EXHIBIT 10.2
RESIGNATION AND RELEASE AGREEMENT
This RESIGNATION AND RELEASE AGREEMENT (the "Agreement"), dated as
of April 21, 1999, by and between New Plan Excel Realty Trust, Inc., a Maryland
corporation (the "Company") and Xxxx X. Xxxxx (the "Executive").
WITNESSETH THAT:
WHEREAS, the Executive has been employed as President of the Company
pursuant to the Employment Agreement between the Executive and the Company dated
as of May 14, 1998 (as amended, the "Employment Agreement"); and
WHEREAS, the Executive and the Company have agreed that the
Executive shall resign from his employment with the Company and each of its
subsidiaries and affiliates, and from the Boards of the Directors of the Company
and each of its subsidiaries and affiliates, on the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, the Company and the Executive, in consideration of
the covenants herein set forth, and for other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, hereby agree as
follows:
1. RESIGNATION OF EMPLOYMENT AND DIRECTORSHIPS
The Executive hereby resigns, effective as of the date hereof (the
"Date of Resignation"), from his employment with the Company, from his positions
as President of the Company and a member of the Board of Directors of the
Company and a member of the Investment Committee thereof, as an officer and
member of the Board of Directors of ERT Development
Corporation, and as an officer and member of the Board of Trustees of New Plan
Realty Trust and a member of the Investment Committee thereof, and from all
other positions the Executive may currently hold as an officer or member of the
board of directors or trustees (or any committee thereof) of the Company or any
of the Company's subsidiaries or affiliates, including without limitation the
entities listed on Schedule I hereto (the Company and all of its subsidiaries
and affiliates being hereinafter referred collectively as the "NXL Entities").
The Executive shall promptly sign and deliver to the Company such other
documents as the Company may reasonably determine to be necessary to effect or
reflect such resignations.
2. SEVERANCE PAYMENTS, BENEFITS AND OBLIGATIONS
(a) On or about the Date of Resignation, the Company shall pay to
the Executive his base salary through the Date of Resignation to the extent it
has not previously been paid. In lieu of and in satisfaction of any severance or
other payments due under any severance or other benefit plans maintained by any
of the NXL Entities, or any individual agreement previously entered into with
the Executive by any of the NXL Entities, including without limitation the
Employment Agreement, the Company shall provide the Executive with the payments
and benefits set forth in Sections 2(b) through (f) below. The Executive will
not be entitled to any additional compensation or benefits from the Company or
any other NXL Entity, except as specifically provided in this Agreement.
(b) On the Effective Date (as defined in Section 2(g) below), the
Company shall pay the Executive a lump sum severance payment in the amount set
forth on Schedule 2, plus the amount of any Company matching contributions that
would have been allocated to the Executive's account in the Company's 401(k)
plan for pay periods ending on or before the Date
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of Resignation, but for the fact that he has resigned. In addition, in
accordance with and subject to the Company's usual practices with respect to the
reimbursement of ordinary business expenses, the Company shall reimburse the
Executive for ordinary business expenses incurred prior to the date of this
Agreement in an amount not to exceed $5,000.
(c) Promptly following the Date of Resignation, the Company shall
pay the Executive a lump sum payment in cash equal to eight times the current
quarterly value of the benefits that he and his eligible spouse and dependents
have received during the most recent quarterly period under the Company's
medical, hospitalization, dental, and life insurance plans, practices and
programs. Such payment shall be due and payable regardless of whether or not the
Executive should become eligible to receive or should receive benefits under the
plans and programs of any subsequent employer, and shall not be reduced or
offset by any such benefits. The value of the foregoing benefits shall be
computed based on the cost that is currently charged by the Company for
continued health coverage as required under Section 4980B of Internal Revenue
Code of 1986, as amended, plus the Company's current cost of premiums for such
life insurance coverage.
