusion Taxes otherwise indemnifiable under this Agreement.
Section 15. Exhibits. The parties to this Agreement
acknowledge and agree that future Capital Contributions may be made to the
UpREIT pursuant to Section 3.02(b) of the Contribution Agreement, and agree to
reasonably cooperate to update the Exhibits and other factual information
referenced or contained in this Agreement to take such Capital Contributions
into account.
Section 16. Assumption of Recourse Liabilities. Prior to the
GP Termination Date, upon 30 days written notice to the Managing General
Partner, the Nardi LLC may agree to indemnify the Managing General Partner for
the debt obligations of the UPREIT that are recourse to the general partners of
the UpREIT under relevant state law, but only to the extent necessary for the
Nardi LLC to be allocated a greater share of recourse liabilities of the UpREIT
for the purposes of Regulations Section 1.752.-2 to avoid an Income Inclusion;
and provided, however, that such indemnification shall not be allowed to the
extent it would cause adverse tax consequences to the Managing General Partner,
another partner in the UpREIT or the REIT.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective Officers thereunto duly
authorized as of the day and year first above written.
PRIME GROUP REALTY, L.P.
By: PRIME GROUP REALTY TRUST
Its: Managing General Partner
By: /s/ W. Michael Karnes
------------------------------------
Name: W. Michael Karnes
Title: Executive Vice President
NARCO ENTERPRISES, INC., an Illinois
corporation
By: /s/ Stephen J. Nardi
------------------------------------
Title: President
----------------------------------
NARDI GROUP LIMITED, a Delaware
corporation
By: /s/ Stephen J. Nardi
------------------------------------
Title: President
----------------------------------
STEPHEN J. NARDI
/s/ Stephen J. Nardi
----------------------------------
<PAGE>
THE NARDI GROUP, LTD, ETAL
PARTNERSHIP AND PROPERTIES
EXHIBIT A
<TABLE>
<CAPTION>
Partnership Property Name/Location City/State
----------- ---------------------- ----------
<S> <C> <C>
Madison Group 1021 Kirk Road Batavia, IL
Madison Group 90 4211 Madison St. Hillside, IL
Madison Group 200 200 E. Fullerton Carol Stream, IL
Narco 350 Associates 350 Randy Rod Carol Stream, IL
Narco 4300 Associates 4300 Madison Street Hillside, IL
Narco Elmhurst Center 370 Carol Lane Elmhurst, IL
388 Carol Lane Elmhurst, IL
941-961 Weigal Dr Elmhurst, IL
342-46 Carol Lane Elmhurst, IL
343 Carol Lane Elmhurst, IL
Narco Gary Avenue Associates 371-385 Gary Ave. Carol Stream, IL
Narco Mannheim I 350 N Mannheim Road Hillside, IL
Narco River Business Center West 1600-1700 167th St. Calumet City, IL
Narco Schaumburg J.V, 2050 Hammond Drive Schaumburg, IL
Narco Tower Road 1301 Tower Road Schaumburg, IL
Olympian Office Center J.V. 4343 Commerce Ct. Lisle, IL
Proviso Park J.V. 5600 Proviso Dr. Berkeley, IL
Rawls 130 130 E. Rawl Road Des Plaines, IL
Tri-State Industrial Park 11039 Gage Avenue Franklin Park, IL
11045 Gage Avenue Franklin Park, IL
Steve Nardi 1401 S. Jefferson Chicago, IL
4100 Madison Street Hillside, IL
4100-41900 Madison Street Hillside, IL
300-320 Craig Place Hillside, IL
550 Kehoe Blvd. Carol Stream, IL
Carol Stream Industrial Park Carol Stream Land Parcel Carol Stream
Batavia Land Parcel Batavia
</TABLE>
<PAGE>
Ex. 10.31
CREDIT AGREEMENT
AMONG
PRIME GROUP REALTY, L.P.
and
PRIME GROUP REALTY TRUST
and
BANKBOSTON, N.A.
and
PRUDENTIAL SECURITIES CREDIT CORPORATION
November 17, 1997
Amended 12/15/97
<PAGE>
TABLE OF CONTENTS
Section 1 DEFINITIONS AND RULES OF INTERPRETATION........................ 1
Section 1.1 Definitions........................................... 1
Section 1.2 Rules of Interpretation............................... 19
Section 2 REVOLVING CREDIT FACILITY...................................... 20
Section 2.1 Commitment to Lend; Limitation on Total Commitment.... 20
Section 2.2 Reduction of Commitment............................... 20
Section 2.3 The Notes............................................. 20
Section 2.4 Interest on Loans..................................... 21
Section 2.5 Requests for Loans.................................... 21
Section 2.6 Conversion Options.................................... 22
Section 2.7 Funds for Loans....................................... 22
Section 2.8. IRB Indebtedness Account.............................. 23
Section 2.9. Letters of Credit..................................... 24
Section 3 REPAYMENT OF THE LOANS......................................... 26
Section 3.1 Maturity.............................................. 26
Section 3.2 Mandatory Repayments of Loan.......................... 26
Section 3.3 Optional Repayments of Loans.......................... 27
Section 4 CERTAIN GENERAL PROVISIONS..................................... 28
Section 4.1 Revolving Credit Facility Fees and Agent's Fee........ 28
Section 4.2 Commitment Fee........................................ 28
Section 4.3 Funds for Payments.................................... 30
Section 4.4 Computations.......................................... 30
Section 4.5 Additional Costs, Etc................................. 30
Section 4.6 Capital Adequacy...................................... 32
Section 4.7 Certificate........................................... 32
Section 4.8 Indemnity............................................. 32
Section 4.9 Interest on Overdue Amounts........................... 32
Section 4.10 Inability to Determine Eurodollar Rate................ 33
Section 4.11 Illegality............................................ 33
Section 4.12 Replacement of Lenders................................ 33
Section 5 COLLATERAL SECURITY; NO LIMITATION ON RECOURSE................. 34
Section 5.1 Collateral Security................................... 34
Section 5.2. No Limitation on Recourse............................. 34
<PAGE>
Section 5.3. Additional Properties................................. 34
Section 5.4. Conditions to Approval of Additional Properties....... 35
Section 5.5. Release of Mortgaged Properties....................... 36
Section 6. REPRESENTATIONS AND WARRANTIES................................. 36
Section 6.1. Authority; Etc........................................ 37
Section 6.2. Governmental Approvals................................ 38
Section 6.3. Title to Properties................................... 38
Section 6.4. Financial Statements.................................. 38
Section 6.5. No Material Changes, Etc.............................. 39
Section 6.6. Franchises, Patents, Copyrights, Etc.................. 39
Section 6.7. Litigation............................................ 39
Section 6.8. No Materially Adverse Contracts, Etc.................. 40
Section 6.9. Compliance With Other Instruments, Laws, Etc.......... 40
Section 6.10. Tax Status............................................ 40
Section 6.11. Event of Default...................................... 40
Section 6.12. Investment Company Act................................ 40
Section 6.13. Absence of Financing Statements, Etc.................. 41
Section 6.14. Setoff, Etc........................................... 41
Section 6.15. Certain Transactions.................................. 41
Section 6.16. Benefit Plans: Multiemployer Plans: Guaranteed Pension
Plans.............................................. 41
Section 6.17. Regulations U and X................................... 41
Section 6.18. Environmental Compliance.............................. 41
Section 6.19. Subsidiaries and Affiliates........................... 43
Section 6.20. Major Leases.......................................... 43
Section 6.21. Loan Documents........................................ 43
Section 6.22. Mortgaged Properties.................................. 43
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER.......................... 47
Section 7.1. Punctual Payment...................................... 47
Section 7.2. Maintenance of Office................................. 47
Section 7.3. Records and Accounts.................................. 47
Section 7.4. Financial Statements, Certificates and Information.... 47
Section 7.5. Notices............................................... 49
Section 7.6. Existence; Maintenance of REIT Status; Maintenance of
Properties......................................... 50
Section 7.7. Insurance............................................. 51
Section 7.8. Taxes................................................. 51
Section 7.9. Inspection of Properties and Books; Confidential
Information........................................ 52
Section 7.10. Compliance with Laws, Contracts, Licenses, and
Permits............................................ 52
Section 7.11. Use of Proceeds....................................... 52
Section 7.12. Appraisals............................................ 52
Section 7.13. Leases; Lease Approvals............................... 53
Section 7.14. Further Assurance..................................... 53
Section 7.15. Environmental Indemnification......................... 53
<PAGE>
Section 7.16. Response Actions...................................... 54
Section 7.17. Environmental Assessments............................. 54
Section 7.18. Employee Benefit Plans................................ 54
Section 7.19. Required Interest Rate Contracts...................... 55
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER..................... 55
Section 8.1 Restrictions on Indebtedness.......................... 56
Section 8.2. Restrictions on Liens, Etc............................ 56
Section 8.3. Restrictions on Investments........................... 58
Section 8.4. Merger, Consolidation and Disposition of Properties... 58
Section 8.5. Sale and Leaseback.................................... 59
Section 8.6. Compliance with Environmental Laws.................... 59
Section 8.7. Distributions......................................... 59
Section 8.8. Leases................................................ 60
Section 9. FINANCIAL COVENANTS OF THE BORROWER............................ 60
Section 9.1. Collateral Value...................................... 60
Section 9.2. Minimum Debt Service Coverage......................... 60
Section 9.3. Total Liabilities to Total Adjusted Assets............ 61
Section 9.4. Minimum Tangible Net Worth............................ 61
Section 9.5. Total Operating Cash Flow to Interest Expense......... 61
Section 9.6. EBITDA to Fixed Charges............................... 61
Section 10. CONDITIONS TO EFFECTIVENESS.................................... 61
Section 10.1. Loan Documents........................................ 61
Section 10.2. Certified Copies of Organization Documents; Good
Standing Certificates.............................. 61
Section 10.3. By-laws; Resolutions.................................. 62
Section 10.4. Incumbency Certificate; Authorized Signers............ 62
Section 10.5. Opinions of Counsel................................... 62
Section 10.6. Payment of Fees....................................... 62
Section 10.7. Validity of Liens..................................... 62
Section 10.8. Survey................................................ 63
Section 10.9. Title Insurance; Title Exception Documents............ 63
Section 10.10. Leases............................................... 63
Section 10.11. Estoppel and Attornment Agreements................... 63
Section 10.12. Certificates of Insurance............................ 63
Section 10.13. Environmental Reports................................ 63
Section 10.14. Environmental Indemnity.............................. 63
Section 10.15. Appraisals........................................... 64
Section 10.16. Inspecting Engineers' Reports........................ 64
Section 10.17. Initial Letters of Credit............................ 64
Section 10.18. UCC Lien Searches.................................... 64
Section 10.19. Formation Transactions Complete...................... 64
<PAGE>
Section 11. CONDITIONS TO ALL BORROWINGS................................... 64
Section 11.1. Representations True; No Event of Default; Compliance
Certificate........................................ 64
Section 11.2. No Legal Impediment................................... 65
Section 11.3. Governmental Regulation............................... 65
Section 11.4. Proceedings and Documents............................. 65
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC........................... 65
Section 12.1. Events of Default and Acceleration.................... 65
Section 12.2. Termination of Commitments; Drawing of IRB Letters of
Credit............................................. 68
Section 12.3. Remedies.............................................. 68
Section 12.4. Distribution of Collateral Proceeds................... 69
Section 12.5. Addition of Real Estate Assets to Cure Default........ 69
Section 13. SETOFF......................................................... 70
Section 14. THE AGENT...................................................... 71
Section 14.1. Authorization......................................... 71
Section 14.2. Employees and Agents.................................. 71
Section 14.3. No Liability.......................................... 71
Section 14.4. No Representations.................................... 71
Section 14.5. Payments.............................................. 72
Section 14.6. Holders of Notes...................................... 73
Section 14.7. Indemnity............................................. 73
Section 14.8. Agent as Lender ...................................... 73
Section 14.9. Resignation........................................... 73
Section 14.10. Notification of Defaults and Events of Default....... 74
Section 14.11. Duties in the Case of Enforcement.................... 74
Section 15. EXPENSES....................................................... 74
Section 16. INDEMNIFICATION................................................ 75
Section 17. SURVIVAL OF COVENANTS, ETC..................................... 76
Section 18. ASSIGNMENT; PARTICIPATIONS; ETC................................ 77
Section 18.1. Conditions to ASection gnment by Lenders.............. 77
Section 18.2. Certain Representations and Warranties; Limitations;
Covenants.......................................... 77
Section 18.3. Register.............................................. 78
Section 18.4. New Notes............................................. 78
Section 18.5. Participations........................................ 79
Section 18.6. Pledge by Lender...................................... 79
Section 18.7. No Assignment by Borrower............................. 79
Section 18.8. Disclosure............................................ 80
<PAGE>
Section 19. NOTICES, ETC................................................... 80
Section 20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE............. 80
Section 21. HEADINGS....................................................... 81
Section 22. COUNTERPARTS................................................... 81
Section 23. ENTIRE AGREEMENT............................................... 81
Section 24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS................. 81
Section 25. CONSENTS, AMENDMENTS, WAIVERS, ETC............................. 82
Section 26. SEVERABILITY................................................... 82
Section 27. ACKNOWLEDGMENTS................................................ 82
Section 28. PARTNER LIABILITY.............................................. 83
Exhibit A Form of Note
Exhibit B Form of Loan Request
Exhibit C Form of Compliance Certificate
Exhibit D Form of Letter of Credit Request
Exhibit E Opinion Requirements
Exhibit F Form of Assignment and Acceptance
Schedule 1 Lenders; Domestic and Eurodollar Lending Offices
Schedule 1.1 Mortgaged Properties
Schedule 1.2 Commitments and Commitment Percentages
Schedule 1.3 Related Companies, Guarantor Subsidiaries and Permitted
Joint Ventures
Schedule 1.4 Initial Letters of Credit
Schedule 5.3(b) Required Additional Properties
Schedule 6.3 Title to Properties
Schedule 6.7 Litigation
Schedule 6.18 Environmental Reports
Schedule 6.22(d) Engineering Reports
Schedule 6.22(l) Rent Rolls
Schedule 6.22(m) Service Agreements
Schedule 6.22(n) Other Material Agreements
Schedule 8.3(d) Investments
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT is made as of the 17th day of November, 1997, by
and among PRIME GROUP REALTY, L.P., a Delaware limited partnership (the
"Borrower"), PRIME GROUP REALTY TRUST, a Maryland trust (the "Company") and
BANKBOSTON, N.A., a national banking association ("BankBoston"), PRUDENTIAL
SECURITIES CREDIT CORPORATION, a Delaware corporation ("Prudential"), the
other lending institutions which are from time to time listed on Schedule 1,
(collectively, with BankBoston and Prudential, the "Lenders") and BANKBOSTON,
N.A., as agent for itself and such other lending institutions (the "Agent").
WHEREAS, the Borrower has requested and BankBoston and Prudential have
agreed to provide a revolving credit facility, and to attempt to syndicate
such facility to other lending institutions, and Borrower has agreed to
provide real 0property collateral and other collateral to BankBoston,
Prudential and such other lending institutions, as set forth herein;
NOW, THEREFORE, to accomplish these purposes, the Agent, the Borrower
and the Lenders hereby agree as follows:
Section 1. DEFINITIONS AND RULES OF INTERPRETATION
Section 1.1. Definitions. The following terms shall have the meanings
set forth in this Section l or elsewhere in the provisions of this Agreement
referred to below:
Additional Properties. Real Estate Assets which hereafter become
Mortgaged Properties pursuant to Section 5.3.
Affiliated Lenders. Any commercial bank or other commercial lender which
is (i) the parent corporation of any of the Lenders, (ii) a wholly-owned
subsidiary of any of the Lenders or (iii) a wholly-owned subsidiary of the
parent corporation of any of the Lenders.
Agent. BankBoston, N.A. acting as agent for the Lenders or any successor
agent.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent
may designate from time to time in writing to the Borrower.
Agreement. This Credit Agreement, including the Schedules and Exhibits
hereto.
Applicable Margin. As of any date of determination:
(i) 1.20%, if Total Liabilities are less than 30% of Total Adjusted
Assets, or
<PAGE>
(ii) 1.35%, if Total Liabilities are equal to or less than 45% of Total
Adjusted Assets but the condition set forth in clause (i) of this definition
is not satisfied,
(iii) 1.50% if Total Liabilities exceed 45% of Total Adjusted Assets.
Any change in the Applicable Margin caused by a change in the ratio of Total
Liabilities to Total Adjusted Assets shall become effective on the 46th day
following the end of the fiscal quarter at which such ratio was computed as
shown on a Compliance Certificate which reflects such change in said ratio
above or below the 30% level or the 45% level.
Appraisals. Appraisals of the value of the Mortgaged Properties
determined on an "as is" market value basis, prepared in writing
independently and impartially by qualified MAI appraisers selected and
retained by the Agent and paid for by Borrower, the form and substance of
such appraisals and final determination of market value of the Mortgaged
Properties thereunder to be reviewed and subject to approval by the Lead
Lenders based on their respective reviews of such appraisals pursuant to
their internal appraisal review policies and procedures. All appraisals shall
be prepared in accordance with the Uniform Standards of Professional
Appraisal Practice, Supplemental Standards Applicable To Federally Related
Transactions, as further described in Title XI of the "Financial Institutions
Reform, Recovery and Enforcement Act of 1989" ("FIRREA"), and any additional
standards and conditions required for appraisals prepared for the Lead
Lenders.
Appraised Value. The market value of each of the Mortgaged Properties,
determined by the Lead Lenders based upon the most recent Appraisals obtained
pursuant to Section 5.4(b), Section 7.12 or Section 10.14. In determining
Appraised Value the Lead Lenders shall exclude any value associated with any
unimproved land or unoccupied Buildings located on the applicable Mortgaged
Property.
Assignment and Acceptance. See Section 18.
Assignments of Leases and Rents. The assignments of rents and leases
from the Mortgagor to the Agent pursuant to which the Mortgagor shall grant
and assign to the Agent as agent for the Lenders a security interest in and
assignment of the Mortgagor's interest as lessor with respect to all Leases
and rents thereunder of all or any part of the Mortgaged Properties as
security for the Obligations.
BankBoston. As defined in the preamble hereto.
Borrowing Base Value. With respect to each Mortgaged Property, an amount
equal to (i) two times the Net Operating Income for the most recently
completed two fiscal quarters, minus the Reserve Amount for such Mortgaged
Property, divided by (ii) a capitalization rate equal to 0.09 for the West
Wacker Drive Property or 0.10 for any other Mortgaged Property.
2
<PAGE>
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by BankBoston at the Agent's Head Office as its "base rate", and
(b) one half of one percent (1/2%) above the overnight federal funds
effective rate as published by the Board of Governors of the Federal Reserve
System, as in effect from time to time.
Base Rate Loans. Those Loans bearing interest calculated by reference to
the Base Rate.
Borrower. As defined in the preamble hereto.
Borrowing Date. The date on which any Loan is made or is to be made, and
the date on which any Loan is converted or continued in accordance with
Section 2.6.
Buildings. The buildings, structures and other improvements now or
hereafter located on the Mortgaged Properties.
Building Service Equipment. All apparatus, fixtures and articles of
personal property owned by the Mortgagor now or hereafter attached to or used
or procured for use in connection with the operation or maintenance of any
Building located on or included in the Mortgaged Properties, including, but
without limiting the generality of the foregoing, all engines, furnaces,
boilers, stokers, pumps, heaters, tanks, dynamos, motors, generators,
switchboards, electrical equipment, heating, plumbing, lifting and
ventilating apparatus, air-cooling and air-conditioning apparatus, gas and
electric fixtures, elevators, escalators, fittings, and machinery and all
other equipment of every kind and description, used or procured for use in
the operation of the Buildings (except apparatus, fixtures or articles of
personal property belonging to lessees or other occupants of such building or
to persons other than the Mortgagor unless the same be abandoned by any such
lessee or other occupant or person), together with any and all replacements
thereof and additions thereto.
Business Day. Any day on which banking institutions in Boston,
Massachusetts and Chicago, Illinois are open for the transaction of banking
business and, in the case of Eurodollar Rate Loans, also a day which is a
Eurodollar Business Day.
Capitalized Leases. Leases under which the Borrower is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the Borrower in accordance
with generally accepted accounting principles.
CERCLA. See Section 6.18.
Closing Balance Sheet. The pro-forma consolidated balance sheet of the
Company dated June 30, 1997 and reflecting the closing of the Formation
Transactions contained in the Prospectus Financial Statements and the related
notes thereto.
3
<PAGE>
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Collateral. All of the properties of the Borrower or of any Guarantor
that are or are intended to be subject to the security interests, liens and
mortgages created by the Security Documents, including, without limitation,
the Mortgaged Properties, the Leases, the Permits and the Service Agreements.
Collateral Value. With respect to each Mortgaged Property an amount
equal to the lesser of its Appraised Value or its Borrowing Base Value.
Commitment. With respect to each Lender, the amount set forth from time
to time on Schedule 1.2 hereto as the amount of such Lender 's commitment to
make Loans to the Borrower.
Commitment Percentage. With respect to each Lender , the percentage set
forth from time to time on Schedule 1.2 hereto as such Lender 's percentage
of the Total Commitment.
Common Shares. All common shares of beneficial interest of the Company,
including, without limitation, those offered pursuant to the Equity
Prospectus.
Common Units. Partnership interests representing the common equity in
the Borrower which interests are not subject to any mandatory redemption or
entitled to any distributions other than distributions based on the dividends
paid on the Common Shares.
Company. As defined in the preamble hereto.
Conversion Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with Section 2.6.
Default. See Section 12.1.
Delinquent Lender. See Section 14.5(c).
Distribution. The declaration or payment of any dividend or distribution
of cash or cash equivalents to the holders of any of the Equity Interests, or
any distribution or payment to any officer, employee or director of the
Borrower or the Company, other than reasonable employee compensation.
Dollars or $. Dollars in lawful currency of the United States of America.
4
<PAGE>
Domestic Lending Office. Initially, the office of each Lender designated
as such in Schedule 1 hereto; thereafter, such other office of such Lender,
if any, located within the United States that will be making or maintaining
Base Rate Loans.
Drawing. The drawing of any Letter of Credit by the beneficiary thereof
which is paid by the Agent pursuant thereto.
Drawing Date. The date on which a draft under a Letter of Credit is paid
by the Agent.
EBITDA. The Borrower's earnings before interest, taxes, depreciation and
amortization, as determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles, except that rental income shall be
determined on a cash basis.
Effective Date. The date upon which this Agreement shall become
effective pursuant to Section 10.
Eligible Assignee. Any of (a) a commercial bank organized under the laws
of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (b) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with generally accepted
accounting principles; (c) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation
and Development (the "OECD"), and having total assets in excess of
$1,000,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is
also a member of the OECD; and (d) the central bank of any country which is a
member of the OECD. Notwithstanding anything to the contrary, the term
Eligible Assignee shall exclude any Person controlling, controlled by or
under common control with, the Borrower or the Company.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3 (3) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 6.18(a).
Environmental Reports. Reports addressed to the Agent (or addressed to
the Borrower with an acceptable reliance letter addressed to the Agent)
prepared by environmental engineering firms reasonably acceptable to the Lead
Lenders relating to environmental site assessments and other evaluations of
environmental conditions which may have been conducted with respect to the
Mortgaged Properties described in Schedule 6.18 hereto and conducted with
respect to prospective Additional Properties pursuant to Section 5.3.
5
<PAGE>
Equity Interests. Collectively, all equity ownership interests in the
Borrower or the Company including, without limitation, the Common Shares, the
Preferred Shares, the Common Units and the Preferred Units.
Equity Prospectus. The prospectus dated November 12, 1997 relating to
12,380,000 Common Shares included in the Registration Statement (No.
333-33547) of the Company on Form S-11 as filed with the Securities Exchange
Commission on August 13, 1997, as amended, as the same has been or may be
further amended or supplemented from time to time.
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any of the Lenders
would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D) , if such liabilities
were outstanding. The Eurocurrency Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurocurrency Reserve Rate and the Agent shall provide the Borrower with
prompt written notice of any such change.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or
such other eurodollar interbank market as may be selected by the Agent in its
sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Lender
designated as such in Schedule 1 hereto; thereafter, such other office of
such Lender, if any, that shall be making or maintaining Eurodollar Rate
Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the quotient (rounded upwards to the nearest
1/16 of one percent) of (a) the rate at which the Agent is offered Dollar
deposits two Eurodollar Business Days prior to the beginning of such Interest
Period in an interbank eurodollar market where the eurodollar and foreign
currency and exchange operations of the Agent are customarily conducted, for
delivery on the first day of such Interest Period, for the number of days
comprised therein and in an
6
<PAGE>
amount comparable to the amount of the Eurodollar Rate Loan to which such
Interest Period applies, divided by (b) a number equal to 1.00 minus the
Eurocurrency Reserve Rate.
Eurodollar Rate Loans. Loans bearing interest calculated by reference to
the Eurodollar Rate.
Event of Default. See Section 12.1.
Fixed Charges. With respect to any fiscal period of the Borrower, an
amount determined on a consolidated basis equal to the sum of (i) Interest
Expense, (ii) regularly scheduled installments of principal payable with
respect to all Indebtedness of Borrower, (iii) Indebtedness which matured
during such fiscal period and was not refinanced with replacement
Indebtedness plus (iv) all Distributions paid during such period to the
holders of any Preferred Shares or Preferred Units.
Fixed Rate Prepayment Fee. See Section 3.3.
Formation Transactions. The transactions described in the Equity
Prospectus to be consummated on or before the Effective Date pursuant to
which (i) the Common Shares will be sold pursuant to an initial public
offering of such Common Shares and certain Preferred Shares, Common Units and
Preferred Units will be sold or issued in exchange for the contribution of
properties; (ii) the net proceeds thereof received by the Company will be
contributed as capital to the Borrower; (iii) the Borrower will directly or
indirectly acquire all assets reflected on the Closing Balance Sheet, and
(iv) certain Indebtedness secured by Liens on the Mortgaged Properties or
other Real Estate Assets will be repaid and such Liens discharged.
Funds From Operations. With respect to any fiscal period of the
Borrower, an amount equal to the Borrower's Funds From Operations determined
in accordance with the definition approved by the National Association of
Real Estate Investment Trusts, except that rental income shall be determined
on a cash basis.
Generally Accepted Accounting Principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to
time and (b) consistently applied with past financial statements of the
Borrower adopting the same principles and with the Prospectus Financial
Statements.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower
or any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
8
<PAGE>
Guarantor. Each of the Guarantor Subsidiaries.
Guarantor Subsidiaries. The partnerships, limited liability companies
and corporations designated as Guarantor Subsidiaries on Schedule 1.3 hereto
and any other partnerships, limited liability companies or corporations
hereafter approved by the Requisite Lenders which are at least 99% owned by
Borrower and which execute and deliver a Guaranty.
Guaranty. The Unconditional Guaranty of Payment and Performance from
each Guarantor to the Agent pursuant to which such Guarantor has guaranteed
the Obligations.
Hazardous Materials. See Section 6.18(b).
Indebtedness. All obligations, contingent and otherwise, that in
accordance with Generally Accepted Accounting Principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should
be made by footnotes thereto, including in any event the following whether or
not so classified: (a) the Obligations, (b) all debt and similar monetary
obligations for borrowed money, whether direct or indirect; (c) all
liabilities secured by any mortgage, pledge, negative pledge, security
interest, lien, negative lien, charge, or other encumbrance existing on
property owned or acquired subject thereto, whether or not the liability
secured thereby shall have been assumed; (d) all guarantees, endorsements and
other contingent obligations whether direct or indirect in respect of
indebtedness or obligations of others, including any obligation to supply
funds to or in any manner to invest in, directly or indirectly, the debtor,
to purchase indebtedness, or to assure the owner of indebtedness against
loss, through a master lease transaction or an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make payment
of the indebtedness held by such owner or otherwise, and the obligations to
reimburse the issuer in respect of any letters of credit; and (e) joint
venture and partnership obligations, contingent or otherwise of the type set
forth in (a) through (d) above. Indebtedness shall not be deemed to include
obligations under a purchase and sale agreement or contribution agreement for
the acquisition of assets by Borrower or the Related Companies unless entered
into for the purpose of supporting the Indebtedness of the seller or
contributor.
Indemnity Agreement. The Indemnity Agreement regarding Hazardous
Materials from the Borrower and the Company with respect to the Mortgaged
Properties, and any similar agreements which may be executed with respect to
Additional Properties.
Initial Letters of Credit. The Letters of Credit described on Schedule
1.4 hereto.
Interest Expense. With respect to any fiscal period of the Borrower, an
amount equal to the sum of the following with respect to all Indebtedness of
the Borrower and the Related Companies: (i) total interest expense, accrued
in accordance with Generally Accepted
8
<PAGE>
Accounting Principles plus (ii) all capitalized interest determined in
accordance with Generally Accepted Accounting Principles, plus (iii) the
amortization of deferred financing costs.
Interest Payment Date. As to any Base Rate Loan or Eurodollar Rate Loan,
the first day of each calendar month.
Interest Period. With respect to each Loan, (a) initially, the period
commencing on the Borrowing Date of such Loan and ending on the last day of
one of the periods set forth below, as selected by the Borrower in a Loan
Request (i) for any Base Rate Loan, the last day of the calendar month; and
(ii) for any Eurodollar Rate Loan, 1, 2 or 3 months; and (b) thereafter, each
period commencing on the last day of the next preceding Interest Period
applicable to such Loan and ending on the last day of one of the periods set
forth above, as selected by the Borrower in a Conversion Request; provided
that all of the foregoing provisions relating to Interest Periods are subject
to the following:
(A) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar Business
Day unless the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period shall
end on the immediately preceding Eurodollar Business Day;
(B) if any Interest Period with respect to a Base Rate Loan would
end on a day that is not a Business Day, that Interest Period shall end on
the next succeeding Business Day;
(C) if the Borrower shall fail to give notice as provided in
Section 2.6, the Borrower shall be deemed to have requested a conversion of
the affected Eurodollar Rate Loan to a Base Rate Loan on the last day of the
then current Interest Period with respect thereto;
(D) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Eurodollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Eurodollar Business
Day of a calendar month; and
(E) the Borrower may not select any Interest Period relating to any
Eurodollar Rate Loan that would extend beyond the Maturity Date.
Interest Rate Contracts. Interest rate swaps, caps or similar agreements
providing for interest rate protection.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock, partnership or
membership interests or Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, or in respect of any
9
<PAGE>
guaranties (or other commitments as described under Indebtedness), or
obligations of, any Person or for the acquisition of real property or other
assets. In determining the aggregate amount of Investments outstanding at any
particular time Investments shall be counted at their acquisition cost,
including the value of any Equity Interests issued in exchange for the
contribution of property, subject to the following: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (b)
there shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is
paid; (c) there shall be deducted in respect of each such Investment any
amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution) ;
(d) there shall not be deducted in respect of any Investment any amounts
received as earnings on such Investment, whether as dividends, interest or
otherwise, except that accrued interest included as provided in the foregoing
clause (b) may be deducted when paid; and (e) there shall not be deducted
from the aggregate amount of Investments any decrease in the value thereof.
IRB Documents. The Indentures of Trust, Financing Agreements, Loan
Agreements, Bonds, Notes and other documents relating to the IRB Indebtedness.
IRB Indebtedness. The Indebtedness of certain of the Guarantor
Subsidiaries with respect to fourteen (14) issues of industrial development
bonds, the proceeds of which were used to acquire or develop certain of the
Additional Properties listed on Schedule 5.3(b), excluding the Indebtedness
of certain Guarantor Subsidiaries with respect to such Properties in
Arlington Heights, Illinois for so long as the bonds relating thereto are
held by the Borrower or a Related Company.
IRB Indebtedness Account. A deposit account established by the Borrower
with the Agent into which the Borrower will deposit funds as required by
Section 2.8 and which the Agent will debit to reimburse the amount of
Drawings paid under the IRB Letters of Credit.
IRB Letters of Credit. The Letters of Credit issued with respect to the
IRB Indebtedness for the benefit of the respective trustees named in the IRB
Documents and the Letter of Credit expiring on or before April 15, 1998 for
the benefit of Credit Suisse First Boston, which is the issuer of certain
prior letters of credit relating to certain of the IRB Indebtedness.
Lead Lenders. BankBoston and Prudential. If a Lead Lender shall enter
into one or more assignments pursuant to Section 18 which have the effect of
reducing the Commitment of such Lender to less than $20,000,000 (which number
will be proportionately reduced in the event of any reduction in the Total
Commitment pursuant to Section 2.2), then such Lender shall no longer be a
Lead Lender. If by virtue of this immediately preceding sentence there are no
longer any Lead Lenders, then all approvals, consents and other matters which
require the action by the Lead Lenders hereunder shall thereafter require the
specified action by the Requisite Lenders.
10
<PAGE>
Leases. Leases, licenses and agreements whether written or oral,
relating to the use or occupation of space in or on the Buildings or on the
Mortgaged Properties by persons other than Mortgagor, including but not
limited to the leases listed on Schedule 6.22(1).
Lenders. BankBoston, Prudential and the other lending institutions
listed from time to time on Schedule 1 hereto and any other Person who
becomes an assignee of any rights of a Lender pursuant to Section 18 or a
Person who acquires all or substantially all of the stock or assets of a
Lender .
Letter of Credit. A letter of credit which is one of the Initial Letters
of Credit or is hereafter issued by the Agent for the account of the Borrower
pursuant to Section 2.9.
Letter of Credit Request. See Section 2.9.
Lien. Any lien, encumbrance, mortgage, deed of trust, pledge,
restriction or other security interest. If title to any Real Estate Asset is
held by a Subsidiary of Borrower then any pledge or assignment of Borrower's
stock, partnership interest, limited liability company interest or other
ownership interest in such Subsidiary shall be deemed to be a Lien on the
Real Estate Assets owned by such Subsidiary.
Loan Documents. This Agreement, the Notes, the Guaranties, the Security
Documents, the Indemnity Agreement and any and all other agreements,
documents and instruments now or hereafter evidencing, securing or otherwise
relating to the Loans or the Letters of Credit.
Loan Request. See Section 2.5.
Loans. Loans made or to be made by the Lenders to the Borrower pursuant
to Section 2.
Major Lease. A Lease of (i) 100,000 square feet or more of the gross
leasable area of a Building which is used primarily for industrial or
warehouse purposes or (ii) 25,000 square feet or more of the gross leasable
area of a Building which is used primarily for office purposes, and any
guaranty of the tenant's obligations under any such Lease.
Major Tenants. As to any Major Lease, those tenants that are parties to
that Major Lease and any guarantors of those tenants' obligations thereunder.
Material Adverse Effect. A material adverse effect on (i) any of the
Mortgaged Properties, (ii) the business, results of operations or financial
condition of the Borrower and the Related Companies taken as a whole, (iii)
the ability of the Borrower, the Company or any Guarantor to perform its
obligations under the Loan Documents, or (iv) the validity or enforceability
of any of the Loan Documents or the remedies or material rights of the Agent
or the Lenders thereunder.
11
<PAGE>
Maturity Date. November 17, 2000, or such earlier date on which the
Loans shall become due and payable pursuant to the terms hereof.
Maximum Principal Amount. Maximum Principal Amount shall mean the least
of the following: (i) the maximum Outstanding Principal Amount which may
exist without causing a violation of Section 9.1; (ii) the maximum
Outstanding Principal Amount which may exist without causing a violation of
Section 9.2; and (iii) the Total Commitment.
Mortgaged Properties. The (a) Real Estate Assets described on Schedule
1.1 hereto and such other Real Estate Assets which may be subsequently
conveyed to the Agent as Additional Properties to secure the Obligations in
accordance with Section 5.3 hereof, excluding from the foregoing any Real
Estate Assets which the Agent may release pursuant to Section 5.5 hereof, as
such Real Estate Assets are more particularly described in the Security
Deeds; (b) the Buildings and Building Service Equipment located thereon and
(to the extent assignable) all Permits relating thereto; and (c) all other
property incident to any of same described in any Security Document or other
Loan Document.
Mortgagor. With respect to each of the Mortgaged Properties, the owner
thereof.
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
Net Offering Proceeds. All net cash proceeds received after the date
hereof by the Borrower or the Company as a result of the sale of common,
preferred or other classes of stock of the Company or the issuance of limited
partnership interests in the Borrower after deducting customary costs and
discounts of issuance paid by Company or Borrower in connection therewith.
Net Operating Income. With respect to any fiscal period of the Borrower
and with respect to any one or more of the Real Estate Assets, the total
rental and other operating income from the operation of such Real Estate
Assets after deducting all expenses and other proper charges incurred by the
Borrower in connection with the operation of the Mortgaged Properties during
such fiscal period, including, without limitation, real estate taxes, bad
debt expenses and management fees (which fees shall not be lower than the
market rate for management fees for similar properties in the same general
location and such management fees shall be deducted when computing Net
Operating Income without regard to the extent to which such management fees
are passed through to the tenants), but before payment or provision for Fixed
Charges, income taxes, and depreciation, amortization, and other non-cash
expenses, all as determined in accordance with Generally Accepted Accounting
Principles except that (a) rental income will be determined on a cash basis,
provided, however, that each payment of prepaid rent shall be allocated to
the period for which it applies, (b) adjustments will be made so that each
fiscal
12
<PAGE>
quarter will include one quarter of annual real estate tax and insurance
expenses, and (c) any non-recurring income or income not directly from the
operation of such Real Estate Asset, such as interest income, shall be
excluded.
Notes. See Section 2.3.
Obligations. All indebtedness, obligations and liabilities of the
Borrower or any Guarantor to any of the Lenders and the Agent, individually
or collectively, under this Agreement or any of the other Loan Documents or
in respect of any of the Loans, the Letters of Credit or the Notes or other
instruments at any time evidencing any thereof, whether existing on the date
of this Agreement or arising or incurred hereafter, direct or indirect, joint
or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law of
otherwise.
Outstanding Principal Amount. The sum of (i) the aggregate amount of
unpaid principal of the Loans as of any date of determination plus (ii) the
aggregate face amount of each Letter of Credit issued under Section 2.9
which has not expired or terminated prior to such date of determination,
excluding from the face amount of any Letter of Credit the amount by which
any Unreimbursed Drawing has reduced the availability thereunder until such
availability is reinstated pursuant to the terms of such Letter of Credit.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
Permits. All governmental permits, licenses, and approvals necessary for
the lawful operation and maintenance of the Mortgaged Properties.
Permitted Acquisition. The acquisition by Borrower or any Related
Company of Real Estate Assets which are located in the continental United
States and are leased or intended to be leased primarily for industrial or
office purposes.
Permitted Joint Ventures. Any entity in which Borrower has any direct or
indirect ownership interest, except the Company and the Related Companies and
except Prime Group Realty Services, Inc., including general partnerships,
corporations, trusts and limited liability companies, which own or propose to
develop industrial or office properties provided that neither Borrower or any
Guarantor shall have any recourse liability for the Indebtedness of such
entity. Permitted Joint Ventures existing on the date hereof are set forth in
Schedule 1.3.
Permitted Developments. The construction of any new buildings or the
construction of additions expanding existing buildings or the rehabilitation
of the existing buildings (other than normal refurbishing and tenant fit up
work when one tenant leases space previously occupied by another tenant)
relating to any Real Estate Assets of the Borrower or any of the Related
13
<PAGE>
Companies and each Permitted Development shall be counted for purposes of
Section 8.3 from the time of commencement of the applicable construction work
until the later of (i) the date that leases for at least 70% of the gross
leasable area of such project have been executed or (ii) the date that a
final certificate of occupancy has been issued with respect to such project,
in the amount of the total projected cost of such project.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Pledge Agreements. The Pledge and Security Agreements between each
Guarantor Subsidiary which is a borrower under any IRB Documents and the
Agent pursuant to which certain bonds purchased with the proceeds of Drawings
under the IRB Letters of Credit would be pledged to the Agent until such
bonds are remarketed or redeemed.
Pledged Bonds. Bonds pledged to the Agent pursuant to any Pledge
Agreement.
Preferred Shares. All Preferred Shares of beneficial interest of the
Company including, without limitation, the 2,000,000 shares of Series A
Cumulative Convertible Preferred Shares as described in the Equity Prospectus.
Preferred Units. All partnership interests in the Borrower other than
the Common Units, including, without limitation, the Preferred Units
described in the Equity Prospectus.
Prepayment Date. See Section 3.3.
Prime. The Prime Group, Inc., an Illinois corporation.
Pro Forma Debt Service Charges for the Mortgaged Properties. For any
fiscal quarter of the Borrower, an amount equal to three monthly principal
and interest payments based on a twenty-five (25) year mortgage style
amortization schedule, calculated on the Pro Forma Principal Amount and an
interest rate equal to the greater of (i) the then current weighted average
interest rate per annum on the Loans or (ii) the then current ten (10) year
U.S. Treasury bill yield plus 1.75% per annum.
Pro Forma Principal Amount. (a) With respect to Compliance Certificates
delivered pursuant to Section 7.4(e), the maximum Outstanding Principal
Amount at any time during the applicable fiscal quarter; (b) with respect to
Compliance Certificates delivered pursuant to Section 2.5(a), 2.9(b) or
Section 11.1, the Outstanding Principal Amount after giving effect to the
requested Loan or the issuance of the requested Letter of Credit; (c) with
respect to Compliance
14
<PAGE>
Certificates delivered pursuant to Section 5.5(a) or Section 8.4(b), the
Outstanding Principal Amount after giving effect to any proposed sale or
transfer including any payments on the Loans or cancellation of Letters of
Credit to be made in connection therewith.
Properties. All Real Estate Assets, Real Estate, and all other assets,
including, without limitation, intangibles and personalty owned by the
Borrower.
Prospectus Financial Statements. The Financial Statements relating to
the Company and relating to certain properties to be acquired by the Borrower
or its Subsidiaries in connection with the Formation Transactions as set
forth in the Equity Prospectus.
Prudential. As defined in the preamble thereto.
Real Estate. All real property at any time owned, leased (as lessee or
sublessee) or operated by the Borrower, any Guarantor, or any of the Related
Companies or any Permitted Joint Venture.
Real Estate Assets. Those fixed and tangible properties consisting of
land, buildings and/or other improvements owned by the Borrower, by any
Guarantor, by any of the Related Companies or by any Permitted Joint Venture
at the relevant time of reference thereto, including without limitation, the
Mortgaged Properties, but excluding all leaseholds other than leaseholds
under ground leases having an unexpired term of at least 30 years.
Record. The grid attached to any Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any
Lender with respect to any Loan referred to in such Note.
Recourse Indebtedness. All Indebtedness except Indebtedness with respect
to which recourse for payment is contractually limited (except for customary
exclusions) to specific assets encumbered by a lien securing such
Indebtedness.
Register. See Section 18.3.
Related Companies. The entities listed and described on Schedule 1.3
hereto, or thereafter, any entity whose financial statements are consolidated
or combined with the Borrower's pursuant to Generally Accepted Accounting
Principles, or any ERISA Affiliate.
Release. See Section 6.18(c)(iii).
Requisite Lenders. As of any date, the Lenders whose aggregate
Commitments constitute at least sixty-six percent (66%) of the Total
Commitment provided that the Agent must always be among the Requisite Lenders
(except that after an Event of Default all actions by the
15
<PAGE>
Requisite Lenders with respect to acceleration of the Loans and the
enforcement of the Loan Documents as provided in Section 12 and in Section
14.11 shall be made without regard to whether the Agent is among the
Requisite Lenders) and provided that the Commitments of any Delinquent
Lenders shall be disregarded when determining the Requisite Lenders.
Reserve Amount. With respect to any Real Estate Assets or group of Real
Estate Assets, a normalized annual reserve for capital expenditures, tenant
improvements, replacement reserves and leasing costs at the rate of $0.25 per
year per square foot of gross leasable area contained in all buildings on
such Real Estate Assets. When the Reserve Amount is used in computing an
amount with respect to a fiscal period which is shorter than a year, said
amount shall be appropriately prorated.
Responsible Officer. With respect to the Company, any one of its Chief
Executive Officer, Chief Financial Officer, Treasurer or Executive Vice
Presidents.
Security Deeds. The mortgages and deeds of trust from the Mortgagor to
the Agent pursuant to which the Mortgagor shall convey the Mortgaged
Properties as security for the Obligations.
Security Documents. The Security Deeds, the Assignments of Leases and
Rents, the Pledge Agreements and the UCC-1 financing statements.
Service Agreements. All service agreements between the Borrower and
third parties, whether written or oral, relating to the operation,
maintenance, security, finance or insurance of the Mortgaged Properties.
Subsidiary. Any corporation, partnership, limited liability company,
association, trust, or other business entity of which the designated parent
or other controlling Person shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes)
of the outstanding Voting Interests.
Surveys. Instrument surveys of the Mortgaged Properties dated or updated
to a date not more than six (6) months prior to the date the applicable
property becomes a Mortgaged Property hereunder, which shall show the
location of all Buildings, easements and utility lines on the Mortgaged
Properties, shall be sufficient to remove the survey exception from the Title
Policy, shall show that all Buildings are within the lot lines of the
Mortgaged Properties, shall not show any material encroachments by others,
and shall show whether or not the Mortgaged Properties are located in any
flood hazard district as established by the Federal Emergency Management
Agency or any successor agency or are located in any flood plain, flood
hazard or wetland protection district established under federal, state or
local law and in addition shall meet the then applicable standards of the
Agent.
16
<PAGE>
Tangible Net Worth. Total Assets minus Total Liabilities minus all
intangibles determined in accordance with Generally Accepted Accounting
Principles.
Title Insurance Company. Chicago Title Insurance Company.
Title Policy. For each Mortgaged Property an ALTA standard form title
insurance policy issued by the Title Insurance Company (with such reinsurance
or co-insurance as the Agent may require, any such reinsurance to be with
direct access endorsements) insuring the priority of the Security Deed and
Assignment of Leases and Rents and that the Mortgagor holds good and clear
record marketable fee simple title to the Mortgaged Property, subject only to
the encumbrances permitted by the Security Deed and which shall not contain
exceptions for mechanics liens, persons in occupancy (other than Leases
listed on Schedule 6.22(1)) or matters which would be shown by a survey
(other than matters approved by the Agent in its reasonable discretion),
shall not insure over any matter except to the extent that any such
affirmative insurance is acceptable to the Agent in its sole discretion
(after consultation with the Lead Lenders), and shall contain such
endorsements and affirmative insurance as the Agent in its reasonable
discretion may require, including but not limited to (a) comprehensive
endorsement, (b) variable rate of interest endorsement, (c) usury
endorsement, (d) revolving credit endorsement, (e) doing business
endorsement, (f) ALTA form 3.1 zoning endorsement, with parking, (g) survey
(same-as) endorsement (h) access endorsement, (i) tie-in endorsement, (j)
first loss endorsement, and (k) tax parcel endorsement, to the extent that
such endorsements are available in the state where the applicable Mortgaged
Property is located.
Total Adjusted Assets. The sum of (i) the assets classified as cash or
cash equivalents on the consolidated balance sheet of Borrower prepared in
accordance with Generally Accepted Accounting Principles as of the end of the
most recent fiscal quarter (including any restricted cash other than tenant
deposits), plus (ii) the product of (a) EBITDA for the most recent two fiscal
quarters, times (b) two, divided by (c) 0.0975. To the extent necessary
EBITDA used to compute Total Adjusted Assets will be computed on a pro forma
basis as though the Formation Transactions had closed, and the Effective Date
had been, as of the first day of the applicable period of two fiscal quarters.
Total Assets. The aggregate book value of all assets of the Borrower and
the Related Companies consolidated and determined in accordance with
Generally Accepted Accounting Principles plus accumulated depreciation and
amortization related to Real Estate Assets.
Total Commitment. The sum of the Commitments of the Lenders, as in
effect from time to time.
Total Liabilities. The sum of the following (without duplication): (i)
all liabilities of the Borrower and the Related Companies consolidated and
determined in accordance with Generally Accepted Accounting Principles
excluding accounts payable incurred in the ordinary course of
17
<PAGE>
business, (ii) all Indebtedness of the Borrower and the Related Companies
whether or not so classified, including, without limitation, all outstanding
Loans under this Agreement, and (iii) the balance available for drawing under
letters of credit issued for the account of the Borrower or any of the
Related Companies.
Total Operating Cash Flow. With respect to any fiscal period of the
Borrower (i) EBITDA minus (ii) the Reserve Amount with respect to all Real
Estate Assets owned by the Borrower or any of the Related Companies.
Type. As to any Loan its nature as a Base Rate Loan or a Eurodollar Rate
Loan.
Unreimbursed Drawing. Any Drawing other than a Drawing which is
reimbursed by the Agent debiting the IRB Indebtedness Account pursuant to
Section 2.8. If any reimbursement from the IRB Indebtedness Account or any
part thereof is rescinded or must otherwise be restored or returned by the
Agent upon the insolvency, bankruptcy or reorganization of the Borrower or
any Guarantor, the Drawing reimbursed thereby shall be deemed to be an
Unreimbursed Drawing.
Unused Amount. See Section 4.2
Variable Rate Indebtedness. The Loans and all other Indebtedness of the
Borrower which bears interest at a rate which is not fixed through the
maturity of such Indebtedness.
Voting Interests. Stock or similar ownership interests, of any class or
classes (however designated), the holders of which are at the time entitled,
as such holders, (a) to vote for the election of a majority of the directors
(or persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control,
manage or conduct the business of the corporation, partnership, association,
trust or other business entity involved.
West Wacker Drive Property. The Mortgaged Property located at 77 West
Wacker Drive, Chicago, Illinois, as more particularly described in the
Security Deed with respect thereto.
Section 1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to time
in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification
to such law.
18
<PAGE>
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by Generally Accepted Accounting Principles applied on a
consistent basis by the accounting entity to which they refer and, except as
otherwise expressly stated, all use of accounting terms with respect to the
Borrower shall reflect the consolidated financial statements of Borrower and
the Related Companies.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by Generally Accepted
Accounting Principles, which terms are defined in the Uniform Commercial Code
as in effect in Massachusetts, have the meanings assigned to them therein.
(h) Reference to a particular "Section" refers to that section of this
Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Agreement as a whole and not to any particular section or
subdivision of this Agreement.
(j) The words "so long as any Loan or Note is outstanding" shall mean so
long as such Loan or Note is not paid in full in cash.
Section 2. REVOLVING CREDIT FACILITY.
Section 2.1. Commitment to Lend; Limitation on Total Commitment. Subject
to the provisions of Section 2.5 and the other terms and conditions set forth
in this Agreement, each of the Lenders severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time
between the Effective Date and the Maturity Date upon notice by the Borrower
to the Agent given and approved by the Agent in accordance with Section 2.5,
such sums as are requested by the Borrower up to a maximum aggregate
principal amount outstanding (after giving effect to all amounts requested)
at any one time equal to such Lender's Commitment (minus such Lender's
Commitment Percentage of the face amount of the Letters of Credit
outstanding), provided that the Outstanding Principal Amount (after giving
effect to all amounts requested) shall not at any time exceed the Maximum
Principal Amount. The Loans shall be made pro rata in accordance with each
Lender's Commitment Percentage and the Lenders shall at all times
immediately adjust inter se any inconsistency between each Lender's
outstanding principal amount and each Lender's Commitment. Each request for
a Loan hereunder shall constitute a representation and warranty by the
Borrower that the conditions set forth in Section 10 or Section 11 (whichever
is applicable) have been satisfied on the date of such request and will be
satisfied on the proposed Borrowing Date of the requested Loan, provided that
the making of such
19
<PAGE>
representation and warranty by Borrower shall not limit the right of any
Lender not to lend upon a determination by the Requisite Lenders that such
conditions have not been satisfied.
Section 2.2. Reduction of Commitment. The Borrower shall have the right
prior to the Maturity Date, upon at least ten (10) Business Days' prior
written notice to the Agent, to reduce by $1,000,000 or an integral multiple
of $100,000 in excess thereof, a portion of the Total Commitment which
exceeds the Outstanding Principal Amount, provided that the Total Commitment
shall not be reduced to less than the sum of $100,000,000 plus the aggregate
face amount of Letters of Credit then outstanding rounded up to the nearest
$1,000,000, whereupon the Commitments of the Lenders shall be reduced pro
rata in accordance with their respective Commitment Percentages by the amount
specified in such notice. Upon the effective date of any such reduction, the
Borrower shall pay to the Agent for the respective accounts of the Lenders
the full amount of any commitment fee then accrued on the amount of the
reduction. No reduction of the Commitments may be reinstated.
