Exhibit 10.21
AMENDED AND RESTATED AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT ("Agreement") is made as of July 15,
1997 by and among Xxxxxx Investors Life Insurance Company, an Illinois insurance
corporation ("KILICO"); Federal Xxxxxx 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
Xxxxxx Limited Partnership, an Illinois limited partnership ("Borrower"); K/77
Investors Limited Partnership, an Illinois limited partnership ("K/77"); The
Prime Group, Inc., an Illinois corporation ("TPG"); Prime Group Limited
Partnership, an Illinois limited partnership ("PGLP"); and Prime 77 Fitness
Center, Inc., an Illinois corporation ("Prime Fitness"). KILICO, FKLA, KRC, FRC,
and KR Fitness are referred to in this Agreement as the "Xxxxxx Parties." TPG,
PGLP, and Prime Fitness are referred to in this Agreement as the "Prime
Parties."
RECITALS
A. Borrower is the owner of record title to certain property located at
00 X. Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx (the "Premises").
B. Borrower and The Mitsui Taiyo Kobe Bank, Ltd., Chicago Branch, The
Mitsui Trust and Banking Co., Limited, Chicago Branch, The Yasuda Trust and
Banking Co., Limited, Chicago Branch, Swiss Bank Corporation, New York Branch,
and Bank of Montreal, Chicago Branch (all of whom are referred to as the
"Co-Agents," with Bank of Montreal, Chicago Branch referred to as the
"Administrative Agent") have entered into that Building Loan Agreement dated as
of March 14, 1991 (the "Building Loan Agreement").
C. The Building Loan Agreement provides for the making of a first
mortgage loan on the Premises evidenced by a Note dated as of March 14, 1991
made by Borrower to the Administrative Agent for the benefit of the Co-Agents in
the face amount of Two Hundred Thirty Million Dollars ($230,000,000) (the
"Construction Note"). The Construction Note is secured by documents identified
in the Building Loan Agreement as "Loan Documents." The Building Loan Agreement,
the Construction Note, and any other documents identified in the Building Loan
Agreement as the "Loan Documents" are referred to in this Agreement as the
"Construction Loan Documents."
D. The Administrative Agent, the Co-Agents, KILICO, FKLA, and Borrower
have entered into that Standby First Mortgage Funding Agreement dated as of
March 14, 1991 (the "Standby Funding Agreement") regarding a loan to be made by
KILICO and FKLA, jointly and severally (together referred to as "KILICO/FKLA")
to Borrower to be secured by an interest in the Premises. Pursuant to the
Standby Funding Agreement, Borrower has executed and delivered to KILICO/FKLA
that KILICO/FKLA Standby Note and that KILICO/FKLA First Mortgage, as those
terms are defined in the Standby Funding Agreement. The Standby Funding
Agreement, the KILICO/FKLA Standby Note, the KILICO/FKLA First Mortgage, and any
other documents identified in the Standby Loan Agreement as the "KILICO/FKLA
Loan Documents" are referred to herein as the "KILICO/FKLA Loan Documents."
E. To further secure the Construction Loan Documents, TPG and KRC have
executed and delivered for the benefit of the Administrative Agent the following
documents which are dated as of March 14, l991: a Guaranty of Completion, a
Guaranty of Cost Overruns, and a Guaranty of Operating Deficits (the
"Construction Guarantees").
F. Borrower and KILICO/FKLA have entered into that Subordinate Mortgage
Funding Agreement dated as of March 14, 1991, as amended by that First Amendment
to Subordinate Mortgage Funding Agreement dated as of November 13, 1991, made by
Borrower and KILICO/FKLA (as amended, the "Subordinate Funding Agreement"),
which requires KILICO/FKLA to advance certain amounts to be secured by a second
mortgage on the Premises. Pursuant to the Subordinate Funding Agreement,
Borrower has executed and delivered that Note dated as of March 14, 1991 in the
face amount of Sixty Million Dollars ($60,000,000) payable to KILICO/FKLA (the
"Subordinate Note"), which Subordinate Note is secured by the KILICO/FKLA
Subordinate Mortgage, as such term is defined in the Subordinate Funding
Agreement. The Subordinate Note, the KILICO/FKLA Subordinate Mortgage, the other
documents identified in the Subordinate Funding Agreement as the "KILICO/FKLA
Loan Documents," and the other documents described in the definition of
"Subordinate Loan Documents" on Schedule A attached hereto are defined herein as
the "Subordinate Loan Documents."
G. KRC and TPG have entered into that Option To Purchase Partnership
Interests dated as of June 17, 1994 but made effective as of March 22, 1994, as
amended by that Amendment To Option To Purchase Partnership Interests dated as
of January 21, 1997 (as amended, the "Partnership Option Agreement"). Pursuant
to the Partnership Option Agreement, TPG has an option (the "Partnership
Option") to acquire the interests of KRC in Borrower and in K/77.
H. On or about January 21, 1997, the Xxxxxx Parties, Borrower, and the
Prime Parties entered into that Agreement dated as of January 21, 1997 (the
"Original Agreement") pursuant to which, among other matters, KILICO and FKLA
granted to TPG an option to purchase the Subordinate Loan Documents for the
price and on the terms stated in the Original Agreement.
I. The Xxxxxx Parties, Borrower, and the Prime Parties desire to modify
some of the terms of the Original Agreement and have agreed to amend and restate
the Original Agreement in its entirety, and K/77 has agreed to join in this
Agreement to evidence its agreement with certain rights which have been granted
to KRC in its capacity as a general partner of the Borrower. Subject to the
terms and conditions stated in this Agreement, the parties hereto have agreed to
amend and restate the Original Agreement to provide that:
2
(1) KILICO and FKLA shall grant TPG an option to acquire or to cause
a Prime Affiliate (as defined on Schedule A) to acquire the interests of
KILICO and FKLA in the Subordinate Loan Documents for the price and on the
terms stated in this Agreement.
(2) It shall be a condition to the obligations of KILICO and FKLA to
transfer their interests in the Subordinate Loan Documents at the Debt
Interest Closing (as defined below) in accordance with the terms and
conditions of this Agreement that: (a) all outstanding amounts secured by
the KILICO/FKLA Loan Documents must be paid in full on or before the Debt
Interest Closing; (b) all outstanding amounts secured by the Construction
Loan Documents must be paid in full at the Debt Interest Closing; (c) TPG
must exercise the Partnership Option and the Xxxxxx Parties and the Prime
Parties must execute and deliver the Partnership Releases identified below;
(d) the Xxxxxx Parties must obtain an Indemnity from Borrower and TPG as
provided below; and (e) TPG shall obtain the consent in a form reasonably
satisfactory to KILICO/FKLA to the transfer of the Subordinate Loan
Documents as contemplated by this Agreement from Lumbermens Mutual Casualty
Company, an Illinois mutual insurance company ("LMCC"), as holder of a
participation interest in the Subordinate Note, or, on or before the Debt
Interest Closing, TPG or a Prime Affiliate shall have purchased LMCC's
interests in the Subordinate Loan Documents.
(3) TPG shall waive, surrender, and terminate its right to receive an
administrative fee in its capacity as managing general partner of the
Borrower, as provided below.
NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement agree as follows:
Section 1 Amendment And Restatement. Except as otherwise provided in this
Section 1, the Original Agreement is hereby amended and restated in its entirety
and is superseded in all respects by this Agreement. Notwithstanding the
foregoing, the Third Amendment To The Amended And Restated Agreement Of Limited
Partnership Of 77 West Xxxxxx Limited Partnership which was executed and
delivered concurrently with the execution and delivery of the Original Agreement
remains in full force and effect and is not affected by the superseding of the
Original Agreement. Notwithstanding the foregoing, the parties hereto
acknowledge that the "Closing" (as defined in the Original Agreement) has
occurred in accordance with the terms of the Original Agreement. All provisions
of the Original Agreement which relate to that Closing remain in full force and
effect and are not superseded by this Agreement.
Section 2 Option. KILICO and FKLA hereby grant to TPG an option (the
"Option") to acquire or to have a Prime Affiliate acquire the interests of
KILICO and FKLA in the Subordinate Loan Documents (the "Subordinate Debt
Interests") for the "Subordinate Debt
3
Price" (as defined below) on or before September 30, 1997 (as the same may be
extended as provided herein, the "Outside Date"), on the terms and conditions
stated herein. The Subordinate Debt Interests consist of one hundred percent
(100%) of the record and beneficial interests of KILICO and FKLA in the
Subordinate Loan Documents, subject to the participation interest of LMCC in the
Subordinate Loan Documents.
Section 3 The Subordinate Debt Price.
3.1 As used herein, the term "1997 SFA Advances" shall mean the total of
all advances made by KILICO/FKLA under the Subordinate Funding Agreement or the
Subordinate Loan Documents in the period between January 1, 1997 and the date of
the Debt Interest Closing and shall include any amounts paid under the
Construction Guarantees, whether such payments are made by KILICO, FKLA, or KRC.
As used herein, the term "Credit Amount" shall mean Three Million Forty Two
Thousand Dollars ($3,042,000). As used herein, the term "Extension Option Fee
Credit" shall mean Fifty Percent (50%) of the amount of any Extension Option
Fees (as defined below) paid by TPG to KILICO in accordance with the terms of
Section 5 below.
3.2 At the Debt Interest Closing, TPG shall pay to KILICO the Subordinate
Debt Price, and KILICO shall pay to TPG the amount of any Extension Option Fee
Credit. All payments made at the Debt Interest Closing shall be by certified
check or by electronic funds wire transfer to an account designated by the
payee.
3.3 If the amount of the 1997 SFA Advances is greater than the Credit
Amount, then the "Subordinate Debt Price" shall be the remainder obtained after
subtracting the Credit Amount from the 1997 SFA Advances. If the Credit Amount
exceeds the 1997 SFA Advances, then the "Subordinate Debt Price" shall be One
Dollar (S1.00), and the amount which KILICO/FKLA would otherwise be entitled to
receive at the Debt Interest Closing pursuant to this Agreement with respect to
the KILICO/FKLA Loan Documents shall be reduced by the amount by which the
Credit Amount exceeds the 1997 SFA Advances.
Section 4 The Debt Interest Closing. If TPG elects to exercise the
Option, TPG must do so by delivery of written notice (the "Option Notice") to
KILICO and FKLA delivered in accordance with the notice provisions of this
Agreement stating that TPG is exercising the Option. The Option Notice must
state the business day on which TPG has elected to close the acquisition of the
Subordinate Debt Interests (the "Debt Interest Closing"), which date must be a
date occurring on or prior to the Outside Date and which must be not less than
five (5) business days after the date of the Option Notice and not more than ten
(10) business days after the date of the Option Notice.
Section 5 Extension Options To Extend The Outside Date. As noted
above, the Outside Date is initially September 30, 1997.
4
5.1 TPG shall have one option (the "First Extension Option") to extend the
Outside Date from September 30, 1997 to October 31, 1997, which First Extension
Option must be exercised, if at all, in accordance with the following
conditions: (i) written notice of the exercise of the First Extension Option
must be delivered in accordance with the notice provisions of this Agreement to
KILICO not more than twenty five (25) and not less than fifteen (15) days prior
to September 30, 1997; (ii) that written notice must be accompanied by an option
fee (an "Extension Option Fee") in the form of a certified check payable to
KILICO or by a wire transfer to an account designated by KILICO in the amount of
Three Hundred Thousand Dollars ($300,000); (iii) TPG must have exercised an
option under the "Triad Agreement" (as defined below) to extend the date of the
"Triad Closing" (as defined below) to October 31, 1997; and (iv) the First
Extension Option may not be exercised if any of the Prime Parties are then in
default under this Agreement.
5.2 If TPG has timely exercised the First Extension Option in accordance
with the terms and conditions of this Agreement, TPG shall have one option (the
"Second Extension Option") to extend the Outside Date from October 31, 1997 to
December 1, 1997, which Second Extension Option must be exercised, if at all, in
accordance with the following conditions: (i) written notice of the exercise of
the Second Extension Option must be delivered in accordance with the notice
provisions of this Agreement to KILICO not more than twenty five (25) and not
less than fifteen (15) days prior to October 31, 1997; (ii) that written notice
must be accompanied by an option fee (an "Extension Option Fee") in the form of
a certified check payable to KILICO or a wire transfer to an account designated
by KILICO in the amount of Three Hundred Thousand Dollars ($300,000); (iii) TPG
must have exercised the First Extension Option in accordance with the terms and
conditions of this Agreement; (iv) TPG must have exercised an option under the
Triad Agreement to extend the date of the Triad Closing to December 1, 1997; and
(v) the Second Extension Option may not be exercised if any of the Prime Parties
are then in default under this Agreement.
5.3 If TPG has timely exercised the First Extension Option and the Second
Extension Option in accordance with the terms and conditions of this Agreement,
TPG shall have one option (the "Third Extension Option") to extend the Outside
Date from December 1, 1997 to December 31, 1997, which Third Extension Option
must be exercised, if at all, in accordance with the following conditions: (i)
written notice of the exercise of the Third Extension Option must be delivered
in accordance with the notice provisions of this Agreement to KILICO not more
than twenty five (25) and not less than fifteen (15) days prior to December 1,
1997; (ii) that written notice must be accompanied by an option fee (an
"Extension Option Fee") in the form of a certified check payable to KILICO or a
wire transfer to an account designated by KILICO in the amount of Three Hundred
Thousand Dollars ($300,000); (iii) TPG must have exercised the First Extension
Option and the Second Extension Option in accordance with the terms and
conditions of this Agreement; (iv) TPG must have exercised an option under the
Triad Agreement to extend the date of the Triad Closing to December 31, 1997;
and (v) the Third Extension Option may not be exercised if any of the Prime
Parties are then in default under this Agreement.
5
5.4 If TPG has timely exercised the First Extension Option, the Second
Extension Option, and the Third Extension Option in accordance with the terms
and conditions of this Agreement, TPG shall have one option (the "Fourth
Extension Option") to extend the Outside Date from December 31, 1997 to February
2, 1998, which Fourth Extension Option must be exercised, if at all, in
accordance with the following conditions: (i) written notice of the exercise of
the Fourth Extension Option must be delivered in accordance with the notice
provisions of this Agreement to KILICO not more than twenty five (25) and not
less than fifteen (15) days prior to December 31, 1997; (ii) that written notice
must be accompanied by an option fee (an "Extension Option Fee") in the form of
a certified check payable to KILICO or a wire transfer to an account designated
by KILICO in the amount of Three Hundred Thousand Dollars (S300,000); (iii) TPG
must have exercised the First Extension Option, the Second Extension Option, and
the Third Extension Option in accordance with the terms and conditions of this
Agreement; (iv) TPG must have exercised an option under the Triad Agreement to
extend the date of the Triad Closing to February 2, 1998; and (v) the Fourth
Extension Option may not be exercised if any of the Prime Parties are then in
default under this Agreement.
5.5 If TPG has timely exercised the First Extension Option, the Second
Extension Option, the Third Extension Option, and the Fourth Extension Option in
accordance with the terms and conditions of this Agreement, TPG shall have one
option (the "Fifth Extension Option") to extend the Outside Date from February
2, 1998 to February 27, 1998, which Fifth Extension Option must be exercised, if
at all, in accordance with the following conditions: (i) written notice of the
exercise of the Fifth Extension Option must be delivered in accordance with the
notice provisions of this Agreement to KILICO not more than twenty five (25) and
not less than fifteen (15) days prior to February 2, 1998; (ii) that written
notice must be accompanied by an option fee (an "Extension Option Fee") in the
form of a certified check payable to KILICO or a wire transfer to an account
designated by KILICO in the amount of Three Hundred Thousand Dollars ($300,000);
(iii) TPG must have exercised the First Extension Option, the Second Extension
Option, the Third Extension Option, and the Fourth Extension Option in
accordance with the terms and conditions of this Agreement; (iv) TPG must have
exercised an option under the Triad Agreement to extend the date of the Triad
Closing to February 27, 1998; and (v) the Fifth Extension Option may not be
exercised if any of the Prime Parties are then in default under this Agreement.
Section 6 Conditions To The Debt Interest Closing.
6.1 The transfer of the Subordinate Debt Interests at the Debt Interest
Closing shall accomplished by the following documents: the Subordinate Note
shall be transferred by an Allonge in the form attached hereto as Exhibit A-1;
the KILICO/FKLA Subordinate Mortgage and the interests of KILICO and FKLA under
the other Subordinate Loan Documents shall be transferred by a General
Assignment in the form attached hereto as Exhibit A-2. The transferee shall be
TPG or such Prime Affiliate as TPG may identify in the Option Notice. In all
cases, such transfer documents shall be accompanied by the original document
being so transferred.