(d) On the Effective Date, the options to acquire shares of Company
stock listed in Schedule 2 to this Agreement with an exercise price less than
$21 per share (whether or not vested) shall be canceled in exchange for the lump
sum payment for such options shown on Schedule 2, which represents a purchase
price equal to the excess, if any, of $21 per share over the per-share exercise
price of each such option. The other options listed on Schedule 2, with an
exercise price equal to or in excess of $21 per share, shall be treated as
follows: (x) those options granted under the Excel Realty Trust, Inc. 1994
Directors Stock Option Plan shall terminate and be forfeited effective on the
Date of Resignation, (y) those options granted under any other plan
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of the Company or any of its predecessors and which are vested as of the date
hereof, or would become vested in accordance with the terms of the Employment
Agreement if the Executive's employment were to have been terminated by the
Company without Cause or by the Executive for Good Reason (as such terms are
defined in the Employment Agreement) on the Date of Resignation shall fully vest
as of the Date of Resignation, and (z) 62% of those options granted under any
other plan of the Company or any of its predecessors, but which are not vested
as of the date hereof and would not become vested in accordance with the terms
of the Employment Agreement if the Executive's employment were to have been
terminated by the Company without Cause or by the Executive for Good Reason (as
such terms are defined in the Employment Agreement) on the Date of Resignation
shall fully vest as of the Date of Resignation, and the remaining 38% of those
options shall terminate and be forfeited effective on the Date of Resignation.
The options described in the preceding sentence which are not forfeited as of
the Date of Resignation shall be exercisable for a period of two years from the
Date of Resignation. If at any time during such two-year period the Executive
desires to exercise some or all of such options, the Executive shall notify the
Company and the Company shall at its option either (x) upon delivery by the
Executive of the exercise price under such options and surrender of such
options, deliver to the Executive the number of shares of Company stock subject
to such options, or (y) upon surrender of such options, pay over to the
Executive a lump sum in cash equal to the excess of the then fair market value
of the underlying shares over the exercise price for such options.
(e) On the 60th day following the Effective Date, or at such
earlier time as the Company may request upon not less than 3-day's notice to the
Executive, regardless of any breach of this Agreement by the Executive, the
Executive shall surrender or cause to be surrendered to the Company the shares
of Company common stock listed in Schedule 2 to this Agree-
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ment in exchange for a lump sum cash payment, payable on the date of such
surrender, as shown on said Schedule 2 (representing a purchase price of $21 per
share), plus, if the payment contemplated by this paragraph is not made on or
before the 20th day following the Date of Resignation, an amount equal to
interest on the amount so payable from (x) the later of (i) the date of the most
recent dividend payment on such shares of Company common stock paid or payable
to the Executive and (ii) the Date of Resignation through (y) the payment date
at a rate equal to the Company's dividend rate on its shares of common stock.
(f) As soon as practicable after the Effective Date, the Company
shall cause the title to the Company-owned items of furniture and equipment
which are currently in the Executive's office on the Company's premises, and the
title to the Company-owned 1997 Jaguar and 1993 Infiniti automobiles that are
currently being used by the Executive, together with a sum in cash equal to the
amount of any indebtedness secured by such automobiles, not to exceed $35,000,
to be conveyed to the Executive, and the Executive shall assume all such
indebtedness secured by such automobiles, and shall indemnify, hold harmless and
defend the Company from and against any and all liabilities, obligations, claims
or expenses of whatever kind resulting from or relating to the automobiles and
such debt. In addition, the Executive shall not be required to reimburse the
Company for any prepayments under the automobile insurance policies covering the
foregoing automobiles.
(g) The "Effective Date" shall be the later of the Date of
Resignation and the date the Executive provides the Company with written notice
(i) stating whether a reduction pursuant to this Section 2(g) shall be made
because the Executive's tax advisor has determined the net after-tax value to
the Executive of the payments and benefits provided pursuant to Sections 2(b)
through (f) above, after taking into account the excise tax imposed by Section
4999 of the
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Code, would be greater if such payments and benefits were reduced, and (ii) if
such a reduction is to be made, specifying which portions of such payments and
benefits shall not be made (the "Foregone Payments"). Notwithstanding any other
provision of this Agreement, any Foregone Payments set forth in such notice
shall not be provided, and the Executive shall be deemed to have waived all of
his rights to receive the Foregone Payments.