Section 2.3. The Notes. The Loans shall be evidenced by separate
promissory notes of the Borrower in substantially the form of Exhibit A
hereto (each a "Note"), and completed with appropriate insertions. A Note
shall be payable to the order of each Lender in a principal amount equal to
such Lender's Commitment. The Borrower irrevocably authorizes each Lender to
make or cause to be made, at or about the time of the Borrowing Date of any
Loan or at the time of receipt of any payment of principal on such Lender's
Note, an appropriate notation on such Lender's Record reflecting the making
of such Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Loans set forth on such Lender's Record shall
(absent manifest error) be prima facie evidence of the principal amount
thereof owing and unpaid to such Lender, but the failure to record, or any
error in so recording, any such amount on the Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any Note
to make payments of principal of or interest on any Note when due.
Section 2.4. Interest on Loans.
(a) Each Base Rate Loan shall bear interest for the period commencing
with the Borrowing Date thereof and ending on the last day of the Interest
Period with respect thereto at the Base Rate.
(b) Each Eurodollar Rate Loan shall bear interest for the period
commencing with the Borrowing Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate equal to the Applicable
Margin per annum above the Eurodollar Rate determined for such Interest
Period.
(c) The Borrower unconditionally promises to pay interest on each Loan
in arrears on each Interest Payment Date with respect thereto.
20
<PAGE>
(d) It is the intention of the parties hereto to conform strictly to the
usury and similar laws relating to interest from time to time in force, and
all agreements among Borrower, Guarantors, the Agent and the Lenders set
forth in the Loan Documents are hereby expressly limited so that in no
contingency or event whatsoever, whether by acceleration of maturity of Loans
or otherwise, shall the amount paid or agreed to be paid as interest
hereunder or under the other Loan Documents exceed the maximum rate or amount
of interest permissible under applicable usury laws or such other laws (the
"Maximum Interest Amount"). In the event, for any reason whatsoever, any
payment by or act of Borrower or any Guarantor pursuant to the terms or
pursuant to any requirements of any of the Loan Documents shall result in or
require payment of interest which would exceed the Maximum Interest Amount,
then ipso facto the obligation of Borrower or such Guarantor, as the case may
be, to pay interest or fees or other amounts shall be reduced to the Maximum
Interest Amount, so that in no event shall Borrower or any Guarantor be
obligated to pay any interest, perform any act, or be bound by any
requirement which would result in payment of interest in excess of a sum
which is lawfully collectible, and all sums in excess of those lawfully
collectible as interest shall, without further agreements or notice between
or by any party to this Agreement or any other Loan Document, be deemed
applied to pay the principal of the Loans immediately upon receipt of such
moneys by Agent or any Lender, with the same force and effect as though
Borrower or any Guarantor had specifically designated such sums to be applied
to principal prepayment. The provisions of this Section 2.4(d) shall control
every other provision of the Loan Documents.
Section 2.5. Requests for Loans. The Borrower shall give to the Agent
written notice in the form of Exhibit B hereto of each Loan requested
hereunder (a "Loan Request") no less than (a) three (3) Business Days prior
to the proposed Borrowing Date of any Base Rate Loan and (b) four (4)
Eurodollar Business Days prior to the proposed Borrowing Date of any
Eurodollar Rate Loan. Each such notice shall specify (i) the principal amount
of the Loan requested, (ii) the proposed Borrowing Date of such Loan, (iii)
the Interest Period for such Loan, (iv) the Type of such Loan, and (v) the
purpose of such Loan, and shall be accompanied by a statement in the form of
Exhibit C hereto signed by a Responsible Officer setting forth in reasonable
detail computations evidencing compliance with the covenants contained in
Section 9 hereof after giving effect to such requested Loan (a "Compliance
Certificate"). Within one (1) Business Day after receipt of a Loan Request,
the Agent shall provide to each of the Lenders by facsimile a copy of such
Loan Request and accompanying Compliance Certificate and each Lender shall,
within 24 hours thereafter, notify the Agent if it believes that any of the
conditions contained in Section 11 of this Agreement has not been met or
waived. If such a notice is given the Requisite Lenders shall promptly
determine whether all of the conditions contained in Section 11 of this
Agreement have been met or waived. If no such notice is given by any Lender
or if following such notice the Requisite Lenders determine that the
conditions contained in Section 11 have been met or waived, each of the
Lenders shall be obligated to fund its Commitment Percentage of the requested
Loans. Each such Loan Request shall be irrevocable and binding on the
Borrower and the Borrower shall be obligated to accept the Loan requested
from the Lenders on the proposed Borrowing Date. Each
21
<PAGE>
Loan Request shall be in a minimum aggregate amount of $3,000,000 or an
integral multiple of $1,000,000 in excess thereof.
Section 2.6. Conversion Options.
(a) The Borrower may elect from time to time to convert any outstanding
Loan to a Loan of another Type, provided that (i) with respect to any such
conversion of a Eurodollar Rate Loan to a Base Rate Loan, the Borrower shall
give the Agent at least three (3) Business Days, prior written notice of such
election; (ii) with respect to any such conversion of a Eurodollar Rate Loan
into a Base Rate Loan, such conversion shall only be made on the last day of
the Interest Period with respect thereto; (iii) subject to the further
proviso at the end of this section and subject to Section 2.6(b) and Section
2.6(d) hereof with respect to any such conversion of a Base Rate Loan to a
Eurodollar Rate Loan, the Borrower shall give the Agent at least four (4)
Eurodollar Business Days' prior written notice of such election and (iv) no
Loan may be converted into a Eurodollar Rate Loan when any Default or Event
of Default has occurred and is continuing. On the date on which such
conversion is being made, each Lender shall take such action as is necessary
to transfer its Commitment Percentage of such Loans to its Domestic Lending
Office or its Eurodollar Lending Office, as the case may be. All or any part
of outstanding Loans of any Type may be converted as provided herein,
provided further that each Conversion Request relating to the conversion of a
Base Rate Loan to a Eurodollar Rate Loan shall be for an amount equal to
$3,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
be irrevocable by the Borrower.
(b) Any Loans of any Type may be continued as such upon the expiration
of an Interest Period with respect thereto by compliance by the Borrower with
the notice provisions contained in Section 2.6 (a); provided that no
Eurodollar Rate Loan may be continued as such when any Default or Event of
Default has occurred and is continuing but shall be automatically converted
to a Base Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of any Default or Event of Default of
which the officers of the Agent active upon the Borrower's account have
actual knowledge.
(c) In the event that the Borrower does not notify the Agent of its
election hereunder with respect to any Loan, such Loan shall be automatically
converted to a Base Rate Loan at the end of the applicable Interest Period.
(d) The Borrower may not request a Eurodollar Rate Loan pursuant to
Section 2.5, elect to convert a Base Rate Loan to a Eurodollar Rate Loan
pursuant to Section 2.5(a) or elect to continue a Eurodollar Rate Loan
pursuant to Section 2.6(b) if, after giving effect thereto, there would be
greater than eight (8) Eurodollar Rate Loans outstanding. Any Loan Request
for a Eurodollar Rate Loan that would create greater than eight (8)
Eurodollar Rate Loans outstanding shall be deemed to be a Loan Request for a
Base Rate Loan.
22
<PAGE>
Section 2.7. Funds for Loans.
(a) Subject to Section 2.5 and other provisions of this Agreement, not
later than 11:00 a.m. (Boston time) on the proposed Borrowing Date of any
Loans, each of the Lenders will make available to the Agent, at the Agent's
Head office, in immediately available funds, the amount of such Lender's
Commitment Percentage of the amount of the requested Loans. Upon receipt from
each Lender of such amount, and upon receipt of the documents required by
Sections 10 or 11 (whichever is applicable) and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Agent will make
available to the Borrower the aggregate amount of such Loans made available
to the Agent by the Lenders. The failure or refusal of any Lender to make
available to the Agent at the aforesaid time and place on any Borrowing Date
the amount of its Commitment Percentage of the requested Loans shall not
relieve any other Lender from its several obligation hereunder to make
available to the Agent the amount of such other Lender's Commitment
Percentage of any requested Loans but shall not obligate any other Lender or
Agent to fund more than its Commitment Percentage of the requested Loans or
to increase its Commitment Percentage.
(b) The Agent may, unless notified to the contrary by any Lender prior
to a Borrowing Date, assume that such Lender has made available to the Agent
on such Borrowing Date the amount of such Lender's Commitment Percentage of
the Loans to be made on such Borrowing Date, and the Agent may (but it shall
not be required to), in reliance upon such assumption, make available to the
Borrower a corresponding amount. If any Lender makes available to the Agent
such amount on a date after such Borrowing Date, such Lender shall pay to the
Agent on demand an amount equal to the product of (i) the average computed
for the period referred to in clause (iii) below, of the weighted average
interest rate paid by the Agent for federal funds acquired by the Agent
during each day included in such period, times (ii) the amount of such Lender
's Commitment Percentage of such Loans, times (iii) a fraction, the numerator
of which is the number of days or portion thereof that elapsed from and
including such Borrowing Date to the date on which the amount of such Lender
's Commitment Percentage of such Loans shall become immediately available to
the Agent, and the denominator of which is 365.
Section 2.8. IRB Indebtedness Account. On or before each date on which
there is scheduled to be a Drawing under any IRB Letter of Credit pursuant to
the IRB Documents, the Borrower will deposit in the IRB Indebtedness Account
sufficient funds such that there will be available therein on the applicable
Drawing Date the amount needed to reimburse the Agent for the amount of such
Drawing. The Borrower hereby authorizes the Agent to debit the IRB
Indebtedness Account on each Drawing Date as necessary to reimburse the Agent
for each draft paid by the Agent pursuant to any IRB Letter of Credit. All
payments made by the Agent pursuant to any drafts under the IRB Letters of
Credit shall be made from funds of the Agent, but in no event shall any such
payments be made with funds from the IRB Indebtedness Account or with any
23
<PAGE>
other funds obtained from the Borrower, any Guarantor or any issuer of bonds
with respect to any IRB Indebtedness.
Section 2.9. Letters of Credit.
(a) A portion of the Commitments may be used by Borrower for the
issuance of Letters of Credit by the Agent for the account of the Borrower
subject to the terms and conditions set forth herein, provided that the
aggregate face amount of all Letters of Credit shall not exceed $105,000,000
during the period from the Effective Date until the earlier to occur of (i)
the date that the Letter of Credit for the benefit of Credit Suisse First
Boston is drawn on so as to reduce the amount available thereunder, or is
amended or replaced so as to reduce the face amount thereof, by more than
$15,000,000 or (ii) April 16, 1998, and thereafter shall not exceed
$90,000,000. Each Letter of Credit shall be denominated in dollars and shall
be a either a direct pay IRB Letter of Credit, a direct pay letter of credit
supporting bond related Indebtedness similar to the IRB Letters of Credit or
a standby letter of credit issued to support the obligations of Borrower in
connection with Permitted Developments. Each Letter of Credit shall expire no
later than five (5) Business Days prior to the Maturity Date. Although the
Agent shall be the issuing bank of the Letter of Credit, each Lender hereby
accepts for its own account and risk an undivided interest equal to its
Commitment Percentage in the Agent's obligations represented by each Letter
of Credit issued hereunder, and unconditionally and irrevocably agrees with
the Agent that, upon any Unreimbursed Drawing, such Lender shall promptly pay
to the Agent an amount equal to such Lender's Commitment Percentage of the
amount of such Unreimbursed Drawing. Upon the issuance of each Letter of
Credit hereunder, there shall be reserved from each Lender's Commitment an
amount equal to such Lender's Commitment Percentage of the face amount of
the Letter of Credit. Such reserved amounts shall remain in place and shall
be unavailable for borrowing under Section 2.1 until the date that the Letter
of Credit expires or is terminated.
(b) If the Borrower shall desire the issuance of any Letters of Credit
or the extension or renewal of any outstanding Letters of Credit, it shall
give to the Agent a written notice in the form of Exhibit D hereto of each
Letter of Credit requested hereunder (a "Letter of Credit Request") no less
than ten (10) Business Days prior to the proposed issuance date of the
requested Letter of Credit or prior to the expiration date of any Letter of
Credit to be renewed or extended. Each Letter of Credit Request shall specify
(i) the name and address of the beneficiary of the requested Letter of
Credit, (ii) the face amount of the requested Letter of Credit, (iii) the
proposed issuance date and expiration date of the requested Letter of Credit,
(iv) the proposed form of the requested Letter of Credit, and (v) the
permitted purpose for which the Letter of Credit will be used, and shall be
accompanied by a Compliance Certificate in the form of Exhibit C hereto
signed by a Responsible Officer setting forth in reasonable detail
computations evidencing compliance with the covenants contained in Section 9
hereof after including in the Outstanding Principal Amount the face amount of
the requested Letter of Credit. The Agent may also require that the Borrower
complete its standard letter of credit application form and
24
<PAGE>
submit the same and the standard application fee together with the Letter of
Credit Request. The Letter of Credit Requests with respect to the Initial
Letters of Credit are hereby approved. Within two (2) Business Days after
receipt of any other Letter of Credit Request, the Agent shall provide to
each of the Lenders by facsimile a copy of such Letter of Credit Request and
accompanying Compliance Certificate and each Lender shall, within 24 hours
thereafter, notify the Agent if it believes that any of the conditions
contained in Section 11 of this Agreement has not been met or waived such
that a Loan in an amount equal to the face amount of the requested Letter of
Credit could be made on the proposed issuance date of such Letter of Credit.
If such a notice is given the Requisite Lenders shall promptly determine
whether all of the conditions contained in Section 11 of this Agreement have
been met or waived. If no such notice is given by any Lender or if following
such notice the Requisite Lenders determine that the conditions contained in
Section 11 have been met or waived, and if the Agent determines, in its
discretion, that it is willing to issue, extend or renew the requested Letter
of Credit, and that it is satisfied with the proposed form thereof, the
Letter of Credit shall be issued, extended or renewed by the Agent and each
of the Lenders shall then be obligated to the Agent with respect to its
Commitment Percentage of the Letter of Credit (as extended or renewed, if
applicable) as provided above in Section 2.9(a).
(c) On or before the issuance date of any Letters of Credit having an
expiration date of one year or less after its issuance date, the Borrower
shall pay to the Agent for its own account an issuance fee equal to
one-eighth percent (.125%) of the face amount of the Letter of Credit. The
issuance fee for any Letter of Credit with a later expiration date will be
determined by the Agent. On or before the date of any extension or renewal of
a Letter of Credit, the Borrower shall pay to the Agent for its own account a
renewal fee for each year of the extension renewal term equal to one-tenth
percent (.10%) of the face amount of the applicable Letter of Credit. The
Borrower shall pay to the Agent for the account of the Lenders a Letter of
Credit fee equal to the then prevailing Applicable Margin per annum of the
face amount of the Letter of Credit, which Letter of Credit fee shall be due
and payable in advance on the issuance date of the Letter of Credit and on
the first day of each calendar quarter for so long as such Letter of Credit
remains outstanding, and shall be prorated for any partial quarter and paid
for the actual number of days between the issuance date and the expiration
date of such Letter of Credit. Promptly after its receipt thereof the Agent
shall distribute such Letter of Credit fee to the Lenders pro-rata in
accordance with their respective Commitment Percentages. Such fees shall be
nonrefundable and shall not be further prorated in the event that the Letter
of Credit terminates prior to its scheduled expiration date. The Borrower
also agrees to reimburse the Agent for all reasonable fees (consistent with
the fee schedule of the Agent's trade services division as then in effect),
costs, expenses and disbursements of the Agent in issuing, effecting payment
under, amending or otherwise administering any Letter of Credit.
(d) Promptly after each Unreimbursed Drawing the Agent shall notify the
Lenders and the Borrower of the amount thereof. The payment of each
Unreimbursed Drawing shall constitute an advance of a Loan which shall bear
interest as a Base Rate Loan from the Drawing Date. On the Drawing Date of
each Unreimbursed Drawing, each Lender shall pay to the Agent
25
<PAGE>
its Commitment Percentage of the amount of such Unreimbursed Drawing. If the
Agent receives such payment from any Lender on a date after the Drawing Date,
such Lender shall pay to the Agent on demand an amount computed in the same
manner as the amount due to the Agent from a Lender which has made available
funds for loans after the Borrowing Date thereof pursuant to Section 2.7(b).
Each Lender's obligation to pay its Commitment Percentage of each
Unreimbursed Drawing shall not be subject to the satisfaction of the
conditions set forth in Section 11. Within three (3) Business Days after each
Unreimbursed Drawing, the Borrower shall deliver to the Agent a written
explanation of the facts and circumstances relating to such drawing and a
Compliance Certificate and any other information requested by the Agent for
the purpose of allowing the Lenders to determine whether the drawing or
related events have resulted in a Default or Event of Default. The Agent
shall promptly provide copies of such explanation and information to the
Lenders.
(e) The Borrower's obligations under this Section 2.9 shall be absolute
and unconditional under any and all circumstances and irrespective of any
set-off, counterclaim or defense to payment which the Borrower may have or
have had against the Agent, any Lender or any beneficiary of a Letter of
Credit. The Borrower also agrees that the Agent shall not be responsible for,
and the Borrower's reimbursement obligations hereunder shall not be affected
by, among other things, (i) the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to
be invalid, fraudulent or forged, or (ii) any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or (iii) any claims whatsoever
of the Borrower against any beneficiary of such Letter of Credit or any such
transferee. The Agent shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except
for errors, omissions, interruptions or delays for which the Agent is liable
under the Uniform Customs and Practices for Documentary Credits. The Borrower
assumes all risks of the acts or omissions of any trustee, paying agent,
tender agent or remarketing agent under the IRB Indebtedness and the Agent
shall not be responsible for any use which may be made of the IRB Letters of
Credit. The Borrower agrees that any action taken or omitted by the Agent
under or in connection with any Letter of Credit or the related drafts or
documents, if done in accordance with the standards of care specified in the
Uniform Customs and Practices for Documentary Credits as the same may be
amended from time to time, shall be binding on the Borrower and shall not
result in any liability of the Agent to the Borrower or to any Guarantor.
Section 3. REPAYMENT OF THE LOANS.
Section 3.1. Maturity. The Borrower unconditionally promises to pay on
the Maturity Date, and there shall become absolutely due and payable on the
Maturity Date, all of the Loans outstanding on such date, together with any
and all accrued and unpaid interest and charges thereon.
Section 3.2. Mandatory Repayments of Loan. If at any time the sum of the
Outstanding Principal Amount exceeds the Maximum Principal Amount, then the
Borrower shall
26
<PAGE>
immediately pay the amount of such excess to the Agent for the respective
accounts of the Lenders for application to the Loans.
Section 3.3. Optional Repayments of Loans. The Borrower shall have the
right, at its election, to repay the outstanding amount of the Loans, as a
whole or in part, on any Business Day, without penalty or premium; provided
that the full or partial prepayment of the outstanding amount of any
Eurodollar Rate Loans made pursuant to this Section 3.3 may be made only on
the last day of the Interest Period relating thereto, except as set forth
below in this Section 3.3. The Borrower shall give the Agent no later than
10:00 a.m., Boston time, at least three (3) Business Days' prior written
notice of any prepayment pursuant to this Section 3.3 of any Base Rate Loans
and four (4) Eurodollar Business Days, notice of any proposed repayment
pursuant to this Section 3.3 of any Eurodollar Rate Loans, specifying the
proposed date of payment of Loans and the principal amount to be paid. Each
such partial prepayment of the Loans shall be in an integral multiple of
$100,000 and shall be accompanied by the payment of all charges outstanding
on all Loans and of accrued interest on the principal repaid to the date of
payment and shall be applied, in the absence of instruction by the Borrower,
first to the principal of Base Rate Loans and then to the principal of
Eurodollar Rate Loans. Notwithstanding anything contained herein to the
contrary, the Borrower may make a full or partial prepayment of a Eurodollar
Rate Loan on a date other than the last day of the Interest Period relating
thereto, if all optional prepayments (in whole or in part) on such Loans
shall be accompanied by, and the Borrower hereby promises to pay, a
prepayment fee in an amount determined by the Agent in the following manner:
(i) Fixed Rate Prepayment Fee. Borrower acknowledges that prepayment or
acceleration of a Eurodollar Loan during an Interest Period shall result in
the Lenders incurring additional costs, expenses and/or liabilities and that
it is impractical to ascertain the extent of such costs, expenses and/or
liabilities. (For all purposes of this Section, any Loan not being made as a
Eurodollar Rate Loan in accordance with the Loan Request therefor, as a
result of Borrower's cancellation thereof, shall be treated as if such
Eurodollar Rate Loan had been prepaid.) Therefore, on the date a Eurodollar
Rate Loan is prepaid or the date all sums payable hereunder become due and
payable, by acceleration or otherwise ("Prepayment Date"), Borrower will pay
to Agent, for the account of each Lender, (in addition to all other sums
then owing), an amount ("Fixed Rate Prepayment Fee") determined by the Agent
to be the amount, if any, by which (i) the amount of interest which would
have accrued on the prepaid Eurodollar Rate Loan for the remainder of the
Interest Period at the rate applicable to such Eurodollar Rate Loan exceeds
(ii) the amount of interest that would accrue for the same period on any
readily marketable bond or other obligation of the United States of America
designated by the Agent in its sole discretion at or about the time of such
payment, such bond or other obligation of the United States of America to be
in an amount equal (as nearly as may be) to the amount of principal so paid
or not borrowed and to have a maturity comparable to the remainder of such
Interest Period, and the interest to accrue thereon to take account of
amortization of any discount from par or accretion of premium above par at
which the same is selling at the time designation.
27
<PAGE>
(ii) Upon the written notice to Borrower from Agent, Borrower shall
immediately pay to Agent, for the account of the Lenders, the Fixed Rate
Prepayment Fee. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the parties hereto.
(iii) Borrower understands, agrees and acknowledges the following: (i)
no Lender has any obligation to purchase, sell and/or match funds in
connection with the use of the Eurodollar Rate as a basis for calculating the
rate of interest on a Eurodollar Rate Loan; (ii) the Eurodollar Rate is used
merely as a reference in determining such rate; and (iii) Borrower has
accepted the Eurodollar Rate as a reasonable and fair basis for calculating
such rate and a Fixed Rate Prepayment Fee. Borrower further agrees to pay the
Fixed Rate Prepayment Fee, if any, whether or not a Lender elects to
purchase, sell and/or match funds.
Section 4. CERTAIN GENERAL PROVISIONS.
Section 4.1. Revolving Credit Facility Fees and Agent's Fee. The
Borrower agrees to pay to the Lead Lenders and the Agent revolving credit
facility fees and agency fees in the amounts specified in the Fee Agreement
dated October 20, 1997 among the Lead Lenders, the Borrower, the Company and
The Prime Group, Inc. The Lead Lenders shall be responsible for any facility
fees which they may agree to pay to the other Lenders which become a party to
this Agreement. If the Borrower obtains releases of one or more Mortgaged
Properties pursuant to Section 5.5, and simultaneously or thereafter provides
Additional Properties pursuant to Section 5.3 and Section 5.4 to replace the
Collateral Value of the released property, the Borrower shall pay a
substitution fee to the Agent for its own account in the amount of $2,500 per
Additional Property.
Section 4.2. Commitment Fee. The Borrower shall pay to the Agent for the
accounts of the Lenders in accordance with their respective Commitment
Percentages a commitment fee calculated at the rates set forth below per
annum on the daily amount by which the Total Commitment (as it may have been
reduced pursuant to Section 2.2) exceeds the Outstanding Principal Amount
(the "Unused Amount"):
<TABLE><CAPTION>
Unused Amount Fee Rate
- ------------- --------
<S> <C>
less than 1/3 of Total Commitment 15 basis points
at least 1/3 of Total Commitment
but less than 2/3 of Total Commitment 20 basis points
at least 2/3 of Total Commitment 25 basis points
</TABLE>
The commitment fee shall be payable on the basis of the applicable annual
rate quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the date hereof, with a final payment on the Maturity Date or any
earlier date on which the Commitments shall terminate.
28
<PAGE>
Section 4.3. Funds for Payments.
(a) All payments of principal, interest, closing fees, commitment fees
and any other amounts due hereunder (other than as provided in Section 4.1,
Section 4.5 and Section 4.6) or under any of the other Loan Documents, and
all prepayments, shall be made to the Agent, for the respective accounts of
the Lenders, at the Agent's Head Office, in each case in Dollars in
immediately available funds.
(b) All payments by the Borrower hereunder and under any of the other
Loan Documents shall be made without setoff or counterclaim and free and
clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory liens, restrictions or
conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or other
authority therein unless the Borrower is compelled by law to make such
deduction or withholding. If any such obligation is imposed upon the Borrower
with respect to any amount payable by it hereunder or under any of the other
Loan Documents, the Borrower shall pay to the Agent, for the account of the
Lenders or (as the case may be) the Agent, on the date on which such amount
is due and payable hereunder or under such other Loan Document, such
additional amount in Dollars as shall be necessary to enable the Lenders or
the Agent to receive the same net amount which the Lenders or the Agent would
have received on such due date had no such obligation been imposed upon the
Borrower. The Borrower will deliver promptly to the Agent certificates or
other valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Borrower hereunder or under such other
Loan Document.
Section 4.4. Computations. All computations of interest on the Loans and
of other fees to the extent applicable shall be based on a 360-day year and
paid for the actual number of days elapsed. Except as otherwise provided in
the definition of the term "Interest Period" with respect to Eurodollar Rate
Loans, whenever a payment hereunder or under any of the other Loan Documents
becomes due on a day that is not a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day, and interest
shall accrue during such extension. The outstanding amount of the Loans as
reflected on the Records from time to time shall (absent manifest error) be
considered correct and binding on the Borrower unless within thirty (30)
Business Days after receipt by the Agent or any of the Lenders from Borrower
of any notice by the Borrower of such outstanding amount, the Agent or such
Lender shall notify the Borrower to the contrary.
Section 4.5. Additional Costs, Etc. If any present or future applicable
law which expression, as used herein, includes statutes, rules and
regulations thereunder and interpretations thereof by any competent court or
by any governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon
or otherwise issued to any Lender or the
29
<PAGE>
Agent by any central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Lender or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Lender's Commitment or the Loans
(other than taxes based upon or measured by the income or profits of such
Lender or the Agent), or
(b) materially change the basis of taxation (except for changes in taxes
on income or profits) of payments to any Lender of the principal of or the
interest on any Loans or any other amounts payable to any Lender under this
Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Agreement) any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by,
or deposits in or for the account of, or loans by, or commitments of an
office of any Lender, or
(d) impose on any Lender any other conditions or requirements with
respect to this Agreement, the other Loan Documents, the Loans, the
Commitment, or any class of loans or commitments of which any of the Loans or
the Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to such Lender of making, funding, issuing,
renewing, extending or maintaining any of the Loans or such Lender's
Commitment, or
(ii) to reduce the amount of principal, interest or other amount payable
to such Lender or the Agent hereunder on account of the Commitments or any of
the Loans, or
(iii) to require such Lender or the Agent to make any payment or to
forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by such Lender or the
Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such
Lender or (as the case may be) the Agent at any time and from time to time
and as often as the occasion therefor may arise, pay to such Lender or the
Agent, to the extent permitted by law, such additional amounts as will be
sufficient to compensate such Lender or the Agent for such additional cost,
reduction, payment or foregone interest or other sum.
30
<PAGE>
Section 4.6. Capital Adequacy. If any present or future law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) or the interpretation thereof by a court or
governmental authority with appropriate jurisdiction affects the amount of
capital required or expected to be maintained by banks or bank holding
companies and any Lender or the Agent determines that the amount of capital
required to be maintained by it is increased by or based upon the existence
of the Loans made or deemed to be made pursuant hereto, then such Lender or
the Agent may notify the Borrower of such fact, and the Borrower shall pay to
such Lender or the Agent from time to time on demand, as an additional fee
payable hereunder, such amount as such Lender or the Agent shall determine in
good faith and certify in a notice to the Borrower to be an amount that will
adequately compensate such Lender or the Agent in light of these
circumstances for its increased costs of maintaining such capital. Each
Lender and the Agent shall allocate such cost increases among its customers
in good faith and on an equitable basis.
Section 4.7. Certificate. A certificate setting forth any additional
amounts payable pursuant to Sections 4.5 or 4.6 and a brief explanation of
such amounts which are due, submitted by any Lender or the Agent to the
Borrower, shall be prima facie evidence that such amounts are due and owing.
Section 4.8. Indemnity. In addition to the other provisions of this
Agreement regarding any such matters, the Borrower agrees to indemnify each
Lender and to hold each Lender harmless from and against any loss, cost or
reasonable expense (including loss of anticipated profits) that such Lender
may sustain or incur as a consequence of (a) a default by the Borrower in
payment of the principal amount of or any interest on any Eurodollar Rate
Loans as and when due and payable, including any such loss or expense caused
by Borrower's breach or other default and arising from interest or fees
payable by such Lender to lenders of funds obtained by it in order to
maintain its Eurodollar Rate Loans, (b) a default by the Borrower in making a
borrowing or conversion after the Borrower has given (or is deemed to have
given) a Loan Request or a Conversion Request, and (c) the making of any
payment of a Eurodollar Rate Loan or the making of any conversion of a
Eurodollar Rate Loan to a Base Rate Loan on a day that is not the last day of
the applicable Interest Period with respect thereto, including interest or
fees payable by such Lender to lenders of funds obtained by it in order to
maintain any such Eurodollar Rate Loan.
Section 4.9. Interest on Overdue Amounts. Overdue principal and (to the
extent permitted by applicable law) interest on the Loans and all other
overdue amounts payable hereunder or under any of the other Loan Documents
shall bear interest compounded monthly and payable on demand at a rate per
annum equal to four percent (4%) above the Base Rate until such amount shall
be paid in full (after as well as before judgment). In addition, the
Borrower shall pay to the Agent a late charge equal to three percent (3%) of
any amount of principal and/or interest and/or charges on the Loans which is
not paid within ten (10) days of the date when due.
31
<PAGE>
Section 4.10. Inability to Determine Eurodollar Rate. In the event,
prior to the commencement of any Interest Period relating to any Eurodollar
Rate Loan, the Agent shall determine that adequate and reasonable methods do
not exist for ascertaining the Eurodollar Rate that would otherwise determine
the rate of interest to be applicable to any Eurodollar Rate Loan during any
Interest Period, the Agent shall forthwith give notice of such determination
(which shall be conclusive and binding on the Borrower) to the Borrower. In
such event (a) any Loan Request with respect to Eurodollar Rate Loans shall
be automatically withdrawn and shall be deemed a request for Base Rate Loans,
(b) each Eurodollar Rate Loan will automatically, on the last day of the then
current Interest Period thereof, become a Base Rate Loan, and (c) the
obligations of the Lenders to make Eurodollar Rate Loans shall be suspended
until the Agent determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Agent shall so notify the Borrower.
Section 4.11. Illegality. Notwithstanding any other provisions herein,
if any present or future law, regulation, treaty or directive or in the
interpretation or application thereof shall make it unlawful for any Lender
to make or maintain Eurodollar Rate Loans, such Lender shall forthwith give
notice of such circumstances to the Borrower and thereupon (a) the Commitment
of such Lender to make Eurodollar Rate Loans or convert Loans of another Type
to Eurodollar Rate Loans shall forthwith be suspended and (b) the Eurodollar
Rate Loans then outstanding shall be converted automatically to Base Rate
Loans on the last day of each Interest Period applicable to such Eurodollar
Rate Loans or within such earlier period as may be required by law. The
Borrower hereby agrees promptly to pay to the Agent for the account of such
Lender, upon demand, any additional amounts necessary to compensate such
Lender for any reasonable costs incurred by such Lender in making any
conversion in accordance with this Section 4.11, including any interest or
fees payable by such Lender to lenders of funds obtained by it in order to
make or maintain its Eurodollar Rate Loans hereunder.
Section 4.12. Replacement of Lenders. If any of the Lenders shall make a
notice or demand upon the Borrower pursuant to Section 4.5, Section 4.6, or
Section 4.11 based on circumstances or laws which are not generally
applicable to the Lenders organized under the laws of the United States or
any State thereof, the Borrower shall have the right to replace such Lender
with an Eligible Assignee selected by the Borrower and approved by the Agent.
In such event the assignment shall take place on a date set by the Agent at
which time the assigning Lender and the Eligible Assignee shall enter into an
Assignment and Acceptance as contemplated by Section 18.1 (and clause (d)
thereof shall not be applicable) and the assigning Lender shall receive from
the Eligible Assignee or the Borrower a sum equal to the outstanding
principal amount of the Loans owed to the assigning Lender together with
accrued interest thereon plus the accrued commitment fee under Section 4.2
allocated to the assigning Lender.
Section 4.13. U.S. Tax Certificates. Each Lender that is organized under
the laws of any jurisdiction other than the United States of America or any
state or other political subdivision thereof shall deliver to the Agent for
transmission to the Borrower, on the date it becomes a
32
<PAGE>
Lender, and at such other times as may be necessary in the determination of
the Borrower or the Agent (each in the reasonable exercise of its
discretion), such certificates, documents or other evidence, properly
completed and duly executed by such Lender (including Internal Revenue
Service Form 1001 or Form 4224 or any other certificate or statement of
exemption required by Treasury Regulations Section 1.1441-4(a) or Section
1.1441-6(c) or any successor thereto) to establish that such Lender is not
subject to deduction or withholding of United States federal income tax under
Section 1441 or 1442 of the Internal Revenue Code or otherwise (or under any
comparable provisions of any successor statute) with respect to any payments
to such Lender of principal, interest, fees or other amounts payable under
any of the Loan Documents.
Section 5. COLLATERAL SECURITY; NO LIMITATION ON RECOURSE.
Section 5.1. Collateral Security. The Obligations shall be secured by
(i) a perfected first priority lien and security interest to be held by the
Agent (subject only to Permitted Liens) in the Mortgaged Properties, pursuant
to the terms of the Security Documents, (ii) a perfected first priority lien
and security interest to be held by the Agent in the Leases and rents
pursuant to the Assignments of Leases and Rents, (iii) a first priority
pledge of any pledged bonds purchased with the proceeds of Drawings under any
IRB Letter of Credit pursuant to the Pledge Agreements, and (iv) the
Guaranties.
Section 5.2. No Limitation on Recourse. Notwithstanding the foregoing
Collateral, the Obligations are full recourse obligations of the Borrower
(with recourse to its partners limited to the extent provided in Section 28)
and, to the extent provided in the applicable Guaranty, of the Guarantors,
and all of their respective Real Estate Assets and other properties shall be
available for the indefeasible payment in full in cash and performance of the
Obligations.
Section 5.3. Additional Properties.
(a) Additional Real Estate Assets owned by the Borrower or by a
Guarantor Subsidiary may become Mortgaged Properties with the approval of the
Lead Lenders provided that such Real Estate Assets satisfy the conditions set
forth in Section 5.4. In the event that the Lead Lenders grant such approval
and all of the conditions set forth in Section 5.4 are satisfied, the Agent
shall notify the Borrower and within ten (10) days thereafter the Borrower
and the Company shall execute and deliver an Indemnity Agreement and the
Mortgagor shall execute and deliver to the Agent a Security Deed, an
Assignment of Rents and Leases and UCC-1 Financing Statements, which Security
Documents shall be in substantially the form of the Security Documents
executed and delivered herewith with such changes as the Agent may deem
desirable to address the laws of the State where the Additional Property is
located or the factual circumstances of the Additional Property. Such
Additional Properties shall be deemed to be Mortgaged Properties upon the
recording and filing of such Security Documents and the Agent's receipt of
satisfactory evidence thereof.
33
<PAGE>
(b) The Lead Lenders hereby approve the Real Estate Assets described on
Schedule 5.3(b) which Borrower agrees to add as Mortgaged Properties
hereunder on or before December 10, 1997. Upon satisfaction of the conditions
set forth in Section 5.4, the Agent shall revise Schedule 1.1 to include such
Additional Properties.
(c) The Agent and the Lead Lenders shall use their best efforts to
complete their review of the documents submitted with respect to each
Additional Property and notify the Borrower as to whether the conditions in
Section 5.4 are satisfied within ten (10) Business Days after receipt of the
last of the items required pursuant to Section 5.4.
Section 5.4. Conditions to Approval of Additional Properties. Prior to
acceptance of any Real Estate Asset to become an Additional Property pursuant
to Section 5.3, such property must satisfy the following conditions, which
may be modified or waived only by the written agreement of the Requisite
Lenders:
(a) If the Additional Property is not owned by the Borrower or an
existing Guarantor Subsidiary, but is owned by a Related Company which is at
least 99% owned by Borrower, such Related Company must become a Guarantor
Subsidiary by delivery to the Agent the following, all in form and substance
satisfactory to the Agent: (i) a Guaranty in substantially the form of the
Guaranty executed and delivered by the Guarantor Subsidiaries prior to the
Effective Date and (ii) good standing certificates, general partner
certificates, secretary certificates, opinions of counsel and such other
documents as may be reasonably requested by the Agent.
(b) An Appraisal of the Additional Property ordered by the Agent and
paid for by the Borrower shall have been approved by the Lead Lenders.
(c) The Agent shall have received all of the items relating to the
Additional Property described in Section 10.8, Section 10.9, Section 10.10,
Section 10.12, Section 10.13, Section 10.14, Section 10.16 and Section 10.18
and such items shall have been approved by the Agent or the Lead Lenders as
required by such Sections.
(d) The Agent shall have received a Certificate executed on behalf of
the Borrower containing the representations and warranties with respect to
the Additional Property as are set forth in Section 6.18 and Section 6.22, to
which there shall be attached a current rent roll for the Additional Property
which shall be deemed to supplement and become a part of Schedule 6.22(l)
hereto.
(e) The Borrower shall have requested estoppel certificates in form
reasonably satisfactory to the Agent from the tenants under all Leases of the
Additional Property, shall have used its best efforts to obtain all such
estoppel certificates and shall have received such estoppel certificates as
the Lead Lenders may, in their discretion, require, and all estoppel
certificates received shall be satisfactory to the Lead Lenders.
34
<PAGE>
(f) The Agent shall have received updated certificates and other items
relating to the Borrower, the Company and the applicable Guarantor Subsidiary
as described in Section 10.2, Section 10.3 and Section 10.4 and a favorable
opinion addressed to the Lenders and the Agent, in form and substance
satisfactory to the Lenders and the Agent as to the matters described on
Exhibit E relating to the Loan Documents executed by Borrower and/or the
Mortgagor with respect to the Additional Property and relating to the laws of
the state where the Additional Property is located.
Section 5.5. Release of Mortgaged Properties. The Borrower may request
that the Agent release any Mortgaged Property from the lien of the Security
Documents and the Agent shall approve any such request provided that there is
then no continuing Default or Event of Default under this Agreement and the
requested release will not result in any Default or Event of Default under
this Agreement and the Borrower delivers to the Agent a pro-forma Compliance
Certificate reasonably satisfactory to the Agent demonstrating that the
requested release will not result in a violation of any of the covenants in
Section 9. The Borrower may request releases of a portion of a Mortgaged
Property consisting of undeveloped land to be developed by Borrower or sold
provided that in addition to the requirements set forth above, the Borrower
shall also submit such additional information as may be reasonably requested
by the Agent including, without limitation, (i) an updated survey and
endorsements to the Title Policy; (ii) an updated Appraisal of the remaining
portion of the Mortgaged Property and (iii) evidence that the division of the
Mortgaged Property pursuant to the requested release will not result in
violation of any zoning ordinance or other applicable laws and ordinances. If
the Borrower shall request the release of any Mortgaged Property which is
adjacent to any other Mortgaged Property which is not to be simultaneously
released, the Agent may require the establishment of appropriate easements
and maintenance agreements satisfactory to the Agent relating to any shared
utilities, drainage facilities, access drives or walks, parking areas or
other shared facilities.
Section 6. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agent and each of the Lenders as follows, and to the extent
that the following representations and warranties relate to the Company, the
Company represents and warrants to the Agent and each of the Lenders as
follows:
35
<PAGE>
Section 6.1. Authority; Etc.
(a) Organization; Good Standing. The Company (i) is a Maryland real estate
investment trust duly organized, validly existing and in good standing under the
laws of the State of Maryland, (ii) has all requisite power to own its
properties and conduct its business as now conducted and as presently
contemplated, and (iii) to the extent required by law is in good standing as a
foreign entity and is duly authorized to do business in the States in which the
Mortgaged Properties are located and in each other jurisdiction where such
qualification is necessary except where a failure to be so qualified in such
other jurisdiction would not have a Materially Adverse Effect. The Borrower is a
Delaware limited partnership, and each Guarantor Subsidiary is a limited
partnership or a limited liability company formed under the laws of Illinois,
Tennessee or Delaware, and each such entity is duly organized, validly existing
and in good standing under the laws of the State of its formation, has all
requisite power to own its properties and conduct its business as presently
contemplated and is duly authorized to do business in the States in which the
Mortgaged Properties owned by it are located and in each other jurisdiction
where such qualification is necessary.
(b) Authorization. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower is to become a
party and the transactions contemplated hereby and thereby (i) are within the
authority of the Borrower, (ii) have been duly authorized by all necessary
proceedings on the part of the Borrower and the Company, (iii) do not conflict
with or result in any breach or contravention of any provision of law, statute,
rule or regulation to which the Borrower or the Company is subject or any
judgment, order, writ, injunction, license or permit applicable to the Borrower
or the Company and (iv) do not conflict with any provision of the Borrower's
partnership agreement or Company's declaration of trust, charter documents or
bylaws, or any material agreement or other material instrument binding upon, the
Borrower or the Company or to which any of their properties are subject. The
execution, delivery and performance of the Guaranty and the other Loan Documents
to which any Guarantor is to become a party and the transactions contemplated
hereby and thereby (i) are within the authority of such Guarantor, (ii) have
been duly authorized by all necessary proceedings on the part of such Guarantor,
(iii) do not conflict with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which such Guarantor is subject
or any judgment, order, writ, injunction, license or permit applicable to such
Guarantor and (iv) do not conflict with any provision of such Guarantor's
charter documents or bylaws, partnership agreement, limited liability company
agreement, declaration of trust, or any agreement or other instrument binding
upon such Guarantor or to which any of such Guarantor's properties are subject.
(c) Enforceability. The execution and delivery of this Agreement and the
other Loan Documents to which the Borrower is or is to become a party will
result in valid and legally binding obligations of the Borrower enforceable
against it in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy,
36
<PAGE>
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefor may
be brought. The execution and delivery of this Agreement and the Indemnity
Agreement will result in valid and legally binding obligations of the Company
enforceable against it in accordance with the respective terms and provisions
hereof and thereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefor may
be brought. The execution and delivery of the Guaranty and the other Loan
Documents to which any Guarantor is or is to become a party will result in valid
and legally binding obligations of such Guarantor enforceable against such
Guarantor in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
Section 6.2. Governmental Approvals. The execution, delivery and
performance by the Borrower and each Guarantor of this Agreement and the
other Loan Documents to which the Borrower or such Guarantor is or is to
become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of, or filing with, any governmental agency
or authority other than those already obtained and the filing of the Security
Documents in the appropriate records office with respect thereto.
Section 6.3. Title to Properties.
(a) Based on the Title Policies, the Borrower or one of the Guarantor
Subsidiaries holds good and clear record and marketable fee simple title to the
Mortgaged Properties, subject to no Liens or encumbrances except for the
Permitted Liens.
(b) Except as indicated on Schedule 6.3 hereto, the Borrower or the Related
Companies own all of the properties reflected in the Closing Balance Sheet of
the Company, subject to no Liens except Permitted Liens.
Section 6.4. Financial Statements. The following financial statements
have been furnished to each of the Lenders.
(a) The Prospectus Financial Statements. Such Prospectus Financial
Statements have been prepared in accordance with Generally Accepted Accounting
Principles and fairly present the financial condition of the Borrower and the
Company as at the close of business on
37
<PAGE>
the Effective Date and the results of operations for the applicable period.
There are no direct or contingent liabilities of the Borrower or the Company as
of such date involving material amounts, known to the officers of the Company
not disclosed in the Closing Balance Sheet of the Company contained in the
Prospectus Financial Statements and the related notes thereto. There are no
material differences between the Closing Balance Sheet and balance sheet of the
Borrower and its subsidiaries prepared on a consolidated basis in accordance
with Generally Accepted Accounting Principles prepared on the same basis and as
of the same date as the Closing Balance Sheet, other than the line item for the
minority interests in the Borrower.
(b) With respect to each Mortgaged Property, a statement prepared by the
Borrower of the rental and other income of the Borrower from the operation of
such Mortgaged Property for each of the previous four (4) fiscal quarters, and
all operating and other costs and expenses incurred by the Borrower in
connection with such Mortgaged Property during such fiscal quarters, certified
by a Responsible Officer of the Company as fairly presenting the results of
operation with respect to such Mortgaged Property for such fiscal period.
Section 6.5. No Material Changes, Etc. The Formation Transactions and
all other events which are the basis for the assumptions used in preparation
of the Closing Balance Sheet have happened or will happen on the Effective
Date. Since the time of preparation of the Closing Balance Sheet, there has
occurred no material adverse change in the financial condition or assets or
business of the Borrower as shown on or reflected on the Closing Balance
Sheet, nor has there been any material increase in the liabilities of the
Borrower or the Company in excess of those shown thereon other than changes
in the ordinary course of business that have not had any Material Adverse
Effect either individually or in the aggregate.
Section 6.6. Franchises, Patents, Copyrights, Etc. The Borrower
possesses all franchises, patents, copyrights, trademarks, trade names,
licenses and permits, and rights in respect of the foregoing, adequate for
the conduct of its business substantially as now conducted without known
conflict with any rights of others, including all Permits except to the
extent the Borrower's failure to possess the same does not have a Material
Adverse Effect.
Section 6.7. Litigation. Except as listed and described on Schedule 6.7
hereto, there are no actions, suits, proceedings or investigations of any
kind pending or, to Borrower's knowledge, threatened against the Borrower,
the Company, any Guarantor or any of the Related Companies before any court,
tribunal or administrative agency or board that, if adversely determined, are
reasonably expected to, either in any case or in the aggregate, have a
Material Adverse Effect or materially impair the right of the Borrower, the
Company, any Guarantor or any of the Related Companies to carry on business
substantially as now conducted by it, or which question the validity of this
Agreement or any of the other Loan Documents, any action taken or to be taken
pursuant hereto or thereto, or any Lien or security interest created or
intended to be created pursuant hereto or thereto, or which will materially
adversely affect the ability of the Borrower
38
<PAGE>
or any Guarantor to pay and perform the Obligations in the manner contemplated
by this Agreement and the other Loan Documents.
Section 6.8. No Materially Adverse Contracts, Etc. The Borrower is not
subject to any charter, trust or other legal restriction, or any judgment,
decree, order, rule or regulation that has or is expected in the future, in
the judgment of the Company's officers, to have a Material Adverse Effect.
The Borrower is not a party to any contract or agreement that has or is
expected, in the judgment of the Company's officers, to have any Material
Adverse Effect. The Company is not subject to any charter, trust or other
legal restriction, or any judgment, decree, order, rule or regulation that
has or is expected in the future, in the judgment of the Company's officers,
to have a Material Adverse Effect. The Company is not a party to any contract
or agreement that has or is expected, in the judgment of the Company's
officers, to have any Material Adverse Effect.
Section 6.9. Compliance With Other Instruments, Laws, Etc. Neither the
Borrower nor the Company is in violation of any provision of the Borrower's
partnership agreement, the partnership agreement of any of the Guarantor
Subsidiaries or of the Company's declaration of trust, by-laws, or any
agreement or instrument to which it may be subject or by which the Borrower
or any of its properties may be bound or any decree, order, judgment,
statute, license, rule or regulation, in any of the foregoing cases in a
manner that could result in the imposition of substantial penalties or have a
Material Adverse Effect.
Section 6.10. Tax Status. Each of the Guarantor Subsidiaries (a) has
made or filed all federal and state income and all other tax returns, reports
and declarations required by any jurisdiction to which it is subject, and (b)
has paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority
of any jurisdiction, and the officers of the Company know of no basis for any
such claim.
Section 6.11. Event of Default. No Default or Event of Default has
occurred and is continuing.
Section 6.12. Investment Company Act. The Borrower is not an "investment
company", or an "affiliated company" or a "principal underwriter" of an
"investment company", as such terms are defined in the Investment Company Act
of 1940.The Company is not an "investment company", or an "affiliated
company" or a "principal underwriter" of an "investment company", as such
terms are defined in the Investment Company Act of 1940.
Section 6.13. Absence of Financing Statements, Etc. There is no
financing statement, security agreement, chattel mortgage, real estate
mortgage, equipment lease, financing lease, option, encumbrance or other
document existing, filed or recorded with any filing records, registry, or
other public office, that purports to cover, affect or give notice of any
present or possible future
39
<PAGE>
Lien or encumbrance on, or security interest in, any Collateral, except those in
favor of the Agent or Permitted Liens.
Section 6.14. Setoff, Etc. The Collateral and the Agent's rights with
respect to the Collateral are not subject to any setoff, claims, withholdings
or other defenses. Either the Borrower or a Guarantor is the owner of the
Collateral free from any lien, security interest, encumbrance and any other
claim or demand, except for the Permitted Liens.
Section 6.15. Certain Transactions. Except as disclosed in the Equity
Prospectus, none of the officers or employees of the Borrower, the Company or
any Guarantor are presently a party to any transaction with the Borrower, the
Company or any Guarantor (other than for services as employees, officers and
trustees), including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any
officer, trustee or such employee or, to the knowledge of the Borrower and
the Company, any corporation, partnership, trust or other entity in which any
officer, trustee or any such employee or natural Person related to such
officer, trustee or employee or other Person in which such officer, trustee
or employee has a direct or indirect beneficial interest has a substantial
interest or is an officer or trustee.
Section 6.16. Benefit Plans: Multiemployer Plans: Guaranteed Pension
Plans. As of the date hereof as to any Employee Benefit Plan, Multiemployer
Plan or Guaranteed Pension Plan, neither the Borrower nor any ERISA Affiliate
maintains or contributes to any Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan. To the extent that Borrower, the Company or any
ERISA Affiliate hereafter maintains or contributes to any Employee Benefit
Plan or Guaranteed Pension Plan, it shall at all times do so in compliance
with Section 7.18 hereof.
Section 6.17. Regulations U and X. No portion of any Loan is to be used
for the purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
Section 6.18. Environmental Compliance. The Borrower has delivered to
the Agent the Environmental Reports with respect to the Mortgaged Properties
which are listed on Schedule 6.18. Except as may be set forth in the
Environmental Reports with respect to the Mortgaged Properties, or as
described on Schedule 6.18 or in the Equity Prospectus with respect to the
other Real Estate Assets, Borrower makes the following representations and
warranties:
(a) To the best of Borrower's knowledge, none of the Borrower, any
Guarantor, any of the Related Companies or any operator of the Real Estate or
any portion thereof, or any operations thereon is in violation, or alleged
material violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without limitation,
those arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive
40
<PAGE>
Environmental Response, Compensation and Liability Act of 1980 as amended
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986 ("SARA"),
the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances
Control Act, or any state or local statute, regulation, ordinance, order or
decree relating to health, safety or the environment, including, without
limitation, the environmental statutes, regulations, orders and decrees of the
States in which any of the Real Estate may be located (hereinafter collectively
referred to as the "Environmental Laws"), which violation either involves the
Mortgaged Properties or would have a Material Adverse Effect.
(b) None of the Borrower, Prime, the Guarantors or the Related Companies
has received written notice from any third party including, without
limitation any federal, state or local governmental authority with respect to
any of the Mortgaged Properties, or with respect to any other Real Estate if
the same would have a Material Adverse Effect, (i) that it has been
identified by the United States Environmental Protection Agency ("EPA") as a
potentially responsible party under CERCLA with respect to a site listed on
the National Priorities List, 40 C.F.R. Part 300 Appendix B (1986); (ii) that
any hazardous waste, as defined by 42 U.S.C. Section 9601(5), any hazardous
substances as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) or any toxic substances,
oil or hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("Hazardous Materials") which it has generated,
transported or disposed of have been found at any site at which a federal,
state or local agency or other third party has conducted or has ordered that
the Borrower, any Guarantor or any of the Related Companies conduct a
remedial investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative
proceeding (in each case, contingent or otherwise) arising out of any third
party's incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Materials.
