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EXHIBIT 10(f)
FIRST AMENDED AND RESTATED CONSULTING AGREEMENT
This FIRST AMENDED AND RESTATED CONSULTING AGREEMENT, dated as of
January 9, 1998, among UNIPROP MANUFACTURED HOUSING COMMUNITIES INCOME FUND, a
Michigan limited partnership (the "Partnership"), P.I. ASSOCIATES, a Michigan
limited partnership (the "General Partner") and MANUFACTURED HOUSING SERVICES
INC. (the "Consultant").
W I T N E S S E T H:
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WHEREAS, pursuant to the Section 12i of the Agreement of Limited
Partnership (as amended by the First Amendment to Uniprop Manufactured Housing
Communities Income Fund Agreement of Limited Partnership dated May 16, 1985,
executed as of March 4, 1986, and by the Second Amendment to Agreement of
Limited Partnership dated as of February 6, 1997, the "Partnership Agreement"),
the General Partner has no authority to take any action without the prior
consent of the Consultant, to the extent that such consent is required by this
Agreement, without the prior approval of a majority in interest of the Limited
Partners of the Partnership;
WHEREAS, the Partnership, the General Partner and the Consultant
entered into a Consulting Agreement as of February 10, 1986 in order to set
forth the types of transactions as to which the General Partner is required to
consult with the Consultant and the terms and conditions on which the Consultant
will provide such consulting services; and
WHEREAS, the Partnership, the General Partner and the Consultant now
desire to enter into this First Amended and Restated Consulting Agreement (the
"Agreement") to modify and expand upon the services to be provided by the
Consultant and to provide for a fee to be paid to the Consultant;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto agree as follows:
1. Transactions Covered. The Partnership and the General Partner agree
that in the following transactions and matters the General Partner (i) shall
consult with the Consultant and obtain its written recommendation, and (ii)
shall not take action on such transactions or matters on behalf of the
Partnership contrary to any recommendation of the Consultant without the prior
approval of a majority in interest of the Limited Partners.
a. The Financing of any Property owned by the
Partnership. In this connection, the General Partner
shall obtain the written affirmative recommendation
of the Consultant prior to incurring any indebtedness
or pledging directly or indirectly any property of
the Partnership as security for the payment of any
obligation.
b. The sale of any Property owned by the Partnership. In
this connection, the General Partner shall obtain the
written affirmative recommendation of the Consultant
prior to entering into any agreement for the sale of
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Property, but not including occasional sales in the
ordinary course of business of inventory, operating
equipment or furniture, fixtures and equipment.
c. The entering into by the Partnership of any other
Capital Transaction. In this connection, the General
Partner shall obtain the written affirmative
recommendation of the Consultant prior to entering
into any agreement for or with respect to a Capital
Transaction on behalf of the Partnership.
d. Annual appraisals of Properties and net asset value
per Unit. In this connection, the General Partner
shall obtain the written affirmative recommendation
of the Consultant prior to selecting any real estate
appraiser other than Xxxxxxx & Xxxxxxxxx, Inc. to
perform the annual appraisal of the Properties, and
the General Partner shall select only national real
estate appraisers comparable in reputation to Xxxxxxx
& Wakefield, Inc.
e. Property management arrangements. In this
connection, the General Partner shall obtain the
written affirmative recommendation of the Consultant
prior to taking any action authorizing any party
other than Uniprop, Inc. to provide management
services with respect to any of the Properties and
prior to authorizing any arrangement with any
property manager, including Uniprop, Inc., with
respect to fees payable for such management services,
other than as set forth in the Partnership Agreement.
