EXHIBIT 10.31
SEPARATION AND PARTIAL SETTLEMENT AGREEMENT
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This Separation and Partial Settlement Agreement (the "Agreement") is
entered into by and between JDN Realty Corporation ("JDN Realty") and JDN
Development Company, Inc. ("JDN Development") for themselves and on behalf of
all subsidiaries, predecessors, and affiliates of JDN Realty and JDN Development
(collectively the "JDN Entities"), and ALA Associates, Inc. ("ALA"), Xxx X.
Xxxxxx ("Xxxxxx") and C. Xxxxxxx Xxxxxxxxxx, XX ("Xxxxxxxxxx") (collectively,
the "ALA Parties") on the 14th day of June, 2000.
RECITALS
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WHEREAS, ALA is a corporation wholly owned by Xxxxxx and Xxxxxxxxxx;
WHEREAS, certain disputes (the "Disputes") have arisen between the parties
in connection with payments made to one or more of the ALA Parties directly or
indirectly by or on behalf of JDN Development in the form of outparcels conveyed
to ALA (the "Outparcel Transactions"); cash fees paid in connection with certain
JDN Development projects (the "Fees"); and site work performed on the various
outparcels received by ALA (the "Site Work") (hereinafter, the Outparcel
Transactions, the Fees and the Site Work shall collectively be referred to as
the "Payments"), and participation by Xxxxxx and Xxxxxxxxxx, acting in their
individual capacities or through ownership interests in
ALA or other entities, in certain transactions involving one or more JDN
Entities (hereinafter, the "Third-Party Transactions");
WHEREAS the JDN Entities have determined that the Outparcel Transactions in
connection with the projects listed on Exhibit A hereto were effectuated with
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the approval of JDN Development's President, and the Fees in the amounts and in
connection with the projects listed on Exhibit B hereto were paid to ALA with
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the approval of JDN Development's President;
WHEREAS there is conflicting evidence as to whether the Site Work, which
was performed in connection with the projects listed on Exhibit C hereto, and
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the Fees paid in connection with the projects listed on Exhibit D hereto (the
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"Disputed Fees"), were performed and paid with the approval of an authorized
officer or agent of JDN Development;
WHEREAS the parties disagree as to the value of the Site Work, but have
reached an agreement as to an amount which the ALA Parties will pay to JDN
Development in connection with the Site Work as part of a global resolution of
the Disputes;
WHEREAS, the Third Party Transactions are described on Exhibit E hereto;
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WHEREAS, Xxxxxx and Xxxxxxxxxx agreed to resign from their employment with
JDN Development and any and all offices and directorships
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held with the JDN Entities effective as of February 13, 1999, and the JDN
Entities have accepted such resignations;
WHEREAS, the parties desire to compromise and settle the above-referenced
Disputes between them with regard to the Payments and Third Party Transactions,
and further desire to confirm the severance of the employment relationship
between Xxxxxx and Xxxxxxxxxx and the JDN Entities on the terms and conditions
contained in this Agreement while leaving certain other disputes which may exist
between the parties outstanding;
NOW, THEREFORE, in consideration of the promises, covenants and
representations recited herein, and to compromise and settle the Disputes
arising from the Payments and the Third Party Transactions, the parties mutually
agree as follows:
1. Site Work, Disputed Fees and Repayment of FICA Taxes
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1.1 Disputed Fees. Xxxxxx, Xxxxxxxxxx and ALA shall collectively repay to JDN
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Development the Disputed Fees, which total $452,430.37, in the manner
specified in paragraph 1.4 below.
1.2 Site Work. Xxxxxx, Xxxxxxxxxx and ALA shall collectively pay to JDN
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Development $397,569.63 in connection with the Site Work performed by JDN
Development on the Outparcels conveyed to ALA. The payment shall be made
in the manner specified in paragraph 1.4 below.
1.3 FICA Taxes. Xxxxxx and Xxxxxxxxxx shall repay JDN Development the
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employee "Hospital Insurance" portion of the FICA taxes paid by JDN
Development on behalf of Xxxxxx and Xxxxxxxxxx as set forth in paragraph
2.1 hereof, in the aggregate amount of $37,715.97. The repayment shall be
made in the manner specified in paragraph 1.4 below.
