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EXHIBIT 99.2
REGISTRATION RIGHTS AND
LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (the
"Agreement") is entered into this ______ day of _________, 1996 by and between
Xxxxxxx Properties, Inc., a Maryland corporation (the "Company"), and
___________________________ (the "Investor").
R E C I T A L S
WHEREAS, this Agreement is made pursuant to that certain
Contribution Agreement dated as of September __, 1996 (the "Contribution
Agreement") by and among Xxxxxxx Properties, L.P., a California limited
partnership (the "Operating Partnership"), [the Investor] and certain other
parties, pursuant to which the Investor will receive OP Units (as defined
below);
WHEREAS, the Company is the general partner of the Operating
Partnership;
WHEREAS, in consideration for the Investor's obligations under
the Contribution Agreement, the Company wishes to provide the Investor with
certain registration rights;
WHEREAS, in consideration for the Operating Partnership's
obligations under the Contribution Agreement, the Investor has agreed to the
lock-up provisions as set forth in Section II below; and
NOW THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth hereinafter, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
I. Definitions
As used in this Agreement, the following terms shall have the
following respective meanings:
"Closing" shall mean the "Closing" under and as
defined in the Contribution Agreement.
"Common Stock" shall mean the Common Stock of the
Company, par value $.0001 per share;
"Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act;
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"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time;
"Lock-up Period" shall mean, with respect to the Tier
I Shares, the period commencing on the Closing and ending on the third (3rd)
anniversary of the Closing, and, with respect to the Tier II Shares, the period
commencing on the Closing and ending on the first (1st) anniversary of the
Closing.
"OP Units" shall mean, collectively, the Tier I OP
Units and the Tier II OP Units;
"Potential Tier I Shares" shall mean, collectively,
the Common Stock that has been issued to the Investor upon conversion of its
Tier I OP Units and all Common Stock that would be issued to the Investor if all
of its unconverted Tier I OP Units were converted to Common Stock;
"Potential Tier II Shares" shall mean, collectively,
the Common Stock that has been issued to the Investor upon conversion of its
Tier II OP Units and all Common Stock that would be issued to the Investor if
all of its unconverted Tier II OP Units were converted to Common Stock;
The terms "register," "registered," and
"registration" shall refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act and the declaration
or ordering of the effectiveness of such registration statement;
"Registrable Securities" shall mean: (i) the Common
Stock issued or issuable upon conversion of the OP Units; and (ii) any other
Common Stock issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of such OP Units or shares of Common Stock;
provided, however, that shares of Common Stock or other securities shall not be
treated as Registrable Securities (A) if they have been sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction pursuant to an effective registration statement or pursuant to
Commission Rule 144 ("Rule 144"), or (B) if in the reasonable opinion of counsel
to the Company they may be sold in a transaction exempt from the registration
and prospectus delivery requirements of the Securities Act and if the Company
has removed all transfer restrictions and legends with respect to the
registration and prospectus delivery requirements from the consummation of such
sale;
"Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time;
"Shares" shall mean the Common Stock issuable to the
Investor upon conversion of its OP Units.
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"Tier I OP Units" shall mean those certain _______
limited partnership units in the Operating Partnership issued to the Investor on
the date hereof and that are represented by Registered Certificate of Ownership
No. ______, which partnership units are convertible, at the Investor's option,
for Shares of Common Stock of the Company. [WITH RESPECT TO ALL INVESTORS IN THE
AGGREGATE, TIER I OP UNITS WILL HAVE A VALUE OF $19,000,000 AS OF THE CLOSING AS
COMPUTED UNDER THE CONTRIBUTION AGREEMENT, AND TIER I REGISTERED CERTIFICATES OF
OWNERSHIP WILL BE ISSUED REPRESENTING OP UNITS HAVING A VALUE IN THE AGGREGATE
AS OF THE CLOSING OF $19,000,000. THE TRANSFERORS SHALL DESIGNATE PRIOR TO
CLOSING WHICH $1,500,000 OF "EXCESS UNITS" TO BE TIER I OP UNITS, IN ADDITION TO
$17,500,000 OF OP UNITS COVERED BY SECURITY AGREEMENT.]
"Tier I Shares" shall mean the Common Stock issuable
to the Investor upon conversion of its Tier I OP Units.
