Exhibit 99.24
EXECUTION COPY
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SHARED SERVICES AGREEMENT
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This SHARED SERVICES AGREEMENT (this "Agreement") is entered into
as of November 17, 2003 by and among The Related Companies, L.P., a New York
limited partnership ("Contributor Affiliate"), Related Management Company, a New
York limited partnership ("Related Management," and together with Contributor
Affiliate, the "Related Entities"), and CharterMac Capital Company, LLC, a
Delaware limited liability company ("CCC").
W I T N E S S E T H:
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WHEREAS, this Agreement is made pursuant to, and as a condition
of, that certain Contribution Agreement, dated as of December 17, 2002, by and
among CCC and certain of the Persons, including an Affiliate of the Contributor
Affiliate (together with certain other parties) (the "Contribution Agreement").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained, and for other good and valuable consideration,
it is hereby agreed by and among the parties hereto as follows:
Section 1. Capitalized Terms. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Contribution Agreement.
Section 2. Shared Services. Subject to the terms and conditions
of this Agreement, Contributor Affiliate will provide to CCC and any of its
Affiliates each of the services described in Schedule A and, if requested, any
of the services described in Schedule B (each a "Shared Service," collectively,
the "Shared Services"). The parties acknowledge and agree that the Shared
Services are services which Contributor Affiliate currently provides for its own
operations as well as the operations of the Subject Entities and that such
Shared Services, as provided hereunder, shall be consistent in scope to the
services provided by Contributor Affiliate during the 24-month period preceding
the Effective Date (as defined in Section 6 below), subject to the right to
modify such services as set forth herein. The parties further acknowledge and
agree that nothing contained herein shall be deemed to prohibit Contributor
Affiliate from continuing to provide such services for its own operations or for
any other purpose. The Shared Services shall be provided in a manner and at a
level of quality and performance substantially consistent with Contributor
Affiliate's past practice and Contributor Affiliate's own operations.
Notwithstanding the provision of Shared Services hereunder, Contributor
Affiliate shall retain exclusive control over (i) its personnel and employment
practices, and (ii) the manner in which it provides the Shared Services. In
addition, Contributor Affiliate may discontinue any of the Shared Services if
(i) such Shared Services are no longer being provided by Contributor Affiliate
and its Affiliates for their own operations, or (ii) such Shared Services are no
longer provided on premises at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the
"Premises") and relate specifically to the Premises (for example, reception,
telecommunications, computer servers and mailroom services). Contributor
Affiliate may modify the Shared Services provided to CCC hereunder, if
and to the extent that such services are modified for the operations of
Contributor Affiliate and its Affiliates. Contributor Affiliate shall provide
CCC with written notice at least 90 days prior to the termination or material
modification of any of the Shared Services.
Section 3. Ownership Rights; Other Agreements
(a) Equipment and Software Ownership Rights. The parties
acknowledge and agree that all (i) hardware and other equipment including,
without limitation, all servers and imaging systems, and (ii) software that
Contributor Affiliate uses in providing the Shared Services to CCC hereunder
will be, as between Contributor Affiliate and CCC, proprietary to Contributor
Affiliate, and at all times, as between Contributor Affiliate and CCC,
Contributor Affiliate shall own all right, title and interest therein and
thereto. Notwithstanding the foregoing, CCC shall retain the exclusive right to
use in perpetuity, at its sole cost and expense, the telephone numbers: (800)
▇▇▇-▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇, along with all direct dial numbers
and facsimile numbers as in effect immediately prior to the Effective Date of
Related Capital Company ("RCC") and the employees of RCC who are becoming
employees of CCC as of the Effective Date. With respect to any third party
software used by Contributor Affiliate in providing the Shared Services to CCC
hereunder, CCC shall have no sublicense rights with respect to any such third
party software by virtue of Contributor Affiliate's provision of the Shared
Services. Certain software programs owned and used by Contributor Affiliate,
including ▇▇▇▇▇▇, Microsoft (license for servers), Crystal Reports, TWIN
(treasury system) and E-Check (accounts payable system), were also used by RCC
in connection with its business and the consent of the licensor may be required
to make such software programs available to CCC subsequent to the Effective
Date. To the extent such consent is required, during the Term applicable to such
Services provided using such software, Contributor Affiliate and CCC will each
bear 50% of any incremental cost of making such software programs available CCC
subsequent to the Effective Date as compared to the costs prior to the Effective
Date. No equipment or software of Contributor Affiliate, whether owned, leased
or licensed, that is used in performing the Shared Services hereunder shall be
deemed to be transferred, assigned, conveyed, leased or licensed to CCC by such
performance or use. Notwithstanding the foregoing, CCC shall be entitled to
receive a copy of, and to use without limitation, except for limitations
applicable to the Contributor Affiliate, the software developed for the
so-called "Entity System" and data bases relating thereto upon the expiration or
earlier termination of this Agreement. The parties hereto agree that the
ACS/DISC System which is used for investor relations and other functions is now
and will continue to be the sole property of RCC.