The Consultant has the right at any time to recommend
the removal or change of any property manager.
f. The entering into by the Partnership of any
other agreement. In this connection, the General
Partner shall furnish to the Consultant, prior to
entering into, a copy of every written agreement and
a summary of every oral agreement to be entered into
by or on behalf of the Partnership or the General
Partner (in its capacity as such) involving (i) the
furnishing of property or services to the Partnership
by any person other than the General Partner if such
agreement provides for payment by the Partnership
equal to or in excess of $50,000 in any year, or (ii)
the furnishing of property or services to the
Partnership by the General Partner or an Affiliate of
the General Partner if such agreement provides for
payment by the Partnership in excess of $25,000 in
any year and in the case of each of clauses (i) or
(ii) shall obtain the written affirmative
recommendation of the Consultant prior to entering
into any such agreement relating to the Partnership's
business. The Consultant has the right at any time to
recommend the amendment or termination of any such
agreement in accordance with its terms.
g. The establishment of Reserves. In this connection,
the General Partner shall obtain the written
affirmative recommendation of the Consultant
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prior to creating or distributing any Reserves and
prior to changing the level of Reserves that the
Partnership shall maintain.
h. Amendment of the Partnership Agreement. In this
connection, the General Partner shall obtain the
written affirmative recommendation of the Consultant
prior to effecting any amendment to the Partnership
Agreement or submitting any proposed amendment for
approval by the Limited Partners.
i. Reports to Partners. In this connection, the General
Partner shall furnish to the Consultant or its
designated Affiliate all information furnished to the
Limited Partners generally.
j. Investor servicing. In this connection, the
Consultant has the right at any time to recommend the
removal of any person performing investor services
for the Partnership and to recommend the appointment
of any other person, including itself or an Affiliate
of the Consultant, to perform such services at
reasonable cost to the Partnership.
k. Insurance. In this connection, the General Partner
shall obtain, prior to entering into any contract of
insurance with respect to the Partnership or the
Properties, the written affirmative recommendation of
the Consultant as to the type, terms and amounts of
insurance to be maintained under such contract. The
Consultant shall have the right at any time to make
recommendations to the General Partner as to
increasing, decreasing or otherwise changing the
type, terms and amounts of insurance maintained by
the Partnership, so long as the costs of such
insurance are reasonable.
l. Selection of accountants. In this connection, the
General Partner shall obtain the written affirmative
recommendation of the Consultant prior to the
selection of any Person to perform accounting
services for the Partnership other than BDO Xxxxxxx,
LLP, and the Consultant shall have the right at any
time to recommend to the General Partner the change
or removal of any accountants performing services for
the Partnership, provided such change shall not cause
the Partnership to incur unreasonable additional
costs.
2. Consulting Services.
a. The General Partner shall submit from time to time
in writing to the Consultant each proposal to be
considered by the Consultant pursuant to the
provisions of Section 1 above, and shall notify the
Consultant of the date the Consultant's
recommendation shall be submitted, which date shall
not be less than fifteen business days after the
receipt of the General Partner's notice unless
otherwise agreed in writing by the Consultant. The
Consultant shall render its recommendation to the
Partnership by the date
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specified by the General Partner; provided that the
Consultant may submit its recommendation to the
Partnership up to thirty calendar days after the date
specified by the General Partner if the Consultant
submits a written request for such an extension to
the General Partner and the General Partner receives
that request on or before the due date originally
specified. If the General Partner makes a material
modification to the proposal during the 15 business
day period or during the 30 calendar day extension,
if applicable, the Consultant may submit its
recommendation up to 15 calendar days after the end
of the 15 business day period or 30 calendar day
extension, as applicable. The General Partner shall
concurrently or thereafter furnish to the Consultant
the following information:
(i) if the General Partner has submitted a
proposal for the Financing of a Property by
the Partnership, current operating
information concerning such Property
including the latest financial statements
for such Property, the proposed terms of
such Financing including whether any lender
will require as a condition to such
Financing that its consent be obtained prior
to any change in or removal of the General
Partner of the Partnership, and projections
showing the impact of the proposed Financing
on the anticipated results of operation of
the Property and allocations and
distributions of the Partnership;
(ii) if the General Partner has submitted a
proposal for the sale of a Property by the
Partnership, current operating information
concerning such Property including the
latest financial statements for such
Property and the proposed terms of sale
including whether the Partnership intends to
accept purchase-money obligations from the
buyers of such Property; and
(iii) with respect to every other transaction or
matter listed in Section 1 above, such
information as the Partnership possesses
that is directly or indirectly related to
the matter being considered by the
Consultant.
