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Exhibit 10(b)
EMPLOYMENT AGREEMENT
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THIS AGREEMENT made and entered into as of the 31st day of
January, 1998, by and between REALTY ReFUND TRUST, an unincorporated association
in the form of a business trust organized under the laws of the State of Ohio
having its principal business address at 0000 Xxxxxxxxxx Xxxxxxxx, 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000 (the "Trust"), and XXXXX X. XXXXX, c/o InnSuites
Hotels LLC, 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000
("Employee").
RECITALS:
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The Trust has been engaged since 1971 in the business of
refinancing existing income-producing commercial, industrial and multi-unit
residential real property by supplementing or replacing existing financing and
is currently redirecting its business to developing and owning lodging
properties. The Trust is party to an Advisory Agreement, dated as of June 15,
1971, as the same has been extended and amended (the "Advisory Agreement"), with
Mid-America ReaFund Advisors, Inc. (the "Adviser"), assignee of ReaFund
Advisors, Inc. Under the terms of the Advisory Agreement, the Adviser has agreed
to furnish advice and recommendations in respect of all aspects of the business
and affairs of the Trust and to furnish day-to-day administration for the Trust.
The Employee is Chairman, President and Director of the
Adviser. He has, effective on the date hereof, also been elected Chairman and
President of the Trust. The Trustees determined that it was desirable to provide
for continuity and to assure the Trust that the services presently being
furnished to it by the Adviser would be furnished by the Employee without any
cost or expense to the Trust in excess of that called for under the terms of the
Advisory Agreement in the event of any termination of the Advisory Agreement.
AGREEMENTS:
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NOW, THEREFORE, in consideration of the foregoing, and their
mutual covenants and agreements herein contained, the parties hereto do hereby
agree as follows:
1. Employment
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The Trust hereby employs Employee as the Chairman,
Chief Executive Officer and President of the Trust, and Employee hereby accepts
such employment upon the terms and conditions hereinafter set forth.
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2. Term
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Subject to the provisions for earlier termination as
hereinafter provided, this Agreement shall commence upon the execution hereof
and shall continue through and including the 31st day of December, 2007.
3. Duties
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(A) Employee shall devote such business time,
attention and energies to the business of the Trust as he shall deem necessary
to perform for the Trust all of the duties and services required of him
hereunder and shall serve both diligently and to the best of his ability.
Employee further shall perform such other duties as he shall deem to be normally
incident to the positions of Chairman, Chief Executive Officer and President of
the Trust. In addition to his duties as Chairman, Chief Executive Officer and
President, Employee shall perform or provide for the performance of all of the
duties and services set forth in Section 1 of the Advisory Agreement; provided,
however, that so long as the Advisory Agreement shall remain in full force and
effect, the Adviser shall perform the Advisory duties thereunder.
(B) If the Trustees of the Trust request the Employee
to engage in other activities which complement the Trust's investments, Employee
may receive compensation or commissions therefor from the Trust or such other
persons.
4. Compensation
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During the term of this Agreement, so long as the
Adviser is performing its services and duties under the terms of the Advisory
Agreement and being paid compensation in respect thereof, the Trust shall not
pay to the Employee any monetary consideration. In the event that at any time
during the term hereof the Adviser shall cease to serve the Trust as its Adviser
under the terms of the Advisory Agreement and to receive compensation therefor
(regardless of the reason for such cessation), then and thereafter during the
remaining term of this Agreement the Employee shall receive as compensation in
full for all of his services hereunder an amount equal to one hundred percent
(100%) of the Regular Compensation and the Incentive Compensation that would
have been paid to the Adviser in respect of such period pursuant to Sections 9,
10 and 11(a) of the Advisory Agreement; and bear all expenses and pay all costs
and charges of the kind or nature that would have been paid or borne by the
Adviser prior to the termination of the Advisory Agreement.
In the event of cessation of the Advisory Agreement, the
Employee's compensation shall be subject to adjustment by the Trust in
accordance with, and upon completion of, the annual audit of the Trust's
financial statements, and subject to the same limitations on the compensation of
Adviser as contained in Section 15 of the Advisory Agreement.
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Employee shall, in addition to the foregoing, participate in
any employee benefit programs established by the Trust, including, but not
limited to, health and accident insurance, group life insurance, stock option
plans, pension plans and profit sharing plans.
5. Termination
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At the option of the Trust, this Agreement may be
terminated immediately upon written notice of termination from the Trust to
Employee if any of the following events shall occur:
(i) If Employee materially shall violate any provision of this
Agreement and, after written notice of such violation, shall
not cure such default within thirty (30) days (provided,
however, that if Employee shall not be reasonably able to cure
such default within such thirty (30) day period, if Employee
shall not have commenced promptly to cure such default and
diligently pursued the same to completion); or
(ii) If Employee shall die; or
(iii) If Employee shall become disabled for a period of twelve (12)
consecutive months. As used herein, "disabled" shall mean such
physical or mental impairment of Employee as shall result in
his being unable to perform his full duties hereunder; or
(iv) If Employee shall so consent.