(b) Sublease. The parties agree that if Contributor
Affiliate chooses to vacate the ninth floor at the Premises (the "Ninth Floor"),
then Contributor Affiliate shall give CCC at least 90 days prior written notice
of such intention and offer to CCC the right to have the lease assigned to it or
sublease the Ninth Floor, on the same terms as provided for in the existing
lease (the "Lease Option"), subject to any required landlord consent.
Contributor Affiliate agrees to use its commercially reasonable efforts to
obtain such landlord consent. CCC shall have 30 days to notify Contributor
Affiliate of the exercise of its rights under the Lease Option. If CCC does not
exercise the Lease Option, Contributor Affiliate may surrender the Ninth Floor
to the landlord, assign the lease, or sublet the Ninth Floor to a third party.
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(c) Conference Rooms at the Premises. Contributor
Affiliate and CCC agree that so long as Contributor Affiliate continues to
occupy the Premises, Contributor Affiliate and CCC will continue to share
conference rooms and training rooms on the fifth floor of the Premises and the
Ninth floor, at no additional cost to either party, and the conference rooms and
training rooms will be allocated in accordance with past practice.
(d) Servers. Contributor Affiliate agrees that when it
ceases to occupy the space on the Ninth Floor, it will transfer to CCC the RCC
NTI server and the server with an external Raid Array, which are currently being
used by RCC. Such transfer will be made in "as is" condition, without
representation or warranty as to the servers and without any purchase payment
except for future lease or maintenance payments, if any, payable to third
parties with respect to such servers.
(e) Status of Employees. Whenever an employee of
Contributor Affiliate is utilized by Contributor Affiliate to perform Shared
Services for CCC under this Agreement ("Allocated Employee"), such employees
shall at all times remain an employee of Contributor Affiliate and shall remain
subject to Contributor Affiliate's direction and control. Other than CCC's
obligation to pay a portion of the cost of the Allocated Employees as Fees (as
hereinafter defined), CCC shall have no liability to Contributor Affiliate or
Contributor Affiliate's employees for Contributor Affiliate's employees'
welfare, salaries, fringe benefits, workers' compensation, legally required
employer contributions or tax obligations by virtue of the relationships
established under this Agreement.
(f) Other Services.
(i) In addition to the Shared Services, for a period
of five years from the date hereof, so long as ▇▇▇▇▇▇▇ ▇▇▇▇ or his affiliates
continue to control Related Management (including, for all purposes of this
Agreement, any successor thereto or any other ▇▇▇▇▇▇▇ ▇▇▇▇ controlled entity
that engages in substantially the same business), promptly following the written
request of CCC or CharterMac ("CharterMac"), Related Management will provide to
CCC or CharterMac or their Affiliates such other services relating to their
investments as shall be reasonably requested by CharterMac or CCC (the "Other
Services," and together with Shared Services, the "Services"). The Other
Services shall be of a kind provided by Related Management to CharterMac or RCC
and its Affiliates prior to the Effective Date. The Other Services shall be
provided in a manner and at a level of quality and performance substantially
consistent with Related Management's past practice and consistent with the
manner and level that Related Management provides such services for itself and
its Affiliates. Related Management may discontinue any of the Other Services if
such Other Services are no longer being provided by Related Management for
itself, its Affiliates or third parties. Related Management may modify the Other
Services provided to CCC hereunder if and to the extent that such services are
modified for the operations of Related Management and its Affiliates or third
parties for whom such services are provided. Related Management shall provide
CCC with written notice at least 90 days prior to the termination or material
modification of any of the Other Services.