(h) Sections 10(a), (b), (d) and (e) and Section 11 of the
Employment Agreement shall survive the execution of this Agreement and remain in
effect after the date hereof in accordance with their terms. Except as specified
in the preceding sentence, this Agreement shall supersede the Employment
Agreement and any other agreement, arrangement or understanding between the
Company and the Executive, each of which shall be terminated and of no further
force or effect from and after the Date of Resignation, without any additional
benefits or payments being paid or made thereunder. Subject to the restrictions
and limitations hereof and of the Master Separation Agreement and the provisions
thereof by which the Executive has hereby agreed to be bound, the Company waives
the continuing application of Section 10(c) of the Employment Agreement to the
Executive.
3. DISPARAGING COMMENTS
From and after the date of this Agreement, except as may be required
by a court or governmental body, each of the Executive and the Company shall,
and the Company shall cause each of its subsidiaries and affiliates, and use its
reasonable efforts to cause its directors, officers and employees, to, refrain
from taking actions or making statements, written or oral, which disparage or
defame the goodwill or reputation of, the NXL Entities and their trustees,
officers, security holders, partners, agents and former and current employees
and directors, or the Executive,
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respectively, or which are intended to, or may be reasonably expected to,
adversely affect the morale of the employees of any of the NXL Entities and
their trustees, officers, security holders, partners, agents and former and
current employees and directors, or the Executive, respectively. The Executive
further agrees not to make any negative statements, written or oral, to third
parties relating to his employment or any aspect of the business of the NXL
Entities and not to make any statements, written or oral, to third parties about
the circumstances of his resignation, except as may be required by a court or
governmental body, or as may merely repeat any of the matters contained in the
press release of the Company issued on or about the date hereof.
4. CONFIDENTIALITY OF THIS AGREEMENT
Except as required by law or regulation, none of the parties
hereto will disclose the terms of this Agreement, provided that the Executive
may disclose such terms to his financial and legal advisors and his spouse and
the Company may disclose such terms to selected employees, advisors and
affiliates on a "need to know" basis, each of whom shall be instructed by the
Executive and the Company, as the case may be, to maintain the terms of this
Agreement in strict confidence in accordance with the terms hereof.
5. ADDITIONAL RESTRICTIVE COVENANTS
The Executive shall abide by the provisions set forth in Sections
1.1, 2.1 and 5.2 of that certain Master Separation Agreement, dated as of the
date hereof, by and among the Company, ERT Development Corporation ("EDV"), and
Excel Legacy Corporation ("Legacy") on the same terms as are applicable to
affiliates of Legacy.
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6. WAIVER OF OTHER PAYMENTS AND BENEFITS
The compensation and benefits arrangements set forth in this
Agreement are in lieu of any rights or claims that the Executive may have with
respect to severance or other benefits, or any other form of remuneration from
the NXL Entities, other than benefits under any tax-qualified employee pension
benefit plans subject to the Employee Retirement Income Security Act of 1974, as
amended (including the Company's 401(k) plan), and without limiting the
generality of the foregoing, the Executive hereby expressly waives any right or
claim that he may have or could assert to payment for salary, bonuses, medical,
dental or hospitalization benefits, payments under supplemental retirement plans
and incentive plans, life insurance benefits and attorneys' fees, except as
otherwise provided in this Agreement or as mandated under applicable law.
7. INFORMATION REQUESTS/COOPERATION
The Executive agrees to make himself, and agrees to use reasonable
efforts to cause representatives of any joint venture partners with which the
Company has a business relationship prior to the date hereof to be, reasonably
available to the Company for a two-year period from the date hereof to respond
to requests by the Company for information concerning matters involving facts or
events relating to the Company or any other NXL Entity that may be within the
Executive's knowledge, and to assist the Company and the NXL Entities as
reasonably requested with respect to pending and future litigations,
arbitrations or other dispute resolutions; provided, that, to the extent the
Executive can reasonably comply with the foregoing requirements, he shall be
entitled to do so via telephone; and provided, further, that unless the
Executive agrees, his compliance with the foregoing requirements shall not
require him to travel to New York City more than once per calendar month. The
Company will reimburse the Executive for
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his reasonable travel expenses and out-of-pocket costs incurred as a result of
his assistance under this Section 7.
