SEPARATION AGREEMENT
This Separation Agreement (the "Agreement") is made and entered into this
23rd day of February, 2000 (the "Effective Date"), by and between Prime Retail,
Inc., a Maryland corporation ("Prime") and the sole general partner of Prime
Retail, L.P., a Delaware limited partnership (the "Operating Partnership"), the
Operating Partnership (Prime and the Operating Partnership are sometimes
hereinafter together referred to as the "Company"), and Xxxxxxx Xxxxxxxxx, an
individual domiciled in the State of Maryland (the "Executive").
Witnesseth
WHEREAS, Prime, the Operating Partnership and the Executive entered into a
Combined Service and Special Distribution and Allocation Agreement on March 19,
1998, effective as of January 1, 1998 (the "Combined Agreement"); and
WHEREAS, pursuant to the Combined Agreement the Executive is employed by
the Company as its Chief Executive Officer and the Executive is a member of
Prime's Board of Directors (the "Board"); and
WHEREAS, the Executive is also employed as an officer, or serving as a
director, of certain affiliates and subsidiaries of the Company;
WHEREAS, the Executive and the Company desire to sever their employment
relationship and the Executive's Board membership (including Executive's
positions as an officer or director of any affiliate or subsidiary of the
Company) on amicable and agreeable terms effective February 23, 2000 (the
"Separation Date").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto, the
parties agree as follows:
1. Separation from Employment. The Executive hereby elects to terminate his
employment with the Company (and all affiliates and subsidiaries) without "Good
Reason" (as such term is defined in the Combined Agreement) effective as of the
Separation Date. The Executive's membership on Prime's Board, and any committee
thereof, and the boards of directors, and committees thereof, of all affiliates
and subsidiaries of the Company upon which the Executive currently serves, will
also terminate as of the Separation Date. The parties hereto waive any advance
notice of such termination that may be required under the terms of the Combined
Agreement.
The parties hereto have agreed on a joint public announcement of the
Executive's separation, which announcement is attached hereto as Exhibit A.
Because the announcement sets forth in detail the parties' understandings in
connection with the Executive's separation, the parties hereby agree that,
except as required by law, no further announcements or disclosures are
warranted. Notwithstanding the foregoing, before any party makes any disclosure
about the Executive's separation, the party agrees to notify the other parties
hereto, such notice to include a detailed summary of the proposed disclosure.
The parties further agree that the termination of their employment relationship
is as a result of a joint amicable decision and does not merit any disparaging
remarks or comments of any party hereto, and such remarks or comments shall be
deemed a breach of this Agreement.
2. Separation Payments. The Executive is entitled to receive the following
payments on account of his separation (collectively, the "Separation Payments"):
(a) Base Distributions. The Operating Partnership will pay to the Executive
all accrued but undistributed amounts of the Base Distribution (as such term is
defined in the Combined Agreement) through March 1, 2000. The payment will be
made on or prior to March 2, 2000, but in any event following the Revocation
Period set forth in Section 15 below;
(b) Special Distribution. On or prior to March 1, 2000, but in any event
following the Revocation Period, the Operating Partnership will make a special
distribution (the "Special Distribution") to the Executive or to his designated
affiliates equal to the aggregate balance of unpaid principal and interest as of
the date of such distribution with respect to that certain Secured Promissory
Note of Xxxxxxxxx Family LLC dated March 22, 1994 (as modified by that certain
Allonge dated January 1, 1996) (the "Note"), which amount totaled $628,927.85 as
of December 31, 1999. The Executive hereby agrees that all then outstanding
obligations under the Note should automatically accelerate upon the date of such
distribution and that the Executive shall cause all such obligations to be paid
in full; and
(c) Severance Distribution. The Operating Partnership will pay to Executive
an amount equal to $1,750,000 (the "Severance Distribution"), of which $600,000
shall be payable on the day following the Revocation Period set forth in Section
15 below. The balance shall be paid, without interest, in eighteen (18) equal
monthly installments of $63,888.89 payable on the last day of each month (or, in
the event such day is not a business day on the next succeeding business day)
commencing March 31, 2000.
All payments made by the Operating Partnership pursuant to subparagraphs
(a) and (c) above shall be treated as "guaranteed payments" within the meaning
of Section 707(c) of the Internal Revenue Code of 1986, as amended (the "Code").