(ii) The fee for the Other Services shall be on the
same terms as such services would be provided to CCC or CharterMac by
unaffiliated third parties. Prior to
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commencement of such Other Services, Related Management shall furnish to CCC
and/or CharterMac, as the case may be, a statement of basis on which services
will be billed and an estimate for the cost of those services.
Section 4. Data; Contributor Affiliate Information.
(a) Recordkeeping; Audits and Inspections. Each Related
Entity shall be responsible for preparing and maintaining full and accurate
records of all Services provided by such Related Entity to CCC or its Affiliates
hereunder (and the calculation of Fees relating to such Services), including all
data relating to the business of CCC or its Affiliates generated in the course
of such Related Entity's performance of the Services (the "Data"). Each Related
Entity shall keep, and make available, the Data during regular business hours at
its place of business where such services are rendered or at such other location
as required by applicable laws, rules or regulations of any governmental entity
for audit or inspection by CCC or its authorized representatives and agents. CCC
shall have the right, at its cost, to review the books and records (including
the Data) of the Related Entities, or any of their Affiliates providing any of
the Services hereunder, that relate to the Services provided under this
Agreement. Any such review shall be conducted in a manner so as not to interfere
unreasonably with the normal business operations of the Related Entities. The
Related Entities agree to provide reasonable cooperation in connection with any
such review and to make their records (including computer systems), personnel
and facilities reasonably available so as to facilitate and minimize the cost of
any such review.
(b) Ownership of Data.
(i) The parties acknowledge and agree that, as between
the Related Entities and CCC, CCC shall own all right, title and interest in and
to the Data. Each Related Entity shall use commercially reasonable efforts
consistent with that which it does to maintain the confidentiality of similar
information of its own, to maintain the Data and all other documents, expertise
and technical, data processing, client and other information of and relating to
CCC or its Affiliates furnished, disclosed or otherwise obtained by a Related
Entity hereunder ("CCC Information") in confidence and shall not use CCC
Information other than for the purpose of performing its obligations hereunder.
Each Related Party shall restrict dissemination of CCC Information to only those
Persons in its organization who are reasonably required to have access to such
information in order to perform such Related Party's obligations under this
Agreement.
(ii) This obligation of confidentiality with respect
to CCC Information shall not apply to or (as the case maybe) shall cease to
apply to information that: (A) is generally known to the public prior to the
date it was disclosed, or becomes generally known to the public subsequent to
such disclosure, through no fault of the Related Entities, (B) was properly
received by the Related Entities after the Effective Date free of any obligation
of confidentiality, (C) was received subsequent to the disclosure hereunder from
a third party who had a lawful right to disclose such information, (D) was
required to be disclosed by the law or any governmental order, provided that the
party required to make such disclosure shall, so far as is reasonably
practicable to do so, provide prior written notice of such proposed disclosure
to CCC, or (E) was independently developed by the Related Entities.
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(c) Related Entities' Information.
(i) CCC acknowledges and agrees that all documents,
expertise and technical, data processing, client and other information of and
relating to each Related Entity and furnished, disclosed or otherwise obtained
by CCC hereunder ("Related Entities' Information") shall be proprietary to such
Related Entity, and CCC shall use commercially reasonable efforts consistent
with that which it does to maintain the confidentiality of similar information
of its own, to maintain the Related Entities' Information in confidence and
shall not use the Related Entities' Information for any purpose except as
required hereby. CCC shall restrict dissemination of Related Entities'
Information to only those Persons in its organization who are reasonably
required to have access to such information in order to perform CCC's
obligations under this Agreement.
(ii) This obligation of confidentiality with respect
to the Related Entities' Information shall not apply to or (as the case maybe)
shall cease to apply to information that: (A) is generally known to the public
prior to the date it was disclosed, or becomes generally known to the public
subsequent to such disclosure through no fault of CCC, (B) was properly received
by CCC after the Effective Date free of any obligation of confidentiality, (C)
was received subsequent to the disclosure hereunder from a third party who had a
lawful right to disclose such information, (E) was required to be disclosed by
the law or any governmental order, provided that the party required to make such
disclosure shall, so far as is reasonably practicable to do so, provide prior
written notice of such proposed disclosure to the applicable Related Entity, or
(E) was independently developed by CCC.
Section 5. Fees.
