SERVICES AGREEMENT
Exhibit 10.4
THIS SERVICES AGREEMENT (this “Agreement”) is effective as of [·], 2011, by and between Xxxxx Properties, Inc. (“Xxxxx”) and Brookfield Asset Management LLC (“Brookfield” and together with Xxxxx, the “Parties”);
WHEREAS, Xxxxx and General Growth Properties, Inc. have entered into that certain Separation Agreement (the “Separation Agreement”) dated as of [·], 2011 pursuant to which Xxxxx shall become a new publicly traded company; and
WHEREAS, Xxxxx desires to engage Brookfield to provide financial services by seconding two of its employees to Xxxxx to serve as the Chief Financial Officer and the Vice President, Finance of Xxxxx for up to a period of one year following the Distribution (as defined in the Separation Agreement) and Brookfield desires to provide two employees to serve Xxxxx in such capacities.
NOW, THEREFORE, in consideration of the promises and mutual covenants set forth in herein and other good and valuable consideration, and contingent upon the consummation of the transactions contemplated by the Separation Agreement, the Parties hereby agree as follows:
ARTICLE I
RESPONSIBILITIES OF BROOKFIELD
Section 1.1 Provision of Seconded Employees. Subject to the terms and conditions hereof, Brookfield shall furnish to Xxxxx during the Term (as defined below) the services of the employees of Brookfield set forth on Exhibit A hereto (the “Seconded Employees”) to perform the job responsibilities and hold the titles set forth on Exhibit A hereto or as otherwise mutually agreed by the Parties in writing.
Section 1.2 Term of Agreement. The term of this Agreement with respect to each Seconded Employee shall commence as of the day following the Distribution Date (as defined in the Separation Agreement) and shall continue in full force and effect with respect to such Seconded Employee until the first (1st) anniversary of the Distribution Date or such earlier date as may be agreed by the Parties (the “Term”). Notwithstanding the foregoing, Xxxxx or Brookfield may terminate this Agreement on not less than thirty (30) days written notice to Brookfield or Xxxxx, as the case may be.
Section 1.3 Status of Seconded Employees.
(a) Seconded Employees providing services to Xxxxx under this Agreement shall at all times remain employees of Brookfield. Xxxxx shall have the right to have Brookfield remove any Seconded Employee as a service provider to Xxxxx.
(b) All Seconded Employees shall, during the period of their secondment, be subject to supervision and control by Xxxxx. In particular, Xxxxx shall determine what tasks Seconded Employees shall perform. Certain Seconded Employees shall hold supervisory positions and, in such capacity (unless otherwise determined by Xxxxx), shall
control and determine the procedures to be followed by other Seconded Employees regarding the time, place and manner of performance of work for Xxxxx by Seconded Employees; provided, however, that such Seconded Employees having supervisory responsibilities shall adhere to all of Xxxxx’x policies, practices and contractual obligations unless otherwise mutually agreed by the Parties.
Section 1.4 Employee Benefits Matters. Throughout the Term all Seconded Employees shall participate in the employee benefit programs that Brookfield generally makes available to similarly situated employees from time to time. The Seconded Employees will not participate in Xxxxx’x employee benefit programs.
ARTICLE II
RESPONSIBILITIES OF XXXXX
Section 2.1 Reimbursement of Costs.
(a) Xxxxx shall pay Brookfield all Service Costs as defined in and in accordance with the methodology set forth on Exhibit B hereto arising under or relating to the provision of services of Seconded Employees during the Term.
(b) Brookfield shall supply Xxxxx with an invoice of all Service Costs on a monthly basis. Payment shall be made by Xxxxx of these amounts invoiced via wire transfer of immediately available funds into a bank account designated by Brookfield within fifteen (15) days following the date the invoice.
ARTICLE III
INDEMNIFICATION AND LIMITATION OF LIABILITY
Section 3.1 Indemnification of Brookfield. All Seconded Employees shall, during the period of their secondment, be subject to supervision and control by Xxxxx. Xxxxx shall indemnify and hold Brookfield, its affiliates and their respective officers, directors, employees (including Seconded Employees to the extent entitled to indemnification by Brookfield) and agents harmless from all liabilities relating to or arising from the provision of services of Seconded Employees (other than acts or omissions of Seconded Employees and the provision of compensation and benefits to Seconded Employees which Xxxxx is required to pay to Brookfield pursuant to Section 2.1 hereof).
Section 3.2 Indemnification of Xxxxx. Brookfield shall indemnify and hold Xxxxx, its affiliates and their respective officers, directors, employees and agents harmless from all liabilities relating to or arising from the gross negligence or willful misconduct of Brookfield (other than acts or omissions of Seconded Employees) with respect to Seconded Employees during their secondment. The maximum amount of the aggregate liability of Brookfield under this Section 3.2 will be equal to the amounts paid in respect of Services pursuant to this Agreement.
ARTICLE IV
RELATIONSHIP OF PARTIES
Section 4.1 Delivery of Information; Cooperation Between the Parties. The Parties shall provide each other with all such information and materials reasonably necessary to effect the Parties’ prompt and complete performance of their duties and obligations under this Agreement. The Parties agree that they shall cooperate with each other and shall act in such a manner as to promote the prompt and efficient completion of the obligations hereunder.
