Common use of Powers and Duties of the Manager Clause in Contracts

Powers and Duties of the Manager. (a) The Manager shall have the exclusive right and power to manage, and be responsible for the operation of, the Company’s and Project’s business, and shall have the authority under the Act and this Agreement to do all things, that they determine, in their sole discretion to be in furtherance of the purposes of the Company and shall have all rights, powers and privileges available to a “Manager” under the Act. Without limiting the foregoing, the Manager shall have the power and authority: (i) To purchase and sell Company assets including, without limitation, selling or otherwise disposing of the Project. (ii) To enter into any kind of activity and to perform and carry out contracts of any kind necessary to, or in connection with, or incidental to the accomplishment of the purposes of the Company, including, without limitation, construction, leasing, management and similar agreements. (iii) To borrow money and issue evidences of indebtedness to pledge the Company’s assets, or to confess judgment on behalf of the Company, in connection with the operation of the Company and to secure the same by deed of trust, mortgage, security interest, pledge or other lien or encumbrance on the assets of the Company. (iv) To repay in whole or in part, negotiate, refinance, recast, increase, renew, modify or extend any secured or other indebtedness affecting the assets of the Company and in connection therewith to execute any extensions, renewals or modifications of any evidences of indebtedness secured by deeds of trust, mortgages, security interests, pledges or other encumbrances covering the Project. (v) To employ agents, attorneys, brokers, managing agents, architects, contractors, subcontractors and accountants on behalf of the Company. (vi) To bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Company. (vii) To enter into any kind of activity and to perform and carry out contracts of any kind necessary to, or in connection with, or incidental to the accomplishment of the stated purposes of the Company, so long as said activities and contracts may be lawfully carried on or performed by a limited Company under applicable laws and regulations. (viii) To form subsidiaries to hold and/or manage the Project; provided, that the Manager may not undertake any activity with respect to such subsidiaries that the Manager would not be permitted to undertake under the terms and conditions of this Agreement as if the Project was directly owned by the Company. (b) The Manager shall have the right to enter into and execute all contracts, documents and other agreements on behalf of the Company and shall thereby fully bind the Company. Persons dealing with the Company are entitled to rely conclusively on the power and authority of the Manager as set forth in this Agreement. (c) Except as provided in this Agreement, no Member who is not the Manager, in its capacity as such, shall take any part in the control of the affairs of the Company, undertake any transactions on behalf of the Company or have any power to sign for or to bind the Company. (d) Notwithstanding anything contained in this Section 9.1 to the contrary, the Manager shall not, without the prior consent of MCG, make any Major Decision (hereinafter defined) with respect to the Company, a Project or other Company business. Each time the consent of MCG is required under this Section 9.1(d), the Manager shall notify MCG in writing (which may be by e-mail). The notice shall include reasonably sufficient detail to permit MCG to make a decision on the matter. MCG shall respond within seven (7) Business Days after the date it is notified of the need for such consent or action; provided, that, if the Manager reasonably determines that the matter is an emergency or otherwise must be decided within a shorter time period, the Manager may indicate in the notice the need for an expedited decision and MCG shall have three (3) Business Days to respond to the request for consent or action. If MCG does not respond within such seven (7) or three (3) Business Day period, then such matter or action requested shall be deemed approved by MCG. A “Major Decision” as used in this Agreement means any decision (or action) with respect to the following matters:

Powers and Duties of the Manager. (a) The Manager shall have the exclusive right and power to manage, and be responsible for the operation of, the Company’s and Project’s business, and shall have the authority under the Act and this Agreement to do all things, that they determine, in their sole discretion to be in furtherance of the purposes of the Company and shall have all rights, powers and privileges available to a “Manager” under the Act. Without limiting the foregoing, the Manager shall have the power and authority: (i) To purchase and sell Company assets including, without limitation, selling or otherwise disposing of the Project. (ii) To enter into any kind of activity and to perform and carry out contracts of any kind necessary to, or in connection with, or incidental to the accomplishment of the purposes of the Company, including, without limitation, construction, leasing, management and similar agreements. (iii) To borrow money and issue evidences of indebtedness to pledge the Company’s assets, or to confess judgment on behalf of the Company, in connection with the operation of the Company and to secure the same by deed of trust, mortgage, security interest, pledge or other lien or encumbrance on the assets of the Company. (iv) To repay in whole or in part, negotiate, refinance, recast, increase, renew, modify or extend any secured or other indebtedness affecting the assets of the Company and in connection therewith to execute any extensions, renewals or modifications of any evidences of indebtedness secured by deeds of trust, mortgages, security interests, pledges or other encumbrances covering the Project. (v) To employ agents, attorneys, brokers, managing agents, architects, contractors, subcontractors and accountants on behalf of the Company. (vi) To bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Company. (vii) To enter into any kind of activity and to perform and carry out contracts of any kind necessary to, or in connection with, or