TENANCY IN COMMON AGREEMENT

THIS AGREEMENT made and entered into this _______ day of _____, 2006, by and
among ____________________________ having an address at
____________________________, ___________________________ having an address at
____________________________, ________________________ having an address at
____________________________, and ______________________ having an address at
____________________________(each party called a “Co-Owner” and all the Co-Owners
referred to collectively as the “Co-Owners”).

RECITALS

WHEREAS, by Special Warranty Deed or other title transfer mechanism dated the
_____ day of September, 2002, the Co-Owners acquired title, as tenants in common, to certain
real estate (the “Property”) located in Miami-Dade County, Florida, as is more particularly
described on Exhibit A attached hereto; and

WHEREAS, the Co-Owners are each responsible for payment of the principal and
interest due under a money note and mortgage encumbering the Property, as well as expenses
and costs incurred with respect to said Property, on a non-recourse basis, as are more particularly
described hereafter; and

WHEREAS, the Co-Owners wish to provide for the orderly management and disposition
of the Property;

NOW THEREFORE, in consideration of the mutual covenants and promises hereinafter

contained and for other good and valuable consideration, the adequacy and receipt of which is
hereby acknowledged by all parties, it is agreed as follows:

1. Preamble as Part of this Agreement. The preamble and all recitals therein are
incorporated into and made a part of this Agreement.

2. Duties and Obligations of the Co-Owners. The Co-Owners agree that they are
each responsible for their pro-rata share (being one-fourth (¼) each) of the following expenses of
the Property:

(a) Payment of the principal and interest under the mortgage encumbering the
Property.

(b) Payment of real estate and personal property taxes assessed against the
Property.

(c) Payment of municipal special assessments and liens.

(d) Payment of all utilities provided to the Property.

(e) Payment of all insurance premiums on policies insuring the Property and
all other costs, expenses, charges, commissions, taxes and liens which may arise or be
 incurred in connection with the ownership and management of the Property reasonable
attorneys’ fees and costs.

The Co-Owners further agree to make timely contributions of their pro-rata share of said
expenses, costs, taxes, payments and other expenses which may be incurred with respect to the
Property upon request of the Property Manager as hereinafter designated.

3. Possession. The parties hereto agree that none of the Co-Owners shall have any
right to possession of the Property, it being the express intention of all the parties hereto that the
Property be rented to unrelated parties.

4. Designation of Property Manager. It is recognized and understood by the Co-

Owners that it would be beneficial for all of their interests to have one party designated as
Property Manager of the Property to undertake and perform the following responsibilities:

(a) To make timely payment of taxes, insurance premiums, mortgage

payments, and other expenses after receipt of said monies from the Co-Owners.

(b) To collect the income and rentals from the Property, if any, and to apply
same to the payment of the aforementioned expenses which may be incurred with respect
to the Property.

(c) To do any and all things necessary in connection with the Property to
insure that said Property is maintained in its current condition and that no waste or
damage is incurred with respect to the Property.

(d) The Co-Owners jointly and severally hereby appoint ______________ as

the Property Manager, with full authority to engage in and perform the foregoing duties
and responsibilities on their behalf, pursuant to a separate management agreement, for a
period of no more than one (1) year, subject to annual renewals. It is hereby agreed,
however, that said Property Manager shall have no responsibility or liability for paying
nay or all of the aforementioned costs except as same are collected from the Co-Owners
and they covenant and agree to reimburse said Property Manager for any and all costs
and expenses that might be incurred in performing the aforementioned duties.

(e) It is the Co-Owners’ sole intent and purpose of designating a Property

Manager under this agreement to facilitate the orderly management and of the Property
and not to impose upon it any fiduciary duties with respect to same, other than to act as
their agent in the performance of said duties.

5. Disposition of Property and Leasing.

(a) It is agreed by the Co-Owners that this Agreement contemplates the

disposition of the Property at the best purchase price that can be obtained when agreed to
by the Co-Owners.

