SHARED SERVICES AGREEMENT
EXHIBIT
10.18
This Shared Services Agreement (this “Agreement”) is made as of this ___ day of
_________________, 2011, by and among American Signature, Inc., an Ohio corporation (“ASI”), and
Schottenstein Realty, L.P., a Delaware limited partnership (the “Operating Partnership”).
RECITALS
WHEREAS:
| A. | The Operating Partnership desires to obtain certain services and service providers of ASI and utilize the facilities and equipment of ASI; and |
| B. | ASI desires to provide such services, service providers, facilities and equipment to the Operating Partnership on the terms and conditions set forth in this Agreement. |
NOW, THEREFORE, in consideration of the terms and conditions of this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of
the undersigned, the parties hereto agree as follows:
AGREEMENT
1. Services, Service Providers, Facilities and Equipment. ASI, on behalf of itself,
and such of its affiliates as are designated by ASI from time to time by written notice to the
Operating Partnership (ASI and such affiliates, the “Providers”), shall provide to the Operating
Partnership the services, service providers (including independent third party service providers),
facilities, and equipment (the “Provider Services”) as requested by Operating Partnership from time
to time as are reasonable or appropriate.
2. Provider Services. Providers will provide to the Operating Partnership the
following services:
(i) Security coverage and personnel, including security cameras in the Operating Partnership
premises;
(ii) Key card access and entry;
(iii) Mail Room and associated pick up and delivery services;
(iv) Refuse pick up and disposal of dumpster contents;
(v) Service of ASI’s computer system, AS400 and PMAS;
(vi) Use of the exercise facility and related services; and
(vii) Administrative assistance.
3. Fees and Reimbursements. In consideration of the Provider Services, the Operating
Partnership shall reimburse the Providers a sum equal to the Providers’ actual costs incurred in
providing the Provider Services to the Operating Partnership, based on square footage occupied by
the Operating Partnership at the offices located at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx Xxxx, within
thirty (30) days after receiving an invoice therefor from the Providers. The Providers’ costs of
providing the Provider Services that are allocated to the Operating Partnership shall include the
Operating Partnership’s allocable portion of all Provider Services that are billed to or paid by or
through the Providers, or the Operating Partnership, all as shall be determined from time to time
by the Operating Partnership and ASI in their good faith discretion. The parties also agree that
they shall make all reasonable efforts to ensure that all allocations, charges and payments under
this Agreement are accurate. On an annual basis (or more frequently to the extent deemed
appropriate by authorized officers of the parties), such allocations, charges and payments shall be
reviewed and reconciled. This Agreement is intended to be a mere cost sharing arrangement among
the parties of the items constituting the Provider Services, and no profit or other income shall be
imputed to the Providers (under Section 482 of the Internal Revenue Code of 1986, as amended, or
otherwise) or the Operating Partnership by reason of this Agreement.
4. Not an Employment Agreement or Partnership. The parties acknowledge that this
Agreement is not and will not be construed to be a contract of employment for and with respect to
any employee of the parties or a partnership among the parties for any federal, state, and/or local
law purposes including, but not limited to, income, employment, and all other tax purposes. The
parties further acknowledge that all of the provided personnel are, and shall remain, employees of
the Providers, and that the Operating Partnership is merely leasing the provided personnel or
facilities from the Providers at cost in order to provide the Provider Services to the Operating
Partnership. The Providers shall have sole authority for the discipline, retention and/or
termination of its employees. The Providers shall determine their employees’ compensation and shall
have sole responsibility to pay to or on behalf of the employees all costs relating to their
employment, including, but not limited to, salaries or wages, bonuses and other incentive payments,
overtime, benefits and taxes and other assessments. The Providers shall be responsible for the
withholding of all taxes and the reporting of payments and returns to governmental agencies. The
employees shall at no time, for any purpose, be deemed to be employees of the Operating Partnership
and shall not be entitled to or eligible to participate in benefits provided by the Operating
Partnership to the Operating Partnership’s employees, except as otherwise required by law.
5. Workers’ Compensation. The Providers shall obtain and maintain workers’
compensation insurance covering all of the provided personnel, and shall comply with all applicable
laws regarding such personnel, all in accordance with the requirements of the laws of the state
where such employees perform their duties.
6. Term and Termination. This Agreement shall become effective as of the date hereof
and shall continue unless terminated by the Operating Partnership upon not less than thirty (30)
days prior written notice to the Providers.
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7. Modification of Provider Services. The Parties may agree to modify the terms and
conditions of the Provider Services and/or the performance of any existing Provider Service. The
parties will negotiate in good faith the terms upon which a Provider would provide such new
Provider Service to the Operating Partnership. Any such modification shall be agreed upon in
writing by the parties.
8. Protection of the Providers.
8.1. Indemnification. The Operating Partnership shall, to the fullest extent permitted by
law, indemnify and hold harmless each Provider, their respective subsidiaries and affiliates, and
their respective officers, directors, employees, agents and representatives (collectively, the
“Provider Indemnitees”) from and against any and all losses, liabilities, damages, claims, taxes,
fines, penalties and expenses (including interest thereon and reasonable attorney’s fees and
expenses ) (each a “Loss” and collectively, “Losses”) suffered or incurred by any Provider
Indemnitee which arise out of or are related to any actions of the Providers or any of their
employees, agents or representatives taken while performing the Services for the benefit of, or on
behalf of, the Operating Partnership, except to the extent such Losses are caused by the gross
negligence or willful misconduct of Providers or any of their respective employees, agents or
representatives.