(c) (i) To the best of Borrower's knowledge no portion of the Real Estate
has been used for the handling, processing, storage or disposal of Hazardous
Materials except in material compliance with applicable Environmental Laws; and
no underground tank or other underground storage receptacle for Hazardous
Materials is located on any portion of the Real Estate except in material
compliance with applicable Environmental Laws; (ii) to the best of Borrower's
knowledge, in the course of any activities conducted by the Borrower, any
Guarantor, any of the Related Companies or the operators of any Real Estate, any
ground or space tenants on any Real Estate, no Hazardous Materials have been
generated or are being used on the Real Estate except in material compliance
with applicable Environmental Laws, which in the case of Real Estate other than
the Mortgaged Properties would have a Material Adverse Effect; (iii) there has
been no present, or to the best of Borrower's knowledge past, releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, disposing or dumping (a "Release") or threatened Release of Hazardous
Materials on, upon, into or from the Mortgaged Properties or the other Real
Estate, which Release in the case of Real Estate other
41
<PAGE>
than the Mortgaged Properties would have a Material Adverse Effect and; (iv)
to the best of Borrower's knowledge, there have been no Releases on, upon,
from or into any real property in the vicinity of any of the Real Estate
which, through soil or groundwater contamination, may have come to be located
on, and which would have a Material Adverse Effect; and (v) notwithstanding
that any representation contained herein may be limited to the knowledge of
the Borrower, any such limitation shall not affect the covenants specified in
Section 7.10 or elsewhere in this Agreement.
Section 6.19. Subsidiaries and Affiliates. The Borrower has no
Subsidiaries except for the Related Companies listed on Schedule 1.3 and does
not have an ownership interest in any entity whose financial statements are
not consolidated with the Borrower's except for the Permitted Joint Ventures
listed on Schedule 1.3. The Company is not a partner in any partnership other
than Borrower and certain of the Related Companies listed on Schedule 1.3
which are limited partnerships in which the Company has a one tenth percent
(0.1%) limited partnership interest, has no Investments in any Person other
than the Borrower and such limited partnerships and is not a member of any
limited liability company. The Company owns no material assets other than its
partnership interest in Borrower and the limited partnership interests
described in this Section 6.19.
Section 6.20. Major Leases. The Borrower has delivered to the Agent
complete copies of the Major Leases and of the other Leases requested by the
Agent.
Section 6.21. Loan Documents. All of the representations and warranties
of the Borrower or any Guarantor made in the other Loan Documents or any
document or instrument delivered or to be delivered to the Agent or the
Lenders pursuant to or in connection with any of such Loan Documents are true
and correct in all material respects.
Section 6.22. Mortgaged Properties. In this Section 6.22 the phrase "to
the Borrower's knowledge" shall mean the actual knowledge of the officers and
employees of the Company or of Prime who have had significant responsibility
for the operation, management and leasing of the applicable Mortgaged
Property. The Borrower makes the following additional representations and
warranties concerning the Mortgaged Properties:
(a) Off-Site Utilities. All water, sewer, electric, gas, telephone and
other utilities are installed to the property lines of the Mortgaged Properties
and, except in the case of drainage facilities, are connected to the Buildings
located thereon and to the Borrower's knowledge are adequate to service the
Buildings in full compliance with applicable law; and to the Borrower's
knowledge the Buildings are properly and legally connected directly to public
water and sewer systems. No easements over land of others not yet obtained are
required for any such utilities, and no drainage of surface or other water
across land of others is required except as disclosed in the Surveys.
42
<PAGE>
(b) Surveys, Access; Etc. Since the date of the most recent Survey
delivered to the Agent with respect to each Mortgaged Property, there has been
no construction (except interior renovations and improvements) of additional
Buildings or additions to Buildings on such Mortgaged Property, and to the
Borrower's knowledge no takings by eminent domain affecting such Mortgaged
Property or other changes which may have caused such Survey to be no longer
accurate.
(c) Independent Building. The Buildings on each Mortgaged Property (except
as described in documents referred in the Title Policy for the West Wacker Drive
Property with respect to walkways and other common areas shared by such property
with other buildings) are fully independent from any other real estate in all
respects including, without limitation, in respect of structural integrity,
heating, ventilating and air conditioning, plumbing, mechanical and other
operating and mechanical systems, and electrical, sanitation and water systems,
all of which are connected directly to off-site utilities located in public
streets or ways. Each Mortgaged Property consists of one or more lots which are
not assessed for purposes of real estate tax assessment and payment jointly with
any land which is not a part of such Mortgaged Property. The Buildings, all
Building Service Equipment and all paved or landscaped areas related to or used
in connection with the Buildings are located wholly within the perimeter lines
of the lot or lots on which the Mortgaged Properties are located except as
disclosed in the Surveys.
(d) Condition of Building; No Asbestos. Except as set forth in the
engineering reports provided to the Agent and listed on Schedule 6.22(d), to the
Borrower's knowledge there are no material defects in the roof, foundation,
structural elements and masonry walls of the Buildings or their heating,
ventilating and air conditioning, electrical, sprinkler, plumbing or other
mechanical systems or their Building Service Equipment; the Buildings are fully
sprinkled; and no friable asbestos is located in or on the Buildings except as
may be disclosed in the Environmental Reports.
(e) Building Compliance with Law; Permits. The Buildings as presently
constructed and used do not, to the Borrower's knowledge, violate any applicable
federal or state law or governmental regulation, or any local ordinance, order
or regulation, including but not limited to laws, regulations, or ordinances
relating to zoning, building use and occupancy, subdivision control, fire
protection, health and sanitation. To the Borrower's knowledge, all Permits
required for the operation and maintenance of the Mortgaged Properties,
including without limitation, building permits, curb-cut permits, water
connection permits, sewer extension or connection permits and other permits
relating to the use of utilities, and permits required under the Federal Clean
Air Act, as amended, the Federal Clean Water Act, as amended (including, without
limitation a so-called Section 404 Permit"), and by state law or regulations
consistent with the requirements of said Acts, have been validly issued by the
appropriate governmental Persons and are now in full force and effect.
43
<PAGE>
(f) No Required Real Property Consents, Permits, Etc. The Borrower has
received no notices of, nor has any knowledge of, any Permits, utility
installations and connections (including, without limitation, drainage
facilities, curb cuts and street openings), or private consents required for the
maintenance, operation, servicing and use of the Mortgaged Properties for their
current use which have not been granted, effected, or performed and completed
(as the case may be) or any fees or charges therefor which have not been fully
paid provided, however, that certain Permits may require periodic renewals.
(g) Suits; Judgments. To the Borrower's knowledge, there are no outstanding
notices, suits, orders, decrees or judgments relating to zoning, building use
and occupancy, subdivision control, fire protection, health, sanitation, or
other violations affecting, against, or with respect to, the Mortgaged
Properties or any part thereof, other than suits, orders, decrees or judgments
against tenants or former tenants with respect to defaults by such tenants under
their Leases or evicting or otherwise obtaining possession of the premises
occupied by such tenants.
(h) Insurance. None of the Guarantors, the Company or the Borrower has
received any written notices from any insurer or its agent requiring performance
of any material work with respect to the Mortgaged Properties or canceling or
threatening to cancel any policy of insurance.
(i) Real Property Taxes; Special Assessments. Based on the Title Policies,
there are no unpaid or outstanding real estate or other taxes or assessments on
or against the Mortgaged Properties or any part thereof which are payable by
Borrower or tenants (except only real estate taxes and assessments not yet due
and payable). Except as disclosed on the Title Policies, and to the Borrower's
knowledge there are no betterment assessments or other special assessments
presently pending with respect to any portion of the Mortgaged Properties, and
Borrower has received no notice of any such special assessment being
contemplated.
(j) Historic Status. To the Borrower's knowledge, the Buildings are not
historic structures or landmarks, and the Mortgaged Properties are not within
any historic district pursuant to any federal, state or local law or
governmental regulation.
(k) Domain. To the Borrower's knowledge, there are no pending eminent
domain proceedings against the Mortgaged Properties or any part thereof, and no
such proceedings are presently threatened or contemplated by any taking
authority.
(l) Leases. A rent roll with respect to all Leases of any portion of the
Mortgaged Properties (current as of the date set forth thereon) is accurate and
completely set forth in Schedule 6.22(1) as the same shall be supplemented each
fiscal quarter by a certificate signed by an authorized officer of Borrower. The
Leases reflected on such rent roll constitute the sole and complete agreements
and understandings relating to leasing or licensing of space in the Buildings or
otherwise at the Mortgaged Properties. The Borrower has delivered to the Agent a
44
<PAGE>
true and complete copy of all Major Leases. There are no occupancies, rights,
privileges or licenses in or to the Buildings or any other part of the Mortgaged
Properties other than pursuant to the Leases reflected on the rent roll set
forth in Schedule 6. 22(1). Except as set forth in Schedule 6.22(1) the Leases
reflected on the Schedule 6.22(1) rent roll are in full force and effect, in
accordance with their respective terms, without any payment default or any other
material default thereunder, nor to the Borrower's knowledge, are there any
defenses, counterclaims, offsets, concessions or rebates available to any tenant
thereunder, and the Mortgagor has not given or made, or received, any notice of
default, or any material claim, which remains uncured or unsatisfied, with
respect to any of the Major Leases and, to the best of the Borrower's knowledge
there is no basis for any such claim or notice of default by any tenant. The
Schedule 6.22(1) rent roll accurately and completely sets forth all rents
payable by tenants, no tenant having paid more than one month's rent in advance.
All tenant improvements or work to be done, furnished or paid for by the
landlord, or credited or allowed to a tenant, for, or in connection with, the
Buildings pursuant to any Lease has been completed and paid for, or provided for
in a manner satisfactory to the Agent, or will be paid for by the Borrower in
the ordinary course of the Borrower's business. No leasing, brokerage or like
commissions, fees or payments are due from the Borrower in respect of the
Leases, or will be paid for by the Borrower in the ordinary course of the
Borrower's business. Except as set forth on the Schedule 6.22(1) rent roll, all
tenants under all Leases are in occupancy and operating the premises covered by
such Leases within the permitted uses under such Leases.
(m) Service Agreements. Except as listed on Schedule 6.22 (m), there are no
Service Agreements relating to the operation and maintenance of the Mortgaged
Properties or any part thereof except Service Agreements which may be terminated
at the owner's option upon not more than 60 days advance notice. To the best of
Borrower's knowledge, no default notices have been given by any party to any
Service Agreement.
(n) Other Material Real Property Agreements; No Options. Except as listed
on Schedule 6.22(n), there are no material agreements pertaining to the
Mortgaged Properties or the operation or maintenance thereof other than as
described in this Agreement (including the Schedules hereto) or otherwise
disclosed in writing to the Agent by the Borrower, and no person or entity has
any right or option to acquire any of the Mortgaged Properties or any portion
thereof or interest therein or lease any portion thereof or additional portion
thereof or provide services thereat.
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower covenants
and agrees as follows, and to the extent that the following covenants relate
to the Company, the Company covenants and agrees as follows, so long as any
Loan, Note or Letter of Credit is outstanding or the Lenders have any
obligations to make Loans or issue Letters of Credit:
45
<PAGE>
Section 7.1. Punctual Payment. The Borrower will unconditionally duly
and punctually pay the principal and interest on the Loans and all other
amounts provided for in the Note, this Agreement, and the other Loan
Documents all in accordance with the terms of the Note, this Agreement and
the other Loan Documents.
Section 7.2. Maintenance of Office. Each of the Borrower and the Company
will maintain its chief executive office in Chicago, Illinois or at such
other place in the United States Of America as the Borrower or the Company
shall designate upon written notice to the Agent to be delivered within
fifteen (15) days of such change, where notices, presentations and demands to
or upon the Borrower or the Company in respect of the Loan Documents may be
given or made.
Section 7.3. Records and Accounts. Each of the Borrower and the Company
will keep true and accurate records and books of account in which full, true
and correct entries will be made in accordance with Generally Accepted
Accounting Principles.
Section 7.4. Financial Statements, Certificates and Information. The
Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety (90)
days after the end of each fiscal year of the Borrower, the audited balance
sheet of the Borrower and of the Company at the end of such year, and the
related audited statement of income, statement of changes in shareholders,
equity and statement of Funds From Operations and taxable income for such year,
each setting forth in comparative form the figures for the previous fiscal year
and all such statements to be in reasonable detail, prepared in accordance with
Generally Accepted Accounting Principles on a consolidated basis including the
Borrower, the Company and the Related Companies, and accompanied by an auditor's
report prepared without qualification by Ernst & Young LLP or by another
independent certified public accountant reasonably acceptable to the Agent;
(b) as soon as practicable, but in any event not later than forty-five (45)
days after the end of each fiscal quarter of the Borrower, copies of the
unaudited balance sheets of the Borrower as at the end of such quarter, and the
related unaudited statement of income, statement of changes in shareholders'
equity and statement of Funds From Operations and estimated taxable income for
the portion of the Borrower's fiscal year then elapsed, all in reasonable detail
and prepared in accordance with Generally Accepted Accounting Principles,
together with a certification by the principal financial or accounting officer
of the Company that the information contained in such financial statements
fairly presents the financial position of the Borrower and of the Company on the
date thereof (subject to year-end adjustments), provided, however, that such
information with respect to the quarter ended September 30, 1997 shall be
delivered by December 29, 1997;
46
<PAGE>
(c) as soon as practicable, but in any event not later than forty-five
(45) days after the end of each of the fiscal quarters of the Borrower,
copies of a statement of the Net Operating Income for such fiscal quarter for
each Mortgaged Property, and a consolidating statement of the Net Operating
Income for such fiscal quarter for all of the Mortgaged Properties, prepared
on a basis consistent with the statements furnished pursuant to Section 6.4
(b), and certified by a Responsible Officer of the Company;
(d) as soon as practicable, but in any event no later than forty-five (45)
days after the end of each fiscal quarter of the Borrower, the Borrower will
provide the Agent with , a rent roll for each of the Mortgaged Properties, and a
consolidated rent roll for all of the Mortgaged Properties, each dated as of the
end of such fiscal quarter in form reasonably satisfactory to the Agent;
(e) simultaneously with the delivery of the financial statements referred
to in subsections (a) and (b) above, a statement in the form of Exhibit C hereto
signed by a Responsible Officer of the Company and setting forth in reasonable
detail computations evidencing compliance with the covenants contained herein
and (if applicable) reconciliations to reflect changes in Generally Accepted
Accounting Principles since the Effective Date;
(f) as soon as practicable, but in any event not later than ninety (90)
days after the end of each fiscal year of the Company, copies of the Form 10-K
statement filed with the Securities and Exchange Commission ("SEC") for such
fiscal year, and as soon as practicable, but in any event not later than
forty-five (45) days after the end of each fiscal quarter, copies of the Form
10-Q statement filed with the SEC for such fiscal quarter, provided that in
either case if the SEC has granted an extension for the filing of such
statements (or if a later filing is permitted by rule of the SEC with respect to
the fiscal quarter ended September 30. 1997), Borrower shall deliver such
statements to the Agent simultaneously with the filing thereof with the SEC;
(g) promptly following the filing or mailing thereof, copies of all other
material of a financial nature filed with the SEC or sent to the shareholders of
the Company or to the limited partners of the Borrower and copies of all press
releases (except local press releases relating to specific properties) promptly
upon the issuance thereof;
(h) from time to time such other financial data and information (including
accountants' management letters) as the Agent may reasonably request;
Section 7.5. Notices.
(a) Defaults. The Borrower will promptly notify the Agent in writing of the
occurrence of any Default or Event of Default. If any Person shall give any
notice or take any other action in respect of a claimed default (whether or not
constituting a Default or an Event of Default under this Agreement) under any
note, evidence of Indebtedness, indenture or other
47
<PAGE>
obligation to which or with respect to which the Borrower, the Company, any
Guarantor or any of the Related Companies is a party or obligor, whether as
principal or surety, and if the principal amount thereof exceeds $1,000,000, and
such default would permit the holder of such note or obligation or other
evidence of Indebtedness to accelerate the maturity thereof, the Borrower shall
forthwith give written notice thereof to the Agent and each of the Lenders,
describing the notice or action and the nature of the claimed default.
(b) Environmental Events. The Borrower will promptly notify the Agent in
writing of any of the following events: (i) upon Borrower's obtaining knowledge
of any violation of any Environmental Law regarding a Mortgaged Property or any
Real Estate or Borrower's operations which violation could have a Material
Adverse Effect; (ii) upon Borrower's obtaining knowledge of any potential or
known Release, or threat of Release, of any Hazardous Materials at, from, or
into a Mortgaged Property or any Real Estate which it reports in writing or is
reportable by it in writing to any governmental authority and which is material
in amount or nature or which could materially affect the value of such Mortgaged
Property or which could have a Material Adverse Effect; (iii) upon Borrower's
receipt of any notice of violation of any Environmental Laws or of any Release
or threatened Release of Hazardous Materials, including a notice or claim of
liability or potential responsibility from any third party (including without
limitation any federal, state or local governmental officials) and including
notice of any formal inquiry, proceeding, demand, investigation or other action
with regard to (A) Borrower's or any Person's operation of a Mortgaged Property
or any Real Estate if the same would have a Material Adverse Effect, (3)
contamination on, from or into a Mortgaged Property or any Real Estate if the
same would have a Material Adverse Effect, or (C) investigation or remediation
of off-site locations at which Borrower or any of its predecessors are alleged
to have directly or indirectly disposed of Hazardous Materials; or (iv) upon
Borrower's obtaining knowledge that any expense or loss has been incurred by
such governmental authority in connection with the assessment, containment,
removal or remediation of any Hazardous Materials with respect to which
Borrower, Guarantor or any of the Related Companies may be liable or for which a
lien may be imposed on a Mortgaged Property.
(c) Notification of Liens or other Material Claims. The Borrower will,
immediately upon becoming aware thereof, notify the Agent in writing of any of
any Liens (except Permitted Liens) placed upon or attaching to any Mortgaged
Properties or of any other setoff, claims (including environmental claims),
withholdings or other defenses which could have a Material Adverse Effect.
(d) Notice of Litigation and Judgments. The Borrower will give notice to
the Agent in writing within fifteen (15) days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation and
proceedings affecting any of the Mortgaged Properties or affecting the Borrower,
the Company, any Guarantor or any of the Related Companies or to which the
Borrower, the Company, any Guarantor or any of the Related Companies is or is to
become a party involving an uninsured claim (or as to which the insurer
48
<PAGE>
reserves rights) against the Borrower, the Company, any Guarantor or any of the
Related Companies that at the time of giving of notice could reasonably be
expected to have a Materially Adverse Effect, and stating the nature and status
of such litigation or proceedings. The Borrower will give notice to the Agent,
in writing, in form and detail satisfactory to the Agent, within ten (10) days
of any final judgment not covered by insurance against the Borrower, the
Company, any Guarantor or any of the Related Companies in an amount in excess of
$500,000.
(e) Notice of Default under Major Leases. The Borrower will immediately
notify the Agent in writing of the occurrence of any failure of any of the Major
Tenants to materially comply with any of the material terms, covenants,
conditions or agreements under any of the Major Leases.
(f) Notice of Equity Prospectus Amendment. The Company will promptly notify
the Lenders of any further amendment to the Equity Prospectus, which notice
shall include a copy of any such amendment.
(g) Notice of Expected Receipt of Net Offering Proceeds. At least three (3)
Business Days prior to the date on which the Company or the Borrower expects to
receive Net Offering Proceeds, the Borrower or the Company, as applicable will
notify the Agent of the expected amount of Net Offering Proceeds and the
expected date of receipt thereof and shall immediately notify the Agent of any
changes in the information set forth in such notice.
Section 7.6. Existence; Maintenance of REIT Status; Maintenance of
Properties. The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Maryland trust
and its status as a self administered real estate investment trust under the
Code, the existence of Borrower as a Delaware limited partnership and the
existence of each Guarantor Subsidiary. The Borrower will do or cause to be
done all things necessary to preserve and keep in full force all of its
rights and franchises which in the judgment of the Borrower may be necessary
to properly and advantageously conduct the businesses being conducted by it,
the Company or any of the Related Companies. The Borrower (a) will cause all
of the properties used or useful in the conduct of the business of Borrower,
the Company or any of the Related Companies to be maintained and kept in good
condition, repair and working order, subject to ordinary wear and tear, and
supplied with all necessary equipment, (b) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Borrower may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times, and (c) will continue to engage
primarily in the businesses now conducted by it and in related businesses.
Section 7.7. Insurance. The Borrower will maintain insurance on the
Mortgaged Properties as required by the Security Deeds. With respect to other
properties and businesses of Borrower, the Guarantors and the Related
Companies, the Borrower will maintain or cause to be maintained insurance
with financially sound and reputable insurers against such casualties and
contingencies
49
<PAGE>
in amounts, containing such terms, in such forms and for such periods as may be
reasonable and prudent in the judgment of the Company's officers.
Section 7.8. Taxes. The Borrower will pay real estate taxes, other
taxes, assessments and other governmental charges against the Mortgaged
Properties before the same become delinquent, and will duly pay and
discharge, or cause to be paid and discharged, before the same shall become
overdue, all taxes, assessments and other governmental charges imposed upon
it and its other properties, sales and activities, or any part thereof, or
upon the income or profits therefrom, as well as all claims for labor,
materials, or supplies that if unpaid might by law become a lien or charge
upon any of its properties; provided that any such tax, assessment, charge,
levy or claim with respect to properties other than the Mortgaged Properties
need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower shall
have set aside on its books adequate reserves with respect thereto; and
provided further that the Borrower will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor. Promptly
after payment of real estate taxes, other taxes, assessments and other
governmental charges against the Mortgaged Properties, Borrower will provide
evidence of such payments to the Agent, in the form of receipted tax bills or
other form reasonably acceptable to the Agent. Notwithstanding anything
contained herein to the contrary, with respect to the Mortgaged Properties,
Borrower, after receipt of notice from the Agent (which notice may be given
by the Agent at any time after the occurrence of an Event of Default) , shall
deposit with Agent, on the first day of each month thereafter, a sum
determined by Agent to be sufficient to provide, in the aggregate, a fund
adequate to pay all real estate taxes, other taxes, assessments and other
governmental charges against the Mortgaged Properties at least ten (10) days
before the same becomes delinquent; and whenever the Agent determines sums
accumulated under such escrow to be insufficient to meet the obligations for
which such deposits were made, the Borrower shall pay, on the demand of the
Agent, any amount required to cover the deficiency therein.
Section 7.9. Inspection of Properties and Books; Confidential
Information. The Borrower shall permit the Lenders, through the Agent or any
of the Lenders' other designated representatives, to visit and inspect any of
the Mortgaged Properties, to examine the books of account of the Borrower,
the Company and the Related Companies (and to make copies thereof and
extracts therefrom) and to discuss the affairs, finances and accounts of the
Borrower with, and to be advised as to the same by, its officers, all at such
reasonable times and intervals as the Agent or any Lender may reasonably
request. Each Lender understands that in the course of its exercise of its
rights set forth herein, the Lender may obtain information relating to
Borrower or the Company or a Property which is of a confidential nature (the
"Confidential Information"). Each Lender agrees that it will not, at any
time, divulge, publish or disclose, or authorize or permit any other person
to divulge, publish or disclose, to any Person, any of the Confidential
Information, provided, however, that the Confidential Information may be
disclosed by any Lender (a) to its officers, attorneys, and accountants, (b)
to any regulator or other governmental
50
<PAGE>
agency with supervisory authority over the business of such Lender, (c) to any
other Person to the extent required by applicable law or regulation, and (d) to
the extent that such Confidential Information is otherwise publicly available
from sources other than such Lender.
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits.
The Borrower will comply in all material respects, the Company will comply in
all material respects and the Borrower will cause each Guarantor and all
Related Companies to comply in all material respects, with (a) all applicable
laws and regulations now or hereafter in effect wherever its business is
conducted, including all Environmental Laws, (b) the provisions of all
applicable partnership agreements, charter documents and by-laws, (c) all
agreements and instruments to which it is a party or by which it or any of
its Real Estate Assets may be bound including the Leases, and (d) all
applicable decrees, orders, and judgments.
Section 7.11. Use of Proceeds. Subject to the provisions of Section 2.5
hereof, the proceeds of the Loans shall be used by the Borrower for Permitted
Acquisitions and Permitted Developments, for refinancing other Indebtedness,
and for working capital and other purposes consistent with the covenants
contained herein.
Section 7.12. Appraisals. The Appraised Values of the Mortgaged
Properties, including the Appraised Values of Additional Properties
determined pursuant to Appraisals approved by the Requisite Lenders pursuant
to Section 10.14 and Section 5.4(b), may increase or decrease only upon the
approval by the Lead Lenders of a new or updated Appraisal of such Mortgaged
Property. The Agent shall order a new or updated Appraisal of a Mortgaged
Property (i) promptly following a written request from the Borrower, (ii) in
the discretion of the Agent if the occupied percentage of the gross leasable
area of the Buildings on such Mortgaged Property for two (2) consecutive
fiscal quarters is more than 20 percentage points lower than the occupancy
percentage shown on the rent roll for such Mortgaged Property attached as
Schedule 6.22(l) hereto, (iii) if, in the Agent's opinion, there has been a
substantial adverse change in market conditions; (iv) as may be required by
regulatory requirements applicable to any Lender; and (v) following an Event
of Default, if requested by any Lender. The Borrower shall provide to the
Agent all available information needed to assist in the preparation of an
Appraisal and shall pay to the Agent on demand all reasonable costs of all
such Appraisals.
Section 7.13. Leases; Lease Approvals. The Borrower will not include in
any Leases any purchase option or right of first refusal to purchase any
Mortgaged Property. The Borrower will at all times exercise or enforce its
material rights under the Leases. During the continuance of an Event of
Default, the Agent shall have the right, and the Borrower hereby authorizes
the Agent, to communicate directly with any of the tenants or guarantors for
any purpose contemplated by this Agreement or any of the Security Documents.
Any proposed lease which would be a Major Lease shall be submitted to and
approved by the Lead Lenders prior to execution, along with the most recent
financial statements of such proposed tenant and any guarantor. The Borrower
will not materially adversely amend, terminate, or accept a surrender of any
Major Lease or release
51
<PAGE>
any Major Tenant or waive the material performance of a Major Lease by a Major
Tenant, in each case without prior approval of the Lead Lenders. The Lead
Lenders shall not unreasonably withhold their approval of any Major Lease or
amendment thereof. If the Lead Lenders fail to respond within five (5) Business
Days after receipt of any proposed Major Lease or amendment of a Major Lease,
the same shall be deemed to be approved.
Section 7.14. Further Assurance. The Borrower will cooperate with the
Agent and the Lenders and execute such further instruments and documents and
perform such further acts as the Agent and the Lenders shall reasonably
request to carry out to their satisfaction the transactions contemplated by
this Agreement and the other Loan Documents and the granting and perfecting
of all liens in the Collateral for the benefit of the Agent as agent for the
Lenders.
Section 7.15. Environmental Indemnification. Each of the Borrower and
the Company, jointly and severally, covenants and agrees that it will
indemnify and hold the Agent and each Lender harmless from and against any
and all claims, expense, damage, loss or liability incurred by the Agent or
any Lender (including all reasonable costs of legal representation incurred
by the Agent or any Lender , but excluding, as applicable, for the Agent or a
Lender any claim, expense, damage, loss or liability as a result of the gross
negligence or willful misconduct of the Agent or such Lender ) relating to
(a) any Release or threatened Release of Hazardous Materials on, upon, into
or from any Mortgaged Property or any Real Estate; (b) any violation of any
Environmental Laws with respect to conditions at any Mortgaged Property or
the operations conducted thereon; or (c) the investigation or remediation of
off-site locations at which the Borrower or its predecessors are alleged to
have directly or indirectly disposed of Hazardous Materials. It is expressly
acknowledged by the Borrower that this covenant of indemnification shall
survive any foreclosure or any modification, release or discharge of any or
all of the Security Documents or the payment of the Loans and shall inure to
the benefit of the Agent and the Lenders, and their successors and assigns.
Section 7.16. Response Actions. The Borrower covenants and agrees that
if any Release or disposal of Hazardous Materials shall occur or shall have
occurred on, upon, into or from any Mortgaged Property, or on, upon, into or
from any other Real Estate if the same would have a Material Adverse Effect,
the Borrower will cause the prompt containment and removal of such Hazardous
Materials and remediation of such Mortgaged Property or Real Estate as
necessary to comply in all material respects with all applicable
Environmental Laws or to preserve the value of such Mortgaged Property.
Section 7.17. Environmental Assessments. The Borrower shall diligently
and continuously comply with all recommendations set forth in the
Environmental Reports, including, without limitation, the completion of the
remediation projects described therein. Upon written request, the Borrower
shall provide the Agent with periodic reports with respect to the progress of
said remediation projects. If the Agent in its good faith judgment, after
discussion with the Borrower and the Lead Lenders, has reason to believe that
the environmental condition of any
52
<PAGE>
Mortgaged Property has deteriorated, after reasonable notice by
the Agent, whether or not a Default or an Event of Default shall have occurred,
the Agent may, from time to time, for the purpose of assessing and ensuring the
value of such Mortgaged Property, obtain one or more environmental assessments
or audits of such Mortgaged Property prepared by a hydrogeologist, an
independent engineer or other qualified consultant or expert approved by the
Agent to evaluate or confirm (i) whether any Hazardous Materials are present in
the soil or water at such Mortgaged Property in such quantities as to require
remediation or clean-up to prevent or mitigate damage or threats to the public
health, safety or welfare or the environment and (ii) whether the use and
operation of such Mortgaged Property complies in all material respects with all
applicable Environmental Laws. Environmental assessments may include without
limitation detailed visual inspections of such Mortgaged Property including,
without limitation, any and all storage areas, storage tanks, drains, dry wells
and leaching areas, and the taking of soil samples, surface water samples and
ground water samples, as well as such other investigations or analyses as the
Agent deems appropriate. All such environmental assessments shall be at the sole
cost and expense of the Borrower; provided, however, the Agent may not require
environmental assessments at the Borrower's expense, with respect to any
Mortgaged Property, more frequently than annually except (i) during the
continuance of an Event of Default or (ii) upon the occurrence of a Release on,
upon, into or from any Mortgaged Property.
Section 7.18. Employee Benefit Plans.
(a) Representation. The Borrower and its ERISA Affiliates do not currently
maintain or contribute to any Employee Benefit Plan, Guaranteed Pension Plan or
Multiemployer Plan.
(b) Notice. The Borrower will notify the Agent promptly following the
establishment of any Employee Benefit Plan or Guaranteed Pension Plan by the
Borrower or any ERISA Affiliate.
(c) In General. Each Employee Benefit Plan maintained by the Borrower or
any ERISA Affiliate will be operated in compliance in all material respects with
the provisions of ERISA and, to the extent applicable, the Code, including but
not limited to the provisions thereunder respecting prohibited transactions.
(d) Terminability of Welfare Plans. With respect to each Employee
Benefit Plan maintained by the Borrower or an ERISA Affiliate which is an
employee welfare benefit plan within the meaning of Section 3(1) or Section
3(2)(B) of ERISA, the Borrower, or the ERISA Affiliate, as the case may be,
has the right to terminate each such plan at any time (or at any time
subsequent to the expiration of any applicable bargaining agreement) without
liability other than liability to pay claims incurred prior to the date of
termination.
53
<PAGE>
(e) Multiemployer Plans. Without the consent of the Agent,
the Borrower will not enter into, maintain or contribute to, any
multiemployer Plan.
(f) Unfunded or Underfunded Liabilities. The Borrower will
not, at any time, have accruing unfunded or underfunded liabilities with
respect to any Employee Benefit Plan, Guaranteed Pension Plan or
Multiemployer Plan, or permit any condition to exist under any Multiemployer
Plan that would create a withdrawal liability.
Section 7.19. Required Interest Rate Contracts. The Borrower shall
maintain in effect the Interest Rate Contracts in form and substance
reasonably satisfactory to the Lead Lenders with respect to that portion of
the Variable Rate Indebtedness which exceeds, excluding the IRB Indebtedness,
the principal amount of $125,000,000.
Section 7.20. Equity Interests in the Company. The Company will
comply in all material respects with all applicable rules and regulations of
the Securities Exchange Commission and of relating to its publicly held
Common Shares and Preferred Shares. The Company will continue to have its
Common Shares listed on the New York Stock Exchange or on one of the other
major stock exchanges in the United States, and will comply in all material
respects with all applicable rules of the stock exchange where the Common
Shares are so listed. Immediately upon the receipt of any Net Offering
Proceeds, 100% thereof shall be contributed to the Borrower as an additional
capital contribution with respect to the Company's general partnership
interest in the Borrower.
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower
covenants and agrees as follows, and to the extent that the following
covenants relate to the Company, the Company covenants and agrees as follows,
so long as any Loan, Note or Letter of Credit is outstanding or the Lenders
have any obligation to make any Loans or issue any Letters of Credit:
Section 8.1 Restrictions on Indebtedness. Except with the prior
written consent of the Requisite Lenders, the Borrower will not, the Company
will not, and the Borrower will not permit any Guarantor, any of the Related
Companies or any Permitted Joint Venture to create, incur, assume, guarantee
or become or remain liable, contingently or otherwise, or agree not to do any
of same with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the
Loan Documents;
(b) current liabilities of the Borrower incurred in the
ordinary course of business but not incurred through (i) the borrowing of
money, or (ii) the obtaining of credit except for credit on an open account
basis customarily extended and in fact extended in connection with normal
purchases of goods and services;
54
<PAGE>
(c) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and supplies
to the extent that payment therefor shall not at the time be required to be
made in accordance with the provisions of Section 7.8;
(d) Indebtedness in respect of judgments or awards that
have been in force for less than the applicable period for taking an appeal
so long as execution is not levied thereunder or in respect of which the
Borrower shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution shall have
been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;
(f) Indebtedness of Borrower, the Company or the Related
Companies to the extent the same does not create a violation of Section 9.3,
Section 9.5 or Section 9.6 provided that the maximum principal amount of
Recourse Indebtedness permitted under this paragraph shall not exceed
$50,000,000 in the aggregate at any time outstanding.
Section 8.2. Restrictions on Liens, Etc. The Borrower will not, and
will not permit Guarantor, any of the Related Companies or any Permitted
Joint Venture to, (a) create or incur or agree not to create or incur or
suffer to be created or incurred or to exist any lien, encumbrance, mortgage,
pledge, charge, restriction or other security interest of any kind upon any
of the Mortgaged Property of any character whether now owned or hereafter
acquired, or upon the rents, income or profits therefrom; (b) suffer to exist
for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness (not permitted by Section 8.1(c)) or claim or
demand against it that if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over the Security
Documents; or (c) sell, assign, pledge or otherwise transfer any rents,
issues, profits, accounts, contract rights or general intangibles relating to
any of the Mortgaged Premises; provided that the Borrower may create or incur
or suffer to be created or incurred or to exist:
(i) liens to secure taxes, assessments and other
governmental charges in respect of obligations not overdue, the Indebtedness
with respect to which is permitted by Section 8.1(c);
(ii) deposits or pledges made in connection with, or to
secure payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(iii) liens in respect of judgments or awards, the
Indebtedness with respect to which is permitted by Section 8.1(d);
55
<PAGE>
(iv) liens of carriers, warehousemen, mechanics and
materialmen, and other like liens on properties other than the Mortgaged
Properties in existence less than 120 days from the date of creation thereof
in respect of obligations not overdue, the Indebtedness with respect to which
is permitted by Section 8.1(c);
(v) encumbrances consisting of easements, rights of way,
covenants, restrictions on the use of real property and defects and
irregularities in the title thereto; and other minor liens or encumbrances
none of which in the opinion of the Borrower interferes materially with the
use of the property affected in the ordinary conduct of the business of the
Borrower, and which matters (x) do not individually or in the aggregate have
a materially adverse effect on the value of the Mortgaged Property and (xx)
do not make title to such property unmarketable by the conveyancing standards
in effect where such property is located;
(vi) the Leases referenced on Schedule 6.22(l) and any
other Leases permitted by this Agreement or otherwise approved by the Lead
Lenders;
(vii) presently outstanding liens and other encumbrances on
the Mortgaged Properties listed on Schedule B to the Title Policies; and
(viii) liens in favor of the Agent and/or any of the
Lenders granted pursuant to the Security Documents.
(ix) financing statements disclosed by the searches
described in Section 10.18, provided that to the extent that the Lead Lenders
may agree that the Borrower will have a certain time period after the
Effective Date to obtain and file releases or terminations of certain of such
financing statements, the same shall be Permitted Liens only during such time
period as the Lead Lenders may so agree.
Section 8.3. Restrictions on Investments. The Borrower will not, and
will not permit any Guarantor, any of the Related Companies or any Permitted
Joint Venture to make or permit to exist or to remain outstanding any
Investment except Investments in:
(a) marketable direct or guaranteed obligations of the
United States of America that mature within one (1) year from the date of
purchase by the Borrower;
(b) demand deposits, certificates of deposit, repurchase
agreements, bankers acceptances and time deposits of United States banks
having total assets in excess of $1,000,000,000;
(c) securities commonly known as "commercial paper" issued
by a corporation organized and existing under the laws of the United States
of America or any state thereof that at
56
<PAGE>
the time of purchase have been rated and the ratings for which are not less
than "P 1" if rated by Moody's Investors Services, Inc. , and not less than
"A 1" if rated by Standard and Poor's;
(d) Investments existing or contemplated on the date hereof
and listed on Schedule 8.3(d) hereto;
(e) Investments made in the ordinary course of the
Borrower's business, in (i) any mortgages the acquisition of which is
expressly approved by the Lead Lenders, (ii) mortgages and notes receivable
having an aggregate principal amount, exclusive of any investments in
mortgages which may have been so expressly approved by the Lead Lenders, of
not more than $25,000,000, (iii) Permitted Joint Ventures (to the extent
permitted by Section 8.4(a)), or (iv) Interest Rate Contracts;
(f) Investments in Permitted Acquisitions;
(g) Investments in Permitted Developments which shall not
exceed 20% of Total Adjusted Assets; provided that within said limit any
single development project with a total cost in excess of $30,000,000 shall
only be a Permitted Development after it has been approved by the Requisite
Lenders;
(h) Investments in undeveloped land which shall not exceed
10% of Total Adjusted Assets.
Section 8.4. Merger, Consolidation and Disposition of Properties.
(a) The Borrower will not, and will not permit the Company,
any of the Related Companies or any Permitted Joint Venture to (i) become a
party to any merger or consolidation, or (ii) agree to or effect any property
acquisition or stock acquisition (other than Permitted Acquisitions in
compliance with the other terms of this Agreement) , or (iii) enter into any
joint venture or invest in any Permitted Joint Venture unless prior to such
transaction the Borrower has provided the Lead Lenders with a notice
describing such transaction, the Borrower shall have obtained the prior
consent of the Lead Lenders.
(b) Real Estate Assets may be sold or transferred except
that to the extent the aggregate sales price of all such dispositions during
any fiscal quarter shall exceed $10,000,000, prior to such sale or transfer,
the Borrower shall provide a statement in the form of Exhibit C hereto signed
by a Responsible Officer of the Company and setting forth in reasonable
detail computations evidencing compliance with the financial covenants
contained in Section 9 after giving effect to such proposed transfer and all
liabilities, fixed or contingent, pursuant thereto.
Section 8.5. Sale and Leaseback. The Borrower will not enter into
any arrangement, directly or indirectly, whereby the Borrower shall sell or
transfer any property owned by it in order then
57
<PAGE>
or thereafter to lease such property or lease other property that the
Borrower intends to use for substantially the same purpose as the property
being sold or transferred. The Borrower will not permit the Company, any of
the Related Companies or any Permitted Joint Venture to enter into any such
arrangement.
Section 8.6. Compliance with Environmental Laws. The Borrower will
not do, and will not permit the Company, any of the Related Companies or any
Permitted Joint Venture to do, any of the following: (a) use any of the Real
Estate or any portion thereof as a facility for the handling, processing,
storage or disposal of Hazardous Materials except for Hazardous Materials
used in the operation of the Real Estate and in material compliance with
applicable law, (b) cause or permit to be located on any of the Real Estate
any underground tank or other underground storage receptacle for Hazardous
Materials except in material compliance with Environmental Laws, (c) generate
any Hazardous Materials on any of the Real Estate except in material
compliance with Environmental Laws, or (d) conduct any activity at any Real
Estate or use any Real Estate in any manner so as to cause a Release
requiring remediation, clean up or other response action under applicable
Environmental Laws.
Section 8.7. Distributions. Borrower shall not permit the total
Distributions by it and the Company during any fiscal year to exceed 90% of
Funds from Operations for such year and shall not permit there to be more
than two consecutive fiscal quarters during which the total Distributions by
Borrower and the Company during each fiscal quarter exceed 100% of Funds from
Operations for such fiscal quarter except that such limitations may be
exceeded to the extent necessary for the Company to maintain its REIT status
provided that the Company provides the Agent with a letter from its
accountants or attorneys setting forth the basis for computation of the
amount of such necessary excess Distributions. No Distribution by the
Borrower to the Company shall be made other than simultaneously with and in
the same amount as the corresponding Distribution by the Company to the
owners of the Common Shares and/or the Preferred Shares. During any period
when Event of Default under Section 12.1(a) or Section 12.1(b) has occurred
and is continuing total Distributions by the Borrower and the Company will
not exceed the minimum amount necessary for the Company to maintain its REIT
status.
Section 8.8. Leases. The Borrower will not (i) enter into any Major
Leases or (ii) materially amend, supplement or otherwise materially modify,
or terminate or cancel, or accept the surrender of, or grant any material
concessions to or waive the material performance of any of the Major Tenants
under the Major Leases, in each case without the prior approval of the Lead
Lenders as provided in Section 7.13.
Section 8.9. Restrictions on the Company. The Company will not:
(a) own any assets, or have any Investments, other than
owning its general partnership interest in the Borrower and its limited
partnership interests described in Section 6.19.
58
<PAGE>
(b) engage in any business other than its activities as
managing general partner of the Borrower.
(c) directly or indirectly convey, sell, transfer, assign,
pledge or encumber any of its partnership interest in the Borrower.
(d) create, incur, assume, guarantee or become or remain
liable, contingently or otherwise, any Indebtedness, and any recourse against
the Company with respect to the Indebtedness of the Borrower shall be limited
to the same or greater extent as recourse against the Company with respect to
the Obligations as provided in Section 28.
Section 9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower
covenants and agrees as follows, so long as any Loan or Note is outstanding
or any Lender has any obligation to make any Loan:
Section 9.1. Collateral Value. The Borrower will not at any time
permit the Outstanding Principal Amount to exceed sixty percent (60%) of the
total of the Collateral Values of the Mortgaged Properties.
Section 9.2. Minimum Debt Service Coverage. The Borrower will not at
any time permit the Outstanding Principal Amount to exceed an amount such
that: (a) the aggregate of the Net Operating Income for all of the Mortgaged
Properties, divided by (b) Pro Forma Debt Service Charges for the Mortgaged
Properties would be less than 1.5 for any fiscal quarter of Borrower. For
purposes of the foregoing, any Real Estate Asset that became a Mortgaged
Property during the applicable fiscal quarter shall be treated as though it
were a Mortgaged Property for the entire quarter and any Real Estate Asset
which is released by Agent during such fiscal quarter shall be excluded for
the entire quarter.
Section 9.3. Total Liabilities to Total Adjusted Assets. The
Borrower will not at any time permit Total Liabilities at the end of any
fiscal quarter to exceed fifty-five percent (55%) of Total Adjusted Assets.
Section 9.4. Minimum Tangible Net Worth. The Borrower will not at
any time permit the Tangible Net Worth of the Borrower to be less than
$350,000,000 plus 75% of Net Offering Proceeds.
Section 9.5. Total Operating Cash Flow to Interest Expense. The
Borrower will not permit the ratio of its Total Operating Cash Flow to
Interest Expense to be less than 2.0 to 1.0 for any fiscal quarter. For the
fiscal quarter ending December 31, 1997, such covenant will be computed on a
pro forma basis as though the Formation Transactions had closed, and the
Effective Date had been, October 1, 1997.
59
<PAGE>
Section 9.6. EBITDA to Fixed Charges. The Borrower will not permit
the ratio of its EBITDA to Fixed Charges to be less than 1.75 to 1.0 for any
fiscal quarter. For the fiscal quarter ending December 31, 1997, such
convenant will be computed on a pro forma basis as though the Formation
Transactions had closed, and the Effective Date had been, October 1, 1997.
Section 10. CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective when each of the following conditions precedent have been satisfied:
Section 10.1. Loan Documents. Each of the Loan Documents shall have
been duly executed and delivered by the respective parties thereto, shall be
in full force and effect and shall be in form and substance satisfactory to
each of the Lenders. Each Lender shall have received a fully executed copy of
each such document prior to or on the Effective Date.
Section 10.2. Certified Copies of Organization Documents; Good
Standing Certificates. The Agent shall have received (i) a Certificate of the
Company to which there shall be attached complete copies of the Borrower's
Limited Partnership Agreement and its Certificate of Limited Partnership,
certified as of a recent date by the Secretary of State of Delaware, (ii)
Certificates of Good Standing for the Borrower from the State of Delaware and
each State in which a Mortgaged Property is located, (iii) a copy of the
Company's Declaration of Trust certified by the Maryland Secretary of State,
(iv) Certificates of Good Standing for the Company from the State of Maryland
and each State in which a Mortgaged Property is located unless the Company's
qualification is not required by the laws of such state, and (v) certificates
of good standing and certified copies of partnership agreements and
certificates of limited partnership with respect to each of the Guarantor
Subsidiaries.
Section 10.3. By-laws; Resolutions. All action on the part of the
Borrower and each Guarantor necessary for the valid execution, delivery and
performance by the Borrower and each Guarantor of this Agreement and the
other Loan Documents to which it is or is to become a party shall have been
duly and effectively taken, and evidence thereof satisfactory to the Agent
shall have been provided to the Agent. The Agent shall have received from the
Company true copies of its by-laws and the resolutions adopted by its Board
of Directors authorizing the transactions described herein, each certified by
its secretary to be true and complete and in effect on the Effective Date.
Section 10.4. Incumbency Certificate; Authorized Signers. The Agent
shall have received from the Company an incumbency certificate, dated as of
the Effective Date, signed by a duly authorized officer of the Company and
giving the name and bearing a specimen signature of each individual who shall
be authorized: (a) to sign, in the name and on behalf of the Company (in its
own capacity and as general partner on behalf of Borrower and on behalf of
each Guarantor Subsidiary which is a partnership), each of the Loan Documents
to which the Borrower or any Guarantor is or is to become a party; (b) to
make Loan Requests and Conversion Requests; and (c) to give notices and to
take other action on behalf of the Borrower under the Loan Documents.
60
<PAGE>
Section 10.5. Opinions of Counsel. Each of the Lenders and the Agent
shall have received favorable opinions addressed to the Lenders and the Agent
and dated as of the Effective Date, in form and substance satisfactory to the
Lenders and the Agent from Borrower's counsel, as to: (a) the matters
described on Exhibit E and (b) such other opinions with respect to the
Formation Transactions as the Agent may reasonably require. Such opinion may
rely on opinions from other law firms approved by the Agent as to matters of
law applicable in the various states where the Mortgaged Properties are
located.
Section 10.6. Payment of Fees. The Borrower shall have paid to the
Agent and/or the Lead Lenders the fees pursuant to Section 4.1 and Section
2.9(a) and shall have paid all other expenses as provided in Section 15
hereof then outstanding.
Section 10.7. Validity of Liens. The Security Documents shall be
effective to create in favor of the Agent legal, valid and enforceable first
priority, perfected liens and security interests in the Collateral covered
thereby, subject only to the Permitted Liens. All filings, recordings,
deliveries of instruments and other actions or consents necessary or
desirable in the reasonable opinion of the Agent to grant, perfect, protect
and preserve such liens and security interests shall have been duly effected.
The Agent shall have received evidence thereof in form and substance
reasonably satisfactory to the Agent.
Section 10.8. Survey. The Agent shall have received Surveys of the
Mortgaged Properties, bearing dates reasonably acceptable to the Agent, and
in form and substance reasonably acceptable to the Agent.
Section 10.9. Title Insurance; Title Exception Documents. The Agent
shall have received the Title Policies reasonably satisfactory to the Agent,
together with proof of payment of all fees and premiums for such policies.
The Agent shall have received true and accurate copies of all documents
listed as exceptions under such policies.
Section 10.10. Leases. The Agent shall have received true copies of
those Leases which the Agent may request after its review of the applicable
rent roll.
Section 10.11. Estoppel and Attornment Agreements. The Agent shall
have received estoppel certificates and attornment agreements in form
reasonably satisfactory to the Lead Lenders from the three (3) Tenants who
lease and occupy the largest amount gross leasable area of the West Wacker
Drive Property and from any other Major Tenants specifically required by the
Agent.
Section 10.12. Certificates of Insurance. The Agent shall have
received (a) a certificate of insurance as to the insurance maintained by
Borrower on the Mortgaged Properties (including flood insurance if necessary)
from the insurer or an independent insurance broker dated as of the Effective
Date, identifying insurers, types of insurance, insurance limits, and policy
terms;
61
<PAGE>
(b) certified copies of all policies evidencing such insurance (or
certificates therefor signed by tile insurer or an agent authorized to bind
the insurer); and (c) such further information and certificates from
Borrower, its insurers and insurance brokers as the Agent may reasonably
request.
Section 10.13. Environmental Reports. The Agent shall have received
an Environmental Report with respect to each of the Mortgaged Properties,
dated as of a recent date, from environmental engineers reasonably acceptable
to the Agent which Environmental Reports shall have been approved by the Lead
Lenders.
Section 10.14. Environmental Indemnity. The Agent shall have
received an executed original of the environmental indemnity described in the
Equity Prospectus from The Prime Group, Inc. for the benefit of certain of
the Guarantor Subsidiaries with respect to environmental liabilities relating
to certain of the Mortgaged Properties, together with an agreement from The
Prime Group, Inc. that the Lenders shall be a beneficiary thereunder in the
event of any foreclosure of the applicable Mortgaged Properties, which
indemnity and agreement shall be in form and substance satisfactory to the
Agent and the Lead Lenders.
Section 10.15. Appraisals. The Agent and each of the Lenders shall
have received Appraisals dated as of a recent date in form and substance
satisfactory to the Agent and the Lead Lenders (including satisfaction as to
determination of Appraised Value).
Section 10.16. Inspecting Engineers' Reports. The Agent shall have
received reports, addressed to Agent and the Lenders or accompanied by
reliance letters in favor of the Agent and the Lenders, from third party
inspecting engineers dated as of a date acceptable to the Agent as to the
good structural condition of the Buildings located on the Mortgaged
Properties, which reports shall be in form and substance satisfactory to the
Agent.
Section 10.17. Initial Letters of Credit. The Agent shall have
received with respect to each of the Initial Letters of Credit (i) a Letter
of Credit Request executed by Borrower, and (ii) copies of all legal opinions
and certificates delivered in connection with such replacement of letters of
credit pursuant to the applicable IRB Documents.
Section 10.18. UCC Lien Searches. The Agent shall have received UCC
lien searches of the applicable public records disclosing no conditional
sales contracts, security agreements, chattel mortgages, leases of
personalty, financing statements or other encumbrances which affect any of
the Collateral other than those relating to any liens permitted hereby and by
the Security Documents.
Section 10.19. Formation Transactions Complete. The Lead Lenders
shall have received evidence satisfactory to each of them that all of the
Formation Transactions have been completed on the Effective Date and that the
net proceeds of the sale of the common and preferred shares of
62
<PAGE>
beneficial interest in the Company were not less than the amount described in
the Equity Prospectus.
