Exhibit 10.3
SHARED FACILITIES AGREEMENT BETWEEN LNR PROPERTY CORPORATION
AND LENNAR CORPORATION
This Shared Facilities Agreement is made as of the 27th day of October,
1997, by and between Lennar Corporation, a Delaware corporation ("Lennar"), and
LNR Property Corporation, a Delaware corporation ("LNR"), wherein it is agreed:
1. PURPOSES.
1.1 Pursuant to various agreements executed or to be executed by and
between Lennar and LNR, Lennar will transfer its real estate investment
and management business to LNR, and thereafter, pursuant to a
Separation and Distribution Agreement, dated June 10, 1997, executed by
the parties hereto (the "Distribution Agreement"), Lennar will
distribute to its stockholders on the Distribution Date (defined in the
Distribution Agreement), on a one-for-one basis, the issued and
outstanding shares of capital stock of LNR received by it from LNR in
accordance with Paragraphs 2.1(a) and 2.1(b) of the Distribution
Agreement so that after such transfer and distribution, LNR will be a
corporation independent of Lennar (the "Distribution").
1.2 Prior to the Distribution Date, Lennar provided certain services to its
real estate investment and management business.
1.3 After the Distribution Date, LNR will require for a limited term that
Lennar continue providing certain computer services to LNR and its
subsidiaries until LNR and its subsidiaries are able to otherwise
contract or arrange for such services.
2. TERM. Subject to the provisions of Section 5 hereof, this Agreement
shall be effective on the Distribution Date and shall continue until
the earlier of (i) one year following the Distribution Date, and (ii)
termination of all Services (as herein defined) pursuant to Section 5
of the Agreement (the "Term").
3. AGREEMENT TO PERFORM SELECTED SERVICES.
3.1 Subject to all of the terms and conditions hereof, Lennar and LNR
hereby agree that Lennar shall offer and provide to LNR and its
subsidiaries during the Term those services described on Schedule "A"
hereto (collectively, the "Services"). Services heretofore provided to
LNR will be provided on a basis consistent with prior practice. Charges
for Services shall be as set forth in Section 4 hereof.
3.2 The Services to be available hereunder shall include all Services
provided by Lennar to LNR and its subsidiaries on the Distribution Date
or at any time during the calendar year immediately preceding the
Distribution Date. If LNR elects to utilize any services not set forth
on Schedule A, it shall notify Lennar
in writing of those services it elects to use and, to the extent Lennar
agrees to furnish such new services to LNR, which agreement shall not
be unreasonably withheld by Lennar, Lennar shall furnish such new
services to LNR on a basis consistent with past practices and
procedures for services previously provided to LNR by Lennar or on a
basis to be agreed upon by both parties hereto if such services were
not previously provided to LNR by Lennar; provided, however, that
Lennar shall not be required to furnish any new services to LNR which
are not permitted to be provided by it pursuant to the ruling it has
received from the Internal Revenue Service that the Distribution
(defined in the Distribution Agreement) will qualify as a tax-free
distribution. Lennar's compensation, if any, for providing such new
services shall be as agreed to by the parties hereto.
4. CHARGES FOR SERVICES; PAYMENT.
4.1 It is the intention of the parties hereto that the charges for Services
will be based on direct and indirect costs of providing Services but
without any profit to Lennar until otherwise agreed to by the parties
hereto. The costs of providing Services shall be $15,600 per month as
described on Schedule "B" hereto.
4.2 Lennar shall xxxx LNR monthly for all charges for Services provided
hereunder, which xxxx shall be accompanied by reasonable documentation
or explanation supporting such charges, and LNR shall pay Lennar in
full for all charges for Services within 30 days after receipt of such
xxxx and other documentation or explanation.
