EXHIBIT 10.25
SERVICES AGREEMENT
(SOLANA MARRIOTT HOTEL)
This Services Agreement (this "Agreement") is made and entered into
as of June 27, 2003, by and between Xxxxxxx Properties, L.P., a Maryland limited
partnership (the "Company") and Xxxxxxx Partners-Solana Limited Partnership, a
Texas limited partnership ("MP-Solana").
RECITALS
WHEREAS, MP-Solana will require the services of the Company to
perform certain administrative or operational functions for MP-Solana
(collectively, the "Services").
TERMS AND CONDITIONS
NOW, THEREFORE, the Parties hereby agree as follows:
1. DEFINITIONS. The following terms, when used in this Agreement,
shall each have the meaning set forth in this Section 1:
"Appendix A" shall mean Appendix A attached to this Agreement, as
amended from time to time, detailing the Services to be provided by the
Company to MP-Solana.
"Party" or "Parties" shall mean the Company and/or MP-Solana, as
the context requires.
2. EFFECTIVENESS OF AGREEMENT. This Agreement shall be effective as
of the date of the closing of the initial public offering of shares of the
common stock of Xxxxxxx Properties, Inc. (the "Effective Date"), and shall
continue until terminated in writing in accordance with the terms hereof. In the
event that the Effective Date does not occur, this Agreement will have no force
or effect.
3. SERVICES. The Company agrees to provide to MP-Solana the Services
as described in Appendix A, and/or such other services as agreed upon by the
Parties pursuant to this Agreement. Any such Services shall be provided by the
Company in exchange for remuneration equal to the fair market value of such
Services, as agreed upon by the Parties. Unless otherwise indicated on Appendix
A, the fair market value for any Service shall be equal to one hundred and
fifteen percent (115%) of the expenses incurred (including payroll expenses) in
providing such Service.
4. PAYMENTS. On or about the first day of each month, the Company
shall notify (each, a "Monthly Notice") MP-Solana of the total amount due from
MP-Solana with respect to the Services for the then prior month, unless
otherwise agreed upon by the Parties. Such Monthly Notice shall include a list
of each Service and all charges for each Service for the time period covered by
the Monthly Notice. Payment shall be made to the Company by MP-Solana within 10
days after submission of such Monthly Notice; provided, however, if MP-Solana
disagrees with any charge or claims it does not owe payment for any charge or
claim listed on the Monthly Notice, it may withhold such payment if it serves
the Company with written notice of such disagreement within 5 days after receipt
of such Monthly Notice. In any case, MP-Solana must pay the undisputed portion
of the charges within 10 days after receipt of the Monthly Notice to which the
charges relate. Any disagreement over any charge shall be resolved by the
Parties within 10 days after the original due date for such payment hereunder,
or, if no resolution can be reached, submitted to binding arbitration in
accordance with Section 10.
1
5. TERMINATION OF AGREEMENT.
(a) Termination of Agreement. Any Party may terminate this
Agreement, with or without cause, upon 30 days written notice to the other
Party.
(b) Date of Termination. Within 30 days (or such other period
as may be reasonable under the circumstances) after the effective date of
termination of this Agreement, the Company shall submit to MP-Solana a
written statement that contains all outstanding charges due under this
Agreement to the Company from MP-Solana.
(c) Continuation of Payments. To the extent any amounts due
under Section 4 are outstanding after the date of termination of this
Agreement, MP-Solana shall continue to make payments to the Company in
accordance with such Section.
6. AMENDMENTS. The Parties may at any time by written agreement
amend this Agreement, including, without limitation, additions to or deletions
from, or changes to the Services set forth on Appendix A.
7. WAIVERS. No waiver by any Party, whether written or oral, of any
right under or arising from this Agreement given on one occasion shall
constitute a waiver of any other right or any right on any subsequent occasion
and no concession by any Party shall be treated as a variation of this Agreement
unless specifically agreed to in writing.
