1
EXHIBIT 10.26
ASSET MANAGEMENT AGREEMENT
This Asset Management Agreement (the "Agreement") is made and
entered into as of the 29th day of February 1996, by and between C.R.I., Inc.,
a Delaware corporation ("CRI") and NHP Incorporated, a Delaware corporation
("NHP").
W I T N E S S E T H:
WHEREAS, CRI was the sponsor and remains the managing general
partner of numerous public and private offerings of interests in limited
partnerships (the "Investment Partnerships") listed on Schedule I attached
hereto and made a part hereof, as amended from time to time, which acquired
interests in limited partnerships (the "Local Partnerships") which own and
operate the apartment complexes for low- and moderate-income tenants listed on
Schedule I, as amended from time to time, all of which receive assistance in
the form of either (i) Section 221(d)(3) mortgages with below market interest
rates; (ii) mortgages under Section 236, (iii) mortgages under Section
221(d)(4); (iv) mortgages from state housing agencies; and/or (v) Section 8
subsidies with respect to the apartment units in the complex (the "Apartment
Complexes"); and
WHEREAS, CRI wishes to contract with NHP to provide certain
asset management services and administrative oversight with respect to the
operations of the Local Partnerships and the management of the Apartment
Complexes.
NOW, THEREFORE, in consideration of the premises and for good
and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, and subject to the terms, conditions, representations,
warranties and covenants set forth herein, the parties agree as follows:
1. NHP's Services. NHP hereby agrees to provide asset
management services to CRI, and to perform the duties and obligations set forth
below:
(a) Make recommendations to CRI as to matters
requiring the consent of CRI and/or the Investment Partnerships pursuant to the
agreements of limited partnership that govern the operation of the Local
Partnerships (the "Local Partnership Agreements") and provide support for the
implementation of the decisions made by CRI and/or the Investment Partnerships
with respect to such matters, including, without limitation:
(i) sale or refinancing of an Apartment
Complex or transfer of interests in a Local Partnership, including
verifications of the Local Partnerships' determinations of net cash flow and of
sale, refinancing or liquidation proceeds;
(ii) withdrawal and/or admission of a
general partner to a Local Partnership;
2
(iii) undertaking financing by a Local
Partnership, or a general partner advance to a Local Partnership, which (a) is
in excess of $25,000 or (b) is secured by a lien on the property of the Local
Partnership;
(iv) construction of new or replacement
capital improvements in excess of limits established by a Local Partnership
Agreement, except to the extent such construction was contemplated by a
CRI-approved budget;
(v) replacement, extension and/or removal of
a management agent;
(vi) amendment of a Local Partnership
Agreement other than routine amendments, such as those to remove a dissolved,
decreased or bankrupt general partner;
(vii) events as to which NHP has knowledge
would cause a Local Partnership to be terminated for federal income tax
purposes;
(viii) the appropriateness and adequacy of
insurance coverage for each insurable interest in accordance with prior
procedures, and alternative arrangements therefor if necessary.
(b) Conduct annual reviews of major contracts
(that is, contracts requiring expenditures in excess of $25,000 annually) not
otherwise budgeted entered into by the Local Partnerships.
(c) Review budgets submitted by the general
partners of the Local Partnerships (the "Local General Partners") or the
managing agents for comparison of actual income, costs and expenses to the
projections theretofore furnished, analyze variances from such projections, and
advise CRI with respect thereto, including recommendations for changes or
improvements.
(d) Review monthly operating reports ("MORs"),
balance sheets and other materials submitted by the Local General Partners or
the managing agents, including review and analysis of receipts and expenditures
and comparison of actual and budgeted amounts, and recommend changes or
improvements. In the case of Investment Partnerships whose interests were
offered in a public offering ("Public Partnerships"), the MORs shall be
reviewed within twenty (20) business days of receipt from the Local General
Partner (it being understood that NHP will use reasonable
- 2 -
3
efforts to obtain the same from the Local General Partners as expeditiously as
possible) each month. For the remaining Investment Partnerships, the MORs
shall be reviewed at least quarterly within twenty (20) business days of
receipt of all three MORs for such quarter from the Local General Partner (it
being understood that NHP will use reasonable efforts to obtain the same from
the Local General Partners as expeditiously as possible).
