EXHIBIT 10.3
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 Xxxxxxx X. Xxxx (the "Executive").
WITNESSETH THAT:
WHEREAS, the Executive has been employed by the Company
pursuant to the Employment Agreement between the Executive and the Company dated
as of September 25, 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 all of
his positions and offices with the Company and from all other positions and
offices 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 (e) 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(f) 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 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 ex-
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penses, the Company shall reimburse the Executive for ordinary business expenses
incurred prior to the date of this Agreement in an amount not to exceed $2,500.
(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.
On the Effective Date, the options to acquire shares of
Company common 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; and (y) those options granted under any other plan
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 Execu-
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tive'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. The options described in the preceding sentence 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 common 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.
(d) 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 Agreement 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 (but only in such case), 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.
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(e) 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(f) 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 (e) above, after taking into account the excise tax imposed by Section
4999 of the 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.
(f) 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.
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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, 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.
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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.
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 re-
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quested 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 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
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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 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), 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 ss. 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.
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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 ss. 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 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
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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 indemnification 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 ss.
1542 of the California Civil Code, which provides:
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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 different 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
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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.
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
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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 appealable, 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.
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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.
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:
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If to the Executive, addressed to the Executive:
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.
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 Com-
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pany 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/ Xxxxxxx X. Xxxx
-----------------------------------------
Xxxxxxx X. Xxxx
