EXHIBIT 10(i)
THIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made
and entered into as of May 1, 1997 by and between XXXXXXX X. XXXXXX (the
"Executive) and BANYAN STRATEGIC LAND FUND II (the "Fund").
R E C I T A L S:
A. The parties have previously entered into a Second Amended and Restated
Employment Agreement made as of December 31, 1992 by and between the parties
hereto, as amended by a First Amendment dated as of December 31, 1992 (as
amended, the "Original Agreement")
B. The parties desire to amend and restate the Original Agreement in its
entirety.
C. The Fund desires to continue to employ the Executive and the Executive
desires to accept such continued employment on the terms set forth in this
Agreement.
NOW THEREFORE, in consideration of the promises, mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Fund and the
Executive do hereby agree to amend and restate in its entirety the Original
Agreement.
1. Employment and Duties. On the terms and subject to the conditions set forth
in this Agreement, the Fund agrees to employ the Executive as the chief
executive officer of the Fund to perform such duties as are consistent with such
position as may be assigned, from time to time, by the Fund's Board of Directors
("Board of Directors"). The Executive agrees to accept appointment as President
of the Fund.
2. Performance. The Executive accepts the employment described in Section 1 of
this Agreement and agrees to faithfully and diligently perform the services
described therein.
3. Term. The term of employment under this Agreement shall commence on May 1,
1997 (the "Commencement Date") and shall remain in effect for a period of one
month, ending on June 1, 1997 (the "Employment Period") unless sooner terminated
hereunder. The Employment Period thereafter shall be automatically renewed for
successive one (1) month periods unless this Agreement is terminated by either
the Executive or the Fund by giving written notice of termination on or before
thirty days preceding the effective date of the termination of the Employment
Period.
4. Salary. For the services to be rendered by the Executive hereunder, the Fund
shall pay the Executive an annual base salary of $111,926 subject to the CPI
Adjustment described below ("Salary"). The Salary shall be payable in the manner
and frequency in which the payroll of Banyan Management Corp. is customarily
handled. The Salary shall be subject to annual increases (but no decreases) due
to cost of living ("CPI Adjustment") as follows: the Salary shall be increased
effective January 1 of each year beginning 1998 by multiplying the Salary for
the year just ended by a fraction the numerator of which is the Index (as
defined below) for November of the year just ended and the denominator of which
is the Index for November of the immediately prior year. For purposes of this
Agreement, the term "Index" shall mean the Chicago All Items Consumer Price
Index--All Urban Consumers (1982-84 base) as released by the U.S. Bureau of
Labor Statistics.
5. Bonus. During the Employment Period, the Board of Directors may, in its sole
discretion, pay a bonus to the Executive in consideration of the Executive's
performance of his duties and the Fund's profitability. The Fund shall not be
obligated to pay any bonus unless and until such bonus is declared by its Board
of Directors.
1
6. Other Benefits. Except as otherwise specifically provided herein, during the
Employment Period, the Executive shall be eligible for all non-wage benefits
which either of the Fund or Banyan Management Corp. provide generally for their
other salaried employees, and in all cases shall continue to be entitled to and
shall receive the life insurance and disability benefits currently provided or
made available to the Executive. Upon termination of this Agreement, the Fund
shall, upon request by the Executive, assign and transfer to the Executive any
life insurance, health insurance and disability insurance policies covering the
Executive (to the extent assignable) in which the Fund has an interest provided
that any premiums accruing after the Termination Date shall be the sole
responsibility of Executive.
7. Business Expenses. The Fund shall reimburse the Executive for the reasonable,
ordinary, and necessary business expenses incurred by him in connection with the
performance of his duties hereunder, including, but not limited to, ordinary and
necessary travel expenses and entertainment expenses and cellular phone
expenses. The Executive shall provide the Fund with an accounting of his
expenses, which account shall clearly reflect which expenses are reimbursable by
the Fund. The Executive shall provide the Fund with such other supporting
documentation and other substantiation of reimbursable expenses as will conform
to Internal Revenue Service or other requirements. All such reimbursements shall
be payable by the Fund to the Executive within a reasonable time after receipt
by the Fund of appropriate documentation therefor.
8. Termination.
(a) Termination by the Executive. At any time from and after August
1, 1997, the Executive may terminate his employment by the Fund at any
time by written notice of termination given to the Fund and to First
American Title Insurance Company (the "Escrow Agent") at least thirty (30)
days in advance of the termination date stated in such notice (a
"Termination Date").