(e) Determine the appropriateness of rent
increases and, if necessary, oversee the efforts of the management agent in
securing such rent increase or appealing the denial of the same .
(f) Approve deposits and withdrawals from reserve
accounts when needed.
(g) Review annual surplus cash distributions from
the Local Partnerships and calculations of fees that may be due pursuant to the
terms of the Local Partnership Agreements and take reasonable steps to ensure
that such fees are paid in a timely fashion.
(h) Use reasonable efforts to obtain from the
Local Partnerships on an expeditious basis financial statements, reports,
budgets, tax returns and books and records regarding the Local Partnerships and
such other information and documentation as is required to be provided to the
Investment Partnerships pursuant to the terms of the partnership agreements
that govern the operations of the Investment Partnerships (the "Investment
Partnership Agreements"). Review the Local Partnerships' audited financial
statements upon receipt from the Local Partnership (no later than June 30 of
each year) and notify CRI upon such review of any material non-compliance or
going concern issues. Confirm that the Local Partnerships have timely remitted
audited financial statements to their respective lenders and notify CRI upon
learning of any non-compliance.
(i) Notify CRI within three (3) business days if
any of the following come to the attention of the assigned NHP asset manager:
(i) any actual, proposed or threatened
sale or transfer of title (including condemnation) of an Apartment Complex or
an Investment Partnership's interest in a Local Partnership;
(ii) any material damage or material lack
of repair, or any material deterioration or material waste suffered or
permitted with respect to an Apartment Complex;
(iii) any abandonment of any Apartment
Complex or material portion thereof;
(iv) any event, occurrence or condition
which NHP knows would constitute a violation of any material provision of a
Local Partnership Agreement, Regulatory Agreement, Property Management
Agreement or loan document or other document that
- 3 -
4
governs the ownership, operation or management of an Apartment Complex or a
Local Partnership;
(v) any material substandard performance
of the Apartment Complexes, managing agents or Local General Partners; and/or
(vi) issuance by a Federal or state
housing agency of a management agent and/or physical inspection report
indicating below satisfactory performance.
(j) Perform site visits to, and meet with the
managers of, the Apartment Complexes, to review operating performance, leasing
activity, tenant issues, employee issues, Regulatory Agreement compliance, and
any proposed capital improvements or major expenditures, such site visits to
occur with such frequency as reasonably determined necessary by CRI. Prepare a
report of such visits on a form to be mutually approved by CRI and NHP, and
submit to CRI within twenty (20) business days any such reports showing
material substandard performance.
(k) Locate and assist CRI in retaining
independent consultants, advisors and experts required to perform specialized
services for the Local Partnership(s), such as auditing and accounting services
(it being understood and agreed that NHP shall not be authorized to retain any
such consultants, advisors and experts, and that all such engagements shall be
made by CRI).
(l) Review all correspondence and materials
submitted to NHP for its review prior to the distribution to the limited
partners of the Investment Partnerships, and cooperate in the preparation
thereof by providing at CRI's request information regarding the Apartment
Complexes and Local Partnerships.
(m) Use reasonable efforts to obtain from the
Local Partnerships and expeditiously distribute to the respective Investment
Partnerships insurance certificates for all insurance policies in effect for
the Apartment Complexes and/or the Local Partnerships.
1A. Disposition Services. NHP shall design and
implement, over a reasonable period of time, as mutually agreed upon, a program
or series of programs, each of which may include one or more Apartment
Complexes, which program(s) shall be subject to CRI's approval, for the
refinancing or sale of the Apartment Complexes or the sale of the Investment
Partnerships' partnership interests in the Local Partnerships (each a
"Disposition"). NHP shall seek purchasers and/or refinancing lenders and
present proposals to CRI for approval. NHP shall thereafter work to close such
Dispositions, including obtaining all necessary governmental approvals.