Section 4.2 Confidentiality. All materials delivered by Xxxxx to Brookfield or Brookfield to Xxxxx pursuant to this Agreement shall be treated as confidential information unless required to be disclosed pursuant to law or an order of a court of competent jurisdiction. The terms of this Section 4.2 shall survive termination of this Agreement.
Section 4.3 Contractor Relationship.
(a) The Parties stipulate and agree that Brookfield and each Seconded Employee is an independent contractor with respect to its, his or her duties to Xxxxx for all payroll, benefit and workers compensation purposes.
(b) Unless otherwise agreed by the Parties, neither Xxxxx nor Brookfield shall represent to any party that any Seconded Employee is an employee of Xxxxx, or that such Seconded Employee’s relationship to Xxxxx is other than that of an independent contractor for purposes described in Section 4.3(a).
Section 4.4 Compliance with Law. Brookfield and its employees (other than Seconded Employees), and any contractors, subcontractors and other agents engaged by Brookfield, shall comply with all applicable laws in connection with the employment or termination of employment of Seconded Employees.
ARTICLE V
MISCELLANEOUS
Section 5.1 Governing Law. This Agreement is made pursuant to and shall be governed by and construed in accordance with the laws of the State of New York, without regard to any conflict of law rules which might result in the application of the laws of another jurisdiction. Each party hereby unconditionally and irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York or any New York State court sitting in New York City.
Section 5.2 Notices. All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or electronic transmission with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 5.2):
(a) if to Brookfield:
Brookfield Asset Management LLC
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX
00000
Attention: Xxxxx Xxx
Facsimile: (000) 000-0000
(b) if to Xxxxx:
Xxxxx Properties, Inc.
1114 Avenue of the Americas, Suite 2800
New York, N.Y.
10110
Attention: Xxxxxxx XxXxxxxxxx
a copy of all notices should also be sent to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
Section 5.3 Waiver of Jury Trial. Each of the Parties hereto hereby waives the right to a trial by jury in any proceeding or litigation brought against any other Party with respect to this Agreement or the transactions contemplated herein. Each Party represents that this waiver is made knowingly and voluntarily after consultation with and upon advice of counsel and is a material part of this Agreement.
Section 5.4 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by law, the Parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect.
Section 5.5 No Third Party Beneficiaries. The terms and provisions of this Agreement are intended solely for the benefit of the Brookfield and Xxxxx and their respective successors and permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other person or entity. No Seconded Employee, beneficiary or dependent of a Seconded Employee or other person shall be regarded for any purpose as a third party beneficiary of this Agreement.
Section 5.6 Entire Agreement. This Agreement (including the Exhibits hereto) constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, between or on behalf of the Parties hereto with respect to the subject matter hereof.
Section 5.7 Assignment. This Agreement shall inure to the benefit of and be binding on the successors, assigns and legal representatives of each of the Parties; provided that no Party shall assign this Agreement without the written consent of each of the other Parties and any attempted assignment without said consent shall be null, void and without any effect ab initio; and provided, further, that no such assignment by either Party shall release the assignor from its obligations hereunder.
Section 5.8 Amendment; Waivers. This Agreement may not be amended, modified or any provision waived, except by an instrument in writing signed by the Party or an executive officer of a corporate Party against whom enforcement of the amendment, modification or waiver is sought. A waiver by a Party of the performance of any covenant, agreement, obligation, condition, representation or warranty shall not be construed as a waiver of any other covenant, agreement, obligation, condition, representation or warranty. A waiver by any Party of the performance of any act shall not constitute a waive of the performance of any other act or an identical act required to be performed at a later time.
Section 5.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be considered one and the same agreement.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Services Agreement to be signed as of the date first above written.
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BROOKFIELD ASSET MANAGEMENT LLC | |
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By: |
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Name: |
Xxxxx Xxx |
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Title: |
Vice - President |
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XXXXX PROPERTIES, INC. | |
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By: |
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Name: |
Xxxxxxx XxXxxxxxxx |
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Title: |
Chief Operating Officer |
EXHIBIT A
Seconded Employees
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Name |
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Function |
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Reporting Officer |
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Rael Diamond |
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Chief Financial Officer |
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Chief Executive Officer |
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Xxxxxxx Xxxxxxxxx |
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Vice President, Finance |
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Chief Financial Officer |
EXHIBIT B
Service Costs
Xxxxx shall reimburse Brookfield for the following amounts (“Service Costs”) actually paid by Brookfield with respect to Seconded Employees during their secondment. The monthly cost of these services is estimated to be $88,000 (approximately $52,000 for the CFO and $36,000 for the VP Finance):
· Salary
· Bonus for 2012, pro-rated based upon period of service
· Employee benefit expenses, including medical, dental, vision, prescription drug, life insurance, short- and long-term disability insurance and accidental death and disability insurance
· Long-term incentive costs, pro-rated based upon period of service during the vesting period
