SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 31, 1999
Prime Retail, Inc.
(Exact name of registrant as specified in its charter)
Maryland 0-23616 38-2559212
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
100 East Pratt Street
Nineteenth Floor, Baltimore, Maryland 21202
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (410) 234-0782
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No Change
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(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
On March 31, 1999, Prime Retail, Inc., a Maryland corporation ("Prime") and
Prime Retail, L.P., a Delaware limited partnership ("Prime Partnership"),
entered into an agreement (the "Repurchase Agreement") pursuant to which Prime
will repurchase all of its outstanding shares of Series C Cumulative Convertible
Redeemable Preferred Stock ("Series C Preferred Stock") for approximately $43.6
million or $10.00 per share. The Repurchase Agreement provides for the
repurchase to occur in two stages. In the first stage, completed on March 31,
1999, Prime repurchased 3,300,000 shares of the Series C Preferred Stock in
exchange for the issuance of a $33.0 million unsecured promissory note. The
unsecured promissory note bears interest at a rate of 12.0% per annum, matures
on September 30, 1999, requires monthly interest-only payments and may be
prepaid by Prime at any time without penalty. Second, Prime will repurchase the
remaining 1,063,636 shares of its Series C Preferred Stock for an aggregate
purchase price of approximately $10.6 million on or before September 30, 1999.
In connection with the Repurchase Agreement, the sole holder of the Series
C Preferred Stock irrevocably waived Prime's obligation to comply with the
financial covenants contained in its charter relating to the Series C Preferred
Stock, as well as the rights of such holder to require Prime to repurchase the
Series C Preferred Stock in certain circumstances at its original issue price of
$13.75 per share.
Copies of the Repurchase Agreement and the press release announcing the
signing of the Repurchase Agreement are attached hereto as Exhibit 10.1 and
Exhibit 99.1, respectively, and are incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Number Description
10.1 Series C Preferred Share Repurchase Agreement dated as of
March 31, 1999 among Prime, Prime Partnership and Security
Capital Preferred Growth Incorporated
99.1 Press Release dated March 31, 1999
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PRIME RETAIL, INC.
(Registrant)
Date: April 6, 1999
By: /s/ Robert P. Mulreaney
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Name: Robert P. Mulreaney
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
<PAGE>
EXHIBIT INDEX
Number Description
10.1 Series C Preferred Share Repurchase Agreement dated as of
March 31, 1999 among Prime, Prime Partnership and Security
Capital Preferred Growth Incorporated
99.1 Press Release dated March 31, 1999
EXHIBIT 10.1
SERIES C PREFERRED SHARE REPURCHASE AGREEMENT
DATED AS OF MARCH 31, 1999
AMONG
SECURITY CAPITAL PREFERRED GROWTH INCORPORATED,
PRIME RETAIL, INC.
AND
PRIME RETAIL, L.P.
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Table of Contents
<TABLE>
<CAPTION>
<S> <C> <C>
Page
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I. PURCHASE OF SERIES C PREFERRED SHARES.....................................................................1
1.1 Purchase of Series C Preferred Shares.............................................................1
1.2 Closing...........................................................................................2
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE OPERATING PARTNERSHIP...............................2
2.1 Organization, Good Standing and Qualification.....................................................2
2.2 Power, Authority and Enforceability...............................................................3
2.3 Valid Issuance of the Note........................................................................3
2.4 Compliance with Other Instruments.................................................................4
2.5 Financial Statements..............................................................................4
2.6 Exchange Act Compliance...........................................................................4
2.7 No Material Adverse Changes.......................................................................5
2.8 Litigation........................................................................................5
2.9 Governmental Consent..............................................................................5
2.10 No Violation of Purchase Agreement or Articles of Incorporation...................................5
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR............................................................6
3.1 Power, Authority and Enforceability...............................................................6
3.2 Compliance with Other Instruments.................................................................6
3.3 Title to Series C Preferred Shares................................................................7
IV. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING.......................................................7
4.1 Representations and Warranties....................................................................7
4.2 Performance.......................................................................................7
4.3 Opinion of Company Counsel........................................................................7
4.4 Officer's Certificate.............................................................................8
4.5 Proceedings.......................................................................................8
4.6 No Injunction.....................................................................................8
V. CONDITIONS OF THE COMPANY'S AND THE OPERATING PARTNERSHIP'S OBLIGATIONS AT EACH CLOSING...................8