1.4 Manner and Timing of Payment. Xxxxxx, Xxxxxxxxxx and ALA shall make the
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payments specified in paragraphs 1.1, 1.2 and 1.3 above as follows:
1.4.1 ALA shall convey to JDN Development upon the execution of this
Agreement (the "Conveyance Date") good and marketable title to the
Outparcels described in Exhibit F hereto, which are currently
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estimated by the parties to have an aggregate fair market value of
$887,716, by limited warranty deed, free and clear of any liens or
encumbrances of any nature whatsoever, other than those in existence
and of record as of the date of the conveyance of such Outparcels to
ALA. The ALA Parties represent and warrant that they shall convey
the Outparcels listed on Exhibit F free and clear of any such liens
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or encumbrances (except for ordinary and customary utility easements
and a contemplated condemnation action in connection with the
widening of a road affecting the Opelika outparcel), and the failure
to do so shall constitute a material breach of this Agreement. The
current year's ad valorem property taxes on the Outparcels being
conveyed subject to this paragraph
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shall be prorated as of the Conveyance Date.
1.4.2 On or before execution of this Agreement, ALA and JDN Development
shall jointly engage Xxxxxxxx, Ball & Wise, or such other appraiser
as the parties reasonably agree upon, to perform an appraisal of the
tracts described in Exhibit F. All communications with and
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instructions to the appraiser shall be jointly made with a
representative of each party present. The appraisals shall be
completed within forty-five (45) days following execution of this
Agreement, and a copy furnished to the parties. If the appraisals
result in an aggregate value of at least 10% greater or less than
$887,716, either party shall have the right, at its expense, to
require the retention of a second appraiser in accordance with the
following procedure:
(a) Notice of intention to engage a second appraiser shall be
given in writing within three (3) days of the complaining party's
receipt of the first appraisal.
(b) The second appraiser shall be jointly selected by the parties
from a list of three (3) appraisers provided by the first hired
appraiser and shall be hired within five (5) days of the notice
provided for in subsection (a).
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(c) The second appraiser shall receive instructions identical to
and in the same manner as those furnished the first appraiser,
and shall complete his or her work within forty-five (45) days of
the date he or she is hired.
(d) The second appraiser shall not be informed of the results of
the first appraiser, or the basis for the first appraiser's
opinion.
(e) The second appraisal may be as to either or both of the two
Exhibit F Outparcels.
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(f) If the second appraisal is within 10% of the first, the two
shall be averaged to determine a final value.
(g) If the second appraisal differs from the first in an amount
exceeding 10%, a third appraiser, selected by the first two
within five (5) days of the second appraisal being completed,
shall determine the disputed amount solely by reference to the
reports of the first two appraisers, and the determination of the
third appraiser shall be binding. The third appraiser shall
render a decision in writing within five (5) business days of
submission.
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To the extent the aggregate value of the Exhibit F Outparcels is
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ultimately determined to fall below $887,716 (the "Shortfall"), the
ALA parties shall satisfy the Shortfall by, at their option, (a)
payment of cash or other immediately available funds, or (b)
execution of a note bearing interest at the rate of ten percent
(10%) per annum, with principal and interest due one year from the
execution date of the note, secured by a valid first lien on an
unencumbered Outparcel or Outparcels not listed on Exhibit F of
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sufficient value to secure the note. To the extent the aggregate
value of the Exhibit F property to be conveyed is ultimately
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determined to exceed $887,716 (the "Excess Value"), JDN Development
shall reimburse ALA for the Excess Value in cash or other
immediately available funds. The satisfaction of any Shortfall or
Excess Value shall occur within twenty (20) days of the completion
of the appraisals provided for above.
1.4.3 Upon the execution of this Agreement, ALA shall transfer to JDN
Development the tract described in Exhibit G hereto, by limited
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warranty deed, free and clear of any liens or encumbrances of any
nature whatsoever, other than those existing and of record as of the
date such property was conveyed to ALA.
1.5 Retention of Certain Outparcels. The ALA Parties shall retain title to the
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Outparcels listed on Exhibit A which are not being conveyed to JDN
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Development pursuant to the terms of this Agreement, and upon the
execution of this Agreement, the JDN Entities shall execute quit-claim
deeds to disclaim any interest therein.