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 (b) Fair Market Value. The Co-Owners agree that leases of the Property will
be executed for the rental of units at the Property at the fair market rental value.

(c) Deadlock in Voting. In the event the Co-Owners are ever deadlocked in
their voting and are unable to arrive at a listing price or other terms for the sale or rental
of the Property, then an independent real estate appraiser selected by all of the Co-
Owners shall determine the fair market rental or sale value of the Property and other
terms and said determination shall be conclusive. The appraiser’s fee shall be paid as an
expense of the Property.

6. Resignation of the Property Manager. In the event of the resignation or termination

of the Property Manager, it is agreed that a substitute Property Manager will be selected by a
vote of the Co-Owners. Any substitute Property Manager shall have all of the rights,
responsibilities and duties granted to the initial Property Manager hereunder, unless the Co-
Owners unanimously agree in writing to the contrary.

7. Default. Each Co-Owner hereunder shall promptly contribute when and as requested
by the Property Manager its/his/her equal share of any payments required to be made pursuant to
the aforementioned mortgage, including principal, interest and taxes as well as all other costs and
expenses incurred and related to the ownership and management of the Property. In the event
that any Co-Owner fails to pay its/his/her share of such costs, the other Co-Owners are
authorized to make such payment or payments. Any amounts so advanced by one or more Co-
Owners on behalf of a defaulting Co-Owner or Co-Owners shall bear interest at the rate of
____________ (_______%) percent per annum during the period of the default from the date of
the advance. The advances made by a Co-Owner or Co-Owners together with interest thereon
shall be deducted from the defaulting Co-Owner or Co-Owners’ share of the proceeds of
operations and/or sale and paid to the advancing Co-Owner or Co-Owners.

8. Management and Voting. Except to the extent specifically delegated to the Property
Manager herein, or as provided below, all matters relating to the management, operation and sale
of the Property shall be decided by the decision of those Co-Owners owning a majority
percentage interest in the Property, except that, if one or more of the Co-Owners has defaulted
upon payment of its/his/her pro-rata share of the costs and expenses, then said defaulting Co-
Owner or Co-Owners shall not, until said default is remedied, be entitled to vote upon any
decisions relating to the management, operation, rental or sale of the Property. The following
matters shall require the unanimous consent of the Co-Owners:

(a) Any leases to be entered into by the Property Manager, except that the Co-
Owners may approve the formatted lease and customary terms but not each specific
lease;

(b) The appointment of the Property Manager;

(c) The sale of the Property; and

(d) The modification of the debt on the Property.

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 9. Nature of Relationship. The Co-Owners agree that there is no intent to establish a
partnership among the Co-Owners nor shall this agreement operate to so establish a partnership.
The purpose of this agreement is to provide for the orderly management and operation of the
Property, the collection of rentals with respect to same, and the orderly disposition of the
Property. The Co-Owners agree to execute any and all documents necessary to evidence an
election to be excluded from treatment as a partnership under the Internal Revenue Code. The
Co-Owners further agree that they will, on their separate income tax returns, report their
individual share of any and all income and/or expenses attributable to their ownership of the
Property in a manner consistent with the provisions of this paragraph.

10. Division of Profits and Losses. Profits and losses with respect to the ownership and
management of the Property shall be shared and borne in the same proportion as the percentage
interests of the Property are owned by each Co-Owner.

11. Insurance Policies. Any proceeds from any policies of insurance in any way insuring
any interest related to the Property, shall be shared in the same proportion as the percentage
interests of the Property are owned by each Co-Owner.

12. Distribution on Disposition of the Property. Upon a disposition of the Property, the
proceeds from said sale shall be paid and distributed as follows:

(a) First, to the payment of any unpaid expenses incurred in the management
of the Property up to the date of the sale, closing costs, reasonable attorneys’ fees, and to
any note or notes and mortgage or mortgages encumbering the Property, except to the
extent that said note or notes or mortgage or mortgages are assumed or taken subject to
by the purchaser.