5.1 Representations and Warranties....................................................................8
5.2 Performance.......................................................................................8
5.3 No Injunction.....................................................................................9
5.4 Officer's Certificate.............................................................................9
5.5 Legal Opinion of the Investor's Counsel...........................................................9
VI. COVENANTS.................................................................................................9
6.1 Payment in Respect of First Quarter Dividend......................................................9
6.2 No Sale of Series C Preferred Shares by the Investor..............................................9
6.3 Waiver of Compliance with Certain Covenants Contained in the
Articles of Incorporation........................................................................10
6.4 Actions Related to Second Closing................................................................10
6.5 No Public Disclosure.............................................................................10
VIII. MISCELLANEOUS............................................................................................10
7.1 Survival of Warranties...........................................................................10
7.2 Successors and Assigns...........................................................................10
7.3 Interpretation...................................................................................11
7.4 Governing Law....................................................................................11
7.5 Venue; Submission to Jurisdiction................................................................11
7.6 Counterparts.....................................................................................11
7.7 Titles and Subtitles.............................................................................11
7.8 Notices..........................................................................................12
7.9 Expenses.........................................................................................13
7.10 Effect on Articles of Incorporation and Purchase Agreement.......................................13
7.11 Amendments and Waivers...........................................................................13
7.12 Severability.....................................................................................14
7.13 Waiver of Jury Trial.............................................................................14
7.14 Time of the Essence..............................................................................14
7.15 Entire Agreement.................................................................................14
</TABLE>
<PAGE>
SERIES C PREFERRED SHARE REPURCHASE AGREEMENT
This SERIES C PREFERRED SHARE REPURCHASE AGREEMENT (this "Agreement") is
made as of the 31st day of March, 1999 by and among Prime Retail, Inc., a
Maryland corporation (the "Company"), Prime Retail, 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 Investor is the beneficial owner and the owner of record of
4,363,636 shares of the Company's Series C Cumulative Convertible Redeemable
Preferred Stock, $.01 par value per share (the "Series C Preferred Shares");
WHEREAS, the Company wishes to repurchase from the Investor 4,363,636
Series C Preferred Shares on the terms and subject to the conditions set forth
in this Agreement; and
WHEREAS, the Investor wishes to sell its Series C Preferred Shares on the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
agreements and warranties herein contained, the parties hereby agree as follows:
I. PURCHASE OF SERIES C PREFERRED SHARES.
1.1 Purchase of Series C Preferred Shares.
(a) The Company hereby agrees to purchase from the Investor 3,300,000
Series C Preferred Shares for an aggregate purchase price of $33,000,000 (the
"First Purchase Price"). The Company will pay the First Purchase Price, through
the issuance of a note (the "Note") in the form attached hereto as Exhibit A to
be delivered to the Investor on the First Closing Date (as defined below).
(b) The Company hereby agrees to purchase from the Investor 1,063,636
Series C Preferred Shares for an aggregate purchase price of $10,636,360 plus
accrued and unpaid dividends to, but not including, the Second Closing Date (as
defined below) (the "Second Purchase Price"). The Company shall pay the Second
Purchase Price in cash to be delivered to the Investor on the Second Closing
Date. The Company may voluntarily pay the Second Purchase Price prior to
September 30, 1999 upon five business days prior written notice to the Investor
1.2 Closing.
(a) Upon the terms and subject to the satisfaction or waiver of all the
conditions to closing set forth in this Agreement, the closing that occurs on
the First Closing Date (the "First Closing") and, if applicable, the closing
that occurs on the Second Closing Date (the "Second Closing") shall take place
at the offices of Mayer, Brown & Platt, 190 South LaSalle Street, Chicago,
Illinois or at such other location as may be agreed upon by the Company and the
Investor. The First Closing and the Second Closing are sometimes referred to
collectively as the "Closings" and individually as a "Closing". The Closings
shall take place at 10:00 a.m. Chicago time, or at such other time as may be
agreed upon by the Company and the Investor. The First Closing shall take place
on March 31, 1999 (the "First Closing Date"). The Second Closing shall take
place on September 30, 1999 or such earlier date as determined by the Company
upon five business days written notice to the Investor (the "Second Closing
Date"). The First Closing Date and the Second Closing Date are sometimes
referred to collectively as the "Closing Dates" and individually as a "Closing
Date".