6
6.2 The following are additional conditions to the obligations of
KILICO/FKLA to transfer the Subordinate Debt Interests to TPG or to the Prime
Affiliate designated by TPG:
A. on or before the Debt Interest Closing, TPG shall cause all
outstanding amounts due under or secured by the Construction Loan Documents
to be paid or released in full;
B. on or before the Debt Interest Closing, TPG shall cause all
outstanding amounts due under or secured by the KILICO/FKLA Loan Documents
to be paid in full;
C. at the Debt Interest Closing, TPG and the TPG affiliate which
holds interests in Borrower (and if Borrower shall no longer be the
beneficial owner of the Premises, then the TPG affiliate which holds
interests in Borrower's successor in interest as beneficial owner of the
Premises) shall execute and deliver to each of the Xxxxxx Parties an
Indemnity Agreement in the form attached hereto as Exhibit B pursuant to
which TPG and such TPG affiliate will jointly and severally indemnify,
defend, protect and hold each of the Xxxxxx Parties harmless from certain
obligations described in that Indemnity Agreement;
D. at the Debt Interest Closing, TPG and the Borrower shall execute
and deliver to each of the Xxxxxx Parties an Environmental Indemnity
Agreement in the form attached hereto as Exhibit F;
E. at the Debt Interest Closing, TPG must pay to KILICO and FKLA or
to Xxxxxxx Sachs (at the direction of KILICO/FKLA) the amount of any
breakage costs which KILICO and FKLA would be obligated to pay by reason of
the termination of a counter swap agreement between Xxxxxxx Xxxxx and
KILICO/FKLA pursuant to that agreement identified on Schedule A as the
"Goldman Swap Confirmation;"
F. prior to the Debt Interest Closing, TPG must have exercised the
Partnership Option, and at the Debt Interest Closing, TPG or a Prime
Affiliate must acquire the interests defined in the Partnership Option
Agreement as the "Option Interests," assuming compliance with KRC of its
obligations under the Partnership Option Agreement;
G. concurrently with the acquisition of such Option Interests, TPG,
the Borrower, and the Prime Parties must execute and deliver the releases
identified in Section 7 below as the "Prime Releases," subject to the
concurrent delivery by the Xxxxxx Parties of the releases identified in
Section 7 below as the "Xxxxxx Releases;"
H. at the Debt Interest Closing, the party acquiring the Subordinate
Debt Interests must release KRC from liability under the Subordinate Loan
Documents in a manner reasonably satisfactory to KRC;
7
I. TPG must have obtained the consent of LMCC to the
transfer of the Subordinate Debt Interests, if in the judgment of
KILICO/FKLA that consent is required under the Subordinate Loan
Documents or under any participation agreement between LMCC and KILICO
and FKLA regarding the Subordinate Note; under no circumstances shall
either KILICO, FKLA, or any Xxxxxx Party be required to provide LMCC
with an indemnity or other financial undertaking regarding the
Subordinate Loan Documents, the Borrower, or the Project (as defined
in the Partnership Agreement) as a condition to the transfer of the
Subordinate Debt Interests;
J. TPG and the other Prime Parties must confirm at the Debt
Interest Closing the continuing truth and accuracy of the warranties
and representations made by such parties in this Agreement by
executing and delivering the Confirmation of Warranties attached to
this Agreement as Exhibit A-3; and
K. At the Debt Interest Closing, TPG shall pay or shall
cause to be paid to KILICO/FKLA the Subordinate Debt Price, with that
payment to be made concurrently with the transfer of the Subordinate
Debt Interests to TPG or to the Prime Affiliate designated by TPG;
concurrently with the payment of the Subordinate Debt Price, KILICO
shall pay to TPG the amount of the Extension Option Fee Credit. All
amounts to be paid at the Debt Interest Closing must be paid in
certified funds or by electronic wire transfer funds to an account
designated by the payee.
Section 7 Releases And Indemnities.
----------------------------------
7.1 The Xxxxxx Parties agree to execute and deliver to Borrower and
the Prime Parties at the Debt Interest Closing releases in the form attached
hereto as Exhibit C-1 of the following obligations (the "Xxxxxx Releases"):
A. Releases of the Borrower, the Prime Parties and their
respective shareholders, partners, officers, directors, affiliates,
agents and representatives from any and all Claims (as defined on
Schedule A) for matters occurring prior to the date of the Debt
Interest Closing which are related to the Property, the Borrower, the
Construction Loan Documents and the loan evidenced thereby, the
KILICO/FKLA Loan Documents and the loan evidenced thereby, and the
Subordinate Loan Documents and the Loan evidenced thereby, including
any rights of contribution with respect to the Borrower which KRC may
have against TPG either under Illinois law or under the Partnership
Agreement, and excepting from the scope of such Releases any matters
covered by any indemnity agreements made by Borrower or the Prime
Parties which will survive the Closing.
7.2 TPG agrees to execute and deliver and to cause the Borrower and
the other Prime Parties to execute and deliver to the Xxxxxx Parties at the Debt
Interest Closing releases in the form attached hereto as Exhibit C-2 of the
following obligations (the "Prime Releases"):
8
A. Releases of the Xxxxxx Parties and their respective
shareholders, partners, officers, directors, affiliates, agents and
representatives from any and all Claims for matters occurring prior to
the date of the Debt Interest Closing which are related to the
Property, the Borrower, the Construction Loan Documents and the loan
evidenced thereby, the KILICO/FKLA Loan Documents and the loan
evidenced thereby, and the Subordinate Loan Documents and the Loan
evidenced thereby, including any rights of contribution with respect to
the Borrower which TPG may have against KRC either under Illinois law
or under the Partnership Agreement.
7.3 At the Debt Interest Closing, the Xxxxxx Parties agree to execute
and deliver to the Prime Parties a certificate confirming the continuing
truth and accuracy of the warranties and representations made by such
parties in this Agreement, and if such warranties and representations are no
longer true, stating in what respects the warranties and representations are
no longer true, all in the form attached hereto as Exhibit A-3. At the Debt
Interest Closing, the Prime Parties agree to execute and deliver to the
Xxxxxx Parties a certificate confirming the continuing truth and accuracy
of the warranties and representations made by such parties in this
Agreement, and if such warranties and representations are no longer true,
stating in what respects the warranties and representations are no longer
true, all in the form attached hereto as Exhibit A-3.
7.4 KILICO and FKLA hereby waive any rights which they may have to
consent to the transfer by LMCC concurrently with or after the Debt Interest
Closing of any interest held by LMCC under the Subordinate Loan Documents to
TPG or a Prime Affiliate.
Section 8 Change In Partner Status; Authority To Sell The Project.
------------------------------------------------------------------
8.1 TPG agrees that, upon occurrence of a Debt Interest Default, KRC
shall have the right, exercisable in its sole discretion, to cause the
general partner interest held by TPG in the Borrower to be converted to a
limited partnership interest in the Borrower. Concurrently with the
execution and delivery of this Agreement, TPG shall execute and deliver to
KRC an Amended Certificate Of Limited Partnership instrument in the form
attached hereto as Exhibit H-1 evidencing the conversion of the general
partnership interest of TPG in the Borrower to a limited partnership
interest in the Borrower. KRC will retain that Amended Certificate Of
Limited Partnership and will not record or file the same unless a Debt
Interest Default shall have occurred.
8.2 TPG agrees that, upon occurrence of a Debt Interest Default, then
KRC shall have the right, exercisable in its sole discretion, to cause TPG,
in its capacity as a general partner of the Borrower, to be classified as an
"Inactive Partner" under the Partnership Agreement; provided, however, that
such classification, in and of itself, shall not be construed to be evidence
that TPG is in default of any of its obligations under the Partnership
Agreement. Concurrently with the execution and delivery of this Agreement,
TPG shall execute and deliver to KRC an instrument in the form attached
hereto as Exhibit H-2 pursuant to which TPG shall grant to KRC
9
all necessary power and authority to accomplish the matters described in
this Section upon occurrence of a Debt Interest Default; KRC shall hold
this instrument and shall not record it unless and until a Debt Interest
Default occurs. If the Debt Interest Closing occurs, this instrument shall
be returned to TPG.
8.3 TPG, PGLP, and K/77 agree that, upon occurrence of a Debt
Interest Default, then KRC shall have the rights, which shall be exercisable
in the sole discretion of KRC, (a) to cause the Borrower to sell the Project
on such terms and conditions as KRC may deem advisable, including for a
price equal to or less than the sum of the outstanding amounts due under the
Construction Loan Documents and the KILICO/FKLA Loan Documents; or (b) to
cause the Borrower to refinance the Project or to renegotiate the terms of
the Construction Loan Documents or the KILICO/FKLA Loan Documents. TPG,
PGLP, and K/77 agree that any such sale, refinancing, or renegotiating may
be conducted with no requirement of consent from any other partner in the
Borrower, including TPG in its capacity as either a general partner or as a
limited partner, and including K/77 in its capacity as a limited partner.
TPG, PGLP, and K/77 agree that any actions taken by KRC in exercise of its
rights under this Section shall be deemed to be "Approved by the General
Partners" within the meaning of the Partnership Agreement. TPG, PGLP, and
K/77 agree to execute such further documents and instruments as KRC may
reasonably require to evidence and confirm their undertakings and agreements
under this Section.
8.4 In the event KRC elects to obtain formal approval from the
Administrative Agent of any matters regarding the Borrower or the
Partnership Agreement, TPG will cooperate with KRC in seeking such
approval.
Section 9 Representations And Warranties; Indemnity.
----------------------------------------------------
9.1 KILICO and FKLA jointly and severally warrant and represent to
TPG that KILICO and FKLA are the record owners of the KILICO/FKLA Loan
Documents and that KILICO and FKLA own record title to the KILICO/FKLA Loan
Documents free and clear of all claims, liens, charges, security interests
and encumbrances, subject to the Intercreditor Agreement dated as of March
14, 1991 made by the Administrative Agent, KILICO/FKLA, and with Consent
executed by the Borrower.
9.2 KILICO and FKLA jointly and severally warrant and represent to
TPG that KILICO and FKLA are the record owners of the Subordinated Loan
Documents and that KILICO and FKLA own record title to the Subordinated
Loan Documents free and clear of all claims, liens, charges, security
interests and encumbrances, subject to: (a) the interests of LMCC as a
participant in the Subordinated Note and to the interests of persons
claiming through LMCC, if any, and subject to: (b) the Subordination
Agreement dated as of March 14, 1991 made by the Administrative Agent,
KILICO/FKLA, and with Consent executed by the Borrower; KILICO and FKLA
jointly and severally warrant and represent to TPG that KILICO and FKLA are
the record and beneficial owners of the Subordinated Debt Interests, and
that they own the
10
Subordinate Debt Interests free and clear of all claims, liens, charges,
security interests and encumbrances.
9.3 Borrower hereby represents and warrants to KILICO and FKLA as
follows, with the agreement of KILICO and FKLA that such representations
and warranties are made to the best of Borrower's knowledge and subject to
any and all provisions in the respective documents limiting recourse
against Borrower, TPG, KRC, the partners in Borrower, and/or other persons
or entities otherwise entitled under those documents to protection from
recourse by KILICO or FKLA:
A. The Building Loan Agreement, the Construction Note, and
the Construction Loan Documents are in full force and effect, are
enforceable according to their terms (subject to laws affecting the
exercise of creditors' rights and subject to principles affecting the
exercise of equitable remedies), and are subject to no defenses of any
kind of which Borrower has knowledge. All representations and
warranties contained in the Construction Loan Documents (but not
including representations and warranties of which KRC, KILICO, FKLA,
or any other Xxxxxx Party is the subject) are true and correct in all
material respects as of the date of this Agreement, except as
otherwise disclosed to KRC, KILICO, FKLA, or any of their
representatives.
B. The KILICO/FKLA Standby Note, the KILICO/FKLA First Mortgage,
and the KILICO/FKLA Loan Documents are in full force and effect, are
enforceable according to their terms (subject to laws affecting the
exercise of creditors' rights and subject to principles affecting the
exercise of equitable remedies), and are subject to no defenses of any
kind of which Borrower has knowledge. All representations and
warranties contained in the KILICO/FKLA Loan Documents (but not
including representations and warranties of which KRC, KILICO, FKLA,
or any other Xxxxxx Party is the subject) are true and correct in all
material respects as of the date of this Agreement, except as
otherwise disclosed to KRC, KILICO, FKLA, or any of their
representatives.
C. The Subordinate Note, the KILICO/FKLA Subordinate Mortgage,
and the Subordinate Documents are in full force and effect, are
enforceable according to their terms (subject to laws affecting the
exercise of creditors' rights and subject to principles affecting the
exercise of equitable remedies), and are subject to no defenses of any
kind of which Borrower has knowledge. All representations and
warranties contained in the Subordinate Loan Documents (but not
representations and warranties of which KRC, KILICO, FKLA, or any
other Xxxxxx Party is the subject) are true and correct in all
material respects as of the date of this Agreement, except as
otherwise disclosed to KRC, KILICO, FKLA, or any of their
representatives.
9.4 The Prime Parties jointly and severally warrant and represent to
the Xxxxxx Parties that, to the best knowledge of TPG, as of the date of
this Agreement, none of the Prime
11
Parties have any claims, charges, suits or rights of action against any of the
Xxxxxx Parties with respect to the Premises, the Borrower, the Construction Loan
Documents, the Loans (as defined in the Standby Loan Agreement), the KILICO/FKLA
Loan Documents, or the Subordinate Loan Documents; provided, however, that the
foregoing shall not, in any way, affect the obligations of the Xxxxxx Parties
under or with respect to the Construction Loan Documents, the Loans (as defined
in the Standby Funding Agreement), the KILICO/FKLA Loan Documents, the
Subordinate Loan Documents, this Agreement, the Partnership Option Agreement, or
the Partnership Agreement (as defined in Schedule A).
9.5 TPG warrants and represents to KRC that the Partnership Option
Agreement remains in full force and effect, is enforceable against TPG according
to its terms (subject to laws affecting the exercise of creditors' rights and
subject to principles affecting the exercise of equitable remedies), and is
subject to no defenses of any kind of which TPG has knowledge.
9.6 KRC warrants and represents to TPG that the Partnership Option
Agreement remains in full force and effect, is enforceable against KRC according
to its terms (subject to laws affecting the exercise of creditors' rights and
subject to principles affecting the exercise of equitable remedies), and is
subject to no defenses of any kind of which KRC has knowledge. All
representations and warranties made by KRC in the Partnership Option Agreement
are true and correct as of the date of this Agreement.
9.7 Each Party to this Agreement (each a "Warranting Party")
represents and warrants to the other parties to this Agreement that: (i) the
execution, delivery and performance of this Agreement by such Warranting Party
has been duly and validly authorized by all necessary corporate or partnership
action of such Warranting Party; (ii) this Agreement has been duly executed and
delivered by an officer, partner or authorized representative or agent of such
Warranting Party; (iii) such Warranting Party has not engaged or retained any
broker or agent in connection with any of the transactions contemplated by this
Agreement, unless such Warranting Party intends to be responsible for all costs
and expenses which may be required to be paid to such broker or agent; (iv)
assuming due authorization, execution, and delivery by the other parties hereto,
this Agreement constitutes a legal, valid and binding obligation of such
Warranting Party, enforceable against it in accordance with the terms hereof
(subject to laws affecting the exercise of creditors' rights and subject to
principles affecting the exercise of equitable remedies).
9.8 Each Warranting Party agrees to indemnify, defend, protect and
hold harmless the other parties to this Agreement and their respective officers,
directors, shareholders, and employees and the successors and assigns of any of
them (collectively referred to as the "Indemnitees") from and against: (i) any
Claim incurred by or asserted against any Indemnitee as a result of a breach of
any warranty or representation made in this Agreement by such Warranting Party
to such Indemnitee; and (ii) all Expenses (as defined below) which any
Indemnitee may be required to pay in connection with any matter which is the
subject of the indemnity contained in clause (i) above.
12
9.9 As used in this Agreement, the phrases "of which TPG has
knowledge," "the best knowledge of TPG," of which Borrower has knowledge," and
"the best knowledge of Borrower," shall mean the actual knowledge of the
following persons and shall not mean or include knowledge of any facts,
circumstances or conditions which would be deemed to be imputed to TPG or
Borrower or of which TPG or Borrower could be said to have constructive
knowledge: Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxx, and
Xxxxxxx X. Xxxxx. As used in this Agreement, the phrase "of which KRC has
knowledge" shall mean the actual knowledge of the following persons and shall
not mean or include knowledge of any facts, circumstances or conditions which
would be deemed to be imputed to KRC or of which KRC could be said to have
constructive knowledge: Xxxxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxxxx, and Xxxxxxx X. Xxxxxxxx.
Section 10 Additional Matters.
-------------------------------
10.1 Concurrently with the execution and delivery of this Agreement,
TPG shall execute and deliver to KILICO and FKLA a Springing Guaranty in the
form attached hereto as Exhibit E, and KILICO and FKLA shall return to TPG that
Springing Guaranty which was delivered by TPG to KILICO and FKLA concurrently
with the execution and delivery of the Original Agreement, which original
Springing Guaranty shall be marked "Cancelled."
10.2 Concurrently with the execution and delivery of this Agreement,
TPG and KRC shall execute and deliver that Second Amendment To Option To
Purchase Partnership Interests in the form attached hereto as Exhibit G (the
"Option Amendment"), which Option Amendment shall amend the Partnership Option
Agreement to provide that the Partnership Option must be exercised, if at all,
no later than the fifth (5th) business day prior to the Debt Interest Closing to
provide that the closing of the transfer of the Option Interests must occur no
later than the Outside Date, as the same may be extended under the terms of this
Agreement, and to provide that the Debt Interest Closing is a condition to the
closing of the transfer of the Option Interests.
