Common use of RIGHTS, POWERS AND DUTIES OF PARTNERS Clause in Contracts

RIGHTS, POWERS AND DUTIES OF PARTNERS. Section 5.1 Management and Control of the Partnership; Tax Matters Partner A. Subject to the Consent of the Investors when required by this Agreement, the General Partners shall have the exclusive right to manage and control the business of the Fund. Except as otherwise provided herein, decisions to be made by the General Partners shall be made by the joint agreement of the Administrative General Partner and the Development General Partner. B. Except as otherwise provided herein, the Fund shall be bound by the signature of any General Partner. C. No Limited Partner or Investor (except one who may also be a General Partner, and then only in his capacity as General Partner) shall have the right to participate in the control of the business of the Fund, or have any authority or right to act for or bind the Fund. D. The Administrative General Partner is hereby designated to serve as the Fund's Tax Matters Partner and shall have all of the powers and responsibilities of such position as provided in Sections 6221 et seq. of the Code. No income tax returns will be filed until the Development General Partner has had the opportunity to review such returns. All third party costs and expenses incurred by the Administrative General Partner in performing its duties as Tax Matters Partner shall be borne by the Fund, as shall all expenses incurred by the Fund and/or the Tax Matters Partner in connection with any tax audit or tax-related administrative or judicial proceeding. Each Partner and Investor shall be responsible for all costs incurred by such Partner or Investor with respect to any tax audit or tax related administrative or judicial proceeding in connection with such Partner's or Investor's tax returns and all costs incurred by any such Partner or Investor who participates in any tax audit or tax- related administrative or judicial proceeding of or against the Fund or any Partner. Each Partner and Investor hereby (i) expressly authorizes the Tax Matters Partner to enter into any settlement with the Internal Revenue Service with respect to any tax matter, tax item, tax issue, tax audit, or judicial proceeding, which settlement shall be binding on all Partners and Investors; (ii) waives the right to participate in any administrative or judicial proceeding in which the tax treatment of any Fund item is to be determined; and (iii) agrees to execute such consents, waivers or other documents as the Tax Matters Partner may determine are necessary to accomplish the provisions of this Section 5.1D. The Tax Matters Partner shall have no liability to any Partner or Investor or the Fund, and shall be indemnified by the Fund to the full extent provided by law, for any act or omission performed or omitted by it within the scope of the authority conferred on it by this Agreement, except for acts of negligence or for damages arising from any misrepresentation or breach of any other agreement with the Fund. The liability and indemnification of the Tax Matters Partner shall be determined in the same manner as is provided in Sections 5.9 and 5.10 hereof. E. Anything herein to the contrary notwithstanding, if the Development General Partner or its Affiliates shall be in Default (as defined) under an agreement with the Fund at any time during the term hereof, then all decisions to be made by the General Partners shall be made solely by the Administrative General Partner, provided that such Default shall not have been caused solely or primarily by any act or omission of the Administrative General Partner. If a Default shall not have been cured within the cure period (if any) applicable thereto, then for a period of 45 days the Administrative General Partner shall have the option to purchase the Interests of the Development General Partner in the Fund at a price determined and payable in accordance with Section 6.5 hereunder, and if such Interests are purchased, it shall constitute a voluntary withdrawal of the Development General Partner.