- 4 -
5
2. Term. The term of this Agreement shall be for three
(3) years, commencing May 1, 1996 (the "Commencement Date") and ending April
30, 1999, unless terminated in accordance with Section 13 hereof. Thereafter,
the term shall continue on a month-to-month basis until terminated by either
party pursuant to Section 13 hereof.
3. Fees. For the provision of the services described in
Sections 1 and 1A of this Agreement, CRI shall pay NHP the following fees:
(a) Set-up Fee. CRI has paid NHP a one-time non-
refundable set-up fee of $150,000 upon execution of this Agreement. This fee
shall not be offset against any other fees or amounts payable hereunder.
(b) Base Fee. $500,000 per annum payable in
equal monthly installments of $41,666.67 on the first day of each month (except
that if such day falls on a weekend or holiday, payment shall be made on the
preceding business day) commencing on the Commencement Date.
(c) Disposition Fee.
(i) Minimum Capital Events Fee. CRI
shall pay NHP an annual Capital Events Fee of $160,000, paid in arrears in four
equal quarterly installments commencing August 1, 1996. Upon termination of
this Agreement, CRI shall pay to NHP any accrued but unpaid portion of the
Capital Events Fee for the quarter in which the termination is effective,
subject to reduction pursuant to clause (iii) below.
(ii) Disposition Fee. For each
Disposition which is closed, NHP shall receive a Disposition Fee equal to 2% of
the gross sales price, in the case of a sale of an Apartment Complex or the
sale of the partnership interests in a Local Partnership or another partnership
invested in, directly or indirectly, by an Investment Partnership and which,
directly or indirectly, is a partner in the Local Partnership, or 2% of the
principal amount of a new mortgage in the case of a refinancing (or 2% of the
principal amount of supplemental financing and the outstanding balance of the
existing financing if such is restructured in connection with the supplemental
financing). The Disposition Fee shall be paid at closing of the Disposition
from sales or refinancing proceeds. CRI shall guarantee payment of such
Disposition Fee no later than 30 days after closing. This guaranty shall
require CRI to pay the Disposition Fee even if the disposition proceeds are
non-cash or if they have not been released to the Investment Partnership
because of a dispute amongst the partners of the respective Local Partnership.
The termination of this Agreement shall not affect
- 5 -
6
the obligations of the Investment Partnerships or CRI hereunder to pay NHP any
accrued but unpaid portions of the Disposition Fee.
(iii) Notwithstanding subparagraph (c)(ii)
above, at such time during each twelve-month period commencing on the
Commencement Date, NHP has collected Disposition Fees equal to $160,000 in the
aggregate, additional Disposition Fees shall be distributed as follows: a) NHP
shall receive fifty cents of each of the next $320,000 received, with the other
fifty cents of each $320,000 payable to CRI as a credit against the $160,000
Capital Events Fee for such twelve-month period; and b) NHP shall receive 100%
of all further Disposition Fees earned.
(iv) In the event CRI terminates the
Agreement without cause, and NHP, prior to the termination notice, has
commenced work on a Disposition, NHP shall be entitled to its Disposition Fee
if such transaction closes within nine months following the termination date of
this Agreement. For purposes hereof, NHP will be deemed to have commenced work
on a Disposition if it has presented the proposal from the eventual purchaser
or assignee or successor of such purchaser, or refinancing lender or assignee
or successor of such lender, to CRI and CRI proceeds with the transaction on
substantially the terms set forth in NHP's proposal whether or not NHP is
involved.
4. Reporting Requirements.
(a) NHP shall report to CRI monthly as to the
status of the services which it is providing pursuant to Section 1. These
reports shall include, beginning July 1, 1996, and continuing thereafter on the
first day of each month, a "Key Issues Report" in a form mutually acceptable to
CRI and NHP outlining any major issues regarding any of the Apartment Complexes
or Local Partnerships, including but not limited to capital improvements
costing in the aggregate more than $50,000, material defaults on mortgage
obligations, terminations of rental subsidy and management agent review and/or
physical inspection reports from a Federal or state housing agency indicating
below satisfactory performance.
