Exhibit 99.4
MANAGEMENT AGREEMENT
BETWEEN
CHARTER MUNICIPAL MORTGAGE ACCEPTANCE COMPANY
AND
CHARTER MAC CORPORATION
This MANAGEMENT AGREEMENT (this "AGREEMENT") dated as of
September 13, 2001, but effective as of October 1, 2001, between CHARTER
MUNICIPAL MORTGAGE ACCEPTANCE COMPANY (the "COMPANY"), a Delaware business
trust, and Charter Mac Corporation (the "INVESTMENT MANAGER"), a Delaware
corporation.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company is a Delaware business trust created in
accordance with applicable provisions of the Delaware Trust Act, 12 Del.
C.Sections.3801 ET. SEQ., as amended from time to time (the "TRUST ACT"); and
WHEREAS, the purposes of the Company are, as determined from
time to time by the board of trustees (the "BOARD OF TRUSTEES") of the Company,
to engage in any lawful business or activity for which a business trust may be
created under the Trust Act; and
WHEREAS, the Company desires to avail itself of the
experience, sources of information, advice and assistance of the Investment
Manager and to have the Investment Manager undertake the duties and
responsibilities hereinafter set forth, on behalf of and subject to the
supervision of the Board of Trustees, as provided herein; and
WHEREAS, all capitalized terms used herein, and not otherwise
defined in Article 10, shall have the meanings ascribed to them in the Company's
Trust Agreement; and
WHEREAS, the Investment Manager is willing to render such
services, subject to the supervision of the Board of Trustees, on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, it is agreed as follows:
1 DUTIES OF INVESTMENT MANAGER. The Company hereby retains the
Investment Manager as the investment manager of the Company to perform the
services hereinafter set forth, and the Investment Manager hereby accepts such
appointment, subject to the terms and conditions hereinafter set forth. In the
performance of this undertaking, subject to the supervision of the Board of
Trustees and consistent with the provisions of the Trust Agreement and duly
adopted resolutions of the Board of Trustees, the Investment Manager shall:
(i) seek out, present and recommend to the Company, whether
through its own efforts or those of third parties retained by it, suitable
investment opportunities which are consistent with the Company's investment
objectives and policies as adopted by the Board of Trustees from time to time,
and negotiate on behalf of the Company with respect to potential investments or
the disposition thereof;
(ii) exercise absolute discretion, subject to the Board of
Trustees' review, in decisions to originate, acquire, retain, sell or negotiate
for the prepayment or restructuring of the Company's First Mortgage Bonds, SMLs,
Tax Exempt Securities, mortgage and mortgage securities investments and other
investments (collectively, "COMPANY INVESTMENTS");
(iii) recommend investment opportunities consistent with the
Company's investment objectives and policies and negotiate on behalf of the
Company with respect to potential investments or the disposition thereof;
(iv) perform the duties set forth on Exhibit A in connection
with servicing the Company's loan portfolio;
(v) obtain for the Company such other services as may be
required in acquiring or disposing of investments, including foreclosing and
otherwise enforcing mortgages and other liens securing investments;
(vi) obtain for the Company such services as may be required
for property management, mortgage brokerage and servicing, and other activities
relating to the investment portfolio of the Company;
(vii) from time to time, or as requested by the Board of
Trustees, make reports to the Company as to its performance of the foregoing
services;
(viii) perform any other powers of the Board of Trustees which
are set forth in the Trust Agreement which may be delegated to it by the Board
of Trustees from time to time; and
(ix) do all things necessary to assure its ability to render
the services contemplated herein.
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2 FIDUCIARY RELATIONSHIP. The Investment Manager, as a result
of its relationship with the Company pursuant to this Agreement, stands in a
fiduciary relationship with the Shareholders of the Company.
3 NO PARTNERSHIP OR JOINT VENTURE. The Company and the
Investment Manager are not partners or joint venturers with each other and
nothing herein shall be construed to make them partners or joint venturers or
impose any liability as such on either of them.
4 RECORDS. At all times, the Investment Manager shall keep
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Company
at any time during the ordinary business hours of the Investment Manager.
