SETTLEMENT AGREEMENT
Exhibit
99.2
This
Settlement Agreement (this “Agreement”),
dated May 30, 2008 (the ”Effective
Date”), is made and entered into by and between Whitestone REIT,
Whitestone REIT Operating Partnership, L.P. (together with Whitestone REIT,
“Whitestone”),
Xxxxx X. Xxxxxxxxxx (“Xxxxxxxxxx”)
and Xxxx X. Xxx (“Dee” and
together with Whitestone and Xxxxxxxxxx, the “Whitestone
Parties”) on the one hand, and Xxxxx X. Xxxxxxx (“Xxxxxxx”),
Xxxxxxx Management, LP (“Xxxxxxx
Management”), Xxxxxxx Income REIT Operating Partnership, L.P. (“Xxxxxxx
Partnership”) and Xxxxxxx Income REIT, Inc. (“Xxxxxxx Income
REIT,” together with Xxxxxxx, Xxxxxxx Management and Xxxxxxx Partnership,
the “Xxxxxxx
Parties”). Each of the Whitestone Parties and the Xxxxxxx
Parties are referred to herein collectively as the “Parties”
and individually as a “Party.”
RECITALS
WHEREAS, Whitestone REIT and
Whitestone REIT Operating Partnership, L.P. have asserted certain claims and
causes of action against Xxxxxxx and Xxxxxxx Management; Xxxxxxx and Xxxxxxx
Management have asserted counter-claims against Whitestone REIT and Whitestone
REIT Operating Partnership, L.P.; and Xxxxxxxxxx and Dee have asserted
third-party claims against Xxxxxxx and Xxxxxxx Management, in litigation in
Houston, Texas, styled Whitestone REIT and Whitestone REIT
Operating Partnership, X.X. x. Xxxxx X. Xxxxxxx and Xxxxxxx Management,
L.P., Cause Number 2006-63041, in the 333rd Judicial District Court of
Xxxxxx County, Texas (the “State
Litigation”) related to the termination of Xxxxxxx as president and CEO
of Whitestone REIT, the termination and expiration of certain agreements between
Whitestone REIT, Whitestone REIT Operating Partnership, L.P. and Xxxxxxx
Management and certain statements made by Xxxxxxx about Xxxxxxxxxx and
Xxx;
WHEREAS, Whitestone REIT has
asserted certain claims and causes of action against Xxxxxxx and Xxxxxxx
Management; and Xxxxxxx and Xxxxxxx Management have asserted counter-claims
against Whitestone REIT, in litigation in Houston, Texas, styled Whitestone REIT x. Xxxxx X. Xxxxxxx
and Xxxxxxx Management, L.P., Cause Number 4:06-CV-3897, in the United
States District Court for the Southern District of Texas (the “Federal
Litigation” and together with the State Litigation, the “Litigation”)
related to certain consent solicitation statements filed by Xxxxxxx and certain
amendments to the declaration and bylaws of Whitestone REIT;
WHEREAS, the Parties desire to
avoid the expense and burden of continued litigation and to resolve fully and
finally all disputes between and among them;
WHEREAS, the Parties entered
into an agreement on May 21, 2008 (the “Earlier
Settlement Agreement”), a copy of which is attached hereto as Exhibit E;
and
WHEREAS, the Parties desire to
further memorialize the terms of the settlement.
NOW, THEREFORE, in
consideration of the representations, acknowledgements, promises and covenants
contained herein, and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each of the Parties hereby voluntarily,
intentionally, and upon the advice and guidance of counsel, agrees as
follows:
ARTICLE 1
TRANSFER
OF PROPERTIES; TRANSFER OF SHARES AND OPERATING PARTNERSHIP UNITS
1.1 Transfer of Real
Property. Simultaneously with the execution of this Agreement
and in consideration for the Whitestone Securities (as defined below),
Whitestone REIT is transferring to Xxxxxxx (or its designees) properties known
as (a) Garden Oaks at 0000 Xxxxx Xxxxxxxx, Xxxxxxx, Xxxxx 00000 and (b)
Northeast Square at 00 Xxxxxx Xxxx, Xxxxxxx, Xxxxx 00000 (collectively, the
“Properties”)
pursuant to the terms of the Earlier Settlement Agreement.