The Company agrees that, except to the extent that it would be detrimentally
affected, the Operating Partnership will specifically allocate, in accordance
with Section 704(c) of the Code, the corresponding deductions that are available
to the Operating Partnership as a result of such distributions as guaranteed
payments to the Executive to the maximum extent to which the Executive can
utilize the same on his individual federal or state income tax returns for any
calendar year.
All payments made by the Operating Partnership pursuant to subparagraph (b)
above shall be deemed a distribution pursuant to Section 731(a) of the Code and
not as a guaranteed payment pursuant to Section 707(c) of the Code.
The provisions of this Section 2 shall supercede any provisions in the
Operating Partnership's Partnership Agreement which are contrary hereto.
All payments or distributions not made when due in accordance with this
Section 2 shall accrue interest at a rate per annum equal to the prime or base
lending rate from time to time announced by Mercantile - Safe Deposit & Trust
Company plus 2.5% (the "Interest Rate").
In the event any payment or distribution pursuant to this Section 2 is not
made within 30 days after it becomes due, then all remaining obligations of the
Company under this Section 2 shall immediately become due and payable. In the
event of any such acceleration, all costs of collection incurred by Executive
(including attorneys' fees) shall be borne by the Company.
3. Business Expenses. The Executive shall, in accordance with the Company's
customary policies and procedures, be reimbursed for all business expenses
incurred through and including the Separation Date for which the Executive
submits appropriate invoices and similar records.
4. Employee Benefits. The Executive and his eligible dependents are
entitled to receive:
(a) Company-provided health insurance benefits, of a type and nature no
less favorable to the Executive than were in effect as of the Separation Date,
for the 18-month period beginning on the Separation Date; and
(b) Company-provided life insurance benefits under the Company's $2 million
term life insurance policy on the life of the Executive for the 18-month period
beginning on the Separation Date.
Notwithstanding the foregoing, the Company-provided health and life
insurance benefits will terminate prior to the expiration of the 18-month period
if the Executive becomes covered by a subsequent employer's health or life
insurance program which provides comparable benefits to the Executive and
imposes no pre-existing condition exclusion with regard to his coverage or his
eligible dependents' coverage. The Executive agrees that he will immediately
notify the Company in writing of his obtaining subsequent employment which
provides health and welfare benefits during the 18-month period beginning on the
Separation Date. Following the 18-month period of Company-provided health
insurance benefits described in subparagraph (a) above, the Executive will be
entitled to all rights afforded to him under the federal Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA") to purchase continuation coverage of
such health insurance benefits for himself and his eligible dependents for the
maximum period permitted by law. To the extent required by applicable law, the
Executive will be deemed to have elected to exercise his rights under COBRA as
of the first day of such 18-month period.
Notwithstanding anything to the contrary contained herein, the Executive
has the right to acquire the $2 million term life insurance policy obtained by
the Company on the life of the Executive by (i) notifying the Company in writing
of his desire to so purchase such life insurance policy or policies and (ii)
tendering to the Company a cashier's check in an amount equal to the
interpolated cash surrender value of such life insurance policy or policies
together with any unearned portion of any current year premium thereof, both
within 60 days of the effective date of such termination.
(c) The Executive is entitled to receive all vested benefits under the
Company's 401(k) plan. No accrual of service time will be possible after the
Separation Date for purposes of the Executive's entitlement to any employee
benefit, including a pension, 401(k) or profit sharing benefit, long-term
disability benefit or vacation pay. The Executive will be eligible for a
matching contribution under the Company's 401(k) plan, if the plan so permits,
for any elective deferrals made by the Executive on or before the Separation
Date. The Company shall, if the plan so permits, allow the Executive to withdraw
any vested amount in the Company's 401(k) plan.
5. Restricted Stock Awards and Stock Options. The Executive acknowledges
and agrees that he is not eligible to receive any awards made under Prime's 1999
Long-Term Incentive Program (the "1999 LTIP") and that all rights and benefits
of the Executive under the 1999 LTIP shall cease as of the date hereof.
As of the Separation Date, all of the Executive's options awarded under the
Prime Retail, Inc. 1998 Long-Term Stock Incentive Plan (the "Option Plan") will
become fully vested, to the extent that any portion of the options are unvested.
