exv10w1



 






Exhibit 10.1 




AMENDED AND RESTATED

MANAGEMENT AGREEMENT

BETWEEN

PERFORMANCE HOME BUYERS, LLC

AND

PERFORMANCE HOME BUYERS, INC.




     THIS AGREEMENT is hereby entered into as of October 31, 2005 by and between Performance Home
Buyers, LLC, an Ohio limited liability company (the “Company”), and Performance Home Buyers, Inc.,
an Ohio corporation (the “Manager”).



     WHEREAS, the Company and the Manager had entered into the Management Agreement dated effective
January 1, 2003 (“First Agreement”).



     WHEREAS, the parties would like to revise and restate the First Agreement in full to make the
agreement between the parties more clear.


NOW, THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency of which
is hereby acknowledged, the parties hereto agree to revise and restate in full the First Agreement
as follows:





	 	1.	 	Duties. The Manager will act as the Company’s manager by handling the
Company’s day-to-day operations and providing administrative services on the Company’s
behalf.






	 	a.	 	The services which the Manager will provide the Company shall
include, but not be limited to the following:






	 	i.	 	maintaining the books and records on the
Company’s behalf regarding the Company’s business and properties;
	 
	 	ii.	 	acting as liaison between the Company and
purchasers and renters of the Company’s properties and handling
issues regarding payments, insurance claims, cancellation of land
contracts or lease-to-purchase agreements and repossession;
	 
	 	iii.	 	advertising and marketing the Company’s
services;
	 
	 	iv.	 	locating new properties to purchase;
	 
	 	v.	 	handling the purchase of such properties on
the Company’s behalf;
	 
	 	vi.	 	handling the rehabilitation of such
properties;
	 
	 	vii.	 	collecting payments of principal, interest,
taxes and insurance from purchasers under land contracts or contracts
for deed;
	 
	 	viii.	 	collecting rent payments from tenants
under lease-to-purchase agreements;
	 
	 	ix.	 	obtaining bank loans to refinance the
properties on the Company’s behalf;
	 
	 	x.	 	making payments to the Company’s creditors,
including payment of interest and principal on bank loans, on the
Company’s behalf;




 









 












	 	xi.	 	assisting purchasers to obtain permanent
financing;
	 
	 	xii.	 	providing other counseling services to
purchasers;
	 
	 	xiii.	 	making distribution payments to the
Company’s membership interest unit holders;
	 
	 	xiv.	 	preparing and filing all accounting, tax
and financial reports;
	 
	 	xv.	 	preparing applicable tax reports and
documents for each member of the Company including the partnership
returns and related K-1s;
	 
	 	xvi.	 	making payments of taxes and insurance
premiums on the Company’s behalf; and
	 
	 	xvii.	 	obtaining other forms of financing on the
Company’s behalf.






	 	b.	 	The Manager agrees that when a land contract is refinanced by
the purchaser with permanent financing from a third-party or pays the full
purchase price of the property under the land contract, the proceeds received
by the Manager on behalf of the Company will be used first to repay in full the
Company’s bank loan on such property.
	 
	 	c.	 	Except as provided in the Company’s Amended and Restated
Operating Agreement or Section 1(b) above, all decisions affecting the
Company’s affairs will be made by the Manager.






	2.	 	Compensation. The Company will pay the Manager a bi-monthly management
fee equal to the Manager’s expenses incurred on the Company’s behalf, including
employee payroll and benefits for those employees of the Manager who provide services
on behalf of the Company as well as all tax liability and operating expenses.
	 
	3.	 	Term. This Agreement shall continue until terminated by the Company
upon a vote of the holders of at least a majority of the issued and outstanding common
units of membership interest of the Company.
	 
	4.	 	Waiver, Modification or Amendment. No waiver, modification or
amendment of any term, condition or provision of this Agreement shall be valid or of
any effect unless made in writing, signed by the party to be bound or its duly
authorized representative and specifying with particularity the nature and extent of
such waiver, modification or amendment. Any waiver by any party of any default of the
other shall not effect, or impair any right arising from, any subsequent default.
	 
	5.	 	Assignment. The Manager acknowledges that the Manager’s services are
unique and personal. Accordingly, the Manager may not assign the Manager’s rights or
delegate the Manager’s duties or obligations under this Agreement unless the Company
agrees to such assignment in writing. The Company’s rights and obligations under this
Agreement shall inure to the benefit of and shall be binding on the Company’s
successors and assigns.
	 
	6.	 	Entire Agreement. This Agreement, including any documents expressly
referred to herein, contains the entire agreement between the Manager and the Company
and supersedes and cancels any and all other agreements, whether oral or in




 









 












writing, between the Manager and the Company with respect to the matters referred to herein.


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
above written.




	 	 	 	 	 	 	 
	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	Performance Home Buyers, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Wayne Hawkins
 

	 	 
	 

	 	Its:
	 	Chief Operating Officer	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	MANAGER:	 	 
	 	 	Performance Home Buyers, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Paul Quolke	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:
	 	Vice President