(a) Calculation. Each of the Shared Services shall be
provided by Contributor Affiliate or its Affiliates in accordance with the costs
or cost formulas set forth on Schedule A (and, as applicable, Schedule C), and
upon CCC's request to Contributor Affiliate, any of the additional services set
forth in Schedule B shall be provided by Contributor Affiliate or its Affiliates
in accordance with the costs or cost formulas set forth on Schedule B (and, as
applicable, Schedule C) (the "Fees"); provided, however that such Fees shall not
be greater than the amount that CCC or CharterMac reasonably would be required
to pay within the range of prices for such services as is typically charged at
the relevant time by unaffiliated third parties. Additionally, CharterMac shall
have the right to challenge any increase in Fees caused by increased costs
resulting from changes in the requirements of Contributor Affiliate or its
Affiliates that did not also apply in a substantially similar manner to
CharterMac, CCC or RCC
(b) Payment of Fees. Each Related Entity will invoice CCC
on a monthly basis for all Services rendered by such Related Entity during the
preceding month (the "Monthly Invoice") and CCC will pay such Monthly Invoice
within 15 Business Days following receipt by CCC. The Services provided and the
Fee for each Service shall be individually itemized. Contributor Affiliate will
provide CCC with reasonable supporting evidence for any invoice upon request.
Section 6. Term of this Agreement. This Agreement shall be
effective on the date hereof (the "Effective Date") and unless earlier
terminated as set forth in Section 7 below, shall
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continue in full force and effect until the later of (i) the fifth anniversary
hereof and (ii) the date ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ is no longer a member of the Board of
Trustees of CharterMac (the "Term").
Section 7. Termination; Effect of Termination.
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(a) Early Termination. This Agreement may be terminated
prior to the expiration of the Term hereof as set forth below:
(i) In the event that CCC shall fail to pay any Fees
payable hereunder within 15 days following the date when due, then this
Agreement shall terminate 10 days following receipt of written notice from
Contributor Affiliate to CCC, unless CCC shall pay such Fees within such 10-day
period; provided, however, that CCC shall not be obligated to pay the amount of
any Fee (or portion thereof) as to which it has a good faith dispute, so long as
CCC gives the Related Entities prompt notice of such dispute and a reasonably
detailed statement of the basis for the dispute. The parties shall cooperate in
good faith to resolve any such dispute as soon as possible and until so resolved
the Related Entities shall continue to provide the Services hereunder in the
normal course.
(ii) In the event that a Related Entity, on the one
hand, or CCC, on the other hand, shall (A) authorize or agree to the
commencement of a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency, corporation, receivership or other similar law now or
hereafter in effect, or (B) have any involuntary case or other proceeding
commenced against it seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days, then CCC, or any
Related Entity, as applicable, shall have the right to terminate this Agreement,
or terminate this Agreement with respect to certain services provided to CCC or
such Related Entity, as applicable, hereunder, immediately upon its delivery of
written notice to such Related Entity or CCC, as applicable.
(b) Accrued Fees on Termination. Upon the expiration of
the Term or other termination of this Agreement, CCC will pay all amounts due
and owing to Contributor Affiliate through the date of such termination.
(c) Return of CCC Information. Upon the expiration of the
Term or other termination of this Agreement, each Related Entity shall return to
CCC within 30 days of the expiration of the Term or the termination of this
Agreement all CCC Information in such Related Entity's possession or under such
Related Entity's control. The Related Entities shall be permitted to retain
copies of all CCC Information that it is required to retain pursuant to
applicable laws, rules or regulations of any governmental entity. To the extent
not already the property of CCC, title to and risk of loss for all CCC
Information will pass to CCC upon delivery of such CCC Information to CCC.
(d) Election to Reduce Term or Scope of Services.
Notwithstanding anything to the contrary herein, (i) CCC shall have the right to
terminate this Agreement, or to terminate this Agreement with respect to any
Services provided hereunder, at any time upon 90 days prior
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written notice to Contributor Affiliate and (ii) nothing in this Agreement shall
restrict CCC or its Affiliates from obtaining the Services or any similar or
other services from any Person other than the Related Entities including,
without limitation, through CCC or its Affiliate arranging to have such services
provided internally or through third party arrangements.