8. NOTICES. All notices or other communications made pursuant hereto
shall be in writing and shall be deemed received when personally delivered
against receipted copy, or three business days after being mailed by certified
or registered mail, postage prepaid, to the Parties at the following addresses:
The Company: Xxxxxxx Properties, L.P.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
Xxxx Lammas
MP-Solana: Xxxxxxx Partners-Solana Limited Partnership
0 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx III
Xxxx Lammas
9. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of California without regard to the conflict of laws principles
thereof.
10. ARBITRATION. Except as otherwise expressly provided herein, any
disagreement, dispute, controversy or claim arising out of or relating to this
Agreement or the interpretation of this Agreement or the breach, termination or
invalidity thereof shall be settled by final and binding arbitration
administered by JAMS/Endispute in Los Angeles, California in accordance with the
then existing JAMS/Endispute Arbitration Rules and Procedures. In the event of
such an arbitration proceeding, the Parties shall select a mutually acceptable
neutral arbitrator from among the
2
JAMS/Endispute panel of arbitrators. In the event the Parties cannot agree on an
arbitrator, the Administrator of JAMS/Endispute will appoint an arbitrator.
Neither Party nor the arbitrator shall disclose the existence, content, or
results of any arbitration hereunder without the prior written consent of the
other Party. Except as provided herein, the Federal Arbitration Act shall govern
the interpretation, enforcement and all proceedings. The arbitrator shall apply
the substantive law (and the law of remedies, if applicable) of the state of
California, or federal law, or both, as applicable, and the arbitrator is
without jurisdiction to apply any different substantive law. The arbitrator
shall have the authority to entertain a motion to dismiss and/or a motion for
summary judgment by either Party and shall apply the standards governing such
motions under the Federal Rules of Civil Procedure. The arbitrator shall render
an award and a written, reasoned opinion in support thereof. Judgment upon the
award may be entered in any court having jurisdiction thereof. The prevailing
party in any such dispute shall be entitled to recover from the other Party its
reasonable attorneys' fees and costs in connection therewith.
11. NO ASSIGNMENT. Neither Party shall, without the prior written
consent of the other Party (which consent may be withheld arbitrarily), sell,
assign, pledge, hypothecate or transfer all or any part of its interest in this
Agreement voluntarily or permit such a transfer by operation of law; provided,
however, that the foregoing shall not extend to assignments by the Company to
any affiliate of Xxxxxxx Properties, Inc. If any purported transfer of interest
by a Party is not permitted as provided herein, such transfer shall be null and
void and of no effect whatsoever. Except as specifically provided for herein, a
Party's respective rights hereunder may not be transferred, conveyed, or
encumbered without the consent of the other Party and except as so provided, the
covenants, terms, provisions and agreements hereof shall be binding upon and
inure to the benefit of the representatives, successors and assigns of the
respective Parties hereto.
12. INTEGRATION. This Agreement comprises the complete and
integrated agreement of the Parties regarding the subject matter hereof and
supersedes all prior agreements, written or oral, on the subject matter hereof.
13. SEVERABILITY. Every provision of this Agreement is intended to
be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
or legality of the remainder of this Agreement.
[SIGNATURE PAGE FOLLOWS]
3
IN WITNESS WHEREOF, the Parties have executed this Agreement
effective as of the date first above written.
THE "COMPANY"
XXXXXXX PROPERTIES, L.P.
a Maryland limited partnership
By: XXXXXXX PROPERTIES, INC.
a Maryland Corporation
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
_______________________________
Xxxxxxx X. Xxxxxxxxx
President and Co-Chief Executive Officer
"MP-SOLANA"
XXXXXXX PARTNERS-SOLANA LIMITED PARTNERSHIP,
a Texas limited partnership
By: Xxxxxxx Partners-Solana GP Limited Liability Company
a Delaware limited liability company
Its General Partner
By: Xxxxxxx Partners-Solana Business Trust
a Delaware business trust
Its sole member and manager
By: /s/ Xxxxxx X. Xxxxxxx III
-------------------------------
Xxxxxx X. Xxxxxxx III
Managing Trustee
S-1
APPENDIX A
SERVICES
Financial Management
Hotel Management Oversight
Financial Reporting
Financial Analysis