incidental to the accomplishment of the stated purposes of the Company, so long as said activities and contracts may be lawfully carried on or performed by a limited Company under applicable laws and regulations. (viii) To form subsidiaries to hold and/or manage the Project; provided, that the Manager may not undertake any activity with respect to such subsidiaries that the Manager would not be permitted to undertake under the terms and conditions of this Agreement as if the Project was directly owned by the Company. (b) The Manager shall have the right to enter into and execute all contracts, documents and other agreements on behalf of the Company and shall thereby fully bind the Company. Persons dealing with the Company are entitled to rely conclusively on the power and authority of the Manager as set forth in this Agreement. (c) Except as provided in this Agreement, no Member who is not the Manager, in its capacity as such, shall take any part in the control of the affairs of the Company, undertake any transactions on behalf of the Company or have any power to sign for or to bind the Company. (d) Notwithstanding anything contained in this Section 9.1 to the contrary, the Manager shall not, without the prior consent of MCG, make any Major Decision (hereinafter defined) with respect to the Company, a Project or other Company business. Each time the consent of MCG is required under this Section 9.1(d), the Manager shall notify MCG in writing (which may be by e-mail). The notice shall include reasonably sufficient detail to permit MCG to make a decision on the matter. MCG shall respond within seven (7) Business Days after the date it is notified of the need for such consent or action; provided, that, if the Manager reasonably determines that the matter is an emergency or otherwise must be decided within a shorter time period, the Manager may indicate in the notice the need for an expedited decision and MCG shall have three (3) Business Days to respond to the request for consent or action. If MCG does not respond within such seven (7) or three (3) Business Day period, then such matter or action requested shall be deemed approved by MCG. A “Major Decision” as used in this Agreement means any decision (or action) with respect to the following matters: (i) (x) Purchasing additional Company assets outside of the ordinary course of business or any additional real property, or (y) selling the Project; (ii) Changing the purpose of the Company or entering into businesses that are not consistent with the Company’s purpose, and establishing or making a material amendment to the business plan for the Project; (iii) The Initial Financing, and any refinancing of the Initial Financing (other than extensions of the Initial Financing in accordance with its terms), or entering into additional financings, mortgage financing or other credit facilities in addition to the Initial Financing; (iv) Making capital calls for Supplemental Capital Contributions (or any Capital Contributions other than those contributed pursuant to Section 6.1). Requests for additional Capital Contributions shall be subject to the following procedures: The Manager shall request Supplemental Capital Contributions only for significant capital projects, tenant improvements and other legitimate business purposes that the Manager reasonably believes cannot reasonably be funded from Project revenue. In approving the Major Decision, MCG and the Keystone Investor shall indicate the portion of such Supplemental Capital Contribution that each shall fund (provided, that each shall have the right to fund fifty percent (50%) of such Supplemental Capital Contribution and if one of them does not desire to fund its pro rata share of the Supplemental Capital Contribution, the other may fund the remainder). When the Manager and Members have reached a decision on whether to approve the funding of the Supplemental Capital Contribution and the percentage that each Member would fund, the Manager shall issue a capital call for such amount in accordance with Section 6.2. (v) Settling or compromising any claims or causes of action against the Company, or agreeing on behalf of the Company to pay any disputed claims or causes of action, if payments by the Company pursuant to such settlements, compromises, or agreements would exceed Two Hundred Fifty Thousand Dollars ($250,000); (vi) Forming Company subsidiaries other than as contemplated by this Agreement, the Company’s business plan or financing agreements approved by MCG; (vii) Electing to restore or reconstruct the Project after a condemnation or casualty, or reinvesting insurance or condemnation proceeds after such an event; (viii) Engaging in any of the following actions in a manner that is a material deviation from the business plan for the Project: exchanging or subdividing, or granting options with respect to, all or any portion of the Project; acquiring any option with respect to the purchase of any real property; granting or relocating of easements benefiting or burdening the Project; adjusting the boundary lines of the Project; granting road and other right-of-ways and similar dispositions of interests in the Project; or changing the zoning or any restrictive covenants applicable to the Project; (ix) Selecting the Company’s auditors; provided, that Xxxxx Xxxxxxx XxXxxx P.C. shall be deemed acceptable auditors by the Members; (x) (x) Making tax elections, (y) establishing tax or accounting policies, including policies for the depreciation of Company property, or resolving accounting matters that affect M-C Corp’s compliance with any rules or regulations promulgated by the Securities Exchange Commission, or (z) settling disputes with tax authorities, in each case in a manner that would affect M-C Corp.’s REIT status or ability to comply with REIT Requirements; (xi) Establishing leasing guidelines for the Project, or entering into a lease with tenants at the Project that does not comply with the leasing guidelines; provided, that MCG shall not have the right to approve such leases or amendments to the leasing guidelines if a lender to the Company or its subsidiaries approves such leases or amendments to leasing guidelines in accordance with its loan documents; (xii) Commingling Company funds with the funds of any other Person; (xiii) Admitting, including