exv10w13






Exhibit 10.13




AGREEMENT TO CONTRIBUTE




AMONG




NORTHLAND PORTFOLIO L.P., a Delaware limited partnership,




NORTHLAND FUND L.P., a Delaware limited partnership




NORTHLAND FUND II, L.P., a Delaware limited partnership




NORTHLAND FUND III, L.P., a Delaware limited partnership




NORTHLAND INVESTMENT CORPORATION, a Massachusetts corporation




NORTHLAND AUSTIN INVESTORS LLC, a Delaware limited liability company




AUSTIN INVESTORS L.P., a Delaware limited partnership




DRAKE INVESTORS L.P., a Delaware limited partnership




TATSTONE INVESTORS L.P., a Delaware limited partnership




TARRAGON CORPORATION, a Nevada corporation




AND




ANSONIA LLC, a Delaware limited liability company




 









 





AGREEMENT TO CONTRIBUTE




     This AGREEMENT TO CONTRIBUTE (this “Agreement”) is entered into as of this 31st day of March,
2008, by and among NORTHLAND PORTFOLIO L.P., a Delaware limited partnership (“Northland
Portfolio”), NORTHLAND FUND L.P., a Delaware limited partnership (“Northland Fund I”), NORTHLAND
FUND II, L.P., a Delaware limited partnership (“Northland Fund II”), NORTHLAND FUND III, L.P., a
Delaware limited partnership (“Northland Fund III”), NORTHLAND INVESTMENT CORPORATION, a
Massachusetts corporation (“NIC”), NORTHLAND AUSTIN INVESTORS LLC, a Delaware limited liability
company (“Northland Austin”), AUSTIN INVESTORS L.P., a Delaware limited partnership (“Austin
Investors”), DRAKE INVESTORS L.P., a Delaware limited partnership (“Drake”), TATSTONE INVESTORS
L.P., a Delaware limited partnership company (“Tatstone” and together with Northland Portfolio,
Northland Fund I, Northland Fund II, Northland Fund III, NIC, Northland Austin, Austin Investors
and Drake, collectively, “Northland”), TARRAGON CORPORATION, a Nevada corporation (“Tarragon
Corporation”), ANSONIA LLC, a Delaware limited liability company (“Ansonia”, together with Tarragon
Corporation, collectively, “Tarragon”).



RECITALS




     WHEREAS, each of Northland Portfolio, Northland Fund I, Northland Fund II, Northland Fund III,
NIC, Northland Austin, Austin Investors, Drake, Tatstone, Tarragon Corporation and Ansonia (each a
“Contributor”) wishes to cause a new Delaware limited liability company to be known as Northland
Properties LLC (the “New Company”) to be formed on or before the First Closing (as defined below),
and having (pursuant to the First Closing and/or pursuant to one or more of the subsequent Closings
contemplated hereby) each of Northland Portfolio, Northland Fund I, Northland Fund II, Northland
Fund III, NIC, Northland Austin, Austin Investors, Drake, Tatstone, Tarragon Corporation, or to the
extent Tarragon SPE is formed to hold the Common Units (hereinafter defined) issuable to Tarragon
Corporation by the New Company, Tarragon SPE, and Ansonia as members (each, a “Member”, and
collectively, the “Members”) and have fully negotiated the form of limited liability company
operating agreement of the New Company attached hereto as Exhibit A (the “Limited Liability
Company Agreement”) and the documents related thereto, which include a tax matters agreement (the
“Tax Matters Agreement”) in the form of Exhibit D and an interim management agreement (the
“Interim Management Agreement”) in the form of Exhibit B, as more fully described below;



     WHEREAS, Northland Portfolio is the owner, directly or indirectly, of certain membership
and/or limited partnership interests and/or 100% of the stock in those entities identified on
Schedule A-1, representing the economic, voting and other rights in such entities
(collectively, the “Northland Portfolio Companies”), as more particularly set forth in those
certain Operating Agreements and Limited Partnership Agreements of the Northland Portfolio
Companies identified on Schedule A-1 (as the same may be amended or modified, collectively,
the “Northland Portfolio Operating Agreements”);



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     WHEREAS, Northland Fund I is the owner, directly or indirectly, of certain membership and/or
limited partnership interests in those entities identified on Schedule A-2, representing
the economic, voting and other rights in such entities (collectively, the “Northland Fund I
Companies”), as more particularly set forth in those certain Operating Agreements and Limited
Partnership Agreements of the Northland Fund I Companies identified on Schedule A-2 (as the
same may be amended or modified, collectively, the “Northland Fund I Operating Agreements”);



     WHEREAS, Northland Fund II is the owner, directly or indirectly, of certain membership and/or
limited partnership interests and/or 100% of the stock in those entities identified on Schedule
A-3, representing the economic, voting and other rights in such entities (collectively, the
“Northland Fund II Companies”), as more particularly set forth in those certain Operating
Agreements and Limited Partnership Agreements of the Northland Fund II Companies identified on
Schedule A-3 (as the same may be amended or modified, collectively, the “Northland Fund II
Operating Agreements”);



     WHEREAS, Northland Fund III is the owner of certain membership and/or limited partnership
interests in those entities identified on Schedule A-4, representing the economic, voting
and other rights in such entities (collectively, the “Northland Fund III Companies”), as more
particularly set forth in those certain Operating Agreements and Limited Partnership Agreements of
the Northland Fund III Companies identified on Schedule A-4 (as the same may be amended or
modified, collectively, the “Northland Fund III Operating Agreements”);



     WHEREAS, NIC is the owner of certain membership interests in those entities identified on
Schedule A-5, representing the economic, voting and other rights in such entities
(collectively, the “NIC Companies” and together with the Northland Portfolio Companies, the
Northland Fund I Companies, the Northland Fund II Companies, and the Northland Fund III Companies,
collectively, the “Northland Companies”, and, each a “Northland Company”), as more particularly set
forth in those certain Operating Agreements of the NIC Companies identified on Schedule A-5
(as the same may be amended or modified, collectively, the “NIC Operating Agreements” and together
with the Northland Portfolio Operating Agreements, the Northland Fund I Operating Agreements, the
Northland Fund II Operating Agreements, and the Northland Fund III Operating Agreements,
collectively, the “Northland Operating Agreements”);



     WHEREAS, Northland Austin is the owner of certain limited partnership interests in Northland
Austin Portfolio L.P., which is one of the Northland Fund I Companies;



     WHEREAS, Austin Investors is the owner of certain limited partnership interests in Northland
Austin Portfolio L.P., which is one of the Northland Fund I Companies;



     WHEREAS, Drake is the owner of certain membership interests in Northland Memphis Portfolio
LLC, which is one of the Northland Fund I Companies;



     WHEREAS, Tatstone is the owner of certain membership interests in Northland Tatnuck LLC, which
is one of the Northland Fund II Companies;



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     WHEREAS, the Contribution Percentage of each of the Northland Contributors in the Northland
Companies and the Northland Properties is set forth in Schedule F-1;



     WHEREAS, Tarragon Corporation, directly or indirectly, is the owner of the membership and/or
limited partnership interests in those entities identified on Schedule A-6, representing
certain economic, voting and other rights in such entities (collectively, the “Tarragon
Companies”), as more particularly set forth in those certain Operating Agreements and Limited
Partnership Agreements of the Tarragon Companies as identified on Schedule A-6 (as the same
may be amended or modified, collectively, the “Tarragon Operating Agreements”);



     WHEREAS, Ansonia is the owner of certain limited partnership interests in Ansonia Apartments,
L.P., which is one of the Tarragon Companies;



     WHEREAS, the Contribution Percentage of each of the Tarragon Contributors in the Tarragon
Companies and the Tarragon Properties is set forth in Schedule F-2;



     WHEREAS, prior to each Closing affecting a transfer of interests in any of the Tarragon
Companies, Tarragon Corporation and Ansonia intend to restructure the Tarragon Companies and their
ownership in the Tarragon Companies as described in more detail in Schedule G attached
hereteo (the “Tarragon Restructuring”), such that Tarragon and Ansonia will after giving effect to
the Tarragon Restructuring own, directly or indirectly through one or more of the Tarragon
Companies, certain membership and/or limited partnership interests in those certain entities
identified on Schedule A-7, representing certain economic, voting and other rights in such
entities (and, after giving effect to the Tarragon Restructuring, all references in this Agreement
or in Related Document to the “Tarragon Companies” or the “Tarragon Company Interests” shall be
deemed to be a reference to the entities and interests identified on Schedule A-7, and not
to the entities and interests identified on Schedule A-6);



     WHEREAS, the Northland Portfolio Companies are the owners of the Real Property (defined below)
described on Schedule B-1 attached hereto;



     WHEREAS, the Northland Fund I Companies are the owners of the Real Property described on
Schedule B-2 attached hereto;



     WHEREAS, the Northland Fund II Companies are the owners of the Real Property described on
Schedule B-3 attached hereto;



     WHEREAS, the Northland Fund III Companies are the owners of the Real Property described on
Schedule B-4 attached hereto;



     WHEREAS, the NIC Companies are the owners of the Real Property described on Schedule
B-5 attached hereto;



     WHEREAS, the Tarragon Companies are the owners of the Real Property described on Schedule
B-6 attached hereto;



     WHEREAS, upon one or more Closings, Northland Portfolio wishes to contribute to the New
Company all of Northland Portfolio’s right, title and interest in and to the Northland



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Portfolio Companies under the Northland Portfolio Operating Agreements (the “Northland
Portfolio Company Interests”), and the New Company shall (i) accept contribution of the Northland
Portfolio Company Interests, and (ii) issue to Northland Portfolio Common Units in the New Company
in exchange for such contribution, as more fully described below;



     WHEREAS, upon one or more Closings, Northland Fund I wishes to contribute to the New Company
all of Northland Fund I’s right, title and interest in and to the Northland Fund I Companies under
the Northland Fund I Operating Agreements (the “Northland Fund I Company Interests”), and the New
Company shall (i) accept contribution of the Northland Fund I Company Interests, and (ii) issue to
Northland Fund I Common Units in the New Company in exchange for such contribution, as more fully
described below;



     WHEREAS, upon one or more Closings, Northland Fund II wishes to contribute to the New Company
all of Northland Fund II’s right, title and interest in and to the Northland Fund II Companies
under the Northland Fund II Operating Agreements (the “Northland Fund II Company Interests”), and
the New Company shall (i) accept contribution of the Northland Fund II Company Interests, and (ii)
issue to Northland Fund II Common Units in the New Company in exchange for such contribution, as
more fully described below;



     WHEREAS, upon one or more Closings, Northland Fund III wishes to contribute to the New Company
all of Northland Fund III’s right, title and interest in and to the Northland Fund III Companies
under the Northland Fund III Operating Agreements (the “Northland Fund III Company Interests”), and
the New Company shall (i) accept contribution of the Northland Fund III Company Interests, and (ii)
issue to Northland Fund III Common Units in the New Company in exchange for such contribution, as
more fully described below;



     WHEREAS, upon one or more Closings, NIC wishes to contribute to the New Company all of NIC’s
right, title and interest in and to the NIC Companies under the NIC Operating Agreements (the “NIC
Company Interests”), and the New Company shall (i) accept contribution of the Northland Fund III
Company Interests, and (ii) issue to NIC Common Units in the New Company in exchange for such
contribution, as more fully described below;



     WHEREAS, upon one or more Closings, Northland Austin wishes to contribute to the New Company
all of Northland Austin’s right, title and interest in and to Northland Austin Portfolio L.P. (the
“Northland Austin Company Interests”), and the New Company shall (i) accept contribution of the
Northland Austin Company Interests, and (ii) issue to Northland Austin Common Units in the New
Company in exchange for such contribution, as more fully described below;



     WHEREAS, upon one or more Closings, Austin Investors wishes to contribute to the New Company
all of Austin Investors’s right, title and interest in and to Northland Austin Portfolio L.P. (the
“Austin Investors Company Interests”), and the New Company shall (i) accept contribution of the
Austin Investors Company Interests, and (ii) issue to Austin Investors Common Units in the New
Company in exchange for such contribution, as more fully described below;



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     WHEREAS, upon one or more Closings, Drake wishes to contribute to the New Company all of
Drake’s right, title and interest in and to Northland Memphis Portfolio L.P. (the “Drake Company
Interests”), and the New Company shall (i) accept contribution of the Drake Company Interests, and
(ii) issue to Drake Common Units in the New Company in exchange for such contribution, as more
fully described below;



     WHEREAS, upon one or more Closings, Tatstone wishes to contribute to the New Company all of
Tatstone’s right, title and interest in and to Northland Tatnuck LLC (the “Tatstone Company
Interests”), and the New Company shall (i) accept contribution of the Tatstone Company Interests,
and (ii) issue to Tatstone Common Units in the New Company in exchange for such contribution, as
more fully described below;



     WHEREAS, upon one or more Closings, Tarragon Corporation wishes to contribute to the New
Company all of Tarragon Corporation’s right, title and interest in and to the Tarragon Companies
under the Tarragon Company Operating Agreements (the “Tarragon Corporation Company Interests”), and
the New Company shall (i) accept contribution of the Tarragon Corporation Company Interests, and
(ii) issue to Tarragon Corporation Common Units in the New Company in exchange for such
contribution, as more fully described below;



     WHEREAS, upon one or more Closings, Ansonia wishes to contribute to the New Company all of
Ansonia’s right, title and interest in and to the Tarragon Companies under the Tarragon Company
Operating Agreements (the “Ansonia Company Interests” and, together with the Tarragon Corporation
Company Interests, the “Tarragon Company Interests”), and the New Company shall (i) accept
contribution of the Ansonia Company Interests, and (ii) issue to Ansonia Common Units in the New
Company in exchange for such contribution, as more fully described below.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in reliance on all representations, warranties and covenants made by each
of the parties hereto, Northland and Tarragon agree as follows:



DEFINITIONS




     The following terms as used in this Agreement will have the meanings ascribed to them as set
forth below unless the context clearly requires another meaning. The terms set forth below do not
constitute all defined terms set forth in this Agreement. Such other defined terms shall have the
meanings ascribed to them elsewhere in this Agreement.



     “Act” means the Securities Act of 1933.



     “Action” shall mean any claim, suit, litigation, injunction, stay, labor dispute, arbitration,
investigation, audit or other action or proceeding, including, without limitation, any condemnation
action.



     “Affiliate” shall mean any entity in which the Person in question owns directly or indirectly
more than fifty percent (50%) of the voting stock or similar interests issued by such entity or any
entity controlling, controlled by or under common control with the Person in question.



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     “Affiliate Management Agreement” has the meaning set forth in Section 1.4.



     “Agreement” has the meaning set forth in the Recitals.



     “Ansonia” has the meaning set forth in the introductory paragraph.



     “Ansonia Company Interests” has the meaning set forth in the Recitals.



     “Assumed Debt” shall mean one or more, as the case may be, of the Northland Assumed Debt and
the Tarragon Assumed Debt.



     “Austin Investors” has the meaning set forth in the introductory paragraph.



     “Austin Investors Company Interests” has the meaning set forth in the Recitals.



     “Authority” shall mean a governmental body or agency having jurisdiction over Northland,
Tarragon, or the Properties.



     “Bermuda Island Purchase Agreement” has the meaning set forth in Section 1.2.



     “Business Day” means any weekday that is not an official holiday in the State of New York.



     “Cash” means cash and monetary equivalents, including money funds and other short-term
investments, but excluding tenant security deposits, escrow balances and reserves held by a lender
for the account of a Contributed Company.



     “Casualty” has the meaning set forth in Section 8.1.



     “Casualty Sum” has the meaning set forth in Section 8.1.



     “Closing” and “Closing Date” have the meaning set forth in Section 1.3.



     “Closing Notice” has the meaning set forth in Section 1.3.



     “Closing Conditions” shall mean one or more, as the case may be, of the Northland Closing
Conditions or the Tarragon Closing Conditions.



     “Code” shall mean the Internal Revenue Code of 1986, as amended, and applicable rules and
regulations thereunder. Any reference herein to a specific section or sections of the Code shall
be deemed to include a reference to any corresponding provision of future law.



     “Common Units” means the units of membership interest in the New Company to be issued to the
Contributors hereunder, and having the designations, preferences, rights, powers and duties as set
forth in the Limited Liability Company Agreement.



     “Companies” shall mean one ore more, as the case may be, of the Northland Companies and the
Tarragon Companies.



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     “Company Interests” shall mean one or more, as the case may be, of the Northland Company
Interests and the Tarragon Company Interests.



     “Competing Transaction” has the meaning set forth in Section 9.2.



     “Condemnation” has the meaning set forth in Section 8.2.



     “Condemnation Sum” has the meaning set forth in Section 8.2.



     “Contracts” shall mean one or more, as the case may be, of the Northland Contracts or the
Tarragon Contracts.



     “Contributed Companies” has the meaning set forth in Section 1.1(a).



     “Contributed Properties” has the meaning set forth in Section 1.1(a).



     “Contributing Group” shall mean one or more, as the case may be, of the Northland Contributors
or the Tarragon Contributors.



     “Contribution Percentage” shall mean, for each Contributor in respect of each of its
Contributed Companies or Contributed Properties, as the case may be, the direct or indirect
ownership interest of such Contributor in such Contributed Company or Contributed Property, in each
case as specified in Schedule F-1 with respect to the Northland Contributors and
Schedule F-2 with respect to the Tarragon Contributors.



     “Contributor” shall mean any of Northland Portfolio, Northland Fund I, Northland Fund II,
Northland Fund III, NIC, Northland Austin, Austin Investors, Drake, Tatstone, Tarragon Corporation
and Ansonia, as applicable.



     “Drake” has the meaning set forth in the introductory paragraph.



     “Drake Company Interests” has the meaning set forth in the Recitals.



     “Equity Value” has the meaning set forth in Section 1.1(a).



     “Excess Gain” means with respect to any (i) interest (an “Interest”) in an entity treated as a
partnership for U.S. federal tax purposes that is contributed to the New Company on an applicable
Closing Date if such entity remains as a partnership for U.S. federal tax purposes immediately
after such contribution (a “Northland Partnership”), and (ii) any property (including partnership
interests) owned directly or indirectly by such Northland Partnership, (collectively, any Interest,
any such partnership interest and other property being referred to as the “Deemed Contributed
Property”) the excess of (A) the amount of income and gain allocated to the Tarragon Contributors
(and their Affiliates) for federal income tax purposes upon the sale or other disposition of such
Deemed Contributed Property over (B) the amount of income and gain for federal income tax purposes
that would have been allocated to the Tarragon Contributors (and their Affiliates) upon the sale or
other disposition of such Deemed Contributed Property, if (x) such Deemed Contributed Property (or
the portion of such Deemed Contributed Property based on portion of such income and gain from such
disposition allocated to New



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Company, if the New Company does not own for federal income tax purposes a direct 100%
interest in such Deemed Contributed Property) had been contributed directly to the New Company on
the relevant Closing Date by the contributor(s) of the Interest in the Northland Partnership that
owned a direct or indirect interest in such Deemed Contributed Property, (y) Code Section 704(c)
had applied to such contribution and (z) the Section 704(c) allocation method actually adopted or
selected pursuant to Section 6.3(b) of the Limited Liability Company Agreement with respect to the
“section 704(c) property” (as defined in Treasury Regulations Section 1.704-3(a)(3)(i))
attributable to such Deemed Contributed Property applied to such contribution.



     “Executive Order” has the meaning set forth in Section 3.2(t).



     “Final Closing Date” has the meaning set forth in Section 1.3.



     “First Closing” and “First Closing Date” have the meaning set forth in Section 1.3.



     “GE Lender” has the meaning set forth in Section 2.1(a).



     “Hazardous Substances” and “Hazardous Wastes” shall mean any substance, chemical, waste or
material that is or becomes regulated by any federal, state or local Authority because of its
toxicity, infectiousness, radioactivity, explosiveness, ignitability, corrosiveness or reactivity,
including, without limitation, asbestos, the group of compounds known as polychlorinated biphenyls,
flammable explosives, oil, petroleum or any refined petroleum product.



     “Income Taxes” means any Tax based upon or measured by reference to net income, including any
such Tax imposed on a Person pursuant to Treasury Regulations Section 1.1502-6 or any analogous or
similar state, local, or foreign law or regulation, as transferee or successor, by contract or
otherwise.



     “Indemnitee” has the meaning set forth in Section 5.1(a).



     “Indemnitor” has the meaning set forth in Section 5.1(a).



     “Intangibles”, with respect to each of the Properties shall mean all intangible property owned
or used by the Contributor of such Property (or its Affiliate) exclusively in connection with the
ownership, use, operation or development of the Property, including, without limitation: (i) the
right to use the applicable name listed on Schedules C-1 and C-2 and any other trade names
used in connection with the Property, (ii) the Contracts, (iii) the Tenant Leases, all guaranties
of the Tenant Leases, all security deposits under the Tenant Leases (unless such Contributor elects
instead to have them credited to the New Company), all other security, if any, under the Tenant
Leases and any rent prepaid under the Tenant Leases and (iv) all Northland Licenses and/or Tarragon
Licenses and any warranties, guaranties and other rights relating exclusively to the ownership,
use, operation or development of the Property to the extent transferable, but excluding the
Northland Excluded Property and the Tarragon Excluded Property.



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     “Interim Management Agreement” shall mean that certain Management Agreement by and between
each Contributor, as owner, and the Management JV, as manager, in the form attached hereto as
Exhibit B.



     “Law” or “Laws” has the meaning set forth in Section 3.2(e) and 3.3(e).



     “Lender Consents” shall mean the Tarragon Lender Consents or the Northland Lender Consents, as
applicable.



     “Limited Liability Company Agreement” shall mean the Limited Liability Company Agreement of
the New Company to be dated as of the First Closing Date by and among the Members in the form
attached hereto as Exhibit A.



     “Loss” or “Losses” shall mean any and all claims, losses, damages, costs, liabilities, Taxes,
causes of action and expenses, including, without limitation, attorney’s fees and disbursements,
whether direct, contingent or consequential.



     “Management Agreement: has the meaning set forth in Section 1.4.



     “Management JV” has the meaning set forth in Section 1.4.



     “Material Adverse Effect” shall mean any circumstance, event, occurrence, change or effect
that is, or would be, or would reasonably be expected to have a material adverse effect on the
Companies, the Real Properties, Personal Property or Intangibles being contributed by the Northland
Contributors or the Tarragon Contributors, as the case may be, or the use, operation or value
thereof, in each case taken as a whole.



     “Material Casualty” has the meaning set forth in Section 8.1.



     “Material Condemnation” has the meaning set forth in Section 8.2.



     “Members” has the meaning set forth in the Recitals.



     “New Company” has the meaning set forth in the Recitals.



     “NIC” has the meaning set forth in the introductory paragraph.



     “NIC Companies” has the meaning set forth in the Recitals.



     “NIC Company Interests” has the meaning set forth in the Recitals.



     “NIC Operating Agreements” has the meaning set forth in the Recitals.



     “New Company” has the meaning set forth in the Recitals.



     “Northgate Purchase Agreement” has the meaning set forth in Section 1.2.



     “Northland” has the meaning set forth in the introductory paragraph.



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     “Northland Austin” has the meaning set forth in the introductory paragraph.



     “Northland Austin Company Interests” has the meaning set forth in the Recitals.



     “Northland Assumed Debt” shall mean the existing mortgage and/or mezzanine financing
encumbering the Northland Company Interests or the Northland Property as of the date of this
Agreement as described in Schedule E-1 hereto.



     “Northland Closing Conditions” shall have the meaning set forth in Section 2.1



     “Northland Companies” has the meaning set forth in the Recitals.



     “Northland Company Interests” shall mean, collectively, the Northland Portfolio Company
Interests, the Northland Fund I Company Interests, the Northland Fund II Company Interests, the NIC
Company Interests, the Northland Austin Company Interests, the Austin Investors Company Interests,
the Drake Company Interests and the Tatstone Company Interests.



     “Northland Consents” has the meaning set forth in Section 2.2(c).



     “Northland 2/3s Consent” has the meaning set forth in Section 2.2(a).



     “Northland Contracts” shall mean, subject to the terms of this definition below, all
contracts, undertakings, commitments, agreements, obligations, guarantees and warranties (i)
relating to the Northland Property, (ii) to which any of the Northland Companies are a party or
(iii) by which any of the Northland Companies or the Northland Property is bound, including,
without limitation, utility contracts, management contracts, construction contracts, maintenance
and service contracts, parking contracts, equipment leases and brokerage and leasing agreements,
but excluding (i) except as provided in Section 1.4, any Affiliate Management Agreements, (ii) the
Northland Leases and (iii) the Northland Debt Instruments.



     “Northland Contributor” shall mean any of Northland Portfolio, Northland Fund I, Northland
Fund II, Northland Fund III, NIC, Northland Austin, Austin Investors, Drake, and Tatstone, as
applicable.



     “Northland Debt Instruments” shall mean all agreements and other instruments securing or
evidencing the Northland Assumed Debt or otherwise executed and delivered in connection therewith.



     “Northland Excluded Property” shall mean: (i) all Cash of the Northland Companies as of the
Prorations Date that is distributed to the Northland Companies at Closing pursuant to Section 1.1,
(ii) the name “Northland” and all permutations thereof and all related tradenames, trademarks,
service marks and logos incorporating any thereof and all pending applications and registrations
thereof, (iii) the Northland web site located at http://www.northland.com/ (and all sub-pages
thereunder) and all related domain names, internet registrations and copyrights therein used to
market, advertise or promote the “Northland” name generally, (iv) any assets which Northland or its
Affiliates contribute to the Management JV, and (v) licenses or other rights to computer software,
programs or other information technology or accounting or property management systems.



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     “Northland Fund I” has the meaning set forth in the introductory paragraph.



     “Northland Fund I Companies” has the meaning set forth in the Recitals.



     “Northland Fund I Company Interests” has the meaning set forth in the Recitals.



     “Northland Fund I Operating Agreements” has the meaning set forth in the Recitals.



     “Northland Fund II” has the meaning set forth in the introductory paragraph.



     “Northland Fund II Companies” has the meaning set forth in the Recitals.



     “Northland Fund II Company Interests” has the meaning set forth in the Recitals.



     “Northland Fund II Operating Agreements” has the meaning set forth in the Recitals.



     “Northland Fund III” has the meaning set forth in the introductory paragraph.



     “Northland Fund III Companies” has the meaning set forth in the Recitals.



     “Northland Fund III Company Interests” has the meaning set forth in the Recitals.



     “Northland Fund III Operating Agreements” has the meaning set forth in the Recitals.



     “Northland Leases” shall mean all leases, tenancy and occupancy agreements affecting the
Northland Property (including, without limitation, all amendments, modifications, agreements,
records, substantive correspondence and other documents affecting in any way a right to occupy any
portion of the Northland Property).



     “Northland Lender Consents” shall mean, collectively, all approvals, consents,
acknowledgments, agreements and authorizations to the transaction contemplated hereby from the
holders of the Northland Assumed Debt required under the Northland Debt Instruments or as otherwise
reasonably requested by Tarragon.



     “Northland Licenses” has the meaning set forth in Section 3.3(c).



     “Northland Operating Agreements” has the meaning set forth in the Recitals.



     “Northland Portfolio” has the meaning set forth in the introductory paragraph.



     “Northland Portfolio Companies” has the meaning set forth in the Recitals.



     “Northland Portfolio Company Interests” has the meaning set forth in the Recitals.



     “Northland Portfolio Operating Agreements” has the meaning set forth in the Recitals.



     “Northland Property” shall mean, collectively and individually, all (A) Real Property of (i)
the Northland Portfolio Companies as described on Schedule B-1 attached hereto, (ii) the
Northland Fund I Companies as described on Schedule B-2 attached hereto, (iii) the
Northland



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Fund II Companies as described on Schedule B-3 attached hereto, (iv) the Northland
Fund III Companies as described on Schedule B-4 attached hereto, and (v) the NIC Companies
as described on Schedule B-5 attached hereto (each of items A(i), (ii), (iii), (iv) and
(v), collectively, the “Northland Real Property”), (B) Personal Property of (i) the Northland
Portfolio Companies as described on Schedule D-1 attached hereto, (ii) the Northland Fund I
Companies as described on Schedule D-2 attached hereto, (iii) the Northland Fund II
Companies as described on Schedule D-3 attached hereto, (iv) the Northland Fund III
Properties as described on Schedule D-4 attached hereto, and (v) the NIC Properties as
described on Schedule D-5 attached hereto (each of items B(i), (ii), (iii), (iv) and (v),
collectively, the “Northland Personal Property”), and (C) Intangibles owned by Northland. All
references in this Agreement to the Northland Property shall be deemed to refer to all or any
portion of the Northland Property.



     “Northland Rent Roll” has the meaning set forth in Section 2.2(h)(iii).



     “Northland Restructuring” has the meaning set forth in Section 1.2.



     “Notice” has the meaning set forth in Section 5.3(a).



     “OFAC” and “OFAC Lists” have the meaning set forth in Section 3.2(t).



     “Permitted Exceptions” shall mean and include all of the following items: (a) applicable
zoning and building ordinances and land use regulations, as of the date of this Agreement and as of
the date of each Closing, (b) any deed, easement, restriction, covenant or other matter affecting
title to the Northland Property or Tarragon Property that would be disclosed by a title report,
title policy or title commitment of the Northland Property or Tarragon Property, as the case may
be, on the date of this Agreement, (c) such state of facts as would be disclosed by a physical
inspection of the Northland Property or the Tarragon Property, as the case may be, as of the date
of this Agreement, (d) the lien of taxes and assessments not yet due and payable, as of the date of
this Agreement and as of the date of Closing, and (e) liens securing the payment of the Assumed
Debt. Permitted Exceptions shall not include any lien that secures the payment of money (other
than the Assumed Debt), including, without limitation, mechanics liens, which the Contributor
contributing such Property shall remove or cure on or before Closing.



     “Person” shall mean any individual, corporation, partnership, joint venture, association,
joint-stock company, business trust, limited liability company, trust, unincorporated organization
or government or a political subdivision, agency or instrumentality thereof or other entity or
organization of any kind.



     “Personal Property” shall mean all tangible personal property owned by a Contributor located
on or in or used exclusively in connection with the Real Property of such Contributor as of the
date of this Agreement or on the applicable the Closing Date with respect to such Real Property,
including, without limitation, all equipment, systems and appliances relating to the Property and
other items listed in Schedules D-1 through D-6 attached hereto, but excluding the
Northland Excluded Property and the Tarragon Excluded Property. Personal Property shall in no
event include personal property owned by tenants of such Real Property.



13









 





     “Post-Closing Straddle Period” is defined in Section 4.11.



     “Pre-Closing Straddle Period” is defined in Section 4.11.



     “Pre-Closing Tax Period” means any Tax period (or portion thereof) ending on or before the
relevant Prorations Date or Closing Date (as determined in accordance with Section 4.11).



     “Property” shall mean one or more, as the case may be, of the Northland Property or the
Tarragon Property.



     “Property Value” has the meaning set forth in Section 8.1.



     “Prorations Date” has the meaning set forth in Section 4.1.



     “Real Property” shall mean, individually for each parcel and collectively for all parcels, the
land (the “Land”), together with all rights, licenses, privileges and easements appurtenant
thereto, including, without limitation, all minerals, oil, gas and other hydrocarbon substances on
and under and that may be produced from the Land, as well as all development rights and land use
entitlements benefiting the Land and the right, title and interest in off-site facilities and
amenities servicing the Land or any improvements located thereon, including, without limitation,
building permits and other governmental licenses, permits and certificates, utilities commitments,
air rights, water, water rights, riparian rights and water stock relating to the Land and any
rights-of-way or other appurtenances used in connection with the beneficial use and enjoyment of
the Land and all of right, title and interest in and to all roads, easements, rights of way, strips
or gores, alleys and other appurtenances adjoining or servicing the Land (collectively, the
“Appurtenances”) and all improvements and fixtures located on the Land or the Appurtenances, and
all apparatus and equipment used in connection with the operation or occupancy of the Land, such
improvements or the Appurtenances, including, without limitation, heating and air conditioning
systems and facilities used to provide any services on the Land or the Appurtenances or for the
improvements, and all parking and related facilities and amenities (collectively, the
“Improvements”).



     “Reference Rate” has the meaning set forth in Section 5.1(b).



     “Related Documents” means, collectively, all documents to be executed and delivered by the
Contributors pursuant to this Agreement, including, without limitation, the Limited Liability
Company Agreement and all other documents referred to in Sections 2.1(h) and 2.2(h) required to be
executed and delivered by the Contributors in connection with any Closing.



     “Straddle Period” is defined in Section 4.11.



     “Tarragon” has the meaning set forth in the introductory paragraph.



     “Tarragon Assumed Debt” shall mean the existing mortgage and/or mezzanine financing
encumbering the Tarragon Company Interests or the Tarragon Property as of the date of this
Agreement as described in Schedule E-2 hereto.



14









 





     “Tarragon Closing Conditions” shall have the meaning set forth in Section 2.2.



     “Tarragon Company Interests” has the meaning set forth in the Recitals.



     “Tarragon Companies” has the meaning set forth in the Recitals.



     “Tarragon Consents” has the meaning set forth in Section 2.1(c).



     “Tarragon Contracts” shall mean, subject to the terms of this definition below, all contracts,
undertakings, commitments, agreements, obligations, guarantees and warranties (i) relating to the
Tarragon Property, (ii) to which any of the Tarragon Companies are a party or (iii) by which any of
the Tarragon Companies or the Tarragon Property is bound, including, without limitation, utility
contracts, management contracts, construction contracts, maintenance and service contracts, parking
contracts, equipment leases and brokerage and leasing agreements, but excluding (i) except as
provided in Section 1.4, any Affiliate Management Agreement, (ii) the Tarragon Leases and (iii) the
Tarragon Debt Instruments.



     “Tarragon Contributor” shall mean any of Tarragon Corporation and Ansonia, as applicable.



     “Tarragon Corporation” has the meaning set forth in the introductory paragraph.



     “Tarragon Corporation Company Interests” has the meaning set forth in the Recitals.



     “Tarragon Debt Instruments” shall mean all agreements and other instruments securing or
evidencing the Tarragon Assumed Debt or otherwise executed and delivered in connection therewith.



     “Tarragon Excluded Property” shall mean: (i) all Cash of the Tarragon Companies as of the
Prorations Date that is distributed to the Tarragon Companies at Closing pursuant to Section 1.1,
(ii) the names “Tarragon” and “Vintage” and all permutations thereof and all related tradenames,
trademarks, service marks and logos incorporating any thereof and all pending applications and
registrations thereof, (iii) the Tarragon web site located at http://www.tarragon.com/ (and all
sub-pages thereunder) and all related domain names, internet registrations and copyrights therein
used to market, advertise or promote the “Tarragon” name generally, (iv) any assets which Tarragon
or its Affiliates contribute to the Management JV, and (v) licenses or other rights to computer
software, programs or other information technology or accounting or property management systems.



     “Tarragon GE Assumed Debt” has the meaning set forth in Section 2.1(a).



     “Tarragon GE Consent” has the meaning set forth in Section 2.1(a).



     “Tarragon GE Property” shall mean that portion of the Tarragon Property that is encumbered or
otherwise subject to the Tarragon GE Assumed Debt.



     “Tarragon Leases” shall mean all leases, tenancy and occupancy agreements affecting the
Tarragon Property (including, without limitation, all amendments, modifications, agreements,



15









 







records, substantive correspondence and other documents affecting in any way a right to occupy
any portion of the Tarragon Property).



     “Tarragon Lender Consents” shall mean, collectively, all approvals, consents, acknowledgments,
agreements and authorizations to the transaction contemplated hereby from the holders of the
Tarragon Assumed Debt required under the Tarragon Debt Instruments or as otherwise reasonably
requested by Northland.



     “Tarragon Licenses” has the meaning set forth in Section 3.2(e).



     “Tarragon Operating Agreements” has the meaning set forth in the Recitals.



     “Tarragon Property” shall mean, collectively and individually, all (A) Real Property of
Tarragon as described on Schedule B-6 attached hereto (collectively, the “Tarragon Real
Property”), (B) Personal Property of Tarragon as described on Schedule D-6 attached hereto
(collectively, the “Tarragon Personal Property”), and (C) Intangibles owned by Tarragon. All
references in this Agreement to the Tarragon Property shall be deemed to refer to all or any
portion of the Tarragon Property.



     “Tarragon Rent Roll” has the meaning set forth in Section 2.1(h)(iv).



     “Tarragon Restructuring” has the meaning set forth in the Recitals.



     “Tarragon SPE” has the meaning set forth in Section 1.1(g).



     “Tatstone” has the meaning set forth in the introductory paragraph.



     “Tatstone Company Interests” has the meaning set forth in the Recitals.



     “Tax” or “Taxes” shall mean any federal, state, local or foreign income, gross receipts,
capital gains, franchise, alternative or add-on minimum, estimated, sales, use, goods and services,
transfer, registration, value added, excise, natural resources, severance, stamp, occupation,
premium, windfall profit, environmental, customs, duties, real property, special assessment,
personal property, capital stock, social security, unemployment, employment, disability, payroll,
license, employee or other withholding, contributions or other tax, of any kind whatsoever,
including any interest, penalties or additions to tax or additional amounts in respect of the
foregoing.



     “Tenant Leases” shall mean one or more, as the case may be, of the Northland Leases or the
Tarragon Leases.



     “Third Party” has the meaning set forth in Section 9.2.



     “Vintage/Aldridge Purchase Agreements” shall mean the Agreements of Purchase and Sale dated
the date hereof between the New Company, as buyer, and Morningside National, Inc. and Tarragon
Corporation as seller, as applicable, for the sale to the New Company of the “Aldridge at Gateway”
and “Vintage at the Grove” properties.



16









 





ARTICLE
1 —  CONTRIBUTION OF INTERESTS




     1.1  Contribution of the Interests.



          (a) Equity Value and Issuance of Common Units. At each Closing, subject to the terms
and conditions of this Agreement, each Contributor agrees to contribute and convey to the New
Company the Company Interests directly owned by it and reflecting the same direct and indirect
ownership in the Companies shown on the applicable Schedules A-1 through A-7, except as otherwise
modified by the Tarragon Restructuring or the Northland Restructuring, as applicable (as to such
Contributor, the “Contributed Companies”) which hold the Properties for which the necessary Lender
Consents have been obtained (as to such Contributor, the “Contributed Properties”). Each
Contributor shall, through its contribution of the Company Interests, contribute the Contributed
Properties subject only to the Permitted Exceptions, the Leases, the Contracts, the Licenses and
such other leases, contracts and licenses as may be permitted to be entered into hereafter in
accordance with Section 7.1. To the extent more than one Contributor owns interests in the same
Company, then, at Closing, all of the Company Interests in such Company that will be contributed to
the New Company must be contributed at the same Closing. In consideration of such contribution and
conveyance and in reliance on the representations and warranties of such Contributor contained in
or made pursuant to the terms of this Agreement, the parties hereto agree to cause the New Company
to issue at such Closing to such Contributor a Common Unit for each ten dollars ($10.00) of Equity
Value so contributed by it. Each Contributor shall be admitted as a member of the New Company upon
the initial issuance to such Contributor of Common Units under and in accordance with the terms of
the Limited Liability Company Agreement. The term “Equity Value” means, for each Contributor on
each Closing Date, the sum of the following values for each Contributed Property of such
Contributor on such Closing Date: (i) the net asset value of such Contributed Property, (as shown
in the column labeled “Market Value Equity” on Schedule 1.1), multiplied by (ii) the Contribution
Percentage of such Contributor in such Contributed Property, subject to adjustment as provided in
Section 1.1(b), (c) and (d).




          (b) Adjustment for Debt. At each Closing, with respect to each Contributor and each
Company Interest in a Contributed Company being contributed by it on such Closing, if the aggregate
principal amount of indebtedness, and all accrued and unpaid interest, owed by the Contributed
Company or otherwise encumbering the Contributed Property owned by such Contributed Company exceeds
as of the Prorations Date the estimated amount of Assumed Debt (as shown in the columns labeled
“Mortgage Balance at 2/29/08” and “Mezzanine Financing at 2/29/08” on Schedule 1.1) for
such Contributed Property, then the Equity Value of such Contributor will be reduced by the product
of (x) the amount of such excess and (y) the Contribution Percentage of such Contributor in the
Contributed Company; and (ii) if the estimated amount of Assumed Debt (as shown in the columns
labeled “Mortgage Balance at 2/29/08” and “Mezzanine Financing at 2/29/08” on Schedule 1.1)
for such Contributed Property exceeds the aggregate principal amount of indebtedness, and all
accrued and unpaid interest, owed by such Contributed Company or otherwise encumbering its
Contributed Property on the Prorations Date, then the Equity Value of such Contributor shall be
increased by the product of (x) the amount of such excess and (y) the Contribution Percentage of
such Contributor in such Contributed Company. On each Closing Date, the increases or reductions in
a Contributor’s Equity Value for all Contributed Properties being contributed by it on such Closing
Date will be




17









 







aggregated, and the net increase or reduction, as applicable, will adjust such Contributor’s
Equity Value for purposes of determining the number of Common Units to be issued to it pursuant to
Section 1.1(a).




          (c) Adjustment for Cash. It is the intention of the Contributors that Cash of each
Contributed Company held on the Prorations Date shall be distributed to the applicable Contributed
Companies on or before Closing, and Cash of each Contributed Company held after the Prorations Date
shall be contributed to the New Company at Closing without adjustment in any Contributor’s Equity
Value. Consequently, each Contributor shall use diligent efforts to distribute Cash held by each
of its Contributed Companies as of the Prorations Date on or prior to the Closing Date. If,
despite using such diligent efforts, any Cash held by a Contributed Company as of the Prorations
Date is not so distributed on or prior to the Closing Date, then the Equity Value of the
Contributors of such Contributed Company will increase, pro rata in proportion to their respective
Contribution Percentages. Each Contributor is hereby prohibited from distributing any Cash of a
Contributed Company held after the Prorations Date following the delivery of a Closing Notice in
which it is anticipated that the Company Interests in the applicable Contributed Companies will be
contributed at Closing; and in that case any Cash so distributed in excess of Cash held by the
Contributed Company as of the Prorations Date will reduce the Equity Value of the Contributors of
such Contributed Company, pro rata in proportion to their respective Contribution Percentages.




          (d) Adjustment for Net Prorations. At each Closing, the net proration amount for each
Contributed Property, computed pursuant to Section 4.11, will adjust the Equity Value of
each Contributor contributing a Company Interest (directly or indirectly) in such Contributed
Property, pro rata, in proportion to their respective Contribution Percentages. If such net
proration amount is a positive credit in favor of the Contributors of such Contributed Property,
such adjustment will increase the Equity Value of such Contributors; and if such net proration
amount is a negative debit owed to the New Company by such Contributors of such Contributed
Property, such adjustment will reduce the Equity Value of such Contributors. On each Closing Date,
the increases or reductions in a Contributor’s Equity Value for all Contributed Properties being
contributed by it on such Closing Date under this Section 1.1(d) will be aggregated, and the net
increase or reduction, as applicable, will adjust such Contributor’s Equity Value for purposes of
determining the number of Common Units to be issued to it pursuant to Section 1.1(a).




          (e) The provisions of this Section 1.1 shall survive each Closing.




     1.2 Certain Changes in the Contribution Transactions.



          (a) Northland Restructuring. Notwithstanding anything herein to the contrary,
Northland Portfolio may restructure its contribution of the Northland Portfolio Company Interests
to the New Company on any basis so long as the restructuring has the same overall economic effect
as the contributions and other transactions otherwise contemplated by this Agreement (the
“Northland Restructuring”). Tarragon shall have the right to review and approve the Northland
Restructuring, which approval shall not be unreasonably withheld, conditioned or delayed;
provided, however, that such approval may be withheld if, in the reasonable, good faith




18









 







business judgment of Tarragon, the Northland Restructuring will have a material adverse tax or
other economic consequence for the New Company or any Tarragon Contributor.




          (b) Tarragon Restructuring. Tarragon shall complete the Tarragon Restructuring on or
before the applicable Closing Date in which such Tarragon Company Interests are to be contributed
to the New Company, in whole, or with respect to a Closing at which less than all of the Tarragon
Company Interests are being contributed to the New Company, in respect of the Tarragon Company
Interests being contributed at such Closing. Tarragon shall have the right to change the Tarragon
Restructuring from time to time so long as the Tarragon Restructuring has the same overall economic
effect as the contributions and other transactions otherwise contemplated by this Agreement,
subject Northland’s right to review and approve the Tarragon Restructuring, which approval shall
not be unreasonably withheld, conditioned or delayed; provided, however, that such approval
may be withheld if, in the reasonable, good faith business judgment of Northland, such change in
the Tarragon Restructuring will have a material adverse tax or other economic consequence for the
New Company or any Northland Contributor.




          (c) Tarragon SPE Sub. Tarragon Corporation may at any time form a special-purpose
wholly owned subsidiary for the purpose of holding the Common Units issuable to it by the New
Company hereunder (the “Tarragon SPE”), and thereafter, the obligations of Tarragon Corporation
hereunder may be performed by Tarragon SPE. Notwithstanding anything herein to the contrary,
Tarragon Corporation shall not be relieved of any of its obligations or liabilities under this
Agreement by reason of forming such Tarragon SPE or causing such Tarragon SPE to hold Tarragon
Corporation’s Common Units.




          (d) Northgate and Bermuda Island. Northland and Tarragon acknowledge and agree that
the Properties identified on Schedule 1.1 as Northgate and Bermuda Island are currently the
subject of (i) that certain Purchase and Sale Agreement dated as of March 5, 2008 by and between
Middletown Tarragon LLC and Northland Fund III (the “Northgate Purchase Agreement”) pursuant to
which Middletown Tarragon LLC has agreed to sell and Northland Fund III has agreed to purchase the
Northgate property, and (ii) that certain Membership Interest Purchase and Sale Agreement dated as
of March 5, 2008 by and between Tarragon Corporation and Northland Fund II (the “Bermuda Island
Purchase Agreement”) pursuant to which Tarragon Corporation has agreed to sell and Northland Fund
II has agreed to purchase the membership interests in Bermuda Island Tarragon, LLC. Northland and
Tarragon further agree that, to the extent either of the closings on Northgate and/or Bermuda
Island occur on or prior to the Final Closing Date hereunder, (i) such closed property shall
thereafter constitute a “Northland Property” hereunder, other than as provided in Section 3.6 of
this Agreement, (ii) Middletown Tarragon LLC will constitute a “Northland Company” hereunder, other
than as provided in Section 3.6 of this Agreement, (iii) the membership interests in such
additional Northland Company shall constitute “Northland Company Interests” hereunder to be
contributed to the New Company on the next Closing, other than as provided in Section 3.6 of this
Agreement, and (iv) Northland Fund III and Northland Fund II will receive the Equity Value
attributed to such Property as provided in Schedule 1.1., subject to adjustment as provided
herein.




          (e) The provisions of this Section 1.2 shall survive each Closing.




19









 








     1.3 Closing.



          (a) The initial closing of the transactions contemplated under this Agreement (the “First
Closing”) will take place as promptly as possible but in no event later than the first
(1st) Business Day of the first month immediately following the month in which the
Tarragon GE Consent and the Northland 2/3s Consent are both obtained (the “First Closing Date”).




          (b) To the extent that fewer than all of the Company Interests have been contributed to the
New Company on the First Closing Date, then subsequent closings (together with the First Closing,
each a “Closing”) will occur on the first (1st) Business Day of each month immediately
following the month in which either the Northland Contributing Group or the Tarragon Contributing
Group delivers to the other party written notice (each a “Closing Notice”) that its Contributing
Group has received additional Lender Consents and is prepared to satisfy the Closing Conditions
applicable to its Contributing Group at Closing as to one or more Properties and the related
Company Interests not previously contributed (together with the First Closing Date, each a “Closing
Date”). On each Closing Date, each Contributing Group will contribute to the New Company all of
the Company Interests with respect to which (and to the extent not previously contributed) its
Closing Conditions have been satisfied or waived by the other Contributing Group. Notwithstanding
anything in the foregoing to the contrary, if either Contributing Group believes or has knowledge
that the other Contributing Group has received additional Lender Consents, then a Closing Notice
may be sent by either of the Contributing Groups hereunder.




          (c) Notwithstanding the foregoing, (i) no Closing Notice may be given later than December 22,
2008, (ii) if a Closing Notice is delivered during the last five (5) Business Days of any calendar
month (other than the month of December 2008), the Closing with respect to such Closing Notice
shall occur on the first (1st) Business Day of the second calendar month following
delivery of such Closing Notice, (iii) if a Closing Notice is delivered during the month of
December 2008, the Closing with respect to such Closing Notice will occur on December 31, 2008 (the
“Final Closing Date”), and (iv) no Closing will occur later than the Final Closing Date. If on the
Final Closing Date, fewer than all of the Company Interests have been contributed to the New
Company, then, other than those Company Interests that have not been contributed to the New Company
as a result of a breach or default hereunder, with respect to which the non-breaching and/or
non-defaulting parties shall retain any and all rights and remedies related thereto under this
Agreement, the remaining uncontributed Company Interests, Companies and Properties shall not be
contributed to the New Company, whereupon this Agreement shall be deemed to have been terminated as
to such Company Interests, Companies and Properties (but not as to any other Company Interests,
Companies or Properties) and the parties hereto shall have no further obligations or liabilities in
respect thereof hereunder, other than with respect to provisions hereof which expressly survive
termination.




          (d) Each Closing shall occur in the offices of Goodwin Procter LLP, 620 Eighth Avenue, New
York, NY 10018 on the Closing Date, unless otherwise agreed in writing by Tarragon Corporation and
NIC. Each Closing shall occur pursuant to closing arrangements reasonably satisfactory to Tarragon
Corporation and NIC.




20









 








     1.4 Management JV. Simultaneously with the execution and delivery of this Agreement,
(i) Tarragon Corporation and NIC will form Northland Properties Management LLC (the “Management
JV”) and will execute and deliver the Limited Liability Company Agreement of the Management JV in
the form attached hereto as Exhibit E, and (ii) the applicable Tarragon Contributors, the
applicable Northland Contributors and the Management JV shall enter into the Interim Management
Agreement, which will govern the management of the Tarragon Properties and the Northland Properties
prior to contribution to the New Company. At each Closing, the applicable Contributors and the New
Company will execute and deliver partial terminations of the Interim Management Agreement with
respect to the Contributed Properties. At each Closing, the Board of Managers (as defined in the
Limited Liability Company Agreement) on behalf of the New Company will enter into a new management
agreement with Management JV on substantially the same economic terms as the Interim Management
Agreement to govern the management of the Contributed Properties from time to time.



     1.5 Other Affiliate Management Agreements. Except as provided in Section 1.4, the
Contributed Companies and the Contributed Properties will at their respective Closings be subject
to no property management, construction management, development, leasing, brokerage or similar
agreement with any Affiliate of the Contributor (each an “Affiliate Management Agreement”), and the
Contributor will cause any Affiliate Management Agreements to be terminated at Closing for each
Contributed Company and each Contributed Property at its sole expense.



     1.6 Tarragon Company Names. Immediately following each Closing, Northland will cause
the New Company to change the name of any Contributed Company which uses the name “Tarragon” or any
other name comprising part of the Tarragon Excluded Property to another name which does not include
“Tarragon” or any other such name.



ARTICLE
2 — CERTAIN COVENANTS AND CONDITIONS TO CLOSING




     2.1 Covenants and Conditions to Northland’s Obligation to Closing. The obligation of
Northland to consummate the transactions contemplated hereunder on each Closing Date shall be
subject to the satisfaction or waiver by Northland of each of the conditions set forth below
(collectively, the “Northland Closing Conditions”).



          (a) Minimum Lenders’ Approval at First Closing. As a condition to the First Closing,
Northland shall have obtained the Northland 2/3s Consent. As an additional condition to the First
Closing, Tarragon shall have obtained and delivered to Northland, and Northland shall cooperate to
the extent reasonably necessary with Tarragon at no additional cost or expense to Northland, to
obtain, all approvals, consents, acknowledgments, agreements and authorizations to the transaction
contemplated hereby, including, without limitation, to the Tarragon Restructuring, required from
the General Electric Capital Corporation (“GE Lender”) or reasonably requested by Northland
(collectively, the “Tarragon GE Consent”), which is the holder of that portion of the Tarragon
Assumed Debt (the “Tarragon GE Assumed Debt”) identified on Schedule 2.1(a). It shall be a
condition to Northland’s obligations under this Agreement that the Tarragon GE Consent shall be in
form and substance reasonably satisfactory




21









 







to Northland and shall be executed and delivered by all applicable parties thereto at the
First Closing.




          (b) Other Lender Consents. On each Closing on which Northland Company Interests that
are not subject to the Northland 2/3s Consent are contributed to the New Company, then with respect
to such contribution, Northland shall have obtained the Northland Lender Consents. As a further
condition to each Closing on which Tarragon Company Interests that are not subject to the Tarragon
GE Consent are contributed to the New Company, then with respect to such contribution, Tarragon
shall have obtained and delivered to Northland, and Northland shall cooperate to the extent
reasonably necessary with Tarragon at no additional cost or expense to Northland to obtain, the
Tarragon Lender Consents. It shall be a condition to Northland’s obligations under this Agreement
that the Tarragon Lender Consents shall be in form and substance reasonably satisfactory to
Northland and shall be executed and delivered by all applicable parties thereto at such Closing.