Exhibit B attached hereto sets forth certain information with respect to the
options awarded to Executive under Prime's option and incentive plans.
6. Executive's Ownership Interests in Related Entities. On the date hereof
and in consideration for the payment of $100.00 in cash and the promises and
covenants of the Company contained herein, the Executive agrees to execute and
deliver to the Company or its designee any and all certificates for shares of
capital stock (with appropriate stock powers attached and properly signed) of
the Company's subsidiaries and affiliates (other than the Operating
Partnership), including, but not limited to, Prime Retail Services, Inc., Prime
Retail E-Commerce, Inc. and Prime Retail Furniture, Inc. (all of which are
Maryland corporations) (the "Subsidiary Shares"). The Executive further agrees
to execute and deliver such other documentation as the Company reasonably
requests to effect the assignment of the Subsidiary Shares. For the avoidance of
doubt, nothing contained in this Section 6 shall be deemed to require the
Executive to transfer or carry any of his equity interests in Prime or the
Operating Partnership.
7. Office and Administrative and Technical Assistance. For the six-month
period following the Separation Date, the Company will, at its sole expense,
provide the Executive an office on the 15th floor of its Baltimore, Maryland
facility with such secretarial assistance as the Executive shall reasonably
require. To the extent acceptable to the Executive and the Company, such office
facilities and secretarial assistance may also be provided through the
outplacement firm retained by Executive pursuant to Section 9 below. The
Executive will be permitted to remove from the Company's premises the computer
and related equipment currently located in his office and the Executive will be
under no obligation to return such equipment. The Executive will also be
permitted to retain the home fax machine, the phone number dedicated to such
machine and the mobile phone furnished to him by the Company; provided that all
costs and expenses related to the ownership, use or service of such items on and
after the Separation Date shall be borne solely by the Executive. For the
six-month period following the Separation Date, the Executive will receive, at
no charge to the Executive, technical assistance from the Company's MIS
Department regarding the installation and operation of his computer, whether on
the Company's premises or elsewhere. The parties further agree that the value of
the equipment retained by the Executive pursuant to this Section 7 shall be the
book value thereof as reflected in the accounting records of the Company as of
the month end immediately preceding the Separation Date.
8. Property of the Company. All originals and copies of books, records,
documents, customer lists, sales materials, tapes, keys, credit cards and other
tangible property (excluding the computer, fax and phone equipment described in
Section 7 above) of the Company within the Executive's possession or under his
control will be returned to the Company on or before the Separation Date.
Notwithstanding the foregoing, the Executive also shall be permitted to retain
his original rolodex and all awards and similar mementos received by him during
his tenure with the Company.
9. Outplacement Assistance. For the 12-month period following the
Separation Date, the Executive will be permitted to utilize the services of a
professional outplacement firm of his choice and the Company will pay the
reasonable fees associated therewith, up to a maximum of $20,000 (excluding any
charge relating to the provision of office and secretarial services of the
nature described in Section 7 above).
10. Legal Fees. The Company shall promptly pay, or reimburse the Executive
for, the legal fees and expenses of counsel to the Executive in connection with
the preparation, negotiation, execution and delivery of this Agreement, up to a
maximum of $5,000, plus expenses.
11. Coverage under Prime's Directors' and Officers' Liability Insurance
Policies. For a period of three years beginning on the Separation Date, Prime
shall provide, or cause to be provided, to the Executive, at no charge to the
Executive, directors' and officers' liability insurance protection substantially
equivalent in kind and scope as that provided by Prime's directors' and
officers' liability insurance policies as in effect from time to time.
12. Accounting and Tax Services. For the three-year period beginning on the
Separation Date, the Company will pay any reasonable fees the Executive incurs
for professional accounting and tax services rendered to him in connection with
his interest in Prime Retail, L.P. to the extent that such fees are in excess of
$3,000, which is the average of such fees incurred by the Executive during the
1998 and 1999 calendar years. Without limiting the foregoing, the Company will
pay the reasonable fees the Executive incurs for legal, accounting and tax
services rendered to him in connection with a Change of Control, as such term is
defined in the Combined Agreement, up to a maximum of $15,000 per transaction.