5 LIMITATIONS. Anything else in this Agreement to the contrary
notwithstanding, the Investment Manager shall refrain from any action which, in
its sole judgment made in good faith, or, in the judgment of the Board of
Trustees, provided that the Board of Trustees give the Investment Manager
written notice to such effect, would (a) cause the Company to be classified as
(i) an "investment company" for purposes of the Investment Company Act of 1940,
as amended, or (ii) other than a partnership for purposes of the Code; (b)
violate any law, rule, regulation or statement of policy of any governmental
body or agency having jurisdiction over the Company or over its securities, (c)
be prohibited by the Company's Trust Agreement; or (d) cause the Company to be
classified as a "publicly traded partnership" for purposes of the Code.
6 BANK ACCOUNTS. The Investment Manager may establish and
maintain one or more bank accounts in the name of the Company or in its own name
as agent for the Company and may collect and deposit in and disburse from any
such account, any money on behalf of the Company, under such terms and
conditions as the Board of Trustees may approve, provided that no funds in such
account shall be commingled with funds of the Investment Manager. From time to
time and upon appropriate request, the Investment Manager shall render
appropriate accounting of such collections and payments to the Board of Trustees
and the auditors of the Company.
7 BOND. If required by the Board of Trustees, the Investment
Manager will maintain a fidelity bond with a responsible surety company in such
amounts as may be required by the Board of Trustees, covering all partners
thereof together with employees and agents of the Investment Manager handling
funds of the Company and investment documents or records pertaining to
investments of the Company. Such bonds shall inure to the benefit of the Company
in respect of losses from acts of such partners, employees and agents through
theft, embezzlement, fraud, negligence, error or omission or otherwise. The
premiums on such bonds shall be paid by the Company.
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8 INFORMATION FURNISHED TO INVESTMENT MANAGER. The Board of
Trustees shall, at all times, keep the Investment Manager fully informed with
regard to the investment policy of the Company, including any specific types of
mortgage investments, mortgage securities and other investments desired, and any
criteria or conditions established by the Board of Trustees as to whether the
Company will make a particular investment, the capitalization policy of the
Company (including the policy with regard to the incurrence of indebtedness by
the Company) and their intentions as to the future operations of the Company. In
particular, the Board of Trustees shall notify the Investment Manager promptly
of their intention to either sell or otherwise dispose of any of the Company's
investments, to make any new investment, to incur any indebtedness or to issue
any additional Shares.
9 CONSULTATION AND ADVICE. In addition to the services
described above, the Investment Manager shall consult with the Board of Trustees
and shall, at the request of the Board of Trustees of the Company, furnish
advice and recommendations with respect to other aspects of the business and
affairs of the Company.
10 DEFINITIONS. As used herein, the following terms shall have
the meanings set forth below:
(i) "ACQUISITION EXPENSES" shall mean expenses related to the
Company's selection of, and investment in, Company Investments, whether or not
acquired or made, including but not limited to advertising costs, brokerage
fees, environmental, engineering and other due diligence expenses, legal fees
and expenses, travel and communications expenses, cost of appraisals, accounting
fees and expenses, title insurance and miscellaneous other expenses.
(ii) "AFFILIATED PROGRAMS" shall mean any publicly offered
Entity which is sponsored by an Affiliate of Charter Mac Corporation, a Delaware
corporation.
(iii) "TRUST AGREEMENT" shall mean the Amended and Restated
Trust Agreement of the Company dated as of September 30, 1997, as amended and/or
restated from time to time.
11 FEES AND OTHER COMPENSATION OF THE INVESTMENT MANAGER. The
Investment Manager or its designees shall be entitled to receive from the
Company (except those payable by others as noted below) the following fees and
other compensation:
(i) SALES FEES. If the Company forecloses on, or otherwise
obtains direct or indirect title to, an Underlying Property and sells such
property, the Investment Manager or its Affiliates shall be entitled to a real
estate commission equal to the lesser of (i) 3% of the gross sales price of such
property received by the Company or (ii) one-half of the normal and competitive
rate customarily charged by unaffiliated parties rendering similar services, but
such fees shall be paid only if the Investment Manager or its Affiliate provides
a substantial amount of services in the sales effort.