          (c) Tarragon Consents. On or before the date hereof, each of the Tarragon
Contributors and the Tarragon Companies has obtained the requisite corporate consents and/or
approvals to the transaction contemplated by this Agreement and to the terms and conditions of this
Agreement and the Related Documents, which consents are listed on Schedule 2.1(c)
(collectively, the “Tarragon Consents”), other than consents required with respect to the Tarragon
Restructuring, which consents are under the control of Tarragon and will be obtained in due course
prior to Closing. On or before the date hereof, Northland has received copies of the Tarragon
Consents or other evidence of such Tarragon Consents satisfactory to it.




          (d) Accuracy of Representations and Warranties. The representations and warranties of
each of the Tarragon Contributors contained herein shall be true and correct in all material
respects as of the date of this Agreement and at the time of each Closing, other than any of the
foregoing which alone or together do not constitute a Material Adverse Effect.




          (e) Authority. Each of the Tarragon Contributors and the Tarragon Companies shall
have delivered to Northland evidence of its authority to execute and deliver this Agreement and all
Related Documents and to consummate the transaction which is the subject of this Agreement and the
particular Closing and to perform its obligations hereunder and under the Related Documents. All
such evidence shall be in form and substance reasonably satisfactory to Northland and shall
include, without limitation, organizational documents of the Tarragon Companies and their
respective general partners or managing members, certified by the Secretary of State of the
state(s) in which they are organized, certificates of legal existence and good standing,
qualifications to do business, if applicable, and secretary’s certificates as to resolutions and
incumbency.




          (f) Absence of Litigation. Other than as disclosed on Schedule 2.1(f), no
Action shall be pending or threatened against any Tarragon Contributor, any of the Tarragon
Companies or any Tarragon Property, which (i) questions or could reasonably be expected to question
the validity or legality of the transaction contemplated under this Agreement or the Related
Documents or (ii) affects or could reasonably be expected to affect any Tarragon Property which
alone or together with Actions affecting or reasonably expected to affect other Tarragon Properties
constitutes a Material Adverse Effect.




22









 








          (g) Absence of Material Change and Default. Since the date of this Agreement, there
shall not have been any material adverse change in the condition, financial or otherwise, of any
Tarragon Company or any Tarragon Property, which shall constitute a Material Adverse Effect.
Tarragon shall have complied in all material respects with all of its obligations hereunder, other
than any failures to comply which alone or together do not constitute a Material Adverse Effect.




          (h) Delivery of Tarragon Documents. At each Closing, each Tarragon Contributor shall
execute and deliver to Northland and/or the New Company, as applicable, the following, in form and
substance satisfactory to Northland:





     (i) Assignment of Interests. An assignment to the New Company of
Company Interests to be assigned by such Tarragon Contributor on such Closing Date,
in the form attached hereto as Exhibit C;




     (ii) Entity Transfer Certificate(s). Entity transfer certification in
the form described in United States Treasury Regulation Section 1.1445-2(b)(2)
confirming that each applicable transferor of Tarragon Property (as determined for
purposes of Section 1445 of the Code) that are the subject of the applicable Closing
is not a “foreign person” as defined in Section 1445(f)(3) of the Code;




     (iii) Original Documents and Files. To the extent not previously
delivered to the New Company or the Manager and in Tarragon’s possession or under its
control, originals of any of the Tarragon Contracts, Tarragon Leases and Tarragon
Licenses with respect to the Tarragon Properties that are the subject of the
applicable Closing, or if the original is not in Tarragon’s possession or control,
copies thereof. The obligations under this item (iii) may be satisfied by delivery
of such original documents and files to the Management JV;




     (iv) Rent Roll. An updated Tarragon Rent Roll for each Tarragon
Property that is the subject of the applicable Closing dated no later than five (5)
days prior to Closing, which updated Tarragon Rent Roll will be used to identify all
Tarragon Leases of space at the Tarragon Property that is the subject of the
applicable Closing for purposes of this Agreement as of the Closing Date and shall
reflect no material adverse changes from the Tarragon Rent Roll attached hereto as
Schedule 2.1(h)(iv) (the “Tarragon Rent Roll”), other than any such changes
which alone or together do not constitute a Material Adverse Effect. Each Tarragon
Contributor shall deliver a certificate dated as of the applicable Closing Date
certifying that the Tarragon Rent Roll applicable to its Contributed Properties is
true, complete and correct (including, without limitation, the amount of security
deposits and description of uncured tenant defaults and delinquencies listed
thereon);




     (v) Debt Instruments. Originals of all of the Tarragon Debt Instruments
that are the subject of the applicable Closing. The obligations under this item (v)
may be satisfied by delivery of such original documents and files to the Manager;



23









 






     (vi) Limited Liability Company Agreement. At the First Closing, a
counterpart original of the Limited Liability Company Agreement executed by each
Tarragon Contributor;




     (vii) Management Agreement. At each Closing, each Tarragon Contributor
will deliver any documents necessary to evidence the termination of any Affiliate
Management Agreements as to its Contributed Properties and Contributed Companies. In
addition, each Tarragon Contributor will execute and deliver such other documents as
may be necessary to evidence the termination of the Interim Management Agreement and
the effectiveness of the Management Agreement as to such Contributed Property;




     (viii) Title Matters. Customary affidavits sufficient for a title
company to issue any non-imputation endorsements as part of, or to delete any
exceptions for parties in possession (other than tenants under Tenant Leases),
mechanic’s or materialmen’s liens from any new title policy or date-down to existing
policies obtained in connection with any Tarragon Property, to the extent such new
policy or date-down is required by any lender in connection with obtaining any of the
Lender Consents;




     (ix) Closing Statement. A counterpart original of a closing statement
setting forth the closing adjustments and any applicable adjustment to any
Contributor’s Equity Value, as applicable;




     (x) Transfer Tax Returns. Any and all transfer tax returns,
declarations of value or other documents required under applicable law or as
necessary in connection with the transactions contemplated hereunder;




     (xi) Vintage. On each Closing at which any Tarragon Property using the
tradename “Vintage” is contributed, Tarragon Corporation will execute and deliver to
the Contributed Company holding such Tarragon Property a fully paid, nonexclusive
license to use such tradename, in the form attached hereto as Exhibit F;




     (xii) Other. Such other documents, instruments, consents,
authorizations or approvals as may be required by, and reasonably satisfactory to,
Northland or its counsel or any lender or its counsel and that may be reasonably
necessary or desirable to consummate the transactions that are the subject of this
Agreement and the Related Documents and to otherwise effect the agreements of the
parties hereto, including, without limitation, as required under this Section.



          (i) Accuracy of Documents. Each Tarragon Contributor shall have certified to
Northland, severally and not jointly, at each applicable Closing as to which it has Contributed
Properties that all materials delivered pursuant to Section 2.1(h)(iii) and 2.1(h)(v) are true,
correct and complete copies of all such documents in such Tarragon Contributor’s possession or
under its control and, to such Tarragon Contributor’s knowledge, there are no other material




24









 







agreements or documents relating to the subject matter thereof in such Tarragon Contributor’s
possession or under its control.




     2.2 Certain Covenants and Conditions to Tarragon’s Obligation to Close. The
obligation of Tarragon to consummate the transactions contemplated hereunder shall be subject to
the satisfaction or waiver by Tarragon of each of the conditions set forth below (collectively, the
“Tarragon Closing Conditions”).



          (a) Minimum Lenders’ Approval. As a condition to the First Closing, the Tarragon GE
Consent shall have been obtained. As an additional condition to the First Closing, Northland shall
have (i) obtained and delivered to Tarragon, and Tarragon shall cooperate to the extent reasonably
necessary with Northland at no additional cost or expense to Tarragon, to obtain, all approvals,
consents, acknowledgments, agreements and authorizations to the transaction contemplated hereby
from the holders of the Northland Assumed Debt or (ii) determined in its reasonable judgment that
no such approval, consent, acknowledgement, agreement or authorization is required in connection
with the transactions contemplated hereunder from such holders, with respect to at least two-thirds
of the net asset value of the Northland Properties as set forth on Schedule 1.1 hereto
(collectively, the “Northland 2/3s Consent”). It shall be a condition to Tarragon’s obligations
under this Agreement that the Northland 2/3s Consent shall be in form and substance reasonably
satisfactory to Tarragon and shall be executed and delivered by all applicable parties at the First
Closing. In addition, to the extent required in connection with the Northland Company Interests
being contributed at the First Closing, Northland shall have obtained the consent of Sovereign Bank
under the Northland Portfolio L.P. Credit Facility.




          (b) Other Lender Consents. On each Closing on which Tarragon Company Interests that
are not subject to the Tarragon GE Consent are contributed to the New Company, then with respect to
such contribution, the Tarragon Lender Consents shall have been obtained. As a further condition
to each Closing on which Northland Company Interests that are not the subject of the Northland 2/3s
Consent are contributed to the New Company, then with respect to such contribution, Northland shall
have (i) obtained and delivered to Tarragon, and Tarragon shall cooperate to the extent reasonably
necessary with Northland at no additional cost or expense to Tarragon, to obtain the Northland
Lender Consents and, to the extent required, consent of Sovereign Bank under the Northland
Portfolio L.P. Credit Facility, or (ii) determined in its reasonable judgment that no such
additional Northland Lender Consents are required in connection with the transactions contemplated
hereunder. It shall be a condition to Tarragon’s obligations under this Agreement that the
Northland Lender Consents shall be in form and substance reasonably satisfactory to Tarragon and
shall be executed and delivered by all applicable parties at such Closing.




          (c) Northland Consents. On or before the date hereof, each of the Northland
Contributors and the Northland Companies has obtained the requisite corporate consents and/or
approvals to the transaction contemplated by this Agreement and to the terms and conditions of this
Agreement and the Related Documents, which consents are listed on Schedule 2.2(c)
(collectively, the “Northland Consents”), and Tarragon has received copies thereof or other
evidence of such Tarragon Consents satisfactory to it.




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          (d) Accuracy of Representations and Warranties. The representations and warranties of
each of the Northland Contributors contained herein shall be true and correct in all material
respects as of the date of this Agreement and at the time of each Closing, other than any of the
foregoing which alone or together do not constitute a Material Adverse Effect.




          (e) Authority. Each of the Northland Contributors shall have delivered to Tarragon
evidence of its authority to execute and deliver this Agreement and all Related Documents and to
consummate the transaction which is the subject of this Agreement and the particular Closing and to
perform its obligations hereunder and under the Related Documents. All such evidence shall be in
form and substance reasonably satisfactory to Tarragon and shall include, without limitation,
organization documents of the Northland Companies and their respective general partners or managing
members, certified by the Secretary of State of the state(s) in which they are organized,
certificates of legal existence and good standing, qualifications to do business, if applicable,
and secretary’s certificates as to resolutions and incumbency.




          (f) Absence of Litigation. Other than as disclosed on Schedule 2.2(f), no
Action shall be pending or threatened against any Northland Contributor, any of the Northland
Companies or any Northland Property, which (i) questions or could reasonably be expected to
question the validity or legality of the transaction contemplated under this Agreement or the
Related Documents or (ii) affects or could reasonably be expected to affect any Northland Property
which alone or together with Actions affecting or reasonably expected to affect other Northland
Properties constitutes a Material Adverse Effect.




          (g) Absence of Material Change and Default. Since the date of this Agreement, there
shall not have been any material adverse change in the condition, financial or otherwise, of any
Northland Company or any Northland Property, which shall constitute a Material Adverse Effect.
Northland shall have complied in all material respects with all of its obligations hereunder, other
than any failures to comply which alone or together do not constitute a Material Adverse Effect.




          (h) Delivery of Northland Documents. At each Closing, each Northland Contributor
shall execute and deliver to Tarragon and/or the New Company, as applicable, the following, in form
and substance satisfactory to Tarragon:





     (i) Assignment of Interests. To the extent not previously assigned to
the New Company, an assignment to the New Company of the interests in the Northland
Companies with respect to which Northland Lender Consents have been obtained, in the
form attached hereto as Exhibit C, or to the extent that any such Company
Interests are shares, duly executed stock powers effecting an assignment of such
            shares;




     (ii) Entity Transfer Certificate(s). Entity transfer certification in
the form described in United States Treasury Regulation Section 1.1445-2(b)(2)
confirming that each applicable transferor of Northland Property (as determined for
purposes of Section 1445 of the Code) is not a “foreign person” as defined in Section
1445(f)(3) of the Code;



26









 






     (iii) Original Documents and Files. To the extent not previously
delivered to the New Company or the Manager and in Northland’s possession or under
its control, originals of any of the Northland Contracts, Northland Leases and
Northland Licenses with respect to the Northland Properties that are the subject of
the applicable Closing, or if the original is not in Northland’s possession or
control, copies thereof. The obligations under this item (iv) may be satisfied by
delivery of such original documents and files to the Management JV under the
Management Agreement;




     (iv) Rent Roll. An updated Northland Rent Roll for each Northland
Property that is the subject of the applicable Closing dated no later than five (5)
days prior to Closing, which updated Northland Rent Roll will be used to identify all
Northland Leases of space at the Northland Property that is the subject of the
applicable Closing for purposes of this Agreement as of the Closing Date and shall
reflect no material adverse changes from the Northland Rent Roll attached hereto as
Schedule 2.2(h)(iv) (the “Northland Rent Roll”), other than any such changes
which alone or together do not constitute a Material Adverse Effect. Each Northland
Contributor shall deliver a certificate dated as of the applicable Closing Date
certifying that the Northland Rent Roll applicable to Contributed Properties is true,
complete and correct (including, without limitation, the amount of security deposits
and description of uncured tenant defaults and delinquencies listed thereon) and
stating whether there exist any events which with the passage of time and/or the
giving of notice would constitute a tenant default under any Northland Lease;




     (v) Debt Instruments. Originals of all of the Northland Debt
Instruments that are the subject of the applicable Closing. The obligations under
this item (v) may be satisfied by delivery of such original documents and files to
the Manager;




     (vi) Limited Liability Company Agreement. At the First Closing, a
counterpart original of the Limited Liability Company Agreement executed by the
applicable Northland Contributors contributing Northland Company Interests to the New
Company at the First Closing and then, thereafter, with respect to those entities
that have not executed the Limited Liability Company Agreement, on the applicable
Closing Date, if any, in which such entity contributes Northland Company Interests;
and




     (vii) Management Agreement. At each Closing, each Northland Contributor
will deliver any documents necessary to evidence the termination of any Affiliate
Management Agreements as to its Contributed Properties and Contributed Companies. In
addition, each Northland Contributor will execute and deliver such other documents as
may be necessary to evidence the termination of the Interim Management Agreement and
the effectiveness of the Management Agreement as to such Contributed Property;



27









 






     (viii) Tax Matters Agreement. At the First Closing, Northland will
cause the New Company to execute and deliver a counterpart original of the Tax
Matters Agreement to each Tarragon Contributor;




     (ix) Title Matters. Customary affidavits sufficient for a title company
to issue any non-imputation endorsements as part of, or to delete any exceptions for
parties in possession (other than tenants under Tenant Leases), mechanic’s or
materialmen’s liens from any new title policy or date-down to existing policies
obtained in connection with any Northland Property, to the extent such new policy or
date-down is required by any lender in connection with obtaining any Lender Consents;




     (x) Closing Statement. A counterpart original of a closing statement
setting forth the closing adjustments and any applicable adjustment to any
Contributor’s Equity Value, as applicable;




     (xi) Transfer Tax Returns. Any and all transfer tax returns,
declarations of value or other documents required under applicable law or as
necessary in connection with the transactions contemplated hereunder; and




     (xii) Other. Such other documents, instruments, consents,
authorizations or approvals as may be required by, and reasonably satisfactory to,
Tarragon or its counsel or any lender or its counsel and that may be reasonably
necessary or desirable to consummate the transactions that are the subject of this
Agreement and the Related Documents and to otherwise effect the agreements of the
parties hereto, including, without limitation, as required under this Section.



          (i) Accuracy of Documents. Each Northland Contributor shall have certified to
Tarragon, severally and not jointly, that all materials delivered pursuant to Section 2.2(h)(iii)
and 2.2(h)(v) are true, correct and complete copies of all such documents in such Northland
Contributor’s respective possession or under its control and, to the knowledge of such Northland
Contributor, as applicable, there are no other material agreements or documents relating to the
subject matter thereof in such Northland Contributor’s possession or under its control.




          (j) Tarragon Restructuring. The Tarragon Restructuring shall have been completed in
whole or, with respect to a Closing at which less than all of the Tarragon Company Interests are
being contributed to the New Company, in respect of the Tarragon Company Interests being
contributed at such Closing; provided, however, that the completion, in whole or in part,
of the Tarragon Restructuring shall only be a condition to Tarragon’s obligation to close hereunder
if the Tarragon Restructuring is not consented to by GE Lender.




          (k) Financing. For the avoidance of doubt, it shall not be a condition to Tarragon’s
obligations to close the transaction contemplated in this Agreement and contribute the Tarragon
Company Interests to the New Company if the Financing (as defined in that certain Loan Commitment
Letter of even date herewith issued by NIC in favor of Tarragon Corporation) is not consummated.




     2.3 Efforts to Satisfy Closing Conditions.



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          (a) Each Contributor shall use its best efforts to obtain the Lender Consents applicable to
the Company Interests being contributed by it and otherwise to satisfy the Closing Conditions
applicable to its obligation to consummate the transaction contemplated hereunder. In furtherance
of the foregoing, each Contributing Group shall deliver to the other Contributing Group any and all
correspondence relating in any way to the Lender Consents simultaneously upon receipt or delivery
thereof. Each Contributing Group shall provide reasonable advance notice to the other Contributing
Group of, and an opportunity for such other Contributing Group to participate in, any calls and/or
meetings relating to obtaining the Lender Consents.




          (b) Tarragon and Northland hereby acknowledge and agree that in the event that the granting of
any Tarragon GE Consent and/or Tarragon Lender Consent is conditioned upon the satisfaction of
certain conditions by Tarragon or the New Company, Northland shall have the right, but not the
obligation, to take any action Northland deems necessary to satisfy such conditions provided that
such action would be permitted to be undertaken by a Majority of the Board of Managers (as defined
in the Limited Liability Company Agreement) as if the Limited Liability Company Agreement were in
effect and the Company Interests and/or Properties that are the subject of the Tarragon GE Consent
were owned by the New Company. Notwithstanding anything in Section 9.4 to the contrary, any costs
incurred by Northland in exercising its rights under this Section 2.3(b) shall be borne by the New
Company and Northland’s proportionate share thereof shall be paid or reimbursed to Northland by the
New Company at the First Closing. Nothing contained in this Section 2.3(b) shall be construed to
relieve Tarragon from its best efforts obligation as described in Section 2.3(a) above, including,
without limitation, any action or inaction on the part of Northland or the Board of Managers of the
New Company under this Section 2.3(b).




          (c) If requested by Tarragon in order to obtain the Tarragon GE Consent, (i) the New Company
will in connection with the First Closing form a New Company wholly owned subsidiary to hold direct
or indirect interests in the Tarragon Companies owning the Tarragon GE Properties and (ii) such New
Company wholly owned subsidiary will grant the GE Lender cross-collateralization through guarantees
and pledges on the same terms and conditions as the Tarragon Companies have granted currently in
connection with the Tarragon GE Assumed Debt.




     2.4 Termination Right. In the event that, despite such best efforts, the Tarragon GE
Consent and the Northland 2/3s Consent have not been obtained (unless all parties have waived
obtaining the Tarragon GE Consent and the Northland 2/3s Consent as a condition to the First
Closing) by September 30, 2008, then on or after such date, Northland and Tarragon shall each have
the right to terminate this Agreement by delivery of notice thereof to the other, and upon any such
termination the parties hereto shall have no further obligations hereunder other than those
obligations that expressly survive termination; provided, however, that neither Northland nor
Tarragon shall be entitled to issue a termination notice hereunder if at such time any member of
its Contributing Group is in material default of its obligations under this Agreement, in which
event the non-defaulting party shall have the rights and remedies set forth below in Article 6.



29









 





ARTICLE
3 — REPRESENTATIONS AND WARRANTIES




     3.1 Disclaimers of Tarragon and Northland. (a) Except as expressly set forth in this
Agreement, including Sections 3.2 and 3.3, each party hereto and the New Company acknowledges and
agrees that each other party or any member, shareholder, partner, director, officer, manager,
person, firm, agent, employee or representative of, or acting or purporting to act on behalf of,
such other party has not made, does not make and specifically negates and disclaims any
representations, warranties, promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or future, of, as to,
concerning or with respect to the Company Interests or the Properties. None of the parties is
liable or bound in any manner by any verbal or written statements, representations or information
pertaining to the Company Interests or the Properties, or the operation thereof, furnished by any
real estate broker or any agent or employee of such party (other than as expressly set forth in the
Agreement). The New Company and each party further acknowledges and agrees that, except as
expressly set forth in this Agreement, to the maximum extent permitted by law, that should any
Closing occur, then the contribution of the Company Interests and the Properties as provided for
herein to the New Company will be made on an “AS IS” condition and basis “WITH ALL FAULTS”. It is
understood and agreed that the Equity Value of each Contributor has been adjusted by prior
negotiation to reflect that the Company Interests are being acquired by the New Company subject to
the foregoing disclaimer and limitation.



          (b) Except as expressly set forth in Sections 3.2 and 3.3, none of the parties makes any
representations or warranties as to the truth, accuracy or completeness of any materials, data or
other information supplied to the other parties or their agents, employees or representatives in
connection with their inspection of the Company Interests or the Properties. It is the parties’
express understanding and agreement that such materials are provided only for the convenience of
the other parties in making their own examination and determination as to whether they wish to
contribute their Company Interests to the New Company, and, in doing so, each party shall rely
exclusively on its own independent investigation and evaluation of every aspect of the Company
Interests and the Properties and not on any materials supplied by any other party, except as may be
expressly set forth below in Sections 3.2 and 3.3.




          (c) Except as otherwise expressly provided in Sections 3.2 and 3.3, each party acknowledges
that any information of any type which such party has received or may receive from any other party,
including, without limitation, any environmental reports and surveys, is furnished on the express
condition that each party shall make an independent verification of the accuracy of such
information, all such information being furnished without any representations or warranty of the
other party whatsoever, whether as to the completeness of such information, its accuracy or
otherwise.




          (d) THE PROVISIONS OF THIS SECTION ARE A MATERIAL PART OF THE CONSIDERATION FOR EACH PARTY’S
ENTERING INTO THIS AGREEMENT, AND SHALL SURVIVE CLOSING.




     3.2 Representations, Warranties and Covenants of Tarragon. Each Tarragon Contributor,
each solely for itself and with respect to the Tarragon Company Interests owned by it and the
Tarragon Companies and Tarragon Property that is the subject of such Tarragon



30









 







Company Interests,
hereby represents, warrants and covenants to each Northland Contributor and the New Company as of
the date of this Agreement and as of each Closing Date as follows: 



          (a) Existence and Power. Such Tarragon Contributor and each of the Tarragon Companies
has been duly formed and is a validly existing corporation, limited partnership or limited
liability company under the laws of the jurisdiction in which it was formed. Such Tarragon
Contributor and each of the Tarragon Companies has all power and authority to enter into this
Agreement and all other documents to be executed and delivered in connection with the transactions
that are the subject of this Agreement, including, without limitation, all Related Documents, to
the extent they are to be executed by such Tarragon Contributor, and to enter into and deliver and
to perform its obligations hereunder and under the Related Documents executed by such Tarragon
Contributor.




          (b) Authorization; No Contravention. The execution and delivery of this Agreement,
the Limited Liability Company Agreement, and the Related Documents executed by such Tarragon
Contributor and the performance of its respective obligations under all of the foregoing
constitutes, and have been duly authorized by all requisite organizational action, including,
without limitation, by obtaining the approvals and consents described in Section 2.1(c).
This Agreement constitutes, and, the Limited Liability Company Agreement when executed will
constitute, and the Related Documents executed by such Tarragon Contributor when executed will
constitute, the valid, legal and binding obligation of such Tarragon Contributor. None of this
Agreement, the Limited Liability Company Agreement, or the Related Documents executed by such
Tarragon Contributor will violate any term of any agreement, order or decree to which it is a party
or by which such Tarragon Contributors is bound or to which any Tarragon Property is subject.
Except for the Tarragon Lender Consents and the Tarragon Consents, no consent of any lender,
partner, shareholder, beneficiary, tenant, creditor, investor, Authority or other Person is
required in order for such Tarragon Contributor to enter into this Agreement and consummate the
transactions contemplated herein; provided, however, that the representation and warranty
contained in this sentence with respect to Ansonia only, shall be limited to Ansonia’s knowledge.
No vote or consent of the shareholders of Tarragon Corporation is required to be obtained by
Tarragon Corporation in order to consummate the transactions contemplated in this Agreement, the
Limited Liability Company Agreement or any Related Documents; provided, however, that the
representation and warranty contained in this sentence with respect to Ansonia only, shall be
limited to Ansonia’s knowledge.




          (c) Descriptive Information; Diligence. All documents delivered by or on behalf of
Tarragon to Northland, or made available to Northland for review in connection with the
transactions contemplated by this Agreement and the Related Documents, including, without
limitation, all Tarragon Contracts and Tarragon Leases, are true, correct and complete copies of
all such documents, as amended or modified, in Tarragon’s possession or control, and there are no
other documents relating to the subject matter thereof. Except as disclosed to Northland in
writing, Tarragon has delivered or made available to Northland all of the material books, records
and files of or relating to the Tarragon Companies and Tarragon Property. The representations and
warranties contained in this Section 3.2(c) with respect to Ansonia only, shall be limited to
Ansonia’s knowledge.




31









 








          (d) Defaults and Assumed Debt. Except to the extent disclosed on Schedule
 3.2(d), neither such Tarragon Contributor nor any Tarragon Company is in monetary or material
nonmonetary default under any of the documents, recorded or unrecorded, encumbering or affecting
the Tarragon Property, including without limitation, the Tarragon
Licenses, the Tarragon Debt Instruments, the Tarragon Leases and the Tarragon Contracts.
Tarragon has delivered or made available to Northland true, complete and accurate copies of all of
the material documents evidencing, securing and otherwise executed in connection with all or any
portion of the Tarragon Assumed Debt. None of the Tarragon Assumed Debt is cross-defaulted,
cross-collateralized, or cross-guaranteed with any indebtedness other than indebtedness that is
included in and as part of the Tarragon Assumed Debt. The representations and warranties contained
in this Section 3.2(d) with respect to Ansonia only, shall be limited to Ansonia’s knowledge.




          (e) Compliance with Law. None of such Tarragon Contributor or any Tarragon Company
has received written notice that all or any portion of the Tarragon Property violates or will
violate in any material respect any law, rule, regulation, ordinance, code or interpretation of
any Authority (collectively, “Laws”) (including, without limitation, those relating to zoning and
the requirements of Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181, et
seq.), or any requirement of any insurer or board of fire underwriters or similar entity, and to
Tarragon’s knowledge, except to the extent disclosed on Schedule 3.2(e), there is no such
material violation. None of such Tarragon Contributor or any Tarragon Company has received written
notice of any special assessment proceedings affecting the Tarragon Property, and to Tarragon’s
knowledge, there is no such assessment pending. To Tarragon’s knowledge, all material licenses,
permits, approvals, variances, easements and rights of way, including, without limitation, proof of
dedication and authorizations all Authorities having jurisdiction over the Tarragon Property
(collectively, the “Tarragon Licenses”) required for the ownership, use or operation of the
Tarragon Property as presently used and operated or otherwise have been validly issued and are in
full force and effect, and none of such Tarragon Contributor or the Tarragon Companies has received
any written notice, and otherwise Tarragon has no knowledge, of any Action relating to the
revocation or modification of any such License. To Tarragon’s knowledge, each of the Tarragon
Licenses required for the ownership, use or operation of the Tarragon Property as presently
operated shall remain in full force and effect and owned by the New Company following the
contribution of the Tarragon Property pursuant to this Agreement. To Tarragon’s knowledge, no
payments are owing to or on behalf of any Authority or are anticipated to be payable to or on
behalf of any Authority pursuant to the Tarragon Licenses required for the ownership, use or
operation of the Tarragon Property as presently operated, other than payments required in
connection with renewals or extensions of the Tarragon Licenses from time to time in the ordinary
course. The representations and warranties contained in this Section 3.2(e) with respect to
Ansonia only, shall be limited to Ansonia’s knowledge.




          (f) Certain Title Matters. To Tarragon’s knowledge, as of the Closing Date (i) the
Tarragon Real Property is or will be owned by one or more of the Tarragon Companies, (ii) the
Tarragon Real Property is not in violation of any of the easements, covenants or restrictions
affecting the Tarragon Property, including, without limitation, the Permitted Exceptions and no
other party is in violation of any such easements, covenants or restrictions, (iii) the Tarragon
Real Property is not dependent upon any adjacent property in order to be used



32









 






for its intended
purposes, including the operation of the Tarragon Real Property, for access, parking, utilities or
any other matter except in circumstances where there is an adequate, legally enforceable and
insurable permanent easement providing the Tarragon Real Property with the required rights of use
of the adjacent property, and (iv) the Tarragon Real Property will be
contributed subject only to the Tarragon Leases, Tarragon Contracts, Tarragon Licenses, the
Permitted Exceptions and any additional leases, contracts and licenses permitted to be entered into
pursuant to Section 7.1. The representations and warranties contained in this Section 3.2(f) with
respect to Ansonia only, shall be limited to Ansonia’s knowledge.




          (g) Personal Property. The list of Tarragon Personal Property attached hereto as
Schedule D-6, is in all material respects an accurate and complete list of all Tarragon
Personal Property. The representations and warranties contained in this Section 3.2(g) with
respect to Ansonia only, shall be limited to Ansonia’s knowledge.




          (h) Leases. The Tarragon Rent Roll lists all Tarragon Leases for any portion of the
Tarragon Real Property or otherwise affecting the Tarragon Real Property, and is accurate and
complete in all material respects. The copies of the Tarragon Leases which have been delivered or
made available to Northland are true, correct and complete, constitute all outstanding Tarragon
Leases and include all subleases relating to the Tarragon Real Property. All brokerage commissions
or compensation in respect of any of the Tarragon Leases have been, or prior to the applicable
Closing will be, paid by the applicable Tarragon Company to the extent due and payable prior to
such Closing. To Tarragon’s knowledge, none of the Tarragon Companies is in material default in
the performance of its obligations under any of the Tarragon Leases (or any agreements incorporated
therein by reference) and there are no circumstances which, with the passage of time or the giving
of notice, or both, would constitute an event of default by landlord under any of the Tarragon
Leases. The representations and warranties contained in this Section 3.2(h) with respect to
Ansonia only, shall be limited to Ansonia’s knowledge.




          (i) Rent Roll. The Tarragon Rent Roll is true, complete and correct as of the date
indicated thereon, and the information set forth therein is true and correct in all material
respects as of the date hereof. Except as set forth on the Rent Roll, as of such date and with
respect to the updated Rent Roll to be delivered at Closing, as of the date of Closing, no tenant
was in arrears in the payment of rent due under the Tarragon Leases beyond any applicable notice
and cure periods. The representations and warranties contained in this Section 3.2(i) with respect
to Ansonia only, shall be limited to Ansonia’s knowledge.




          (j) Options. To Tarragon’s knowledge, none of the Tarragon Real Property is subject
to any option or right of first refusal or first opportunity to acquire any interest in the
Tarragon Property or any portion thereof. Neither such Tarragon Contributor nor any Tarragon
Company has granted to any Person any option or right of first refusal or first opportunity to
acquire any interest in the Tarragon Real Property.




          (k) Contracts. True, complete and correct copies of all Tarragon Contracts have been
provided or made available to Northland. Following each Closing there shall be no material
agreements or other obligations or liabilities with respect to all or any portion of the Tarragon
Property that are binding on the New Company, the Tarragon Companies or the



33









 




Tarragon Property
following such Closing, other than the Tarragon Leases, the Tarragon Contracts, the Permitted
Exceptions, the Tarragon Licenses and such additional leases, contracts and licenses as any
Tarragon Company may enter into in compliance with Section 7.1 after the
date hereof. The representations and warranties contained in this Section 3.2(k) with respect
to Ansonia only, shall be limited to Ansonia’s knowledge.




          (l) Hazardous Substances. Except as set forth on Schedule 3.2(l), neither
such Tarragon Contributor, nor any Affiliate thereof, has received written notice from any
Authority (nor to Tarragon’s knowledge is there any circumstance, event or occurrence) with respect
to, the generation, storage, disposal, discharge, use, handling, removal, treatment or management
of any Hazardous Substances or Hazardous Wastes on or from the Tarragon Property that would have or
result in a Material Adverse Effect.




          (m) Mechanic’s Liens. Except as disclosed on Schedule 3.2(m), all bills and
claims for labor performed and materials furnished to or for the benefit of the Northland Property
have been paid in full to the extent due and payable prior to the date hereof and shall be paid in
full at each Closing. Except as disclosed on Schedule 3.2(m), there are no mechanic’s or
materialmen’s liens (whether or not perfected) on or affecting the Northland Property, and none
will exist at Closing. The representations and warranties contained in this Section 3.2(m) with
respect to Ansonia only, shall be limited to Ansonia’s knowledge.




          (n) Non-Foreign Person. None of the applicable transferors of Tarragon Property (as
determined for the purposes of Section 1445 of the Code) is a “foreign person” as defined in
Section 1445(f)(3) of the Code, nor are any subject to withholding under Section 1445 of the Code.




          (o) Disclosure. The representations and warranties and the statements and information
contained in this Agreement, in the Exhibits and Schedules hereto and in all of the materials
delivered or made available by such Tarragon Contributor to Northland and its counsel, accountants,
appraisers and consultants pursuant to this Agreement or in connection with the due diligence
investigations conducted by or on behalf of Northland in connection with this Agreement do not
contain any untrue statement of a material fact and, when taken together, do not omit to state a
material fact required to be stated therein or necessary in order to make such representations,
warranties, statements or information not misleading in light of the circumstances under which they
were made.




          (p) Financial Statements. All operating statements delivered to Northland by Tarragon
Corporation were prepared by Tarragon Corporation in the ordinary course of business, are complete,
accurate, true and correct copies of such operating statements in the books and records of Tarragon
Corporation and its subsidiaries, and to such Tarragon Contributor’s knowledge such operating
statements fairly reflect in all material respects the results of the operation of the Tarragon
Property for the periods covered. Since the date of the most recent internally prepared operating
statements referred to above, and except as otherwise expressly contemplated by this Agreement
(including the Tarragon Restructuring) (i) there has been no material adverse change in the
condition, financial or otherwise, of the Tarragon Property or the Tarragon Companies on a
consolidated basis, taken as a whole, whether or not arising in the ordinary course of business and
(ii) there has been no material change in the ownership of the



34









 




Tarragon Companies or any increase
in the indebtedness of the Tarragon Companies. The calendar year 2008 budgets delivered to
Northland by Tarragon reflect Tarragon’s good faith estimate, consistent with past practice, for
the operating results for the Tarragon Properties for
the 2008 calendar year. The representations and warranties in this Section 3.2(p) with
respect to Ansonia only, shall be limited to Ansonia’s knowledge.




          (q) Pending Actions; Labor Disputes. There is no existing or, to Tarragon’s
knowledge, threatened Action of any kind involving such Tarragon Contributor, any Tarragon Company
or the Tarragon Property which would have a Material Adverse Effect on any Tarragon Company or the
Tarragon Property. To Tarragon’s knowledge, there are no labor troubles or complaints of unfair
labor practices pending with respect to any Person which could materially adversely affect the
Tarragon Property.




          (r) Taxes.





     (i) Except as disclosed on Schedule 3.2(r)(i), all Tax or information
returns required to be filed on or before the date hereof by or on behalf of such
Tarragon Contributor or the Tarragon Companies (x) have been filed through the date
hereof or will be filed on or before the date when due in accordance with all
applicable Laws and (y) there is no Action pending against or with respect to such
Tarragon Contributor, the Tarragon Companies or the Tarragon Property in respect of
any Tax nor is any claim for additional Tax asserted by any Tax Authority. All real
estate Taxes and assessments relating to the Tarragon Real Property and due and
payable have been paid and copies of most recent tax bills have been delivered or
made available to Northland. All other Taxes of the Tarragon Companies that are due
and payable have been paid.




     (ii) There are no liens for Taxes with respect to any portion of the Tarragon
Property, other than liens for Taxes that are not yet due or payable.




     (iii) On each Closing Date, after giving effect to the Tarragon Restructuring,
each Tarragon Company is and has always been classified for federal income tax
purposes as either a partnership or an entity that is disregarded as separate from
its owner.




     (iv) On each Closing Date, after giving effect to the Tarragon Restructuring, no
Tarragon Company has any liability for the Taxes of any person under Treasury
Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign
law), as a transferee or successor, by contract or otherwise.




     (v) Each Tarragon Contributor acknowledges that none of Northland, the New
Company or any Affiliate shall assume any responsibility for the Tax consequences of
the transactions contemplated by this Agreement, the Limited Liability Company
Agreement and the Related Documents to such Tarragon Contributor, other than to agree
to report the transactions for Federal and State Tax purposes consistently with the
manner agreed to by Northland and such Tarragon Contributor.



35









 





          (s) Insurance. Tarragon Corporation has delivered or made available to Northland all
copies of all insurance policies and arrangements with respect to the Tarragon Property.




          (t) Patriot Act. Neither such Tarragon Contributor, nor any Tarragon Company, nor any
member, partner or shareholder of any Tarragon Company, nor, to Tarragon’s knowledge, any person or
entity with actual authority to direct the actions of any member, partner or shareholder of
Tarragon or any Tarragon Company, (i) are named on any list of persons, entities and governments
issued by the Office of Foreign Assets Control of the United States Department of the Treasury
(“OFAC”) pursuant to Executive Order 13224 – Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism (“Executive Order 13224”), as in
effect on the date hereof, or any similar list known to Seller or publicly issued by OFAC or any
other department or agency of the United States of America (collectively, the “OFAC Lists”), (ii)
are included in, owned by, controlled by, knowingly acting for or on behalf of, knowingly providing
assistance, support, sponsorship, or services of any kind to, or otherwise knowingly associated
with any of the persons, entities or governments referred to or described in the OFAC Lists, or
(iii) has knowingly conducted business with or knowingly engaged in any transaction with any
person, entity or government named on any of the OFAC Lists or any person, entity or government
included in, owned by, controlled by, acting for or on behalf of, providing assistance, support,
sponsorship, or services of any kind to, or, to Tarragon’s knowledge, otherwise associated with any
of the persons, entities or governments referred to or described in the OFAC Lists.
Notwithstanding the foregoing, however, the representations set forth in this Section 3.1(t) shall
not apply to the publicly traded shares of Tarragon Corporation and persons holding such shares.




          (u) Deposits. Neither such Tarragon Contributor nor any Tarragon Company has received
written notice of any violations of the requirements of any Law relating to the holding,
application or collection of security deposits in respect of the Tarragon Leases.




          (v) Tarragon Companies. The only activities conducted by the Tarragon Companies since
their inception have been the construction, ownership and operation of the Tarragon Properties or
other properties similar in type and nature to the Tarragon Properties, except as set forth on
Schedule 3.2(v). None of the Tarragon Companies has any liabilities or obligations other
than those relating directly to the ownership or operation of the Tarragon Property owned by it.
On the date hereof and at Closing, (i) the Tarragon Company Interests will represent the only
issued and outstanding equity interests in the Tarragon Companies, (ii) no persons other than the
Tarragon Contributors will have the option, conversion right or other right to receive any equity
interest in the Tarragon Companies and (iii) the Tarragon Company Interests to be contributed by
each Tarragon Contributor will be owned by such Tarragon Contributor free and clear of all liens
and encumbrances.




          (w) Condominium Conversion. None of such Tarragon Contributor or any Tarragon Company
has made any filing with the applicable Authority with respect to the conversion of any of the
Tarragon Properties to a condominium.




          (x) Solvency. None of such Tarragon Contributor or any Tarragon Company has: (i) made
a general assignment for the benefit of creditors; (ii) filed any voluntary petition in




36









 







bankruptcy
or suffered the filing of any involuntary petition by such Tarragon Contributor’s or any Tarragon
Company’s creditors; (iii) suffered the appointment of a receiver to take possession of all or
substantially all of such Tarragon Contributor’s or any Tarragon Company’s assets, (iv) suffered
the attachment or other judicial seizure of all, or substantially all, of such Tarragon
Contributor’s or any Tarragon Company’s assets, (v) admitted in writing such Tarragon
Contributor’s or any Tarragon Company’s inability to pay its debts as they come due; or (vi) made
an offer of settlement, extension, or composition to its creditors generally.




          (y) Securities Representations.





     (i) Such Tarragon Contributor is an “accredited investor,” as such term is
defined in Rule 501(a) of Regulation D under the Securities Act.




     (ii) No such Tarragon Contributor, or any of such Tarragon Contributor’s
Affiliates, nor any Person acting on such Tarragon Contributor’s or Tarragon
Contributor’s Affiliate’s behalf, was offered the Common Units through any form of
“general solicitation or general advertising” (within the meaning of Regulation D
under the Securities Act) in connection with any offer or sale of the Common Units.




     (iii) Such Tarragon Contributor understands and acknowledges that (i) no public
market exists for any of the Common Units and that it is unlikely that a public
market will ever exist for the Common Units, (ii) such Tarragon Contributor is
purchasing the Common Units for its own account, for investment and not with a view
to, or for offer or sale in connection with, any distribution thereof in violation of
the Securities Act or other applicable securities laws, and (iii) such Tarragon
Contributor is aware that it may be required to bear the economic risk of an
investment in the Common Units for an indefinite period of time.




     (iv) Such Tarragon Contributor has consulted with its own advisers as to the
financial, tax, legal and related matters concerning an investment in the Common
Units and on that basis believes that an investment in the Common Units is suitable
and appropriate for such Tarragon Contributor. Such Tarragon Contributor and its
advisers have such knowledge and experience in financial, tax and business matters so
as to enable such Tarragon Contributor to utilize the information made available to
such Tarragon Contributor in connection with the investment contemplated hereby to
evaluate the merits and risks of an investment in the New Company and to make an
informed investment decision with respect thereto. Such Tarragon Contributor is
familiar with the type of investment that the Common Units constitutes and recognizes
that an investment in the New Company involves substantial risks, including
significant risk of loss, including the loss of the entire amount of such investment.




     (v) Such Tarragon Contributor hereby acknowledges that the Common Units are not
and will not be registered under the Securities Act or registered or qualified for
sale pursuant to applicable securities or Blue Sky laws of any state or foreign
jurisdiction by reason of a specific exemption from the registration



37









 






requirements
thereof, the availability of which depends upon, among other things, the bona fide
nature of the investment intent and the accuracy of the each Tarragon Contributor’s
representations, warranties and covenants set forth herein. Each Tarragon
Contributor further acknowledges that the Common Units will be subject
to transfer restrictions and may not be offered, sold, transferred, pledged,
hypothecated or otherwise assigned, in whole or in part, without compliance with
applicable federal securities laws and the applicable securities or Blue Sky laws of
any state or foreign jurisdiction by the transferor and the transferee (including,
without limitation, the delivery of investment representation letters and legal
opinions reasonably satisfactory to the New Company).



     For purposes of this Agreement where the term “to Tarragon’s knowledge,” or a phrase of
similar import, is used, such term shall mean, with respect to representations and warranties made
by Tarragon Corporation, the “current actual knowledge” (as defined below) of the following
designees of Tarragon: William S. Friedman, Robert Rothenberg and Eileen Swenson. For purposes of
this Agreement where the term “to Tarragon’s knowledge,” or a phrase of similar import, is used,
such term shall mean, with respect to representations and warranties made by Ansonia, the “current
actual knowledge” (as defined below) of the following designees of Ansonia: Robert Rothenberg and
Richard Frary. As used herein, the term “current actual knowledge” shall mean only the actual,
current, conscious and not constructive, imputed or implied knowledge of such designee, without
having made a review of the files or other inquiry. Anything herein to the contrary
notwithstanding, such designee shall not have any personal liability or obligation whatsoever with
respect to any of the matters set forth in this Agreement or any of the representations herein
being or becoming untrue, inaccurate or incomplete in any respect.



     3.3 Representations, Warranties and Covenants of Northland. Each Northland
Contributor, each solely for itself and with respect to the Northland Company Interests owned by it
and the Northland Companies and Northland Property that is the subject of such Northland Company
Interests, hereby represents, warrants and covenants to each Tarragon Contributor and the New
Company as of the date of this Agreement and as of each Closing Date as follows: 



          (a) Existence and Power. Such Northland Contributor and each of the Northland
Companies has been duly formed and is a validly existing corporation, limited partnership or
limited liability company under the laws of the jurisdiction in which it was formed. Such
Northland Contributor and each of the Northland Companies has all power and authority to enter into
this Agreement and all other documents to be executed and delivered in connection with the
transactions that are the subject of this Agreement, including, without limitation, all Related
Documents, to the extent they are to be executed by such Northland Contributor and any Northland
Company, and to enter into and deliver and to perform its obligations hereunder and under the
Related Documents executed by such Northland Contributor or any Northland Company.




          (b) Authorization; No Contravention. The execution and delivery of this Agreement,
the Limited Liability Company Agreement, and the Related Documents executed by such Northland
Contributor or any Northland Companies and the performance of its respective obligations under all
of the foregoing constitutes, and have been duly authorized by all requisite




38









 







organizational action,
including, without limitation, by obtaining the approvals and consents described in
Section 2.2(c). This Agreement constitutes, and, the Limited Liability Company Agreement
when executed will constitute, and the Related Documents executed by such Northland Contributor or
any Northland Company when executed will constitute, the valid, legal
and binding obligation of such Northland Contributor or applicable Northland Company. None of
this Agreement, the Limited Liability Company Agreement, or the Related Documents executed by such
Northland Contributor or any Northland Company will violate any term of any agreement, order or
decree to which it is a party or by which such Northland Contributors or any Northland Company is
bound or to which any Northland Property is subject. Except for the Northland Lender Consents and
the Northland Consents, no consent of any lender, partner, shareholder, beneficiary, tenant,
creditor, investor, Authority or other Person is required in order for such Northland Contributor
to enter into this Agreement and consummate the transactions contemplated herein.




          (c) Descriptive Information; Diligence. All documents delivered by or on behalf of
Northland to Tarragon, or made available to Tarragon for review in connection with the transactions
contemplated by this Agreement and the Related Documents, including, without limitation, all
Northland Contracts and Northland Leases, are true, correct and complete copies of all such
documents, as amended or modified, in Northland’s possession or control, and there are no other
documents relating to the subject matter thereof. Except as disclosed to Tarragon in writing,
Northland has delivered or made available to Tarragon all of the material books, records and files
of or relating to the Northland Companies and Northland Property.




          (d) Defaults and Assumed Debt. Except to the extent disclosed on Schedule
3.3(d), neither such Northland Contributor nor any Northland Company is in monetary or material
nonmonetary default under any of the documents, recorded or unrecorded, encumbering or affecting
the Northland Property, including without limitation, the Northland Licenses, the Northland Debt
Instruments, the Northland Leases and the Northland Contracts. Northland has delivered or made
available to Tarragon true, complete and accurate copies of all of the material documents
evidencing, securing and otherwise executed in connection with all or any portion of the Northland
Assumed Debt. None of the Northland Assumed Debt is cross-defaulted, cross-collateralized, or
cross-guaranteed with any indebtedness other than indebtedness that is included in and as part of
the Northland Assumed Debt.




          (e) Compliance with Law. None of such Northland Contributor or any Northland Company
has received written notice that all or any portion of the Northland Property violates or will
violate in any material respect any law, rule, regulation, ordinance, code or interpretation of
any Authority (collectively, “Laws”) (including, without limitation, those relating to zoning and
the requirements of Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181, et
seq.), or any requirement of any insurer or board of fire underwriters or similar entity, and to
Northland’s knowledge, except to the extent disclosed on Schedule 3.3(e), there is no such
material violation. None of such Northland Contributor or any Northland Company has received
written notice of any special assessment proceedings affecting the Northland Property, and to
Northland’s knowledge, there is no such assessment pending. To Northland’s knowledge, all material
licenses, permits, approvals, variances, easements and rights of way, including, without
limitation, proof of dedication and authorizations all Authorities having jurisdiction over the
Northland Property (collectively, the “Northland Licenses”)




39









 







required for the ownership, use or
operation of the Northland Property as presently used and operated or otherwise have been validly
issued and are in full force and effect, and none of such Northland Contributor or the Northland
Companies has received any written notice, and otherwise Northland has no knowledge, of any Action
relating to the revocation or modification
of any such License. To Northland’s knowledge, each of the Northland Licenses required for
the ownership, use or operation of the Northland Property as presently operated shall remain in
full force and effect and owned by the New Company following the contribution of the Northland
Property pursuant to this Agreement. To Northland’s knowledge, no payments are owing to or on
behalf of any Authority or are anticipated to be payable to or on behalf of any Authority pursuant
to the Northland Licenses required for the ownership, use or operation of the Northland Property as
presently operated, other than payments required in connection with renewals or extensions of the
Northland Licenses from time to time in the ordinary course.




          (f) Certain Title Matters. To Northland’s knowledge, and except as may be shown on
any title reports or surveys delivered or made available to Tarragon, as of the Closing Date (i)
the Northland Real Property is or will be owned by one or more of the Northland Companies, (ii) the
Northland Real Property is not in violation of any of the easements, covenants or restrictions
affecting the Northland Real Property, including, without limitation, the Permitted Exceptions and
no other party is in violation of any such easements, covenants or restrictions, (iii) the
Northland Real Property is not dependent upon any adjacent property in order to be used for its
intended purposes, including the operation of the Northland Real Property, for access, parking,
utilities or any other matter except in circumstances where there is an adequate, legally
enforceable and insurable permanent easement providing the Northland Real Property with the
required rights of use of the adjacent property, and (iv) the Northland Real Property will be
contributed subject only to the Northland Leases, Northland Contracts, Northland Licenses, the
Permitted Exceptions and any additional leases, contracts and licenses permitted to be entered into
pursuant to Section 7.1.




          (g) Personal Property. The list of Northland Personal Property attached hereto in
Schedules D-1 through D-5, is in all material respects an accurate and complete
list of all Northland Personal Property.




          (h) Leases. The Northland Rent Roll lists all Northland Leases for any portion of the
Northland Real Property or otherwise affecting the Northland Real Property, and is accurate and
complete in all material respects. The copies of the Northland Leases which have been delivered or
made available to Tarragon are true, correct and complete, constitute all outstanding Northland
Leases and include all subleases relating to the Northland Real Property. All brokerage
commissions or compensation in respect of any of the Northland Leases have been, or prior to the
applicable Closing will be, paid by the applicable Northland Company to the extent due and payable
prior to such Closing. To Northland’s knowledge, none of the Northland Companies is in material
default in the performance of its obligations under any of the Northland Leases (or any agreements
incorporated therein by reference) and there are no circumstances which, with the passage of time
or the giving of notice, or both, would constitute an event of default by landlord under any of the
Northland Leases.




          (i) Rent Roll. The Northland Rent Roll is true, complete and correct as of the date
indicated thereon, and the information set forth therein is true and correct in all material




40









 







respects as of the date hereof. Except as set forth on the arrearages report appended to the Rent
Roll, as of such date and with respect to the updated Rent Roll to be delivered at closing, as of
the date of Closing, no tenant was in arrears in the payment of rent due under the Northland Leases
beyond any applicable notice and cure periods.




          (j) Options. To Northland’s knowledge, none of the Northland Real Property is subject
to any option or right of first refusal or first opportunity to acquire any interest in the
Northland Property or any portion thereof. Neither such Northland Contributor nor any Northland
Company has granted to any Person any option or right of first refusal or first opportunity to
acquire any interest in the Northland Real Property.




          (k) Contracts. True, complete and correct copies of all Northland Contracts have been
provided or made available to Tarragon. Following each Closing there shall be no material
agreements or other obligations or liabilities with respect to all or any portion of the Northland
Property that are binding on the New Company, the Northland Companies or the Northland Property
following such Closing, other than the Northland Leases, the Northland Contracts, the Permitted
Exceptions, the Northland Licenses and such additional leases, contracts and licenses as any
Northland Company may enter into in compliance with Section 7.1 after the date hereof.




          (l) Hazardous Substances. Except as set forth on Schedule 3.3(l), neither
such Northland Contributor, nor any Affiliate thereof has received written notice from any
Authority (nor to Northland’s knowledge is there any circumstance, event or occurrence) with
respect to the generation, storage, disposal, discharge, use, handling, removal, treatment or
management of any Hazardous Substances or Hazardous Wastes on or from the Northland Property that
would have or result in a Material Adverse Effect.




          (m) Mechanic’s Liens. Except as disclosed on Schedule 3.3(m), all bills and
claims for labor performed and materials furnished to or for the benefit of the Northland Property
have been paid in full to the extent due and payable prior to the date hereof and shall be paid in
full at each Closing. Except as disclosed on Schedule 3.3(m), there are no mechanic’s or
materialmen’s liens (whether or not perfected) on or affecting the Northland Property, and none
will exist at Closing.




