Exhibit 10.81
TERMINATION AND RELEASE AGREEMENT
This Termination and Release Agreement (this "Agreement") is made and
entered into as of November 9, 2004 (the "Effective Date") by and between The
Prime Group, Inc, an Illinois corporation ("PGI") and Prime Group Partners, LLC,
an Illinois limited liability company (together with PGI, "Indemnitor") and
Prime Group Realty, L.P., a Delaware limited partnership, in its individual
capacity and as general partner of the limited partnerships which own the
Properties (as defined in the Indemnification Agreement (as defined below))
(Prime Group Realty, L.P. and each such partnership, collectively, "Indemnitee"
and, together with Indemnitor, the "Parties" or individually a "Party") with
respect to the Environmental Remediation and Indemnification Agreement made and
entered into as of the 17th day of November, 1997, by and between Indemnitor and
Indemnitee, as amended (the "Indemnification Agreement"). Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to such terms
in the Indemnification Agreement.
W I T N E S S E T H :
WHEREAS, the Parties desire to terminate the Indemnification
Agreement, terminate any and all obligations or liabilities of the Parties which
would otherwise survive the termination of the Indemnification Agreement
pursuant to its terms and release and covenant not to xxx each other with
respect to any and all of their respective rights and claims whatsoever with
respect to the Indemnification Agreement, upon the terms and conditions set
forth in this Agreement; and
WHEREAS, this Agreement is executed and delivered pursuant to the
terms of the Merger Agreement (as defined in Section 4(a) hereof).
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, hereby agree as follows:
1. Termination and Indemnity. As of the Effective Date, the Parties agree to
terminate the Indemnification Agreement and forever extinguish any and all
obligations of the Parties which would otherwise survive the termination of the
Indemnification Agreement pursuant to its terms; provided, however, Indemnitor
shall have the right to continue to pursue the Litigation and shall be entitled
to any and all Litigation Awards, and Indemnitee shall reasonably cooperate with
Indemnitor's pursuit of the Litigation and, if applicable, the collection of any
Litigation Awards. Notwithstanding the foregoing, Indemnitor shall not have the
right to take or omit to take any action in the Litigation, or settle or
compromise the Litigation, in a manner which would create any liability or could
reasonably be expected to result in liability for Indemnitee and/or any of its
affiliates, without Indemnitee's prior written consent. Indemnitee shall have
the right to discuss the Litigation on a regular basis with the attorneys
handling the Litigation on behalf of Indemnitor and Indemnitee and be copied on
all court filings and drafts of court filings, it being acknowledged that
affiliates of Indemnitee are parties to the Litigation and are also being
represented by Indemnitor's attorneys in the Litigation. Indemnitor hereby
indemnifies Indemnitee and holds Indemnitee harmless for all costs and expenses
relating to the Indemnitor's pursuit of the Litigation and Indemnitee's
cooperation therewith, including, without limitation, all court costs, legal
fees and expenses and costs relating to claims of the other parties to the
Litigation. Indemnitee shall have the right, at its sole option, to assign the
claims relating to the Litigation to Indemnitor pursuant to an assignment and
assumption agreement in form and substance reasonably satisfactory to Indemnitee
and Indemnitor.
2. Mutual Release. Subject to the provisions of Section 4 hereof, upon the full
execution of this Agreement, the Parties hereby mutually release and discharge
from and covenant not-to-xxx each other (including for purposes of this
Agreement, each Party's current and former officers, trustees, directors,
members, managers, shareholders, employees, representatives, affiliates and
agents) with respect to any and all claims or rights such Party may have now or
in the future as against the other Party pursuant to the Indemnification
Agreement or otherwise in relation to any claims, losses, damages, costs or
expenses whatsoever, including, without limitation, Costs and any obligations
with respect to Known Contamination, Remedial Work, the NFR Letter and any
Covenant Not to Xxx (collectively "Claims"), as well as all other potential
past, present or future Claims, known or unknown, anticipated or unanticipated,
that relate to the Indemnification Agreement. This release, discharge and
covenant not-to-xxx operates regardless of whether a Claim is discovered or
impacts a Party before or after the Effective Date.