RIGHTS, POWERS AND DUTIES OF PARTNERS. Section 5.1 Management and Control of the Partnership; Tax Matters Partner A. Subject to the Consent of the Investors Unitholders when required by this Agreement, the General Partners shall have the exclusive right to manage and control the business of the FundPartnership. Except as otherwise provided herein, decisions to be made by the General Partners shall be made by the joint agreement of the Administrative General Partner and the Development General Partner. B. Except as otherwise provided herein, the Fund Partnership shall be bound by the signature of any General Partner. C. No Limited Partner or Investor Unitholder (except one who may also be a General Partner, and then only in his capacity as General Partner) shall have the right to participate in the control of the business of the FundPartnership, or have any authority or right to act for or bind the FundPartnership. D. The Administrative General Partner is hereby designated to serve as the FundPartnership's Tax Matters Partner and shall have all of the powers and responsibilities of such position as provided in Sections 6221 et seq. of the Code. No income tax returns will be filed until the Development General Partner has had the opportunity to review such returns. All third party costs and expenses incurred by the Administrative General Partner in performing its duties as Tax Matters Partner shall be borne by the FundPartnership, as shall all expenses incurred by the Fund Partnership and/or the Tax Matters Partner in connection with any tax audit or tax-tax related administrative or judicial proceeding. Each Partner and Investor Unitholder shall be responsible for all costs incurred by such Partner or Investor Unitholder with respect to any tax audit or tax related administrative or judicial proceeding in connection with such Partner's or InvestorUnitholder's tax returns and all costs incurred by any such Partner or Investor Unitholder who participates in any tax audit or tax- tax-related administrative or judicial proceeding of or against the Fund Partnership or any Partner. Each Partner and Investor Unitholder hereby (i) expressly authorizes the Tax Matters Partner to enter into any settlement with the Internal Revenue Service with respect to any tax matter, tax item, tax issue, tax audit, or judicial proceeding, which settlement shall be binding on all Partners and InvestorsUnitholders; (ii) waives the right to participate in any administrative or judicial proceeding in which the tax treatment of any Fund Partnership item is to be determined; and (iii) agrees to execute such consents, waivers or other documents as the Tax Matters Partner may determine are necessary to accomplish the provisions of this Section 5.1D. The Tax Matters Partner shall have no liability to any Partner or Investor Unitholder or the FundPartnership, and shall be indemnified by the Fund Partnership to the full extent provided by law, for any act or omission performed or omitted by it within the scope of the authority conferred on it by this Agreement, except for acts of negligence or for damages arising from any misrepresentation or breach of any other agreement with the FundPartnership. The liability and indemnification of the Tax Matters Partner shall be determined in the same manner as is provided in Sections 5.9 and 5.10 hereof. E. Anything herein to the contrary notwithstanding, if any of the Development General Partner or its Affiliates following events of default shall be in Default (as defined) under an agreement with the Fund occur at any time during the term hereof, then then, until such time as any such events shall have been cured within any applicable cure period, all decisions to be made by the General Partners shall be made solely by the Administrative General Partner, provided that such Default event of default shall not have been caused solely or primarily by any act or omission of the Administrative General Partner: (i) a material event of default shall have occurred under any of the documents or instruments evidencing or securing the financing relating to the acquisition and development of the Properties and such default shall not have been cured within any applicable cure period; (ii) Benchmark Homes, Inc. shall be in material default under any of the Land Acquisition Agreements or Development Agreements, and such default shall not have been cured within any applicable cure period; (iii) Benchmark Communities, Inc. or Daniel P. Xxxxxx xxxxx xx xx xxxxxxx xxxxx xxx xx (x) the Cash Flow Deficit Guaranty Agreement or (b) an0 Guaranty of Timely and Lien-Free Completion and such default shall not have been cured within any applicable cure period; or (iv) the Development General Partner or any of its Affiliates shall be in material default under any other agreement between or among the Development General Partner and/or any such Affiliate and the Partnership, and such default shall not have been cured within any applicable cure period. If a Default an event of default described above shall not have been cured within the cure period (if any) applicable thereto, then (i) for a period of 45 days the Administrative General Partner shall have the option to purchase the Partnership Interests of the Development General Partner in the Fund and Benchmark Communities, Inc. at a price determined and equal to their initial Capital Contributions as set forth on the Schedule, payable in accordance with Section 6.5 hereundercash and (ii) Benchmark Communities, and if such Interests are purchasedInc. will cause the Partnership's obligations to make the Deferred Land Payments to be forgiven by Benchmark Homes, it shall constitute a voluntary withdrawal of the Development General Partner.Inc.

