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 Unitholders when required by this Agreement, the General Partners shall have the exclusive right to manage and control the business of the Partnership. 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 Partnership shall be bound by the signature of any General Partner. C. No Limited Partner or 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 Partnership, or have any authority or right to act for or bind the Partnership. D. The Administrative General Partner is hereby designated to serve as the Partnership'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. 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 Partnership, as shall all expenses incurred by the Partnership and/or the Tax Matters Partner in connection with any tax audit or tax related administrative or judicial proceeding. Each Partner and Unitholder shall be responsible for all costs incurred by such Partner or Unitholder with respect to any tax audit or tax related administrative or judicial proceeding in connection with such Partner's or Unitholder's tax returns and all costs incurred by any such Partner or Unitholder who participates in any tax audit or tax-related administrative or judicial proceeding of or against the Partnership or any Partner. Each Partner and 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 Unitholders; (ii) waives the right to participate in any administrative or judicial proceeding in which the tax treatment of any 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 Unitholder or the Partnership, and shall be indemnified by the 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 Partnership. 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 following events of default shall occur at any time during the term hereof, 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 event of default shall not have been caused solely 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 Xxxxxx X. Xxxxxx shall be in default under any of (a) 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 an event of default described above shall not have been cured within the cure period 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 and Benchmark Communities, Inc. at a price equal to their initial Capital Contributions as set forth on the Schedule, payable in cash and (ii) Benchmark Communities, Inc. will cause the Partnership's obligations to make the Deferred Land Payments to be forgiven by Benchmark Homes, 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 Unitholders when required by this Agreement, the General Partners shall have the exclusive right to manage and control the business of the Partnership. 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 Partnership shall be bound by the signature of any General Partner. C. No Limited Partner or 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 Partnership, or have any authority or right to act for or bind the Partnership. D. The Administrative General Partner is hereby designated to serve as the Partnership'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. 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 Partnership, as shall all expenses incurred by the Partnership and/or the Tax Matters Partner in connection with any tax audit or tax related administrative or judicial proceeding. Each Partner and Unitholder shall be responsible for all costs incurred by such Partner or Unitholder with respect to any tax audit or tax related administrative or judicial proceeding in connection with such Partner's or Unitholder's tax returns and all costs incurred by any such Partner or Unitholder who participates in any tax audit or tax-related administrative or judicial proceeding of or against the Partnership or any Partner. Each Partner and 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 Unitholders; (ii) waives the right to participate in any administrative or judicial proceeding in which the tax treatment of any 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 Unitholder or the Partnership, and shall be indemnified by the 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 Partnership. 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 following events of default shall occur at any time during the term hereof, 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 event of default shall not have been caused solely 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 X. Xxxxxx shall be in default under any of xxxxx xx xx xxxxxxx xxxxx xxx xx (ax) 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 an event of default described above shall not have been cured within the cure period 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 and Benchmark Communities, Inc. at a price equal to their initial Capital Contributions as set forth on the Schedule, payable in cash and (ii) Benchmark Communities, Inc. will cause the Partnership's obligations to make the Deferred Land Payments to be forgiven by Benchmark Homes, 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 Unitholders when required by this Agreement, the The General Partners shall have the exclusive right to manage and control the business of the Partnership. 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 Partnership shall be bound by the signature of any General Partner. C. No Limited Partner or 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 Partnership, or have any authority or right to act for or bind the Partnership. D. The Administrative General Partner is hereby designated to serve as the Partnership'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. 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 Partnership, as shall all expenses incurred by the Partnership and/or the Tax Matters Partner in connection with any tax audit or tax related administrative or judicial proceeding. Each Partner and Unitholder shall be responsible for all costs incurred by such Partner or Unitholder with respect to any tax audit or tax related administrative or judicial proceeding in connection with such Partner's or Unitholder's tax returns returns, and all costs incurred by any such Partner or Unitholder who participates in any tax audit or tax-tax related administrative or judicial proceeding of or against the Partnership or any Partner. Each Partner and 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 UnitholdersPartners; (ii) waives the right to participate in any administrative or judicial proceeding in which the tax treatment treatment. of any 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 Unitholder or the Partnership, and shall be indemnified by the 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 Partnership. 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 5.9,and 5. 