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EXHIBIT 10.57
AMENDED AND RESTATED AGREEMENT
REGARDING ADDITIONAL MANAGEMENT SERVICES
THIS AMENDED AND RESTATED AGREEMENT REGARDING ADDITIONAL MANAGEMENT
SERVICES (the "Agreement"), is made this 24th day of January, 1997, by and among
(a) DIRECTIONS 79, a Kentucky limited partnership (the "Owner"), (b) MEDALLION-
DIRECTIONS, LTD., an Ohio limited liability company, as successor general
partner of the Owner (the "General Partner"), and (c) NHP-HG 16, Inc., a
Virginia corporation ("NHP" or the "Manager").
WHEREAS, the Owner, Brightside, Ltd., a Florida limited partnership
("Brightside") and a predecessor of the General Partner, previously entered into
that certain Agreement Regarding Additional Management Services, dated as of
January 1, 1995 (the "Original Agreement");
WHEREAS, pursuant to that certain Assignment and Assumption Agreement,
dated as of even date herewith (the "Assignment"), Brightside assigned all of
its right, title and interest in and to the Original Agreement to Manager;
WHEREAS, the Owner is a limited partnership organized for the purpose of
acquiring, developing, rehabilitating, owning and operating a 75 unit multi-
family housing project (the "Project"), designated by the United States
Department of Housing and Urban Development ("HUD") as MOMENTUM 75;
WHEREAS, the Owner and Broad Street Management, Inc., an Ohio corporation
("BSM" or the "Management Agent"), have entered into that certain Amended and
Restated Housing Management Agreement of even date herewith (the "Management
Agreement"), under which the Owner has appointed BSM as the management agent for
the Project;
WHEREAS, HUD has required the Owner to enter into a regulatory agreement,
(the "Regulatory Agreement"), which provides, among other things, that units in
the Project must be rented to elderly or disabled persons or families of low or
moderate income and sets forth maximum allowable rents, reporting requirements,
and tenant income limits;
WHEREAS, pursuant to the Agreement of Limited Partnership of the Owner (the
"Partnership Agreement"), the General Partner of the Owner must cause to be
performed certain services in connection with the management of the Project,
including without limitation, compliance with the Regulatory Agreement;
WHEREAS, the parties hereto recognize that expertise and substantial
special and extra services are required in the management of low and moderate
income housing, including, without limitation, tenant selection, tenant
orientation, compliance with
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various affirmative fair housing marketing requirements, staffing, training,
record keeping and contact with various governmental agencies;
WHEREAS, for all of the foregoing reasons and in order to attempt to ensure
compliance with the requirements of the Regulatory Agreement, the General
Partner has determined that it is necessary, and the Owner and the General
Partner have requested, the Manager (a) to provide the expertise and to perform
various of the aforesaid special and extra management services required for the
Project and (b) to supervise, for and on behalf of the Owner, the performance of
the Management Agent for the Project under the Management Agreement, and the
Manager has agreed to do so; and
WHEREAS, Owner and Manager desire to amend and restate the Original
Agreement to reflect herein their agreements and understandings.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
set forth herein and of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending
legally to be bound, hereby agree as follows:
1. The Manager agrees to supervise, on behalf of the Owner, the performance
of the Management Agent.
2. The Manager agrees, on behalf of the General Partner, to provide
additional services to the Owner as follows:
(a) Monitoring, review and oversight of the interviewing, hiring,
training and supervising of employees and independent contractors involved in
the operation, management and maintenance of the Project.
(b) Review and analysis of, or assistance in the preparation of,
operational budgets, operating statements, and books of account insofar as they
apply to the operations of the Project, and submission of same to the Owner on a
regular basis.
(c) Arranging for, and review of, audits and preparation of operating
data for use in the Owner's tax returns.
(d) Use its good faith efforts to make and enforce such other contracts,
actions, and arrangements which are in the best interest of the Project, and
doing all other things which the Manager determines are necessary, desirable or
convenient in connection with the renting, management, maintenance, repair and
general operation of the Project, on behalf of the Owner, and the administration
of the Partnership Agreement.
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3. Manager agrees to provide to the Owner its expertise and to perform for
the Owner the aforesaid special and extra management services needed with
respect to the Project, in connection with its supervision of the Management
Agent pursuant to Section 1 hereof.