1.2 Transfer of Shares and
Operating Partnership Units. Simultaneously with the execution
of this Agreement and as consideration for the Properties, Xxxxxxx Management,
Xxxxxxx and Affiliates (as defined below) are transferring to Whitestone REIT
shares of Whitestone REIT and units of Whitestone REIT Operating Partnership,
L.P. aggregating 1,362,412.811 shares and units (the “Whitestone
Securities”) pursuant to the terms of the Earlier Settlement
Agreement.
ARTICLE 2
XIV
UNITS
2.1 Transfer of XIV
Units. Subject to the terms and conditions of this
Agreement:
(a) Within
one (1) year from the Effective Date, Whitestone may demand that Xxxxxxx Income
REIT or Xxxxxxx Partnership, as the case may be, to (i) form a new limited
liability company (the “New LLC”)
with documentation reasonably satisfactory to Whitestone and (ii) transfer
1,231,393.58 operating units of Whitestone REIT Operating Partnership, L.P.
owned by Houston R.E. Income Properties XIV, L.P., or any successors in
interest, less any units distributed or distributable to any shareholder of the
limited partner of Houston R.E. Income Properties XIV, L.P., which distributed
or distributable units have not been nor will be distributed to Xxxxxxx (with
any units of Whitestone REIT Operating Partnership, L.P. that are converted to
shares or units of Whitestone REIT or another entity, the “XIV
Units”) to the New LLC (the “Demand”).
(i) Within
six (6) Business Days (as defined below) of the Demand, Xxxxxxx Income REIT
shall, and each of the Xxxxxxx Parties shall cause Xxxxxxx Income REIT to,
provide Whitestone with a draft certificate of formation and a draft limited
liability company agreement (or other necessary documentation to form the New
LLC) for review and comment, which comment Whitestone can provide at any time
for a period of three (3) Business Days and shall not be unreasonably rejected
by Xxxxxxx Income REIT. Such limited liability company agreement
shall provide that (A) the New LLC shall be sole manager-managed; (B) Whitestone
has the exclusive right to appoint the sole manager and any successor manager;
(C) the sole manager shall have the exclusive right to vote the XIV Units or any
other shares or units of Whitestone REIT or Whitestone REIT Operating
Partnership, L.P. owned by the New LLC or any other person or entity (including
any successor entity of the New LLC) to which the XIV Units are sold or
otherwise transferred; and (D) the limited liability company agreement shall not
be amended to alter terms (A) - (C) without the consent of
Whitestone.
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(ii) Within
ten (10) Business Days after the Demand is received by Xxxxxxx Income REIT,
Xxxxxxx Income REIT shall, and each of the Xxxxxxx Parties shall cause Xxxxxxx
Income REIT to, (A) file the certificate of formation approved in
Section 2.1(a)(i) with the Secretary of State’s office for the New LLC,
(B) execute, or cause to be executed by the appropriate parent of the New LLC,
the limited liability company agreement approved in Section 2.1(a)(i) and
(C) instruct the transfer agent to transfer the XIV Units to the New
LLC.
(b) Within
one (1) year from the Effective Date, Whitestone shall have the additional right
to cause Xxxxxxx Income REIT to distribute, or cause to be distributed, the XIV
Units on a pro rata
basis to all of the shareholders of Xxxxxxx Income REIT (the “Election”);
and, Xxxxxxx Income REIT shall distribute to its shareholders the XIV Units
within thirty (30) days of receipt of Notice (as defined below) of the Election;
provided, however, that
no XIV Units are ever distributed to either Xxxxxxx or any of his family members
(excluding Xxxxx Xxxxx) or any entity that Xxxxxxx owns or controls (including
Affiliates). If Whitestone makes the Election:
(i) To the
extent tax-free transfer is possible, the Parties shall cooperate in good faith
to facilitate a tax-free transfer;
(ii) Whitestone
shall, by certified mail, return receipt requested, instruct the shareholders of
Xxxxxxx Income REIT on how to treat the distribution for tax
purposes;
(iii) In the
event Whitestone instructs the shareholders of Xxxxxxx Income REIT that such
distribution is taxable and the applicable shareholder follows the instructions
of Whitestone provided under Section 2.1(b)(ii), Whitestone will agree to
pay such shareholder’s tax liability within thirty (30) days of determination of
the amount of such taxes that are due; and
(iv) In the
event that Whitestone instructs the shareholders of Xxxxxxx Income REIT that
such distribution is not taxable and the applicable shareholder follows the
instructions of Whitestone provided under Section 2.1(b)(ii), Whitestone
shall indemnify, hold harmless and pay such shareholder the amount of such tax
liability (including any penalties, interest and additional tax liability
incurred as a result of the indemnity provided under this
Section 2.1(b)(iv)) associated with the non-tax-free transfer caused by the
Election; provided,
however, that if any shareholder does not follow the instruction of
Whitestone provided under Section 2.1(b)(ii), such shareholder shall lose
the benefit of the indemnity provided under this Section 2.1(b)(iv) and
Whitestone shall have no obligations under this
Section 2.1(b).