In addition, the General Partner shall furnish to the Consultant such
other information as is in its possession upon request with respect to any such
transaction or matter and shall endeavor to obtain such other information as the
Consultant shall reasonably request if it is not then in the possession of the
General Partner.
b. The Consultant shall review all proposals submitted
to it by the General Partner for the transactions and
matters listed in Section 1 above and shall provide
the General Partner and the Partnership with a
written recommendation with respect to each such
proposal. The Consultant's recommendation shall
address the proposal from the perspective of the
Partnership and its Limited Partners. The Consultant
shall submit its
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recommendation to the General Partner on or before
the date specified in Section 2(a).
c.
If the Consultant makes a recommendation with
respect to any transaction or matter covered by
Section 1 and the General Partner determines to
solicit the approval of a majority in interest of the
Limited Partners of the Partnership in order that it
may nevertheless enter into such transaction or
matter on the Partnership's behalf or not comply with
the recommendation of the Consultant, the General
Partner shall, not less than 15 days before the first
mailing of materials soliciting the approval of any
Limited Partner, notify promptly the Consultant of
such determination by the General Partner. The
Consultant shall thereupon have the right to furnish
to the General Partner a written statement of the
Consultant in support of its recommendation within 10
days after the notice of the General Partner referred
to in the preceding sentence. The General Partner
shall include in its soliciting material the
statement of the Consultant, and neither the General
Partner nor the Partnership shall be responsible for
such statement. If the General Partner intends to
include in its soliciting material any statement
supporting the approval by the Limited Partners, the
General Partner shall, not later than five days prior
the earlier of the date such soliciting materials are
first filed with the Securities and Exchange
Commission or mailed to the Limited Partners, furnish
to the Consultant a copy of the General Partner's
statement supporting approval by the Limited
Partners.
The Consultant's written recommendation shall be in a
form suitable for distribution to the Limited
Partners and for filing with the Securities and
Exchange Commission or state securities regulators as
part of a registration statement or proxy statement.
The Consultant agrees that it will revise or expand
upon such written recommendation if and to the extent
required by the Securities and Exchange Commission or
any other regulatory authority. The parties
acknowledge that the requirements of the paragraph do
not expand upon the scope of the recommendation
letter required to be rendered by the Consultant
pursuant to Section 2(b). In particular, the parties
acknowledge that if a formal fairness opinion were
required to be rendered in connection with a
particular proposal, the preparation and rendering of
such an opinion would be outside the scope of this
Agreement. The Partnership and the General Partner
would be free to contract with the Consultant or with
any other party, in their sole and absolute
discretion, to obtain such a formal fairness opinion.
3. Compensation. For its services hereunder, the Consultant will be
paid a fee of $18,000 annually, as adjusted beginning on January 1, 2000 in
accordance with the change in Consumer Price Index for all Urban Consumers (the
"CPI-U") as set forth in the fourth paragraph of this Section (the "Consultant's
Fee"). The Consultant's Fee shall be payable in four equal installments, in part
in advance and in part in arrears, on the forty-fifth day of each calendar
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quarter. If this Agreement commences other than on the first day of a calendar
quarter the Consultant's Fee for the partial calendar quarter shall be pro rated
to reflect the actual number of days in the calendar quarter for which the
Consultant is to provide services and shall be paid on the forty-fifth day of
such calendar quarter or on the date of commencement of this Agreement, if
later.
If this Agreement terminates for cause pursuant to Section 5(a) hereof,
no further Consultant's Fee shall be payable pursuant to this Agreement. If the
for-cause termination occurs other than on the last day of a calendar quarter,
the Consultant's Fee shall be pro rated to reflect the actual number of days in
the calendar quarter for which this Agreement is in force, and within 10
business days following termination the Partnership shall pay the Consultant any
amount then owing or the Consultant shall refund to the Partnership any amount
overpaid with respect to that quarter, as the case may be.