4. The Manager agrees that the services which it shall furnish pursuant to
this Agreement will be efficient and it will use its good faith efforts at all
times in furnishing or performing such services to promote and advance the best
interests of the Owner. In providing services hereunder, the Manager shall not
be deemed to have made any warranty and shall not be an insurer of any results,
and its obligations hereunder shall therefore be limited to the performing of
such services in good faith and in a diligent manner. The Manager shall be
liable only for bad faith, fraud, willful misconduct or gross negligence in the
performance of its duties hereunder.
5. Nothing herein contained shall be construed as requiring the Manager to
perform legal or accounting services which should be rendered by an attorney-at-
law or certified public accountant.
6. In consideration for Manager's expertise and performance of special
services pursuant to this Agreement, the Owner shall pay to the Manager a
supplemental management fee equal to ninety percent (90%) of the amount, if any,
by which cash receipts from operations of the Project and cash proceeds and
receipts from other sources (excluding the sale or refinancing of the Project
and including funds released from reserves) exceed (a) all cash expenses,
capital and other expenditures (excluding expenditures paid from funded
reserves) and contributions or additions to reserves, of or relating to the
Project (operating and otherwise but excluding depreciation and amortization of
capitalized items) including, without limitation, debt service, and the
management fees provided for in the Management Agreement and in this Section 6,
plus (b) $9,000, which supplemental management fee shall be determined and
payable on an annual basis. Such supplemental management fee may be paid only
upon a determination to distribute net partnership receipts which should be
determined within 90 days after the applicable fiscal year end of the Owner.
7. The term of this Agreement shall begin on the date hereof and end on
December 31, 1997; provided, however, that such term shall automatically be
extended for additional one (1)-year periods unless notice of termination is
given to Manager by Owner on January 1 of any such extended period, beginning
with January 1, 1998, in which case this Agreement shall terminate on December
31 of such year; provided, further, however, that Manager may terminate this
Agreement at any time on thirty (30) days' prior written notice. Any
obligations of Owner pursuant to Section 6 shall survive termination of this
Agreement.
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8. The Owner hereby (i) consents to the assignment of the Original Agreement
from Brightside to NHP pursuant to the Assignment and agrees that NHP is the
Manager under the Original Agreement, as amended and restated herein; (ii)
accepts the Original Agreement, as amended and restated herein, and hereby
ratifies and affirms its legal obligations under this Agreement; and (iii)
represents and warrants to Manager that this Agreement is the legally valid and
binding obligation of Owner, and that Owner has no defenses, offsets or claims
with respect to its obligations under this Agreement.
9. This Agreement shall be binding on the parties hereto, their heirs,
successors and assigns. However, this Agreement may not be assigned by any
party without the consent of all Parties hereto.
10. This Agreement and the rights of the parties hereto shall be interpreted
in accordance with the laws of the State of Ohio.
11. General Partner shall indemnify, defend and save harmless Manager and its
officers, directors, employees, agents, affiliates, contractors and each of them
from all loss, damage, cost, expense (including reasonable attorneys' fees and
costs), liability or claims for (a) personal injury or property damage incurred
or occurring in, on or about the Project, (b) Manager's performance of services
that are within the scope of Manager's authority under this Agreement or when
Manager is acting under the express direction of the General Partner and (c) any
breach by General Partner of their respective representations, warranties or
covenants set forth in this Agreement. Such indemnification shall not extend to
situations where Manager is adjudicated guilty of gross negligence or wilful
misconduct. Manager shall indemnify, defend and save harmless General Partner
and its officers, directors, employees, agents, affiliates, contractors and each
of them from all loss, damage, cost, expense (including reasonable attorneys'
fees and costs), liability or claims arising out of Manager's adjudicated gross
negligence or wilful misconduct. Such indemnification shall not extend to
situations where the General Partner is adjudicated guilty of gross negligence
or intentional misconduct.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
OWNER:
DIRECTIONS 79, a Kentucky limited partnership
By: Medallion-Directions, Ltd., an Ohio
limited liability company, General
Partner
By: Heritage Resources Inc., Mgr.
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Name: By: Xxxxx X. Xxxxx
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Title: President
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MANAGER:
NHP-HG 16, INC., a Virginia
corporation
By:
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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GENERAL PARTNER:
MEDALLION-DIRECTIONS, LTD., an Ohio limited
liability company
By: Heritage Resources, Inc., Mgr.
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Name: By: Xxxxx X. Xxxxx
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Title: President
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