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For the
avoidance of doubt, this Section 2.1(b) shall not prohibit Xxxxxxx Income
REIT from distributing the XIV Units pro rata to all of its
shareholders prior to the Election; provided, however, that if
Xxxxxxx Income REIT distributes the XIV Units prior to the Election, Whitestone
shall have no liability resulting from such distribution and no obligations
under this Section 2.1(b).
2.2 Option. Subject
to the terms and conditions of this Agreement, if the shares or units of
Whitestone REIT or Whitestone REIT Operating Partnership, L.P. are listed on the
New York Stock Exchange, the American Stock Exchange, the NASDAQ National Market
or the National Association of Securities Dealers Automated Quotations (the
“Listing”)
and the XIV Units have not been distributed to the shareholders of Xxxxxxx
Income REIT pursuant to Section 2.1(b) or otherwise, Whitestone shall have
an option to purchase the XIV Units (the “Option”).
(a) Whitestone
may exercise the Option at any time within five (5) years from the Effective
Date by delivering Notice of such exercise to Xxxxxxx Income REIT, which Notice
shall include the date of the intended purchase, which date shall not be earlier
than five (5) days from the date of such Notice.
(b) The
purchase price of the XIV Units under the Option shall be the average closing
price of the shares or units of Whitestone REIT or Whitestone REIT Operating
Partnership, L.P. (on the exchange of the Listing) for the previous
thirty (30) days prior to the Notice provided under
Section 2.2(a).
(c) Contemporaneously
with the receipt of the purchase price calculated pursuant to
Section 2.2(b), which purchase price shall be paid in cash and payable
within fifteen (15) days of the delivery of the Notice provided under
Section 2.2(a), Xxxxxxx Income REIT shall execute any documentation
required to transfer the XIV Units to whichever Whitestone entity exercises the
Option.
2.3 Right of First
Refusal. Subject to the terms and conditions of this
Agreement, if Xxxxxxx Income REIT (or its shareholders or its assignees or
transferees) receives an offer or otherwise negotiates or is intending to sell
or otherwise transfer the XIV Units (the “Proposed
Sale”) to a third party, Whitestone shall have a right of first refusal
to purchase the XIV Units on the same or substantially similar terms as the
Proposed Sale (the “ROFR”).
(a) Xxxxxxx
Income REIT shall deliver in writing Notice of the Proposed Sale at least thirty
(30) days prior to the closing of the Proposed Sale, which Notice shall include
(i) the identity (including name and address) of the proposed transferee, (ii)
the number of XIV Units proposed to be transferred, (iii) the price per XIV Unit
proposed to be transferred and (iv) any other terms and conditions of the
Proposed Sale, with a copy of any written offer attached.
(b) Delivery
of the Notice under Section 2.3(a) shall constitute an irrevocable offer by
Xxxxxxx Income REIT (or its shareholders or other assignees or transferees) to
sell the XIV Units to Whitestone; and, Xxxxxxx Income REIT (or its shareholders
or other assignees or transferees) shall not complete the Proposed Sale until
the thirty (30) day period described in Section 2.3(c) has
lapsed.
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(c) Whitestone
may exercise the ROFR at any time within thirty (30) days after receipt of the
Notice under Section 2.3(a).
(i) If
Whitestone elects to exercise the ROFR, the closing of the sale to Whitestone
shall take place at a mutually selected location within forty-five (45) days of
Notice of Whitestone’s exercise of the ROFR.
