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EXHIBIT 10.4
TRANSITIONAL SERVICES AGREEMENT
This Transitional Services Agreement (this "Agreement") is made as of
this 31st day of March, 1998, between Excel Realty Trust, Inc., a Maryland
corporation ("Excel"), and Excel Legacy Corporation, a Delaware corporation
("Legacy").
RECITALS
WHEREAS, pursuant to a Distribution Agreement dated as of March 31,
1998, (the "Distribution Agreement") between Excel, Legacy and ERT Development
Corporation, a Delaware corporation ("EDV"), Excel and EDV will (i) transfer
certain real properties (the "Properties"), notes receivable (the "Notes"), and
all other assets and liabilities of Excel and EDV related thereto (collectively,
the "Legacy Business") to Legacy; (ii) a distribution by Legacy of all of the
outstanding shares of common stock, par value $.0001 per share, of Legacy (the
"Legacy Common Stock") to Excel; and (iii) a special dividend by Excel to the
stockholders of record of Excel's common stock, consisting of the distribution
on a one-for-one basis, of all of the outstanding shares of Legacy Common Stock
(the "Distribution"); and
WHEREAS, a condition of the closing of the transactions
contemplated by the Distribution Agreement is that Excel and Legacy enter into,
among other things, a transitional services agreement pursuant to which Excel
shall provide certain services to Legacy and Legacy shall provide certain
services to Excel.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants hereinafter set forth, and intending to be legally bound
hereby, the parties agree as follows:
1. SERVICES. Excel and Legacy hereby agree, subject to Section 6 below,
to cause their respective employees and to use their respective assets to
provide certain services to the other, including without limitation, cash
management services, certain accounting services, litigation management, real
estate services and any other similar services that Excel or Legacy may request.
Nothing contained herein shall be deemed to restrict either party to this
Agreement from procuring any of the services to be provided hereunder from
outside vendors or from developing an in-house capability to provide such
services internally.
2. CHARGES FOR SERVICES. The charge for each service to be provided
hereunder shall be equal to the cost (which shall include indirect costs as well
as direct out of pocket expenses) of providing such service. The cost of
providing a service shall be determined in good faith by the party to provide
such service (the "providing party"). Prior to providing a service, the
providing party shall give an estimate of the cost thereof to the other party,
so that the other party shall have the opportunity to decide whether to accept
such service before it is performed.
3. INVOICE AND PAYMENT. Each party shall invoice the other once each
month for the services performed during the prior month and each party shall pay
the other for such services not later than ten (10) days from the receipt of
invoice.
4. OUTSIDE SERVICES. In the event that the providing party is required
to retain outside consultant/contractor assistance to perform any of the
services hereunder, the providing party shall
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first obtain the consent of the other party to such retention and the other
party shall pay directly the fees of such consultant/contractor. The providing
party shall not be held responsible for the performance of such
consultant/contractor services and the other party assumes the risk thereof.
5. CONTRACTUAL RELATIONSHIP. The relationship between Excel and Legacy
under this Agreement shall be that of principal and agent in respect of the
services to be performed hereunder. In no event is the relationship of the
parties intended to be that of employer and employee and in no event is either
party to be deemed or purported to be the partner or joint venturer of the other
for any purpose whatsoever.
6. TERM. The term of this Agreement shall expire on December 15, 1998;
provided, however, that each party shall have the right, upon fourteen (14) days
advance notice to the other, to terminate all or part of the services it
performs hereunder. Upon the termination of all services, payment therefor and
payment of all consultants/contractors, this Agreement shall terminate.
7. LIMITATION OF LIABILITY. Neither party shall have any liability
whatsoever to the other party or to any third party for any loss, liability,
damage, cost or deficiency (collectively, "Losses"), or for any claim for
Losses, including, without limitation, Losses or claims for personal injury,
death or property damage, warranty, tort or products liability, resulting from,
caused by or arising out of a party's performance under this Agreement except
for claims arising out of the negligence or willful default or breach of such
party hereunder. In no event shall any party have liability to the other party
or to any third party for indirect, special or consequential damages or loss of
profits (except with respect to its willful default or breach), or for punitive
damages for any reason whatsoever.
8. NOTICES. All notices and other communications hereunder shall be in
writing and shall be delivered by hand or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at such
other addresses for a party as shall be specified by like notice) and shall be
deemed given on the date on which such notice is received:
To Legacy:
Excel Legacy Corporation
00000 Xxx Xxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
To Excel:
Excel Realty Trust, Inc.
00000 Xxx Xxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
9. ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any party hereto
without the prior written consent of the other party (other than to an
affiliate). Any purported assignment in violation of the provisions hereof shall
be void.
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10. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California (regardless of the laws that might otherwise govern under
applicable California conflict of laws principles) as to all matters, including
but not limited to matters of validity, construction, effect, performance and
remedies.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. INTERPRETATION. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
13. SEVERANCE. In the event that any provision of this Agreement is
declared illegal, invalid or unenforceable or contrary to law, it shall not
affect any other provision in the Agreement.
14. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter hereof.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to the transactions contemplated hereby.
15. DISPUTES. Any disputes arising under this Agreement shall be
resolved by binding arbitration in the manner contemplated by Section 9.13 of
the Distribution Agreement, including the attorneys' fees provision referenced
therein.
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IN WITNESS WHEREOF, each of Excel and Legacy has caused this Agreement
to be executed by its duly authorized officer as of the date first above
written.
EXCEL REALTY TRUST, INC.
By: /s/ XXXX X. XXXXX
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Name: XXXX X. XXXXX
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Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
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EXCEL LEGACY CORPORATION
By: /s/ XXXX X. XXXXX
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Name: XXXX X. XXXXX
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Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
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