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THIRD AMENDMENT TO
ADMINISTRATIVE SERVICES AGREEMENT
Banyan Management Corp. (the "Corporation") and Legend Properties,
Inc., f/k/a Banyan Mortgage Investment Fund (the "Fund") hereby agrees as
follows:
1. Recitals.
(a) The Corporation and the Fund executed and delivered a certain
Administrative Services Agreement dated as of February 27, 1994 (the "ASA").
(b) The Corporation and the Fund amended the ASA by the execution
and delivery of that certain First Amendment to Administrative Services
Agreement dated December 31, 1996 (the "First Amendment").
(c) The Corporation and the Fund further amended the ASA by
execution and delivery of that certain Second Amendment to Administrative
Services Agreement dated February 28, 1997 (the "Second Amendment"). (The ASA,
The First Amendment and the Second Amendment are hereinafter collectively
referred to as the "Agreements").
(d) The Corporation and the Fund desire to further amend the
Agreements on the terms and conditions herein set forth.
(e) Capitalized terms used herein and not otherwise defined shall
have the same meanings as ascribed to such terms in the Agreements.
2. Termination Escrow
(a) Pursuant to Paragraph 10 of the ASA, the Fund hereby gives
notice to the Corporation that the Fund has elected to extend the termination
of the ASA from March 31, 1997, as was provided for in the Second Amendment, to
April 30, 1997 (the "April 30 Extension").
(b) Notwithstanding the Second Amendment, as soon as practicable
after April 1, 1997, the Fund shall deposit into an escrow (the "Termination
Fee Escrow"), which shall be governed by the escrow agreement attached hereto
as Exhibit "A", a sum equal to the Termination Fee in accordance with Paragraph
11 of the ASA, in the amount of $368,000.
(c) Upon execution and delivery of the Termination Fee Escrow
Agreement, and deposit of the aforesaid sum in the Termination Fee Escrow, the
Corporation shall comply with the provisions of Paragraph 12 of the ASA by,
among other things, delivering the Fund's books and records to the Fund at the
direction and expense of the Fund.
3. Employment of Certain Persons.
(a) From and after the date hereof and until April 30, 1997 (the
"Extended Transition Period"), the Fund shall continue to bear 100% of the
Corporation's employment costs (at forty hours per week) of each of the
following persons (the "Transition Employees"): Xxxxx Xxxxx, Xxxxxx
Xxxxxxxxxx, Xxxxxx Xxxxxx and Xxxxxx Xxxxxx at the hourly rate ascribed to each
of the Transition Employees previously set forth on Schedule A attached to the
First Amendment.
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(b) In the event the Fund, prior to the end of the Extended
Transition Period, shall enter into an employment agreement with any of the
Transition Employees pursuant to which such Transition Employee shall waive, in
writing, any claim such Transition Employee may have against the Corporation for
severance pay, then, with respect to such Transition Employee, the Corporation
shall reduce that portion of the Termination Fee attributable to such
Transition Employee's severance pay, as more fully set forth on Schedule B
previously attached to the First Amendment, and such amount shall be paid from
the Termination Fee Escrow to the Fund.
4. Virginia and Maryland Offices. During the Extended Transition
Period, the Fund will continue to bear 100% of the employment and all related
costs for the maintenance and operation of the Corporation's Virginia and
Maryland offices and shall reimburse the Corporation therefore. At the end of
the Extended Transition Period, the Fund shall assume all such obligations
directly, and shall indemnify and hold the Corporation harmless from and
against all claims, damages, liabilities, costs and expenses associated with
such offices from and after December 31, 1996, including, without limitation,
rent, salaries, benefits and severance costs.
5. Retainer. The obligation of the Fund to deposit the Retainer
with the Corporation, as described in Paragraph 5 of the First Amendment, shall
continue during the Extended Transition Period.
6. Reaffirmation. Except as specifically amended by the terms and
conditions hereof, each of the Corporation and the Fund hereby reaffirms,
readopts and ratifies the ASA, the First Amendment and the Second Amendment.
Executed as of the 31st day of March, 1997.
THE FUND: THE CORPORATION:
Legend Properties, Inc., f/k/a Banyan Management Corp.
Banyan Mortgage Investment Fund
By: By:
------------------------------- --------------------------------
Title: President Title: Vice President
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EXHIBIT "A"
TERMINATION FEE ESCROW AGREEMENT
Banyan Management Corp., an Illinois corporation (the "Corporation");
Legend Properties, Inc., a Delaware corporation, formerly known as Banyan
Mortgage Investment Fund (the "Fund") and First American Title Insurance
Company (the "Escrow Agent") agree as follows:
1. Recitals.
(a) The Corporation and the Fund are parties to a certain
Administrative Services Agreement dated February 27, 1994,
which has, from time to time, been amended (the "Agreements").