2. Amended Tax Filings
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2.1 Obligations of JDN Development. JDN Development has reported the fair
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market value of the Outparcels conveyed during 1996 through 1998 as
compensation to Xxxxxx and Xxxxxxxxxx for services rendered to JDN
Development on Forms W-2c, Corrected Wage and Tax Statement (the "Amended
W-2's") and on a Form W-3c, Transmittal of Corrected Wage and Tax
Statements, (together with the Amended W-2's referred to as "Amended Wage
Forms"). JDN Development provided the Amended W-2's to Xxxxxx and
Xxxxxxxxxx and filed the Amended Wage Forms with the applicable taxing
authority on May 1, 2000. For administrative purposes, JDN Development
paid Xxxxxx and Xxxxxxxxxx'x share of the "Hospital Insurance" portion of
the Federal Insurance Contributions Act ("FICA") taxes in the aggregate
amount of $37,715.97 subject to Xxxxxx' and Xxxxxxxxxx'x agreement to
reimburse JDN Development in such amounts.
2.2 Obligations of the ALA Parties.
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2.2.1 Amended Federal Returns; Payment of Federal Taxes. For the taxable years
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1996 through 1998, Xxxxxx and Xxxxxxxxxx represent and warrant that they
each filed a Form 1040X, Amended U.S.
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Individual Income Tax Return, (collectively referred to as "Amended
Individual Returns") on May 1, 2000, which reported the full amount of
compensation shown on the Amended W-2's. Xxxxxx and Xxxxxxxxxx further
represent and warrant that upon the filing of the Amended Individual
Returns, Xxxxxx and Xxxxxxxxxx paid the taxes due with respect to the
compensation reflected on the Amended W-2's. In addition, Xxxxxx and
Xxxxxxxxxx executed and provided to JDN Development a Form 4669,
Statement of Payments Received, confirming that they reported the full
amount of compensation shown on the Amended W-2's on their Amended
Individual Returns and paid the full amount of taxes relating thereto.
2.2.2 Amended State Returns; Payment of State Taxes. Within forty five (45)
days of the execution of this Agreement, Xxxxxx and Xxxxxxxxxx agree to
file amended state tax returns reporting the full amount of compensation
shown on the Amended W-2s in any and all states in which they have an
obligation to do so, and agree to pay in full any corresponding taxes,
interest and penalties related thereto. Xxxxxx and Xxxxxxxxxx further
agree to provide to JDN Development upon such filing and payment
evidence confirming that they reported the full amount of compensation
shown in the Amended W-2s in all of the states in which they have an
obligation to do so, and paid the
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full amount of taxes, penalties and interest relating thereto.
2.2.3 Indemnity. Xxxxxx and Xxxxxxxxxx agree to indemnify JDN Development for
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the full amount of any taxes, penalties, and interest assessed to or
paid by JDN Development or any of the other JDN Entities as a result of
Xxxxxx', Xxxxxxxxxx'x or ALA's failure to timely pay applicable taxes,
penalties or interest in connection with the Payments or any other
compensation or benefits paid to Xxxxxx, Xxxxxxxxxx or ALA, subject to
the following. Xxxxxx shall have no obligation to indemnify JDN
Development with respect to taxes, penalties and interest attributable
to income received by Xxxxxxxxxx individually, and Xxxxxxxxxx shall have
no obligation to indemnify JDN Development with respect to taxes,
penalties and interest attributable to income received by Xxxxxx
individually, but Xxxxxx and Xxxxxxxxxx shall be jointly obligated to
indemnify JDN Development with regard to taxes, penalties and interest
attributable to income received by ALA. JDN Development agrees to
promptly notify Xxxxxx and Xxxxxxxxxx, as their interests may appear,
with respect to any audit, assessment, or notice of proposed assessment
with respect to the Payments or any other compensation or benefits paid
to Xxxxxx, Xxxxxxxxxx or ALA.
2.2.4 Finality Of Tax Determination. Nothing herein shall be deemed to
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require any payment of taxes, interest or penalties, or any indemnity
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therefor, where such taxes, interest or penalties are contested, until
liability has finally be en determined (such final determination being
resolution by compromise, or by an administrative or judicial
proceeding from which there exists no further right of appeal).
3. Separation from Employment and Resignation from Offices and Directorships.
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3.1 Separation. Xxxxxx and Xxxxxxxxxx confirm their resignations from their
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employment with JDN Development and all offices and directorships with
the JDN Entities effective as of the 13th day of February, 2000 (the
"Separation Date"), which resignations have been accepted by the JDN
Entities.
3.2 No Claim to Further Compensation or Bonuses. As part of the settlement
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of the Disputes, Xxxxxx and Xxxxxxxxxx agree that they shall make no
claim to any further compensation or bonuses to which they might
otherwise claim to be entitled as a result of their employment,
offices, or directorships held with any of the JDN Entities; provided,
however, that nothing contained herein shall be deemed to foreclose or
affect Xxxxxx or Xxxxxxxxxx'x right, if any, to assert a claim for
contribution, indemnity, advancement of expenses, or insurance
benefits, including without limitation in connection with claims
asserted currently or in the future by shareholders of any of the JDN
Entities or by customers, tenants, purchasers, joint
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venturers, or other parties doing business with any of the JDN
Entities.
3.3 Health Insurance and COBRA Coverage. As of the Separation Date, Xxxxxx
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and Xxxxxxxxxx will no longer be entitled to participate in or receive
benefits available to employees of JDN Development or other JDN
Entities; provided, however, that nothing herein shall be construed to
affect their or their dependents' rights thereafter to receive
continuous coverage to the extent authorized by and consistent with the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") or any other
benefits the continuation of which is required by law, entirely at
their own cost after their right to benefit continuation ends under
this paragraph.
3.4 Cancellation of Stock Options. The parties acknowledge and agree that
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Xxxxxx and Xxxxxxxxxx have heretofore been granted, in the case of
Xxxxxx 150,000, and in the case of Xxxxxxxxxx 112,500, options to
purchase shares of common stock in JDN Realty, all of which were vested
and exercisable as of the Separation Date (the "Vested Options").
Xxxxxx and Xxxxxxxxxx acknowledge and agree that the Vested Options are
forfeited and cancelled as of the date hereof, and that they shall have
no further claim, right or interest in or to such Vested Options from
this date forward.
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3.5 Shares Awarded Under Deferred Bonus Plan. The parties acknowledge that
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pursuant to JDN Realty's 1998 Deferred Bonus Plan (the "Bonus Plan"),
Xxxxxx was awarded 18,742.5 shares (4,685.625 of which had vested as of
the Separation Date; and 14,056.88 of which remained unvested as of the
Separation Date) and Xxxxxxxxxx was awarded 13,534.5 shares (3,383.625
of which had vested as of the Separation Date; and 10,150.88 of which
remained unvested as of the Separation Date) of JDN Realty's common
stock (the "Bonus Plan Shares"), and agree as follows with regard to the
Bonus Plan Shares:
3.5.1 Pursuant to the Bonus Plan, Xxxxxx' 14,056.88 and Xxxxxxxxxx'x
10,150.88 unvested Bonus Plan Shares were forfeited as of the
Separation Date, and Xxxxxx and Xxxxxxxxxx shall have no further
claim, right or interest in or to such unvested Bonus Plan
Shares.
3.5.2 Xxxxxx shall retain ownership of 3,024 of the Bonus Plan Shares
(4,685.625 vested shares minus shares withheld to fulfill tax
obligations), and Xxxxxxxxxx shall retain ownership of 2,185 of
the Bonus Plan Shares (3,383.625 vested shares minus shares
withheld to fulfill tax obligations), which vested and were
issued to them on or around March 1, 1999.
3.6 Shares Awarded to Xxxxxx Under the Long Term Incentive Plan. The
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parties acknowledge that Xxxxxx was awarded 85,714 shares of JDN
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Realty's common stock pursuant to JDN Realty's 1999 Long-Term Incentive
Plan (the "LTIP Shares"), and Xxxxxx acknowledges and agrees that all
85,714 LTIP shares remained unvested as of the Separation Date, and were
therefore forfeited as of the Separation Date, and Xxxxxx shall have no
further claim, right, or interest in or to the LTIP Shares.