8. NO ADMISSION OF WRONGDOING
Nothing contained in this Agreement shall be construed in any way as
an admission by any of the parties of any act, practice or policy of
discrimination or breach of contract either in violation of applicable law or
otherwise.
9. WAIVER AND RELEASE
(a) In consideration of the payments and benefits set forth in this
Agreement, except for the payment and benefits expressly provided herein, the
Executive, for himself, his heirs, administrators, representatives, executors,
successors and assigns (collectively "Releasors") does hereby irrevocably and
unconditionally release, acquit and forever discharge the NXL Entities and their
trustees, officers, security holders, partners, agents, and former and current
employees and directors, and their successors, executors and assigns, including
without limitation all persons acting by, through, under or in concert with any
of them (collectively, "Releasees"), from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
remedies, actions, causes of action, suits, rights, demands, costs, losses,
debts and expenses (including attorneys' fees and costs) (collectively,
"Claims") of any nature whatsoever, known or unknown, whether in law or equity
and whether arising under federal, state or local law and in particular
including any claim for discrimination based upon race, color, ethnicity, sex,
age (including the Age Discrimination in Employment Act of 1967), national
origin, religion, disability, or any other unlawful criterion or circumstance,
which the Releasors had, now have, or may have in the future as a result of any
facts or circumstances cur-
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rently existing or which may have existed in the past (including, without
limitation, any and all matters arising from the Executive's employment by or
service with the Company), but excluding any Claims arising from any action to
enforce the Company's obligations under this Agreement, against each or any of
the Releasees (collectively, the "Released Claims"). The Executive acknowledges
and agrees that if he or any other Releasor should hereafter make any claim or
demand or commence or threaten to commence any action, claim or proceeding
against the Releasees with respect to any cause, matter or thing which is the
subject of this Section 9(a), this Agreement may be raised as a complete bar to
any such action, claim or proceeding, and the applicable Releasee may recover
from the Executive all costs incurred in connection with such action, claim or
proceeding, including attorneys' fees.
(b) With respect to any and all Released Claims, the Executive
stipulates and agrees that, upon execution of this Agreement, Releasors shall be
deemed to have expressly waived and relinquished, to the fullest extent
permitted by law, the provisions, rights, and benefits of Section 1542 of the
California Civil Code, which provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
The Releasors, upon execution of this Agreement, shall be deemed to have waived
any and all provisions, rights and benefits conferred by any law of any state or
territory of the United States, or principle of common law, which is similar,
comparable or equivalent to Section 1542 of the California Civil Code. The
Releasors may hereafter discover facts in addition to or different from those
which he, she or it now knows or believes to be true with respect to the subject
matter of the Released Claims, but each Releasor, upon the execution of this
Agreement by the Executive, shall
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be deemed to have fully, finally, and forever settled and released any and all
Released Claims, known or unknown, suspected or unsuspected, contingent or
noncontingent, whether or not concealed or hidden, which now exist, or
heretofore have existed upon any theory of law or equity now existing or coming
into existence in the future, including, but not limited to, conduct which is
negligent, intentional, with or without malice, or a breach of any duty, law or
rule, without regard to the subsequent discovery or existence of such different
or additional facts.
(c) The Executive affirms that he has been represented by counsel
in connection with the negotiation and execution of this Agreement and the
waiver and release in Section 9(a).