(b) The Fund is currently a party to certain litigation pending in
The Chancery Court of the State of Delaware in and for New
Castle County (the "Court"), which litigation is styled: In
Re: Banyan Mortgage Investment Fund Shareholders Litigation;
Consolidated C.A. No. 15287 (the "Shareholder Litigation")
(c) The Corporation and the Fund desire to establish this Escrow to
hold and dispose of certain funds and common stock which are
the subject matter of the Agreements, pending a resolution of
the Shareholder Litigation.
(d) Capitalized terms used herein and not otherwise defined shall
have the same meanings as ascribed to such terms in the
Agreements.
2. Deposit.
(a) Contemporaneously with the execution hereof, the Fund has
deposited into this Escrow:
(i) Three hundred Sixty Eight Thousand Dollars ($368,000
U.S.) (the "Termination Fee") and
(ii) two assignments separate from certificate whereby the
Fund has assigned, in blank, all of the shares of stock
it owns in the Corporation (the "Assignments").
The Termination Fee and the Assignments are herein collectively referred to as
the "Deposit."
(b) Escrow Agent acknowledges receipt of the Deposit and agrees to
hold the same for the benefit of the parties hereto, subject to
the conditions hereof. The Termination Fee shall be invested
in an interest bearing account, with the interest paid not less
often than quarterly to the Corporation. The Corporation's
FEIN is 00-0000000.
3. Reduction of Termination Fee.
From time to time the Fund may deposit with the Escrow Agent, subject
to the reasonable written consent of the Corporation, waiver agreements
executed by former employees of the Corporation (Xxxxxx Xxxxxx, Xxxxxx Xxxxxx,
Xxxxx Xxxxx and Xxxxxx Xxxxxxxxxx) evidencing the agreement of any such
employee to waive any portion of severance pay that may be due to him or her.
The amount reflected in such waiver, which amount, with respect to each such
employee, shall not exceed the amounts set forth on Schedule A attached hereto,
shall then be paid from the Termination Fee to the Fund, and the Termination
Fee, for all purposes hereof, shall be the reduced amount.
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4. Termination of Escrow.
This Escrow shall terminate ("Escrow Termination") on the first to
occur of the following events:
(a) Final approval by the Court of a Settlement of the Shareholder
Litigation and the expiration of all applicable appeal periods as
certified by litigation counsel for the Fund, Xxxxxxx & Xxxxxxxx,
Ltd.
(b) Final adjudication of the Litigation and the expiration of all
applicable appeal periods as certified by litigation counsel for
the Fund, Xxxxxxx & Xxxxxxxx, Ltd.
(c) December 31, 1999.
5. Disposition of Deposit.
Upon Escrow Termination, the Deposit shall be delivered to the
Corporation, except in the event the Court has ordered that the Merger
Transaction between Banyan Mortgage Investment Fund and RGI U.S. Holdings,
Inc., consummated on December 31, 1996, be unwound or rendered void ab initio,
in which event the Deposit shall be returned to the Fund. Interest on the
Deposit shall always be governed by Paragraph 2(b).
6. Fees.
Escrow Agent shall be paid an initial investment fee of $75.00; an
Escrow Fee of $300.00 and a quarterly fee in connection with this Escrow of
$50.00, payable in advance. The Escrow Fee shall cover the period through
December 31, 1998, and shall be charged at the rate of $150.00 annually
thereafter, payable in advance. Escrow Agent acknowledges receipt of the sum
of $375.00 on the date hereof in respect of the investment fee and the Escrow
Fee. Corporation and the Fund agree, between themselves, to equally share this
fee, and Escrow Agent shall invoice them accordingly. In addition, Escrow
agent shall, in the same proportion, be reimbursed for any reasonable
out-of-pocket costs incurred.
7. Notices.
Any notice pursuant hereto shall be sent by fax, overnight courier or
hand delivery and shall be effective on the first business day after sending.
Notices shall be addressed as follows:
To the Corporation: Xxxxxxx X. Xxxxxx
Banyan Management Corp.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxx
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
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To the Fund: Xxxxxxx X. Xxxxxx
President
Legend Properties, Inc.
U.S. Bank Centre, 0000 0xx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000-0000
(000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxx
Xxxxxxx & Xxxxxxxx, Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
To Escrow Agent: Xxxxx Xxxxx
First American Title Insurance Company
Xxxxx 000
00 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Facsimile: (000) 000-0000
8.
The parties have executed this Escrow Agreement on the _________ day of
April, 1997, but effective as of March 31, 1997.
THE FUND: THE CORPORATION:
Legend Properties, Inc., f/k/a Banyan Management Corp.
Banyan Mortgage Investment Fund
By:___________________________________ By:__________________________
Title: President Title: Vice President
ESCROW AGENT:
First American Title Insurance Company
By:___________________________________
Title: Vice President
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SCHEDULE A
Xxxxxx Xxxxxx 79,500
Xxxxxx Xxxxxx 37,389
Xxxxx Xxxxx 42,745
Xxxxxx Xxxxxxxxxx 15,450
