- (i) any lease, sublease, deed restriction, or grant of easement on all or any part of the Property, but the conveyance of leases or subleases under contracts with third parties that have been previously approved do not require additional approval;
- (ii) any sale or exchange of the Property;
- (iii) any indebtedness or loan, or any negotiation or refinancing of any indebtedness or loan, secured by a lien on the Property;
- (iv) any successor or replacement Manager;
- (v)(iv) annual budgets for development and operations of the Property; and
- (vi)(v) any contracts, renewals, or amendments, and any transactions with parties affiliated with any party . or the Manager, including the Management Agreement.
4. INCOME AND LIABILITIES.
Each party will be entitled to all benefits and obligations of ownership of the Property. Specifically, each party shall:
- (a) be entitled to all benefits of ownership of the Property, on a gross and not a net basis, including all items of income, revenue, and proceeds from a sale, refinance, or condemnation of the Property, in proportion to their Interests; and
- (b) bear, and be liable for, payment of all expenses of ownership of the Property, on a gross and not a net basis, including all operating expenses and expenses of a sale, refinancing, or condemnation, in proportion to their Interests, except for amounts to be retained for reserves or improvements in accordance with the Management Agreement or the applicable budget for the Property.
5. OBLIGATIONS.
- (a) Documents. Each party shall execute any documents required in connection with a sale or refinancing of the Property.
- (b) Additional Funds. Each party shall be responsible for its pro rata share, based on its Interest, of expenses, fees, and future cash needed in connection with the acquisition, financing, ownership, operation and maintenance of the Property, including any costs incurred before the effective date of this agreement.
6. SALES OF PROPERTY, INTERESTS.
- (a) Right to Sell Interest. Each party may sell its Interest at any time. However, that sale must be for the selling party's entire Interest and to one buyer only. If a party sells its entire Interest, the sale proceeds shall be used first to pay in full any mortgage or other lien to which that Interest is subject. After that, the balance, if any, will be distributed to the selling party. The new buyer shall take its interest subject to this agreement, and the seller and buyer shall sign a separate assignment agreement to this effect.
- (b) Sale of Entire Property. If the parties jointly sell or otherwise dispose of the Property in its entirety, the costs of that sale will be shared by all parties in accordance with their Interests. The proceeds will be used first to pay in full any mortgage or other lien to which the Property is subject. After that, the balance, if any, will be distributed to the parties in accordance with their respective Interests.
7. TERMINATION.
This agreement shall become effective on the effective date described in section 25 24 and shall continue indefinitely until any of the following occur:
- (a) the Property is sold or exchanged;
- (b) this agreement is terminated by mutual agreement of the parties; or
- (c) a party buys or otherwise takes ownership of all Interests in the Property.
8. TAX MATTERS.
The parties intend to be excluded from the provisions of the Internal Revenue Code relating to partnership reporting requirements. The parties shall report their respective shares of the items of income, deduction, and credit on any required income tax returns in a manner consistent with the exclusion of the Property from those provisions of the Internal Revenue Code.
9. DIVISION OF PROFITS AND LOSSES.
Except as otherwise provided in this agreement, the net profits of the Property shall be divided and distributed to the parties on a pro rata basis in accordance with their respective Interests. All losses and liabilities occurring in the course of the business shall be borne and paid by the parties in the same proportion.
10. EVENTS OF DEFAULT.
Each of the following will be considered an "Event of Default" under this agreement:
- (a) the failure of a party to pay assessments against it, to make capital or other contributions when called to be made, or to pay any other amount or produce any information due under this agreement as and when due, and the continuance of that failure for a period of 45 days after that party's receipt of written notice from the other party specifying the failure;
- (b) the failure of a party to perform, comply with, or observe any other agreement, obligation, or undertaking of the parties related to the Property, or any other term, condition, or provision in this agreement, and the continuance of such failure for a period of 45 days after that party's receipt of written notice from the other party specifying the failure, or, if reasonably required, any longer period (not to exceed 120 days) needed to cure that failure. However, this extension will be permitted only if the defaulting party timely and diligently starts and completes the required cure;
- (c) the involuntary transfer by a party of its Interest in the Property or, except as specifically permitted pursuant to this agreement, the voluntary attempt to or actual transfer of its Interest without the other party's prior written consent;
- (d) the filing of a petition by or against a party:
- (i) in any bankruptcy or other insolvency proceeding;
- (ii) seeking any relief under the bankruptcy laws or any similar debtor relief law;
- (iii) for the appointment of a liquidator or receiver for all or substantially all of the party's property or for the party's Interest in the Property; or
- (iv) to reorganize or modify the party's capital structure; and
11. DEFAULTS AND REMEDIES.
- (a) Termination. If an Event of Default occurs, the nondefaulting parties may, at their option and in their discretion, and in addition to all other rights, remedies, and recourses afforded them under this agreement or by law or equity, terminate this agreement by giving written notice to the defaulting party.
