Contract
This
Consulting Services Agreement (“Agreement”) is made this 27th
day of
February, 2007, by and between Xxxxxxx Properties, Inc., a Maryland corporation
(“Company”) and Xxxxxx X. Xxxxx (“Consultant”). Company and Consultant are
sometimes collectively referred to herein as the “Parties” and individually as a
“Party,” and Company and its affiliates are sometimes referred to herein
collectively as the “Company.”
WHEREAS,
Company is a full service, public real estate company doing business primarily
in Southern California, and the owner of a portfolio of office buildings
and
land held for development;
WHEREAS,
Consultant is a highly experienced real estate executive and a former senior
officer of Company, with unique knowledge and expertise concerning the assets,
development entitlements, business strategy, and management of
Company;
WHEREAS,
Company is now actively evaluating and pursuing numerous potential developments,
acquisitions, and other major strategic opportunities, and desires to utilize
the services of Consultant to assist Company in those matters;
WHEREAS,
Consultant desires to provide Company with services relating to such activities;
NOW
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the Parties hereby agree as follows:
1. Engagement:
Company
hereby engages Consultant, and Consultant agrees to provide certain consulting
services to Company, in accordance with the terms of this
Agreement.
2. Effective
Date / Term: This
Agreement shall become effective immediately upon the effective date (the
“Effective Date”) of the resignation of Consultant as an officer and employee of
Company pursuant to that certain Separation Agreement between Company and
Consultant dated of even date (the “Separation Agreement”). The term of this
Agreement (the “Term”) shall commence on the Effective Date and shall continue
until May 30, 2007, unless otherwise extended in writing by agreement of
the
Parties or unless terminated earlier in accordance with the terms
hereof.
3. Services
To Be Provided: Consultant
shall provide services to Company (“Consulting Services”) with regard to the
following activities:
·
|
Assist
Company in closing the pending Lantana construction loan with XX
Xxxxxx as
expeditiously as possible (the “Lantana Construction
Loan”).
|
·
|
Assist
Company in obtaining new construction financing for the Glendale
North
development project.
|
·
|
Assist
Company with the consummation of the acquisition of Downtown Los
Angeles
and Orange County properties from Blackstone/EOP currently under
contract
(the “EOP Acquisition”).
|
·
|
Assist
Company with issuance of additional equity securities in either
a public
or private placement, if Company determines to issue additional
equity
securities.
|
·
|
At
the option of Company, assist Company in obtaining new master financing
facility for Park Place project which refinances the existing loans
and
provides additional funds for infrastructure construction (the
“Park Place
Facility”).
|
·
|
Assist
Company with obtaining a new corporate revolving loan facility
to replace
the existing revolving loan with a larger
facility.
|
·
|
Assist
Company in management transition and succession
matters.
|
·
|
Participate
in such other meetings, discussions, and activities as are consistent
with
the foregoing matters and as agreed upon by Company and Consultant
from
time to time.
|
4. Non-Exclusive
Relationship.
The
Consulting Services being provided by Consultant are on a non-exclusive basis,
and Consultant shall be entitled to perform or engage in any activity not
inconsistent with or otherwise prohibited by this Agreement or by the surviving
provisions of Consultant’s Employment Agreement with Company, effective as of
June 27, 2003 (the “Employment Agreement”).
5. Compensation.
Consultant shall be paid as follows for the Consulting Services provided
hereunder:
· Hourly
Rate:
Company
shall pay Consultant at the rate of $350 per hour (the “Hourly Rate”) in respect
of the Consulting Services described above. Consultant shall submit an invoice
on a monthly basis, reasonably detailing time expended and a description
of the
nature of the Consulting Services rendered. Company shall pay Consultant
for
such services within 30 days of submission of an invoice.