4. Releases.
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4.1 Limited Release of ALA Parties. JDN Realty and JDN Development, for
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themselves and the other JDN Entities, and their respective
predecessors, successors and assigns, hereby release, remise and forever
discharge each of the ALA Parties (along with their respective
executors, administrators, personal representatives, legatees, heirs
and, as, applicable, all past and present officers, directors,
employees, shareholders, attorneys and auditors) from, and covenant not
to xxx the entities (or any principals thereof) identified in Exhibit E
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as being parties to the Third Party Transactions based on, any actions,
causes of action, claims, demands, damages, liabilities and obligations
directly arising from ALA's receipt of the Outparcels listed on
Exhibit A or retention of the Outparcels pursuant to paragraph 1.5
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hereof; ALA's receipt of the Fees listed on Exhibits B and D; the
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performance of the Site Work; and/or the execution of the Third Party
Transactions;
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provided, however, that nothing contained herein shall be deemed to
release, foreclose or affect any of the JDN Entities' rights, if any, to
assert claims against any or all of the ALA Parties based on matters or
disputes not specifically covered by this Agreement, or to assert claims
for contribution, indemnity or apportionment of liability, including,
but not limited to, in connection with claims asserted currently or in
the future by shareholders of any of the JDN Entities or by customers,
tenants, purchasers, joint venturers or other parties doing business
with any of the JDN Entities.
4.2 Limited Release of JDN Entities. The ALA Parties, for themselves and
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their respective representatives, predecessors, successors and assigns,
hereby release, remise and forever discharge each of the JDN Entities,
along with their predecessors and all past and present officers,
directors, employees, shareholders, attorneys, auditors, (with the
exception of J. Xxxxxx Xxxxxxx and the law firm of XxXxxxxxxx Xxxxxxxx,
L.L.P., and each of the present and former partners thereof) and, as
applicable, their respective executors, administrators, personal
representatives, legatees, heirs, successors and assigns, from any
actions, causes of action, claims, demands, damages, liabilities and
obligations directly arising from ALA's receipt of the Outparcels listed
on Exhibit A or retention of the Outparcels pursuant to paragraph 1.5
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hereof; ALA's receipt of the fees listed on Exhibits B and D; the
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performance of the Site Work; the execution of the Third Party
Transactions; or with regard to any compensation, benefits or bonuses to
which they might claim an entitlement absent this Agreement; provided,
however, that nothing contained herein shall be deemed to release,
foreclose or affect Xxxxxx', Xxxxxxxxxx'x, or ALA's right, if any, to
assert claims against any or all of the JDN Entities based on matters
not specifically covered by this Agreement, or to assert claims, if any,
for contribution, indemnity, apportionment of liability, advancement of
expenses, or insurance, including without limitation in connection with
claims asserted currently or in the future by shareholders of any of the
JDN Entities or by customers, tenants, purchasers, joint venturers, or
other parties doing business with any of the JDN Entities.
5. Representations of Full Disclosure by ALA Parties. The ALA Parties each
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represent and warrant (separately and severally) that they have fully
disclosed to JDN Realty and JDN Development all outparcel conveyances to
them from or on behalf of JDN Development or other JDN Entities, cash fees
paid to them by or on behalf of JDN Development or other JDN Entities, site
work performed on their behalf in connection with JDN Development or other
JDN Entity projects, and that no compensation or benefits were paid to or
received by them during their employment with, or in connection with
services they otherwise provided to, JDN Development or any of the JDN
Entities, except for the Payments and the compensation
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shown on the original books and records of JDN Development and JDN Realty
for the relevant years. The ALA Parties further represent and warrant
(separately and severally) that they have disclosed all transactions
involving JDN Development or any other JDN Entity in which any or all of the
ALA Parties participated from the date of the formation of JDN Realty
through the date of Xxxxxx' and Xxxxxxxxxx'x resignations, and that to the
best of their knowledge and belief, no such transactions exist except those
described on Exhibit E. The ALA Parties understand and agree that JDN
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Development and the JDN Entities are entering into this Agreement in
reliance upon the representations contained in this paragraph, and that a
breach of such representations would constitute a material breach of this
Agreement.