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(ii) PROPERTY MANAGEMENT FEES. In the event the Company
forecloses on, or otherwise obtains title to, an Underlying Property, the
Company may be required to take over the management of such property. In such
cases, the Investment Manager or its Affiliates may provide property management
services at rates and on terms no less favorable to the Company than those
customary for similar services, if they have such knowledge of and experience in
managing properties in the area. With respect to residential properties, such
fee (including all rent-up, leasing, and re-leasing fees and bonuses paid to any
person) shall not exceed 5% of the gross revenues from such properties and with
respect to all other properties, such fee shall not exceed 6% of the gross
revenues where the Investment Manager of its Affiliates provide leasing,
re-leasing and leasing related services, and 3% of gross revenues where the
Investment Manager or its Affiliates do not provide such services.
Notwithstanding the foregoing, the Investment Manager may be entitled to receive
higher fees in the event the Investment Manager can demonstrate to the
satisfaction of the Board of Trustees through empirical data that a higher
competitive fee is justified for the services rendered and the type of property.
Where the Investment Manager or its Affiliates provide property management
services, property management fees payable to unaffiliated parties will be paid
out of the fees paid to the Investment Manager or its Affiliate. Property
management fees shall be payable monthly.
(iii) INSURANCE BROKERAGE FEES. The Investment Manager or its
Affiliates may receive an insurance brokerage fee for providing insurance
brokerage services with respect to Underlying Properties if such services are
required by the Company in the event of a default on a mortgage investment. With
respect to any insurance brokerage fee to be paid to the Investment Manager or
its Affiliates by the Company, such insurance brokerage fee will be no greater
than the lowest quote obtained from two unaffiliated insurance agencies and the
coverage and terms likewise will be comparable.
(iv) BOND PLACEMENT FEES. The Investment Manager or its
Affiliates may receive from borrowers, but not from the Company or its
subsidiaries, bond placement fees equal to up to 2.0 % of the principal amount
of each Company Investments acquired or invested in by the Company, its
subsidiaries or other Entities to which the Company or its subsidiaries has
transferred such Company Investments to facilitate financing.
(v) BOND SELECTION FEES. The Investment Manager or its
Affiliates shall receive bond selection fees equal to 2.00%, subject to
adjustment pursuant to SCHEDULE A, of the principal amount of each Company
Investment acquired or invested in by the Company, its subsidiaries or other
Entities to which the Company or its subsidiaries has transferred such Company
Investments to facilitate financing. Bond Selection Fees shall be payable by the
Company upon the consummation of the investment.
(vi) LOAN SERVICING FEES. The Investment Manager shall receive
loan servicing fees equal to 0.25 % per annum based on the outstanding principal
amount of Company Investments which are held by the Company or other entities to
whom the Company has transferred such Company Investments to facilitate
financing. Loan servicing fees shall be payable quarterly by the Company.
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(vii) LIQUIDATION FEES. If the Company is dissolved, the
Asset Manager shall receive a liquidation fee equal to 1.50% of the gross sales
price of the assets sold in connection with the liquidation of the Company's
directly or indirectly owned assets. Liquidation fees shall be payable by the
Company upon the consummation of the liquidation.
(viii) CONSTRUCTION SERVICES FEES. The Investment Manager
or its Affiliates may receive from borrowers, but not from the Company or its
subsidiaries, construction services fees equal to the market rate for such
services.
(ix) OTHER COMPENSATION. The Investment Manager or its
Affiliates may provide financial guarantees (i) to the Company to facilitate
leveraging by the Company, for which they shall be entitled to receive market
rate fees from the Company and (ii) to the owners (or partners of the owners) of
the Underlying Properties, for which they shall be entitled to receive market
rate fees from the beneficiary of such financial guarantees.
(x) MISCELLANEOUS SERVICES TO THE COMPANY AND THIRD
PARTIES. Except as set forth in Section 11 (iv), nothing in this Agreement shall
limit the Investment Manager or its Affiliates' right to provide services to the
Company, to borrowers or owners of Underlying Properties or to other third
parties, provided the fee charged for such services is not in excess of the
competitive rate in the market.
12 STATEMENTS. Prior to the payment of any fees payable by the
Company hereunder or reimbursements payable by the Company to the Investment
Manager, the Investment Manager shall furnish to the Company a statement showing
the computation of the fees or reimbursements, if any, payable under Section 11
or Section 13(b).