10.3 In the event that the Borrower files a petition under the Title
11 of The United States Code (the "Bankruptcy Code") or under any other similar
federal or state law, the Borrower unconditionally and irrevocably agrees that
the KILICO/FKLA shall be entitled, and the Borrower hereby unconditionally and
irrevocably consents, to relief from the automatic stay so as to allow the
KILICO/FKLA to exercise its rights and remedies under the KILICO/FKLA Loan
Documents or the Subordinate Loan Documents with respect to the Project,
including taking possession of the Project, collecting rents, foreclosing its
mortgage liens or otherwise exercising its rights and remedies with respect to
the Project. In such event, the Borrower hereby agrees that it shall not, and
TPG, K/77, and PGLP agree that they shall not, in any manner, oppose or
otherwise delay any motion filed by the KILICO/FKLA for relief from the
automatic stay. KILICO/FKLA's enforcement of the right granted herein for relief
from the automatic stay is subject to the approval of the bankruptcy court in
which the case is then pending.
13
Section 11 Notices. Any notice required or permitted under this
Agreement shall be in writing and shall be given by: (a) personal service; (b)
Federal Express, Airborne Express, or DHL; or (c) U.S. certified mail, return
receipt requested, with postage prepaid, and shall be deemed effective in the
case of either (a) or (b) upon receipt of delivery or upon refusal to accept
delivery; and in the case of (c) three (3) business days after mailing. Any such
notice shall be delivered to the parties to this Agreement at the following
addresses or at such other addresses as one party may from time to time give to
the other parties in writing:
If to any of the Xxxxxx Parties or to Borrower or K/77:
c/o ZKS Real Estate Partners LLC
000 X. Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
with a copy to:
Zurich Xxxxxx Life Companies
c/o ZKS Real Estate Partners LLC
000 X. Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
with a copy to:
Xxxxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx
If to any of the Prime Parties or to Borrower or K/77:
c/o The Prime Group, Inc.
00 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
The Prime Group, Inc.
00 X. Xxxxxx Xxxxx
Xxxxx 0000
00
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Section 12 Miscellaneous.
-------------------------
12.1 All agreements, covenants, representations, warranties and other
provisions of this Agreement shall survive the Debt Interest Closing.
12.2 This Agreement shall be governed by the laws of the State of Illinois,
without reference to its conflicts of law or choice of law rules.
12.3 The terms and provisions of this Agreement shall be binding on the
successors and assigns of the parties hereto. The Prime Parties shall have the
right to designate a Prime Affiliate to take title to any interest which TPG may
be entitled to acquire under this Agreement; provided, however, float none of
the Prime Parties shall have any other right to assign any portion of their
respective interests under this Agreement without the prior written consent of
KILICO and FKLA.
12.4 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. It shall not be necessary that any single
counterpart of this Agreement be executed by all of the parties hereto, so long
as each of such parties shall have executed the same or any other separate
counterpart hereof.
12.5 As used herein, the terms (i) "person" shall mean an individual, a
corporation, a partnership, a joint venture, a limited liability company, an
unincorporated organization, or a governmental body; (ii) "including" shall mean
including, without limiting the generality of the foregoing; and (iii) the
singular shall include the plural, and vice versa.
12.6 If any provision of this Agreement should be found to be invalid,
void, or unenforceable, then it is the intent of the parties hereto that the
remainder of this Agreement be enforced to the fullest extent possible in
accordance with the intentions of the parties.
12.7 Time is of the essence of this Agreement.
12.8 Each party to this Agreement waives any right to recover any
consequential or punitive damages from another party in connection with such
party's liabilities under this Agreement or under any document or instrument to
be delivered at the Debt Interest Closing, or otherwise pursuant hereto.
12.9 As used herein, the term "business day" shall mean any day on which
KILICO is open for business at its principal office in Long Grove, Illinois.
15
12.10 The Xxxxxx Parties and the Prime Parties shall each pay their own
attorneys' fees and expenses and other costs and expenses which have been or may
be incurred in connection with the preparation and negotiation of this Agreement
and the closing of the transactions contemplated by this Agreement.
12.11 The parties to this Agreement will execute and deliver such other
documents and instruments as may be reasonably requested by any other party to
cause, effect, accomplish, or evidence any of the transactions contemplated by
this Agreement.
12.12 For purposes of determining the beneficial owner of the Premises, as
that phrase is used in Section 6.2 of this Agreement, if title to the Premises
is held by a land trustee at any time, the beneficiary of that land trust shall
be deemed to be the "beneficial owner" of the Premises. If title to the Premises
is not held by a land trustee, the record owner of title to the Premises shall
be deemed to be the "beneficial owner of the Premises.
(Signature Page Follows)
16
In Witness Whereof, the parties hereto have caused this Agreement to be
executed and delivered the day and year first above written.
XXXXXX INVESTORS LIFE INSURANCE
COMPANY, an Illinois insurance
corporation
By: /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxxxxx
-----------------------------
Title: AUTHORIZED SIGNATORY
----------------------------
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
-----------------------------
Title: AUTHORIZED SIGNATORY
----------------------------
FEDERAL XXXXXX LIFE ASSURANCE
COMPANY, an Illinois insurance
corporation
By: /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxxxxx
-----------------------------
Title: AUTHORIZED SIGNATORY
----------------------------
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
-----------------------------
Title: AUTHORIZED SIGNATORY
----------------------------
KILICO REALTY CORPORATION, an Illinois
corporation
By: /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxxxxx
-----------------------------
Title: PRESIDENT
----------------------------
17
FKLA REALTY CORPORATION, an Illinois
corporation
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
---------------------------------------
Title: PRESIDENT
--------------------------------------
KR 77 FITNESS CENTER, INC., a Delaware
corporation
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
---------------------------------------
Title: PRESIDENT
--------------------------------------
77 WEST XXXXXX LIMITED PARTNERSHIP,
an Illinois limited partnership
By: THE PRIME GROUP, INC., an Illinois
corporation, a general partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------
Title: PRESIDENT
--------------------------------
By: KILICO REALTY CORPORATION, an
Illinois corporation, a general partner
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxxx Xxxxxxxx
---------------------------------
Title: PRESIDENT
--------------------------------
18
K/77 INVESTORS LIMITED PARTNERSHIP, an
Illinois limited partnership
By: KILICO REALTY CORPORATION, an
Illinois corporation, a general partner
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
---------------------------------------
Title: PRESIDENT
-------------------------------------
THE PRIME GROUP, INC., an Illinois
corporation, a general partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------------
Title: PRESIDENT
--------------------------------------------
PRIME GROUP LIMITED PARTNERSHIP, an
Illinois limited partnership
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: General Partner
PRIME 77 FITNESS CENTER, INC., an Illinois
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------------
Title: PRESIDENT
--------------------------------------------
19
Schedule A
----------
Definitions
-----------
As used herein, the following terms shall have the following meanings assigned
to them:
1997 SFA Advances: As defined in Section 3.1 of this Agreement.
Administrative Agent: The Bank of Montreal, Chicago Branch.
Agreement: This Amended And Restated Agreement made by
KILICO, FKLA, KRC, FRC, K/77, TPG, Prime
Fitness and PGLP.
Bankruptcy Code: As defined in Section 10.3 of this Agreement.
Borrower: 77 West Xxxxxx Limited Partnership, an
Illinois limited partnership
Building Loan Agreement: As defined in Recital B to this Agreement.
Claim: Any claim, suit, charge, loss liability, cost,
damages, or expense.
Construction Guarantees: As defined in Recital E to this Agreement.
Construction Loan Documents: As defined in Recital C to this Agreement.
Construction Note: As defined in Recital C to this Agreement.
Co-Agents: As defined in Recital B to this Agreement.
Credit Amount: As defined in Section 3.1 of this Agreement.
Debt Interest Closing: As defined in Section 4 of this Agreement.
Debt Interest Default: The failure of the Debt Interest Closing
to occur on or before the Outside Date for
any reason other than a default by KILICO,
FKLA, KRC OR K/77 under this Agreement.
Expenses: Any and all reasonable expenses incurred in
connection relating to, or arising out of, any
claim,
Schedule A Page-1
action, suit or proceeding incident to any
matter which is the subject of an indemnity
under this Agreement (including, without
limitation, court filing fees, court costs,
arbitration fees or costs, witness fees,
investigators, expert witnesses,
accountants, attorneys, and other
professionals, and the allocated cost of in-
house attorneys used in lieu of outside
counsel).
Extension Option Fee: As defined in Sections 5.1, 5.2, 5.3, 5.4,
and 5.5 of this Agreement.
Extension Option Fee Credit: As defined in Section 3.1 of this Agreement.
Fifth Extension Option: As defined in Section 5.5 of this Agreement.
First Extension Option: As defined in Section 5.1 of this Agreement.
Fourth Extension Option: As defined in Section 5.4 of this Agreement.
FKLA: Federal Xxxxxx Life Assurance Company, an
Illinois insurance corporation.
FRC: FKLA Realty Corporation, an Illinois
corporation.
Xxxxxxx Sachs: Xxxxxxx Xxxxx Capital Markets, X.X.
Xxxxxxx Swap Confirmation: That Revised Confirmation dated August 6,
1992 made by Xxxxxxx Xxxxx to KILICO
identified as Ref. No.: NYUSS920705 (95004)
and that Revised Confirmation dated August
5, 1992 made by Xxxxxxx Sachs to FKLA
identified as Ref. No.: NYUSS920706 (95004).
Indemnitee: As defined in Section 9.8 of this Agreement.
K/77: K/77 Investors Limited Partnership, an
Illinois limited partnership.
Xxxxxx Parties: KILICO, FKLA, KRC, FRC, and KR Fitness.
Xxxxxx Releases: As defined in Section 7.1 of this Agreement.
Schedule A Page-2
KILICO: Xxxxxx Investors Life Insurance Company, an
Illinois insurance corporation.
KILICO/FKLA: KILICO and FKLA, jointly and severally.
KILICO/FKLA First Mortgage: As defined in the Standby Funding
Agreement.
KILICO/FKLA Loan Documents: As defined in Recital D to this Agreement.
KILICO/FKLA Standby Note: As defined in the Standby Funding Agreement.
KILICO/FKLA Subordinate Mortgage: As defined in Recital F to this Agreement.
KRC: KILICO Realty Corporation, an Illinois
corporation.
KR Fitness: KR 77 Fitness Center, Inc., a Delaware
corporation.
LMCC: Lumbermens Mutual Casualty Company, an
Illinois mutual insurance company.
Option: As defined in Section 2 of this Agreement.
Option Amendment: As defined in Section 10.3 of this
Agreement.
Option Interests: As defined in the Partnership Option
Agreement.
Option Notice: As defined in Section 4 of this Agreement.
Outside Date: As defined in Section 2 of this Agreement.
Partnership Agreement: That Third Amended And Restated Agreement Of
Limited Partnership Of 77 West Xxxxxx
Limited Partnership dated as of March 14,
1991, as amended from time to time.
Partnership Option Agreement: As defined in Recital H to this
Agreement.
Partnership Option: As defined in Recital H to this Agreement.
PGLP: Prime Group Limited Partnership, an Illinois
limited partnership.
Schedule A Page-3
Premises: As defined in Recital A to this Agreement.
Prime Affiliate: Any entity in which TPG or any person or
entity controlling, controlled by or under
common control with TPG has an economic or
ownership interest.
Prime Fitness: Prime 77 Fitness Center.
Prime Parties: TPG, PGLP, and Prime Fitness.
Prime Releases: As defined in Section 7.2 of this
Agreement.
Project: As defined in the Partnership Agreement.
Second Extension Option: As defined in Section 5.2 of this
Agreement.
Standby Funding Agreement: As defined in Recital D to this Agreement.
Subordinate Debt Price: The price for the Subordinate Debt
Interests, computed as provided in
Section 3.2 or Section 3.3 of this
Agreement.
Subordinate Debt Interests: As defined in Section 2 of this Agreement.
Subordinate Environmental
Indemnity: That Environmental Indemnity Agreement
dated as of March 14, 1991 made by TPG and
KILICO/FKLA.
Subordinate Funding Agreement: As defined in Recital F to this
Agreement.
Subordinate Loan Documents: The Subordinate Funding Agreement, the
Subordinate Note, the KILICO/FKLA
Subordinate Mortgage, all documents
defined in the Subordinate Funding
Agreement as KILICO/FKLA Loan Documents,
the Subordination and Forbearance
Agreement, dated as of June 17, 1994, but
made effective as of March 22, 1994, among
TPG, Prime Fitness, PGLP, KILICO, FKLA,
KRC, FRC and KR Fitness, the Agreement
Regarding Sharing of Proceeds and
Receipts, dated as of November 13, 1991,
among TPG, KRC, KILICO and FKLA, as
amended by Amendment to Agreement
Regarding
Schedule A Page-4
Sharing of Proceeds and Receipts, dated as
of June 17, 1994, but made effective as of
March 22, 1994, among TPG, KRC, KILICO,
FKLA and FRC, the Security Agreement - 77
West Xxxxxx Limited Partnership (Sharing
Agreement), dated as of November 13, 1991,
among TPG, KRC, KILICO and FKLA, as
amended by Amendment to Security
Agreement - 77 West Xxxxxx Limited
Partnership (Sharing Agreement), dated as
of June 17, 1994, but made effective as of
March 22, 1994, among TPG, KILICO, FKLA,
KRC and FRC, and the Amended and Restated
Security Agreement, dated as of June 17,
1994, but made effective as of March 22,
1994, among TPG, KILICO and FKLA.
Subordinate Note: As defined in Recital F to this Agreement.
Third Extension Option: As defined in Section 5.3 of this
Agreement.
TPG: The Prime Group, Inc., an Illinois
corporation.
Triad Agreement: That certain letter agreement dated July
__, made between KILICO, KRC, KFC
Portfolio Corp., a Delaware corporation,
and TPG providing for the sale and
purchase of the interests held by KILICO,
KRC, and KFC Portfolio Corp. in Triad
Development Company and other related
entities.
Triad Closing: The event defined as the "Closing" under
the Triad Agreement.
Warranting Party: As defined in Section 9.7 of this
Agreement.
Schedule A Page-5
EXHIBIT A
---------
THE TRANSFER INSTRUMENTS
------------------------
A-1
EXHIBIT A-1
-----------
ALLONGE TO SUBORDINATE NOTE
---------------------------
This Allonge To Note (the "Allonge") is made to that certain Note dated
March 7, 1991 made by 77 West Xxxxxx Limited Partnership, an Illinois limited
partnership, in favor of Xxxxxx Investors Life Insurance Company, an Illinois
insurance corporation ("KILICO") and Federal Xxxxxx Life Assurance Company, an
Illinois insurance corporation ("FKLA") in the principal amount of Sixty Million
Dollars ($60,000,000.00) (the "Note").
Pay to the order of _______________ without recourse to the endorser. This
Allonge is made without recourse and without representation or warranty of any
kind, whether express or implied, except as expressly provided to the contrary
in that Amended And Restated Agreement dated July 15, 1997 made by KILICO, FKLA,
KILICO Realty Corporation, an Illinois corporation, FKLA Realty Corporation, an
Illinois corporation, KR 77 Fitness Center, Inc., a Delaware corporation, 77
West Xxxxxx Limited Partnership, an Illinois limited partnership, K/77 Investors
Limited Partnership, an Illinois limited partnership, The Prime Group, Inc.,
Prime Group Limited Partnership, and Prime Fitness Center, Inc.
Dated:
-------------------------
XXXXXX INVESTORS LIFE INSURANCE COMPANY,
an Illinois insurance corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
A-1-1
FEDERAL XXXXXX LIFE ASSURANCE COMPANY, an
Illinois insurance corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
X-0-0
XXXXXXX X-0
-----------
ASSIGNMENT INSTRUMENT
---------------------
A-2-1
This document prepared
by and after recording
return to:
Xxxxxxx Xxxxxxxx, Esq.
Xxxxxxx & Xxxxx This space reserved for Recorder's use only.
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx
00000-0000
GENERAL ASSIGNMENT
------------------
KNOW ALL PEOPLE BY THESE PRESENTS, that Xxxxxx Investors Life Insurance
Company, an Illinois insurance corporation and Federal Xxxxxx Life Assurance
Company, an Illinois insurance corporation (collectively, "Assignor"), 000 X.
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, in consideration of Ten and No/100
Dollars ($10.00) in lawful money of the United States, and for other good and
valuable consideration, the receipt whereof is hereby acknowledged, by these
presents does sell, assign, transfer and set over, unto ______, a(n)______
______("Assignee"), and its successors and assigns, to their own proper use and
benefit, any and all of Assignor's right, title and interest in and to each of
the documents listed on Exhibit A attached hereto and by this reference
incorporated herein (the "Documents"), without recourse, representation and
warranty of any kind, except as provided in that certain Amended And Restated
Agreement ("Agreement") dated July 15, 1997, by and among Xxxxxx Investors Life
Insurance Company, an Illinois insurance corporation, Federal Xxxxxx Life
Assurance Company, an Illinois insurance corporation, KILICO Realty Corporation,
an Illinois corporation ("KRC"), FKLA Realty Corporation, an Illinois
corporation, KR 77 Fitness Center, Inc., a Delaware corporation, 77 West Xxxxxx
Limited Partnership, an Illinois limited partnership, K/77 Investors Limited
Partnership, an Illinois limited partnership, The Prime Group, Inc., an Illinois
corporation, Prime Group Limited Partnership, an Illinois limited partnership
and Prime 77 Fitness Center, Inc., an Illinois corporation. The Documents relate
to the real property described on Exhibit B attached hereto and made a part
hereof.