(b) Secondly, to the reimbursement of any Co-Owner or Co-Owners who

have paid, on behalf of any other Co-Owner or Co-Owners, any amounts which were
defaulted upon plus interest thereon as provided in this Agreement above, said
reimbursement to be taken from the defaulting Co-Owner or Co-Owners’ share of the net
proceeds after the net proceeds have been divided in accordance with the respective
percentage interests in the Property owned by each Co-Owner.

(c) Third, to each Co-Owner in the percentage interest in the Property then
owned by said Co-Owner.

To the extent that the proceeds from said sale are represented by a purchase money note
and mortgage, said note and mortgage shall be payable to the Co-Owners on a basis equal to that
provided in subparagraph (c) above. The Co-Owners shall execute and deliver to the purchaser,
documents which shall evidence their consent to the purchaser making payments under said note
and mortgage by separate checks payable to the individual Co-Owners hereunder as their
interests appear. In the event the purchaser is unwilling to issue separate checks to the Co-
Owners in payment of said purchase money note and mortgage, then the Co-Owners agree to
establish an account in a Miami-Dade County Florida bank which will allow for the deposit of
the joint checks issued by said purchaser and the issuance of separate checks from said account
to the Co-Owners as their interests appear.

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 13. Right of First Refusals; Partition; Assignment and Transfer . Nothing in this
Agreement shall prevent the Co-Owner from partitioning, assigning or transferring its/his/her co-
ownership interests in the Property. However, in connection therewith, any Co-Owner desiring
to sell, partition or transfer his co-ownership interests shall first be obligated to offer the other
Co-Owners a right of first refusal to acquire such co-ownership interest on the terms and
conditions that have been proposed by third-party purchaser in connection with an assignment or
transfer, or, in the case of partition, the fair market value of the co-ownership interests, as
determined in accordance with the procedures set forth above. In connection with the above, a
Co-Owner desiring to partition, sell and/or transfer its interests shall be obligated to notify any
other Co-Owners and provide them sixty (60) days notice together with an opportunity to
exercise their right of first refusal to either purchase the Co-Owners interests in the event of a
partition for the determined fair market value or to purchase the interests based upon the bona
fide third-party offer amount in the event of an assignment or transfer. To the extent that more
than one Co-Owner desires to acquire said interests, then the purchasing Co-Owner shall have a
right to participate on a proportionate basis in connection with such purchase.

For purposes of determining fair market value in the event of a partition, the provisions of
section 5(c) above shall apply in connection with such determination.

It is understood and agreed that the provisions set forth in this section shall be limited by
any conditions imposed by the holder of the first mortgage loan on the Property.

14. Notice. Any notice required to be given pursuant to this Agreement shall be in
writing by pre-paid overnight delivery service (such as Federal Express) or by pre-paid first class
certified mail, sent to the parties at the addresses set forth at the beginning of this Agreement.
Any change in address of any party shall be given to the other party or parties in writing in the
manner provided for hereinabove.

15. Interpretation. This Agreement and the rights of the parties hereunder shall be
interpreted in accordance with the laws of the State of Florida.

16. Benefits. This Agreement shall be binding upon and shall inure to the benefit of each
of the Co-Owners and their respective heirs, administrators, legal representatives, successors and
assigns.

17. Severability. In the event that any provision of this Agreement shall be determined to
be invalid or unenforceable under the laws of the State of Florida, the remaining portions of this
Agreement which can be separated from the invalid unenforceable provisions, shall continue in
full force and effect.

18. Modification. This Agreement embodies the full understanding of the Co-Owners.
This Agreement may not be changed orally. Any modification hereto must be in writing and
signed by all the parties hereto. However, this Agreement shall be modified to conform to any
requirements imposed by the first mortgage lender on the Property.