13 EXPENSES OF THE COMPANY. (a) The Company shall pay all of
its expenses. Without limiting the foregoing, it is specifically agreed that the
following expenses of the Company shall be paid by the Company and shall not be
borne by the Investment Manager unless such expense is a fee or other service
for which the Investment Manager is otherwise receiving a fee from the Company:
(i) the cost of money borrowed by the Company;
(ii) all taxes applicable to the Company including, without
limitation, taxes on income and on assessments of real property;
(iii) fees and expenses paid to independent contractors,
unaffiliated mortgage servicers, consultants, managers and other agents employed
by or on behalf of the Company;
(iv) Acquisition Expenses and expenses directly connected
with the ownership and disposition of investments or other property, and with
the investment in or
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purchase of Company Investments (including the costs of foreclosure, insurance
premiums, legal services, brokerage and sales commissions, maintenance, repair
and improvement of property);
(v) expenses of maintaining and managing real estate equity
interests, processing and servicing mortgage and other loans and managing the
Company's other investments;
(vi) insurance coverage in connection with the business of
the Company (including officers' and trustees' liability insurance);
(vii) the expenses of dissolving and liquidating the
Company or revising, amending or modifying its organizational documents;
(viii) expenses connected with payments of dividends or
interest or distribution in cash or any other form made or caused to be made by
the Board of Trustees to Shareholders;
(ix) all expenses connected with communications to
Shareholders and other bookkeeping and clerical work necessary in maintaining
relations with the Shareholders, including the cost of printing and mailing
certificates for securities, proxy solicitation materials and reports to holders
of the Company's securities;
(x) the cost of any accounting, statistical or bookkeeping
equipment necessary for the maintenance of the books and records of the Company;
(xi) transfer agent's and registrar's fees and charges; and
(xii) other legal, accounting and auditing fees and
expenses as well as any costs incurred in connection with any litigation in
which the Company is involved and in the examination, investigation or other
proceedings conducted by any regulatory agency with respect to the Company.
(b) Subject to Section 14, the Company shall reimburse the
Investment Manager and its Affiliates for (i) the actual costs to the Investment
Manager or its Affiliates of goods, materials and services used for and by the
Company obtained from unaffiliated parties; (ii) administrative services
necessary to the operation of the Company; (iii) the costs of personnel employed
by the Investment Manager and directly involved in the organization and business
of the Company (including persons who may be employees or officers of the
Investment Manager and its Affiliates) and for legal, accounting, transfer
agent, reinvestment and redemption plan administration, data processing,
duplicating and investor communications services performed by employees or
officers of the Investment Manager and its Affiliates which could be performed
directly for the Company by independent parties and (iv) any travel expenses
incurred in connection with the services provided hereunder and for advertising
expenses incurred by the Investment Manager in seeking any investments or
seeking the disposition of any investments
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held by the Company. The amounts charged to the Company for services performed
shall not exceed the lesser of (a) the actual cost of such services, or (b) the
amount which the Company would be required to pay to independent parties for
comparable services.
14 LIMITATIONS ON REIMBURSEMENTS. The amounts reimbursed to
the Investment Manager pursuant to Section 13(b), together with the amounts
reimbursed to Related Charter, LP under the management agreement between the
Company and Related Charter, LP, shall not exceed $432,365.00 per annum, subject
to (i) annual increases following the first anniversary of the date hereof and
each year thereafter based upon increases in the Consumer Price Index for All
Urban Consumers, N.Y., N.Y. -Northeastern N.J. (Base Year 1982-1984 = 100)
specified for "All Items" as issued by the Bureau of Labor Statistics, U.S.
Department of Labor (or comparable substitute index) and (ii) proportionate
increase as the Company's assets increase based upon the amount of the Company's
Total Invested Assets from time to time.
15 OTHER ACTIVITIES OF INVESTMENT MANAGER. (a) Nothing in this
Agreement shall prevent the Investment Manager or any of its Affiliates from
engaging in other business activities related to tax-exempt bonds, real estate,
mortgage investments or other investments whether similar or dissimilar to those
made by the Company or from acting as manager to any other person or entity
having investment policies whether similar or dissimilar to those of the
Company. However, before the Investment Manager, the officers or directors of
the Investment Manager or any persons controlled by the Investment Manager or
its officers and directors may take advantage of an opportunity for their own
account or present or recommend it to others (except as set forth in Section
15(b)), they are obligated to present an investment opportunity to the Company
if (i) such opportunity is compatible with the Company's investment objectives
and policies, (ii) such opportunity is of a character which could be taken by
the Company, and (iii) the Company has the financial resources to take advantage
of such opportunity.