10 hereof. E. Anything herein to the contrary notwithstanding, if any of the following events of default shall occur at any time during the term hereof, then, until such time as any such events shall have been cured within any applicable cure periodcured, all decisions to be made by the General Partners shall be made solely by the Administrative General Partner, provided that such event of default shall not have been caused solely by any act or omission of the Administrative General Partner: (i) a material an 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 Construction Financing and such default shall not have been cured within any applicable cure period; (ii) Benchmark Homes, Inc. the Property Manager shall be in material default under any Property Management Agreement, and such default shall not have been cured within any applicable cure period; (iii) the General Contractor shall be in material default under (a) the Construction Contract for any Property or (b) any Guaranty of Timely and Lien-Free Completion, and such default shall not have been cured within any applicable cure period; (iv) Xxxxxxxx Development Company shall be in material default under the Land Acquisition Agreements Agreement, and such default shall not have been cured within any applicable cure period; (v) the Development General Partner shall be in default under any of (a) the Cash Flow Deficit Guaranty Agreement, (b) any Guaranty of Timely and Lien- Free Completion or Development Agreements(c) the Contract of Sale, and such default shall not have been cured within any applicable cure period; or (iii) Benchmark Communities, Inc. or Xxxxxx X. Xxxxxx shall be in default under any of (a) 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 (ivvi) 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 an event of default described above shall not have been cured within the cure period 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 and Benchmark Communities, Inc. at a price equal to their initial Capital Contributions as set forth on the Schedule, payable in cash and (ii) Benchmark Communities, Inc. will cause the Partnership's obligations to make the Deferred Land Payments to be forgiven by Benchmark Homes, 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 Unitholders Investors when required by this Agreement, the General Partners shall have the exclusive right to manage and control the business of the PartnershipFund. 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 Partnership Fund shall be bound by the signature of any General Partner. C. No Limited Partner or Unitholder 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 PartnershipFund, or have any authority or right to act for or bind the PartnershipFund. D. The Administrative General Partner is hereby designated to serve as the PartnershipFund'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 PartnershipFund, as shall all expenses incurred by the Partnership Fund and/or the Tax Matters Partner in connection with any tax audit or tax tax-related administrative or judicial proceeding. Each Partner and Unitholder Investor shall be responsible for all costs incurred by such Partner or Unitholder Investor with respect to any tax audit or tax related administrative or judicial proceeding in connection with such Partner's or UnitholderInvestor's tax returns and all costs incurred by any such Partner or Unitholder Investor who participates in any tax audit or tax-tax- related administrative or judicial proceeding of or against the Partnership Fund or any Partner. Each Partner and Unitholder 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 UnitholdersInvestors; (ii) waives the right to participate in any administrative or judicial proceeding in which the tax treatment of any Partnership 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 Unitholder Investor or the PartnershipFund, and shall be indemnified by the Partnership 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 PartnershipFund. 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 following events of default Development General Partner or its Affiliates shall occur be in Default (as defined) under an agreement with the Fund at any time during the term hereof, then, until such time as any such events shall have been cured within any applicable cure period, then all decisions to be made by the General Partners shall be made solely by the Administrative General Partner, provided that such event of default 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 Xxxxxx X. Xxxxxx shall be in default under any of (a) 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 an event of default described above a Default 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 and Benchmark Communities, Inc. in the Fund at a price equal to their initial Capital Contributions as set forth on the Schedule, determined and payable in cash accordance with Section 6.5 hereunder, and (ii) Benchmark Communitiesif such Interests are purchased, Inc. will cause it shall constitute a voluntary withdrawal of the Partnership's obligations to make the Deferred Land Payments to be forgiven by Benchmark Homes, Inc.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 Unitholders when required by this Agreement, the General Partners shall have the exclusive right to manage and control the business of the Partnership. 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 Partnership shall be bound by the signature of any General Partner. C. No Limited Partner or 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 Partnership, or have any authority or right to act for or bind the Partnership. D. The Administrative General Partner is hereby designated to serve as the Partnership'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. 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 Partnership, as shall all expenses incurred by the Partnership and/or the Tax Matters Partner in connection with any tax audit or tax related administrative or judicial proceeding. Each Partner and Unitholder shall be responsible for all costs incurred by such Partner or Unitholder with respect to any tax audit or tax related administrative or judicial proceeding in connection with such Partner's or Unitholder's tax returns and all costs incurred by any such Partner or Unitholder who participates in any tax audit or tax-related administrative or judicial proceeding of or against the Partnership or any Partner. Each Partner and 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 Unitholders; (ii) waives the right to participate in any administrative or judicial proceeding in which the tax treatment of any 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 Unitholder or the Partnership, and shall be indemnified by the 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 Partnership. 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 following events of default shall occur at any time during the term hereof, 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 event of default shall not have been caused solely 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 Xxxxxx X. Xxxxxx Daniel P. Riedel shall be in default under any of xxxxxxx xxxxx xxx xx (ax) 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 an event of default described above shall not have been cured within the cure period 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 and Benchmark Communities, Inc. at a price equal to their initial Capital Contributions as set forth on the Schedule, payable in cash and (ii) Benchmark Communities, Inc. will cause the Partnership's obligations to make the Deferred Land Payments to be forgiven by Benchmark Homes, Inc.