Exhibit 10.40
FORM OF
SERVICES AGREEMENT
This Services Agreement (this "Agreement") is made and entered into
as of ______________, 2003, by and between Xxxxxxx Properties, L.P., a Maryland
limited partnership (the "Company") and _____________ ("Option/Excluded
Entity")(1).
RECITALS
WHEREAS, Option/Excluded Entity will require the services of the
Company to perform certain administrative or operational functions for
Option/Excluded Entity (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 Option/Excluded Entity.
"Party" or "Parties" shall mean the Company and/or
Option/Excluded Entity, 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 Option/Excluded Entity
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.
4. PAYMENTS. On or about the first day of each month, the Company
shall notify (each, a "Monthly Notice") Option/Excluded Entity of the total
amount due from Option/Excluded Entity 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 Option/Excluded Entity within 10 days after submission of such Monthly
Notice; provided, however, if Option/Excluded Entity 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, Option/Excluded Entity
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(1) The option and excluded properties for which this Agreement will be in
effect are (i) 17th & Grand Garage, (ii) 000 Xxxxx Xxxxx, (xxx) Playa
Vista-Water's Edge, and (iv) Solana - the Solana Marriott Hotel
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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.
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 Option/Excluded
Entity a written statement that contains all outstanding charges due under
this Agreement to the Company from Option/Excluded Entity.
(c) Continuation of Payments. To the extent any amounts due
under Section 4 are outstanding after the date of termination of this
Agreement, Option/Excluded Entity 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
Option/Excluded Entity: Xxxxxxx Partners Option/Excluded
Entity, Ltd. Address
Address
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
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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.
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]
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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: _______________________________
Name:
Title:
"OPTION/EXCLUDED ENTITY"
[Signature Block]
S-1
APPENDIX A
SERVICES