(b) (i) If an Affiliated Program with similar investment
objectives to those of the Company has funds available for investment at the
same time as the Company, and/or an investment is potentially suitable for more
than one such Entity, the Investment Manager and its Affiliates shall review the
investment portfolio of each such Entity and shall make the decision as to which
such Entity will acquire the investment on the basis of such factors as it deems
reasonable in light of each Entity's then current situation, including, without
limitation, the effect of the acquisition on each such Entity's portfolio and
objectives, the amount of funds available and the then length of time such funds
have been available for investment, and the cash requirements of each such
Entity. If funds should be available to two or more Affiliated Programs to
purchase a given investment and the other factors enumerated above have been
evaluated and deemed equally applicable to each Entity, then the Investment
Manager or its Affiliates will acquire such investment for the Affiliated
Programs on a basis of rotation with the initial order of priority determined by
the dates of formation of the Entities.
(ii) Notwithstanding the foregoing, nothing herein shall be
construed to require CentRe Mortgage Capital, L.L.C. ("CentRe") or CreditRe
Mortgage Capital, L.L.C. ("CreditRe"), each of which is an Affiliate of the
Investment Manager, or any other such
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Affiliate which is a successor to CentRe or CreditRe or conducts substantially
the same business as CentRe or CreditRe, to present any investment opportunity
to the Company.
16 TERM; TERMINATION OF AGREEMENT. (a) This Agreement shall
continue in force for a period of one year from the date hereof and thereafter
it may be renewed by the Company from year to year, subject to the approval of a
majority of the Board of Trustees. Notice of renewal shall be given in writing
by the Company to the Investment Manager not less than 60 days before the
expiration of this Agreement or of any extension thereof.
Notwithstanding any other provision to the contrary, this
Agreement shall be terminable (i) with or without Cause by the Investment
Manager at any time; or (ii) for Cause by a majority of the Independent Trustees
at any time, each without penalty, and each upon 60 days' prior written notice
prior to the non-terminating party.
In the event of the termination of this Agreement, the
Investment Manager will cooperate with the Company and take all reasonable steps
requested to assist the Board of Trustees in making an orderly transition of the
management function.
17 AMENDMENTS. This Agreement shall not be changed, modified,
terminated or discharged in whole or in part except by an instrument in writing
signed by both parties hereto, or their respective successors or permitted
assigns, or otherwise as provided herein.
18 ASSIGNMENT. This Agreement may not be assigned by the
Investment Manager without the written consent of the Company, except to an
Affiliate of the Investment Manager. Any assignee of the Investment Manager
shall be bound hereunder to the same extent as the Investment Manager. This
Agreement shall not be assigned by the Company without the written consent of
the Investment Manager, except to a corporation, association, trust or other
organization which is a successor to the Company. Such successor shall be bound
hereunder to the same extent as the Company. Notwithstanding anything to the
contrary contained herein, the economic rights of the Investment Manager
hereunder, including the right to receive all compensation hereunder, may be
sold, transferred or assigned by the Investment Manager without the consent of
the Company.
19 ACTION UPON TERMINATION. From and after the effective date
of termination of this Agreement, pursuant to Section 16 hereof, the Investment
Manager shall not be entitled to compensation for further service rendered
hereunder but shall be paid all compensation and reimbursed for all expenses
accrued through the date of termination. The Investment Manager shall forthwith
upon such termination:
(i) pay over to the Company all moneys collected and held for
the account of the Company pursuant to this Agreement, after deducting any
accrued compensation and reimbursement for its expenses to which it is then
entitled;
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(ii) deliver to the Company a full accounting, including a
statement showing all payments collected by it and a statement of all moneys
held by it, covering the period following the date of the last accounting
furnished to the Company; and
(iii) deliver to the Company all property and documents of the
Company then in the custody of the Investment Manager.
20 INCORPORATION OF THE TRUST AGREEMENT. To the extent the
Trust Agreement imposes obligations or restrictions on the Investment Manager or
grants the Investment Manager certain rights which are not set forth in this
Agreement, the Investment Manager shall abide by such obligations or
restrictions and such rights shall inure to the benefit of the Investment
Manager with the same force and effect as if they were set forth herein.