(b) At each Closing, the Investor shall deliver a certificate or
certificates representing at least the number of Series C Preferred Shares to be
delivered by the Investor to the Company on such date and the Company shall
deliver to the Investor, against delivery of such certificate or certificates,
(1) in the case of the First Closing, the Note in an amount equal to the First
Purchase Price, or (2) in the case of the Second Closing, a wire transfer of
immediately available funds to the Investor's order in an amount equal to the
Second Purchase Price. 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 number of Series C Preferred Shares, if any,
represented by the certificate or certificates delivered by the Investor in
excess of the number of shares purchased by the Company at the First Closing.
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE OPERATING PARTNERSHIP.
Each of the Company and the Operating Partnership represents and warrants,
as of the date of this Agreement, that:
2.1 Organization, Good Standing and Qualification.
(a) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland with full
corporate 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 their respective subsidiaries (collectively, the
"Subsidiaries"), 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.
2.2 Power, Authority and Enforceability
(a) Each of the Company and the Operating Partnership has all requisite
corporate or partnership power and authority, and has taken all required
corporate or partnership action necessary, to execute, deliver and perform this
Agreement. The Company has all requisite corporate power and authority, and has
taken all required corporate action necessary, to authorize the repurchase of
the Series C Preferred Shares as provided in this Agreement.
(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 Valid Issuance of the Note.
The Note has been duly authorized, executed and delivered by the Company
and the Operating Partnership and is a legal, valid and binding obligation of
each of the Company and the Operating Partnership enforceable against 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.
2.4 Compliance with Other Instruments.
The execution, delivery and performance of this Agreement and the Note by
the Company and the Operating Partnership and the consummation by the Company
and the Operating Partnership of the transactions contemplated hereby do not (i)
result in a violation of the Company's Amended and Restated Articles of
Incorporation (the "Articles of Incorporation"), the Company's Amended and
Restated Bylaws (the "Bylaws") or the Operating Partnership's Third 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 ability to
perform their obligations under this Agreement).
2.5 Financial Statements.
The financial statements and supporting schedules included in the Company's
periodic filings filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the draft dated March 29, 1999 of the
Company's annual report on Form 10-K for the year ended December 31, 1998 (the
"Draft 1998 Form 10-K"), 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. 2.6
Exchange Act Compliance.
The Company has timely filed all documents required to be filed with the
Securities and Exchange Commission (the "Commission") pursuant to the Exchange
Act. All such documents, when so filed, and the Draft 1998 Form 10-K as of its
date, complied in form with such act in all material respects and did not, as of
the date of their filing, or the date of the Draft 1998 Form 10-K in the case of
the Draft 1998 Form 10-K, contain 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.
2.7 No Material Adverse Changes.
Since the date of the Draft 1998 Form 10-K, (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, 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, 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 or any material increases in the
debt of the Company, the Operating Partnership and the Subsidiaries considered
as one enterprise (except for the indebtedness represented by the Note); 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, provided however, that the Company makes no
representation with respect to Section 4.7.5 of the Articles of Incorporation.
2.8 Litigation.
Except as set forth in the Draft 1998 Form 10-K, 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.
2.9 Governmental Consent.
No consent, approval or authorization of, or declaration or filing with,
any governmental authority on the part of the Company or the Operating
Partnership is required for the valid execution and delivery of this Agreement
or the Note or performance hereunder or thereunder.