"Tier II OP Units" shall mean those certain _______
limited partnership units in the Operating Partnership issued to the Investor on
the date hereof and that are represented by Registered Certificate of Ownership
No. ______, which partnership units are convertible, at the Investor's option,
for Shares of Common Stock of the Company. [ALL OP UNITS THAT ARE NOT TIER I OP
UNITS WILL BE TIER II OP UNITS (I.E., THOSE OP UNITS IN EXCESS OF THE FIRST
$19,000,000 OF OP UNITS.]
"Tier II Shares" shall mean the Common Stock issuable
to the Investor upon conversion of its Tier II OP Units.
II. Lock-up Agreement.
A. The Investor hereby agrees that, prior to the end
of the Lock-up Period, it will not, directly or indirectly, offer, sell,
contract to sell, grant any option to purchase, make any short sale, transfer,
pledge [other than pursuant to the Security Agreement, as defined in the
Contribution Agreement], cause a registration of, or otherwise dispose of or
make a distribution of (collectively, "Dispose of") any of the shares of Common
Stock acquired by the conversion of all or a portion of its Tier I OP Units
owned as of the date hereof, except as set forth in Section II(C) below, without
the prior written consent of the Company.
B. The Investor hereby agrees that, prior to the end
of the Lock-up Period, it will not, directly or indirectly, Dispose of any of
the shares of Common Stock acquired by the conversion of all or a portion of its
Tier II OP Units owned as of the date hereof, except as set forth in Sections
II(D) and (E) below, without the prior written consent of the Company.
C. Notwithstanding Section II(A) hereof, in the event
of the death of the Investor during the Lock-up Period, the personal
representative of the Investor's estate shall have a one-time right exercisable
at any time following such death and prior to nine (9) months after such death,
to Dispose of the Investor's Tier I Shares in an amount not to exceed in the
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aggregate fifty percent (50%) of the Investor's Potential Tier I Shares,
provided, however, (i) in no event shall any Tier I Shares be Disposed of
pursuant to this Section II(C) prior to the first anniversary of the Closing and
(ii) in no event shall the Investor Dispose of Tier I Shares pursuant to this
Section II(C) during any calendar month in an amount greater than ten percent
(10%) of the Investor's Potential Tier I Shares. In the event that the Investor
dies prior to the first anniversary of the Closing, the period referenced in the
immediately preceding sentence shall commence upon the first anniversary of the
Closing and shall end on the date that is nine (9) months after such
anniversary. [ONLY X.X. XXXXXXX AND XXXXX XXXXXX SHALL HAVE THE RIGHTS SET FORTH
IN THIS SECTION II(C). WITH RESPECT TO ANY OTHER PERSON THAT RECEIVES OP UNITS,
SECTION II(C) AND, UNLESS SUCH PERSON RECEIVES TIER II UNITS ARTICLES III AND IV
SHALL BE DELETED AND CORRESPONDING CHANGES SHALL BE MADE TO EACH REGISTRATION
RIGHTS AND LOCK-UP AGREEMENT.]
D. Notwithstanding Section II(B) hereof, the Investor
shall have the right to assign as collateral and pledge its Tier II OP Units
and/or its Tier II Shares to an institutional lender, provided that the security
agreement, pledge agreement and/or other documents pursuant to which such
assignment and pledge are made shall be reasonably satisfactory to the Company.
In the event that the Investor so assigns and pledges any of its Tier II OP
Units and/or its Tier II Shares prior to the first anniversary of the Closing,
the Company agrees, if so requested by the secured party, to waive the one year
lock-up on such OP Units and/or Shares.
E. Notwithstanding Section II(B) hereof, at any time
after the first anniversary of the Closing, the Investor may Dispose of any of
its Tier II Shares, provided, however, (i) in no event shall the Investor
Dispose of Tier II Shares pursuant to this Section II(E) during any calendar
month in an amount greater than twenty percent (20%) of the Investor's Potential
Tier II Shares.