(ii) If
Whitestone elects not to exercise the ROFR, by action or failure to provide
Notice of its exercise of the ROFR within thirty (30) days after receipt of the
Notice under Section 2.3(a), Xxxxxxx Income REIT may proceed with the
Proposed Sale on the same terms and conditions given in the Notice provided
under Section 2.3(a); provided, however, that if
Xxxxxxx Income REIT does not close the Proposed Sale within ninety (90) days
after Xxxxxxx Income REIT delivered the Notice under Section 2.3(a), or, if
the terms of the Proposed Sale are changed and are materially different than the
terms described in the Notice provided under Section 2.3(a), Xxxxxxx Income
REIT must deliver a new Notice to Whitestone under Section 2.3(a) and the
provisions of this Section 2.3 shall apply to such new Notice.
For the
avoidance of doubt, the ROFR shall terminate upon the pro rata distribution of the
XIV Units to all of the shareholders of Xxxxxxx Income REIT pursuant to
Section 2.1(b).
ARTICLE 3
MUTUAL
RELEASE AND DISMISSAL
Subject
to the terms and conditions of this Agreement, simultaneously with the execution
of this Agreement, the Parties shall execute a mutual release, substantially in
the form of Exhibit A.
ARTICLE 4
REPRESENTATIONS
OF THE PARTIES
Each of
the Parties hereby represents and warrants to the other Parties as
follows:
4.1 Organization and Standing;
Charter and Bylaws. If such Party is an entity, it is duly
organized and validly existing under, and by virtue of, the laws of the state of
its organization and is in good standing under such
laws. If such Party is an individual, he/she has the
legal capacity to enter into the Transaction Agreements (as defined
below).
4.2 Authorization. All
action on the part of such Party and its board members, officers and
shareholders necessary for the authorization, execution, delivery and
performance of all obligations of under this Agreement and any document
contemplated hereby or thereby (the “Transaction
Agreements”), for the authorization, issuance and delivery by such Party
has been taken. The Transaction Agreements constitute the valid and
binding obligations of such Party (as applicable) and are enforceable against
such Party (as applicable) in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency or other laws affecting
the enforcement of creditors’ rights generally, and except that the availability
of the remedy of specific performance or other equitable relief is subject to
the discretion of the court before which any proceeding therefor may be
brought.
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4.3 Compliance with Other
Instruments. No Party (that is an entity) is in violation of
any term of its governing documents, of any provision of any mortgage,
indenture, contract, agreement or instrument to which it is a party or by which
it or its assets are bound, or any judgment, decree or order binding upon such
Party. The execution, delivery and performance of and compliance with
the Transaction Agreements will not result in any such violation or be in
conflict with or constitute a default under any of the terms or provisions of
any document described in the first sentence of this
Section 4.3.
ARTICLE 5
STANDSTILL
(a) General Terms of
Standstill. The Parties agree that for a period of five (5)
years from the Effective Date of this Agreement, none of the Parties nor any of
their respective family members or Affiliates will, directly or indirectly, in
any manner (the obligations pursuant to this paragraph, the “Standstill”):
(i) acquire,
offer or propose to acquire, solicit an offer to sell or agree to acquire,
directly or indirectly, alone or in concert with others, by purchase or
otherwise, any direct or indirect beneficial interest in any voting securities
or direct or indirect rights, warrants or options to acquire, or securities
convertible into or exchangeable for, any voting securities of the other
party;
(ii) propose
to enter into or otherwise propose, directly or indirectly, alone or in concert
with others, any merger or similar business combination, consolidation, sale or
other transaction involving the other party or otherwise seek to control, change
or influence the management, board or policies of the other party;
(iii) propose
a plan of liquidation or dissolution or engage in any recapitalization
transaction or sell or attempt to sell all or substantially all of the assets of
the other party;
(iv) make,
or in any way participate in, directly or indirectly, alone or in concert with
others, any “solicitation” of “proxies” to vote (as such terms are used in the
proxy rules of the Securities and Exchange Commission promulgated pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), whether
subject to or exempt from the proxy rules, or seek to advise or influence in any
manner whatsoever any person or entity with respect to the voting of any voting
securities of the other party;
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(v) form,
join or any way participate in a “group” within the meaning of Section 13(d)(3)
of the Exchange Act with respect to any voting securities of the other
party;
(vi) deposit
any of the voting securities of the other party in any voting trust or subject
any such voting securities to any agreement or other arrangement with respect to
the voting of any such voting securities;
(vii) execute
any written consent as a holder with respect to the voting securities of the
other party;
(viii) arrange,
or in any way participate, directly or indirectly, in any financing for the
purchase of any voting securities or securities convertible or exchangeable into
or exercisable for any voting securities or assets of the other
party;
(ix) make
any request or proposal to amend, waive or terminate any provision of this
Standstill or seek permission to or make any public announcement with respect to
any provision of the Standstill, except with respect to the press release and
retraction in the form of Exhibit C, which
press release and retraction is hereby approved by both the Whitestone Parties
and the Xxxxxxx Parties, or as otherwise required by the federal securities
laws; or
(x) announce
an intention to do, or enter into any arrangement or understanding with others
to do, any of the actions restricted or prohibited under this Article 5, or
take any action that might result in the other party having to make a public
announcement regarding any of the matters referred to in this
Article 5.