          (n) Non-Foreign Person. None of the applicable transferors of Northland Property (as
determined for the purposes of Section 1445 of the Code) is a “foreign person” as defined in
Section 1445(f)(3) of the Code, nor are any subject to withholding under Section 1445 of the Code.




          (o) Disclosure. The representations and warranties and the statements and information
contained in this Agreement, in the Exhibits and Schedules hereto and in all of the materials
delivered or made available by such Northland Contributor to Tarragon and its counsel, accountants,
appraisers and consultants pursuant to this Agreement or in connection with the due diligence
investigations conducted by or on behalf of Tarragon in connection with this Agreement do not
contain any untrue statement of a material fact and, when taken together, do not omit to state a
material fact required to be stated therein or necessary in order to make such




41









 







representations,
warranties, statements or information not misleading in light of the circumstances under which they
were made.




          (p) Financial Statements. All operating statements delivered to Tarragon by each
applicable Northland Contributor were prepared by such Northland Contributor in the ordinary course
of business, are complete, accurate, true and correct copies of such operating
statements in the books and records of such Northland Contributor and its subsidiaries, and to
such Northland Contributor’s knowledge such operating statements fairly reflect in all material
respects the results of the operation of the Northland Property for the periods covered. Since the
date of the most recent internally prepared operating statements referred to above, and except as
otherwise expressly contemplated by this Agreement, (i) there has been no material adverse change
in the condition, financial or otherwise, of the Northland Property or the Northland Companies on a
consolidated basis, taken as a whole, whether or not arising in the ordinary course of business and
(ii) there has been no material change in the ownership of the Northland Companies or any increase
in the indebtedness of the Northland Companies. The calendar year 2008 budgets delivered to
Tarragon by Northland reflect Northland’s good faith estimate, consistent with past practice, for
the operating results for the Northland Properties for the 2008 calendar year.




          (q) Pending Actions; Labor Disputes. There is no existing or, to Northland’s
knowledge, threatened Action of any kind involving such Northland Contributor, any Northland
Company or the Northland Property which would have a Material Adverse Effect on any Northland
Company or the Northland Property. To Northland’s knowledge, there are no labor troubles or
complaints of unfair labor practices pending with respect to any Person which could materially
adversely affect the Northland Property.




          (r) Taxes.





     (i) All Tax or information returns required to be filed on or before the date
hereof by or on behalf of such Northland Contributor or the Northland Companies (x)
have been filed through the date hereof or will be filed on or before the date when
due in accordance with all applicable Laws and (y) there is no Action pending against
or with respect to such Northland Contributor, the Northland Companies or the
Northland Property in respect of any Tax nor is any claim for additional Tax asserted
by any Tax Authority. All real estate Taxes and assessments relating to the
Northland Real Property and due and payable have been paid and copies of most recent
tax bills have been delivered or made available to Tarragon. All other Taxes of the
Northland Companies that are due and payable have been paid.




     (ii) There are no liens for Taxes with respect to any portion of the Northland
Property, other than liens for Taxes that are not yet due or payable.




     (iii) Except as disclosed on Schedule 3.3(r), each Northland Company is
and has always been classified for federal income tax purposes as either a
partnership or an entity that is disregarded as separate from its owner.



42









 






     (iv) No Northland Company has any liability for the Taxes of any person under
Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or
foreign law), as a transferee or successor, by contract or otherwise.




     (v) Each Northland Contributor acknowledges that none of Tarragon, the New
Company or any Affiliate shall assume any responsibility for the Tax
consequences of the transactions contemplated by this Agreement, the Limited
Liability Company Agreement and the Related Documents to such Northland Contributor,
other than to agree to report the transactions for Federal and State Tax purposes
consistently with the manner agreed to by Northland and such Tarragon Contributor.



          (s) Insurance. Northland Corporation has delivered or made available to Tarragon all
copies of all insurance policies and arrangements with respect to the Northland Property.




          (t) Patriot Act. Neither such Northland Contributor, nor any Northland Company, nor
any member, partner or shareholder of any Northland Company, nor, to Northland’s knowledge, any
person or entity with actual authority to direct the actions of any member, partner or shareholder
of Northland or any Northland Company, (i) are named on any list of persons, entities and
governments issued by the Office of Foreign Assets Control of the United States Department of the
Treasury (“OFAC”) pursuant to Executive Order 13224 – Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism (“Executive Order
13224”), as in effect on the date hereof, or any similar list known to Seller or publicly issued by
OFAC or any other department or agency of the United States of America (collectively, the “OFAC
Lists”), (ii) are included in, owned by, controlled by, knowingly acting for or on behalf of,
knowingly providing assistance, support, sponsorship, or services of any kind to, or otherwise
knowingly associated with any of the persons, entities or governments referred to or described in
the OFAC Lists, or (iii) has knowingly conducted business with or knowingly engaged in any
transaction with any person, entity or government named on any of the OFAC Lists or any person,
entity or government included in, owned by, controlled by, acting for or on behalf of, providing
assistance, support, sponsorship, or services of any kind to, or, to Northland’ knowledge,
otherwise associated with any of the persons, entities or governments referred to or described in
the OFAC Lists.




          (u) Deposits. Neither such Northland Contributor nor any Northland Company has
received written notice of any violations of the requirements of any Law relating to the holding,
application or collection of security deposits in respect of the Northland Leases.




          (v) Northland Companies. Except as set forth on Schedule 3.3(v), the only
activities conducted by the Northland Companies since their inception have been the construction,
ownership and operation of the Northland Properties. None of the Northland Companies has any
liabilities or obligations other than those relating directly to the ownership or operation of the
Northland Property owned by it. Northland Portfolio is the sole holder of the Northland Portfolio
Company Interests, and the Northland Portfolio Company Interests are free and clear of all liens
and encumbrances. Northland Fund I is the sole holder of the Northland Fund I Company Interests,
and the Northland Fund I Company Interests are free and clear of all




43









 







liens and encumbrances.
Northland Fund II is the sole holder of the Northland Fund II Company Interests, and the Northland
Fund II Company Interests are free and clear of all liens and encumbrances. Northland Fund III is
the sole holder of the Northland Fund III Company Interests, and the Northland Fund III Company
Interests are free and clear of all liens and encumbrances. NIC is the sole holder of the NIC
Company Interests, and the NIC Company Interests are free and clear of all liens and encumbrances.
Northland Austin is the sole holder of
the Northland Austin Company Interests, and the Northland Austin Company Interests are free
and clear of all liens and encumbrances. Austin Investors is the sole holder of the Austin
Investors Company Interests, and the Austin Investors Company Interests are free and clear of all
liens and encumbrances. Drake is the sole holder of the Drake Company Interests, and the Drake
Company Interests are free and clear of all liens and encumbrances. Tatstone is the sole holder of
the Tatstone Company Interests, and the Tatstone Company Interests are free and clear of all liens
and encumbrances.




          (w) Condominium Conversion. Except as disclosed on Schedule 3.3(w), none of
such Northland Contributor or any Northland Company has made any filing with the applicable
Authority with respect to the conversion of any of the Northland Properties to a condominium.




          (x) Solvency. None of such Northland Contributor or any Northland Company has: (i)
made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in
bankruptcy or suffered the filing of any involuntary petition by such Northland Contributor’s or
any Northland Company’s creditors; (iii) suffered the appointment of a receiver to take possession
of all or substantially all of such Northland Contributor’s or any Northland Company’s assets, (iv)
suffered the attachment or other judicial seizure of all, or substantially all, of such Northland
Contributor’s or any Northland Company’s assets, (v) admitted in writing such Northland
Contributor’s or any Northland Company’s inability to pay its debts as they come due; or (vi) made
an offer of settlement, extension, or composition to its creditors generally.




          (y) Securities Representations.





     (i) Such Northland Contributor is an “accredited investor,” as such term is
defined in Rule 501(a) of Regulation D under the Securities Act.




     (ii) No such Northland Contributor, or any of such Northland Contributor’s
Affiliates, nor any Person acting on such Northland Contributor’s or Northland
Contributor’s Affiliate’s behalf, was offered the Common Units through any form of
“general solicitation or general advertising” (within the meaning of Regulation D
under the Securities Act) in connection with any offer or sale of the Common Units.




     (iii) Such Northland Contributor understands and acknowledges that (i) no public
market exists for any of the Common Units and that it is unlikely that a public
market will ever exist for the Common Units, (ii) such Northland Contributor is
purchasing the Common Units for its own account, for investment and not with a view
to, or for offer or sale in connection with, any distribution



44









 






thereof in violation of
the Securities Act or other applicable securities laws, and (iii) such Northland
Contributor is aware that it may be required to bear the economic risk of an
investment in the Common Units for an indefinite period of time.




     (iv) Such Northland Contributor has consulted with its own advisers as to the
financial, tax, legal and related matters concerning an investment in the Common
Units and on that basis believes that an investment in the Common Units is suitable
and appropriate for such Northland Contributor. Such Northland Contributor and its
advisers have such knowledge and experience in financial, tax and business matters so
as to enable such Northland Contributor to utilize the information made available to
such Northland Contributor in connection with the investment contemplated hereby to
evaluate the merits and risks of an investment in the New Company and to make an
informed investment decision with respect thereto. Such Northland Contributor is
familiar with the type of investment that the Common Units constitutes and recognizes
that an investment in the New Company involves substantial risks, including
significant risk of loss, including the loss of the entire amount of such investment.




     (v) Such Northland Contributor hereby acknowledges that the Common Units are not
and will not be registered under the Securities Act or registered or qualified for
sale pursuant to applicable securities or Blue Sky laws of any state or foreign
jurisdiction by reason of a specific exemption from the registration requirements
thereof, the availability of which depends upon, among other things, the bona fide
nature of the investment intent and the accuracy of the each Northland Contributor’s
representations, warranties and covenants set forth herein. Each Northland
Contributor further acknowledges that the Common Units will be subject to transfer
restrictions and may not be offered, sold, transferred, pledged, hypothecated or
otherwise assigned, in whole or in part, without compliance with applicable federal
securities laws and the applicable securities or Blue Sky laws of any state or
foreign jurisdiction by the transferor and the transferee (including, without
limitation, the delivery of investment representation letters and legal opinions
reasonably satisfactory to the New Company).



     For purposes of this Agreement where the term “to Northland’s knowledge,” or a phrase of
similar import, is used, such term shall mean, with respect to representations and warranties made
by Northland Corporation, the “current actual knowledge” (as defined below) of the following
designees of Northland: Lawrence R. Gottesdiener and Steven P. Rosenthal. As used herein, the
term “current actual knowledge” shall mean only the actual, current, conscious and not
constructive, imputed or implied knowledge of such designee, without having made a review of the
files or other inquiry. Anything herein to the contrary notwithstanding, such designee shall not
have any personal liability or obligation whatsoever with respect to any of the matters set forth
in this Agreement or any of the representations herein being or becoming untrue, inaccurate or
incomplete in any respect.



     3.5 Survival. The representations and warranties of the Tarragon Contributors and the
Northland Contributors set forth in this Article 3 and anywhere else in this Agreement or in



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any
Related Document (unless expressly stated otherwise) shall survive the Closing of the transaction
contemplated in this Agreement and the delivery of the Assignment and Assumption of Company
Interests by each of Tarragon and Northland for a period of fifteen (15) months from and after the
last Closing Date. Consequently, each of the Tarragon Contributors and the Northland Contributors
stipulates and agrees that from and after such fifteen
(15) month period, it is entitled to and agrees to claim no damages of any kind with respect to any alleged
breach and/or violation of any of such representations and/or warranties of the other party, other
than as to claims with respect to which it has given the other party and the New Company written
notice within such fifteen (15) month period. Notwithstanding the foregoing, each of the Tarragon
Contributors and the Northland Contributors hereby expressly waives, relinquishes and releases any
right or remedy available to it at law, in equity, under this Agreement or otherwise to make a
claim against the other party for damages that it may incur, as the result of any of the
representations or warranties of the other party being untrue, inaccurate or incorrect if (a) the
party claiming such breach knew or is deemed to know that such representation or warranty was
untrue, inaccurate or incorrect at the time of the Closing (and for such purpose, (i) the knowledge
of each Northland Contributor will be deemed known by each other member of the same Northland
Contributing Group, (ii) the knowledge of each Tarragon Contributor will be deemed known by each
other member of the same Tarragon Contributing Group, (iii) the knowledge of Northland will be
deemed known by the New Company in respect of any claim against any Tarragon Contributor, but not
otherwise, (iv) the knowledge of Tarragon will be deemed known by the New Company in respect of any
claim against any Northland Contributor, but not otherwise and (v) the knowledge or deemed
knowledge of the New Company will not limit the right of any Contributor to bring a direct claim
under Section 5.5, provided that the Contributor does not have and is not deemed to have such
knowledge), or (b) the damages of the party claiming such breach as a result of such
representations or warranties being untrue, inaccurate or incorrect are reasonably estimated to
aggregate less than one percent (1%) of the Equity Value of the applicable Contributor party
alleged to be liable for such breach as of the date of the claim; provided, however, that in the
event that the damages of a party exceed such one percent (1%) threshold, such party will be
entitled to claim for all its damages (i.e. from the first dollar of damage, regardless of such
threshold). Notwithstanding anything to the contrary set forth herein, the aggregate liability of
each Contributor under the representations and warranties set forth in this Article 3, together
with all of the indemnification obligations of such Contributor provided in this Agreement or in
any Related Document, shall not exceed fifty percent (50%) of the Equity Value of such Contributor.
The remedies set forth in this Section 3.5, Article 5 and Article 6 comprise the sole and
exclusive remedies of a party hereto (or any person claiming by, through or under such party,
including any Indemnitee) in respect of any breach of the representations, warranties or covenants
set forth in this Agreement or in any Related Document.




     3.6 Bermuda Island and Northgate. Notwithstanding anything to the contrary herein or
in the Northgate Purchase Agreement or the Bermuda Island Purchase Agreement, if the Bermuda Island
property and/or the Northgate property become additional “Northland Properties” hereunder and/or
Middletown Tarragon LLC becomes an additional “Northland Company” hereunder, and/or the membership
interests in Middletown Tarragon LLC become additional “Northland Company Interests”, each as
described above in Section 1.2, then none of the representations or warranties set forth in this
Article 3 will apply to such additional Northland Properties, Northland Companies or Northland
Company Interests nor shall any of the Northland Contributors be deemed to have made any such
representations and warranties with



46









 




respect thereto, except to the extent that any such
representations or warranties would, if made, have been breached by actions or omissions taken or
omitted to be taken by Northland at any time after consummating such purchase under the Northgate
Purchase Agreement or the Bermuda Island Purchase Agreement, as applicable, and such breach results
in a Material Adverse Effect.




ARTICLE
4 — CLOSING ADJUSTMENTS




     4.1 Prorations. At each Closing, the following shall be apportioned and adjusted
between each Contributor, on the one hand, and the New Company, on the other hand, as of 11:59 p.m.
(Eastern Standard Time) as of the last day of the calendar month immediately preceding the month in
which the applicable Closing occurs (the “Prorations Date”), with the Contributor responsible for
matters relating to its Contributed Properties for the period prior to the Prorations Date, and the
New Company responsible for matters relating to such Contributed Properties from and after the
Prorations Date, except as otherwise specified:



          (a) rents and additional rents under or in respect of Tenant Leases, as, when and to the
extent actually collected, on the basis of the period for which payable under the applicable Tenant
Lease and apportioned on the basis of the actual number of days in such period, along with
security, pet, key and any other deposits held by the landlord under the Tenant Leases;




          (b) any real property taxes, water and sewer rents and charges; any tax credit or refund
collected as a result of any real property tax appeal; vault taxes or charges, elevator inspection
charges and other like and similar municipal taxes and charges, each on the basis of the fiscal
year or other period for which assessed, and apportioned upon the basis of the actual number of
days in such year or period. If actual tax bills are not available, taxes shall be apportioned
based on the most recent tax bills available, with a post-Closing adjustment to be made as soon as
tax bills for the fiscal year during which the Closing occurs become available;




          (c) subject to Section 4.5, electric, gas, steam and other public utility charges for services
furnished to the Contributed Properties, on the basis of the actual number of days in any period
covered by the charge being apportioned (except that no apportionment shall be made for any of such
items as are furnished and charged by the applicable utility company directly to tenants under the
Tenant Leases);




          (d) all charges under the Contracts, on the basis of the actual number of days in any period
covered by the charge being apportioned. The Tarragon Contributors with respect to the Tarragon
Properties, and the Northland Contributors with respect to the Northland Properties shall bear the
cost of all installments or amounts of items which are being apportioned under this Section which
became due and payable prior to the Prorations Date; and




          (e) such other items as are customarily apportioned between sellers and purchasers of real
properties of a type similar to the Contributed Properties.




     4.2 Commissions. Each Contributor shall bear the cost of all unpaid commissions, fees
and other charges due on or prior to the Prorations Date to real estate brokers or other



47









 




Persons
with respect to any Tenant Lease beginning on or prior to the Prorations Date. The New Company
shall be responsible for commissions, fees, or other charges due to real estate brokers or other
Persons with respect to Tenant Leases, and any renewals, extensions and expansions thereof,
beginning after the Prorations Date. At each Closing, the Equity Value of each Contributor will be
reduced by all security deposits which are then unapplied to satisfy tenant
obligations under Tenant Leases at such Contributed Property, except to the extent that the
applicable Contributed Company holds such security deposit as of the Closing Date.




     4.3 New Tax Rates. If the Proration Date and the Closing Date for a Contributed
Property is before a new real property or other applicable tax rate or charge of an Authority is
fixed, then the apportionment of such tax or charge at the Closing shall be based upon the tax rate
for the immediately preceding fiscal period applied to the latest assessed valuation. Promptly
after the new tax rate has been fixed, the apportionment of such tax or charge made at the Closing
shall be recalculated and any adjustment to the Equity Value and the number of Common Units
issuable to the Contributors in respect of such Contributed Property shall be made promptly after
such recalculation.



     4.4 Tenant Leases. If any tenant under a Tenant Lease is in arrears in the payment of
rent, or other charges, payments received from such tenant after the applicable Closing shall be
applied in the following order of priority: first, to current rents and other sums due the New
Company as the current owner of the Property and landlord under the Tenant Lease, and the balance
to any delinquent sums owing to the Contributor under the Tenant Lease in respect of the period
prior to the Prorations Date. If any payments from a tenant under a Tenant Lease received by the
New Company or the Contributor after the Closing are payable to the other by reason of this
Section, then the appropriate sum shall be promptly paid to the other by adjustment of the number
of Common Units issued to the Contributor.



     4.5 Utility Charges. The apportionment of utility charges shall be made upon the
basis of charges shown on the latest available bills of such utilities. The charges shown on such
available bills for periods prior to the Prorations Date which have not been paid as of the Closing
Date shall be paid by the Contributed Company and credited in favor of the New Company, and for the
period from the date of each such last available utility bill to the Prorations Date an
apportionment shall be made based on the amount charged for the period covered by such last
available bill. Notwithstanding the foregoing, each Contributor with respect to its Contributed
Property will use reasonable efforts to cause the respective utility companies to read their meters
or fix their charges to the Prorations Date, in which event (i) the Contributed Company shall pay
such charges, when billed, to the Prorations Date, and the amount of such payment will be credited
at Closing in favor of the New Company, (ii) if the Contributed Company has paid any such charges
for any period subsequent to the Prorations Date, such payments shall be credited in favor of the
Contributor, and (iii) the Contributed Company shall pay such charges from and after the Prorations
Date without any proration hereunder.



     4.6 Utility Deposits. At the Closing, to the extent not otherwise held in the name of
the Contributed Company, each Contributor shall assign to the New Company, all deposits or escrows
held for the account of such Contributor (or its Affiliate) with respect to its Contributed
Property at or by any public utility company in connection with the utility services furnished to
the Contributed Property; and in such case the Contributor shall be credited at Closing for the



48









 




amount of deposits, or escrows so assigned. Any such deposits or escrows held in the name of a
Contributed Company shall be included in the Cash adjustment of Equity Value pursuant to Section
1.1(c).




     4.7 Post-Closing Receipt. If any item covered by this Article cannot be apportioned
because the same has not been (or cannot be) fully ascertained on the Closing Date, or if any error
has been made with respect to any apportionment, then such item shall be apportioned (or corrected,
as applicable) as soon as the same is fully ascertained and any change in Equity Value and the
number of Common Units to be issued to a Contributor under Section 1.1 shall be adjusted by issuing
to such Contributor additional Common Units, or reducing the number of Common Units issued to such
Contributor.



     4.8 Real Estate Tax Refunds. Real estate tax refunds and credits received after a
Closing which are attributable to the fiscal tax year during which the Prorations Date falls shall
be apportioned between the Contributor, on the one hand, and the New Company, on the other hand,
pursuant to this Article. There will be no proration of tax refunds or credits relating to fiscal
tax years previous to the one during which the Prorations Date falls.



     4.9 Special Assessments. If, as of the Prorations Date, any of the Properties shall
be (or shall have become) subject to a special or local assessment or charge of any kind (whether
or not yet a lien), then (to the extent not payable by the tenants) the New Company shall be
credited at Closing for any installments thereof due and payable prior to the Prorations Date which
have not been paid by the Contributed Company prior to the Prorations Date; provided,
however, that any installment thereof attributable to a period from and after the Prorations
Date shall be apportioned at the Closing in the same manner as for taxes under Section 4.1(b). The
Contributed Company shall be responsible for all installments of such assessment attributable to
the period from and after the Prorations Date, without any proration credit in favor of the New
Company hereunder.



     4.10 Escrow Balances and Reserves. At each Closing, each Contributor will receive a
credit for any escrow balances and reserves held by a lender for the account of a Contributed
Company at Closing.



     4.11 Straddle Periods. 



          (a) In General. If, for any Income Tax purposes, the Taxable period of any of the
Contributed Companies does not terminate on the relevant Prorations Date (any such period, a
“Straddle Period”), Income Taxes of such Contributed Company and Income Tax refunds or credits, if
any, of such Contributed Company attributable to its ordinary operations during such Straddle
Period shall be allocated to (i) the portion of such Straddle Period up to and including the
relevant Prorations Date (the “Pre-Closing Straddle Period”), and (ii) the portion of such Straddle
Period subsequent to the relevant Prorations Date (the “Post-Closing Straddle Period”) in
accordance with this Section 4.11(a). Any Income Taxes and Income Tax refunds of a Contributed
Company that are attributable to those transactions that are in the nature of capital transactions
shall be allocated under the principles described above based on the relevant Closing Date, instead
of the relevant Prorations Date. For purposes of the preceding sentences, Income Taxes and any
Income Tax refunds or credits for the Pre-Closing Straddle Period and for the




49









 







Post-Closing Straddle
Period of a Contributed Company will be determined on the basis of an interim closing of the books
as of the close of business on the relevant Prorations Date or Closing Date, as applicable, as if
such Straddle Period consisted of one Taxable period ending on
the relevant Prorations Date or Closing Date, as applicable, and a Taxable period beginning on the
day following the relevant Prorations Date or Closing Date, as applicable.




          (b) Partnerships. For purposes of section 706 of the Code, any item of income and
deduction with respect to a Contributed Company that is treated as a partnership for U.S. federal
tax purposes shall be allocated under the interim closing of the books method of section 706 of the
Code based on the Prorations Date, and any items of such company that are in the nature of capital
transactions shall be allocated under the interim closing of the books method under section 706 of
the Code based on the Closing Date. The portion of any such items of such Contributed Company
attributable to any period to the Contributor (or Contributors) up to and including the relevant
Prorations Date or Closing Date, as applicable, shall be allocated to the Contributor (or
Contributors) of such Contributed Company, and the portion of such items of such company
attributable to the period after the relevant Prorations Date or Closing Date, as applicable, shall
be allocated to the New Company.




     4.12 Time Periods. Except as otherwise provided herein, it is the intention of the
parties that each Contributor be responsible for all costs and expenses, and obtain the benefit of
all income, of its Contributed Companies and Contributed Properties relating to the period up to
the Prorations Date, and that the New Company be responsible for such costs and expenses, and
obtain the benefit of such income, from and after the Prorations Date, in each case on an accrual
basis, but without regard to non-cash items of income or expense, including depreciation and
amortization.



     4.13 Adjustment of Equity Value. On each Closing Date, for each Contributor and its
Contributed Companies and Contributed Properties, the net amount of all proration credits, without
duplication, under this Article 4 in favor of such Contributor shall be netted against the amount
of all proration credits, without duplication, under this Article 4 in favor of the New Company,
and (i) if the aggregate net proration credit is in favor of such Contributor, then the Equity
Value of such Contributor shall be increased by the amount of such net proration credit pursuant to
Section 1.1(c) and (ii) if the aggregate net proration credit is in favor of the New Company, then
the Equity Value of such Contributor shall be reduced by the amount of such net proration credit
pursuant to Section 1.1(c).



     4.14 Survival. This Article 4, and all rights and duties of the New Company and the
parties hereunder, shall survive Closing.



ARTICLE
5 — INDEMNIFICATION




     5.1  By Contributors.



          (a) From and after the Closing Date, each Contributor (an “Indemnitor”) agrees severally to
indemnify, defend and hold harmless the New Company, each other Contributor, and each such
Contributor’s respective subsidiaries, Affiliates, officers, directors, partners, members,
managers, security holders, stockholders, employees, representatives and




50









 







agents. (collectively, the
“Indemnitees”) from and against all Losses which are incurred or suffered by any of them (A) based
upon, arising out of, in connection with or by reason of the breach of any of the representations
or warranties of such Contributor, (B) based upon, arising
out of, in connection with or by reason of any liability or obligation relating to the
Contributed Companies or the Contributed Properties contributed, directly or indirectly, by such
Contributor of any nature (absolute, accrued, contingent or otherwise) arising or occurring with
respect to any period prior to the Prorations Date, (C) based upon, arising out of, in connection
with or by reason of the failure of such Contributor to perform or comply, in whole or in part,
with any of the covenants or agreements contained herein or in any Related Document to be performed
or complied with by such Contributor on or prior to the Closing, and (D) based upon, arising out
of, in connection with or by reason of any Income Taxes attributable to a Pre-Closing Tax Period of
a Contributed Company. From and after the First Closing Date, if there is Excess Gain allocated to
Tarragon Corporation or to Ansonia and recognized prior to December 31, 2018, the New Company shall
pay to Tarragon Corporation or Ansonia, as the case may be, an amount equal to the product of such
Excess Gain and the tax rate applied with respect to Tarragon Corporation or Ansonia, as
applicable, in determining any “Ansonia Tax Amount” or “Tarragon Tax Amount” under the Tax Matters
Agreement, such amount to be paid in immediately available funds within thirty (30) days after the
filing of the federal income tax return of the New Company for the taxable year in which such
Excess Gain was allocated.




          (b) The indemnity against Losses pursuant to Section 5.1(a) shall also include interest on
cash disbursements in respect thereof at an annual rate of interest equal to a fixed rate of twelve
and one-half percent (12.5%) (the “Reference Rate”), based on actual days elapsed from the later of
the date a valid claim is made hereunder or the date of such disbursement until the date the
Indemnified Parties are fully reimbursed therefor.




          (c) Notwithstanding the preceding, (i) the Indemnified Parties shall not be entitled to any
recovery unless a claim for indemnification is made in accordance with Section 5.3 and within the
time period of survival set forth in Article 3 and the person seeking indemnification complies with
the procedures set forth in Sections 5.3, 5.4 and 5.5, and (ii) if more than one Indemnitor has an
indemnification obligation in respect of the same Contributed Company or Contributed Property, such
indemnification obligation shall constitute a several obligation of such Indemnitors, in proportion
to their respective Contribution Percentages.




     5.2 Intentionally Omitted.



     5.3 Indemnification Procedure.



          (a) In the event that any Indemnitee shall incur or suffer any Loss in respect of which
indemnification may be sought by such party pursuant to the provisions of this Article 5, the
Indemnitee shall assert a claim for indemnification by written notice (a “Notice”) to the
Indemnitor stating the nature and basis of such claim. In the case of Losses arising by reason of
any third party claim, the Notice shall be given within 30 days of the filing of any such claim
against the Indemnitee or the determination by Indemnitee that a claim will ripen into a claim for
which indemnification will be sought, but the failure of the Indemnitee to give the Notice within
such time period shall not relieve the Indemnitor of any liability that the




51









 







Indemnitor may have to
the Indemnitee except to the extent that the Indemnitor is prejudiced thereby and then only to the
extent of such prejudice.




          (b) The Indemnitee shall provide to the Indemnitor on request all information and
documentation reasonably necessary to support and verify any Losses which the Indemnitee believes
give rise to a claim for indemnification hereunder and shall give the Indemnitor reasonable access
to all books, records and personnel in the possession or under the control of the Indemnitee which
would have bearing on such claim.




          (c) In the case of third party claims for which indemnification is sought, the Indemnitor
shall have the option (x) to conduct any proceedings or negotiations in connection therewith, (y)
to take all other steps to settle or defend any such claim (provided that the Indemnitor shall not,
without the consent of the Indemnitee, settle any such claim on terms which provide for (A) a
criminal sanction or fine, (B) injunctive relief or (C) monetary damages in excess of the amount
that the Indemnitor is required to pay hereunder) and (z) to employ counsel, which counsel shall be
reasonably acceptable to the Indemnitee, to contest any such claim or liability in the name of the
Indemnitee or otherwise. In any event, the Indemnitee shall be entitled to participate at its own
expense and by its own counsel in any proceedings relating to any third party claim; provided,
however, that if the defendants in any such action or claim include both the Indemnitee and the
Indemnitor and the Indemnitee shall have reasonably concluded that there would be a conflict of
interest under DR 5-105 of the Code of Professional Responsibility or other applicable federal or
state law were the same counsel to represent the Indemnitee and the Indemnitor, the Indemnitee
shall be entitled to be represented by separate counsel at the Indemnitor’s expense; provided
further, however, that such action or claim shall not be settled without the Indemnitor’s consent,
which shall not unreasonably be withheld. The Indemnitor shall, within 30 days of receipt of the
Notice, notify the Indemnitee of its intention to assume the defense of such claim. Until the
Indemnitee has received notice of the Indemnitor’s election whether to defend any claim, the
Indemnitee shall take reasonable steps to defend (but may not settle) such claim. If the
Indemnitor shall decline to assume the defense of any such claim, or shall fail to notify the
Indemnitee within 30 days after receipt of the Notice of the Indemnitor’s election to defend such
claim, the Indemnitee shall defend against such claim (provided that the Indemnitee shall not
settle such claim without the consent of the Indemnitor, which consent shall not be unreasonably
withheld). The expenses of all proceedings, contests or lawsuits in respect of the claims
described in the preceding sentence shall be borne by the Indemnitor but only if the Indemnitor is
responsible pursuant hereto to indemnify the Indemnitee in respect of the third party claim and, if
applicable, only as required within the limitations set forth in Section 5.1 or Section 5.2 as the
case may be. Regardless of which party shall assume the defense of the claim, the parties agree to
cooperate fully with one another in connection therewith. In the case of a claim for
indemnification made under Section 5.1 or 5.2, (a) if (and to the extent) the Indemnitor is
responsible pursuant hereto to indemnify the Indemnitee in respect of the third party claim, then
within ten days after the occurrence of a final non-appealable determination with respect to such
third party claim (or sooner if required by such determination), the Indemnitor shall pay the
Indemnitee (or sooner if required by such determination), in immediately available funds, the
amount of any Losses (or such portion thereof as the Indemnitor shall be responsible for pursuant
to the provisions hereof and (b) in the event that any Losses incurred by the Indemnitee do not
involve payment by the Indemnitee of a third party claim, then, if (and to the extent) the
Indemnitor is responsible pursuant hereto to




52









 







indemnify the Indemnitee against such Losses, the
Indemnitor shall within ten days after agreement on the amount of Losses or the occurrence of a
final non-appealable determination of such amount pay to the Indemnitee, in immediately available
funds, the amount of such Losses
(or such portion thereof as the Indemnitor shall be responsible for pursuant to the provisions
hereof).




     5.4 Cooperation in Defense. Each party indemnified under any indemnity contained in
this Agreement shall cooperate in all reasonable respects in the defense of the third-party claim
pursuant to which the indemnifying party is alleged to have liability.



     5.5 Direct or Derivative Claims. With respect to any indemnified Loss which has been
suffered (directly or indirectly) both by the New Company and by a Contributor, the Contributor
shall have the right to require, by written demand upon the Board of Managers of the New Company,
that the claim for such indemnified Loss be brought by the New Company, and if the Board of
Managers does not bring such claim and prosecute such claim in accordance with the directions of
such Contributor within fifteen (15) days, then such Contributor may bring such claim on its own
behalf, in which case such Contributor will be deemed to have suffered a Loss equal to its pro rata
share of the Loss suffered by the New Company, based on its proportionate ownership of the Common
Units of the New Company as of the final Closing. Nothing in this Section 5.5 shall prohibit a
Contributor from bringing a direct claim for Loss at any time, regardless whether the New Company
has also suffered a Loss or brought a claim in respect of the same underlying matter; provided,
however, that any recovery by the New Company in respect of such a claim shall be reduced by the
amount of any direct recovery by a Contributor in respect of the same underlying matter, and such
Contributor shall not participate through the New Company in any such additional recovery by the
New Company.



     5.6 General. The parties shall use reasonable efforts to mitigate any indemnified
Loss in connection with this Agreement. The parties shall also use reasonable efforts to structure
any indemnity payment in a manner such that the Indemnitor will obtain any deduction or other tax
benefit arising from having made such indemnification payment in order to avoid any duplication of
after-tax benefit to the Indemnitee. The amount of indemnified Loss incurred by the Indemnitee
shall be reduced by the amount of any insurance benefit received by the Indemnitee or by the New
Company in respect of such Loss. Any liability for indemnification under this Agreement shall be
determined without duplication of recovery by reason of the state of facts giving rise to such
liability constituting a breach of more than one representation, warranty, covenant or agreement.
No matter shall be the subject of an indemnification claim hereunder to the extent that the
Indemnitee has otherwise been compensated therefor, including through the prorations or other
adjustments to Equity Value under Section 1.1.



     5.7 Survival. This Article 5 shall survive each Closing.



ARTICLE
6 —  DEFAULTS AND REMEDIES




     6.1 Defaults. In the event of (i) a failure by a party to perform any of its material
obligations hereunder, which failure continues for more than fifteen (15) days following receipt of
notice thereof from the other party or (ii) the inaccuracy of any representation or warranty made
by a party in this Agreement or in any document delivered pursuant to the terms hereof to



53









 




the
extent such inaccuracy of such representation or warranty results in or constitutes a Material
Adverse Effect, then the other party shall have the right to terminate its obligation to consummate
the transaction contemplated by this Agreement (or any remaining
portion thereof) by delivery of notice thereof to the other party. Subject to the terms of this Article below,
upon any such termination or any termination otherwise permitted under this Agreement, all rights
and obligations of the parties under this Agreement, other than those that by their terms survive
termination, shall terminate without recourse, and this Agreement shall be of no further force or
effect.



     6.2 Remedies of Northland.



     In addition to its right to terminate this Agreement, in the event of a failure any Tarragon
Contributor to perform its obligations to close on the contribution transactions under this
Agreement at any Closing, which failure continues for more than fifteen (15) days following receipt
of notice thereof, then Northland shall have the right to (i) seek specific performance of the
terms of this Agreement, and (ii) to the extent a specific performance remedy is not available, to
pursue any other remedy it may have at law or in equity in connection with such failure.
Notwithstanding anything in the foregoing to the contrary, in the event that Northland elects to
seek damages for any failure, breach or default hereunder, then the parties agree that Northland’s
recovery for any and all such defaults shall not exceed $5,000,000 in the aggregate against all
Tarragon Contributors (and such $5,000,000 limitation will be applied severally to limit the
liability of each Tarragon Contributor, pro rata on the basis of their respective Equity Values);
provided, however, that in the event that any such failure, breach or default is the result of the
willful failure, breach, default, misconduct or omission on the part of a Tarragon Contributor,
then the $5,000,000 aggregate limitation on damages shall not be applicable to, and Northland shall
be permitted to recover any and all damages caused by such failure, breach or default on the party
of, such Tarragon Contributor. As a condition precedent to Northland exercising any right it may
have to bring an action for specific performance hereunder, Northland must commence such an action
within ninety (90) days after Northland first becomes aware of Tarragon’s default. Northland
agrees that its failure to timely commence such an action for specific performance within such
ninety (90) day period shall be deemed a waiver by it of its right to commence an action for
specific performance as well as a waiver by it of any right it may have to file or record a notice
of lis pendens or notice of pendency of action or similar notice against any portion of the
applicable Tarragon Property.



     6.3 Remedies of Tarragon.



     In addition to its right to terminate this Agreement, in the event of a failure any Northland
Contributor to perform its obligations to close on the contribution transactions under this
Agreement at any Closing, which failure continues for more than fifteen (15) days following receipt
of notice thereof, then Tarragon shall have the right to (i) seek specific performance of the terms
of this Agreement, and (ii) to the extent a specific performance remedy is not available, to pursue
any other remedy it may have at law or in equity in connection with such failure. Notwithstanding
anything in the foregoing to the contrary, in the event that Tarragon elects to seek damages for
any failure, breach or default hereunder, then the parties agree that Tarragon’s recovery for any
and all such defaults shall not exceed $5,000,000 in the aggregate against all Northland
Contributors (and such $5,000,000 limitation will be applied severally to limit the



54









 




liability of
each Northland Contributor, pro rata on the basis of their respective Equity Values); provided,
however, that in the event that any such failure, breach or default is the result of the
willful failure, breach, default, misconduct or omission on the part of a Northland Contributor,
then the $5,000,000 aggregate limitation on damages shall not be applicable to, and Tarragon
shall be permitted to recover any and all damages caused by such failure, breach or default on the
part of, such Northland Contributor. As a condition precedent to Tarragon exercising any right it
may have to bring an action for specific performance hereunder, Tarragon must commence such an
action within ninety (90) days after Tarragon first becomes aware of Northland’s default. Tarragon
agrees that its failure to timely commence such an action for specific performance within such
ninety (90) day period shall be deemed a waiver by it of its right to commence an action for
specific performance as well as a waiver by it of any right it may have to file or record a notice
of lis pendens or notice of pendency of action or similar notice against any portion of the
applicable Northland Property.




     6.4 Sole and Exclusive Remedies. The remedies set forth in this Article 6, together
with those set forth in Section 3.5 and Article 5 comprise the sole and exclusive remedies of a
party hereto (or any person claiming by, through or under such party, including any Indemnitee) in
respect of any breach of the representations, warranties or covenants set forth in this Agreement
or in any Related Document.



ARTICLE
7 — FUTURE OPERATIONS




     7.1 Operations. Except as otherwise expressly permitted by this Agreement (including
pursuant to the Tarragon Restructuring or the Northland Restructuring), each Tarragon Contributor
with respect to the Tarragon Properties and Tarragon Companies, and each Northland Contributor with
respect to the Northland Properties and the Northland Companies, hereby agrees and covenants with
respect to the Property and/or Company Interests that have not already been contributed to the New
Company, that from the date hereof through each Closing or the earlier termination of this
Agreement:



          (a) Neither Tarragon nor Northland, and no Tarragon Company or Northland Company, shall sell,
encumber, further pledge, or otherwise transfer or dispose of all or any part of the Tarragon
Company Interests, the Northland Company Interests, the Tarragon Property or the Northland
Property, or amend, modify or terminate any Tarragon Operating Agreements or Northland Operating
Agreements, without the prior consent of the other party hereto.




          (b) Neither Tarragon nor Northland, and no Tarragon Company or Northland Company, shall enter
into, extend, renew, replace or modify any contract, agreement or other arrangement with regard to
the Tarragon Property or the Northland Property which will be binding on the New Company, the
Tarragon Property or the Northland Property after Closing unless such contract, agreement or other
arrangement (as so extended, renewed, replaced or modified) can be terminated by the New Company
without penalty or payment of any fee on not more than thirty (30) days notice.




          (c) Neither Tarragon or Northland, and no Tarragon Company or Northland Company, shall
initiate or consent to any zoning changes, liens or encumbrances of or against the Tarragon
Property or the Northland Property without the prior written consent of the other




55









 







party, and shall
give the other party copies of all notices received by Tarragon or Northland with respect to any
such matters.




          (d) Each of Tarragon, Northland, the Tarragon Companies and the Northland Companies shall
continue to manage, lease, market and operate the Tarragon Property and the Northland Property in
the ordinary course of business in accordance with the management, leasing and operation standards
and practices currently in effect at the Tarragon Property and the Northland Property, as
applicable, and shall continue to perform all of its obligations with respect to the Tarragon
Leases, Northland Leases, Tarragon Contracts and Northland Contracts, as applicable.




          (e) Each of Tarragon, Northland, the Tarragon Companies and the Northland Companies shall
repair and maintain the Tarragon Property and the Northland Property in its present condition,
normal wear and tear excluded and subject to Article 8, and continue to maintain the insurance
policies currently in effect with respect to any of the foregoing or enter into new policies with
substantially the same coverage.




          (f) Neither Tarragon and Northland shall, or permit any Tarragon Company or Northland Company,
to enter into any new Tenant Lease or amend any existing Tenant Lease, without the other party’s
consent, not to be unreasonably withheld, conditioned or delayed, unless (i) same is on the current
standard lease form for the applicable Property; (ii) provides for payment of monthly rent at the
rates currently in effect for the applicable Property; (iii) is for a term of no less than one year
nor more than 15 months; and (iv) does not provide any “free rent” or other concessions beyond
those currently offered and consistent with current practice with respect to the applicable
Property and only to the extent such “free rent” or other concessions are not so-called
“back-ended”.




          (g) Each of Tarragon and Northland will keep all debt service payments and other payments
owned in connection with the Tarragon Assumed Debt and the Northland Assumed Debt, as applicable,
current on the Tarragon Property and the Northland Property and will not permit or suffer to exist
any default under any Tarragon Debt Instrument or Northland Debt Instrument.




     7.2 Notification of Certain Matters. Tarragon shall give prompt notice to Northland,
and Northland shall give prompt notice to Tarragon, of (a) the occurrence, or failure to occur, of
any event that causes any representation or warranty herein or in any document relating to the
transaction contemplated in this Agreement hereunder to be untrue or inaccurate in any material
respect at any time from the date of this Agreement to each Closing Date, and b) any failure
Tarragon, on the one hand, or Northland, on the other hand, to comply with or satisfy, in any
material respect, any covenant, condition or agreement to be complied with or satisfied by it under
any document relating to the transaction contemplated in this Agreement.



ARTICLE
8 — RISK OF LOSS




     8.1 Casualty. Each Contributor assumes all risks for damage to or injury
occurring to its Contributed Property by fire, storm, accident, or any other casualty or cause (a
“Casualty”) until the applicable Closing with respect to the Contributed Property has been
completed.



56









 




Immediately after a Contributor has received notice of the occurrence of any Casualty
between the date hereof and the applicable Closing, such Contributor shall give the other
Contributors written notice thereof (a “Casualty Notice”), which Casualty Notice shall state the
type, location
and amount of damage to such Property, the portions of such Property affected by the Casualty
and such Contributor’s good faith estimate of the loss of gross rental income that the Property
will suffer while such Casualty is being repaired. If the affected Property is reasonably expected
to suffer as a result of such Casualty a loss of gross rental income (taking into account any
business interruption insurance proceeds) in excess of 20% of the Property’s pro forma gross rental
income for the twelve (12) month period following the Casualty (a “Material Casualty”), then the
Contributing Group receiving such Casualty Notice shall have the right, exercisable for a period of
ten (10) Business days after its receipt of such Casualty Notice, to elect to terminate this
Agreement with respect to such Property and any Company that owns, directly or indirectly, only
such Property (the parties agreeing to cooperate in good faith to restructure the ownership of any
Company that owns both direct or indirect interests in such Property and any direct or indirect
interest in another Property so as to eliminate such overlapping interests). If this Agreement is
terminated with respect to such Property and any such Company, none of the parties shall have any
further right or obligation hereunder in respect of such Property or such Company, except as to
provisions which by their terms survive termination of this Agreement, but this Agreement shall
remain in effect with respect to all other Properties and Companies. If the Contributing Group
receiving such Casualty Notice does not elect to terminate this Agreement as to such Property and
any such Company, or if such Casualty is not a Material Casualty, then such Property shall remain
subject to the terms of this Agreement and shall be contributed to the New Company by its
Contributor, along with any insurance proceeds paid on account of such Casualty (including rental
interruption insurance, but only for the period from and after the Prorations Date) not expended to
repair the property prior to the Closing Date, and the New Company shall receive a credit against
such Contributor’s Equity Value in the amount of any deductible payable by such Contributor or the
applicable Contributed Company in connection with casualty coverage.




     8.2 Condemnation. If, prior to Closing, all or any significant portion of any
Property is taken, or rendered unusable for its current purpose or reasonably inaccessible by
eminent domain (or is the subject of a pending or contemplated taking which has not been
consummated), (a “Condemnation”), then, upon receipt of written notice of such action from any
Authority, the Contributor of such Property shall immediately give the other Contributors written
notice thereof (a “Condemnation Notice”), which Condemnation Notice shall state the nature of such
Condemnation, the portions of such Property affected by the Condemnation and such Contributor’s
good faith estimate of the loss of gross rental income that the Property will suffer as a result of
such Condemnation. If the affected Property is reasonably expected to suffer as a result of such
Condemnation a loss of gross rental income in excess of 20% of the Property’s pro forma gross
rental income for the twelve (12) month period following the Condemnation (a “Material
Condemnation”), then the Contributing Group receiving such Condemnation Notice shall have the
right, exercisable for a period of ten (10) Business days after its receipt of such Condemnation
Notice, to elect to terminate this Agreement with respect to such Property and any Company that
owns, directly or indirectly, only such Property (the parties agreeing to cooperate in good faith
to restructure the ownership of any Company that owns both direct or indirect interests in such
Property and any direct or indirect interest in another Property so as to eliminate such
overlapping interests). If this Agreement is terminated with respect to such Property and




57












 




any such
Company, none of the parties shall have any further right or obligation hereunder in respect of
such Property or such Company, except as to provisions which by their terms survive termination of
this Agreement, but this Agreement shall remain in effect with respect to all other
Properties. If the Contributing Group receiving such Condemnation Notice does not elect to
terminate this Agreement as to such Property and any such Company, or if such Condemnation is not a
Material Condemnation, then such Property shall remain subject to the terms of this Agreement and
shall be contributed to the New Company by its Contributor, along with any and all rights to the
condemnation award in respect of such Condemnation (other than any portion thereof relating to loss
of rental income for the period prior to the Prorations Date).




     8.3 Portfolio Termination Right. Notwithstanding anything to the contrary contained
in Section 8.1 or 8.2, in the event that the Contributed Properties of either Contributing Group
have suffered Material Casualties or Material Condemnations resulting in the termination of this
Agreement with respect to such Properties representing more that 20% of the gross asset value (as
such gross asset value is set forth on Schedule 1.1) of all the Properties of such
Contributing Group, then the other Contributing Group shall have the right to terminate this
Agreement by delivery of written notice thereof to the other parties, whereupon this Agreement
shall terminate as to all Companies and Properties not contributed at a previous Closing, and the
parties shall cease to have any further obligations or liabilities hereunder in respect thereof,
other than obligations which by their terms expressly survive termination of this Agreement.



ARTICLE
9 — MISCELLANEOUS




     9.1 Brokers. Each party to this Agreement represents and warrants that neither it nor
any of its Affiliates has had any contact or dealings regarding the Properties, or any
communication in connection with the subject matter of the transactions contemplated by this
Agreement, through any real estate broker or other person who can claim a right to a commission or
finder’s fee in connection with therewith. In the event that any other broker or finder claims a
commission or finder’s fee based upon any contact, dealings or communication, the party through
whom or through whose Affiliate such other broker or finder makes its claim shall be responsible
for such commission or fee and all costs and expenses (including, without limitation, reasonable
attorneys’ fees and disbursements) incurred by the other party and its Affiliates in defending
against the same. The party through whom or through whose Affiliate such other broker or finder
makes a claim shall hold harmless, indemnify and defend the other party hereto, its successors and
assigns, agents, employees, officers and directors, and the Property from and against any and all
Losses, arising out of, based on, or incurred as a result of such claim. The provisions of this
Section shall survive each Closing or termination of the parties’ obligations to consummate the
transactions contemplated by this Agreement.



     9.2 Marketing. Each of Tarragon and Northland agrees not to market the Properties for
sale during the term of this Agreement or entertain or discuss any offer to purchase or acquire the
Properties or the Interests with any Person other than Northland, Tarragon and their Affiliates.



     9.3 Entire Agreement; No Amendment. This Agreement represents the entire agreement
among each of the parties hereto with respect to the subject matter hereof. It is expressly
understood that no representations, warranties, guarantees or other statements shall be



58









 




valid or
binding upon a party unless expressly set forth in this Agreement. It is further
understood that any prior agreements or understandings between the parties with respect to the
subject matter hereof have merged in this Agreement, which alone fully expresses all agreements of
the parties hereto as to the subject matter hereof and supersedes all such prior agreements and
understandings. This Agreement may not be amended, modified or otherwise altered except by a
written agreement signed by the party hereto against whom enforcement is sought. It is agreed that
no obligation under this Agreement which by its terms is to be performed or continue to be
performed after Closing and no provision of this Agreement which is expressly to survive Closing
shall merge upon Closing, but shall survive Closing. Notwithstanding the foregoing, after
December 31, 2008, press releases regarding the New Company that have been reviewed and approved by
the Board of Managers of the New Company shall not be subject to the prior written approval of the
parties hereto.




     9.4 Certain Expenses. Each party hereto will pay all of its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby (whether or not the Closing
shall take place), including, without limitation, all costs and expenses herein stated to be borne
by such party and all of its respective accounting, legal, investigatory and appraisal fees.
Tarragon shall be responsible for paying (i) all amounts required to be paid to the holder of the
Tarragon Assumed Debt in connection with the assumption and/or transfer of the Tarragon Assumed
Debt as a result of the transaction contemplated herein, (ii) all applicable State, County and City
transfer taxes and/or transfer fees due in connection with the transfer of the Tarragon Property or
assignment of the Tarragon Company Interests to the New Company, (iii) all costs associated with
obtaining and issuing the any title policies with respect to the Tarragon Properties, including,
without limitation, examination costs, commitment fees and premiums, and (iv) all costs associated
with obtaining applicable UCC searches with respect to Tarragon or the Tarragon Companies and all
costs associated with obtaining any surveys of the Tarragon Property, but in the case of items (i),
(iii) and (iv) above, only to the extent any of the foregoing is required in order to obtain the
Tarragon Lender Consents. Northland shall be responsible for paying (a) all amounts required to be
paid to the holder of the Northland Assumed Debt in connection with the assumption and/or transfer
of the Northland Assumed Debt as a result of the transaction contemplated herein, (b) all
applicable State, County and City transfer taxes and/or transfer fees due in connection with the
transfer of the Northland Property or assignment of the Northland Company Interests to the New
Company, (c) all costs associated with obtaining and issuing any title policies with respect to the
Northland Properties, including, without limitation, examination costs, commitment fees and
premiums, and (d) all costs associated with obtaining applicable UCC searches with respect to
Northland or the Northland Companies and all costs associated with obtaining any surveys of the
Northland Property, but in the case of items (a), (c) and (d) above, only to the extent any of the
foregoing is required in order to obtain the Northland Lender Consents. Any recording or escrow
fees incurred in connection with the transfer of title to or contribution of the Tarragon Property
or the Tarragon Company Interests as contemplated by this Agreement shall be paid by Tarragon. Any
recording or escrow fees incurred in connection with the transfer of title to or contribution of
the Northland Property or the Northland Company Interests as contemplated by this Agreement shall
be paid by Northland. All other costs and charges in connection with the purchase and sale of the
Properties contemplated by this Agreement not otherwise provided for in this Agreement shall be
allocated by standard accounting and conveyancing practices in the relevant jurisdiction in which
each such Property is located.



59









 





     9.5 Notices. Any notice or communication required under or otherwise delivered in
connection with this Agreement to any of the parties hereto shall be written and shall be delivered
to such party at the following address:



     If to Tarragon:


Tarragon Corporation

423 West 55th Street – 12th Floor

New York, NY 10019

Attn: William S. Friedman

Phone: (212) 949-5000

Fax: (646) 354-2171




     with copies to:


Tarragon Corporation

3100 Monticello, Ste. 200

Dallas, TX 75205

Attn: Kathryn Mansfield, Esq.

Phone: (214) 599-2250

Fax: (214) 599-2250



Jones Day

222 East 41st Street

New York, NY 10017

Attn: Kent R. Richey, Esq.

Phone: (212) 326-3481

Fax: (212) 755-7306




     If to Ansonia:


Ansonia LLC

c/o Tarragon Corporation

423 West 55th Street, 12th Floor

New York, NY 10019

Attn: Robert Rothenberg

Fax: (212) 687-1345




     With a copy to:


Holland & Knight LLP

195 Broadway

New York, New York 10007

Attn: Jim Spitzer, Esq.