· Success
Fees:
In
addition to the Hourly Rate, Company shall pay Consultant the following fees
upon attainment of the stated objectives during the Term, as determined in
the
reasonable discretion of Company (each, a “Success Fee”):
o
|
$1,500,000
Success Fee payable upon or as soon as practicable after the consummation
of the EOP Acquisition;
|
o
|
$250,000
Success Fee payable upon or as soon as practicable after the closing
of
the Lantana Construction Loan;
|
o
|
$250,000
Success Fee payable upon or as soon as practicable after the issuance
to
the Company of a “firm commitment” by a bona fide third-party lender
acceptable to Company, to establish a new Company revolving loan
facility
acceptable to Company;
|
o
|
$100,000
Success Fee payable upon or as soon as practicable after the issuance
to
the Company of a “term sheet” by a bona fide third-party
|
2
lender
acceptable to Company, to establish a construction loan to fund the construction
of the Glendale North project at 000 Xxxxx Xxxxxx;
o
|
$400,000
Success Fee payable upon or as soon as practicable after Company’s
issuance of additional equity securities in either a public or
private
placement (the “Equity Issuance Success Fee”); provided,
however,
that if Company does not elect to proceed with the issuance of
additional
Company equity securities by March 15, 2007, then (i) Company shall
not
pay Consultant the Equity Issuance Success Fee, and (ii) Company
shall
elect to engage Consultant to provide Consulting Services with
regard to
the Park Place Facility and, if Consultant provides such additional
consulting services and Company receives a “term sheet” from a bona fide
third-party lender acceptable to Company with respect to the Park
Place
Facility during the Term, then Company shall pay Consultant a Success Fee
of $400,000 with respect thereto (the “Park Place Facility Success Fee”)
in lieu of the Equity Issuance Success Fee;
|
o
|
In
the event that Company elects to proceed with the issuance of additional
Company equity securities by March 15, 2007, then Company may,
in its sole
and absolute discretion, engage Consultant to provide additional
Consulting Services with regard to the Park Place Facility and,
if
Consultant provides such additional consulting services and Company
receives a “firm commitment” from a bona fide third-party lender
acceptable to Company with respect to the Park Place Facility during
the
Term, then Company shall pay Consultant the Park Place Facility
Success
Fee in addition to the Equity Issuance Success Fee to the extent
such Fee
is earned by Consultant.
|
· Advances.
No
later than the fifteenth (15th)
day of
each of the three calendar months during the Term, Company shall pay Consultant
an advance of $200,000 against the Success Fees that may be earned by Consultant
hereunder (the “Advances”). Any Success Fees payable hereunder shall be reduced
to the extent of the aggregate amount of the Advances theretofore paid to
Consultant. To the extent that the Success Fees payable to Consultant hereunder
amount to less than the Advances actually paid to Consultant, Consultant
shall
re-pay the excess amount of such Advances to Company within twenty (20) days
after the end of the Term.
Consultant
shall be responsible for the payment of all taxes owed on all amounts paid
to
Consultant by Company hereunder and shall protect Company from any liability
for
the payment of any taxes of any kind with respect to the fees paid to Consultant
hereunder. Company shall provide Consultant with a Form 1099 reflecting all
payments made to Consultant hereunder.
6. Reimbursable
Costs.
Company
shall reimburse Consultant in accordance with general policies and practices
of
Company for actual and reasonable expenses incurred in performing the Consulting
Services (“Reimbursable Costs”), payable within 30 days of receipt of an
invoice.
7. Duties
of Company.
Company
shall (i) grant Consultant access to records, files, employees and consultants
as reasonably required for Consultant to perform the Consulting Services
contemplated herein; and, (iii) pay to Consultant the amounts due to Consultant
within the time periods specified herein.
8. Duties
of Consultant.
Consultant shall (i) dedicate such time commitment to the Consulting Services
as
is reasonably necessary to perform such Consulting Services, (ii) comply
with
all applicable federal, state and municipal laws and regulations required
to
enable the Consultant to render to Company the Consulting Services called
for
herein; (iii) maintain the confidentiality of all Company records, trade
secrets
and other confidential information to which he may have or obtain knowledge
or
access pursuant to
3
this
Agreement; and (iv) return to Company all documents and other material of
a
confidential nature upon termination of this Agreement.
9. Assignment.
Neither
Party shall assign any rights or delegate any obligations under this Agreement,
except as otherwise may be agreed in writing by both Parties.
10. Retention
of Authority.
Throughout the Term, Company shall retain all authority and control over
the
business, policies, operations, and assets of Company. Consultant shall not
knowingly violate any rules or policies of Company or violate any applicable
law
in connection with the performance of the Consulting Services. Company does
not,
by virtue of the Agreement, delegate to Consultant any of the powers, duties
or
responsibilities vested in Company by law or under the organizational documents
of Company.
11. Independent
Consultant Status.
