EXHIBIT 10.4
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT (this "Agreement") is made and
entered into as of ____________, 1998, by and between EXCEL REALTY TRUST,
INC., a Maryland corporation ("Excel"), and EXCEL LEGACY CORPORATION, a
Delaware corporation ("Legacy," and collectively with Excel, the "Parties"),
effective as of the Distribution Date (as hereinafter defined).
R E C I T A L S
WHEREAS, subject to certain conditions, Excel intends to spin-off
certain businesses and assets by distributing to Excel stockholders a special
dividend of one share of Legacy Common Stock for each share of Excel Common
Stock held as of the close of business on the Record Date (the
"Distribution");
WHEREAS, in connection with the Distribution, Excel and Legacy have
entered into a Distribution Agreement of even date herewith (the
"Distribution Agreement");
WHEREAS, after the Distribution, Legacy will need certain management and
administrative services to be provided by Excel to Legacy for a period of
time from and after the Distribution Date; and
WHEREAS, in connection with the Distribution, Legacy has requested
Excel to provide, and Excel has agreed to provide, certain management and
administrative services to Legacy from and after the Distribution Date
pursuant to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Excel and Legacy agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings indicated below:
Distribution: the spin-off of Legacy pursuant to the Distribution
Agreement.
Distribution Agreement: the agreement described in the second recital
of this Agreement.
Distribution Date: the date on which the Distribution occurs.
Employee Benefit Plan: any plan, policy, arrangement, contract or
agreement providing compensation benefits for any group of Excel Employees or
former Excel Employees or individual Excel Employee or former Excel Employee,
or the dependents
or beneficiaries of any such Excel Employee or former Excel Employee, whether
formal or informal or written or unwritten, and including, without
limitation, any means, whether or not legally required, pursuant to which any
benefit is provided by Excel to any Excel Employee or former Excel Employee
or the beneficiaries of any such Excel Employee or former Excel Employee,
adopted or entered into by Excel prior to, upon or after the Distribution.
The term "Employee Benefit Plan" as used in this Agreement does not include
any contract, agreement or understanding entered into by Excel relating to
settlement of actual or potential Excel Employee related litigation claims.
Excel Employee: any individual who is an employee or director of Excel
and is not a Legacy Employee and has not been designated as a Legacy
Individual under Section 6.2 hereof.
First Month: In the event that the Distribution Date does not fall on
the first day of a month, the month that includes the Distribution Date.
Full Month: A full calendar month during the Term (as defined in
Section 3).
Last Month: In the event that the Termination Date does not fall on the
last day of a month, the month that includes the Termination Date (as defined
in Section 3).
Legacy Business: any business or operation of Legacy which is, pursuant
to the Distribution Agreement, to be conducted by Legacy after the
Distribution.
Legacy Employee: any individual who (i) is independently hired by Legacy
after the Distribution Date as an employee of Legacy, and (ii) is not an
employee or director of Excel.
Legacy Individual: any individual who (i) is designated in writing by
Excel and Legacy as a "Legacy Individual" for purposes of this Agreement in
accordance with Section 6.2 hereof and was an Excel Employee prior to such
designation, and (ii) is not a Legacy Employee or an Excel Employee.
Month: a Full Month, First Month or Last Month, as the case may be.
Monthly Fee: The amount payable by Legacy to Excel under Section 4.1
herein with respect to a particular Full Month or any First Month or Last
Month.
Record Date: March 2, 1998.
2. ENGAGEMENT OF EXCEL. During the term of this Agreement, Excel shall
provide to Legacy certain management and administrative services
("Services"), as more fully described and defined below, as may be necessary
or desirable, or as Legacy may reasonably request or require, in connection
with the business, operations and affairs of Legacy. "Services" means and
includes, without limitation, the furnishing
of advice, assistance, guidance, equipment and the services of Excel
Employees and Legacy Individuals in connection with, among other things, (i)
the Legacy Business and (ii) the use of Excel's management information and
accounting system, the administration of insurance and worker's compensation
programs, legal and employee benefit services and the preparation of payrolls.
