EXHIBIT 10.33
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (the "Agreement"), dated as of November 17, 1997
between PRIME GROUP REALTY, L.P., a Delaware limited partnership ("UpREIT"), and
THE PRIME GROUP, INC., an Illinois corporation ("Prime").
WHEREAS, the UpREIT has entered into that certain Tax Indemnification
Agreement, dated as of November 17, 1997 (the "Xxxxx Tax Indemnity Agreement")
with Xxxxxxx X. Xxxxx, an individual, Narco Enterprises, Inc., an Illinois
corporation, and Xxxxx Group Limited, a Delaware corporation (collectively, the
"Xxxxx Indemnitees");
WHEREAS, the UpREIT has entered into that certain Tax Indemnification
Agreement, dated as of November 17, 1997 (the "Hadesman Tax Indemnity
Agreement") with Xx Xxxxxxxx, an individual, Xxxxxx X. Xxxxxxxx Trust Dated May
22, 1992, Xxxxxx X. Xxxxxxxx, Trustee; Grandville/Northwestern Management
Corporation, an Illinois corporation; Xxxxxxx X. Xxxxxxxx Trust Dated May 21,
1992, Xxxxxxx X. Xxxxxxxx, Trustee; Xxxx Xxxxxxxx 1991 Trust, Xxxxxx X.
Xxxxxxxx, Trustee; Xxxxxxx Xxxxxxxx 1991 Trust, Xxxxxx X. Xxxxxxxx, Trustee;
Xxxxxx X. Xxxxx, an individual; Xxxxxxx X. Xxxxxxx, an individual; Grandville
Road Property, Inc., an Illinois corporation; and Sky Harbor Associates, an
Illinois limited partnership (collectively, the "Hadesman Indemnitees");
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. DEFINITIONS. For purposes of the Agreement, capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to them in the Partnership Agreement or either of the Hadesman Tax
Indemnity Agreement or the Xxxxx Tax Indemnity Agreement (collectively, the "Tax
Indemnity Agreements"); provided however for purposes of this Agreement the term
"After-tax Basis" shall take into account all federal, applicable state and
applicable local and municipal income taxes. Any term defined by reference to
an agreement, instrument or other document shall have the meaning so assigned to
it whether or not such document is in effect. Unless otherwise indicated,
references in the Agreement to articles, Sections, paragraphs, clauses,
appendices, schedules and exhibits are to the same contained in or attached to
this Agreement.
Section 2. INDEMNIFICATION. Prime shall indemnify and hold harmless,
on an After Tax Basis, UpREIT against any amount due and payable to a Xxxxx
Indemnitee or a Hadesman Indemnitee pursuant to the Tax Indemnity Agreements
("Indemnity Payment"), determined after taking into account all deductions,
credits, or other federal and applicable state income tax benefits then realized
by UpREIT and resulting from (a) such Indemnity Payment, or (b) the receipt of
any indemnity payment made under this Agreement.
Section 3. NOTIFICATION/PAYMENT.
(a) UpREIT shall notify Prime orally and in writing of as soon as possible
of its receipt of any oral or written notification or written certificate
described in Section 4 of each of the Hadesman Tax Indemnity Agreement or the
Xxxxx Tax Indemnity Agreement.
(b) UpREIT agrees to act in good faith to claim any tax benefits
(including filing claims for refunds and amended tax returns) and take such
other actions as may be reasonable to minimize the net amount of any indemnity
payment due from Prime hereunder and to maximize the amount of its tax savings;
PROVIDED, HOWEVER, that UpREIT shall not be required to take any action which,
in its good faith judgment, would have any material adverse business
consequences to it or to Prime Group Realty Trust. Prime shall have the right to
timely and comprehensively review any computation of any Indemnity Payment
received or prepared by UpREIT or the independent accounting firm described in
Section 4 of each Tax Indemnity Agreement.
(c) Any payment due to UpREIT pursuant to this Section 2 shall be paid
upon the time an Indemnity Payment is due under the respective Tax Indemnity
Agreement.
Section 4. EXCLUSIONS.
