EXHIBIT 10.1
CONTINGENT TERMINATION OF RETENTION AGREEMENT
THIS CONTINGENT TERMINATION OF RETENTION AGREEMENT (this "AGREEMENT") is
entered into as of November 26, 2001, by and between XXXXXXX PACIFIC PROPERTIES,
INC., a Maryland corporation (the "CORPORATION") and XXXXX X. XXXXXX, an
individual (the "EXECUTIVE").
R E C I T A L S:
A. On April 9, 2001, the Corporation and the Executive entered into that
certain Executive Retention Agreement (the "RETENTION AGREEMENT"), whereby the
Corporation agreed to provide certain benefits to the Executive in connection
with the Executive's employment by the Corporation as its Chief Executive
Officer and President.
B. The Corporation and the Executive have agreed to terminate the Retention
Agreement according to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Corporation and the Executive agree as follows:
1. Subject to PARAGRAPHS 2 AND 3 hereof, upon execution by all parties to
that certain Purchase and Sale Agreement and Joint Escrow Instructions, by and
between BPP/Arrowhead, L.P., a Delaware limited partnership, as seller and an
affiliate of the Corporation ("SELLER"), and LAV, LLC, a Delaware limited
liability company, of which the Executive is a principal, as purchaser
("PURCHASER"), whereby Seller agrees to sell to Purchaser and Purchaser agrees
to purchase from Seller the land and improvements commonly known as The Village
at Lake Arrowhead, in the County of San Bernardino, State of California (the
"PROPERTY") (the "PURCHASE AGREEMENT"), (a) the Retention Agreement shall be
terminated in its entirety and have no further force and effect, (b) neither
party thereto shall have any further rights or obligations thereunder
(including, without limitation, the Corporation's obligation to make any
additional Loans, obtain the IRS Advice or make reimbursements pursuant to
Section 2(a) of the Retention Agreement), (c) the Executive shall irrevocably
and unconditionally release and forever discharge the Corporation, its officers,
directors, shareholders, successors and assigns from any and all claims,
demands, actions, controversies and causes of action that the Executive may have
relating to the payments and benefits under the Retention Agreement, and (d)
Section 2 of the Promissory Notes referred to in the Retention Agreement shall
be deemed to be amended as set forth in SECTION 2 of this Agreement.
Notwithstanding the termination of the Retention Agreement, the Severance
Agreement referred to in the Retention Agreement remains terminated in its
entirety and of no further force or effect.
2. Executive acknowledges and agrees that the Loans (as defined in the
Retention Agreement) made by the Corporation pursuant to the Retention Agreement
in the amount of
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$1,200,000.00 remain outstanding and the Promissory Notes delivered in
connection therewith remain valid, binding and enforceable and will be due and
payable in full upon the earlier to occur of (i) the Closing (as defined in the
Purchase Agreement), or (ii) default by Purchaser of its obligations under the
Purchase Agreement and Seller's termination of the Purchase Agreement as a
result of such default.
3. Notwithstanding PARAGRAPH 1, the Retention Agreement and the rights and
obligations of the parties thereunder shall be reinstated in their entirety and
the release set forth in PARAGRAPH 1(c) shall be rescinded, if:
a. Seller defaults in its obligations to convey the Property to
Purchaser pursuant to the Purchase Agreement, and Purchaser terminates the
Purchase Agreement as a result of such default;
b. Seller elects to sell the Property to a purchaser other than
Purchaser in accordance with Section 15(b) of the Purchase Agreement;
c. Failure of a Purchaser's Condition Precedent (as set forth in Section
7(a) of the Purchase Agreement) and Purchaser's election not to consummate the
purchase and sale transaction contemplated in the Purchase Agreement; or
d. Failure of a Seller's Condition Precedent (as set forth in Section
7(b) of the Purchase Agreement) and Seller's election not to consummate the
purchase and sale transaction contemplated in the Purchase Agreement.
If the Retention Agreement is reinstated pursuant to this PARAGRAPH 3, then
SECTION 2 of this Agreement shall automatically terminate and have no further
force or effect and Section 2(a) of the Promissory Notes referred to in the
Retention Agreement shall be reinstated in full.
4. Each individual and entity executing this Agreement represents and
warrants that he, she or it has the capacity set forth on the signature pages
hereof with full power and authority to bind the party on whose behalf he, she
or it is executing this Agreement to the terms hereof.
5. This Agreement is the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, whether oral or written, between the parties with respect to the
matters contained in this Agreement. Any waiver, modification, consent or
acquiescence with respect to any provision of this Agreement shall be set forth
in writing and duly executed by or in behalf of the party to be bound thereby.
No waiver by any party of any breach hereunder shall be deemed a waiver of any
other or subsequent breach.
6. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument. The signature page of any counterpart
may be detached therefrom without impairing the legal effect of the signature(s)
thereon provided such signature page is attached to
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any other counterpart identical thereto except having additional signature pages
executed by other parties to this Agreement attached thereto.
7. Wherever possible, each provision of this Agreement shall be interpreted
in such a manner as to be valid under applicable law, but, if any provision of
this Agreement shall be invalid or prohibited thereunder, such invalidity or
prohibition shall be construed as if such invalid or prohibited provision had
not been inserted herein and shall not affect the remainder of such provision or
the remaining provisions of this Agreement.
8. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
9. If any action is brought by either party against the other party,
relating to or arising out of this Agreement, the prevailing party shall be
entitled to recover from the other party reasonable attorneys' fees, costs and
expenses incurred in connection with the prosecution or defense of such action.
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, photostating, 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 9 shall survive the entry of any judgment, and shall not merge,
or be deemed to have merged, into any judgment.
10. This Agreement shall be binding upon and inure to the benefit of each
of the parties hereto and to their respective transferees, successors, and
assigns. Neither this Agreement nor any of the rights or obligations of the
Corporation or the Executive hereunder shall be transferred or assigned by the
Corporation or the Executive without the prior written consent of the
non-assigning party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
CORPORATION: XXXXXXX PACIFIC PROPERTIES, INC.,
a Maryland corporation
By: /S/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
EXECUTIVE: /S/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
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