13. Indemnification Matters. After the Separation Date, Prime shall, to the
same extent and on the same terms and conditions provided for in Prime's
articles of incorporation and bylaws, in each case as of the date of this
Agreement, to the extent consistent with applicable law, indemnify and hold
harmless the Executive against all costs and expenses (including reasonable
attorneys' fees), judgments, fines, losses, claims, damages, liabilities and
settlement amounts paid in connection with any claim, action, suit, proceeding
or investigation (whether arising before or after the Separation Date), whether
civil, administrative or investigative, arising out of or pertaining to any
action or omission in the Executive's capacity as an officer or director, in
each case occurring on or before the Separation Date; provided, however, that
there shall be no indemnification for the Executive in relation to matters as to
which the Executive is adjudged to have been guilty of fraud or intentional act
of malfeasance, in which event the Executive shall indemnify the Company for any
costs, losses, damages, judgments, liabilities and expenses (including
reasonable attorneys' fees) which may be suffered by the Company in connection
therewith.
The parties agree to reasonably cooperate in the future to the extent that
either party is needed by the other as a witness in any litigation and in any
transaction matters related to the Executive's departure or other matters
arising out of the operations of the Company prior to such termination taking
into account each party's other commitments. The Company will reimburse the
Executive for any reasonable out-of-pocket expenses he incurs in connection with
his compliance with this provision.
Expenses incurred by the Executive in connection with any claim for
indemnification shall be paid by the Company in advance upon the written request
of the Executive. At the Company's option and at its sole expense, it may
provide legal counsel on behalf of the Executive in the defense of any claim
arising out of his employment with the Company; provided, however, that the
Executive retains the right to participate in the defense of any such action.
14. Mutual Release and Waiver. The Executive, on the Executive's behalf as
well as on behalf of the Executive's spouse, agents, representatives, heirs,
executors, administrators, successors, assigns and anyone claiming through the
Executive, hereby forever irrevocably releases, relinquishes and waives all
rights that the Executive has had or now has against Prime or the Operating
Partnership (including any past, present and future subsidiaries, affiliated
entities, officers, directors, partners, shareholders, employee benefit plans,
trustees, fiduciaries and agents), whether known or unknown, in any way related
to his employment by the Company, or the termination thereof, with respect to
any and all actual or potential:
(a) claims against the Company based on the common law, including, but not
limited to, claims of personal injury, emotional and mental distress, injury to
personal reputation, defamation (including libel or slander), or termination or
denial of employment in contravention of the common law or any federal, state,
local or public policy, law or regulation;
(b) claims against the Company based on any contract, express or implied;
(c) claims against the Company based upon alleged violation(s) of any
statute, regulation or ordinance, whether federal, state or local, based upon
any other federal, state or local policy, including but not limited to, any and
all claims under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. Section 2000 et seq., the Age Discrimination in Employment Act, 29 U.S.C.
Section 621 et seq., the Americans With Disabilities Act, 42 U.S.C. Section
12101 et seq., the Employee Retirement Income Security Act of 1974, as amended,
29 U.S.C. Section 1001 et seq., the Fair Labor Standards Act, 29 U.S.C. Section
201 et seq., the Family and Medical Leave Act, 29 U.S.C. Section 2601 et seq.;
and all other federal, state or local laws touching upon the employment
relationship; and
(d) claims against the Company based upon any theory of alleged equitable
entitlement to relief.
Notwithstanding the foregoing, the Executive does not release Prime or the
Operating Partnership from any claims or causes of action against either party
arising solely out of the Executive's ownership of any capital stock or
partnership interests of Prime or the Operating Partnership.
The Company, on its behalf and on behalf of its successors and assigns,
hereby forever irrevocably releases, relinquishes and waives all rights that the
Company has had or now has against the Executive, whether known or unknown, in
any way related to his employment by the Company, or the termination thereof.
The parties hereto understand and agree that the releases set forth herein
do not in any affect the rights of either party to take whatever steps may be
necessary to enforce the terms of this Agreement or to obtain appropriate relief
in the event of any breach of the terms of this Agreement.