(b) Termination by the Fund. The Fund may terminate the Executive's
employment at any time with or without cause by written notice of
termination given to the Executive and to the Escrow Agent at least thirty
(30) days in advance of the termination date stated in such notice (a
"Termination Date").
(c) Termination Upon Death or Disability. The employment of the
Executive shall terminate upon the death of the Executive or at such time
as the Executive is permanently unable to perform fully his duties under
this Agreement by reason of illness, accident or other disability (as
confirmed by competent medical evidence) (each, a "Termination Date").
9. Severance Pay; Escrow.
(a) Termination Fee and Other Payments. In the event that the
Executive's employment is terminated for any reason pursuant to Section 8
of this Agreement, including without limitation the Executive's voluntary
termination effected in compliance with Section 8(a) above, the Executive
shall receive: (i) any Salary earned through the Termination Date; (ii) a
fee in the amount of $400,000 (the "Termination Fee"); and (iii) any
amounts, such as reimbursable business expenses, health insurance
reimbursements or other payments which are payable to the Executive or
have accrued for his benefit through the Termination Date.
(b) Escrow of Termination Fee. Simultaneously with the execution of
this Agreement, the Fund shall place an amount equal to the Termination
Fee into an escrow account pursuant to an Escrow Agreement mutually
agreeable between the Fund and the Executive (the "Escrow Agreement") in
the form attached as Exhibit A hereto.
10. Release.
(a) The Fund for itself, its agents, officers, directors,
shareholders, successors, and assigns, hereby remises, releases and
forever discharges the Executive, his heirs, executors and administrators,
as the case may be (all of whom shall be hereinafter collectively referred
to as the
2
"Fund Releasee") of and from all manner of actions, causes, and causes of
action, suits, debts, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, claims and demands,
whatsoever, in law or in equity, whether mature, contingent, direct,
derivative, personal, assigned, discovered, undiscovered, subrogated or
otherwise, which the Fund ever had, now has or may hereafter have against
the Fund Releasee, for, upon, or by reason of any matter, cause or thing,
arising out of or relating to any act of the Fund Releasee or the Fund
Releasee's failure to act which occurred on or before May 1, 1997;
provided, however, that actions to enforce the terms of this Agreement and
the Fund Releasee's right to any indemnification provided by the Fund
under Section 12 of this Agreement or otherwise are expressly not included
within the terms or meaning of the foregoing release. This release is not
to be construed as an admission of liability on the part of the Fund
Releasee.
(b) The Executive for himself, his agents, officers, directors,
shareholders, successors, and assigns, hereby remises, releases and
forever discharges the Fund, its heirs, and its respective agents,
officers, directors, shareholders, successors, assigns, executors and
administrators, as the case may be (all of whom shall be hereinafter
collectively referred to as the "Executive Releasee") of and from all
manner of actions, causes, and causes of action, suits, debts, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants,
controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands, whatsoever, in law or in
equity, whether mature, contingent, direct, derivative, personal,
assigned, discovered, undiscovered, subrogated or otherwise, which the
Executive ever had, now has or may hereafter have against Executive
Releasee, for, upon, or by reason of any matter, cause or thing, arising
out of or relating to any act of Executive Releasee or Executive
Releasee's failure to act which occurred on or before May 1, 1997;
provided, however, that actions to enforce the terms of this Agreement are
expressly not included within the terms or meaning of the foregoing
release. This release is not to be construed as an admission of liability
on the part of the Executive Releasee.
(c) Disability or Death. In the event that the Executive's
employment is terminated under Section 8(c), the Executive, his heirs,
beneficiaries or personal representatives shall be entitled to receive the
payments described under Section 9(a) and shall also be entitled to any
disability benefits or life insurance proceeds to which Executive
otherwise would have been entitled under this Agreement.
11. Other Activities of the Executive. During the term of this Agreement, the
Executive shall not: (i) engage in any activity which may be adverse to the
Fund's business; (ii) appropriate or usurp Fund business opportunities; or (iii)
engage or invest in businesses or assets which compete directly or indirectly
with the Fund; provided however that the Fund acknowledges that the Executive
currently serves as President of Banyan Strategic Realty Trust ("BSRT"), and the
Executive shall not be deemed to have violated this Agreement as a result of any
actions he may take in furtherance of his duties to BSRT.
12. Indemnification. The Fund shall indemnify and hold harmless the Executive
from liabilities, which he may incur resulting from or arising out of any act
undertaken in connection with his duties on behalf of the Fund under this
Agreement in the same manner and to the same extent as the Fund indemnifies any
director or any other officer. The indemnification provided in this Section 12
shall survive the termination of this Agreement.
