AMENDMENT TO THE AMENDED AND
RESTATED EMPLOYMENT AGREEMENT
THIS AMENDMENT TO THE AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (“Amendment”) is entered into this
31 st
day of December, 2008, by and
between Jeffrey A. Patterson (“Executive”), Prime Group
Realty Trust (“PGRT”) and Prime Group Realty, L.P.
(“Prime”) (PGRT and Prime are collectively referred to
herein as “Employer”) and provides as
follows:
WHEREAS, on May 31, 2005, Executive and
Prime Office Company, LLC (“Parent”) entered into an
amended and restated employment agreement (the “Employment
Agreement”), which Employment Agreement was later assumed by
Employer, who agreed to perform the obligations of Employer
thereunder;
WHEREAS, the parties desire to amend the
Employment Agreement to comply with Section 409A of the
Internal Revenue Code of 1986, as amended, as set forth in this
Amendment.
NOW, THEREFORE, in consideration of these
premises and intending to be legally bound, the parties agree as
follows:
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1.
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By replacing Section 5(a)(i)
with the following:
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“ Without Cause .
Employer may terminate this Agreement and Executive’s
employment at any time (other than for Cause, as that term is
defined in Section 5(a)(ii) hereof) upon thirty
(30) days’ prior written notice to Executive. In
connection with the termination of Executive’s employment
pursuant to this Section 5(a)(i), (A) Employer shall pay
to Executive Executive’s Base Compensation in accordance with
Section 3(a) hereof up to the effective date of such termination,
(B) Employer shall pay to Executive on the effective date of
such termination a pro rata portion of any Bonus Compensation
otherwise payable to Executive for or with respect to the calendar
year in which such termination occurs in accordance with Section
3(b) and Exhibit A hereof (including without limitation any
guaranteed bonus for such year) up to the effective date of such
termination and, to the extent not previously paid, all Bonus
Compensation payable to Executive in accordance with Section 3(b)
and Exhibit A hereof for or with respect to any calendar years
prior to the calendar year in which such termination occurs,
(C) Employer shall provide to Executive the benefits set forth
in Sections 3(c), 3(d) and 3(e) hereof up to the effective
date of such termination and (D) Employer shall pay to
Executive the Termination Compensation specified in, at the time
set forth in, Section 5(d) hereof. For purposes of this Agreement,
the ‘effective date of termination’ shall mean the last
day on which Executive is employed with Employer which may be later
than the date of the delivery of any applicable notice of
termination.”
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2.
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By replacing Section 5(a)(iii)
with the following:
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“ Disability . If due
to illness, physical or mental disability, or other incapacity,
Executive shall fail during any four (4) consecutive months to
perform the duties required by this Agreement, Employer may, upon
thirty (30) days’ written notice to Executive, terminate
this Agreement and Executive’s employment. In the event of
any such termination, (A) Employer shall pay to Executive
Executive’s Base Compensation in accordance with Section 3(a)
hereof up to the effective date of such termination, (B) Employer
shall pay to Executive on the effective date of such termination a
pro rata portion of any Bonus Compensation otherwise payable to
Executive for or with respect to the calendar year in which such
termination occurs in accordance with Section 3(b) and
Exhibit A hereof (including without limitation any guaranteed
bonus for such year) up to the first day of such four
(4) month period and, to the extent not previously paid, all
Bonus Compensation payable to Executive in accordance with Section
3(b) and Exhibit A hereof for or with respect to any calendar
years prior to the calendar year in which such termination occurs,
(C) Employer shall provide to Executive the benefits set forth
in Sections 3(c) (or the after-tax cash equivalent), 3(d) and 3(e)
hereof up to the effective date of such termination and
(D) Employer shall pay to Executive the Termination
Compensation specified in, at the time set forth in, Section 5(d)
hereof. This Section 5(a)(iii) shall not limit the entitlement
of Executive, Executive’s estate or beneficiaries to any
disability or other benefits available to Executive under any
disability insurance or other benefits plan or policy which is
maintained by Employer for Executive’s benefit (as opposed to
Employer’s benefit). For purposes of this Agreement, the
‘date of disability’ shall mean the first day of the
consecutive period during which Executive fails to perform the
duties required by this Agreement due to illness, physical or
mental disability or other incapacity.”
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3.
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By replacing the first two
paragraphs of Section 5(b)(i) with the following two
paragraphs:
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“ After Change of
Control . Executive may terminate this Agreement following any
‘change of control’ (as defined below) of Employer
which occurs after the Effective Date and (i) a resulting
‘diminution event’ (as defined below) or (ii) a
resulting relocation of Executive’s office to a location more
than twenty-five (25) miles from 77 West Wacker Drive,
Chicago, Illinois, but in no event later than two years after the
change of control event. In such case, Executive shall provide
written notice of termination to Employer specifying in reasonable
detail the nature of the diminution event or office relocation
within ninety (90) days after its occurrence and must provide
Employer with a period of thirty (30) days after receipt of
notice by Employer during which it may reverse the diminution event
or office
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relocation without giving rise to
liability under this Section 5(b)(i). Executive shall continue
to perform, at the election of Employer, Executive’s duties
under this Agreement during the foregoing thirty (30) day
period; provided, that Employer complies with, and provides the
compensation and benefits provided for, in this Agreement. In the
event of such termination, (A) Employer shall pay to Executive
Executive’s Base Compensation up to the effective date of
such termination, (B) Employer shall pay to Executive on the
effective date of such termination a pro rata portion of any Bonus
Compensation otherwise payable to Executive for or with respect to
the calendar year in which such termination occurs in accordance
with Section 3(b) and Exhibit A hereof (including without
limitation any guaranteed bonus for such year) up to the effective
date of such termination and, to the extent not previously paid,
all Bonus Compensation payable to Executive in accordance with
Section 3(b) and Exhibit A hereof for or with respect to any
calendar years prior to the calendar year in which such termination
occurs, (C) Employer shall provide to Executive the benefits
set forth in Sections 3(c), 3(d) and 3(e) hereof up to the
effective date of such termination and (D) Employer shall pay
to Executive the Termination Compensation specified in, at the time
set forth in, Section 5(d) hereof. For purposes of this Agreement,
in the event Employer materially defaults in its obligation under
Section 9 hereof, Executive may deliver written notice of
termination, describing the circumstances in reasonable detail, to
Employer within ninety (90) days after such default. If
Employer fails to remedy the default within thirty (30) days
of receipt after such notice, Executive may terminate employment
with Employer (or Employer’s successor or assign), and such
termination shall be deemed to be a termination under this
Section 5(b)(i).
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For purposes of this
Section 5(b)(i), (A) a ‘change of control’ of
Employer shall
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