EXHIBIT 99.4
SECOND AMENDMENT TO CONTRIBUTION AGREEMENT
THIS SECOND AMENDMENT (this "Second Amendment") made as of the 29th day of
August, 2003 between PRIME GROUP REALTY, L.P., ("PGRLP"), and XXXX Chicago,
L.C., ("XXXX");
WITNESSETH
RECITALS:
A. PGRLP and XXXX entered into a Contribution Agreement dated August 4,
2003 as amended by First Amendment to Contribution Agreement dated as
of August 18, 2003 (the "Agreement").
B. The parties desire to amend the Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed:
1. A new subparagraph X is hereby added to Section 9.1 of the
Agreement as follows: "The estimated $1,183,500.00 needed for
punch list items as reflected In Section 5 on pages 7, 8 and 9 of
the ValCon Consultants, Inc. Existing Building Report (the
"Valcon Report") dated August 27, 2003 consists of (i) $682,500
in punch list items (item 1 in the Valcon Report) that are
included in the amount of the Existing Tenant Improvement Escrow,
(ii) $486,000 for future tenant improvements costs (item 2 in the
Valcon Report) to be funded by the tenant improvements reserve in
the Approved Loan, and (iii) $15,000 in other work (items 3-11 in
the Valcon Report) which PGRLP will either cause to be completed
by the contractor as part of the punch list at no additional cost
to Dearborn Center or charged to the tenants who caused the
conditions requiring such work.
2. A subparagraph (c) is hereby added to Section 8 of the Management
Agreement attached as Exhibit II to the Agreement reading as
follows:
"(c) Anything in this Agreement to the contrary notwithstanding,
Manager acknowledges and agrees that for the period between the
date hereof and ending December 31, 2004 (the "Subordination
Period"), in the event there is not sufficient "Distributable
Cash" (as defined in the Amended and Restated Limited Liability
Company Agreement of Dearborn Center, L.L.C. dated as of the date
hereof, the "Operating Agreement") to pay the UST Priority Return
at any time during the Subordination Period, the Management Fees
will be subordinate to the UST Priority Return to the extent of
such insufficiency and will accrue beyond the Subordination
Period to the extent sufficient Distributable Cash is not
available relating to the Subordination Period. Any amounts so
accrued shall be payable solely from any Net Sale or Refinancing
Proceeds prior to the return to "UST" of any "UST Invested
Capital" and prior to the return to "Prime" of any "Prime
Invested Capital" (as such terms in quotations are defined in the
Operating Agreement). Nothing in this subparagraph (c) shall
affect the rights of UST to collect the UST Administrative Fee
during the Subordination Period notwithstanding other provisions
in this Agreement which provide for payment of the Management
Fees and the UST Administrative Fee on a pari passu basis."
3. Section 1.1.62 of the Operating Agreement attached as Exhibit III
to the Agreement is hereby amended by adding the following new
sentence at the end thereof: "Notwithstanding the foregoing,
during the period that the Property Manager's "Management Fees"
(as defined in the Property Management and Leasing Agreement) are
subordinated to the UST Priority Return, the foregoing provision
providing for the UST Administrative Fee to be paid on a pari
passu basis with the Management Fees due to the Property Manager
shall not apply to the extent that any of the Management Fees are
delayed or not paid solely because of such subordination."
4. Section 5.1 of the Operating Agreement is hereby amended by
inserting the parenthetical phrase "(subject, however, to the
subordination provisions contained in Section 8(c) of the
Management and Leasing Agreement)" after the words "management
fees" in the fifth from bottom line thereof.
5. PGRLP agrees that in connection with the performance of the
remaining work to complete the Project as described in Section
12.4(A) of this Agreement, it shall be PGRLP's obligation to
satisfy or cause the appropriate contractors to satisfy the
conditions of the Redevelopment Agreement so that (a) the City of
Chicago issues the Certificate described in Section 7.01 of the
Redevelopment Agreement and (b) the principal amount of the
Developer Note is at least $9,412,229.
6. Except as amended hereby, all terms and provisions of the
Contribution Agreement and Exhibits thereto remain in full force
and effect in accordance with their terms.
7. Faxed signatures on the Second Amendment shall be binding as
originals.
8. This Second Amendment may be executed in counterparts all or
which shall be deemed to be the same amendment.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Second Amendment has been executed as of the
day and year first above written.
PRIME GROUP REALTY, L.P.
By: Prime Group Realty Trust
it managing general partner
By: /s/ Xxxxxxx X. Xxxxx
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XXXX CHICAGO, L.C.
By: Estein Management
Corporation, its manager
By: /s Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President