6. Covenant Against Competition
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(A) During the period commencing with the date hereof
and continuing until the latter of the expiration of the term of this Agreement
or until December 31, 2008 if this Agreement shall be terminated for the reasons
specified in Section 5(A)(i) hereof, Employee agrees that, except as an employee
of the Adviser while the Adviser is serving as adviser to the Trust pursuant to
the terms of the Advisory Agreement, Employee shall not, without the prior
approval of the Trustees, directly or indirectly:
(i) Act as the investment advisor for any other person or entity
("person") or enter into an investment advisory contract
therewith or contract to perform other services with any other
real estate investment trust or other person the investment
policy of which is substantially similar to that of the Trust
at that time. However, Employee may act as an investment
advisor and perform other services for persons other than the
Trust in situations in which such persons are participating in
investments with the Trust or which have investment policies
substantially dissimilar to that of the Trust.
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(ii) Either as an individual for Employee's own account or as an
investor, or other participant in, or as an employee, agent or
representative of, any other business enterprise:
(a) solicit, divert, entice, take away or interfere with,
or attempt to solicit, divert, entice or take away or
interfere with, any of the Trust's business,
patronage, borrowers or investment opportunities
except as permitted pursuant to Subparagraph (i)
hereof; or
(b) engage or participate in or finance, aid or be
connected with, any commercial enterprise which
competes with any of the business activities which
the Trust is conducting at such time.
The foregoing, however, shall not be deemed to prohibit the investment without a
role in management by Employee in the equity or debt securities of any company
otherwise within the ambit of this covenant and registered with the Securities
and Exchange Commission pursuant to Section 12 of the Securities and Exchange
Act of 1934.
(B) If it shall be judicially determined that
Employee has violated any of the covenants or agreements to be performed and/or
observed by Employee pursuant to the provisions of this Section 6, then the
period applicable to such of said covenants or agreements as shall have been so
determined to have been violated by Employee shall automatically be extended by
that period of time which shall be co-extensive with the period during which
said violations have occurred.
(C) Subject only to the rules and procedures set
forth in the Second Amended and Restated Declaration of Trust, Employee can
continue to engage in all facets of the real estate business and business
affairs generally. Furthermore, subject to the foregoing, Employee, or any
entity in which he is an officer, director, shareholder, employee, partner
(general or limited) or otherwise interested, may borrow from the Trust or
purchase properties on which the Trust is a lender.
Employee acknowledges that the covenants contained in
this Section 6 are of the essence of this Agreement; said covenants shall be
construed as independent of any other provisions of this Agreement; and the
existence of any claim or cause of action by Employee against the Trust, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Trust of these covenants.
Recognizing the irreparable nature of the injury that
could result from Employee's violation of any of the covenants and agreements to
be performed and/or observed by Employee pursuant to the provisions of this
Section 6, and that damages would be inadequate compensation, it is agreed that
any violation by Employee of the provisions of this Section 6 shall be the
proper subject for immediate injunctive and other equitable relief to the
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Trust. Employee further agrees to communicate the contents of this Section 6 to
any prospective employer or associate of Employee which has an investment policy
which is substantially similar to that of the Trust.
7. Governing Law
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The laws of the State of Arizona shall govern the
validity, performance and enforcement of this Agreement. If any of the terms or
provisions of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the reminder of
this Agreement or the application of such term or provision to persons or
circumstances other than those to which it is held invalid or unenforceable
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and be enforced to the fullest extent permitted by law. If the
invalidity or unenforceablitiy of any covenant or restriction herein is due to
the unreasonableness of the time or the fact that no geographical area is
specified for the coverage of any said covenant or restriction, the said
covenant or restriction shall nevertheless be effective for such period of time
and for such geographical area as may be determined by a court of competent
jurisdiction.
8. Assignment
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This Agreement shall not be assignable by the Trust
without the written consent of Employee.
9. The Entire Agreement
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The foregoing is the entire agreement of the parties
hereto in respect of the subject matter hereof, and no waiver, amendment or
modification hereof shall be valid unless in writing and signed by both parties.
10. Counterparts
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This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
11. Notices
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All notices hereunder shall be in writing and
delivered or mailed by registered or certified mail, return receipt requested,
to the parties at the addresses listed below or to such other address as the
Trust or Employee may hereafter designate in writing to the other. A copy of any
such notice shall also be telecopied at the time of its mailing to the number
listed below for the relevant party.
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12. The Trust
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The name Realty ReFund Trust is the designation of
the Trustees under a Declaration of Trust dated April 28, 1971, as amended, and
all persons dealing with Realty ReFund Trust must look solely to the Trust
property for the enforcement of any claims against Realty ReFund Trust as
neither the Trustees, officers, agents nor security holders assume any personal
liabilities for covenants or obligations entered into on behalf of Realty ReFund
Trust and their respective properties shall not be subject to any claims of any
other person in respect of such liability.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written, the Trust pursuant to the
authorization of its Trustees.
REALTY ReFUND TRUST
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
0000 Xxxxxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
THE TRUST
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
0000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
EMPLOYEE
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