by assignment of economic rights or permitting encumbrances of interests, any Member other than a Transfer permitted pursuant to Section 10; (xiv) Merging or consolidating the Company with or into another entity, invest in or acquire an interest in any other entity, reorganize the Company, or make a binding commitment to do any of the foregoing; (xv) Filing any voluntary petition for the Company under Title 11 of the United States Code, the Bankruptcy Act, seek the protection of any other federal or state bankruptcy or insolvency law, fail to contest a bankruptcy proceeding; or seek or permit a receivership or make an assignment for the benefit of its creditors; (xvi) Voluntarily dissolving or liquidating the Company; (xvii) Entering into, amending, modifying (including making price adjustments), replacing, waiving the provisions of, or granting consents under, any of the terms and conditions of any agreement or other arrangement with the Manager or its Affiliates or paying fees or other compensation to the Manager or its Affiliates (except for the agreements with, and payments of fees to, the Manager and its Affiliates specifically provided for in this Agreement), or terminating any such agreement (but the foregoing shall not imply that any such agreement can be amended or modified without the written consent of all parties to such agreement); and (xviii) Causing the Company to loan Company funds to any Person. (e) If the Manager and MCG disagree with respect to a Major Decision, they shall attempt to resolve such disagreement in good faith for ten (10) Business Days following MCG’s notice to Manager of such disagreement. If such disagreement is not resolved within ten (10) Business Days, then either MCG, on the one hand, or the Manager and the Keystone Investor (acting together), on the other hand, may initiate the buy-sell procedures under Section 10.4.

Powers and Duties of the Manager. (a) The Manager shall have the exclusive right and power to manage, and be responsible for the operation of, the Company’s and Project’s business, and shall have the authority under the Act and this Agreement to do all things, that they determine, in their sole discretion to be in furtherance of the purposes of the Company and shall have all rights, powers and privileges available to a “Manager” under the Act. Without limiting the foregoing, the Manager shall have the power and authority: (i) To purchase and sell Company assets including, without limitation, selling or otherwise disposing of the Project. (ii) To enter into any kind of activity and to perform and carry out contracts of any kind necessary to, or in connection with, or incidental to the accomplishment of the purposes of the Company, including, without limitation, construction, leasing, management and similar agreements. (iii) To borrow money and issue evidences of indebtedness to pledge the Company’s assets, or to confess judgment on behalf of the Company, in connection with the operation of the Company and to secure the same by deed of trust, mortgage, security interest, pledge or other lien or encumbrance on the assets of the Company. (iv) To repay in whole or in part, negotiate, refinance, recast, increase, renew, modify or extend any secured or other indebtedness affecting the assets of the Company and in connection therewith to execute any extensions, renewals or modifications of any evidences of indebtedness secured by deeds of trust, mortgages, security interests, pledges or other encumbrances covering the Project. (v) To employ agents, attorneys, brokers, managing agents, architects, contractors, subcontractors and accountants on behalf of the Company. (vi) To bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or against the Company. (vii) To enter into any kind of activity and to perform and carry out contracts of any kind necessary to, or in connection with, or incidental to the accomplishment of the stated purposes of the Company, so long as said activities and contracts may be lawfully carried on or performed by a limited Company under applicable laws and regulations. (viii) To form subsidiaries to hold and/or manage the Project; provided, that the Manager may not undertake any activity with respect to such subsidiaries that the Manager would not be permitted to undertake under the terms and conditions of this Agreement as if the Project was directly owned by the Company. (b) The Manager shall have the right to enter into and execute all contracts, documents and other agreements on behalf of the Company and shall thereby fully bind the Company. Persons dealing with the Company are entitled to rely conclusively on the power and authority of the Manager as set forth in this Agreement. (c) Except as provided in this Agreement, no Member who is not the Manager, in its capacity as such, shall take any part in the control of the affairs of the Company, undertake any transactions on behalf of the Company or have any power to sign for or to bind the Company. (d) Notwithstanding anything contained in this Section 9.1 to the contrary, the Manager shall not, without the prior consent of MCG, make any Major Decision (hereinafter defined) with respect to the Company, a Project or other Company business. Each time the consent of MCG is required under this Section 9.1(d), the Manager shall notify MCG in writing (which may be by e-mail). The notice shall include reasonably sufficient detail to permit MCG to make a decision on the matter. MCG shall respond within seven (7) Business Days after the date it is notified of the need for such consent or action; provided, that, if the Manager reasonably determines that the matter is an emergency or otherwise must be decided within a shorter time period, the Manager may indicate in the notice the need for an expedited decision and MCG shall have three (3) Business Days to respond to the request for consent or action. If MCG does not respond within such seven (7) or three (3) Business Day period, then such matter or action requested shall be deemed approved by MCG. A “Major Decision” as used in this Agreement means any decision (or action) with respect to the following matters: (x) Purchasing additional Company assets outside of the ordinary course of business or any additional real property, or (y) selling the Project;