21 STANDARD OF CARE. (a) The Investment Manager assumes no
responsibility under this Agreement other than to render the services called for
hereunder in good faith, and shall not be responsible for any action of the
Company in following or declining to follow any advice or recommendations of the
Investment Manager. Neither the Investment Manager nor its directors, officers,
partners, members, and employees shall be liable to the Company, the
Shareholders, the Trustees or to any successor or assignee of the Company,
except by reason of acts constituting bad faith, gross negligence or reckless
disregard of their duties. This shall in no way affect the standard for
indemnification but shall only constitute a standard of liability. The duties to
be performed by the Investment Manager pursuant to this Agreement may be
performed by it or by officers, directors or by Affiliates of the foregoing
under the direction of the Investment Manager or delegated to unaffiliated third
parties under its direction.
(b) The Investment Manager shall look solely to the assets of
the Company for satisfaction of all claims against the Company, and in no event
shall any Shareholder or Trustee of the Company have any personal liability for
the obligations of the Company under this Agreement.
22 INDEMNIFICATION OF INVESTMENT MANAGER. a. The Company shall
indemnify the Investment Manager and its Affiliates for any loss arising out of
any of their acts or omissions in connection with this Agreement; provided that
(i) the Board of Trustees must have determined, in good faith, that such course
of conduct was in the best interests of the Company and did not constitute
negligence or misconduct by the Investment Manager or its Affiliates; (ii) such
conduct was within the scope of authority of the Investment Manager; and (iii)
any such indemnification shall be recoverable only from the assets of the
Company and not from the assets of the Shareholders or the Trustees.
Notwithstanding the foregoing, the Investment Manager or its Affiliates shall
not be indemnified for any liability, loss or damage incurred by the Investment
Manager or its Affiliates in connection with any claim or settlement involving
allegations that federal or state securities laws were violated by the
Investment Manager or its Affiliates unless: (a) the Investment Manager or its
Affiliates seeking indemnification are successful in defending such action on
the merits of each count involving securities law violations; or (b) such claims
have been dismissed with prejudice on the merits by
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a court of competent jurisdiction; or (c) a court of competent jurisdiction
approves a settlement of the claims against the Investment Manager or its
Affiliates seeking indemnification involving securities law violations and finds
that indemnification of the settlement and related costs should be made; or (d)
indemnification is specifically approved by a court of competent jurisdiction in
each such case.
23 NOTICES. Any notice, report or other communication required
or permitted to be given hereunder shall be in writing, and shall be given by
delivering such notice by hand or by certified mail, return receipt requested,
postage pre-paid, at the following addresses of the parties hereto:
COMPANY:
Charter Municipal Mortgage Acceptance Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Managing Trustee
with a copy to:
Xxxx Xxxxxxxxxxx, Esq.
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
INVESTMENT MANAGER:
Charter Mac Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
Xxxx Xxxxxxxxxxx, Esq.
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Either party may at any time change its address for the
purpose of this Section 23 by like notice.
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24 HEADINGS. The section headings herein have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
[SIGNATURE PAGE FOLLOWS]
25 GOVERNING LAW. The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of New York
as at the time in effect.
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be signed as of the day and year first above written.
CHARTER MUNICIPAL MORTGAGE ACCEPTANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxxxx
Managing Trustee
CHARTER MAC CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------
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EXHIBIT A
LOAN SERVICING DUTIES
Investment Manager shall perform the following services and duties with
respect to servicing of Company Investments:
(a) Investment Manager shall maintain with accuracy such records and
books of account as are customarily maintained by services in connection with
mortgage loans similar to the Company Investments.
(b) Investment Manager shall use its best efforts to make collections
on all payments due and to monitor the payment of amounts payable on each
Company Investment (including the payment of base interest, contingent interest
and deferred interest). Investment Manager shall make regular reports to the
Company on such collections and payments and shall upon request of the Company
advise as to the status of each Company Investment or any matter relating
thereto.
(c) Investment Manager shall make remittance to the Company of any
payments and collections received under the Company Investment in accordance
with instructions of the Company or as otherwise agreed by the parties.
(d) Investment Manager shall maintain (or monitor the maintenance of)
for each Company Investment appropriate real estate tax and insurance impound
accounts as well as replacement reserve accounts pursuant to the terms of the
applicable building loan agreements, construction facility agreements,
mortgages, loan agreements or similar governing loan documents ("LOAN
DOCUMENTS").