In
performing the Consulting Services herein, Company and Consultant agree that
Consultant shall at all times be acting as an independent contractor and
not as
an employee of Company. The parties acknowledge that Consultant was, prior
to
the Effective Date, an employee of the Company, serving as Executive Vice
President and Chief Financial Officer of the Company, but that such employment
relationship has terminated by reason of Consultant’s voluntary resignation
immediately prior to the Effective Date of this Agreement. Company and
Consultant agree that Consultant will not be an employee of Company during
the
term hereof and that Consultant and not Company shall have the authority
to
direct and control Consultant's performance of his activities hereunder.
Nothing
contained in this Agreement shall be construed to create a partnership or
joint
venture between Company and Consultant, nor to authorize either Party to
act as
general or special agent of the other Party in any respect. Consultant shall
not
be entitled to any employee benefits provided by Company to its employees
during
the Term.
12. Indemnification.
Company
agrees to indemnify and hold harmless Consultant from and against any and
all
claims, demands, actions, settlements or judgments, including reasonable
attorney’s fees and litigation expenses based upon or arising out of the
activities described in this Agreement, where such claims, demands, actions,
settlements or judgments are caused by (i) the gross negligence or willful
misconduct of Company or its employees or (ii) the failure to pay any fees
or
Reimbursable Costs in accordance with this Agreement. Consultant agrees to
indemnify and hold harmless Company from and against any and all claims,
demands, actions, settlements or judgments, including reasonable attorney’s fees
and litigation expenses based upon or arising out of the activities described
in
this Agreement, where such claims, demands, actions, settlements or judgments
are caused by (i) the gross negligence or willful misconduct of Consultant
or
(ii) Consultant’s breach of this Agreement, provided that the liability of
Consultant under this clause (ii) shall be limited to the amount of the
consulting fees earned by Consultant hereunder.
13. Termination.
This
Agreement may be terminated at any time by Company, with or without advance
notice, by providing written Notice (as defined below) of termination to
Consultant in accordance with Section 14(j) below. If Company terminates
this
Agreement prior to May 30, 2007, other than due to a Material Default, Company
shall pay to Consultant all Success Fees, including the Equity Issuance Success
Fee but excluding the Park Place Facility Success Fee, unless after March
15,
2007 the Company elects not to issue equity securities and therefore agrees
to
pay the Park Place Facility Success Fee (to the extent such Success Fees
were
not previously paid) as soon as practicable following such termination, without
regard to the attainment of the performance objectives associated with such
Success Fees For purposes of this Agreement, Consultant shall be in “Material
Default” if Consultant (i) willfully breaches a material provision of this
Agreement, which breach has or will cause the Company to suffer a material
adverse consequence (taking into account that Consultant has not guaranteed
his
ability to complete any of the specified tasks set forth herein), which breach
continues for at least ten (10) days after written notice thereof from the
Company specifying the default and the remedy expected by the Company for
such
default, unless the nature of such default is that it would reasonably require
more than 10 days to remedy, in which case Consultant shall have an additional
period of up to thirty (30) days
4
to
cure
such default hereunder; or (ii) commits fraud, commits a felony, or
misappropriates funds of the Company for his own benefit.
This
Agreement may be terminated by Consultant upon at least 30 days’ prior written
notice to Company in accordance with Section 14(j) below, which Notice may,
in
Company’s sole -discretion, be waived by Company without payment in lieu
thereof.
14. Miscellaneous.
(a) Entire
Agreement.
This
Agreement, the Separation Agreement and the Employment Agreement (to the
extent
the provisions thereof are applicable following Consultant’s resignation of
employment) contain the entire understanding and agreement between the Parties
relating to the subject matter hereof and supersede all prior or contemporaneous
negotiations, arrangements, agreements, understandings, representations and
statements, whether oral or written, with respect to that agreement, all
of
which are merged herein and shall be of no further force or effect. No Party
hereto shall be bound by or liable for any alleged representation, promise,
inducement or statement of intention unless set forth herein or in an instrument
or other writing delivered hereafter and signed by the Party to be bound
thereby. Each of the Parties acknowledges and represents that, except as
specifically set forth in this Agreement (or in the Separation Agreement
or the
Employment Agreement) or in an instrument or other writing delivered hereafter
and signed by the Party to be bound thereby, such Party has not received
any
representations, warranties or promises by any person as a means of inducing
it
to enter into this Agreement, and further acknowledges and represents that
it
does not enter into this Agreement in reliance upon any oral or written
representation, warranty or promise of any person or entity that is not
specifically set forth in this Agreement or in such instrument or other writing
delivered hereafter and signed by the Party to be bound thereby.