6. Reasonable Cooperation with Regard to Easements. The parties acknowledge
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that they will continue to own contiguous and/or otherwise commercially
related parcels of land subsequent to the execution of this Agreement, and
mutually agree to reasonably cooperate with one another (such cooperation
include, but is not limited to, reasonable good faith efforts with tenants,
other landowners and third parties) in the granting customary easements
across their respective properties for uses including, but not limited to,
utilities and access, and as otherwise may be reasonably necessary to
develop the contiguous or commercially related parcels of land owned by the
other party or parties. The parties agree
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that disputes arising under this paragraph, if unresolved by good faith
negotiations after a thirty (30) day period following written notice of
dispute, shall be resolved exclusively through binding arbitration in
Atlanta, Georgia in accordance with the AAA commercial arbitration rules
then in effect, and before a single arbitrator. The arbitrator shall enter
an award within forty-five (45) days of the initiation of arbitration, and
any award may be made the judgment of, and enforced by, any court of
competent jurisdiction.
7. No Solicitation of Employees. Each of the ALA Parties agrees that for a
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period of six (6) months following the Separation Date, they will not
directly or indirectly, entice or induce, or attempt to entice or induce,
any employee of the JDN Entities employed as of or subsequent to the
Separation Date to leave employment with any JDN Entity.
8. Development Services in Connection with Certain Projects. The JDN Entities
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hereby acknowledge that as of the date of this Agreement they have no
interest or involvement in the projects listed on Exhibit H hereto.
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However, this paragraph shall not be construed to in any way preclude JDN
Development or any of the JDN Entities from pursuing, developing or
participating in such projects subsequent to the date of this Agreement
should such an opportunity arise.
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9. No Admission of Liability. By entering into this Agreement, the parties
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hereto admit no liability, but enter into this Agreement in settlement of a
dispute.
10. Exclusivity/Past Agreements Superseded. The parties acknowledge and agree
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that this Agreement sets forth all of the consideration and is the final
and complete agreement with regard to the matters contained herein, and
that this Agreement supersedes and replaces all past agreements and/or
understandings between the parties with regard thereto, whether oral or
written. This Agreement shall not be modified, altered or amended except
in a signed writing executed by all of the parties hereto.
11. Miscellaneous
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11.1 No Other Representations. The ALA Parties each represent and
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acknowledge that in executing this Agreement, they did not rely and
have not relied upon any representations or statements made by the JDN
Entities or by any of the JDN Entities' agents, representatives or
attorneys with regard to the subject matter, basis or effect of this
Agreement or otherwise, except as set out herein.
11.2 Voluntary Agreement. The parties represent and agree that they have
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consulted with attorneys of their choosing, have had a full and fair
opportunity to consult with such attorneys, and that they have
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carefully read and considered all aspects of this Agreement, and enter
into it voluntarily and in exchange for the consideration recited
herein. The corporate parties hereby warrant that this Agreement has
been duly authorized by their respective board of directors and that
the officers executing the Agreement on behalf of the corporate
parties are fully authorized to act.
11.3 Successors. This Agreement shall be binding upon the parties and upon
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their respective heirs, administrators, representatives, executors,
successors and assigns, and shall inure to the benefit of the parties
and their respective heirs, administrators, representatives,
executors, successors and assigns. This Agreement is personal to the
parties, and the parties may not assign or transfer any interests in,
or rights or benefits under, this Agreement.
11.4 Choice of Law; Attorneys' Fees. This Agreement is made and entered
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into in the state of Georgia and shall, in all respects, be
interpreted, enforced and governed under the laws of that state,
without regard for the principles of conflicts of laws thereof. Any
action or proceedings brought by a party seeking to enforce any
provisions of, or based upon any right arising out of, this Agreement
may be brought against any of the parties hereto (except as
specifically provided in paragraph 6 hereof, which provides for
arbitration of disputes arising under that paragraph)
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in the courts of the state of Georgia for Xxxxxx County or, if it has
or can acquire jurisdiction, in a United States District Court for the
State of Georgia sitting in Xxxxxx County, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. If legal action is commenced by
either party to enforce or defend its rights under this Agreement, the
prevailing party in such action shall be entitled to recover its costs
and reasonable and actual attorneys' fees in addition to any other
relief granted.