For
purposes of clarification only, the subject matter of the lawsuit styled Xxxxxxx Xxxxxxx x. Xxxxxxx
Management, Cause Number 2005-78080, in the 000xx
Xxxxxxxx Xxxxxxxx Xxxxx xx Xxxxxx Xxxxxx, Xxxxx (the “Xxxxxxx Lawsuit”) is not
covered by any of these restrictions and therefore the Xxxxxxx Lawsuit is not
subject to the Standstill.
Further,
the terms of the Standstill do not apply to shares owned by Xxxxx Xxxxx,
mother-in-law of Xxxxxxx; provided, however, that Xxxxx
Xxxxx’x ownership of shares of Whitestone REIT and units of Whitestone REIT
Operating Partnership, L.P. shall be collectively capped at 150% of the number
of shares of Whitestone REIT that Xxxxx Xxxxx owns as of the Effective Date (it
being understood that such shares owned by Xxxxx Xxxxx cannot be transferred by
any means, directly or indirectly, at any time within the period covered by the
Standstill, to any person who is subject to the Standstill); and, provided further, that it is
the obligation of the Xxxxxxx Parties to enforce this limitation on Xxxxx
Xxxxx.
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(b) Directors’ and Trustees’
Obligations. Each of Whitestone REIT, Whitestone REIT
Operating Partnership, L.P., Xxxxxxx Management, LP, Xxxxxxx Income REIT and
Xxxxxxx Partnership shall cause their respective directors or trustees (i) to
comply with the Standstill, except that each such director or trustee may
continue to hold securities of the other party that they own as of the Effective
Date, including any securities resulting from dividends or splitting of such
securities (the “Modified
Standstill”), and (ii) to execute a trustee agreement substantially in
form of Exhibit
B, which trustee agreement is intended to bind such director or trustee
to comply with the Modified Standstill and will expire when such director or
trustee ceases being the director or trustee of the applicable
Party. For the avoidance of doubt, this Article 5 is a
continuing obligation of each of Whitestone REIT, Whitestone REIT Operating
Partnership, L.P., Xxxxxxx Income REIT, Xxxxxxx Management, LP and Xxxxxxx
Partnership; and, each of Whitestone REIT, Whitestone REIT Operating
Partnership, L.P., Xxxxxxx Income REIT, Xxxxxxx Management and Xxxxxxx
Partnership shall cause any successor director or trustee to comply with the
Modified Standstill and to execute a trustee agreement as if such director or
trustee had been a director or trustee from the Effective Date.
ARTICLE 6
DIVIDEND
PAYMENTS AND ESCROW
(a) Effective Date
Payment. On the Effective Date, Whitestone shall deliver a
check in an amount of $102,000 to Xxxxxxx, representing one-half of the
dividends associated with Xxxxxxx’x shares in Whitestone REIT and units in
Whitestone REIT Operating Partnership, L.P.
(b) Escrow. Subject
to the terms and conditions of this Agreement, the Parties shall execute an
escrow agreement substantially in the form of Exhibit D with a
mutually agreeable escrow agent. On the Effective Date, Whitestone
shall deposit $102,000, representing one-half of the dividends associated with
Xxxxxxx’x shares in Whitestone REIT and units in Whitestone REIT Operating
Partnership, L.P., into the escrow account that shall be opened and governed by
such escrow agreement.