2.10 No Violation of Purchase Agreement or Articles of Incorporation.
There is not, and has not been since the date of the Series C Preferred
Securities Purchase Agreement, dated as of August 8, 1997, between the Company,
the Operating Partnership and the Investor (the "Purchase Agreement"), any
violation of or defaults under the representations, warranties or covenants
contained in the Purchase Agreement or the Articles of Incorporation, with
respect to the Series C Preferred Shares, provided however, that the Company
makes no representation with respect to Section 4.7.5 of the Articles of
Incorporation.
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
The Investor represents and warrants, as of the date of this Agreement and
as of each 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 this Agreement
and to consummate the transactions contemplated hereby.
(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.
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 Title to Series C Preferred Shares.
The Investor has good and marketable title to the Series C Preferred Shares
that are the subject of this Agreement, free and clear of any pledge, lien,
security interest, encumbrance, claim or equity other than pursuant to this
Agreement; the Investor has full right, power and authority to sell, transfer
and deliver the Series C Preferred Shares in accordance with this Agreement; and
upon delivery of the Series C Preferred Shares in accordance with the terms of
this Agreement and payment of the consideration therefor as herein contemplated,
the Company will receive good and marketable title to the Series C Preferred
Shares, free and clear of any pledge, lien, security interest, encumbrance,
claim or equity created by any instrument or proceeding to which the Investor is
a party as of the date of this Agreement.
IV. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING.
The Investor's obligations at each Closing are subject to the satisfaction
or waiver by the Investor on or before such Closing of each of the following
conditions:
4.1 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 First Closing
with the same effect as though such representations and warranties had been made
on and as of the date of such Closing.
4.2 Performance.
Each of the Company and the Operating Partnership 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 such Closing.
4.3 Opinion of Company Counsel.
On the First Closing Date, the Investor shall have received from Winston &
Strawn, counsel for the Company, an opinion substantially in the form attached
as Exhibit B and an opinion confirming the Company's status as a real estate
investment trust under the Internal Revenue Code of 1986, as amended in the form
attached as Exhibit C.
4.4 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, 4.5 and 4.6 continue to exist on such Closing Date.
4.5 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
satisfactory to the Investor.
4.6 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.
V. CONDITIONS OF THE COMPANY'S AND THE OPERATING PARTNERSHIP'S OBLIGATIONS AT
EACH CLOSING.
The obligations of the Company and the Operating Partnership under Article
I of this Agreement are subject to the fulfillment on or before each 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 such
Closing.
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 such 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 such Closing Date.
5.5 Legal Opinion of the Investor's Counsel.
The Company shall have received as of the Closing Date, the opinion of
Mayer, Brown & Platt, counsel for the Investor, an opinion substantially in the
form attached as Exhibit D.
VI. COVENANTS.
6.1 Payment in Respect of First Quarter Dividend
Notwithstanding that the Investor will not be a holder of record with
respect to the Series C Preferred Shares to be purchased pursuant to Section 1.1
of this Agreement for the dividend for the quarter ended March 31, 1999, the
Company agrees to pay to the Investor cash in an amount equal to the dividend on
such shares as if the such shares had been outstanding for the entire quarter
ended March 31, 1999, which payment will occur no later than May 17, 1999.
6.2 No Sale of Series C Preferred Shares by the Investor.
Other than as contemplated hereby, the Investor agrees not to sell or
otherwise transfer ownership of any Series C Preferred Shares until the day
after the Second Closing should have occurred in accordance with the terms of
this Agreement, and after such date only in compliance with Section 6.3.
6.3 Waiver of Compliance with Certain Covenants Contained in the Articles of
Incorporation.
The Investor hereby waives past and future compliance by the Company with
Section 4.7.5 of the Articles of Incorporation. This waiver shall be
irrevocable. This waiver shall not constitute a waiver of compliance with any
other provisions of the Articles of Incorporation or the Purchase Agreement. The
Investor agrees that prior to transferring any Series C Preferred Shares, it
will obtain from the prospective transferee on behalf of the Company a waiver of
past and future compliance with Section 4.7.5 of the Articles of Incorporation.