8.2. Acts or Omissions of Independent Contractors. The Providers shall not be accountable for
any harm to the Operating Partnership resulting from the acts or omissions of any agent or
independent contractor of the Providers except to the extent the selection of such agent or
independent contractor by the Providers shall constitute gross negligence or willful misconduct on
the part of the Providers that is the proximate cause of any harm to the Operating Partnership. The
Providers shall, to the fullest extent permitted by law, indemnify and hold harmless the Operating
Partnership, its respective subsidiaries and affiliates, and its and their respective officers,
directors, employees, agents and representatives (collectively, the “Operating Partnership
Indemnitees”) from and against any and all Losses suffered or incurred by any Operating Partnership
Indemnitee from any harm to the Operating Partnership resulting from the acts or omissions of any
agent or independent contractor of the Providers to the extent the selection of such agent or
independent contractor by the Providers shall constitute gross negligence or willful misconduct on
the part of the Providers that is the proximate cause of any harm to the Operating Partnership.
9. Notice. Any notice, demand, direction or instruction to be given to the Operating
Partnership or the Providers hereunder shall be in writing and addressed as follows to the
appropriate party or parties:
To the Providers:
American Signature, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
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w/ a copy to
American Signature, Inc.
0000 Xxxx Xxxxx Xxx.
Xxxxxxxx, Xxxx 00000
Attn: Chief Financial Officer
American Signature, Inc.
0000 Xxxx Xxxxx Xxx.
Xxxxxxxx, Xxxx 00000
Attn: Chief Financial Officer
To the Operating Partnership:
Schottenstein Realty, L.P.
c/o Schottenstein Realty Trust, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
c/o Schottenstein Realty Trust, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
w/ a copy to:
Schottenstein Realty, L.P.
c/o Schottenstein Realty Trust, Inc.
0000 Xxxx Xxxxx Xxx.
Xxxxxxxx, Xxxx 00000
Attn. Chief Financial Officer
Schottenstein Realty, L.P.
c/o Schottenstein Realty Trust, Inc.
0000 Xxxx Xxxxx Xxx.
Xxxxxxxx, Xxxx 00000
Attn. Chief Financial Officer
10. Miscellaneous.
10.1. Severability. If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held contrary to any express provision of law or contrary to the policy of
express law, though not expressly prohibited, or against public policy, or shall for any reason
whatsoever be held invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this Agreement or the
rights of the parties hereto.
10.2. Successors and Assigns. The agreements contained herein shall be binding upon and inure
to the benefit of the permitted successors and assigns of the respective parties hereto.
10.3. Further Assurances. The parties agree to execute such instruments and documents as may
be required by applicable law or that any of the parties reasonably deem necessary or appropriate
to carry out the intent of this Agreement so long as they do not alter the rights and obligations
of the parties under this Agreement.
10.4. Applicable Law; Venue. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Ohio and judicial interpretations thereof to the extent applicable.
In the event of any inconsistency between any terms and conditions
contained in this Agreement and any provisions of law, the terms of this Agreement shall
govern and control except to the extent the applicable provision of law cannot be waived.
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10.5. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement binding on the parties hereto.
10.6. Construction. The captions used herein are intended for convenience of reference only,
and shall not modify or affect in any manner the meaning or interpretation of any of the provisions
of this Agreement. As used herein, the singular shall include the plural, the masculine gender
shall include the feminine and neuter, and the neuter gender shall include the masculine and
feminine, unless the context otherwise requires. The words “hereof,” “herein,” and “hereunder,”
and words of similar import, when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement.
10.7. Force Majeure. If this Agreement requires a Provider or the Operating Partnership to
take any action and any of the following occur: bank holidays, actions of governmental agencies,
acts of God, terrorist acts, financial crises of a nature materially affecting the purchase and
sale of securities or real estate, or other events beyond the reasonable control of such party
(collectively, “Force Majeure Events”), then such party shall have such additional time period to
take such action as is reasonable in light of the applicable Force Majeure Events. However, such
party will not be excused from performing its obligations under this Agreement.
10.8. Third Party Beneficiaries. Except with respect to provisions regarding indemnification
(which are intended to apply to each Provider as an expressed third party beneficiary), the
provisions of this Agreement are not intended to be for the benefit of any creditor or other person
to whom any debts or obligations are owed by, or who may have any claim against, any party hereto.
10.9. Entire Agreement. Except as herein provided, this Agreement constitutes the entire
agreement between the parties relating to the subject mater hereof and supersedes any prior
agreement or understandings between them relating to the subject matter hereof. This Agreement may
not be changed, modified or amended, in whole or in part, except by an instrument in writing signed
by the parties hereto, or their respective successors or assignees.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
| American Signature, Inc., an Ohio corporation: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Schottenstein Realty, L.P., a Delaware limited partnership: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