Section 8. Limitation of Liability. IN NO EVENT WILL ANY PARTY BE
LIABLE TO THE OTHER PARTIES, IN CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS
AGREEMENT. CONTRIBUTOR AFFILIATE SHALL HAVE NO LIABILITY ARISING FROM OR
RELATING TO THIS AGREEMENT OR THE PROVISION OF SERVICES UNDER THIS AGREEMENT,
EXCEPT TO THE EXTENT ANY LOSS, LIABILITY OR DAMAGE RESULTS FROM ITS
RECKLESSNESS, GROSS NEGLIGENCE, OR WILLFUL OR INTENTIONAL MISCONDUCT.
Section 9. Indemnification. The Related Entities, jointly and
severally, on the one hand, and CCC, on the other hand, will defend, indemnify,
save and hold harmless CCC, or Contributor and/or Related Management, as
applicable, and its officers, directors, employees and agents from any and all
demands, liabilities, costs or expenses, including reasonable attorney's fees
and disbursements, arising out of or resulting from a third party claim
primarily resulting from gross negligence, recklessness or willful or
intentional misconduct of such party or its employees or agents.
Section 10. Force Majeure. No party shall be liable to the other
parties for its inability to perform under this Agreement if such inability is
due to strike or other labor dispute, fire, war, insurrection, Act of God,
governmental intervention, terrorism or any other event that is otherwise
unavoidable with reasonable diligence and is caused by any event not within such
party's reasonable control and without its fault or negligence (each a "Force
Majeure Event"). Any party claiming the benefit of this Section 10 shall
promptly notify the other parties in writing upon learning of the occurrence of
any Force Majeure Event and upon such notice the affected provisions and/or
other requirements of this Agreement shall be suspended or reduced by an amount
consistent with reductions made to the other operations of such party during the
period of such disability. Upon the cessation of such Force Majeure Event,
Contributor Affiliate or Related Management Co., as the case may be, will use
its commercially reasonable efforts to resume its performance of the Services
hereunder as soon thereafter as reasonably practicable. If the Force Majeure
Event continues to have effect for a period of more than 30 days, the party not
claiming relief under this section shall have the right to terminate this
Agreement immediately upon written notice of such termination to the other
party.
Section 11. Miscellaneous Provisions.
(a) Notices. All notices and other communications given
or made pursuant hereto shall be in writing and delivered by hand or sent by
registered or certified mail (postage prepaid, return receipt requested) or by
nationally recognized overnight air courier service and shall be deemed to have
been duly given or made as of the date delivered if delivered personally, or if
mailed, on the third business day after mailing (on the first business day after
mailing in the case of a nationally recognized overnight air courier service) to
the parties at the following addresses:
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If to the Contributor Affiliate or Related Management, as the
case may be, to:
The Related Companies, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to CCC, to:
CharterMac Capital Company, LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ &Walker LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Any party may by notice given in accordance with this
Section 11(a) to the other parties designate another address or Person for
receipt of notices hereunder.
(b) Amendment and Modification. This Agreement may be
modified, amended or supplemented only by an instrument in writing signed by or
on behalf of all of the parties hereto; provided, however, that any such
modification, amendment or supplement shall require the approval of not less
than a majority of the independent trustees of CharterMac.
(c) Waiver of Compliance; Consents. Except as otherwise
provided in this Agreement, any failure of any of the parties to comply with any
obligation, covenant, agreement or condition herein may be waived by the party
or parties entitled to the benefits thereof only by a written instrument signed
by the party granting such waiver (which, in the case of a waiver by CCC, shall
require the approval of not less than a majority of the independent trustees of
CharterMac), but such a waiver or failure to insist upon strict compliance with
respect to such
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obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent other failure. Whenever this
Agreement requires or permits Consent by or on behalf of any party hereto, such
Consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11(c).
(d) Governing Law. This Agreement shall be governed by
the laws of the State of New York without regard to the conflict of laws
principles thereof.
(e) Jurisdiction. Any action or proceeding arising under
or in connection with this Agreement shall be instituted in the United States
District Court for the Southern District of New York or the courts of the State
of New York sitting in the County of New York, and the parties hereto
irrevocably submit to the exclusive jurisdiction of such courts in any such
action or proceedings and irrevocably waive the defense of an inconvenient forum
to the maintenance of such action or proceeding. The parties hereto Consent to
service of process upon them in the manner set forth in Section 11(a) hereof.