Facsimile: 212-341-7292




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     If to Northland:


c/o Northland Investment Corporation

2150 Washington Street

Newton, MA 02462

Attn: Steven P. Rosenthal

Phone: (617) 630-7240

Fax: (617) 630-7201




     with a copy to:


Northland Investment Corporation

2150 Washington Street

Newton, MA 02462

Attn: Suzanne Abair, Esq.

Phone: (617) 630-7275

Fax: (617) 630-7201




     with a copy to:


Goodwin Procter LLP

Exchange Place

53 State Street

Boston, MA 02109

Attn: Minta E. Kay, Esq. and Gilbert G. Menna, Esq.

Phone: (617) 570-1877 and (617) 570-1433

Fax: (617) 570-1231



All notices, demands, solicitations of consent or approval, and other communications hereunder
shall be in writing and shall be sufficiently given if personally delivered, transmitted by
facsimile, sent by electronic transmission or sent postage prepaid by overnight courier or
registered or certified mail, return receipt requested. Notices shall be deemed to have been given
when personally delivered or when transmitted on a Business Day by electronic transmission with
confirmation of receipt or by facsimile with machine generated confirmation of transmission without
notation of error, if sent before 5:00 p.m. local time of the recipient, otherwise the following
Business Day, or, if mailed or sent by overnight courier, on the date on which received.




     9.6 No Assignment. Except as provided in this Section below, neither this Agreement
nor any of the rights or obligations hereunder may be assigned by any party hereto without the
prior written consent of the other parties.



     9.7 Governing Law. The laws of the State of New York shall govern the validity,
enforcement and interpretation of this Agreement.



     9.8 Multiple Counterparts. This Agreement may be executed in multiple counterparts.
If so executed, all of such counterparts shall constitute but one agreement, and, in



61









 




proving this Agreement, it shall not be necessary to produce or account for more than one such
counterpart.




     9.9 Further Assurances. From and after the date of this Agreement and after the
Closing, the parties hereto shall take such further actions and execute and deliver such further
documents and instruments as may be reasonably requested by the other party and are reasonably
necessary to provide to the respective parties hereto the benefits intended to be afforded hereby,
including, without limitation, all books and records relating to the Property and the addresses of
all parties.



     9.10 Miscellaneous. Whenever herein the singular number is used, the same shall
include the plural, and the plural shall include the singular where appropriate, and words of any
gender shall include the other gender when appropriate. The headings of the Articles and the
Sections contained in this Agreement are for convenience only and shall not be taken into account
in determining the meaning of any provision of this Agreement. The words “hereof” and “herein”
refer to this entire Agreement and not merely the Section in which such words appear. If the last
day for performance of any obligation hereunder is not a Business Day, then the deadline for such
performance or the expiration of the applicable period or date shall be extended to the next
Business Day. All references to Sections, Articles, Exhibits or Schedules are to Sections,
Articles, Exhibits or Schedules of or to this Agreement. The terms “include” and “including” are
to be construed as if followed by the phrase “without limitation”, regardless whether such phrase
actually appears.



     9.11 Invalid Provisions. If any provision of this Agreement (except the provision
relating to Tarragon’s obligation to contribute the Tarragon Property, Northland’s obligation to
contribute the Northland Property, the New Company’s obligation to issue the Common Units, the
invalidity of which shall cause this Agreement to be null and void) is held to be illegal, invalid
or unenforceable under present or future laws, such provision shall be fully severable, this
Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Agreement.



     9.12 Confidentiality; Publicity. Each of Tarragon and Northland agrees to maintain in
confidence through Closing, unless otherwise required by applicable Law, public reporting or
listing requirements or accounting or auditing standards to disclose, all material and confidential
information received from Tarragon or Northland or otherwise regarding the Properties. In the
event this Agreement is terminated, each party shall promptly return to the other party all
materials delivered to such party. Tarragon and Northland agree that, prior to the Closing Date,
none of them, without the prior written consent of the other, shall publicly or privately reveal
any information relating to the existence or terms and conditions of the transactions contemplated
hereby, except as permitted in this Section. Each party agrees that nothing in this Section shall
prevent such party from disclosing or accessing any information otherwise deemed confidential under
this Section (i) in connection with the enforcement of its rights hereunder, or (ii) pursuant to
any legal requirement, including, without limitation, any securities Laws, any reporting or listing
requirement or any accounting or auditing standard. Tarragon and Northland further agree that
nothing in this Section shall prevent any of them from disclosing or accessing any



62









 




information otherwise deemed confidential under this Section to its respective agents,
employees, counsel and other third parties to the extent reasonably necessary to perform due
diligence and complete the transactions contemplated hereby.




     9.13 Press Releases and Public Announcements. Except as the disclosing party may
determine to be required by applicable law or any listing agreement with any national securities
exchange or The NASDAQ Stock Market, the parties shall consult with each other before issuing any
press release or otherwise making public statements with respect to this Agreement and the
transactions contemplated by this agreement including transactions and agreements relating to the
formation of the New Company and shall not issue any press release or make any public announcement
relating to the subject matter of this Agreement or the New Company without the prior written
approval of the other party (which written approval shall not be unreasonably withheld or delayed).
The parties have agreed upon the form of press release announcing the execution of this Agreement,
the formation of the New Company and the other transactions related thereto.



     9.14 Time of Essence. Time is of the essence with respect to this Agreement.



     9.15 No Recordation. Northland and Tarragon each agrees that neither this Agreement
nor any memorandum or notice hereof shall be recorded and each of Northland and Tarragon agrees (a)
not to file any notice of pendency or other instrument (other than a judgment) against the
Northland Property or the Tarragon Property or any portion thereof in connection herewith and (b)
to indemnify the other party against all Losses incurred by the other party by reason of the filing
of such notice of pendency or other instrument. Notwithstanding the foregoing, if the same is
permitted pursuant to applicable Laws, either party shall be entitled to record a notice of lis
pendens if such party is entitled to seek (and is actually seeking) specific performance of this
Agreement by the other party in accordance with the terms of Article 6 hereof.



     9.16 Representatives. NIC shall act as the sole agent for the Northland Contributors
and shall be authorized to exercise all rights of each of the Northland Contributors pursuant to
this Agreement, including delivering any notice or granting any consent or waiver hereunder, and
the other Contributors shall be entitled to rely on any action taken by NIC as being taken on
behalf of all of the Northland Contributors. The rights of the Northland Contributors under this
Agreement shall be exercised only by NIC on behalf of the Northland Contributors, and no other
Northland Contributor shall be separately entitled to exercise any such rights. A copy of any
notice required to be delivered hereunder to any Northland Contributor shall be required to be
delivered to only NIC. Tarragon Corporation shall act as the sole agent for the Tarragon
Contributors and shall be authorized to exercise all rights of each Contributor of the Tarragon
Contributors pursuant to this Agreement, including delivering any notice or granting any consent or
waiver hereunder, and the other Contributors shall be entitled to rely on any action taken by
Tarragon Corporation as being taken on behalf of all of the Tarragon Contributors. The rights of
the Tarragon Contributors under this Agreement shall be exercised only by Tarragon Corporation on
behalf of the Tarragon Contributors, and no other Tarragon Contributors shall be separately
entitled to exercise any such rights.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




63









 








     IN WITNESS WHEREOF, the parties hereto have executed this Contribution Agreement as an
instrument under seal as of the date and year first above written.



NORTHLAND: 



	 	 	 	 	 
	 	 	Northland Portfolio L.P.
	 
	 	 	 	 
	 

	 	By: Northland Portfolio Partners LLC,
Its
 General
Partner


	 
	 

	 	 
	By: 	/s/ Steven P. Rosenthal
 
 
	 
	 	 	 	 
	 	 	Northland Fund L.P.
	 
	 	 	 	 
	 

	 	 	By:	Northland Fund I Partners L.P.,
Its
 General
Partner
	 
	 

	 	
	 	By: Northland Fund I Partners, Inc.,
Its

General Partner

	 
	 

	 	
	 	By: /s/ Steven P. Rosenthal
 
 

	 
	 	 	 	 
	 	 	Northland Fund II, L.P.
	 
	 	 	 	 
	 

	 	 
	By:	Northland Fund II Partners LLC,
Its
 General
Partner
	 
	 

	 	
	 	By: /s/ Steven P. Rosenthal
 
 

	 
	 	 	 	 
	 	 	Northland Fund III, L.P.
	 
	 

	 	 	By:	Northland Fund III Partners LLC, Its

General Partner
	 
	 

	 	 
	 	By: /s/ Steven P. Rosenthal
 
 







64









 






	 	 	 	 	 
	 	 	Northland Investment Corporation
	 
	 	 	 	 
	 

	 	By:

	 	/s/ Steven P. Rosenthal
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Northland Austin Investors LLC
	 
	 	 	 	 
	 

	 	By:

	 	/s/ Steven P. Rosenthal
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Austin Investors L.P.
	 
	 	 	 	 
	 

	 	By:

	 	Northland Austin Partners LLC,
Its
 General
Partner
	 
	 

	 	 	 	By: /s/ Steven P. Rosenthal
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Drake Investors L.P.
	 
	 	 	 	 
	 

	 	By:
	 	Northland Drake Partners LLC,
Its
 General
Partner
	 
	 

	 	 	 	By: /s/ Steven P. Rosenthal
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	Tatstone Investors L.P.
	 
	 	 	 	 
	 

	 	By:

	 	Northland Tatstone Partners LLC, Its

General Partner
	 
	 

	 	 
	 	By: /s/ Steven P. Rosenthal
	 

	 	 	 	 





65









 






	 	 	 	 	 
	 	TARRAGON:



Tarragon Corporation

 	 
	 	By: 
	/s/ William S. Friedman
 	 
	 	Name:  William
S. Friedman, 
	 
	 	Title:  Chief
Executive Officer 
	 
	 
	 	ANSONIA LLC

 	 
	 	By:  	/s/ Robert P. Rothenberg
 	 
	 	Robert P. Rothenberg 	 
	 	Member Manager 	 
	 
	 	 	 
	 	By:  	
/s/ Richard S. Frary
 	 
	 	Richard S. Frary 	 
	 	Member Manager 	 



66









 






	 	 	 	 	 



List Schedules and Exhibit to Agreement to Contribute




Schedules




Schedule A-1 – List of Entities Owned by Northland Portfolio

Schedule A-2 – List of Entities Owned by Northland Fund I

Schedule A-3 – List of Entities Owned by Northland Fund II

Schedule A-4 – List of Entities Owned by Northland Fund III

Schedule A-5 – List of Entities Owned by NIC

Schedule A-6 – List of Entities Owned by Tarragon and Ansonia

Schedule A-7 – List of Entities Owned by Tarragon Upon Restructuring

Schedule B-1 – List of Real Property Owned by Northland Portfolio Companies

Schedule B-2 – List of Real Property Owned by Northland Fund I Companies

Schedule B-3 – List of Real Property Owned by Northland Fund II Companies

Schedule B-4 – List of Real Property Owned by Northland Fund III Companies

Schedule B-5 – List of Real Property Owned by NIC Companies

Schedule B-6 – List of Real Property Owned by Tarragon Companies

Schedule C-1 – List of Northland Property Names Included in Intangibles

Schedule C-2 – List of Tarragon Property Names Included in Intangibles

Schedule D-1 – List of Personal Property Owned by Northland Portfolio Companies

Schedule D-2 – List of Personal Property Owned by Northland Fund I Companies

Schedule D-3 – List of Personal Property Owned by Northland Fund II Companies

Schedule D-4 – List of Personal Property Owned by Northland Fund III Companies

Schedule D-5 – List of Personal Property Owned by NIC Companies

Schedule D-6 – List of Personal Property Owned by Tarragon Companies

Schedule E-1 – Northland Assumed Debt

Schedule E-2 – Tarragon Assumed Debt

Schedule F-1 – Northland Contribution Percentage

Schedule F-2 – Tarragon Contribution Percentage

Schedule G – Tarragon Restructuring

Schedule 1.1 – Calculation of Equity Value of Each Party

Schedule 2.1(a) – Tarragon GE Assumed Debt

Schedule 2.1(c) – List of Tarragon Consents

Schedule 2.1(f) – Pending Tarragon Litigation

Schedule 2.1(h)(iv) – Tarragon Rent Roll for Each Tarragon Property

Schedule 2.2(c) – List of Northland Consents

Schedule 2.2(f) – Pending Northland Litigation

Schedule 2.2(h)(iv) – Northland Rent Roll for Each Northland Property

Schedule 3.2(d) – List of Tarragon Defaults

Schedule 3.2(e) – List of Tarragon Violations of Laws

Schedule 3.2(l) – Tarragon Notices Regarding Environmental Laws

Schedule 3.2(m) – List of Tarragon Mechanic Liens

Schedule 3.2(r) – Tarragon Tax Audit Exceptions

Schedule 3.2(v) – Intentionally Omitted

Schedule 3.3(d) – List of Northland Defaults

Schedule 3.3(e) – List of Northland Violations of Laws




67









 





Schedule 3.3(l) – Northland Notices Regarding Environmental Laws

Schedule 3.3(m) – List of Northland Mechanic Liens

Schedule 3.3(r) – Northland Corporate Entities

Schedule 3.3(v) – Activities of Northland Companies

Schedule 3.3(w) – Condominiums




Exhibits




Exhibit A – Form of Limited Liability Company Agreement of New Company

Exhibit B – Form of Interim Management Agreement

Exhibit C – Form of Assignment

Exhibit D – Form of Tax Matters Agreement

Exhibit E – Form of Limited Liability Company Agreement of Management JV

Exhibit F – Form of License Agreement





68












 





Exhibit A




AMENDED AND RESTATED




LIMITED LIABILITY COMPANY AGREEMENT




OF




NORTHLAND PROPERTIES LLC

a Delaware limited liability company




DATE:                                         , 2008





 









 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I GENERAL PROVISIONS
	 	 	1	 
	Section 1.1 Organization
	 	 	1	 
	Section 1.2 Name
	 	 	1	 
	Section 1.3 Term
	 	 	2	 
	Section 1.4 Purposes and Business
	 	 	2	 
	Section 1.5 Principal Office
	 	 	2	 
	Section 1.6 Qualification in Other Jurisdictions
	 	 	2	 
	Section 1.7 Powers
	 	 	2	 
	 
	 	 	 	 
	ARTICLE II DEFINITIONS
	 	 	2	 
	Section 2.1 Definitions
	 	 	2	 
	 
	 	 	 	 
	ARTICLE III MEMBERS; INTERESTS AND UNITS
	 	 	10	 
	Section 3.1 General
	 	 	10	 
	Section 3.2 Powers of Members
	 	 	10	 
	Section 3.3 No Other Persons Deemed Members
	 	 	11	 
	Section 3.4 No Cessation of Membership Upon Bankruptcy, etc
	 	 	11	 
	Section 3.5 Nature of a Member’s Interest; Units
	 	 	11	 
	Section 3.6 Determination by the Board of Managers
	 	 	11	 
	Section 3.7 Additional Units and Admission of Additional Members
	 	 	11	 
	Section 3.8 Representatives
	 	 	12	 
	 
	 	 	 	 
	ARTICLE IV MANAGEMENT
	 	 	13	 
	Section 4.1 Board of Managers
	 	 	13	 
	Section 4.2 Powers of the Board of Managers
	 	 	14	 
	Section 4.3 Exercise of Authority; Guarantee
	 	 	17	 
	Section 4.4 Meetings and Action of the Board of Managers
	 	 	18	 
	Section 4.5 Expenses; Compensation of Board Members
	 	 	18	 
	Section 4.6 Unanimous Approval Requirement
	 	 	18	 
	Section 4.7 Employees
	 	 	18	 
	Section 4.8 Certain Loans by the Members
	 	 	19	 
	Section 4.9 Tax Classification
	 	 	19	 
	Section 4.10 Standards of Conduct and Modification of Duties; Certain Transactions with Affiliates
	 	 	19	 
	Section 4.11 Exculpation
	 	 	21	 
	Section 4.12 Indemnification
	 	 	21	 
	Section 4.13 Payment of Indemnification Expenses
	 	 	21	 
	Section 4.14 Initial Public Offering
	 	 	22	 
	 
	 	 	 	 
	ARTICLE V CAPITAL CONTRIBUTIONS
	 	 	22	 
	Section 5.1 Initial Contributions
	 	 	22	 
	Section 5.2 Additional Capital Contributions
	 	 	22	 
	Section 5.3 Form of Contributions
	 	 	24	 






i









 







	 	 	 	 	 
	 	 	Page
	Section 5.4 No Right to Interest or Return of Capital
	 	 	24	 
	Section 5.5 No Third-Party Rights
	 	 	25	 
	Section 5.6 Limitations
	 	 	25	 
	Section 5.7 Recourse Guaranty
	 	 	25	 
	 
	 	 	 	 
	ARTICLE VI CAPITAL ACCOUNTS, ALLOCATIONS OF INCOME AND LOSS
	 	 	25	 
	Section 6.1 Capital Accounts
	 	 	26	 
	Section 6.2 Allocations
	 	 	26	 
	Section 6.3 Allocations for Tax Purposes
	 	 	27	 
	Section 6.4 No Deficit Restoration by Members
	 	 	28	 
	Section 6.5 Allocations When Interests Change
	 	 	28	 
	Section 6.6 Allocation of Excess Nonrecourse Liabilities
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VII DISTRIBUTIONS
	 	 	29	 
	Section 7.1 Distributions
	 	 	29	 
	Section 7.2 Liability for Amounts Distributed
	 	 	30	 
	Section 7.3 Distributions in Kind
	 	 	30	 
	Section 7.4 Distributions Upon Liquidation
	 	 	30	 
	Section 7.5 Withholding
	 	 	30	 
	 
	 	 	 	 
	ARTICLE VIII OTHER ACTIVITIES
	 	 	31	 
	Section 8.1 General Provisions
	 	 	31	 
	Section 8.2 Exclusivity
	 	 	31	 
	 
	 	 	 	 
	ARTICLE IX RIGHTS AND OBLIGATIONS OF MEMBERS
	 	 	32	 
	Section 9.1 Limited Liability
	 	 	32	 
	Section 9.2 Wrongful Distributions
	 	 	32	 
	Section 9.3 Authority of Members
	 	 	32	 
	Section 9.4 Confidential Information
	 	 	32	 
	Section 9.5 Confidentiality Obligations
	 	 	33	 
	Section 9.6 Exceptions to Confidentiality
	 	 	33	 
	Section 9.7 Indemnification by Tarragon Corp
	 	 	33	 
	 
	 	 	 	 
	ARTICLE X TRANSFER OF COMPANY INTERESTS
	 	 	35	 
	Section 10.1 Transfer of Interests
	 	 	35	 
	Section 10.2 Substitute Members
	 	 	36	 
	Section 10.3 Obligations of Assignee
	 	 	36	 
	Section 10.4 Additional Requirements
	 	 	37	 
	Section 10.5 Allocation of Distributions Between Assignor and Assignee
	 	 	37	 
	Section 10.6 Treatment of Assignees
	 	 	37	 
	Section 10.7 Withdrawal by Members
	 	 	38	 
	 
	 	 	 	 
	ARTICLE XI REPORTING, RECORDS AND ACCOUNTING MATTERS
	 	 	38	 
	Section 11.1 Books and Accounts
	 	 	38	 
	Section 11.2 Records Available
	 	 	38	 
	Section 11.3 Financial Reports
	 	 	38	 
	Section 11.4 Reliance on Accountants
	 	 	39	 






ii









 






	 	 	 	 	 
	 	 	Page
	Section 11.5 Tax Matters Member; Filing of Returns
	 	 	39	 
	Section 11.6 Tax Elections
	 	 	40	 
	Section 11.7 Fiscal Year
	 	 	40	 
	 
	 	 	 	 
	ARTICLE XII DISSOLUTION AND LIQUIDATION
	 	 	40	 
	Section 12.1 No Dissolution
	 	 	40	 
	Section 12.2 Events Causing Dissolution
	 	 	40	 
	Section 12.3 General
	 	 	40	 
	Section 12.4 Priority
	 	 	41	 
	Section 12.5 Orderly Liquidation
	 	 	41	 
	Section 12.6 Source of Distributions
	 	 	41	 
	Section 12.7 Statements on Termination
	 	 	41	 
	 
	 	 	 	 
	ARTICLE XIII DRAG-ALONG RIGHT, TAG-ALONG RIGHT AND RIGHT OF FIRST REFUSAL
	 	 	42	 
	Section 13.1 Drag-Along Right
	 	 	42	 
	Section 13.2 Tarragon Tag-Along Right
	 	 	43	 
	Section 13.3 Northland Tag-Along Right
	 	 	44	 
	Section 13.4 Right of First Offer
	 	 	45	 
	 
	 	 	 	 
	ARTICLE XIV AMENDMENTS
	 	 	47	 
	Section 14.1 Amendment to be Adopted Solely by the Board of Managers
	 	 	47	 
	Section 14.2 Amendment Procedures
	 	 	47	 
	Section 14.3 Amendments Requiring Member Approval
	 	 	48	 
	 
	 	 	 	 
	ARTICLE XV MISCELLANEOUS
	 	 	48	 
	Section 15.1 Further Assurances
	 	 	48	 
	Section 15.2 Successors and Assigns
	 	 	48	 
	Section 15.3 Applicable Law
	 	 	48	 
	Section 15.4 Severability
	 	 	49	 
	Section 15.5 Counterparts
	 	 	49	 
	Section 15.6 Entire Agreement
	 	 	49	 
	Section 15.7 Construction
	 	 	49	 
	Section 15.8 Force Majeure
	 	 	49	 
	Section 15.9 Notices
	 	 	49	 
	Section 15.10 No Right of Partition or Redemption
	 	 	50	 
	Section 15.11 Third-Party Beneficiaries
	 	 	50	 
	Section 15.12 UCC Matters
	 	 	50	 
	Section 15.13 Representations and Warranties
	 	 	50	 






iii









 






SCHEDULES AND EXHIBITS




	 	 	 
	Schedule A

	 	Names, Addresses, Units and Value of Contribution of Members
	Schedule 5.2(c)

	 	Illustrative Example of Contribution Carry Forward






	 	 	 
	Exhibit A

	 	Representatives
	Exhibit B

	 	Unanimous Approvals
	Exhibit C

	 	Board Members
	Exhibit D

	 	Interim Management Agreement
	Exhibit E-1

	 	Tarragon Recourse Guaranties
	Exhibit E-2

	 	Northland Recourse Guaranties
	Exhibit F

	 	Form of Pledge and Security Agreement






i









 





AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

NORTHLAND PROPERTIES LLC




a Delaware limited liability company




     This Amended and Restated Limited Liability Company Agreement (this “Agreement”) is made as of
the [___] day of [___], 2008, by and among the Persons set forth in Schedule A. Such
Persons, together with any such additional parties as and when admitted to the Company (as defined
below) as members shall be individually a “Member” and, collectively, the “Members”.



     WHEREAS, Northland Properties LLC (the “Company”) has been formed as a limited liability
company under the Delaware Limited Liability Company Act, 6 Del. c. Sec. 18-101, et seq. (as
amended from time to time, the “Act”) as of March 20, 2008;



     WHEREAS, as of the date hereof, the Company has consummated the First Closing as contemplated
by and defined in the Contribution Agreement (as defined below in Section 2.1); and



     WHEREAS, the Members wish to amend and restate in its entirety the Limited Liability Company
Agreement of the Company dated as of March 20, 2008 and to set out fully their respective rights,
obligations and duties regarding the Company and its assets and liabilities.



     NOW, THEREFORE, in consideration of the mutual covenants expressed herein, the parties hereby
agree as follows:



ARTICLE I




GENERAL PROVISIONS




     Section 1.1 Organization. The Company has been formed by the filing of its Certificate of
Formation with the Delaware Secretary of State pursuant to the Act. The original Certificate of
Formation states that the registered agent and registered office of the Company in Delaware are
Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
Board of Managers may at any time designate another registered agent. Subject to the limitations
set forth in this Agreement, the Certificate of Formation may be restated or amended by the Board
of Managers (as defined in Section 2.1) as an “authorized person” within the meaning of the Act.
The Certificate of Formation as so amended from time to time is referred to herein as the “LLC
Certificate.” The Board of Managers shall deliver a copy of the LLC Certificate and any amendments
thereto to any Member who so requests.



     Section 1.2 Name. The name of the limited liability company is “Northland Properties LLC.”
The business of the Company may be conducted under the Company name or under any



 









 







other names
designated by the Board of Managers (as defined in Section 2.1), with written notice to the
Members.



     Section 1.3 Term. The term of the Company commenced on the date of the initial filing of
the LLC Certificate and shall continue until the fortieth (40th) anniversary of the date
hereof (the “Initial Term”); provided that the Company may be dissolved sooner in
accordance with the provisions of this Agreement or by operation of law. The Initial Term may be
extended by the Board of Managers.



     Section 1.4 Purposes and Business. The purpose of the Company is, directly or through one
or more Subsidiaries, to acquire, invest in, improve, rehabilitate, lease, maintain, own, operate,
manage, repair, replace, finance, contribute, mortgage, encumber, hold, sell, reposition,
redevelop, exchange and/or otherwise deal in and with real property related to multifamily
residential rental properties, including student housing and affordable housing, and Real Estate
Investments (as defined below in Section 2.1 below) and any interests therein, and to engage in any
and all other activities related or incidental thereto (the “Multifamily Business”). The
Multifamily Business shall exclude non-residential properties, “for sale” housing, and construction
and development of new multifamily residential rental properties (“Non-permitted Investments”).



     Section 1.5 Principal Office. The principal office of the Company shall initially be c/o
Northland Investment Corporation, 2150 Washington Street, Newton, MA 02462. The Board of Managers
may change the principal office of the Company at any time, with written notice to the Members, and
may cause the Company to establish other offices in various jurisdictions and appoint agents for
service of process in such jurisdictions.



     Section 1.6 Qualification in Other Jurisdictions. The Board of Managers may cause the
Company and any Subsidiary to be qualified or registered under applicable laws in such states as
the Board of Managers determine appropriate to avoid any material adverse effect on the business of
the Company and shall be authorized to execute, deliver and file any certificates and documents
necessary to effect such qualification or registration, including without limitation the
appointment of agents for service of process in such jurisdictions.



     Section 1.7 Powers. Subject to the provisions of this Agreement, the Company shall
have the power to do any and all acts necessary or convenient in furtherance of the purpose of the
Company, and shall have and may exercise all of the powers and rights that can be conferred upon
limited liability companies formed pursuant to the Act.



ARTICLE II




DEFINITIONS




     Section 2.1 Definitions. The following terms shall have the meanings indicated or referred
to below, inclusive of their singular and plural forms except where the context requires otherwise.



     “Acceptable Transfer Terms” shall have the meaning set forth in Section 13.4(a).



2









 





     “Act” shall have the meaning set forth in the introductory statement.



     “Adjusted Capital Account” means, with respect to any Member, the balance, if any, in such
Member’s Capital Account after crediting to such Capital Account any amounts that such Member is
deemed obligated to restore as described in the penultimate sentences of Treasury regulation
section 1.704-2(g)(1) and in Treasury regulation section 1.704-2(i)(5).



     “Affiliate” means, with respect to any specified Person, any Person that, directly or
indirectly through one or more intermediaries, Controls, is Controlled by or is under common
Control with such specified Person.



     “Agreement” shall have the meaning set forth in the introductory statement.



     “Approve,” “Approved,” or “Approval” shall refer to a proposed decision, action, report,
budget, election or any other matter that has received the approval by the requisite Members or
Board Members as set forth in this Agreement.



     “Bankruptcy Event” means (i) the commencement by Tarragon Corp of a voluntary case under Title
11 of the United States Code as from time to time in effect, or by Tarragon Corp authorizing, by
appropriate proceedings of its board of directors or other governing body, the commencement of such
a voluntary case; (ii) Tarragon Corp filing an answer or other pleading admitting or failing to
deny the material allegations of a petition filed against it commencing an involuntary case under
said Title 11, or seeking, consenting to or acquiescing in the relief therein provided, or by
Tarragon Corp failing to controvert timely the material allegations of any such petition; (iii) the
entry of an order for relief against Tarragon Corp in any involuntary case commenced under said
Title 11; (iv) Tarragon Corp seeking relief as a debtor under any applicable law, other than said
Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors, or by Tarragon Corp consenting to or
acquiescing in such relief; (v) the entry of an order by a court of competent jurisdiction (1) by
finding Tarragon Corp to be bankrupt or insolvent, (2) ordering or approving Tarragon Corp’s
liquidation, reorganization or any modification or alteration of the rights of its creditors, or
(3) assuming custody of, or appointing a receiver or other custodian for all or a substantial part
of Tarragon Corp’s property and such order is not vacated or stayed on appeal or otherwise stayed
within sixty (60) days; (vi) the filing of a petition against Tarragon Corp or any Subsidiary under
said Title 11 which shall not be vacated within sixty (60) days or (vii) Tarragon Corp making an
assignment for the benefit of, or entering into a composition with,
its creditors, or appointing or consenting to the appointment of a receiver or other custodian
for all or a substantial part of Tarragon Corp’s property.



     “Board Member” shall have the meaning set forth in Section 4.1(a).



     “Board of Managers” shall have the meaning set forth in Section 4.1(a).



     “Business Day” means any day excluding a Saturday, Sunday or any other day during which there
is no scheduled trading on the NASDAQ Global Market.



     “Buying Northland Members” shall have the meaning set forth in Section 13.4(a)(iii).



3









 





     “Capital Account” shall have the meaning set forth in Section 6.1.



     “Change of Control” means any (i) reorganization, merger, consolidation or similar transaction
of Tarragon Corp with or into another entity, (ii) any sale, lease, exchange, or other disposition
or transfer of all or substantially all of the assets of Tarragon Corp, (iii) individual, entity or
“group” within the meaning of Sections 13(d) and 14(d) of the Securities Act becomes the
“beneficial owner” (as such term is defined in Rule 13d-3 under the Securities Act) of securities
of Tarragon Corp representing thirty (30%) or more of the combined voting power of Tarragon Corp’s
then outstanding securities having the right to vote generally in an election of Tarragon Corp’s
Board of Directors, or (iv) at such time as both William S. Friedman and Robert Rothenberg cease
for any reason to be members of the Board of Directors of Tarragon Corp.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor
federal income tax code.



     “Common Units” means a Unit or Interest without any preference with respect to the amount and
timing of any distribution from the Company as set forth in this Agreement. The Company may have
one or more classes of Common Units.



     “Company” shall have the meaning set forth in the introductory statement.



     “Confidential Information” shall have the meaning set forth in Section 9.4.



     “Consent of the Members” means, with respect to any action requiring the approval of a
specified Percentage Interest of the Members, the written consent or approval of Members holding
Interests representing the specified Percentage Interest.



     “Contribution Agreement” means the Agreement to Contribute, dated as of March [___], 2008
among, Northland Portfolio L.P., Northland Fund L.P., Northland Fund II, L.P., Northland Fund III,
L.P., Northland Corp, Northland Austin Investors LLC, Austin Investors L.P., Drake Investors L.P.,
Tatstone Investors L.P., Tarragon Corp, and Ansonia LLC.



     “Contributions” means, in respect of any Member, the aggregate amount of such Member’s capital
contributions made to the Company pursuant to ARTICLE V.



     “Contributing Member” shall have the meaning set forth in Section 5.2(c).



     “Contributor” shall have the meaning set forth in Section 6.3(c).



     “Contribution Transactions” shall have the meaning set forth in Section 3.1.



     “Control” (including its correlative meanings, “Controlling”, “Controlled by” and “under
common Control with”) means possession, directly or indirectly, of the power to direct or cause the
direction of management or policies of a Person whether through ownership of voting securities, by
contract or credit arrangement or otherwise. A Person shall be deemed to Control (i) any general
partnership or limited partnership with respect to which the Person is the general partner or
managing partner, respectively, (ii) any limited liability company with respect to which such
Person is a manager or managing member and (iii) such Person’s Immediate Family.



4









 





     “Controlled Affiliate” means, with respect to any specified Person, any Person that, directly
or indirectly through one or more intermediaries, Controls such specified Person.



     “Disclosure Obligations” shall have the meaning set forth in Section 9.6.



     “Drag Along Notice” shall have the meaning set forth in Section 13.1.



     “Exchange Act” means the Securities Exchange set of 1934, as amended from time to time, or any
successor statute thereof.



     “Extraordinary Transaction” means (i) any reorganization, merger, consolidation or similar
transaction of the Company with or into another entity where the outstanding voting securities of
the Company immediately before the transaction represent or are converted into less than fifty
percent (50%) of the outstanding voting power of the surviving entity (or its parent corporation)
immediately after the transaction, (ii) any sale, lease, exchange, or other disposition or transfer
of all or substantially all of the Properties and assets of the Company and its Subsidiaries, (iii)
any purchase by any Person or “Group” (within the meaning of Sections 13(d) and 14(d) of the
Securities Act) of securities of the Company (either through a negotiated securities purchase or a
tender for such securities), the effect of which is that such Person (or group of Persons) that did
not Beneficially Own (as such term is defined in Rule 13d-3 under the Securities Act) a majority of
the voting power of the outstanding securities of the Company immediately prior to such purchase
beneficially owns at least a majority of such voting power immediately after such purchase or (iv)
an initial public offering of greater than 50% of the outstanding securities of the Company.



     “Fiscal Year” shall have the meaning set forth in Section 11.7



     “Funding Notice” means a written notice from the Board of Managers to any Member, requiring
such Member to fund or make Contributions pursuant to Section 5.2.



     “Funding Election Notice” shall have the meaning set forth in Section 5.2.



     “Immediate Family” means with respect to any individual such individual’s spouse, parents,
grandparents, children, grandchildren and siblings and any trust for any of their benefit or any
family partnership in which any of them participate.



     “Indemnified Party” means any Person made a party to a proceeding by reason of its status as a
(A) Board Member, (B) Member (C) officer of the Company and (D) such other Persons (including
Affiliates of any Member) as the Board of Managers may designate from time to time (whether before
or after the event giving rise to potential liability), in its sole and absolute discretion.



     “Initial Tarragon Board Members” means William S. Friedman and Robert Rothenberg.



     “Initial Term” shall have the meaning set forth in Section 1.3.



5









 





     “Interest” means the entire limited liability company interest of a Member in the Company at
any particular time, including the right of such Member to any and all benefits to which a Member
may be entitled as provided in this Agreement, together with the obligations of such Member to
comply with all the terms and provisions of this Agreement. Interests shall be expressed as a
number of Units of one or more classes.



     “Interim Investments” means cash, cash equivalent securities and other short-term investments
of Company funds held for future investment in Real Estate Investments or other Company purposes.



     “Interim Management Agreement” shall have the meaning set forth in Section 4.10(d).



     “Liquidating Agent” shall have the meaning set forth in Section 12.3



     “LLC Certificate” shall have the meaning set forth in Section 1.1.



     “Loan Request Notice” shall have the meaning set forth in Section 4.8



     “Lock-Out Period” means the period commencing on the date hereof and ending on the earlier of
(i) the fifth (5th) anniversary of the date hereof, and (ii) the occurrence of an Extraordinary
Transaction.



     “Lower Tier Partnership” shall have the meaning set forth in Section 6.3(c).



     “Majority Vote” shall have the meaning set forth in Section 4.4.



     “Management Company” means Northland Properties Management LLC.



     “Member” or “Members” means any person named as a member of the Company on Schedule A.



     “Multifamily Business” shall have the meaning set forth in Section 1.4.



     “Net Capital Proceeds” means proceeds from any sale, refinancing, insurance recovery (other
than for business interruption), eminent domain award, casualty, condemnation or other similar
capital event or equity contribution, in excess of amounts required to pay debt then due,
transaction costs and such reserves as determined by the Board of Managers.



     “Non-Contributing Member” shall have the meaning set forth in Section 5.2(c).



     “Non-Permitted Investments” shall have the meaning set forth in Section 1.4.



     “Northland Board Members” shall have the meaning set forth in Section 4.1(a).



     “Northland Buyer” shall have the meaning set forth in Section 13.1



     “Northland Corp” means Northland Investment Corporation, a Massachusetts corporation, or a
wholly owned subsidiary of Northland Corp.



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     “Northland Initial Interest” means the final aggregate Common Unit Percentage Interest of the
Northland Members after giving effect to the final “Closing” under the Contribution Agreement.



     “Northland Members” means the Persons designated as Northland Members on Schedule A as
of the date hereof and their permitted successors or assigns who are expressly permitted hereunder
to be designated as “Northland Members”.



     “Northland Members Representative” shall have the meaning set forth in Section 3.7.1.



     “Northland Principal” means Lawrence Gottesdiener and Steven Rosenthal and upon the death,
disability or retirement of either of them, such successor or replacement as may thereafter succeed
to his authority within Northland Corp.



     “Northland Sale” shall have the meaning set forth in Section 13.2(a).



     “Northland Tag-Along Notice” shall have the meaning set forth in Section 13.3.



     “Northland Tag Seller” shall have the meaning set forth in Section 13.3(a).



     “Operating Cash Flow” means, for a given period, all cash receipts of the Company (other than
“Net Capital Proceeds”) during such period, in excess of the following items attributable to such
period (except to the extent any of the following are funded out of reserves or proceeds from
capital events): operating expenses, debt service, expenditures on capital improvements and such
amounts determined by the Board of Managers to provide a reasonable reserve for working capital
needs or any other contingencies of the Company.



     “Opinion of Counsel” means an opinion in writing and in form and substance reasonably
satisfactory to the Board of Managers signed by legal counsel either chosen by the Board of
Managers or, if chosen by a Member, reasonably satisfactory to the Board of Managers.



     “Partnership Interest” shall have the meaning set forth in Section 6.3(c).



     “Percentage Interest” means with respect to a Member holding a class or series of Units, its
interest in such class or series, as applicable, determined by dividing the Units of such
class or series owned by such Member by the total number of Units of such class or series then
outstanding.



     “Person” means a corporation, governmental unit, association, retirement system, international
organization, joint venture, partnership, limited liability company, trust or individual.



     “Preferred Units” means a Unit or Interest with a preference with respect to the amount and
timing of any distribution from the Company as set forth in this Agreement or any attachment
hereto.



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     “Property” means any and all real property (or any interest in real property) now or hereafter
owned by the Company or a Subsidiary and any and all buildings, structures and improvements now or
hereafter located thereon, and shall include all related real and personal property and assets.



     “Property Management Agreement” shall have the meaning set forth in Section 4.10(d).



     “Real Estate Investments” means any direct or indirect, current or contingent interest in,
option or commitment to acquire or other contract right relating to any type of real estate asset
or real estate related asset, including, without limitation, interests in privately or publicly
held operating companies and real estate related businesses, commercial mortgage backed securities,
indebtedness secured by real property or secured by interests in entities owning real property,
equity interests in entities that own or operate real property or other real estate-related assets,
and interests in any amounts escrowed, reserved or otherwise set aside with respect to any real
property or other real estate-related assets. Notwithstanding the foregoing, however, “Real Estate
Investments” shall exclude any of the foregoing that is related to real property or other real
estate-related assets if they would be Non-permitted Investments.



     “Recourse Guaranty” shall have the meaning set forth in Section 5.7.



     “REIT” shall have the meaning set forth in Section 4.2.2(a).



     “Related Party” means with respect to any Person, (i) any Person who directly or indirectly
through one or more intermediaries Controls, is Controlled by, or is under common Control with such
Person, (ii) any Person who is a member of the Immediate Family of such Person, or (iii) any Person
in which such Person or one or more members of the Immediate Family of such Person serves as a
trustee or general partner or in a similar fiduciary capacity. Notwithstanding the foregoing, a
Subsidiary shall not be considered a Related Party of any Person solely on account of such Person’s
ownership interest in the Company.



     “Retained Liability” shall have the meaning set forth in Section 5.2(b).



     “ROFO Notice” shall have the meaning set forth in Section 13.4(a).



     “Sale” shall have the meaning set forth in Section 13.1.



     “Schedule of Members” shall have the meaning set forth in Section 11.1.



     “Selling Tarragon Members” shall have the meaning set forth in Section 13.4(a).



     “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association or other business entity of which (i) if a corporation, a majority
of the total voting power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability
company, association or other business entity, a majority of the partnership or other similar



8









 







ownership interest thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a partnership, limited
liability company, association or other business entity if such Person or Persons shall be
allocated a majority of partnership, limited liability company, association or other business
entity gains or losses or shall be or control the managing director or general partner of such
partnership, limited liability company, association or other business entity. Unless otherwise
specified, references herein to a Subsidiary shall mean a Subsidiary of the Company.



     “Target Interests” shall have the meaning set forth in Section 13.4(a).



     “Tarragon Board Members” shall have the meaning set forth in Section 4.1(a).



     “Tarragon Buyer” shall have the meaning set forth in Section 13.3(a).



     “Tarragon Corp” means Tarragon Corporation, a Nevada corporation.



     “Tarragon Corp Initial Interest” means the final Common Unit Percentage Interest of Tarragon
Corp after giving effect to the final “Closing” under the Contribution Agreement.



     “Tarragon Initial Interest” means the final aggregate Common Unit Percentage Interest of the
Tarragon Members after giving effect to the final “Closing” under the Contribution Agreement.



     “Tarragon Members” means the Persons designated as Tarragon Members on Schedule A as
of the date hereof and their permitted successors and assigns who are expressly permitted hereunder
to be designated as “Tarragon Members”.



     “Tarragon Members Representative” shall have the meaning set forth in Section 3.7.2.



     “Tarragon Sale” shall have the meaning set forth in Section 13.3(a).



     “Tarragon Tag-Along Notice” shall have the meaning set forth in Section 13.2(a).



     “Tarragon Tag Seller” shall have the meaning set forth in Section 13.2(a).



     “Tarragon Units” shall have the meaning set forth in Section 13.1(a).



     “Tax Matters Agreement” means that certain Tax Matters Agreement, dated as of the date hereof,
among the Company, Tarragon Corp and Ansonia LLC.



     “Third Party” means any Person who is not a Member, or an Affiliate of any Member, or the
Immediate Family of any Member.



     “Transfer” shall mean any, direct or indirect, transaction by which a Member assigns its Units
to another Person, and includes a sale, assignment, gift, donation, pledge, grant of a security
interest in, exchange, or any other disposition by law or otherwise.



     “Transfer Election” shall have the meaning set forth in Section 13.4(a).



9









 





     “Transfer Escrow Agent” shall have the meaning set forth in Section 13.4(b).



     “Transfer Documents” shall have the meaning set forth in Section 10.1(a).



     “Transfer Escrow Deposit” shall have the meaning set forth in Section 13.4(b).



     “Transfer Response Period” shall have the meaning set forth in Section 13.4(a).



     “Treasury Regulations” means the Income Tax Regulations and Procedure and Administration
Regulations promulgated under the Code, as amended from time to time.



     “Unit” shall mean a fractional, undivided share of the Interest of a Member issued pursuant to
this Agreement, entitling the holders thereof to the relative rights, title and interests in the
profits, losses, deductions and credits of the Company at any particular time as are set forth in
this Agreement, and any and all other benefits to which a holder thereof may be entitled as a
Member as provided in this Agreement. Units shall include Common Units, and any other classes or
series of Units established by the Board of Managers after the date hereof. Fractional Units may
be issued by the Company.



     “Unanimous Approval” or “Unanimously Approved” means the written consent or approval at a duly
called meeting of the Board of Managers of each Northland Board Member and, so long as there are
Tarragon Board Members on the Board of Managers, at least one of the Tarragon Board Members.



     “Withholding Payment” shall have the meaning set forth in Section 7.5.



ARTICLE III




MEMBERS; INTERESTS AND UNITS




     Section 3.1 General. The names, addresses and Units held by the Members are set forth on
Schedule A, as of immediately following the execution of this Agreement and the closing of
the transactions contemplated by each Contribution Agreement (the “Contribution Transactions”).
The Board of Managers shall amend and revise Schedule A from time to time to properly
reflect any
changes to the information included therein, including to reflect the admission or substitution of
Members. Any amendment or revision to Schedule A or to the Company’s records to reflect
information regarding Members shall not be deemed an amendment to this Agreement.



     Section 3.2 Powers of Members. Except as otherwise provided in this Agreement, no Member
shall have the right or power to: (i) withdraw or reduce its contribution to the capital of the
Company; (ii) cause the dissolution and winding up of the Company; or (iii) demand or receive
property in return for its capital contributions. No Member, in its capacity as such, shall take
any part in the control of the affairs of the Company, undertake any transactions on behalf of the
Company, or have any power or authority to act for or on behalf of, or to bind, the Company. The
rights, duties and liabilities of the Members shall be as provided in the Act, except as otherwise
expressly provided in this Agreement.



10









 






     Section 3.3 No Other Persons Deemed Members. Unless admitted to the Company as a Member as
provided in this Agreement, no Person shall be, or shall be considered, a Member. The Company may
elect to deal only with Persons so admitted as Members (including their duly authorized
representatives). Any distribution by the Company to the Person shown on the Company’s records as
a Member or to its legal representatives, shall relieve the Company of all liability to any other
Person who may be interested in such distribution by reason of any other Transfer by the Member, or
for any other reason.



     Section 3.4 No Cessation of Membership Upon Bankruptcy, etc. A Person shall not cease to
be a Member of the Company upon the happening, with respect to such Person, of any of the events
specified in §18-304 of the Act. Upon the occurrence of any event specified in §18-304 of the Act,
the business of the Company shall be continued pursuant to the terms hereof without dissolution.



     Section 3.5 Nature of a Member’s Interest; Units. A Member’s Interest (including a
Member’s Units) shall for all purposes be personal property. The Units to be initially issued to
the Members as of the date of this Agreement and the closing of the transactions contemplated by
the Contribution Agreement are shown on Schedule A. All Units of a particular class shall
have identical rights in all respects as all other Units of such class except, in each case, as
specified in this Agreement. Unless and until the Board of Managers shall determine otherwise,
Units shall be uncertificated and recorded in the books and records of the Company (including
Schedule A). If at any time the Board of Managers shall determine to certificate Units,
such certificates will contain such legends as the Company shall reasonably determine are necessary
or advisable.



     Section 3.6 Determination by the Board of Managers. Whenever in this Agreement, any
decision, approval, determination or action is to be undertaken by the Board of Managers, such
decisions, approvals, determinations or actions shall
require only a Majority Vote; provided that, the decisions, approvals,
determinations, or actions set forth on Exhibit B (and only those set forth on Exhibit
B) shall require Unanimous Approval by the Board of Managers.



     Section 3.7 Additional Units and Admission of Additional Members.




        Section 3.7.1 Issuance or Creation of Additional Units and Admission of Additional
Members.



               (a) The Company may issue additional Units and other Interests of the Company (or options or
convertible securities with respect thereto) for any purpose and at any time and from time to time
for such consideration and on such terms and conditions as the Board of Managers shall determine in
its sole discretion, and may admit as additional Members the Persons to whom such additional Units
or other Interests are issued. Upon the issuance pursuant to and in accordance with this ARTICLE
III of any Units or other Interests, the Board of Managers may amend any provision of this
Agreement, and authorize any Person to execute, acknowledge, deliver, file and record, if required,
such documents, to the extent necessary or desirable to reflect the admission of any additional
Member to the Company or the authorization and issuance of such Units or other Interests (or
options or convertible securities with respect thereto).



11









 





               (b) Each additional Unit or other Interest authorized to be issued by the Company pursuant to
Section 3.7.1(a) may be issued in one or more classes, or one or more series of any such classes,
with such designations, preferences, rights, powers and duties (which may be senior to existing
classes and series of Units or Interests), as shall be fixed by the Board of Managers in its sole
discretion, including (i) the right to share in Company profits and losses or items thereof; (ii)
the right to share in Company distributions; (iii) the rights upon dissolution and liquidation of
the Company; (iv) whether, and the terms and conditions upon which, the Company may or shall be
required to redeem the Unit or other Interest (including sinking fund provisions); (v) whether such
Unit or other Interest is issued with the privilege of conversion or exchange and, if so, the terms
and conditions of such conversion or exchange; (vi) the terms and conditions upon which each Unit
or other Interest will be issued, evidenced by certificates and assigned or transferred; and (vii)
the right, if any, of the holder of each such Unit or other Interest to vote on Company matters,
including matters relating to the relative designations, preferences, rights, powers and duties of
such Unit or other Interest.



               Section 3.7.2 Conditions to Admission. No additional Member shall be admitted to the
Company (a) in connection with newly issued Units or other Interests, unless and until such
prospective additional Member has executed a signature page counterpart to this Agreement and an
acceptance of all of the terms and conditions of this Agreement, and such other documents or
instruments as may be required to effect the admission in the Board of Managers’ reasonable
judgment or (b) in connection with a Transfer of Units or other Interests, unless and until all the
conditions of ARTICLE X are satisfied, and such prospective additional Member executes and delivers
to the Company the documentation contemplated by Section 10.2.



     Section 3.8 Representatives.



               Section 3.8.1 Northland Members. Northland Corp shall act as the sole agent for the
Northland Members and shall be authorized to exercise all rights of each of the Northland Members
pursuant to this Agreement, including delivering any notice or granting any consent or waiver
hereunder, and the other Members shall be entitled to rely on any action taken by Northland Corp as
being taken on behalf of all members of the Northland Members. The rights of the Northland Members
under this Agreement shall be exercised only by Northland Corp on behalf of the Northland Members,
and no other member of the Northland Members shall be separately entitled to exercise any such
rights. A copy of any notice required to be delivered hereunder to any member of the Northland
Members shall be required to be delivered to only Northland Corp. Northland Corp hereby designates
the individual identified as such on Exhibit A as its “Northland Members Representative”.
Northland Corp may from time to time by written notice to Tarragon Corp redesignate its Northland
Members Representative.



               Section 3.8.2 Tarragon Members. Tarragon Corp shall act as the sole agent for the
Tarragon Members and shall be authorized to exercise all rights of each member of the Tarragon
Members pursuant to this Agreement, including delivering any notice or granting any consent or
waiver hereunder, and the other Members shall be entitled to rely on any action taken by Tarragon
Corp as being taken on behalf of all members of the Tarragon Members. Notwithstanding the
foregoing, the Tarragon Representative shall not be authorized on behalf of Ansonia LLC to respond
to calls for the making of loans pursuant to Section 4.8 or a call for additional capital
Contributions pursuant to Section 5.2. The rights of the Tarragon Members



12









 







under this Agreement
shall be exercised only by Tarragon Corp on behalf of the Tarragon Members, and no other member of
the Tarragon Members shall be separately entitled to exercise any such rights. A copy of any
notice required to be delivered hereunder to any member of the Tarragon Members shall be required
to be delivered only to Tarragon Corp; provided, however, that notices to Ansonia LLC shall be
delivered directly to Ansonia LLC. Tarragon Corp hereby designates the individual identified as
such on Exhibit A as its “Tarragon Members Representative”. Tarragon Corp may from time to
time by written notice to Northland Corp redesignate its Tarragon Members Representative.



ARTICLE IV




MANAGEMENT




     Section 4.1 Board of Managers 



               (a) The business and affairs of the Company shall be managed under the direction of a board of
managers (the “Board of Managers”), who shall be the managers of the Company. Subject to the
provisions of this Section 4.1, the Board of Managers shall consist of five (5) individuals (each,
a “Board Member”) comprised as follows: (i) three (3) Board Members designated by Northland Corp
(together, with their permitted successors, the “Northland Board Members”) and (ii) two (2) Board
Members designated by Tarragon Corp
(together with their permitted successors, the “Tarragon Board Members”). Each Board Member
shall be a “manager” within the meaning of the Act. The names of the individuals who shall serve
as the initial Northland Board Members and the initial Tarragon Board Members (the “Initial
Tarragon Board Members”) are set forth on Exhibit C. A Tarragon Board Member shall be a
Board Member only so long as such individual is serving as a member of the Board of Directors of
Tarragon Corp. If not nominated for continuing service on the Board of Directors of Tarragon Corp,
(except, in the case of the Initial Tarragon Board Members who shall, subject to the provisions of
this Section 4.1, serve on the Board of Managers until they no longer serve on the Board of
Directors of Tarragon Corp.), the term of such Tarragon Board Member shall immediately end and the
vacancy created thereby will be filled by Tarragon Corp, subject to the reasonable approval of such
replacement Tarragon Board Member by the Northland Board Members; provided,
however, that the Northland Board Members shall not have the right to withhold such
approval for a proposed replacement Tarragon Board Member who is then serving as a director or
senior officer of Tarragon Corp unless the participation of such proposed replacement on the Board
of Managers is reasonably likely, in the reasonable judgment of Northland Corp, to have a material
adverse effect on the ability of the Company or its Subsidiaries to raise equity or debt financing
from Third Parties. Notwithstanding any provision set forth herein to the contrary, upon the
happening of any of a Bankruptcy Event, the Tarragon Board Members shall immediately resign and all
Board Members shall be appointed by Northland Corp.



               (b) Any vacancy on the Board of Managers with regard to the Northland Board Members shall be
filled by Northland Corp. Subject to the provisions of this Section 4.1, any vacancy on the Board
of Managers with regard to the Tarragon Board Members shall be filled by Tarragon Corp.



13









 





               (c) In the event that the Percentage Interest owned by Tarragon Corp hereafter falls below
forty percent (40%) of the Tarragon Corp Initial Interest, then the Tarragon Board Members shall
immediately resign and Tarragon Corp shall have no right to appoint any individuals to the Board of
Managers. The resulting vacancy or vacancies shall be filled by Northland Corp.



               (d) Solely for the purpose of computing whether Tarragon Corp has fallen below the 40%
threshold set forth in Section 4.1(c), (i) any Units transferred by Tarragon Corp as a result of
the exercise by the Northland Members of their drag-along rights under Section 13.1 shall be
excluded when determining the number of Units owned by Tarragon Corp and (ii) all Units transferred
by Tarragon Corp in such Sale shall be excluded from the total number of Units then outstanding
when computing Tarragon Corp’s Percentage Interest.



               (e) The Board of Managers may at any time increase the size of the Board of Managers;
provided, however, that the Board of Managers shall not exceed nine (9) members.
The vacancies created by any increase shall be filled by individuals appointed by the Board of
Managers and shall be deemed to be Northland Board Members.



     Section 4.2 Powers of the Board of Managers.



               Section 4.2.1 General Authority. Except as otherwise provided in this Agreement and
subject to Unanimous Approval, if required in accordance with Exhibit B, the Board of
Managers shall have complete and exclusive control of the management and conduct of the business of
the Company and the authority to do all things necessary or appropriate to carry out the purposes
of the Company without any further act, vote or approval of any Member and shall have all rights
and powers with respect to the Company which may be vested in a Board of Managers under Delaware
law. Any contract, instrument or act of the Board of Managers on behalf of the Company shall be
conclusive evidence in favor of any third party dealing with the Company that the Board of Managers
has the authority, power, and right to execute and deliver such contract or instrument and to take
such action on behalf of the Company.



               Section 4.2.2 Authority for Specific Actions. Without limiting the authority of the
Board of Managers pursuant to Section 4.2.1, subject to Unanimous Approval if required in
accordance with Exhibit B, the Board of Managers, upon a Majority Vote, is authorized to
take the following actions on behalf of the Company and its Subsidiaries:



               (a) to hold assets of the Company in the name of one or more trustees, nominees, other agents
or, directly or indirectly, through one or more Subsidiaries, and to cause any Subsidiary to have
such tax status as the Board of Managers may deem appropriate, including treatment as a real estate
investment trust (a “REIT”) as defined in Code Section 856;



               (b) to cause the Company to acquire, improve, develop, redevelop, rehabilitate, repair,
replace, mortgage, hold, sell, own, lease, operate, maintain, exchange, and otherwise deal with the
Properties, the Company’s interest in any Subsidiary and/or any other property, assets, investments
or Real Estate Investments at any time owned by the Company, and any real and personal property
incidental thereto and in interests therein, and any property, asset or investment received in
exchange therefor, including, without limitation, an interest in any



14









 







entity to which any Property
is transferred in accordance with this Agreement, as the Board of Managers, in its discretion,
deems to be necessary or desirable to carry out the purpose of the Company;



               (c) to cause the Company to form, organize, acquire, invest in, own, manage, operate, convert,
merge, combine, consolidate, divide, restructure, sell, exchange and otherwise deal with one or all
of the Properties, Subsidiaries and/or Real Estate Investments;



               (d) to cause the Company to pledge, assign, sell, exchange, transfer and/or otherwise deal
with any or all of the Properties and/or the Company’s interest in any of the Subsidiaries;



               (e) to cause the Company to contribute, sell, exchange, assign and/or transfer one or all of
the Properties to one or more real estate investment trusts and/or other entities in exchange for
cash, notes, stock and/or other equity and/or debt interests in any such real estate investment
trusts and/or other entities;



               (f) to cause the Company to merge, combine with, consolidate with, be acquired by and/or
otherwise become a part of, one or more real estate investment trusts and/or other entities in
exchange for cash, notes, stock and/or other equity and/or debt interests in such real estate
investment trusts, other entities and/or Affiliates of any of the foregoing;



               (g) to convert the Company to a corporation, to hold an initial public offering of shares or
stock in the Company and/or to sell the Company, whether or not in exchange for cash or an
ownership interest in such other entity;



               (h) to borrow money and to authorize any Subsidiary to borrow money, and issue evidences of
indebtedness, letters of credit and guaranties in connection with the business and affairs of the
Company and/or any Subsidiary, to guarantee the obligations of any Subsidiary or any third party
(including, without limitation, debt guaranties, nonrecourse guaranties of any nature, completion
guaranties and environmental guaranties), to cause any Subsidiary to guarantee the obligations of
the Company, other Subsidiaries and other third parties, to secure any such borrowings,
indebtedness and/or guaranties by mortgages, pledges or other liens on the Properties or any assets
of the Company or the Subsidiaries, to enter into participating debt arrangements and to authorize
one or more of the Subsidiaries to enter into participating debt arrangements, to enter into
convertible debt arrangements and to authorize one or more of the Subsidiaries to enter into
convertible debt arrangements, to hedge interest rate changes on borrowings, to use as collateral
for any such obligations the capital commitments to the Company or Subsidiaries and any other
assets of the Company and its Subsidiaries, and to prepay in whole or in part, refinance, increase,
modify or extend such obligations;



               (i) to refinance, prepay (in whole or in part), recast, modify, renew, extend and/or
restructure any mortgage on the Properties or any other indebtedness of the Company and/or one or
more of the Subsidiaries and to execute any documents in connection therewith;



               (j) to maintain such insurance as the Board of Managers may deem appropriate to protect the
Properties and the other assets and interests of the Company, the



15









 







Subsidiaries and the Indemnified
Parties and to satisfy any contractual undertakings of the Company or any Subsidiary;



               (k) subject to Section 4.6 and Section 4.10, to enter into transactions with Affiliates;



               (l) to provide interim financing as the Board of Managers deems appropriate in connection with
making, holding or disposing of Real Estate Investments;



               (m) to operate, provide and manage such other businesses and services as the Board of
Managers, in its discretion, deems necessary or desirable in connection with any of the Properties
or any assets of the Company and/or any of the Subsidiaries;



               (n) to enter into construction management, property management, leasing, development,
servicing and special servicing or other service provider arrangements with respect to the
Properties or any assets of the Company or any Subsidiary, including, without limitation, a
management agreement with Northland Properties Management LLC and agreements that provide for
incentive compensation, subject in each case to compliance with Sections 4.6 and 4.10, as
applicable;



               (o) to acquire, by purchase, lease or otherwise, any and all property which may be necessary
or desirable to carry out the business of the Company and/or any of the Subsidiaries;



               (p) to lease and re-lease any or all of the Properties in whole or in part, including, subject
to Section 4.10, leases to Members and their Affiliates;



               (q) to sell, convey, assign, transfer, exchange (for other property and/or for interests in
any entity to which any or all of the assets of the Company or the Subsidiaries may be transferred)
or otherwise dispose of any or all of the assets of the Company, including any or all of the
Properties and/or any of the Company’s interests in any of the Subsidiaries, and to enter into
brokerage agreements with others (including Members and their Affiliates) relating thereto, and pay
customary brokerage commissions and other fees and expenses in connection therewith;



               (r) to take all actions appropriate to the liquidation of the Company and/or any of the
Subsidiaries;



               (s) to establish reserves for any Company purposes, including, without limitation, for tenant
improvements, leasing commissions, capital improvements, repairs, replacements, renovations and
working capital, and to fund such reserves with any assets of the Company or its Subsidiaries,
including without limitation, borrowed funds;



               (t) to pay to the Members and/or their Affiliates any and all fees, reimbursements, interest
payments and loan repayments expressly permitted under the terms of this Agreement;



16









 





               (u) to pay, extend, renew, modify, adjust, submit to arbitration, prosecute, defend,
compromise, or confess judgment upon such terms as it may determine and upon such evidence as it
may deem sufficient, any debt obligation, suit, liability, cause of action or claim, including
taxes, either in favor of or against the Company and/or any of the Subsidiaries;



               (v) to make decisions for and act on behalf of the Company and/or its Subsidiaries in dealing
with the Internal Revenue Service and other tax authorities;



               (w) to cause the Company and/or any of the Subsidiaries to make or revoke any of the tax
elections provided for under the Code or the Treasury Regulations;



               (x) to pay full and/or partial recourse debts and obligations prior to nonrecourse debts or
obligations;



               (y) to invest all funds of the Company and/or its Subsidiaries;



               (z) to admit additional Members to the Company in accordance with Section 3.7, including,
without limitation, through the issuance of additional Units or Interests in the Company in one or
more series or classes on terms and conditions determined by the Board of Managers in its sole
discretion;



               (aa) to engage in any kind of activity and to perform and carry out contracts of any kind
necessary to, in connection with or incidental to, the accomplishment of the purposes of the
Company and/or any of the Subsidiaries;



               (bb) to do all things, carry on any activities and enter into, perform, modify, supplement or
terminate any agreements of any kind (including transactions and agreements with Affiliates of one
or more of the Members), in connection with or incidental to the furtherance of the purpose of the
Company, so long as such things, activities and agreements may be lawfully done, carried on or
entered into by the Members under the laws of the State of Delaware;



               (cc) to authorize any Subsidiary to do all things, carry on any activities and enter into,
perform, modify, supplement or terminate any agreements of any kind (including transactions and
agreements with Affiliates of one or more of the Members), in connection with or incidental to the
furtherance of the purpose of any Subsidiary and/or the Company; and



               (dd) the distribution of Company cash.



     Section 4.3 Exercise of Authority; Guarantee(a) . In exercising its authority under
this Agreement, the Board of Managers may, but shall be under no obligation to, take into account
the tax consequences to any Member of any action taken (or not taken) by it. The Board of Managers
and the Company shall not have any liability to a Member for monetary damages or otherwise for
losses sustained, liabilities incurred or benefits not derived by such Member in connection with
such decisions so long as the Board of Managers has acted pursuant to its authority under this
Agreement. The Board of Managers does not in any way guarantee the return of any Member’s
Contributions or a profit for the Members from the Properties.



17









 





     Section 4.4 Meetings and Action of the Board of Managers. Except as otherwise set
forth in this Agreement, all action to be taken by the Board of Managers thereof shall be taken at
a meeting of the Board of Managers, by the affirmative vote of a majority in number of the Board
Members then entitled to vote on the matter (a “Majority Vote”). If action is to be taken at a
duly called meeting of the Board of Managers, notice of the time, date, place and purpose of such
meeting shall be given to each Board Member then entitled to vote on the matter by the Board
Member(s) calling the meeting by personal delivery, telephone or fax sent to the address of each
Board Member then entitled to vote on the matter set forth on Exhibit C at least three (3)
Business Days in advance of the meeting; provided, however, no notice need be given
to a Board Member who waives notice before or after the meeting or who attends the meeting without
protesting at or before its commencement the inadequacy of
notice to him or her. Meetings of the Board of Managers shall be held at least quarterly.
The Board Members may attend a meeting of the Board of Managers in person or by proxy, and may
participate in such meeting by means of conference call or similar communications equipment that
permits all Board Members participating in the meeting to hear and speak to each other. A chairman
selected by the Northland Members shall preside over all meetings of the full Board of Managers.
The chairman shall determine the order of business and the procedures to be followed at each such
meeting. Any action required or permitted to be taken at any meeting of the Board of Managers may
be taken without a meeting if one or more written consents to such action shall be signed by at
least a majority of the Northland Board Members and at least one (1) Tarragon Board Member. Each
Board Member may authorize any Person or Persons to act for him or her by proxy on all matters in
which a Board Member is entitled to participate, including waiving notice of any meeting, or voting
or participating at a meeting. Every proxy must be signed by the Board Member or its
attorney-in-fact. No proxy shall be valid after the expiration of eleven (11) months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of
the Board Member executing it, such revocation to be effective upon the Company’s receipt of
written notice thereof. Such written consents shall be delivered to the Company at the principal
office of the Company and, unless otherwise specified, shall be effective on the date when the
first consent is delivered. To the extent that this Agreement permits the Board of Managers to
request materials, reports, information or clarifications, such request may be made by any
individual Board Member without further action by the Board of Managers.



     Section 4.5 Expenses; Compensation of Board Members. Board Members shall be
reimbursed by the Company for all reasonable out-of-pocket expenses incurred by them in connection
with their service on the Board of Managers (including all reasonable travel and accommodation
expenses) but shall not receive any compensation for their service on the Board of Managers.



     Section 4.6 Unanimous Approval Requirement. Notwithstanding any provision of this
Agreement to the contrary, the Board of Managers shall not take or cause or permit the Company or
any Subsidiary to take any of the actions described on Exhibit B without in each instance
first obtaining Unanimous Approval.



     Section 4.7 Employees. Neither the Company nor any Subsidiary shall engage any
employees; provided, however that the Company may select natural persons to be
designated as officers of the Company with such titles as “president,” “vice president,”
“secretary,” or “treasurer” or titles the Board of Managers in its sole discretion may determine.



18









 





     Section 4.8 Certain Loans by the Members. The Board of Managers may from time to time make
written request (a “Loan Request Notice”) that the Members, pro rata in accordance with their
respective Percentage Interests, make loans to the Company for use by the Company and/or its
Subsidiaries in connection with the Multifamily Business. Such loans shall have the terms and
conditions as may be specified by
the Board of Managers in the Loan Request Notice, and may be secured by liens or other charges upon
property of the Company or any Subsidiary as determined by the Board of Managers. Such terms and
conditions for such loans shall include that the loan shall bear interest compounded monthly, at
the then current market rates, subject to a minimum annual percentage of 10%. No Member shall have
any obligation to make any such loans, and to the extent that one or more of the Members decline a
request to make such a loan, the Members who accepted such loan request (or it Affiliates) will
have the right to make the loans declined by the other Members. A Member shall be deemed to have
declined a request to make such a loan if within fifteen (15) days of the receipt of a Loan Request
Notice, a Member has not given written notice to the Board of Managers indicating whether or not it
agrees to make the loan specified in the Loan Request Notice. Members that participate in the loan
request shall make such loan not later than thirty (30) days after the receipt of such Loan Request
Notice by wire transfer of immediately available funds to the account designated in the Loan
Request Notice. Such loans shall not be considered an Affiliate transaction subject to Unanimous
Approval.



     Section 4.9 Tax Classification. The Board of Managers shall take all reasonably necessary
actions to ensure that the Company is treated for federal income tax purposes as a partnership and
not as an association or publicly traded Company taxable as a corporation. The Company shall not
elect to be treated other than as a partnership for federal income tax purposes. Subject to the
Unanimous Approval required in accordance with Exhibit B, the Board of Managers may cause
or permit any Subsidiary to be classified in such manner as the Board of Managers may deem
appropriate.



     Section 4.10 Standards of Conduct and Modification of Duties; Certain Transactions with
Affiliates.



               (a) In taking any action as a Board Member, each Board Member shall have no duty to consider
the separate interests of, or any factors affecting, any Member (or any such Member’s direct or
indirect stockholders (or other owners) or anyone claiming by, through or on behalf of any such
Member (including any creditor)), other than the Member that appointed such Board Member. No
Member shall owe any duty (including any fiduciary duty) to any other Member (or such other
Member’s direct or indirect stockholders (or other owners) or anyone claiming by, through or on
behalf of such other Member (including any creditor)), other than the implied contractual covenant
of good faith and fair dealing. No Board Member shall owe any fiduciary duty to any Member (or any
Member’s direct or indirect stockholders (or other owners) or anyone claiming by, through or on
behalf of any Member (including any creditor)), other than the Member appointing such Board Member.
Notwithstanding the foregoing, however, each Board Member shall owe to the Company the same duties
that a member of the board of directors of a Delaware corporation organized under the General
Corporation Law of the State of Delaware would owe to such corporation. The provisions of this
Agreement, to the extent they restrict or eliminate the duties (including fiduciary duties) and
liabilities of a Member or a Board



19









 







Member otherwise existing at law or in equity are agreed by the
Members to replace such other duties and liabilities of the Members and the Board Members.



               (b) Subject to the Unanimous Approval required in accordance with Exhibit B, the
Company and its Subsidiaries may from time to time enter into transactions with a
Member or any of its Affiliates. Except as provided in Section 4.8, Section 4.10(d) and
Section 5.2(h), the terms and conditions of such transaction shall be no more favorable to the
Member or such Member’s Affiliate(s) as those that would then be available to the Company or such
Subsidiary, as applicable, in an arm’s length transaction from a Third Party not an Affiliate of
such Member.



               (c) Notwithstanding any provision contained in this Agreement to the contrary, the Board of
Managers may cause the Company to form or invest in one or more commingled investment vehicles (a
“Fund”) and allocate to the Management Company or one or more Affiliates of Northland Corp a
promoted interest in such Fund, and the Management Company or Affiliates of Northland Corp may also
receive asset management fees and other similar fees, in respect of the Fund or its investments;
provided, however, that in each such case Tarragon Corp shall have been granted a
participation interest equal to the Tarragon Initial Interest (a “Promote Participation”) in the
economic benefit of such promoted interest, asset management fees and/or other fees, subject to the
dilution described in the following sentence. The Tarragon Corp Promote Participation will be
subject to reduction as follows: (i) if Tarragon Corp’s Percentage Interest in the Common Units is
hereafter reduced as a result of an additional Contribution made by Northland Fund II, L.P. or
Northland Fund III, L.P. to the Company, then Tarragon Corp’s Promote Participation in any Fund
thereafter formed will be reduced by the same percentage reduction from its original Promote
Participation (e.g., if Tarragon Corp’s Percentage Interest in the Company were reduced from 20% to
15% (a 25% reduction), then its Promote Participation in any Fund thereafter formed will also be
reduced by 25%, resulting in a reduction from 22% to 16.5%, but without reducing Tarragon Corp’s
Promote Participation in Funds formed prior to the date of such Contribution) and (ii) if an
employee, officer or director of Tarragon Corp is granted a Promote Participation in a particular
Fund, then Tarragon Corp’s Promote Participation in that Fund will be reduced by the Promote
Participation so granted (but not below zero) (e.g., if a director of Tarragon Corp were to be
granted a Promote Participation of 3% in a Fund, then Tarragon Corp’s Promote Participation in that
Fund would be reduced from 22% to 19%), but without reducing Tarragon Corp’s Promote Participation
in other Funds where no such grant has been made. Because the Company will not invest in Northland
Fund L.P., Northland Fund II, L.P. or Northland Fund III, L.P., none of them will constitute a
“Fund” under this Section 4.10(c), and Tarragon Corp will have no Promote Participation in any of
them. Tarragon Corp’s Promote Participation will be directed to and payable through the Management
Company, or to the extent any of the foregoing are not paid to Northland Corp or its Affiliates
through the Management Company, then through such other means as Northland Corp and Tarragon Corp
shall agree.



               (d) In accordance with this ARTICLE IV, the Board of Managers is expressly authorized for, in
the name of, and on behalf of the Company to enter into a management agreement with the Management
Company, as long as such management agreement is on substantially the same economic terms as the
interim management agreement (“Interim Management Agreement”) attached hereto as Exhibit D,
and may permit the Company (or its



20









 







applicable Subsidiary) to enter into property management
agreements (each, a “Property Management Agreement”) with the Management Company, with respect to
the Properties (or any later acquired Properties) in a form approved by the Board of Managers.



     Section 4.11 Exculpation. No Indemnified Party shall have any liability to the Company or any Member for any loss
suffered by the Company or any Member which arises out of any action or inaction of an Indemnified
Party, unless such action or inaction (i) is undertaken or omitted in connection with providing
services to the Company or any Subsidiary or the performance of the Board of Manager’s duties under
this Agreement and (ii) is finally adjudicated by a court of competent jurisdiction to constitute
fraud or willful misconduct. To the extent permitted by law, each Indemnified Party’s duties
(including fiduciary duties) to the Company, any Member or any other Person shall be limited to
those set forth in this Agreement.



     Section 4.12 Indemnification. Subject to the limitations contained in this Section
4.12, the Company shall indemnify each Indemnified Party against all losses, liabilities, damages
and expenses incurred by such Indemnified Party as a result of any actions or omissions taken or
omitted in connection with providing services to the Company or any Subsidiary or the performance
of the Board of Managers’ or the Liquidating Agent’s duties under this Agreement or by reason of
any action or omission taken or omitted on behalf of the Company or any Subsidiary. Such indemnity
shall cover, without implied limitation, judgments, settlements, fines, penalties and counsel and
expert fees incurred in connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, before or threatened to be brought before any court or
administrative body, in which an Indemnified Party may be or may have been involved as a party or
otherwise, or with which it may have been threatened, by reason of being or having been an
Indemnified Party, or by reason of any act or omission on behalf of the Company or any Subsidiary
or otherwise taken or omitted in connection with providing services to the Company or any
Subsidiary or the performance of the Board of Managers’ or the Liquidating Agent’s duties under
this Agreement. No Indemnified Party shall be entitled to indemnification pursuant to this Section
4.12 with respect to any matter as to which such Indemnified Party shall have been finally
adjudicated by a court of competent jurisdiction in any such action, suit or other proceeding to
have committed an act or omission (i) that was undertaken or omitted in connection with providing
services to the Company or any Subsidiary or the performance of the Board of Managers’ or the
Liquidating Agent’s duties under this Agreement and (ii) constituted fraud or willful misconduct.
No Indemnified Party shall be entitled to indemnification pursuant to this Section 4.12 with
respect to any action, suit or proceeding that relates solely to a dispute between or among the
Members or the Board of Managers or any Affiliate providing services to the Company or its
Subsidiaries and any of its members, managers or employees. The right of indemnification provided
hereby shall not be exclusive of, and shall not affect, any other rights to which any Indemnified
Party may be entitled and nothing contained in this Section 4.12 shall limit any lawful rights to
indemnification existing independently of this Section 4.12.



     Section 4.13 Payment of Indemnification Expenses. Prior to the final disposition of
any claim or proceeding with respect to which any Indemnified Party may be entitled to
indemnification hereunder, in the Board of Managers’ discretion, the Company may pay to the
Indemnified Party, in advance of such final disposition, an amount equal to all expenses of such
Indemnified Party reasonably incurred in the defense of such claim or proceeding so long as the



21









 







Company has received a written undertaking of such Indemnified Party to repay to the Company the
amount so advanced if it shall be finally
adjudicated by a court of competent jurisdiction that such Indemnified Party was not entitled
to indemnification hereunder.



     Section 4.14 Initial Public Offering. Without limiting the authority of the Board of
Managers pursuant to Section 4.2.1, the Board of Managers shall have the authority to undertake an
initial public offering of the securities of the Company (or any successor of the Company) or any
entity holding interests in the Company through an “UP-REIT” or similar structure. In connection
with an initial public offering the Tarragon Members will have the opportunity to redeem, convert
or exchange their Common Units in the Company (or any successor operating partnership) for shares
of a publicly traded entity, or otherwise to sell their Common Units into the public market if such
opportunity is available in an initial public offering to any Member.



ARTICLE V




CAPITAL CONTRIBUTIONS




     Section 5.1 Initial Contributions. Pursuant to the Contribution Agreement, each
Member has initially contributed to the Company its respective interests in certain of their
respective subsidiaries and other property, which Contributions are deemed to have the values
ascribed on Schedule A. In consideration for such initial Contribution, each of the
Northland Members and Tarragon Members have received the number of Common Units set forth opposite
such Member’s name on Schedule A. All Contributions shall be set forth on Schedule
A, as amended from time to time.



     Section 5.2 Additional Capital Contributions.



               (a) In connection with any subsequent “Closing” under the Contribution Agreement, the Members
or other “Contributors” as defined in the Contribution Agreement) will contribute their respective
interests in certain entities and other property, which Contributions will be deemed to have the
values ascribed by the Contribution Agreement. In consideration for such additional Contributions,
each such Member or other Contributor will receive the number of Common Units required by the
Contribution Agreement. Until December 31, 2008, all Common Units will be issued at a value of
$10.00 per Unit.



               (b) If the Board of Managers determines that additional capital is needed, in excess of that
provided in Section 5.1 and Section 5.2(a), and that such additional capital shall be raised
through the issuance of Common Units or other Interests that will have participation rights that
are in any respect pari passu with an outstanding class of Common Units, then the Board of Managers
may issue a notice to the Members requesting that the Members fund such additional capital as a
cash Contribution, pro rata in proportion to their respective Percentage Interest (a “Funding
Notice”). Each Funding Notice shall set forth (i) the total amount of additional Contributions
being requested, (ii) the reason the Contributions are needed, together with such ancillary
documentation relating to the same sufficient to adequately inform
the Members in such regard, (iii) the amount of additional Contributions being requested from
each Member and the wire transfer instructions for the account to which such Contributions should
be made and (iv) the number of Common Units (or other Interests) to be issued to the



22









 







Members in
respect of their Contribution. Each Member shall give written notice to the Board of Managers
indicating whether or not it agrees to make an additional capital Contribution equal to its pro
rata share, based upon its Percentage Interest, of the requested funds (a “Funding Election
Notice”) within ten (10) Business Days of receipt of such Funding Notice. If a Member elects to
make such Contributions, then such Member shall make such Contributions within ten (10) Business
Days of delivery of such Funding Notice. Each Member shall have the right (but not the obligation)
to advance to the Company as a Contribution of additional capital such Member’s Percentage Interest
of the additional capital requested in such Funding Notice. There shall be only one Funding Notice
in connection with the implementation of the rights of the Members under this Section 5.2.



               (c) If any Member (a “Non-Contributing Member”) fails to timely deliver a Funding Election
Notice or if so elected, fails to make any additional Contributions (or any portion thereof)
requested under this Section 5.2, and any other Member (a “Contributing Member”) has delivered a
Funding Election Notice that it will make its pro rata share of such additional Contributions (or
any portion thereof), then each Contributing Member may either (i) contribute the portion of such
requested Contribution the Non-Contributing Member failed to contribute (if there is more than one
Contributing Member, then in proportion to the relative Percentage Interest of such Contributing
Members, unless they otherwise agree), and receive in respect of such additional Contributions the
Units or Interests corresponding thereto or (ii) withdraw its share of such requested additional
Contributions. Each Member acknowledges that failure to participate in any funding pursuant to
this Section 5.2 may result in a dilution of its interest and rights in the Company. No Member
shall be required to provide funds pursuant to this Section 5.2. The rights set forth in this
Section 5.2 shall constitute the sole remedy and recourse of the Company in respect of the failure
of any Member to make any additional Contribution.



               (d) Subject to the last sentence of Section 5.2(a), the number of Units or Interests to be
issued in connection with any additional Contributions shall reflect the fair market value of Units
or Interests in the Company at the time, as determined by the Board of Managers in good faith;
provided, however, that if a Funding Notice provides for Contributions exceeding,
on an aggregate cumulative basis, more than $35 million per annum after the date hereof, such fair
market value shall be determined on the basis of appraisals of the Properties of the Company and
its Subsidiaries, conducted by qualified MAI appraisers, not more than 90 days prior to the
issuance of such Funding Notice. If in any given year, a Funding Notice is not made, or such
Funding Notice is for less than $35 million, than any such amounts not called for, shall roll
forward into the next year and shall be in addition to the $35 million per annum available in the
following year. An illustrative example of such carry forward is set forth on Schedule
5.2(d). Notwithstanding the provisions of this Section 5.2(d), any Contribution to the
Company or investment in any Subsidiary by Northland Fund III, L.P. shall be permitted and shall be
excluded from the $35 million per annum available in any year.



               (e) Notwithstanding the provisions of this Section 5.2, if the Board of Managers determines
that additional capital is needed, and that such additional capital shall be
raised through the issuance of non-participating Preferred Units to a Person, including any
Member, then, except as set forth in Section 5.2(f), no Member shall have any preemptive,
preferential, or other similar right to purchase such Preferred Units.



23









 





               (f) If any Member or any Affiliate of any Member is offered the right to purchase any
Preferred Units, then each Member shall have a preemptive right to purchase on a pro rata basis
based upon its Percentage Interest, such Preferred Units in accordance with Section 5.2(g).



               (g) If in accordance with Section 5.2(f) the sale or issuance of Preferred Units is subject to
preemptive rights in favor of the Members, then the Company will not sell or issue any Preferred
Units to any Person, including, without limitation, any other Member, unless the Company first
submits a written notice to each Member identifying the terms and conditions of the proposed sale
(including price, number of Preferred Units and all other material terms), and offers to each
Member the opportunity to purchase its pro rata share based on its Percentage Interest of the
Common Units at the time of such notice) of such Preferred Units (subject to increase for
over-allotment if any Member does not fully exercise its preemptive rights) on terms and
conditions, including price, not less favorable than those on which the Company proposes to issue
or sell such Preferred Units. The Company’s offer pursuant to this Section 5.2(g) shall remain
open and irrevocable for a period of fifteen (15) days following receipt by the Members of such
written notice. Each Member may elect to purchase the Preferred Units so offered by giving written
notice thereof to the Company within such 15-day period, including in such written notice the
maximum number of Preferred Units that such Member wishes to purchase, including the number of
Preferred Units it would purchase if one or more other Members do not elect to purchase their
respective pro rata amount. Any Preferred Units that are not purchased by the Members pursuant to
the offer set forth in this Section 5.2(g), may be sold by the Company to any Person, including,
without limitation, any other Member or its Affiliates, but only on terms and conditions not more
favorable than those set forth in the notice to the Members, at any time within ninety (90) days
following the termination of the above-referenced 15-day period, but may not be sold to any other
Person or on terms and conditions, including price, that are more favorable to the purchaser than
those set forth in such offer or after such 90-day period without renewed compliance with this
Section 5.2(g).



     Section 5.3 Form of Contributions. Unless otherwise approved by the Board of
Managers, all Contributions after the date hereof shall be paid in cash. After the date hereof,
other than those Contributions contemplated by the Contribution Agreement, any non-cash
Contributions will be valued at fair market value at the time of Contribution to the Company, as
determined by the Board of Managers in good faith. All cash contributions shall be made by wire
transfer to the account designated in the Funding Notice. Any reimbursements or distributions to
any Member provided for in this Agreement shall be made by wire transfer of funds to such account
as may be designated by such Member.



     Section 5.4 No Right to Interest or Return of Capital. Except as specifically provided for herein, no Member shall be entitled to any return of,
or interest on, Contributions to the Company or on such Member’s Capital Account, except to the
extent, if any, that distributions made pursuant to this Agreement or upon dissolution of the
Company may be considered as such by law and then only to the extent provided for in the Agreement.



24









 





     Section 5.5 No Third-Party Rights. Any obligations or rights of the Company or the
Members to make or require any Contribution under this ARTICLE V shall not result in the grant of
any rights to or confer any benefits upon any Person who is not a Member.



     Section 5.6 Limitations. Except as set forth in this ARTICLE V, no Member shall be
entitled or required to make any additional Contribution to the Company. No Member shall be
obligated to guarantee any indebtedness or other obligations of the Company. No Member shall have
any liability for the repayment of the Contribution of any other Member and each Member (and any
former Member) shall look only to the assets of the classes of Units held by such Member for return
of its Contributions. No Member shall be entitled to any interest or compensation with respect to
its services rendered on behalf of the Company except as specifically provided in this Agreement.
No Member shall have any personal liability for the repayment of the Contribution of any other
Member; and each Member shall look only to the assets to the Company for return of his, her or its
Contribution.



     Section 5.7 Recourse Guaranty. The Tarragon Members or their Affiliates have
previously issued one or more recourse guarantees or environmental or other indemnities, including
non-recourse carve-out guaranties in respect of certain prior obligations of Tarragon Corp or its
subsidiaries, as listed on Exhibit E-1. The Northland Members or their Affiliates have
previously issued one or more recourse guarantees or environmental or other indemnities including
non-recourse carve-out guarantees in respect of certain prior obligations of Northland Corp or its
subsidiaries as listed on Exhibit E-2. Each of such guarantees or indemnities set forth on
Exhibit E-1 and Exhibit E-2, is referred to as a “Recourse Guaranty.” In addition,
if requested by the Board of Managers, a Member or its Affiliate may in the future issue one or
more additional Recourse Guaranties in respect of the obligations of the Company or its
Subsidiaries in respect of the Multifamily Business; provided, however, that no
Member shall have any obligation to issue, or to cause its Affiliate to issue, any Recourse
Guaranty. If a Member or its Affiliate becomes obligated to make any payment under a Recourse
Guaranty, the Company will upon request promptly pay or reimburse such Member or Affiliate for such
payment; provided, however, that the Company shall not pay or reimburse a Member or
its Affiliate in respect of any such payment under a Recourse Guaranty to the extent that such
payment arises as a result of (i) the gross negligence, willful misconduct, fraud or bad faith of
such Member or its Affiliate or (ii) if such liability arose due to an act, occurrence or claim
prior to the date of contribution of a Property pursuant to the Contribution Agreement (any such
payment described in clause (i) or clause (ii) of this proviso, a “Retained Liability”). Promptly
following the request of any Member who is entitled to receive (or whose Affiliate is
entitled to receive) any payment or reimbursement under this Section 5.7), the Board of
Managers may, but is not required to, issue a Funding Notice requesting that the Members make
additional Contributions, pro rata in accordance with their respective Percentage Interest, to the
extent necessary for the Company to satisfy its payment and reimbursement obligations under this
Section 5.7.



25









 





ARTICLE VI




CAPITAL ACCOUNTS, ALLOCATIONS OF INCOME AND LOSS 




     Section 6.1 Capital Accounts. A separate capital account (each, a “Capital Account”)
shall be maintained for each Member. Capital Accounts shall be maintained in accordance with the
rules of Section 1.704-1(b)(2)(iv) of the Treasury Regulations, and this Section 6.1 shall be
interpreted and applied in a manner consistent with said Section of the Treasury Regulations. The
Company shall adjust the Capital Accounts of the Members to reflect revaluations of the Company
property whenever the adjustment would be permitted under Treasury Regulations Section
1.704-1(b)(2)(iv)(f)(5), unless the Board of Managers reasonably determines that any such
adjustment is not necessary to reflect the economic interests of the Members. In the event that
the Capital Accounts of the Members are so adjusted, (i) the Capital Accounts of the Members shall
be adjusted in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g) for allocations of
depreciation, depletion, amortization and gain or loss, as computed for book purposes, with respect
to such property and (ii) the Members’ distributive shares of depreciation, depletion, amortization
and gain or loss, as computed for tax purposes, with respect to such property shall be determined
so as to take account of the variation between the adjusted tax basis and book value of such
property in the same manner as under Section 704(c) of the Code. In the event that Code Section
704(c) applies to Company property, the Capital Accounts of the Members shall be adjusted in
accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g) for allocations of depreciation,
depletion, amortization and gain and loss, as computed for book purposes, with respect to such
property. The amounts of all distributions to Members (other than liquidating distributions) shall
be determined pursuant to Section 7.1.



     Section 6.2 Allocations



               (a) After giving effect to the provisions of Sections 6.2(b) through 6.2(e), and subject to
Section 6.2(f), net income and net loss of the Company (as determined for purposes of adjusting
Capital Accounts in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)) shall be
allocated among the Members so as to make, as nearly as possible, the Adjusted Capital Accounts of
the Members stand in proportion to their Percentage Interests.



               (b) Notwithstanding any other provision of this Agreement, in the event there is a net
decrease in Partnership Minimum Gain during a taxable year of the Company, the Members shall be
allocated items of income and gain in accordance with Treasury Regulations Section 1.704-2(f). For
purposes of this Agreement, the term “Partnership Minimum Gain” shall have the meaning set forth in
Treasury Regulations Section 1.704-2(b)(2), and any Member’s share of Partnership Minimum Gain
shall be determined in accordance with
Treasury Regulations Section 1.704-2(g)(1). This Section 6.2(b) is intended to comply with
the minimum gain charge-back requirement of Treasury Regulations Section 1.704-2(f) and shall be
interpreted and applied in a manner consistent therewith.



               (c) Notwithstanding any other provision of this Agreement, non-recourse deductions shall be
allocated one hundred percent (100%) to the Members, pro rata, in proportion to their Percentage
Interests. “Non-recourse deductions” shall have the meaning set forth in Treasury Regulations
Section 1.704-2(b)(1).



               (d) Notwithstanding any other provision of this Agreement, to the extent required by Treasury
Regulations Section 1.704-2(i), any items of income, gain, loss or deduction of the Company that
are attributable to a nonrecourse debt of the Company that



26









 







constitutes “partner nonrecourse debt”
as defined in Treasury Regulations Section 1.704-2(b)(4) (including chargebacks of partner
nonrecourse debt minimum gain) shall be allocated in accordance with the provisions of Treasury
Regulations Section 1.704-2(i). This Section 6.2(d) is intended to satisfy the requirements of
Treasury Regulations Section 1.704-2(i) (including the partner nonrecourse debt minimum gain
chargeback requirements) and shall be interpreted and applied in a manner consistent therewith.



               (e) Any Member who unexpectedly receives an adjustment, allocation or distribution described
in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) that causes or increases a
deficit balance in its Capital Account shall be allocated items of income and gain in an amount and
a manner sufficient to eliminate, to the extent required by the Treasury Regulations Section
1.704-1(b)(2)(ii)(d), such deficit balance as quickly as possible. This Section 6.2(e) is intended
to comply with the alternate test for economic effect set forth in Treasury Regulations Section
1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in a manner consistent therewith.



               (f) The allocation provisions contained in this ARTICLE VI are intended to comply with Code
Section 704(b) and the Treasury Regulations promulgated thereunder, and shall be interpreted and
applied in a manner consistent therewith. The Board of Managers in its reasonable discretion shall
modify such allocations as necessary to carry out the parties’ intended economic arrangement (to
make liquidating distributions in accordance with Percentage Interests) in a manner that complies
with such Code section and regulations. Without limiting the foregoing, to the extent consistent
with Code Section 704(b) and the Treasury Regulations promulgated thereunder, the Board of Managers
may modify the allocations provided for by this ARTICLE VI to the extent necessary to account for
any non-pro rata distributions that have been made pursuant to any other agreements and that
represent advances of distributions under this Agreement.



     Section 6.3 Allocations for Tax Purposes.



               (a) Subject to Section 6.3(b), net income and net loss to be allocated for income tax purposes
shall be allocated among the Members on the same basis as the corresponding “book” items are
allocated as provided in Section 6.2; provided, however, that the
tax items allocated to the Members pursuant to this Section 6.3 shall not be reflected in the
Members’ Capital Accounts.



               (b) If any asset of the Company is subject to Code Section 704(c) or reflected in the Capital
Accounts of the Members at a book value (as determined in accordance with Treasury Regulations
Sections 1.704-1(b)(2)(iv)(d) and 1.704-1(b)(2)(iv)(f)) that differs from the adjusted federal
income tax basis of such asset, then the tax items with respect to such asset shall be shared among
the Members in a manner that takes account of the variation between the adjusted federal income tax
basis of such asset and its book value in accordance with the requirements of Code Section 704(c),
the Treasury Regulations thereunder, and Treasury Regulations Section 1.704-1(b)(4)(i). For
purposes of making allocations under Code Section 704(c) (but not including so-called “reverse
Section 704(c) allocations”) with respect to any property contributed to the Company pursuant to
the Contribution Agreement, the Company shall adopt such allocation method as designated by the
contributing party with respect to each



27









 







such contributed property (the “Contributed 704(c)
Allocations”), provided that such designation is made within 60 days after such
contribution. Tarragon Members designate the “traditional method” without curative allocations for
their contributed properties in the absence of an express designation within the aforementioned
period. For purposes of making all other allocations under Code Section 704(c) (including
so-called “reverse Section 704(c) allocations” with respect to any Company property), the Company
shall adopt such allocation method as determined by the Board of Managers, provided
that such allocation method shall not alter the Contributed 704(c) Allocations.



               (c) Except as otherwise required by the Code and applicable Treasury Regulations thereunder,
in applying Code Section 704(c) to contributions by a Person (a “Contributor”) to the Company
involving direct or equity indirect interests in entities treated as partnerships for federal
income tax purposes (“Partnership Interests”), the following shall apply: (i) if there is a
contribution of all Interests in such partnership, and such partnership is deemed to no longer
exist for federal income tax purposes after such contribution, the contribution shall be considered
a contribution to the Partnership of the property owned by such partnership; and (ii) in any
contribution of Interests which results in the Company owning a direct or indirect interest in a
partnership (a “Lower Tier Partnership”), Code Section 704(c) shall be applied based on the
“aggregate theory” of partnerships such that allocations of taxable income or gain resulting from
the disposition of any property owned directly or indirectly by such Lower Tier Partnership and
with respect to the contributed Interests in such Lower Tier Partnership (in either case, to the
extent of any “Built In Gain”) shall be made in a manner consistent with allocating taxable income
or gain to the Contributor as if such property had been contributed by the Contributor to the
Company. The purpose of this Section 6.3(c) is to apply Code Section 704(c) principles to the
Contributor with respect to the properties owned by any Lower Tier Partnerships and Interests in
Lower Tier Partnerships contributed directly or indirectly to the Company by the Contributor, and
it shall be interpreted and applied in a manner consistent with such intent. Schedule 6.3(c) sets
for an example of the application of this Section 6.3(c). Any gain so allocated shall be
considered gain allocated pursuant to Section 704(c) and shall not increase the Capital Account of
the Contributor. “Built In Gain” shall mean the excess of the fair market value of such property
over its adjusted tax basis on the date the Interest is contributed to the Partnership, provided
that such Built In Gain shall be adjusted from time to time as may be required under the principles
of Code Section 704(c). In the event the foregoing is not permitted
under the Code and applicable Treasury Regulations, the Company will adopt such method under
Code Section 704(c) that is so permitted and that replicates to the greatest extent reasonably
possible, the intent of this Section 6.3(c) to apply the “aggregate theory” of partnerships in the
Section 704(c) allocations and to allocate gain thereunder in connection with the disposition of an
asset in a Lower Tier Partnership to the Contributor of the Partnership Interest to which such
asset relates.



     Section 6.4 No Deficit Restoration by Members. No Member shall be required to contribute
capital to the Company to restore a deficit balance in its Capital Account upon liquidation or
otherwise.



     Section 6.5 Allocations When Interests Change. In the event that during any calendar month
there is any change of Members or Interests (whether as a result of the admission of an additional
Member, a non de-minimis contribution of property by an existing Member, the



28









 







redemption by the
Company of all (or any portion) of any Member’s Interest, a transfer of Units or otherwise), the
following rules shall apply for purposes of this Article VI: (i) such change, contribution,
redemption, admission or transfer shall be deemed to have occurred as of the beginning of the first
day of the month in which such change occurred, (ii) the books of account of the Company shall be
closed effective as of the close of business on the day before any such change, contribution,
redemption, admission or transfer as set forth in clause (i) and the Company’s fiscal year that
includes such event shall thereupon be divided into two or more portions, (iii) each item of
income, gain, loss and deduction for the portion of such fiscal year ending with the date on which
the books of account of the Company are so closed shall be allocated to those persons who were
Members during such portion of such fiscal year (and taking into account their relative Percentage
Interests during such period) in accordance with Section 6.2, and (iv) each item of income, gain,
loss and deduction for the portion of such fiscal year beginning after the date on which the books
of account of the Company are so closed shall be allocated to those persons who are Members during
such portion of such fiscal year (and taking into account their relative Percentage Interests
during such period) in accordance with Section 6.2; provided that with respect to any contribution
of property to the Company, any such items of income, gain or loss arising from events that are of
the type described in the definition of Net Capital Proceeds shall be allocated based on an interim
closing of the books occurring on the date of such contribution.



     Section 6.6 Allocation of Excess Nonrecourse Liabilities. For purposes of allocating
“excess nonrecourse liabilities” within the meaning of Treasury Regulations Section 1.752-3(a)(3),
the Members agree that their shares of Company profits shall be in proportion to their Common
Percentage Interests.



ARTICLE VII




DISTRIBUTIONS




     Section 7.1 Distributions.



               (a) Except as otherwise provided in this ARTICLE VII, quarterly distributions of Operating
Cash Flow shall be made to the Members within thirty-five (35) days after the end of each calendar
quarter. Subject to Section 7.3, the timing of all other distributions, if any, shall be at the
sole discretion of the Board of Managers. Notwithstanding the foregoing, following the First
Closing (as defined in the Contribution Agreement) and until December 31, 2008 (or the earlier date
on which all of the Closings contemplated under the Contribution Agreement have taken place),
distributions of Operating Cash Flow shall be made the day before each such Closing to the Members,
pro rata, in proportion to their respective Common Unit Percentage Interests.



               (b) Net Capital Proceeds may be retained by the Company for reinvestment or distributed to the
Members, as determined from time to time by the Board of Managers.



               (c) Except to the extent otherwise expressly set forth in this Agreement and the Tax Matters
Agreement, all distributions shall be made to the Members, pro



29









 







rata, in proportion to their
respective Common Unit Percentage Interests. Unless otherwise expressly provided for in the terms
established for a new class of Units created in accordance with Section 3.7.1, no Unit or other
Interest shall be entitled to a distribution in preference to any other Unit or Interest.



     Section 7.2 Liability for Amounts Distributed. The Members hereby agree that, except as
otherwise expressly provided herein or required by applicable Law, no Member shall have an
obligation to return money or other property paid or distributed to such Member whether or not such
distribution was in violation of the Act. However, if any court of competent jurisdiction holds
that, notwithstanding the provisions of this Agreement, any Member is obligated to make any such
return, such obligation shall be the obligation of such Member and not of any other Person.



     Section 7.3 Distributions in Kind. The Board of Managers may make in kind
distributions to the Members pursuant to this Agreement, including distributions, either wholly or
partially, in restricted or unrestricted securities. Whenever securities are distributed pursuant
to this Section 7.3, each Member shall receive its pro rata share of each security.
Notwithstanding the foregoing, distributions in kind that are not made to the Tarragon Members and
the Northland Members, pro rata in proportion to their respective Percentage Interests, shall
require Unanimous Approval.



     Section 7.4 Distributions Upon Liquidation. Proceeds upon liquidation shall be
distributed to the Members in accordance with Section 12.4.



     Section 7.5 Withholding. The Company shall at all times be entitled to make payments with
respect to any Member in amounts required to discharge any obligation of the Company to withhold
from a distribution
otherwise payable to such Member or with respect to amounts allocable to such Member or to make any
other payments to any governmental authority with respect to any foreign, federal, state or local
tax or withholding liability arising as a result of such Member’s Interest in the Company (a
“Withholding Payment”). Any Withholding Payment made from funds withheld upon a distribution will
be treated as distributed to such Member for all purposes of this Agreement. Any other Withholding
Payment will be deemed to be a recourse loan by the Company to the relevant Member or, at the
option of the Board of Managers, in its discretion, any such other Withholding Payment may be
withheld from future distributions to which the relevant Member is entitled. The amount of any
Withholding Payment treated as a loan, plus interest thereon from the date of each such Withholding
Payment until such amount is repaid to the Company at an interest rate per annum equal to the prime
rate quoted in The Wall Street Journal from time to time, plus 2%, shall be repaid to the Company
(i) upon demand by the Company, (ii) by deduction from any distributions payable to such Member
pursuant to this Agreement (with the amount of such deduction treated as distributed to the Member)
as determined by the Board of Managers in its discretion, or (iii) by earlier payment by the Member
to the Company. If the proceeds to the Company from an investment are reduced on account of taxes
withheld at the source, and such taxes are imposed on, or with respect to, one or more of the
Members in the Company, the amount of the reduction shall be borne by the relevant Members and
treated as if it were paid by the Company as a Withholding Payment with respect to such Members.
If the proceeds to the Company from an investment are reduced on account of taxes withheld at the
source, and such taxes are imposed on the Company, the amount of the



30









 







reduction shall be treated as
an expense of the Company. This Section 7.5 and the other provisions of this Agreement shall be
applied consistently with the requirements of Treasury Regulations Section 1.704-1(b)(4)(viii).



ARTICLE VIII




OTHER ACTIVITIES




     Section 8.1 General Provisions. Except as otherwise provided in Section 8.2, any Member or
its Affiliates may engage independently or with others in other business ventures of every nature
and description, including, without limitation, providing services relating to assets of the type
included within the definition of Real Estate Investments and receiving compensation therefor and
the making or management of other investments and serving as a sponsor of other real estate funds.
Subject to Section 4.10, nothing in this Agreement shall be deemed to prohibit any Member or its
Affiliates from dealing or otherwise engaging in business with Persons transacting business with
the Company or its Subsidiaries. Subject to Section 4.10, neither the Company nor any Member shall
have any right by virtue of this Agreement or the relationship created hereby in or to such other
ventures or activities or to the income or proceeds derived therefrom, and the pursuit of such
ventures shall not be deemed wrongful or improper.



     Section 8.2 Exclusivity. Until the expiration of the Lock-Out Period, the Company and
its Subsidiaries shall be the sole and exclusive vehicle with regard to the Multifamily Business
and, except in connection
with the Company and its Subsidiaries, all business ventures of every nature and description
related to the Multifamily Business shall be prohibited by (i) Tarragon Corp and its Controlled
Affiliates and Ansonia LLC and its Controlled Affiliates (but excluding, for the avoidance of
doubt, Richard Frary and Joel Mael) and (ii) Northland Corp, each Northland Member, each Northland
Principal and their respective Controlled Affiliates. Notwithstanding the foregoing, if any
investment opportunity in the Multifamily Business is proposed by Tarragon Corp or any of its
Controlled Affiliates or Ansonia LLC or any of its Controlled Affiliates, as the case may be, to
the Company, and the Board of Managers does not approve such investment, with the Tarragon Board
Members voting in favor of such investment, then Tarragon Corp or its Controlled Affiliates or
Ansonia LLC or its Controlled Affiliates, as the case may be, may pursue such investment
opportunity, and the exclusivity provisions set forth herein shall not apply to such investment
opportunity. The exclusivity obligations under this Section 8.2 shall cease to apply to
(i) Tarragon Corp and its Controlled Affiliates and Ansonia LLC and its Controlled Affiliates, upon
the earlier of (x) the Tarragon Members ceasing to own at least 51% of the Tarragon Initial
Interest, (y) Tarragon Corp ceasing to have the right to appoint Board Members pursuant to Section
4.1 or (z) the exclusivity obligations under this Section 8.2 have ceased to apply to Northland
Corp, each Northland Member, each Northland Principal and their respective Controlled Affiliates,
and (ii) Northland Corp, the Northland Members, the Northland Principals and their respective
Controlled Affiliates, upon the Northland Members ceasing to own at least 51% of the Northland
Initial Interest. Notwithstanding anything to the contrary set forth in this Section 8.2, nothing
in this Agreement shall be deemed to prohibit Northland Corp, any Northland Member, any Northland
Principal, or any of their respective Controlled Affiliates from serving as a sponsor of any other
real estate funds except for real estate funds engaged in the Multifamily Business (unless the fund
engaged in the Multifamily Business is a Fund described in Section 4.10(c)).



31









 







Notwithstanding the
foregoing, each Northland Principal shall be permitted to acquire or hold at any one time a passive
investment of less than twenty percent (20%) of any corporation, partnership, or other entity which
is engaged, directly or indirectly, in business activities in competition with the Company or owns,
directly or indirectly, any other business which is engaged, directly or indirectly, in business
activities in competition with the Company.



ARTICLE IX




RIGHTS AND OBLIGATIONS OF MEMBERS




     Section 9.1 Limited Liability. No Member shall be personally liable to any third party for
any liability or other obligation of the Company. A Member that receives the return of any part of
its Contribution shall be liable to the Company for the amount of its Contribution so returned to
the extent, and only to the extent, provided by the Act or other applicable Law.



     Section 9.2 Wrongful Distributions. To the extent required by the Act or other applicable
law, a Member may, under certain circumstances, be required to return amounts previously wrongfully
distributed to such Member. It is the intent of the Company that, in connection with any
distribution to any Member, except
as provided in Section 9.1 or under the Act or other applicable Law, no Member shall be obligated
to pay or return any such amount to, or for the account of, the Company or any creditor of the
Company. The payment of any such money or distribution of any such property to a Member, whether
or not deemed to be a return of Contributions, shall be deemed to be a compromise within the
meaning of Section 17-502(b) of the Act and, to the fullest extent permitted by law, the Member
receiving any such money or property shall not be required to return any such money or property to
the Company or any creditor of the Company. However, if any court of competent jurisdiction holds
that, notwithstanding the provisions of this Agreement, any Member is obligated to make any such
payment, such obligation shall be the obligation of such Member and not of the Company.



     Section 9.3 Authority of Members. The Members shall not participate in, or take part in
the control of, the management of the Company or its business and affairs and shall not have any
power or authority to act for or bind the Company or any of its Subsidiaries.



     Section 9.4 Confidential Information. “Confidential Information” means all information
relating to the Company, its Subsidiaries and Affiliates, any Properties, any Real Estate
Investment or the business or operations of the Company or its Subsidiaries and Affiliates
(including, without limitation, processes, plans, data, reports, drawings, documents, business
secrets, financial information or information of any other kind) other than information that
(i) was publicly known or otherwise known to a Member prior to the time it was disclosed pursuant
to this Agreement and was not otherwise subject to any restriction on disclosure by such Member,
(ii) subsequently becomes publicly known through no act or omission by a Member or any person
acting on a Member’s behalf, or (iii) becomes known to a Member other than through disclosure by
the Company without breach of this Agreement or any other contractual, legal, or fiduciary
obligation and is not otherwise subject to any restriction on disclosure by such Member.