15. Opportunity to Employ Counsel. The Executive warrants, represents and
agrees that he has had sufficient opportunity to secure the services of a
privately-retained attorney of his free choice, who is an experienced lawyer
familiar with the rights the Executive waives herein; that he understands the
terms, obligations and rights he is releasing under this Agreement; that he has
had sufficient time to consider this Agreement before signing it; that he knows
and understands the rights he is waiving and the terms and consequences of his
signature on this Agreement; that he signs this Agreement knowingly,
voluntarily, in good faith, with a genuine intent to waive the rights identified
herein; and that he has not been subjected to any duress, coercion, fraud,
overreaching, exploitation or pressure to sign it. Further, the Executive
acknowledges that he has had 21 days within which to consult with an attorney
prior to executing this Agreement. The Executive has been given 7 days following
the execution of this Agreement (the "Revocation Period") to revoke this
Agreement and he understands and acknowledges that the Agreement shall not
become final until the Revocation Period has expired.
The parties hereto further agree that in executing this Agreement, none of
the parties is relying or has relied upon any representation or statement made
by the another party with respect to the facts involved in this matter, or with
regard to another party's rights or asserted rights. Both the Company and the
Executive assume the risk of any mistake of fact in connection with the true
facts involved in the Executive's employment relationship with the Company and
the termination of that employment relationship and with regard to any of the
facts which are now unknown to each party.
16. Restrictive Covenants.
(a) Non-Competition. Until the first anniversary of the Separation Date or
such earlier date as the Company shall be in breach of any material term of this
Agreement (the "Restrictive Period"), the Executive shall not, directly or
indirectly, in any capacity whatsoever, either on his own behalf or on behalf of
any other person or entity with whom he may be employed or associated, compete
with the Business (as hereinafter defined) by performing services of the types
that the Executive performed during his employment with the Company on behalf of
the Group (as herein defined) for himself, or any affiliate of himself or for
any competitor of the Group if such competitor engages in the Business within
the United States, Puerto Rico and Western Europe (the "Restrictive Geographic
Area"). For purposes hereof, "Group" shall mean Prime and the Operating
Partnership and any of their respective subsidiaries or affiliates, and the term
"Business" means the holding of any interest in, or the development or operation
of, (i) any real property within the retail business that is within a ten (10)
mile radius of any property owned, operated or being developed by the Company as
of the Separation Date or (ii) any real property within the Restrictive
Geographic Area at least 25% of the gross leaseable area of which is, or is
reasonably expected to be, occupied by tenants of the Company as of the
Separation Date. Notwithstanding the foregoing, nothing herein shall prohibit
the Executive from owning 5% or less of any securities of a competitor engaged
in the same Business if such securities are listed on a nationally recognized
securities exchange or traded over-the-counter on the National Association of
Securities Dealers Automated Quotation System or otherwise.
(b) Non-Solicitation During the Restrictive Period, the Executive shall
not, directly or indirectly, induce or attempt to persuade any employee or
customer, vendor or tenant of the Group, or any such entity which as of the
Separation Date the Executive knows is being actively pursued by the Group, to
terminate its business relationship with the Group or not proceed with a
business relationship with the Group.
(c) Non-Disclosure of Trade Secrets. During the Restrictive Period and in
the Restrictive Geographic Area, the Executive shall not disclose or use any
Trade Secret (as hereinafter defined) of the Group, whether such Trade Secret is
in the Executive's memory or embodied in writing or other physical form. For
purposes hereof, "Trade Secret" means any information that derives independent
economic value, actual or potential, with respect to the Company from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use and is
the subject of efforts to maintain its secrecy that are reasonable under the
circumstances, including, but not limited to, trade secrets, customer lists,
sales records and other proprietary commercial information. Said term, however,
shall not include general "know-how" information acquired by the Executive
during the course of his employment with the Company, or outside of his
employment with the Company, which could have been obtained by him from public
sources without the expenditure of significant time, effort, and expense.
(d) Notice of Subsequent Employment. For purposes of enforcing this Section
16, the Executive agrees that he will immediately notify the Company in writing
of his subsequent employment during the Restrictive Period.
(e) Permitted Activity. Nothing contained in this Section 16 shall limit or
restrict the Executive from seeking or discussing an employment, consulting or
other business relationship with any third party, including any party engaged in
the Business; it being acknowledged and agreed that prior to entering into any
such relationship that would violate the terms of this Section 16 Executive must
obtain the written consent of the Company. Any request for such a consent shall
be furnished in writing in accordance with Section 22 hereof.