(b) Beginning July 15, 1996, NHP shall submit to
CRI on the 15th day of each month a status report, in a form mutually
acceptable to CRI and NHP, on all Dispositions on which NHP is working.
(c) Beginning July 1, 1996, and each quarter
thereafter, NHP shall meet with CRI (or participate by telephone conference) to
discuss issues, the disclosure of which may be required in the Management
Discussion and Analysis Section of required SEC reports, regarding the
Apartment Complexes invested in by the Public Partnerships.
- 6 -
7
5. Certain Actions. Notwithstanding anything to the
contrary contained herein, CRI shall have the right to approve or disapprove
any strategic decision made by NHP under this Agreement. Further, NHP agrees
that it will not take any action under any Local Partnership Agreement or under
any Local Partnership loan document without the prior written consent of CRI
(other than to request information to which CRI is entitled under the relevant
agreement); provided, however, that NHP shall be permitted to take such actions
which are of a routine nature without the consent of CRI.
6. Records. NHP shall maintain at its office all
records with respect to the asset management services it is providing under
this Agreement and shall, upon receipt of reasonable notice, provide CRI with
such access during business hours to the records as CRI may require.
Notwithstanding the foregoing, NHP agrees to deliver promptly to CRI all
original MORs and such other documents as CRI requests. The parties agree that
all such records are the property of CRI and, upon termination of this
Agreement, whether by expiration of its term or otherwise, NHP shall turn over
to CRI all of its records and files, and shall deliver to CRI all property and
documents of CRI, the Investment Partnerships or the Local Partnerships then in
the custody of NHP, whether such documents are originals or copies. CRI will
endeavor to provide the following documents to NHP prior to the Commencement
Date: Local Partnership partnership agreements and amendments; loan documents
and regulatory agreements for the Apartment Complexes; Property Management
Agreements; list of limited partner tax basis (except for the Public
Partnerships); Local Partnership tax returns for 1995 and financial statements
for 1994 and 1995; Apartment Complex operating budgets for 1995 and 1996; and
most recent site visit reports. CRI acknowledges that NHP will not be able to
commence performance of its obligations hereunder for an Investment Partnership
until it has received substantially all of these documents for such Investment
Partnership.
7. Standard of Care. NHP shall use reasonable efforts
in undertaking its obligations hereunder, and shall employ the standards and
practices customarily used by a reasonably prudent provider of such services.
NHP shall not be liable to CRI for any claims or damages in the absence of
NHP's gross negligence, fraud or willful misconduct.
8. NHP's Financial Status. NHP shall immediately notify
CRI of any material changes in its asset management group which are reasonably
likely to occur. NHP shall immediately notify CRI of any voluntary or
involuntary proceedings that might result in bankruptcy, reorganization,
dissolution, liquidation, the appointment of a trustee or receiver, an
assignment for the benefit of creditors of NHP or NHP having its activities
restricted in any
- 7 -
8
manner related to its performance of material obligations hereunder by any
governmental agency.
9. Representations and Warranties of NHP. NHP hereby
represents and warrants the following:
(a) NHP is duly organized, validly existing and
in good standing under the laws of Delaware, with full power, right and
authority to enter into this Agreement and the transactions contemplated
hereby.
(b) All proceedings legally required to be taken
by NHP in connection with the authorization and execution of this Agreement and
the consummation of the transactions contemplated hereby and related hereto,
and all such approvals, authorizations, consents, licenses or other orders of
local, state or federal regulatory agencies, public boards or bodies, if any,
as are necessary and appropriate with respect to all or any of such matters,
have been taken or obtained or shall have been taken or obtained prior to
engaging in the transactions contemplated hereby.
(c) This Agreement has been duly authorized,
executed and delivered by NHP and when duly authorized, executed and delivered
by CRI, will constitute the legal, valid and binding obligation of NHP
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, or other laws or equitable
principles affecting creditors' rights generally.