Assignor does hereby give to Assignee, its successors and assigns, the full
power and authority for Assignee's own use and benefit, but at Assignee's sole
cost, to take all legal measures, which may be proper or necessary for the
complete recovery of the assigned property and in its name or otherwise to
prosecute and withdraw any suits or proceedings at law or in equity therefor.
IN WITNESS WHEREOF, Assignor and Assignee have caused this General
Assignment to be executed this ___ day of __________ , 1997.
ASSIGNOR
--------
XXXXXX INVESTORS LIFE INSURANCE COMPANY,
an Illinois insurance corporation
By:
--------------------------------------
Name:
------------------------------------
Its Authorized Signatory
By:
--------------------------------------
Name:
------------------------------------
Its Authorized Signatory
FEDERAL XXXXXX LIFE ASSURANCE COMPANY, an
Illinois insurance corporation
By:
--------------------------------------
Name:
------------------------------------
Its Authorized Signatory
By:
--------------------------------------
Name:
------------------------------------
Its Authorized Signatory
2
ASSIGNEE
By:
--------------------------------------
Name:
------------------------------------
Its Authorized Signatory
By:
--------------------------------------
Name:
------------------------------------
Its Authorized Signatory
3
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, ____________________, a Notary Public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY, that ___________________ and ____________
_____________, personally known to me to be Authorized Signatories of Xxxxxx
Investors Life Insurance Company, an Illinois insurance corporation, whose names
are subscribed to the within Instrument, appeared before me this day in person
and acknowledged that as such Authorized Signatories, they signed and delivered
the said Instrument as their free and voluntary act and as the free and
voluntary act and deed of said corporation, for the uses and purposes therein
set forth.
GIVEN under my hand and Notarial Seal, this ______ day of __________, 1997.
-----------------------------
Notary Public
My Commission Expires:
-----------------------------
4
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, ________________________, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY, that ___________________ and
_________________, personally known to me to be Authorized Signatories of
Federal Xxxxxx Life Assurance Company, an Illinois insurance corporation,
whose names are subscribed to the within Instrument, appeared before me this
day in person and acknowledged that as such Authorized Signatories, they
signed and delivered the said Instrument as their free and voluntary act and
as the free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
GIVEN under my hand and Notarial Seal, this __ day of _________, 1997.
____________________________________
Notary Public
My Commission Expires:
_________________________________
5
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, ________________________, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY, that ___________________ and
_________________, personally known to me to be _______________________ of
_________________________ a (n) ___________ ____________________, whose
names are subscribed to the within Instrument, appeared before me this day
in person and acknowledged that as such Authorized Signatories, they signed
and delivered the said Instrument as their free and voluntary act and as the
free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
GIVEN under my hand and Notarial Seal, this __ day of _________, 1997.
____________________________________
Notary Public
My Commission Expires:
_________________________________
6
EXHIBIT A
---------
The following terms are used with the following meanings in this
Exhibit A.
Administrative Agent: Bank of Montreal, Chicago Branch, acting in the manner
and to the extent described in Article 12 of the Building
Loan Agreement dated March 14, 1991 by and between
Borrower, the Co-Agents (as defined therein) and the
Administrative Agent.
Borrower: 77 West Xxxxxx Limited Partnership, an Illinois limited
partnership.
Prime: The Prime Group, Inc., an Illinois corporation.
KILICO/FKLA: Xxxxxx Investors Life Insurance Company, an Illinois
insurance corporation and Federal Xxxxxx Life Assurance
Company, an Illinois insurance corporation.
KILICO Realty: KILICO Realty Corporation, an Illinois corporation.
LIST OF DOCUMENTS
-----------------
A. Subordinate Mortgage Funding Agreement dated March 14, 1991 by and
among KILICO/FKLA and Borrower.
B. Subordination Agreement dated March 14, 1991 by and between KILICO/FKLA
and the Administrative Agent, with Acknowledgement and Consent executed by the
Borrower, Recorded as Document No. 91125471.
C. Note dated March 7, 1991 for up to $60,000,000.00 made by Borrower
to KILICO/FKLA.
D. Subordinate Mortgage, Security Agreement, Assignment of Leases, Rents
and Profits, Financing Statement and Fixture Filing dated March 14, 1991 made by
Borrower to KILICO/FKLA, Recorded with the Xxxx County, Illinois Recorder's
Office as Document No. 91125469.
E. Environmental Indemnity Agreement dated March 14, 1991 among Prime
and KILICO/FKLA -- Subordinate Mortgage.
A-1
F. Subordinate Assignment of Takeover Subleases dated March 14, 1991
made by Borrower to and for the benefit of KILICO/FKLA.
G. Chicago Title Insurance Company Loan Title Insurance Policy No. 72-85-
482-3 dated April 1, 1991 in the amount of $60,000,000.00 issued to KILICO/FKLA.
H. Reimbursement Agreement dated March 14, 1991 by and between KILICO
Realty and Borrower.
I. All other documents included in the definition of "Subordinate Loan
Documents" in the Agreement.
[Subject to Confirmation]
A-2
EXHIBIT B
---------
LEGAL DESCRIPTION
PARCEL 1:
LOT 3 (EXCEPT THE EAST 20.50 FEET THEREOF) TOGETHER WITH THE NORTH 1.00 FOOT OF
THE ORIGINAL 18.00 FOOT ALLEY LYING SOUTH OF AND ADJOINING THE SOUTH LINE OF
SAID XXX 0, XX XXXXX 00 XX XXX XXXXXXXX XXXX OF CHICAGO IN XXXXXXX 0, XXXXXXXX
00 XXXXX, XXXXX 00, XXXX OF THE THIRD PRINCIPAL MERIDIAN, IN XXXX COUNTY,
ILLINOIS.
AND
XXXX 0 XX 0, XXXX XXXXXXXXX, XX THE SUBDIVISION OF LOT 4 TOGETHER WITH THE NORTH
1.50 FEET OF THE ORIGINAL 18.00 FOOT ALLEY LYING SOUTH OF AND ADJOINING THE
SOUTH LINE OF SAID SUBDIVISION OF XXX 0, XX XXXXX 00 XX XXX XXXXXXXX XXXX OF
CHICAGO IN XXXXXXX 0, XXXXXXXX 00 XXXXX, XXXXX 00, XXXX OF THE THIRD PRINCIPAL
MERIDIAN, IN XXXX COUNTY, ILLINOIS.
PARCEL 2:
THAT PART OF THE WEST 1/2 OF NORTH XXXXXX COURT (SAID NORTH XXXXXX COURT BEING
THE WEST 1/2 OF LOT 2, AND THE EAST 20.50 FEET OF LOT 3, TOGETHER WITH THE NORTH
1.00 FOOT OF THE ORIGINAL 18.00 FOOT ALLEY LYING SOUTH OF AND ADJOINING THE
SOUTH LINE OF THE AFORESAID PARTS OF LOTS 2 AND 3, THE SOUTH LINE OF SAID 1.00
FOOT STRIP BEING THE NORTH LINE OF WEST XXXXXXX PLACE AS ESTABLISHED BY
ORDINANCE PASSED SEPTEMBER 17, 1852) LYING ABOVE AN INCLINED PLANE HAVING AN
ELEVATION OF +17.26 FEET ABOVE CHICAGO CITY DATUM MEASURED ALONG THE NORTH LINE
OF BLOCK 17, AND HAVING AN ELEVATION OF +21.23 FEET ABOVE CHICAGO CITY DATUM
MEASURED ALONG THE NORTH LINE OF WEST XXXXXXX PLACE, ALL IN BLOCK 17, (AS
VACATED BY THE CITY OF CHICAGO IN AN ORDINANCE PASSED MARCH 21, 1990 AND
RECORDED APRIL 11, 1990 AS DOCUMENT 90164868), IN THE ORIGINAL TOWN OF CHICAGO,
IN XXXXXXX 0, XXXXXXXX 00 XXXXX, XXXXX 00, XXXX OF THE THIRD PRINCIPAL MERIDIAN,
IN XXXX COUNTY, ILLINOIS.
PARCEL 3:
B-1
EASEMENT APPURTENANT TO AND FOR THE BENEFIT OF PARCELS 1, 2 AND 4 CREATED BY THE
GRANT OF EASEMENT RECORDED AS DOCUMENT NO. 90164870, AS AMENDED BY DOCUMENT NO.
91096330, FOR INGRESS, EGRESS, CONSTRUCTION, USE AND MAINTENANCE OF A PLAZA
WALKWAY OVER AND ACROSS:
THAT PART OF THE EAST 1/2 OF NORTH XXXXXX COURT (SAID NORTH XXXXXX COURT BEING
THE WEST 1/2 OF LOT 2, AND THE EAST 20.50 FEET OF LOT 3, TOGETHER WITH THE NORTH
1.00 FOOT OF THE ORIGINAL 18.00 FOOT ALLEY LYING SOUTH OF AND ADJOINING THE
SOUTH LINE OF THE AFORESAID PARTS OF LOTS 2 AND 3, THE SOUTH LINE OF SAID 1.00
FOOT STRIP BEING THE NORTH LINE OF WEST XXXXXXX PLACE AS ESTABLISHED BY
ORDINANCE PASSED SEPTEMBER 17, 1852); LYING ABOVE AN INCLINED PLANED HAVING AN
ELEVATION OF +17.26 FEET ABOVE CHICAGO CITY DATUM MEASURED ALONG THE NORTH LINE
OF SAID BLOCK 17, AND HAVING AN ELEVATION OF +21.23 FEET ABOVE CHICAGO CITY
DATUM MEASURED ALONG THE NORTH LINE OF WEST XXXXXXX PLACE, AND LYING BELOW AN
INCLINED PLANE HAVING AN ELEVATION OF +47.26 FEET ABOVE CHICAGO CITY DATUM
MEASURED ALONG THE NORTH LINE OF SAID BLOCK 17, AND HAVING AN ELEVATION OF
+51.23 FEET ABOVE CHICAGO CITY DATUM MEASURED ALONG THE NORTH LINE OF WEST
XXXXXXX PLACE, ALL IN BLOCK 17, IN THE ORIGINAL TOWN OF CHICAGO, IN XXXXXXX 0,
XXXXXXXX 00 XXXXX, XXXXX 00, XXXX OF THE THIRD PRINCIPAL MERIDIAN, IN XXXX
COUNTY, ILLINOIS.
PARCEL 4:
THAT PART OF WEST XXXXXXX PLACE AS ESTABLISHED BY ORDINANCE PASSED SEPTEMBER 17,
1852, TOGETHER WITH THE SOUTH 1.50 FEET OF THE ORIGINAL 18.00 FOOT ALLEY LYING
NORTH OF AND ADJOINING THE NORTH LINE OF LOT 1 IN THE ASSESSOR'S DIVISION OF XXX
0 XX XXXXX 00; ALSO, THE SOUTH 1.00 FOOT OF SAID ORIGINAL 18.00 FOOT ALLEY LYING
NORTH OF AND ADJOINING THE NORTH LINE OF LOT 6 IN BLOCK 17, ALL TAKEN AS ONE
TRACT, LYING WEST OF THE SOUTHERLY EXTENSION OF THE WEST LINE OF THE EAST 20.50
FEET OF XXX 0 XX XXXX XXXXX 00, AND LYING EAST OF THE WEST LINE OF BLOCK 17, AND
ITS EXTENSIONS, (AS VACATED BY THE CITY OF CHICAGO IN AN ORDINANCE PASSED MARCH
21, 1990 AND RECORDED APRIL 11, 1990 AS DOCUMENT 90164868), IN THE ORIGINAL TOWN
OF CHICAGO, IN XXXXXXX 0, XXXXXXXX 00 XXXXX, XXXXX 00, XXXX OF THE THIRD
PRINCIPAL MERIDIAN, IN XXXX COUNTY, ILLINOIS.
PARCEL 5:
B-2
EASEMENT APPURTENANT TO AND FOR THE BENEFIT OF PARCELS 1, 2 AND 4 CREATED BY
THE GRANT OF EASEMENT RECORDED AS DOCUMENT NO. 90164870, AS AMENDED BY DOCUMENT
NO. 91096330 FOR INGRESS, EGRESS, USE, CONSTRUCTION AND MAINTENANCE OF A PLAZA
WALKWAY OVER AND ACROSS:
THAT PART OF WEST XXXXXXX PLACE AS ESTABLISHED BY ORDINANCE PASSED SEPTEMBER 17,
1852, TOGETHER WITH THE SOUTH 1.00 FOOT OF THE ORIGINAL 18.00 FOOT ALLEY LYING
NORTH OF AND ADJOINING THE NORTH LINE OF THE WEST 1/2 OF LOT 7 AND THE NORTH
LINE OF THE EAST 20.50 FEET OF LOT 6, ALL TAKEN AS ONE TRACT LYING EAST OF THE
SOUTHERLY EXTENSION OF THE WEST LINE OF THE EAST 20.50 FEET OF XXX 0, XX XXXXX
00, XX XXX XXXXXXXX XXXX OF CHICAGO, LYING WEST OF THE SOUTHERLY EXTENSION OF
THE EAST LINE OF THE WEST 1/2 OF LOT 2 IN SAID BLOCK 17, LYING ABOVE AN INCLINED
PLANE, HAVING AN ELEVATION OF +21.23 FEET ABOVE CHICAGO CITY DATUM, MEASURED
ALONG THE NORTH LINE OF WEST XXXXXXX PLACE AFORESAID, AND HAVING AN ELEVATION OF
+21.72 FEET ABOVE CHICAGO CITY DATUM, MEASURED ALONG THE SOUTH LINE OF 18.00
FOOT ALLEY AFORESAID, AND LYING BELOW AN INCLINED PLANE, HAVING AN ELEVATION OF
+71.23 FEET ABOVE CHICAGO CITY DATUM, MEASURED ALONG THE NORTH LINE OF WEST
XXXXXXX PLACE AFORESAID, AND HAVING AN ELEVATION OF +71.72 FEET ABOVE CHICAGO
CITY DATUM, MEASURED ALONG THE SOUTH LINE OF THE ORIGINAL 18.00 FOOT ALLEY
AFORESAID, ALL IN XXXXXXX 0, XXXXXXXX 00 XXXXX, XXXXX 00, XXXX OF THE THIRD
PRINCIPAL MERIDIAN, IN XXXX COUNTY, ILLINOIS.
PARCEL 6:
SUPPORT EASEMENTS APPURTENANT TO AND FOR THE BENEFIT OF PARCELS 1, 2 AND 4 OVER
THAT PART OF XXXXXX COURT DEPICTED IN EXHIBIT "B" OF THE GRANT OF EASEMENT
RECORDED AS DOCUMENT 90164870, AS AMENDED BY DOCUMENT 91096330.
PARCEL 7:
LEASEHOLD ESTATE DESCRIBED BELOW APPURTENANT TO AND FOR THE BENEFIT OF PARCELS
1, 2 AND 4 CREATED BY LEASE DATED XXXXX 0, 0000 XX AND BETWEEN AMERICAN NATIONAL
BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE UNDER TRUST AGREEMENT DATED
NOVEMBER 26, 1985 AND KNOWN AS TRUST NO. 66121, AS LANDLORD, AND 77 WEST XXXXXX
LIMITED PARTNERSHIP, AN ILLINOIS LIMITED PARTNERSHIP, AS TENANT, (THE "AIR
RIGHTS LEASE") RECORDED AS DOCUMENT NO. 91119739:
B-3
THE PROPERTY AND SPACE WHICH LIES BETWEEN HORIZONTAL PLANES WHICH ARE +50.63
FEET AND +80.63 FEET, RESPECTIVELY ABOVE THE CHICAGO CITY DATUM, AND WHICH IS
ENCLOSED BY VERTICAL PLANES EXTENDING UPWARD FROM THE BOUNDARIES, AT THE SURFACE
OF THE EARTH, OF THAT PART OF BLOCK 17 IN THE ORIGINAL TOWN OF CHICAGO, IN THE
SOUTH EAST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, BOUNDED AND DESCRIBED AS FOLLOWS:
ALL OF SUB-LOTS 1 THROUGH 7, AND THE ALLEY IN THE ASSESSOR'S DIVISION OF XXX 0,
XX XXXXX 00 XX THE ORIGINAL TOWN OF CHICAGO. ALSO, LOT 6 (EXCEPT THE EAST 20.00
FEET THEREOF), IN BLOCK 17 IN THE ORIGINAL TOWN OF CHICAGO; ALL IN THE SOUTHEAST
1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN XXXX COUNTY, ILLINOIS.
TOGETHER WITH THE APPURTENANT RIGHTS SET FORTH AS "PARCEL B" IN EXHIBIT B TO
THE AIR RIGHTS LEASE.