(d) In consideration of the matters set forth in this Agreement,
except for the payment and benefits expressly provided herein, the Company, for
itself and its successors and assigns (collectively "NXL Releasors") does hereby
irrevocably and unconditionally release, acquit and forever discharge the
Executive and his successors, executors and assigns, including without
limitation all persons acting by, through, under or in concert with any of them
(collectively, "NXL Releasees"), from any and all Claims of any nature
whatsoever, known or unknown, whether in law or equity and whether arising under
federal, state or local law which the NXL Releasors had, now have, or may have
in the future as a result of any facts or circumstances currently existing or
which may have existed in the past (including, without limitation, any and all
matters arising from the Executive's employment by or service with the Company),
against each or any of the NXL Releasees (collectively, the "NXL Released
Claims"); provided that the NXL Released Claims shall not include either (x) any
Claims arising from any action to enforce the Executive's obligations under this
Agreement or (y) any Claims as to which indemni-
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fication of a director or officer of the Company would be unavailable under
Maryland law (it being understood and agreed for this purpose that the provision
in such law barring indemnification as to any acts or omissions involving "an
improper personal benefit in money, property or services" shall not extend to
any benefit that might be deemed to have been afforded to the Executive merely
as a result of his status as a director, officer or shareholder of Legacy or
EDV, and this Agreement shall not in any event constitute a release or waiver of
any Claim against Legacy). The Company acknowledges and agrees that if it or any
other NXL Releasor should hereafter make any claim or demand or commence or
threaten to commence any action, claim or proceeding against the NXL Releasees
with respect to any cause, matter or thing which is the subject of this Section
9(d), this Agreement may be raised as a complete bar to any such action, claim
or proceeding, and the applicable NXL Releasee may recover from the Company all
costs incurred in connection with such action, claim or proceeding, including
attorneys' fees.
(e) With respect to any and all NXL Released Claims, the Company
stipulates and agrees that, upon execution of this Agreement, the NXL Releasors
shall be deemed to have expressly waived and relinquished, to the fullest extent
permitted by law, the provisions, rights, and benefits of Section 1542 of the
California Civil Code, which provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
The NXL Releasors, upon execution of this Agreement, shall be deemed to have
waived any and all provisions, rights and benefits conferred by any law of any
state or territory of the United States, or principle of common law, which is
similar, comparable or equivalent to ss. 1542 of the California Civil Code. The
NXL Releasors may hereafter discover facts in addition to or differ-
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ent from those which he, she or it now knows or believes to be true with respect
to the subject matter of the NXL Released Claims, but each NXL Releasor, upon
the execution of this Agreement by the Company, shall be deemed to have fully,
finally, and forever settled and released any and all NXL Released Claims, known
or unknown, suspected or unsuspected, contingent or noncontingent, whether or
not concealed or hidden, which now exist, or heretofore have existed upon any
theory of law or equity now existing or coming into existence in the future,
including, but not limited to, conduct which is negligent, intentional, with or
without malice, or a breach of any duty, law or rule, without regard to the
subsequent discovery or existence of such different or additional facts.
(f) The Company affirms that it has been represented by counsel in
connection with the negotiation and execution of this Agreement and the waiver
and release in Section 9(d).
10. PUBLIC STATEMENT
The parties agree that the Executive's resignation of his employment
will be announced by the statement attached hereto as Exhibit A, and no
subsequent comments shall be made to the media or through other public
statements by any party hereto regarding the Executive's resignation of his
employment that are inconsistent with such statement, except as may be required
by applicable law or regulation.
11. NO RELIANCE
The Executive represents and acknowledges that, in executing this
Agreement, he has not relied upon any representation or statement made by the
Company not set forth herein.