(d) The execution and delivery of this Agreement
and compliance with its terms, conditions and provisions will not conflict
with, constitute a default under or result in a breach of any of the terms,
conditions or provisions of the organizational documents of NHP, or any
agreement or instrument to which it is a party or by which it is bound, or any
administrative decree or order or judgment to which it is subject, or require
the consent of any third person.
(e) NHP is not in default with respect to any
order or decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency that would adversely affect NHP's
ability to perform its obligations hereunder.
9A. Representations and Warranties of CRI. CRI hereby
represents and warrants the following:
(a) CRI is duly organized, validly existing and
in good standing under the laws of Delaware, with full power, right and
authority to enter into this Agreement and the transactions contemplated
hereby.
- 8 -
9
(b) All proceedings legally required to be taken
by CRI in connection with the authorization and execution of this Agreement and
the consummation of the transactions contemplated hereby and related hereto,
and all such approvals, authorizations, consents, licenses or other orders of
local, state or federal regulatory agencies, public boards or bodies, if any,
as are necessary and appropriate with respect to all or any of such matters,
have been taken or obtained or shall have been taken or obtained prior to
engaging in the transactions contemplated hereby.
(c) This Agreement has been duly authorized,
executed and delivered by CRI and when duly authorized, executed and delivered
by NHP, will constitute the legal, valid and binding obligation of CRI
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, or other laws or equitable
principles affecting creditors' rights generally.
(d) The execution and delivery of this Agreement
and compliance with its terms, conditions and provisions will not conflict
with, constitute a default under or result in a breach of any of the terms,
conditions or provisions of the organizational documents of CRI, or any
agreement or instrument to which it is a party or by which it is bound, or any
administrative decree or order or judgment to which it is subject, or require
the consent of any third person.
(e) CRI is not in default with respect to any
order or decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency that would adversely affect CRI's
ability to perform its obligations hereunder.
Notwithstanding the foregoing representations and warranties of CRI, NHP is
aware that Martin C. Schwartzberg has claimed to be the managing general
partner, in place of CRI, of certain of the Investment Partnerships listed on
Schedule I.
10. Expense Reimbursement. The respective Investment
Partnership shall reimburse NHP for the cost and expense of all budgeted or
pre-approved third party contractors (such as attorneys, appraisers and
engineers) and NHP's reasonable out-of-pocket costs and expenses (such as
travel, long distance telephone facsimile, overnight courier charges, postage,
etc.). Such costs and expenses shall not, however, include all or any part of
NHP's overhead (e.g., the salaries and other compensation paid by NHP to its
officers and employees, rentals for office space or the cost of routine
materials, equipment and supplies utilized by NHP). Any non-routine costs and
expenses incurred in connection with a Disposition shall be subject to CRI's
prior approval. NHP shall provide to CRI, for its approval, a budget for each
proposed
- 9 -
10
Disposition, specifying anticipated costs and expenses. NHP shall submit
expense reimbursement forms, approved by CRI, on the 15th of each month for the
immediately preceding month. To the extent the Investment Partnership has
funds available to pay such invoices, CRI agrees to cause it to do so. In the
event the Investment Partnership does not have sufficient funds available to
reimburse NHP for its expenses, CRI agrees to immediately lend the Investment
Partnership sufficient funds to reimburse NHP. Notwithstanding anything to the
contrary contained herein, at NHP's request CRI shall pay directly to the
respective third party any invoice or billing exceeding $2,000.
11. NHP as Independent Contractor. In the performance of
services hereunder, NHP is acting as an independent contractor for its own
account and without authority, express or implied, to act for or on behalf of
CRI or the Investment Partnerships in any capacity other than that of an
independent contractor, except as expressly set forth in this Agreement or as
may from time to time be authorized by CRI or an Investment Partnership in
writing. Nothing herein shall be deemed to make NHP, or any of its employees,
an employee of CRI or of any Investment Partnership, nor shall anything herein
be deemed to make NHP and CRI or an Investment Partnership partners or joint
venturers. NHP shall not be authorized or empowered to execute any document on
behalf of CRI or an Investment Partnership or to take any action on behalf of
CRI or an Investment Partnership, except as expressly set forth in this
Agreement or as may from time to time be authorized by CRI or an Investment
Partnership in writing.