17. Breach of Agreement. In the event of any actual or threatened breach of
Sections 1, 8, 14 or 16 of this Agreement, the Executive acknowledges and agrees
that the Company may seek to enforce the terms of this Agreement in a court of
law or equity and that the remedy at law or equity for any breach will be
inadequate. Therefore, the Company shall be entitled, in addition to any other
remedy at law or equity, to injunctive relief.
18. No Admissions. This Agreement results from a mutual decision and does
not constitute an admission by Executive, Prime, the Operating Partnership, or
any of the other released parties, of any violation of any federal, state or
local law, regulation, ordinance or statute or of any employment contract
(including the Combined Agreement), whether written or oral.
19. Amendment or Termination of Agreement. This Agreement may be amended at
any time by written agreement between Prime, the Operating Partnership and the
Executive. This Agreement shall remain in full force and effect until terminated
upon mutual consent of the parties in writing.
20. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all other agreements, either oral or written, between the parties hereto
with respect to the subject
matter hereof.
21. Successors and Assigns. All provisions of this Agreement shall inure to
the benefit of and be enforceable by the Executive's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees and the successors and assigns of Prime and the Operating
Partnership. If the Executive should die while any amounts are still payable to
him hereunder, all such amounts shall be paid in accordance with the terms of
this Agreement to the Executive's devisees, legatees or other designee or, if
there be no such designee, to the Executive's estate. The Company will require
any successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all the business and/or
assets of the Company, as the case may be, by agreement in form and substance
reasonably satisfactory to the Executive, expressly, absolutely and
unconditionally to assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no
such succession or assignment had taken place. Any failure of the Company to
obtain such agreement prior to the effectiveness of any such succession or
assignment will be a material breach of this Agreement.
22. Notices. Any notice required or permitted to be given under this
Agreement will be sufficient if in writing and if delivered in person or sent by
any national overnight delivery service or by certified mail to the following
addresses (or to any other address that any party may designate by notice to the
other parties hereto):
(a) if to the Executive, to:
Xxxxxxx Xxxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
(b) if to Prime or the Operating Partnership:
Prime Retail, Inc.
000 Xxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
with a copy to:
Xx. Xxxxxxx X. Xxxxxxx
Chairman of the Board of Prime Retail, Inc.
c/o The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
23. Governing Law. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of Maryland,
exclusive of the conflict of laws provisions of the State of Maryland.
24. Severability. The Company and the Executive each expressly agree and
contract that it is not the intention of any of the parties hereto to violate
any public policy, statutory or common law, and that if any sentence, paragraph,
clause or combination of the same of this agreement is in violation of the law
of any state where applicable, such sentence, paragraph, clause or combination
of the same shall be void in the jurisdictions where it is unlawful, and the
remainder of such paragraph and this Agreement shall remain binding on the
parties to make the covenants of this Agreement binding only to the extent that
it may be lawfully done under existing applicable laws. In the event that any
part of any covenant of this Agreement is determined by a court of competent
jurisdiction to be overly broad thereby making the covenant unenforceable, the
parties hereto agree, and it is their desire that such court shall substitute a
judicially enforceable limitation in its place, and that as so modified the
covenant shall be binding upon the parties as if originally set forth herein.
25. No Waiver. No failure or delay by the Company or the Executive in
enforcing or exercising any right or remedy hereunder shall operate as a waiver
hereof. No modification, amendment or waiver of this Agreement nor consent to
any departure by the Executive from any of the terms or conditions thereof,
shall be effective unless in writing and signed by an authorized officer of
Prime. Any such waiver or consent shall be effective only in the specific
instance and for the purpose for which given.
26. Counterparts. The parties may execute this Agreement in one or more
counterparts, all of which together shall constitute but one Agreement.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
EXECUTIVE: PRIME RETAIL, INC.
By: /s/ C. Xxxx Xxxxxxxx
-------------------------
/s/Xxxxxxx Xxxxxxxxx Name: C. Xxxx Xxxxxxxxx
-----------------------
Xxxxxxx Xxxxxxxxx Title: Executive Vice President,
General Counsel and
Secretary
PRIME RETAIL, L.P.
By: Prime Retail, Inc.
Its: General Partner
By: /s/ C. Xxxx Xxxxxxxxx
--------------------------
Name: C. Xxxx Xxxxxxxxx
Title: Executive Vice President,
General Counsel and
Secretary