ARTICLE 7
REMEDIES
The
Parties acknowledge and agree that money damages would not be a sufficient
remedy for any breach (or threatened breach) of this Agreement by any Party, its
family members or its Affiliates and that, in the event of any breach or
threatened breach hereof, the non-breaching Party shall be entitled to
injunctive and other equitable relief, without proof of actual damages, that the
breaching Party shall not plead in defense thereto that there would be an
adequate remedy at law, and that each Party agrees to waive, and to use its
reasonable best efforts to cause its family members and Affiliates to waive, any
applicable right or requirement that a bond be posted by the non-breaching
Party. Such remedies shall not be the exclusive remedies for a breach
of this Agreement but will be in addition to all other remedies available at law
or in equity. Each Party agrees to indemnify and hold the other Party
harmless from any damages, losses, costs or liabilities (including reasonable
legal fees and the reasonable cost of enforcing this indemnity) arising out of
or resulting from a breach by such Party or its family members or Affiliates of
any of the provisions of this Agreement.
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ARTICLE 8
MISCELLANEOUS
8.1 Expenses. Each
Party will bear their own expense in preparing this Agreement and complying with
the provisions of this Agreement, with no rights of reimbursement from any other
Party.
8.2 Binding
Agreement. This Agreement shall be binding on the Parties as
of the Effective Date.
8.3 Governing
Law. The laws of the State of Texas shall govern all matters
arising out of and relating to this Agreement (regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws).
8.4 Successors and
Assigns. This Agreement binds and inures to the benefit of,
the Parties and their successors and permitted assigns. No Party may
assign or delegate its rights or obligations under this Agreement without the
other Parties’ written consent, which the other Parties will provide in their
reasonable discretion.
8.5 Amendment and
Waivers. This Agreement may not be modified or amended except
by an instrument or instruments in writing signed by the Parties. Any
Party may, only by an instrument in writing, waive compliance by any other Party
with any term or provision of this Agreement on the part of that other Party to
be performed or complied with. The waiver by a Party of a breach of
any term or provision of this Agreement will not be construed as a waiver of any
subsequent breach.
8.6 Entire
Agreement. Except as expressly agreed in this Agreement and
the other Transaction Agreements, this Agreement and the documents delivered
under this Agreement constitute the entire agreement and understanding between
the Parties and supersede any prior agreement, representation and understanding
relating to the subject matter of this Agreement, including the Earlier
Settlement Agreement; provided, however, any
indemnity right that exists under the Amended and Restated Management Agreement,
dated September 1, 2004, between Xxxxxxx Commercial Properties REIT and Xxxxxxx
REIT Operating Partnership, L.P., on one side, and Xxxxxxx Management, on the
other side, is not eliminated by this provision. For the avoidance of
doubt, no consideration has been paid outside the terms of this Agreement and
the other Transaction Agreements.
8.7 Notices. Each
Party giving or making any notice, request, demand, consent or other
communication (each, a ”Notice”)
pursuant to this Agreement shall give the Notice in writing and use one of the
following methods of delivery, each of which for purposes of this Agreement is a
writing: (a) personal delivery, (b) registered or certified mail (in
each case, return receipt requested and postage prepaid), (d) nationally
recognized overnight courier (with all fees prepaid) or
(d) facsimile. Any Party giving a Notice shall address the
Notice to the appropriate person at the receiving Party at:
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If to any
Xxxxxxx Party:
Xxxxx X.
Xxxxxxx
0000
Xxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Facsimile:
(000) 000-0000
With a
copy to:
General
Counsel
Xxxxxxx
Income REIT, Inc.