Section 11. CONDITIONS TO ALL BORROWINGS. The obligations of the
Lenders to make any Loan, whether on or after the Effective Date, shall also
be subject to the satisfaction of the following conditions precedent:
Section 11.1. Representations True; No Event of Default; Compliance
Certificate. Each of the representations and warranties of the Borrower and
the Company contained in this Agreement, the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with this
Agreement shall be true in all material respects as of the date as of which
they were made and shall also be true in all material respects at and as of
the time of the making of such Loan, with the same effect as if made at and
as of that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Agreement and the other Loan Documents and
changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and except to the extent that such
representations and warranties relate expressly to an earlier date); the
Borrower shall have performed and complied with all terms and conditions
herein required to be performed by it or prior to the Borrowing Date of such
Loan; and no Default or Event of Default shall have occurred and be
continuing on the date of any Loan Request or on the Borrowing Date of such
Loan. Each of the Lenders shall have received a Compliance Certificate of the
Borrower signed by a Responsible Officer to such effect, which certificate
will include, without limitation, computations evidencing compliance with the
covenants contained in Section 9 hereof after giving effect to such requested
Loan.
Section 11.2. No Legal Impediment. No change shall have occurred in
any law or regulations thereunder or interpretations thereof that in the
reasonable opinion of any Lender would make it illegal for such Lender to
make such Loan.
Section 11.3. Governmental Regulation. Each Lender shall have
received such statements in substance and form reasonably satisfactory to
such Lender as such Lender shall require for the purpose of compliance with
any applicable regulations of the Comptroller of the Currency or the Board of
Governors of the Federal Reserve System.
Section 11.4. Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this Agreement, the other
Loan Documents and all other documents incident thereto shall be reasonably
satisfactory in substance and in form to the Agent, and the Lenders shall
have received all information and such counterpart originals or certified or
other copies of such documents as the Agent may reasonably request.
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
63
<PAGE>
Section 12.1. Events of Default and Acceleration. If any of the
following events ("Events of Default" or, if the giving of notice or the
lapse of time or both is required, then, prior to such notice or lapse of
time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the
Loans when the same shall become due and payable;
(b) the Borrower shall fail to pay any interest on the
Loans or any other sums due hereunder or under any of the other Loan
Documents within five (5) days after the same shall become due and payable or
the Borrower shall fail to deposit in the IRB Indebtedness Account sufficient
funds as required by Section 2.8;
(c) the Borrower or the Company shall fail to comply with
any of its covenants contained in Section 7.5, the first sentence of Section
7.6, the first sentence of Section 7.7, Section 7.20, Section 8 or Section 9
hereof;
(d) the Borrower, the Company or any Guarantor shall fail
to perform any other term, covenant or agreement contained herein or in any
of the other Loan Documents (other than those specified elsewhere in this
Section 12) for thirty (30) days after written notice of such failure from
Agent to the Borrower, provided, however that if the Borrower fails to give
notice of any Default as required by Section 7.5(a), such thirty (30) day
cure period shall be deemed to have started on the date such notice should
have been given;
(e) any representation or warranty of the Borrower or the
Company in this Agreement or any of the other Loan Documents or in any other
document or instrument delivered pursuant to or in connection with this
Agreement, shall prove to have been false in any material respect upon the
date when made or deemed to have been made or repeated, and shall continue to
be false on the date that the Agent or any Lender takes action based on the
Default relating to such representation or warranty, provided, however, that
with respect to the representations and warranties of the Borrower contained
in Section 6.2, Section 6.3, Section 6.13, Section 6.18 and in paragraphs
(a), (c), (d), (e) and (f) of Section 6.22, if the condition or event making
the representation and warranty false is capable of being cured by the
Borrower, no enforcement action has been commenced against the Borrower or
the applicable Mortgaged Property on account of such condition or event nor
is the applicable Mortgaged Property subject to risk of forfeiture due to
such condition or event, and the Borrower promptly commences the cure thereof
after the Borrower's first obtaining knowledge of such condition or event,
the Borrower shall have a period of thirty (30) days after the date that the
Borrower first obtained knowledge of such condition or event during which the
Borrower may cure such condition or event (or, if such condition or event is
not reasonably capable of being cured within such thirty (30) day period,
such additional period of time as may be reasonably required in order to cure
such condition or event but in any event such period shall not exceed six (6)
months from the date that the Borrower first obtained knowledge of such
condition or event), and no Event of Default shall exist hereunder during
such thirty (30) day or additional period so long as the Borrower
64
<PAGE>
continuously and diligently pursues the cure of such condition or event and
the other conditions to such cure period have not changed;
(f) the Borrower, the Company, any of the Related Companies
or any Permitted Joint Venture shall fail to pay at maturity, or within any
applicable period of grace, any Recourse Indebtedness, or shall fail to
observe or perform any material term, covenant or agreement contained in any
agreement by which it is bound, evidencing or securing Indebtedness for such
period of time as would permit (assuming the giving of appropriate notice if
required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof, and in any event, such failure
shall continue for thirty (30) days, unless the aggregate amount of all such
defaulted Recourse Indebtedness plus the amount of any unsatisfied judgments
described in paragraph (i) of this Section 12.1 is less than $10,000,000.00;
(g) any of the Borrower, the Company or any Guarantor shall
make an assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or become
due, or shall petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of any substantial part of its properties
or shall commence any case or other proceeding under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect,
or shall take any action to authorize or in furtherance of any of the
foregoing, or if any such petition or application shall be filed or any such
case or other proceeding shall be commenced against any such Person and such
Person shall indicate its approval thereof, consent thereto or acquiescence
therein or any of the events described in this paragraph shall occur with
respect to any other Related Company or any Permitted Joint Venture and such
event shall have a Material Adverse Effect;
(h) a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating the Borrower, the
Company, or any Guarantor bankrupt or insolvent, or approving a petition in
any such case or other proceeding, or a decree or order for relief is entered
in respect of the Borrower, the Company, or any Guarantor in an involuntary
case under federal bankruptcy laws as now or hereafter constituted or any of
the events described in this paragraph shall occur with respect to any other
Related Company or any Permitted Joint Venture and such event shall have a
Material Adverse Effect;
(i) there shall remain in force, undischarged, unsatisfied
and unstayed, for more than thirty days, whether or not consecutive, any
uninsured final judgment against the Borrower that, with other outstanding
uninsured final judgments, undischarged, against the Borrower, the Company or
any of the Related Companies plus the amount of any defaulted Recourse
Indebtedness under paragraph (f) of this Section 12.1, exceeds in the
aggregate $10,000,000.00;
(j) if any of the Loan Documents or any material provision
of any Loan Documents shall be unenforceable, cancelled, terminated, revoked
or rescinded otherwise than in
65
<PAGE>
accordance with the terms thereof or with the express prior written
agreement, consent or approval of the Agent, or any action at law, suit or in
equity or other legal proceeding to make unenforceable, cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf of the
Borrower, the Company or any Guarantor, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction
shall make a determination that, or issue a judgment, order, decree or ruling
to the effect that, any one or more of the Loan Documents is illegal, invalid
or unenforceable in accordance with the terms thereof;
(k) the Borrower, the Company or any Guarantor shall be
indicted for a federal crime, a punishment for which could include the
forfeiture of any assets of the Borrower;
(l) any "Event of Default," as defined in any of the IRB
Documents shall occur provided that if such Event of Default is caused by the
issuer or other Person other than the Guarantor Subsidiary, the same shall
constitute an Event of Default hereunder only if the maturity of the
applicable IRB Indebtedness is accelerated based thereon;
(m) any "Event of Default", as defined in any of the other
Loan Documents shall occur;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Requisite Lenders shall, by notice in
writing to the Borrower declare all amounts owing with respect to this
Agreement, the Notes and the other Loan Documents to be, and they shall
thereupon forthwith become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
expressly waived by the Borrower; provided that in the event of any Event of
Default specified in Sections 12.1(g) or 12.1(h), all such amounts
shall become immediately due and payable automatically and without any
requirement of notice from the Agent or action by the Requisite Lenders.
Section 12.2. Termination of Commitments; Drawing of IRB Letters of
Credit. If any one or more Events of Default specified in Section 12.1(g) or
Section 12.1(h) shall occur, any unused portion of the Commitments hereunder
shall forthwith terminate and the Lenders shall be relieved of all
obligations to make Loans to the Borrower. If any other Event of Default
shall have occurred and be continuing, any Lender may by notice to the
Borrower terminate the unused portion of its Commitment hereunder, and upon
such notice being given such unused portion of its Commitment hereunder shall
terminate immediately and such Lender shall be relieved of all further
obligations to make Loans, provided, however, such Lender shall not be
relieved of its obligation to pay its Proportionate Share of Unreimbursed
Drawings under Section 2.9. No termination of such Lender's Commitment
hereunder shall relieve the Borrower of any of the Obligations or any of its
existing obligations to such Lender arising under other agreements or
instruments. At any time after any Commitments have been terminated pursuant
hereto, the Agent may, in its sole discretion, give such notices as may be
permitted under the terms of the IRB Letters of Credit or the related IRB
Documents to cause the bonds relating to the IRB Indebtedness to be
66
<PAGE>
accelerated or to cause a mandatory tender thereof or to cause the IRB
Letters of Credit to be drawn by the beneficiary thereof or to cause the
applicable IRB Letters of Credit to expire if not drawn within the specified
period after the giving of such notice.
Section 12.3. Remedies. In case any one or more of the Events of
Default shall have occurred, and whether or not the Requisite Lenders shall
have accelerated the maturity of the Loans pursuant to Section 12.1, each
Lender, if owed any amount with respect to the Loans, may, with the consent
of the Requisite Lenders, direct the Agent to proceed to protect and enforce
the rights and remedies of the Agent and the Lenders under this Agreement,
the Notes, the IRB Documents or any of the other Loan Documents by suit in
equity, action at law or other appropriate proceeding, whether for the
specific performance of any covenant or agreement contained in this Agreement
and the other Loan Documents or any instrument pursuant to which the
Obligations are evidenced, including to the full extent permitted by
applicable law the obtaining of the ex parte appointment of a receiver and,
if any amount shall have become due, by declaration or otherwise, to proceed
to enforce the payment thereof or any other legal or equitable right of such
Lender. No remedy herein conferred upon any Lender or the Agent or the
holder of any Note is intended to be exclusive of any other remedy and each
and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or any other provision of law.
Section 12.4. Distribution of Collateral Proceeds. In the event
that, following the occurrence or during the continuance of any Default or
Event of Default, the Agent or any Lender as the case may be, receives any
monies in connection with the enforcement of any of the Security Documents,
or otherwise with respect to the realization upon any of the Collateral, such
monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies by
the Agent, for the exercise, protection or enforcement by the Agent of all or
any of the rights, remedies, powers and privileges of the Agent or the
Lenders under this Agreement or any of the other Loan Documents or in respect
of the Collateral or in support of any provision of adequate indemnity to the
Agent against any taxes or liens which by law shall have, or may have,
priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or
preference as the Requisite Lenders may determine; provided, however, that
distribution in respect of such Obligations shall be made among the Lenders
pro rata in accordance with each Lender's respective Commitment Percentage;
and provided, further, that the Agent may in its discretion make proper
allowance to take into account any Obligations not then due and payable;
67
<PAGE>
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Requisite Lenders and the
Agent of all of the obligations, and to the payment of any obligations
required to be paid pursuant to Section 9-504(1)(c) of the Uniform Commercial
Code of the State of New York; and
(d) Fourth, the excess, if any, shall be returned to the
Borrower or to such other Persons as are legally entitled thereto.
Section 12.5. Addition of Real Estate Assets to Cure Default. As an
alternative to the payment of cash to cure a Default under Section 9.1 or
Section 9.2 hereof, the Borrower shall have the right to offer to provide
additional Collateral to the Agent in the form of Additional Properties
pursuant to Section 5.3 and Section 5.4, for the purpose of curing a Default
under Section 9.1 or Section 9.2 hereof, if the Borrower designates such
Collateral for addition within fifteen (15) days after the occurrence of such
Default and the Borrower, the Company or the Mortgagor, as applicable,
executes and delivers to the Agent a Security Deed, an Assignment of Leases
and Rents, an Indemnity Agreement and UCC-1 Financing Statements relating to
the Additional Property together with the Certificates and opinion described
in Section 5.4(d) and Section 5.4(e) within thirty (30) days after the
occurrence of such Default. The Agent and the Lenders shall accept and
approve the addition of such Collateral as a cure for such Default if such
Collateral shall cure the Default and satisfies the due diligence
requirements of the Agent and the Requisite Lenders, including, without
limitation, the conditions set forth in Section 5.4 and those requirements
with respect to the Mortgaged Properties specified in Section 10 hereof,
within ninety (90) days after the occurrence of the subject Default, and at
the time that such due diligence requirements are so satisfied, no other
Defaults or Events of Default are continuing. If any such additional
Collateral is provided to the Agent in accordance with this Section 12.5,
such additional Collateral shall, for all purposes hereof, be deemed to be a
"Mortgaged Property." Until the Agent and Requisite Lenders have acknowledged
in writing the cure of such Default (which written acknowledgment will be
given promptly after such cure has been completed as herein provided), all
consequences of such Default hereunder shall be effective (except as provided
in Section 8.7) and the Agent may exercise all available remedies except that
the maturity of the Loans shall not be accelerated based solely on the
Default which Borrower is diligently attempting to cure hereunder, prior to
the expiration of said ninety (90) day period.
Section 13. SETOFF. Regardless of the adequacy of any Collateral,
during the continuance of any Event of Default, any deposits (general or
specific, time or demand, provisional or final, regardless of currency,
maturity, or the branch of where such deposits are held) or other sums
credited by or due from any of the Lenders to the Borrower and any securities
or other property of the Borrower in the possession of such Lender may WITH
THE PRIOR APPROVAL OF THE AGENT be applied to or set off against the payment
of Obligations and any and all other liabilities, direct, or indirect,
absolute or contingent, due or to become due, now existing or hereafter
arising, of the Borrower to such Lender. Each of the Lenders agrees with each
other Lender that (a) if an amount to be set off is to be applied to
Indebtedness of the Borrower to such
68
<PAGE>
Lender, other than Indebtedness evidenced by the Notes held by such Lender,
such amount shall be applied ratably to such other Indebtedness and to the
Indebtedness evidenced by all such Notes held by such Lender, and (b) if such
Lender shall receive from the Borrower, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement of
the claim evidenced by the Notes held by such Lender by proceedings against
the Borrower at law or in equity or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings, or
otherwise, and shall retain and apply to the payment of the Note or Notes
held by such Lender any amount in excess of its ratable portion of the
payments received by all of the Lenders with respect to the Notes held by all
of the Lenders, such Lender will make such disposition and arrangements with
the other Lenders with respect to such excess, either by way of distribution,
pro tanto assignment of claims, subrogation or otherwise as shall result in
each Lender receiving in respect of the Notes held by it its proportionate
payment as contemplated by this Agreement; provided that if all or any part
of such excess payment is thereafter recovered from such Lender, such
disposition and arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest. Notwithstanding the
foregoing, no Lender shall exercise a right of setoff if such exercise would
limit or prevent the exercise of any other remedy, right to Collateral or
other recourse against the Borrower.
Section 14. THE AGENT.
Section 14.1. Authorization. The Agent is authorized to take such
action on behalf of each of the Lenders and to exercise all such powers as
are hereunder and under any of the other Loan Documents and any related
documents delegated to the Agent, together with such powers as are reasonably
incident thereto, provided that no duties or responsibilities not expressly
assumed herein or therein shall be implied to have been assumed by the Agent.
The relationship between the Agent and the Lenders is and shall be that of
agent and principal only, and nothing contained in this Agreement or any of
the other Loan Documents shall be construed to constitute the Agent as a
trustee for any Lender.
Section 14.2. Employees and Agents. The Agent may exercise its
powers and execute its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Agreement and the other Loan
Documents. The Agent may utilize the services of such Persons as the Agent in
its sole discretion may reasonably determine, and all reasonable fees and
expenses of any such Persons shall be paid by the Borrower.
Section 14.3. No Liability. Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for
any waiver, consent or approval given or any action taken, or omitted to be
taken, in good faith by it or them hereunder or under any of the other Loan
Documents, or in connection herewith or therewith, or be responsible for the
consequences of any oversight or
69
<PAGE>
error of judgment whatsoever, except that the Agent or such other Person, as
the case may be, may be liable for losses due to its willful misconduct or
gross negligence.
Section 14.4. No Representations. The Agent shall not be responsible
for the execution or validity or enforceability of this Agreement, the Notes,
any of the other Loan Documents or any instrument at any time constituting,
or intended to constitute, collateral security for the Notes, or for the
value of any such collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the Notes, or for
any recitals or statements, warranties or representations made herein or in
any of the other Loan Documents or in any certificate or instrument hereafter
furnished to it by or on behalf of the Borrower, or be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein or in any instrument at any time constituting,
or intended to constitute, collateral security for the Notes. The Agent shall
not be bound to ascertain whether any notice, consent, waiver or request
delivered to it by the Borrower or any holder of any of the Notes shall have
been duly authorized or is true, accurate and complete. The Agent has not
made nor does it now make any representations or warranties, express or
implied, nor does it assume any liability to the Lenders, with respect to the
credit worthiness or financial condition of the Borrower. Each Lender
acknowledges that it has, independently and without reliance upon the Agent
or any other Lender , and based upon such information and documents as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender has been independently represented by separate
counsel regarding this Agreement.
Section 14.5. Payments.
(a) A payment by the Borrower to the Agent hereunder or any
of the other Loan Documents for the account of any Lender shall constitute a
payment to such Lender subject to the pro rata rights to repayment based upon
the Commitment Percentage of each Lender. The Agent agrees promptly to
distribute to each Lender such Lender's pro rata share of payments received
by the Agent for the account of the Lenders except as otherwise expressly
provided herein or in any of the other Loan Documents.
(b) If in the opinion of the Agent the distribution of any
amount received by it in such capacity hereunder, under the Notes or under
any of the other Loan Documents might involve it in liability, it may refrain
from making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the
Agent is to be repaid, each Person to whom any such distribution shall have
been made shall either repay to the Agent its proportionate share of the
amount so adjudged to be repaid or shall pay over the same in such manner and
to such Persons as shall be determined by such court.
(c) Notwithstanding anything to the contrary contained in
this Agreement or any of the other Loan Documents, any Lender that fails (i)
to make available to the Agent its pro rata
70
<PAGE>
share of any Loan or of any Unreimbursed Drawing or (ii) to comply with the
provisions of Section 12.4 or Section 13 with respect to making dispositions
and arrangements with the other Lenders, where such Lender's share of any
payment received, whether by setoff or otherwise, is in excess of its pro
rata share of such payments due and payable to all of the Lenders, in each
case as, when and to the full extent required by the provisions of this
Agreement, or to adjust promptly such Lender's outstanding principal and its
pro rata Commitment Percentage as provided in Section 2.1 hereof, shall be
deemed delinquent (a "Delinquent Lender ") and shall be deemed a Delinquent
Lender until such time as such delinquency is satisfied. A Delinquent Lender
shall be deemed to have assigned any and all payments due to it from the
Borrower, whether on account of outstanding Loans, interest, fees or
otherwise, to the remaining nondelinquent Lenders for application to, and
reduction of, their respective pro rata shares of all outstanding Loans. The
Delinquent Lender hereby authorizes the Agent to distribute such payments to
the nondelinquent Lenders in proportion to their respective pro rata shares
of all outstanding Loans. A Delinquent Lender shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of
the assigned payments to all outstanding Loans of the nondelinquent Lenders,
the Lenders' respective pro rata shares of all outstanding Loans have
returned to those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
Section 14.6. Holders of Notes. The Agent may deem and treat the
payee of any Note as the absolute owner or purchaser thereof for all purposes
hereof until it shall have been furnished in writing with a different name by
such payee or by a subsequent holder assignee or transferee.
Section 14.7. Indemnity. The Lenders ratably agree hereby to
indemnify and hold harmless the Agent from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent has not been reimbursed
by the Borrower as required by Section 15), and liabilities of every nature
and character arising out of or related to this Agreement, the Notes, or any
of the other Loan Documents or the transactions contemplated or evidenced
hereby or thereby, or the Agent's actions taken hereunder or thereunder,
except to the extent that any of the same shall be directly caused by the
Agent's willful misconduct or gross negligence.
Section 14.8. Agent as Lender. In its individual capacity,
BankBoston shall have the same obligations and the same rights, powers and
privileges in respect to its Commitment and the Loans made by it, and as the
holder of any of the Notes as it would have were it not also the Agent. By
issuing the Letters of Credit in its individual capacity BankBoston is bound
to perform its duties and obligations under such Letters of Credit as
provided therein. BankBoston's status as Agent hereunder shall not limit or
restrict its ability to perform such duties and obligations.
Section 14.9. Resignation. The Agent may resign at any time by
giving sixty (60) days, prior written notice thereof to the Lenders and the
Borrower. Upon any such resignation, the
71
<PAGE>
Requisite Lenders shall have the right to appoint a successor Agent. Unless a
Default or Event of Default shall have occurred and be continuing,
appointment of such successor Agent shall be subject to the reasonable
approval of the Borrower. If no successor Agent shall have been so appointed
by the Requisite Lenders and shall have accepted such appointment within
thirty (30) days after the giving of notice of resignation or removal, or the
Borrower has disapproved or failed to approve a successor agent within such
period, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a financial institution having a rating of
not less than A2/P2 or its equivalent by Standard & Poor's Corporation. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations as Agent
hereunder. After any retiring Agent's resignation, the provisions of this
Agreement and the other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
Section 14.10. Notification of Defaults and Events of Default. Each
Lender hereby agrees that, upon learning of the existence of a Default or an
Event of Default, it shall promptly notify the Agent thereof. The Agent
hereby agrees that upon receipt of any notice under this Section 14.10 it
shall promptly notify the other Lenders of the existence of such Default or
Event of Default.
Section 14.11. Duties in the Case of Enforcement. In case one of
more Events of Default have occurred and shall be continuing, and whether or
not acceleration of the Obligations shall have occurred, the Agent shall, if
(a) so requested by the Requisite Lenders and (b) the Lenders have provided
to the Agent such additional indemnities and assurances against expenses and
liabilities as the Agent may reasonably request, proceed to enforce the
provisions of the Security Documents authorizing the sale or other
disposition of all or any part of the Collateral and exercise all or any such
other legal and equitable and other rights or remedies as it may have in
respect of such Collateral. The Requisite Lenders may direct the Agent in
writing as to the method and the extent of any such sale or other
disposition, the Lenders hereby agreeing to indemnify and hold the Agent
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need not
comply with any such direction to the extent that the Agent reasonably
believes the Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction. The Agent may take
such steps as it reasonably determines for the taking of possession or title
to any Collateral, including the formation of trusts or corporation with each
Lender having a beneficial interest equal to its pro rata percentage of the
outstanding Loans.
Section 14.12. Mandatory Resignation of Agent. In the event that the
Agent enters into one or more Assignments pursuant to Section 18 having the
effect of reducing the Agent's Commitment to less than $25,000,000 (which
number will be reduced in proportion to any reduction in the Total Commitment
pursuant to Section 2.2) then the Agent shall promptly so notify the Borrower
and the Lenders. Upon the written request of the Borrower or any Lender whose
Commitment exceeds
72
<PAGE>
that of the Agent, which written request is made within thirty (30) days
after the Agent's notice that its Commitment is below such minimum level, the
Agent shall be obligated to resign pursuant to Section 14.9.
Section 15. EXPENSES. The Borrower agrees to pay (a) the reasonable
costs of producing and reproducing this Agreement, the other Loan Documents
and the other agreements and instruments mentioned herein, (b) any taxes
(including any interest and penalties in respect thereto) payable by the
Agent or any of the Lenders (other than taxes based upon the Agent's or any
Lender's net income), including any recording, mortgage, documentary or
intangibles taxes in connection with the Security Documents and other Loan
Documents, or other taxes payable on or with respect to the transactions
contemplated by this Agreement, including any such taxes payable by the Agent
or any of the Lenders after the Effective Date (the Borrower hereby agreeing
to indemnify the Lenders with respect thereto), (c) all title insurance
premiums, appraisal fees, engineer's, inspector's and surveyor's fees,
recording costs and the reasonable fees, expenses and disbursements of the
Agent's counsel or any local counsel to the Agent incurred in connection with
the preparation, administration or interpretation of the Loan Documents and
other instruments mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (d) the
reasonable fees, costs, expenses and disbursements of the Agent incurred in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein including without
limitation, the reasonable costs incurred by the Agent in connection with its
inspection of the Mortgaged Properties, and the fees and disbursements of the
Agent's counsel and the Borrower's legal counsel in preparing documentation,
(e) the reasonable fees, costs, expenses and disbursements of the Agent
incurred in connection with the syndication and/or participation of the
Loans, (f) all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and costs, which attorneys may be employees of any Lender or
the Agent and the fees and costs of appraisers, engineers, investment
bankers, surveyors or other experts retained by the Agent or any Lender in
connection with any such enforcement proceedings) incurred by any Lender or
the Agent in connection with (i) the enforcement of or preservation of rights
under any of the Loan Documents against the Borrower or the administration
thereof after the occurrence of a Default or Event of Default (including,
without limitation, expenses incurred in any restructuring and/or "workout"
of the Loans), and (ii) any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to the Agent's or the Lender's
relationship with the Borrower, the Company, any Permitted Joint Venture or
any of the Related Companies, (g) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches, UCC
filings or mortgage recordings, (h) all reasonable costs incurred by the
Agent in the future in connection with its inspection of the Mortgaged
Properties (which inspections shall occur not more frequently than annually
prior to an Event of Default), and (i) the reasonable fees, costs, expenses
and disbursements of the Agent incurred in connection with the granting of
additional Collateral by the Borrower pursuant to Section 12.5 hereof,
including, without limitation, the costs incurred by the Agent in connection
with its inspection of such additional Collateral, and the fees and
disbursements of the Agent's counsel. The covenants
73
<PAGE>
of this Section 15 shall survive payment or satisfaction of payment of
amounts owing with respect to the Notes.
Section 16. INDEMNIFICATION. Each of the Borrower and the Company,
jointly and severally, agrees to indemnify and hold harmless the Agent and
the Lenders and the shareholders, directors, agents, officers, subsidiaries,
and affiliates of the Agent and the Lenders from and against any and all
claims, actions or causes of action and suits whether groundless or
otherwise, and from and against any and all Liabilities, losses, settlement
payments, obligations, damages and expenses of every nature and character
arising out of this Agreement or any of the other Loan Documents or the
Formation Transactions or any other transactions contemplated hereby or which
otherwise arise in connection with the financing including, without
limitation unless directly caused by the gross negligence or willful
misconduct of a Lender or the Agent (but such limitation on indemnification
shall only apply to the Agent or Lender being grossly negligent or committing
willful misconduct), (a) any actual or proposed use by the Borrower of the
proceeds of any of the Loans or the Drawings of any Letters of Credit, (b)
any actual or alleged infringement of any patent, copyright, trademark,
service mark or similar right of the Borrower comprised in the Collateral,
(c) the Borrower or any Guarantor entering into or performing this Agreement
or any of the other Loan Documents or (d) any cost, claim liability, damage
or expense in connection with any harm the Borrower may be found to have
caused in the role of a broker, in each case including, without limitation,
the reasonable fees and disbursements of counsel and allocated costs of
internal counsel incurred in connection with any such investigation,
litigation or other proceeding. In litigation, or the preparation therefor,
the Lenders and the Agent shall each be entitled to select their own separate
counsel to the extent that their representation by the same counsel would
present such counsel with a conflict of interest, or would be inappropriate
due to actual or potential differing interests or because there may be
defenses available to certain of such persons that are different from or in
addition to those available to the other persons to be represented by such
counsel and, in addition to the foregoing indemnity, the Borrower agrees to
pay promptly the reasonable fees and expenses of such counsel. In the event
that Agent or any Lender is made a party to any litigation against the
Company or the Borrower relating to or arising from the Formation
Transactions, the Borrower or the Company may, or if requested by the Agent
or the Requisite Lenders shall, assume primary responsibility for the defense
thereof with counsel reasonably satisfactory to the Requisite Lenders,
subject to the right of the Agent and the Lenders to separate counsel to the
extent provided in the preceding sentence. If, and to the extent that the
obligations of the Borrower or the Company under this Section 16 are
unenforceable for any reason, the Borrower and the Company hereby agree to
make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The provisions of this
Section 16 shall survive the repayment of the Loans and the termination of
the obligations of the Lenders hereunder and shall continue in full force and
effect as to the Lenders so long as the possibility of any such claim,
action, cause of action or suit exists.
74
<PAGE>
Section 17. SURVIVAL OF COVENANTS, ETC. All covenants,
agreements, representations and warranties made herein, in the Notes, in any
of the other Loan Documents or in any documents or other papers delivered by
or on behalf of the Borrower or any Guarantor pursuant hereto shall be deemed
to have been relied upon by the Lenders and the Agent, notwithstanding any
investigation heretofore or hereafter made by it, and shall survive the
making by the Lenders of the Loans, as herein contemplated, and shall
continue in full force and effect so long as any amount due under this
Agreement or the Notes or any of the other Loan Documents remains outstanding
or the Lenders have any obligation to make any Loans. The indemnification
obligations of the Borrower provided herein and the other Loan Documents
shall survive the full repayment of amounts due and the termination of the
obligations of the Lenders hereunder and thereunder to the extent provided
herein and therein. All statements contained in any certificate or other
paper delivered to the Agent or any Lender at any time by or on behalf of the
Borrower pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Borrower
hereunder.
Section 18. ASSIGNMENT; PARTICIPATIONS; ETC.
Section 18.1. Conditions to Assignment by Lenders. Except as
provided herein, each Lender may assign to one or more Eligible Assignees all
or a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment Percentage and Commitment and
the same portion of the Loans at the time owing to it, and the Notes held by
it; provided that (a) the Agent shall have given its prior written consent to
such assignment except that such consent shall not be needed with respect to
an assignment from a Lender to one of its Affiliated Lenders or to another
Lender, (b) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Lender's rights and obligations under this
Agreement, (c) each assignment shall be in an amount of not less than
$10,000,000 that is a whole multiple of $1,000,000, (d) each Lender either
shall assign all of its Commitment and cease to be a Lender hereunder or
shall retain, free of any such assignment, an amount of its Commitment of not
less than $10,000,000 and (e) the parties to such assignment shall execute
and deliver to the Agent, for recording in the Register (as hereinafter
defined), an Assignment and Acceptance, substantially in the form of Exhibit
F hereto (an "Assignment and Acceptance'), together with any Notes subject
to such assignment. Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business Days
after the execution thereof, (i) the assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have
the rights and obligations of a Lender hereunder, and (ii) the assigning
Lender shall, to the extent provided in such assignment and upon payment to
the Agent of the registration fee referred to in Section 18.3, be released
from its obligations under this Agreement.
Section 18.2. Certain Representations and Warranties; Limitations;
Covenants. By executing and delivering an Assignment and Acceptance, the
parties to the assignment thereunder confirm to and agree with each other and
the other parties hereto as follows: (a) other than the
75
<PAGE>
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, the
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto; (b) the assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or any other Person primarily or secondarily liable
in respect of any of the Obligations, or the performance or observance by the
Borrower or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of their obligations under this Agreement or
any of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto or the validity or enforceability or priority of
any lien or any Collateral; (c) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 6.4 and Section 7.4 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (d) such
assignee will, independently and without reliance upon the assigning Lender,
the Agent or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions and Collateral decisions in taking or not taking action under this
Agreement, (e) such assignee represents and warrants that it is an Eligible
Assignee; (f) such assignee appoints and authorizes the Agent to take such
action as "Agent" on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to the Agent by the
terms hereof or thereof, together with such powers as are reasonably
incidental thereto; (g) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender; and (h) such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance.
Section 18.3. Register. The Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitment Percentages of, and principal amount of the Loans owing to the
Lenders from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower and the Lenders at any reasonable time and
from time to time upon reasonable prior notice. Upon each such recordation,
the assigning Lender agrees to pay to the Agent a registration fee in the sum
of $2,500.00. The Agent may amend Schedules 1 and 1.2 hereof to reflect the
recording of any such assignments.
Section 18.4. New Notes. Upon its receipt of an Assignment and
Acceptance executed by the parties to such assignment, together with each
Note subject to such assignment, the Agent shall
76
<PAGE>
(a) record the information contained therein in the Register, and (b) give
prompt notice thereof to the Borrower and the Lenders (other than the
assigning Lender ). Within five (5) Business Days after receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Agent, in exchange for each surrendered Note, a new Note to the order of such
Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained some portion of its Loans hereunder, a new Note to the
order of the assigning Lender in an amount equal to the amount retained by it
hereunder. Such new Notes shall provide that they are replacements for the
surrendered Notes and that they do not constitute a novation, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the assigned
Notes. Within five (5) days of issuance of any new Notes pursuant to this
Section 18.4, the Borrower shall deliver an opinion of counsel, addressed to
the Lenders and the Agent, relating to the due authorization, execution and
delivery of such new Notes and the legality, validity and binding
non-preferential effect thereof, and that the Obligations evidenced by the
new Notes are secured by the Collateral with the same validity,
enforceability and priority as if given on the Effective Date, in form and
substance satisfactory to the Lenders. The surrendered Notes shall be
cancelled and returned to the Borrower.
Section 18.5. Participations. Each Lender may sell participations to
one or more banks or other entities in a portion of such Lender's rights and
obligations under this Agreement and the other Loan Documents not to exceed
forty-nine percent (49%) of its Commitment Percentage; provided that (a) the
Agent shall have given its prior written consent to such participation,
except that any Lender may sell participations to its Affiliated Lenders
without such consent, (b) each such participation shall be in an amount of
not less than $10,000,000 that is a whole multiple of $1,000,000, (c) any
such sale or participation shall not affect the rights and duties of the
selling Lender hereunder to the Borrower and the Lender shall continue to
exercise all approvals, disapprovals and other functions of a Lender, (d)
the only rights granted to the participant pursuant to such participation
arrangements with respect to waivers, amendments or modifications of the Loan
Documents shall be the rights to approve the vote of the Lender as to
waivers, amendments or modifications that would reduce the principal of or
the interest rate on any Loans, extend the term or increase the amount of the
Commitment of such Lender as it relates to such participant, reduce the
amount of any fees to which such participant is entitled or extend any
regularly scheduled payment date for principal or interest, provided that all
approvals affecting a Loan or this Agreement under this clause (d) shall be
by a fifty-one percent (51%) vote of such Lender's Commitment Percentage,
and (e) no participant shall have the right to grant further participations
or assign its rights, obligations or interests under such participation to
other Persons without the prior written consent of the Agent. The Agent shall
promptly advise the Borrower in writing of any such sale or participation.
Section 18.6. Pledge by Lender. Any Lender may at any time pledge
all or any portion of its interest and rights under this Agreement (including
all or any portion of its Note) to any of the
77
<PAGE>
twelve Federal Reserve Lenders organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341. No such pledge or the enforcement thereof
shall release the pledgor Lender from its obligations hereunder or under any
of the other Loan Documents.
Section 18.7. No Assignment by Borrower. The Borrower shall not
assign or transfer any of its rights or obligations under any of the Loan
Documents without the prior written consent of each of the Lenders.
Section 18.8. Disclosure. The Borrower agrees that in addition to
disclosures made in accordance with standard banking practices any Lender may
disclose information obtained by such Lender pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder.
Such Lender shall obtain from each party to whom it discloses such
information, the agreement by such party to comply with the Lenders'
agreements with respect to Confidential Information set forth in Section 7.9.
Section 19. NOTICES, ETC. Except as otherwise expressly provided in
this Agreement, all notices and other communications made or required to be
given pursuant to this Agreement or the Notes shall be in writing and shall
be delivered in hand, mailed by United States registered or certified first
class mail, postage prepaid, sent by overnight courier, or sent by telegraph,
telecopy, telefax or telex and confirmed by delivery via courier or postal
service, addressed as follows:
(a) if to the Borrower, at 77 West Wacker Drive, Suite
3900, Chicago, IL 60601, Attention: Chief Financial Officer or at such other
address for notice as the Borrower shall last have furnished in writing to
the Agent; and
(b) if to the Agent, at 100 Federal Street, Boston,
Massachusetts 02110, Attention: Real Estate Department, and to 115 Perimeter
Center Place, N.E., Suite 500, Atlanta, Georgia 30346, Attn: Lori Y. Litow,
Vice President, or such other address for notice as the Agent shall last have
furnished in writing to the Borrower.
(c) if to any Lender, at such Lender's address set forth
on Schedule 1, hereto, or such other address for notice as such Lender shall
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier
or facsimile to a responsible officer of the party to which it is directed,
at the time of the receipt thereof by such officer or the sending of such
facsimile and (ii) if sent by registered or certified first-class mail,
postage prepaid, on the third Business Day following the mailing thereof.
78
<PAGE>
Section 20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS
AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF
NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT BY IT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR THE STATE OF
NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND BORROWER CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT FOR ANY SUIT BY AGENT OR ANY LENDER
AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY
MAIL AT THE ADDRESS SPECIFIED IN Section 19. THE BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR
ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT. IN
ADDITION TO THE COURTS OF MASSACHUSETTS AND NEW YORK OR ANY FEDERAL COURT
SITTING THEREIN, THE AGENT OR ANY LENDER MAY BRING ACTION(S) FOR ENFORCEMENT
ON A NONEXCLUSIVE BASIS WHERE ANY COLLATERAL EXISTS AND THE BORROWER CONSENTS
TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN
ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED
IN Section 19.
Section 21. HEADINGS. The captions in this Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
Section 22. COUNTERPARTS. This Agreement and any amendment hereof
may be executed in several counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an
original, and all of which together shall constitute one instrument. In
proving this Agreement it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom enforcement
is sought.
Section 23. ENTIRE AGREEMENT. The Loan Documents and any other
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in Section 25.
Section 24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. THE
BORROWER HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE
NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER
OR THEREUNDER OR THE PERFORMANCE
79
<PAGE>
OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY
LAW, THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN
ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION
TO, ACTUAL DAMAGES. THE BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF THE AGENT OR ANY LENDER HAD REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE AGENT OR SUCH LENDER WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT
THE AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS,
THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
Section 25. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or
approval required or permitted by this Agreement may be given, and any term
of this Agreement or of any other instrument related hereto or mentioned
herein may be amended, and the performance or observance by the Borrower of
any terms of this Agreement or such other instrument or the continuance of
any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Requisite Lenders, and, in the case of
amendments, with the written consent of the Borrower other than amendments to
schedules made in the ordinary course as contemplated by this Agreement.
Notwithstanding the foregoing, (i) the rate of interest on and the term or
amount of the Notes, (ii) the amount of the Commitments of the Lenders, (iii)
the amount of any fee payable to a Lender hereunder, (iv) any provision
herein or in any of the Loan Documents which expressly requires consent of
all the Lenders, (v) the funding provisions of Section 2.4 and Section 2.5
hereof, and (vi) the rights, duties and obligations of the Agent specified in
Section 14 hereof, may not be amended without the written consent of each
Lender affected thereby, nor may the Agent release any obligor from its
liability with respect to the Obligations, without first obtaining the
written consent of all the Lenders. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agent or any Lender
in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall entitle
the Borrower to other or further notice or demand in similar or other
circumstances.
Section 26. SEVERABILITY. The provisions of this Agreement are
severable, and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity
or unenforceability shall affect only such clause or provision, or part
thereof, in such jurisdiction, and shall not in any manner affect such clause
or provision in any other jurisdiction, or any other clause or provision of
this Agreement in any jurisdiction.
80
<PAGE>
Section 27. ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(i) neither the Agent nor any Lender has any fiduciary relationship with, or
fiduciary duty to, the Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents; (ii) the relationship in
connection herewith between the Agent and the Lenders, on the one hand, and
the Borrower, on the other hand, is solely that of debtor and creditor and
(iii) no joint venture or partnership among any of the parties hereto is
created hereby or by the other Loan Documents, or otherwise exists by virtue
of the Facility or the Loans.
Section 28. PARTNER LIABILITY.
Section 28.1. Limited Recourse to Company. Notwithstanding anything
expressed or implied to the contrary contained herein, the Company shall not
be liable hereunder or under any Guaranty or under any legal or equitable
proceeding or by virtue of any statute, regulation or other applicable law
for (i) any payment of principal or interest on, or any other amounts due
under, any of the Loans, or (ii) any reimbursement obligation with respect to
a Drawing under a Letter of Credit, or (iii) to repay any other indebtedness
of Borrower or any Guarantor, provided, however, that nothing herein shall be
construed to prevent the Agent or any Lender from recovering from the
Company, or limit the Agent's or any Lender's recourse against the Company
for any losses, damages or costs (including, without limitation, reasonable
legal expenses), incurred by the Agent or any Lender in connection with the
Company's breach of the Company's own covenants and agreements herein or in
the Indemnity Agreement, or in connection with the Company's fraud,
misappropriation of funds (whether due to the Company's failure to contribute
Net Offering Proceeds to the Borrower, as required by Section 7.20, or its
receipt of Distributions from the Borrower in violation of Section 8.7, or
otherwise) or any misrepresentation made by or on behalf of the Company
hereunder or in connection with the transactions contemplated hereby.
Section 28.2. Limited Recourse to Partners of Borrower other than
the Company. With respect to all partners of the Borrower other than the
Company, no personal deficiency judgment or any other judgment shall be
asserted or enforced against any such partner for payment of any amount
hereunder or for observance or performance of any of the obligations of the
Borrower contained herein, except as expressly set forth in this agreement or
any other agreement or instrument or document as an obligation of such
partner in connection herewith, and provided that the foregoing shall not
affect the liability which any of such other partners may have for any fraud,
misappropriation of funds or intentional misrepresentation made hereunder by
or on behalf of the Borrower or in connection with the transactions
contemplated hereby.
81
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as a sealed instrument as of the date first set forth above.
<TABLE>
<CAPTION>
<S> <C>
WITNESS: BANKBOSTON, N.A.
- ---------------------------------------- By:
----------------------------------------
Lori Y. Litow
Its: Vice Presiden
----------------------------------------
PRUDENTIAL SECURITIES CREDIT
CORPORATION
By: /s/ George D. Morgan
- ---------------------------------------- ----------------------------------------
George D. Morgan
Its: Vice President
----------------------------------------
PRIME GROUP REALTY TRUST
- ---------------------------------------- By:
----------------------------------------
----------------------------------------
Its:
----------------------------------------
PRIME GROUP REALTY, L.P.
By: PRIME GROUP REALTY TRUST,
its general partner
- ---------------------------------------- By:
----------------------------------------
----------------------------------------
Its:
----------------------------------------
</TABLE>
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as a sealed instrument as of the date first set forth above.
<TABLE>
<CAPTION>
<S> <C>
WITNESS: BANKBOSTON, N.A.
/s/Nancy Johns
- ---------------------------------------- By: /s/ Lori Y. Litow
----------------------------------------
Lori Y. Litow
Its: Vice President
PRUDENTIAL SECURITIES CREDIT
CORPORATION
By:
- ---------------------------------------- ----------------------------------------
----------------------------------------
Its:
----------------------------------------
PRIME GROUP REALTY TRUST
/s/Illegible
- ---------------------------------------- By: /s/ W. Michael Karnes
----------------------------------------
W. Michael Karnes
Its: Executive VP
PRIME GROUP REALTY, L.P.
By: PRIME GROUP REALTY TRUST,
its general partner
/s/Illegible
- ---------------------------------------- By: /s/ W. Michael Karnes
----------------------------------------
W. Michael Karnes
Its: Executive VP
</TABLE>
<PAGE>
Exhibit A
FORM OF NOTE
No. ___ [Date]
[Amount]
FOR VALUE RECEIVED, the undersigned, Prime Group Realty, L.P., a
Delaware limited partnership (the "Borrower"), promises to pay to the order
of [Name of Lender] (hereinafter, together with its successors in title and
assigns, called the "Lender") at the head office of BankBoston, N.A., as
Agent (the "Agent") at 100 Federal Street, Boston, Massachusetts 02110, the
principal sum of [Amount in Words][Amount in Numbers] or, if less, the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to the Credit Agreement dated as of November 17, 1997 among
the Lender, the Borrower, Prime Group Realty Trust, the other lending
institutions named therein and the Agent, as amended from time to time (the
"Credit Agreement"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement.
Unless otherwise provided herein, the rules of interpretation set forth in
Section 1.2 of the Credit Agreement shall be applicable to this Note.
The Borrower also promises to pay (a) principal from time to time at
the times provided in the Credit Agreement and (b) interest from the date
hereof on the principal amount from time to time unpaid at the rates and
times set forth in the Credit Agreement and in all cases in accordance with
the terms of the Credit Agreement. Late charges and other charges and default
rate interest shall be paid by Borrower in accordance with the terms of the
Credit Agreement. The entire outstanding principal amount of this Note,
together with all accrued but unpaid interest thereon, shall be due and
payable in full on the Maturity Date. The Lender may endorse the record
relating to this Note with appropriate notations evidencing advances and
payments of principal hereunder as contemplated by the Credit Agreement.
This Note is issued pursuant to, is entitled to the benefits of, and
is subject to the provisions of the Credit Agreement. The principal of this
Note is subject to prepayment in whole or in part in the manner and to the
extent specified in the Credit Agreement. This Note is secured by the
Security Documents. However, the principal of this Note, the interest accrued
on this Note and all other Obligations of the Borrower are full recourse
obligations of the Borrower, and all of its Real Estate Assets, the
Collateral and its other properties shall be available for the payment and
performance of this Note, the interest accrued on this Note, and all of such
other Obligations. The liability of the partners of the Borrower hereunder is
limited as set forth in Section 28 of the Credit Agreement.
In case an Event of Default shall occur and be continuing, the
entire unpaid principal amount of this Note and all of the unpaid interest
accrued thereon may become or be declared due and payable in the manner and
with the effect provided in the Credit Agreement.
The Borrower and all endorsers hereby waive presentment, demand,
protest and notice of any kind in connection with the delivery, acceptance,
performance and enforcement of this Note, and also hereby assent to
extensions of time of payment or forbearance or other indulgences without
notice.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL BE
GOVERNED BY AND INTERPRETED AND DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF
LAW).
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed in its name as an instrument under seal on the date first above
written.
WITNESS: PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust,
its managing general partner
By:
- ----------------------------------- -----------------------------------
<PAGE>
Exhibit B
LOAN REQUEST
Prime Group Realty, L.P.
77 West Wacker Drive, Suite 3900
Chicago, IL 60601
[Date]
BankBoston, N.A., as Agent
100 Federal Street
Boston, MA 02110
Ladies and Gentlemen:
Re: Loan Request under Credit Agreement
dated as of November 17, 1997
Pursuant to Section 2.5 of the Credit Agreement dated as of November
17, 1997, among you, certain other Lenders and us (the "Credit Agreement"),
we hereby request that you make a Loan as follows:
(i) Principal amount requested: $
-----------
(ii) Proposed Borrowing Date:
----------------
(iii) Interest Period:
-------------------------
(iv) Type:
-----------------------------------
(v) Purpose of Loan:
-----------------------------------
This Loan Request is submitted pursuant to, and shall be governed
by, and subject to satisfaction of, the terms, conditions and provisions set
forth in Section 2.5 of the Credit Agreement.
<PAGE>
The undersigned hereby further certifies to you that it is in
compliance with the covenants specified in Section 9 of the Credit Agreement,
and will remain in compliance with such covenants after the making of the
requested Loan, as evidenced by a Compliance Certificate in the form of
Exhibit C to the Credit Agreement of even date herewith delivered to you
simultaneously with this Loan Request.
We also understand that if you grant this request this request
obligates us to accept the requested Loan on such date. All terms defined in
the Credit Agreement and used herein without definition shall have the
meanings set forth in Section 1.1 of the Credit Agreement.
The undersigned hereby certifies to you, in accordance with the
provisions of Section 11.1 of the Credit Agreement, that the representations
and warranties contained in the Credit Agreement and in each document and
instrument delivered pursuant to or in connection therewith were true as of
the date as of which they were made, are also true at and as of the date
hereof, and will also be true at and as of the proposed Borrowing Date of the
Loan requested hereby, in each case except as otherwise permitted pursuant to
the provisions of Section 11.1 of the Credit Agreement, and no Default or
Event of Default has occurred and is continuing.
Very truly yours,
Prime Group Realty, L.P.
By: Prime Group Realty Trust,
Its managing general partner
By:
-------------------------------
-------------------------------
Its:
--------------------------
<PAGE>
Exhibit C
Prime Group Realty, L.P.
77 West Wacker Drive, Suite 3900
Chicago, IL 60601
Compliance Certificate under
Credit Agreement dated as of November 17, 1997
The undersigned, a Responsible Officer of Prime Group Realty Trust,
general partner of Prime Group Realty, L.P. (the "Borrower"), hereby
certifies on behalf of the Borrower as of the date hereof the following:
1. No Defaults. I have read a copy of the Credit Agreement dated as
of November 17, 1997 (the "Credit Agreement") among the Borrower, BankBoston,
N.A., the other lending institutions party thereto, and BankBoston, N.A., as
Agent. Terms used herein and not otherwise defined herein shall have the
meanings set forth in Section 1.1 of the Credit Agreement. No Default is
continuing in the performance or observance of any of the covenants, terms or
provisions of the Credit Agreement or any of the other Loan Documents.
Without limiting the foregoing, the Borrower has not taken any actions which
are prohibited by the negative covenants set forth in Section 8 of the Credit
Agreement. Attached hereto as Appendix I are all relevant calculations needed
to determine whether the Borrower is in compliance with Section 9 and Section
8.3(g) of the Credit Agreement as of the end of the most recently completed
fiscal quarter (except that in the case of Compliance Certificates delivered
pursuant to Section 2.5(a), Section 2.9(b) Section 11.1, Section 5.5(a) or
Section 8.4(b), the calculations determining compliance with Section 9.1,
Section 9.2 and Section 9.3 are based on a Pro Forma Principal Amount (after
giving effect to the proposed transaction) and is in compliance with Section
8.7 of the Credit Agreement for the most recently completed fiscal year.
2. No Material Changes, Etc. Except as disclosed on Appendix II
hereto, since the [date of most recent financial statements furnished to the
Agent and the Lenders], there have occurred no materially adverse changes in
the financial condition or business of the Borrower as shown on or reflected
in the balance sheet of the Borrower as at such date other than (a) changes
in the ordinary course of business that have not had any materially adverse
effect either individually or in the aggregate on the business or financial
condition of the Borrower and (b) changes resulting from the making of the
Loans and the transactions contemplated by the Credit Agreement.
3. No Materially Adverse Contracts, Etc. Neither the Borrower nor
the Company is subject to any charter, corporate, trust, partnership or other
legal restriction, or any judgment, decree, order, rule or regulation that
has or is expected, in the reasonable judgment of the Company's officers, in
the future to have a Materially Adverse Effect. Neither the Borrower nor the
Company is a party to any contract or agreement that has or is expected, in
the reasonable judgment of the Company's officers, to have a Materially
Adverse Effect.
<PAGE>
Prime Group Realty, L.P.
By: Prime Group Realty Trust,
Its managing general partner
By:
-------------------------------
-------------------------------
Its:
--------------------------
Date:
<PAGE>
Appendix I
FINANCIAL COVENANT CALCULATIONS
Note: Unless otherwise indicated all calculations are as of
or for the fiscal quarter ending on such date (the "Fiscal Quarter").
