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EXHIBIT 10.30
RIGHT OF FIRST REFUSAL
This RIGHT OF FIRST REFUSAL (the "Agreement") dated as of December 1,
1995, is made and entered into by and between NHP-HDV Four, Inc., NHP-HDV Five,
Inc., NHP-HDV Six, Inc., NHP-HDV Seven, Inc. and NHP-HDV Eight, Inc., all
Delaware corporations (hereinafter collectively referred to as "Holders") and
NHP INCORPORATED, a Delaware corporation (hereinafter referred to as "NHPI").
RECITALS:
A. Holders are the holders of the general partner interests
("Partnership Interests") and stock ("Stock") of the general partners of the
limited partnerships set forth on Exhibit A beside the name of the applicable
Holder, each of which limited partnership is the owner of a real estate project
(the "Properties"), set forth on Exhibit B attached hereto and incorporated
herein by reference.
B. NHP Management Company ("NHPMC"), a wholly-owned subsidiary of
NHPI, is the property manager of each of the Properties (hereinafter referred
to as the "Management Rights").
C. NHPMC is in the business of property management and wishes to
retain the Management Rights in the event that any or all of the Holders sell
or otherwise convey the Stock, Partnership Interests or the Properties.
D. Subject to, and upon the terms and conditions set forth in
this Agreement, NHPI has requested and Holders have agreed to grant to NHPI a
right of first refusal with respect to the Stock, the Partnership Interests and
the Properties.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the above-recited premises,
the mutual covenants and agreements hereinafter set forth and other good and
valuable consideration, the receipt, adequacy, and sufficiency of which are
hereby acknowledged and confessed, the parties hereto do hereby covenant and
agree as follows:
1. Subsequent Transfers by Holders. In the event any Holder
elects to sell any of the Stock or Partnership Interests or to dispose of any
of the Properties (a "Disposition"), such Holder shall provide NHPI with
written notice of such election. NHPI shall then have the option during the
thirty (30)-day period following receipt of such notice, to acquire the Stock,
Partnership Interests or the Properties identified in said notice, at no cost.
In the event NHPI does not exercise the heretofore described option, such
Holder may sell any or all of the Stock, Partnership Interests or dispose of
any or all of the Properties, subject to the following: Each Holder covenants
and agrees (which agreement shall survive the Closing) to pay to NHPI (i) for
each of the Stock, Partnership Interests or Properties sold, where such sale
results in NHPI or any of its subsidiaries losing the right to manage the
subject Property, a one-time termination fee equal to the lesser of (x) two
hundred percent (200%) of the total amount of fee income earned by NHPI and any
of its susidiaries during the twelve-month period ending on the last day of the
month prior to the month in which a Disposition occurs; or (y) the Holder's
share of
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the sales proceeds; and (ii) the sum of $8,000 per annum for each of the
Properties, the Stock or Partnership Interests so disposed; provided, however,
no payment shall be due under this Paragraph 1 in the event NHPI or any of its
subsidiaries is terminated as management agent for such Property for cause.
2. Representations and Warranties of NHPI. The NHPI hereby
represents and warrants to Holders that:
(a) NHPI is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the state of
Delaware;
(b) NHPI has full power, authority and legal right to
execute and deliver this Agreement, has and will have full power,
authority and legal right to perform and observe its provisions and
this Agreement is valid, binding and enforceable against NHPI in
accordance with its terms.
3. Representations and Warranties of Holders. Each Holder
represents and warrants to NHPI that:
(a) Each Holder is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the Delaware;
(b) Each Holder has full power, authority and legal right
to execute and deliver this Agreement and to perform and observe its
provisions and this Agreement when executed and delivered by NHPI and
Holders will be valid, binding and enforceable against Holders in
accordance with its terms.
4. Remedies. If either party defaults hereunder, the
non-defaulting party may xxx the defaulting party for damages.