Permanent Index Nos.: 00-00-000-000 through 00-00-000-000
00-00-000-000
00-00-000-000
00-00-000-000 through 00-00-000-000
Common Address: 00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
B-4
EXHIBIT A-3
-----------
CONFIRMATION OF WARRANTIES
--------------------------
A-3-1
CONFIRMATION OF WARRANTIES
--------------------------
Reference is hereby made to that Amended And Restated Agreement dated
July 15, 1997 by and among Xxxxxx Investors Life Insurance Company, an Illinois
insurance corporation, Federal Xxxxxx Life Assurance Company, an Illinois
insurance corporation, KILICO Realty Corporation, an Illinois corporation, FKLA
Realty Corporation, an Illinois corporation, KR 77 Fitness Center, Inc., a
Delaware corporation, 77 West Xxxxxx Limited Partnership, an Illinois limited
partnership, K/77 Investors Limited Partnership, an Illinois limited
partnership, The Prime Group, Inc., an Illinois corporation, Prime Group Limited
Partnership, an Illinois limited partnership and Prime 77 Fitness Center, Inc.,
an Illinois corporation (the "Agreement").
___________, a(n) ___________ ___________ ("_______") hereby
certifies, represents and warrants to ___________, a(n) ___________ ___________
(" ") that, except as otherwise set forth on Exhibit A attached hereto and
made a part hereof, all ___________ warranties and representations contained in
the Agreement are true and correct on and as of the date set forth below.
This Confirmation of Warranties has been executed and delivered
pursuant to the terms and provisions of the Agreement. All defined terms
contained in the Agreement are used in this Confirmation of Warranties with the
same meaning that such terms have in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Confirmation of
Warranties as of this ____ day of ____________, 199_.
[SIGNATURE BLOCKS TO BE ADDED]
By:
-----------------------------------
1
EXHIBIT B
---------
THE INDEMNITY
-------------
B-1
INDEMNITY AGREEMENT
-------------------
This Indemnity Agreement (this "Agreement") is made and entered into as of
the ________ day of 1997, by and among The Prime Group, Inc., an Illinois
corporation ("TPG"),______________ (the "_______________"; TPG and
____________are each referred to as an "Indemnitor" and together referred to as
"Indemnitors"), KILICO Realty Corporation, an Illinois corporation ("KRC"),
Xxxxxx Investors Life Insurance Company, an Illinois insurance corporation
("KILICO"), and Federal Xxxxxx Life Assurance Company, an Illinois corporation
("FKLA"). KILICO and FKLA are sometimes referred to herein jointly and severally
as "KILICO/FKLA", KRC, KILICO and FKLA are sometimes referred to herein
collectively as the "Indemnitees".
R E C I T A L S:
----------------
A. TPG and KRC, as general partners, and KILICO, FKLA and TPG, as
limited partners, have heretofore entered into a certain Third Amended and
Restated Agreement of Limited Partnership of 77 West Xxxxxx Limited Partnership
dated Xxxxx 00, 0000 (xx amended from time to time, the "Partnership
Agreement"), which continued the existence of 77 West Xxxxxx Limited
Partnership, an Illinois limited partnership (the "Partnership"). All defined
terms used herein and not otherwise defined herein shall have the same meaning
as they have in the Partnership Agreement.
B. In connection with the construction, development and operation of the
Project and pursuant to the Building Loan Agreement, TPG, KRC, and the
Partnership executed and delivered the Co-Agent's Environmental Indemnity
Agreements. Acting as general partners of the Partnership, and in connection
with the construction, development and operation of the Project, TPG and KRC
have incurred liability to third parties, including without limitation,
liability under the Takeover Leases and the Takeover Subleases (as those terms
are defined in the Building Loan Agreement).
C. TPG, KRC, KILICO, FKLA, FKLA Realty, KR 77 Fitness Center, Inc., a
Delaware corporation, K/77 Investors Limited Partnership, an Illinois limited
partnership, the Partnership, and Prime Group Limited Partnership, an Illinois
limited partnership, and Prime Fitness Center, Inc., an Illinois corporation
have entered into a certain Amended And Restated Agreement dated July 15, 1997
(the "Agreement") which requires, as a condition to the closing of the
transactions contemplated thereby, that Indemnitor enter into this Agreement.
NOW THEREFORE, in consideration of the mutual premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby agree to the following:
1. The Indemnitors do hereby jointly and severally, absolutely and
unconditionally, agree to indemnify, defend, protect and hold harmless KILICO,
FKLA, KRC, FKLA Realty and
their respective officers, directors, stockholders, employees, agents and
affiliates and the successors and assignees of any of them (collectively, the
"Indemnified Parties") from and against, and agree to reimburse the Indemnified
Parties upon demand for, any payment, loss, expense, liability, damage or injury
made, suffered or sustained by the Indemnified Parties, or any of them, by
reason of or arising out of any liability or obligation alleged or asserted
against any of the Indemnified Parties by a third party which is in any way
related to the Partnership, the Building Loan, the First Mortgage Loan, the Co-
Agents Environmental Indemnity Agreement, the Takeover Leases, the Takeover
Subleases, or the Project, whether arising out of any matter occurring before or
after the date hereof (all of the foregoing are referred to as "Claims"),
including, but not limited to, any judgment, award, settlement, reasonable
attorney's fees and other costs and expenses incurred in connection with the
defense of any actual or threatened action or proceeding concerning a Claim;
notwithstanding the foregoing, the term "Claim" shall not include any payment,
loss, expense, liability, damage or injury: a. resulting from a breach by KRC
of the Partnership Agreement; b. resulting from the gross negligence or willful
misconduct of any Indemnified Party; c. resulting from a breach by any
Indemnified Party of any of its obligations under the Agreement; or d. resulting
from a breach or an alleged breach by any Indemnified Party of any agreement
between an Indemnified Party and any party to the Building Loan Agreement, any
agreement between an Indemnified Party and a participant or co-lender under the
First Mortgage Funding Agreement, or any agreement between an Indemnified Party
and a participant or co-lender under the Subordinate Funding Agreement.
2. Nothing contained herein shall amend, modify, waive, annul or
terminate the indemnifications set forth in Section 6.10 of each of the
Partnership Agreement.
3. Any notice or other communication required or permitted hereunder
shall be (a)(i) in writing and shall be deemed to have been duly given (A) when
received, if delivered in person, (B) three (3) business days after deposit in a
regularly maintained receptacle of the United States mail as registered or
certified mail, first class postage prepaid, (C) the business day after notice
is sent for overnight delivery by nationally recognized overnight courier
service, or (D) on the day on which the party to whom such notice is addressed
refuses delivery by mail or by nationally recognized courier service, and (ii)
addressed as follows:
To any of the Indemnitees:
c/o Zurich Xxxxxx Life
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
With copies to:
Zurich Xxxxxx Life Companies
c/o ZKS Real Estate Partners LLC
2
000 X. Xxxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
with a copy to:
Xxxxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx
To Indemnitor:
c/o The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attn: President
With a copy to:
The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
or to any such other address as any party hereto shall designate in a written
notice to the other parties hereto.
4. Any of the Indemnitees hereunder may, at any time and from time to
time, waive or not insist on strict compliance with any one or more of the
provisions contained herein, but any such waiver or non-existence shall be
deemed to be made pursuant to the terms of said document and not in modification
thereof. Any waiver or non-insistence in any instance or under any particular
circumstance shall not be considered a waiver or non-insistence of such
provision in any other instance or any other circumstance. The remedies provided
herein shall be cumulative, may be exercised from time to time, singularly or
concurrently or in any combination, without any of the Indemnitees being
obligated to exercise any such right in any other circumstance, and are not
exclusive of any remedies provided by law.
5. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Illinois without regard to principles of conflict
of laws.
3
6. EACH PARTY TO THIS AGREEMENT WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM FILED BY ANY PARTY, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT.
7. This Agreement shall be binding upon and inure to the benefit of
each of the Indemnitors and the Indemnitees, and their respective successors and
assigns; provided, however, that neither Indemnitor may assign its duties and
obligations hereunder without the prior written consent of Indemnitees, in their
sole discretion.
8. The unenforceability or invalidity of any provision or provisions
of this Agreement shall not render any other provision or provisions herein
contained unenforceable or invalid.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date and year first above written.
INDEMNITORS:
THE PRIME GROUP, INC., an Illinois
corporation
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
77 WEST XXXXXX LIMITED PARTNERSHIP,
an Illinois limited partnership
By:
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
4
INDEMNITEES:
KILICO REALTY CORPORATION, an Illinois
corporation
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
XXXXXX INVESTORS LIFE INSURANCE COMPANY,
an Illinois insurance corporation
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
FEDERAL XXXXXX LIFE ASSURANCE CORPORATION
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
5
EXHIBIT C-1
-----------
THE XXXXXX RELEASES
-------------------
C-1-1
RELEASE AGREEMENT
THIS RELEASE AGREEMENT ("Release Agreement") is made on this ____ day
of , 1997, by and between Xxxxxx Investors Life Insurance Company, an
Illinois insurance corporation ("KILICO"); Federal Xxxxxx Life Assurance
Company, an Illinois insurance corporation ("FKLA"); KILICO Realty Corporation,
an Illinois corporation ("KRC"); FKLA Realty Corporation, an Illinois
corporation ("FRC") and KR 77 Fitness Center, Inc., a Delaware corporation ("KR
Fitness"), individually and collectively, "Releasor") and The Prime Group, Inc.,
an Illinois corporation ("TPG"); Prime Group Limited Partnership, an Illinois
limited partnership ("PGLP"), Prime 77 Fitness Center, Inc., an Illinois
corporation ("Prime Fitness"); and 77 West Xxxxxx Limited Partnership, an
Illinois limited partnership ("Borrower") (individually and collectively,
"Releasee").
W I T N E S S E T H:
WHEREAS, Prime and KRC, as general partners, and KILICO, FKLA and
Prime, as limited partners, have heretofore entered into a certain Third Amended
and Restated Agreement of Limited Partnership of 77 West Xxxxxx Limited
Partnership dated Xxxxx 00, 0000 (xx amended from time to time, the "Partnership
Agreement"), which continued the existence of 77 West Xxxxxx Limited
Partnership, an Illinois limited partnership (the "Partnership"). All defined
terms used herein and not expressly defined herein shall have the same meaning
as they have in the Partnership Agreement.
WHEREAS, Prime, KRC, KILICO, FKLA, FRC, KR Fitness, K/77 Investors
Limited Partnership, an Illinois limited partnership, the Partnership, PGLP and
Prime Fitness have entered into a certain Amended And Restated Agreement dated
as of July 15, 1997 (the "Agreement") which requires, as a condition to the
closing of the transactions contemplated thereby, that Releasor enter into this
Release Agreement.
NOW, THEREFORE, for good and valuable consideration, the adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Release. Releasor, on behalf of itself and its affiliates,
officers, directors, shareholders, partners, agents, attorneys, employees and
all of such persons' respective heirs, successors and assigns, jointly,
severally and individually hereby absolutely, unconditionally and irrevocably
releases, remises and forever discharges Releasee and its affiliates, officers,
directors, shareholders, partners, agents, attorneys, employees and all such
persons' respective heirs, predecessors, successors, assigns, present and former
shareholders, affiliates, subsidiaries, divisions, directors, officers,
attorneys, employees, agents and other representatives (Releasee together with
such related parties, called the "Released Parties") from any and all claims by
reason of or arising out of any liability or obligation alleged or asserted
against any of the Released Parties and in any way related to the Partnership,
the Building Loan, the First
Mortgage Loans, the Second Mortgage Loans, the Guaranty of Cost Overruns, the
Guaranty of Operating Deficits, the Co-Agents Environmental Indemnity
Agreement, or the Project, whether arising out of any matter occurring before or
after the date hereof ("Claim"), including, but not limited to, any claim by
Prime against KRC for contribution under the Partnership Agreement, and any
judgment, award, settlement, reasonable attorney's fees and other costs and
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim, provided that the claim, loss, expense, damage or
injury was not the result of a declared Default by Releasee under the
Partnership Agreement.
2. Non-Release of Liability under the Indemnity Agreement and the
Partnership Agreement. Anything to the contrary notwithstanding contained in
paragraph 1 herein, this Release Agreement shall in no way affect or release any
and all of Releasee's obligations or liabilities (i) under that certain
Indemnity Agreement dated as of the date hereof and attached hereto as Exhibit
A, (ii) any of Releasee's obligations under the Agreement, or (iii) for a
declared Default under the Partnership Agreement, all of which are hereby
preserved.
3. Warranties of Releasor. Releasor hereby represents and warrants for
itself and for all persons claiming through it as follows:
a. it has not assigned or transferred to any third party all or any part
or portion of any Claim which it may have at any time had or owned;
b. it has full legal capacity to enter into, execute and perform this
Release Agreement;
c. it has duly authorized, executed and delivered this Release Agreement
to Releasee, and the agreements and obligations contained herein
represent the legal, valid and enforceable obligations of the
Releasor, subject to applicable bankruptcy, insolvency,
reorganization, receivership, moratorium or similar laws or judicial
decisions affecting the rights and remedies of creditors generally,
and general principles of equity, including, without limitation,
requirements of good faith, fair dealing and reasonableness, the
possible unavailability of particular equitable remedies, the possible
availability of particular equitable defenses, and concepts of
materiality, unconscionable conduct of an enforcing party or
impracticability or impossibility of performance;
d. it has read carefully and fully understands both the nature of this
Release Agreement and the contents of each of the provisions hereof;
e. it is executing this Release Agreement of its own free will, and is
under no duress, compulsion or coercion to execute this Release
Agreement;
2
f. it has been represented by counsel in connection with the review,
negotiation, execution and delivery of this Release Agreement, has
discussed and assessed the merits of any Claim or potential Claim (if
any) against Releasee with counsel, and has been duly apprised of its
rights in connection therewith; and
g it understands, acknowledges and agrees that this instrument may be
pleaded as a full and complete defense, and may be used as a basis for
an injunction, against any action, suit or other proceeding which may
be instituted, prosecuted or attempted in breach of the provisions of
this Release Agreement.
4. Other Facts and Circumstances. Releasor agrees that no fact, event,
circumstance, evidence or transaction which could now be asserted or which may
hereafter be discovered with respect to it shall affect in any manner the final
and unconditional nature of Section 1 of this Release Agreement.
5. Other Claims and Parties Not Affected. The parties agree that this
Release Agreement is not intended to constitute or be construed or deemed to be
a release of, or a covenant not to xxx or a covenant not to assist in suit
against, Released Parties with respect to demands, actions, causes of action,
suits, counterclaims, defenses, rights of set-off, demands and liabilities other
than the Claims set forth in Section 1 hereof, it being expressly understood
that Releasor retains any causes of action and all legal remedies it may have
now or hereafter with respect thereto. This Release Agreement is not intended
and shall in no event be construed or deemed to be a release of, or a covenant
not to xxx, or a covenant not to assist in suit against, any party, person,
firm, partnership, limited liability company or corporation that is not a
Released Party.
6. Successors. This Release Agreement shall be binding upon Releasor and
its successors, assigns and other legal representatives.
7. Choice of Law. This Release Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Illinois,
without regard to its conflict of laws provisions.
8. Amendments. This Release Agreement may be amended or otherwise varied
only by an instrument in writing executed by Releasor and Releasee.
9. Counterparts. This Agreement may be executed in counterparts, each of
which shall be binding upon the party executing the same and all of which, when
taken together, shall constitute one single Agreement.
3
A WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties on the first day hereinabove written.
RELEASOR:
---------
XXXXXX INVESTORS LIFE INSURANCE
COMPANY, an Illinois
corporation
By:
-----------------------------------
Its: Authorized Signatory
By:
-----------------------------------
Its: Authorized Signatory
FEDERAL XXXXXX LIFE
ASSURANCE COMPANY, an Illinois
limited partnership
By:
-----------------------------------
Its: Authorized Signatory
By:
-----------------------------------
Its: Authorized Signatory
KILICO REALTY CORPORATION, an
Illinois corporation
By:
-----------------------------------
Its: Authorized Signatory
FKLA REALTY CORPORATION, an
Illinois corporation
By:
-----------------------------------
Its: Authorized Signatory
4
KR 77 FITNESS CENTER, INC. a Delaware
corporation
By:
----------------------------------
Its: Authorized Signatory
RELEASEE:
---------
THE PRIME GROUP, INC., an Illinois
corporation
By:
----------------------------------
Name:
-------------------------
Title:
------------------------
PRIME GROUP LIMITED PARTNERSHIP, an
Illinois limited partnership
By:
----------------------------------
Name:
-------------------------
Title:
------------------------
PRIME 77 FITNESS CENTER, INC., an
Illinois corporation
By:
----------------------------------
Name:
-------------------------
Title:
------------------------
77 WEST XXXXXX LIMITED PARTNERSHIP, an
Illinois limited partnership
5
By: THE PRIME GROUP, INC., an Illinois
corporation, a general partner
By:
----------------------------------
Name:
-------------------------------
Title:
------------------------------
6
EXHIBIT C-2
-----------
THE PRIME RELEASES
-------------------
C-2-1
RELEASE AGREEMENT
THIS RELEASE AGREEMENT ("Release Agreement") is made on this ____ day of
____________, 199_, by and between The Prime Group, Inc., an Illinois
corporation ("TPG"); Prime Group Limited Partnership, an Illinois limited
partnership ("PGLP"); Prime 77 Fitness Center, Inc., an Illinois corporation
("Prime Fitness"); and 77 West Xxxxxx Limited Partnership, an Illinois limited
partnership ("Borrower") (individually and collectively, "Releasor") and Xxxxxx
Investors Life Insurance Company, an Illinois insurance corporation ("KILICO");
Federal Xxxxxx Life Assurance Company, an Illinois insurance corporation
("FKLA"); KILICO Realty Corporation, an Illinois corporation ("KRC"); FKLA
Realty Corporation, an Illinois corporation ("FRC") and KR 77 Fitness Center,
Inc., a Delaware corporation ("KR Fitness") (individually and collectively,
"Releasee").