19. Miscellaneous. In the event of any litigation between the parties arising out of this
agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and court costs at
trial and appellate levels. In construing this agreement, the singular shall be held to include the

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plural, the plural shall include the singular, use of gender shall include any other and all genders,
and captions and paragraph headings shall be disregarded. All of the Exhibits attached to the
Agreement are by reference hereto incorporated in and made a part hereof. This Agreement may
be executed in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument. The provisions of this
Agreement and all of the terms, covenants, warranties and representations contained herein shall
survive the closing of the sale and transfer of the Property. It is the intent of the parties that the
execution of this Agreement may be communicated by use of a facsimile machine (fax) and that
the signatures, initials and handwritten modifications to any of the foregoing shall be as legally
valid and binding upon the parties as if the original signatures, initials and handwritten
modifications were present on the documents in the hands of each party. Neither party shall
assert the Statute of Frauds nor unenforceability or invalidity of this Agreement because of the
use of fax copies and not originals in nay litigation and both parties specifically waive and
relinquish any such defenses.

20. Special Lender Provisions.

(a) The Co-Owners business and purpose shall consist solely of the
acquisition, ownership, operation and management of the Property and such activities as
are necessary, incidental or appropriate in connection therewith.

(b) Powers and Duties. Notwithstanding any provisions of this Agreement or

any other document or instrument governing the affairs of the Co-Owners or any
provision of law that otherwise so empowers the Co-Owners, so long as the loan in the
initial principal amount of Fourteen Million Three Hundred Thousand ($14,300,000.00)
Dollars (the “Loan”) and any other obligations secured by that Mortgage dated
________________________, in favor of _____________________ as lender (the
“Mortgage”) remain outstanding and not discharged in full, without the prior written
consent of the holder of the Mortgage (the “Lender”), the Co-Owners shall have no
authority to:

i. conduct its affairs in any manner contravening or inconsistent with

the provisions of section _______ of this Agreement;

ii. dissolve or liquidate the Co-Owner or consent to any such

dissolution or liquidation;

iii. sell or lease, or otherwise dispose of all or substantially all of the

assets of the Co-Owner; or

iv. amend, modify or alter sections __, ___, ___, __, of this
Agreement.

(b) Notwithstanding any other provisions of these Articles, any contrary or

inconsistent provision in the Tenancy in Common or any other document or instrument
governing the affairs of the Co-Owners or any provision of law that otherwise so
empowers the Co-Owners, so long as the Loan or any other obligations secured by the
Mortgage remains outstanding and not discharged in full, the Managing Member and the

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Co-Owners shall have no authority, without the approval of the Lender, to file or consent
to the filing of any voluntary or involuntary bankruptcy or insolvency petition with
respect to the Co-Owners or otherwise initiate or consent to proceedings to have the Co-
Owners adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against the Co-Owners, or file a petition seeking or consenting to
reorganization or relief of the Co-Owners as debtor under any applicable federal or state
law relating to bankruptcy, insolvency, or other relief for debtors with respect to the Co-
Owners; or seek or consent to the appointment of any trustee, receiver, conservator,
assignee, sequestrator, custodian, liquidator (or other similar official) of the Co-Owners
or of all or any substantial part of the properties and assets of the Co-Owners, or make
any general assignment for the benefit of creditors of the Co-Owners, or admit in writing
the inability of the Co-Owners to pay its debts generally as they become due or declare or
effect a moratorium on the Co-Owners debt or take any Co-Owners or corporate action in
furtherance of any such action.

(c) Title to Co-Owner Property. All property owned by the Co-Owners shall
be owned by the Co-Owners as entities and insofar as permitted by applicable law, no
principal of a Co-Owner entity (a “Principal”) shall have any ownership interest in any
Co-Owner property in its individual name or right, and each Principal’s interest in the
respective Co-Owner shall be personal property for all purposes. The foregoing
provisions shall govern over any contrary or inconsistent provision in this Agreement or
any other document or instrument governing the affairs of the Company.

(d) The Co-Owners have heretofore conducted and shall at all times hereafter
conduct their business and operations in strict accordance and compliance with the
following provisions:

i. the Co-Owners have not and shall not own any asset or property
other than (A) the Property, and (B) incidental personal property necessary for the
ownership or operation of the Property;

ii. the Co-Owners have not and shall not engage in any business or
activity other than the ownership, management and operation of the Property and
the Co-Owners have conducted and operated and will conduct and operate the
business as presently conducted and operated;

iii. the Co-Owners have not and shall not enter into or be a party to
any transaction, contract or agreement with any guarantor of the debt secured by
the Mortgage or any part thereof (a “Guarantor”) or with any Affiliate, except
upon terms and conditions that are intrinsically fair and substantially similar to
those that would be available on an arms-length basis with unrelated third parties
(the term “Affiliate” shall mean any person or entity (A) which owns beneficially,
directly or indirectly, any outstanding membership interest in the Co-Owners, or
(B) which controls or is under common control with the Principals, the Co-
Owners, or any Guarantor);

iv. the Co-Owners have not and shall not incur any indebtedness,
secured or unsecured, direct or indirect, absolute or contingent (including

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guaranteeing any obligation), other than (i) the debt secured by the Mortgage and
(ii) trade and operational debt incurred in the ordinary course of business with
trade creditors in connection with owning, operating and maintaining the
Property, in such amounts as are normal and reasonable under the circumstances,
provided such debt is not evidenced by a promissory note or other security
instrument and is not at any time in an aggregate amount in excess of the lesser of
two percent of the original Loan amount or Two Hundred Thousand
($200,000.00) Dollars, and further provided that all such trade debts are paid
within 30 days after the same are incurred. No indebtedness other than the debt
secured by the Mortgage may be secured (senior, subordinated or pari passu) by
the Property;

v. the Co-Owners have not and shall not make any loans or advances
to any Guarantor, Affiliate or other person or entity;

vi. The Co-Owners have remained and shall remain solvent and shall
pay its debts from its assets as the same time they become due;

vii. the Co-Owners have done and shall do all things necessary to
preserve its existence, and the Co-Owners have not and shall not, nor shall the
Co-Owners permit a Guarantor to amend, modify or otherwise change the
partnership certificate, partnership agreement, articles of incorporation and
bylaws, operating agreement, trust or other organizational documents of the Co-
Owners or a Guarantor in a manner which would adversely affect the Co-Owners
existence as a single-purpose entity, without the prior written consent of Lender;

viii. the Co-Owners have maintained and shall maintain its financial
statements, accounting records, books and records, bank accounts and other entity
documents separate from those of its Affiliates, any constituent party of the Co-
Owners or any other person or entity, and the Co-Owners have filed and will file
its own tax returns. The Co-Owners have maintained and shall maintain their
books, records, resolutions and agreements as official records;

ix. the Co-Owners have been and shall be, and at all times has held
and will hold themselves out to the public as, a legal entity separate and distinct
from any other entity (including any Affiliate, any constituent party of a Co-
Owner or any Guarantor), shall correct any known misunderstanding regarding its
identity or status as a separate entity, has conducted and shall conduct business in
its own name, has held and shall hold its assets in its own name, has maintained
and shall maintain and utilize a separate telephone number and separate
stationery, invoices and checks, has allocated and shall allocate fairly and
reasonably the costs associated with common employees and any overhead for
shared office space and has not and shall not identify itself as a division or part of
any Affiliate or other person or entity, or any Affiliate or other person or entity as
a division or part of the Co-Owners;

x. The Co-Owners have preserved and kept and shall preserve and
keep in full force and effect their existence, good standing and qualifications to do