(f) Assignment. No party may assign any of its rights or
delegate any of its duties under this Agreement without the prior written
consent of the other parties, provided that (i) CCC shall have the right to
assign its rights and obligations hereunder to a third party in the event of a
transfer of substantially all of its assets and business whether by means of
sale, assignment, consolidation, reorganization, merger or otherwise and
provided the third party assumes all obligations and liabilities of CCC
hereunder and that CCC stays fully liable therefor and (ii) either of the
Related Entities may elect to have any of its obligations hereunder performed by
an Affiliate (provided that no such assignment shall release either of the
Related Entities from any such obligations).
(g) Severability. The invalidity or unenforceability of
any provisions of this Agreement in any such jurisdiction shall not affect the
validity, legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law. Upon such determination that any provision is
invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
(h) Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(i) Section Headings. The section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. All references in this Agreement to Sections
are to sections of this Agreement, unless otherwise indicated.
(j) Entire Agreement. This Agreement, together with the
Contribution Agreement and the other Collateral Agreements, embodies the entire
agreement and
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understanding of the parties hereto in respect of the transactions contemplated
by this Agreement. There are no restrictions, promises, inducements,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein or therein. This Agreement, the
Contribution Agreement and the other Collateral Agreements supersede all prior
written or oral agreements and understandings between the parties with respect
to the transactions.
(k) Survival. Upon the termination or expiration of this
Agreement, the following Sections shall survive: 3(a), 3(b), 3(d), 3(e), 4, 7,
8, 9, 10 and 11.
(l) No Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of each party thereto and their respective
representatives, heirs, successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any right, benefit, claim or remedy of any nature whatsoever under or by
reason of this Agreement; provided, however, that CharterMac is an intended
third party beneficiary of this Agreement and shall have the right,
independently or together with CCC, to enforce the provisions of this Agreement.
(m) Interpretation.
(i) The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. If any ambiguity or question of
intent or interpretation arises, this Agreement will be construed as if drafted
jointly by the parties and no presumptions or burden of proof will arise
favoring or disfavoring any party by virtue of authorship of any provisions of
this Agreement.
(ii) All pronouns and any variations thereof refer to
the masculine, feminine or neuter, singular or plural, as the context may
require.
(iii) The words "include," "includes" and "including"
shall be deemed to be followed by the phrase "without limitation."
(n) Further Assurances. Each of the parties shall use
reasonable efforts to execute and deliver to any other party such additional
documents and take such other action, as any other party may reasonably request
to carry out the intent of this Agreement and the transactions contemplated
hereby.
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IN WITNESS WHEREOF, this Agreement is hereby executed as of the
day and year first above written.
THE RELATED COMPANIES, L.P.
By: The Related Realty Group, Inc.,
General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President
RELATED MANAGEMENT COMPANY
By: RCMP Inc.
General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
CHARTERMAC CAPITAL
COMPANY, LLC
By: CHARTERMAC CORPORATION,
Managing Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
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SCHEDULE A
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SHARED SERVICES
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SERVICE/ASSET COSTS
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Computer Equipment and Services
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1. Servers/Networking Equipment: Contributor Affiliate Amortization of cost of
shall provide those services needed to maintain the data equipment in accordance with
processing requirements of CCC, including without current methodology and
limitation, the continued use of Contributor Affiliate's allocated cost of network
servers, maintenance of back-up for data and other operations. See Schedule C.
networking equipment and continued inclusion of CCC on
Contributor Affiliate's intranet and network on the same
basis as Related Capital Company ("RCC") was included
prior to the Effective Date.
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2. PC/Server Maintenance: Contributor Affiliate shall See Schedule C.
maintain CCC's computer equipment, including without
limitation, CCC's personal computers, servers and other
related computer equipment.
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Computer Support Services
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1. Help Desk/Training: Contributor Affiliate shall Help desk based on number of
provide help desk support and computer training for CCC's calls and training costs allocated
employees. in proportion to head count at the
Premises; the costs will be
determined in accordance with
current methodology.
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Office Services
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1. Reception Services: Contributor Affiliate shall See Schedule C.
provide reception services to CCC.
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2. Mailroom Services: Contributor Affiliate shall provide See Schedule C.
mailroom services, including without limitation, the
continuation of all licenses, postage meters, accounts,
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courier and express mail delivery services.