6.4 Actions Related to Second Closing.
The Company and the Operating Partnership hereby agree to take any and all
actions lawfully permitted to enable the Second Closing to occur on the Second
Closing Date.
6.5 No Public Disclosure.
None of the Company, the Operating Partnership or any affiliate of either
will make any public disclosure concerning the transactions contemplated by this
Agreement unless such disclosure has been provided to the Investor at least two
complete business days prior to such disclosure. Notwithstanding the foregoing,
the Investor hereby waives such notice with respect to the disclosure of the
transactions contemplated by this Agreement in the form contained in the Draft
1998 Form 10-K and the press release attached as Exhibit E.
VII. MISCELLANEOUS
7.1 Survival of Warranties.
The warranties and representations 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 Closings hereunder through and until one
year following the last Closing. The covenants contained in or made pursuant to
Article VI of this Agreement shall survive the last Closing hereunder
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.
7.2 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
the Investor that agrees in writing to be bound by the terms of this Agreement
and the Investor may pledge the Note as collateral for borrowings.
7.3 Interpretation.
The parties hereto acknowledge that this Agreement is the product of
arm's-length negotiations between the parties, each of whom was represented by
counsel, and agree that in any dispute concerning the interpretation of any
provision of this Agreement, there will be no presumption that any provision is
to be construed against or in favor of any particular party.
7.4 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.
7.5 Venue; Submission to Jurisdiction.
The parties hereto agree that any litigation relating to this Agreement may
be brought in any court sitting in the State of Illinois. Each party hereby
consents to personal jurisdiction in any such action or proceeding brought in
any court, consents to service of process by mail made upon such party and such
party's agent (or in any other manner permitted by the rules of the court in
which the action or proceeding is brought) and waives any objection to venue in
any such court or to any claim that any such court is an inconvenient forum.
7.6 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. This document may be executed by facsimile signature.
7.7 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.
7.8 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
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:
C. Alan Schroeder
Prime Retail, Inc.
100 East Pratt Street
Baltimore, Maryland 21202
Facsimile: (410)234-0275
with a copy to:
Steven J. Gavin
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Facsimile: (312) 558-5700
7.9 Expenses.
The Company and the Operating Partnership agree to reimburse the Investor
for the costs and expenses incurred in connection with negotiating, executing,
delivering and performing this Agreement and the transactions contemplated
hereby in an amount not to exceed $100,000. Except as provided in the preceding
sentence, 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 or the Note, 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.
7.10 Effect on Articles of Incorporation and Purchase Agreement.
Except as expressly set forth in this Agreement, neither the execution,
delivery nor effectiveness of this Agreement shall operate as a waiver of any
right, power or remedy of the Investor of any rights or remedies under the
Articles of Incorporation, with respect to the Series C Preferred Shares, or the
Purchase Agreement, all of which the Investor hereby expressly reserves. Nothing
contained herein shall require the Investor to hereafter waive compliance with
or any defaults under, or to further amend any provisions of the Articles of
Incorporation, with respect to the Series C Preferred Shares, or the Purchase
Agreement, whether or not similar to the waiver effected by this Agreement.
7.11 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, the Operating Partnership 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.
7.12 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.
7.13 Waiver of Jury Trial.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS HEREIN PROVIDED FOR.
7.14 Time of the Essence.
Time is of the essence as to all dates set forth in this Agreement subject
to any applicable grace or cure period expressly provided in this Agreement.
7.15 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.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SECURITY CAPITAL PREFERRED
GROWTH INCORPORATED
By: /s/ Daniel F. Miranda
---------------------
Name: Daniel F. Miranda
Its: President
PRIME RETAIL, L.P.
By: Prime Retail, Inc., its general partner
By: /s/ Michael W. Reschke
----------------------
Name: Michael W. Reschke
Its: Chairman of the Board
PRIME RETAIL, INC.