0000
Xxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attn: Xxx
Xxxxxx
Facsimile:
(000) 000-0000
If to any
Whitestone Party:
Whitestone
REIT
0000
Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attn:
Xxxx Xxx
Facsimile:
(000) 000-0000
With a
copy to:
King
& Spalding LLP
0000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Attn:
Xxxxxxxx X. Xxxxx
Facsimile:
(000) 000-0000
Any Party
may send any Notice, request, demand, claim or other communication under this
Agreement to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, ordinary mail or electronic mail), but no such Notice, request,
demand, claim or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended
recipient. Any Party may change the address to which Notices,
requests, demands, claims and other communications under this Agreement are to
be delivered by giving the other Parties Notice in the manner set forth in this
Agreement. Except as provided elsewhere in this Agreement, a Notice
is effective only if the Party giving the Notice has complied with this
Section 8.7 and the receiving Party has received the Notice. A
Notice is deemed to have been received as follows:
(a) if a
Notice is delivered in person, or sent by registered or certified mail, or
national recognized overnight courier, upon receipt as indicated by the date on
the signed receipt;
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(b) if a
Notice is sent by facsimile, upon receipt by the Party giving or making the
Notice of an acknowledgment or transmission report generated by the machine from
which the facsimile was sent indicating that the facsimile was sent in its
entirety to the recipient’s facsimile number;
(c) if the
receiving Party rejects or otherwise refuses to accept the Notice or if the
Notice cannot be delivered because of a change in address for which no Notice
was given, then upon the rejection, refusal or inability to deliver;
and
(d) despite
Section 8.7(a) through Section 8.7(d), if any Notice is received after
5:00 p.m. on a day where the recipient is located or on a weekend or
federal holiday, then the Notice is deemed received at 9:00 a.m. on the
next day that is not a weekend or federal holiday where the recipient is
located.
8.8 Construction of Certain
Terms. The titles of the articles, sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement. Wherever the words
“including,” “include” or “includes” are used in this Agreement, they shall be
deemed followed by the words “without limitation.” References to any
gender shall be deemed to mean any gender. All currency amounts in
this Agreement are stated and shall be paid in United States
currency. “Business
Day” shall mean any day that is not a Saturday, Sunday or a bank holiday
in the State of Texas. “Affiliates”
shall have the meaning ascribed to such term by the Securities Exchange Act of
1934 and the regulations promulgated thereunder.
8.9 Counterparts. The
Parties may execute this Agreement in counterparts, each of which is deemed an
original and all of which together constitute but one and the same
instrument. The delivery of an executed counterpart of this Agreement
by facsimile or pdf shall be deemed to be valid delivery thereof. It
shall be sufficient in making proof of this Agreement to produce or account for
a facsimile or pdf copy of an executed counterpart of this
Agreement.
8.10 Timely
Performance. Time is of the essence as to the performance of
the obligations required of the respective Parties.
8.11 No Construction Against
Drafter. In construing this Agreement, no consideration may be
given or presumption made on the basis of which Party drafted this Agreement or
drafted any particular provision of this Agreement or which Party supplied the
form of contract.
8.12 Waiver of Jury
Trial. Each Party hereby irrevocably and unconditionally
waives trial by jury in any legal action or proceeding relating to this
Agreement.
8.13 Severability. If
a court of competent jurisdiction holds that any provision in this Agreement is
invalid, the invalid provision will in no way affect any other provision in this
Agreement.
8.14 Announcements. No
Party or any of its or their respective affiliates may issue any publicity with
respect to this Agreement without the prior written consent of the other
Parties, except as required by the federal securities laws.
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8.15 Headings. The
titles and headings of the various paragraphs in this Agreement are intended
solely for means of reference and are not intended for any purpose whatsoever to
modify, explain or place any construction or other meaning on any of the
provisions of this Agreement.
8.16 Agreement for the Parties’
Benefit Only. This Agreement is not intended to confer upon
any third person any rights or remedies under this Agreement, and no person,
other than the Parties is entitled to rely on any representation, warranty,
covenant or agreement contained in this Agreement.
[The
signatures are on the next page.]
12
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WHITESTONE
REIT
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By
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Xxxxx X. Xxxxxxxxxx
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Chairman and CEO
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WHITESTONE REIT
OPERATING
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PARTNERSHIP,
L.P.
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By
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Xxxxx X. Xxxxxxxxxx
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Chairman and CEO
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XXXXX X.
XXXXXXXXXX
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In his individual
capacity
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XXXX X.
XXX
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In his individual capacity and as
Chief Operating
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Officer of Whitestone
REIT
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XXXXX X.
XXXXXXX
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In his individual
capacity
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E-1
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XXXXXXX MANAGEMENT
LP
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By
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Xxxxx X. Xxxxxxx
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Chairman and CEO
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XXXXXXX INCOME REIT,
INC.
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By
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Xxxxx X. Xxxxxxx
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Chairman and CEO
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XXXXXXX INCOME REIT
OPERATING
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PARTNERSHIP,
L.P.
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By
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Xxxxx X. Xxxxxxx
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Chairman and CEO
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E-2