13. General Provisions.
(a) Notice. Any notice required or permitted hereunder shall be made
in writing (i) either by actual delivery of the notice into the hands of
the party thereunder entitled, (ii) by facsimile transmission, or (iii) by
the mailing of the notice in the United States mail, certified or
registered mail, return receipt requested, all postage prepaid and
addressed to the party to who the notice is to be given at the party's
respective address set forth below, or such other address as the parties
may from time to time designate by written notice as herein provided.
3
As addressed to the Fund:
Banyan Strategic Land Fund II
Suite 2900
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
With a copy to:
Xxxxxxx & Xxxxxxxx Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: 312-527-5921
As addressed to the Executive:
Xxxxxxx X. Xxxxxx
Suite 2900
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
With a copy to:
Saitlin Xxxxxx Xxxxx & Samotny Ltd.
000 X. Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: 312-551-1101
As addressed to the Escrow Agent: in accordance with the terms of
the Escrow Agreement attached as Exhibit A hereto.
The notice shall be deemed to be received in case (i) on the date of
its actual receipt by the recipient, in case (ii) on the date the sender
receives a confirmation that the facsimile transmission was completed and
received by the recipient, and in case (iii) on the date of its mailing.
(b) Further Assurances. Each party agrees to execute and deliver
such additional instruments and documents, including without limitation
the Escrow Agreement, and to take all such other actions as any of the
other parties may reasonably request from time to time in order to effect
the provisions, purposes and intent of this Agreement.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(d) Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
(e) No Strict Construction. This Agreement has been mutually
negotiated and drafted by the parties and no presumption or rule of
contract construction or interpretation by or against a party
4
shall be made on the basis of the party which might otherwise be charged
with drafting this Agreement.
(f) References. As used herein, all provisions shall include the
masculine, feminine, neuter, singular and plural thereof, wherever the
context and facts require such construction.
(g) Recitals. The recitals set forth in this Agreement are
incorporated by reference herein and made a part hereof, as if fully
rewritten.
(h) Amendment and Waiver. No amendment or modification of this
Agreement shall be valid or binding upon the Fund unless made in writing
and signed by an officer of the Fund duly authorized by the Board of
Directors or upon the Executive unless made in writing and signed by him.
The waiver by the Fund of the breach of any provision of this Agreement by
the Executive shall not operate or be construed as a waiver of any
subsequent breach by him.
(i) Entire Agreement. This Agreement constitutes the entire
Agreement between the parties with respect to the Executive's duties and
compensation as an executive of the Fund on or after May 1, 1997, and
there are no representations, warranties, agreements or commitments
between the parties hereto with respect to his employment except as set
forth herein. The Original Agreement shall continue to govern issues with
respect to the Executive's employment prior to May 1, 1997.
(j) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the
State of Illinois.
(k) Severability. If any provision of this Agreement shall, for any
reason, be held unenforceable, such provision shall be severed from this
Agreement unless, as a result of such severance, the Agreement fails to
reflect the basic intent of the parties. If the Agreement continues to
reflect the basic intent of the parties, then the invalidity of such
specific provisions shall not affect the enforceability of any other
provision herein, and the remaining provisions shall remain in full force
and effect.
(l) Assignment. The Executive may not under any circumstances
delegate any of his rights and obligations hereunder without first
obtaining the prior written consent of the Fund. This Agreement and all of
the Fund's rights and obligations hereunder may be assigned or transferred
by it, in whole or in part, to be binding upon and inure to the benefit of
any subsidiary or successor of the Fund.
(m) Costs of Enforcement. In the event of any suit or proceeding
seeking to enforce the terms, covenants, or conditions of this Agreement,
the prevailing party shall, in addition to all other remedies and relief
that may be available under this Agreement or applicable law, recover his
or its reasonable attorney's fees and costs as shall be determined and
awarded by the court.
IN WITNESS WHEREOF, this Agreement is entered into on the day and year
first above written.
BAYNAN STRATEGIC LAND FUND II
By:
--------------------------------------------
Xxxxxx X. Xxxxxxx, Vice President, Secretary
and General Counsel
EXECUTIVE:
------------------------------------------
Xxxxxxx X. Xxxxxx
5
EXHIBIT 10(ii)
AMENDMENT NO. 1 TO EXCHANGE AGREEMENT
This Amendment No. 1 to Exchange Agreement (the "Amendment") is made and
entered into as of August 7, 1997 by and among Banyan Strategic Land Fund II, a
Delaware corporation, Equis Financial Group Limited Partnership, a Massachusetts
limited partners, Equis Exchange LLC, a Massachusetts limited liability company,
and AFG Hato Arrow Limited Partnership, AFG Dove Arrow Limited Partnership and
AIP/Larkfield Limited Partnership, each of which is a Massachusetts limited
partnership (all parties to this Amendment, collectively, "the Parties").