(e) Investment Manager shall report with reasonable promptness to the
Company with respect to each Company Investment (i) any fact or circumstance
that may impair the lien priority of the any security granted in respect of such
Company Investment, (ii) any sale, refinancing, casualty (in excess of $10,000)
or abandonment with respect to the related Underlying Property and (iii) any
event of default under the related Loan Document or any event which, upon the
passage of time, would become an event of default under the related Loan
Document.
(f Promptly after any officer, employee or representative of Investment
Manager who would normally be aware of this Agreement in the ordinary course of
his or her duties shall have received knowledge of the occurrence of an event of
default under any Loan Document relating to a Company Investment or an event
which, upon the passage of time would become an event of default under any Loan
Document relating to a Company Investment, Investment Manager shall evaluate the
status of the Company Investment and the related Underlying Property, including,
without limitation, alternative measures for the exercise of rights and
remedies. Investment Manager shall communicate promptly such evaluation to the
Company. Investment Manager shall not be obligated to take any action under the
related Loan Documents until and unless it shall have received prior
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authorization and instruction to do so from the Company and it is so authorized
under the Loan Documents.
(g Other duties of Investment Manager with respect to the servicing
of Company Investment are generally as follows:
- Maintain accurate books and records of account as are customarily
maintained by a loan servicer in connection with similar mortgage
loans.
- Prepare monthly bills to borrowers in accordance with Loan
Documents for payment of principal, interest, premium, net
project revenues and deposits into the tax, insurance and
replacement reserves and other required reserves, all as more
fully set forth in the Loan Documents.
- Review tax and insurance escrows as necessary and cause to be
adjusted monthly escrow payments in accordance with terms of Loan
Documents.
- Cause tax and insurance payments to be made promptly when due or
otherwise as provided in the Loan Documents.
- Review and process requests of borrowers for withdrawals from
replacement reserve accounts and other requests for consents and
approvals in accordance with terms of Loan Documents.
- Maintain monthly, quarterly and annual loan history schedules for
each Company Investment
- Prepare quarterly reports for the Company, or otherwise as
reasonably requested, which outline the status of each Company
Investment including outstanding loan balances and reserve
balances.
- Prepare year-end reports for each borrower outlining total
interest and total principal paid for the year as well as
transaction activity and balances for all required reserves held
under the Loan Documents.
- Prepare and deliver year-end IRS Form 1099's to borrowers.
- Notify and report to the Company promptly, as may come to
Investment Manager's attention, generally and specifically, any
circumstances that may impair lien priority in respect of any
collateral held under the Loan Documents,
sale/refinancing/casualty and/or event of default under Loan
Documents.
- Advise the Company promptly of delinquency or default under Loan
Documents as such comes to the attention of Investment Manager.
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- Prepare and forward delinquency and default notices, if so
authorized under the applicable Loan Documents, and follow-up as
necessary.
- Ensure adequate insurance coverage at closing and determine the
appropriate initial deposits into tax and insurance escrows.
- Coordinate all modifications, work-outs and restructurings,
interfacing with third parties including attorneys, engineers,
accountants, asset managers and borrowers, as required and as
directed by the Company.
- Use best efforts to obtain monthly quarterly and year end audited
financial statements from the borrowers as required under the
Loan Documents.
- Review and approve annual operating budgets for each Underlying
Property as delivered by borrowers.
- Track and review monthly, quarterly, and annual financial
performance of each property utilizing financial statements
submitted by the Underlying Property, comparing the Underlying
Property's actual operations to approved budgeted expectations,
prior years operations and local market trends.
- Track occupancy and unit rent levels of each Underlying Property.
- Maintain Loan Documents and document custody.
- Oversee loan compliance for each Company Investment.
- Cause periodic management review of each Underlying Property.
- Interface and coordinate with inspecting engineers for periodic
physical reviews as necessary of each Underlying Property.
- Monitor and maintain security and escrows for guarantees, as
applicable.
- Handle disbursements and release of security in conformance with
Loan Documents.
- Cause to be delivered updated title reports, as required from
time to time under Loan Documents.
- Prepare pay-off letters, as required.
(h Investment Manager may perform additional duties with respect to
Company Investment as the Company and the Investment Manager may mutually agree.
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