32









 





     Section 9.5 Confidentiality Obligations. Subject to Section 9.6, each Member agrees
(i) to maintain in confidence all Confidential Information received by such Member; (ii) to use
such Confidential Information only for the purpose of monitoring such Member’s investment in the
Company; (iii) not to use any Confidential Information for any other purpose, including, without
limitation, use in conducting or furthering such Member’s own business or that of any Affiliates or
any competing business; (iv) to cooperate in any appropriate action that the Company may decide to
take to prevent or minimize the disclosure of such Confidential Information; and (v) that the
misappropriation or unauthorized disclosure of Confidential Information by a Member is likely to
cause substantial and irreparable damage to the Company and/or one or more Affiliates such that
damages may not be an adequate remedy for breach of this Section 9.5. Accordingly, the Company and
its Affiliates shall be entitled to injunctive and other equitable relief, in addition to all other
remedies available to them at law or at equity, and no proof of special damages shall be necessary
for the enforcement of this Section 9.5.



     Section 9.6 Exceptions to Confidentiality. The obligations of limited use and
nondisclosure contained in Section 9.5 will not (i) restrict the disclosure of Confidential
Information to a Member’s attorneys, tax advisors, accountants or other professional advisors or
consultants who have a reason to have access to such Confidential Information in connection with
their duties and responsibilities to such Member relating to administering such Member’s investment
in the Company so long as such Persons are under an obligation of confidentiality consistent with
the terms of Section 9.5, (ii) restrict the disclosure of Confidential Information by a Member to
the extent such disclosure is required by any governmental or regulatory authority or court
entitled by law to such disclosure, or that is required by law to be disclosed, provided
that such Member promptly notifies the Company when such requirement to disclose arises to
enable the Company to seek an appropriate protective order and to make known to such governmental
or regulatory authority or court the proprietary nature of the Confidential Information and to make
any applicable claim of confidentiality in respect thereof, and provided, further, that such party
shall only make such disclosure to the extent it is required to do so by law, (iii) restrict the
disclosure of Confidential Information required in order for a Member or its Affiliates to comply
with its disclosure obligations under applicable securities laws or regulations, including the
rules of any stock exchange or other self-regulatory body (“Disclosure Obligations”) or
(iv) restrict the disclosure of Confidential Information by a Member to the extent permitted with
the written consent of the Company.



     Section 9.7 Indemnification by Tarragon Corp.



               (a) Tarragon Corp agrees to indemnify, defend and hold harmless the Company, its Subsidiaries,
Northland Corp and its Controlled Affiliates (and the respective officers, directors, partners,
members, managers employees, representatives and agents of the Company, its Subsidiaries, Northland
Corp and its Controlled Affiliates) and each Northland Principal (each, a “Northland Indemnified
Party” and, collectively, the “Northland Indemnified Parties”), from and against all losses,
liabilities, damages, reasonable out-of-pocket expenses (as incurred) and other liabilities
(“Losses”) that are incurred or suffered by the Company, its Subsidiaries or any Northland
Indemnified Party based upon, arising out of, in connection with or by reason of any action, suit
or other proceeding brought, directly or indirectly, against Tarragon Corp, its subsidiaries or any
of its officers by (i) any current, former or purported holder of any securities of Tarragon Corp
or (ii) Ansonia LLC, any member of Ansonia LLC



33









 







and/or any of their respective Affiliates, in each
case, based upon, arising out of or in connection with the formation of the Company, the
Contribution Agreement and any transactions contemplated thereby. Such indemnity shall cover,
without implied limitation, judgments, settlements, fines, penalties and reasonable counsel and
expert fees incurred in connection with the defense or disposition of any such action, suit or
other proceeding, whether civil or criminal, before or threatened to be brought before any court,
regulatory or other governmental authority, in which any Northland Indemnified Party may be or may
have been involved as a party or otherwise; provided that such indemnity shall not, as to any
Northland Indemnified Party, be available to the extent such Losses resulted from the gross
negligence, bad faith or willful misconduct of such Northland Indemnified Party, as determined, in
each case in a final non-appealable judgment or order by a court of competent jurisdiction to be
the result of the gross negligence or bad faith or willful misconduct of such Northland Indemnified
Party.



               (b) The Northland Indemnified Parties shall give notice as promptly as is reasonably
practicable to Tarragon Corp of the assertion of any such action, suit, or other proceeding shall
be brought against any Northland Indemnified Party in respect of which indemnity may be sought
pursuant to this Section 9.7 (a “Proceeding”); provided that the failure of such Northland
Indemnified Party to give notice shall not relieve Tarragon Corp of its obligations under this
Section 9.7 (except to the extent (if any) that Tarragon Corp shall have been prejudiced thereby).
Tarragon Corp shall assume the defense of any such Proceeding, and retain counsel chosen by
Tarragon Corp to represent the Northland Indemnified Parties, such counsel subject to reasonable
approval by the Northland Indemnified Parties. Tarragon Corp shall pay the fees and expenses
actually incurred by such counsel related to the Proceeding. Notwithstanding the foregoing, in any
such Proceeding, any Northland Indemnified Party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such Northland Indemnified
Party, unless (i) Tarragon Corp and the Northland Indemnified Party shall have mutually agreed in
writing, (ii) Tarragon Corp failed within a reasonable time after notice of commencement of the
Proceeding to assume the defense and engage counsel approved by the Northland Indemnified Parties
as hereinabove provided, (iii) such Northland Indemnified Party shall reasonably believe based on
the reasonable advice of counsel that either there may be one or more legal defenses available to
such Northland Indemnified Party that are different from or additional to those available to
Tarragon Corp or (iv) the named parties to any such proceeding (including any impleaded parties)
include both such Northland Indemnified Party and Tarragon Corp, and such Northland Indemnified
Party shall reasonably believe that a material conflict of interest is likely to exist if the same
counsel were to represent such Northland Indemnified Party and Tarragon Corp, in which case
Tarragon Corp shall not have the right to assume nor direct the defense of such Proceeding on
behalf of such Northland Indemnified Party. It is understood, however, that Tarragon Corp shall
not, in connection with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for such Northland Indemnified Parties. Tarragon Corp shall not be liable
for any settlement of any Proceeding effected without its written consent, which consent shall not
be unreasonably withheld or delayed, but if settled with such consent or if there be a final
judgment for the plaintiff, Tarragon Corp agrees to indemnify any Northland Indemnified Party from
and against any loss or liability resulting from such settlement or judgment. Tarragon Corp shall
not, without the prior consent of the Northland Indemnified Party, which consent shall not



34









 







be
unreasonably withheld or delayed, effect any settlement of any pending or threatened Proceeding in
respect of which any Northland Indemnified Party is a party or the subject thereof and indemnity
could have been sought hereunder by such Northland Indemnified Party, unless (x) such settlement
includes an unconditional release of such Northland Indemnified Party from all liability claims
that are the subject matter of such Proceeding in a form satisfactory to the Northland Indemnified
Party and (y) does not include a statement as an admission of, fault, culpability or a failure to
act by or on behalf of the Northland Indemnified Party.



ARTICLE X




TRANSFER OF COMPANY INTERESTS




     Section 10.1 Transfer of Interests.



               (a) Transfers Generally. Except as specifically provided by this Agreement, no Member
may Transfer all or any portion of its Interest in the Company without the prior written consent of
the Board of Managers, which consent may be given or withheld in its sole and absolute discretion.
Any Transfer or purported Transfer of an Interest in the Company not made in accordance with this
ARTICLE X shall be null and void. No assignment shall be binding upon the Company until the Board
of Managers receives an executed copy of such assignment and assumption agreement or other transfer
agreement required to effectuate such Transfer (“Transfer Documents”), which Transfer Documents
shall be in form and substance satisfactory to the Board of Managers. Any assignee of a Member’s
interest pursuant to this Section 10.1 may only be admitted to the Company as a substitute Member
in accordance with Section 10.2. The Board of Managers may require that any Member proposing to
Transfer the Member’s Interest in the Company pay the Company’s reasonable out-of-pocket costs
incurred in connection with the proposed Transfer. Notwithstanding the foregoing, Tarragon Corp or
an Affiliate, as applicable, shall be permitted to pledge its interest in the Company to Northland
Corp or an Affiliate as permitted by that certain Pledge and Security Agreement, the form of which
is attached as Exhibit F.



               (b) Permitted Tarragon Member Transfers. Notwithstanding anything to the contrary in
this Section 10.1 or Section 10.2, but subject to compliance with Section 10.3 and Section 10.4,
the Board of Managers shall not withhold its consent to the following Transfers of Interest by
Tarragon Members, provided that the Board of Managers receives reasonable prior notice of any such
Transfer and has approved the form of Transfer Documents (such approval not to be unreasonably
withheld, conditioned or delayed):




               (i) the Transfer of a Tarragon Member’s Interest to an Affiliate of such Tarragon Member
(whereupon such transferee will constitute a “Tarragon Member”);




               (ii) after the end of the Lock-Out Period, a Transfer to the shareholders of Tarragon
Corp and any subsequent Transfer by such shareholders or their transferees; provided,
however, that no such transferee under this clause (ii) shall have the right to be
admitted as a substitute Member or shall acquire any right to appoint any Board Member
pursuant to Section 4.1 or otherwise; and



35









 







               (iii) after the end of the Lock-Out Period, a Transfer by any Tarragon Member of all or
part of its Interest to any Person; provided, however, that (x) such Interest
has first been offered to the Northland Members pursuant to and in compliance with the right
of first offer procedure set forth in Section 13.4, and (y) no such transferee under this
clause (iii) shall have the right to be admitted as a substitute Member or shall acquire any
right to appoint any Board Member pursuant to Section 4.1 or otherwise.



               (c) Permitted Northland Member Transfers. Notwithstanding anything in this Agreement
to the contrary, but subject to compliance with Section 10.3 and Section 10.4, the Northland
Members may not Transfer all or any portion of their Interests in the
Company without the written consent of the Tarragon Members in their sole discretion, except
for the following Transfers:



                     (i) the Transfer of a Northland Member’s Interest to an Affiliate of such Northland
Member (whereupon such transferee will constitute a “Northland Member”);



                     (ii) during the Lock-Out Period, a Transfer by a Northland Member of all or part of its
interest to any Person, but only if after giving effect to such Transfer the Northland
Members would continue to own at least 50% of the Initial Northland Interest; and



                     (iii) after the end of the Lock-Out Period, a Transfer by any Northland Member of all or
part of its Interest to any Person.



     Section 10.2 Substitute Members. Except as otherwise provided in this ARTICLE X, any
Person that acquires an interest by assignment from another Member in accordance with the
provisions of Section 10.1, including, without limitation any Interest acquired by operation of law
or otherwise from any Tarragon Member as a result of any Change of Control of Tarragon Corp may
only be admitted to the Company as a substitute Member with the written consent of the Board of
Managers, which may be withheld in its sole and absolute discretion. The admission of an assignee
as a substitute Member shall in all events be conditioned upon (i) compliance with Section 10.3 and
Section 10.4, (ii) the assignee’s written assumption, in form and substance satisfactory to the
Board of Managers, of all obligations of the assigning Member relating to the assigned Interest and
(iii) execution of an instrument satisfactory to the Board of Managers whereby such assignee
becomes a party to this Agreement as a Member.



     Section 10.3 Obligations of Assignee. Any assignee of the Interest of a Member in the
Company, irrespective of whether such assignee has accepted and adopted in writing the terms and
provisions of this Agreement, shall be deemed by the acceptance of such assignment to have agreed
to be subject to the terms and provisions of this Agreement in the same manner as its assignor.
Furthermore, if Section 743(b) of the Code applies to any Transfer of an Interest of a Member, the
assignee of such Interest shall be responsible for any costs reasonably incurred by the Board of
Managers or the Company in complying with the requirements thereof.



36









 





     Section 10.4 Additional Requirements. As additional conditions to the validity of any
direct or indirect assignment or Transfer of a Member’s Interest in the Company, such assignment or
Transfer shall not, except to the extent waived by the Board of Managers:



               (a) violate the registration provisions of the Securities Act of 1933, as amended, or the
securities laws of any applicable jurisdiction;



               (b) cause the Company not to be entitled to the exemption from registration as an “investment
company” pursuant to the Investment Company Act of 1940, as amended;



               (c) cause the Company to be required to register Interests or Units with the Securities and
Exchange Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended;



               (d) result in the termination of the Company as a partnership under the Code;



               (e) cause the Company to be taxed as a corporation under the “publicly traded partnership”
rules in Section 7704 of the Code;



               (f) create a potential qualification problem under the ownership requirements in Code Sections
856(a)(5) or 856(a)(6) or any other requirements of Code Section 856 857 for any Subsidiary which
is intended to qualify as a REIT;



               (g) create the possibility that any Subsidiary which is intended to qualify as a REIT would
not be considered a “domestically-controlled qualified investment entity” under the provisions of
Code Section 897(h); or



               (h) create the possibility that any Subsidiary which is intended to qualify as a REIT would be
considered a “pension-held REIT” under the provisions of Code Section 897(h)(3)(D).


The Board of Managers may require reasonable evidence as to the foregoing, including, without
limitation, a favorable Opinion of Counsel. Except to the extent waived by the Board of Managers,
any assignment or transfer that violates the conditions of this Section 10.4 shall be null and void
ab initio.




     Section 10.5 Allocation of Distributions Between Assignor and Assignee. Upon the
assignment or Transfer of an Interest in the Company pursuant to this ARTICLE X, distributions
pursuant to ARTICLE XII made thereafter shall be made to the Person owning the Interest in the
Company at the date of distribution, unless the assignor and assignee otherwise agree and direct
the Board of Managers in a written statement signed by both.



     Section 10.6 Treatment of Assignees. Any reference in this Agreement to the Capital
Account or Contribution of a Member who is an assignee of all or a portion of an Interest shall
include the Capital Account and Contribution of the assignor (or a pro rata portion thereof in the
case of an assignment to such assignee of less than the entire Interest of the assignor).



37









 







     Section 10.7 Withdrawal by Members. Notwithstanding any provision of the Act to the contrary, no Member may resign, withdraw or
withdraw capital from the Company, except pursuant to a right expressly set forth herein.



ARTICLE XI




REPORTING, RECORDS AND ACCOUNTING MATTERS




     Section 11.1 Books and Accounts. Complete and accurate books and accounts shall be
kept and maintained for the Company and its Subsidiaries at its principal place of business or such
other location as the Board of Managers may specify from time to time. Such books and accounts
shall be kept in accordance with generally accepted accounting principles consistently applied to
the extent specified in Section 11.3. Each Member or its duly authorized representative at its own
expense shall at all reasonable times have access to, and may inspect and make copies of, such
books and accounts of the Company and its Subsidiaries upon reasonable prior written notice to the
Board of Managers, for any purpose reasonably related to the Member’s interest as a Member. All
funds received by the Company other than those invested in Interim Investments or Real Estate
Investments shall be deposited in the name of the Company in such bank account or accounts, and all
securities owned by the Company may be deposited with such custodian, as the Board of Managers may
designate from time to time and withdrawals therefrom shall be made upon such signature or
signatures on behalf of the Company as the Board of Managers may designate from time to time. The
Board of Managers shall prepare and maintain a list (the “Schedule of Members”) indicating the name
of each Member and the Members’ status as a Member and the aggregate amount of such Member’s
Contributions.



     Section 11.2 Records Available. The Board of Managers shall maintain at the Company’s
principal office the following documents: (i) a current list of the full name and last known
business address of each Member; (ii) a copy of the certificate of LLC Certificate and all
amendments thereto; (iii) copies of all of the Company’s federal, state and local income tax
returns and of any financial statements of the Company for the three (3) most recent Fiscal Years;
and (iv) copies of this Agreement and all amendments thereto, together with executed copies of any
powers of attorney pursuant to which this Agreement, the LLC Certificate, or any such amendment has
been executed. Such documents are subject to inspection and copying at the reasonable request and
at the expense of any Member during ordinary business hours upon reasonable prior notice to the
Board of Managers, for any purpose reasonably related to the Member’s interest as a Member. Except
to the extent requested by a Member, the Board of Managers shall have no obligation to deliver or
mail a copy of the Company’s LLC Certificate or any amendment thereto to the Members.



     Section 11.3 Financial Reports. The Company shall engage an independent certified
public accountant selected by the Board of Managers to act as the accountant for the Company. The
Board of Managers, at the Company’s expense, shall use its commercially reasonable efforts to
prepare and to deliver to each Member the following reports:



               (a) Annual Financial Statements. As soon as available following the end of each
Fiscal Year and in any event not less than fifteen (15) days prior to the date on which



38









 







Tarragon
Corp would be required to file an Annual Report on Form 10-K with the Securities and Exchange
Commission (whether or not required by the rules and regulation of the Securities and Exchange
Commission), a consolidated balance sheet of the Company and its Subsidiaries as of the end of such
Fiscal Year, together with related consolidated statements of income, members’ capital, cash flows
and changes in financial position for such Fiscal Year, all in reasonable detail and stating in
comparative form the respective figures for the corresponding date and period in the prior Fiscal
Year and all prepared in accordance with GAAP. The annual financial statements referred to above
shall include all required disclosures that are considered an integral part of the financial
statements as prepared in conformity with GAAP and industry standards and shall be accompanied by
an audit opinion of the Company’s independent certified public accountant.



               (b) Quarterly Reports. As soon as available following the end of each quarter in each
Fiscal Year and in any event not less than ten (10) days prior to the date in which Tarragon Corp
would be required to file a Quarterly Report on Form 10-Q with the Securities and Exchange
Commission (whether or not required by the rules and regulation of the Securities and Exchange
Commission), such financial information for such quarter as Tarragon Corp may reasonably require in
order to comply with its quarterly Disclosure Obligations or contractual obligations.



               (c) Monthly Management Reports. The Company shall provide to Tarragon Corp monthly
financial reports prepared by management, which reports need not be prepared in conformity with
GAAP.



               (d) Other Reports. Upon reasonable prior request of Tarragon Corp, the Company shall
at the Company’s expense provide such additional financial reports from time to time as Tarragon
Corp may reasonably require in order to comply with its Disclosure Obligations or contractual
obligations.



               (e) Termination of Obligations. The obligations to accompany annual financial
statements by an audit opinion and to prepare any of the financial statements required by this
Section 11.3 in conformity with GAAP shall cease when Tarragon Corp is no longer required to file
reports under the Exchange Act and has no contractual obligations to provide an audited report or
financial statements prepared in conformity with GAAP.



     Section 11.4 Reliance on Accountants. All decisions as to accounting matters shall be
made by the Board of Managers, to the extent consistent with the terms of this Agreement. The
Board of Managers may rely upon the advice of the Company’s accountants.



     Section 11.5 Tax Matters Member; Filing of Returns. Northland shall be the “tax
matters partner” of the Company for purposes of Section 6231(a)(7) of the Code and shall, at the
Company’s expense, cause to be prepared and timely filed after the end of each Fiscal Year of the
Company all Federal and state income tax returns
required of the Company for such Fiscal Year. The Company shall endeavor to deliver to each
Member an IRS Form K-1 within ninety (90) days after the end of each Fiscal Year or as soon as
practicable thereafter. The tax matters partner shall take such actions as are reasonably
necessary to ensure that Tarragon and each of



39









 







the Tarragon Members designated by Tarragon is a
“notice partner” within the meaning of Code Section 6231.



     Section 11.6 Tax Elections. The Board of Managers shall determine in its reasonable
discretion whether to make or revoke any elections available under the Code or under any other tax
laws on behalf of the Company; provided, however, that if requested by a Member the
Company, and each Subsidiary will make an election under Section 754 of the Code and such election
shall not be revoked without the consent of the requesting Member; provided,
further, however, that no such election shall be made without the consent of Tarragon Corp
and Northland Corp during the “Tarragon Protection Period” as defined in the Tax Matters Agreement.



     Section 11.7 Fiscal Year. The fiscal year (the “Fiscal Year”) of the Company shall be
the same as its taxable year. The taxable year of the Company shall be the period ending on
December 31 of each year, or such other period as required by the Code.



ARTICLE XII




DISSOLUTION AND LIQUIDATION




     Section 12.1 No Dissolution. The Company shall not be dissolved by the admission of
Additional Members or Substitute Members in accordance with the terms of this Agreement.



     Section 12.2 Events Causing Dissolution. The Company shall be dissolved and its
affairs shall be wound up upon the occurrence of any of the following events:



               (a) the expiration of the term of the Company, as provided in Section 1.3 hereof;



               (b) Subject to the terms of the Tax Matters Agreement, an election to dissolve made by the
Board of Managers, in its sole and absolute discretion; or



               (c) the entry of a decree of judicial dissolution of the Company pursuant to the provisions of
the Act.



     Section 12.3 General. Upon the dissolution of the Company, the Company shall be liquidated in accordance with
this ARTICLE XII and the Act. The dissolution, liquidation and termination shall be conducted and
supervised (i) by the Board of Managers or (ii) by a Person selected by the Board of Managers (the
Board of Managers or such other Person, as applicable, being referred to as the “Liquidating
Agent”). The Liquidating Agent shall have all of the rights, powers, and authority with respect to
the assets and liabilities of the Company in connection with the dissolution, liquidation and
termination of the Company that the Board of Managers has with respect to the assets and
liabilities of the Company during the term of the Company, and the Liquidating Agent is hereby
expressly authorized and empowered to execute any and all documents necessary or desirable to
effectuate the liquidation of the Company and the transfer of any assets or liabilities of the
Company. The Liquidating Agent shall have the right from time to time, by revocable powers of
attorney, to delegate to one or more Persons any or all of such rights and powers and such
authority and power to execute documents and, in



40









 







connection therewith, to fix the reasonable
compensation of each such Person, which compensation shall be charged as an expense of liquidation.
The Liquidating Agent shall liquidate the Company as promptly as shall be practicable after the
dissolution of the Company’s term, consistent with realizing the value of Company assets. Without
limiting the rights, powers, and authority of the Liquidating Agent as provided in this Section
12.3, any Company asset that the Liquidating Agent may sell shall be sold at such price and on such
terms as the Liquidating Agent may, in its discretion, deem appropriate. Subject to Section 7.3,
the Liquidating Agent may, if it so determines, distribute restricted securities and other assets
of the Company in kind to the Members.



     Section 12.4 Priority. The proceeds of liquidation shall be applied in the following
order of priority:



               (a) first, to pay the costs and expenses of the dissolution and liquidation;



               (b) second, to pay matured debts and liabilities of the Company to all creditors of the
Company (including, without limitation, any liability to any Member or any Affiliate thereof);



               (c) to establish any reserves which the Liquidating Agent may deem necessary or advisable for
any contingent or unmatured liability of the Company to all Persons who are not Members;



               (d) to establish any reserves which the Liquidating Agent may deem necessary or advisable for
any contingent or unmatured liability of the Company to the Members;



               (e) the balance, if any, to the Members in accordance with Section 7.1.



     Section 12.5 Orderly Liquidation. A reasonable time shall be allowed for the orderly
liquidation of the assets of the Company and the discharge of liabilities so as to minimize the
losses normally attendant upon a liquidation. The Liquidating Agent shall, however, if possible to
do so in a manner consistent
with the preceding sentence, dispose of all Company assets other than reserves and effect
distributions to the Members within one-hundred eighty (180) days after the date of dissolution of
the Company.



     Section 12.6 Source of Distributions. The Board of Managers shall not be liable out
of its own assets for the return of the Contributions of the Members, it being expressly understood
that any such return shall be made solely from the Company’s assets.



     Section 12.7 Statements on Termination. Upon the completion of the liquidation of the
Company, each Member shall be furnished with a statement prepared by the Company’s accountant which
shall set forth the assets and liabilities of the Company as at the date of complete liquidation
and each Members’ share thereof. Upon completion of the liquidation of the Company pursuant to
this ARTICLE XII, the Members shall cease to be Members of the Company and the Liquidating Agent
shall execute, acknowledge, and cause to be filed a certificate of cancellation of the Company.



41









 





ARTICLE XIII




DRAG-ALONG RIGHT, TAG-ALONG RIGHT AND RIGHT OF FIRST REFUSAL




     Section 13.1 Drag-Along Right.



               (a) If at any time or from time to time the Northland Members propose to sell in the aggregate
Units representing 25% or more of their Percentage Interest to a Third Party who is a bona fide
purchaser (the “Sale”), the Northland Representative may deliver a notice (a “Drag Along Notice”)
to all of the Tarragon Members stating that the Northland Members propose to effect such Sale, and
specifying the name and address of the proposed parties to such transaction and the consideration
payable in connection therewith. Upon receipt of a Drag-Along Notice, each Tarragon Member shall
be obligated to transfer all Units of the Company (the “Tarragon Units”) owned by it in the Sale
(or, in the case of a Sale involving a sale of less than all of the Units held by the Northland
Members, a percentage of the Units owned by it equal to the percentage of the Northland Units being
sold by the Northland Members), for a price and on other terms and conditions not less favorable to
the Tarragon Members than to the Northland Members.



               (b) The Sale shall be made on the same date and at the same price and on terms and conditions
at least as favorable to each Tarragon Member as the terms and conditions contained in the
Drag-Along Notice delivered in connection with such proposed transaction. Each Tarragon Member
shall take all actions which the Northland Representative deems reasonably necessary or desirable
to consummate such Sale, including, without limitation, (i) entering into agreements with third
parties on terms substantially identical or more favorable to such Tarragon Member than those
agreed to by the Northland Members and including representations, indemnities, releases, holdbacks,
escrows, and other agreements, instruments, certificates and other documents as may be requested by
the Northland Representative and (ii) obtaining all consents and approvals reasonably necessary or
desirable to consummate the
Sale. The Northland Members and the Tarragon Members shall each pay their pro rata share
(based upon the number of Units in such transaction by each Northland Member and Tarragon Member)
of any reasonable transaction costs associated with the Sale.



               (c) Each Tarragon Member shall to the fullest extent permitted by law take or cause to be
taken all such actions as may reasonably be requested by the Northland Representative in order
expeditiously to consummate the Sale and any related transactions, including, without limitation,
executing, acknowledging and delivering consents, assignments, waivers, agreements, releases and
other documents or instruments, furnishing information and copies of documents, filing
applications, reports, returns, filings and other documents or instruments with governmental
authorities, and otherwise cooperating with the Company and the Northland Representative.



               (d) Each Tarragon Member hereby grants to the Northland Representative an irrevocable power of
attorney, which is coupled with an interest, to take such other actions, in each case to the extent
necessary to carry out the provisions of this Section 13.1 in the event of any breach by such
Tarragon Member of its obligations hereunder.



42









 





               (e) Notwithstanding anything herein to the contrary, during the “Protection Period” as defined
in the Tax Matters Agreement, any Tarragon Member who is a “Protected Party” under the Tax Matters
Agreement shall have no obligation to sell any Interest pursuant to the drag-along rights of the
Northland Members set forth in this Section 13.1, unless the (i) drag-along Sale is for all-cash
consideration or (ii) (A) the Northland Members exercising such rights pay such Tarragon Member an
amount equal to the “Tarragon Damages Amount” or the “Ansonia Damages Amount”, as applicable (as
such terms are defined in the Tax Matters Agreement), and (B) the Tarragon Member receives the
“Tarragon Special Distribution” or the “Ansonia Special Distribution”, as applicable (as such terms
are defined in the Tax Matters Agreement), in each case computed as if such Sale were a
“Recognition Event” under the Tax Matters Agreement.



     Section 13.2 Tarragon Tag-Along Right.



               (a) If any or all of the Northland Members desire to sell in one or more series of related
transactions 10% or more of the Units in the Company beneficially owned by them (a “Northland
Sale”) to a Third Party (the “Northland Buyer”), then at least thirty (30) days prior to any such
sale, the Northland Representative shall provide to the Tarragon Representative a notice (a
“Tarragon Tag-Along Notice”) setting forth in reasonable detail the terms of the Northland Sale,
the amount of Units in the Company that the Northland Buyer wishes to purchase and identifying the
name and address of the Northland Buyer. Upon the written request of any Tarragon Member (a
“Tarragon Tag Seller”) made within fifteen (15) days after the day the Tarragon Tag-Along Notice is
received by the Tarragon Representative, the Northland Representative shall cause the Northland
Buyer to purchase from such Tarragon Tag Seller the number of Units held by such Tarragon Tag
Seller equal to the lesser of (i) the number of Units requested to be included in the Northland
Sale by such Tarragon Tag Seller and (ii) a number determined by multiplying (x) a fraction, the
numerator of which is such Tarragon Tag Seller’s Percentage Interest and the denominator of which
is the sum of the Percentage Interests of the selling Northland Members and the Percentage
Interests of the Tarragon Tag
Sellers by (y) the number of Units to be sold in the Northland Sale. Such purchase shall be
made on the same date and at the same price and on terms and conditions at least as favorable to
such Tarragon Tag Seller as the terms and conditions contained in the Tarragon Tag-Along Notice
delivered in connection with such proposed transaction. Each Tarragon Tag Seller shall take all
actions which the Northland Representative deems reasonably necessary or desirable to consummate
such transaction, including, without limitation, (i) entering into agreements with third parties on
terms substantially identical or more favorable to such Tarragon Tag Seller than those agreed to by
the Northland Representative and including representations, indemnities, holdbacks, and escrows,
and (ii) obtaining all consents and approvals reasonably necessary or desirable to consummate the
Northland Sale. The Tarragon Tag Sellers and the Northland Members shall each pay their pro rata
share (based upon the number of Units sold in such transaction by each Tarragon Tag Seller and the
Northland Members) of any reasonable transaction costs associated with the Northland Sale.



               (b) Each Tarragon Tag Seller shall to the fullest extent permitted by law take or cause to be
taken all such actions as may reasonably be requested by the Northland Representative in order
expeditiously to consummate the Northland Sale and any related transactions, including, without
limitation, executing, acknowledging and delivering consents,



43









 







assignments, waivers, agreements,
releases and other documents or instruments, furnishing information and copies of documents, filing
applications, reports, returns, filings and other documents or instruments with governmental
authorities, and otherwise cooperating with the Company and the Northland Representative.



               (c) Each Tarragon Tag Seller hereby grants to the Northland Representative an irrevocable
power of attorney, which is coupled with an interest, to take such other actions, in each case to
the extent necessary to carry out the provisions of this Section 13.2 in the event of any breach by
such Tarragon Member of its obligations hereunder.



     Section 13.3 Northland Tag-Along Right.



               (a) If any or all of the Tarragon Members desire to sell in one or more series of related
transactions 10% or more of the Units in the Company beneficially owned by them (a “Tarragon Sale”)
to a Third Party (the “Tarragon Buyer”), then at least thirty (30) days prior to any such sale, the
Tarragon Representative shall provide to the Northland Representative a notice (a “Northland
Tag-Along Notice”) setting forth in reasonable detail the terms of such sale, the amount of Units
in the Company that the Tarragon Buyer wishes to purchase and identifying the name and address of
the Tarragon Buyer. Upon the written request of any Northland Member (a “Northland Tag Seller”)
made within fifteen (15) days after the day the Northland Tag-Along Notice is received by the
Northland Representative, the Tarragon Representative shall cause the Tarragon Buyer to purchase
from such Northland Tag Seller the number of Units held by such Northland Tag Seller equal to the
lesser of (i) the number of Units requested to be included in the Tarragon Sale by such Northland
Tag Seller and (ii) a number determined by multiplying (x) a fraction, the numerator of which is
such Northland Tag Seller’s Percentage Interest and the denominator of which is the sum of the
Percentage Interests of the Selling Tarragon Members and the Percentage Interests of the Northland
Tag Sellers by (y) the number of Units to be sold in the Northland Sale. Such purchase shall be
made on the same date and at the same price and on terms and conditions at least as favorable to
such Northland Tag
Seller as the terms and conditions contained in the Northland Tag-Along Notice delivered in
connection with such proposed transaction. Each Northland Tag Seller shall take all actions which
the Tarragon Representative deems reasonably necessary or desirable to consummate such transaction,
including, without limitation, (i) entering into agreements with third parties on terms
substantially identical or more favorable to such Northland Tag Seller than those agreed to by the
Tarragon Representative and including representations, indemnities, holdbacks, and escrows, and
(ii) obtaining all consents and approvals reasonably necessary or desirable to consummate the
Tarragon Sale. The Northland Tag Sellers and the Tarragon Members shall each pay their pro rata
share (based upon the number of Units in such transaction by each Northland Tag Seller and the
Tarragon Members) of any reasonable transaction costs associated with the Tarragon Sale.



               (b) Each Northland Tag Seller shall to the fullest extent permitted by law take or cause to be
taken all such actions as may reasonably be requested by the Tarragon Representative in order
expeditiously to consummate the Tarragon Sale and any related transactions, including, without
limitation, executing, acknowledging and delivering consents, assignments, waivers, agreements,
releases and other documents or instruments, furnishing information and copies of documents, filing
applications, reports, returns, filings and other



44









 







documents or instruments with governmental
authorities, and otherwise cooperating with the Company and the Tarragon Representative.



     Section 13.4 Right of First Offer.



               (a) Other than with the prior written consent of the Board of Managers, if any or all of the
Tarragon Members (the “Selling Tarragon Members”) desire to sell, in accordance with Section
10.1(b)(iii), all or any portion of their Interests in the Company (the “Target Interests”) for
cash, upon terms proposed by such Selling Tarragon Members and that such Selling Tarragon Members
would in good faith be willing to accept in an arm’s length transaction from a Third Party,
(“Acceptable Transfer Terms”), then the Tarragon Representative shall provide to the Northland
Representative a notice (a “ROFO Notice”) setting forth, in reasonable detail, the terms of such
sale, which ROFO Notice shall include, without limitation, the Units or Interests in the Company
that the Selling Tarragon Members wish to sell, the proposed cash sale price and all other material
terms and conditions of such Acceptable Transfer Terms, including closing conditions, if any. The
Selling Tarragon Members need not have located a prospective transferee or have in their possession
an actual offer to purchase in order to exercise their rights pursuant to this Section 13.4 but
must have at the time of the ROFO Notice a good faith intention to sell its Units or Interests to a
Third Party on the Acceptable Transfer Terms. At any time within thirty (30) days after the date
the Northland Representative receives the ROFO Notice (the “Transfer Response Period”), the
Northland Representative shall have the right, exercisable by delivery of notice in writing (the
“Transfer Election”) to the Tarragon Representative, to elect one of the following:




               (i) approve the Acceptable Transfer Terms and authorize the Tarragon Members to attempt
to sell for cash the Target Interests in accordance with the Acceptable Transfer Terms; or




               (ii) to the extent the tag-along provisions of Section 13.3 are applicable, approve the
Acceptable Transfer Terms and authorize such Tarragon Members
to attempt to sell the Target Interests and the Interests of the Northland Tag Sellers,
if any, in accordance with such Acceptable Transfer Terms as set forth in Section 13.3
(whereupon the delivery of the ROFO Notice shall be deemed to have satisfied the obligation
of the Selling Tarragon Members to deliver the Northland Tag-Along Notice; and such Transfer
Election shall be deemed the election of the Northland Tag Sellers under Section 13.3); or




               (iii) elect on behalf of one or more of the Northland Members (the “Buying Northland
Members”) to purchase all of the Target Interests for the cash purchase price and upon the
material terms and conditions, each as set forth in the Acceptable Transfer Terms.



               (b) Any election pursuant to subparagraph (iii) of Section 13.4(a) shall be made by (1)
delivering to the Tarragon Representative the Transfer Election, which shall affirmatively state
that the Buying Northland Members are exercising such option, and (2) depositing in an escrow
account at a bank or other financial institution selected by the Northland Representative and
reasonably acceptable to the Northland Representative (the “Transfer



45









 







Escrow Agent”), an earnest
money deposit in cash equal to 3% of the purchase price (the “Transfer Escrow Deposit”). Within
ninety (90) days after the date of the election by the Buying Northland Members to purchase the
Target Interests or such earlier date as the Northland Representative may specify on at least ten
(10) days prior written notice to the Tarragon Representative, the Buying Northland Members and the
Selling Tarragon Members shall close the purchase of the Target Interests, and the Selling Tarragon
Members shall assign the Target Interests to the Buying Northland Members, against receipt of
payment of the cash purchase price. All closings of any purchase and sale under this Section 13.4
will be held at the Company’s principal office. All transfer, stamp and recording taxes imposed on
the sale shall be allocated to the Selling Tarragon Members. All other closing costs shall be
allocated 50% to the Selling Tarragon Members and 50% to the Buying Northland Members, except as
otherwise allocated between the seller and the purchaser in the Acceptable Transfer Terms and
except that, in any event, the Selling Tarragon Members and the Buying Northland Members shall each
be responsible for and pay their own attorneys’ fees.



               (c) If during the Transfer Response Period the Northland Representative fails to make the
election among clauses (i), (ii) and (iii) required by Section 13.4(a), then the Northland
Representative shall be deemed to have approved a Sale of the Target Interests pursuant to clause
(i) of Section 13.4(a), for a cash purchase price not less than 95% of the purchase price set forth
in the Acceptable Transfer Terms and substantially upon the material terms, conditions and
provisions set forth in the Acceptable Transfer Terms.



               (d) If the Northland Representative authorizes or is deemed to have authorized the Transfer of
the applicable Target Interests pursuant to the terms described above, and the Selling Tarragon
Members thereafter receive a bona fide all cash offer for the purchase of the Target Interests from
any purchaser for a purchase price which is at least equal to 95% of the purchase price set forth
in the Acceptable Transfer Terms and substantially upon the material terms, conditions, and
provisions set forth in the Acceptable Transfer Terms, the Selling Tarragon Members may consummate
the sale of the applicable Target Interests on such terms, without the requirement of any consent
or approval of the Board of Managers, the Northland
Members or any other Member; provided, however, that such sale must be consummated
within one hundred twenty (120) days after the date on which the Northland Representative approved
or was deemed to have approved such sale and must be in accordance with the terms, conditions, and
provisions set forth in the Acceptable Transfer Terms. If such sale does not occur within the
120-day period referred to in the immediately preceding sentence or in compliance with the terms,
conditions and provisions set forth in the Acceptable Transfer Terms, the Tarragon Representative
will be required to again deliver to the Northland Representative an additional ROFO Notice and to
again follow the procedures set forth in this Section 13.4 before consummating any sale.



               (e) If the Buying Northland Members default in their obligation to purchase any Target
Interests pursuant to the terms of this Section 13.4, the sole and exclusive remedy for such
default shall be the immediate delivery to the Selling Tarragon Members by the Transfer Escrow
Agent of the Transfer Escrow Deposit (such amount shall not be deemed to be a contribution or
distribution of capital, or affect in any way the Capital Account of any Member, the allocation
provisions or any other equity provisions of this Agreement).



46









 





ARTICLE XIV




AMENDMENTS




     Section 14.1 Amendment to be Adopted Solely by the Board of Managers. Each Member
agrees that the Board of Managers, without the approval of any Member, any holder of Interests or
Units or any other Person, may amend any provisions of this Agreement and execute, swear to,
acknowledge, deliver, file and record whatever documents may be required in connection therewith:



               (a) to reflect the admission, substitution, termination or withdrawal of Members in accordance
with this Agreement (which may be effected through the replacement of the Schedule of Members with
an amended Schedule of Members);



               (b) to set forth the designations, rights, powers, duties and preferences of the holders of
any additional Units or Interests issued pursuant to Section 3.7.1;



               (c) to cure any ambiguity, correct or supplement any provision in this Agreement not
inconsistent with law or with other provisions of this Agreement, or make other changes with
respect to matters arising under this Agreement that will not be inconsistent with law or with the
provisions of this Agreement; and



               (d) to satisfy any requirements, conditions, or guidelines contained in any order, directive,
opinion, ruling or regulation of a federal, state or local agency or contained in federal, state or
local law



     The Board of Managers shall notify the Members in writing when any action under this Section
14.1. is taken in the next regular communication to the Members or within ninety (90) days of the
date thereof, whichever is earlier.



     Section 14.2 Amendment Procedures. Any other amendments to this Agreement may be
proposed only by the Board of Managers; provided, however that, to the fullest
extent permitted by law, the Board of Managers shall have no duty or obligation to propose any
amendment to this Agreement and may decline to do so free of any duty (including any fiduciary
duty) or obligation whatsoever to the Company or any Member or any Person bound by this Agreement
and, in declining to propose an amendment to the fullest extent permitted by law, shall not be
required to act in good faith or pursuant to any other standard imposed by this Agreement, any
other agreement contemplated hereby or under the Act or any other law, rule, regulation or at
equity. The Board of Managers shall submit (except an amendment governed by Section 14.1) any
proposed amendment to the Members. The Board of Managers shall seek the written Consent of the
Members as set forth in this Section 14.2 on the proposed amendment or shall call a meeting to vote
thereon and to transact any other business that it may deem appropriate. For purposes of obtaining
a written Consent of the Members, the Managing Member may require a response within a reasonable
specified time, but not less than fifteen (15) days. A proposed amendment shall be adopted and be
effective as an amendment hereto if it is approved by the Board of Managers and, except as provided
in Section 14.1 or 14.3, if it receives the



47









 







Consent of the Members holding Interests representing
more than fifty percent (50%) of the Percentage Interest of the Common Units.



     Section 14.3 Amendments Requiring Member Approval. Notwithstanding Sections 14.1 and
14.2, the Board of Managers shall not amend this Agreement, by merger, consolidation, conversion or
otherwise, if such amendment shall materially and adversely impair or alter the legal or economic
rights, preferences, privileges or obligations of the Members holding Common Units without the
consent of each such Member materially and adversely affected by such amendment; provided,
however, that the Board of Managers shall be authorized to amend this Agreement, by merger,
consolidation, conversion or otherwise even if such amendment shall materially and adversely impair
or alter the legal rights, preferences, privileges or obligations of a Member without the consent
of such Member materially and adversely affected by such amendment, but only if such amendment (i)
does not materially and adversely impair or alter the economic rights, preferences, privileges or
obligations of such Member, (ii) such Member receives the same consideration and is afforded the
same rights as other Members holding the same class of Common Units and (iii) such amendment is
being effected in connection with a transaction that in the reasonable judgment of the Board of
Managers is part of an overall plan designed to enhance the liquidity of the Common Units of the
Member. In addition, no amendment (by merger, consolidation, conversion or otherwise), without the
consent of such Member, shall obligate a Member to make additional contributions to the Company,
adversely affect the limited liability of a Member, otherwise increase the liabilities or legal
obligations of a Member or reduce the distributions payable to a Member that is disproportionate
relative to other Members of the same class. The Board of Managers may, with the consent of any
affected Member, and without the approval of any other Member, amend this Agreement in a manner
that affects adversely solely such consenting Member. This Article XIV may not be amended (by
merger, consolidation, conversion or otherwise) without the consent of each Member holding Common
Units. In addition, notwithstanding anything to the contrary contained in this Article XIV, any
other provision of this Agreement that permits or requires the vote, election or consent of a
certain
Percentage Interest of a specified group of Members, or the Board of Managers, may only be
amended with the consent of the Board of Managers and of such Percentage Interest of such specified
group of Members.



ARTICLE XV




MISCELLANEOUS




     Section 15.1 Further Assurances. The Members agree to execute such instruments and
documents as may be required by law or which the Board of Managers reasonably deems necessary or
appropriate to carry out the intent of this Agreement so long as they do not alter the rights and
obligations of the Members under this Agreement.



     Section 15.2 Successors and Assigns. The agreements contained herein shall be binding upon
and inure to the benefit of the permitted successors and assigns of the respective parties hereto.



     Section 15.3 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.



48









 





     Section 15.4 Severability. The determination that any one or more of the provisions of
this Agreement is unenforceable shall not affect the enforceability of the other provisions of this
Agreement.



     Section 15.5 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Agreement binding on the parties hereto.



     Section 15.6 Entire Agreement. Except as provided below in this Section 15.6 this
Agreement represents the entire agreement among the parties hereto with respect to the subject
matter hereof. Nothing herein shall affect the Contribution Agreement. The Company may enter into
agreements with one or more Members amending, interpreting, supplementing or otherwise modifying
the terms of this Agreement. Each such agreement shall be deemed to be a part of this Agreement
solely with respect to the applicable Members.



     Section 15.7 Construction. The captions used in this Agreement are for convenience only
and shall not affect the meaning or interpretation of any of the provisions of this Agreement. As
used herein, the singular shall
include the plural, the masculine gender shall include the feminine and neuter, and the neuter
gender shall include the masculine and feminine, unless the context otherwise requires. The words
“hereof”, “herein”, and “hereunder”, and words of similar import, when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this Agreement. All
references to Sections, Articles, Exhibits or Schedules are to Sections, Articles, Exhibits or
Schedules of or to this Agreement. The terms “include” and “including” are to be construed as if
followed by the phrase “without limitation”, regardless whether such phrase actually appears.



     Section 15.8 Force Majeure. If any Member, the Company or the Board of Managers is delayed
by causes beyond its reasonable control in performing any act which this Agreement requires be
performed by a specified time, such Member, the Company or the Board of Managers, as the case may
be, shall be entitled to such additional time to perform such act as is reasonable in light of such
delay. This provision shall not relieve the Members, the Company or the Board of Managers from the
obligation to perform any such act.



     Section 15.9 Notices. All notices, demands, solicitations of consent or approval, and
other communications hereunder shall be in writing and shall be sufficiently given if personally
delivered, transmitted by facsimile, sent by electronic transmission or sent postage prepaid by
overnight courier or registered or certified mail, return receipt requested, addressed as follows:
if intended for the Company, to the Company’s principal office determined pursuant to Section 1.5,
and, if intended for any Member, to the address of such Member set forth on the Schedule of
Members, and if intended for Northland Corp or the Northland Representative, Northland Investment
Corporation, 2150 Washington Street, Newton, Massachusetts 02462, Attention: Steven Rosenthal and
Suzanne Abair, Facsimile: (617) 630-7201; with a copy to Goodwin Procter LLP, Exchange Place,
Boston, Massachusetts 02109, Attention: Gilbert G. Menna and Suzanne D. Lecaroz, Facsimile: (617)
523-1231, and for Tarragon Corp or the Tarragon Representative to Tarragon Corporation, 1775
Broadway, 23rd Floor New York, New York 10019, Attention: William Friedman, Facsimile:
(212) 949-8001; with a copy to Tarragon Corporation, 3100 Monticello Avenue, Suite 200, Dallas,
Texas 75205, Attention: Kathryn



49









 







Mansfield, Executive Vice President and General Counsel, Facsimile:
(214) 599-2250; and a copy to Jones Day, 222 East 41st Street, New York, New York 10017,
Attention: Kent R. Richey, Facsimile: (212) 755-7306, and, if intended for Ansonia LLC, c/o APA
Management, LLC, 131 East 36th Street, New York, New York 10016, Facsimile:
                                        , Attention: Richard S. Frary, with a copy to Holland & Knight LLP, 195 Broadway,
New York, New York 10007, Facsimile: (212) 341-7292, Attention: Jim Spitzer, Esq., or to such other
address as such Member designate from time to time by written notice to the Company. Notices shall
be deemed to have been given when personally delivered or when transmitted on a Business Day by
electronic transmission with confirmation of receipt or by facsimile with machine-generated
confirmation of transmission without notation of error, if sent before 5:00 p.m. local time of the
recipient, otherwise the following Business Day, or, if mailed or sent by overnight courier, on the
date on which received.



     Section 15.10 No Right of Partition or Redemption. No Member and no successor-in-interest
to any Member shall have the right to have the property of the Company partitioned, or, except as
otherwise provided in this Agreement or as the Board of Managers may agree, to require the
redemption of its interest in the Company.



     Section 15.11 Third-Party Beneficiaries. The provisions of this Agreement are not intended
to be for the benefit of any creditor or other person to whom any debts or obligations are owed by,
or who may have any claim against, the Company, its Subsidiaries or any of its Members, except for
Members, in their capacities as such. Notwithstanding any contrary provision of this Agreement, no
such creditor or person shall obtain any rights under this Agreement or shall, by reason of this
Agreement, be permitted to make any claim against the Company, its Subsidiaries or any Member.



     Section 15.12 UCC Matters. The Company hereby elects to opt-in to Article 8 of the
Uniform Commercial Code of the State of New York. Each Unit and Interest is a security as defined
in and governed by Article 8.



     Section 15.13 Representations and Warranties. As an inducement to the other Member to
enter into this Agreement, each Member makes the following representations and warranties.



               (a) The Member is duly organized and validly existing under the laws of its jurisdiction of
organization, with full power and authority and legal right to be a Member of the Company and to
carry on its business in the manner and in the locations in which such business has been and is now
being conducted by it, to execute and deliver this Agreement and to perform its obligations
hereunder.



               (b) No consent of any third party is required as a condition to the entering into this
Agreement by the Member other than such consent as has been previously obtained.



               (c) The execution and delivery of this Agreement has been duly authorized and executed by the
Member and this Agreement constitutes the valid and binding obligation and agreement of the Member,
enforceable in accordance with its terms (subject to the



50









 







effect of bankruptcy, insolvency or
creditor’s rights generally, and to limitations imposed by general principles of equity).



               (d) Neither the execution and delivery of this Agreement, nor compliance with the terms and
provisions hereof, will result in any breach of the terms, conditions or provisions of, or conflict
with or constitute a default under, or result in the creation of any lien, charge or encumbrance
upon any property or assets of the Member pursuant to the terms of any indenture, mortgage, deed of
trust, note, evidence of indebtedness, agreement or other instrument to which the Member may be
party or by which it or they or any of its
properties or assets may be bound, or violate any provision of law, or any applicable order,
writ, injunction, judgment or decree of any court, or any order or other public regulation of any
governmental commission, bureau or administrative agency.



               (e) There are no judgments presently outstanding and unsatisfied against the Member or any of
its assets and neither the Member nor any of its assets is involved in any litigation at law or in
equity, or in any proceeding before any court, or by or before any governmental or administrative
agency, which judgment, litigation or proceeding could reasonably be anticipated to have a material
adverse effect on the Member, the Company or the Properties and no such material judgment,
litigation or proceeding is, to the best of the Member’s knowledge, threatened against the Member
or any of its facilities, and to the best of the Member’s knowledge, no investigation looking
toward such a proceeding has begun or is contemplated.



               (f) No order, permission, consent, approval, license, authorization, registration or
validation of, or filing with, or exemption by, any governmental agency, commission, director,
officer or public authority is required to authorize, or is required in connection with the
execution, delivery and performance by the Member of this Agreement or the taking of any action
thereby contemplated, which has not been obtained, other than any such order, permission, consent,
approval, license, authorization, registration or validation of, or filing with, or exemption by,
any governmental agency, commission, director, officer or public authority required in connection
with the ownership of the Company’s assets or with the other operations of the Company.



               (g) The Member understands that in addition to the restrictions on transfer contained in this
Agreement, it must bear the economic risks of its investment for an indefinite period because the
Units have not been registered under the Securities Act, or under any applicable securities laws of
any state or other jurisdiction, and, therefore, may not be sold or otherwise transferred unless
they are registered under said Act and any such other applicable securities laws or an exemption
from such registration is available.



     [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]



51









 





     IN WITNESS WHEREOF, each of the Members has executed this Amended and Restated Limited
Liability Company Agreement of Northland Properties LLC as of the date first written above.



	 	 	 	 	 
	 	NORTHLAND PORTFOLIO L.P.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	NORTHLAND FUND L.P.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	NORTHLAND FUND II, L.P.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	NORTHLAND FUND III, L.P.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	NORTHLAND AUSTIN INVESTORS LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	AUSTIN INVESTORS L.P.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature Page to the Amended and

Restated Limited Liability Company Agreement





 









 





	 	 	 	 	 
	 	DRAKE INVESTORS L.P.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TATSTONE INVESTORS L.P.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	TARRAGON CORPORATION

 	 
	 	By:  	 	 
	 	 	William S. Friedman  	 
	 	 	Chief Executive Officer 	 
	 
	 	ANSONIA LLC

 	 
	 	By:  	 	 
	 	 	Robert P. Rothenberg  	 
	 	 	Member Manager 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Richard S. Frary  	 
	 	 	Member Manager 	 
	 



Signature Page to the Amended and

Restated Limited Liability Company Agreement





 









 








Schedule A




Names, Addresses, Units and Value of Contribution of Members 




Schedule A





 









 








Exhibit A




REPRESENTATIVES




NORTHLAND




TARRAGON




Exhibit A





 









 








Exhibit B




ACTIONS REQUIRING UNANIMOUS APPROVAL



Any agreement or transaction between the Company, or any Subsidiary, on the one hand, and any
Member, or Affiliate of a Member, on the other hand, involving (i) acquisitions, (ii) dispositions
or (iii) contracts pursuant to which the aggregate payment due thereunder by the Company or any
Subsidiary is equal to or greater than $5,000,000.



Incur any indebtedness (including mortgage indebtedness) that would cause the aggregate
loan-to-value ratio of the Company’s and its Subsidiaries’ aggregate consolidated indebtedness to
be greater than 80%, determined by the Board of Managers at the time of the incurrence.



Incur indebtedness that is recourse to the Company and that would cause the aggregate amount of all
such recourse indebtedness to exceed 5% of the aggregate value of the Company and its Subsidiaries,
determined by the Board of Managers at the time of incurrence.



Distributions in kind if not pro rata.



Decide not to make at least quarterly distributions of Operating Cash Flow.



Change the business purpose of the Company from that described in Section 1.4.



Issue any equity interest of the same class in the Company if such interest is to be issued on
terms that affect the economic and/or voting interests of the Tarragon Members in a manner that is
adversely disproportionate in any material respect, relative to the affect on the corresponding
economic and/or voting interests of the Northland Members.



Create a reserve for future acquisitions.



Cause or permit any Subsidiary to be classified as a C-Corporation other than entities that become
Subsidiaries by operation of the transactions contemplated by the Contribution Agreement.




Exhibit B





 









 








Exhibit C




INITIAL BOARD MEMBERS



Tarragon Board Members:



William S. Friedman

Robert Rothenberg



Northland Board Members:



Larry Gottesdiener

Steven Rosenthal

As selected by the Northland Representative




Exhibit C





 









 








Exhibit D




INTERIM MANAGEMENT AGREEMENT




Exhibit D





 









 








Exhibit E-1




TARRAGON RECOURSE GUARANTIES




Exhibit E-1





 









 








Exhibit E-2




NORTHLAND RECOURSE GUARANTIES




Exhibit E-2





 









 








Exhibit F




Form of Pledge and Security Agreement




Exhibit E-2





 









 








Schedule 5.2(d)




ILLUSTRATIVE EXAMPLE OF CONTRIBUTION CARRY FORWARD



Set forth below is an illustrative example of the $35 million per annum Contribution carry forward
provisions of Section 5.2(c) of the Agreement:






In year 1, the Board of Managers calls for additional Contributions in an aggregate amount
of $10 million. No outside appraisal is required to determine the value of Units or
Interest issued in consideration for such Contribution. There is a $25 million carry
forward available for subsequent years.




In year 2, the Board of Mangers calls for additional Contributions in the amount of $45
million. Cumulative aggregate additional Contributions are $55 million, and the Company has
the ability to call up to $70 million without appraisals being required. Thus, no outside
appraisal is required to determine the value of Units or Interests issued in consideration
for such contribution. There is a $15 million carry forward available for subsequent years.




In year 3, the Board of Managers calls for additional contributions in an amount of $60
million. Cumulative aggregate additional Contributions are $115 million, and the Company
has the ability to call up to $105 million without appraisals being required. Thus, a fair
market appraisal of the value of Units or Interests issued in consideration for such
Contribution is required. There is no carry forward available for subsequent years.



Schedule 5.2(d)




 









 





Schedule 6.3(c)




ILLUSTRATIVE EXAMPLE FOR SECTION 6.3(c)



Assume Contributor contributes to the Company (i) 100% of the stock of Corporation A (which owns a
1% interest in Lower Tier Partnership) and (ii) the 99% interest (the “Interest”) in Lower Tier
Partnership. Lower Tier Partnership owns real property (the “Property”) with a tax basis of $100
and a fair market value of $1000. The tax basis of the Company in the Interest is $99 and the fair
market value is $990. Application of the “aggregate theory” would allow taxable gain from the
disposition of an asset (up to the amount of Built In Gain”) that is owned directly or indirectly
by a partnership (the interest of which was contributed to the Company) to be treated as gain
allocated under Section 704(c) to a contributor of such interest to the Partnership notwithstanding
that such asset was not itself contributed to the Partnership. If the Property is disposed of by
the Lower Tier Partnership for $2000, there is $900 of Built In Gain (assuming no adjustments have
been made to such Built In Gain). $891 of such gain will be considered gain to be allocated under
Section 704(c) to the Contributor. If the Interest was sold for $990, there would be $891 of gain
allocated under Section 704(c) to the Contributor.




Schedule 5.2(d)





 











 





Exhibit B




MANAGEMENT AGREEMENT




     THIS MANAGEMENT AGREEMENT (“Agreement”) is made as of March ___, 2008 by and between TARRAGON
CORPORATION, A Nevada corporation (“Tarragon”) with and on behalf of the affiliated entities listed
on Exhibit A-1 attached hereto (the “Tarragon Subsidiaries”) and the property managers
listed on Exhibit B-1 (the “Tarragon Managers”), Northland Investment Corporation (“NIC”),
the affiliates of NIC identified as Northland Contributors listed on the signature pages attached
hereto (collectively with NIC, “Northland”) with and on behalf of the affiliated entities listed on
Exhibit A-2 attached hereto (collectively the “Northland Subsidiaries” and collectively
with Northland, the Tarragon Subsidiaries, the Tarragon Managers and Tarragon, “Owner”) and
NORTHLAND PROPERTIES MANAGEMENT LLC, a Delaware limited liability company (“Manager”).



W I T N E S S E T H




     WHEREAS, Tarragon and affiliates of Northland have agreed to form Northland Properties LLC
(the “Joint Venture’)



     WHEREAS, The Subsidiaries are the owners of the apartment complexes described on Exhibit C-1
attached hereto (the “Tarragon Properties”) and the Northland Subsidiaries are the owners of the
apartment complexes as described on Exhibit C-2 attached hereto (the “Northland Properties
and collectively with the Tarragon Properties, the “Property”);



     WHEREAS, as part of the formation of the Joint Venture, Tarragon will contribute the equity
interests in the Tarragon Subsidiaries (or otherwise contribute the beneficial interests in the
Tarragon Properties ) to the Joint Venture and affiliates of Northland will contribute the equity
interest in the Northland Subsidiaries (or otherwise contribute the beneficial interests in the
Northland Properties) to the Joint Venture, which agreements are set forth in a Contribution
Agreement which is being entered into contemporaneously herewith,



     WHEREAS, the terms of the limited liability company agreement of the Joint Venture provide
that Manager shall provide property management and other services for the Property,



     WHEREAS, certain of the Tarragon Properties are currently managed by Tarragon or its
affiliates pursuant to the Management Agreements as listed on Exhibit B-1,



     WHEREAS, certain of the Northland Properties are currently managed by NIC or its affiliates
pursuant to the Management Agreement as listed on Exhibit B-2,



     WHEREAS, there are certain conditions that need to be satisfied prior to Tarragon and
Northland (and/or their affiliates , as applicable) entering into the Joint Venture,



A-1









 





     WHEREAS, Northland and Tarragon have agreed that in the interim period prior to execution of
the Joint Venture the parties desire that Manager manage the Properties (and/or sub manage the
Properties, and



     WHEREAS, Manager is in the business of acting as manager for facilities similar to the
Property and is ready, willing and able to act as a manager for the Property pursuant to the terms
hereof.



     NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and
covenants herein made and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Owner and Manager hereby agree as follows:



     1. Appointment. Owner hereby appoints Manager and Manager hereby accepts appointment,
on the terms and conditions hereafter provided, as the exclusive managing agent to maintain,
operate, manage, supervise, rent and lease the Property (or to act as the sub-manager to the
Tarragon Managers or NIC, as applicable) .



     2. Duties of Manager. Manager is hereby charged with the sole and exclusive
management and leasing of the Property, (or to act as the sub-manager to the Tarragon Managers or
NIC, as applicable in performing such duties) and shall provide Owner with the services customarily
provided in such instances, including, but not limited to, the services specifically provided for
herein other than “extraordinary services” (as defined in Section 2.14) and shall do and perform
any and all things reasonably necessary for the pleasure, comfort, service and convenience of the
tenants and for the ownership, operation, maintenance, repair and leasing of the Property, subject
to the budgets, policies and limitations imposed by Owner, and applicable laws, rulings,
regulations and orders of governmental authorities having jurisdiction over the Property and its
tenants. All services shall be performed in a diligent and professional manner in accordance with
recognized standards of the property management industry applicable to properties similar to the
Property. The duties of Manager shall include, but not be limited to the following:



          2.1 Leasing and Collection. Manager shall be the leasing agent of Owner with respect
to the Property and in connection therewith Manager shall (i) advertise the availability for
rental of the Property or any part thereof, and display for that purpose signs thereon; (ii) on
behalf of Owner, in Manager’s own name or in the name of Owner, with prior consent of Owner,
execute, sign, renew and cancel leases or other tenancy agreements, under seal or otherwise; (iii)
collect rents and other charges due or to become due from tenants and give receipts therefor; (iv)
terminate tenancies and sign and serve in the name of Owner or its own name such notices as are
appropriate in connection with such terminations; (v) after notification to Owner, institute and
prosecute actions to evict tenants and recover possession of leased premises and to recover rents
and other sums due; and (vi) when expedient, with Owner’s consent, settle, compromise and release
such actions or suits
or reinstate such tenancies. Nothing herein contained shall constitute a guaranty by Manager of
the payment of rent or other obligations of the tenants of the Property.




2









 





          2.2 Books and Records. Manager shall maintain adequate and separate books and
records in connection with its management and operation of each apartment complex comprising the
Property. Owner shall have the right to examine such books and records at the Property, or at
Manager’s principal office upon reasonable prior notice to Manager. Manager shall render to
Owner, on or before the twenty-fifth (25th) day of each month, commencing on May 25, 2008, a
statement for the Property of the receipts and disbursements for the preceding month, and a
statement of cash flow for the preceding month, and such other reports and statements as Owner may
reasonably request from time to time. Owner may, at its sole cost and expense, cause the books
and records of the Property to be audited at Manager’s principal office upon reasonable prior
notice to Manager.




          2.3 Preparation of Employee Forms. Manager shall prepare and file in a timely fashion
all forms and reports necessary in connection with Owner’s employees at the Property, including,
but not limited to, unemployment insurance, withholding taxes and social security taxes for
permanent or temporary employees.




          2.4 Hiring and Supervision. Manager shall hire, pay, supervise and discharge the
cleaning, maintenance, repair, security and other personnel, who shall be screened and qualified by
training and experience to perform their assigned tasks, or companies which will perform such
services (“Personnel”) necessary to keep the Property maintained, serviceable and properly
operational. Manager may, in Manager’s sole discretion, either:





     (i) employ and/or discharge such Personnel itself;




     (ii) contract with another entity for the provision of Personnel, where such
contractor shall be the employer of the Personnel; or




     (iii) use a combination of these methods as to different portions of Personnel.



     Manager may perform any of its duties through or seek advice or services from brokers,
attorneys, or agents, and shall not be responsible for their acts, defaults, or negligence if
reasonable care has been exercised in their appointment and retention.



          2.5 Maintenance and Operation Contracts. Manager shall maintain the Property in good
condition and repair provided that Owner makes adequate funds available to Manager. Manager, as
Owner’s agent, shall enter into such contracts as are reasonably necessary for the maintenance and
repair of, and services to, the Property. Except with respect to such emergency situations,
Manager shall not, without the prior consent of Owner, incur any capital expenditures which are not
contained in the approved annual budget or otherwise approved by Owner.




3









 








          2.6 Annual Budget. Prior to the beginning of each calendar year, Manager shall
prepare and submit to Owner a budget for the operation of the Property for the following calendar
year. The budget shall be subject to the reasonable review and approval of Owner, and Manager
agrees to make modifications thereto as Owner shall reasonably deem necessary. Upon approval by
Owner, such budget shall constitute the approved operating budget for the succeeding calendar year.
In the event that Owner fails to approve a budget, Manager is hereby authorized to continue
operating the Property under the budget in effect for the immediately preceding calendar year
(subject only to non-discretionary changes and expenses such as taxes, utilities and insurance)
until such time as an approved budget shall be adopted by Owner.




          2.7 Insurance. If requested by Owner, Manager shall cause to be placed and kept in
force, at Owner’s expense, such insurance coverage as is requested by Owner, which shall be placed
with companies, with such limits of coverage and deductibles as shall be reasonably acceptable to
Owner and any mortgagee having a security interest in the Property (each a “Mortgagee”). All
policies of insurance shall name Owner, Manager, and any Mortgagee as named insureds thereunder.
Manager shall promptly investigate and report to Owner and to any insurance companies providing
coverage therefor, incidents and claims for damage relating to the ownership, operation and
maintenance of the Property and any damage to or destruction of the Property. Manager is
authorized to settle any and all claims against insurance companies not in excess of One Hundred
Thousand Dollars ($100,000.00) arising out of any policies, and to satisfy the requirements or
conditions imposed by the insurance companies necessary to allow for payment of claims including,
but not limited to, execution of proof of loss, the adjustment of losses, signing of receipts and
collection of proceeds. Manager shall, at Owner’s expense, maintain workers’ compensation
insurance covering all employees of Manager and Owner employed in, on or about the Property so as
to provide statutory benefits required by state and/or federal laws. The cost of such insurance
shall be paid by Owner.




     2.8 Bank Accounts. Manager, on behalf of Owner, shall maintain in Owner’s name, a
separate bank account for the Property for which Manager and Owner shall be the sole parties
authorized to draw funds. Manager agrees to deposit in such bank account all cash, rental receipts
and other funds collected from the operation of the Property, other than apartment security
deposits, subject to the provisions hereof. To the extent funds are available in the bank account
for the Property, Manager shall pay therefrom: (i) all expenses incurred by Manager in the
operation and maintenance of the Property pursuant hereto and in accordance herewith, (ii) the
costs of replacements, renovations and capital improvements, real estate taxes, ad valorem taxes
and for any non-recurring expenditures or other item authorized under the terms of this Agreement
or by Owner, (iii) Manager’s compensation as provided herein, (iv) such amounts necessary to
establish reserves for contingencies and nonrecurring expenses as may be agreed upon by Manager and
Owner, (v) installments of principal and interest and any other costs and expenses due under any
mortgage or deed of trust encumbering the Property. In the event that the funds in the account are
at any time insufficient to cover the items specified in clauses (i) through (v) above, Owner shall
deposit in the account additional funds necessary to satisfy the foregoing obligations. Nothing
contained herein shall obligate Manager at any time to use its own funds to cover operating



4









 




deficits for the Property. Nothing contained herein shall be deemed to prohibit Manager from
maintaining petty cash funds and to make payments therefrom in accordance with customary property
management practices.




          2.9 Escrow Account. Manager shall establish and maintain an escrow account in Owner’s
name for apartment security deposits, if required by state, county or municipal law, regulation or
order, and shall oversee the investment of such account and of any reserve accounts hereunder
established.




          2.10 Site Visits. Manager shall arrange for its supervisory employees, agents and
consultants to visit the Property at such times as Manager deems reasonably appropriate as required
to carry out its duties hereunder. The cost for such site visits, including, but not limited to,
costs of travel, lodging and meals shall be borne by Owner as an operating expense of the Property.




          2.11 Equipment and Supplies. Manager shall purchase, at Owner’s expense, reasonable
quantities of operating supplies, replacement parts, tools, equipment, appliances, goods and
expendable items which shall be reasonably necessary or desirable for Manager to perform its duties
in accordance with the terms and provisions of this Agreement, including the cleaning, maintenance,
upkeep, replacement, refurbishing and preservation of the Property. Such purchases shall be
consistent with and in accordance with the approved Budget then in effect.




          2.12 Tax Returns. Manager shall assist in the preparation of Owner’s tax returns.
Owner shall be responsible for the preparation and filing of tax returns and annual reports and the
payment of all income taxes, property taxes (both real and personal property), franchise taxes and
taxes on its employees’ wages.




          2.13 Intentionally Omitted.




          2.14 Extraordinary Services. At Owner’s request and for additional compensation to be
determined by Owner and Manager on a case-by-case basis, Manager or an affiliate of Manager, shall
provide, or cause to be provided, certain services outside of the scope of services otherwise
provided herein in connection with the Property.




     3. Duties of Owner. During the term of this Agreement, Owner shall provide Manager
with (i) a complete set of architectural, mechanical, electrical and site plans as soon as
practicable after the commencement of the term of this Agreement, to the extent that such plans
exist and are available and (ii) timely decisions, information and consultations as necessary to
permit Manager to perform its duties hereunder and reasonably cooperate with Manager so as to
facilitate Manager’s performance of its duties hereunder.



     4. Charges. Notwithstanding anything herein to the contrary, it is specifically
understood that Manager does not undertake to pay any expenses of the Property from its own funds
and shall only be required to perform its services and make disbursements to the
extent that, and so long as, payments received from the revenue, if any, of the Property, or



5









 




from Owner, shall be sufficient to pay the costs and expenses of such services and the amounts of
such disbursements. If it shall appear to Manager that such revenues, if any, of the Property are
insufficient to pay the same and to adequately fund reserves, the Manager shall promptly so notify
the Owner in detail of that fact and request the Owner to provide sufficient funds to pay such
costs, expenses and disbursements.




     5. Manager’s Compensation.



     5.1 Fee for Services. Owner shall pay Manager as full compensation for its property
management services as Manager under this Agreement an amount per annum (or otherwise as set forth
therein) as provided below in this sub-paragraph and in Exhibit E (“Management Fee”). It
is also anticipated that Manager shall be engaged by Owner to perform construction management,
asset management, real estate brokerage, financing and development services. Owner and Manager
shall negotiate in good faith reasonable fees for such services and Owner acknowledges that to the
extent that the Board of Managers of Manager (on which Tarragon or its affiliates has certain
representation rights) approves such additional services to be rendered and a fee structure in
connection therewith, such fees shall be deemed approved by Owner.



     5.2 Reimbursement for Expenses. The foregoing Management Fee shall be in addition to
amounts reimbursed for costs and expenses incurred by Manager for Owner’s account. Manager shall
be reimbursed for all expenses and disbursements made for the account of Owner in accordance with
the terms of this Agreement and the approved budget promptly after submission of an invoice for
reimbursement.



     5.3 Overhead. The overhead expenses of Manager’s corporate office are included in the
Management Fee. Such overhead expenses shall include maintenance of the Property’s records and
books, rent and insurance costs, as well as the salaries, office expenses, and all other expenses
of management personnel and associated clerical support staff not allocable to the Property’s
day-to-day operations or oversight. Notwithstanding the foregoing, a charge for property
accounting and information systems functions performed and/or located at the Manager’s corporate,
regional or satellite offices, legal, human resources, informational technology, insurance
procurement and/or other similar services rendered to or for the benefit of the Property and/or
other properties may be reasonably allocated by Manager to and/or among the Property and/or such
other properties and the amount thereof so allocated to the Property shall be separately invoiced
to, and reimbursed by, the Owner/Property. Similarly, if Manager has a regional office that
supports or provides services to the Property, Manager shall have the right to reasonably allocate
to the Property the Property’s share of the expenses of such office (including the salaries and
expenses of personnel) and the amount thereof so allocated to the Property shall be separately
invoiced to, and reimbursed by, the Owner/Property. The Management Fee does not include on-site
costs, i.e. salaries of property managers or general managers, secretary and other on-site office
expenses for daily building operations and the salaries of the Personnel (as evidenced by certified
payrolls) and other reasonable expenses of the Property which shall be separately invoiced to, and
reimbursed, by the Owner/Property. All such salaries and other expenses
incurred for the exclusive benefit of the Property shall be paid by the Owner/Property. All



6









 




undertakings by Manager pursuant to the provisions of Section 2 shall be performed as Manager of
the Property, and all obligations or expenses authorized and incurred thereunder, except as
otherwise provided in this Agreement, shall be for the account, on behalf of, and at the expense of
the Owner.




     5.4 Intentionally Omitted.



     5.5 Payments Net of Sales Taxes. All payments by Owner to Manager under or pursuant
to this Agreement (including, without limitation, the Management Fee) shall be net of applicable
sales taxes that Owner agrees to pay to the applicable taxing authority; provided, however, that if
Manager pays or is required by law to pay such sales taxes, Owner shall reimburse or pay Manager
such sales taxes.



     6. Term and Termination.



          6.1. Term and Termination. This Agreement shall commence as of the date hereof and
shall continue until December 31, 2008 unless earlier terminated upon the occurrence of any of the
following events:




          (i) Cause. By either party at anytime, for cause. “Cause” shall mean the material
failure by either Manager or Owner, as the case may be, without reasonable cause, to perform their
respective obligations hereunder for a period of thirty (30) days after written notice from the
other party, specifying in detail the act or acts deemed to be in violation; provided, however,
that if the violation cannot be cured within such thirty (30) day period, and Owner’s interest in
the Property and its rents are not jeopardized, then this Agreement shall nevertheless continue in
effect so long as the defaulting party has commenced curing the violation in good faith, promptly
after the receipt of such notice, and is diligently pursuing same to a conclusion.




          (ii) Manager. By Manager, upon thirty (30) days prior written notice.




          (iii) Joint Venture. Upon the consummation of the Joint Venture and the entering into
of property management agreements between the Joint Venture (or its subsidiaries) and Manager with
respect to the Property.




          6.2 Payments Due Upon Termination. In all events, upon any termination, whenever it
shall occur and for whatever reason, Manager shall be reimbursed for all amounts expended or
accrued on behalf of the Property pursuant to this Agreement.




          6.3 Intentionally Deleted.




          6.4 No Prejudice. The termination of this Agreement shall not prejudice the rights of
either party against the other for any accrued default or breach of this Agreement.




7









 





     7. Indemnification. If either party is a limited liability company, partnership,
trust or corporation, no member or manager of such limited liability company, nor general or
limited partner of such partnership nor trustee or beneficiary of any trust nor shareholder,
officer or director of any corporation shall be personally liable to the other party. Manager
shall not be liable for any act or omission whatsoever of any agent or representative or for
Manager’s negligence or error in judgment, except for its willful misfeasance, bad faith, or gross
negligence in the conduct of its duties. Owner shall indemnify and save harmless Manager from and
against any and all liabilities, claims, damages, costs and expenses (including reasonable
attorney’s fees) to which Manager may become subject by reason of or arising out of the performance
or non-performance of its duties as Manager under this Agreement (collectively, “Liabilities”);
provided, however, that no such right or indemnity shall exist with respect to any Liabilities
shall be made, and Manager shall indemnify Owner against, and shall hold Owner harmless from, any
Liabilities which may be incurred by reason of Manager’s willful misfeasance, bad faith, or gross
negligence in the conduct of its duties. Notwithstanding the foregoing, Owner agrees to indemnify,
hold harmless and defend Manager, its agents and employees from and against any Liabilities arising
in connection with any kind of suit for discrimination brought against Manager by a tenant,
potential tenant, discrimination “tester”, governmental agency, or other party unless it is
established by a court of competent jurisdiction that it was Manager’s policy to engage in the
discriminatory practice(s) on which such Liabilities are based. For purposes of determining
liability for actions of employees, all employees whose compensation is paid by Owner (generally
from the Property’s operating funds) shall be deemed employees of Owner. It is expressly
understood that the indemnification provisions of this Section 7 shall survive the expiration or
termination of this Agreement.



     8. Commitment of Manager. It is understood and agreed that Manager shall devote such
time as may be required for the good and proper management of the Property. Notwithstanding the
foregoing, Manager shall be at liberty to manage property for the account of other owners and to
engage in the same or other businesses for its own account or as agent or contractor for others
without being in violation of the terms of this Agreement.



     9. Miscellaneous.



          9.1 Notices. All notices provided for in this Agreement shall be in writing and
delivered by hand delivery, overnight delivery service, facsimile or by registered or certified
mail, postage prepaid, at the following addresses:




     Owner:


c/o Northland Investment Corporation

2150 Washington Street

Newton, MA 02462

Attn:




     and



8









 






Tarragon Corporation

423 West 55th Street — 12th Floor

New York, NY 10019

Attn: William S. Friedman




     with copies to:


Tarragon Corporation

3100 Monticello – Suite 200

Dallas, TX 75205

Attn: Kathryn Mansfield, Esq.




     Manager:     c/o Northland Investment Corporation


2150 Washington Street

Newton, MA 02462

Attn:




     and


Tarragon Corporation

423 West 55th Street — 12th Floor

New York, NY 10019

Attn: William S. Friedman




     with copies to:


Tarragon Corporation

3100 Monticello – Suite 200

Dallas, TX 75205



Attn: Kathryn Mansfield, Esq.



Either party may change its address for notice by giving notice to the other in the manner as
herein provided.




          9.2 Benefits and Burdens. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective representatives, successors and permitted
assigns.




          9.3 Entire Agreement. This Agreement is the entire agreement between the parties
hereto with respect to the subject matter hereof, and no alteration, modification or interpretation
hereof shall be binding unless in writing and signed by both parties.




          9.4 Severability. If any provisions of this Agreement or application to any party or
circumstance shall be determined by any court of competent jurisdiction to be invalid and
unenforceable, each other provision hereof shall continue to be deemed valid and shall be
enforceable to the fullest extent permitted by law.




          9.5 No Joint Venture. Nothing contained herein shall be deemed to render Manager and
Owner as joint venturers or partners of each other or to make either party hereto




9









 




the agent of the other party and neither party shall have the power to bind or obligate the other
party except in accordance with the terms of this Agreement. Nothing contained herein shall
deprive or otherwise affect the right of either party to own, invest in, manage, or operate, or to
conduct business activities which compete with the business of the Property.




          9.6 Applicable Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts.




          9.7 Captions. The captions contained herein are for convenience only and shall not be
deemed to have substantive meaning.




(Signature page follows)




10









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under the
seal as of the date first above written.



	 	 	 	 	 	 	 
	 	 	Tarragon Corporation, individually and on 

     behalf of the Tarragon Subsidiaries	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Northland Properties Management LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Mark P. Consoli
	 	 
	 

	 	Title:
	 	Chief Operating Officer	 	 
	 
	 	 	 	 	 	 
	 	 	NORTHLAND CONTRIBUTORS,	 	 
	 	 	individually and on behalf of the Northland	 	 
	 	 	Subsidiaries:	 	 
	 
	 	 	 	 	 	 





Northland Portfolio L.P.




	 	 	 	 	 	 	 
	 

	 	By:
	 	Northland Portfolio Partners LLC, Its

General Partner
	 	 






	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






Northland Fund L.P.




	 	 	 	 	 	 	 
	 

	 	By:
	 	Northland Fund I Partners L.P., Its

General Partner
	 	 






	 	 	 	 	 	 	 
	 

	 	By:
	 	Northland Fund I Partners, Inc., Its

General Partner	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






11









 





Northland Fund II, L.P.




	 	 	 	 	 	 	 
	 

	 	By:
	 	Northland Fund II Partners LLC, Its

General Partner
	 	 






	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






Northland Fund III, L.P.




	 	 	 	 	 	 	 
	 

	 	By:
	 	Northland Fund III Partners LLC, Its

General Partner
	 	 






	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






Northland Investment Corporation




	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






Northland Austin Investors LLC




	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






Austin Investors L.P.




	 	 	 	 	 	 	 
	 

	 	By:
	 	Northland Austin Partners LLC, Its

General Partner
	 	 






	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






12









 





Drake Investors L.P.




	 	 	 	 	 	 	 
	 

	 	By:
	 	Northland Drake Partners LLC, Its General

Partner
	 	 






	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






Tatstone Investors L.P.




	 	 	 	 	 	 	 
	 

	 	By:
	 	Northland Tatstone Partners LLC, Its

General Partner
	 	 






	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






13









 





EXHIBIT A-1




TARRAGON SUBSIDIARIES




 









 





EXHIBIT A-2




NORTHLAND SUBSIDIARIES





 









 








EXHIBIT B-1




TARRAGON MANAGEMENT AGREEMENTS




 









 





EXHIBIT B-2




NORTHLAND MANAGEMENT AGREEMENTS




 









 





EXHIBIT C-1




TARRAGON PROPERTIES




 









 





EXHIBIT C-2




NORTHLAND PROPERTIES




 









 





EXHIBIT D




MANAGER’S COMPENSATION




A. PROPERTY MANAGEMENT FEE




     The Manager shall be paid a property management fee equal to the lesser of (x) 4% of the gross
revenues of the Property and (y) with respect to the apartment complexes listed below, the maximum
amount permitted under the Mortgage debt encumbering such complex, as indicated below. Such fee
shall be payable monthly based upon the gross revenues of the Property received for the previous
month. As used herein, “gross revenues” shall mean all monthly gross revenues derived from the
Property determined on a “cash basis” but otherwise in accordance with generally accepted
accounting principles, consistently applied, and shall include, but not be limited to, revenues
from the rental of apartments and storage areas, lease termination payments and penalties, laundry
rentals, rentals of any parking spaces, rent loss insurance proceeds, concession payments, other
revenues (other than rent) received from persons occupying apartments or other space located at the
Property, use charges, utility reimbursements, guest fees, non-refundable deposits, payments or
rent received by Owner or Manager from concessionaires, licensees or lessees, in connection with
the operation of the Property or any part thereof and any and all other ancillary revenue relating
to the Property or derived from services provided, sold or marketed to tenants of the Property
during any applicable period, but shall not include (i) apartment security deposits (except to the
extent that such security deposits are forfeited for breach of a lease), (ii) the proceeds from the
sale of the Property, or (iii) condemnation awards or casualty insurance proceeds resulting from
the condemnation of or a casualty to, as the case may be, the Property or a substantial part
thereof. Compensation for extraordinary services shall be paid to Manager as provided in Section
2.14 of the Agreement and shall be separate from, and not credited against, the compensation
specified in Section 5 of the Agreement.



	 	 	 	 	 
	 

	 	Apartment Complex
	 	Maximum Management Fee







 












 





Exhibit C




ASSIGNMENT OF LIMITED LIABILITY COMPANY/LIMITED PARTNERSHIP INTEREST




          This Assignment of Limited Liability Company/Limited Partnership Interest                     
LLC/L.P. (this “Assignment”), dated as of                      ___, 2008 (the “Effective Date”), is entered
into by and among                      (the “Holder”) and Northland Properties LLC, a Delaware limited
liability company (the “Assignee”).




W I T N E S S E T H :




          WHEREAS,                      LLC (the “Company”) has been formed as a limited liability company
under the [Delaware Limited Liability Company Act (6 Del.C. §18-101, et
seq.) (the “Act”)] [Delaware Revised Uniform Limited Partnership Act, 6 Del. C. §
17 101, et. seq.] pursuant to a Certificate of Formation/Certificate of Limited Partnership of the
Company, as filed in the office of the [Secretary of State of the State of Delaware] on
                    , ___, and [is governed by] a Limited Liability Company Agreement/Limited Partnership
Agreement of the Company, dated as of                     , ___(the “Agreement”);




          WHEREAS, Holder is the sole member of/holder of ___percent of the interests in the Company;




          WHEREAS, Holder desires to assign, transfer and convey all of its limited liability
company/limited partnership interest in the Company as a member/partner of the Company (the
“Interest”) to Assignee;




          WHEREAS, Holder is a party to that certain Agreement to Contribute dated as of March ___, 2008
(the “Contribution Agreement”), whereby Holder has agreed to contribute the Interest to Assignee;




 









 








          WHEREAS, Assignee desires to acquire and accept such assignment of the Interest presently held
by the Holder as set forth herein.




          NOW, THEREFORE, the undersigned, in consideration of the premises, covenants and agreements
contained herein, do hereby agree as follows:




          1. Assignment. Holder hereby sells, transfers, sets over, delivers and assigns unto
Assignee all of Holder’s right, title and interest in and to the Interest with all of the
respective rights, powers, privileges and interests of Holder arising out of or pursuant to the
Agreement from and after the Effective Date.




          2. Acceptance and Assumption. Assignee hereby assumes as of the Effective Date, (x)
all of Holder’s right, title and interest with respect to the Interest, and (y) all
responsibilities and obligations associated with the Interest, in each case arising, occurring or
accruing from and after the Effective Date.




          3. Representations and Warranties. Holder represents, warrants and covenants that
Holder is the lawful owner of, and has good title to, the Interest, free and clear of all liens,
encumbrances and adverse claims, and that Holder has not previously assigned any of the Interest.




          4. Disclaimers. The assignment of the Interest is made by Holder without recourse,
representation or warranty, express or implied, except as expressly set forth herein and in the
Contribution Agreement. The liability of Holder in respect of this Assignment is subject to the
limitations set forth in the Contribution Agreement.




          5. Future Cooperation. Each of the parties hereto agrees to cooperate at all times
from and after the date hereof with respect to all of the matters described herein, and to execute
such further assignments, releases, assumptions, notifications and other documents as may be
reasonably requested for the purpose of giving effect to, or




-2-









 




evidencing or giving notice of, the transactions contemplated by this Assignment.




          6. Binding Effect. This Assignment shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.




          7. Execution in Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, but all of which shall constitute one and the same
instrument.




          8. Governing Law. This Assignment shall be governed by, and interpreted in accordance
with, the laws of the State of Delaware, all rights and remedies being governed by such laws.




-3-









 





          IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly executed as of
the day and year first above written.




	 	 	 	 	 	 	 
	 	 	HOLDER:	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE:	 	 
	 
	 	 	 	 	 	 
	 	 	NORTHLAND PROPERTIES LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title	 	 







 











 






Exhibit D




TAX MATTERS AGREEMENT




     THIS
TAX MATTERS AGREEMENT (“this Agreement”) made as of the ___ day of                     , 200_
(“Effective Date”), by and among Tarragon Corporation, a Nevada corporation (“Tarragon”), Ansonia
LLC, a Delaware limited liability company (“Ansonia”), and Northland Properties LLC, a Delaware
limited liability company (the “Partnership”), having its principal office at c/o Northland
Investment Corporation, 2150 Washington Street, Newton, MA 02462.



W I T N E S S E T H:




     This Agreement is made with reference to the following facts and objectives:



     (a) Pursuant to that certain Contribution Agreement made as of March 31, 2008 by and among the
parties hereto (the “Contribution Agreement”), as of the Effective Date, Tarragon and Ansonia have
contributed the properties set forth on Schedule A attached hereto (the “Properties”) to the
Partnership in exchange for limited partnership interests (the “Units”) in the Partnership.



     (b) As used in this Agreement, the following terms shall have the meanings set forth below:



     “Ansonia Maximum Allowable Gain” shall mean (i) $1,086,504 on any date on or after the
Effective Date and on or before December 31, 2009, (ii) $2,173,009 on any date on or after January
1, 2010, and on or before December 31, 2010, (iii) $3,259,513 on any date on or after January 1,
2011, and on or before December 31, 2011, (iv) $4,346,017 on any date on or after January 1, 2012,
and on or before December 31, 2012, and (v) $5,432,522 on any date on or after January 1, 2013, and
on or before December 31, 2015.



     “Ansonia Protected Amount” shall mean $40,000,000, provided, however, that (i)
upon a sale, exchange, transfer or other disposition (other than a sale, exchange, transfer or
disposition in which the transferee’s basis in the transferred property is determined wholly by
reference to the transferor’s basis in such transferred property) by an Ansonia Protected Party of
some or all of its Units, the Ansonia Protected Amount shall be reduced to the extent of any income
or gain recognized by the Ansonia Protected Party, and (ii) upon any other transaction resulting in
an allocation of income or gain to the Ansonia Protected Parties under Code Section 704(c) or the
recognition of income or gain by the Ansonia Protected Parties under Code Section 731 as a result
of Code Section 752, the Ansonia Protected Amount shall be further reduced by the excess of (A) the
aggregate amount of such income and/or gain over (B) the aggregate amount of distributions made to
the Ansonia Protected Parties in respect of such transaction under Article VII of the Partnership
Agreement, and, without duplication, the Ansonia Special Distribution as hereinafter defined.



     “Ansonia Protected Party” shall mean (i) Ansonia and (ii) each Person who acquires a



1









 




direct or indirect interest in the Partnership from Ansonia in a transaction in which such Person’s
adjusted basis in such interest for federal income tax purposes is determined in whole or in part
by reference either to such Person’s basis in other property or to Ansonia’s basis in such
interest.




     “Ansonia Protection Period” shall mean the period beginning on the Effective Date and ending
on December 31, 2015.



     “Ansonia Threshold Gain Amount” shall mean, as of any date, an amount equal to the excess of
(i) the Ansonia Maximum Allowable Gain as of such date over (ii) the sum of (A) the cumulative
amount of income and gain attributable to the Protected Properties previously allocated by the
Partnership to the Ansonia Protected Parties (excluding amounts with respect to which the Ansonia
Protected Parties previously have been indemnified pursuant to Section 5) and (B) the cumulative
amount of income and gain recognized by the Ansonia Protected Parties under Code Section 731 in
connection with one or more Recognition Events (excluding amounts with respect to which the Ansonia
Protected Parties previously have been indemnified pursuant to Section 5).



     “Code” shall mean and refer to the Internal Revenue Code of 1986, as amended.



     “Disposition” shall have the meaning set forth in Section 1(a).



     “Member” shall mean a member of the Partnership.



     “Partnership Agreement” shall mean the Amended and Restated Limited Liability Company
Agreement of the Partnership.



     “Person” shall mean an individual, trust, corporation, association, retirement system,
unincorporated organization, joint venture, partnership, limited liability company, or other
entity.



     “Protected Properties” shall mean the 5-Year Protected Properties and the 7-Year Protected
Properties, and “Protected Property” shall mean any of the foregoing Protected Properties.



     “5-Year Protected Property” shall mean each Property identified as a “5-Year Protected
Property” on Schedule A and any asset which becomes a 5-Year Protected Property pursuant to Section
1 hereof.



     “7-Year Protected Property” shall mean each Property identified as a “7-Year Protected
Property” on Schedule A and any asset which becomes a 7-Year Protected Property pursuant to Section
2 hereof.



     “Recognition Event” shall have the meaning set forth in Section 4.



     “Regulations” shall mean the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).



2









 





     “Tarragon Maximum Allowable Gain” shall mean (i) $8,913,496 on any date on or after the
Effective Date and on or before December 31, 2009, (ii) $17,826,991 on any date on or after January
1, 2010, and on or before December 31, 2010, (iii) $26,740,487 on any date on or after January 1,
2011, and on or before December 31, 2011, (iv) $35,653,983 on any date on or after January 1, 2012,
and on or before December 31, 2012, and (v) $44,567,478 on any date on or after January 1, 2013,
and on or before December 31, 2013.



     “Tarragon Note” shall mean the Secured Term Promissory Note in the principal amount of fifty
million dollars ($50,000,000) to be issued pursuant to that certain Note Purchase Agreement dated
as of ___, 2008, between Tarragon and Northland Talleyrand LLC, a Delaware limited liability
company.



     “Tarragon Protected Amount” shall mean $320,000,000, provided, however, that
(i) upon a sale, exchange, transfer or other disposition (other than a sale, exchange, transfer or
disposition in which the transferee’s basis in the transferred property is determined wholly by
reference to the transferor’s basis in such transferred property) by a Tarragon Protected Party of
some or all of its Units, the Tarragon Protected Amount shall be reduced to the extent of any
income or gain recognized by the Tarragon Protected Party, and (ii) upon any other transaction
resulting in an allocation of income or gain to the Tarragon Protected Parties under Code Section
704(c) or the recognition of income or gain by the Tarragon Protected Parties under Code Section
731 as a result of Code Section 752, the Tarragon Protected Amount shall be further reduced by the
excess of (A) the aggregate amount of such income and/or gain over (B) the aggregate amount of
distributions made to the Tarragon Protected Parties in respect of such transaction under Article
VII of the Partnership Agreement, and, without duplication, the Tarragon Special Distribution as
hereinafter defined.



     “Tarragon Protected Party” shall mean (i) Tarragon and (ii) each Person who acquires a direct
or indirect interest in the Partnership from Tarragon in a transaction in which such Person’s
adjusted basis in such interest for federal income tax purposes is determined in whole or in part
by reference either to such Person’s basis in other property or to Tarragon’s basis in such
interest.



     “Tarragon Protection Period” shall mean the period beginning on the Effective Date and ending
on December 31, 2013.



     “Tarragon Threshold Gain Amount” shall mean, as of any date, an amount equal to the excess of
(i) the Tarragon Maximum Allowable Gain as of such date over (ii) the sum of (A) the cumulative
amount of income and gain attributable to the Protected Properties previously allocated by the
Partnership to the Tarragon Protected Parties (excluding amounts with respect to which the Tarragon
Protected Parties previously have been indemnified pursuant to Section 5) and (B) the cumulative
amount of income and gain recognized by the Tarragon Protected Parties under Code Section 731 in
connection with one or more Recognition Events (excluding amounts with respect to which the
Tarragon Protected Parties previously have been indemnified pursuant to Section 5).



3









 





     NOW, THEREFORE, in consideration of the foregoing, the mutual covenants, agreements and
undertakings herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto and the Partnership agree as
follows:



     1. LOCK OUT FOR 5-YEAR PROPERTIES.



     (a) Except as expressly permitted by this Section 1 and Section 3 below, neither the
Partnership nor any entity in which the Partnership holds a direct or indirect interest shall, for
federal income tax purposes, directly or indirectly, sell, transfer or otherwise dispose of in a
taxable transaction, (including a distribution giving rise to tax under Section 704(c)(1)(B) of the
Code (a “Taxable Distribution”)) or in a transaction to an entity treated as a corporation for
federal income tax purposes such that Code Section 752 does not apply to allocated indebtedness
with respect to the Protected Property (any such action, a “Disposition”), any of the 5-Year
Protected Properties prior to December 31, 2013. The term “Disposition” shall not include (w) any
mortgage or other document evidencing a loan (as determined for federal income tax purposes)
secured by a Protected Property, (x) any leases (as determined for federal income tax purposes),
easements (as determined for federal income tax purposes), licenses (as determined for federal
income tax purposes) or any other similar rights granted affecting a Protected Property, (y) any
like-kind exchange or other transaction in which no income or gain is recognized for federal income
tax purposes, or (z) any disposition of interests in the Partnership as a result of the bankruptcy
of any Ansonia Protected Party or Tarragon Protected Party or, if the Tarragon Note shall have been
issued, any event of default under the Tarragon Note.



     (b) If the Partnership contributes or otherwise transfers any Protected Property directly or
indirectly to any partnership or other entity in which the Partnership holds or will hold a direct
or indirect interest, then the transferee shall also be bound by this Agreement with respect to
such Protected Property.



     (c) Any property (or portion thereof) received on a tax-deferred basis in exchange for a
5-Year Protected Property shall be treated as a 5-Year Protected Property for all purposes under
this Agreement.



     2. LOCK OUT FOR 7-YEAR PROPERTIES.



     (a) Except as expressly permitted by this Section 2, but notwithstanding any other provision
of this Agreement to the contrary, neither the Partnership nor any entity in which the Partnership
holds a direct or indirect interest shall, for federal income tax purposes, engage in a Disposition
(as defined in Section 1(a)) with respect to any of the 7-Year Protected Properties prior to
December 31, 2015, without the consent of Tarragon and Ansonia; provided that the consent
of Robert Rothenberg shall be deemed to be the consent of Ansonia.



     (b) If the Partnership contributes or otherwise transfers any 7-Year Protected Property
directly or indirectly to any partnership or other entity in which the Partnership holds or will
hold a direct or indirect interest, then the transferee shall also continue to be bound by this
Agreement with respect to such 7-Year Protected Property.



4









 





     (c) Any property (or portion thereof) received on a tax-deferred basis in exchange for a
7-Year Protected Property shall be treated as a 7-Year Protected Property for all purposes under
this Agreement.



     3. OBLIGATION TO MAINTAIN CERTAIN NONRECOURSE INDEBTEDNESS.



     (a) Subject to paragraph (b) hereof and Section 4 below:




     (i) at all times during the Ansonia Protection Period, the Partnership shall use
reasonable efforts to maintain, directly or indirectly, an amount of indebtedness allocable
to the Ansonia Protected Parties for purposes of Code Section 752 and the Regulations
thereunder equal to the Ansonia Protected Amount; and




     (ii) at all times during the Tarragon Protection Period, the Partnership shall use
reasonable efforts to maintain, directly or indirectly, an amount of indebtedness allocable
to the Tarragon Protected Parties for purposes of Code Section 752 and the Regulations
thereunder equal to the Tarragon Protected Amount.



     (b) Notwithstanding anything to the contrary in this Agreement:




     (i) the Partnership may satisfy all or any part of its obligation to maintain
indebtedness allocable to the Ansonia Protected Parties under Code Section 752 by using
reasonable efforts to make available to the Ansonia Protected Parties (and their direct and
indirect partners) the opportunity (a “Guarantee Opportunity”) to make a “bottom-dollar
guarantee” of indebtedness of the Partnership in an amount sufficient, when taken together
with any other debt reasonably expected to be allocable to the Ansonia Protected Parties
pursuant to Code Section 752 after giving effect to the guarantee, to provide for
indebtedness allocable to the Ansonia Protected Parties in an amount equal to the Ansonia
Protected Amount; provided, however, that the guaranteed amount under this
Section 3(b)(i) with respect to any indebtedness of the Partnership shall in no event exceed
50% of the fair market value of the collateral property securing such indebtedness
determined at the time the guarantee is made, and provided further that any
such Guarantee Opportunity shall be presented to Ansonia no less than 10 business days prior
to the date of the event giving rise to a potential reallocation of indebtedness under Code
Section 752 to which such Guarantee Opportunity relates; and




     (ii) the Partnership may satisfy all or any part of its obligation to maintain
indebtedness Protected Parties under Code Section 752 by using reasonable efforts to make
available to the Tarragon Protected Parties (and their direct and indirect partners) a
Guarantee Opportunity to make a “bottom-dollar guarantee” of indebtedness of the Partnership
in an amount sufficient, when taken together with any other debt reasonably expected to be
allocable to the Tarragon Protected Parties pursuant to Code Section 752 after giving effect
to the guarantee, to provide for indebtedness allocable to the Tarragon Protected Parties in
an amount equal to the Tarragon Protected Amount; provided,



5









 






however, that the guaranteed amount under this Section 3(b)(ii) with respect to
any indebtedness of the Partnership shall in no event exceed 50% of the fair market value of
the collateral property securing such indebtedness determined at the time the guarantee is
made, and provided further that any such Guarantee Opportunity shall be
presented to Tarragon no less than 10 business days prior to the date of the event giving
rise to a potential reallocation of indebtedness under Code Section 752 to which such
Guarantee Opportunity relates.



     (c) The parties hereto acknowledge that other direct or indirect owners of interests in the
Partnership shall be permitted to guarantee debt of the Partnership or its subsidiaries on a basis
that is pari passu with the “bottom dollar guarantees” contemplated hereby. Any guarantee entered
into pursuant to this Agreement shall be in substantially the form attached hereto as Schedule C,
subject to any reasonable modifications requested by the lender.



     (d) Notwithstanding anything to the contrary in this Agreement, the Partnership shall not be
required to make available (i) to the Ansonia Protected Parties any Guarantee Opportunity in excess
of the Ansonia Protected Amount, or (ii) to the Tarragon Protected Parties any Guarantee
Opportunity in excess of the Tarragon Protected Amount.



     (e) The Partnership acknowledges that the purpose and intent of providing Guarantee
Opportunities to the Ansonia Protected Parties and the Tarragon Protected Parties is to result in
the guaranteed liability being treated as a “recourse” liability as defined in Regulations Section
1.752-1(a)(1) with respect to the guaranteeing Member to the extent of the amount of such
guarantee. Except to the extent otherwise determined in a final judicial proceeding, the
Partnership shall file all tax returns and reports in a manner consistent with the treatment of any
such guaranteed liability as a recourse liability with respect to the guaranteeing Member to the
extent of the amount guaranteed. Notwithstanding the foregoing, the Partnership makes no
representation or warranty to any Member that providing a “bottom guarantee” will result in the
desired treatment of the liability as a recourse liability for purposes of Code Section 752 or will
cause the applicable Member to be considered “at risk” with respect to any such guaranteed debt for
purposes of Code Section 465.



     4. PERMITTED TAXABLE TRANSACTIONS.



     Notwithstanding any other provision of this Agreement, the Partnership (or other entity in
which the Partnership holds a direct or indirect interest) shall have the right, during the Ansonia
Protection Period and the Tarragon Protection Period, to engage in any transaction (including any
Disposition, refinancing or debt repayment) that results in a breach of any obligation set forth in
Section 1 or Section 3 of this Agreement (a “Recognition Event”) if the Partnership complies with
Section 5 with respect to such transaction.



6









 





     5. INDEMNIFICATION.



     (a) If the Partnership engages in a transaction that results in a Recognition Event, then the
Partnership shall, to the extent set forth below, pay to the Ansonia Protected Parties an amount
equal to the “Ansonia Damages Amount,” if any, and pay to the Tarragon Protected Parties an amount
equal to the “Tarragon Damages Amount,” if any. The Ansonia Damages Amount and the Tarragon
Damages Amount shall be determined as of the next date after the Recognition Event (assuming for
this purpose that any gain recognized under Code Section 731 is recognized on the date of the
distribution or deemed distribution of cash) upon which estimated U.S. federal income taxes are
required to be paid by corporations (the “Tax Liability Date”). The following additional
definitions shall apply for purposes of this Section 5:




     (i) The “Applicable Yield” shall be 12.5%, compounded semi-annually.




     (ii) The “Ansonia Damages Amount” shall be the present value (using a discount rate
equal to the Applicable Yield) as of the Tax Liability Date, of the amount of interest that
hypothetically would have been earned on the Ansonia Tax Amount (as defined below) if such
amount had been invested in assets producing the Applicable Yield from the Tax Liability
Date through the next date after December 31, 2015, upon which estimated U.S. federal income
taxes are required to be paid by corporations.




     (iii) The “Ansonia Tax Amount” shall be an amount equal to (A) the sum of (x) the
Ansonia Protected Parties’ distributive share (as determined for federal income tax purposes
and including for this purpose amounts allocated under Section 704(c) of the Code) of the
taxable net income and gain allocated by the Partnership to the Ansonia Protected Parties in
excess of the Ansonia Threshold Gain Amount solely by reason of the Recognition Event,
determined in accordance with and subject to the limitations contained in this Section 5,
and (y) without duplication of any amount described in clause (x), the amount of gain
recognized by the Ansonia Protected Parties under Code Section 731 in excess of the Ansonia
Threshold Gain Amount solely by reason of the Recognition Event multiplied by (B) the
combined maximum effective federal, state and local income tax rate applicable to such
income or gain assuming such income or gain was recognized by an individual resident of New
York, New York.




     (vi) The “Tarragon Damages Amount” shall be the present value (using a discount rate
equal to the Applicable Yield) as of the Tax Liability Date, of the amount of interest that
hypothetically would have been earned on the Tarragon Tax Amount (as defined below) if such
amount had been invested in assets producing the Applicable Yield from the Tax Liability
Date through the next date after December 31, 2013, upon which estimated U.S. federal income
taxes are required to be paid by corporations.




     (v) The “Tarragon Tax Amount” shall be an amount equal to (A) the sum of (x) the
Tarragon Protected Parties’ distributive share (as determined for federal income tax
purposes and including for this purpose amounts allocated under Section 704(c) of the Code)
of the taxable net income and gain allocated by the Partnership to the Tarragon Protected
Parties in excess of the Tarragon Threshold Gain Amount solely by reason of the Recognition
Event, determined in accordance with and subject to the limitations



7









 






contained in this Section 5, and (y) without duplication of any amount described in
clause (x), the amount of gain recognized by the Tarragon Protected Parties under Code
Section 731 in excess of the Tarragon Threshold Gain Amount solely by reason of the
Recognition Event multiplied by (B) 38%.



     (b) The payment of any Ansonia Damages Amount or Tarragon Damages Amount for each Recognition
Event shall be made no later than 90 days from the date of the Recognition Event (the date on which
payment of the Ansonia Damages Amount or the Tarragon Damages Amount, as applicable, is made is
referred to as the “Payment Date”), provided that the Ansonia Protected Parties (in
the case of any Ansonia Damages Amount) and/or the Tarragon Protected Parties (in the case of any
Tarragon Damages Amount) shall have furnished such information as reasonably requested by the
Partnership to enable the Partnership to calculate the applicable Damages Amount. For the
avoidance of doubt, in the event of any disposition of property through a qualified intermediary,
as defined in Treasury Regulations Section 1.1031(k)-1(g)(4)(iii), that is intended to potentially
qualify as a deferred like-kind exchange pursuant to Code Section 1031 if desirable replacement
property is identified and purchased, a Recognition Event shall not be considered to have occurred
unless and until such time as the Partnership receives from the qualified intermediary money or
other property which does not meet the requirements of Code Section 1031(a) or any other event
occurs which makes the intended exchange not subject to full nonrecognition under Code Section
1031.




(c) (i) For purposes of determining the Ansonia Damages Amount in respect of any breach of
Section 1 hereof, in no event shall the gain taken into account by with respect to the
Disposition of a Protected Property exceed the amount of gain that would have been allocated
to the Ansonia Protected Parties if the Partnership had sold such Protected Property in a
fully taxable transaction on the day following the Effective Date for a purchase price equal
to its fair market value at such time, provided that, for purposes of
computing such amount, the aggregate amount of such gain with respect to the Protected
Property allocated to the Ansonia Protected Parties shall not exceed the Ansonia Protected
Parties’ estimated share of the Code Section 704(c) gain as of the Effective Date stated
with respect to such Protected Property, as each is set forth on Schedule B of this
Agreement (such amounts, the “Ansonia Effective Date 704(c) Gain”). The amount of gain
taken into account for purposes of this Section 5(c)(i) with respect to any Disposition of a
Protected Property shall be further reduced by the amount of any gain attributable to
Ansonia Effective Date 704(c) Gain which was previously recognized by or was otherwise
allocable to the Ansonia Protected Parties with respect to a direct or indirect transfer
(including any redemption) of some or all of its direct or indirect interests in the
Partnership to the extent of any reduction in Code Section 704(c) gain with respect to the
Ansonia Protected Parties as a result of such transfer (or redemption).