12. Insurance and Fidelity Bonds. NHP agrees that it
shall maintain errors and omissions insurance and fidelity bonds in the amounts
presently in force, which CRI hereby consents to.
13. Termination.
(a) CRI may terminate this Agreement upon sixty
(60) days' notice for a violation of any provision hereof which violation has a
material adverse effect on CRI; provided that, if such violation is capable of
cure, CRI shall give NHP sixty (60) days' written notice of such violation with
an opportunity to cure the same. In the event such violation cannot reasonably
be cured within sixty (60) days, then, provided NHP commences cure promptly
after notice and diligently pursues cure thereafter, NHP shall have such
additional time as is reasonably required, not to exceed an additional ninety
(90) days, to cure such violation.
(b) CRI may terminate this Agreement immediately
upon the occurrence of any of the following:
(i) NHP's fraud, gross negligence, or
criminal misconduct in connection with its duties hereunder;
- 10 -
11
(ii) NHP's business ceases to involve
management of subsidized housing;
(iii) NHP's bankruptcy, reorganization,
dissolution, liquidation, the appointment of a trustee or receiver, or an
assignment for the benefit of creditors.
(c) CRI may terminate this Agreement without
cause effective any time during the Term on or after the first anniversary of
the Commencement Date upon ninety (90) days' written notice and, in the case of
a termination effective prior to the end of the three-year period commencing on
the Commencement Date, the payment of $200,000.
(d) NHP may terminate this Agreement without
cause upon ninety (90) days' written notice to CRI.
(e) NHP may terminate this Agreement upon thirty
(30) days notice for a violation by CRI of any provision hereof, which, in the
case of a non-monetary default, has a material adverse effect on NHP; provided
that, in the case of a failure to timely pay any fees or amounts payable
hereunder, NHP shall give CRI five (5) business days' written notice of such
violation with an opportunity to cure the same, and in the case of any other
violation which is capable of cure, NHP shall give CRI sixty (60) days' written
notice of such violation with an opportunity to cure the same. In the event
such non-monetary violation cannot reasonably be cured within sixty (60) days,
then, provided CRI commences cure promptly after notice and diligently pursues
cure thereafter, CRI shall have such additional time as is reasonably required,
not to exceed an additional ninety (90) days, to cure such violation.
(f) Termination of this Agreement by either party
pursuant to any provision hereof shall not release either party from any
liability on its part that arises prior to termination, except if, and to the
extent that, either party expressly releases the other in writing from such
liability.
15. Indemnities.
(a) NHP shall indemnify CRI and the Investment
Partnerships and hold them harmless from and against any and all losses,
penalties, fines, forfeitures, damages, claims, causes of action or expenses,
including reasonable attorneys' fees and costs, that any of them may sustain or
incur as a result of (i) any action or inaction resulting from NHP's fraud,
gross negligence or willful misconduct; or (ii) the failure of NHP to have the
legal authority referred to in Section 9(c) hereof to engage in the activities
covered by this Agreement.
- 11 -
12
(b) CRI shall indemnify NHP and its affiliates
and hold them harmless from and against any and all losses, penalties, fines,
forfeitures, damages, claims, causes of action or expenses, including
reasonable attorneys' fees and costs, that (i) any of them may sustain or incur
as a result of any action or inaction resulting from CRI's fraud, gross
negligence or willful misconduct or the proper performance by NHP of its
obligations hereunder or (ii) arising out of or incurred in connection with any
claim by Capital Management Strategies, Inc. or its employees or independent
contractors, Martin C. Schwartzberg or any partner of any Investment
Partnership or Local Partnership in any way related to this Agreement.