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3. Office Management: Contributor Affiliate shall CCC will be charged 100% of the
provide (i) office supplies, including, without direct cost of the cost of the
limitation, CCC letterhead and stationery; (ii) supplies listed in (i) and
oversight of capital improvements for the Premises; and special orders made at the
(iii) services in connection with purchases of request of CCC.
furnishings, equipment and other office items for
CharterMac's office. Costs for Shared Services listed
in (ii) and (iii) shall be in
accordance with Schedule C.
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Telecommunication Services
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Telecommunication Services: Contributor Affiliate shall CCC's use of the
provide services necessary to maintain telecommunications telecommunications network
needs of CCC, including, without limitation, telephone line will be invoiced on a per call
services, telephone calls and related maintenance contracts. basis in accordance with
In addition, Contributor Affiliate shall provide access to current practice, and direct
additional trunk lines for rollover numbers consistent with charges will be made for new
usage requirements, plus additional trunk lines as maybe custom equipment.
required by CCC.
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Shared Equipment/Supplies: The equipment and supplies which CCC will be charged 100% of the
the Allocated Employees would use in the ordinary course of direct cost of new custom
providing the office and telecommunications services pursuant equipment ordered at the request
to this Agreement; including, without limitation, Seller of CCC for CCC's exclusive use.
Affiliates's current telephone system. Costs relating to installing new
equipment used by CCC will be
paid in accordance with Schedule
C.
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E-mail Services
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1. Contributor Affiliate shall maintain the existing RCC No charge.
employee e-mail addresses and provide new e-mail addresses
for new employees who become employees of CCC prior to the
time CCC e-mail addresses are provided by CCC to its
employees ("RCC E-mail Addresses") for up to 2 months
after the Effective Date. CCC will endeavor to change
such e-mail addresses to addresses other than the RCC
E-mail promptly following the Effective Date and notify
Persons with whom it does business of such change. After
such period, CCC will
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cause any e-mails sent to RCC E-mail Addresses to be forwarded
to E-mail addresses specified by CharterMac. The RCC E-mail
Addresses shall not be re-assigned to any other party during
the Term.
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Kitchen/Lunchroom Services
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1. Contributor Affiliate shall provide CCC with See Schedule C.
(i) equipment and supplies located in Contributor
Affiliate's kitchen/pantry room from time to time and
which are used in the ordinary course of Contributor
Affiliate's business, (ii) maintenance of vending
machines located at the Premises, (iii) catering services
and supplies, and (iv) daily supplies of coffee and other
beverages.
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Human Resources
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1. Contributor Affiliate shall provide assistance with Fee will be $ 24,217 per month,
(i) recruiting, (ii) employee recordkeeping and office subject to adjustment (as of
management, (iii) processing payroll information and each fiscal year) for changes in
submission of such data to the payroll administrator in the relative number of personnel
accordance with CCC's instructions, and (iv) employee and for changes in Contributor
benefits consistent with past practice. Affiliate's cost of providing
services.
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2. All of the equipment and supplies which the Allocated Included in item 1 above.
Employees use in the ordinary course of providing the
services rendered in human resources services in
connection with foregoing item 1. above.
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SCHEDULE B
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OTHER SERVICES
Below is a list of additional services available upon request of CCC:
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SERVICE/ASSET COSTS
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1. In-house legal services in accordance with past practice. Fee will be charged based on a
method to be agreed upon prior
to providing services consistent
with past practice or the method
then being used to allocate
costs to Affiliates of
Contributor Affiliate.
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2. Insurance services in accordance with past practice. Fee will be charged based on a
method to be agreed upon prior
to providing services
consistent with past practice
or the method then being used
to allocate costs to
Affiliates of Contributor
Affiliate.
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3. In-house tax compliance services in accordance with past Fee will be charged based on a
practice. method to be agreed upon prior
to providing services consistent
with past practice or the method
then being used to allocate
costs to Affiliates of
Contributor Affiliate.
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4. Project/property development accounting services in Fee will be charged based on a
accordance with past practice. method to be agreed upon prior
to providing services consistent
with past practice or the method
then being used to allocate
costs to Affiliates of
Contributor Affiliate.
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5. Software development, modification and programming. Fee will be charged based on a
method to be agreed upon prior
to providing services
consistent with past practice
or the method then being used
to allocate costs
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to Affiliates of Contributor
Affiliate.