3. TERM; TERMINATION. This Agreement shall commence as of the date
hereof and continue thereafter unless and until terminated by either party at
any time for any reason upon not less than thirty (30) days' prior written
notice to the other (the "Termination Date", with the term of this Agreement
as set forth in this Section 3 being referred to as the "Term").
4. PAYMENTS TO EXCEL.
4.1 GENERALLY.
(a) FULL MONTH. With respect to each Full Month, in
consideration of the Services provided by Excel hereunder, Legacy shall pay
to Excel fees equal to the product of:
(i) 1.15; and
(ii) the sum of (x) one-third of the aggregate amount of
all wages and salaries paid to Excel Employees during the Full Month, and (y)
two-thirds of the aggregate amount of all wages and salaries paid to Legacy
Individuals during the Full Month.
(b) FIRST MONTH AND LAST MONTH. With respect to any First
Month or Last Month, in consideration of the Services provided by Excel
hereunder, Legacy shall pay to Excel fees equal to the product of:
(i) 1.15;
(ii) the sum of (x) one-third of the aggregate amount of
all wages and salaries paid to Excel Employees during the First Month or Last
Month, as the case may be, and (y) two-thirds of the aggregate amount of all
wages and salaries paid to Legacy Individuals during the First Month or Last
Month, as the case may be; and
(iii) the number of days in the First Month or the Last
Month, as the case may be, which are included in the Term, divided by the
total number of days in the First Month or the Last Month, as the case may be.
4.2 STATEMENT FROM EXCEL. Promptly and in any event not later
than ten
(10) days following the end of each Month, Excel shall provide to Legacy a
statement setting forth (i) a list of the Excel Employees, (ii) a list of the
Legacy Individuals, (iii) the aggregate amount of all wages and salaries paid
to Excel Employees during the Month, and (iv) the aggregate amount of all
wages and salaries paid to Legacy Individuals during the Month.
4.3 PAYMENT BY LEGACY. Promptly and in any event not later than
five (5) days after delivery by Excel of each statement referred to in
Section 4.2, Legacy shall pay to Excel the Monthly Fee applicable to the
Month to which such statement relates.
5. EMPLOYEE BENEFIT PLANS. From and after the Distribution Date,
Excel shall (i) permit the Excel Employees to continue to participate in the
Employee Benefit Plans on the same basis as such persons participated
immediately prior to the Distribution Date, and (ii) permit each Legacy
Individual to participate in the Employee Benefit Plans after the
Distribution Date on the same basis as Excel Employees participated
immediately prior to the date such Legacy Individual was designated as such;
provided, however, nothing contained in this Agreement shall prohibit Excel
from modifying or terminating any one or more of the Employee Benefit Plans
so long as such modification or termination shall apply to all participants
in such Employee Benefit Plans. Excel shall provide Legacy with sixty (60)
days' prior written notice of its intent to terminate any Employee Benefit
Plan or effect the modification thereof in a manner adverse to either Legacy
or a Legacy Individual; provided that no such notice shall be required for
any Employee Benefit Plan which terminates by its terms without any action by
Excel.
6. EMPLOYEES.
6.1 LEGACY'S HIRING OF EMPLOYEES. Nothing in this Agreement shall
prohibit Legacy from independently hiring one or more Legacy Employees;
provided, however, that (i) all wages, salaries, payroll taxes, and employee
benefits with respect to Legacy Employees shall be Legacy's sole
responsibility, and (ii) Legacy Employees shall not be subject to this
Agreement.
6.2 EXCEL EMPLOYEE BECOMING LEGACY INDIVIDUAL. From time to time
after the Distribution Date, at such time as an Excel Employee regularly spends
more than 50% of his or her working time performing services for Legacy, he or
she may be designated in writing by Excel and Legacy as a "Legacy Individual"
for purposes of the Agreement (a "Designation"). For purposes of Section 4.1,
the Designation shall be effective on the first day of the month following the
date such writing is fully executed by Excel and Legacy. In addition, unless
otherwise agreed to in writing by Excel and Legacy, all Legacy Individuals will
remain employees of Excel and will not be Legacy Employees.
