099999\14127737v20 1 CERTAIN INFORMATION, IDENTIFIED BY, AND REPLACED WITH, A MARK OF “[**]” HAS BEEN EXCLUDED FROM THIS DOCUMENT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. LIMITED...
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099999\14127737v20 1 CERTAIN INFORMATION, IDENTIFIED BY, AND REPLACED WITH, A XXXX OF “[**]” HAS BEEN EXCLUDED FROM THIS DOCUMENT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. LIMITED LIABILITY COMPANY AGREEMENT OF TMVP BTR VENTURE, LLC THIS LIMITED LIABILITY COMPANY AGREEMENT OF TMVP BTR VENTURE, LLC (this “Agreement”) is made and entered into as of April 26, 2022 (the “Effective Date”), by and between TM BTR VENTURE LLC, a Delaware limited liability company (“Builder”), and VP MOONDANCE HOLDINGS LLC, a Delaware limited liability company (“Investor”). Initially capitalized terms in this Agreement shall have the meanings set forth in Section 1.7, elsewhere in this Agreement as identified in the “Index of Defined Terms” attached to this Agreement or in the Tax Appendix. R E C I T A L S A. TMVP BTR Venture, LLC (the “Company”) was formed as a limited liability company, pursuant to the provisions of the Delaware Limited Liability Company Act, 6 Del. C. § 18 101 et seq., as the same may be amended from time to time (the “Act”), by filing the certificate of formation with the Secretary of State of the State of Delaware on December 8, 2021, as SR 2021-6455996 (the “Certificate of Formation”). B. The parties deem a limited liability company agreement to be necessary and advisable to set out their agreement as to the conduct of business and the affairs of the Company and desire to enter into this Agreement. NOW, THEREFORE, the parties hereby agree as follows: ARTICLE I FORMATION AND PURPOSE OF COMPANY; DEFINITIONS Section 1.1 Formation. The Company has been formed by the filing of the Certificate of Formation with the Secretary of State of the State of Delaware. Section 1.2 Name. The Company’s business shall be conducted solely under the name of “TMVP BTR Venture, LLC”. Section 1.3 Term. The term of the Company shall be from the date hereof until the Company is dissolved as hereinafter provided. Section 1.4 Purpose. 1.4.1 Generally. The purposes for which the Company is formed are, and the business of the Company shall be, to, either directly or indirectly (through a Subsidiary
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099999\14127737v20 4 “Approved Pursuit Project” means a Proposed Project approved by the Members with respect to which the Company or a Subsidiary Entity will negotiate a Purchase Agreement and, if approved by the Members, execute such Purchase Agreement. “Arbitrator” means an individual who: (A) to the extent reasonably possible, has experience in the specific matters in dispute and in the arbitration of commercial real estate disputes generally; (B) is independent of each Member; and (C) is a lawyer, retired lawyer or retired judge. In the event that (i) the Members are unable to agree upon an Arbitrator within seven Business Days after the PDR Triggering Member and the PDR Responding Member both elect to bid on the Dispute Project under Article 11, (ii) the appraisers are unable to agree upon a third appraiser within seven Business Days after a Member requests the other two appraisers to appoint a third appraiser, or (iii) the Arbitrator appointed by the Members is unable or unwilling to serve as arbitrator, then either Member may petition the Delaware Court of Chancery to appoint an arbitrator using the same procedures that would be implement if the Delaware Court of Chancery was appointing an arbitrator under Section 5805 of the Delaware Rapid Arbitration Act, 10 Del. C. § 5801, et seq. “Available Cash” means, with respect to each Tranche, all cash from such Tranche on hand and in banks, savings and loan associations and cash equivalents, after taking into account any restrictions under loan documents and any other Company financings (including payment of Financing Fees, if any), and after payment or provision for payment of all Company obligations, anticipated expenditures, provision for Working Capital and Reserves, in each case, for such Tranche. “Bad Conduct” means, with respect to a Person, acts constituting gross negligence, willful or wanton misconduct or fraud arising out of the performance of such Person’s obligations or duties under this Agreement. “Bankruptcy Event” means with, respect to a Person, the commencement or occurrence of any of the following with respect to such Person: (A) a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under another applicable state bankruptcy law; (B) the appointment of a trustee or receiver of all or substantially all of such Person’s property interests; or (C) an attachment of all or substantial all of such Person’s property interests; except that such event shall not be a Bankruptcy Event if the same is (i) involuntary and not consented to in writing, (ii) contested within 60 days after such Person or its Affiliate has received written notice thereof, and (iii) dismissed or set aside, as the case may be, within 150 days of the commencement thereof. “Board” means the Company’s board consisting of four Board Representatives, two of whom shall be appointed by Investor and two of whom shall be appointed by Builder. “Board Representative” means a natural person appointed by Investor or Builder to serve as a representative on the Board. Each appointee may be removed and replaced in the sole discretion of the Member that appointed him or her. “Budgeted Costs” means those Project Costs set forth in an Approved Budget.
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099999\14127737v20 5 “Buy Price” means a price equal to the distributions that would be made to FL Triggering Member upon a liquidation of the Company under Section 12.2 if the Company’s assets had been sold based on, as applicable, the Mutual Valuation, the Non-Triggering Member Valuation or the Fair Market Value, in each case, subject to adjustment for the allocations in Section 13.5.6. “Capital Call” means a written request for capital issued by Manager for any one or more of (A) Budgeted Costs, (B) Unbudgeted Permitted Organizational Costs up to $[**] per calendar year, (C) Unbudgeted Permitted Project Costs for an Approved Project provided that the amount of such Unbudgeted Permitted Project Costs for such Approved Project does not exceed $[**] or, if such limit is reached, the new limit approved by the Members for such Approved Project, (D) an amount necessary to restore Working Capital or Warranty Reserves, or (E) an amount necessary to pay Warranty Expenses that exceed the Warranty Reserve. Each Capital Call shall contain (i) a reasonable description of the Project Costs (including the portion of the Pre-Development Fee and CM Fee) to be paid from the proceeds contributed by the Members, (ii) a reconciliation with the Approved Budget, (iii) invoices, bills or, if neither an invoice nor a xxxx is available, other information to substantiate the Project Costs that have been incurred or are anticipated to be incurred, and (iv) the designation of Mandatory Capital or Discretionary Capital, as applicable. “Capital Contributions” means all capital contributions made (or deemed made) by a Member to the Company, including (A) cash and cash equivalents, and (B) the Total Contribution Value of a Contributed Property. “CTC” means Xxxxxxxxxxx Xxxx Communities, LLC, an Arizona limited liability company. “Claim/Loss” or “Claims/Losses” means any obligation, liability, claim, suit, action, proceeding, investigation, dispute, cost or expense (including any judgment, award, settlement, reasonable attorneys’ fees, reasonable consultant and expert fees, and other costs and expenses incurred in connection with the defense or resolution of any actual or threatened suit, action, proceeding, investigation, dispute or claim, including appellate or bankruptcy proceedings, and any collection or enforcement costs). “CM Fee Base” means the total hard costs relating to construction of the applicable Approved Project (excluding hard costs included in the Pre-Development Fee Base and land costs) for the applicable Approved Project; except that (A) the CM Fee Base shall not include cost overruns that would not have been incurred absent a material breach on the part of Manager under this Agreement (while Builder is Manager) or a material breach on the part of Construction Manager under the applicable Construction Management Agreement, and (B) the CM Fee Base for an Approved Project shall not exceed the sum of (i) the hard costs for materials relating to construction of the applicable Approved Project set forth in the Approved Budget, and (ii) the Adjusted Labor Budget. “CM Responsible Cost Overruns” shall, with respect to an Approved Project, have the meaning set forth in the applicable Construction Management Agreement. “Company Asset” means each asset in which the Company owns a direct or indirect interest.
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099999\14127737v20 6 “Company Payment” shall, with respect to a Contributed Property, have the meaning set forth in the applicable Contribution Agreement. “Contributed Property” means property (other than cash or cash equivalents) that has been approved by the Members to be contributed by a Member to the Company (or to a Subsidiary Entity on behalf of the Company). “Contributing Member Corresponding Funded Amount” means, with respect to a specified Capital Call, if a Non-Contributing Member funds a portion of the Capital Contributions specified in such Capital Call (but fails to fund its entire share of the Capital Contributions specified in such Capital Call), an amount (if any) equal to (A) the quotient derived when dividing (i) the Non-Contributing Member Funded Amount with respect to such Capital Call by (ii) the Non-Contributing Member’s Percentage Interest, times (B) the Contributing Member’s Percentage Interest. If the Non-Contributing Member Funded Amount with respect to such Capital Call is zero dollars, then the Contributing Member Corresponding Funded Amount with respect to such Capital Call shall also be zero dollars. “Contributing Member Excess Capital Share” means, with respect to a specified Capital Call, if (A) the sum of (i) the Capital Contributions funded by a Non-Contributing Member with respect to such Capital Call plus (ii) the Non-Contributing Member Funded Amount is less than the Non-Contributing Member’s entire share of the Capital Contributions specified in such Capital Call, and (B) a Contributing Member funds more than the Contributing Member Corresponding Funded Amount with respect to such Capital Call, the portion of such Capital Call funded by such Contributing Member that exceeds the Contributing Member Corresponding Funded Amount. “Cure Period” means (A) in connection with a monetary default, 10 business days after written notice to a defaulting Member specifying the nature of a default or breach under this Agreement; and (B) in connection with a non-monetary default, 30 days after written notice to a defaulting Member specifying the nature of a default or breach under this Agreement (provided, however, that if such non-monetary default cannot reasonably be cured within such 30-day period, and such defaulting Member promptly commences the cure of such default and diligently pursues such cure to completion, then such 30-day period shall be extended to the extent reasonably necessary). “Date of Value” means the date on which FL Triggering Member delivers a Forced Liquidation Notice. “Discretionary Capital” means, as of the applicable measuring date, all Capital Contributions other than those Capital Contributions for Mandatory Capital. “Disposition PSA” means (A) a purchase and sale agreement relating to the sale of all or any portion of the Company Assets to a Third-Party Potential Purchaser that complies in all material respects with the terms contained in this Agreement and has otherwise been approved by the Board, or (B) a purchase and sale agreement relating to the sale of all or any portion of the Company Assets to a Member or its Affiliate that complies in all material respects with the terms contained in this Agreement and has otherwise been approved by the Member that is neither the purchasing Member nor an Affiliate of the purchasing Member. Unless waived by the Board,
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099999\14127737v20 7 (i) each Disposition PSA shall contain the PSA Required Terms, (ii) each Disposition PSA between the Company or a Subsidiary, on the one hand, and a Member or its Affiliate, on the other hand, shall contain the PSA Preferred Terms, (iii) the Company shall use commercially reasonable efforts to include those PSA Preferred Terms described in Paragraphs 1 and 2 of Part II in Exhibit D in each Disposition PSA that is also a Third-Party PSA, and (iv) the Company shall use best efforts to include those PSA Preferred Terms described in Paragraph 3 of Part II in Exhibit D in each Disposition PSA that is also a Third-Party PSA. “Distributable Cash” means, with respect to a Tranche, all Available Cash on the date of any proposed distribution for such Tranche pursuant to this Agreement. “ECI” means, as used in this Agreement, the Employment Cost Index issued by the U.S. Bureau of Labor Statistics set forth in the table for “Wages and salaries (not seasonally adjusted): Employment Cost Index for wages and salaries, for private industry workers, by occupational group and industry” in the row corresponding to “Construction” under the heading “Goods- producing industries” or, if the ECI ceases to be published or the subject index is no longer published, Manager shall select an index to approximate the ECI and shall use such replacement index in lieu of the ECI, which replacement index shall be subject to the Board’s approval acting in its reasonable discretion. “Employee Misconduct” means conduct attributable to an employee of a Member or its Affiliate involving Bad Conduct in connection with the Company or a Subsidiary Entity. “Excluded Materials” means (A) reports or studies that have been superseded by subsequent reports or studies, (B) with respect to attorneys engaged by a Member (as opposed to attorneys engaged by the Company or a Subsidiary Entity), material that is subject to attorney- client privilege or attorney work product, (C) financial documents relating to a Member or its Affiliates (other than evidence of due authorization and organization required under this Agreement and as required to verify such Person is not a Restricted Person), or (D) material that a Member or its Affiliate is legally required not to disclose, including a Person’s compliance with security regulations governing publicly-traded company’s disclosure of non-public information. To the extent that the disclosure of information or agreements is restricted by an agreement with a third-party Person, such Member shall exercise commercially reasonable efforts to obtain the approval of such third-party Person to permit the disclosure of such information. “Excluded Opportunity” means a project involving acquisition, development or sale of real property that falls within any one or more of the following: (A) Builder determines does not conform with the Investment Parameters; (B) Builder or its Affiliate intends to acquire such project for any reason other than to commence construction of a project containing Apartment Units prior to the expiration of the Investment Period; (C) such project is listed on Exhibit I; (D) the apartment units at such project will be constructed as part of a garden-style, Texas-wrap, podium or other traditional apartment complex; or (E) Builder or it Affiliate intends to sell all or a portion of the units at such project to Persons in the business of renting single-family residences (such as, without limitation, American Homes 4Rent, Invitation Homes, Home Partners of America, etc.) provided that the relevant project described in this clause (E) is not a single plat apartment project.
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099999\14127737v20 8 “Exclusivity Termination Event” means any one or more of (A) a material breach on the part of Investor, (B) more than two PDR Trigger Notices have been delivered, or (C) a Three- Strikes Event. “Excusable Delay” means, with respect to the Project Schedule, delays caused by any one or more of the following: (A) strikes, lockouts or other labor or industrial disturbances of a regional or national character; (B) civil disturbance; (C) future order of or delay caused by any government, court or regulatory body claiming jurisdiction (including delays in processing or release of necessary permits); (D) tariffs; (E) a default by a contractor, a design professional and any third- party Person not affiliated with Builder; (F) act of the public enemy, war, riot, terrorism, sabotage, blockade or embargo; (G) failure or inability to secure materials, supplies, utilities or labor through ordinary sources by reason of shortages or priority, system failure (e.g., failure causing interruption of electricity, telecommunications, water or other utilities) or regulation or order of any government or regulatory body; (H) epidemics or pandemics; (I) lightning, earthquake, fire, storm, hurricane, tornado, flood or other Acts of God of unusual duration or volume (including, rain delays in excess of the permitted days for rain delay specified in the general construction contract); (J) transportation disasters, whether by sea, rail, air or land; (K) financial crises of a nature materially affecting the purchase and sale of investment securities or the closing of the New York Stock Exchange or industry-wide closing of banks other than normal closing dates; or (L) other delays reasonably beyond Builder’s or its Affiliate’s control. “Excused Employee Misconduct” means Employee Misconduct that is excused because, after the applicable Member learns of the Employee Misconduct, such Member (A) removes the employee who committed Employee Misconduct from any future association with the Company or a Subsidiary Entity, and (B) reimburses the Company for losses incurred by the Company by reason of such Employee Misconduct (after deducting insurance proceeds received by the Company or a Subsidiary Entity in connection with such Employee Misconduct). “Fair Market Value” means the fair market value of the real property owned by the Company or a Subsidiary Entity (without double-counting) on the Date of Value, which shall be determined by an appraiser appointed by the Members having at least 10 years of experience appraising similar real property in the city or county in which such real property is located. The fees and costs of the appraiser shall be paid by the Company and deducted from the Fair Market Value when determining the Buy Price. If the Members are unable to agree upon an appraiser, each Member shall have 30 days from the date of the Responsive Notice (or, if Builder fails to deliver a Responsive Notice, 30 days from the expiration of the Responsive Notice Period) to select an appraiser to determine the Fair Market Value. If a Member fails to timely select an appraiser, the appraiser selected by the other Member shall determine the Fair Market Value. If two appraisers are selected, the two appraisers shall select a third appraiser after completing the appraisals, who shall select one of the two appraisals as the Fair Market Value. Any inability to agree upon a third appraiser shall be resolved by an Arbitrator who has been appointed by either the Members or, if the Members are unable to agree on an Arbitrator, the Delaware Court of Chancery. “Financing Fee” means, with respect to a Loan obtained by the Company or a Subsidiary Entity from a Lender not affiliated with Värde or TMHC, a fee equal to [**]% of the proceeds disbursed by the Lender under such Loan (other than amounts disbursed by Lender after a default
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099999\14127737v20 9 has occurred on the part of the Company or a Subsidiary Entity under such Loan, including any one or more of default interest, protective advances or Lender’s attorneys’ fees and court costs); provided, however, that, (A) if refinancing is obtained to replace one or more existing Loans, a Financing Fee shall only be payable with respect to the disbursed portion of the new Loan (i.e., the refinancing) that exceeds the disbursed portion of the existing Loan (e.g., in other words, the fee shall be calculated based on the incremental additional proceeds disbursed under the new Loan), and (B) the aggregate Financing Fees paid to a Member shall not exceed $[**] for both Tranches (combined). “Fundamental Decisions” means those Major Decisions identified as Fundamental Decisions on Exhibit F or elsewhere in this Agreement. “Hazardous Substances” means collectively (A) those substances included within the definitions of or identified as solid wastes, special wastes, hazardous chemicals, hazardous waste, hazardous substances, hazardous materials, toxic substances or similar terms in or pursuant to the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. § 9601, et seq.), Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901, et seq.), the Occupational, Safety and Health Act of 1970 (29 U.S.C. § 651, et seq.), the Hazardous Materials and Transportation Act (49 U.S.C. § 1801, et seq.), Clean Water Act, 33 U.S.C. § 1321, et seq., or Clean Air Act (42 U.S.C. § 7401, et seq.), all as amended at any time, and all regulations promulgated pursuant to such laws, (B) those substances listed in the United States Department of Transportation Table (49 CFR 172.101 and amendments thereto) or by the EPA as hazardous substances (40 CFR Part 302 and amendments thereto), (C) any material, waste or substance which is or contains petroleum or petroleum-related products, including crude oil or any fraction thereof, natural gas, synthetic gas usable for fuel or any mixture thereof, asbestos or asbestos-containing materials, polychlorinated biphenyls, flammable explosives, radioactive materials, and (D) such other substances, materials and wastes, which are or become regulated or classified as a hazardous, toxic, solid or a special waste, under any federal, state, county, municipal or other local environmental laws now in effect or promulgated in the future. “Horizontal Improvements” means the improvements to be constructed on, below or at an Approved Project, which may include wet and dry utilities, gutters, sidewalks, landscaping, streets, walls, mailboxes, roads, amenities, sewer lines and other improvements typically consistent with vacant land used for the development of horizontal multi-family apartments in the Target Market. The Horizontal Improvements to be constructed at an Approved Project will be specified in the Approved Package. The Horizontal Improvements for each Approved Project may vary. “Incentive Distributions” means (A) in the case of Tranche I, the amounts distributable to Builder under Sections 4.1.2, 4.1.3 and 4.1.4 in excess of the amounts that would have been distributable to Builder had the amounts under Sections 4.1.2, 4.1.3 and 4.1.4 been distributed to the Members pro rata in proportion to each Member’s Percentage Interest, or (B) in the case of Tranche II, the amounts distributable to Builder under Sections 4.2.2, 4.2.3 and 4.2.4 in excess of the amounts that would have been distributable to Builder had the amounts under Sections 4.2.2, 4.2.3 and 4.2.4 been distributed to the Members pro rata in proportion to each Member’s Percentage Interest.
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099999\14127737v20 10 “Investment Parameters” means the parameters described in Exhibit A. “Investment Period” means the period commencing on the Effective Date and ending on the earlier of (A) the expiration of the Tranche I Investment Period if the Tranche I Investment Period is terminated by Builder by reason of an Exclusivity Termination Event, or (B) the expiration of the Tranche II Investment Period. “Investor Guarantor” means The Värde Fund XIII L.P., a Cayman Islands limited partnership. “Investor IRR” means [**]. “Investor Sourced Loans” means Loans sourced by Investor for which Investor is entitled to a Financing Fee. “Lender” means a Person making a Loan to the Company or a Subsidiary Entity. “Loan” means, subject to obtaining the Board’s approval, a loan, purchase-money financing, land banking financing or other indebtedness for money borrowed by the Company or a Subsidiary Entity. For sake of clarity, trade payables, retentions and deferred amounts payable with respect to a specific contractor, subcontractor, consultant, design professional or supplier shall not be deemed a Loan. “Manager” means Builder, or if Builder is removed, a Person appointed by Investor; except that Investor shall obtain Builder’s prior written consent with respect to such Person if any one or more of the following matters are applicable: (A) such Person selected by Investor has been involved in an action, suit or formal dispute directly adverse to Builder or its Affiliate during the period that is ten years prior to the appointment of such Person as replacement Manager; (B) such Person or its Affiliate has been convicted of a felony, a crime involving defrauding, stealing or other misappropriation of funds or is the subject of a grand jury or similar investigation involving any of the foregoing; (C) the appointment of such Person as Manager would potentially violate any one or more of (i) the Securities Act of 1933 or 1934, (ii) regulations or conventions governing anti-money laundering, (iii) Executive Order No. 13224 issued by the President of the United States on September 24, 2001 (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), as may be amended or supplemented from time to time or (iv) other applicable laws; or (D) the appointment of such Person would constitute a breach under agreements governing the Loan or other material agreements to which the Company, a Subsidiary Entity or a Project is bound. “Mandatory Capital” means, as of the applicable measuring date, Capital Contributions required to be funded by a Member to pay (A) Budgeted Costs and Unbudgeted Permitted Project Costs for an Approved Project identified in a Capital Call, provided that such Member’s Mandatory Capital for such Approved Project shall not exceed the lesser of (i) such Member’s Total Tranche Commitment minus the aggregate Capital Contributions previously funded by such Member for the applicable Tranche, or (ii) such Member’s Total Project Commitment for such Approved Project minus Capital Contributions previously funded by such Member for such
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099999\14127737v20 11 Approved Project, and (B) Unbudgeted Permitted Organizational Costs up to $[**] per calendar year. “Material Milestones” means the material milestones identified in a Project Schedule, which dates shall be adjusted when the dates in such Project Schedule are adjusted, amended or modified for Excusable Delay or by Board approval. “Material Notices” means any one or more of (A) a notice alleging that a material breach has occurred, (B) a notice that a Member has failed to timely contribute Mandatory Capital or Discretionary Capital after the issuance of a Capital Call (even if such failure to fund such Capital Contribution is not a breach), (C) a Forced Liquidation Notice, (D) a Responsive Notice, (E) a Non-Triggering Member Valuation Notice, (F) a PDR Trigger Notice, (G) an FOV Notice, (H) a ROFR Notice, (I) an Arbitration Notice, and (J) a Removal Notice. “Member” means each Person who (A) is an initial signatory to this Agreement or has been admitted to the Company as a Member in accordance with the express provisions set forth in this Agreement, and (B) has not resigned, withdrawn, been expelled or, if other than a natural person, dissolved. “Maturity Date” means the earliest to occur of (A) the date on which any Member transfers its direct interest in the Company or withdraws from the Company, (B) all of the Property is sold, directly or indirectly, (C) six years after the making of such Member Loan, or (D) the occurrence of a Bankruptcy Event on the part of, or the insolvency, dissolution or liquidation of, any one or more of the Company, a Subsidiary Entity, Investor Guarantor (if Investor is a Non- Contributing Member) or TM Guarantor (if Builder is a Non-Contributing Member). If the provisions herein contemplate a hypothetical dissolution, the Maturity Date shall be deemed to have occurred on the date of such hypothetical dissolution. “Non-Contributing Member Funded Amount” means, if a Member fails to fund its entire share of the Capital Contributions specified in a Capital Call based on its Percentage Interest, the sum of (A) an amount equal to the portion of such Capital Call funded by such Non- Contributing Member, and (B) an amount equal to the portion of such Capital Call deemed funded by a Non-Contributing Member by reason of a Member Loan. “Non-Refundability Condition” means the xxxxxxx money deposit under a Third-Party PSA shall be non-refundable no later than (A) 60 days after the Third-Party PSA is executed, if such Third-Party PSA relates to an undeveloped Approved For-Rent Development Project or (B) 30 days after the Third-Party PSA is executed, if such Third-Party PSA relates to a developed Approved For-Rent Development Project. “Off-Site Improvements” means improvements required to be constructed around an Approved Project to construct such Approved Project.
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099999\14127737v20 12 “Percentage Interest” means the following respective percentages for each of the Members: Member Percentage Interest Builder 40% Investor 60% “Person” means any natural person, general partnership, limited partnership, limited liability company, corporation, trust, estate, association or other entity. “Pre-Development Fee Base” means the total hard costs relating to the Horizontal Improvements and the Off-Site Improvements (excluding land costs, insurance premiums, taxes, financing costs, salaries of on-site project supervisors and the development fee itself) for the applicable Approved Project; except that (A) the Pre-Development Fee Base shall not include cost overruns that would not have been incurred absent a material breach on the part of Manager under this Agreement (while Builder is Manager) or a material breach on the part of Construction Manager under the applicable Construction Management Agreement, and (B) the Pre- Development Fee Base for an Approved Project shall not exceed the sum of (i) the hard costs for materials relating to construction of the applicable Approved Project set forth in the Approved Budget, and (ii) the Adjusted Labor Budget. “Pro Forma” means a pro forma prepared by a Submitting Party; to the extent applicable, a Pro Forma shall include budgets, project schedules, projected cash flows and projected returns for the applicable Proposed Project or the applicable Approved Project, as the case may be. “Project Costs” means, collectively, (A) all costs, fees and expenses incurred in connection with the formation, operation and continued existence of the Company or a Subsidiary Entity, and (B) all costs, fees and expenses incurred in connection with the pursuit, acquisition, entitlement, development, use, operation and maintenance of each Approved Project (including amounts payable by the Company under each Contribution Agreement). “Project Improvements” means, with respect to a Proposed Project or an Approved Project, the Horizontal Improvements, the Vertical Improvements and the Off-Site Improvements described in the Proposal Package for such Proposed Project or the Approved Package for such Approved Project. “Project Schedule” means, with respect to a Proposed Project or an Approved Project, the project schedule to acquire, develop and rent such Proposed Project (as described in the Proposal Package for such Proposed Project) or such Approved Project (as described in the Approved Package for such Approved Project), which dates shall be extended for Excusable Delays. “Proposal Package” means a package prepared by a Submitting Party that, at a minimum, includes the following items for a Proposed Project: (A) Pro Forma; (B) market comparisons and historical data in nearby projects (both build-for-rent and multi-family projects);
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099999\14127737v20 13 (C) documentation evidencing entitlements; (D) information on supply and demand dynamics in the market/submarket; (E) availability of financing to complete the Project Improvements at the Proposed Project, including a description of any financing districts; (F) projected rental rates; (G) support for development cost and vertical construction assumptions; (H) current inventory, unit mix and historical data of other residential for-rent projects that are anticipated to compete with the Proposed Project; (I) a description of the Project Improvements, including key project elements (e.g., necessary off-site work and major third-party involvement); and (J) broker’s opinion of value from Northmarq or other equally-qualified broker. “Proposed Project” means a project meeting each of the Investment Parameters (unless waived by the Board) that a Member recommends for the Company involving the acquisition of real property, the construction of Project Improvements and the rental of Apartment Units at such project. “Proposed Competitive Project” means a project that (A) is located within 2.5 miles of an Approved For-Rent Development Project, and (B) meets the Investment Parameters set forth in Paragraphs 2 and 3 of Exhibit A. “PSA Preferred Terms” means each of the terms set forth in Part II of Exhibit D. “PSA Required Terms” means each of the terms set forth in Part I of Exhibit D. “Pursuit Cost” means the xxxxxxx money deposits deposited by the Company, Manager, Builder or Investor and the due diligence, pre-closing and other Project Costs incurred by the Company or Investor prior to the acquisition of the Approved Project, including costs incurred by the Members in connection with the formation, termination or dissolution of the Company or a Subsidiary Entity (including each Member’s reasonable attorneys’ fees) and all “dead deal” costs. “Reserves” means the reserves maintained by the Company or a Subsidiary Entity, including the Unknown Claims Warranty Reserve. “Restricted Person” means a Person controlled by, funded by or employed by a natural person, the identity of whom could subject the Company, a Subsidiary Entity, a Member or Affiliates of any of them to liability under the USA PATRIOT Improvement and Reauthorization Act of 2005, as amended or other legislation governing relationships with transactional counter- parties. “Restrictive Covenant” means a restrictive covenant that conforms to the form attached as Exhibit L together with such modifications as may be required by applicable law or approved by the Members. “Special Distribution Amount” means, with respect to a Contributed Property, (A) the True Up Amount, less (B) the Company Payment. “Stabilized Project” means an Approved Project when [**]% of the Apartment Units within such Approved Project are occupied by tenants paying rent.
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099999\14127737v20 14 “Target Market” means markets within which TMHC then has an existing presence, including Arizona, Texas, Florida, Georgia, California, Nevada, North Carolina, Colorado and South Carolina. The Members may add or remove Target Markets subject to obtaining the Board’s approval. “Tax Appendix” means the tax appendix described in Section 14.1 and attached hereto as Exhibit B. “Third-Party Offered Terms” means an offer received by the Company or, if applicable, a Subsidiary Entity from a Third-Party Potential Purchaser to purchase an Approved Project. “Third-Party Potential Purchasers” means reputable Persons that are not Restricted Persons. “Third-Party PSA” means a Disposition PSA between the Company or a Subsidiary Entity, on the one hand, and a Third-Party Potential Purchaser, on the other hand. Each Third- Party PSA shall have a market-rate xxxxxxx money deposit reasonably acceptable to the Members. “Three Strikes Event” means Investor has disapproved or is deemed to have disapproved three Proposal Packages that satisfy those Investment Parameters set forth in Paragraphs 1, 2, 3 and 10 of Exhibit A out of five consecutive Proposal Packages that satisfy those Investment Parameters set forth in Paragraphs 1, 2, 3 and 10 of Exhibit A. “TM Guarantor” means Xxxxxx Xxxxxxxx Communities Inc., a Delaware corporation. “TMHC” means (A) Xxxxxx Xxxxxxxx Home Corporation, a Delaware corporation, (B) in the event of the merger of Xxxxxx Xxxxxxxx Home Corporation with or into any other Person, the Person resulting from such merger, (C) in the event any Person acquires all or substantially all of the assets of Xxxxxx Xxxxxxxx Home Corporation, such acquiring Person, or (D) in the event of a conversion of Xxxxxx Xxxxxxxx Home Corporation into another type of Person or its domestication to another jurisdiction, the new converted form or domesticated Person. “TMHC Subsidiary” means a Person wholly owned directly or indirectly by TMHC. “Total Tranche Commitment” means (A) in the case of Tranche I, the Total Tranche I Commitment, and (B) in the case of Tranche II, the Total Tranche II Commitment. “Total Tranche I Commitment” means $450,000,000, and with respect to a Member, such Member’s Percentage Interest times $450,000,000; provided, however, that if the amount needed to fund an Approved Project is greater than the then Uncommitted Tranche I Commitment, then the Total Tranche I Commitment shall be reduced by the Uncommitted Tranche I Commitment, in which case, the Total Tranche II Commitment shall be increased by an amount equal to the Uncommitted Tranche I Commitment. “Total Tranche II Commitment” means $400,000,000, and with respect to a Member, such Member’s Percentage Interest times $400,000,000 (or such higher amount approved by the Board); provided, however, that the Total Tranche II Commitment shall be increased by the
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099999\14127737v20 15 Uncommitted Tranche I Commitment, if any, at the expiration of the Tranche I Investment Period. In no event shall the sum of the Total Tranche I Commitment and the Total Tranche II Commitment exceed $850,000,000 except as may be approved by the Board. “Total Contribution Value” means, with respect to a Contributed Property, the sum of (A) the Approved Contribution Value, and (B) the Company Payment. “Total Project Commitment” means, with respect to an Approved Project, the total equity required from the Company as set forth in the Approved Budget for such Approved Project, and with respect to a Member, such Member’s Percentage Interest times the amount of total equity for such Approved Project. “Tranche I Capital Contributions” means Capital Contributions funded for Tranche I Assets. “Tranche I Investment Period” means the period commencing on the Effective Date and ending on the earliest of (A) the two-year anniversary of the date that the Company or a Subsidiary Entity acquires the first Tranche I Project, (B) the date on which the amount needed to fund the acquisition and development of the next Approved For-Rent Development Project to be acquired by the Company or a Subsidiary Entity is greater than the then Uncommitted Tranche I Commitment, (C) the date on which a Member has funded or committed to fund Capital Contributions totaling such Member’s Total Tranche I Commitment, or (D) the date on which Builder terminates the Investment Period if an Exclusivity Termination Event has occurred. “Tranche I Assets” means all Company Assets (including, the Approved Projects, Subsidiary Entities and BTR Parcels) acquired using proceeds from the Total Tranche I Commitment. “Tranche I Projects” means the Approved Pursuit Projects acquired using proceeds from the Total Tranche I Commitment. “Tranche II Capital Contributions” means Capital Contributions funded for Tranche II Assets. “Tranche II Investment Period” means the period commencing one calendar day the expiration of the Tranche I Investment Period and ending on the earliest of (A) the two-year anniversary of the date that the Company or a Subsidiary Entity acquires the first Tranche II Project, as the same be extended with the Board’s approval, (B) the date on which a Member has funded or committed to fund Capital Contributions totaling such Member’s Total Tranche II Commitment, or (C) the date on which Builder terminates the Investment Period if an Exclusivity Termination Event has occurred. Notwithstanding the foregoing, the Tranche II Investment Period shall not commence if the Tranche I Investment Period was terminated based on the occurrence of an Exclusivity Termination Event. “Tranche II Assets” means all Company Assets (including, the Approved Projects, Subsidiary Entities and BTR Parcels) acquired using proceeds from the Total Tranche II Commitment.
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099999\14127737v20 16 “Tranche II Projects” means the Approved Pursuit Projects acquired using proceeds from the Total Tranche II Commitment. “True Up Amount” means, with respect to a Contributed Property, an amount equal to the product of (A) the Percentage Interest of the Member not contributing the Contributed Property, times (B) the Total Contribution Value. “Unbudgeted Permitted Costs” means, collectively, Unbudgeted Permitted Organizational Costs and Unbudgeted Permitted Project Costs. “Unbudgeted Permitted Organizational Costs” means, with respect to the Company or a Subsidiary Entity, costs and expenses not allocable to an Approved Project that pertain to one or more of the following: (A) recurring non-discretionary costs and expenses, such as franchise taxes, insurance premiums and filing expenses; and (B) costs and expenses payable to comply with applicable laws or agreements to which the Company or a Subsidiary Entity is subject. “Unbudgeted Permitted Project Costs” means, with respect to an Approved Project, Project Costs not contemplated by the Approved Budget for such Approved Project that pertain to one or more of the following: (A) recurring non-discretionary expenses, such as real estate taxes and assessments, insurance premiums and utility costs; (B) Project Costs payable to comply with applicable laws or agreements to which the Approved Project is subject; (C) Project Costs payable to satisfy demands, requirements or obligations under Loans (including balancing deposits or re- margining payments) if failure to pay such Project Costs may result in loss of title or personal liability to a Member or its Affiliate; (D) Project Costs that are reasonably necessary to avoid imminent injury or loss to persons or property; (E) Project Costs needed to remove liens encumbering one or more Approved Project if failure to pay such amount may result in loss of title or personal liability to a Member or its Affiliate, such as, without limitation, mechanics’ liens; and (F) Project Costs needed to fund the Company’s or a Subsidiary Entity’s indemnification obligations. “Uncommitted Tranche I Commitment” means, as of the applicable measuring date, the amount by which (A) the Total Tranche I Commitment, exceeds (B) the Capital Contributions that the Members have funded or committed to fund to the Tranche I Approved Projects. “Värde” means Värde Partners, Inc., a Delaware corporation. “Vertical Improvements” means all improvements to be constructed at an Approved Project other than the Horizontal Improvements and the Off-Site Improvements, which shall include the Apartment Units and other improvements typically contemplated by the construction of horizontal multi-family “for rent” projects in the Target Market. The Vertical Improvements to be constructed on an Approved Project will be specified in the Approved Package. The Vertical Improvements for each Approved Project may vary. “Warranty Expenses” means Claims/Losses arising out of, relating to or in connection with Approved Projects that are under construction or have been completed. Without limitation on the foregoing, Warranty Expenses include Claims/Losses arising out of one or more of the following: (i) to investigate and cause the Company or a Subsidiary Entity to repair of defects,
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099999\14127737v20 35 county in which such real property is located. The selected actuary shall be a member of the American Academy of Actuaries, knowledgeable and experienced in the warranty and construction defect exposures of residential construction used solely for rental purposes. Utilizing known methods of analysis (including a review of (or receiving legal advice as to) the sale contract entered into for the sale of the applicable Projects and the provisions therein related to the limitation of seller’s liability for a breach of its representations, warranties or covenants and the related survival period of the buyer thereunder to make such claims), the actuary shall establish an actuarial sound estimates of ultimate liabilities for unknown Warranty Expenses and provide a recommendation regarding the amount of the Unknown Claims Warranty Reserve and the scope of such analysis to be specifically described by the Members. If the Members are unable to agree upon an actuary within 30 days after the Request for Analysis, then each Member shall have 30 days from such date to select an actuary to prepare an Actuarial Analysis. If a Member fails to timely select an actuary, the actuary selected by the other Member shall prepare the Actuarial Analysis. If two actuaries are selected, the two actuaries shall select a third actuary after completing their analyses, who shall select one of the two analyses as the Actuarial Analysis. Any inability to agree upon a third actuary shall be resolved by an Arbitrator who has been appointed by either the Members or, if the Members are unable to agree on an Arbitrator, the Delaware Court of Chancery. If the Actuarial Analysis recommends an Unknown Claims Warranty Reserve in an amount less than the amount then held in the Unknown Claims Warranty Reserve, such Unknown Claims Warranty Reserve shall be decreased to match the recommended amount, and the amounts in the Unknown Claims Warranty Reserve in excess of the recommended amount shall be treated as Available Cash and used or distributed by the Company to the Members as provided elsewhere in this Agreement (provided that the distribution of such Available Cash shall be a Major Decision determined by the Board at the Board’s discretion). For clarity, if the Actuarial Analysis finds that an Unknown Claims Warranty Reserve is no longer necessary, all amounts in the Unknown Claims Warranty Reserve shall be treated as Available Cash and used or distributed by the Company to the Members as provided elsewhere in this Agreement (provided that the distribution of such Available Cash shall be a Major Decision determined by the Board at the Board’s discretion). Notwithstanding what the actuary recommends, (i) in no event shall the Unknown Claims Warranty Reserve exceed the Warranty Threshold, and (ii) Builder may from time to time direct that the Unknown Claims Warranty Reserve be reduced (or eliminated), in which case, the excess proceeds in (or the entirety of) the Warranty Reserve shall be treated as Available Cash and used or distributed by the Company to the Members as provided elsewhere in this Agreement (provided that the distribution of such Available Cash shall be a Major Decision determined by the Board at the Board’s discretion). E. The fees and costs related to the Actuarial Analysis shall be paid by the Company.
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099999\14127737v20 42 Subsidiary Entity may terminate each Construction Management Agreement between the Company or a Subsidiary Entity, on the one hand, and a Construction Manager that is an Affiliate of Manager, on the other hand (in which case, such Construction Manager shall not be entitled to the portion of the Pre-Development Fee or the CM Fee that accrues after the termination date), (iii) Investor may (without obtaining Builder’s approval, except that Builder’s approval shall continue to be required for all Fundamental Decisions other than the appointment of a manager under Paragraph 11 of Exhibit E), either (1) cause the Company and each Subsidiary Entity to market and sell the portfolio of Approved Projects to Third-Party Potential Purchasers, or (2) appoint a third-party Person as replacement Manager and compensate such replacement Manager in a manner consistent with market terms between arms-length parties as determined by Investor in its sole, good faith discretion, (iv) Builder shall not be thereafter entitled to further Incentive Distributions (in which case, all amounts that would have otherwise been Incentive Distributions shall be distributed to the Members pro rata in accordance with the Member’s Percentage Interests), (v) Builder shall have no further approval or voting rights other than Fundamental Decisions (which approval shall not be unreasonably withheld), and (vi) if a Construction Management Agreement between the Company or a Subsidiary Entity, on the one hand, and a Construction Manager that is an Affiliate of Manager, on the other hand, has not been terminated by the Company or a Subsidiary Entity, the applicable Construction Manager shall be permitted to terminate such Construction Management Agreement (in which case, such Construction Manager shall not be entitled to the portion of the Pre-Development Fee or the CM Fee that accrues after the termination date) Section 9.3 No Partition. Each Member hereby irrevocably waives any and all rights that it may have to maintain any action for partition of any of the assets of the Company. Section 9.4 Cumulative Remedies. Subject to the limitations expressly herein set forth, no remedy conferred upon the Company or any Member in this Agreement is intended to be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law, in equity or by statute. Notwithstanding the foregoing, no Member (acting in the capacity as a Manager, a Member or a Person designating Board Representatives) shall be liable for lost profits, lost opportunities, consequential damages, incidental damages, exemplary damages, punitive damages, indirect damages, special damages or speculative damages. Section 9.5 Attorneys’ Fees. If the Company or a Member obtains a judgment against any other Member in connection with a dispute arising under or in connection with this Agreement, such party shall be entitled to recover its court costs, and reasonable attorneys’ fees (including the reasonable value of in-house attorney services) and disbursements incurred in connection therewith and in any appeal or enforcement proceeding thereafter, including any bankruptcy proceeding (and any action for relief from the automatic stay of any bankruptcy proceeding), in addition to all other recoverable costs. Section 9.6 No Waiver. No waiver by a Member or the Company of any breach of this Agreement or any Affiliate Agreement shall be deemed to be a waiver of any other breach of any kind or nature, and no acceptance of payment or performance by a Member or the Company after any such breach shall be deemed to be a waiver of any breach of this Agreement or any Affiliate
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099999\14127737v20 58 to comply with the ESG Policies shall not be a breach on the part of Manager or subject Manager to damages, unless such non-compliance violates another unrelated provision of this Agreement. 15.17.2 Information. Manager shall provide Investor, upon Investor’s written request, such information available to Manager that is reasonably requested by Investor so that Investor may monitor Investor’s compliance with Investor’s own environmental, social and governance current and future reporting requirements (e.g., requirements of being a member of Principles for Responsible Investment) with respect to the Proposed Projects and the Proposed Competitive Projects, including a copy of each Xxxxxx Xxxxxxxx Environmental, Social and Governance Report issued by TMHC or its Affiliate. In the event Investor requires additional environmental, social or governance investigations or audits of the Proposed Projects or the Proposed Competitive Projects, Investor will do so at its sole cost and expense and Manager will reasonably cooperate with Investor’s efforts. [SIGNATURES CONTINUED ON NEXT PAGE]
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099999\14127737v20 S-2 INVESTOR: VP MOONDANCE HOLDINGS LLC, a Delaware limited liability company By: Värde Partners, Inc. a Delaware corporation, its Manager By____/s/ Xxxxxxx Xxxxxx _________ Name: __Brendan Bosman__________ Title: __Senior Managing Director___ Address: c/o VÄRDE Partners, Inc. 000 X Xxxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxxx, Xxxxxxxxx 00000 Attention: Xxxxxxx Xxxxxx Email: [__] Telephone: [__] With Copy To: Xxxxxxxx & Xxxxx LLP 000 Xxxxx XxXxxxx Xxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxx X. Xxxxx Email: [__] Telephone: [__] Xxxxxxxx & Xxxxx LLP 0000 Xxx Xxxxxx Xxxxxx, Xxxxx 00000 Attention: Xxxxxx X. Van Noord Email:[__] Telephone: [__]
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099999\14127737v20 1 Limited Liability Company Agreement of TMVP BTR VENTURE LLC, LLC EXHIBITS A – Investment Parameters B – Tax Appendix C – Form of Assignment Agreement D – Required PSA Terms E – Form of Backstop Agreement F – Major Decisions G -1 – Form of Monthly Reports G -2 – Form of Quarterly Reports H – Form of Construction Management Agreement I – List of Excluded Projects J – Form of Membership Assignment K – Minimum Insurance Requirements L – Form of Contribution Agreement