FIRST AMENDMENT TO SERVICES AGREEMENT
Exhibit
99.5
FIRST
AMENDMENT TO SERVICES AGREEMENT
(Development)
This first amendment (this “Amendment”) to that
certain Services Agreement (the “Agreement”), dated
June 27, 2003, by and between Xxxxxxx Properties, L.P., a Maryland limited
partnership (the “Company”) and Xxxxxxx
Partners Development, Ltd., a California limited partnership (“Development” and,
together with the Company, the “Parties”), is entered
into as of May 8, 2008.
RECITALS
WHEREAS, Development and the Company
desire to amend and restate Appendix A to the Agreement.
TERMS AND
CONDITIONS
NOW, THEREFORE, the Parties hereby
agree as follows:
1. AMENDMENT. Appendix
A to the Agreement is hereby deleted and replaced in its entirety by the
Appendix A attached to this Amendment. The Agreement shall
otherwise remain in full force and effect in its entirety.
2. EFFECTIVENESS OF
AMENDMENT. This Amendment shall be effective as of the date
hereof and shall continue until terminated in writing in accordance with the
terms hereof.
3. AMENDMENTS. The
Parties may at any time by written agreement amend this Amendment.
4. WAIVERS. No
waiver by any Party, whether written or oral, of any right under or arising from
this Amendment 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 Amendment unless specifically agreed to
in writing.
5. 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:
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The
Company:
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Xxxxxxx
Properties, L.P.
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000
Xxxx Xxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxxxxx, XX 00000-0000
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Attention:
Xxxx Xxxxxx
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Xxxx
Lammas
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Development:
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Xxxxxxx
Partners Development, Ltd.
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000
Xxxx Xxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxxxxx, XX 00000-0000
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Attention:
Xxxxxx X. Xxxxxxx III
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Xxxx
Lammas
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6. GOVERNING
LAW. This Amendment shall be governed by the laws of
the
1
State of
California without regard to the conflict of laws principles
thereof.
7. ARBITRATION. Except
as otherwise expressly provided herein, any disagreement, dispute, controversy
or claim arising out of or relating to this amendment or the interpretation of
this amendment 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
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.
8. 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
Amendment 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 amendment hereof shall be binding upon and
inure to the benefit of the representatives, successors and assigns of the
respective Parties hereto.
9. INTEGRATION. The
Agreement as amended by this Amendment 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.
10. SEVERABILITY. Every
provision of this Amendment 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 Amendment.
[SIGNATURE PAGE
FOLLOWS]
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THE
“COMPANY”
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XXXXXXX
PROPERTIES, L.P., a Maryland limited
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partnership
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By:
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XXXXXXX
PROPERTIES, INC.,
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a
Maryland Corporation
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Its
General Partner
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By:
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/s/
XXXXXX X. XXXXXXXXX
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Name:
Xxxxxx X. Xxxxxxxxx
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Title:
Chief Financial Officer
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“DEVELOPMENT”
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XXXXXXX
PARTNERS DEVELOPMENT, LTD.
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a
California limited partnership
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By:
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XXXXXXX
PARTNERS MANAGEMENT
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COMPANY,
LLC
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a
California limited liability company
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Its
General Partner
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XXXXXXX
PARTNERS SCS, INC.
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a
California corporation
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Its
Manager
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By:
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/s/
XXXXXX X. XXXXXXX III
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Xxxxxx
X. Xxxxxxx III
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President
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S-1
SERVICES
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Service
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Remuneration
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Services
to be provided in respect of the second phase of the Water’s Edge
Project: Development and construction services.
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·
Completion payments as follows:
o
$1.00 per rentable square foot of office space paid upon “project
completion” (defined below); and
o
$0.25 per square foot of parking paid upon “project completion”
(defined below).
·
In addition, time spent by Company employees providing Services to
Development pursuant to the Agreement shall be paid for by Development on
an hourly basis pursuant to existing arrangements as in effect from time
to time.
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Services
to be provided in respect of the FBO Office, Terminal, and Hanger at Van
Nuys Airport, Millionaire Project: Development and construction
services
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·
Completion payment as follows:
o
$110,000 for the office space, first hanger, and related site work
paid upon “project completion” (defined below) of this major
phase.
o
$110,000 for the remaining hangers and related office space paid
upon “project completion” (defined below) of this major
phase.
·
In addition, time spent by Company employees providing Services to
Development pursuant to the Agreement shall be paid for by Development on
an hourly basis pursuant to existing arrangements as in effect from time
to time.
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Unless
otherwise agreed, the remuneration set forth above on this Appendix A shall be
the sole remuneration to the Company for the provision of the
Services.
The
Company hereby agrees that it shall make a bonus payment to Xxx Xxxxxxx as a
bonus for his involvement with the above-described projects in the aggregate
amount of the completion payments described above actually received by the
Company; provided,
however, that the Company’s obligation to Development to make any such
payments to Xx. Xxxxxxx shall apply only if Xx. Xxxxxxx continues his employment
with the Company through the completion of the above-described projects (or
major phase, if applicable) and is an employee of the Company at the time any
such completion payments are actually received by the
Company. “Project completion” shall require completion of the project
or major phase, as applicable, substantially within the budget and schedule for
the project or major phase, completion of all tenant improvements under
pre-leases, if any, full settlement with contractors, and city approvals for
occupancy.
Development
acknowledges that Xx. Xxxxxxx will only work on the above-described projects to
the extent that doing so does not impair his ability to fulfill his
responsibilities on Company matters and does not interfere with the fulfillment
of his duties to the Company.
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