By: /s/ Michael W. Reschke
----------------------
Name: Michael W. Reschke
EXHIBIT 99.1
FOR IMMEDIATE RELEASE FOR MORE INFORMATION CALL
March 31, 1999 Robert P. Mulreaney
Chief Financial Officer
(410) 234-0782
PRIME RETAIL ENTERS INTO AN AGREEMENT TO REPURCHASE SERIES C PREFERRED STOCK
BALTIMORE - Prime Retail, Inc. (NYSE: PRT, PRT.PRA, PRT.PRB) today
announced that it has entered into an agreement pursuant to which it will
repurchase all of its outstanding shares of Series C Cumulative Convertible
Redeemable Preferred Stock ("Series C Preferred Stock") for approximately $43.6
million or $10.00 per share. The agreement provides for the repurchase to occur
in two stages. In the first stage, completed today, Prime Retail repurchased
3,300,000 shares of the Series C Preferred Stock in exchange for the issuance of
a $33.0 million unsecured promissory note. The unsecured promissory note bears
interest at a rate of 12.0% per annum, matures on September 30, 1999, requires
monthly interest-only payments and may be prepaid by Prime Retail at any time
without penalty. Second, Prime Retail will repurchase the remaining 1,063,636
shares of its Series C Preferred Stock for an aggregate purchase price of
approximately $10.6 million on or before September 30, 1999.
In connection with today's agreement, the sole holder of the Series C
Preferred Stock, irrevocably waived Prime Retail's obligation to comply with the
financial covenants contained in its charter relating to the Series C Preferred
Stock, as well as the rights of such holder to require Prime Retail to
repurchase the Series C Preferred Stock in certain circumstances at its original
issuance price of $13.75 per share.
Abraham Rosenthal, chief executive officer of the Company, stated, "We view
this transaction as a positive solution for our common shareholders since the
terms of the transaction result in an increase in FFO per share on a diluted
basis and we are repurchasing shares at a price lower than net asset value per
common share. This transaction was completed solely as a result of the decrease
in our common stock price and none of our other debt or preferred stock
covenants contain provisions such as those included in the Series C Preferred
Stock agreement relating to a formula based on fluctuations in the market value
of our equity securities. From an operational perspective, our core business
remains strong as a result of our dominant position in the outlet industry and
the financial performance of the assets we acquired in the Horizon merger
continue to exceed our expectations."
In addition, Prime Retail's charter requires that to repurchase Series C
Preferred Stock, dividends on Series A Senior Cumulative Preferred Stock
("Series A Preferred Stock") and Series B Cumulative Participating Convertible
Preferred Stock ("Series B Preferred Stock") must be current. Therefore, solely
to facilitate the repurchase transaction, the Board of Directors of Prime Retail
has declared quarterly distributions for the period February 16 through May 15,
1999 on its outstanding Series A Preferred Stock and Series B Preferred Stock in
advance of the customary declaration date. In accordance with the terms of the
Series A and B Preferred Stock, quarterly distributions of $0.65625 per share
and $0.53125 per share, respectively, have been declared, payable on May 17,
1999 to shareholders of record as of May 3, 1999. Finally, Prime Retail expects
to announce its quarterly dividend on its outstanding Common Stock and Common
Units during the week of April 19th.
Prime Retail, Inc. is a self-administered, self-managed real estate
investment trust engaged in the ownership, development, construction,
acquisition, leasing, marketing and management of manufacturers' outlet centers
throughout the United States. As of December 31, 1998, Prime Retail's outlet
center portfolio consisted of 50 outlet centers in 26 states, which totaled
approximately 14.3 million square feet of GLA. As of December 31, 1998, Prime
Retail's manufacturers' outlet center portfolio was 96% leased and occupied.
Prime Retail has been a developer of manufacturers' outlet centers since 1988.
For additional information, visit Prime Retail's web site at
www.primeretail.com.
Some of the information contained herein which are not historical facts are
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995 that reflect management's current views with
respect to future events and financial performance. The words "believes",
"expects", "anticipates", "estimates" and similar words or expressions are
generally intended to identify forward-looking statements. Actual results may
differ materially from those expected because of various risks and
uncertainties, including, but not limited to, changes in general economic
conditions, adverse changes in real estate markets as well as other risks and
uncertainties included from time to time in Prime Retail's filings with the
Securities and Exchange Commission.