(b) Amendments.
No
provision of this Agreement may be amended, modified or waived except by
a
written instrument signed by each of the Parties hereto (or, in the case
of a
waiver, by the Party against whom enforcement of the waiver is
sought).
(c) Parties
in Interest.
This
Agreement shall inure to the benefit of, and shall be binding upon, the Parties
hereto and their respective successors and permitted assigns. No transfer
of any
interest hereunder shall be deemed to release the transferor from any of
its
obligations hereunder. Nothing in this Agreement is intended to confer any
right
or remedy under this Agreement on any person other than the Parties to this
Agreement and their respective successors and permitted assigns, or to relieve
or discharge any obligation or liability of any person to any Party to this
Agreement, or to give any person any right of subrogation or action over
or
against any Party to this Agreement or to any affiliate thereof.
(d) Choice
of Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of California, without giving effect to the conflict-of-laws rules
and
principles of said State.
(e) Construction
of Agreement.
The
language in all parts of this Agreement shall be in all cases construed simply
according to its fair meaning and not strictly for or against any of the
Parties
hereto. Headings at the beginning of paragraphs and subparagraphs of this
Agreement are solely for the convenience of the Parties, are not a part of
this
Agreement and shall not be used in construing it. When required by the context:
whenever the singular number is used in this Agreement, the same shall include
the plural, and the plural shall include the singular; and the masculine
gender
shall include the feminine and neuter genders and vice versa. Unless otherwise
required by the context (or otherwise provided herein): the words “herein”,
“hereof” and “hereunder” and similar words shall refer to the Agreement
generally and not merely to the provision in which such term is used; the
word
“person ”
shall
include individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority and other entity of whatever nature; the
word
“affiliate ”
shall
mean, with respect to any particular person, any other person who, directly
or
indirectly, controls, is under common control with or is
5
controlled
by the first person; each of the words “including”, “include” and
“includes”
shall be
interpreted in a non-exclusive manner as though the words “but [is] not limited
to” or “but without limiting the generality of the foregoing” immediately
followed the same. If the day on which performance of any act or the occurrence
of any event hereunder is due is not a business day, the time when such
performance or occurrence shall be due shall be the first business day occurring
after the day on which performance or occurrence would otherwise be due
hereunder.
(f) Effect
of Waivers and Consents.
No
waiver of any default or breach by any Party hereto shall be implied from
any
omission by a Party to take any action on account of such default or breach
if
such default or breach persists or is repeated and no express waiver shall
affect any default or breach other than the default or breach specified in
the
express waiver, and that only for the time and to the extent therein stated.
One
or more waivers of any covenant, term or condition of this Agreement by a
Party
shall not be construed to be a waiver of any subsequent breach of the same
covenant, term or condition. The consent or approval by any Party shall not
be
deemed to waive or render unnecessary the consent to or approval of said
Party
of any subsequent or similar acts by a Party.
(g) Counterparts.
This
Agreement, and any document or instrument entered into, given or made pursuant
to this Agreement or authorized hereby, and any amendment or supplement hereto
or thereto may be executed in two or more counter-parts, and by each Party
on a
separate counterpart, each of which, when executed and delivered, shall be
an
original and all of which together shall constitute one instrument, with
the
same force and effect as though all signatures appeared on a single document.
Any signature page of this Agreement or of such an amendment, supplement,
document or instrument may be detached from any counterpart without impairing
the legal effect of any signatures thereon, and may be attached to another
counterpart identical in form thereto but having attached to it one or more
additional signature pages. In proving this Agreement or any such amendment,
supplement, document or instrument, it shall not be necessary to produce
or
account for more than one counterpart thereof signed by the Party against
whom
enforcement is sought.
(h) Attorneys’
Fees.