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SCHEDULE C
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FORMULAS FOR COSTS, EXPENSES
AND ALLOCATIONS FOR SHARED SERVICES
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Except as otherwise set forth on Schedule A or B hereto, the Fees for all Shared
Services will be calculated based upon the current methodology used to allocate
the costs of such services to RCC, a copy of which is attached hereto as Exhibit
A. Notwithstanding the foregoing, calculations of Fees shall not include any
overhead relating to ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or their
successors, including, without limitation, the rents allocable to the space used
by such persons and any secretaries or support staff specifically allocable to
such persons.
EXHIBIT A
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Related Partners Overhead Allocations
2002
Rent Allocation:
Allocated based on the percentage of the total square footage occupied by each
department less common spaces (i.e. hallways, bathrooms, cafeterias etc.). A
standard square footage is assigned to each employee based on the type of space,
which they occupy (i.e. single or double cubicle, small or large office). A
manual review of each floor is conducted during each year's budget process to
verify the seating chart of each department. Changes are also made as
departments are added, expand or contract during the year.
Human Resources Allocation:
Allocated based on the headcount of the companies and departments that benefit
from the services of the Human Resources Department. Includes entities outside
the New York office. The headcount list is supplied by the Payroll Department
and is updated monthly.
Office Services Allocation:
Allocated based on the headcount of the companies and departments that benefit
from the services of the Office Services Department. Only those departments
located at 625 Madison and ▇▇▇▇ ▇▇▇▇▇▇ share in the Office Services allocation.
Since the Human Resources Allocation is completed prior to the Office Services
allocation, the H/R Department headcount is excluded from the O/S calculation.
The headcount list is supplied by the Payroll Department and is updated monthly.
IT Department Allocation:
Three allocations make up the IT Department's allocation. Infrastructure
expenses are allocated based on the headcount of the companies and departments
which the IT Department has the responsibility of supporting. The headcount list
is supplied by the Payroll Department and is updated monthly.
Help Desk expenses are allocated based on the number of calls to the Help Desk
every month. A monthly call summary is supplied by the IT Department.
Programming Expenses are allocated based on the monthly timesheets that the
programmers in the IT Department complete. The Payroll Department supplies a
monthly timesheet summary report for their time. Since the H/R and O/S
allocations are completed prior to the IT Department allocation, they are not
included in the calculation of the IT Department's allocation.
Payroll Department Allocation:
Allocated based on the headcount of the companies and departments that have
their payroll processed by Related's Payroll Department. Includes entities
outside the New York office. The headcount list is supplied by the Payroll
Department and is updated monthly. Since the H/R, O/S and IT allocations are
completed prior to the Payroll Department allocation, their headcount is not
included in the calculation of the Payroll Department's allocation.
Development Accounting Department Allocation:
Allocated based on the monthly timesheets filled out by the Development
Accounting Department. The Payroll Department supplies a monthly timesheet
summary report for their time. Time charged to the Development Accounting
Department is deducted from the summary and the allocation is calculated on the
time remaining. Since the H/R, O/S, IT & Payroll Department allocations are
completed prior to the Development Accounting Department allocation, any time
charged to those departments is also not included in the calculation of the
Development Accounting Department allocation.
Corporate Accounting Department Allocation:
Allocated based on the monthly timesheets filled out by the Corporate Accounting
Department. The Payroll Department supplies a monthly timesheet summary report
for their time. Time charged to the Corporate Accounting Department is deducted
from the summary and the allocation is calculated on the time remaining. Since
the H/R, O/S, IT & Payroll Department allocations are completed prior to the
Corporate Accounting Department allocation, any time charged to those
departments is also excluded from the calculation of the Corporate Accounting
Department allocation.
Treasury Department Allocation:
Allocated based on the monthly timesheets filled out by the Treasury Department.
The Payroll Department supplies a monthly timesheet summary report for their
time.
Tax Accounting Department Allocation:
Allocated based on the monthly timesheets filled out by the Tax Accounting
Department. The Payroll Department supplies a monthly timesheet summary report
for their time. Time charged to the Tax Accounting Department is deducted from
the summary and the allocation is calculated on the time remaining.
Executive Department Allocation:
Allocated based on the headcount of the companies and departments that benefit
from the services of the Executive Department. Entities outside of the NY office
are included. The Executive Allocation is the final Related Partners allocation
completed each month and, as such, the headcount for the other Related Partners
departments is excluded from the calculation of the Executive Department
allocation. The headcount list is supplied by the Payroll Department and is
updated monthly.
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