5. REDUCTIONS IN SERVICES; TERMINATION. The parties recognize that during
the Term hereof the requirements of LNR for certain Services will
decrease and that LNR intends to reduce or completely phase out any
Services no longer required. Accordingly, at any time after the
Distribution Date, LNR may request termination of all or any part of
the Services provided to or received by it (including termination of
any part of any individual Service) by giving Lennar not less than 30
days' advance notice in writing of any anticipated termination of any
Services or part thereof and, to the extent practicable, the parties
will agree to an orderly reduction or phase-out of such Services and to
a reduction of the fees payable hereunder.
Following the termination or discontinuance of any Service as provided
herein, to the extent Lennar is thereafter requested to provide any
terminated or discontinued Service, including any transition-related
assistance necessary for any other organization to perform the
terminated or discontinued Service, Lennar shall perform such Service
and Lennar shall be entitled to compensation therefor reflecting
incurred costs; provided, however, that Lennar shall not be obligated
to perform any Service, after the date which is one year following the
Distribution Date.
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6. COVENANT.Except to the extent otherwise provided herein, Lennar
covenants and warrants that the charges for Services hereunder are and
shall be determined in a fair and equitable manner with the intent to
reimburse Lennar for all related direct and indirect costs of providing
Services to LNR but without any profit to Lennar.
7. FORCE MAJEURE. If either party is unable to perform any of its duties
or fulfill any of its covenants or obligations under this Agreement as
a result of causes beyond its control and without its fault or
negligence, including but not limited to acts of God or government,
fire, flood, war, governmental controls, and labor strife, then such
party shall not be deemed to be in default of this Agreement during the
continuance of such events which rendered it unable to perform; such
party shall have such additional time thereafter as is reasonably
necessary to enable it to resume performance of its duties and
obligations under this Agreement; and the party entitled to such
Service shall not be required to pay the other party for any Service to
the extent that such other party is unable to perform. Notwithstanding
the foregoing, if the suspension of Lennar's obligation to perform
under this Agreement is of such a nature or duration as to
substantially frustrate the purpose of this Agreement, then LNR shall
have the right to terminate this Agreement by giving Lennar 30 days'
prior written notice of termination, in which case termination shall be
effective upon the expiration of such 30-day period unless performance
is resumed prior to such expiration.
8. SEVERABILITY. The invalidity of any provision of this Agreement as
determined by a court of competent jurisdiction in no way shall affect
the validity of any other provision hereof. If a provision is
determined to be invalid, the parties shall negotiate in good faith in
an effort to agree upon a suitable and equitable alternative provision
to effect the original intent of the parties.
9. TIME OF THE ESSENCE. The parties hereto agree that with respect to the
performance of all terms, conditions and covenants of this Agreement,
time is of the essence.
10. CAPTIONS. Section captions are not a part hereof and are merely for the
convenience of the parties.
11. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof, this
Agreement shall bind the parties, their successors and assigns. This
Agreement shall be governed by the laws of the State of Delaware
without reference to the conflict or choice of law provisions thereof.
12. ASSIGNMENT. Lennar shall not assign or sublease this Agreement or any
Services to be provided hereunder without the prior written consent of
LNR.
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13. AMENDMENT. This Agreement may not be amended without the express
written agreement of both parties hereto.
14. NOTICES. All notices under this Agreement must be in writing and
delivered personally or sent by United States mail, postage prepaid,
addressed as follows, except that any party by written notice given as
aforesaid, may change its address for subsequent notices to be given
hereunder.
If to Lennar:
Lennar Corporation
000 XX 000xx Xxx., Xxxxx 000
Xxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxxxx
If to LNR:
LNR Property Corporation
000 XX 000xx Xxx., Xxxxx 000
Xxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx
Notice sent by U.S. mail will be deemed given when deposited with the
U.S. postal service.