Notwithstanding the foregoing, Prime shall not have any liability for
indemnification under this Agreement to the extent the amount otherwise
indemnifiable is payable by UpREIT as a result of one or more of the following:
(a) The failure of UpREIT (or any of its Affiliates, other than
Prime) to use its best efforts to avoid liability to a Hadesman Indemnitee or
Xxxxx Indemnitee under the Tax Indemnity Agreements (including, without
limitation, the failure to pursue a like kind exchange under Code Section 1031
in respect of the transaction that gave rise to the Indemnity Payment);
(b) The gross negligence or the willful misconduct of UpREIT (or any
of its Affiliates, other than Prime);
(c) The breach by UpREIT (or any of its Affiliates, other than Prime)
of any of its representations, warranties or covenants under this Agreement or
any Tax Indemnity Agreement.
Section 5. CONTESTS.
(a) To the extent that UpREIT is permitted or has any discretion
under the relevant Tax Indemnity Agreement to contest an issue that may result
in Prime owing UpREIT an Indemnity Payment, or otherwise to make decisions or
give its consent in respect of such contest or any other matter within such Tax
Indemnity Agreement that could affect Prime's obligation to indemnity UpREIT
under this Agreement, UpREIT (i) shall take direction from Prime (which shall be
given on a timely basis) in respect of all such decisions, discretion or
consents relating to such
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contest or matters, and (ii) shall permit Prime to have access to all
information and to participate in all proceedings, as it deems necessary in its
sole reasonable discretion, in order to give the direction to Prime described in
clause (i).
(b) Notwithstanding the foregoing, UpREIT will have no obligation to
take direction from Prime in respect of a contest which could result in Prime
owing UpREIT indemnification under this Agreement (i) without Prime paying when
due, reasonable third-party costs and out-of-pocket expenses including
reasonable legal, witness and accounting fees and other expenses and, in the
case of proceedings before the Court of Federal Claims or Federal District
Court, the amount of tax (and any applicable interest and penalties) for which
refund is claimed, or (ii) to the extent UpREIT waives in writing Prime's
obligation to indemnify UpREIT for such items, in which case all third-party
costs and out-of-pocket expenses described in clause (i) thereafter incurred and
all taxes would be paid by UpREIT.
Section 6. TAX SAVINGS.
(a) In the event that Prime makes an indemnity payment pursuant to
Section 3, if UpREIT shall realize with respect to any year, any federal,
applicable state or applicable local or municipality income tax savings that
would not have been realized but for either UpREIT's receipt of such payment or
the related Indemnity Payment (which tax savings were not taken into account in
calculating Prime's indemnity payment to UpREIT), UpREIT shall pay to Prime, on
an After-Tax Basis, an amount equal to the actual net reduction in federal and
applicable state income tax actually realized by UpREIT; provided, however, that
in no event shall UpREIT be required to pay Prime more, on an aggregate basis,
than the aggregate Indemnity Payments it receives from Prime.
(b) In the event that UpREIT receives a payment from a Xxxxx
Indemnitee in respect of a tax savings under Section 7 of the Xxxxx Tax
Indemnity Agreement, UpREIT shall pay to Prime such an amount.
(c) Any payment due to Prime pursuant to this Section 6 shall be paid
within ten business days after UpREIT has received the corresponding payment
from a Xxxxx Indemnitee or Hadesman Indemnitee; PROVIDED, HOWEVER, that (i)
obligations of Prime and UpREIT under this Agreement will first be set off
against each other, and (ii) any loss of such tax savings by UPREIT subsequent
to the year of realization shall be indemnifiable pursuant to the provisions of
this Agreement.
Section 7. STATE TAX. For purposes of this Agreement, each of UpREIT
and Prime will be treated as recognizing any taxable income, realizing any
deductions, credits or other income tax benefits, having the same tax savings
and having the same tax attributes and status for applicable state income tax
purposes at the same time, in the same amount and in the same manner, as such
person does for federal income tax purposes.
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Section 8. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
Section 9. NOTICES. All notices, demands, declarations, consents,
directions, approvals, instructions, requests and other communications required
or permitted by the terms hereof shall be given in the manner described in
Section 14.1 of the Partnership Agreement.
Section 10. SUCCESSORS AND ASSIGNS. The terms of this Tax
Indemnification Agreement may not be assigned without the written consent of the
non-assigning party.
Section 11. MISCELLANEOUS. This Agreement may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one Agreement. Any provision of this Agreement which is
prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Neither this Agreement
nor any of the terms hereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement, waiver
or modification is sought.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective Officers thereunto duly authorized as of
the day and year first above written.
PRIME GROUP REALTY, L.P.
By: PRIME GROUP REALTY TRUST
Its: Managing General Partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President and CEO
THE PRIME GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board
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