5. Notices. Unless otherwise specifically provided herein, any
notice or communication required or permitted to be delivered hereunder shall
be in writing and shall be deemed to have been given upon the earlier to occur
of (i) actual receipt or refusal by the addressee thereof whether by hand,
courier or telecopier, or (ii) three (3) business days after deposit in the
mails, postage prepaid, registered or certified mail, return receipt requested,
addressed as provided below. In addition, each party shall give a copy of any
such notice promptly to any attorney or other person designated in writing from
time to time by the other party for the receipt of copies.
If to NHPI: NHP Incorporated
---------- 0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: General Counsel
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If to any Holder: 0000 Xxx Xxxxxx
---------------- Suite 601
Washington, D.C. 20005
Attention: General Counsel
6. Time for Performance. If the final day of any period herein
falls on a Saturday, Sunday, or District of Columbia or United States legal
holiday, then the time of such period shall be extended to the next day which
is not a Saturday, Sunday or legal holiday.
7. Integration. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the specific matters
agreed to herein and the parties hereto acknowledge that no oral or other
agreements, understandings, representations or warranties exist with respect to
this Agreement or with respect to the obligations of the parties hereto under
this Agreement, except those specifically set forth in this Agreement.
8. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the District of Columbia, and each of
the parties hereto hereby consents to the jurisdiction of and venue in any
federal or state court of competent jurisdiction located in the District of
Columbia.
9. Construction. Unless the context otherwise requires, singular
nouns and pronouns, when used herein, shall be deemed to include the plurals of
such nouns or pronouns and pronouns of one gender shall be deemed to include
the equivalent pronouns of the other gender.
10. Captions. The captions and headings used herein are for
convenience only and do not in any way limit or modify the provisions of this
Agreement.
11. Multiple Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall constitute an original hereof and
all of which taken together shall constitute one and the same agreement.
12. Enforceability. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws effective
during the term of this Agreement, the legality, validity and enforceability of
the remaining provisions shall not be affected thereby.
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EXECUTED effective as of the date first written above.
NHP INCORPORATED,
a Delaware corporation
By:
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Xxxx X. Xxxxxx
Senior Vice President
HOLDERS:
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NHP-HDV Four, Inc.
NHP-HDV Five, Inc.
NHP-HDV Six, Inc.
NHP-HDV Seven, Inc.
NHP-HDV Eight, Inc.
(all Delaware corporations)
By:
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Xxxx X. Xxxxxx
Senior Vice President
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EXHIBIT A
PARTNERSHIP INTERESTS
ENTITY PARTNERSHIP
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NHP-HDV Four, Inc. Barrington Oaks Apartment Associates
Chateau Gardens
Club Apartment Associates
Countrybrook Associates
Country Villa Associates
Kemar Townhouse Associates
NHP-HDV Five, Inc. Hunter's Run Partners, Ltd.
NHP-HDV Six, Inc. Grandland Realty Associates
Heritage Village Limited Partnership
Orlando-Lake Xxxxxx Limited Partnership
Lakeland East Limited Partnership
Plantation Partners, Ltd.
NHP-HDV Seven, Inc. Xxxxxx Xxxxx Realty Associates
NHP-HDV Eight, Inc. Cross Creek Limited Partnership
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EXHIBIT B
PARTNERSHIP PROPERTY
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Barrington Oaks Apartment Associates Barrington Oaks Apartments
Chateau Gardens Chateau Gardens Apartments
Club Apartment Associates Club Apartments
Countrybrook Associates Countrybrook Apartments
Country Villa Associates Country Villa Apartments
Kemar Townhouse Associates Kemar Townhouses
Hunter's Run Partners, Ltd. Hunter's Run Apartments
Grandland Realty Associates Tall Tree Apartments
Heritage Village Limited Partnership Heritage Village Apartments
Orlando-Lake Xxxxxx Limited Partnership Lake Xxxxxx Xxxxx Apartments
Lakeland East Limited Partnership Lakeland East Apartments
Plantation Partners, Ltd. The Plantation
Xxxxxx Xxxxx Realty Associates Xxxxxx Xxxxx East Apartments
Cross Creek Limited Partnership Cross Creek Apartments
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