15. INDEMNITY. Notwithstanding anything to the contrary contained herein,
Lennar agrees to indemnify and hold harmless LNR and its subsidiaries
and affiliates from and against any claim, loss, liability, cost or
expense arising from Lennar's activities or actions under this
Agreement. Lennar further agrees that it will conduct its business at
all times in accordance with all applicable laws, codes and
regulations, including, but not limited to, the maintenance of all
appropriate licenses. Notwithstanding anything to the contrary
contained herein, in the event Lennar commits an error with respect to
or incorrectly performs or fails to perform any Service, at LNR's
request, Lennar shall use reasonable efforts and good faith to correct
such error, re-perform or perform such Service at no additional cost to
LNR and Lennar shall reimburse LNR for any costs incurred by LNR as a
result of any such errors.
16. INDEPENDENT ENTITIES. In carrying out the provisions of this Agreement,
Lennar and LNR are and shall be deemed to be for all purposes, separate
and independent entities. Lennar and LNR shall select their employees
and agents, and such employees and agents shall be under the exclusive
and complete supervision and control of Lennar or LNR, as the case may
be. Lennar hereby acknowledges responsibility for full payment of wages
and other compensation to all employees and agents engaged by it in the
performance of the Services under this Agreement. It is the express
intent of this Agreement that the relationship of Lennar to LNR and LNR
to Lennar shall be solely that of separate and
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independent companies and not that of a joint venture, partnership or
any other joint relationship.
17. NONFIDUCIARY STATUS. In carrying out the provisions of this Agreement,
neither party shall be a fiduciary (as defined in Section 3 (21) of
ERISA) with respect to any employee benefit plan, program or
arrangement maintained by or on behalf of the other party. Lennar will
provide Services pursuant to the terms and conditions of this Agreement
in accordance with the directions, guidelines and/or procedures
established by it or the plan administrator (as defined in Section 3
(16) of ERISA) of its employee benefit plans or arrangements.
18. THIRD PARTY BENEFICIARIES. The provisions of this Agreement are solely
for the benefit of the parties and are not intended to confer upon any
person except the parties any rights or remedies hereunder. There are
no third party beneficiaries of this Agreement, and this Agreement
shall not provide any third person with any remedy, claim, liability,
reimbursement, action or other right in excess of those existing
without reference to this Agreement.
19. CONSTRUCTION. For purposes of this Agreement, references to LNR, with
respect to events or periods prior to the Distributions Date, shall
mean and include, where appropriate, Lennar's real estate investment
and management business as it existed prior to such date, including,
but not limited to, the operations of its financial services division
that became part of LNR.
20. APPENDICES. The Appendices shall be construed with and as an integral
part of this Agreement to the same extent as if the same had been set
forth verbatim herein. In the event of any inconsistency between the
terms of any Appendix and the terms set forth in the main body of this
Agreement, the terms of the Appendix shall govern.
21. CONFIDENTIALITY.
21.1 Each of (i) Lennar and its subsidiaries and (ii) LNR and its
subsidiaries shall not use or permit the use of (without the prior
written consent of the other) and shall keep, and shall cause its
consultants and advisors to keep, confidential all information
concerning the other party received pursuant to or in connection with
this Agreement.
21.2 With respect to any confidential information, each party agrees as
follows:
(a) it shall use the same degree of care in safeguarding said
information as it uses to safeguard its own information which
must be held in confidence; and
(b) upon the discovery of any inadvertent disclosure or
unauthorized use of said information, or upon obtaining notice
of such a disclosure or use from the other party, it shall
take all necessary actions to prevent any further
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inadvertent disclosure or unauthorized use, and, subject to
the provisions of Section 15 above, the other party shall be
entitled to pursue any other remedy which may be available to
it.
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date set forth above, each of which shall, for all purposes,
be deemed an original and all of which shall evidence but one agreement between
the parties hereto.
LENNAR CORPORATION, LNR PROPERTY CORPORATION,
a Delaware corporation a Delaware corporation
By: /s/ XXXX XXXXXXXX By: /s/ XXXXXX XXXXX
------------------- -----------------------------
Name: XXXX XXXXXXXX Name: XXXXXX XXXXX
Title: VICE PRESIDENT Title: FINANCIAL VICE PRESIDENT
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