11.5 Construction of Document. The language of all parts of this Agreement
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shall, in all cases, be construed as a whole, according to its plain
meaning, and not strictly for or against any of the parties, and rules
of interpretation or construction of contracts that would construe any
ambiguity against the draftsman shall not apply. As used in this
Agreement, the singular or plural number shall be deemed to include
the other whenever the context so indicates or requires. The section
and paragraph headings contained in this Agreement are for convenience
of reference, and shall not limit or control, or be used to construe,
the meaning of any provision herein. Any delay or omission by any
party hereto in exercising any right hereunder shall not operate as a
waiver of such right.
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11.6 Severability. Should any provision of this Agreement be declared or
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be determined by any court to be illegal or invalid, the validity of
the remaining parts, terms or provisions shall not be affected thereby
and the illegal or invalid part, term or provision shall be deemed not
to be part of this Agreement.
11.7 Execution in Counterparts. This Agreement may be executed in any
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number of counterparts, each of which shall for all purposes be deemed
to be an original but each of which, when so executed, shall
constitute but one and the same instrument. In making proof of this
Agreement, it shall not be necessary to produce or account for more
than one such counterpart executed by the party against whom
enforcement of this Agreement is sought.
11.8 Notices. All notices, requests and other communications hereunder
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must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first
class postage prepaid) to the parties at the following addresses or
facsimile numbers unless other addresses or facsimile numbers are
hereafter provided by one or more of the parties:
If to:
C. Xxxxxxx Xxxxxxxxxx, XX 000 Xxxxxx Xxxxx Xx.
Xxxxxxxx, Xxxxxxx 00000
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with a copy to:
Xxxxxxx X. Xxxxxxx: 0000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
If to:
ALA Associates, Inc. or
Xxx X. Xxxxxx: 000 Xxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
with a copy to:
Xxxx X. Xxxxxxx, Xx. Chililvis, Xxxxxxx, Xxxxxxx &
Xxxxxxxx Xxxxxxxx: Xxxxx LLP
0000 Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000
If to:
JDN Realty Corporation or 000 Xxxx Xxxxx Xxxxx Xxxx
XXX Development, Inc. Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
with a copy to:
Xxxx X. Xxxxxx Xxxxxx & Bird, LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000-0000
Tel.: 000-000-0000
Fax: 000-000-0000
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All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt, and (iii)
if delivered by mail in the manner described above to the address as
provided in this Section, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is
received by any other person to whom a copy of such notice, request or other
communication is to be delivered pursuant to this Section). Any party from
time to time may change its address, facsimile number or other information
for the purpose of notices to that party by giving notice specifying such
change to the other parties hereto.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the 14th day of June, 2000.
JDN REALTY CORPORATION
Attest:
/s/ Xxxxxx-Xxxxx Xxxxxxxx By: /s/ Xxxxx XxxXxx
----------------------------- -------------------------------
Title: Assistant Secretary Name: Xxxxx XxxXxx
---------------------- -----------------------------
Title: CEO
----------------------------
24
JDN DEVELOPMENT, INC.
Attest:
/s/ Xxxxxx-Xxxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxx, Xx.
----------------------------- -------------------------------
Title: Assistant Secretary Name: Xxxx X. Xxxxxx, Xx.
---------------------- -----------------------------
Title: Vice President
----------------------------
[Signatures continue on following page]
25
ALA ASSOCIATES, INC.
Attest:
/s/ C. Xxxxxxx Xxxxxxxxxx, XX By: /s/ Xxx X. Xxxxxx
------------------------------ -------------------------------
Title: Secretary Name: Xxx X. Xxxxxx
----------------------- -----------------------------
Title: President
----------------------------
[CORPORATE SEAL]
[Signatures continue on following page]
Subscribed before me /s/ Xxx X. Xxxxxx
------------------------------------
This 14th day of June, 2000. Xxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------
Notary Public
My Commission Expires:
---------------------------------
[SEAL]
[Signatures continue on following page]
Subscribed before me /s/ C. Xxxxxxx Xxxxxxxxxx, XX
------------------------------------
This 14th day of June, 2000. C. Xxxxxxx Xxxxxxxxxx, XX
/s/ Xxxxx X. Xxxxxx
---------------------------------
Notary Public
My Commission Expires:
---------------------------------
[SEAL]