<TABLE>
<CAPTION>
<S> <C>
1. Appraisal Value [Section 9.1]
(a) Pro Forma Principal Amount $_____________
(b) Collateral Value of Mortgaged $_____________
Properties (see attached Schedule
of Collateral Values)
CALCULATIONS: (a)/(b) = ____% which is less than 60%
2. Minimum Debt Service Coverage [Section 9.2]
(a) Net Operating Income for all of the Mortgaged Properties: $_____________
(b) Pro Forma Debt Service Charges for Mortgaged Properties based
on three monthly payments of mortgage style amortization of
the Pro Forma Principal Amount of $_______________ amortized
over 25 years at _______% per annum, being the greater of the
current average interest rate on the Loans or 1.75% above the
current ten year U.S. Treasury bill yield: $_____________
CALCULATIONS: (a)/(b) = _________ which is not less than 1.5
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
3. Total Liabilities to Total Adjusted Assets [Section 9.3]
(a) Total Liabilities: $_____________
(b) Cash and cash equivalents: $_____________
(c) EBITDA last quarter: $_____________
(d) EBITDA previous quarter: $_____________
(e) Annualized EBITDA [(c) + (d) times 2]: $_____________
(f) Line (e) divided by 0.0975: $_____________
(g) Total Adjusted Assets [(b) + (f)]: $_____________
CALCULATIONS: (a)/(g) = which is less than 55%
---------
4. Minimum Tangible Net Worth [Section 9.4]
(a) Total Assets (GAAP assets plus depreciation
on Real Estate Assets) $_____________
(b) Total Liabilities (same as line 3(a)) $_____________
(c) Intangibles $_____________
(d) Tangible Net Worth [(a)-(b)-(c)] $_____________
(e) Net Offering Proceeds $_____________
(f) $350,000,000 plus .75 times (e) $_____________
COVENANT: Line (d) should exceed line (f)
5. Total Operating Cash Flow to Interest Expense [Section 9.5]
(a) EBITDA (same as line 3(c)) $_____________
(b) Gross leasable area of all Real Estate Assets ______________
(c) Reserve Amount ((c) times $0.25 divided by 4) $_____________
(d) Total Operating Cash Flow [(a) - (c)] $_____________
(e) Interest Expense (includes capitalized interest) $_____________
CALCULATIONS: (d)/(e) = _____ which is not less than 2.0
6. EBITDA to Fixed Charges [Section 9.6]
(a) EBITDA (same as line 3(c)) $_____________
(b) Interest Expense (same as line 5(e)) $_____________
(c) Principal installments and current maturities $_____________
not refinanced
(d) Preferred dividends and distributions $_____________
(e) Fixed Charges (sum of lines (b), (c), and (d)) $_____________
CALCULATIONS: (a)/(e) = ____________which is not less than 1.75
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
8. Investments in Permitted Developments [Section 8.3(g)]
Attached hereto is a Schedule of all Permitted Developments
in process as of ________________
(a) Investments in Permitted Developments $_____________
(b) Total Adjusted Assets (same as line 3(g)) $_____________
(c) 20% of Total Adjusted Assets $_____________
COVENANT:
Line (a) should not exceed line (c)
9. Distributions [Section 8.7]
(a) Total Distributions during most recently ended $_____________
fiscal year
(b) Funds From Operations for said fiscal year $_____________
(c) Total Distributions during most recently ended $_____________
fiscal quarter
(d) Funds from Operations for fiscal quarter referenced $_____________
in (c)
(e) Total Distributions during the fiscal quarter preceding $_____________
the fiscal quarter referenced in (c)
(f) Funds from Operations during fiscal quarter referenced $_____________
in (e)
(g) Total Distributions during the fiscal quarter preceding $_____________
the fiscal quarter referenced in (e)
(h) Funds from Operations during fiscal quarter referenced $_____________
in (g)
CALCULATIONS: (a)/(b) = _____% which is less than 90%
(c)/(d) = _____%
(e)/(f) = _____%
(g)/(h) = _____%
</TABLE>
At least one of the three percentages immediately above is less than
100%
<PAGE>
SCHEDULE OF COLLATERAL VALUES
<TABLE>
<CAPTION>
Borrowing
Mortgaged NOI NOI Reserve Cap Base Appraised
Collateral
Property Last Q Previous Q Amount Rate Value Value Value
-------- ------ ---------- ------ ---- ----- ----- -----
<S> <C>
Totals:
</TABLE>
<PAGE>
SCHEDULE OF
PERMITTED DEVELOPMENTS
<TABLE>
<CAPTION>
Scheduled
Project Location Size (sq. ft.) Total Project Cost Start Date Completion Date
- ---------------- -------------- ------------------ ---------- ---------------
<S> <C>
</TABLE>
<PAGE>
APPENDIX II
MATERIAL CHANGES
<PAGE>
Exhibit D
LETTER OF CREDIT REQUEST
Prime Group Realty, L.P.
77 West Wacker Drive, Suite 3900
Chicago, IL 60601
[Date]
BankBoston, N.A., as Agent
100 Federal Street
Boston, MA 02110
Ladies and Gentlemen:
Re: Letter of Credit Request under Credit
Agreement dated as of November 17, 1997
Pursuant to Section 2.9 of the Credit Agreement dated as of November
17, 1997, among you, Prime Group Realty Trust, certain other Lenders and us
(the "Credit Agreement"), we hereby request that you issue
[extend or renew, if applicable] a Letter of Credit as follows:
(i) Name and address of beneficiary:
(ii) Face amount: $
(iii) Proposed Issuance Date:
Proposed Expiration Date:
(iv) Other terms and conditions as set forth in the
proposed form of Letter of Credit attached hereto.
(v) Purpose of Letter of Credit:
<PAGE>
This Letter of Credit Request is submitted pursuant to, and shall be
governed by, and subject to satisfaction of, the terms, conditions and
provisions set forth in Section 2.9 of the Credit Agreement.
The undersigned hereby further certifies to you that it is in
compliance with the covenants specified in Section 9 of the Credit Agreement,
and will remain in compliance with such covenants after the Outstanding
Principal Amount is adjusted to include the face amount of the requested
Letter of Credit, as evidenced by a Compliance Certificate in the form of
Exhibit C to the Credit Agreement of even date herewith delivered to you
simultaneously with this Letter of Credit Request.
We also understand that if you grant this request this request
obligates us to accept the requested Letter of Credit
[or extension or renewal thereof] and pay the issuance fee
[or the renewal fee] and Letter of Credit fee as required by Section 2.9(c).
All terms defined in the Credit Agreement and used herein without definition
shall have the meanings set forth in Section 1.1 of the Credit Agreement.
The undersigned hereby certifies to you, in accordance with the
provisions of Section 11.1 of the Credit Agreement, that the representations and
warranties contained in the Credit Agreement and in each document and instrument
delivered pursuant to or in connection therewith were true as of the date as of
which they were made, are also true at and as of the date hereof, and will also
be true at and as of the proposed issuance date of the Letter of Credit
requested hereby, in each case except as otherwise permitted pursuant to the
provisions of Section 11.1 of the Credit Agreement, and no Default or Event of
Default has occurred and is continuing.
Very truly yours,
Prime Group Realty, L.P.
By: Prime Group Realty Trust,
Its general partner
By:
-------------------------------
-------------------------------
Its:
-------------------------------
<PAGE>
EXHIBIT F
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated
Reference is made to the Credit Agreement, dated as of November 17,
1997 (as amended and in effect from time to time, the "Agreement"), among Prime
Group Realty, L.P., a Delaware limited partnership (the "Borrower"), BankBoston,
N.A., the other Lenders and BankBoston, N.A. as agent (the "Agent") for itself
and the other Lenders. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Agreement.
(the "Assignor") and
- ------------------------------------------------------------
(the "Assignee") agree as follows:
- -------------------------------------------
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, a % interest in
and to all the Assignor's rights and obligations under the Agreement as of
the Effective Date (as hereinafter defined).
2. The Assignor (i) represents that as of the date hereof, its
Commitment (without giving effect to assignments thereof which have not yet
become effective) is $__________ and its Commitment Percentage with respect
thereto is %, and the outstanding balance of its Loans (unreduced by any
assignments thereof which have not yet become effective) is $__________; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement, the other Loan Documents or any other
instrument or document furnished pursuant thereto on the status or value of any
Collateral, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder and that such interest is free and clear of any
adverse claim; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any of
its Subsidiaries or any other person which may be primarily or secondarily
liable in respect of any of the Obligations or any of their obligations under
the Agreement or the other Loan Documents or any other instrument or document
delivered or executed pursuant thereto; and (v) attaches the Note delivered to
it under the Agreement and requests that the Borrower exchange such Note for new
Notes payable to each of the Assignor and the Assignee as follows:
<PAGE>
Notes Payable to Amount
the Order of: of Note
- ----------------- -------
[Name of Assignor] [($ )]
[Name of Assignee] [($ )]
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Agreement, together with copies of the most recent
financial statements delivered pursuant to Sections 6.4 and 7.4 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (iii)
agrees that it will, independently and without reliance upon the Assignor, any
other Lender or the Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
and review and analysis of the granting and perfecting of any purported liens
and the status and value of any Collateral in taking or not taking action under
the Agreement; (iv) confirms that it is an Eligible Assignee; (v) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers as are reasonably incidental thereto pursuant to the terms of the
Agreement and the other Loan Documents; and (vi) agrees that it will perform all
the obligations which by the terms of the Agreement are required to be performed
by it as a Lender in accordance with the terms of the Agreement.
4. The effective date for this Assignment and Acceptance shall be
(the "Effective Date"). Following the execution of this Assignment
and Acceptance, it will be delivered to the Agent for acceptance and
recording in the Register by the Agent. This Assignment and Acceptance may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Assignment
and Acceptance it shall not be necessary to produce or account for more than
one such counterpart signed by the party against whom enforcement is sought.
5. Upon such acceptance and recording, from and after the Effective
Date, (i) the Assignee shall be a party to the Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder, and (ii) the Assignor shall, with respect to that portion of
its interest under the Agreement assigned hereunder relinquish its rights and be
released from its obligations under the Agreement.
6. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the interest assigned
hereby (including payments of principal, interest, fees and other amounts) to
the Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments for periods prior to the Effective Date by the Agent or with respect
to the making of this assignment directly between themselves.
<PAGE>
7. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE EFFECT AS A
SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed on its
behalf by its officer thereunto duly authorized, as of the date first above
written.
[NAME OF ASSIGNOR]
By:
-------------------------------
Title:
-----------------------------
[NAME OF ASSIGNEE]
By:
-------------------------------
Title:
----------------------------
<PAGE>
SCHEDULE 1
Lenders; Domestic and Eurodollar Lending Offices
BankBoston, N.A.
100 Federal Street
Boston, MA 02110
(Domestic and Eurodollar)
Prudential Securities Credit Corporation
One New York Plaza
New York, New York 10292
(Domestic and Eurodollar)
<PAGE>
SCHEDULE 1.1
Mortgaged Properties
1. Donnelley Building, 77 West Wacker Drive, Chicago, IL
<PAGE>
SCHEDULE 1.2
Commitments
<TABLE>
<CAPTION>
Commitment
Lender Commitment Percentage
- ------ ---------- ----------
<S> <C> <C>
BankBoston, N.A $112,500,000 50%
Prudential Securities Credit Corporation $112,500,000 50%
Total $225,000,000 100%
</TABLE>
<PAGE>
SCHEDULE 1.3
Guarantor Subsidiaries, Related Companies and Permitted Joint Ventures
Guarantor Subsidiaries
- ----------------------
77 West Wacker Limited Partnership
Enterprise Center I, L.P.
Enterprise Center II, L.P.
Enterprise Center III, L.P.
Enterprise Center IV, L.P.
Enterprise Center V, L.P.
Enterprise Center VI, L.P.
Enterprise Center VII, L.P.
Enterprise Center VIII, L.P.
Enterprise Center IX, L.P.
Enterprise Center X, L.P.
Arlington Heights I, L.P.
Arlington Heights II, L.P.
Arlington Heights III, L.P.
East Chicago Enterprise Center Limited Partnership
Hammond Enterprise Center Limited Partnership
Nashville Office Building I, Ltd.
Old Kingston Properties, Ltd.
Professional Plaza, Ltd.
Centre Square II, Ltd.
Triad Parking Company, Ltd.
Related Companies
- -----------------
Prime Group Realty Trust
Prime Group Realty, L.P.
1990 Algonquin Road, L.L.C.
2010 Algonquin Road, L.L.C.
555 Huehl Road, L.L.C.
1669 Wodfiled Road, L.L.C.
475 Superior Avenue, L.L.C. Enterprise Drive, L.L.C.
Enterprise Drive, L.L.C.
280 Shuman Blvd., L.L.C.
77 West Wacker Limited Partnership
Enterprise Center I, L.P.
Enterprise Center II, L.P.
Enterprise Center III, L.P.
Enterprise Center IV, L.P.
Enterprise Center V, L.P.
Enterprise Center VI, L.P.
<PAGE>
SCHEDULE 1.3 (continued)
Enterprise Center VII, L.P.
Enterprise Center VIII, L.P.
Enterprise Center IX, L.P.
Enterprise Center X, L.P.
Arlington Heights I, L.P.
Arlington Heights II, L.P.
Arlington Heights III, L.P.
East Chicago Enterprise Center Limited Partnership
Hammond Enterprise Center Limited Partnership
Nashville Office Building I, Ltd.
Old Kingston Properties, Ltd.
Professional Plaza, Ltd.
Centre Square II, Ltd.
Triad Parking Company, Ltd.
77 Fitness Center Limited Partnership
Libertyville Tech Way, L.L.C.
3818 Grandville, L.L.C.
306 Era Drive, L.L.C.
1301 Ridgeview Drive, L.L.C.
515 Heuhl Road, L.L.C.
455 Academy Drive, L.L.C.
801 Technology Way, L.L.C.
Prime Columbus Industrial, L.L.C.
Kemper/Prime Industrial Partner
1051 N. Kirk Road, L.L.C.
4211 Madison Street, L.L.C.
200 E. Fullerton L.L.C.
350 Randy Road, L.L.C.
4300 Madison Street, L.L.C.
370 Carol Lane, L.L.C.
388 Carol Lane, L.L.C.
941 Weigel Drive, L.L.C.
342 Carol Lane, L.L.C.
343 Carol Lane, L.L.C.
371 N. Gary Avenue, L.L.C.
350 N. Mannheim Road, L.L.C.
1600 167th Street, L.L.C.
1301 E. Tower Road, L.L.C.
4343 Commerce Court, L.L.C.
11039 Gage Avenue, L.L.C.
11045 Gage Avenue, L.L.C.
1401 S. Jefferson, L.L.C.
4100 Madison Street, L.L.C.
4160 Madison Street, L.L.C.
550 Kehoe Blvd., L.L.C.
<PAGE>
SCHEDULE 1.3 (continued)
Permitted Joint Ventures
None.
<PAGE>
SCHEDULE 1.4
Initial Letters of Credit
<TABLE>
<CAPTION>
Beneficiary IRB Project Face Amount
- ----------- ----------- -----------
<S> <C> <C>
NBD Bank, N. A Enterprise Center I, L.P. $2,939,726
NBD Bank, N. A Enterprise Center II, L.P. $5,068,493
NBD Bank, N. A Enterprise Center III, L.P. $4,561,644
NBD Bank, N. A Enterprise Center IV, L.P. $2,635,616
NBD Bank, N. A Enterprise Center V, L.P. $5,068,493
NBD Bank, N. A Enterprise Center VI, L.P. $4,967,123
Cole Taylor Bank Enterprise Center VII, L.P. $7,298,630
Cole Taylor Bank Enterprise Center VIII, L.P. $7,095,890
Cole Taylor Bank Enterprise Center IX, L.P. $4,815,068
Cole Taylor Bank Enterprise Center X, L.P. $4,358,904
First Tennessee Bank N.A Nashville Office Building I, Ltd. $4,915,069
First Tennessee Bank N.A Old Kingston Properties, Ltd. $3,583,905
First Tennessee Bank N.A Professional Plaza, Ltd. $9,215,754
First Tennessee Bank N.A Centre Square II, Ltd. $9,215,754
Credit Suisse First Boston Tennessee Projects. $27,261,554.88
TOTAL $26,930,482
</TABLE>
<PAGE>
SCHEDULE 5.3 (b)
Required Additional Properties
1. Hilton Parking Garage, Knoxville, TN
2. Chicago Enterprise Ctr., Chicago, IL
3. Arlington Hts. Enterprise Ctr., 425 E. Algonquin Rd., Arlington Heights, IL
4. East Chicago Enterprise Ctr., East Chicago, IN
5. Hammond Enterprise Ctr., Hammond, IN
6. SunTrust Bank Bldg., 201 4th Ave., N., Nashville, TN
7. The Weston, 4823 Kingston Pike, Knoxville, TN
8. Centre Square I, 620 Market St., Knoxville, TN
9. Centre Square II, 625 Gay St., Knoxville, TN
<PAGE>
SCHEDULE 6.3
Title to Properties
R. Dan Culp holds a 0.1% limited partnership interest in Professional Plaza,
Ltd.
<PAGE>
SCHEDULE 6.7
Litigation
(a) Karen McIntosh v. The Prime Group, Inc., Pepper
Construction Company, 77 West Wacker Limited Partnership, and all
unknown owners of 77 West Wacker, Case No. 94 M2 1646, filed on June
9, 1994, in the Circuit Court of Cook County, Illinois, Municipal
Department - Second District. Plaintiff, an employee of a tenant in
the 77 West Wacker Drive Building (the "77 Project"), alleges that
she was struck by a board providing protection to the wood paneling
in the elevator cab in the 77 Project and, as a result thereof,
sustained injuries. Pepper Construction Company ("Pepper")
constructed the protective barrier in the elevator cab. The
plaintiff alleges that The Prime Group, Inc. ("PGI") and 77 West
Wacker Limited Partnership (the "77 Partnership") were negligent in
failing to maintain, inspect and repair the elevator cab in a
reasonable manner and, that her injuries were proximately caused by
such negligence. This matter has been forwarded to the 77
Partnership's insurance carrier. The 77 Partnership's insurance
carrier has tendered the defense of this action to the insurance
carrier for Pepper, which has accepted the tender. It is expected
that any and all damages awarded to the plaintiff against the 77
Partnership or PGI will be fully covered by insurance.
(b) Michael Spiezio v. Schal Associates, Inc., Pepper
Construction, The Prime Group, Inc. and Carrera Marble & Mosaics,
Case No. 92L15284, filed on December 15, 1992, in the Circuit Court
of Cook County, Illinois, County Department, Law Division. Plaintiff
alleges that he was an employee of Carrera Marble & Mosaics
("Carrera"), which performed work and/or supplied materials for or
in connection with the construction of the 77 Project. The plaintiff
alleges that, while working on the 77 Project, the plaintiff
sustained injuries, and is seeking damages therefor. The defense of
this case is being handled by Carrera's insurance carrier. It is
expected that any and all damages awarded to the plaintiff against
the 77 Partnership or PGI will be fully covered by insurance.
(c) Giuseppe Fricano v. Schal Associate, Inc. and 77 West
Wacker Limited Partnership, Case No. 92L14542, filed in the Circuit
Court, Cook County, Illinois on November 20, 1992. The plaintiff in
this action, alleges that he was an employee of GMI Corporation
("GMI"), a subcontractor retained by Schal to perform work in
connection with the construction of the 77 Project, and that he was
injured while performing work on the 77 Project. The 77 Partnership
has tendered defense of this lawsuit to the 77 Partnership's
insurance carrier, which, in turn, tendered defense of the action to
Massachusetts Bay Insurance Company ("MBIC"), the insurance carrier
of GMI, which has accepted the defense of this lawsuit. The defense
of this action is being handled by attorneys retained by MBIC. It is
expected that any and all damages awarded to the plaintiff against
the 77 Partnership will be fully covered by insurance.
(d) Charles O. Dowler v. Schal Associates, Inc., The Prime
Group, Inc., Prime Group Realty, Inc. and 77 West Wacker Limited
Partnership, Case No. 93L07708, filed on June 25, 1993, in the
Circuit Court of Cook County, Illinois, County Department, Law
Division. Plaintiff in this action alleges that he was employed by
PDM Structural Group
<PAGE>
("PDM"), a subcontractor retained by Schal to perform work in
connection with the construction of the 77 Project, and that, on or
about July 2, 1991, the plaintiff was injured while working on the
77 Project. The defense of PGI, Prime Group Realty, Inc. and the 77
Partnership in this action was tendered to the insurance carrier for
Schal, which, in turn, tendered the defense on behalf of Schal, PGI,
Prime Group Realty, Inc. and the 77 Partnership to the insurance
carrier for PDM. The insurance carrier for PDM has accepted tender
of the defense on behalf of all defendants of this action. The
defense of this action is being handled by attorneys retained by
PDM's insurance carrier. It is expected that any and all damages
awarded to the plaintiff against the 77 Partnership, PGI or Prime
Group Realty, Inc. will be fully covered by insurance.
(e) Robert Ochoa v. 77 West Wacker Limited Partnership,
American National Bank as Trustee under Trust Agreement No.
110025-08, The Prime Group, Inc., R.R. Donnelley Building, Schal
Construction Company, Pepper Construction, LaSalle Construction,
Robert Irsay Company and TOR Construction, Case No. 93L010010, filed
on August 17, 1993, in the Circuit Court of Cook County, Illinois,
County Department, Law Division. The plaintiff alleges that he was
an employee of Great Lakes Plumbing Heating Company ("Great Lakes"),
a subcontractor of Schal, and that, on or about May 2, 1992,
plaintiff fell off scaffolding while performing work in connection
with the construction of the 77 Project and, as a result thereof,
sustained injuries. The 77 Partnership has tendered defense of this
action on behalf of the 77 Partnership to the 77 Partnership's
insurance carrier, which, in turn, tendered defense of this action
to the insurance carrier for Schal. The insurance carrier for Schal,
in turn, tendered defense of this action to the insurance carrier
for Great Lakes, which has accepted such tender. The defense of this
action was being handled by attorneys retained by the insurance
carrier for Great Lakes. It is expected that any and all damages
awarded to the plaintiff against the 77 Partnership will be fully
covered by insurance.
(f) Michael Schumacher v. Schal Associates, Inc. and The
Prime Group, Inc., Case No. 94L08011, filed on June 29, 1994, in the
Circuit Court of Cook County, Illinois, County Department, Law
Division. The plaintiff alleges that he was an employee of Riggio
Caulking, Inc., a subcontractor of Schal, and that he was injured on
September 16, 1992 while performing work on or with respect to the
77 Project. This matter has been forwarded to the 77 Partnership's
insurance carrier, which tendered defense of this action to Schal's
insurance carrier. The defense of this action is being handled by
attorneys retained by Schal's insurance carrier. The 77 Partnership
expects that any and all damages awarded to the plaintiff against
the 77 Partnership will be fully covered by insurance.
(g) Terrance Sullivan v. The Prime Group, Inc., Schal
Associates, Inc. n/k/a Schal Bovis, Inc., 77 West Wacker Limited
Partnership, Pitt-Des Moines, Inc. and Tribco Construction Co., Case
No. 94L09311, filed on July 27, 1994, in the Circuit Court of Cook
County, Illinois, County Department, Law Division. The plaintiff,
alleges that he was an employee of Gateway Steel which, in turn, was
a subcontractor of Schal, and that, on August 18, 1990, the
plaintiff was injured while performing work in connection with the
construction of the 77 Project. This matter has been forwarded to
the 77 Partnership's insurance carrier, which tendered defense of
this action to Schal's insurance carrier.
<PAGE>
Schal's insurance carrier subsequently tendered this action to the
insurance carrier for Tribco Construction Co. ("Tribco"). The
defense of this action is being handled by attorneys retained by
Tribco's insurance carrier. It is expected that any and all damages
awarded to the plaintiff against the 77 Partnership will be fully
covered by insurance.
(h) Terrance Sullivan v. The Prime Group, Inc., Schal
Associates, Inc. and n/k/a Schal Bovis, Inc., and PDM Structural
Group, a division of Pitt-Des Moines, Inc., Case No. 95L00481, filed
on January 11, 1995 in the Circuit Court of Cook County, Illinois,
County Department, Law Division. The plaintiff alleges that he was
an employee of Gateway Erectors, which, in turn, was a subcontractor
of Schal, and that, on or about, May 30, 1991, while working at the
77 Project, the plaintiff was injured when the plaintiff was
required to lift a metal re-enforcing bar at the 77 Project. Defense
of this action on behalf of all defendants is being handled by
attorneys retained by the insurance carrier for a subcontractor of
Schal. It is expected that any and all damages awarded to plaintiff
against the 77 Partnership will be fully covered by insurance. This
case is in the discovery stage.
(i) Roger P. Ward d/b/a Roger Ward & Company v. Bank of
Montreal, Kemper Investors Life Insurance Company, 77 West Wacker
Limited Partnership, The Prime Group, Inc., The John Buck Company
and Keck, Mahin & Cate, Case No. 96CH02007284, filed on July 11,
1996, in the Circuit Court of Cook County, Illinois, County
Department, Chancery Division. The plaintiff in this action alleges
that he provided real estate brokerage services in connection with a
sublease between Keck, Mahin & Cate, as sublandlord, and Michael,
Best & Friedrich, as subtenant, for space in the 77 Project.
Plaintiff claims he is entitled to a commission payment of
$117,530.00 for such services, plus interest, fees and costs. The
plaintiff seeks foreclosure and other available relief. Motions to
Dismiss this action, filed by the defendants, have been granted. The
defendants are seeking to recover attorneys' fees and costs. The
plaintiff has indicated that he intends to appeal the granting of
the Motions to Dismiss. The 77 Partnership and PGI are represented
in this matter by Kenneth P. Purcell, Esq. of Winston & Strawn.
(j) McQuay Services v. The Prime Group, Inc., Case No.
97M1-158877, filed on October 29, 1997, in the Circuit Court of Cook
County, Illinois, Municipal Department, First District, Contract.
The plaintiff in this action seeks $10,353.01, plus interest, which
plaintiff alleges is due for a piece of equipment supplied by
plaintiff for the 77 Project. PGI and 77 Partnership claim that the
equipment was defective and, therefore, no amount is owed to
plaintiff. PGI and 77 Partnership intend to defend this action.
(k) Illiana Steel, Inc. Illiana Steel, Inc. ("Illiana"), a
tenant in the building owned by Enterprise Center IV, L.P.
("EC4LP"), has not paid all amounts which EC4LP has determined is
owed under its lease. Illiana has disputed the calculation of
additional rent under the lease and, as a result, has not paid all
of the amounts invoiced by EC4LP. In addition, a dispute exists
between Illiana and EC4LP over whether EC4LP is responsible for
tuckpointing brick on the exterior of the leased premises or for the
repairs of certain cranes in the leased premises. The parties
currently are negotiating a
<PAGE>
settlement of the matter.
(l) David Van Lul, Kathleen Van Lul and Sean Holloway v.
The Prime Group, Inc., Cause No 450049702CT00144, filed on February
19, 1997, in the Superior Court of Lake County, Indiana, Civil
Division, Room Four. In August, 1995, a trailer on the property
owned by EC1LP was blown over by wind, injuring David Van Lul's left
arm, wrist and back, injuring Sean Holloway's spine and extremities
and causing damage to the car owned by Mr. Holloway. The plaintiffs
allege that Prime was negligent and that such negligence caused the
incident. The defense in this action is being handled by EC1LP's
insurance carrier. It is expected that any damages awarded against
PGI in this action will be fully covered by insurance.
(m) John Garcia and Norma Garcia v. Brian Moore, The Prime
Group, Inc. and Deeann B. Auto Sales, Inc., Cause No. 45D019605CT
447, filed on May 6, 1996, in the Lake County Superior Court, Room
1, Hammond, Indiana. The plaintiffs in this action allege that, on
or about May 16, 1994, John Garcia was involved in an automobile
accident with a vehicle driven by Brian Moore, who, at the time, was
employed by PGI and worked through PGI's office in Hammond, Indiana.
PGI has tendered the defense of this action to its insurance
carrier. It is expected that all damages awarded to plaintiffs
against PGI in this action will be fully covered by insurance.
(n) Carol Riepe, Special Administratrix of the estate of
Frank J. Riepe, deceased v. Sterling Steel Services, Ltd., Sterling
Steel, Inc., The Prime Group, Inc. and Whiting Corporation, Case No.
96L02402, filed on March 1, 1996, in the Circuit Court of Cook
County, Illinois County Department, Law Division. The plaintiff in
this action seeks damages allegedly suffered by the plaintiff by
reason of the death of Frank J. Riepe. Mr. Riepe was an employee of
Whiting Corporation ("Whiting"). Whiting was retained by Enterprise
Center X, L.P. ("EC10LP") to perform certain work in the space
leased by Sterling. While working in the space leased by Sterling,
Mr. Riepe fell off scaffolding and died. It is expected that any
damages awarded in this action to plaintiff against PGI or EC10LP
will be fully covered by insurance. The defense of this action on
behalf of PGI and EC10LP is being handled by attorneys retained by
EC10LP's insurance carrier.
(o) Wojciech Chryczyk and Boguska Chryczyk v. The Prime
Group, Inc., Arlington Heights I, L.P., Arlington Heights II, L.P.,
Arlington Heights III, L.P., International Components Corporation,
Lech Construction Company and Belcore Electric Construction Co.,
Case No. 96-L-009297, filed on August 13, 1996, in the Circuit Court
of Cook County, Illinois, County Department, Law Division. This
action was brought by the plaintiffs to recover damages suffered on
account of an incident which occurred on or about April 28, 1995, in
the facility owned by Arlington Heights I, L.P. ("AH1LP"), Arlington
Height II, L.P. ("AH2LP") and Arlington Heights III, L.P. ("AH3LP";
collectively the "AH Partnerships"). On or about such date, Wojciech
Chryczyk, an electrician working in the facility owned by the AH
Partnerships, was severely burned as a result of an electrical
explosion which occurred from an electrical panel in the facility.
Mr. Chryczyk sustained burns over more than sixty percent of his
body and, thus far, has incurred more than $780,000.00 in medical
expenses. Mr. Chryczyk was employed by
<PAGE>
Sigma Electric Company, a subcontractor of Lech Construction
Company, which was retained by International Components Corporation
("ICC"), a tenant in the facility, to perform certain tenant
build-out work for ICC. This action is in the discovery stage. PGI
and the AH Partnerships are represented in this action by attorneys
retained by the insurance carrier for PGI and the AH Partnerships.
It is expected that any damages awarded to plaintiffs against Prime
and the AH Partnership will by fully covered by insurance.
<PAGE>
SCHEDULE 6.18
Environmental Reports
Phase I Environmental Assessment of Carlson Environmental, Inc. dated August
20, 1997 with respect to 77 West Wacker Drive, Chicago, Illinois
Letter from Carlson Environmental, Inc. dated November 11, 1997 to Jennifer
Nijman of Winston & Strawn and Juliette Browne of Verrill & Dana concerning
potential off-site issues with respect to 77 West Wacker Drive, Chicago,
Illinois
<PAGE>
SCHEDULE 6.22(d)
Engineering Reports
Engineer Evaluation of 77 West Wacker Drive
Chicago, Illinois dated November 10, 1997 by
Wiss, Janney, Elstner Associates, Inc.
120 N. LaSalle Street, Suite 2000
Chicago, Illinois 60602
<PAGE>
SCHEDULE 6.22(l)
Rent Rolls
<PAGE>
Exhibit 10.27
PRIME GROUP REALTY TRUST
12,380,000 COMMON SHARES(1)
OF BENEFICIAL INTEREST
UNDERWRITING AGREEMENT
November 11, 1997
PRUDENTIAL SECURITIES INCORPORATED
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
SMITH BARNEY INC.
MORGAN KEEGAN & COMPANY, INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Ladies and Gentlemen:
Prime Group Realty Trust, a Maryland real estate investment trust (the
"Company"), and Prime Group Realty, L.P., a Delaware limited partnership (the
"Operating Partnership"), each hereby confirms its agreement with the several
underwriters named in Schedule 1 hereto (the "Underwriters"), for whom the
Company understands you have been duly authorized to act as representatives (in
such capacities, the "Representatives"), as set forth below. If you are the only
Underwriters, all references herein to the Representatives shall be deemed to be
to the Underwriters.
1. Securities. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the several Underwriters an aggregate
of 12,380,000 Common Shares of Beneficial Interest (the "Firm Securities"), par
value $.01 per share, of the Company (the "Common Shares"). The Company also
proposes to issue and sell to the several Underwriters not more than 1,857,000
additional Common Shares if requested by the Representa-
- --------------
(1) Plus an option to purchase from Prime Group Realty Trust up to
1,857,000 additional shares to cover over-allotments.
<PAGE>
tives as provided in Section 3 of this Agreement. Any and all Common Shares to
be purchased by the Underwriters pursuant to such option are referred to herein
as the "Option Securities," and the Firm Securities and any Option Securities
are collectively referred to herein as the "Securities."
At the request of the Company, up to 102,550 of the Common Shares to be
purchased by the Underwriters pursuant to this Agreement will be offered for
sale to certain individuals, including trustees and employees of the Company and
The Prime Group, Inc., and members of their immediate families (the "Reserved
Share Program").
2 Representations and Warranties of the Company and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, each of the several Underwriters that:
(a) A registration statement on Form S-11 (File No. 333-33547)
with respect to the Securities, including a prospectus subject to completion,
has been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and one
or more amendments to such registration statement may have been so filed. After
the execution of this Agreement, the Company will file with the Commission
either (i) if such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, either (A) if the
Company relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined)
relating to the Securities, that shall identify the Preliminary Prospectus (as
hereinafter defined) that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Act or (B) if the
Company does not rely on Rule 434 under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence as have been provided to and approved by the Representatives prior
to the execution of this Agreement, or (ii) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the Act, an amendment to such registration statement, including
a form of prospectus, a copy of which amendment has been furnished to and
approved by the Representatives prior to the execution of this Agreement. The
Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering certain
additional Securities, which registration shall be effective upon filing with
the Commission. As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule
2
<PAGE>
430A under the Act and included in the Prospectus (as hereinafter defined); the
term "Rule 462(b) Registration Statement" means any registration statement filed
with the Commission pursuant to Rule 462(b) under the Act (including the
Registration Statement (as hereinafter defined) and any Preliminary Prospectus
or Prospectus incorporated therein at the time such Registration Statement
becomes effective); the term "Registration Statement" includes both the Original
Registration Statement and any Rule 462(b) Registration Statement; the term
"Preliminary Prospectus" means each prospectus subject to completion filed with
such Registration Statement and any amendment or supplement thereto (including
the prospectus subject to completion, if any, included in the Registration
Statement or any amendment thereto at the time it was or is declared effective);
the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Securities that is first filed pursuant to Rule
424(b)(7) under the Act, together with the Preliminary Prospectus
identified therein that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act, the
prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and if no
prospectus is required to be filed pursuant to Rule 424(b) under the
Act, the prospectus included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or
suspending use of any Preliminary Prospectus. When any Preliminary Prospectus
was filed with the Commission it (i) contained all statements required to be
stated therein in accordance with, and complied in all material respects with
the requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. When the Registration Statement or any amendment thereto was or is
declared effective, it (i) contained or will contain all statements required to
be stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (ii) did not or will not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the Prospectus or
any Term Sheet that is a part thereof or any amendment or supplement to the
3
<PAGE>
Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or part thereof or such amendment or supplement is not required to be
so filed, when the Registration Statement or the amendment thereto containing
such amendment or supplement to the Prospectus was or is declared effective) and
on the Firm Closing Date and any Option Closing Date (both as hereinafter
defined), the Prospectus, as amended or supplemented at any such time, (i)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (b) do not
apply to statements or omissions made in any Preliminary Prospectus, the
Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective (i) the
Company has filed a Rule 462(b) Registration Statement in compliance with, and
that is effective upon filing with the Commission pursuant to, Rule 462(b) and
has received confirmation of the Commission's receipt and (ii) the Company has
given irrevocable instructions for transmission of the applicable filing fee in
connection with the filing of the Rule 462(b) Registration Statement, in
compliance with Rule 111 promulgated under the Act or the Commission has
received payment of such filing fee.
(d) The Company has been duly organized and is validly
existing as a real estate investment trust in good standing under the laws of
Maryland and is duly qualified to transact business as a foreign trust and is in
good standing under the laws of all other jurisdictions where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified does not amount to a
material liability or disability to the Company and its subsidiaries, taken as a
whole. Each of the Company's subsidiaries which are corporations have been duly
organized and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation and are duly qualified
to transact business as foreign corporations and are in good standing under the
laws of all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Company and its subsidiaries, taken
as a whole. Each of the Company's subsidiaries which are partnerships, including
the Property Partnerships that are partnerships (as defined in the Prospectus
or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) have been duly organized
4
<PAGE>
and are validly existing as partnerships in good standing under the laws of
their respective jurisdictions of organization and are duly qualified to
transact business as foreign partnerships and are in good standing under the
laws of all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Company and its subsidiaries, taken
as a whole. Each of the Company's subsidiaries which are limited liability
companies, including the Property Partnerships that are limited liability
companies have been duly organized and are validly existing as limited liability
companies in good standing under the laws of their respective jurisdictions of
organization and are duly qualified to transact business as foreign limited
liability companies and are in good standing under the laws of all other
jurisdictions where the ownership or leasing of their respective properties or
the conduct of their respective businesses requires such qualification, except
where the failure to be so qualified does not amount to a material liability or
disability to the Company and its subsidiaries, taken as a whole.
(e) The Company and each of its subsidiaries have full power
(corporate or other) to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement and the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus; and each of the Company and the Operating Partnership
has full power (corporate or other) to enter into this Agreement and to carry
out all the terms and provisions hereof to be carried out by it.
(f) The issued shares of capital stock of each of the
Company's subsidiaries (which are corporations) have been duly authorized and
validly issued, are fully paid and nonassessable and, except as otherwise set
forth in the Prospectus or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus, are owned beneficially by the Company free and
clear of any security interests, liens, encumbrances, equities or claims. The
partnership agreements of the Company's subsidiaries (which are partnerships)
have been duly authorized, executed and delivered by the general partners
thereof and constitute the valid and binding obligation of the general partners
thereof. Such partnership agreements, other than the partnership agreement for
the Operating Partnership and for Professional Plaza, Ltd., a Tennessee limited
partnership, one of the Property Partnerships, reflect the Company and the
Operating Partnership, and/or one or more of the Company's subsidiaries as the
sole beneficial owners of the partnership interests in such partnerships.
(g) The Operating Partnership has been duly organized and is
validly existing as a limited partnership in good standing under the laws of its
jurisdiction of organization and is duly qualified to transact business as a
foreign limited partnership and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the
5
<PAGE>
conduct of its business requires such qualification, except where the failure to
be so qualified does not amount to a material liability or disability to the
Company and its subsidiaries, taken as a whole. As of the Firm Closing Date, the
Company, the NAC General Partner (as defined in the Prospectus or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) and the
limited partners of the Operating Partnership will enter into an Amended and
Restated Agreement of Limited Partnership of the Operating Partnership,
substantially in the form of Exhibit 3.6 to the Registration Statement, with
such other nonmaterial changes and revisions as are acceptable to the
Representatives (the "Operating Partnership Agreement"), which agreement will be
in full force and effect as of the Firm Closing Date. All of the limited and
general partnership interests in the Operating Partnership (the "Common Units")
and the Preferred Units (as defined in the Prospectus, or if the Prospectus is
not in existence, the most recent Preliminary Prospectus) to be issued in
connection with the Formation Transactions (as defined in the Prospectus, or if
the Prospectus is not in existence, the most recent Preliminary Prospectus) have
been duly authorized for issuance by the Operating Partnership to the holders or
prospective holders thereof, and, at the Firm Closing Date, against the payment
of consideration therefor in accordance with the Operating Partnership
Agreement, will be validly issued, fully paid and owned in the amounts set forth
on Schedule 2 hereto, and, in the case of the Common Units and the Preferred
Units to be issued to the Company, free and clear of any security interests,
liens, encumbrances, equities or claims. Immediately after the Firm Closing
Date, 9,064,343 Common Units of limited partner interest, 13,307,100 Common
Units of general partner interest and 2,000,000 Preferred Units of the Operating
Partnership will be issued and outstanding. The Common Units and Preferred Units
conform in all material respects to the description thereof contained in the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus. The Company is, and immediately after the Firm Closing
Date will be, the managing general partner of the Operating Partnership.
(h) The authorized capital stock of the Company is as set
forth in the Prospectus or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus under the caption "Description of Shares of
Beneficial Interest" and the issued and outstanding shares of beneficial
interest of the Company, as of the Firm Closing Date, will be as set forth in
the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus, under the caption "Capitalization." All of the issued
shares of beneficial interest of the Company have been duly authorized and
validly issued and are fully paid and nonassessable. The Firm Securities and the
Option Securities have been duly authorized and at the Firm Closing Date or the
related Option Closing Date (as the case may be), after payment therefor in
accordance herewith, will be validly issued, fully paid and nonassessable. No
holders of outstanding shares of beneficial interest of the Company are entitled
as such to any preemptive or other rights to subscribe for any of the
Securities, and no holder of securities of the Company has any right which has
not been
6
<PAGE>
fully exercised or waived to require the Company to register the offer or sale
of any securities owned by such holder under the Act in the public offering
contemplated by this Agreement.
(i) The capitalization of the Company conforms to the
description thereof contained in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus.
(j) All of the issued and outstanding Common Shares of the
Company have been offered and sold in compliance with all applicable laws
(including, without limitation, federal and state securities laws). Except as
described in the Registration Statement and the Prospectus (or, if the
Prospectus does not exist, the most recent Preliminary Prospectus), the Company
has not issued or sold any Common Shares during the six-month period preceding
the initial filing date of the Registration Statement including any sales
pursuant to Rule 144A under, or Regulation D or S of, the Act.
(k) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), there
are no outstanding (A) securities, equity interests or obligations of the
Company or any of its subsidiaries convertible into or exchangeable for any
beneficial interests, capital stock or other equity interests (as the case may
be) of the Company or any such subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or any such subsidiary any such
beneficial interests, capital stock or other equity interests or any such
convertible or exchangeable securities, equity interests or obligations, or (C)
obligations of the Company or any such subsidiary to issue any shares of
beneficial interests, capital stock, other equity interests, any such
convertible or exchangeable securities, equity interests or obligations, or any
such warrants, rights or options.
(l) The offer, issuance and exchange of the Common Units in
connection with the Formation Transactions were or will be exempt from the
registration requirements of the Act and applicable state securities and blue
sky laws. The Company and the Operating Partnership reasonably believe that all
persons and entities to whom such Common Units have been issued or will be
issued on the Firm Closing Date were or will be at the time of issuance
"accredited investors" as that term is defined in Rule 501(a) under the Act.
(m) The pro forma condensed consolidated balance sheet and the
pro forma condensed consolidated statements of operations of the Company (in
each case, including the notes thereto) included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present the financial position of the Company at
the dates therein specified. The combined financial statements (including the
notes thereto) of the Prime Properties (as defined in the notes thereto)
included in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary
7
<PAGE>
Prospectus) fairly present the financial position, the results of operations
and cash flows and changes in financial condition of the Prime Properties, at
the date and for the periods therein specified. The combined statement of
revenues and certain expenses (including the notes thereto) of the Prime
Industrial Contribution Properties (as defined in the notes thereto) included
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) fairly present the
combined revenues and certain expenses of the Prime Industrial Contribution
Properties for the periods therein specified. The combined statement of
revenues and certain expenses (including the notes thereto) of the IBD
Contribution Properties (as defined in the notes thereto) included in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present the
combined revenues and certain expenses of the IBD Contribution Properties for
the periods therein specified. The combined statement of revenues and certain
expenses (including the notes thereto) of the NAC Contribution Properties (as
defined in the notes thereto) included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present the combined revenues and certain
expenses of the NAC Contribution Properties for the periods therein
specified. The statement of revenues and certain expenses of Citibank Office
Plaza included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
fairly present revenues and certain expenses of Citibank Office Plaza for the
periods therein specified. The statement of revenues and certain expenses of
Salt Creek Office Center included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present revenues and certain expenses of Salt
Creek Office Center for the periods therein specified. The statement of
revenues and certain expenses of 280 Schuman Boulevard included in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present revenues
and certain expenses of 280 Schuman Boulevard for the periods therein
specified. The statement of revenues and certain expenses of 475 Superior
Avenue included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
fairly present revenues and certain expenses of 475 Superior Avenue for the
periods therein specified. All of the foregoing financial statements
(including the notes thereto) and schedules have been prepared in accordance
with generally accepted accounting principles consistently applied for each
of the periods presented. The selected financial data set forth under the
caption "Selected Financial Data" in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) fairly present, on
the basis stated in the Prospectus (or such Preliminary Prospectus), the
information included therein.
(n) The pro forma condensed consolidated balance sheet and the
pro forma condensed consolidated statements of operations of the Company
included in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) comply in all
material respects with the applicable requirements of Rule 11-02 of
8
<PAGE>
Regulation S-X of the Commission and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
information and the assumptions used in the preparation thereof are, in the
opinion of the Company, reasonable. Other than the historical and pro forma
financial statements (and schedules) included therein, no other historical or
pro forma financial statements (or schedules) are required to be included in
the Registration Statement or Prospectus.
(o) Ernst & Young LLP, who have certified certain financial
statements and schedules, and delivered their reports with respect to the
audited financial statements and schedules, included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), are independent public accountants as
required by the Act and the applicable rules and regulations thereunder.
(p) The assumptions made by the Company disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), under the caption "Distribution Policy" are reasonable
in light of the expected and intended method of operation of the Company and the
Operating Partnership.
(q) The execution and delivery of this Agreement have been
duly authorized by the Company and the Operating Partnership and this Agreement
has been duly executed and delivered by the Company and the Operating
Partnership, and is the valid and binding agreement of each of the Company and
the Operating Partnership, enforceable against the Company and the Operating
Partnership in accordance with its terms, subject to the effect of bankruptcy,
insolvency, moratorium, fraudulent conveyance, reorganization and similar laws
relating to creditors' rights generally and to the application of equitable
principles in any proceeding, whether at law or in equity.
(r) No legal or governmental proceedings are pending to which
the Company or any of its subsidiaries is a party or to which the property of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) and are not
described therein, and to the best of the Company's knowledge, no such
proceedings have been threatened against the Company or any of its subsidiaries
or with respect to any of their respective properties; and no contract or other
document is required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that is
not described therein (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) or filed as required.
9
<PAGE>
(s) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company and the Operating Partnership with the other provisions of this
Agreement and the consummation of the other transactions herein contemplated do
not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws and,
if the registration statement filed with respect to the Securities (as amended)
is not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the Act,
or (ii) conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, material lease or other material agreement or material instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of their respective properties are bound, or
the charter documents or by-laws or certificate of limited partnership or
partnership agreement (as the case may be) of the Company or any of its
subsidiaries, or any statute or any judgment, decree, order, rule or regulation
of any court or other governmental authority or any arbitrator applicable to the
Company or any of its subsidiaries.
(t) Each of the Company and its subsidiaries has full power
(corporate or other) to enter into and deliver (as applicable) the agreements
set forth on Schedule 4 hereto and all other agreements and other documents
related to the Formation Transactions (collectively, the "Transaction
Documents") to which each is party and to carry out all the terms and provisions
thereof to be carried out by each, respectively. The execution and delivery of
each of the Transaction Documents have been duly authorized by the Company and
its subsidiaries (as applicable) and the Transaction Documents have been or will
be on the Firm Closing Date duly executed and delivered by the Company and its
subsidiaries (as applicable), and each is the valid and binding agreement of the
Company and its subsidiaries (as applicable), enforceable against the Company
and its subsidiaries (as applicable) in accordance with its terms, subject to
the effect of bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights generally and to
the application of equitable principles in any proceeding, whether at law or in
equity.
(u) The execution and delivery of the Transaction Documents,
the compliance by the Company and its subsidiaries (as applicable) with their
respective obligations under the Transaction Documents and the consummation of
the Formation Transactions do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be required under
state securities or blue sky laws and, if the Registration Statement filed with
respect to the Securities (as amended) is not effective under the Act as of the
time of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act, or (ii) conflict with or result in
10
<PAGE>
a breach or violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage (except that (i) in connection with
certain mortgages to be assumed concurrently with the Closing as described in
the Prospectus, consents from the mortgage holders will be required as a
condition of Closing, and (ii) in connection with mortgages to be repaid
concurrently with the Closing as described in the Prospectus, an agreement to
contribute may be a violation of such mortgages, but such mortgages will be
repaid concurrently with the Closing), deed of trust, material lease or other
material agreement or material instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of their respective properties are bound, or the charter documents or
by-laws or certificate of limited partnership or partnership agreement (as the
case may be) of the Company or any of its subsidiaries, or any statute or any
judgment, decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Company or any of its
subsidiaries.
(v) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), neither the
Company nor any of its subsidiaries has sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding and there has not
been any material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or otherwise), management,
business prospects, net worth, or results of operations of the Company and its
subsidiaries, taken as a whole, except in each case as described in or
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(w) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(x) The Company has not distributed and, prior to the later of
(i) the Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any, permitted by the Act.
11
<PAGE>
(y) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), (1) the Company
and its subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in the
ordinary course of business; (2) the Company has not purchased any shares of its
outstanding beneficial interests, nor declared, paid or otherwise made any
dividend or distribution of any kind on its shares of beneficial interests,
other than as described in Item 32 of Part II of the Registration Statement; and
(3) there has not been any material change in the beneficial interests, capital
stock or partnership interests (as the case may be), short-term debt or
long-term debt of the Company and its consolidated subsidiaries, except in each
case as described in or contemplated by the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus).
(z) Upon consummation of the Formation Transactions
(including, for purposes of this Agreement, the consummation of the issuance and
sale of the Firm Securities pursuant to Section 3 hereof), or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), and the
application of the proceeds from such issuance and sale and such borrowings
(which application shall occur concurrently with such issuance and sale) as set
forth under the caption "Use of Proceeds" in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), the Company or its subsidiaries will have obtained
title insurance policies insuring good and marketable title in fee simple to all
items of real property comprising part of the Properties, including the
Acquisition Properties and the Contribution Properties (as such terms are
defined in the Registration Statement and the Prospectus, or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) and, based upon UCC
searches and representations from the sellers of the Acquisition Properties,
marketable title to all personal property comprising part of the Properties, in
each case free and clear of any security interests, liens, encumbrances,
equities, claims and other defects, except such as do not materially and
adversely affect the value of such property and do not interfere in any material
respect with the use made or proposed to be made of such property by the Company
or such subsidiary, and any real property and buildings comprising part of the
Properties held under lease by the Company or any such subsidiary are held under
valid, subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made or proposed to be made of such
property and buildings by the Company or such subsidiary, in each case except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(aa) No labor dispute with the employees of the Company or any
of its subsidiaries exists or is threatened or, to the best of the Company's
knowledge, imminent that
12
<PAGE>
could result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(bb) Upon consummation of the Formation Transactions, the
Company and its subsidiaries will own or possess, or will be able to acquire on
reasonable terms, all material patents, patent applications, trademarks, service
marks, trade names, licenses, copyrights and proprietary or other confidential
information currently employed or proposed to be employed by them in connection
with the business now operated or proposed to be operated by them as described
in the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and neither the Company nor any such subsidiary has
received any notice of infringement of or conflict with asserted rights of any
third party with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(cc) Upon consummation of the Formation Transactions, the
Company and each of its subsidiaries will own or possess all contract rights
that are material to the businesses now operated or proposed to be operated by
them taken as a whole as such businesses are described in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus),
including all such contract rights referred to in the Prospectus. The Company
has not received any written notices that any of such contracts are not in full
force and effect, and neither the Company nor any such subsidiary has received
written notice of any material breach by any party under any of such contracts.
(dd) As of the Firm Closing Date, the Company and each of its
subsidiaries will be insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary
in the businesses in which they are or will be engaged as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); and neither the Company nor any such subsidiary has any
reason to believe that it will not be able to renew such insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not
materially and adversely affect the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
13
<PAGE>
(ee) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary's capital stock or partnership
interests, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(ff) The Company and its subsidiaries will possess as of the
Firm Closing Date all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and neither the Company nor any such
subsidiary has received any written notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of operations
of the Company and its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(gg) The Company will conduct its operations in a manner that
will not subject it to registration as an investment company under the
Investment Company Act of 1940, as amended, and the Formation Transactions and
other transactions contemplated by this Agreement will not cause the Company to
become an investment company subject to registration under such act.
(hh) Each of the Company and its subsidiaries has filed all
foreign, federal, state and local tax returns that are required to be filed or
has requested extensions thereof (except in any case in which the failure so to
file would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole) and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(ii) Neither the Company nor any of its subsidiaries is in
violation of any applicable federal or state law or regulation relating to
occupational safety and health or to the storage, handling or transportation of
hazardous or toxic materials and the Company and its subsidiaries have received
all permits, licenses or other approvals required of them under
14
<PAGE>
applicable federal and state occupational safety and health and environmental
laws and regulations to conduct their respective businesses or the businesses
proposed to be conducted by them as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), and the
Company and each such subsidiary is in compliance with all terms and conditions
of any such permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses or
approvals which would not, singly or in the aggregate, result in a material
adverse change in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Company and its subsidiaries, taken as
a whole, except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) or the
environmental site assessments and engineering inspection reports listed on
Schedule 3 hereto.
(jj) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters on the Firm
Closing Date or on the Option Closing Date shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
(kk) Except for the shares of capital stock of, or partnership
interests in (as applicable), each of the subsidiaries owned by the Company and
such subsidiaries, neither the Company nor any such subsidiary owns any shares
of stock or any other equity securities of any corporation or has any equity
interest in any firm, partnership, association or other entity, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(ll) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with management's
general or specific authorizations; (2) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (3) access
to assets is permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(mm) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease, partnership agreement or other agreement or
instrument to which the Company or
15
<PAGE>
any of its subsidiaries is a party and will continue to be a party after the
Firm Closing Date or by which the Company or any of its subsidiaries or any of
their respective properties is bound and will continue to be bound after the
Firm Closing Date or may be affected in any material adverse respect with regard
to property, business or operations of the Company and its subsidiaries, taken
as a whole.
(nn) The Securities have been approved for listing on the New
York Stock Exchange, subject to official notice of issuance.
(oo) Except as otherwise disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus),
since January 1, 1990 no foreclosures have been instituted and, to the best of
the Company's knowledge, none are currently threatened with respect to any
property or assets directly or indirectly owned (whether now or in the past) by
The Prime Group, Inc. or the Company or any of its subsidiaries. Except for the
assets of The Prime Group, Inc. that will not be transferred to the Company in
the Formation Transactions that are described under the heading "Business and
Properties--Prime Assets Not Acquired by the Company" in the Prospectus, or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus (the
"Excluded Properties"), neither The Prime Group, Inc. nor any affiliate of The
Prime Group, Inc. owns or operates any office or industrial real property other
than the real properties comprising part of the Properties.
(pp) Except as otherwise described in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus), (i)
no proceeding or filing of a petition seeking relief under Title 11 of the
United States Code or any other federal, state or foreign bankruptcy,
insolvency, liquidation or similar law has been commenced or instituted (whether
voluntary or involuntary) by or with respect to The Prime Group, Inc. or any of
its affiliates, (ii) neither The Prime Group, Inc. nor any of its affiliates has
applied for or consented to the appointment of a receiver, trustee, custodian,
sequestrator or similar official for any such persons or for a substantial part
of any such persons' property or assets and (iii) neither The Prime Group, Inc.
nor any of its affiliates has made a general assignment for the benefit of its
creditors.
(qq) No relationship, direct or indirect, exists between or
among the Company or the Operating Partnership on the one hand, and the
directors, officers, shareholders (in the case of the Company), partners (in the
case of the Operating Partnership), tenants, customers or suppliers of the
Company or the Operating Partnership on the other hand, which is required to be
described in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) which is not so described.
(rr) The transfer of interests or other assets pursuant to the
agreements and instruments set forth on Schedule 5 hereto (the "Transfer
Documents") does not violate the articles or certificate of incorporation,
by-laws, limited liability company operating agreement, declaration
16
<PAGE>
of trust, certificate of limited partnership, partnership agreement or other
organizational documents, as the case may be, of The Prime Group, Inc. or any of
its affiliates. The Transfer Documents are sufficient to effect the transfer to
the Operating Partnership, the Company or its subsidiaries of all direct or
indirect interests in the Properties and other assets specified therein upon
payment of the specified consideration therefor. Pursuant to the Transfer
Documents, the Properties and other assets specified therein will be transferred
to the Company or its subsidiaries directly and not by way of a transfer of
interests in partnerships or other types of entities which, immediately prior to
the transfer, own the Properties and such other assets, except in the case of
the Prime Properties and certain other Properties encumbered by tax-exempt bonds
and in the case of the Prime Contribution Properties, in which cases the
Transfer Documents provide that the interests in the Property Partnerships
subject to such encumbrances will be transferred to the Company or its
subsidiaries.
(ss) Commencing with the Firm Closing Date, after giving
effect to the Formation Transactions, the Company will be organized in
conformity with the requirements for qualification as a real estate investment
trust (a "REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), and will have no earnings and profits accumulated in a non-REIT year
within the meaning of Section 857(a)(3)(B) of the Code, and the proposed method
of operation of the Company and its subsidiaries will enable the Company to meet
the requirements for taxation as a REIT under the Code beginning with its
taxable year ending December 31, 1997 and for its subsequent taxable years. All
statements in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) regarding the Company's qualification as a
REIT are true, complete and correct in all material respects.
(tt) Except as disclosed in physical inspection reports,
leases, environmental reports and other written materials previously provided by
the Company to the Representatives and their counsel, (i) the Company has not
received any written notice that any of the Properties is not in compliance with
all applicable codes, laws, ordinances and regulations (including, without
limitation, building and zoning codes and laws and regulations relating to
access to the Properties) and deed restrictions or other covenants, except for
such failures to comply that would not materially impair the value of any of the
Properties or would not result in a forfeiture or reversion of title; (ii)
neither the Company nor any of its subsidiaries has knowledge of any pending or
threatened litigation, moratorium, condemnation proceedings, zoning change, or
other similar proceeding or action that could in any manner affect the size of,
use of, improvements on, construction on, access to or availability of utilities
or other necessary services to, the Properties, except such proceedings or
actions which are not reasonably expected to, singly or in the aggregate, result
in a material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole; (iii) all liens, charges, encumbrances, claims,
or restrictions on or affecting the properties
17
<PAGE>
and assets (including the Properties) of the Company or any of its subsidiaries
that are required to be disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) are disclosed therein;
(iv) to the best of the Company's knowledge, neither the Company, any of its
subsidiaries nor any tenant of any portion of any of the Properties is in
default under any of the ground leases (as lessor), space leases (as lessor or
lessee, as the case may be) or other occupancy or license agreement relating to,
or under any of the mortgages which will remain in effect after the Closing or
other security documents or other agreements encumbering or otherwise recorded
against, the Properties and there is no event which, but for the passage of time
or the giving of notice or both, would constitute a default under any of such
documents or agreements, except such defaults that would not, singly or in the
aggregate, result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole; and (v) except as described in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and except as otherwise provided by law, upon
consummation of the Formation Transactions, no tenant under any lease pursuant
to which the Company or any of its subsidiaries will lease the Properties will
have an option or right of first refusal to purchase the premises leased
thereunder or the building of which such premises are a part.
(uu) Except as otherwise disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus), the
mortgages and deeds of trust encumbering the properties and assets described in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) which will remain in effect after the Closing are not
convertible and neither the Company, any of its subsidiaries nor any person
affiliated therewith holds a participating interest therein, and such mortgages
and deeds of trust are not cross-defaulted or cross-collateralized to any
property not owned directly or indirectly by the Company or any of its
subsidiaries.
(vv) To the best knowledge of the Company, each of the
Properties is in substantial compliance with all presently applicable provisions
of the Americans with Disabilities Act and no failure of the Company or any of
its subsidiaries to comply with all presently applicable provisions of the
Americans with Disabilities Act would result in a material adverse change in the
condition (financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole.
(ww) Except as otherwise disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus) or
the environmental site assessments and engineering inspection reports listed on
Schedule 3 hereto, and except as would not be reasonably likely to result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken
18
<PAGE>
as a whole, (i) neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any other owners of the Properties at any time or any
other party has at any time, handled, stored, treated, transported,
manufactured, spilled, leaked, or discharged, dumped, transferred or otherwise
disposed of or dealt with, Hazardous Materials (as hereinafter defined) on, to
or from the Properties, other than by any such action taken in compliance with
all applicable Environmental Statutes; (ii) neither the Company nor any of its
subsidiaries intends to use the Properties or any subsequently acquired
properties for the purpose of handling, storing, treating, transporting,
manufacturing, spilling, leaking, discharging, dumping, transferring or
otherwise disposing of or dealing with Hazardous Materials, except as necessary
for the conduct of business and in compliance with applicable environmental
statutes; (iii) neither the Company nor any of its subsidiaries knows of any
seepage, leak, discharge, release, emission, spill, or dumping of Hazardous
Materials into waters on or adjacent to the Properties or any other real
property owned or occupied by any such party, or onto lands from which Hazardous
Materials might seep, flow or drain into such waters; (iv) neither the Company
nor any of its subsidiaries has received written notice of, or has any knowledge
of any occurrence or circumstance which, with notice or passage of time or both,
would give rise to a claim under or pursuant to any federal, state or local
environmental statute or regulation or under common law, pertaining to Hazardous
Materials on or originating from any of the Properties or any assets described
in the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) or any other real property owned or occupied by the
Company or its subsidiaries or arising out of the conduct of the Company or its
subsidiaries, including without limitation a claim under or pursuant to any
Environmental Statute (as hereinafter defined); (v) none of the Properties is
included or, to the best of the Company's knowledge, proposed for inclusion on
the National Priorities List issued pursuant to CERCLA (as hereinafter defined)
by the United States Environmental Protection Agency (the "EPA") or, to the best
of the Company's knowledge, proposed for inclusion on any similar list or
inventory issued pursuant to any other Environmental Statute or issued by any
other Governmental Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, toxic substances, asbestos or any hazardous
materials as defined by any federal, state or local environmental law,
ordinance, rule or regulation in effect as of the date hereof and as of the
Firm Closing Date, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended,
42 U.S.C. Sections 9601-9675 ("CERCLA"), the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Sections 1801-1819, the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Sections 6901-6992K, the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
Sections 11001-11050, the Toxic Substances Control Act, 15 U.S.C. Sections
2601-2671, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
Sections 136-136y, the Clean Air Act, 42 U.S.C. Sections 7401-7642, the Clean
Water Act
19
<PAGE>
(Federal Water Pollution Control Act), 33 U.S.C. Sections 1251-1387, the Safe
Drinking Water Act, 42 U.S.C. Sections 300f-300j-26, and the Occupational
Safety and Health Act, 29 U.S.C. Sections 651-678, and in the regulations
promulgated pursuant to each of the foregoing (individually, an
"Environmental Statute") or by any federal, state or local governmental
authority having or claiming jurisdiction over the properties and assets
described in the Prospectus (a "Governmental Authority").
(xx) None of the environmental consultants which prepared
environmental and asbestos inspection reports with respect to any of the
Properties (including, for purposes of this paragraph, the Excluded Properties),
the engineering consultants which prepared engineering inspection reports with
respect to any of the Properties or Rosen Consulting Group, real estate
advisors, which prepared regional economic overviews and market analysis for The
Prime Group, Inc., dated October 10, 1997, were employed for such purpose on a
contingent basis or has any substantial interest in the Company or any of its
subsidiaries and none of them or any of their directors, officers or employees
is connected with the Company or any of its subsidiaries as a promoter, selling
agent, voting trustee, director, officer or employee.
(yy) Except as set forth in the environmental site assessments
and engineering inspection reports prepared with respect to the Properties
listed on Schedule 3 hereto, neither the Company nor the Operating Partnership
is aware of any environmental or engineering condition at any of the Properties
that would result in a material adverse change in the condition (financial or
otherwise) or business prospects, net worth or results of operations of the
Company and its subsidiaries, taken as a whole.
(zz) Except as disclosed in the Prospectus, no real estate
transfer or similar taxes are or will become due and payable by the Company or
any of its subsidiaries as a result of the acquisition by the Company or any of
its subsidiaries of any direct or indirect interest in any Property in
connection with the Formation Transactions, other than customary documentary
transfer taxes which will be paid in full on or prior to the Firm Closing Date.
(aaa At the firm Closing Date, the Company or its subsidiaries
will have obtained title insurance on the Properties which constitute real
property (including ground leasehold estates) in an amount (the "Insured Title
Amount") at least equal to the sum of (i) the purchase price, in the case of the
Acquisition Properties, (ii) $308.5 million and (iii) the costs of the other
Properties, in the amount reasonably determined by the Company.
(bbb At or prior to the Firm Closing Date, each of the
transactions constituting the Formation Transactions will have occurred in the
manner described in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus),
20
<PAGE>
including, without limitation, the acquisition of all of the Acquisition
Properties and the Contribution Properties and the execution and delivery of the
Credit Facility.
(ccc All of the representations and warranties of the Company,
the Operating Partnership, The Prime Group, Inc. and, to the best of the
Company's knowledge, the other limited partners of the Operating Partnership
contained in the Transaction Documents are true and correct in all material
respects.
Each reference in this Section 2 to "the condition (financial or
otherwise), management, business prospects, net worth, or results of operations
of the Company and its subsidiaries" means the condition (financial or
otherwise), management, business prospects, net worth, or results of operations
of the Company and its subsidiaries, taken as a whole, upon consummation of the
Formation Transactions.
3. Purchase, Sale and Delivery of the Securities. (a) On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, at a purchase
price of $18.75 per Common Share, the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule 1 hereto. One or more
certificates in definitive form for the Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company at least 48 hours prior to the Firm Closing
Date, shall be delivered by or on behalf of the Company to the Representatives
for the respective accounts of the Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor by wire transfer in same-day
funds (the "Wired Funds") to the account of the Company. Such delivery of and
payment for the Firm Securities shall be made at the offices of Winston &
Strawn, 35 West Wacker Drive, Chicago, Illinois, at 8:30 A.M., Chicago time, on
November 17, 1997, or at such other place, time or date as the Representatives
and the Company may agree upon or as the Representatives may determine pursuant
to Section 9 hereof, such time and date of delivery against payment being herein
referred to as the "Firm Closing Date." The Company will make such certificate
or certificates for the Firm Securities available for checking and packaging by
the Representatives at the offices in New York, New York of the Company's
transfer agent or registrar or of Prudential Securities Incorporated at least 24
hours prior to the Firm Closing Date.
(b For the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Securities as contemplated
by the Prospectus, the Company hereby grants to the several Underwriters an
option to purchase, severally and not jointly, the Option Securities. The
purchase price to be paid for any Option Securities shall be the same price
21
<PAGE>
per share as the price per share for the Firm Securities set forth above in
paragraph (a) of this Section 3, plus, if the purchase and sale of any Option
Securities takes place after the Firm Closing Date and after the Firm Securities
are trading "ex-dividend", an amount equal to the dividends payable on such
Option Securities. The option granted hereby may be exercised as to all or any
part of the Option Securities from time to time within thirty days after the
date of the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a
holiday, on the next business day thereafter when the New York Stock Exchange is
open for trading). The Underwriters shall not be under any obligation to
purchase any of the Option Securities prior to the exercise of such option. The
Representatives may from time to time exercise the option granted hereby by
giving notice in writing or by telephone (confirmed in writing) to the Company
setting forth the aggregate number of Option Securities as to which the several
Underwriters are then exercising the option and the date and time for delivery
of and payment for such Option Securities. Any such date of delivery shall be
determined by the Representatives but shall not be earlier than two business
days or later than five business days after such exercise of the option and, in
any event, shall not be earlier than the Firm Closing Date. The time and date
set forth in such notice, or such other time on such other date as the
Representatives and Company may agree upon or as the Representatives may
determine pursuant to Section 9 hereof, is herein called the "Option Closing
Date" with respect to such Option Securities. Upon exercise of the option as
provided herein, the Company shall become obligated to sell to each of the
several Underwriters, and, subject to the terms and conditions herein set forth,
each of the Underwriters (severally and not jointly) shall become obligated to
purchase from the Company, the same percentage of the total number of the Option
Securities as to which the several Underwriters are then exercising the option
as such Underwriter is obligated to purchase of the aggregate number of Firm
Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares. If the option is exercised as to all or
any portion of the Option Securities, one or more certificates in definitive
form for such Option Securities, and payment therefor, shall be delivered on the
related Option Closing Date in the manner, and upon the terms and conditions,
set forth in paragraph (a) of this Section 3, except that reference therein to
the Firm Securities and the Firm Closing Date shall be deemed, for purposes of
this paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c The Company hereby acknowledges that the wire transfer by
or on behalf of the Underwriters of the purchase price for any Securities does
not constitute closing of a purchase and sale of the Securities. Only execution
and delivery of a receipt for Securities by the Underwriters indicates
completion of the closing of a purchase of the Securities from the Company.
Furthermore, in the event that the Underwriters wire the Wired Funds to the
Company prior to the completion of the closing of a purchase of Securities, the
Company hereby acknowledges that until the Underwriters execute and deliver a
receipt for the Securities, by facsimile or otherwise, the Company will not be
entitled to the Wired Funds and shall return the
22
<PAGE>
Wired Funds to the Underwriters as soon as practicable (by wire transfer of
same-day funds) upon demand. In the event that the closing of a purchase of
Securities is not completed and the Wired Funds are not returned by the Company
to the Underwriters on the same day the Wired Funds were received by the
Company, the Company agrees to pay to the Underwriters in respect of each day
the Wired Funds are not returned by it, in same-day funds, interest on the
amount of such Wired Funds in an amount representing the Underwriters' cost of
financing as reasonably determined by Prudential Securities Incorporated.
(d It is understood that any of you, individually and not as
one of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. Upon your authorization of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company. Each of the Company and the Operating
Partnership covenants and agrees with each of the Underwriters that:
(a The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
possible. If required, the Company will file the Prospectus or any Term Sheet
that constitutes a part thereof and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act. During any time when a prospectus relating to the
Securities is required to be delivered under the Act, the Company (i) will
comply with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the Prospectus, Term Sheet or the
amendment referred to in the second sentence of Section 2(a) hereof, any
amendment or supplement to such Prospectus, Term Sheet or any amendment to the
Registration Statement or any Rule 462(b) Registration Statement of which the
Representatives previously have been advised and furnished with a copy for a
reasonable period of time prior to the proposed filing and as to which filing
the Representatives shall not have given their consent. The Company will prepare
and file with the Commission, in accordance with the rules and regulations of
the Commission, promptly upon request by the Representatives or counsel for the
Underwriters, any amendments to the Registration Statement or amendments or
supplements to
23
<PAGE>
the Prospectus that may be necessary or advisable in connection with the
distribution of the Securities by the several Underwriters, and will use its
best efforts to cause any such amendment to the Registration Statement to be
declared effective by the Commission as promptly as possible. The Company will
advise the Representatives, promptly after receiving notice thereof, of the time
when the Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendment or supplement thereto has
been filed and will provide evidence satisfactory to the Representatives of each
such filing or effectiveness.
(b The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
(ii) the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c The Company will promptly from time to time take such
action as the Representatives may reasonably request to qualify the Securities
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may reasonably request and will continue to
comply with such laws for as long as may be necessary to complete the
distribution of the Securities, provided, however, that in connection therewith
the Company shall not be required to take any action that would subject it to
income taxation in such jurisdictions, to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(d If, at any time prior to the later of (i) the final date
when a prospectus relating to the Securities is required to be delivered under
the Act or (ii) the Option Closing Date, any event occurs as a result of which
the Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if for any other reason it is necessary at
any time to amend or supplement the Prospectus to comply with the Act or the
rules or regulations of the Commission thereunder, the Company will promptly
notify the Representatives thereof and, subject to Section 5(a) hereof, will
prepare and file with the Commission, at the Company's expense, an amendment to
the
24
<PAGE>
Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(e The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a signed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) to each other Underwriter, a conformed copy of
such registration statement or any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto) and (iii) so long as a
prospectus relating to the Securities is required to be delivered under the Act,
as many copies of each Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto as the Representatives may reasonably request; without
limiting the application of clause (iii) of this sentence, the Company, not
later than (A) 6:00 P.M., New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to 10:00
A.M., New York City time, on such date or (B) 2:00 P.M., New York City time, on
the business day following the date of determination of the public offering
price, if such determination occurred after 10:00 A.M., New York City time, on
such date, will deliver to the Underwriters, without charge, as many copies of
the Prospectus and any amendment or supplement thereto as the Representatives
may reasonably request for purposes of confirming orders that are expected to
settle on the Firm Closing Date.
(f The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives a consolidated
earnings statement of the Company and its subsidiaries that satisfies the
provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Prospectus.
(h The Company will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise sell or dispose (or announce any offer, sale,
offer of sale, contract of sale, pledge, grant of any option to purchase or
other sale or disposition) of any Common Shares or other shares of beneficial
interest of the Company or Common Units or other partnership interests of the
Operating Partnership, or any securities convertible into, or exchangeable or
exercisable for, Common Shares or other shares of beneficial interest of the
Company or Common Units or other partnership interests of the Operating
Partnership, for a period of 180 days after the date hereof, except (i) pursuant
to this
25
<PAGE>
Agreement, (ii) pursuant to a dividend reinvestment plan of the Company, (iii)
pursuant to the Company's Share Incentive Plan, and (iv) in connection with the
acquisition by the Company or the Operating Partnership of real property or
interests in entities holding real property, provided that the recipient or
transferee of such securities or interests agrees in writing to be subject to
the lock-up contained in this Section 5(h) (without giving effect to clauses
(i), (ii), (iii) and (iv)) for a period ending on the date that is 180 days
after the date hereof.
(i The Company will not, directly or indirectly, (i) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j The Company will obtain the lock-up agreements described in
Section 7(f) hereof prior to the Firm Closing Date.
(k If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the Option
Closing Date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in your opinion the market price of the
Common Stock has been or is likely to be materially affected (regardless of
whether such rumor, publication or event necessitates a supplement to or
amendment of the Prospectus), the Company will, after notice from you advising
the Company to the effect set forth above, forthwith prepare, consult with you
concerning the substance of, and disseminate a press release or other public
statement, reasonably satisfactory to you, responding to or commenting on such
rumor, publication or event.
(l If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on
the date of this Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(m The Company will cause the Securities to be duly authorized
for listing by the New York Stock Exchange prior to the Firm Closing Date,
subject to official notice of issuance.
(n The Company will use its best efforts to meet the
requirements to qualify, commencing with the taxable year ending December 31,
1997, as a REIT under the Code.
26
<PAGE>
(o The Company will cause the Operating Partnership to operate
as a limited partnership in accordance with the requirements of Delaware law.
6. Expenses. The Company will pay all costs and expenses incident to
the performance of its and the Operating Partnership's obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 11 hereof, including all
costs and expenses incident to (i) the printing or other production of documents
with respect to the transactions, including any costs of printing the
registration statement originally filed with respect to the Securities and any
amendment thereto, any Rule 462(b) Registration Statement, any Preliminary
Prospectus and the Prospectus and any amendment or supplement thereto, this
Agreement and any blue sky memoranda, (ii) all arrangements relating to the
delivery to the Underwriters of copies of the foregoing documents, (iii) the
fees and disbursements of the counsel, the accountants and any other experts or
advisors retained by the Company, (iv) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Securities, including transfer
agent's and registrar's fees, (v) the qualification of the Securities under
state securities and blue sky laws, including filing fees and fees and
disbursements of counsel for the Underwriters relating thereto, (vi) the filing
fees of the Commission and the National Association of Securities Dealers, Inc.
relating to the Securities, (vii) any listing of the Securities on the New York
Stock Exchange, (viii) any meetings with prospective investors in the Securities
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters) and (ix) advertising relating to the offering
of the Securities (other than as shall have been specifically approved by the
Representatives to be paid for by the Underwriters). If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because this Agreement is terminated pursuant to Section 11 hereof or because of
any failure, refusal or inability on the part of the Company or the Operating
Partnership to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all reasonable out-of pocket expenses (including reasonable counsel
fees and disbursements) that shall have been incurred by them in connection with
the proposed purchase and sale of the Securities. The Company shall in no event
be liable to any of the Underwriters for the loss of anticipated profits from
the transactions covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Operating Partnership
contained herein as of the date hereof and as of the Firm Closing Date, as if
made on and as of the Firm Closing Date, to the accuracy of the statements of
the Company's
27
<PAGE>
officers made pursuant to the provisions hereof, to the performance by the
Company and the Operating Partnership of their respective covenants and
agreements hereunder and to the following additional conditions:
(a If the Original Registration Statement or any amendment
thereto filed prior to the Firm Closing Date has not been declared effective as
of the time of execution hereof, the Original Registration Statement or such
amendment and, if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have been declared effective not later than
the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment
to the registration statement originally filed with respect to the Securities or
to the Registration Statement, as the case may be, containing information
regarding the initial public offering price of the Securities has been filed
with the Commission and (ii) the time confirmations are sent or given as
specified by Rule 462(b)(2), or with respect to the Original Registration
Statement, or such later time and date as shall have been consented to by the
Representatives; if required, the Prospectus or any Term Sheet that constitutes
a part thereof and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period required by Rules
434 and 424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened or, to the
knowledge of the Company or the Representatives, shall be contemplated by the
Commission; and the Company shall have complied with any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise).
(b The Representatives shall have received an opinion, dated
the Firm Closing Date, of Winston & Strawn, counsel for the Company and its
subsidiaries, to the effect that:
(i the Company has been duly formed and is validly existing as
a real estate investment trust in good standing under the laws of the
State of Maryland and is duly qualified to transact business as a
foreign business trust and is in good standing under the laws of all
other jurisdictions where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except where
the failure to be so qualified does not subject the Company and the
Subsidiaries (as defined below), taken as a whole, to a material
liability or disability. The Operating Partnership has been duly
organized and is validly existing as a limited partnership in good
standing under the laws of the State of Delaware and is duly qualified
to transact business as a foreign limited partnership and is in good
standing under the laws of all other jurisdictions where the ownership
or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified does
not subject the Company and
28
<PAGE>
the Subsidiaries, taken as a whole, to a material liability or
disability. Each of the subsidiaries of the Company, all of which have
been identified on an exhibit to such opinion (individually a
"Subsidiary" and collectively the "Subsidiaries") has been duly
organized and is validly existing as a corporation, partnership or as a
limited liability company, as appropriate, in good standing under the
laws of its respective jurisdiction of organization and is duly
qualified to transact business as a foreign corporation, partnership or
limited liability company, as appropriate, and is in good standing (to
the extent applicable) under the laws of all other jurisdictions where
the ownership or leasing of their respective properties or the conduct
of their respective businesses requires such qualification, except
where the failure to be so qualified does not subject the Company and
the Subsidiaries, taken as a whole, to a material liability or
disability.
(ii the Company and each of the Subsidiaries have the
requisite real estate investment trust, corporate, partnership or
limited liability company power (as applicable) to own or lease their
respective properties and conduct their respective businesses as
described in the Registration Statement and the Prospectus, and each of
the Company and the Operating Partnership has the requisite real estate
investment trust or partnership power (as applicable) to enter into
this Agreement and to perform its obligations hereunder;
(iii the issued and outstanding shares of capital stock or
partnership interests, as the case may be, of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and
nonassessable and, except as otherwise set forth in the Prospectus, are
owned beneficially by the Company free and clear of any perfected
security interests or any other security interests, liens,
encumbrances, equities or claims known to such counsel;
(iv the authorized, issued and outstanding capitalization of
the Company is as set forth under the caption "Capitalization" in the
Prospectus; all necessary and proper real estate investment trust
proceedings have been taken in order to authorize validly the Common
Shares referred to therein; all outstanding Common Shares (including
the Firm Securities, when issued and paid for by the Underwriters in
accordance with the terms of this Agreement) have been (or, in the case
of the Firm Securities, will be) duly and validly issued, are fully
paid and nonassessable, were not issued in violation of or subject to,
under the Company's charter or Maryland law or any agreement to which
the Company is a party and which is known to such counsel, any
preemptive rights or other rights to subscribe for or purchase any
securities, and conform to the description thereof contained in the
Prospectus; no holders of outstanding shares of capital stock of the
Company are entitled under the Company's charter or Maryland law or any
agreement to which the Company is a party and which is known to such
counsel, as such, to any
29
<PAGE>
preemptive or other rights to subscribe for any of the Firm
Securities; and no holders of securities of the Company are entitled to
have such securities registered under the Registration Statement;
(v the Common Units and Preferred Units to be issued in
connection with the Formation Transactions, including, without
limitation, the Common Units and Preferred Units issued to the Company,
were duly authorized for issuance by the Operating Partnership to the
holders thereof; the Common Units and Preferred Units issued to the
Company, upon contribution of cash in the amount specified in the
Operating Partnership Agreement, will be validly issued; the Common
Units issued to the NAC General Partner and the Limited Partners in
connection with the Formation Transactions, upon delivery of the
consideration specified in the Formation Agreement (identified on
Schedule 4 hereto), will be validly issued. Each of the issuances of
the Common Units to the NAC General Partner and the Limited Partners at
or prior to the Firm Closing Date as contemplated in the Formation
Agreement and the issuance of the Convertible Preferred Shares to
Security Capital Preferred Growth Incorporated as contemplated in the
Prospectus, is or was (as the case may be) exempt from registration
under the Act. The terms of the Common Units and Preferred Units
conform in all material respects to (x) the description thereof
contained in the Prospectus and (y) all statements related thereto
contained in the Prospectus. The issuances of securities described in
Items 31 and 32 of the Registration Statement were not at the time of
issue, and are not as of the Firm Closing Date, required to be
registered under the Act;
(vi except as disclosed in the Registration Statement and the
Prospectus, to the knowledge of such counsel there are no outstanding
(A) securities, equity interests or obligations of the Company or any
of the Subsidiaries convertible into or exchangeable for any capital
stock or equity interests (as the case may be) of the Company or any
such Subsidiary, (B) warrants, rights or options to subscribe for or
purchase from the Company to any such Subsidiary any such capital stock
or equity interests or any such convertible or exchangeable securities,
equity interests or obligations, or (C) obligations of the Company or
any such Subsidiary to issue an shares of capital stock, equity
interests, any such convertible or exchangeable securities, equity
interests or obligations, or any such warrants, rights or options;
(vii the statements in the Prospectus set forth under the
headings "Business and Properties-Legal Proceedings," "Description of
Shares of Beneficial Interest," "Structure and Formation of the
Company," "Certain Relationships and Related Transactions,"
"Partnership Agreement," "Certain Provisions of Maryland Law and of the
Company's Declaration of Trust and Bylaws," "Partnership Agreement,"
"Shares Eligible
30
<PAGE>
for Future Sale," "Certain Federal Income Tax Consequences"
and "ERISA Considerations," insofar as such statements describe
statutes, rules or regulations, legal conclusions with respect to their
application or provisions of the organizational documents of the
Company, the Operating Partnership or the Services Company, are
accurate in all material respects and fairly present the information
required to be disclosed therein;
(viii the execution and delivery of this Agreement have been
duly authorized by all necessary real estate investment trust or
partnership (as applicable) action of the Company and the Operating
Partnership, and this Agreement has been duly executed and delivered by
the Company and the Operating Partnership;
(ix (A) to such counsel's knowledge and other than as set
forth in the Prospectus, no legal or governmental proceedings are
pending to which the Company or any of the Subsidiaries is a party or
to which the property of the Company or any of the Subsidiaries is
subject that are required to be described in the Registration Statement
or the Prospectus and are not described therein, and to such counsel's
knowledge, no such proceedings have been threatened against the Company
or any of the Subsidiaries or with respect to any of their respective
properties and (B) to such counsel's knowledge, no contract or other
document of a character required to be disclosed in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement is not disclosed therein or filed as required;
(x the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company and the Operating Partnership with the other provisions
of this Agreement and the consummation of the other transactions herein
contemplated do not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except the registration under the Act of the Securities and such as
have been obtained and such as may be required under state securities
or blue sky laws, or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, material lease
or other material agreement or material instrument known to such
counsel to which the Company or any of the Subsidiaries is a party or
by which the Company or any of the Subsidiaries or any of their
respective properties are bound (the "Material Agreements"), or the
charter documents or by-laws or certificate of limited partnership or
partnership agreement or other organizational document (as applicable)
of the Company or any of the Subsidiaries, or any provision of any
statute, rule or regulation applicable to the Company or the
Subsidiaries, or any judgment, decree or order of any court or other
governmental authority or any arbitrator known to such counsel and
applicable to the Company or the Subsidiaries;
31
<PAGE>
(xi each of the Company and the Subsidiaries has the requisite
real estate investment trust, corporate, partnership or limited
liability company power (as applicable) to enter into and deliver (as
applicable) the agreements and instruments set forth on Schedule 6
hereto (the "Operative Documents") to which it is party and to perform
its obligations thereunder. The execution and delivery of the Operative
Documents have been duly authorized by the Company and the Subsidiaries
(as applicable) and the Operative Documents have been or will be on the
Firm Closing Date duly executed and delivered by the Company and the
Subsidiaries (as applicable), and each such Operative Document is the
valid and binding agreement of the Company and the Subsidiaries (as
applicable), enforceable against the Company and the Subsidiaries (as
applicable) in accordance with its terms, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights generally
and to the application of equitable principles in any proceeding,
whether at law or in equity;
(xii the execution and delivery of the Operative Documents,
the compliance by the Company and the Subsidiaries (as applicable) with
their respective obligations under the Operative Documents and the
consummation of the Formation Transactions do not (A) require the
consent, approval, authorization, registration or qualification of or
with any governmental authority, except the registration under the Act
of the Securities and such as have been obtained and such as may be
required under state securities or blue sky laws and, if the
registration statement filed with respect to the Securities (as
amended) is not effective under the Act as of the time of execution
hereof, such as may be required (and shall be obtained as provided in
this Agreement) under the Act, or (B) conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any Material Agreement, or the charter
documents or by-laws or certificate of limited partnership or
partnership agreement or other organizational document (as applicable)
of the Company or any of the Subsidiaries, or any provision of any
statute, rule or regulation applicable to the Company or the
Subsidiaries, or any judgment, decree or order of any court or other
governmental authority or any arbitrator known to such counsel and
applicable to the Company or the Subsidiaries;
(xiii the Company is not, and (assuming the application by the
Company of the proceeds of the issue and sale of the Securities as
described in the Prospectus under "Use of Proceeds") after giving
effect to the Formation Transactions and the other transactions
contemplated by this Agreement will not be, an "investment company" or
a company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended;
32
<PAGE>
(xiv the transfer of interests or other assets pursuant to the
Transfer Documents does not violate the articles or certificate of
incorporation, by-laws, limited liability company agreement,
declaration of trust, certificate of limited partnership, partnership
agreement or other organizational documents, as the case may be, of
either of The Prime Group, Inc. or Prime Group Limited Partnership;
each of the Transfer Documents has been duly authorized, executed and
delivered by The Prime Group, Inc. and Prime Group Limited Partnership
and is a valid and binding agreement of The Prime Group, Inc. and Prime
Group Limited Partnership, enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance, reorganization and similar laws relating to creditors'
rights generally and to the application of equitable principles in any
proceeding, whether at law or in equity;
(xv the Registration Statement has become effective under the
Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required thereby;
and to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceeding for that purpose has been instituted or threatened by the
Commission;
(xvi the Registration Statement originally filed with respect
to the Securities and each amendment thereto, any Rule 462(b)
Registration Statement and the Prospectus (in each case, other than the
financial statements and related notes thereto and the other financial,
statistical and accounting data included therein or omitted therefrom,
as to which such counsel need express no opinion) appeared on their
face to be appropriately responsive in all material respects to the
applicable requirements of the Act and the rules and regulations of the
Commission thereunder; and
(xvii upon completion of the Formation Transactions, the
Company will be organized in conformity with the requirements for
qualification as a real estate investment trust under the Code, and the
proposed method of operation of the Company and the Operating
Partnership as described in the Registration Statement and the
Prospectus and a certificate of a responsible officer of the Company
will enable the Company to meet the requirements for taxation as a real
estate investment trust under the Code beginning with the year ended
December 31, 1997.
Such counsel shall also state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and
representatives of the Underwriters, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although
such
33
<PAGE>
counsel is not passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus and has not made any independent check
or verification thereof, during the course of such participation (relying as to
the factual matters upon the statements of officers and other representatives of
the Company and public officials) no facts came to the attention of such counsel
that caused such counsel to believe that the Registration Statement, at the time
it became effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date or as
of the Firm Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; it being
understood that such counsel need express no belief with respect to the
financial statements and related notes thereto and the other financial,
statistical and accounting data included in the Registration Statement or the
Prospectus or omitted therefrom.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company, the Operating Partnership and public officials and, as
to matters involving the application of laws of any jurisdiction other than the
State of Illinois, the State of New York, the Delaware General Corporation Law
and the Delaware Revised Limited Partnership Act or the United States, to the
extent satisfactory in form, and scope to counsel for the Underwriters, upon the
opinion of Miles and Stockbridge, a Professional Corporation, as to Maryland
law. Copies of such local counsel opinions shall be delivered to the
Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c The Representatives shall have received an opinion, dated
the Firm Closing Date, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for
the Underwriters, with respect to the issuance and sale of the Firm Securities,
the Registration Statement and the Prospectus, and such other related matters as
the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(d The Representatives shall have received from Ernst & Young
LLP, a letter or letters dated, respectively, the date hereof and the Firm
Closing Date, in form and substance satisfactory to the Representatives, to the
effect that:
(i they are independent accountants with respect to the
Company and its consolidated subsidiaries and the Prime Properties, the
Contribution Properties and the
34
<PAGE>
Acquisition Properties within the meaning of the Act and the
applicable rules and regulations thereunder;
(ii in their opinion, the audited consolidated financial
statements and schedules and pro forma financial statements examined by
them and included in the Registration Statement and the Prospectus
comply in form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
(iii on the basis of a reading of the latest available interim
unaudited consolidated condensed financial statements of the Company,
the Prime Properties, the Contribution Properties and the Acquisition
Properties, carrying out certain specified procedures (which do not
constitute an examination made in accordance with generally accepted
auditing standards) that would not necessarily reveal matters of
significance with respect to the comments set forth in this paragraph
(iii), a reading of the minute books of the shareholders, the board of
trustees and any committees thereof of the Company and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters, nothing came to their attention that caused
them to believe that:
(A0 at a specific date (not more than five business days prior
to the date of such letter), there were any increases in debt
or accumulated deficit of the Prime Properties or any
decreases in total assets of the Prime Properties, in each
case as compared with amounts shown in the June 30, 1997
combined balance sheet included in the Registration Statement
and the Prospectus, or for the period from July 1, 1997 to
September 30, 1997, there were any decreases, as compared with
the corresponding period of the previous year, in rental
income, total revenues or net income (as applicable) of the
Prime Properties, the Acquisition Properties and the
Contribution Properties, except in all instances for changes,
increases or decreases which the Registration Statement and
the Prospectus disclose have occurred or may occur; and
(B0 at a specific date (not more than five business days prior
to the date of such letter), with respect to the Prime
Properties, there were any increases in borrowings as compared
with amounts shown in the June 30, 1997 balance sheet included
in the Registration Statement and the Prospectus, except in
all instances for changes or increases which the Registration
Statement and the Prospectus disclose have occurred or may
occur.
(iv they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information identified by
35
<PAGE>
the Representatives that are derived from the general accounting
records of the Company and its consolidated subsidiaries and are
included in the Registration Statement and the Prospectus and have
compared such amounts, percentages and financial information with such
records of the Company and its consolidated subsidiaries and with
information derived from such records and have found them to be in
agreement, excluding any questions of legal interpretation; and
(v on the basis of a reading of the unaudited pro
forma condensed consolidated financial statements included in the
Registration Statement and the Prospectus, carrying out certain
specified procedures that would not necessarily reveal matters of
significance with respect to the comments set forth in this paragraph
(v), inquiries of certain officials of the Company and its consolidated
subsidiaries who have responsibility for financial and accounting
matters and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the unaudited pro
forma condensed consolidated financial statements, nothing came to
their attention that caused them to believe that the unaudited pro
forma condensed consolidated financial statements do not comply in form
in all material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of
such statements.
In the event that the letters referred to above set forth any
such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters under this Agreement that (A) such letters shall
be accompanied by a written explanation of the Company as to the significance
thereof, unless the Representatives deem such explanation unnecessary, and (B)
such changes, decreases or increases do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to proceed with the purchase
and delivery of the Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
References to the Registration Statement and the Prospectus in
this paragraph (d) with respect to either letter referred to above shall include
any amendment or supplement thereto at the date of such letter.
(e The Representatives shall have received a certificate,
dated the Firm Closing Date, of the chief executive officer and the principal
financial or accounting officer of the Company to the effect that:
(i the representations and warranties of the Company
and the Operating Partnership in this Agreement are true and correct as
if made on and as of the Firm Closing Date; the Registration Statement,
as amended as of the Firm Closing Date, does
36
<PAGE>
not include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented as of the
Firm Closing Date, does not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and each of the Company and the Operating
Partnership has performed all covenants and agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
the Firm Closing Date;
(ii no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to
the best of the Company's or the Operating Partnership's knowledge, are
contemplated by the Commission; and
(iii subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has sustained any
material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, and there has not been any material
adverse change, or any development involving a prospective material
adverse change, in the condition (financial or otherwise), management,
business prospects, net worth or results of operations of the Company
and its subsidiaries, taken as a whole, except in each case as
described in or contemplated by the Registration Statement and the
Prospectus (exclusive of any amendment or supplement thereto).
(f The Representatives shall have received from (i) each
Limited Partner an agreement to the effect that such person will not,
directly or indirectly, without the prior written consent of Prudential
Securities Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or otherwise
sell or dispose (or announce any offer, sale, offer of sale, contract of
sale, pledge, grant of an option to purchase or other sale or disposition) of
any Common Shares or other shares of beneficial interest of the Company or
Common Units or other partnership interests of the Operating Partnership, or
any securities convertible into, or exchangeable or exercisable for, Common
Shares or other shares of beneficial interest of the Company or Common Units
or other partnership interests of the Operating Partnership, for a period of
(w) two years after the date of this Agreement in the case of The Prime
Group, Inc., (x) two years after the date of this Agreement in the case of
the Primestone Joint Venture (as defined in the Prospectus or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) with
respect to the Common Units contributed by The
37
<PAGE>
Prime Group, Inc. (except, in the event of a Dividend Reduction (as defined
in the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), one year), (y) one year after the date of this
Agreement in the case of the Primestone Joint Venture with respect to the
Common Units purchased by the Primestone Joint Venture and (z) one year after
the date of this Agreement in the case of the other Limited Partners and (ii)
each of the purchasers of Common Shares from the Underwriters in the Reserved
Share Program an agreement to the effect that such person will not, directly
or indirectly, offer, sell, offer to sell, contract to sell, transfer,
assign, pledge, hypothecate, grant any option to purchase or otherwise sell
or dispose of any Common Shares for a period of three months from the date of
this Agreement.
(g On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(h Prior to the commencement of the offering of the
Securities, the Securities shall have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance.
(i The Formation Transactions shall have been consummated or
shall occur simultaneously with the closing of the purchase and sale of the Firm
Securities hereunder.
(j On or before the Firm Closing Date, all necessary consents
to the Formation Transactions shall have been obtained.
(k On or before the Firm Closing Date, the Company and the
Operating Partnership shall have delivered to you with respect to each of the
Properties copies of:
(i an owner policy or polices of title insurance insuring that
each of the Property Partnerships owns fee simple title to the real
property (other than the land in which the applicable Property
Partnership is acquiring a ground leasehold estate) comprising part of
the related Property and owns and holds a valid ground leasehold estate
in the land comprising part of the related Property in which such
Property Partnership is acquiring a ground leasehold estate, in an
amount at least equal to the Insured Title Amount, which policies shall
be issued by a title insurance company or companies as previously
disclosed to you and your counsel (any such person or persons, the
"Title Company"), and contain as exceptions to title only those
exceptions acceptable to the Representatives;
(ii an as-built survey of each of the Properties in form
satisfactory to you;
38
<PAGE>
(iii all assignments of tenant leases, service
contracts and similar rights owned, immediately prior to the Closing,
(i) by Prime, in the case of the Prime Properties and the Prime
Contribution Properties, (ii) by the NAC Contributors, in the case of
the NAC Contribution Properties, (iii) by the IBD Contributors, in the
case of the IBD Contribution Properties, and (iv) the respective
sellers of the Acquisition Properties, in the case of the Acquisition
Properties;
(iv all tenant estoppels, third party consents,
waivers, licenses, permits, authorizations, agreements, certificates
and the like required to be delivered to the Company pursuant to the
applicable acquisition, contribution or formation agreements;
(v all certificates of occupancy in the Company's
possession, zoning compliance letters and evidence of utility
availability for each of the Properties, to the extent not included in
the title insurance policies and surveys delivered pursuant to clauses
(i) and (ii);
(vi policies or certificates of insurance (including
earthquake insurance) relating to each of the Properties evidencing
coverages and in amounts as are prudent and customary in the businesses
in which they are or will be engaged;
(vii UCC, judgment and tax lien searches confirming
that the personal property comprising part of the Properties is subject
to no liens, charges, encumbrances, claims or restrictions;
(viii) checks payable to the appropriate public
officials in payment of all recording costs and transfer taxes (or
checks or wire transfers to the Title Company in respect of such
amounts) due in respect of the recording of any instruments to be
recorded in connection with the Formation Transactions, together with a
check or wire transfer for the Title Company in payment of the Title
Company's premium, search and examination charges, survey costs and any
other amounts due in connection with the issuance of its policy (or
commitment); and
(ix) if any of the Properties is subject to an
existing mortgage which is contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
to be paid and satisfied in full concurrently with the Closing , a
current payoff letter from the holder of such existing mortgage
indicating the principal amount required to satisfy all amounts then
secured by such existing mortgage and the
39
<PAGE>
additional amount required for each day after the date of such letter
necessary to satisfy all obligations secured thereby.
All opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to
purchase and pay for any Option Securities shall be subject, in their
discretion, to each of the foregoing conditions to purchase the Firm Securities,
except that all references to the Firm Securities and the Firm Closing Date
shall be deemed to refer to such Option Securities and the related Option
Closing Date, respectively.
8. Indemnification and Contribution. (a) Each of the Company
and the Operating Partnership, jointly and severally, agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934 (the "Exchange Act"), against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement
made by the Company or the Operating Partnership in Section 2 of this
Agreement,
(ii) any untrue statement or alleged untrue statement
of any material fact contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by the
Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction in order to qualify the
Securities under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange
(each an "Application"),
(iii) the omission or alleged omission to state in
the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amend-
40
<PAGE>
ment or supplement thereto, or any Application a material fact required
to be stated therein or necessary to make the statements therein not
misleading or
(iv) any untrue statement or alleged untrue statement
of any material fact contained in any audio or visual materials used in
connection with the marketing of the Securities, including, without
limitation, slides, videos, films and tape recordings,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that neither the Company nor the
Operating Partnership will be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or any
Application in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and provided, further, that neither the Company
nor the Operating Partnership will be liable to any Underwriter or any person
controlling such Underwriter with respect to any such untrue statement or
omission made in any Preliminary Prospectus that is corrected in the Prospectus
(or any amendment or supplement thereto) if the person asserting any such loss,
claim, damage or liability purchased Securities from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented) at or
prior to the written confirmation of the sale of such Securities to such person
in any case where such delivery of the Prospectus (as amended or supplemented)
is required by the Act, unless such failure to deliver the Prospectus (as
amended or supplemented) was a result of noncompliance by the Company or the
Operating Partnership with Section 5(d) and (e) of this Agreement. This
indemnity agreement will be in addition to any liability which the Company or
the Operating Partnership may otherwise have. Neither the Company nor the
Operating Partnership will, without the prior written consent of the Underwriter
or Underwriters purchasing, in the aggregate, more than fifty percent (50%) of
the Securities, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any such Underwriter or
any person who controls any such Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act is a party to such claim, action, suit
or proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its trustees (including any
person who, with his or her consent,
41
<PAGE>
is named in the Registration Statement as about to become a trustee of the
Company), each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company or any such trustee, officer or controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application or (ii) the omission or the alleged omission to
state therein a material fact required to be stated in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or any Application or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein; and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Company or any such trustee,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or any action in respect thereof. This
indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have. No Underwriter will, without the prior written consent of
the Company, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Company, any of its
trustees or officers who signed the Registration Statement or any person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an unconditional release
of the Company, its trustees and officers who signed the Registration Statement
and such controlling persons from all liability arising out of such claim,
action, suit or proceeding.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
(i) any liability which it may have to any indemnified party under this Section
8 except to the extent that the indemnifying party has been materially
prejudiced as a result thereof or (ii) any liability which it may have to any
indemnified party otherwise than under this Section 8. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party
42
<PAGE>
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such action
on behalf of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Representatives in
the case of paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action or actions) or
(ii) the indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Securities or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits
43
<PAGE>
received by the Company and the Operating Partnership on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering of the Securities (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and the
Operating Partnership and the Underwriters agree that it would not be equitable
if the amount of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
the Company and the Operating Partnership shall be deemed one party and jointly
and severally liable for any obligations to contribute hereunder and each
director of the Company, each officer of the Company who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Company and the Operating Partnership.
9. Default of Underwriters. If one or more Underwriters
default in their obligations to purchase Firm Securities or Option Securities
hereunder and the aggregate number of such Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase is ten percent or less
of the aggregate number of Firm Securities or Option Securities to be purchased
by all of the Underwriters at such time hereunder, the other Underwriters may
make arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related
44
<PAGE>
Option Closing Date, as the case may be, the other Underwriters shall be
obligated severally in proportion to their respective commitments hereunder to
purchase the Firm Securities or Option Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase. If one or more
Underwriters so default with respect to an aggregate number of Securities that
is more than ten percent of the aggregate number of Firm Securities or Option
Securities, as the case may be, to be purchased by all of the Underwriters at
such time hereunder, and if arrangements satisfactory to the Representatives are
not made within 36 hours after such default for the purchase by other persons
(who may include one or more of the non-defaulting Underwriters, including the
Representatives) of the Securities with respect to which such default occurs,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company or the Operating Partnership other
than as provided in Section 10 hereof. In the event of any default by one or
more Underwriters as described in this Section 9, the Representatives shall have
the right to postpone the Firm Closing Date or the Option Closing Date, as the
case may be, established as provided in Section 3 hereof for not more than seven
business days in order that any necessary changes may be made in the
arrangements or documents for the purchase and delivery of the Firm Securities
or Option Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers, the Operating Partnership and the several Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, the Operating Partnership, any Underwriter or any controlling person
referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated with
respect to the Firm Securities or any Option Securities in the sole discretion
of the Representatives by notice to the Company given prior to the Firm Closing
Date or the related Option Closing Date, respectively, in the event that the
Company or the Operating Partnership shall have failed, refused or been unable
to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Firm Closing Date or such Option Closing Date, respectively,
(i) the Company or any of its subsidiaries shall
have, in the sole judgment of the Representatives, sustained any
material loss or interference with their respective
45
<PAGE>
businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding or there shall
have been any material adverse change, or any development involving a
prospective material adverse change (including without limitation a
change in management or control of the Company), in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, taken as whole, except
in each case as described in or contemplated by the Registration
Statement and the Prospectus (exclusive of any amendment or supplement
thereto);
(ii) trading in the Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been
suspended or minimum or maximum prices shall have been established on
such exchange;
(iii) a banking moratorium shall have been declared
by New York, Illinois or United States authorities; or
(iv) there shall have been (A) an outbreak or
escalation of hostilities between the United States and any foreign
power, (B) an outbreak or escalation of any other insurrection or armed
conflict involving the United States or (C) any other calamity or
crisis or material adverse change in general economic, political or
financial conditions having an effect on the U.S. financial markets
that, in the sole judgment of the Representatives, makes it impractical
or inadvisable to proceed with the public offering or the delivery of
the Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Sections 6 and 10 hereof.
12. Information Supplied by Underwriters. The statements set
forth in the last paragraph on the front cover page and under the heading
"Underwriting" in any Preliminary Prospectus or the Prospectus (to the extent
such statements relate to the Underwriters) constitute the only information
furnished by any Underwriter through the Representatives to the Company for the
purposes of Sections 2(b) and 8 hereof. The Underwriters confirm that such
statements (to such extent) are correct.
13. Notices. All communications hereunder shall be in writing
and, if sent to any of the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to Prudential
Securities Incorporated, One New York Plaza, New York, New
46
<PAGE>
York 10292, Attention: Equity Transactions Group; and if sent to the Company,
shall be delivered or sent by mail, telex or facsimile transmission and
confirmed in writing to the Company at 77 W. Wacker Drive, Suite 3900, Chicago,
Illinois 60601, Attention: Chief Executive Officer, with a copy to the Company
at 77 W. Wacker Drive, Suite 3900, Chicago, Illinois 60601, Attention: General
Counsel (facsimile number: (312) 917-1684).
14. Successors. This Agreement shall inure to the benefit of
and shall be binding upon the several Underwriters, the Company, the Operating
Partnership and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person except that (i) the indemnities of the Company and the Operating
Partnership contained in Section 8 of this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Underwriters contained in Section 8 of this Agreement shall
also be for the benefit of the directors of the Company, the officers of the
Company who have signed the Registration Statement and any person or persons who
control the Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act. No purchaser of Securities from any Underwriter shall be
deemed a successor because of such purchase.
15. Applicable Law. The validity and interpretation of this
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
16. Consent to Jurisdiction and Service of Process. All
judicial proceedings arising out of or relating to this Agreement may be brought
in any state or federal court of competent jurisdiction in the State of New
York, and by execution and delivery of this Agreement, each of the Company and
the Operating Partnership accepts for itself and in connection with its
properties, generally and unconditionally, the nonexclusive jurisdiction of the
aforesaid courts and waives any defense of forum non conveniens and irrevocably
agrees to be bound by any judgment rendered thereby in connection with this
Agreement. The Company designates and appoints The Corporation Trust Inc. and
the Operating Partnership designates and appoints The Corporation Trust Company,
and such other persons as may hereafter be selected by each of the Company and
the Operating Partnership irrevocably agreeing in writing to so serve, as its
agent to receive on its behalf service of all process in any such proceedings in
any such court, such service being hereby acknowledged by each of the Company
and the Operating Partnership to be effective and
47
<PAGE>
binding service in every respect. A copy of any such process so served shall be
mailed by registered mail to each of the Company and the Operating Partnership
at its address provided in Section 13 hereof; provided, however, that, unless
otherwise provided by applicable law, any failure to mail such copy shall not
affect the validity of service of such process. If any agent appointed by the
Company or the Operating Partnership refuses to accept service, each of the
Company and the Operating Partnership hereby agrees that service of process
sufficient for personal jurisdiction in any action against the Company or the
Operating Partnership in the State of New York may be made by registered or
certified mail, return receipt requested, to the Company or the Operating
Partnership at its address provided in Section 13 hereof, and each of the
Company and the Operating Partnership hereby acknowledges that such service
shall be effective and binding in every respect. Nothing herein shall affect the
right to serve process in any other manner permitted by law or shall limit the
right of any Underwriter to bring proceedings against each of the Company and
the Operating Partnership in the courts of any other jurisdiction.
17. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
48
<PAGE>
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute an agreement binding the
Company, the Operating Partnership and each of the several Underwriters.
Very truly yours,
PRIME GROUP REALTY TRUST
By: /s/ Richard S. Curto
------------------------
Name: Richard S. Curto
Title: President
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust,
its managing general partner
By: /s/ Richard S. Curto
------------------------
Name: Richard S. Curto
Title: President
<PAGE>
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
SMITH BARNEY INC.
MORGAN KEEGAN & COMPANY, INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Jean-Claude Canfin
- --------------------------
Name: Jean-Claude Canfin
Title: Managing Director
For itself and on behalf of the Representatives as
Representatives of the other several Underwriters
named in Schedule I hereto
<PAGE>
SCHEDULE 1
UNDERWRITERS
<TABLE>
<CAPTION>
Number of
Firm Securities
Underwriter be Purchased
- ----------- ------------
<S> <C>
Prudential Securities Incorporated.................. 1,923,125
Friedman, Billlings, Ramsey & Co., Inc.............. 1,923,125
Smith Barney Inc.................................... 1,923,125
Morgan Keegan & Company, Inc........................ 1,923,125
ABN AMRO Chicago Corporation........................ 250,000
Bear, Stearns & Co. Inc............................. 250,000
BT Alex Brown Incorporated.......................... 250,000
LEGG Mason Wood Walker, Incorporated................ 250,000
CIBC Oppenheimer Corp............................... 250,000
Donaldson, Lufkin & Jenrette Securities Corporation. 250,000
A.G. Edwards & Sons, Inc............................ 250,000
Goldman, Sachs & Co................................. 250,000
Merrill, Lynch, Pierce, Fenner & Smith Incorporated. 250,000
JP Morgan Securities Inc............................ 250,000
Morgan Stanley & Co. Incorporated................... 250,000
PaineWebber Incorporated............................ 250,000
Advest, Inc......................................... 125,000
Everen Securities, Inc.............................. 125,000
Furman Selz LLC..................................... 125,000
Janney Montgomery Securities, Inc................... 125,000
Nesbitt Burns Securities Inc........................ 125,000
The Ohio Company.................................... 125,000
Principal Financial Securities, Inc................. 125,000
Raymond James & Associates, Inc..................... 125,000
Sutro & Co. Incorporated............................ 125,000
1-1
<PAGE>
Tucker Anthony Incorporated......................... 125,000
Blaylock & Partners, L.P............................ 62,500
Chatsworth Securities LLC........................... 62,500
Home Barnes Investments Inc......................... 62,500
Prime Charter Ltd................................... 62,500
Sanders Morris Mundy Inc............................ 62,500
Sands Brothers & Co., Inc........................... 62,500
The Williams Capital Group, L.P..................... 62,500
------
Total............................................... 12,380,000
----------
----------
</TABLE>
1-2
<PAGE>
SCHEDULE 2
PARTNERS OF OPERATING PARTNERSHIP
<TABLE>
<CAPTION>
Number of Percentage of
Managing General Partner Common Units All Units
- ------------------------ ------------ ---------
<S> <C> <C>
Prime Group Realty Trust 12,380,000 55.3%
General Partner
The Nardi Group, L.L.C 927,100 4.1
Limited Partners
Prime Group Limited Partnership 90,000 0.5
Jeffrey A. Patterson 110,000 0.5
Primestone Investment Partners, L.P. 7,944,893 35.5
IBD Contributors(2) 919,450 4.1
---------- -----
Total 22,371,443.00 100.0%
------------- -----
------------- -----
</TABLE>
- --------------
(2) The IBD Contributors consist of the following persons or entities:
Edward S. Hadesman Trust Dated May 22, 1992, Grandville/Northwestern
Management Corporation, Carolyn B. Hadesman Trust Dated May 21, 1992,
Lisa Hadesman 1991 Trust, Cynthia Hadesman 1991 Trust, Tucker B. Magid,
Frances S. Shubert, Grandville Road Property, Inc. and Sky Harbor
Associates. Allocations of Common Units among the IBD Contributors are
subject to certain adjustments and will be made at the Firm Closing
Date.
2-1
<PAGE>
SCHEDULE 3
ENVIRONMENTAL SITE ASSESSMENTS AND ENGINEERING REPORTS
------------------------------------------------------
A. Environmental Site Assessments:
1. Ogden, Level I Site Assessment, Hilton Parking Garage, 500
Clinch Ave., Knoxville, June 5, 1997.
2. Ogden, Level I Site Assessment, One Center Square Office
Building, 620 Market Street, Knoxville, June 5, 1997.
3. Ogden, Level I Site Assessment, Two Center Square Office
Building, 625 Gay Street, Knoxville, June 5, 1997.
4. Ogden, Level I Site Assessment, Suntrust Bank Building, 201
Fourth Ave, North, Nashville, June 5, 1997. No issues. Also
1993 Ogden Phase I.
5. Ogden, Level I Site Assessment, The Weston, 4823 Old
Kingston Pike, Knoxville, June 12, 1997.
6. Foth & Van Dyke, Summary Environmental Report, Chicago
Enterprise Center, Nov. 1995.
7. Versar, Phase I, Hammond Enterprise Center, Nov. 1995.
8. Podolsky & Northstar, Underground Tank Removal Report,
Citibank Office Plaza, 1699 E. Woodfield Rd., Schaumburg, IL,
Aug. 6, 1996.
9. Certified Engineering & Testing Co., Asbestos Audit Report and
Transformer Survey, Citicorp Office Building, 1900 Spring
Road, Oakbrook, IL, Mar. 17, 1989.
10. Environmental Hazard Control, Closeout Document, Vinyl
Asbestos Floor Tile and Mastic Removal, Citibank Office Plaza,
1699 E. Woodfield Rd., Schaumburg, IL, July 26, 1994.
11. Carlson Environmental, Draft Phase I Environmental Assessment,
1699 East Woodfield Rd., Schaumburg, IL., Citicorp Office
Plaza, June 22, 1997.
12. Chicago Flameproof, Meta Caulk Fire Stopping Proposal,
Mar. 13, 1997.
13. Environmental Remediation and Indemnity Agreement,
May 20, 1996.
14. STS, Environmental Reconnaisance and Subsurface Exploration,
77 West Wacker Drive, Dec. 1989.
15. Carlson Environmental, Revised Phase I Environmental
Assessment, 77 West Wacker Drive, Chicago, IL, May 20, 1997.
16. Carlson Environmental, Inc., Phase I of 455 Academy Drive,
Northbrook, IL, May 28, 1997.
17. Carlson Environmental, Limited Subsurface Soil Investigation
Proposal, Gurnee, IL, July 9, 1997.
3-1
<PAGE>
18. Pioneer Environmental, Phase I Environmental Site Assessment,
1001 Technology Way, Libertyville, IL, July 11, 1996.
19. Carlson Environmental, Phase I Assessment Update, 1001
Technology Way, Libertyville, IL, May 2, 1997.
20. Green Environmental Group, Phase I of vacant property in
McHenry, IL, July 1994.
21. Carlson Environmental, Draft Phase I Environmental Assessment,
1301 Ridgewood Drive, McHenry, IL, May 2, 1997.
22. Heritage, Hammond Enterprise Center Remediation Work Plan,
Feb. 28, 1997.
23. Heritage, East Chicago Enterprise Center Remediation Work
Plan, Feb. 28, 1997.
24. Burgess & Niple, Phase I Environmental Site Assessments,
Columbus Portfolio Properties, April 1997.
25. Burgess & Niple, Phase 2 Environmental Site Assessment of
4411 Marketing Place, Groveport, OH (Wes-Tran), June 1977.
26. Burgess & Niple, Letter regarding soil testing of AutoGlass
site, 4849 Grovepoint, Obetz, OH, July 15, 1997.
27. Carlson Environmental, Draft Phase I Environmental Assessment,
370 Carol Lane, Elmhurst, IL, Oct. 13, 1997.
28. Carlson Environmental, Draft Phase I Environmental Assessment,
11039 Gage Ave, Franklin Park, IL, Oct. 13, 1997.
29. Carlson Environmental, Draft Phase I Environmental Assessment,
388 Carol Lane, Elmhurst, IL, Oct. 13, 1997.
30. Carlson Environmental, Draft Phase I Environmental Assessment,
11045 Gage Ave., Franklin Park, IL, Oct. 13, 1997
31. Jamrok, Environmental Assessment of North Western Proviso
Center, 5600 Proviso Drive, Berkely, IL, May 31, 1994.
32. Carlson Environmental, Draft Phase I, 5600 Proviso Drive,
Berkely, IL, Oct. 16, 1997.
33. Boelter, Phase I Environmental Assessment, 342-346 Carol Lane,
Elmhurst, IL, Mar. 25, 1994.
34. Carlson Environmental, Draft Phase I Environmental Report,
342-346 Carol Lane, Elmhurst, IL, Oct. 16, 1997.
35. Boelter, Phase I Environmental Assessment, 343 Carol Lane,
Elmhurst, IL, Mar. 25, 1994.
36. Carlson Environmental, Draft Phase I Environmental Assessment,
343 Carol Lane, Elmhurst, IL, Oct. 17, 1997.
3-2
<PAGE>
37. Jamrok, Phase I of 1600-1700 167th St. Calumet City, IL, 1992.
38. Carlson, Draft Phase I Environmental Assessment, 1600-1700
167th St., Calumet City, IL, Oct. 16, 1997.
39. Jamrok, Phase I of 200 E. Fullerton, Carol Stream, IL,
Nov. 15, 1993.
40. Carlson Environmental, Draft Phase I Environmental Assessment
of 200 E. Fullerton, Carol Stream, IL, Oct. 17, 1997.
41. Jamrok, Environmental Inspection of Narco-Elmhurst Center, 961
Weigel Dr., Elmhurst, IL, May 31, 1990.
42. Carlson Environmental, Draft Phase I Environmental Assessment,
961 Weigel Drive., Elmhurst, IL, Oct. 16, 1997.
43. Carlson Environmental, Phase I Environmental Assessment of
Vacant Parcel, 300 Craig Place, Hillside, IL. May 21, 1996.
44. Carlson Environmental, Draft Phase I Environmental Site
Assessment, 300-320 Craig Place, Hillside, IL, Oct. 17, 1997.
45. Carlson Environmental, Phase I Environmental Assessment of 550
Kehoe Blvd., Carol Stream. IL, July 10, 1996.
46. Carlson Environmental, Draft Phase I Environmental Assessment,
550 Kehoe Blvd., Carol Stream, IL, Oct. 16, 1997.
47. Jamrok, Environmental Assessment of 4100 Madison, Hillside,
IL, June 3, 1992.
48. Carlson, Draft Phase I Environmental Assessment, 4100 Madison
St., Hillside, IL, Oct. 17, 1997.
49. Carlson, Draft Phase I of Nine Vacant Lots, Carol Stream, IL,
Oct. 16, 1997.
50. Jamrok, Environmental Assessment of 4343 Commerce Ct, Lisle,
IL, Mar. 29, 1989.
51. Carlson Environmental, Draft Phase I Environmental Assessment,
4343 Commerce Ct., Lisle, IL, Oct. 15, 1997.
52. Jamrok, Environmental Assessment of 4250-4300 Madison,
Hillside, IL, Feb. 29, 1992.
53. Carlson Environmental, Draft Phase I Environmental Assessment,
4300 Madison St., Hillside, IL, Oct. 17, 1997.
54. Jamrok, Environmental Assessment of 1051 Kirk Rd, Batavia,
IL, Mar. 1, 1990.
55. Carlson, Draft Phase I Environmental Assessment, 1051
Kirk Rd., Batavia, IL, Oct. 17, 1997.
56. Jamrok, Phase I Environmental Audit of 350 Randy Road, Carol
Stream, IL. May 31, 1991.
57. Carlson, Draft Phase I Environmental Assessment, 350 Randy
Road, Carol Stream, IL, Oct. 17, 1997.
3-3
<PAGE>
58. Carlson Environmental, Draft Phase I Environmental Assessment,
130 E. Rawls Rd., Des Plaines, IL, Oct. 15, 1997.
59. Jamrok, Phase I of 1401 S. Jefferson, Chicago, IL, Nov. 26,
1991.
60. Carlson Environmental, Draft Phase I Environmental Assessment
of 1401 S. Jefferson, Chicago, IL, Oct. 16, 1997.
61. Carlson Environmental, Draft Phase I Environmental Assessment,
1303 Tower Rd., Schaumburg, Il, Oct. 16, 1997.
62. Carlson, Draft Phase I Environmental Assessment, 2050 Hammond
Drive, Schaumburg, IL, Oct. 15, 1997.
63. Carlson Environmental, Draft Phase I Environmental Assessment,
371-385 N. Gary Ave., Carol Stream, IL, Oct. 16, 1997.
64. Carlson Environmental, Draft Phase I Environmental Assessment,
1200 Northwestern Ave./3818 Grandville Ave., Gurnee, IL, May
9, 1997.
65. Carlson Environmental, Draft Phase I Environmental Assessment,
555 Heuhl Rd., Northbrook, IL., 5/8/97; and addendum, June 5,
1997.
66. Carlson Environmental, Draft Phase I Environmental Assessment,
306-310 Era Drive, Northbrook, IL, May 2, 1997, addendum, May
28, 1997.
67. Carlson Environmental, Phase I Environmental Assessment, Salt
Creek Office Center, Schaumburg, IL, Aug. 22, 1997.
68. Carlson Environmental, Draft Phase I Environmental Assessment,
4160-4190 Madison, Hillside, IL, Oct. 17, 1997.
69. Carlson Environmental, Draft Phase I Environmental Assessment,
4211 Madison Street, Hillside, IL, Oct. 17, 1997.
70. Carlson Environmental, Draft Phase I Environmental Site
Assessment, 350 North Mannheim Rd., Hillside, IL, Oct. 16,
1997.
71. Carlson Environmental, Draft Phase I Environmental Assessment,
Two Vacant Lots, Batavia, IL, Oct. 17, 1997.
72. Carlson Environmental, Draft Phase I Environmental Assessment
of 280 Shulman Blvd., Naperville, IL, Oct. 21, 1997.
73. Carlson Environmental, Draft Phase I Environmental Assessment
of 475 Superior Ave., Munster, IN, Oct. 21, 1997.
74. Carlson Environmental, Phase I Environmental Assessment Update
of 425 East Algonquin Road, Arlington Heights, IL Oct. 21,
1997.
3-4
<PAGE>
75. Carlson Environmental, Phase I Environmental Assessment, 77
West Wacker Drive, August 20, 1997, plus correspondence dated
November 11, 1997.
76. Carlson Environmental, Draft Phase I Environmental Assessment,
2205-2255 Enterprise Drive, Westchester, IL.
77. Carlson Environmental, Removal Site Evaluation and Preliminary
Assessment Event and Work Plan (1/97) and Event and Report
(4/97), 13535 S. Torrence Ave., Chicago, IL.
B. Engineering Reports;
1. Wiss, Janney Engineering Report for the following Properties
to be contributed by NAC Contributors:
a. 1401 Jefferson St.
1. 4211 Madison
2. 200 E. Fullerton
3. 350 Randy Rd.
4. 4300 Madison
5. 388 Carol Lane
6. 961 Weigel
7. 4100-4190 Madison
8. 4343 Commerce Ct.
9. 5600 Proviso Dr.
10. 11039 Gage Ave.
11. 11045 Gage Ave.
12. 300-320 Craig Pl.
2. Wiss, Janney, Walkthrough Inspection of Eight Industrial
Properties of the Brazos Industrial Portfolio, 4/17/97, for
the following Properties:
1. 4849 Groveport
2. 2160 McGaw Rd.
3. 2400 McGaw Rd.
4. 2499 McGaw
5. 4411 Marketing
6. 5160 Blazer
7. 341 Enterprise
8. 600 London Rd.
3-5
<PAGE>
3. Wiss, Janey, Draft 3 Engineering Walkthrough for Citibank
Office Plaza and Salt Creek Office Center, 7/14/97.
4. Wiss, Janey, Draft Engineering Walkthrough for the following
IBD Industrial Properties:
1. 515 Heuhl Rd.
2. 555 Heuhl Rd.
3. 455 Academy Dr.
4. 306-310 Era
5. 1200 Northwest
6. 1001 Technology Way
7. 1301 Ridgeview
3-6
<PAGE>
SCHEDULE 4
TRANSACTION DOCUMENTS
Amended and Restated Agreement of Limited Partnership of Prime Group
Realty, L.P.
Formation Agreement, to be dated as of November 17, 1997, by and among
Prime Group Realty Trust, Prime Group Realty, L.P., Prime Group Realty Services,
Inc., The Prime Group, Inc., Prime Group Limited Partnership and Jeffrey A.
Patterson.
Subscription Agreement dated as of November 11, 1997 by and between
Prime Group Realty, L.P. and Primestone Investment Partners, L.P.
Series A Preferred Securities Purchase Agreement dated as of November
11, 1997 among Security Capital Preferred Growth Incorporated, Prime Group
Realty Trust and Prime Group Realty, L.P.
Credit Agreement to be dated as of November 17, 1997 (the "Credit
Facility") among Prime Group Realty, L.P., Prime Group Realty Trust, BankBoston,
N.A., as agent and the certain financial institutions from time to time parties
thereto as lenders (the "Lenders").
Promissory Notes to be dated November 17, 1997 in the amount of
$225,000,000 issued by Prime Group Realty, L.P. to the Lenders.
Mortgage Security Agreement and Financing Statement to be dated
November 17, 1997 by 77 West Wacker Limited Partnership in favor of BankBoston,
N.A. as agent for the Lenders.
Loan Agreement dated as of November 11, 1997 between Prime Group
Realty, L.P. and Prudential Securities Credit Corporation relating to the New
Mortgage Notes.
Guaranty dated November 17, 1997 from 77 West Wacker Limited
Partnership, enterprise Center I, L.P., Enterprise Center II, L.P., Enterprise
Center III, L.P., Enterprise Center IV, L.P., Enterprise Center V, L.P.,
Enterprise Center VI, L.P., Enterprise Center VII, L.P., Enterprise Center VIII,
L.P., Enterprise Center IX, L.P., Enterprise Center X, L.P., Arlington Heights
I, L.P., Arlington Heights II, L.P., Arlington Heights III, L.P., East Chicago
Enterprise Limited Partnership, Hammond Enterprise Center Limited Partnership,
Nashville Office Building I, Ltd., Old Kingston Properties, Ltd., Centre Square
II, Ltd., Triad Parking Company, Ltd. in favor of BankBoston, N.A., as agent for
the Lenders.
Indemnification Agreement between Prime Group Realty Trust and each if
its trustees.
Right of First Offer Agreement to be dated as of November 17, 1997
between Prime Group Realty, L.P., and The Prime Group, Inc.
Employment Agreement by and between Prime Group Realty Trust, Prime
Group Realty, L.P. and Michael W. Reschke.
Employment Agreement by and between Prime Group Realty Trust, Prime
Group Realty, L.P. and Richard S. Curto.
4-1
<PAGE>
Employment Agreement by and between Prime Group Realty Trust, Prime
Group Realty, L.P. and W. Michael Karnes.
Employment Agreement by and between Prime Group Realty Trust, Prime
Group Realty, L.P. and Robert J. Rudnik.
Employment Agreement by and between Prime Group Realty Trust, Prime
Group Realty, L.P. and Jeffrey A. Patterson.
Employment Agreement by and between Prime Group Realty Trust, Prime
Group Realty, L.P. and Kevork M. Derderian.
Employment Agreement by and between Prime Group Realty Trust, Prime
Group Realty, L.P. and Edward S. Hadesman.
Consulting Agreement by and between Prime Group Realty Trust and
Stephen J. Nardi.
Option Agreement by and between Prime Group Realty, L.P. and 300 N.
LaSalle, L.L.C. to be dated as of November 17, 1997.
Registration Rights Agreement to be dated November 17, 1997 among Prime
Group Realty Trust, Prime Group Realty, L.P., The Prime Group, Inc., Primestone
Investment Partners L.P. and other investors named therein.
Registration Rights Agreement to be dated November 17, 1997 between
Prime Group Realty Trust and Security Capital Preferred Growth Incorporated.
Environmental Remediation and Indemnification Agreement to be dated
November 17, 1997 by and between Prime Group Realty, L.P. and The Prime Group,
Inc.
Non-Competition and Restriction Agreement to be dated November 17, 1997
by and among Prime Group Realty Trust, The Prime Group, Inc. and Michael W.
Reschke.
Tax Indemnification Agreement to be dated November 17, 1997 by and
between Prime Group Realty, L.P. and IBC Contributors.
Tax Indemnification Agreement to be dated November 17, 1997 by and
between Prime Group Realty, L.P. and certain of the NAC Contributors.
Tax Indemnification Agreement to be dated November 17, 1997 by and
between The Prime Group, Inc. and Prime Group Realty, L.P.
Contribution Agreement dated as of October 20, 1997 by and among The
Prime Group, Inc., Prime Group Realty, L.P., Prime Group Realty Trust, Narco
River Business Center, Narco Tower Road Associates, Olympian Office Center,
Tri-State Industrial Park Joint Venture, Carol Stream Industrial Park Joint
Venture, Narco Enterprises, Inc., The Nardi Group Ltd., Narco construction Inc.,
Nardi & Co., Nardi Asset Management, Inc. and Nardi Architectural, Inc.
4-2
<PAGE>
Asset Purchase Agreement by and among Continental Offices, Ltd.
Continental Offices Ltd. Realty and Prime Group Realty, L.P.
All instruments of transfer and conveyance related to the Formation
Transactions, including, without limitation, bills of sale, deeds and assignment
agreements.
The loan agreements, mortgages, security agreements, promissory notes
and other documents executed by Prime Group Realty Trust and/or its subsidiaries
in connection with the Credit Facility.
The loan agreements, mortgages, security agreements, promissory notes
and other documents executed by Prime Group Realty Trust and/or its subsidiaries
in connection with the New Mortgage Notes.
4-3
<PAGE>
SCHEDULE 5
TRANSFER DOCUMENTS
Formation Agreement, to be dated as of November 17, 1997, by and among
Prime Group Realty Trust, Prime Group Realty, L.P., Prime Group Realty Services,
Inc., The Prime Group, Inc., Prime Group Limited Partnership and Jeffrey A.
Patterson.
Right of First Offer Agreement to be dated as of November 17, 1997
between Prime Group Realty, L.P., and The Prime Group, Inc.
Option Agreement by and between Prime Group Realty, L.P. and 300 N.
LaSalle, L.L.C. to be dated as of November 17, 1997.
Contribution Agreement dated as of October 20, 1997 by and among The
Prime Group, Inc., Prime Group Realty, L.P., Prime Group Realty Trust, Narco
River Business Center, Narco Tower Road Associates, Olympian Office Center,
Tri-State Industrial Park Joint Venture, Carol Stream Industrial Park Joint
Venture, Narco Enterprises, Inc., The Nardi Group Ltd., Narco construction Inc.,
Nardi & Co., Nardi Asset Management, Inc. and Nardi Architectural, Inc.
Option to Purchase Partnership Interests dated as of June 17, 1994 by
and between KILICO Realty Corporation, and The Prime Group, Inc., as amended by
that certain First Amendment to Option Purchase Partnership Interests dated as
of January 21, 1997 by and between KILICO Realty Corporation and The Prime
Group, Inc., as further amended by that certain Second Amendment to Option to
Purchase Partnership Interests dated as of July 15, 1997 by and between KILICO
Realty Corporation and The Prime Group, Inc.
Contribution Agreement dated as of July 8, 1997, as amended, by and
among LaSalle National Trust, N.A., not personally, but solely as Trustee under
Trust Agreement dated June 15, 1982 and known as trust No. 10-40113-09, LaSalle
National Trust, N.A., not personally, but solely as Trustee under Trust
Agreement dated September 7, 1994 and known as Trust No. 11-9051, LaSalle
National Trust, N.A., not personally, but solely as Trustee under Trust
Agreement March 30, 1984 and known as Trust No. 11-107825, LaSalle National
Trust, N.A., not personally, but solely as Trustee under Trust Agreement dated
August 1, 1986 and known as Trust No. 11-a1358, LaSalle National Trust, N.A.,
not personally but solely as Trustee under Trust Agreement dated August 1, 1986
and known as Trust No. 11-1357, LaSalle National Trust N.A., not personally, but
solely as Trustee under Trust Agreement dated January 17, 1974 and known as
Trust No. 286-34, LaSalle National Trust, N.A., not personally, but solely as
Trustee under Trust Agreement dated October 15, 1995 and known as Trust No.
11-9869, LaSalle National Trust, N.A., not personally, but solely as Trustee
under Trust Agreement dated December 1, 1987 and known as Trust No. 11-2868, 310
ERA Limited Partnership, MacArthur Drive Properties, CLE Limited Partnership,
500 Lindeberg Limited Partnership, 515 Huehl Limited Partnership, 555 Huehl
Limited Partnership, Sky Harbor Associates, 1001 Technology Way, LLC, The
Grandville Road Limited Partnership, Industrial Building and Development Company
and The Prime Group, Inc., as amended by the First Amendment to the Contribution
Agreement dated as of August 12, 1997, by and between The Prime Group, Inc., an
Illinois corporation, and LaSalle National Trust, NA, t/u/t 10-40113-09 dated
June 15, 1982, LaSalle National Trust, NA, t/u/t 11-9051 dated September 7,
1994; LaSalle National Trust, NA t/u/t 11-107825 dated March 30, 1984; LaSalle
National Trust, NA/t/u/t 11-1358 dated August 1, 1986; LaSalle National Trust,
NA, t/u/t 11-1357 dated August 1, 1986; LaSalle National Trust, NA, t/u/t 286-34
dated January 17, 1974; LaSalle National Trust, NA, t/u/t 11-9869 dated October
15, 1995; and LaSalle National Trust, NA, t/u/t 11-2868 dated December 1, 1987.
5-1
<PAGE>
Asset Purchase Agreement by and among Continental Offices, Ltd.
Continental Offices Ltd. Realty and Prime Group Realty, L.P.
Amended and Restated Agreement dated as of July 15, 1997 by and among
Kemper Investors Life Insurance Company, Federal Kemper Life Assurance Company,
KILICO Realty Corporation, FKLA Realty Corporation, KR 77 Fitness Center, Inc.,
77 West Wacker Limited Partnership, K/77 Investors Limited Partnership, The
Prime Group, Inc., Prime Group Limited Partnership and Prime 77 Fitness Center,
Inc.
Agreement dated as of July 18, 1997 by and among the Prime Group, Inc.,
KILICO Realty Corporation, KFC Portfolio Corp. and Kemper Investors Life
Insurance Company.
Agreement to Contribute dated as of August 12, 1997 by and between
Tucker B. Magid and The Prime Group, Inc.
Agreement to Contribute dated as of August 12, 1997 by and between
Frances S. Shubert and The Prime Group, Inc.
Option Agreement dated as of August 4, 1997 by and between Lumbermens
Mutual Casualty Company and The Prime Group, Inc.
Agreement for Purchase or Exchange dated June 13, 1997 by and between
Sun Annex Partners and Salt Creek Partners, Ltd. and The Prime Group, Inc.
Assignment and Assumption of Real Estate Purchase and Sale Agreement
dated November 16, 1997 by and between The Prime Group, Inc. and 1990 Algonquin
Road, L.L.C. and 2010 Algonquin Road, L.L.C.
Purchase and Sale Agreement dated October, 1997, by and between The
Mutual Life Insurance Company of New York, a New York mutual life insurance
company, and The Prime Group, Inc.
Contract of Sale dated October 13, 1997 between MGI Properties
(formerly known as Mortgage Growth Investors), One Winthrop Square, Boston,
Massachusetts 02110 (Seller) and The Prime Group, Inc., 77 West Wacker Limited
Partnership (Purchaser).
Purchase and Sale Agreement and Joint Escrow instructions dated October
1, 1977 by and between Mission Land Company and The Prime Group, Inc.
All instruments of transfer and conveyance related to the Formation
Transactions, including, without limitation, bills of sale, deeds and assignment
agreements.
5-2
<PAGE>
SCHEDULE 6
OPERATIVE DOCUMENTS
Amended and Restated Agreement of Limited Partnership of Prime Group
Realty, L.P.
Formation Agreement, to be dated as of November 17, 1997, by and among
Prime Group Realty Trust, Prime Group Realty, L.P., Prime Group Realty Services,
Inc., The Prime Group, Inc., Prime Group Limited Partnership and Jeffrey A.
Patterson.
Subscription Agreement dated as of November 11, 1997 by and between
Prime Group Realty, L.P. and Primestone Investment Partners, L.P.
Series A Preferred Securities Purchase Agreement dated as of November
11, 1997 among Security Capital Preferred Growth Incorporated, Prime Group
Realty Trust and Prime Group Realty, L.P.
Credit Agreement to be dated as of November 17, 1997 (the "Credit
Facility") among Prime Group Realty, L.P., Prime Group Realty Trust, BankBoston,
N.A., as agent and the certain financial institutions from time to time parties
thereto as lenders (the "Lenders").
Promissory Notes to be dated November 17, 1997 in the amount of
$225,000,000 issued by Prime Group Realty, L.P. to the Lenders.
Mortgage Security Agreement and Financing Statement to be dated
November 17, 1997 by 77 West Wacker Limited Partnership in favor of BankBoston,
N.A. as agent for the Lenders.
Loan Agreement dated as of November 11, 1997 between Prime Group
Realty, L.P. and Prudential Securities Credit Corporation relating to the New
Mortgage Notes.
Guaranty dated November 17, 1997 from 77 West Wacker Limited
Partnership, enterprise Center I, L.P., Enterprise Center II, L.P., Enterprise
Center III, L.P., Enterprise Center IV, L.P., Enterprise Center V, L.P.,
Enterprise Center VI, L.P., Enterprise Center VII, L.P., Enterprise Center VIII,
L.P., Enterprise Center IX, L.P., Enterprise Center X, L.P., Arlington Heights
I, L.P., Arlington Heights II, L.P., Arlington Heights III, L.P., East Chicago
Enterprise Limited Partnership, Hammond Enterprise Center Limited Partnership,
Nashville Office Building I, Ltd., Old Kingston Properties, Ltd., Centre Square
II, Ltd., Triad Parking Company, Ltd. in favor of BankBoston, N.A., as agent for
the Lenders.
Right of First Offer Agreement to be dated as of November 17, 1997
between Prime Group Realty, L.P., and The Prime Group, Inc.
Option Agreement by and between Prime Group Realty, L.P. and 300 N.
LaSalle, L.L.C. to be dated as of November 17, 1997.
Registration Rights Agreement to be dated November 17, 1997 among Prime
Group Realty Trust, Prime Group Realty, L.P., The Prime Group, Inc., Primestone
Investment Partners L.P. and other investors named therein.
6-1
<PAGE>
Registration Rights Agreement to be dated November 17, 1997 between
Prime Group Realty Trust and Security Capital Preferred Growth Incorporated.
Environmental Remediation and Indemnification Agreement to be dated
November 17, 1997 by and between Prime Group Realty, L.P. and The Prime Group,
Inc.
Non-Compete Agreement to be dated November 17, 1997 by and among Prime
Group Realty Trust, The Prime Group, Inc. and Michael W. Reschke.
Tax Indemnification Agreement to be dated November 17, 1997 by and
between Prime Group Realty, L.P. and IBD Contributors.
Tax Indemnification Agreement to be dated November 17, 1997 by and
between Prime Group Realty, L.P. and certain of the NAC Contributors.
Tax Indemnification Agreement to be dated November 17, 1997 by and
between The Prime Group, Inc. and Prime Group Realty, L.P.
Contribution Agreement dated as of October 20, 1997 by and among The
Prime Group, Inc., Prime Group Realty, L.P., Prime Group Realty Trust, Narco
River Business Center, Narco Tower Road Associates, Olympian Office Center,
Tri-State Industrial Park Joint Venture, Carol Stream Industrial Park Joint
Venture, Narco Enterprises, Inc., The Nardi Group Ltd., Narco construction Inc.,
Nardi & Co., Nardi Asset Management, Inc. and Nardi Architectural, Inc.
Option to Purchase Partnership Interests dated as of June 17, 1994 by
and between KILICO Realty Corporation, and The Prime Group, Inc., as amended by
that certain First Amendment to Option Purchase Partnership Interests dated as
of January 21, 1997 by and between KILICO Realty Corporation and The Prime
Group, Inc., as further amended by that certain Second Amendment to Option to
Purchase Partnership Interests dated as of July 15, 1997 by and between KILICO
Realty Corporation and The Prime Group, Inc.
6-2
<PAGE>
LaSalle National Trust, NA, t/u/t 11-1357 dated August 1, 1986; LaSalle National
Trust, NA, t/u/t 286-34 dated January 17, 1974; LaSalle National Trust, NA,
t/u/t 11-9869 dated October 15, 1995; and LaSalle National Trust, NA, t/u/t
11-2868 dated December 1, 1987.
Asset Purchase Agreement by and among Continental Offices, Ltd.
Continental Offices Ltd. Realty and Prime Group Realty, L.P.
Amended and Restated Agreement dated as of July 15, 1997 by and among
Kemper Investors Life Insurance Company, Federal Kemper Life Assurance Company,
KILICO Realty Corporation, FKLA Realty Corporation, KR 77 Fitness Center, Inc.,
77 West Wacker Limited Partnership, K/77 Investors Limited Partnership, The
Prime Group, Inc., Prime Group Limited Partnership and Prime 77 Fitness Center,
Inc.
Agreement dated as of July 18, 1997 by and among the Prime Group, Inc.,
KILICO Realty Corporation, KFC Portfolio Corp. and Kemper Investors Life
Insurance Company.
Agreement to Contribute dated as of August 12, 1997 by and between
Tucker B. Magid and The Prime Group, Inc.
Agreement to Contribute dated as of August 12, 1997 by and between
Frances S. Shubert and The Prime Group, Inc.
Option Agreement dated as of August 4, 1997 by and between Lumbermens
Mutual Casualty Company and The Prime Group, Inc.
Agreement for Purchase or Exchange dated June 13, 1997 by and between
Sun Annex Partners and Salt Creek Partners, Ltd. and The Prime Group, Inc.
Assignment and Assumption of Real Estate Purchase and Sale Agreement
dated November 16, 1997 by and between The Prime Group, Inc. and 1990 Algonquin
Road, L.L.C. and 2010 Algonquin Road, L.L.C.
Purchase and Sale Agreement dated October 1997, by and between The
Mutual Life Insurance Company of New York, a New York mutual life insurance
company, and The Prime Group, Inc.
Contract of Sale dated October 13, 1997 between MGI Properties
(formerly known as Mortgage Growth Investors), One Winthrop Square, Boston,
Massachusetts 02110 (Seller) and The Prime Group, Inc., 77 West Wacker Limited
Partnership (Purchaser).
Purchase and Sale Agreement and Joint Escrow instructions dated October
1, 1977 by and between Mission Land Company and The Prime Group, Inc.
All instruments of transfer and conveyance related to the Formation
Transactions, including, without limitation, bills of sale, deeds and assignment
agreements.
The loan agreements, mortgages, security agreements, promissory notes
and other documents executed by Prime Group Realty Trust and/or its subsidiaries
in connection with the Credit Facility.
The loan agreements, mortgages, security agreements, promissory notes
and other documents executed by Prime Group Realty Trust and/or its subsidiaries
in connection with the New Mortgage Notes.
The loan agreements, mortgages, security agreements, promissory notes
and other documents executed by Prime Group Realty Trust and/or its subsidiaries
in connection with the Primestone Credit Facility.
6-3
<PAGE>
Contract of Sale dated October 13, 1997 between MGI Properties
(formerly known as Mortgage Growth Investors), One Winthrop Square, Boston,
Massachusetts 02110 (Seller) and The Prime Group, Inc., 77 West Wacker Limited
Partnership (Purchaser).
Purchase and Sale Agreement and Joint Escrow instructions dated
October 1, 1977 by and between Mission Land Company and The Prime Group, Inc.
All instruments of transfer and conveyance related to the Formation
Transactions, including, without limitation, bills of sale, deeds and assignment
agreements.
The loan agreements, mortgages, security agreements, promissory notes
and other documents executed by Prime Group Realty Trust and/or its subsidiaries
in connection with the Credit Facility.
The loan agreements, mortgages, security agreements, promissory notes
and other documents executed by Prime Group Realty Trust and/or its subsidiaries
in connection with the New Mortgage Notes.
The loan agreements, mortgages, security agreements, promissory notes
and other documents executed by Prime Group Realty Trust and/or its subsidiaries
in connection with the Primestone Credit Facility.
6-4
<PAGE>
Exhibit 10.28
REGISTRATION RIGHTS AGREEMENT
Dated as of December 15, 1997
of
PRIME GROUP REALTY TRUST
for the benefit of
CERTAIN HOLDERS OF COMMON UNITS
of
PRIME GROUP REALTY, L.P.
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of the 15th day of
December, 1997 (this "Agreement"), among PRIME GROUP REALTY TRUST, a Maryland
real estate investment trust (the "Company"), PRIME GROUP REALTY, L.P., a
Delaware limited partnership (the "Partnership"), and H GROUP LLC, a Delaware
limited liability company ("HG"), and the Permitted Transferees (as defined
below) of HG and each other Investor (as hereinafter defined) (HG and such
other entities or Permitted Transferees are sometimes referred to herein
individually as an "Investor" and collectively as the "Investors").
W I T N E S S E T H:
WHEREAS, HG will hold the common units of limited partnership
interest in the Partnership set forth in Exhibit A hereto (which common units
of limited partnership interest, together with common units of limited
partnership interest hereafter issued to any other Person that is admitted as
a limited partner of the Partnership, are referred to herein collectively as
the "Common Units"), which Common Units may be exchanged for common shares of
beneficial interest of the Company (the "Common Shares") pursuant to certain
exchange rights set forth on Exhibit C to that certain Amended and Restated
Agreement of Limited Partnership of Prime Group Realty, L.P., dated November
17, 1997, as thereafter amended (as so amended and as from time to time
hereafter amended, the "Partnership Agreement"); and
<PAGE>
WHEREAS, the Company has agreed to provide HG and any subsequent
Investors with certain registration rights as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to
and on the terms and conditions herein set forth, the parties hereto agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
I.1. "Agreement" is defined in the first paragraph of this Agreement.
I.2. "Blackout Termination Right" is defined in Section 5.3(b) hereof.
I.3. "Business Day" means any day on which the New York Stock Exchange
is open for trading.
I.4. "Company" is defined in the first paragraph of this Agreement.
I.5. "Effectiveness Period" is defined in Section 4.3 hereof.
I.6. "Eligible Formation Securities" means the securities defined as
"Eligible Securities" in the Formation Registration Rights Agreement.
I.7. "Eligible Securities" means all or any portion of the Common
Shares acquired by the Investors upon exchange of the Common Units. As to any
proposed offer or sale of Eligible Securities, such securities shall cease to
be Eligible Securities with respect to such proposed offer or sale when (i) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement or (ii) such
securities are permitted to be disposed of pursuant to Rule
<PAGE>
144(k) (or any successor provision to such Rule) under the Securities Act as
confirmed in a written opinion of counsel to the Company addressed to the
Investors, (iii) such securities shall have been otherwise transferred
pursuant to Rule 144 (or any successor rule) or pursuant to another
applicable exemption under the Securities Act, new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company and such securities shall be freely transferable to
the public without registration under the Securities Act or (iv) such
securities are no longer outstanding.
I.8. "Formation Investors" means the "Investors" and the "Management
Investor" as such terms are defined in the Formation Registration Rights
Agreement.
I.9. "Formation Registration Rights Agreement" means that certain
Registration Rights Agreement dated as of November 17, 1997 by and among the
Company, the Partnership and the other parties signatory thereto.
I.10. "Information Blackout" is defined in Section 5.3(a) hereof.
I.11. "Investor Group" means, with respect to an Investor, such
Investor and its Permitted Transferees.
I.12. "Investor" means HG and each Person that receives Common Units
after the date hereof and is admitted as a limited partner of the
Partnership, and any of their Permitted Transferees.
I.13. "IPO" means, with respect to an Investor, such Investor and
its Permitted Transferees and any other beneficial interest of the Company
offered simultaneously with the Common Shares.
I.14. "IPO Date" means the date of the final prospectus used by the
Company in the IPO.
3
<PAGE>
I.15. "Lock-Up Agreements" means any Lock-Up Agreement between any
other Investor and the Underwriter entered into prior to the end of the 180
day-period following the IPO Date.
I.16. "Partnership" is defined in the first paragraph of this
Agreement.
I.17. "Partnership Agreement" means that certain Amended and
Restated Agreement of Limited Partnership of Prime Group Realty, L.P., dated
November 17, 1997, as amended, and as from time to time hereafter amended.
I.18. "Participating Investor" is defined in Section 3.3(a) hereof.
I.19. "Person" means an individual, a partnership (general or
limited), corporation, real estate investment trust, joint venture, business
trust, cooperative, association or other form of business organization,
whether or not regarded as a legal entity under applicable law, a trust
(inter vivos or testamentary), an estate of a deceased, insane or incompetent
person, a quasi-governmental entity, a government or any agency, authority,
political subdivision or other instrumentality thereof, or any other entity.
I.20. "Permitted Transferees" with respect to each Investor means
the Persons which qualify as Qualified Transferees under the Partnership
Agreement.
I.21. "Registration Date" is defined in Section 2.1 hereof.
I.22. "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with the registration requirements set
forth in this Agreement including, without limitation, the following: (i) the
fees, disbursements and expenses of the Company's counsel(s) (United States
and foreign), accountants and experts in connection with the registration of
Eligible Securities to be disposed of under the Securities Act; (ii) all
expenses in connection with the
4
<PAGE>
preparation, printing and filing of the registration statement, any
preliminary prospectus or final prospectus, any other offering document and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the underwriters and dealers; (iii) the cost of printing or
producing any agreement(s) among underwriters, underwriting agreement(s) and
blue sky or legal investment memoranda, any selling agreements and any other
documents in connection with the offering, sale or delivery of Eligible
Securities to be disposed of; (iv) all expenses in connection with the
qualification of Eligible Securities to be disposed of for offering and sale
under state securities laws, including the fees and disbursements of counsel
for the underwriters in connection with such qualification and in connection
with any blue sky and legal investment surveys; (v) the filing fees incident
to securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of Eligible Securities to be disposed
of; and (vi) fees and expenses incurred in connection with the listing of
Eligible Securities on each securities exchange or quotation system on which
the Common Shares are then listed; provided, however, that Registration
Expenses with respect to any registration pursuant to this Agreement shall
not include underwriting discounts or commissions attributable to Eligible
Securities, SEC or blue sky registration fees attributable to Eligible
Securities or transfer taxes applicable to Eligible Securities.
I.23. "Requesting Investor" means an Investor requesting
registration of its Eligible Securities in accordance with the terms hereof.
I.24. "Sales Blackout Period" is defined in Section 5.3(a)(iii)
hereof.
I.25. "SEC" means the United States Securities and Exchange
Commission.
5
<PAGE>
I.26. "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC thereunder, all as the same shall be
in effect at the relevant time.
I.27. "Selling Investor" means the Requesting Investor and each
Participating Investor or any Investor who has requested registration
pursuant to Section 3.1 or Section 4.1 hereof, as applicable.
I.28. "Shelf Registration Statement" is defined in Section 4.3(a)
hereof.
I.29. "Twelve Month Date" means the date that is twelve months after
the date hereof,, and if such date is not a Business Day, the next succeeding
date that is a Business Day.
I.30. "Underwriter" means Prudential Securities Incorporated.
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
SECTION 2.1 Effectiveness of Registration Rights. This Agreement
shall become effective on the date hereof, provided, however, that the
registration of any Eligible Securities pursuant to Articles III and IV
hereof by the Investors prior to the Twelve Month Date (each such dates being
hereinafter referred to as a "Registration Date"), shall be subject to the
prior receipt of the written consent of the Company and the Underwriter (as
applicable) to the waiver of the restrictions on transfer of the Common
Shares held by the Investors requesting such consent under the terms of the
Partnership Agreement and, as applicable, their respective Lock-Up Agreements.
ARTICLE III
6
<PAGE>
REGISTRATION REQUEST
SECTION 3.1 Request. Upon written request from an Investor
requesting that the Company effect the registration under the Securities Act
of all or part of the Eligible Securities held by such Investor, which notice
may be delivered at any time after 90 days prior to the Registration Date for
the applicable Investor Group and which notice shall specify the intended
method or methods of disposition of such Eligible Securities, the Company
will use all reasonable efforts to effect (at the earliest possible date) the
registration, under the Securities Act, of such Eligible Securities for
disposition in accordance with the intended method or methods of disposition
stated in such request; provided that:
(i) if the Company shall have previously effected a
registration with respect to Eligible Securities pursuant to Article IV
hereof, the Company shall not be required to effect a registration
pursuant to this Article III until a period of one hundred twenty (120)
days shall have elapsed from the effective date of the most recent such
previous registration;
(ii) if, upon receipt of a registration request pursuant to
this Article III, the Company is advised in writing (with a copy to the
Selling Investors) by a nationally recognized independent investment
banking firm selected by the Company to act as lead underwriter in
connection with a public offering of securities by the Company that, in
such firm's opinion, a registration at the time and on the terms
requested would materially adversely affect such public offering of
securities by the Company (other than an offering in connection with
employee benefit and similar plans) (a "Company Offering") that prior
to the receipt of the notice by the Requesting Investor had been
contemplated by the Company's
7
<PAGE>
Board of Trustees to be filed (and which is in fact filed) within sixty
(60) days of receipt of the notice by the Requesting Investors, the
Company shall not be required to effect a registration pursuant to this
Article III until the earliest of (i) three months after the completion
of such Company Offering, (ii) the termination of any blackout period,
if any, required by the underwriters to be applicable to the Selling
Investors in connection with such Company Offering and agreed to in
writing by the Selling Investors, (iii) promptly after abandonment of
such Company Offering or (iv) four months after the date of written
notice requesting registration from the Investor who initially
requested registration;
(iii) if, while a registration request is pending pursuant to
this Article III, the Company determines in the good faith judgment of
the Board of Trustees of the Company, with the advice of counsel, that
the filing of a registration statement would require the disclosure of
non-public material information the disclosure of which would have a
material adverse effect on the Company or would otherwise adversely
affect a material financing, acquisition, disposition, merger or other
comparable transaction, the Company shall deliver a certificate to such
effect signed by its Chief Executive Officer, President, or any
Executive Vice President to the Selling Investors, and the Company
shall not be required to effect a registration pursuant to this Article
III until the earlier of (i) the date upon which such material
information is disclosed to the public or ceases to be material or (ii)
60 days after the Company makes such good faith determination; and
(iv) the Company shall not be required to effect (i) more than
two registrations pursuant to this Article III in any calendar year per
each Investor Group and (ii) a registration
8
<PAGE>
of Eligible Securities, the Fair Market Value of which on the date of
the registration request (determined as set forth in the Partnership
Agreement) is less than $2,500,000. No registration of Eligible
Securities under this Article III shall relieve the Company of its
obligation (if any) to effect registrations of Eligible Securities
pursuant to Article IV hereof.
SECTION 3.2 Registration Expenses. With respect to the registrations
requested pursuant to this Article III and any registration arising from an
exercise of a Blackout Termination Right (as defined below), the Company
shall pay all Registration Expenses.
SECTION 3.3 Other Investor Shares. (a) Upon receipt of the written
notice from a Requesting Investor, the Company shall give written notice to
each other Investor. Subject to Section 3.3(b) hereof, the Company shall be
required to cause the registration of securities for sale for the account of
any Investor (the "Participating Investor") in any registration of Eligible
Securities requested pursuant to this Article III who has delivered written
notice to the Company within fifteen (15) Business Days of the date of
receipt by such Participating Investor of the above-referenced written notice
from the Company (which notice from the Participating Investor to the Company
shall specify the number of shares to be disposed of and the intended method
of disposition); provided, that the Company shall not be required to cause
the registration of all of the securities requested to be registered by
Participating Investors if the Requesting Investor is advised in writing
(with a copy to the Company) by a nationally recognized independent
investment banking firm selected by the Requesting Investor (or as determined
by Section 3.3(c)) that, in such firm's opinion, registration of all of such
securities would materially adversely affect the offering and sale of
Eligible Securities then contemplated by the Requesting Investor.
9
<PAGE>
(b) If the Company cannot, pursuant to the terms of this
Section 3.3, register all of the shares requested to be registered, the
Company shall register the Maximum Amount (as defined below), and such amount
shall be allocated between each applicable Investor Group, pro rata according
to the number of shares for which registration was initially requested by
each Investor Group. The amount allocated to each Investor Group shall be
further allocated to each Selling Investor within such Investor Group pro
rata according to the number of shares for which registration was initially
requested by each Selling Investor within such Investor Group. For purposes
of this Section 3.3, "Maximum Amount" shall mean the largest number of shares
(if any) that, in the opinion of the nationally recognized underwriter
selected by the Requesting Investor (or as determined by Section 3.3(c)
hereof), for purposes of Section 3.3(a) hereof, could be offered to the
public without materially adversely affecting the offering and sale of
Eligible Securities as then contemplated by the Selling Investors.
(c) In the event that more than one Investor exercises
registration rights on the same day, the Investor who requested a
registration of the larger number of shares on such day shall be entitled to
select the lead underwriter for such registered offering (if such offering
will be underwritten). In all other cases, the first Investor to exercise
registration rights with respect to any particular registration demand shall
be entitled to select the lead underwriter for such registered offering (if
such offering will be underwritten).
Notwithstanding this Article III, each Selling
Investor may elect, in writing prior to the effective date of the
registration statement filed in connection with a registration under this
Article III, not to register its Eligible Securities in connection with such
registration; provided,
10
<PAGE>
that if such Selling Investor is one of the Requesting Investors, such
Selling Investor will be deemed to have used one of the two rights each year
to request registration of Eligible Securities under this Article III
allocated to the Investor Group of which it is a member pursuant to Section
3.1(iv) hereof.
ARTICLE IV
INCIDENTAL REGISTRATION
SECTION 4.1 Notice and Registration. If the Company proposes to
register any Common Shares, any equity securities exercisable for,
convertible into or exchangeable for Common Shares, or other securities
issued by it having terms substantially similar to Eligible Securities
("Other Securities") for public sale under the Securities Act (to the extent
to be offered for sale by the Company) on a form and in a manner which would
permit registration of Eligible Securities for sale to the public under the
Securities Act, it will give prompt written notice to the Investors of its
intention to do so, and upon the written request of any Investor delivered to
the Company within fifteen (15) Business Days after the giving of any such
notice (which request shall specify the number of Eligible Securities
intended to be disposed of by such Investor and the intended method of
disposition thereof), the Company will use all reasonable efforts to effect,
in connection with the registration of the Other Securities, the registration
under the Securities Act of all Eligible Securities which the Company has
been so requested to register by the Selling Investor(s), to the extent
required to permit the disposition (in accordance with the intended method or
methods thereof as aforesaid) of Eligible Securities so to be registered (it
being understood by the parties hereto that the Company is also obligated
under the Formation Registration Rights Agreement to similarly notify the
Formation
11
<PAGE>
Investors of the Company's intention to register as such Other Securities,
and to use all reasonable efforts to effect, in connection with the
registration of the Other Securities, the registration under the Securities
Act of all Eligible Formation Securities which the Company is so requested to
register by the Formation Investors before any Eligible Securities are
included in such registration); provided that:
(i) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register the Other Securities, the Company may, at its election, give
written notice of such determination to the Investors and thereupon the
Company shall be relieved of its obligation to register such Eligible
Securities in connection with the registration of such Other Securities
(but not from its obligation to pay Registration Expenses to the extent
incurred in connection therewith as provided in Section 4.2 hereof),
without prejudice, however, to the rights (if any) of the Investors
immediately to request that such registration be effected as a
registration under Article III hereof;
(ii) The Company will not be required to effect any
registration pursuant to this Article IV if the Company shall have been
advised in writing (with a copy to the Selling Investors) by a
nationally recognized independent investment banking firm selected by
the Company to act as lead underwriter in connection with the public
offering of securities by the Company that, in such firm's opinion, a
registration of Eligible Securities requested to be registered at that
time would materially and adversely affect the Company's own scheduled
12
<PAGE>
offering of Other Securities together with any Eligible Formation
Securities included in such registration; provided, however, that if an
offering of some but not all of the Eligible Securities requested to be
registered by the Investor(s) would not materially adversely affect the
Company's offering of Other Securities together with any Eligible
Formation Securities included in such registration, the aggregate
number of Eligible Securities requested to be included in such offering
by the Investors shall be reduced pro rata according to the total
number of Eligible Securities requested to be registered by such
Persons;
(iii) The Company shall not be required to effect any
registration of Eligible Securities under this Article IV incidental to
the registration of any of its securities in connection with mergers,
acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or share options or other employee benefit plans or
in connection with any "demand registration" requested by the Formation
Investors under Article III of the Formation Registration Rights
Agreement (except that in the case of such a demand registration being
made by the Company on behalf of the Formation Investors, the Company
will promptly notify the Investors hereunder and the Investors may
request (within the time period specified by the Company) that Eligible
Securities be included in such registration of Eligible Formation
Securities, and, to the extent the Formation Investors expressly
consent to the inclusion of some or all of the Eligible Securities so
requested to be included in such demand registration of Eligible
Formation Securities, the Company will make all reasonable efforts to
effect the registration of such of the Eligible Securities so requested
to be registered..
13
<PAGE>
(iv) Notwithstanding any request under Section 4.1(a) hereof,
a Selling Investor may elect in writing prior to the effective date of
a registration under this Article IV, not to register its Eligible
Securities in connection with such registration.
(v) No registration of Eligible Securities effected under this
Article IV shall relieve the Company of its obligation (if any) to
effect registrations of Eligible Securities pursuant to Article III
hereof.
SECTION 4.2 Registration Expenses. The Company shall be responsible for
the payment of all Registration Expenses in connection with any registration
pursuant to this Article IV.
SECTION 4.3 Shelf Registration Statement
(a) Shelf Registration Statement. The Company shall as
promptly as reasonably practicable subsequent to the Twelve Month Date file
with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Eligible Securities
(the "Shelf Registration Statement"). To the extent possible, the Shelf
Registration Statement shall be on the appropriate form permitting
registration of such Eligible Securities for resale by Investors in the
manner or manners designated by them (including, without limitation, one or
more underwritten offerings). The Company will notify each Investor when such
Shelf Registration Statement has become effective.
The Company shall use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act as
promptly as practicable after the filing of the Shelf Registration Statement
and (subject to compliance with the restrictions on registrations set forth
in Articles III and IV hereof which shall be applicable with respect to the
Shelf Registration) to keep
14
<PAGE>
the Shelf Registration Statement continuously effective under the Securities Act
until the date which is five (5) years from the date of its initial
effectiveness ("Effectiveness Period"), or such period ending either when all
Eligible Securities covered by the Shelf Registration Statement or the Eligible
Securities covered by the Shelf Registration Statement first have a Fair Market
Value (determined as set forth in the Partnership Agreement) of less than
$1,000,000 have been sold in the manner set forth and as contemplated in the
Shelf Registration Statement.
(b) Withdrawal of Stop Orders. If the Shelf Registration
Statement ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the securities
registered thereunder or because the Company's obligation to maintain the Shelf
Registration Statement ceases in accordance with Section 4.3 (a) because the
Fair Market Value of the Eligible Securities covered by the Registration
Statement is then less than $1,000,000), the Company shall use its best efforts
to obtain the prompt withdrawal of any order suspending the effectiveness
thereof.
(c) Supplement and Amendments. The Company shall promptly
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Act.
ARTICLE V
REGISTRATION PROCEDURES
SECTION 5.1 Registration and Qualification. If and whenever the Company
is required to use all reasonable efforts to effect the registration of any
Eligible Securities under the Securities Act as provided in Articles III or IV
hereof, the Company will, as promptly as is practicable:
15
<PAGE>
(i) prepare, file and use all reasonable efforts to cause to
become effective a registration statement under the Securities Act
regarding the Eligible Securities to be offered;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all Eligible Securities until
the earlier of such time as all of such Eligible Securities have been
disposed of in accordance with the intended methods of disposition by
the Selling Investors set forth in such registration statement or the
expiration of twelve months (or 30 months in the case of the Shelf
Registration Statement) after such Registration Statement becomes
effective;
(iii) furnish to the Selling Investors and to any underwriter
of such Eligible Securities such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act, such documents incorporated by
reference in such registration statement or prospectus, and such other
documents as the Selling Investors or such underwriter may reasonably
request;
(iv) use all reasonable efforts to register or qualify all
Eligible Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as the Selling
Investors or any underwriter of such Eligible Securities shall
16
<PAGE>
reasonably request, and do any and all other acts and things which may
be reasonably requested by the Selling Investors or any underwriter to
consummate the disposition in such jurisdictions of the Eligible
Securities covered by such registration statement, except the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it is not
so qualified, or to subject itself to taxation in any jurisdiction
where it is not then subject to taxation, or to consent to general
service of process in any jurisdiction where it is not then subject to
service of process;
(v) use all reasonable efforts to list the Eligible Securities
on each national securities exchange or quotation system on which the
Common Shares are then listed, if the listing of such securities is
then permitted under the rules of such exchange;
(vi) (x) furnish to the Selling Investors an opinion of
counsel for the Company, addressed to them, dated the date of the
closing under the underwriting agreement, and (y) upon such Selling
Investor's request, use all reasonable efforts to furnish to the
Selling Investors a "comfort letter" signed by the independent public
accountants who have certified the Company's financial statements
included in such registration statement, addressed to them; provided
that with respect to such opinion and "comfort letter," the following
shall apply: (A) the opinion and "comfort letter" shall cover
substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily
covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of
securities and such other matters as the Selling Investors may
17
<PAGE>
reasonably request; and (B) the "comfort letter" also shall cover
events subsequent to the date of such financial statements; and
(vii) notify the Selling Investors immediately upon the
happening of any event as a result of which a prospectus included in a
registration statement, relating to a registration pursuant to Article
III or IV hereof, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and at
the request of the Selling Investors prepare and furnish to the Selling
Investors as many copies of a supplement to or an amendment of such
prospectus as the Selling Investors reasonably request so that, as
thereafter delivered to the purchasers of such Eligible Securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
The Company may require the Selling Investors to furnish the Company such
information regarding the Selling Investors and the distribution of such
securities as the Company may from time to time reasonably request in writing
and as shall be required by law or by the SEC in connection with any
registration. Failure of the Selling Investors to provide such information will
relieve the Company of its obligation to register such Selling Investor's
Eligible Securities.
SECTION 5.2 Underwriting. (a) If requested by the underwriters for any
underwritten offering of Eligible Securities pursuant to a registration
described in this Agreement, the Company will enter into and perform its
obligations under an underwriting agreement with such underwriters
18
<PAGE>
for such offering, such agreement to contain such representations and warranties
by the Company and such other terms and provisions as are customarily contained
in underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Article VII hereof and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section 5.1(i)
hereof. The holders of Eligible Securities on whose behalf Eligible Securities
are to be distributed by such underwriters shall be parties to any such
underwriting agreement and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Eligible Securities.
(b) In the event that any registration pursuant to Article IV
hereof shall involve, in whole or in part, an underwritten offering, the Company
may require Eligible Securities requested to be registered pursuant to Article
IV hereof to be included in such underwriting on the same terms and conditions
as shall be applicable to the Other Securities being sold through underwriters
under such registration. In such case, the holders of Eligible Securities on
whose behalf Eligible Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement. Such agreement shall
contain such representations and warranties by the Company and the Selling
Investors and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Article VII hereof. The representations and warranties in such
underwriting agreement by, and the other agreements on the part of, the Company
to and for the
19
<PAGE>
benefit of such underwriters shall also be made to and for the benefit of such
holders of Eligible Securities.
SECTION 5.3 Blackout Periods. (a) At any time when a registration
statement effected pursuant to Article III hereof relating to Eligible
Securities is effective, upon written notice from the Company to the Selling
Investors that the Company determines in the good faith judgment of the Board of
Trustees of the Company, with the advice of counsel, that the Selling Investors'
sale of Eligible Securities pursuant to the registration statement would require
disclosure of non-public material information the disclosure of which would have
a material adverse effect on the Company (an "Information Blackout"), the
Selling Investors shall suspend sales of Eligible Securities pursuant to such
registration statement until the earliest of:
(i) the date upon which such material information is disclosed
to the public or ceases to be material;
(ii) 60 days after the Company makes a good faith
determination that such material information ceases to be material; and
(iii) such time as the Company notifies the Selling Investors
that sales pursuant to such registration statement may be resumed.
(The number of days from such suspension of sales by the Selling Investors until
the day when such sales may be resumed under clause (i), (ii) or (iii) of this
Section 5.3(a) is hereinafter called a "Sales Blackout Period".)
(b) Any delivery by the Company of notice of an Information
Blackout during the 90 days immediately following effectiveness of any
registration statement effected pursuant to Article
20
<PAGE>
III hereof shall give the Investors the right, by written notice to the Company
within 20 Business Days after the end of such Sales Blackout Period, to cancel
such registration and obtain one additional registration right during such
calendar year (a "Blackout Termination Right") under Article III hereof.
(c) If there is an Information Blackout and if the Investors
do not exercise their cancellation right, if any, pursuant to Section 5.3(b)
hereof, or, if such cancellation right is not available, the time period set
forth in Section 5.1(ii) hereof shall be extended for a number of days equal to
the number of days in the Sales Blackout Period.
SECTION 5.4 Qualification for Rule 144 Sales. The Company will take all
actions reasonably necessary to comply with the filing requirements described in
Rule 144(c)(1) so as to enable the Investors to sell Eligible Securities without
registration under the Securities Act and, upon the written request of any
Investor, the Company will deliver to such Investor a written statement as to
whether it has complied with such filing requirements.
ARTICLE VI
PREPARATION; REASONABLE INVESTIGATION
SECTION 6.1 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement registering Eligible
Securities under the Securities Act, the Company will give the Selling Investors
and the underwriters, if any, and their respective counsel and accountants,
drafts of such registration statement for their review and comment prior to
filing and such reasonable and customary access to its books and records and
such opportunities to discuss the
21
<PAGE>
business of the Company with its officers, counsel and the independent public
accountants who have certified its financial statements as shall be
necessary, in the opinion of the Selling Investors and such underwriters or
their respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION
22
<PAGE>
SECTION 7.1 Indemnification. (a) In the event of any registration of
Eligible Securities hereunder, the Company and the Partnership jointly and
severally will, and hereby do, indemnify and hold harmless, each Selling
Investor, its respective directors, trustees, officers, partners, agents,
employees and affiliates and each other person who participates as an
underwriter in the offering or sale of such securities and each other Person,
if any, who controls each such Selling Investor or any such underwriter
within the meaning of the Securities Act, against any and all losses, claims,
damages, expenses or liabilities, joint or several, actions or proceedings
(whether commenced or threatened) in respect thereof, to which each such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances in which they were made
not misleading, and the Company and the Partnership will reimburse each such
Selling Investor and each such director, trustee, officer, partner, agent,
employee or affiliate, underwriter and controlling person for any legal or
any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, expense, liability,
action, or proceeding; provided, however, that (i) the Company and the
Partnership shall not be liable in any such case to the extent that any such
loss, claim, damage, expense or liability (or action or proceeding
23
<PAGE>
in respect thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of such Selling Investor or
underwriter specifically stating that it is for use in the preparation
thereof and (ii) the Company and the Partnership shall not be liable to any
person who participates as an underwriter in the offering or sale of Eligible
Securities or any other person, if any, who controls or is controlled by such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, expense or liability (or action or
proceeding in respect thereof) arises out of such underwriter's failure to
send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Eligible Securities to such person if
such statement or omission was corrected in such final prospectus.
(b) Each Selling Investor severally will, and hereby does,
indemnify and hold harmless the Company, its trustees, its officers who sign
the registration statement, each Person who participates as an underwriter in
the offering or sale of such securities, and each Person, if any, who
controls the Company or any such underwriter within the meaning of the
Securities Act against any and all losses, claims, damages, expenses or
liabilities, joint or several, actions or proceedings (whether commenced or
threatened) in respect thereof, to which each such indemnified party may
become subject under the Securities Act or otherwise insofar as such losses,
claims, damages,
24
<PAGE>
expenses or liabilities (or actions or proceedings, whether commenced or
threatened in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact in or omission or
alleged omission to state a material fact in such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, but only to the extent that
such statement or omission was made in reliance upon and in conformity with
written information furnished by such Selling Investor to the Company through
an instrument duly executed by or on behalf of such Selling Investor
specifically stating that it is for use in preparation thereof.
(c) Promptly after receipt by any indemnified party
hereunder of notice of the commencement of any action or proceeding involving
a claim referred to in paragraphs (a) or (b) of this Section 7.1, the
indemnified party will notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability which it may have
to any indemnified party under paragraphs (a) or (b) of this Section 7.1.
(d) If for any reason the indemnity under this Section 7.1
is unavailable or is insufficient to hold harmless any indemnified party
under paragraphs (a) or (b) of this Section 7.1, then the indemnifying
parties shall contribute to the amount paid or payable to the indemnified
party as a result of any loss, claim, expense, damage or liability (or
actions or proceedings, whether commenced or threatened, in respect thereof),
and legal or other expenses reasonably incurred by the indemnified party in
connection with investigating or defending any such loss, claim, expense,
damage, liability, action or proceeding, in such proportion as is appropriate
to reflect the relative fault
25
<PAGE>
of the indemnifying party on the one hand and the indemnified party on the
other. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Investor and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. If, however, the allocation
provided in the second preceding sentence is not permitted by applicable law,
or if the allocation provided in the second preceding sentence provides a
lesser sum to the indemnified party than the amount hereinbefore calculated,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party in such proportion as is appropriate to reflect not
only such relative fault but also the relative benefits of the indemnifying
party and the indemnified party as well as any other relevant equitable
considerations. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this paragraph (d) of Section 7.1 were
to be determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in
the preceding sentences of this paragraph (d) of Section 7.1.
(e) Indemnification and contribution similar to that
specified in this Section 7.1 (with appropriate modifications) shall be given
by the Company and the Partnership and the Selling Investors with respect to
any required registration or other qualification of securities under any
federal, state or blue sky law or regulation of any governmental authority
other than the Securities Act.
26
<PAGE>
(f) Notwithstanding any other provision of this Section
7.1, to the extent that any director, trustee, officer, partner, agent,
employee, affiliate, or other representative (current or former) of any
indemnified party is a witness in any action or proceeding, the indemnifying
party agrees to pay to the indemnified party all expenses reasonably incurred
by, or on the behalf of, the indemnified party and such witness in connection
therewith.
(g) All legal and other expenses incurred by or on behalf
of any Selling Investor in connection with investigating or defending any
loss, claim, expense, damage, liability, action or proceeding shall be paid
by the Company or the Partnership in advance of the final disposition of such
investigation, defense, action or proceeding within twenty days after the
receipt by the Company or the Partnership of a statement or statements from
the Selling Investor requesting from time to time such payment, advance or
advances. The entitlement of each Selling Investor to such payment or
advancement of expenses shall include those incurred in connection with any
action or proceeding by the Selling Investor seeking an adjudication or award
in arbitration pursuant to this Section 7.1. Such statement or statements
shall reasonably evidence such expenses incurred by the Selling Investor in
connection therewith.
(h) The termination of any proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, adversely affect the rights of any
indemnified party to indemnification hereunder or create a presumption that
any indemnified party violated any federal or state securities laws.
(i) (i) In the event that advances are not made
pursuant to this Section 7.1 or payment has not otherwise been timely made,
each indemnified party shall be entitled to seek a final
27
<PAGE>
adjudication in an appropriate court of competent jurisdiction of the
entitlement of the indemnified party to indemnification or advances hereunder.
(ii) The Company, the Partnership and the Selling
Investors agree that they shall be precluded from asserting that the
procedures and presumptions of this Section 7.1 are not valid, binding and
enforceable. The Company, the Partnership and the Selling Investors further
agree to stipulate in any such court that the Company, the Partnership, and
the Selling Investors are bound by all the provisions of this Section 7.1 and
are precluded from making any assertion to the contrary.
(iii) To the extent deemed appropriate by the court,
interest shall be paid by the indemnifying party to the indemnified party at
a reasonable interest rate for amounts which the indemnifying party has not
timely paid as the result of its indemnification and contribution obligations
hereunder.
(j) In the event that any indemnified party is a party to
or intervenes in any proceeding in which the validity or enforceability of
this Section 7.1 is at issue or seeks an adjudication to enforce the rights
of any indemnified party under, or to recover damages for breach of, this
Section 7.1, the indemnified party, if the indemnified party prevails in
whole in such action, shall be entitled to recover from the indemnifying
party and shall be indemnified by the indemnifying party against, any
expenses incurred by the indemnified party. If it is determined that the
indemnified party is entitled to indemnification for part (but not all) of
the indemnification so requested, expenses incurred in seeking enforcement of
such partial indemnification shall be reasonably prorated among
28
<PAGE>
the claims, issues or matters for which the indemnified party is entitled to
indemnification and for such claims, issues or matters for which the
indemnified party is not so entitled.
(k) The indemnity agreements contained in this Section 7.1
shall be in addition to any other rights (to indemnification, contribution or
otherwise) which any indemnified party may have pursuant to law or contract
and shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party and
shall survive the transfer of any Eligible Securities by any Investor.
ARTICLE VIII
BENEFITS OF REGISTRATION RIGHTS
SECTION 8.1 Benefits of Registration Rights. Subject to the
limitations of Sections 3.1 and 4.1 hereof, each member of any Investor Group
and the Permitted Transferees of Eligible Securities of such Investor Group
may severally or jointly exercise the registration rights hereunder in such
proportion as they shall agree among themselves. No consent of any Investor
shall be required for Permitted Transferees to exercise registration rights
under this Agreement or otherwise to be entitled to the benefits of this
Agreement as applicable to all Investors. The Company agrees that monetary
damages would not compensate the Investors for a breach by the Company hereof
and the Investors shall be entitled to specific performance of this Agreement.
ARTICLE IX
MISCELLANEOUS
29
<PAGE>
SECTION 9.1 Captions. The captions or headings in this Agreement are
for convenience and reference only, and in no way define, describe, extend or
limit the scope or intent of this Agreement.
SECTION 9.2 Severability. If any clause, provision or section of
this Agreement shall be invalid or unenforceable, the invalidity or
unenforceability of such clause, provision or section shall not affect the
enforceability or validity of any of the remaining clauses, provisions or
sections hereof to the extent permitted by applicable law.
SECTION 9.3 Governing Law. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of Maryland,
without reference to its rules as to conflicts or choice of laws.
SECTION 9.4 Modification and Amendment. This Agreement may not be
changed, modified, discharged or amended, except by an instrument signed by
the Company and the holder of a majority in amount of Eligible Securities;
provided, that the Company may from time to time and without the consent of
any Investor amend Exhibit A hereto to reflect the Common Units of Persons
that become Investors subject to this Agreement after the date hereof, and
may from time to time and without the consent of any Investor provide written
acknowledgments to such other Persons that such Persons are "Investors"
hereunder.
SECTION 9.5 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
30
<PAGE>
SECTION 9.6 Entire Agreement. This Agreement constitutes the entire
agreement and understanding among the parties and supersedes any prior
understandings and/or written or oral agreements among them respecting the
subject matter herein.
SECTION 9.7 Notices. All notices, requests, demands, consents and
other communications required or permitted to be given pursuant to this
Agreement shall be in writing and delivered by hand, by overnight courier
delivery service or by certified mail, return receipt requested, postage
prepaid. Notices shall be deemed given when actually received, which shall be
deemed to be not later than the next Business Day if sent by overnight
courier or after five (5) Business Days if sent by mail. Notice to Investors
shall be made to the address listed on the share transfer records of the
Company.
[signature page follows]
31
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
PRIME GROUP REALTY TRUST
By:/s/ Jeffrey A. Patterson
-------------------------------
Name:Jeffrey A. Patterson
Title:Executive VP
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust
its general partner
By:/s/ Jeffrey A. Patterson
-------------------------------
Name:Jeffrey A. Patterson
Title:Executive VP
H GROUP LLC
By:/s/ Eric D. Mayer
-------------------------------
Name: Eric D. Mayer
Title:President
32
<PAGE>
EXHIBIT A
H Group LLC Certf. No. 20 251,752Common Units
Certif. No. 21 5,000 Common Units
<PAGE>
Exhibit 10.29
EXECUTION COPY
ENVIRONMENTAL REMEDIATION AND INDEMNIFICATION AGREEMENT
by and between
PRIME GROUP REALTY, L.P.,
a Delaware limited partnership
and
THE PRIME GROUP, INC.,
an Illinois corporation
Dated as of: November 17, 1997
<PAGE>
ENVIRONMENTAL REMEDIATION AND INDEMNIFICATION AGREEMENT
THIS ENVIRONMENTAL REMEDIATION AND INDEMNIFICATION AGREEMENT (this
"Agreement") made and entered into as of the 17th day of November, 1997, by and
between The Prime Group, Inc., an Illinois corporation ("Indemnitor"), and Prime
Group Realty, L.P., a Delaware limited partnership, in its individual capacity
and as general partner of the limited partnerships which own the Properties (as
hereinafter defined) (Prime Group Realty, L.P. and each such partnership,
collectively, "Indemnitee");
WITNESSETH:
WHEREAS, Indemnitor and Indemnitee, together with certain
other parties, have heretofore entered into an agreement (the "Formation
Agreement") which provides, in part, for the contribution of interests in
partnerships which own certain properties, commonly known as (i) the Chicago
Enterprise Center, located in Chicago, Illinois ("CEC"), (ii) the East Chicago
Enterprise Center, located in East Chicago, Indiana ("ECEC") and (iii) the
Hammond Enterprise Center, located in Hammond, Indiana ("HEC," and together with
the CEC and the ECEC, collectively known as the "Properties");
WHEREAS, as a condition to its entering into the Formation
Agreement, Indemnitee has required that Indemnitor remediate, or cause the
remediation of, certain Known Contamination (as defined below) which has been
discovered on the Properties, and to indemnify, save, and hold Indemnitee
harmless from and against certain obligations and liabilities which may be
incurred by Indemnitee (whether as owner, occupier, or operator of the
Properties) by reason of such Known Contamination.
WHEREAS, this Agreement is entered into to provide the
Indemnitee with the indemnity, protections, and assurances it requires and as an
inducement to Indemnitee to enter into the Formation Agreement;
NOW, THEREFORE, in consideration of the Properties and of the
mutual promises and agreements herein contained, the agreements and covenants
contained in the Formation Agreement, TEN DOLLARS ($10.00), and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
1. Recitals. The recitals set forth above are true and correct and are
by this reference incorporated herein.
2. Definitions. As used in this Agreement, the terms "Covenant Not to
Sue," "Known Contamination," "Hazardous Materials," "IEPA," "IDEM," "NFR
Letter," "Known Contamination," "NFR Letter," "Release," "Environmental Laws"
and "Environmental Reports" are defined as follows:
<PAGE>
(a) "Covenant Not to Sue" means both a Certificate of
Completion from the IDEM pursuant to Indiana Code 13-25-5-20(b) and a Covenant
Not to Sue from the Governor of the State of Indiana pursuant to Indiana Code
13-25-5-18.
(b) "Known Contamination" means the environmental conditions
existing on the Properties, as specifically identified in the Environmental
Reports and with respect to which Indemnitor is required to remediate (i) at CEC
in order to receive a NFR Letter for the environmental contamination listed in
the Environmental Reports as being present at CEC, and (ii) at ECEC and HEC in
order to receive a Covenant Not to Sue for each of ECEC and HEC for the
environmental contamination listed in the Environmental Reports as being present
at HEC and ECEC.
(c) "Hazardous Materials" means any hazardous or toxic
substances, materials or wastes, including, but not limited to, those
substances, materials and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 C.F.R. Section 172.101) and
amendments thereto or designated by the United States Environmental Protection
Agency as hazardous substances (40 C.F.R. Part 302) and such substances,
materials and wastes which are or become regulated under Environmental Law
including, without limitation, any material, waste or substance which is: (i)
petroleum; (ii) asbestos; (iii) polychlorinated biphenyls; (iv) defined or
regulated as a "hazardous waste" under Environmental Law; (v) designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C.
Section 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to section 307
of the Clean Water Act (33 U.S.C. Section 1317); or (vi) defined as a "hazardous
substance" pursuant to section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C.
Section 9601).
(d) "IEPA" means the Illinois Environmental Protection Agency.
(e) "IDEM" means the Indiana Department of Environmental
Management.
(f) "NFR Letter" means a No Further Remediation Letter from
the IEPA pursuant to the Illinois Environmental Protection Act (415 ILCS 5/58).
(g) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the environment, including, without limitation, the abandonment
or discarding of barrels, containers, and other closed receptacles containing
any Hazardous Materials.
(h) "Environmental Laws" means all federal, state, local and
foreign laws, statutes, ordinances, codes, rules, standards, and regulations, in
effect as of the date hereof, and any applicable judicial or administrative
interpretation thereof, including any applicable judicial or administrative
order, consent decree or judgment, imposing liability or standards of conduct
for or relating to the regulation and protection of human health, safety, the
environment and natural resources (including ambient air, surface water,
groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic
species and vegetation).
-2-
<PAGE>
(i) "Environmental Reports" means the environmental reports
listed on Exhibit A attached hereto.
3. Remediation and Indemnification. Indemnitor agrees to remediate the
Known Contamination and agrees to exonerate, indemnify, pay and protect, defend
(with counsel reasonably approved by Indemnitee), and save and hold Indemnitee
and the directors, officers, shareholders, employees, and agents of Indemnitee
harmless from and against any claims (including, without limitation, third party
claims for personal injury or real or personal property damage), actions,
administrative proceedings (including informal proceedings), judgments, damages,
punitive damages, penalties, fines, costs, liabilities (including sums paid in
settlement of claims), interest, or losses, including reasonable attorneys' and
paralegals' fees and expenses (including, without limitation, any such fees and
expenses incurred in enforcing this Indemnification Agreement or collecting any
sums due hereunder), investigation and remediation costs, consultants' fees and
experts' fees, together with all other costs and expenses of any kind or nature
(collectively, the "Costs") that arise directly or indirectly from or in
connection with the Known Contamination. The indemnification provided in this
Paragraph 3 shall specifically apply to and include claims or actions brought by
or on behalf of employees of Indemnitor. In the event Indemnitee shall suffer or
incur any such Costs, Indemnitor shall immediately pay to Indemnitee the total
of all such Costs suffered or incurred by Indemnitee upon demand by Indemnitee.
Without limiting the generality of the foregoing, the indemnification provided
in this Paragraph 3 shall specifically cover Costs, including capital,
operating, supervision and maintenance costs, incurred in connection with any
investigation or monitoring of site conditions, any clean-up, containment,
remediation, removal, or restoration work required or performed by any federal,
state or local governmental agency or political subdivision or performed by any
nongovernmental entity or person because of Known Contamination.
4. Remedial Work. Indemnitor shall perform any investigation or
monitoring of site conditions and any clean-up, containment, restoration,
removal, treatment, stabilization, or other remedial work relating to the Known
Contamination (collectively, the "Remedial Work") required at CEC to obtain the
NFR Letter and at the HEC and ECEC to obtain a Covenant Not to Sue. Indemnitor
shall perform or cause to be performed the required Remedial Work in compliance
with all Environmental Laws. All required Remedial Work shall be performed by
one or more contractors, selected by Indemnitor and approved (such approval not
to be unreasonably withheld or delayed) in advance in writing by Indemnitee, and
under the supervision of a consulting engineer, selected by Indemnitee and
approved (such approval not to be unreasonably withheld or delayed) in advance
in writing by Indemnitor. All costs and expenses of such required Remedial Work
shall be paid by Indemnitor including, without limitation, the charges of such
contractor(s) and/or the consulting engineer, and Indemnitee's reasonable
consultant, attorney and paralegal fees and costs incurred in connection with
monitoring or review of such Remedial Work. In the event Indemnitor shall fail
to timely commence, or cause to be commenced, or fail to diligently prosecute to
completion, such Remedial Work, Indemnitee may, but shall not be required to,
cause such Remedial Work to be performed, and all costs and expenses thereof, or
incurred in connection therewith shall be Costs within the meaning of Paragraph
3 above. All such Costs shall be immediately due and payable upon demand by
Indemnitee.
-3-
<PAGE>
5. Limitations of Remedial Work. Notwithstanding anything in this
Agreement to the contrary, Indemnitor and Indemnitee agree that Indemnitor shall
not be required to remediate Known Contamination under buildings or paved
parking areas on the Properties except to the extent required by IEPA or IDEM,
as applicable to obtain the NFR Letter or the Covenant Not to Sue, respectively.
In addition, Indemnitor and Indemnitee agree that certain of the Known
Contamination may, with the approval of IEPA or IDEM, as applicable, be
remediated by utilizing appropriate engineered barriers over or around such
Known Contamination instead of actually removing it. Indemnitee agrees that the
NFR Letter for CEC and the Covenant Not to Sue for ECEC and HEC may contain
certain limitations and requirements relating to Known Contamination underneath,
or contained by, such buildings, parking areas and engineered barriers
(collectively, "Caps") including, but not necessarily limited to, a requirement
that restrictions on removing such Caps be recorded against the relevant
portions of the applicable Property. The NFR Letter and Covenant Not to Sue may
also include a requirement that a restrictive covenant be recorded against the
applicable Property limiting the use of such Property to industrial and other
approved uses. Indemnitee agrees that in the event that IEPA or IDEM requires
that any such restrictive covenants or other limitations (the "Restrictive
Covenants") be recorded against any or all of the Properties, Indemnitee shall
cause the fee simple title holders of the relevant portions of the applicable
Property or Properties to record such Restrictive Covenants against all or any
such portions of the applicable Property or Properties as required by IEPA or
IDEM. Indemnitor agrees to provide Indemnitee in advance with the form of each
NFR Letter, Covenant Not to Sue and Restrictive Covenant requested by IEPA or
IDEM (the "EPA Documents") for Indemnitee's approval, and Indemnitee shall have
the right to negotiate the form and substance of such EPA Documents with
Indemnitor and IEPA or IDEM, as applicable; provided, however, that Indemnitee's
approval of such EPA Documents shall not be unreasonably withheld or delayed.
6 Notice of Claims. All notices, approvals, consents, requests, and
demands upon the respective parties hereto shall be in writing; sent by personal
delivery (including, without limitation, nationally recognized courier services
such as Federal Express), or by certified or registered mail, postage prepaid
and return receipt requested; and addressed as follows:
To Indemnitor: The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: President
With a copy to: The Prime Group, Inc.
77 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: General Counsel
To Indemnitee: Prime Group Realty Trust
-4-
<PAGE>
77 West Wacker Drive
Suite 3900
Chicago, Illinois 60601
Attn: President
With a copy to: Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attn: Wayne D. Boberg, Esq.
or to such other address as may be furnished in writing for such purpose with a
copy to one additional person each as Indemnitor or Indemnitee shall specify in
writing.
7. Participation in Defense of Claims/Duty to Cooperate Notice of
Indemnitor. In the event that any claim, action, administrative proceeding
(including informal proceedings), or other demand is made by any governmental
agency or other third party against Indemnitee involving Costs, Indemnitor shall
cooperate with Indemnitee in any defense or other response to any such claim or
other demand. Indemnitor shall have the right to participate in the defense or
other response to any such claim or demand provided that Indemnitee shall have
the right, but not the obligation, to direct and control the defense or response
to any such claim or demand. Indemnitor's right to participate in the defense or
response to any such claim or demand shall not be deemed to limit or otherwise
modify Indemnitor's obligations under this Agreement. Indemnitee shall give
notice to Indemnitor of any claim or demand governed by this Paragraph 6 within
a reasonable period after such claim or other demand first becomes known to
Indemnitee.
8. Subrogation of Indemnity Rights. If Indemnitor fails to perform its
obligations under Paragraph 4 above and Indemnitee performs in its stead,
Indemnitee shall be subrogated to any rights Indemnitor may have under any
indemnifications from any present, future or former owners, tenants, or other
occupants or users of the Properties (or any portion thereof) relating to the
matters covered by this Indemnification Agreement.
9. Assignment by Indemnitee. No consent by Indemnitor shall be required
for any assignment or reassignment of the rights of Indemnitee hereunder to one
or more parties.
10. Litigation Matters. Indemnitee acknowledges that Indemnitor and
certain affiliates of Indemnitor are currently engaged in litigation against
certain past or present tenants of the Properties, as specified on Exhibit B
attached hereto. Indemnitee acknowledges and agrees that any cash or other
property received by Indemnitor or such affiliates pursuant to such litigation,
for remediation costs previously incurred and for future remediation costs to
the extent that the Indemnitor is responsible for such future remediation
pursuant to the terms of this Agreement, shall be retained by Indemnitor or such
affiliates, even if the value of such cash or property exceeds the amounts due
to Indemnitee under this Agreement. Indemnitee also agrees that Indemnitor has
the right to receive all cash or securities held in escrow pursuant to any
agreement between Indemnitor
-5-
<PAGE>
or Indemnitee or any affiliate of Indemnitor or Indemnitee, on the one hand, and
IEPA, IDEM or any other governmental authority, on the other hand, or between
Indemnitor or Indemnitee or any affiliate of Indemnitor or Indemnitee, on the
one hand, and any lender or provider of credit support, on the other hand,
regarding environmental matters relating to the Properties. Indemnitee also
agrees to cooperate fully with Indemnitor or any affiliate of Indemnitor, at
Indemnitor's expense, in any litigation or other proceedings or actions
regarding environmental matters related to the Properties.
11. Merger, Consolidation, or Sale of Assets. In the event of a
dissolution of Indemnitor or other disposition involving Indemnitor or all or
substantially all of the assets of Indemnitor to one or more persons or other
entities, the surviving entity or transferee of such assets, as the case may be,
shall deliver to Indemnitee an acknowledged instrument in recordable form
assuming all covenants, agreements, responsibilities, liabilities and
obligations of Indemnitor under this Agreement.
12. Independent Obligations: Survival. The obligations of Indemnitor
under this Agreement shall survive the consummation of the Formation Agreement,
and the obligations of Indemnitor under this Agreement are separate and distinct
from the obligations of Indemnitor under the Formation Agreement. This Agreement
may be enforced by Indemnitee without regard to any other rights and remedies
Indemnitee may have against Indemnitor under the Formation Agreement and without
regard to any limitations on Indemnitee's recourse as may be provided in the
Formation Agreement.
13. Miscellaneous. If any term of this Agreement or any application
thereof shall be invalid, illegal, or unenforceable, the remainder of this
Agreement and any other application of such term shall not be affected thereby.
No delay or omission in exercising any right hereunder shall operate as a waiver
of such right or any other right. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by Indemnitor and Indemnitee, and their
respective mortgagees, successors and assigns, including, without limitation,
any assignee of Indemnitee who acquires all or any portion of the Indemnitee's
interest in the Properties, any mortgagee of any portion of the Properties and
any person who acquires any portion of the Properties through foreclosure or
deed in lieu of the foreclosure. This Agreement shall be governed and construed
in accordance with the laws of the State of Illinois.
-6-
<PAGE>
IN WITNESS WHEREOF, Indemnitor and Indemnitee have caused this
Agreement to be executed as of the day and year first above written.
INDEMNITOR:
The Prime Group, Inc.,
an Illinois corporation
By: /s/ Robert J. Rudnik
------------------------------
Its: Executive Vice President
------------------------------
INDEMNITEE:
Prime Group Realty, L.P.,
a Delaware limited partnership
By: Prime Group Realty Trust,
a Maryland real estate investment trust,
its Managing General Partner
By: /s/ W. Michael Karnes
------------------------------
Its: Executive Vice President
------------------------------
-7-
<PAGE>
EXHIBIT A
Environmental Reports
1. Removal Site Evaluation and Preliminary Assessment -- Event Two Report,
April 1997, by Carlson Environmental, regarding the Chicago Enterprise
Center
2. Remediation Work Plan, February 1997, by Heritage Environmental
Services, regarding the East Chicago Enterprise Center
3. Remediation Work Plan, February 1997, by Heritage Environmental
Services, regarding the Hammond Enterprise Center
-8-
<PAGE>
EXHIBIT B
Litigation
1. Enterprise Center VII, L.P., Enterprise Center VIII, L.P., Enterprise
Center IX, L.P., Enterprise Center X, L.P. and Kemper/Prime Industrial
Partners vs. USX Corporation and Illinois Tool Works, Inc. and Signode
Corporation, Case Number 96C 5283, filed on August 22, 1996 in the
United States District Court for the Northern District of Illinois,
Eastern Division.
2. Kemper/Prime Industrial Partners vs. Montgomery Watson Americas, Inc.
(as successor by merger to Warzyn Inc. f/k/a Warzyn Engineering, Inc.),
Case Number 97C 4278, filed on June 13, 1997 in the United States
District Court for the Northern District of Illinois, Eastern Division.
-9-
<PAGE>
Document Number: 251361.8
3-28-98/10:54AM
-10-
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 12.1
PRIME GROUP REALTY TRUST
STATEMENT REGARDING COMPUTATION OF RATIOS
(IN $000'S)
PERIOD FROM PERIOD FROM YEAR ENDED DECEMBER 31,
--------------------------------------------
11/17/97 TO 1/1/97 TO
12/31/97 11/16/97 1996 1995 1994 1993
-------------------------------- --------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Income (loss) before preferred share
dividend and minority interest
per the combined financial statements $ 1,427 $ (29,050) $(31,417) $ (29,576) $ (22,062) $ (20,829)
Interest expense 1,680 34,417 37,217 36,234 33,387 29,162
Amortization of debt issuance costs 121 630 594 1,148 714 859
Preferred share dividend 345 - - - - -
------------------------------- ------------------------------------------------
Earnings $ 3,573 $ 5,997 $ 6,394 $ 7,806 $ 12,039 $ 9,192
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
FIXED CHARGES
Interest expense 1,680 34,417 37,217 36,234 33,387 29,162
Capital Interest expense - - - - - -
Amortization of debt issuance costs 121 630 594 1,148 714 859
Preferred share dividend 345 - - - - -
------------------------------- ------------------------------------------------
Total fixed charges $ 2,146 $ 35,047 $ 37,811 $ 37,382 $ 34,101 $ 30,021
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
RATIO OF EARNINGS TO COMBINED FIXED
CHARGES (1) 1.66 - - - - -
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
EXCESS(DEFICIT) OF EARNINGS TO COMBINED
FIXED CHARGES $ - $ (29,050) $(31,417) $ (29,576) $(22,062) $(20,829)
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED SHARE DIVIDEND (2) 1.66 - - - - -
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
EXCESS(DEFICIT) OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED SHARE DIVIDEND $ - $ (29,050) $(31,417) $ (29,576) $(22,062) $(20,829)
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
Funds From Operations $ 3,964 $ (14,461) $(17,367) $ (12,733) $(12,930) $ (9,345)
Interest expense 1,680 34,417 37,217 36,234 33,387 29,162
Amortization of debt issuance costs 121 630 594 1,148 714 859
Preferred share dividend 345 - - - - -
------------------------------- ------------------------------------------------
Adjusted Funds From Operations $ 6,110 $ 20,586 $ 20,444 $ 24,649 $ 21,171 $ 20,676
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
FIXED CHARGES
Interest expense 1,680 34,417 37,217 36,234 33,387 29,162
Capital Interest expense - - - - - -
Amortization of debt issuance costs 121 630 594 1,148 714 859
Preferred share dividend 345 - - - - -
------------------------------- ------------------------------------------------
Total fixed charges $ 2,146 $ 35,047 $ 37,811 $ 37,382 $ 34,101 $ 30,021
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
RATIO OF FUNDS FROM OPERATIONS TO COMBINED
FIXED CHARGES (3) 2.85 - - - - -
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
EXCESS(DEFICIT) OF FUNDS FROM OPERATIONS TO
COMBINED FIXED CHARGES $ - $ (14,461) $(17,367) $ (12,733) $(12,930) $ (9,345)
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
RATIO OF FUNDS FROM OPERATIONS TO COMBINED
FIXED CHARGES AND PREFERRED SHARE DIVIDEND (4) 2.85 - - - - -
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
EXCESS(DEFICIT) OF FUNDS FROM OPERATIONS TO
COMBINED FIXED CHARGES AND
PREFERRED SHARE DIVIDENDS $ - $ (14,461) $(17,367) $ (12,733) $(12,930) $ (9,345)
------------------------------- ------------------------------------------------
------------------------------- ------------------------------------------------
</TABLE>
(1) The Company's earnings were insufficient to cover fixed charges for the
period from January 1, 1997 through November 16, 1997 and for the years
ended December 31, 1996, 1995, 1994 and 1993 by the amounts indicated.
(2) The Company's earnings were insufficient to cover fixed charges including
preferred stock dividend requirements for the period from January 1, 1997
through November 16, 1997 and for the years ended December 31, 1996, 1995,
1994 and 1993 by the amounts indicated.
(3) The Company's adjusted funds from operations were insufficient to cover
fixed charges for the period from January 1, 1997 through November 16, 1997
and for the years ended December 31, 1996, 1995, 1994 and 1993 by the
amounts indicated.
(4) The Company's adjusted funds from operations were insufficient to cover
fixed charges including preferred stock dividend requirements for the period
from January 1, 1997 through November 16, 1997 and for the years ended
December 31, 1996, 1995, 1994 and 1993 by the amounts indicated.
<PAGE>
EXHIBIT 19.1
Temporary Certificate -- Exchangeable for Definitive Engraved Certificate
When Ready for Delivery
Number Shares
PG
See Restrictive Legend On
Reverse of Certificate See Reverse for Certain Definitions
Ths Certificate is Transferable
In New York, New York and CUSIP 74158J 10 3
Chicago, Illinois
Prime Group
Realty Trust
Organized Under The Laws Of The State of Maryland
Common Shares
This Certifies That
is the owner of
Fully Paid and Non-Assessable Common Shares of Beneficial Interest,
$0.01 Par Value Per Share, of
Prime Group Realty Trust
transferable only on the books of the Trust by the holder hereof in person or by
duly authorized attorney upon the surrender of this Certificate properly
endorsed. This Certificate and the shares represented hereby are issued and
shall be held subject to all of the provisions of the Declaration of Trust of
the Trust and any amendments thereto. This Certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness this facsimile seal of the Trust and facsimile signature of its
duly authorized officers.
Dated:
Certificate of Stock
/s/ Michael W. Reschke /s/ Robert J. Rudnik
CHAIRMAN OF THE BOARD EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
/s/ Richard S. Curto
PRESIDENT AND CHIEF COUNTERSIGNED AND REGISTERED
LASALLE NATIONAL BANK
TRANSFER AGENT
AND REGISTRAR
BY
[SEAL OF PRIME GROUP REALTY TRUST A MARYLAND TRUST]
<PAGE>
PRIME GROUP REALTY TRUST
The Trust is authorized to issue more than one class of stock. The
Declaration of Trust on file in the office of the State Department of
Assessments and Taxation of the State of Maryland sets forth as full
statement of (a) all of the designations, preferences, rights, voting powers,
restrictions, limitation as to dividends, qualifications, and terms and
conditions of redemptions, and other relative rights of the shares of each
class of shares authorized to be issued and (b) the authority of the Board of
Trustees to issue any preferred or special class in series, the differences
in the relative rights and preferences between the shares of each series of
the extent they have been set and the authority of the Board of Trustees to
set the relative rights and preferences of subsequent series of preferred
shares.
The Common Shares represented by this certificate are subject to
restrictions on transfer for the purpose of the Trust's maintenance of its
status as a real estate investment trust under the Internal Revenue Code of
1986, as amended (the "Code"). Subject to certain further restrictions and
except as provided in the Trust's Declaration of Trust, no Person may (i)
Beneficially or Constructively Own Common Shares in excess of 9.9% (or such
other percentage as may be determined by the Board of Trustees) of the number
of outstanding Common Shares, (ii) Beneficially Own Common Shares that would
result in the Common Shares being Beneficially Owned by fewer than 100
Persons (determined without reference to any rules of attribution), (iii)
Beneficially Own Common Shares that would result in the Trust being "closely
held" under Section 856(h) of the Core of (iv) Constructively Own Common
Shares that would cause the Trust to Constructively Own 10% or more of the
ownership interests in a tenant of the Trust's real property, within the
meaning of Section 856(d)(2)(B) of the Code. Any Person who attempts to
Beneficially or Constructively Own Common Shares in excess of the above
limitations must immediately notify the Trust in waiting of such proposed or
attempted Transfer. If any restrictions above are violated, the Common Shares
represented hereby will be converted automatically into Excess Shares which
will be transferred automatically, by operation of law, to a Share Trust to
be held for the exclusive benefit of a Beneficiary to be named by the Trust.
In addition, upon the occurrence of certain events, attempted Transfer in
violation of the restrictions described above may be void ab initio. All
capitalized terms in this legend have the meanings defined in the Trust's
Declaration of Trust, as the same may be further amended from time to time, a
copy of which, including the restrictions of Transfer, will be sent without
charge to each shareholder who so requests. Such requests must be made to he
Secretary of the Trust at its principal office.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with rights of
survivors and not as tenants in common
UNIT GIFT MIN ACT -- ..........Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors
Act..........................
UNIT TRF MIN ACT -- .....Custodian....(until age ..)
(Cust)
...........Under Uniform Transfers
(Minor)
to Minors Act...................
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED,__________________ Hereby sell, assign and transfer
unto PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
(Please print or typewrite name and address, including zip code, assignee)
_______________________________________________________________________________
_______________________________________________________________________________
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
_______________________________________________________________________________
to transfer the said Common Shares on the books of the within named Trust with
full power of substitution in the premises.
Date_____________________________
X _______________________________________
X________________________________________
Notice: The Signature(s) to this assignment
Must correspond with the name(s) as
Written upon the face of the
Certificate in every particular,
Without alternation or enlargement or
any change whatever.
Signature(s) Guaranteed
By________________________________________
The Signature(s) should be guaranteed by
an eligible guarantor institution (banks,
stockbrokers, savings and loan
association and credit unions with
membership in an approved signature
guarantee Medallion Program, pursuant to
S.E.C. Rule 17Ad-15.
_____________________________________________
American Bank Note Company Nov 4, 1997 fm
3504 Atlantic Avenue
Suite 12
Long Beach, CA 90807 053384bk
(562) 989-2333
(fax) (562) 426-7450 Proof ___ REV 2
______________________________________________
<PAGE>
EXHIBIT 19.2
FORM OF CONVERTIBLE PREFERRED CERTIFICATE
PRIME GROUP REALTY TRUST
ORGANIZED UNDER THE LAWS OF THE STATE OF MARYLAND
THIS CERTIFIES THAT _________________________________________
IS THE OWNER OF ____________________________________________
fully paid and non-assessable Series A Cumulative Convertible Preferred
Shares of Beneficial Interest, $0.01 par value per share, of Prime Group
Realty Trust, transferable only on the books of the Trust by the holder
hereof in person or by duly authorized attorney upon the surrender of this
Certificate property endorsed. This Certificate and the Series A Cumulative
Convertible Preferred Shares of Beneficial Interest evidenced hereby are
issued and shall be held subject to all of the provisions of the Declaration
of Trust and amendments thereto. The holder hereof has no interest, legal or
equitable, in any specific property of the Trust.
WITNESS the signatures of its duly authorized officers.
Dated:
_____________________________
CHAIRMAN OF THE BOARD
_____________________________
PRESIDENT
_____________________________
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
<PAGE>
[REVERSE OF CERTIFICATE]
PRIME GROUP REALTY TRUST
THE TRUST IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK. THE
DECLARATION OF TRUST ON FILE IN THE OFFICE OF THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND SETS FORTH A FULL STATEMENT
OF (A) ALL OF THE DESIGNATIONS, PREFERENCES, RIGHTS, VOTING POWERS,
RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND TERMS AND
CONDITIONS OF REDEMPTIONS, AND OTHER RELATIVE RIGHTS OF THE SHARES OF EACH
CLASS OF SHARES AUTHORIZED TO BE ISSUED AND (B) THE AUTHORITY OF THE BOARD OF
TRUSTEES TO ISSUE ANY PREFERRED OR SPECIAL CLASS IN SERIES, THE DIFFERENCES
IN THE RELATIVE RIGHTS AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO
THE EXTENT THEY HAVE BEEN SET AND THE AUTHORITY OF THE BOARD OF TRUSTEES TO
SET THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT SERIES OF PREFERRED
SHARES.
<PAGE>
Exhibit 22.1
Subsidiaries of Registrant
Prime Group Realty, L.P., a Delaware limited partnership
Prime Group Realty Services, Inc., a Maryland corporation
PGR Finance I, Inc., a Delaware corporation
PGR Finance II, Inc., a Delaware corporation
In addition, the Company has direct or indirect interests in 64 entities
which hold title or interests in the Company's properties.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> NOV-17-1997
<PERIOD-END> DEC-31-1997
<CASH> 11,969
<SECURITIES> 0
<RECEIVABLES> 103,169
<ALLOWANCES> 0
<INVENTORY> 39,389 <F1>
<CURRENT-ASSETS> 0
<PP&E> 589,279
<DEPRECIATION> 2,338
<TOTAL-ASSETS> 741,468
<CURRENT-LIABILITIES> 189,355 <F2>
<BONDS> 328,044
0
20
<COMMON> 130
<OTHER-SE> 223,919
<TOTAL-LIABILITY-AND-EQUITY> 741,468
<SALES> 0
<TOTAL-REVENUES> 9,830
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 7,358 <F3>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,680
<INCOME-PRETAX> 792
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 792
<EPS-PRIMARY> 0.04
<EPS-DILUTED> 0.04
<FN>
<F1> Amount includes net deferred costs ($28,472) and
other assets ($10,917).
<F2> Amount includes accrued interest payable
($1,245), accrued real estate taxes ($17,915),
accounts payable and accrued expenses ($13,903),
liabilities for leases assumed ($5,758),
dividends declared ($2,505), other liabilities
($822) and minority interest of ($147,207).
<F3> Amount includes property operations ($2,213), real
estate taxes ($1,765), depreciation and
amortization ($2,478), general and administrative
expenses ($267) and minority interest allocation
of ($635).
</FN>
</TABLE>