III. Registration Rights During Lock-up Period.
A. Requested Registration. If, under Section II(C) or
(E) hereof, the Investor may Dispose of Shares during the Lock-up Period, then,
during such period, the Investor may request in writing that the Company effect
a registration, qualification or compliance with respect to Registrable
Securities, provided that any such request shall be limited by the limitations
on Disposition of Shares set forth in Section II above and the Investor shall
remain subject to such limitations, and provided further that such request is
for the registration, qualification or compliance of Shares having an aggregate
offering price (as determined based on the highest closing price of the Common
Stock on a public exchange within five (5) business days of such written
request) to the public, net of underwriting discounts and commissions, of at
least $500,000.
Upon receipt of such written request, the Company shall use
its best efforts to effect as soon as reasonably practicable and in no event
later than 90 days after receipt of the request therefor all such registrations,
qualifications and compliances (including, without
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limitation, the execution of an undertaking to file post-effective amendments,
appropriate qualification under the applicable blue sky or other state
securities laws and appropriate compliance with exemptive regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of the Investor's Registrable Securities as are specified in such
request, provided that with respect to any registration, qualification or
compliance requested in connection with the first paragraph of this Section, the
Company may in its sole discretion file a registration statement under Rule 415
of the Securities Act (or under a rule substantially equivalent to Rule 415 as
now in effect) for an offering of the Investor's Registered Securities on a
continuous or delayed basis in the future (a "Shelf Registration Statement"),
which would permit or facilitate the sale and distribution of the Investor's
Registrable Securities as may be so requested and, provided further, that the
Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section III(A):
(1) In any particular jurisdiction in
which the Company would be required to execute a general consent to
service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act;
(2) If the Company has already
effected one registration for the Investor pursuant to this Section;
(3) If at the time of the request to
effect a registration, qualification or compliance of Registrable
Securities the Company gives notice within 30 days of such request that
it is engaged or has fixed plans to engage within 60 days of the time
of the request in a registered public offering as to which the Investor
may include Registrable Securities pursuant to Section IV and which the
Company in good faith estimates will become effective within such 60
day period without a reduction in the Shares requested to be registered
hereunder;
(4) If the Investor has already sold
or could have sold Shares in a registration pursuant to Section IV
hereof; or
(5) If the Company is not eligible to
file a registration statement on Form S-3 (or a substantially
equivalent registration form under the Securities Act subsequently
adopted by the Commission that permits inclusion of or incorporation by
reference to other documents filed by the Company with the Commission).
The Company hereby represents and warrants to the Investor that, as of
the date of this Agreement, the Company is eligible to file a
registration statement on Form S-3 and agrees that, throughout the
Lock-up Period, the Company shall use reasonable good faith efforts to
ensure that the Company remains eligible to file a registration
statement on Form S-3 (or a substantially equivalent registration form
under the Securities Act subsequently adopted by the Commission that
permits inclusion of or incorporation by reference to other documents
filed by the Company with the Commission). If the Company is not
eligible to file a registration statement on Form S-3
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despite the Company's reasonable good faith efforts to remain eligible
to do so, the Company shall still be obligated to file and effect the
registration, qualification and compliance as so requested, provided
that (i) such registration, qualification and/or compliance of Shares
have an aggregate offering price (as determined under the first
paragraph of this Section III(A) of at least $2,500,000, (ii) the
Investor shall bear all expenses of such registration, qualification
and/or compliance as provided in Section VI below, and (iii) the
Company may select any Commission registration statement available to
the Company for such registration, qualification and/or compliance.
X. Xxxxx of Registration. If the Company shall
furnish to the Investor a certificate signed by the President of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for a filing of a registration statement to be made on or before the date such
filing would be required and it is therefore essential to defer such filing,
then the Company may direct that such request to file a registration statement,
as the case may be, be delayed for a period not in excess of 60 days, provided
that the filing of such registration statement has not previously been delayed
by the Company pursuant to this Section III(B).
IV. Registrations During Lock-up Period.
A. Company Registration. If (i) under Section II(C)
or (E) hereof the Investor may Dispose of Shares during the Lock-up Period and
(ii) at any time or from time to time during the Lock-up Period the Company
shall determine to register any of its Common Stock, either for its own account
or the account of another security holder, other than a registration relating to
employee stock option or purchase plans, a registration relating to a Rule 145
transaction or a registration pursuant to a registration form which does not
include substantially the same information as would be required to be included
in a registration statement covering the sale of Registrable Securities, the
Company will:
1. promptly give to the Investor written
notice thereof; and
2. subject to the lock-up provisions of
Sections II(A) and (B) hereof, include either in such registration and in any
underwriting involved therein, or, at the Company's sole option, in a separately
filed Shelf Registration Statement, all the Registrable Securities specified in
a written request made within twenty (20) days after receipt of such written
notice from the Company, by the Investor, provided that the amount of the
Investor's Registrable Securities to be included in any registration involving
an underwriting shall be subject to further reduction as set forth in Section
IV(B) below.
B. Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Investor as a part of the written
notice given pursuant to Section IV(A)(1). In such event, and provided that the
Company at its sole option chooses not to file a separate Shelf Registration
Statement to cover the Investor's Registrable Securities, the right of the
Investor to registration pursuant to this Section shall be conditioned upon such
Investor's participation in such
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underwriting and the inclusion of such Investor's Registrable Securities in the
underwriting to the extent provided herein. The Investor shall (together with
the Company and other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section, if the underwriter advises
the Company in writing that marketing factors require a limitation of the number
of shares to be underwritten, the number of Registrable Securities of the
Investor to be included in the registration and underwriting shall be reduced on
a pro rata basis based on the total number of the securities proposed to be sold
by the Investor and other security holders. The Company shall advise the
Investor of any such limitations and the number of shares of Registrable
Securities that may be included in the registration and underwriting. If the
Investor disapproves of the terms of any such underwriting, it may elect to
withdraw therefrom by written notice to the Company and the underwriter. The
Registrable Securities so withdrawn shall also be withdrawn from registration.
V. Registration Rights After Expiration of the Lock-up Period.
After the expiration of the Lock-up Period, the Investor shall have the
registration rights that are set forth in the Investor Rights Agreement (as
amended, the "Investor Rights Agreement"), dated November 18, 1993, by and among
the Company and the investors set forth in Exhibit A attached to such agreement,
as if and to the extent the Investor was considered a "Holder" as defined in the
Investor Rights Agreement. In the event of a conflict between the terms of this
Agreement and the terms of the Investor Rights Agreement, the terms of this
Agreement shall control.
VI. Expenses of Registration. All expenses incurred in
connection with any attempted or completed registration, qualification or
compliance pursuant to Sections IV and V, including without limitation, all
registration, filing and qualification fees, printing expenses, fees and
disbursements of counsel for the Company, expenses of any special audits
incidental to or required by such registration, qualification or compliance
shall be borne by the Company or by a party other than the Investor, as the case
may be. All such expenses incurred in connection with any registration,
qualification or compliance requested by the Investor pursuant to Section III
shall be borne by the Investor. With respect to any registration, qualification
or compliance, the Company shall not be required to pay underwriters' discounts,
commissions, or stock transfer taxes relating to Registrable Securities or the
fees and disbursements of any counsel retained by the Investor.
VII. Registration Procedures. In the case of each
registration, qualification or compliance effected by the Company pursuant to
this Agreement, the Company will keep the Investor advised in writing as to the
initiation of each registration, qualification and compliance and as to the
completion thereof. At its expense (except as otherwise provided in Section VI
above) the Company will:
A. prepare and file with the Commission a
registration statement with respect to such securities and use its best efforts
to cause such registration, qualification or compliance to become and remain
effective for a period of 180 days or until the Investor has
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completed the distribution described in the registration statement relating
thereto, whichever shall first occur;
B. furnish to the Investors and other security
holders participating in such registration and to the underwriters of the
securities being registered such number of copies of the registration statement,
preliminary prospectus, final prospectus and other documents incident thereto as
such underwriters, the Investor and other security holders from time to time may
reasonably request;
C. prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statements as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement;
D. use its best efforts to register or qualify the
securities covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as such Investor and other participating
security holders may reasonably request, in a writing received by the Company at
least ten days prior to the original filing of such registration statement;
E. enter into a written underwriting agreement in
customary form and substance reasonably satisfactory to the Company, the
Investor, the other participating security holders and the managing underwriter
or underwriters of the public offering of such securities, if the offering is to
be underwritten, in whole or in part;
F. notify each holder of securities covered by such
registration statement, at any time when a prospectus relating thereto covered
by such registration statement is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing;
G. furnish, at the request of the Investor and other
participating security holders, on the date that such Registrable Securities are
delivered to the underwriters for sale in connection with a registration
pursuant to this Agreement, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters, on
the date that the registration statements with respect to such securities
becomes effective, (i) an opinion, dated such date, of the counsel representing
the Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Investor and other security holders
requesting registration of Registrable Securities and (ii) a letter dated such
date, from the independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified public accounts
to underwriters in an underwritten public offering,
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addressed to the underwriters, if any, and to the Investor and other
participating security holders; and
H. use its best efforts to take such other steps as
are reasonably necessary to effect the registration contemplated hereby and to
facilitate the lawful disposition of the Registrable Securities subject thereto.