7. GENERAL.
7.1 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be
deemed or construed by the Parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
Parties, it being understood and agreed that no provision contained herein,
and no act of the Parties, shall be deemed to create any relationship between
the Parties other than the relationship set forth herein.
7.2 ACCESS TO INFORMATION; COOPERATION. Excel and Legacy and
their authorized agents shall be given reasonable access to and may take
copies of all information relating to the subjects of this Agreement (to the
extent permitted by federal and state confidentiality laws) in the custody of
the other Party, including any agent, contractor, subcontractor, agent or any
other person or entity under the contract of such Party.
7.3 ASSIGNMENT. Neither Party shall, without the prior written
consent of the other, have the right to assign any rights or delegate any
obligations under this Agreement.
7.4 HEADINGS. The headings used in this Agreement are inserted
only for the purpose of convenience and reference, and in no way define or
limit the scope or intent of any provision or part hereof.
7.5 SEVERABILITY OF PROVISIONS. Neither Excel nor Legacy intend
to violate statutory or common law by executing this Agreement. If any
section, sentence, paragraph, clause or combination of provisions in this
Agreement is in violation of any law, such sections, sentences, paragraphs,
clauses or combinations shall be inoperative and the remainder of this
Agreement shall remain in full force and effect and shall be binding upon the
Parties.
7.6 PARTIES BOUND. This Agreement shall inure to the benefit of
and be binding upon the Parties hereto and their respective successors and
permitted assigns. Nothing herein, expressed or implied, shall be construed
to give any other person any legal or equitable rights hereunder.
7.7 NOTICES. All notices, consents, approvals and other
communications given or made pursuant hereto shall be in writing and shall be
deemed to have been duly given when delivered personally or by overnight
courier or three days after being mailed by registered or certified mail
(postage prepaid, return receipt requested) to the named representatives of
the Parties at the following addresses or at such other address for a Party
as shall be specified by like notice, except that notices of changes of
address shall be effective upon receipt):
(a) if to Excel:
Excel Realty Trust, Inc.
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(b) if to Legacy:
Excel Legacy Corporation
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Legacy and Excel agree that, upon the request of either Party, the requested
Party will give copies of all of its notices, consents, approvals and other
communications hereunder to any lender to the requesting Party or other
person specified by such requesting Party.
7.8 FURTHER ACTION. Legacy and Excel each shall cooperate in good
faith and take such steps and execute such papers as may be reasonably
requested by the other Party to implement the terms and provisions of this
Agreement.
7.9 WAIVER. Legacy and Excel each agree that the waiver of any
default under any term or condition of this Agreement shall not constitute a
waiver of any subsequent default or nullify the effectiveness of that term or
condition.
7.10 GOVERNING LAW. All controversies and disputes arising out of
or under this Agreement shall be determined pursuant to the laws of the State
of California, regardless of the laws that might be applied under applicable
principles of conflicts of laws.
7.11 ENTIRE AGREEMENT. This Agreement and the Distribution
Agreement constitute the entire understanding between the Parties hereto, and
supersede all prior written or oral communications, relating to the subject
matter covered by said agreements. To the extent that the terms of this
Agreement and similar terms of the Distribution Agreement are in conflict,
this Agreement shall govern. No amendment, modification, extension or
failure to enforce any condition of this Agreement by either Party shall be
deemed a waiver of any of its rights herein. This Agreement shall not be
amended except by a writing executed by the Parties.
7.12 DISPUTE RESOLUTION. Any dispute 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
provisions referred to therein.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
EXCEL REALTY TRUST, INC., a Maryland
corporation
By:
Name:
Title:
EXCEL LEGACY CORPORATION, a Delaware
corporation
By:
Name:
Title:
