MANAGEMENT SERVICES AGREEMENT
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MANAGEMENT SERVICES AGREEMENT, dated as of June 1, 1998, by and between
DVL, Inc., a Delaware corporation ("DVL") and PBD Holdings, L.P., a Delaware
limited partnership (the "Partnership").
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as
of March 4, 1998 (the "Execution Date"), by and among Major Realty
Corporation, a Delaware corporation ("Major Realty"), the Partnership and
Pembroke Acquisition, Inc., a Delaware corporation and a wholly owned
subsidiary of the Partnership ("Acquisition"), Acquisition will merge with
and into Major Realty (the "Merger"), and Major Realty will be the surviving
corporation and a wholly owned subsidiary of the Partnership;
WHEREAS, following the Merger, Major Realty will distribute substantially
all of its assets (the "Major Realty Assets") to the Partnership and it is
the Partnership's intention to sell the Major Realty Assets;
WHEREAS, in connection with the sale of the Major Realty Assets, the
Partnership has entered into that certain Management Services Agreement,
dated as of May 15, 1998, with Pemmil Management, Inc., a Delaware
corporation ("Pemmil"), pursuant to which Pemmil has agreed to provide
certain management, financial and consulting services to the Partnership;
WHEREAS, the Agreement of Limited Partnership of the Partnership (the
"Partnership Agreement") permits the Partnership to contract for the
provision of certain services;
WHEREAS, the Partnership desires to retain DVL, and DVL has agreed to
provide certain management, financial and consulting services to the
Partnership.
NOW THEREFORE, in consideration of the mutual promises and covenants set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. RETENTION. The Partnership hereby agrees to retain DVL, and DVL
hereby agrees to serve, as consultant to the Partnership upon the terms and
subject to the conditions set forth in this Agreement.
2. TERM. The term of this Agreement (the "Term") shall commence on the
date first above written and shall continue until the date on which all Major
Realty Assets are sold, unless terminated at any time by DVL or the
Partnership with or without cause or reason, upon not less than thirty (30)
days prior written notice to the other party.
3. COMPENSATION. As compensation for the provision by DVL of
consulting services contemplated hereby, the Partnership shall pay to DVL an
aggregate fee equal to (a) Five Thousand Dollars ($5,000) per month during
the Term plus (b) after the Partners (as such term is defined in the
Partnership Agreement) have earned a 20% internal rate of return, compounded
quarterly, on their Capital Contributions (as such term is defined in the
Partnership Agreement), an amount in cash equal to 25% of the Profits (as
such term is defined in the Partnership Agreement), if any, distributed to
the Partners pursuant to the terms of the Partnership Agreement. The
Partnership shall also reimburse DVL for all reasonable out-of-pocket
expenses (other than attorneys fees) actually incurred by DVL in connection
with the performance of its duties hereunder. Except as provided pursuant to
this Section 3, DVL shall have no further rights to compensation in respect
of its engagement under this Agreement.
4. DUTIES. During the Term, DVL shall render financial, consulting and
other administrative services to Pemmil or the Partnership, which shall
generally include (i) assisting Pemmil in managing the affairs of the
Partnership and (ii) assisting Pemmil in the sale of the Major Realty Assets.
Specifically, without limitation, DVL shall be required to assist Pemmil, the
Partnership and PBD Holdings, Inc., a Delaware corporation and the
Partnership's general partner ("PBD Holdings") in:
(a) performing accounting, administrative and management services;
(b) making and entering into such contracts on behalf of the
Partnership as Pemmil or PBD Holdings deems reasonably
necessary for the efficient conduct and operation of the
business of the Partnership;
(c) arranging for and coordinating the services of other
professionals including, attorneys, accountants,
experts, consultants, appraisers, brokers, finders,
or such other experts and advisors as Pemmil may deem
necessary or advisable, and determining their com-
pensation and other terms of employment or hiring;
(d) taking any and all action on behalf of the Partnership
as may be necessary in order to meet the obligations
or exercise the rights of the Partnership; and
(e) providing such other services as Pemmil or PBD Holdings
may deem necessary, incidental or appropriate in order
to perform the services described in clauses (a) through
(d) above.
DVL shall devote such time, skill, labor and attention to the performance of
such service as may be necessary or desirable to render the prompt and
effective performance of its duties hereunder. The parties hereto agree that
DVL is not precluded from obtaining or pursuing other consulting or business
opportunities on a full-time basis. DVL may render all consulting services
hereunder from such locations as it may reasonable determine.
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5. INDEMNIFICATION. The Partnership shall indemnify and hold DVL
harmless from any and all claims, demands, actions, suits, reckonings,
judgments, and all costs and expenses thereof, including reasonable
attorneys' fees arising from or relating to the performance by DVL of its
duties hereunder, unless it shall finally be adjudged by a court of competent
jurisdiction that DVL shall have acted in bad faith or with gross negligence.
6. ENTIRE AGREEMENT: AMENDMENT. This Agreement constitutes the entire
agreement between DVL and the Partnership with respect to the subject matter
hereof. No agreements or representations, written or oral, express or
implied, with respect to the subject matter hereof shall be enforeceable
against either party unless expressly set forth in this Agreement. This
Agreement may not be amended orally, but only by an instrument in writing
signed by each of parties thereto.
7. NO WAIVER. Any waiver by either party or a breach of this Agreement
shall not operate as or be construed to be a waiver of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to
any term of this Agreement on one or more occasions shall be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
8. HEADINGS. Section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAW THAT
MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF LAW.
10. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which when executed shall be deemed an original, and all of which together
shall be deemed to constitute one and the same instrument.
11. SEVERABILITY. The unenforceability of any provision or provisions
of this Agreement, which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
PBD HOLDINGS, L.P.
By: /s/ Lawrence J. Cohen, President
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Name: Lawrence J. Cohen
Title: President
DVL, INC.
By: /s/ Daniel Baldwin
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Name: Daniel Baldwin
Title: Vice President
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