- (b) Advances of Funds. If a party does not pay its share of costs and expenses, including any applicable taxes, the other parties may advance the necessary funds to the defaulting party. All amounts so advanced shall bear interest at the prime interest rate on the date of the advance, calculated from the date of that advance, and will be due immediately on written demand for payment as provided in this agreement. If a party does not pay the full amount of any advances and interest within 30 days of receipt of a demand for payment, that party will be deemed in default under this agreement.
- (c) Disbursements after Default. If the Property is sold or if profits from the Property are disbursed, all amounts due to the defaulting party will be applied first to pay debts to the nondefaulting parties, plus all accrued interest, in proportion to the amounts the nondefaulting parties advanced to the defaulting party as set forth subsection (b) above. Only after the nondefaulting parties have been repaid as set forth in this subsection will the defaulting party receive any remaining balance.
12. RESTRICTIONS ON PARTIES.
- (a) Limited Owners. There may be no more than owners of the Property. A party may not subdivide or sell (or attempt to subdivide or sell) any interest in or to the Property other than its Interest in its entirety.
- (b) Purchase Option. A party may not transfer or encumber its undivided Interest in the Property without giving prior written notice of its intention to the other parties. That notice shall set forth the terms on which the offering party proposes to transfer or encumber its Interest and the identity of the person or persons to whom the party proposes to transfer or encumber its Interest. After receiving this written notice, the other parties shall have 30 days to obtain the offering party's Interest on the same terms as set forth in the notice. If, during that 30 day period, none of the parties elect to obtain the Interest on the terms described, the offering party may transfer or encumber its Interest, on the same terms described in the written notice, for a period of 45 days after the expiration of the 30 day period. After the expiration of the 45 day period, the offering party may not transfer or encumber its Interest without again complying with the terms of this subsection.
- (c) No Business Activities. None of the parties, their agents, family, or invitees may engage in any business activities on the Property except those customarily performed in connection with the use, enjoyment, maintenance, and repair of the Property.
13. LEASE AGREEMENTS.
Any leases on the Property shall be made at a fair market rental price. No lease may provide for rent based on the income of or profits derived from the Property or the lessee.
14. DEATH OF A PARTY.
On the death of a party, his or her personal representative shall make all payments under, fulfill all obligations in, and be bound by all of the provisions of this agreement.
15. SPECIFIC PERFORMANCE.
The parties may suffer irreparable damage if this agreement is not enforced specifically according to its terms. All of the terms of this agreement shall be enforceable in a court having equity jurisdiction by a decree of specific performance, by injunction, or by both a decree of specific performance and injunction.
16. GOVERNING LAW.
- (a) Choice of Law. The laws of the state of govern this agreement (without giving effect to its conflicts of law principles).
- (b) Choice of Forum. The parties consent to the personal jurisdiction of the state and federal courts in County, .
17. AMENDMENTS.
No amendment to this agreement will be effective unless it is in writing and signed by a party.
18. ASSIGNMENT AND DELEGATION.
- (a) No Assignment. A party may not assign any of its rights under this agreement, except with the prior written consent of each other party. All voluntary assignments of rights are limited by this subsection.
- (b) No Delegation. No party may delegate any performance under this agreement, except with the prior written consent of each other party.
- (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
19. COUNTERPARTS; ELECTRONIC SIGNATURES.
- (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
- (b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
20. SEVERABILITY.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
21. NOTICES.
- (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b) Addresses. A party shall address notices under this section to a party at the following addresses:
- If to :
- ,
- If to :
- ,
- If to :
- ,
- If to :
- ,
- (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
22. WAIVER.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the parties waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
23. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. No party was induced to enter this agreement by, and no party is relying on, any statement, representation, warranty, or agreement of any other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
24. HEADINGS.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
25. EFFECTIVENESS.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
26. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
[SIGNATURE PAGE FOLLOWS]
Each party is signing this agreement on the date stated opposite that party's signature.
Date:______________________________ By:____________________________________________________________ Name:
Title:Date:______________________________ By:____________________________________________________________ Name:
Title:Date:______________________________ By:____________________________________________________________ Name:
Title:Date:______________________________ By:____________________________________________________________ Name:
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EXHIBIT A
DESCRIPTION OF PROPERTY[PAGE BREAK HERE]
EXHIBIT B
PERCENTAGE INTERESTSadd border Name Percentage Interest Initial Capital Contribution % % % % 