R E C I T A L S
A. The Parties entered into an Exchange Agreement (the "Agreement,"
capitalized terms used without definitions herein have the meanings given them
in the Agreement), dated April 30, 1997.
B. The Parties desire to amend certain dates found within the Agreement
and its exhibits.
NOW, THEREFORE, in consideration of the promises, mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. Amendment of Section 4.10(d) of the Agreement. The second sentence
of Section 4.10(d) is deleted in its entirety and replaced by the following:
If the Stockholders' Consent is obtained by December 31, 1997,
Banyan shall declare and pay a distribution to its stockholders of $.20
per share out of legally available funds.
2. Amendment to Exhibit C to the Agreement. Paragraph a. of Exhibit C
to the Agreement is deleted in its entirety and replaced by the following:
a. The Stockholders' Consent, as that term is defined in Section 4.10
of the Exchange Agreement, shall not have been obtained on or before
December 31, 1997.
3. Amendment to Exhibit F to the Agreement. Paragraph a. of Exhibit F
to the Agreement is deleted in its entirety and replaced by the following:
a. The Stockholders' Consent, as that term is defined in Section 4.10
of the Exchange Agreement, shall not have been obtained by December
31, 1997.
4. Miscellaneous Provisions.
(a) Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the
State of Illinois.
(b) Further Assurances. Each party agrees to execute and deliver
such additional instruments and documents, including without limitation
allonges to the promissory notes executed in connection with the
Agreement, and to take all such other actions as any of the other parties
may reasonably request from time to time in order to effect the
provisions, purposes and intent of this Amendment.
(c) Entire Agreement; Effect on Other Agreements. This Amendment
constitutes the entire understanding of the Parties with respect to the
amendments to the Agreement described herein and may be modified only in
accordance with the provision of the Agreement governing amendments.
6
Upon execution of this Amendment, all references in the Agreement and any
documents executed or delivered in connection therewith, including without
limitation any documents relating to the Agreement, shall be deemed to be
referenced to the Agreement as amended, supplemented or modified by this
Amendment.
(d) Severability. If any provision of this Amendment shall, for any
reason, be held unenforceable, such provision shall be severed from this
Amendment unless, as a result of such severance, this Amendment fails to
reflect the basic intent of the parties. If this Amendment continues to
reflect the basic intent of the parties, then the invalidity of such
specific provision shall not affect the enforceability of any other
provision herein, and the remaining provisions shall remain in full force
and effect.
(e) Counterparts; Effectiveness. This Amendment may be executed in
two or more counterparts, any one of which need not contain the signatures
of more than one party, but all such counterparts taken together shall
constitute one and the same Amendment. When this Amendment has been
executed by the Parties, it shall become effective as of the date and year
first written above.
(f) Headings. The descriptive headings of this Amendment are
inserted for convenience only and do not constitute a part of this
Amendment.
(g) No Strict Construction. This Amendment has been mutually
negotiated and drafted by the parties and no presumption or rule of
contract construction or interpretation by or against a party shall be
made on the basis of the party which might otherwise be charged with
drafting this Amendment.
(h) References. As used herein, all provisions shall include the
masculine, feminine, neuter, singular and plural thereof, wherever the
context and facts require such construction.
(i) Recitals. The recitals set forth in this Amendment are
incorporated by reference herein and made a part hereof, as if fully
rewritten.
IN WITNESS WHEREOF, this Amendment is entered into on the day and year
first written above.
BANYAN STRATEGIC LAND FUND II
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------------
Xxxxxxx X. Xxxxxx, President
EQUIS FINANCIAL GROUP LIMITED
PARTNERSHIP
By: Equis Corporation, its General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------------
Xxxxx X. Xxxxx, Senior Vice President
AFG HATO ARROW LIMITED PARTNERSHIP
By: AFG Leasing IV Incorporated, its General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------------
Xxxxx X. Xxxxx, Vice President
7
AFG DOVE ARROW LIMITED PARTNERSHIP
By: AFG Leasing VI Incorporated, its General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------------
Xxxxx X. Xxxxx, Vice President
AIP/LARKFIELD LIMITED PARTNERSHIP
By: AFG Leasing IV Inorporated, its General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------------
Xxxxx X. Xxxxx, Vice President
EQUIS EXCHANGE LLC
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------------
Xxxxx X. Xxxxx, Manager
8
