ASSIGNMENT OF MANAGEMENT RIGHTS
THIS ASSIGNMENT OF MANAGEMENT RIGHTS ("Assignment"), is made
and entered into as of January 7, 2002, by BENCHMARK PROPERTIES, INC., an Ohio
corporation ("Assignor"), in favor of NHP MANAGEMENT COMPANY, a District of
Columbia corporation ("Assignee").
R E C I T A L S
A. Assignor manages and operates the real property and the
improvements identified on Schedule 1 attached hereto (collectively, the
"Property") and owned by the limited partnership identified on Schedule 1
attached hereto (the "Partnership"), pursuant to the management agreements and
other documents (if any) identified on Schedule 1 attached hereto (collectively,
the "Management Agreements").
B. Assignor and an affiliate of Assignee, among others, are
parties to that certain Purchase and Sale Agreement and Joint Escrow
Instructions, dated as of December 21, 2001, relating to the Partnership
(collectively, the "Acquisition Agreement"), which requires Assignor to execute
and deliver this Assignment. All capitalized terms used and not otherwise
defined herein shall have the meanings ascribed thereto in the Acquisition
Agreement.
C. Assignee is the entity to which the "Management Assets"
(as hereinafter defined) will be assigned pursuant to the Acquisition Agreement.
D. Assignor now desires to assign the Management Assets to
Assignee in accordance with the terms and provisions set forth herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Assignment by Assignor. Subject to all of the terms and conditions of the
acquisition Agreement, Assignor hereby unconditionally and irrevocably:
(a) assigns, transfers, conveys, contributes, delivers and sets over to
Assignee all of Assignor's management operation and control, management know-how
and management relationships with respect to each Property and all of Assignor's
right, title and interest in, to and under the Management Agreements
(collectively, the "Management Assets"), including, without limitation: (i) all
rights and powers with respect to the management and control of the day-to-day
business operations of each Property; (ii) all payments and rights to payment of
any kind or nature whatsoever, whether as fees, percent of rents received,
reimbursement, commission, or otherwise, due or to become due, under or arising
out of any Management Agreement attributable to the period from and after the
Closing Date; (iii) any and all agreements relating to the management of each
Property (but not any other property) to which Assignor is a party (including,
without limitation, the Management Agreements and all service and vendor
contracts to which Assignor is a party in connection with the management of each
Property, but not any other property); (iv) all of Assignor's claims, rights,
powers, privileges, authority, options, security interests, liens and remedies,
if any, against, under or in respect to each Property or under or arising out of
any Management Agreement; and (v) all present and future claims, if any, of
Assignor against the Partnership or any third party under or arising out of any
Management Agreement, for monies loaned or advanced, for services rendered or
otherwise;
(b) resigns as manager of each Property, as of 12:01 a.m. on the Closing
Date.
2. Acceptance. By acceptance of this Assignment, Assignee accepts the foregoing
assignment of the Management Assets.
3. Representations. Assignor hereby represents and warrants to Assignee that (i)
all of the representations and warranties made by Assignor in the Acquisition
Agreement are hereby ratified and confirmed to Assignee as of the date hereof,
and (ii) Assignor has performed all of the covenants to be performed by it with
respect to the Management Assets pursuant to the terms of the Acquisition
Agreement.
4. Effect. This Assignment shall be effective from and after the date hereof.
5. Successors and Assigns. This Assignment shall inure to the benefit of and
be binding upon Assignor and Assignee and their respective successors and
assigns.
6. Governing Law. This Assignment shall be construed and enforced in
accordance with the laws of the State where the Property is located, without
regard to its principles of conflicts of law.
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IN WITNESS WHEREOF, Assignor has executed this Assignment as of the day
and year first written above.
ASSIGNOR:
BENCHMARK PROPERTIES, INC.,
an Ohio corporation
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
SCHEDULE 1
Property: Deerfield Apartments, 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx,
Xxxx Oakbrook Apartments, 0000 Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxx Woodhills Apartments, 0000 Xxxxxxxxx Xxxxx,
Xxxx Xxxxxxxxxx, Xxxx
Partnership: Xxxxx-Benchmark Properties Limited Partnership, a Delaware limited
partnership
Management Agreements:
Management Agreement, daetd as of May 16, 1988, by
and between Xxxxx-Benchmark Properties Limited
Partnership, a Delaware limited partnership, and
Benchmark Properties, Inc., an Ohio corporation.
(Deerfield)
Management Agreement, daetd as of August 17, 1987, by
and between Xxxxx-Benchmark Properties Limited
Partnership, a Delaware limited partnership, and
Benchmark Properties, Inc., an Ohio corporation.
(Oakbrook)
Management Agreement, daetd as of August 17, 1987, by
and between Xxxxx-Benchmark Properties Limited
Partnership, a Delaware limited partnership, and
Benchmark Properties, Inc., an Ohio corporation.
(Woodhills)
CONSENT
The undersigned, Xxxxx-Benchmark Properties Limited Partnership, a Delaware
limited partnership (the "Partnership"), the owner under the above-referenced
Management Agreements, does hereby consent to the foregoing assignment. Without
limiting the foregoing, from and after the date hereof, the Partnership agrees
to accept performance of the Manager's obligations under the Management
Agreements from, and to render performance of the Partnership's obligations
under the Management Agreements to, Assignee and hereby releases Assignor from
any liability under the Management Agreements arising from and after the date
hereof.
XXXXX-BENCHMARK PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership,
By: Xxxxx-Benchmark AGP, Inc.,
a Maryland corporation
Administrative General Partner
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Vice President
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