(c) If any action shall be brought against either
party based upon any of the matters for which such party (the "Indemnitee") is
indemnified hereunder, Indemnitee shall notify the other party (the
"Indemnitor") in writing thereof and Indemnitor shall promptly assume the
defense thereof, including, without limitation, the employment of counsel
acceptable to Indemnitee (the firm of Arent, Fox, Kintner, Plotkin & Kahn is
acceptable to both parties and CRI hereby agrees to waive any conflict of
interest as to NHP's use of such firm pursuant to this subsection (c)) and the
negotiation of any settlement; provided, however, that any failure of
Indemnitee to notify Indemnitor of such matter shall not impair or reduce the
obligations of Indemnitor hereunder. Indemnitee shall have the right, at the
expense of Indemnitor to employ separate counsel in any such action and to
participate in the defense thereof. In the event Indemnitor shall fail to
discharge or undertake to defend Indemnitee against any claim, loss or
liability for which Indemnitee is indemnified hereunder, Indemnitee may, at its
sole option and election, defend or settle such claim, loss or liability. The
liability of Indemnitor to Indemnitee hereunder shall be conclusively
established by such settlement, provided such settlement is made in good faith,
the amount of such liability to include both the settlement consideration and
the costs and expenses, including, without limitation, attorneys' fees and
disbursements, incurred by Indemnitor in effecting such settlement. In such
event, Indemnitor shall pay the same as hereinafter provided. Indemnitee's
good faith in any such settlement shall be conclusively established if the
settlement is made on the advice of independent legal counsel for Indemnitee.
(d) Indemnitor shall not, without the prior
written consent of Indemnitee: (i) settle or compromise any action, suit,
proceeding or claim or consent to the entry of any judgment that does not
include as an unconditional term thereof the delivery by the claimant or
plaintiff to Indemnitee of a full and complete written release of Indemnitee
(in form, scope and substance satisfactory to Indemnitee in its sole
discretion) from all liability in respect of such action, suit, proceeding or
- 12 -
13
claim and a dismissal with prejudice of such action, suit, proceeding or
claims; or (ii) settle or compromise any action, suit, proceeding or claim in
any manner that may adversely affect Indemnitee or obligate Indemnitee to pay
any sum or perform any obligation.
(e) All costs and expenses incurred by Indemnitee
for which it is to be indemnified by Indemnitor ("Costs") shall be immediately
reimbursable to Indemnitee when and as incurred and, in the event of any
litigation, claim or other proceeding, without any requirement of waiting for
the ultimate outcome of such litigation, claim or other proceeding, and
Indemnitor shall pay to Indemnitee any and all Costs within fifteen (15) days
after written notice from Indemnitee itemizing the amounts thereof incurred to
the date of such notice. In addition to any other remedy available for the
failure of Indemnitor to periodically pay such Costs, such Costs, if not paid
within said fifteen-day period, shall bear interest at the rate of fifteen
percent (15%) per annum.
16. Assignment of Agreement. This Agreement shall not be
assigned, and the obligations hereunder shall not be subcontracted, by NHP or
its successors, including the surviving entity following a merger or
consolidation of NHP, without the prior written consent of CRI.
Notwithstanding the foregoing, NHP may assign this Agreement to a wholly-owned
subsidiary of NHP upon notice to CRI. This Agreement shall inure to the benefit
of the parties hereto and their respective successors or permitted assigns.
17. Confidentiality. NHP agrees that all information
concerning the Local Partnerships, the Apartment Complexes and the Investment
Partnerships shall be kept strictly confidential. Notwithstanding the
foregoing, NHP shall have the right to disclose the existence of this Agreement
to the extent necessary to perform its functions hereunder. NHP further agrees
that all information of any nature obtained from CRI, including but not limited
to past, present or future investments, sales and other business activities of
CRI and/or any affiliated company, shall be kept strictly confidential, shall
not be disclosed to third parties, and shall not be used for any purpose other
than to assist NHP in the performance of services provided pursuant to this
Agreement, without the prior written approval of CRI. Notwithstanding the
foregoing, NHP shall have the right, upon reasonable prior notice to CRI, to
disclose only so much information as it is legally required to report because
of its status as a public corporation. Further, NHP agrees not to contact
directly or indirectly any of the investors in any of the Investment
Partnerships in connection with any matter relating to the Investment
Partnerships, the Local Partnerships or provision of the services described
hereunder without the written consent of CRI, including, but not limited to,
any communication for the purpose of taking any action detrimental to the
interests of CRI. Notwithstanding the foregoing, NHP shall have the right to
include property performance data regarding the Apartment Complexes in NHP's
proprietary property performance data
- 13 -
14
base (the "NHP Data Base"), to use such data for analysis purposes, and include
such data in any disclosure to third parties made by NHP from the NHP Data
Base; provided, however, the identity of an Apartment Complex shall not be
disclosed along with such property's performance data.