W I T N E S S E T H:
WHEREAS, Prime and KRC, as general partners, and KILICO, FKLA and Prime, as
limited partners, have heretofore entered into a certain Third Amended and
Restated Agreement of Limited Partnership of 77 West Xxxxxx Limited Partnership
dated Xxxxx 00, 0000 (xx amended from time to time, the "Partnership
Agreement"), which continued the existence of 77 West Xxxxxx Limited
Partnership, an Illinois limited partnership (the "Partnership"). All defined
terms used herein and not expressly defined herein shall have the same meaning
as they have in the Partnership Agreement.
WHEREAS, Prime, KRC, KILICO, FKLA, FRC, KR Fitness, K/77 Investors Limited
Partnership, an Illinois limited partnership, the Partnership, PGLP and Prime
Fitness have entered into a certain Amended And Restated Agreement dated as of
July 15, 1997 (the "Agreement") which requires, as a condition to the closing of
the transactions contemplated thereby, that Releasor enter into this Release
Agreement.
NOW, THEREFORE, for good and valuable consideration, the adequacy of which
is hereby acknowledged, the parties hereto agree as follows:
1. Release. Releasor, on behalf of itself and its affiliates, officers,
directors, shareholders, partners, agents, attorneys, employees and all of such
persons' respective heirs, successors and assigns, jointly, severally and
individually hereby absolutely, unconditionally and irrevocably releases,
remises and forever discharges Releasee and its affiliates, officers, directors,
shareholders, partners, agents, attorneys, employees and all such persons'
respective heirs, predecessors, successors, assigns, present and former
shareholders, affiliates, subsidiaries, divisions, directors, officers,
attorneys, employees, agents and other representatives (Releasee, together with
such related parties, called the "Released Parties") from any and all claims by
reason of or arising out of any liability or obligation alleged or asserted
against any of the Released Parties and in any way related to the Partnership,
the Building Loan, the First
Mortgage Loans, the Second Mortgage Loans, the Guaranty of Cost Overruns, the
Guaranty of Operating Deficits, the Co-Agents Environmental Indemnity Agreement,
or the Project, whether arising out of any matter occurring before or after the
date hereof ("Claim"), including, but not limited to, any claim by Prime against
KRC for contribution under the Partnership Agreement, and any judgment, award,
settlement, reasonable attorney's fees and other costs and expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim, provided that the claim, loss, expense, damage or injury was not the
result of a declared Default by Releasee under the Partnership Agreement.
2. Non-Release of Liability under Partnership Agreement. Anything to the
contrary notwithstanding contained in paragraph 1 herein, this Release Agreement
shall in no way affect or release any and all of Releasee's obligations or
liabilities for a declared Default under the Partnership Agreement or any of
Releasee's obligations under the Agreement, all of which are hereby preserved.
3. Warranties of Releasor. Releasor hereby represents and warrants for
itself and for all persons claiming through it as follows:
a. it has not assigned or transferred to any third party all or any
part or portion of any Claim which it may have at any time had or
owned;
b. it has full legal capacity to enter into, execute and perform this
Release Agreement;
c. it has duly authorized, executed and delivered this Release
Agreement to Releasee, and the agreements and obligations
contained herein represent the legal, valid and enforceable
obligations of the Releasor, subject to applicable bankruptcy,
insolvency, reorganization, receivership, moratorium or similar
laws or judicial decisions affecting the rights and remedies of
creditors generally, and general principles of equity, including,
without limitation, requirements of good faith, fair dealing and
reasonableness, the possible unavailability of particular
equitable remedies, the possible availability of particular
equitable defenses, and concepts of materiality, unconscionable
conduct of an enforcing party or impracticability or impossibility
of performance;
d. it has read carefully and fully understands both the nature of
this Release Agreement and the contents of each of the provisions
hereof;
e. it is executing this Release Agreement of its own free will, and
is under no duress, compulsion or coercion to execute this Release
Agreement;
f. it has been represented by counsel in connection with the review,
negotiation, execution and delivery of this Release Agreement, has
discussed and assessed the
2
merits of any Claim or potential Claim (if any) against Releasee
with counsel, and has been duly apprised of its rights in
connection therewith; and
g. it understands, acknowledges and agrees that this instrument may
be pleaded as a full and complete defense, and may be used as a
basis for an injunction, against any action, suit or other
proceeding which may be instituted, prosecuted or attempted in
breach of the provisions of this Release Agreement.
4. Other Facts and Circumstances. Releasor agrees that no fact, event,
circumstance, evidence or transaction which could now be asserted or which may
hereafter be discovered with respect to it shall affect in any manner the final
and unconditional nature of Section 1 of this Release Agreement.
5. Other Claims and Parties Not Affected. The parties agree that this
Release Agreement is not intended to constitute or be construed or deemed to be
a release of, or a covenant not to xxx or a covenant not to assist in suit
against, Released Parties with respect to demands, actions, causes of action,
suits, counterclaims, defenses, rights of set-off, demands and liabilities other
than the Claims set forth in Section 1 hereof, it being expressly understood
that Releasor retains any causes of action and all legal remedies it may have
now or hereafter with respect thereto. This Release Agreement is not intended
and shall in no event be construed or deemed to be a release of, or a covenant
not to xxx, or a covenant not to assist in suit against, any party, person,
firm, partnership, limited liability company or corporation that is not a
Released Party.
6. Successors. This Release Agreement shall be binding upon Releasor and
its successors, assigns and other legal representatives.
7. Choice of Law. This Release Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Illinois,
without regard to its conflict of laws provisions.
8. Amendments. This Release Agreement may be amended or otherwise varied
only by an instrument in writing executed by Releasor and Releasee.
9. Counterparts. This Agreement may be executed in counterparts, each of
which shall be binding upon the party executing the same and all of which, when
taken together, shall constitute one single Agreement.
3
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties on the first day hereinabove written.
RELEASOR:
---------
THE PRIME GROUP, INC., an Illinois
corporation
By: __________________________________
Name: _____________________________
Title: _____________________________
PRIME GROUP LIMITED PARTNERSHIP,
an Illinois limited partnership
By:
__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Managing General Partner
PRIME 77 FITNESS CENTER, INC., an
Illinois corporation
By: __________________________________
Name: _____________________________
Title: ____________________________
77 WEST XXXXXX LIMITED PARTNERSHIP,
an Illinois limited partnership
By: THE PRIME GROUP, INC., an
Illinois corporation, a general
partner
By: ____________________________
Name: __________________________
Title:__________________________
4
RELEASEE:
---------
XXXXXX INVESTORS LIFE INSURANCE COMPANY,
an Illinois corporation
By:
------------------------------------
Its: Authorized Signatory
By:
------------------------------------
Its: Authorized Signatory
FEDERAL XXXXXX LIFE ASSURANCE COMPANY,
an Illinois insurance company
By:
------------------------------------
Its: Authorized Signatory
By:
------------------------------------
Its: Authorized Signatory
KILICO REALTY CORPORATION, an Illinois
corporation
By:
------------------------------------
Its: Authorized Signatory
FKLA REALTY CORPORATION, an Illinois
corporation
By:
------------------------------------
Its: Authorized Signatory
5
KR 77 FITNESS CENTER, INC., a Delaware
corporation
By:
------------------------------------
Its: Authorized Signatory
By:
------------------------------------
Its: Authorized Signatory
6
EXHIBIT D
---------
Intentionally Deleted
D-1
EXHIBIT E
---------
THE SPRINGING GUARANTY
----------------------
E-1
GUARANTY
--------
THIS GUARANTY is made as of the 15th day of July, 1997 by THE PRIME GROUP,
INC., an Illinois corporation ("TPG" or "Guarantor") in favor of XXXXXX
INVESTORS LIFE INSURANCE COMPANY, an Illinois insurance corporation ("KILICO"),
and FEDERAL XXXXXX LIFE ASSURANCE COMPANY, an Illinois insurance corporation
("FKLA"); KILICO and FKLA are sometimes referred to jointly and severally as
"KILICO/FKLA").
R E C I T A L S:
WHEREAS, on or as of March 14, 1991, KILICO/FKLA, 77 West Xxxxxx Limited
Partnership, an Illinois Limited Partnership ("Borrower"), The Mitsui Taiyo Kobe
Bank, Ltd., Chicago Branch, The Mitsui Trust and Banking Co., Limited, Chicago
Branch, The Yasuda Trust and Banking Co., Limited, Chicago Branch, Swiss Bank
Corporation, New York Branch, and Bank of Montreal, Chicago Branch, entered into
that certain Standby First Mortgage Funding Agreement (the "Standby Funding
Agreement"), pursuant to which KILICO/FKLA have agreed to make certain loans to
Borrower, or be deemed to have made certain loans to or on behalf of Borrower,
as described in the Standby Funding Agreement and referred to herein
collectively as the "Standby Loans");
WHEREAS, as evidence of the Borrower's obligation to repay the Standby
Loans to KILICO/FKLA, the Borrower executed and delivered to KILICO/FKLA a
certain Note (the "Standby Note"), dated as of March 14, 1991, in the original
principal amount of Two Hundred Thirty Million Dollars ($230,000,000);
WHEREAS, the payment of all amounts due by the Borrower under the terms of
the Standby Note are secured in accordance with that certain Mortgage, Security
Agreement, Assignment of Leases, Rents and Profits, Financing Statement and
Fixture Filing (the "Standby Mortgage"), dated as of March 14, 1991, by and
between the Borrower, as debtor, and KILICO/FKLA, as secured party;
WHEREAS, on or as of March 14, 1991, KILICO/FKLA and Borrower entered into
that certain Subordinate Mortgage Funding Agreement (the "Subordinate Funding
Agreement"), pursuant to which KILICO/FKLA have agreed to make certain loans to
Borrower, or be deemed to have made certain loans to or on behalf of Borrower,
as described in the Subordinate Funding Agreement and referred to herein
collectively as the "Subordinate Loans");
WHEREAS, as evidence of the Borrower's obligation to repay the Subordinate
Loans to KILICO/FKLA, the Borrower executed and delivered to KILICO/FKLA a
certain Note (the "Subordinate Note"), dated as of March 14, 1991, in the
original principal amount of Sixty
Million Dollars ($60,000,000); the Standby Note and the Subordinate Note are
referred to herein as the "Notes;"
WHEREAS, the payment of all amounts due by the Borrower under the terms of
the Subordinate Note are secured in accordance with that certain Subordinate
Mortgage, Security Agreement, Assignment of Leases, Rents and Profits, Financing
Statement and Fixture Filing (the "Subordinate Mortgage"), dated as of March 14,
1991, by and between the Borrower, as debtor, and KILICO/FKLA, as secured party;
the Standby Mortgage and the Subordinate Mortgage are referred to herein as the
"Mortgages;"
WHEREAS, TPG is a general partner and a limited partner of the Borrower;
WHEREAS, pursuant to that certain Agreement of even date herewith ("Option
Agreement") among and between KILICO, FKLA, KILICO Realty Corporation, an
Illinois corporation ("KRC"), FKLA Realty Corporation, an Illinois corporation,
KR 77 Fitness Center, Inc., a Delaware corporation, K/77 Investors Limited
Partnership, an Illinois limited partnership, Borrower, TPG, Prime Group Limited
Partnership, an Illinois limited partnership, and Prime Fitness Center, Inc., an
Illinois corporation, the Xxxxxx Parties, among other things, agreed to grant to
TPG the option to purchase the interests of KILICO and FKLA in the Subordinate
Loan Documents; and
WHEREAS, as a material inducement to KILICO/FKLA to execute and deliver,
and cause the Xxxxxx Parties to execute and deliver the Option Agreement and
perform their respective duties and obligation thereunder, the Guarantor has
agreed to make this Guaranty.
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby agrees as follows:
1. Guaranty
(a) Subject to the express limitations contained in Paragraphs 9 and 10
hereof, Guarantor hereby absolutely and unconditionally guarantees the punctual
payment when due and payable under the Standby Funding Agreement and the Standby
Note, whether at stated maturity, by acceleration or otherwise, and regardless
of whether such amount may be in excess of the face amount of the Standby Note,
of all other amounts due to KILICO/FKLA under the Standby Note, the Standby
Mortgage, the Standby Funding Agreement, or under any other documents and
instruments executed and delivered to KILICO/FKLA, or either of them, in order
to evidence or perfect the lien or security interest in collateral for the
Standby Note (the Standby Mortgage, the Standby Funding Agreement, and such
other documents, are sometimes referred to collectively as the "Standby
Collateral Documents"), and any and all extensions, renewals or modifications of
any of the foregoing (such principal, interest and other amounts are hereinafter
referred to collectively as the "Standby Obligations").
2
(b) Subject to the express limitations contained in Paragraphs 9 and 10
hereof, Guarantor hereby absolutely and unconditionally guarantees the punctual
payment when due and payable under the Subordinate Funding Agreement and the
Subordinate Note, whether at stated maturity, by acceleration or otherwise, and
regardless of whether such amount may be in excess of the face amount of the
Subordinate Note, of all other amounts due to KILICO/FKLA under the Subordinate
Note, the Subordinate Mortgage, the Subordinate Funding Agreement, or under any
other documents and instruments executed and delivered to KILICO/FKLA, or either
of them, in order to evidence or perfect the lien or security interest in
collateral for the Subordinate Note (the Subordinate Mortgage, the Subordinate
Funding Agreement, and such other documents, are sometimes referred to
collectively as the "Subordinate Collateral Documents"), and any and all
extensions, renewals or modifications of any of the foregoing (such principal,
interest and other amounts are hereinafter referred to collectively as the
"Subordinate Obligations").
(c) The Standby Collateral Documents and the Subordinate Collateral
Documents are referred to herein as the "Collateral Documents." The Standby
Obligations and the Subordinate Obligations are referred to herein as the
"Obligations."
(d) In addition, Guarantor shall pay any and all fees, costs and expenses
(including attorneys' fees) incurred by KILICO/FKLA, or either of them, at any
time prior or subsequent to default, whether litigation is involved or not, and
if involved, whether at the trial or appellate levels or in pre or post-judgment
or bankruptcy proceedings, in enforcing or realizing upon the obligations of
Guarantor hereunder (collectively, "Enforcement Costs"). The Obligations, Notes,
Collateral Documents and any instrument, document or agreement, express or
implied, which has been or may hereafter be made or entered into by the Borrower
or the Guarantor in reference to the Obligations shall all be hereinafter
collectively referred to as the "Terms".
2. Guaranty Absolute. Guarantor guarantees that the Obligations will be
paid and performed strictly in accordance with the terms and provisions of the
Terms, regardless of any law, regulation, order or judgment now or hereafter in
effect in any jurisdiction affecting any of the Terms or the rights of
KILICO/FKLA with respect thereto. The liability of Guarantor under this Guaranty
shall continue and be absolute and unconditional irrespective of:
(a) Any lack of validity or enforceability of any of the Terms;
(b) Any change in the time, manner or place of payment of, or in any
other term, including the applicable rate of interest, of, all or
any of the Terms, or any other renewal, extension, amendment,
modification or waiver of or any consent to departure from any of
the Terms;
(c) Any act or omission of KILICO/FKLA of any nature whatsoever,
excluding any willful misconduct or gross negligence on the part
of KILICO/FKLA;
3
(d) With respect to the Guarantor, the Borrower or any other person
or entity liable in respect of the Borrower, any failure to obtain required
authorization by all necessary corporate, partnership or other action
relating so the incurring by the Borrower of the Obligations or to the
execution, delivery, or performance of any of the Terms, or to any
violation of any provision of any of the articles of incorporation, by-
laws, partnership agreement or any other document, Terms, by the execution,
delivery or performance of any of the Terms, or by any failure of same to
have been duly authorized by all necessary corporate or other action;
(e) Any release, amendment, waiver, modification, extension or
renewal of or consent to departure from or forbearance of any other action
or inaction under or in respect of this Guaranty or any other of the Terms;
(f) Any exchange, release, forbearance or surrender of or any other
action or inaction with respect to any collateral at any time and from time
to time now or hereafter securing any or all of the Obligations or Terms or
the liability of the Borrower, the Guarantor or any other person or entity
in respect of all or any of the Terms or any failure to perfect or
continue as perfected any security interest or other lien with respect to
any such collateral, or any loss or destruction of any such collateral, or
any matter impairing the value of such collateral as security for all or
any of the Terms or the liability of the Guarantor or any other person or
entity in respect of all or any of the Obligations or Terms; or
(g) Any other circumstance or matter of any nature whatsoever that
might otherwise constitute a defense (other than payment) available to, or
a discharge of, the Borrower, the Guarantor or any other person or entity
liability to KILICO/FKLA in respect of any of the Terms.