If any
legal action or any arbitration or other proceeding is brought for the
enforcement of this Agreement or any document or instrument entered into,
given
or made pursuant to this Agreement or authorized hereby or thereby, or because
of an alleged dispute, breach, default, or misrepresentation in connection
with
any of the provisions of this Agreement or of such document or instrument,
the
successful or prevailing Party shall be entitled to recover the attorneys’ fees,
charges and other costs incurred by that Party in and in connection with
that
action or proceeding, in addition to any other relief to which it may be
entitled. For
purposes of this Agreement, the term “attorneys’ fees” or “attorneys’ fees and
costs” shall mean the fees and expenses of counsel to the Parties hereto, which
may include printing, photo-copying, duplicating and other expenses, air
freight
charges, and fees billed for law clerks, paralegals and other persons not
admitted to the bar but performing services under the supervision of an
attorney, and the costs and fees incurred in connection with the enforcement
or
collection of any judgment obtained in any such proceeding. The provisions
of
this paragraph shall survive the entry of any judgment, and shall not merge,
or
be deemed to have merged, into any judgment.
(i) Severability.
Should
any portion of this Agreement which is not material to the terms of the
Agreement be declared invalid and unenforceable, then such portion shall
be
deemed to be severed from this Agreement and shall not affect the remainder
thereof.
(j) Notices.
(1) All
notices, requests and demands hereunder (“Notices”) shall be in writing and
shall be deemed to have been duly given when delivered (or, if mailed, postage
prepaid, by certified or registered mail, return receipt requested, on the
fourth business day after mailing, if that date is earlier than actual
delivery). Notices shall be sent to a Party at the address of that Party
set
forth below or, if such Party has furnished notice of a change of that address
as herein provided, to the address of that Party most
6
recently
so furnished; or if that Party has not designated an address to which Notices
are to be sent, to the last address of that Party known to the Party dispatching
the Notice. Each Party may designate one additional person to whom a copy
of
each Notice is to be sent, and each Party shall cause a copy of each Notice
dispatched by or on its behalf to be sent to that additional person, as well
as
to the other Party at that other Party’s then current notice address. Unless and
until modified as herein provided, the following notice addresses shall
apply:
To
Company:
Xxxxxx
X.
Xxxxxxx III
Xxxxxxx
Properties
0000
Xxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Telephone
No.: (000)
000-0000
Facsimile
No.: (000)
000-0000
To
Consultant:
0000
Xxxxxxxxx Xx.
Xxx
Xxxxxxx, XX 00000
Telephone
No.: (000)
000-0000
Facsimile
No.: (000)
000-0000
(2) Any
Notice shall be effective as to any person upon delivery to the principal
notice
address of such person, notwithstanding its subsequent delivery to another
person to whom it is also to be sent. The inability to deliver any Notice
because the individual to whom it is properly addressed in accordance with
this
Agreement refuses delivery thereof or no longer can be located at that address
shall constitute delivery thereof to such individual.
(3) Any
Notice, instruction, approval or other action which any Party may or is required
to give hereunder may be given by that Party’s counsel, in writing, and all
Parties hereto shall be entitled to, and shall, rely thereon without inquiry
into the authority of that Party’s counsel to take said action.
(4) Each
Party shall use reasonable efforts to assure that any Notice which is given
or
made pursuant to any particular paragraph of this Agreement shall note thereon
the paragraph pursuant to which it is given or made, but the failure to include
such information therein shall not render such Notice ineffective.
(5) Each
Party hereto (a “Recipient”) who receives from another Party hereto (a “Sender”)
by electronic facsimile transmission (telecopier) any writing which appears
to
be signed by or on behalf of that Sender is authorized to rely and act upon
that
writing in the same manner as if the original signed writing was in the
possession of the Recipient upon oral confirmation of that Sender to the
Recipient that the writing was signed by or on behalf of that Sender and
is
intended by that Sender to be relied upon by the Recipient. Each Party
transmitting any writing to any other Party by electronic facsimile transmission
agrees to forward immediately to that Recipient, by expedited means (for
next
day delivery, if possible), or by first class mail if the Recipient so agrees,
the signed hard copy of that writing, unless the Recipient expressly agrees
to
some other disposition of the original by the Sender.
(k) Confidentiality.
Consultant agrees
that, except as otherwise set forth in this Agreement or required to enforce
this Agreement or provided by law or unless compelled by an order of a court,
he
shall keep the contents of this Agreement and any information related to
the
Offering confidential and further agrees to refrain from generating or
participating in any publicity statement, press release, or other public
notice
regarding this Agreement or the Offering without the prior written consent
of
Company unless required under applicable law or by a court order. The provisions
of this paragraph shall survive any termination of this
Agreement.