18. No Waiver. No act or omission by any party shall be
deemed to be a waiver of any of its rights hereunder in the absence of an
express written statement to that effect signed by the party waiving the right.
The waiver by any party of any breach of this Agreement shall not operate or be
construed to be a waiver of any subsequent breach.
19. Notices. Any notice, communication, request,
instruction or other document required or permitted hereunder shall be given in
writing in person or by certified mail, return receipt requested, postage
prepaid, or by prepaid overnight courier service, or delivered, as follows:
C.R.I., Inc.
11200 Rockville Pike
Rockville, Maryland 20852
Attn: H. William Willoughby, President
With a copy to the Office of General Counsel
at the same address.
NHP Incorporated
1225 Eye Street, N.W., Suite 601
Washington, DC 20005-3945
Attn: Linda Brower
With a copy to Joel F. Bonder, Esquire at the
same address and also to:
Tucker, Flyer & Lewis
1615 L Street, N.W., Suite 400
Washington, DC 20036-5610
Attn: Stefan F. Tucker, Esquire
20. Arbitration. Any dispute arising hereunder between
the parties shall be determined by arbitration, which arbitration shall be in
accordance with the Commercial Arbitration Rules then in effect of the American
Arbitration Association by one arbitrator in Washington, D.C., and judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The decision and award of the arbitrator shall be in
writing, shall be final and conclusive on the parties, and counterpart copies
thereof shall be delivered to each of the parties. In rendering such decision
and awards, the arbitrator shall not add to, subtract from or otherwise modify
the provisions of this Agreement. All
- 14 -
15
direct and reasonable costs of the arbitration proceeding, including
compensation of the arbitrator but excluding any compensation paid to counsel,
agents, employees, and witnesses of either party, shall be borne equally by the
parties or as the arbitrator shall determine.
21. Non-Exclusive Agreement. CRI and NHP agree that this
is a non-exclusive Agreement and NHP shall have the right to perform asset
management services identical or similar to those described in Sections 1 and
1A hereof for parties other than CRI. Further, CRI and NHP acknowledge that
NHP may have other business interests and may engage in other activities
similar or in addition to those related to the activities to be performed for
CRI under this Agreement.
22. Reduction in Number of Investment Partnerships. The
parties acknowledge that Martin C. Schwartzberg has undertaken an attempt to
replace CRI as the managing general partner of some of the Investment
Partnerships. Each Investment Partnership as to which he succeeds or has
succeeded in this attempt shall not be subject to this Agreement. Any
reduction in the number of Investment Partnerships subject to this Agreement,
whether pursuant to Schwartzberg's takeover efforts or otherwise, will not
reduce the fees payable to NHP pursuant to Sections 3(a), (b) and (c)(1)
hereof.
23. No officer, director, shareholder, partner or
employee of CRI, the Investment Partnerships or NHP shall have any personal
liability for the obligations hereunder of, respectively, CRI, the Investment
Partnerships or NHP.
24. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Maryland.
25. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which,
when taken together, shall be deemed to be a single, enforceable Agreement
among the parties hereto.
- 15 -
16
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
ATTEST: C.R.I., INC.
By:
- ---------------------------- ---------------------------------
H. William Willoughby
Its: President
ATTEST: NHP INCORPORATED
By:
- ---------------------------- ---------------------------------
J. Roderick Heller, III
Its: Chairman and CEO
- 16 -