This Guaranty shall continue to be effective or shall be reinstated, as the case
may be, regardless of whether any payment of any of the Obligations is rescinded
or must otherwise be returned by KILICO/FKLA upon the insolvency, bankruptcy or
reorganization of any person or entity or for any reason whatsoever, all as
though such payment had not been made. The Obligations of Guarantor hereunder
shall be absolute and primary, shall be complete and binding as to Guarantor
upon its execution of this Guaranty, shall be subject to no conditions
precedent, and shall be independent of and cumulative to any other of the Terms,
and KILICO/FKLA may exercise any of its rights and remedies under this Guaranty,
any other of the Terms or otherwise singly or concurrently.
3. Waiver: No Duties. To the extent permitted by law, Guarantor waives:
(a) all statutes of limitations as a defense to any action brought against
Guarantor by KILICO/FKLA; (b) any defense based upon any legal disability of
the Borrower or any discharge or limitation of the liability of the Borrower to
KILICO/FKLA, whether consensual or arising by operation of law or any
bankruptcy, insolvency or debtor-relief proceeding, or from any other cause;
4
(c) promptness, diligence, presentment, demand, protect and notice of any kind;
(d) any defense based upon or arising out of any defense which the Borrower may
have to the payment or performance of any part of the Obligations; (e) any and
all rights of indemnity, contribution or reimbursement against Borrower; and (f)
all rights of subrogation, all rights to enforce any remedy that KILICO/FKLA may
have against the Borrower, and all rights to participate in any security held by
KILICO/FKLA for the Obligations. KILICO/FKLA shall not be obligated to exhaust
any right or take any action against the Borrower or any other person of its
rights hereunder. KILICO/FKLA shall not be required to obtain the consent of the
Guarantor with respect to any matter.
4. Warranties. Guarantor makes the following representations and
warranties to KILICO/FKLA:
(a) Authorization. Guarantor has full right, power and authority to
enter into this Guaranty and carry out its obligations hereunder.
(b) No Conflict. The execution, delivery and performance by Guarantor
of this Guaranty will not violate or be in conflict with, result in a
breach of, or constitute a default under, any indenture, agreement or any
other instrument to which Guarantor is a party or by which Guarantor or any
of its assets or properties is bound, or any order, writ, injunction or
decree of any court or governmental agency.
(c) Litigation. There are no actions, suits or proceedings pending,
or to the knowledge of Guarantor threatened against or adversely affecting
such Guarantor at law or in equity or before or by a governmental agency or
instrumentality, domestic or foreign, which involve any of the transactions
herein contemplated, or the possibility of any judgment or liability which
may result in any material and adverse change in the financial condition of
such Guarantor. Such Guarantor is not in default with respect to any
judgment, order, writ, injunction, decree, rule or regulation of any court
or governmental agency.
(d) Enforceability. This Guaranty is a legal, valid and binding
obligation of such Guarantor, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the rights of creditors generally.
(e) Financial Statements. The financial statements and other
financial information from time to time furnished by Guarantor to
KILICO/FKLA are correct and complete and accurately present the financial
condition of the respective Guarantor at and for the periods covered
therein; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
except as indicated on said financial statements; and since the respective
periods covered by such financial statements, there has been no material
adverse change in the financial
5
condition of Guarantor.
5. Affirmative Covenant. Guarantor covenants and agrees that from the
date hereof and so long as any of the Obligations remains outstanding and unpaid
and unperformed, upon at least thirty (30) days prior written request of
KILICO/FKLA, Guarantor will furnish to KILICO/FKLA as soon as available, but in
any event no later than April 1, of each year, a copy of the current balance
sheet of Guarantor as at the end of the last calendar year, certified to be true
and correct by such Guarantor and prepared in accordance with generally accepted
accounting principles or tax accounting principles applied on a consistent
basis.
6. Notices. All notices or other communications required or permitted
hereunder shall be (a) in writing and shall be deemed to be given (i) when
delivered in person, (ii) the second business day after deposit in a regularly
maintained receptacle of the United States mail as registered or certified mail,
postage prepaid, (iii) when received if sent by private courier service, or (iv)
on the day on which the party to whom such notice is addressed refuses delivery
by mail or by private courier service and (b) addressed as follows:
If to KILICO/FKLA, to:
c/o ZKS Real Estate Partners LLC
Suite 1450
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
With a copy to:
Zurich Xxxxxx Life Companies
c/o ZKS Real Estate Partners LLC
Suite 1450
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
With a copy to:
Xxxxxxx & Xxxxx
Suite 1800
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
6
If to TPG to:
x/x Xxx Xxxxx Xxxxx, Xxx.
Xxxxx 0000
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
With a copy to:
The Prime Group, Inc.
Xxxxx 0000
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
or to any such other address as any party hereto shall designate in a written
notice to the other parties hereto.
7. No Waiver: Cumulative Remedies. KILICO/FKLA may, at any time and from
time to time, waive or not insist on strict compliance with any one or more of
the provisions contained in any document relating to this Guaranty, but any such
waiver or non insistence shall not be considered a waiver or non insistence of
such provision in any other instance or any other circumstance, OR AS CREATING A
REQUIREMENT THAT KILICO/FKLA MUST, AS A RESULT OF A PREVIOUS WAIVER OR NON-
INSISTENCE. THEREAFTER GIVE NOTICE TO THE BORROWER, GUARANTOR, OR ANY OTHER
PERSON OR ENTITY THAT IT DOES NOT INTEND TO GIVE A FURTHER WAIVER OR NOT INSIST
UPON STRICT PERFORMANCE BEFORE KILICO/FKLA CAN EXERCISE ANY RIGHTS OR REMEDIES
UNDER ANY DOCUMENT OR BEFORE ANY EVENTS OF DEFAULT OR DEFAULTS CAN OCCUR,
WHETHER OCCASIONED BY THE PROVISION PREVIOUSLY WAIVED OR NOT INSISTED UPON OR
OTHERWISE, OR AS ESTABLISHING A COURSE OF DEALING FOR INTERPRETING THE
EXPRESSIONS AND OTHER CONDUCT BETWEEN KILICO/FKLA AND THE BORROWER, GUARANTOR OR
ANY OTHER PERSON OR ENTITY. The remedies provided herein and in the other
documents executed contemporaneously herewith and referred to herein shall be
cumulative, may be exercised from time to time, singularly or concurrently or in
any combination, without KILICO/FKLA being obligated to exercise any such right
in any other circumstance, and are not exclusive of any remedies provided by
law.
8. Continuing Guaranty: Transfer. This Guaranty is a continuing guaranty
and shall:
(a) Remain in full force and effect until the Obligations have been
fully discharged at which time this Guaranty shall terminate;
7
(b) Be binding upon Guarantor and its successors and assigns, who
shall be jointly and severally liable hereunder; provided, however,
Guarantor may not assign any of its rights and obligations hereunder
without the prior written consent of KILICO/FKLA; and
(c) Inure to the benefit of and be enforceable by KILICO/FKLA and its
successors, transferees, participants, and assigns. Without limiting the
generality of this clause, KILICO/FKLA may assign or otherwise transfer any
of the Obligations (in compliance with the terms of the Notes and the
Standby Funding Agreement and the Subordinate Funding Agreement) and/or any
of the Terms to any other person or entity, and such other person or
entity shall thereupon become vested with all the rights in respect thereof
granted to KILICO/FKLA herein or otherwise.
9. Maximum Liability. Notwithstanding anything to the contrary herein
contained, the aggregate obligation and liability of the Guarantor hereunder
shall be limited to (a) $20,000,000 ("Guaranteed Amount") plus (b) the
Enforcement Costs. The portion of the Obligations in excess of the Guaranteed
Amount is herein called the "Remaining Amount". Accordingly, (a) Alternate
Payments (as hereinafter defined) shall be applied pro tanto to the Remaining
Amount until the Remaining Amount shall have been paid in full prior to any
application of any Alternate Payment upon any Guaranteed Amount; and (b) for the
purposes hereof, the term "Alternate Payments" shall mean any of the following
which may be applied upon the Obligations: (i) proceeds of insurance (both
casualty insurance upon any property encumbered to secure the Obligations and
proceeds of any life insurance policy assigned as collateral for the
Obligations; (ii) awards, compensation or damages consequent upon any
condemnation or taking by any process of eminent domain or a conveyance in lieu
thereof of any property encumbered to secure the Obligations; or (iii) proceeds
of any sale of collateral or security given as security for the Obligations.
10. Covenant Not to Xxx. Notwithstanding anything to the contrary herein
contained, KILICO/FKLA covenants and agrees not to xxx and not to commence,
assert, bring or file in any court or tribunal, in any jurisdiction, any suit,
action, litigation or complaint setting forth any claim or cause of action
against Guarantor which KILICO/FKLA may have against Guarantor under this
Guaranty unless Borrower (through the actions of TPG or a Prime Affiliate and
not through the actions of KILICO Realty Corporation as a general partner of
Borrower or through the actions of any party other than TPG or a Prime
Affiliate), Guarantor or any Prime Affiliate (as hereinafter defined) suffers,
permits, commences, asserts, or incurs an Insolvency Event or a Lender
Liability Action (as such terms are hereinafter defined). For purposes hereof:
(a) "Prime Affiliate" means any (i) Person (as hereinafter defined)
owning a majority interest in any class of capital stock of TPG, (ii)
Person owning an interest as general partner or limited partner of Borrower
or PGLP (but not including KRC), (iii) Person who is an officer, director,
trustee, general partner, limited partner holding a greater than 50%
limited partnership interest, or holder of a majority interest in any
8
class of capital stock of or in Guarantor or any Person described in the
preceding clause (ii), (iv) Xxxxxxx X. Xxxxxxx, (v) Prime Group Limited
Partnership, an Illinois limited partnership, or (vi) any Person that is an
affiliate of any Person described in the preceding clauses (i), (ii) and
(iii) within the meaning of Rule 144 of the Securities Act of 1933, as
amended. "Person" means any individual, partnership, association,
corporation, limited liability company, trust or other entity;
(b) "Insolvency Event" means that either TPG or a Prime Affiliate
shall have caused or directed Borrower, without the prior written consent
of KRC, to: (aa) apply for or consent to the appointment of a receiver,
trustee, liquidator or custodian or the like of itself or of its property,
(bb) make a general assignment for the benefit of creditors, (cc) be
adjudicated a bankrupt or insolvent, or (dd) commence a voluntary case
under the Federal bankruptcy laws of the United States of America or file a
voluntary petition or answer seeking reorganization, an arrangement with
creditors or an order for relief or seeking to take advantage of any
insolvency law or file an answer admitting the material allegations of a
petition filed against it in any bankruptcy, reorganization or insolvency
proceeding, or take any action for the purpose of effecting any of the
foregoing. The term "Insolvency Event" shall also include the institution
or commencement by a Prime Affiliate of a proceeding involving Borrower in
any court under any law relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking an order for relief or an adjudication in
bankruptcy, reorganization, dissolution winding up, liquidation, a
composition or arrangement with creditors, a readjustment of debts, or the
appointment of a trustee, receiver liquidator or custodian or the like for
Borrower, or of all of any substantial part of its assets, or other like
relief in respect thereof under any bankruptcy or insolvency law, including
the filing by a partner in Borrower of an involuntary petition in
bankruptcy against Borrower; and
(c) Lender Liability Action means any suit, action, litigation,
complaint, defense, counterclaim or cross-claim commenced, asserted,
brought or filed by Borrower (other than with the written consent of KRC),
TPG, or a Prime Affiliate in any court or tribunal, in any jurisdiction,
whether at law or in equity, or whether in a separate action or action
commenced by KILICO/FKLA or other Person, seeking to (i) void, diminish,
reduce or defeat the Obligations or the liens or security interests created
or imposed pursuant to the Collateral Documents, (ii) hinder, delay or
impede the enforcement of the rights, remedies, liens and security
interests created, granted or imposed in favor of the holder(s) of the
Notes and Collateral Documents including, but without limitation, opposing
the appointment of a receiver or mortgagee in possession of the property
encumbered by the Mortgage or (iii) impose any liability upon the holder(s)
of the Notes and Collateral Documents arising out of or from the Standby
Loans or the enforcement of the rights, remedies, liens and security
interests, created, granted or imposed in favor of such holders.
Notwithstanding anything contained in the foregoing to the contrary, the
term "Lender Liability Action" shall not include any action resulting from
or based upon the gross negligence or willful misconduct of KILICO, FKLA,
KRC or any of their
9
respective Affiliates (as defined in the Third Amended And Restated
Agreement Of Limited Partnership of 77 West Xxxxxx Limited Partnership
dated as of March 14, 1991) or any action based on a breach by any of the
Xxxxxx Parties (as defined in the Option Agreement) or any Affiliate of the
Xxxxxx Parties occurring after the date hereof of any of their respective
obligations under: (w) the Option Agreement; (x) the Construction Loan
Documents (as defined in the Option Agreement); (y) the KILICO/FKLA Loan
Documents (as defined in the Option Agreement; or (z) the Subordinate Loan
Documents (as defined in the Option Agreement).
11. Governing Law. This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of Illinois without regard to principles
of conflict of laws, Guarantor hereby waives any plea of jurisdiction or venue
as not being a resident of Xxxx County, Illinois and hereby specifically
authorize any action brought by KILICO/FKLA upon this Guaranty to be instituted
and prosecuted in either the Circuit Court of Xxxx County, Illinois or in the
United States District Court for the Northern District of Illinois, at the
election of KILICO/FKLA. Guarantor hereby irrevocably authorizes service of
process to be made upon it at the address given and in the manner provided
above, in any action which may be instituted against it arising out of or
relating to this Guaranty.
12. Headings. Paragraph headings in this Guaranty are included herein for
convenience of reference only and shall not constitute a part of this Guaranty
for any other purposes.
13. Counterparts. This Guaranty may be executed in separate counterparts,
each of which shall constitute an original copy hereof.
14. Business Day. For purposes hereof, the term "Business Day" shall mean
any calendar day other than a Saturday, Sunday, legal holiday or any day on
which banking institutions in Chicago, Illinois are authorized to close.
15. Waiver of Jury Trial. EACH PARTY TO THIS GUARANTY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM FILED BY ANY PARTY, RELATING DIRECTLY OR INDIRECTLY
TO THIS GUARANTY.
10
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
executed and delivered on the date and year first above written.
THE PRIME GROUP, INC., an Illinois
corporation
By:
-------------------------------
Its:
-------------------------
XXXXXX INVESTORS LIFE INSURANCE
COMPANY, an Illinois insurance corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name :
----------------------------
Title:
----------------------------
FEDERAL XXXXXX LIFE ASSURANCE COMPANY,
an Illinois insurance corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
11
EXHIBIT F
---------
ENVIRONMENTAL INDEMNITY AGREEMENT
---------------------------------
F-1
ENVIRONMENTAL INDEMNITY AGREEMENT
---------------------------------
This ENVIRONMENTAL INDEMNITY AGREEMENT is dated as of___________________
199_ (the "Agreement") and is made among 77 WEST XXXXXX LIMITED PARTNERSHIP,
an Illinois limited partnership (the "Borrower"), THE PRIME GROUP, INC., an
Illinois corporation ("Prime"), (Borrower and Prime shall hereinafter be
sometimes collectively referred to as the "Indemnitors"), KILICO REALTY
CORPORATION, an Illinois corporation ("KRC"), XXXXXX INVESTORS LIFE INSURANCE
COMPANY, an Illinois insurance corporation ("KILICO"), and FEDERAL XXXXXX LIFE
ASSURANCE COMPANY, an Illinois insurance corporation ("FKLA"); KRC, KILICO, and
FKLA shall hereinafter be sometimes collectively referred to as "Indemnitees".
RECITALS.
A. Borrower, Prime, KRC, KILICO, FKLA, FKLA Realty Corporation, an
Illinois corporation, KR 77 Fitness Center, Inc., a Delaware corporation, K/77
Investors Limited Partnership, an Illinois limited partnership, Prime Group
Limited Partnership, an Illinois limited partnership, and Prime Fitness Center,
Inc., an Illinois corporation have entered into that Amended And Restated
Agreement dated as of July 15, 1997 (the "Agreement"). Terms defined in the
Agreement are used with the same meanings herein.
B. Borrower is the owner of the Premises, and TPG is a general partner of
Borrower.
C. As a condition to the Debt Interest Closing (as defined in the
Agreement), KILICO/FKLA have required that Borrower and TPG execute and deliver
this Agreement.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Indemnitors hereby jointly and severally represent, warrant
and covenant to the Indemnitees as follows:
Section 1. Representations and Warranties. Each of the Indemnitors
severally represents and warrants to the Indemnitees that, except as set forth
in the environmental reports listed or described on Exhibit A attached hereto,
(i) to the best of such Indemnitor's knowledge, Hazardous Materials have not at
any time been generated, used, treated or stored on, or transported to or from
the Property in any quantity or manner which violates any Environmental
Requirements (as hereinafter defined), (ii) to the best of such Indemnitor's
knowledge, Hazardous Materials have not at any time been released on the
Property in any quantity or manner which violates any Environmental
Requirements, (iii) to the best of Borrower's knowledge, Borrower is in
compliance with all applicable Environmental Requirements with respect to the
Property and the requirements of any permits issued under such Environmental
Requirements with respect to the Property, (iv) there are no pending or, to the
best of such Indemnitor's knowledge, past or threatened Environmental Claims (as
hereinafter defined)
against the Borrower or the Property, (v) to the best of such Indemnitor's
knowledge, there is no condition or occurrence at the Property that could
reasonably be anticipated (x) to form the basis of any Environmental Claim (as
hereinafter defined) against the Borrower or the Property, or (y) to cause the
Property to be subject to any restrictions on the ownership, occupancy, use or
transferability thereof under any Environmental Requirement, and (vi) there are
not now and, to the best of such Indemnitor's knowledge, never have been any
underground storage tanks located on the Property.