If this Agreement terminates for any reason other than a for-cause
termination pursuant to Section 5(a) hereof, the Partnership shall continue to
pay the Consultant the Consultant's Fee through the period ending seven years
from the date of this Agreement.
Beginning January 1, 2000, the Consultant's fee shall be adjusted once
annually using the percentage change (computed on a time-weighted, annualized
basis) of the yearly CPI-U published by the United States Bureau of Labor
Statistics (the "BLS"), or if such index is not published annually, then the
CPI-U published for periods closest to annually. If the CPI-U is no longer
published by the BLS, the CPI-U shall mean that rate determined by the General
Partner as the closest approximation of the CPI-U. The calculation of the CPI-U
shall take 1999 as its base period.
In addition, the Consultant shall be reimbursed up to a maximum of
$11,250 in any year for all accountable out-of-pocket expenses incurred by it in
connection with the performance of consulting services hereunder, other than
expenses for any person retained by Consultant to perform an additional current
appraisal of a Property in connection with a transaction being reviewed by
Consultant. The Consultant shall not have recourse against the General Partner
in the event such fees and expenses are not paid by the Partnership. This
Section 3 shall survive termination of this Agreement.
4. Term. Unless sooner terminated under Section 5, this Agreement shall
continue until the first to occur of the following: the expiration of this
Agreement on January 8, 2005; the dissolution and liquidation of the Partnership
in accordance with the terms of the Partnership Agreement; or the expiration of
the term of the Partnership as provided therein. The term of this Agreement may
be extended by mutual agreement of all of the parties.
5. Termination for Cause. The Partnership or the General Partner may
terminate this Agreement at any time for cause upon delivery of written notice
to the Consultant. The Consultant may terminate this Agreement at any time for
cause upon delivery of written notice to the Partnership.
a. The Partnership or General Partner shall have cause
for termination:
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(i) If the Consultant shall default in the
performance of its obligations pursuant
to Section 2(b) of this Agreement; or
(ii) If bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or
other proceedings for relief under any
bankruptcy law or similar law for the relief
of debtors, are instituted by or against the
Consultant, are allowed against the
Consultant or are consented to or are not
dismissed, stayed or otherwise nullified
within thirty days after such institution;
or
(iii) If Xxxxxx Xxxxxx shall cease to be the sole
shareholder and President of the Consultant
unless the Partnership, in its sole and
absolute discretion, shall give written
consent for the transfer of Xxxxxx Xxxxxx'x
ownership interest in the Consultant; or
(iv) If any change in applicable law renders this
Agreement, in whole or material part,
illegal or unenforceable.
b. The Consultant shall have cause for termination:
(i) If the Partnership or the General Partner
shall default in the performance of any
material covenant, agreement, term or
provision of this Agreement and such default
shall continue for a period of sixty days
after written notice to the Partnership from
the Consultant stating the specific default;
or
(ii) If bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or
other proceedings for relief under any
bankruptcy law or similar law for the relief
of debtors, are instituted by or against the
Partnership, and, if instituted against the
Partnership, are allowed against the
Partnership or are consented to or are not
dismissed, stayed or otherwise nullified
within thirty days after such institution;
or
(iii) If any change in applicable law renders this
Agreement, in whole or material part,
illegal or unenforceable.
c. Upon the expiration or termination of this Agreement,
no party shall have any further right hereunder or
any further obligation hereunder to the others,
except for the obligations, promises or covenants
contained herein which are expressly made to extend
beyond the term of this Agreement.
d. Any party having actual knowledge of an event
creating cause for termination of this Agreement
shall be deemed to have waived its right to terminate
with cause on the basis of that particular event
pursuant to this
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Section 5 if it has not exercised its termination
right within 30 calendar days after actually knowing
of the event.