VIII. Indemnification.
A. The Company will indemnify the Investor, other
participating security holders, if any, and each underwriter, if any, of the
Investor's and other participating security holders' securities covered by such
registration statement, with respect to certain customary matters that relate to
the registration of the Registrable Securities. Such indemnification will be
provided pursuant to an indemnification agreement to be subsequently negotiated.
The foregoing indemnity agreement is subject to the condition that, insofar as
it relates to any such untrue statement (or alleged untrue statement) or
omission (or alleged omission) made in the preliminary prospectus but eliminated
or remedied in the final prospectus, such indemnity agreement shall not inure to
the benefit of any underwriter or the Investor and other participating security
holders, if there is not an underwriter, as the case may be, if a copy of such
final prospectus was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act or any other applicable state securities law or any rule or
regulation promulgated thereunder.
B. The Investor and other participating security holders will,
if Registrable Securities held by or issuable to the Investor and other
participating security holders are included in the securities to which such
registration, qualification or compliance is being effected, indemnify,
severally and not jointly, to the extent of the proceeds received by the
Investor and other participating security holders therefrom, the Company with
respect to certain customary matters that relate to information provided by the
Investor and other participating Holders that is set forth in the registration
statement that pertains to the Registrable Securities. Such indemnification will
be provided pursuant to an indemnification agreement to be subsequently
negotiated.
IX. Information by Investor. The Investor shall furnish to the
Company such information regarding the Investor and the distribution proposed by
such Investor as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
X. Transfer of Registration Rights. Except as otherwise
provided herein, the rights to cause the Company to register securities granted
by the Company under Section V may be assigned or otherwise conveyed to a
transferee or assignee of Registrable Securities, who shall be considered an
"Investor" for purposes of this Agreement; provided that (i) such transfer is
effected in compliance with the lock-up provisions of Section II and any
restrictions on transfer set forth in the partnership agreement of the Operating
Partnership, (ii) such transfer is effected in accordance with applicable
federal and state securities laws, (iii) such transferee or assignee
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becomes a party to this Agreement or agrees in writing to be subject to the
terms hereof to the same extent as if he were an original purchaser hereunder,
and (iv) the Company is given written notice by the Investor of said transfer,
stating the name and address of said transferee and identifying the securities
with respect to which such registration rights are being assigned. The rights to
cause the Company to effect registrations, qualifications and compliance granted
by the Company under Sections III and IV above are not assignable or otherwise
conveyable, other than upon the death of the Investor, in which event the
personal representative of the Investor's estate shall succeed to the Investor's
rights under this Agreement.
XI. Miscellaneous.
A. Successors and Assigns. Except as otherwise
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
B. Governing Law. This Agreement shall be governed by
and construed under the laws of the State of California.
C. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
D. Titles and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
E. Notices. Except as otherwise provided, all notices
and other communications required or permitted hereunder shall be in writing and
shall be deemed effectively given upon personal delivery to the party to be
notified or upon deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
F. Amendments and Waivers. Any term of this Agreement
may be amended and the observance of any term of the Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company and the Investor.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon the Investor, the Company and their respective successors and
assigns.
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G. Entire Agreement. This Agreement and the other
documents and agreements referred to herein constitute the entire understanding
and agreement among the parties with regard to the subject matter hereof and
thereof.
H. Severability. If one or more provisions of this
Agreement are determined to be unenforceable under applicable law, such
provisions shall be excluded from this Agreement and the balance of the
Agreement shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms.
I. Attorneys' Fees. If any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and disbursements
in addition to any other relief to which such party may be entitled.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
XXXXXXX PROPERTIES, INC.
By:
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Its:
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