Section 2. Covenants. Each of the Indemnitors jointly and severally
covenants and agrees as follows:
(a) The Borrower will (i) comply with all Environmental Requirements
applicable to the ownership or use of the Property, (ii) immediately pay or
cause to be paid all costs and expenses incurred in such compliance, (iii)
use its best efforts to cause all tenants and other persons occupying the
Property to comply with all Environmental Requirements, and (iv) keep or
cause the Property to be kept free and clear of any liens imposed thereon
pursuant to any Environmental Requirement.
(b) The Borrower will not generate, use, treat, store, release or
dispose of, and will use its best efforts not to permit the generation,
use, treatment, storage, release or disposal of, any Hazardous Materials on
the Property, will not transport and will use its best efforts not to
permit the transportation of any Hazardous Materials to or from the
Property, in each case in a manner which violates any Environmental
Requirements or in quantities greater than that which is customary for
similar office buildings located in Chicago, Illinois.
(c) The Borrower will advise KRC in writing promptly upon learning of
any of the following: (i) any pending or threatened (in writing)
Environmental Claim against the Borrower of the Property; (ii) any
condition or occurrence on the Property that (x) results in noncompliance
by the Borrower with any applicable Environmental Requirement, or (y) could
reasonably be anticipated to form the basis of an Environmental Claim
against the Borrower or the Property; (iii) any condition or occurrence on
the Property to be subject to any restrictions on the ownership, occupancy,
use or transferability of the Property under any Environmental Requirement;
and (iv) the taking of any removal or remedial action in response to the
actual or alleged presence, in any quantity or manner which violates any
Environmental Requirement, of any Hazardous Materials on the Property. Each
such notice shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower's response thereto. In addition, the Borrower will provide KRC
with copies of all communications to or from the Borrower and any person
relating to Environmental Claims, and such detailed reports of any
Environmental Claim as may reasonably be requested by KRC.
2
Section 3. Indemnity
(a) Each of the Indemnitors jointly and severally agrees, at their
sole cost and expense, to defend (with attorneys reasonably satisfactory to
the Indemnitees), protect, indemnify and hold harmless the Indemnitees and
their respective officers, directors, employees and agents from and against
any and all liabilities, obligations (including removal and remedial
actions), losses, damages (including foreseeable and unforeseeable
consequential damages and punitive damages), penalties, actions, judgments,
suits, claims, costs, expenses and disbursements (including attorneys' and
consultants' fees and disbursements) of any kind or nature whatsoever that
may at any time be incurred by, imposes on or asserted against any of them
directly or indirectly based on, or arising or resulting from (i) the
actual or alleged presence of Hazardous Materials on the Property or the
removal, handling, transportation, disposal or storage of such Hazardous
Materials, (ii) any Environmental Claim with respect to the Property,
(iii) any failure to comply and the resulting costs to come to compliance
with all applicable Environmental Requirements with respect to the Property
and the requirements of any permits issued under such Environmental
Requirements with respect to the Property, or (iv) the exercise of any of
Indemnitee's rights under this Agreement (collectively, the "Indemnified
Matters"), regardless of when such Indemnified Matters arise, but excluding
as to any Indemnitee any Indemnified Matter resulting directly from gross
negligence or willful misconduct by, through or under that Indemnitee in
the handling or removal of any such Hazardous Material, and excluding any
Indemnified Matter with respect to Hazardous Materials first placed on
released on the Property after the date the Borrower no longer holds title
to the Property. KRC, on behalf of the Indemnitees, shall cooperate with
the Indemnitors in their defense of the Indemnitees. To the extent that
this indemnity is unenforceable because it violates any law or public
policy, each of the Indemnitors agrees on a joint and several basis to
contribute the maximum portion that is permitted to contribute under
applicable law to the payment and satisfaction of all Indemnified Matters.
(b) Each of the Indemnitors jointly and severally agrees to reimburse
each Indemnitee for all sums paid and costs incurred by each Indemnitee
with respect to any Indemnified Matter, within ten (10) Business Days
following written demand therefor.
(c) Should any Indemnitee institute any action or proceeding at law
or in equity, or in arbitration, to enforce any provision of this Agreement
(including any action for declaratory relief or for damages by reason of an
alleged breach of any provision of this Agreement) or otherwise in
connection with this Agreement or any provision hereof, it shall be
entitled to recover from the Indemnitors on a joint and several basis its
fees and disbursements incurred in connection therewith if it is the
prevailing party in such action or proceeding.
Section 4. Survival.
3
(a) The representations, warranties, covenants and indemnity set
forth in this Agreement shall survive the Closing and the Debt Interest
Closing.
(b) This Agreement shall be binding on and inure to the benefit of
the Indemnitors, the Indemnitees and their respective successors and
assigns. The Indemnitors, without the prior written consent of KRC in each
instance, may not assign, transfer or set over in whole or in part, all or
any part of its or their benefits, rights, duties and obligations
hereunder.
Section 5. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Property" means any real property interests (including fee simple,
easement air rights, and leasehold interests), improvements, fixtures, and
related personal property included in the Project (as defined in the
Partnership Agreement).
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in a form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that
contain dialectic fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or
included in the definition of "hazardous materials," "hazardous wastes,"
"hazardous substance," "extremely hazardous wastes," "restricted hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants" or
"pollutants," or words of similar import, under any applicable
Environmental Requirements; and (c) any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
Governmental Authority (as defined in the Partnership Agreement).
"Environmental Requirement" means any federal, state or local
statute, law, rule, regulation, ordinance, code, policy, plan or rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial
or administrative order, consent decree or judgment, relating to the
environment, health, safety or Hazardous Materials, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. (S)9601 et seq.; the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. (S)1801 et seq.; the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. (S)6901 et
seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
(S)1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. (S)2601 et
seq.; the Clean Air Act, 42 U.S.C. (S)7401 et seq.; the Oil Pollution Act
of 1990, Public Law 101-380, and the Safe Drinking Xxxxx Xxx, 00 X.X.X.
(X)0000 et seq. and any state or local counterparts or equivalents.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or
4
violation, investigations or proceedings relating in any way to any
Environmental Requirements (hereinafter "Claims") or any permit issued
under any such Environmental Requirement, including without limitation (a)
any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Requirement, and (b) any
and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Materials or arising form alleged injury or threat of injury
to health, safety or the environment.
"Release" means disposing, discharging, injecting, spilling, leaking,
leaching, dumping, emitting, escaping, emptying, seeping, placing and the
like, into or upon any land or water or air, or otherwise entering into the
environment.
Section 6. Miscellaneous.
(a) Any party liable upon or in respect of this Agreement may be
released without affecting the liability of any party not so released.
(b) No failure or delay on the party of any of the Indemnities in
exercising any right, power or privilege hereunder and no course of dealing
between the Indemnitors and the Indemnitees (or any of them) shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder. The
rights, powers and remedies herein expressly provided are cumulative and
not exclusive of any rights, powers or remedies which the Indemnitees would
otherwise have. No notice to or demand on any of the Indemnitors in any
case shall, ipso facto, entitle any Indemnitor to any other or further
notice or demand in similar or other circumstances or constitute a waiver
of the rights of the Indemnitees to any other or further action in any
circumstances without notice or demand where notice or demand is not
otherwise required.
(c) Any notice, demand, request or other communication which any
party may be required or may desire to give hereunder shall be in writing
and shall be effective only if the same is (i) hand-delivered, in which
event it shall be effective upon delivery, (ii) mailed, by United States
registered or certified mail, return receipt requested, postage prepaid (in
which event it shall be effective three (3) business days after mailing),
or (iii) sent by Federal Express or other reliable express courier service
effective the next business day after delivery to such express courier
service, addressed as follows:
5
If to KRC or any of the Indemnitees:
c/o ZKS Real Estate Partners LLC
000 X. Xxxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
with a copy to:
Zurich Xxxxxx Life Companies
c/o ZKS Real Estate Partners LLC
000 X. Xxxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
with a copy to:
Xxxxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx
If to Borrower or TPG:
c/o The Prime Group, Inc.
00 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
The Prime Group, Inc.
00 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
(d) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing and signed by each of the parties hereto.
6
(e) This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the law
of the State of Illinois.
Section 7. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM FILED BY ANY PARTY, RELATING DIRECTLY OR INDIRECTLY
TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute and deliver this Agreement as of the date first above
written.
77 WEST XXXXXX LIMITED PARTNERSHIP, an
Illinois limited partnership
By: The Prime Group, Inc., an Illinois corporation,
its managing general partner
By:
Name:
------------------------------------------
Title:
-----------------------------------------
THE PRIME GROUP, INC., an Illinois corporation
By:
-----------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
7
EXHIBIT A
---------
ENVIRONMENTAL REPORTS
---------------------
1. Environmental Reconnaissance and Subsurface Exploration dated December 17,
1990 by STS Consultants, Ltd.
2. Environmental Reconnaissance and Subsurface Exploration Supplemental Letter
dated February 22, 1991 by STS Consultants, Ltd.
3. Indoor Air Investigation, dated November 10, 1992, prepared by Carnow,
Conibear & Associates, Ltd.
A-1
EXHIBIT G
---------
SECOND AMENDMENT TO OPTION AGREEMENT
------------------------------------
G-1
SECOND AMENDMENT TO
OPTION TO PURCHASE PARTNERSHIP INTERESTS
THIS SECOND AMENDMENT TO OPTION TO PURCHASE PARTNERSHIP INTERESTS ("Second
Amendment") is made as of this day _____ of July, 1997 by KILICO Realty
Corporation, an Illinois corporation ("KRC" or "Optionor") and The Prime Group,
Inc., an Illinois corporation ("TPG" or "Optionee").
RECITALS
A. KRC and TPG have entered into that Option To Purchase Partnership
Interests entered into as of June 17, 1994 but made effective as of March 22,
1994 (the "Original Option").
B. KRC and TPG have also entered into that First Amendment to Option to
Purchase Partnership Interests entered into as of January 21, 1997 (the "First
Amendment") amending the Original Option (the Original Option and the First
Amendment shall be collectively referred to herein as the "Option Agreement").
C. KRC and TPG have also entered into that Agreement dated as of January
21, 1997 made by Xxxxxx Investors Life Insurance Company, an Illinois insurance
corporation ("KILICO"); Federal Xxxxxx Life Assurance Company, an Illinois
insurance corporation ("FKLA"); KRC; FKLA Realty Corporation, an Illinois
corporation ("FRC"); KR 77 Fitness Center, Inc., a Delaware corporation ("KR
Fitness"); 77 West Xxxxxx Limited Partnership, an Illinois limited partnership
("77 West"); TPG; Prime Group Limited Partnership, an Illinois limited
partnership ("PGLP"); and Prime 77 Fitness Center, Inc., an Illinois corporation
("Prime Fitness") (KILICO, FKLA, KRC, FRC, KR Fitness, 77 West, TPG, PGLP and
Prime Fitness shall be collectively referred to herein as the "Parties") (the
"Original Agreement").
D. KRC and TPG have also entered into that Amended and Restated Agreement
dated as of July 15, 1997 made by the Parties and K/77 Investors Limited
Partnership, an Illinois limited partnership (the "Amended Agreement"), amending
the Original Agreement. Terms defined in the Amended Agreement are used with
the same meanings in this Second Amendment.
E. As required by the Amended Agreement, KRC and TPG have agreed to enter
into this Second Amendment to amend certain provisions of the Option Agreement.
NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Second Amendment agree as follows:
Section 1. Amendments. The Option Agreement is hereby amended as follows:
a. Section 1(b)(i) of the Option Agreement is hereby deleted in its
entirety and the following material substituted in lieu thereof:
(i) The Option shall expire if not exercised on or before fifteen
(15) days prior to the Outside Date (as defined in the Amended
Agreement), and the Optionee shall designate the closing to occur
no later than the Outside Date.
Section 2. Miscellaneous.
a. Except as otherwise specifically modified herein, the Option Agreement
shall remain unchanged and in full force and effect and is hereby ratified in
all respects.
b. This Amendment shall be governed by the laws of the State of Illinois,
without reference to its conflicts of law or choice of law rules.
c. The terms and provisions of this Amendment shall be binding on the
successors and assigns of the parties hereto.
d. This Amendment 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. It shall not be necessary that any single
counterpart of this Amendment be executed by all of the parties hereto, so long
as each of such parties shall have executed the same or any other separate
counterpart hereof.
e. As used herein, the terms (i) "person" shall mean an individual, a
corporation, a partnership, a joint venture, a limited liability company, an
unincorporated organization, or a governmental body; (ii) "including" shall mean
including, without limiting the generality of the foregoing; and (iii) the
singular shall include the plural, and vice versa.
f. If any provision of this Amendment should be found to be invalid, void,
or unenforceable, then it is the intent of the parties hereto that the remainder
of this Amendment be enforced to the fullest extent possible in accordance with
the intentions of the parties.
g. The parties to this Amendment will execute and deliver such other
documents and instruments as may be reasonably requested by any other party to
cause, effect, accomplish, or evidence any of the transactions required by this
Amendment.
2
In Witness Whereof, the parties hereto have caused this Amendment to be
executed and delivered the day and year first above written.
KILICO REALTY CORPORATION, an Illinois
corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
THE PRIME GROUP, INC., an Illinois corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
3
EXHIBIT H
---------
AMENDED CERTIFICATE OF LIMITED PARTNERSHIP
------------------------------------------
H-1
Form LP 202
(Rev. Jan. 1995)
Filing Fee $25
SUBMIT IN DUPLICATE!
All correspondence XXXXXX X. XXXX
regarding this filing will SECRETARY OF STATE
be sent to the registered STATE OF ILLINOIS
agent of the limited
partnership unless a self- CERTIFICATE OF AMENDMENT
addressed envelope with TO THE
pre-paid postage is CERTIFICATE OF LIMITED PARTNERSHIP
included. (Illinois limited partnership)
1. Limited partnership's name: 77 West Xxxxxx Limited Partnership
-----------------------------------------
2. File number assigned by the Secretary of State: C001826
---------------------
3. Federal Employer Identification Number (F.E.I.N.): 00-0000000
------------------
4. The certificate of limited partnership is amended as follows:
(Check all applicable changes)
(Address changes P.O. Box alone and c/o are unacceptable)
___a) Admission of a new general partner (give name and business address
below).
X b) Withdrawal of a general partner (give name below).
---
___c) Change of registered agent and/or registered agent's office (give new
name and address, including county below).
___d) Change in the address of the office at which the records required by
Section 201 of the Act are kept (give new address, including county
below).
___e) Change in the general partners name and/or business
address (give name and new address below).
___f) Change in the partners' total aggregate contribution amount
(give new dollar amount below).
___g) Change in limited partnership's name (give new name below).
___h) Change in date of dissolution (give new date below).
___i) Other (give information below).
4.b) The Prime Group, Inc.
If additional space is needed, it must be continued on the reverse side and/or
in the same format on a plain white 8 1/2" x 11" sheet, which must be stapled to
this form.
CLP-9.5
Form LP 202
(Rev. Jan. 1995)
5. NAME(S) & BUSINESS ADDRESS(ES) OF GENERAL PARTNER(S)
The undersigned affirms, under penalties of perjury, that the
facts stated herein are true.
The original certificate of amendment must be signed by a general
partner, all new general partners and at least one withdrawing
general partner.
SIGNATURE AND NAME BUSINESS ADDRESS
1. Signature X Number/Street 00 X. Xxxxxx Xxxxx, Xxxxx 0000
-------------------------------------------- ---------------------------------------
Type or print name and title Xxxxxx X. Xxxxxx City/town Chicago
------------------------------ ------------------------------------------
---------------------------------------------------------- ----------------------------------------------------
Name of General Partner if a corporation or
other entity The Prime Group, Inc. State Illinois ZIP Code 60601
--------------------------------------------- -------------------- ---------------
2. Signature X Number/Street 000 Xxxxx XxXxxxx Xxxxxx
-------------------------------------------- -------------------------------------
Type or print name and title City/town Chicago
---------------------------- ------------------------------------------
---------------------------------------------------------- ----------------------------------------------------
Name of General Partner if a corporation or
other entity Kilico Realty Corporation State Illinois ZIP Code 60603
--------------------------------------------- --------------------- -------------
3. Signature Number/Street
--------------------------------------------- ---------------------------------------
Type or print name and title City/town
----------------------------- ------------------------------------------
---------------------------------------------------------- ----------------------------------------------------
Name of General Partner if a corporation or
other entity State ZIP Code
--------------------------------------------- -------------------------- -----------
(Signatures must be in BLACK INK on an original document. Carbon copy, photocopy
or rubber stamp signatures may only be used on conformed copies.)
FORMS OF PAYMENT: RETURN TO:
Payment must be made by certified check, Secretary of State
cashier's check, Illinois attorney's check, Illinois Department of Business Services
C.P.A.'s check or money order, payable to "Sec- Limited Partnership Division
retary of State." Room 000, Xxxxxxx Xxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
DO NOT SEND CASH! Telephone: (000) 000-0000