6. Relationship of the Parties. It is expressly understood and agreed
by the parties that, in providing services under this Agreement, the Consultant
shall at all times act as an independent contractor, not as an employee or agent
of the Partnership, nor shall the Partnership be an employee or agent of the
Consultant. Further, it is expressly understood and agreed by the parties that
nothing contained in this Agreement shall be construed to create a joint
venture, partnership, association or other affiliation or like relationship
among the parties, or a relationship of landlord and tenant, it being
specifically agreed that their relationship is and shall remain that of
independent parties to a contractual relationship as set forth in this
Agreement. In no event shall either party be liable for the debts or obligations
of the other of them, except as otherwise specifically provided in this
Agreement.
7. Indemnification.
(a) The Partnership agrees to indemnify and hold
harmless the Consultant against any losses, claims,
damages or liabilities, joint or several, to which
the Consultant may become subject under this
Agreement, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out
of or are based upon any breach or alleged breach of
this Agreement by the Partnership or the General
Partner. The Partnership will reimburse the
Consultant for any legal or other expenses reasonably
incurred by the Consultant in connection with
investigating or defending against any such loss,
claim, damage, liability or action; provided,
however, that if the Partnership has specifically
agreed to pay any settlement or judgment in respect
of such action or claim, has made all such
reimbursements of such expenses to such date and can
reasonably demonstrate the continuing financial
ability to comply with the terms of this Section
7(a), it shall not be required to indemnify the
Consultant for any payment made by the Consultant to
any claimant in settlement of any suit or claim
unless such payment is approved by the Partnership
(which approval shall not be unreasonably withheld)
or by a court having jurisdiction of the controversy;
and provided further that the Partnership shall not
be liable under this Section 7(a) for any losses,
claims, damages or liabilities arising out of any act
or failure to act on the part of any other person,
but shall be liable only with respect to the
Partnership's own acts or failures to act. This
Section 7(a) shall remain in full force and effect
notwithstanding any investigation made by the
Consultant or on behalf of the Consultant, shall
survive termination of this Agreement, and shall be
in addition to any liability which the Partnership
may otherwise have.
(b) The Consultant agrees to indemnify and hold
harmless the Partnership and the General Partner, and
any person which controls either of them, against any
losses, claims, damages or liabilities, joint or
several, to which the Partnership or the General
Partner or such controlling person may become
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subject, under this Agreement, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any
breach or alleged breach of this Agreement by the
Consultant. The Consultant will reimburse the
Partnership and the General Partner for any legal or
other expenses reasonably incurred by them in
connection with investigating or defending against
any such loss, claim, damage, liability or action;
provided, however, that if the Consultant has
specifically agreed to pay any settlement or judgment
in respect of such action or claim, has made all such
reimbursements of such expenses to such date and can
reasonably demonstrate the continuing financial
ability to comply with the terms of this Section
7(b), the Consultant shall not be required to
indemnify the Partnership or the General Partner for
any payment made to any claimant in settlement of any
suit or claim unless such payment is approved by the
Consultant (which approval shall not be unreasonably
withheld), or by a court having jurisdiction of the
controversy; and provided further that the Consultant
shall not be liable under this Section 7(b) for any
losses, claims, damages or liabilities arising out of
any act or failure to act on the part of any other
person, but shall be liable only with respect to the
Consultant's own acts or failures to act. This
indemnity shall remain in full force and effect
notwithstanding any investigation made by or on
behalf of the Partnership or the General Partner,
shall survive any termination of this Agreement, and
shall be in addition to any liability which the
Consultant may otherwise have.