RIGHTS, POWERS AND DUTIES OF PARTNERS. Section 5.1 Management and Control of the Partnership; Tax Matters Partner A. Subject to the Consent of the Investors Unitholders when required by this Agreement, the General Partners shall have the exclusive right to manage and control the business of the FundPartnership. Except as otherwise provided herein, decisions to be made by the General Partners shall be made by the joint agreement of the Administrative General Partner and the Development General Partner. B. Except as otherwise provided herein, the Fund Partnership shall be bound by the signature of any General Partner. C. No Limited Partner or Investor Unitholder (except one who may also be a General Partner, and then only in his capacity as General Partner) shall have the right to participate in the control of the business of the FundPartnership, or have any authority or right to act for or bind the FundPartnership. D. The Administrative General Partner is hereby designated to serve as the FundPartnership's Tax Matters Partner and shall have all of the powers and responsibilities of such position as provided in Sections 6221 et seq. of the Code. No income tax returns will be filed until the Development General Partner has had the opportunity to review such returns. All third party costs and expenses incurred by the Administrative General Partner in performing its duties as Tax Matters Partner shall be borne by the FundPartnership, as shall all expenses incurred by the Fund Partnership and/or the Tax Matters Partner in connection with any tax audit or tax-tax related administrative or judicial proceeding. Each Partner and Investor Unitholder shall be responsible for all costs incurred by such Partner or Investor Unitholder with respect to any tax audit or tax related administrative or judicial proceeding in connection with such Partner's or InvestorUnitholder's tax returns and all costs incurred by any such Partner or Investor Unitholder who participates in any tax audit or tax- tax-related administrative or judicial proceeding of or against the Fund Partnership or any Partner. Each Partner and Investor Unitholder hereby (i) expressly authorizes the Tax Matters Partner to enter into any settlement with the Internal Revenue Service with respect to any tax matter, tax item, tax issue, tax audit, or judicial proceeding, which settlement shall be binding on all Partners and InvestorsUnitholders; (ii) waives the right to participate in any administrative or judicial proceeding in which the tax treatment of any Fund Partnership item is to be determined; and (iii) agrees to execute such consents, waivers or other documents as the Tax Matters Partner may determine are necessary to accomplish the provisions of this Section 5.1D. The Tax Matters Partner shall have no liability to any Partner or Investor Unitholder or the FundPartnership, and shall be indemnified by the Fund Partnership to the full extent provided by law, for any act or omission performed or omitted by it within the scope of the authority conferred on it by this Agreement, except for acts of negligence or for damages arising from any misrepresentation or breach of any other agreement with the FundPartnership. The liability and indemnification of the Tax Matters Partner shall be determined in the same manner as is provided in Sections 5.9 and 5.10 hereof. E. Anything herein to the contrary notwithstanding, if any of the Development General Partner or its Affiliates following events of default shall be in Default (as defined) under an agreement with the Fund occur at any time during the term hereof, then then, until such time as any such events shall have been cured within any applicable cure period, all decisions to be made by the General Partners shall be made solely by the Administrative General Partner, provided that such Default event of default shall not have been caused solely or primarily by any act or omission of the Administrative General Partner: (i) a material event of default shall have occurred under any of the documents or instruments evidencing or securing the financing relating to the acquisition and development of the Properties and such default shall not have been cured within any applicable cure period; (ii) Benchmark Homes, Inc. shall be in material default under any of the Land Acquisition Agreements or Development Agreements, and such default shall not have been cured within any applicable cure period; (iii) Benchmark Communities, Inc. or Daniel P. Riedel shall be in xxxxxxx xxxxx xxx xx (x) the Cash Flow Deficit Guaranty Agreement or (b) an0 Guaranty of Timely and Lien-Free Completion and such default shall not have been cured within any applicable cure period; or (iv) the Development General Partner or any of its Affiliates shall be in material default under any other agreement between or among the Development General Partner and/or any such Affiliate and the Partnership, and such default shall not have been cured within any applicable cure period. If a Default an event of default described above shall not have been cured within the cure period (if any) applicable thereto, then (i) for a period of 45 days the Administrative General Partner shall have the option to purchase the Partnership Interests of the Development General Partner in the Fund and Benchmark Communities, Inc. at a price determined and equal to their initial Capital Contributions as set forth on the Schedule, payable in accordance with Section 6.5 hereundercash and (ii) Benchmark Communities, and if such Interests are purchasedInc. will cause the Partnership's obligations to make the Deferred Land Payments to be forgiven by Benchmark Homes, it shall constitute a voluntary withdrawal of the Development General Partner.Inc.