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business in the State of Florida and the Co-Owners have observed and will
observe all limited liability company formalities and record keeping as applicable;

xi. the Co-Owners have maintained and shall maintain adequate

capital and a sufficient number of employees for the normal obligations
reasonably foreseeable in a business of its size and character and in light of its
contemplated business operations. The Co-Owners have paid and will pay the
salaries of its own employees;

xii. the Co-Owners have not and shall not seek or consent to the
dissolution or winding up, in whole or in part, of the Co-Owners, nor shall the Co-
Owners merge with or be consolidated into any other entity or acquire by
purchase or otherwise all or substantially all of the business assets of, or any stock
or beneficial ownership of, any entity;

xiii. the Co-Owners have not and shall not commingle the funds or any
other assets of the Co-Owners with those of any Affiliate, any Guarantor, any
constituent party of the Co-Owners or any other person or entity, and the Co-
Owners have paid and shall pay its own liabilities out of their own funds and
assets;

xiv. the Co-Owners have maintained and shall maintain its assets in
such a manner that it will not be costly or difficult to segregate, ascertain or
identify its individual assets from those of any constituent party of the Co-
Owners, Affiliate, Guarantor or any other person or entity;

xv. the Co-Owners have not and shall not assume, guarantee, become
obligated for or hold themselves out to be responsible for, or hold out their credit
as being available to satisfy, or pledge their assets as security for, the debts or
obligations of any other person or entity (provided, that the foregoing shall not
prevent the Co-Owners from being and holding itself responsible for expenses
incurred or obligations undertaken by the property manager of the Property in
respect of their duties regarding the Property);

xvi. the Co-Owners shall not own any subsidiary, or make any
investment in any person or entity;

xvii. the Co-Owners shall not pledge their assets for the benefit of any
other person or entity;

xviii. the Co-Owners shall not acquire obligations or securities of any

Guarantor or Affiliate;

xix. The Principals of the Co-Owners will cause the Co-Owners to

comply, with each of the representations, warranties, and covenants contained in
this section as if such representation, warranty or covenant was made directly by
such Principals;

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 xx. the Co-Owners shall conduct their business so that the assumptions
made with respect to the Co-Owners in that certain opinion letter dated of even
date herewith (the “Nonconsolidation Opinion”) delivered by
____________________________________ in connection with the Loan shall be
true and correct in all respects.

The foregoing provisions of this section shall govern over any contrary or inconsistent
provision in the Tenancy in Common Agreement of the Co-Owners or any other document or
instrument governing the affairs of the Co-Owners.

(d) Incompetency of a Member; Termination Event. The following provisions

shall govern over any contrary or inconsistent provision in this Agreement or any other
document or instrument:

i. The bankruptcy, death, dissolution, liquidation, termination or

adjudication of incompetency of a member shall not cause the termination or
dissolution of each Co-Owner and the business of a Co-Owner shall continue.
Upon any such occurrence, the trustee, receiver, executor, administrator,
committee, guardian or conservator of such member shall have all the rights of
such member for the purpose of settling or managing its estate or property, subject
to satisfying conditions precedent to the admission of such assignee as a substitute
member. The transfer by such trustee, receiver, executor, administrator,
committee, guardian or conservator of any membership interest in a Co-Owner
shall be subject to all of the restrictions hereunder to which such transfer would
have been subject if such transfer had been made by such bankrupt, deceased,
dissolved, liquidated, terminated or incompetent member.

ii. If, notwithstanding the provisions of the foregoing subsection (a), a

termination event occurs with respect to a Co-Owner, the vote of a majority-in-
interest of the remaining members of a Co-Owner shall be sufficient to continue
the life of such Co-Owner, and if the vote of a majority-in-interest of the
remaining members is not obtained to continue the life of a Co-Owner upon a
termination event, the Co-Owner shall nevertheless not dissolve or liquidate its
assets without the consent of the Lender.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.

Signed, sealed and delivered

in the presence of:

THE CO-OWNERS:

______________________________ ____________________________, a
____________________________

______________________________ By:_________________________________
Authorized Signatory

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______________________________ ____________________________, a
____________________________

______________________________ By:_________________________________
Authorized Signatory

______________________________ ____________________________, a
____________________________

______________________________ By:_________________________________
Authorized Signatory

______________________________ ____________________________, a
____________________________

______________________________ By:_________________________________
Authorized Signatory

EXHIBIT A

Legal Description of the Property

/conversion/tmp/scratch/509795060.docx
2/13/2021 12:54:30 a2/p2

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