(c) No indemnifying party shall be liable under the
indemnity provisions contained in Sections 7(a) and
7(b) unless the indemnified party shall have notified
such indemnifying party in writing promptly after the
first written notice or the summons or other first
legal process giving information of the nature of the
claim or of the commencement of the action shall have
been delivered to or served upon the indemnified
party (but failure to notify an indemnifying party of
any such claim shall not relieve it from any
liability otherwise than on account of its indemnity
rights contained in Sections 7(a) or 7(b) which it
may have to the indemnified party against whom action
is brought). In case any claim is made or any action
is brought against any indemnified party upon any
claim as to which such indemnified party claims
indemnity pursuant to Sections 7(a) or 7(b) or
otherwise, the indemnifying party shall be entitled
to participate at its own expense in the defense, or,
if it so elects, in accordance with arrangements
satisfactory to any other indemnifying party or
parties similarly notified, to assume the defense
thereof, with counsel who shall be satisfactory to
such indemnified party and any other indemnified
parties who are defendants in such action; and after
notice from the indemnifying party to such
indemnified party of its election so to assume the
defense thereof and the retaining of such counsel by
the indemnifying party, the indemnifying party shall
not be liable to such indemnified party under
Sections 7(a) or 7(b) or otherwise for any legal or
other expenses subsequently incurred by
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such indemnified party in connection with the defense
thereof, other than the reasonable costs of
investigation. Notwithstanding the election of an
indemnifying party to assume the defense of any such
action, if (i) the indemnifying party shall not have
employed counsel to have charge of the defense of
such action or proceeding or (ii) such indemnified
party shall have reasonably concluded that there may
be defenses available to it which are different from
or additional to those available to the indemnifying
party (in which case the indemnifying party shall not
have the right to direct the defense of such action
or proceeding on behalf of the indemnified party),
then in either of such events the indemnifying party
shall bear all legal or other expenses incurred by
the indemnified party in connection with the defense
of such action.
8. Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to that term or any other term of
this Agreement.
9. Entire Agreement. This Agreement supersedes all previous contracts
or agreements among the parties with respect to the subject matter hereof and
constitutes the entire Agreement among the parties with respect thereto.
10. Amendments. This Agreement may be amended only be an instrument in
writing signed in the manner provided in Section 12 below, effective as of the
date stipulated therein.
11. Invalidity of Particular Provisions. If any term or provisions of
this Agreement, or any application thereof to any person or circumstance shall
to any extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and each term and provision of this Agreement shall be valid and be
enforceable to the fullest extent allowable by law.
12. Execution. This Agreement and any amendments hereto shall be
executed in no fewer than two counterparts by a duly authorized officer or agent
of each party hereto. Each counterpart so executed shall be deemed an original,
but all original counterparts shall together constitute one and the same
instrument.
13. Further Actions. Each of the parties agrees that it shall hereafter
execute and deliver such further instruments and do such further acts and things
as may be reasonably required or useful to carry out the intent and purpose of
this Agreement and as are not inconsistent with the terms hereof.
14. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Consultant, the General Partner, the
Partnership and their respective successors and assigns. This Agreement may not
be assigned by the General Partner or the Partnership
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without the prior written consent of the Consultant. This Agreement may not be
assigned by the Consultant without the prior written consent of the General
Partner.
15. Notices. All demands, notices and other communications under this
Agreement shall be in writing shall be personally delivered or sent by
registered mail, telecopy or overnight courier, shall be deemed to have been
duly given when received, and shall be addressed as follows:
To the General Partner or the Partnership:
P.I. Associates
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
with a copy to:
Xxxxxxxx X. Xxxxx, Esq.
Xxxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
To the Consultant:
Manufactured Housing Services, Inc.
Attention: Xx. Xxxxxx X. Xxxxxx, President
00 Xxxxxxxx Xxx
Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxx, Esq.
00 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
or at such address as may hereafter be furnished in writing by any party to the
others.
16. Defined Terms. Capitalized terms defined in the Partnership
Agreement but not defined herein shall have the same meanings as are provided
therefor in the Partnership Agreement.
17. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the State of New York.
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18. Remedies. In the case of any disputes arising under this Agreement,
the prevailing party shall be entitled to recover reasonable legal fees and
costs from the adverse party.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first above written.
UNIPROP MANUFACTURED HOUSING
COMMUNITIES INCOME FUND,
a Michigan Limited Partnership
By: P.I. Associates, a Michigan Limited
Partnership, General Partner
By: /s/ Xxxx X. Xxxxxxx
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P.I. ASSOCIATES,
a Michigan Limited Partnership
By: /s/ Xxxx X. Xxxxxxx
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MANUFACTURED HOUSING
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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