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(l) Exclusive
Jurisdiction.
Subject
to Section 14(n) below, each Party (i) agrees that any action arising out
of or
relating to this Agreement or the transaction provided for herein shall be
brought exclusively in the courts of the State of California or of the United
States of America for the Southern District of California, (ii) accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of those courts, and (iii) irrevocably waives any objection,
including, without limitation, any objection to the laying of venue or based
on
the grounds of forum
non conveniens,
which
it may now or hereafter have to the bringing of any action in those
jurisdictions; provided,
however,
that
any Party may assert in an action in any other jurisdiction or venue each
mandatory defense, third-party claim or similar claim that, if not so asserted
in such action, may thereafter not be asserted by such Party in an original
action in the courts referred to in clause (i) of this paragraph.
(m) Waiver
of Jury Trial. Each
Party waives any right to a trial by jury in any action to enforce or defend
any
right or any amendment, instrument, docu-ment or agreement delivered, or
which
in the future may be delivered, in connection herewith and agrees that any
action shall be tried before a court and not before a
jury.
(n) Arbitration. Any
disagreement, dispute, controversy or claim arising out of or relating to
this
Agreement or the interpretation of this Agreement or any arrangements relating
to this Agreement or contemplated in this Agreement or the breach, termination
or invalidity thereof shall be settled by final and binding arbitration
administered by JAMS/Endispute in Los Angeles, California in accordance with
the
then existing JAMS/Endispute Arbitration Rules and Procedures for Employment
Disputes. In the event of such an arbitration proceeding, Consultant and
Company
shall select a mutually acceptable neutral arbitrator from among the
JAMS/Endispute panel of arbitrators. In the event Consultant and Company
cannot
agree on an arbitrator, the Administrator of JAMS/Endispute will appoint
an
arbitrator. Neither Consultant nor Company nor the arbitrator shall disclose
the
existence, content, or results of any arbitration hereunder without the prior
written consent of all parties. Except as provided herein, the Federal
Arbitration Act shall govern the interpretation, enforcement and all
proceedings. The arbitrator shall apply the substantive law (and the law
of
remedies, if applicable) of the State of California, or federal law, or both,
as
applicable, and the arbitrator is without jurisdiction to apply any different
substantive law. The arbitrator shall have the authority to entertain a motion
to dismiss and/or a motion for summary judgment by any party and shall apply
the
standards governing such motions under the Federal Rules of Civil Procedure.
The
arbitrator shall render an award and a written, reasoned opinion in support
thereof. Judgment upon the award may be entered in any court having jurisdiction
thereof.
(o) Representation
By Counsel.
Each of
the Parties acknowledges that it or he has had the opportunity to consult
with
legal counsel of his choice prior to the execution of this
Agreement.
(p) Code
Section 409A.
The fees
and other amounts payable under this Agreement are not intended to constitute
“nonqualified deferred compensation” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”). However, notwithstanding
any provision of this Agreement to the contrary, if any such fees or other
amounts payable under this Agreement are deemed to be subject to Section
409A of
the Code, this Agreement shall be deemed to incorporate the terms and conditions
required by Section 409A of the Code and Department of Treasury regulations
promulgated thereunder. To the extent applicable, this Agreement shall be
interpreted in accordance with Section 409A of the Code and Department of
Treasury regulations and other interpretive guidance issued thereunder. If
the
Company determines that any fees or other amounts payable under this Agreement
may be subject to Section 409A of the Code and related Department of Treasury
guidance, the Company may adopt such amendments to this Agreement or adopt
other
policies and procedures (including amendments, policies and procedures with
retroactive effect), or take such other actions, as it deems necessary or
appropriate to (i) exempt the fees and other amounts payable under this
Agreement from Section 409A of the Code and/or preserve the intended tax
treatment of such fees and other amounts, or (ii) comply with the requirements
of Section 409A of the Code and related Department of Treasury
guidance.
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[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date
first set forth above.
XXXXXXX
PROPERTIES, INC.
A
Maryland Corporation
By:
/s/ Xxxx X.
Xxxxxx
Xxxx
X.
Xxxxxx
Its
:
Executive Vice President
/s/
Xxxxxx X.
Xxxxx
Xxxxxx
X.
Xxxxx
Consultant