3. Scope of Agreement.
(a) Nothing in this Agreement shall (i) release the Parties from performing
the terms, conditions, covenants, agreements and promises of this Agreement or
the Agreement and Plan of Merger, dated as of October 27, 2004 (the "Merger
Agreement"), by and among Indemnitee, Prime/Xxxxxx Investment Partners, LLC,
Cumberland Blues, LLC, Cumberland Blues Merger Sub, LLC and Prime Group Realty
Trust or (ii) be deemed to be a release of Indemnitee by any of Indemnitor's
current and former officers, directors, members, managers, shareholders,
employees, representatives, affiliates and agents, in each case in their similar
capacity with Indemnitee, if any, of Indemnitee's indemnity or other obligations
owing to such persons pursuant to Indemnitee's organizational documents or other
agreements between any of the foregoing and Indemnitee, if any. In addition,
Indemnitee agrees to enforce the obligations of CenterPoint Properties Trust and
its affiliates to remediate the Properties pursuant to that certain
Environmental Escrow Agreement, dated October 8, 2004, by and among Indemnitee,
CenterPoint Properties Trust ("CenterPoint") and Chicago Title and Trust
Company.
(b) The Parties acknowledge that, subsequent to the execution of this
Agreement, one or more of them may discover, incur or suffer Claims that were
unknown or unanticipated at the time that this Agreement was executed and are
related to events, conduct, circumstances, acts or omissions on or prior to the
Effective Date, including without limitation unknown or unanticipated Claims
that arose from, were based upon or were related to the Indemnification
Agreement or some part or aspect thereof. THE PARTIES EXPRESSLY ASSUME THE RISK
OF SUCH UNKNOWN AND UNANTICIPATED CLAIMS AND AGREE THAT THIS AGREEMENT APPLIES
WITHOUT LIMITATION TO ALL SUCH UNKNOWN AND UNANTICIPATED CLAIMS, REGARDLESS OF
WHETHER (IF KNOWN OR ANTICIPATED) THOSE CLAIMS MIGHT HAVE AFFECTED THEIR
DECISION TO EXECUTE THIS AGREEMENT AND REGARDLESS OF WHETHER THOSE CLAIMS ARE
DISCOVERED OR INCURRED BEFORE OR AFTER THE EFFECTIVE DATE.
(c) It is the intention of the Parties in executing this Agreement that
this Agreement and its terms shall be effective as a full and final accord and
satisfaction and release from any and all matters released hereunder, to the
extent described herein.
4. Authority. Each Party to this Agreement hereby warrants, covenants and
represents that the individual signing this Agreement for the Party has full
authority to execute this Agreement and that, when executed, this Agreement
shall be valid, binding, and legally enforceable against the Party. In executing
this Agreement, the Parties acknowledge that they have had the opportunity to
consult with and be advised by an attorney of their choosing, that they have
read and are satisfied with the terms incorporated herein, which represent a
full and fair release of Indemnitor, and that they have executed this Agreement
after independent investigation and without fraud, duress or undue influence.
5. Ownership of Claims. The Parties represent and warrant that they own
exclusively the respective Claims that are the subject of this Agreement, that
they have the exclusive right to release such Claims and that they have not
sold, assigned, transferred, conveyed or otherwise disposed of any Claims
covered hereby.
6. Entire Agreement. The Parties agree that this Agreement contains the entire
understanding of the Parties with respect to the subject matter hereof and
supersedes all prior agreements, whether written or oral, between the Parties
with respect to the subject matter hereof and may not be modified, altered or
changed without the reduction to a writing, signed by the Parties, of any such
alteration, modification or change. The terms and conditions of this Agreement
shall be binding upon and shall inure to the benefit of the Parties hereto and
their respective representatives, successors and assigns. This Agreement is
intended to benefit only the Parties and their current and former officers,
directors, employees, representatives and agents and shall not create any
rights, claims, actions or interests, whether intentionally or otherwise, in any
other third-parties. Each of the Parties has had the opportunity to be fully and
competently represented by counsel of their own choosing in the negotiation and
drafting of this Agreement. Accordingly, the Parties agree that any rule of
construction of contracts resolving any ambiguities against the drafting party
shall be inapplicable to this Agreement.
7. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or the validity of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
8. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
9. Governing Law. All questions concerning the construction, validity and
interpretation of this Agreement and the exhibits hereto shall be governed by
and construed in accordance with the internal laws of the State of Illinois,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first above written.
THE PRIME GROUP, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
PRIME GROUP PARTNERS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President
PRIME GROUP rEALTY, L.P.
By: PRIME GROUP REALTY TRUST,
a Maryland real estate investment trust,
its Managing General Partner
By:/s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President and CEO
