EXHIBIT 10.1
MANAGEMENT SERVICES AGREEMENT
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MANAGEMENT SERVICES AGREEMENT, dated as of June 1, 1998, by and between
DVL, Inc., a Delaware corporation ("DVL"), and PBD Holdings, L.P., a
Delaware limited partnership (the "Partnership").
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated
as of March 4, 1998 (the "Execution Date"),by and among Major Realty
Corporation, a Delaware corporation ("Major Realty"), the Partnership and
Pembroke Acquisition, Inc., a Delaware corporation and a wholly owned
subsidiary of the Partnership ("Acquisition"), Acquisition will merge with
and into Major Realty (the "Merger"), and Major Realty will be the surviving
corporation and a wholly owned subsidiary of the Partnership;
WHEREAS, following the Merger, Major Realty will distribute substantially
all of its assets (the "Major Realty Assets") to the Partnership and it is
the Partnership's intention to sell the Major Realty Assets;
WHEREAS, in connection with the sale of the Major Realty Assets, the
Partnership has entered into that certain Management Services Agreement,
dated as of May 15, 1998, with Pemmil Management, Inc., a Delaware
corporation ("Pemmil"), pursuant to which Pemmil has agreed to provide
certain management, financial and consulting services to the Partnership;
WHEREAS, the Agreement of Limited Partnership of the Partnership (the
"Partnership Agreement") permits the Partnership to contract for the
provision of certain services;
WHEREAS, the Partnership desires to retain DVL, and DVL has agreed to
provide certain management, financial and consulting services to the
Partnership.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree
as follows:
1. RETENTION. The Partnership hereby agrees to retain DVL, and DVL
hereby agrees to serve, as consultant to the Partnership upon the terms and
subject to the conditions set forth in this Agreement.
2. TERM. The term of this Agreement (the "Term") shall commence on
the date first above written and shall continue until the date on which all
Major Realty Assets are sold, unless terminated at any time by DVL or the
Partnership with or without cause or reason, upon not less than thirty (30)
days prior written notice to the other party.
3. COMPENSATION. As compensation for the provision by DVL of
consulting services contemplated hereby, the Partnership shall pay to DVL
an aggregate fee equal to (a) Five Thousand Dollars ($5,000) per month
during the Term plus (b) after the Partners (as such term is defined in the
Partnership Agreement) have earned a 20% internal rate of return, compounded
quarterly, on their Capital Contributions (as such term is defined in the
Partnership Agreement), an amount in cash equal to 25% of the Profits (as
such term is defined in the Partnership Agreement), if any, distributed to
the Partners pursuant to the terms of the Partnership Agreement. The
Partnership shall also reimburse DVL for all reasonable, out-of-pocket
expenses (other than attorneys fees) actual incurred by DVL in connection
with the performance of its duties hereunder. Except as provided pursuant
to this Section 3, DVL shall have no further rights to compensation in
respect of its engagement under this Agreement.
4. DUTIES. During the term, DVL shall render financial, consulting and
other administrative services to Pemmil or the Partnership, which shall
generally include (i) assisting Pemmil in managing the affairs of the
Partnership and (ii) assisting Pemmil in the sale of the Major Realty
Assets. Specifically, without limitation, DVL shall be required to assist
Pemmil, the Partnership and PBD Holdings, Inc., a Delaware corporation and
the Partnership's general partner ("PBD Holdings") in:
(a) performing accounting, administrative and management
services:
(b) making and entering into such contracts on behalf of
the Partnership as Pemmil or PBD Holdings deems reasonably
necessary for the efficient conduct and operation of the
business of the Partnership;
(c) arranging for and coordinating the services of other
professionals including, attorneys, accountants, experts,
consultants, appraisers, brokers, finders or such other
experts and advisors as Pemmil may deem necessary or
advisable, and determining their compensation and other
terms of employment or hiring;
(d) taking any and all action on behalf of the Partnership as
may be necessary in order to meet the obligations or
exercise the rights of the Partnership; and
(e) providing such other services as Pemmil or PBD Holdings
may deem necessary, incidental or appropriate in order
to perform the services described in clauses (a) through
(d) above.
DVL shall devote such time, skill, labor and attention to the performance
of such service as may be necessary or desirable to render the prompt and
effective performance of its duties hereunder. The parties hereto agree
that DVL is not precluded from obtaining or pursuing other consulting or
business opportunities on a full-time basis. DVL may render all consulting
services hereunder from such locations as it may reasonably determine.
5. INDEMNIFICATION. The Partnership shall indemnify and hold DVL
harmless from any and all claims, demands, actions, suits, reckonings,
judgments, and all costs and expenses thereof, including reasonable
attorneys' fees arising from or relating to the performance by DVL of its
duties hereunder, unless it shall finally be adjudged by a court of
competent jurisdiction that DVL shall have acted in bad faith or with gross
negligence.
6. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire agreement between DVL and the Partnership with respect to the subject
matter hereof. No agreements or representations, written or oral, express
or implied, with respect to the subject matter hereof shall be enforceable
against either party unless expressly set forth in this Agreement. This
Agreement may not be amended orally, but only by an instrument in writing
signed by each of the parties thereto.
7. NO WAIVER. Any waiver by either party of a breach of this
Agreement shall not operate as or be construed to be a waiver of any other
provision of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement on one or more occasions shall not
be considered a waiver or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement.
8. HEADINGS. Section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAW
THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF LAW.
10. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which when executed shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument.
11. SEVERABILITY. The unenforceability of any provision or
provisions of this Agreement shall not affect the enforceability of any
other provisions of this Agreement, which shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
PBD HOLDINGS, L.P.
By: PBD Holdings, Inc.
as General Partner
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: President
DVL, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