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12. GOVERNING LAW
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the principles of
conflicts of law thereof, to the extent not superseded by applicable federal
law. It is the intention of the parties that any dispute or litigation arising
out of the negotiation, existence, performance, interpretation or enforcement of
this Agreement shall be determined only by the Courts of the State of California
(including the federal courts located in the State of California), and no other
court or tribunal. THE PARTIES HERETO HEREBY AGREE THAT ANY DISPUTE CONCERNING
FORMATION, MEANING, APPLICABILITY, ENFORCEMENT OR INTERPRETATION OF THIS
AGREEMENT SHALL BE SUBMITTED TO THE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA (INCLUDING FEDERAL COURTS IN THE STATE OF CALIFORNIA), AND NO OTHER
STATE SHALL HAVE JURISDICTION OVER SUCH MATTERS, AND FURTHER AGREE TO WAIVE ALL
RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY SUCH MATTERS. WITH RESPECT TO ANY
SUCH DISPUTE, ALL PARTIES HERETO AGREE TO WAIVE ANY DEFENSES OR OBJECTIONS THEY
MAY HAVE TO THE PERSONAL JURISDICTION OVER THEM OF THE AFORESAID CALIFORNIA
COURTS, AND THE EXECUTIVE AGREES THAT SERVICE OF PROCESS UPON HIM BY MAIL AT THE
ADDRESS CONTAINED HEREIN SHALL BE GOOD AND SUFFICIENT PERSONAL SERVICE, AND THAT
SUCH SERVICE SHALL BE DEEMED TO HAVE BEEN MADE UPON HIM AS IF HE WERE PERSONALLY
SERVED AT A LOCATION WITHIN THE STATE OF CALIFORNIA.
(b) If either party brings an action to enforce its rights under
this Agreement, the prevailing party in the action, at such time as the action
is binding, final and no longer ap-
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pealable, shall be entitled to recover its costs and expenses, including,
without limitation, reasonable attorneys' fees, incurred in connection with such
action, including any appeal of such action.
13. WARRANTY
The parties hereto represent and warrant that there exists no
impediment or restraint, contractual or otherwise on their power, right or
ability to enter into this Agreement and to perform their duties and obligations
hereunder or as contemplated hereby.
14. TAXES
All payments made and benefits provided to the Executive under this
Agreement shall be reduced by, or the Executive will otherwise pay, all required
withholding, employment and Medicare taxes applicable to the Executive.
15. NO COERCION
The parties hereto represent and acknowledge that they have decided
to enter into this Agreement voluntarily, knowingly and without coercion of any
kind.
16. ENFORCEABILITY; SEVERABILITY
The parties hereto affirmatively acknowledge that this Agreement,
and each of its provisions, is enforceable, and expressly agree not to challenge
nor raise any defense against the enforceability of this Agreement or any of its
provisions in the future (including, for purposes of this Section 16, Section 10
of the Employment Agreement). In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions or portions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
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17. NOTICES
All notices, requests, demands and other communication which are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when received if personally delivered; when
transmitted by telecopy, electronic or digital transmission method upon receipt
of telephonic or electronic confirmation; that day after it is sent, if sent for
next day delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express) and upon receipt, if sent by certified or registered
mail, return receipt requested. In each case notice shall be sent to:
If to the Executive, addressed to:
Xxxx X. Xxxxx
x/x Xxxxx Xxxxxx Xxxxxxxxxxx
00000 Xxx Xxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
If to the Company, addressed to:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
or to such other place and with such other copies as any party may designate as
to itself or himself by written notice to the others.
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18. AMENDMENTS; WAIVERS
This Agreement may not be amended, modified or terminated, except by
a written instrument signed by the parties hereto. Any provision of this
Agreement may be waived by a written instrument signed by the party to be
charged with such waiver.
19. SUCCESSORS
This Agreement shall be binding on the Executive, the Company and
their respective heirs, successors and assigns, including without limitation any
corporation or other entity into which the Company may be merged, reorganized or
liquidated, or by which the Company may be acquired. The obligations of the
Company may be assigned without limitation, provided that the Company shall
remain liable for the payment obligations under Section 2; but, as the
obligations to be performed by the Executive hereunder are unique based upon his
skills and qualifications, the Executive's obligations under this Agreement may
not be assigned.
20. ENTIRE AGREEMENT
Except as specified herein, this Agreement contains the entire
agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
21. COUNTERPARTS
This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, but all of which together will
constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement, as of
the date and year first written above.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
/s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