     (ii) For purposes of determining the Tarragon Damages Amount in respect of any breach
of Section 1 hereof, in no event shall the gain taken into account by with respect to the
Disposition of a Protected Property exceed the amount of gain that would have been allocated
to the Tarragon Protected Parties if the Partnership had sold such Protected Property in a
fully taxable transaction on the day following the Effective Date



8









 






for a purchase price equal to its fair market value at such time, provided
that, for purposes of computing such amount, the aggregate amount of such gain with
respect to the Protected Property allocated to the Tarragon Protected Parties shall not
exceed the Tarragon Protected Parties’ estimated share of the Code Section 704(c) gain as of
the Effective Date stated with respect to such Protected Property, as each is set forth on
Schedule B of this Agreement (such amounts, the “Tarragon Effective Date 704(c) Gain”). The
amount of gain taken into account for purposes of this Section 5(c)(ii) with respect to any
Disposition of a Protected Property shall be further reduced by the amount of any gain
attributable to Tarragon Effective Date 704(c) Gain which was previously recognized by or
was otherwise allocable to the Tarragon Protected Parties with respect to a direct or
indirect transfer (including any redemption) of some or all of its direct or indirect
interests in the Partnership to the extent of any reduction in Code Section 704(c) gain with
respect to the Tarragon Protected Parties as a result of such transfer (or redemption).




(d) (i) In connection with any transaction giving rise to a Recognition Event, if the sum of
(x) the Ansonia Damages Amount and (y) the aggregate distributions made (or to be made prior
to the Tax Liability Date) to the Ansonia Protected Parties under Article VII of the
Partnership Agreement in respect of such transaction is less than the Ansonia Total Tax
Liability (as defined below) with respect to such transaction, then the Partnership shall
make a special distribution to the Ansonia Protected Parties in the amount of such shortfall
(an “Ansonia Special Distribution”). Any Ansonia Special Distribution shall be treated as
an advance against future distributions payable to the Ansonia Protected Parties under
Article VII of the Partnership Agreement, but not against any other Ansonia Special
Distribution.




     (ii) In connection with any transaction giving rise to a Recognition Event, if the sum
of (x) the Tarragon Damages Amount and (y) the aggregate distributions made (or to be made
prior to the Tax Liability Date) to the Tarragon Protected Parties under Article VII of the
Partnership Agreement in respect of such transaction is less than the Tarragon Total Tax
Liability (as defined below) with respect to such transaction, then the Partnership shall
make a special distribution to the Tarragon Protected Parties in the amount of such
shortfall (a “Tarragon Special Distribution”). Any Tarragon Special Distribution shall be
treated as an advance against future distributions payable to the Tarragon Protected Parties
under Article VII of the Partnership Agreement, but not against any other Tarragon Special
Distribution.




     (iii) For purposes of this Section 5, the “Ansonia Total Tax Liability” with respect to
a transaction that gives rise to a Recognition Event shall be an amount equal to (A) the sum
of (x) the Ansonia Protected Parties’ distributive share (as determined for federal income
tax purposes and including for this purpose amounts allocated pursuant to Section 704(c) of
the Code) of the aggregate taxable net income and gain allocated by the Partnership to the
Ansonia Protected Parties solely by reason of such transaction and (y) without duplication
of any amount described in clause (x), the amount of gain recognized by the Ansonia
Protected Parties under (I) Section 704(c)(1)(B) as a result of a Taxable Distribution and,
without duplication, (II) Code Section 731 solely by reason



9









 






of such transaction multiplied by (B) the combined maximum effective federal, state and
local income tax rate applicable to such income or gain assuming such income or gain was
recognized by an individual resident of New York, New York.




     (iv) The “Tarragon Total Tax Liability” with respect to a transaction that gives rise
to a Recognition Event shall be an amount equal to (A) the sum of (x) the Tarragon Protected
Parties’ distributive share (as determined for federal income tax purposes and including for
this purpose amounts allocated pursuant to Section 704(c) of the Code) of the aggregate
taxable net income and gain allocated by the Partnership to the Tarragon Protected Parties
solely by reason of such transaction and (y) without duplication of any amount described in
clause (x), the amount of gain recognized by the Tarragon Protected Parties under (I)
Section 704(c)(1)(B) as a result of a Taxable Distribution and, without duplication, (II)
Code Section 731 solely by reason of such transaction multiplied by (B) 38%.



     6. SOLE REMEDY; NO SPECIFIC PERFORMANCE.



     (a) Notwithstanding any provision of this Agreement to the contrary, the sole and exclusive
rights and remedies of any Ansonia Protected Party or Tarragon Protected Party for a breach of the
obligations set forth in Sections 1 or 3 hereof shall be a claim for damages against the
Partnership computed as set forth in Section 5, and no Ansonia Protected Party or Tarragon
Protected Party shall be entitled to pursue a claim for specific performance of the covenants set
forth in Section 1 or 3 hereof or bring a claim against any person that acquires a Protected
Property. Except as expressly set forth herein, the Partnership assumes no responsibility for any
tax consequences resulting from the contribution of the interests to the Partnership in exchange
for Units.



     (b) The parties hereto acknowledge that damages would be an insufficient remedy for a breach
of the obligations set forth in Section 2 hereof and agree that the Protected Parties shall be
entitled to specific performance remedies with respect to such a breach (and such remedies may be
sought without any obligation to post a bond in order to obtain a preliminary injunction).



     (c) Notwithstanding any provision of this Agreement to the contrary, no remedy or distribution
shall be provided or required by this Agreement in connection with a disposition of interests in
the Partnership as a result of the bankruptcy of any Ansonia Protected Party or Tarragon Protected
Party or, if the Tarragon Note shall have been issued, any event of default under the Tarragon
Note.



     7. NOTICES.



     (a) All notices, demands, or requests made and/or given pursuant to, under, or by virtue of
this Agreement must be in writing and sent to the party to which the notice, demand or request is
being made and/or given, by postage prepaid, certified or registered mail, return receipt
requested, by nationally recognized courier service, by telecopy or by personal delivery, as
follows:



10









 






	 	 	 
	(I) If to Tarragon:

	 	Tarragon Corporation
	 

	 	423 West 55th Street – 12th Floor
	 

	 	New York, NY 10019
	 

	 	Attn: William S. Friedman
	 

	 	Phone: (212) 949-5000

	 

	 	Fax: (646) 354-2171






with copies to:




Tarragon Corporation

3100 Monticello, Ste. 200

Dallas, TX 75205

Attn: Kathryn Mansfield, Esq.

Phone: (214) 599-2250

Fax: (214) 599-2250




Jones Day

222 East 41st Street

New York, NY 10017

Attn: Kent R. Richey, Esq.

Phone: (212) 326-3481

Fax: (212) 755-7306




	 	 	 
	(II) If to Ansonia:

	 	Ansonia LLC
	 

	 	c/o Tarragon Corporation
	 

	 	423 West 55th Street
	 

	 	12th Floor
	 

	 	New York, NY 10019
	 

	 	Attention:  Robert Rothenberg
	 

	 	Fax:  (212) 687-1345






With a copy to:




Holland & Knight LLP

195 Broadway

New York, New York 10007

Attn: Jim Spitzer, Esq.

Fax: (212) 341-7292




	 	 	 
	(III) If to the Partnership:

	 	Northland Properties LLC
	 

	 	c/o Northland Investment Corporation
	 

	 	2150 Washington Street
	 

	 	Newton, MA 02462
	 

	 	Attn: Steven P. Rosenthal
	 

	 	Phone: (617) 630-7240
	 

	 	Fax: (617) 630-7201






11









 






with a copy to:




Northland Investment Corporation

2150 Washington Street

Newton, MA 02462

Attn: Suzanne Abair, Esq.

Phone: (617) 630-7275

Fax: (617) 630-7201




Goodwin Procter LLP

Exchange Place

53 State Street

Boston, MA 02109

Attn: Gilbert G. Menna, Esq.

Phone: (617) 570-1433

Fax: (617) 570-1231




     (b) Any such notice, demand or request shall be deemed to have been rendered or given on the
date of receipt, in the case of delivery by courier service, telecopy or personal delivery, or
three (3) business days after mailing.



     8. ASSIGNMENT. Except as provided herein, neither this Agreement nor any interest hereunder
shall be assigned or transferred by the Members.



     9. GOVERNING LAW. This Agreement shall be governed, construed and interpreted in accordance
with the laws of the State of Delaware applicable to contracts made and to be performed wholly
within the State of Delaware without giving effect to the conflicts-of-laws principles thereof.



     10. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the various documents referred to herein
contains, or incorporates, all of the terms agreed upon between the parties with respect to the
subject matter, and supersedes any and all prior written or oral understandings. This Agreement
shall be amended and/or modified to the extent that less than all of the assets that are intended
to constitute the Protected Properties are contributed to the Partnership as of the First Closing
(as defined in the Contribution Agreement). This Agreement may not be modified or amended except
in, and by, a written instrument executed by the parties hereto.



     11. WAIVER. No waiver by either party of any failure or refusal of the other party to comply
with any of the obligations of such party hereunder shall be deemed a waiver of any other or
subsequent failure or refusal so to comply.



     12. ARTICLE HEADINGS. The headings of the various sections of this Agreement have been
inserted only for purposes of convenience, and are not part of this Agreement, and shall not be
deemed in any manner to modify, explain, qualify or restrict any of the provisions of
this Agreement.



12









 






     IN WITNESS WHEREOF, the Members and the Partnership have executed this Agreement as at the day
and year first above written.



	 	 	 	 	 	 	 
	 	 	Ansonia LLC, a Delaware limited

liability company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	Tarragon Corporation, a Nevada corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	Northland Properties LLC, a Delaware

limited liability company	 	 
	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






13









 





SCHEDULE A




5-Year Protected Properties




200 Fountain

278 Main

Autumn Ridge

Aventerra

Dogwood Hills

Forest Park

French Villa

Gull Harbor

Hamden Centre

Harbour Green

Lakeview

Liberty Building

Links at Georgetown

Lofts at the Mills

Mustang Creek

River City Landing

Southern Elms

Summit on the Lake

Vintage at Legacy

Vintage at Madison Crossing

Vintage at Plantation bay

Woodcreek FL




7-Year Protected Properties




Club at Danforth

Groton Towers

Heather Hill

Nutmeg Woods

Ocean Beach

Parkview

Sagamore Hills

Vintage at the Parke

Woodcliff Estates




 









 





SCHEDULE B




TAX-RELATED INFORMATION




SEE ATTACHED SPREADSHEET




 









 





SCHEDULE C




Form of Guaranty Agreement For Secured Nonrecourse Indebtedness




GUARANTY OF COLLECTABILITY AGREEMENT




     THIS GUARANTY AGREEMENT (“Guarantee”), is dated as of                     , between each of the
undersigned Persons identified on Schedule 1 attached hereto (“Guarantors”), and [Lender]
(“Guaranteed Party”).



     WHEREAS, [Borrower] (“Maker”), is indebted to the Guaranteed Party in the sum of [Amount] (the
“Loan”), as evidenced by a certain promissory note (the “Note”), which is secured by a first
(subject to permitted encumbrances) mortgage (the “Mortgage”) lien on certain property of the Maker
(the “Properties” and individually, a “Property”). [Add description of Qualifying Debt] The Note,
the Mortgage and all other instruments, whether now existing or hereafter arising, evidencing or
securing the Loan or any extension or modification thereof, as each such document has been or may
hereafter be amended or modified, are collectively referred to herein as the “Loan Documents.”



     WHEREAS, the Guarantors desire to guarantee collection of a portion of the principal amount of
the Note not in excess of [Guaranteed Amount] (the “Guaranteed Amount”).



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, Guarantors agree as follows:



     1. Guarantee and Limitation on Liability.




     A. The Guarantors, pursuant to this Guarantee, hereby unconditionally guarantee to the
Guaranteed Party, subject to the terms of this Paragraph 1 below, full payment of all of the
Maker’s obligations for the repayment of the principal amount outstanding under the Note as
of the date hereof (the “Guaranteed Obligations”).




     B. Notwithstanding anything to the contrary contained in this Guarantee: (i) each
Guarantor’s liability under this Guarantee shall be limited to the lesser of (x) the actual
principal amount outstanding under the Note and (y) the amount(s) set forth next to such
Guarantor’s name on Schedule 2 attached hereto, as the same may be amended from time to
time; (ii) the amounts payable by each Guarantor in respect of the Guaranteed Obligations
shall be in the same proportion as the amount listed next to such Guarantor’s name on
Schedule 2 bears to the Guaranteed Amount; and (iii) no demand shall be made under this
Guarantee (1) unless and until an event of default under the Loan Documents has occurred and
is continuing and the Guaranteed Party has accelerated the Loan and (A) either foreclosed on
the Mortgage and exercised the powers of sale thereunder and/or accepted a deed to the
Properties in lieu of foreclosure of its indebtedness and (B) proceeded against and
exhausted all remedies, whether at law or in equity, available to the Guaranteed Party
against the Maker, any collateral securing the Loan (including but not limited to the assets
of the Maker other than the Properties against which the Guaranteed Party has recourse
pursuant to the Loan Documents); and (2) except as and to



 









 






the extent that the Guaranteed Amount is in excess of the Maker Proceeds (as
hereinafter defined).




     C. For the purposes of this Guarantee, the term “Maker Proceeds” shall mean the
aggregate of the Foreclosure Proceeds (as hereinafter defined) plus all other amounts
collected from the Maker or realized from the sale of assets of the Maker other than the
Properties by the Guaranteed Party in repayment of the Note.




     D. For the purposes of this Guarantee, the term “Foreclosure Proceeds” shall have the
applicable meaning set forth below with respect to a Property:




     1. If at least one bona fide third party unrelated to the Guaranteed Party (and
including, without limitation, any of the Guarantors) bids for such Property at a
sale thereof, conducted upon foreclosure of the related Mortgage or exercise of the
power of sale thereunder, Foreclosure Proceeds shall mean the highest amount bid for
such Property by the party that acquires title thereto (directly or through a
nominee) at or pursuant to such sale. For the purposes of determining such highest
bid, amounts bid for the Property by the Guaranteed Party shall be taken into
account notwithstanding the fact that such bids may constitute credit bids which
offset against the amount due to the Guaranteed Party under the Note.




     2. If there is no such unrelated third-party at such sale of the Property so
that the only bidder at such sale is the Guaranteed Party or its designee, the
Foreclosure Proceeds shall be deemed to be the fair market value (the “Fair Market
Value”) of the Property as of the date of the foreclosure sale, as such Fair Market
Value shall be mutually agreed upon by the Guaranteed Party and the Guarantors or
determined pursuant to Paragraph 1.E.




     3. If the Guaranteed Party receives and accepts a deed to the Property in lieu
of foreclosure in partial satisfaction of Maker’s obligations under the Note, the
Foreclosure Proceeds shall be deemed to be the Fair Market Value of such Property as
of the date of delivery of the deed-in-lieu of foreclosure, as such Fair Market
Value shall be mutually agreed upon by the Guaranteed Party and the Guarantors or
determined pursuant to Paragraph 1.E.




     E. Fair Market Value of a Property shall be the price at which a willing seller not
compelled to sell would sell such Property, and a willing buyer not compelled to buy would
purchase the Property, free and clear of all mortgages but subject to all leases and
reciprocal easement and operating agreements. If the Guaranteed Party and Guarantors are
unable to agree upon the Fair Market Value of a Property in accordance with subparagraphs
1.D.2. or 3. above, as applicable, within twenty (20) days after the date of the foreclosure
sale or the delivery of the deed-in-lieu of foreclosure, as applicable, relating to a
Property, either party may have the Fair Market Value of a Property determined by appraisal
by appointing an appraiser having the qualifications set forth below to determine the same
and by notifying the other party of such appointment within twenty (20) days after the
expiration of such twenty (20) day period. If the other party



 









 






shall fail to notify the first party, within twenty (20) days after its receipt of
notice of the appointment by the first party, of the appointment by the other party of an
appraiser having the qualifications set forth below, the appraiser appointed by the first
party shall alone make the determination of such Fair Market Value. Appraisers appointed by
the parties shall be members of the Appraisal Institute (MAI) and shall have at least ten
years’ experience in the valuation of properties similar to the Property being valued in the
greater metropolitan area in which such Property is located. If each party shall appoint an
appraiser having the aforesaid qualifications and such two appraisers cannot, within thirty
(30) days after the appointment of the second appraiser, agree upon the determination
hereinabove required, then they shall select a third appraiser which third appraiser shall
have the aforesaid qualifications, and if they fail so to do within forty (40) days after
the appointment of the second appraiser they shall notify the parties hereto, and either
party shall thereafter have the right, on notice to the other, to apply for the appointment
of a third appraiser to the chapter of the American Arbitration Association or its successor
organization located in the metropolitan area in which the Property is located or to which
the Property is proximate or if no such chapter is located in such metropolitan area, in the
metropolitan area closest to the Property in which such a chapter is located. Each appraiser
shall render its decision as to the Fair Market Value of the Property in question within
thirty (30) days after the appointment of the third appraiser and shall furnish a copy
thereof to the Guaranteed Party and Guarantors. The Fair Market Value of the Property shall
then be calculated as the average of (i) the Fair Market Value determined by the third
appraiser and (ii) whichever of the Fair Market Values determined by the first two
appraisers is closer to the Fair Market Value determined by the third appraiser; provided,
however, that if the Fair Market Value determined by the third appraiser is higher or lower
than both Fair Market Values determined by the first two appraisers, such Fair Market Value
determined by the third appraiser shall be disregarded and the Fair Market Value of the
Property shall then be calculated as the average of the Fair Market Value determined by the
first two appraisers. The Fair Market Value of a Property as so determined shall be binding
and conclusive upon the Guaranteed Party and Guarantors. Each party shall bear the cost of
its own appraiser and the cost of appointing, and the expenses of, the third appraiser shall
be shared equally by the Guaranteed Party and Guarantors.



     2. Waivers: Other Agreements.



     The Guaranteed Party is hereby authorized, without notice to or demand upon Guarantors, which
notice or demand is expressly waived hereby, and without discharging or otherwise affecting the
enforceability of the obligations of the Guarantors hereunder (which shall remain absolute and
unconditional notwithstanding any such action or omission to act), from time to time to:




     (i) waive or otherwise consent to noncompliance with any provision of the Note or
Mortgage, or any part thereof, or any other instrument or agreement in respect of the
Guaranteed Obligations now or hereafter executed by Maker or any other person and delivered
to the Guaranteed Party;




     (ii) accept partial payments on the Guaranteed Obligations by Maker;



 









 






     (iii) receive, take and hold additional security or collateral for the payment of the
Guaranteed Obligations or for the payment of this Guarantee, or for the payment of any other
guarantees of the Guaranteed Obligations, and exchange, enforce, waive, substitute,
liquidate, terminate, abandon, fail to perfect, subordinate, transfer, or otherwise alter or
release any such additional security or collateral;




     (iv) apply any and all such security or collateral and direct the order or manner of
sale thereof as the Guaranteed Party may determine in its sole discretion;




     (v) settle, release, compromise, collect or otherwise liquidate the Guaranteed
Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair
any Mortgage or any other security or collateral for the Guaranteed Obligations or any other
guarantee therefore, in any manner;




     (vi) add, release or substitute any one or more other guarantors, makers or endorsers
of the Guaranteed Obligations and otherwise deal with Maker or any other guarantor as the
Guaranteed Party may elect in its sole discretion; and




     (vii) apply any and all payments or recoveries from Maker, Guarantors or from any other
guarantor of the Guaranteed Obligations, to such of the Guaranteed Obligations as the
Guaranteed Party in its sole discretion may determine, whether such Guaranteed Obligations
are secured or unsecured or guaranteed or not guaranteed by others.



     3. No Right of Subrogation, etc. Until payment in full of the Guaranteed Obligations,
the Guarantors shall have no right of subrogation or indemnification whatsoever, whether by
contract, at law, in equity or otherwise, with respect to the Guaranteed Obligations and hereby
waive any and all rights of subrogation and indemnification prior to such payment in full and any
right to assert or enforce any remedy with respect thereto which the Guarantors or any of them now
or hereafter may have against the Maker, any partner (whether general or limited) or member of the
Maker and any other person or entity.



     4. Release of Guarantee; Substitution. In the event (a) Guarantor disposes of all of
his, her or its entire interest in Maker, or otherwise desires to be released from this Guarantee,
at a time when the Note is not in default and the ratio of the outstanding balance of the
Guaranteed Obligations to the appraised value of the Properties is not greater than 80% (“Ratio
Test”) or (b) a Guarantor dies, then, upon request by such Guarantor (or his or her estate), such
Guarantor (or estate) shall be released from all liability hereunder (and his, her or its
Guaranteed Obligation shall be reduced to zero). Notwithstanding the foregoing, the occurrence of
an event described in clause (a) or (b) above shall not release a Guarantor (or its estate) from
any payment obligation it incurred prior to the occurrence of such event. Guarantor (or its
estate) may, at its option, elect to substitute another person who is related to the Guarantor (or
its estate) (within the meaning of Treasury Regulation § 1.752-4(b)) to serve as Guarantor
hereunder, provided that such person has a net worth at the time of such substitution of not less
than the net worth of the existing Guarantor hereunder at the time of such substitution and there
is no default under the Loan Documents at the time of such substitution. In the event of such
substitution, the existing Guarantor hereunder shall be released from all liability upon delivery
to Lender of a guaranty in the form of this Guaranty executed by such substituted person.



 









 





     5. Miscellaneous.




     A. This Guarantee is irrevocable as to any and all of the Guaranteed Obligations until
the earliest date (the “Termination Date”) that, as a result of a repayment, compromise or
adjustment of a principal amount of the Note, the total principal amount outstanding under
the Note is reduced by an amount equal to or greater than the Guaranteed Amount, or if the
Maker incurs indebtedness senior to, or pari passu with the Note, provided that the
obligations of the Guarantors hereunder shall continue without sell after the Termination
Date to the extent of any claims that are attributable fully and solely to an event or
action that occurred before the Termination Date.




     B. This Guarantee is binding on the Guarantors and their successors and assigns, and
inures to the benefit of the Guaranteed Party.




     C. No delay on the part of the Guaranteed Party in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise or waiver by the
Guaranteed Party of any right or remedy shall preclude any further exercise thereof, nor
shall any modification or waiver of any of the provisions of this Guarantee be binding upon
the Guaranteed Party, except as expressly set forth in a writing duly signed or delivered by
the Guaranteed Party or on the Guaranteed Party’s behalf by an authorized officer or agent
of the Guaranteed Party. The Guaranteed Party’s failure at any time or times hereafter to
require strict performance by Maker, Guarantors or any other person of any of the
provisions, warranties, terms and conditions contained in any security agreement,
agreements, guarantee, instrument or document now or at any time or times hereafter executed
by Maker or Guarantors or delivered to the Guaranteed Party shall not waive, affect or
diminish any right of the Guaranteed Party at any time or times hereafter to demand strict
performance thereof and such right shall not be deemed to have been waived by any act or
knowledge of the Guaranteed Party, its agents, officers, or employees, unless such waiver is
contained in an instrument in writing signed by an officer or agent of the Guaranteed Party
and directed to Maker or Guarantors, or either of them (as the case may be) specifying such
waiver. No waiver by the Guaranteed Party of any default shall operate as a waiver of any
other default or the same default on a future occasion, and no action by the Guaranteed
Party permitted hereunder shall in any way affect or impair the Guaranteed Party’s rights or
the obligations of Guarantors under this Guarantee.




     D. This Guarantee shall be interpreted and the rights and liabilities of the parties
hereto determined in accordance with the laws (other than the conflicts of law provisions)
of the State of [state law governing other loan documents]. The rights and obligations
contained in this Guaranty are intended to cause the Guarantors or a person related to the
Guarantors (within the meaning of Treasury Regulation §1.752-4(b)) who is a partner in RA
Limited Partnership to bear or to be treated as bearing the economic risk of loss (within
the meaning of Treasury Regulation §1.752-2) with respect to the Loan to the extent of the
amount of the aggregate Guaranteed Obligations and shall be interpreted consistently
therewith.



 









 






     E. This Guarantee contains all the terms and conditions of the agreement between the
Guaranteed Party and Guarantors. The terms and provisions of this Guarantee may not be
waived, altered, modified or amended except in writing duly executed by the party to be
charged thereby.




     F. Any notice shall be directed to the parties at the following addresses:




     If to Guarantors:




     If to the Guaranteed Party:




 











 





Exhibit E




LIMITED LIABILITY COMPANY AGREEMENT




OF




NORTHLAND PROPERTIES MANAGEMENT LLC

a Delaware limited liability company




DATE: March 31, 2008





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I GENERAL PROVISIONS
	 	 	1	 
	Section 1.1 Organization
	 	 	1	 
	Section 1.2 Name
	 	 	2	 
	Section 1.3 Term
	 	 	2	 
	Section 1.4 Purposes and Business
	 	 	2	 
	Section 1.5 Principal Office
	 	 	2	 
	Section 1.6 Qualification in Other Jurisdictions
	 	 	2	 
	Section 1.7 Powers
	 	 	2	 
	 
	 	 	 	 
	ARTICLE II DEFINITIONS
	 	 	2	 
	Section 2.1 Definitions
	 	 	2	 
	 
	 	 	 	 
	ARTICLE III MEMBERS; INTERESTS
	 	 	8	 
	Section 3.1 General
	 	 	9	 
	Section 3.2 Powers of Members
	 	 	9	 
	Section 3.3 No Other Persons Deemed Members
	 	 	9	 
	Section 3.4 No Cessation of Membership Upon Bankruptcy, etc
	 	 	9	 
	Section 3.5 Nature of a Member’s Interest
	 	 	9	 
	Section 3.6 Determination by the Board of Managers
	 	 	9	 
	Section 3.7 Additional Interests and Admission of Additional Members
	 	 	9	 
	 
	 	 	 	 
	ARTICLE IV MANAGEMENT
	 	 	10	 
	Section 4.1 Board of Managers
	 	 	10	 
	Section 4.2 Powers of the Board of Managers
	 	 	12	 
	Section 4.3 Exercise of Authority; Guarantee
	 	 	14	 
	Section 4.4 Meetings and Action of the Board of Managers
	 	 	15	 
	Section 4.5 Expenses; Compensation of Board Members
	 	 	15	 
	Section 4.6 Unanimous Approval Requirement
	 	 	15	 
	Section 4.7 Certain Loans by the Members
	 	 	16	 
	Section 4.8 Tax Classification
	 	 	16	 
	Section 4.9 Standards of Conduct and Modification of Duties; Certain Transactions
with Affiliates
	 	 	16	 
	Section 4.10 Exculpation
	 	 	17	 
	Section 4.11 Indemnification
	 	 	17	 
	Section 4.12 Payment of Indemnification Expenses
	 	 	18	 
	 
	 	 	 	 
	ARTICLE V CAPITAL CONTRIBUTIONS
	 	 	18	 
	Section 5.1 Initial Contributions
	 	 	18	 
	Section 5.2 Additional Capital Contributions
	 	 	18	 
	Section 5.3 No Right to Interest or Return of Capital
	 	 	19	 
	Section 5.4 No Third-Party Rights
	 	 	19	 
	Section 5.5 Limitations
	 	 	19	 






i 









 







	 	 	 	 	 
	 	 	Page
	ARTICLE VI CAPITAL ACCOUNTS, ALLOCATIONS OF INCOME AND LOSS
	 	 	20	 
	Section 6.1 Capital Accounts
	 	 	20	 
	Section 6.2 Allocations
	 	 	20	 
	Section 6.3 Allocations for Tax Purposes
	 	 	21	 
	Section 6.4 No Deficit Restoration by Members
	 	 	22	 
	Section 6.5 Allocations When Interests Change
	 	 	22	 
	 
	 	 	 	 
	ARTICLE VII DISTRIBUTIONS
	 	 	22	 
	Section 7.1 Distributions
	 	 	22	 
	Section 7.2 Liability for Amounts Distributed
	 	 	23	 
	Section 7.3 Distributions Upon Liquidation
	 	 	23	 
	Section 7.4 Withholding
	 	 	23	 
	 
	ARTICLE VIII OTHER ACTIVITIES
	 	 	24	 
	Section 8.1 General Provisions
	 	 	24	 
	 
	 	 	 	 
	ARTICLE IX RIGHTS AND OBLIGATIONS OF MEMBERS
	 	 	24	 
	Section 9.1 Limited Liability
	 	 	24	 
	Section 9.2 Wrongful Distributions
	 	 	24	 
	Section 9.3 Authority of Members
	 	 	24	 
	Section 9.4 Confidential Information
	 	 	24	 
	Section 9.5 Confidentiality Obligations
	 	 	25	 
	Section 9.6 Exceptions to Confidentiality
	 	 	25	 
	Section 9.7 Services to Tarragon Corp
	 	 	25	 
	 
	 	 	 	 
	ARTICLE X TRANSFER OF COMPANY INTERESTS
	 	 	26	 
	Section 10.1 Transfer of Interests
	 	 	26	 
	Section 10.2 Substitute Members
	 	 	27	 
	Section 10.3 Obligations of Assignee
	 	 	27	 
	Section 10.4 Additional Requirements
	 	 	27	 
	Section 10.5 Allocation of Distributions Between Assignor and Assignee
	 	 	28	 
	Section 10.6 Treatment of Assignees
	 	 	28	 
	Section 10.7 Withdrawal by Members
	 	 	28	 
	 
	 	 	 	 
	ARTICLE XI REPORTING, RECORDS AND ACCOUNTING MATTERS
	 	 	28	 
	Section 11.1 Books and Accounts
	 	 	28	 
	Section 11.2 Records Available
	 	 	28	 
	Section 11.3 Financial Reports
	 	 	29	 
	Section 11.4 Reliance on Accountants
	 	 	30	 
	Section 11.5 Tax Matters Member; Filing of Returns
	 	 	30	 
	Section 11.6 Tax Elections
	 	 	30	 
	Section 11.7 Fiscal Year
	 	 	30	 
	 
	 	 	 	 
	ARTICLE XII DISSOLUTION AND LIQUIDATION
	 	 	30	 
	Section 12.1 No Dissolution
	 	 	30	 
	Section 12.2 Events Causing Dissolution
	 	 	30	 
	Section 12.3 General
	 	 	31	 






ii 









 






	 	 	 	 	 
	 	 	Page
	Section 12.4 Priority
	 	 	31	 
	Section 12.5 Orderly Liquidation
	 	 	32	 
	Section 12.6 Source of Distributions
	 	 	32	 
	Section 12.7 Statements on Termination
	 	 	32	 
	 
	 	 	 	 
	ARTICLE XIII DRAG-ALONG RIGHT, TAG-ALONG RIGHT AND RIGHT OF FIRST REFUSAL
	 	 	32	 
	Section 13.1 Drag-Along Right
	 	 	32	 
	Section 13.2 Tarragon Tag-Along Right
	 	 	33	 
	Section 13.3 Northland Tag-Along Right
	 	 	34	 
	Section 13.4 Right of First Offer
	 	 	35	 
	 
	 	 	 	 
	ARTICLE XIV AMENDMENTS
	 	 	36	 
	Section 14.1 Amendment to be Adopted Solely by the Board of Managers
	 	 	36	 
	Section 14.2 Amendments Requiring Member Approval
	 	 	36	 
	 
	 	 	 	 
	ARTICLE XV MISCELLANEOUS
	 	 	37	 
	Section 15.1 Further Assurances
	 	 	37	 
	Section 15.2 Successors and Assigns
	 	 	37	 
	Section 15.3 Applicable Law
	 	 	37	 
	Section 15.4 Severability
	 	 	37	 
	Section 15.5 Counterparts
	 	 	37	 
	Section 15.6 Entire Agreement
	 	 	37	 
	Section 15.7 Construction
	 	 	38	 
	Section 15.8 Force Majeure
	 	 	38	 
	Section 15.9 Notices
	 	 	38	 
	Section 15.10 No Right of Partition or Redemption
	 	 	39	 
	Section 15.11 Third-Party Beneficiaries
	 	 	39	 











iii 









 











SCHEDULES AND EXHIBITS




	 	 	 
	Schedule A

	 	          Names, Addresses and Value of Contribution of Members
	 
	 	 
	Exhibit A

	 	Unanimous Approvals
	Exhibit B

	 	Board Members
	Exhibit C

	 	Interim Management Agreement






i 









 





LIMITED LIABILITY COMPANY AGREEMENT

OF

NORTHLAND PROPERTIES MANAGEMENT LLC




a Delaware limited liability company



This Limited Liability Company Agreement (this “Agreement”) is made as of the 31st day of March,
2008, by and between Northland Investment Corporation (“Northland Corp”), a Massachusetts
corporation, and Tarragon Corporation (“Tarragon Corp”), a Nevada Corporation. Such Persons,
together with any such additional parties as and when admitted to the Company (as defined below) as
members shall be individually a “Member” and, collectively, the “Members”.




     WHEREAS, Northland Properties Management LLC (the “Company”) has been formed as a limited
liability company under the Delaware Limited Liability Company Act, 6 Del. c. Sec. 18-101, et seq.
(as amended from time to time, the “Act”) as of March 17, 2008; and



     WHEREAS, the Members wish to enter into this Agreement and to set out fully their respective
rights, obligations and duties regarding the Company and its assets and liabilities.



     NOW, THEREFORE, in consideration of the mutual covenants expressed herein, the parties hereby
agree as follows:



ARTICLE I




GENERAL PROVISIONS




     Section 1.1 Organization. The Company has been formed by the filing of its Certificate of
Formation with the Delaware Secretary of State pursuant to the Act. The Members hereby ratify the
act of Luke M. Scheuer, as an “authorized person” within the meaning of the Act, in executing and
filing the Certificate of Formation. The Certificate of Formation states that the registered agent
and registered office of the Company in Delaware are Corporation Service Company, 2711 Centerville
Road, Suite 400, Wilmington, Delaware 19808. The Board of Managers may at any time designate
another registered agent. Subject to the limitations set forth in this Agreement, the Certificate
of Formation may be restated or amended by the Board of Managers (as defined in Section 2.1) as an
“authorized person” within the meaning of the Act. The Certificate of Formation as so amended from
time to time is referred to herein as the “LLC Certificate.” The Board of Managers shall deliver a
copy of the LLC Certificate and any amendments thereto to any Member who so requests.



 









 





     Section 1.2 Name. The name of the limited liability company is “Northland Properties
Management LLC.” The business of the Company may be conducted under the Company name or under any
other names
designated by the Board of Managers (as defined in Section 2.1), with written notice to the
Members.



     Section 1.3 Term. The term of the Company commenced on the date of the initial filing of
the LLC Certificate and shall continue until the fortieth (40th) anniversary of the date
hereof (the “Initial Term”); provided that the Company may be dissolved sooner in
accordance with the provisions of this Agreement or by operation of law. The Initial Term may be
extended by the Board of Managers.



     Section 1.4 Purposes and Business. The purpose of the Company is to operate, manage,
finance, lease, mortgage, pledge, encumber, maintain, improve, renovate, develop, redevelop, and
exchange, sell, contribute and transfer, and otherwise deal with real property related to
multifamily residential rental properties, including student housing and affordable housing, and
Real Estate Investments (as defined below in Section 2.1 below), and any interests therein (the
“Multifamily Business”), and otherwise engage in any other lawful act or activity which is
necessary, appropriate, desirable or related or incidental to, and necessary, convenient or
advisable for accomplishment of, any of the above or to the organization and maintenance of the
existence of the Company.



     Section 1.5 Principal Office. The principal office of the Company shall initially be c/o
Northland Investment Corporation, 2150 Washington Street, Newton, MA 02462. The Board of Managers
may change the principal office of the Company at any time, with written notice to the Members, and
may cause the Company to establish other offices in various jurisdictions and appoint agents for
service of process in such jurisdictions.



     Section 1.6 Qualification in Other Jurisdictions. The Board of Managers may cause the
Company and any Subsidiary to be qualified or registered under applicable laws in such states as
the Board of Managers determine appropriate to avoid any material adverse effect on the business of
the Company and shall be authorized to execute, deliver and file any certificates and documents
necessary to effect such qualification or registration, including without limitation the
appointment of agents for service of process in such jurisdictions.



     Section 1.7 Powers. Subject to the provisions of this Agreement, the Company shall
have the power to do any and all acts necessary or convenient in furtherance of the purpose of the
Company, and shall have and may exercise all of the powers and rights that can be conferred upon
limited liability companies formed pursuant to the Act.



ARTICLE II




DEFINITIONS




     Section 2.1 Definitions. The following terms shall have the meanings indicated or referred
to below, inclusive of their singular and plural forms except where the context requires otherwise.



     “Acceptable Transfer Terms” shall have the meaning set forth in Section 13.4(a).



2









 





     “Act” shall have the meaning set forth in the introductory statement.



     “Adjusted Capital Account” means, with respect to any Member, the balance, if any, in such
Member’s Capital Account after crediting to such Capital Account any amounts that such Member is
deemed obligated to restore as described in the penultimate sentences of Treasury regulation
section 1.704-2(g)(1) and in Treasury regulation section 1.704-2(i)(5).



     “Affiliate” means, with respect to any specified Person, any Person that, directly or
indirectly through one or more intermediaries, Controls, is Controlled by or is under common
Control with such specified Person.



     “Agreement” shall have the meaning set forth in the introductory statement.



     “Bankruptcy Event” means (i) the commencement by Tarragon Corp of a voluntary case under Title
11 of the United States Code as from time to time in effect, or by Tarragon Corp authorizing, by
appropriate proceedings of its board of directors or other governing body, the commencement of such
a voluntary case; (ii) Tarragon Corp filing an answer or other pleading admitting or failing to
deny the material allegations of a petition filed against it commencing an involuntary case under
said Title 11, or seeking, consenting to or acquiescing in the relief therein provided, or by
Tarragon Corp failing to controvert timely the material allegations of any such petition; (iii) the
entry of an order for relief against Tarragon Corp in any involuntary case commenced under said
Title 11; (iv) Tarragon Corp seeking relief as a debtor under any applicable law, other than said
Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors, or by Tarragon Corp consenting to or
acquiescing in such relief; (v) the entry of an order by a court of competent jurisdiction (1) by
finding Tarragon Corp to be bankrupt or insolvent, (2) ordering or approving Tarragon Corp’s
liquidation, reorganization or any modification or alteration of the rights of its creditors, or
(3) assuming custody of, or appointing a receiver or other custodian for all or a substantial part
of Tarragon Corp’s property and such order is not vacated or stayed on appeal or otherwise stayed
within sixty (60) days; (vi) the filing of a petition against Tarragon Corp or any Subsidiary under
said Title 11 which shall not be vacated within sixty (60) days or (vii) Tarragon Corp making an
assignment for the benefit of, or entering into a composition with, its creditors, or appointing or
consenting to the appointment of a receiver or other custodian for all or a substantial part of
Tarragon Corp’s property.



     “Board Member” shall have the meaning set forth in Section 4.1(a).



     “Board of Managers” shall have the meaning set forth in Section 4.1(a).



     “Business Day” means any day excluding a Saturday, Sunday or any other day during which there
is no scheduled trading on the NASDAQ Global Market.



     “Capital Account” shall have the meaning set forth in Section 6.1.



     “Change of Control” means any (i) reorganization, merger, consolidation or similar transaction
of Tarragon Corp with or into another entity, (ii) any sale, lease, exchange, or other disposition
or transfer of all or substantially all of the assets of Tarragon Corp, (iii) individual, entity or
“group” within the meaning of Sections 13(d) and 14(d) of the Securities Act becomes



3









 







the
“beneficial owner” (as such term is defined in Rule 13d-3 under the Securities Act) of securities
of Tarragon Corp representing thirty (30%) or more of the combined voting power of Tarragon Corp’s
then outstanding securities having the right to vote generally in an election of Tarragon Corp’s
Board of Directors, or (iv) at such time as both William S. Friedman and Robert Rothenberg cease
for any reason to be members of the Board of Directors of Tarragon Corp.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor
federal income tax code.



     “Company” shall have the meaning set forth in the introductory statement.



     “Confidential Information” shall have the meaning set forth in Section 9.4.



     “Contribution Agreement” means the Agreement to Contribute, dated as of the date hereof, among
Northland Portfolio L.P., Northland Fund L.P., Northland Fund II, L.P., Northland Fund III, L.P.,
Northland Corp, Northland Austin Investors LLC, Austin Investors L.P., Drake Investors L.P.,
Tatstone Investors L.P., Tarragon Corp and Ansonia LLC.



     “Contributions” means, in respect of any Member, the aggregate amount of such Member’s capital
contributions made to the Company pursuant to ARTICLE V.



     “Contributing Member” shall have the meaning set forth in Section 5.2(b).



     “Disclosure Obligations” shall have the meaning set forth in Section 9.6.



     “Drag Along Notice” shall have the meaning set forth in Section 13.1.



     “EPA Plan” shall have the meaning set forth in Section 4.13.



     “Exchange Act” means the Securities Exchange set of 1934, as amended from time to time, or any
successor statute thereof.



     “Extraordinary Transaction” means (i) any reorganization, merger, consolidation or similar
transaction of the Joint Venture with or into another entity where the outstanding voting
securities of the Joint Venture immediately before the transaction represent or are converted into
less than fifty percent (50%) of the outstanding voting power of the surviving entity (or its
parent corporation) immediately after the transaction, (ii) any sale, lease, exchange, or other
disposition
or transfer of all or substantially all of the Properties and assets of the Joint Venture and
its Subsidiaries, (iii) any purchase by any Person or “Group” (within the meaning of Sections 13(d)
and 14(d) of the Securities Act) of securities of the Joint Venture (either through a negotiated
securities purchase or a tender for such securities), the effect of which is that such Person (or
group of Persons) that did not Beneficially Own (as such term is defined in Rule 13d-3 under the
Securities Act) a majority of the voting power of the outstanding securities of the Joint Venture
immediately prior to such purchase beneficially owns at least a majority of such voting power
immediately after such purchase or (iv) an initial public offering of greater than 50% of the
outstanding securities of the Joint Venture.



     “Fiscal Year” shall have the meaning set forth in Section 11.7



4









 





     “Funding Notice” means a written notice from the Board of Managers to any Member, requiring
such Member to fund or make Contributions pursuant to Section 5.2.



     “Funding Election Notice” shall have the meaning set forth in Section 5.2.



     “Immediate Family” means with respect to any individual such individual’s spouse, parents,
grandparents, children, grandchildren and siblings and any trust for any of their benefit or any
family partnership in which any of them participate.



     “Indemnified Party” means any Person made a party to a proceeding by reason of its status as a
(A) Board Member, (B) Member (C) officer of the Company and (D) such other Persons (including
Affiliates of any Member) as the Board of Managers may designate from time to time (whether before
or after the event giving rise to potential liability), in its sole and absolute discretion.



     “Initial Tarragon Board Members” means William S. Friedman and Robert Rothenberg.



     “Initial Term” shall have the meaning set forth in Section 1.3.



     “Interest” means the entire limited liability company interest of a Member in the Company at
any particular time, including the right of such Member to any and all benefits to which a Member
may be entitled as provided in this Agreement, together with the obligations of such Member to
comply with all the terms and provisions of this Agreement.



     “Interim Management Agreement” shall have the meaning set forth in Section 4.9(c).



     “Joint Venture” means Northland Properties LLC.



     “Joint Venture Agreement” means the Amended and Restated Limited Liability Company Agreement
of the Joint Venture, among Northland Portfolio L.P., Northland Fund L.P., Northland Fund II, L.P.,
Northland Fund III, L.P., Northland Austin Investors LLC, Austin Investors L.P., Drake Investors
L.P., Tatstone Investors L.P, Tarragon Corp, Ansonia LLC and Richard Frary.



     “Joint Venture Unit” shall be a membership interest in the Joint Venture represented by a
“Common Unit” as defined in the Joint Venture Agreement.



     “Liquidating Agent” shall have the meaning set forth in Section 12.3



     “LLC Certificate” shall have the meaning set forth in Section 1.1.



     “Loan Request Notice” shall have the meaning set forth in Section 4.7.



     “Lock-Out Period” means the period commencing upon execution of the Joint Venture Agreement
and ending on the earlier of (i) the fifth (5th) anniversary of execution of the Joint Venture
Agreement, and (ii) the occurrence of an Extraordinary Transaction.



5









 





     “Majority Vote” shall have the meaning set forth in Section 4.4.



     “Member” or “Members” means any person named as a member of the Company on Schedule A.



     “Multifamily Business” shall have the meaning set forth in Section 1.4.



     “Non-Contributing Member” shall have the meaning set forth in Section 5.2(b).



     “Northland Board Members” shall have the meaning set forth in Section 4.1(a).



     “Northland Buyer” shall have the meaning set forth in Section 13.1



     “Northland Corp” means Northland Investment Corporation, a Massachusetts corporation.



     “Northland Corp Initial Interest” means the Percentage Interest of Northland Corp after giving
effect to the final “Closing” under the Contribution Agreement.



     “Northland Sale” shall have the meaning set forth in Section 13.2(a).



     “Northland Tag-Along Notice” shall have the meaning set forth in Section 13.3.



     “Operating Cash Flow” shall mean, for purposes of this Agreement and for a given period of
time, all cash receipts received by the Company from any source less the amounts of any of the
aforesaid cash receipts included in this definition expended for the debts, expenses and other
obligations of the Company, principal and interest payments on any indebtedness of the Company,
capital expenditures and, in each instance, reserves as determined in the discretion of the Board
of Managers.



     “Opinion of Counsel” means an opinion in writing and in form and substance reasonably
satisfactory to the Board of Managers signed by legal counsel either chosen by the Board of
Managers or, if chosen by a Member, reasonably satisfactory to the Board of Managers.



     “Percentage Interest” means with respect to each Member, initially the Percentage Interest of
such member shown on Schedule A attached hereto as of the date hereof, but shall be
thereafter adjusted:




(i) upon the “Final Closing” (as defined in the Contribution Agreement) to equal (x) for
Tarragon Corp, the “Tarragon Initial Interest” (as defined in the Joint Venture Agreement)
and (y) for Northland Corp, the “Northland Initial Interest” (as defined in the Joint
Venture Agreement); and




(ii) upon each additional capital contribution to the Joint Venture by Northland Fund II,
L.P. or by Northland Fund III, L.P., the “Percentage Interest” of Tarragon Corp hereunder
will be diluted by the same percentage dilution suffered by Tarragon Corp, if any, in its
Common Unit “Percentage Interest” (as defined in the Joint Venture Agreement) in the Joint
Venture as a result of its failure to participate in such additional



6









 







capital contribution,
and the resulting reduction in Tarragon Corp’s Percentage Interest under this clause (ii)
will be added to Northland Corp’s Percentage Interest.


Notwithstanding anything contained in the definition of “Percentage Interest” or this Agreement,
following the “Final Closing” (as defined in the Contribution Agreement), the Percentage Interest
of Tarragon Corp in the Company shall only be increased if Tarragon Corp contributes additional
capital to the Company pursuant to Section 5.2 of this Agreement.




     “Person” means a corporation, governmental unit, association, retirement system, international
organization, joint venture, partnership, limited liability company, trust or individual.



     “Property” means any and all real property (or any interest in real property) now or hereafter
owned by the Joint Venture or a Subsidiary and any and all buildings, structures and improvements
now or hereafter located thereon, and shall include all related real and personal property and
assets.



     “Property Management Agreement” shall have the meaning set forth in Section 4.9(c).



     “Real Estate Investments” means any direct or indirect, current or contingent interest in,
option or commitment to acquire or other contract right relating to any type of real estate asset
or real estate related asset, including, without limitation, interests in privately or publicly
held operating companies and real estate related businesses, commercial mortgage backed securities,
indebtedness secured by real property or secured by interests in entities owning real property,
equity interests in entities that own or operate real property or other real estate-related assets,
and interests in any amounts escrowed, reserved or otherwise set aside with respect to any real
property or other real estate-related assets. Notwithstanding the foregoing, however, “Real Estate
Investments” shall exclude any of the foregoing that is related to real property or other real
estate-related assets if they would be Non-permitted Investments.



     “ROFO Notice” shall have the meaning set forth in Section 13.4(a).



     “Sale” shall have the meaning set forth in Section 13.1.



     “Schedule of Members” shall have the meaning set forth in Section 11.1.



     “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association or other business entity of which (i) if a corporation, a majority
of the total voting power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability
company, association or other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a partnership, limited
liability company, association or other business entity if such Person or Persons shall be
allocated a majority of partnership, limited liability company, association or other business
entity



7









 







gains or losses or shall be or control the managing director or general partner of such
partnership, limited liability company, association or other business entity. Unless otherwise
specified, references herein to a Subsidiary shall mean a Subsidiary of the Company.



     “Target Interests” shall have the meaning set forth in Section 13.4(a).



     “Tarragon Board Members” shall have the meaning set forth in Section 4.1(a).



     “Tarragon Buyer” shall have the meaning set forth in Section 13.3(a).



     “Tarragon Corp” means Tarragon Corporation, a Nevada corporation.



     “Tarragon Corp Initial Interest” means the Percentage Interest of Tarragon Corp after giving
effect to the final “Closing” under the Contribution Agreement.



     “Tarragon Sale” shall have the meaning set forth in Section 13.3(a).



     “Tarragon Tag-Along Notice” shall have the meaning set forth in Section 13.2(a).



     “Third Party” means any Person who is not a Member, or an Affiliate of any Member, or the
Immediate Family of any Member.



     “Transfer” shall mean any, direct or indirect, transaction by which a Member assigns all of a
portion of its Interest to another Person, and includes a sale, assignment, gift, donation, pledge,
grant of a security interest in, exchange, or any other disposition by law or otherwise.



     “Transfer Documents” shall have the meaning set forth in Section 10.1(a).



     “Transfer Election” shall have the meaning set forth in Section 13.4(a).



     “Transfer Escrow Agent” shall have the meaning set forth in Section 13.4(b).



     “Transfer Escrow Deposit” shall have the meaning set forth in Section 13.4(b).



     “Transfer Response Period” shall have the meaning set forth in Section 13.4(a).



     “Treasury Regulations” means the Income Tax Regulations and Procedure and Administration
Regulations promulgated under the Code, as amended from time to time.



     “Unanimous Approval” or “Unanimously Approved” means the written consent or approval at a duly
called meeting of the Board of Managers of each Northland Board Member and, so long as there are
Tarragon Board Members on the Board of Managers, at least one of the Tarragon Board Members.



     “Withholding Payment” shall have the meaning set forth in Section 7.4.



ARTICLE III




MEMBERS; INTERESTS




8









 





     Section 3.1 General. The names, addresses and Percentage Interests of the Members are set
forth on Schedule A, as of immediately following the execution of this Agreement. The
Board of Managers shall amend and revise Schedule A from time to time to properly reflect
any changes to the information included therein, including to reflect the admission or substitution
of Members. Any amendment or revision to Schedule A or to the Company’s records to reflect
information regarding Members shall not be deemed an amendment to this Agreement.



     Section 3.2 Powers of Members. Except as otherwise provided in this Agreement, no Member
shall have the right or power to: (i) withdraw or reduce its contribution to the capital of the
Company; (ii) cause the dissolution and winding up of the Company; or (iii) demand or receive
property in return for its capital contributions. No Member, in its capacity as such, shall take
any part in the control of the affairs of the Company, undertake any transactions on behalf of the
Company, or have any power or authority to act for or on behalf of, or to bind, the Company.
Tarragon Corp, in its capacity as a Member, shall have no voting rights other than those
specifically required by law under the Act. The rights, duties and liabilities of the Members
shall be as provided in the Act, except as otherwise expressly provided in this Agreement.



     Section 3.3 No Other Persons Deemed Members. Unless admitted to the Company as a Member as
provided in this Agreement, no Person shall be, or shall be considered, a Member. The Company may
elect to deal only with Persons so admitted as Members (including their duly authorized
representatives). Any distribution by the Company to the Person shown on the Company’s records as
a Member or to its legal representatives, shall relieve the Company of all liability to any other
Person who may be interested in such distribution by reason of any other Transfer by the Member, or
for any other reason.



     Section 3.4 No Cessation of Membership Upon Bankruptcy, etc. A Person shall not cease to
be a Member of the Company upon the happening, with respect to such Person, of any of the events
specified in §18-304 of the Act. Upon the occurrence of any event specified in §18-304 of the Act,
the business of the Company shall be continued pursuant to the terms hereof without dissolution.



     Section 3.5 Nature of a Member’s Interest. A Member’s Interest shall for all purposes
be personal property. The Contributions and Percentage Interests of the Members as of the date of
this Agreement are shown on Schedule A.



     Section 3.6 Determination by the Board of Managers. Whenever in this Agreement, any
decision, approval, determination or action is to be undertaken by the Board of Managers, such
decisions, approvals, determinations or actions shall require only a Majority Vote;
provided that, the decisions, approvals, determinations, or actions set forth on
Exhibit A (and only those set forth on Exhibit A) shall require Unanimous Approval
by the Board of Managers.



     Section 3.7 Additional Interests and Admission of Additional Members.




Section 3.7.1 Issuance or Creation of Additional Interests and Admission of
Additional Members.



9









 





          (a) The Company may issue additional Interests of the Company (or options or convertible
securities with respect thereto) for any purpose and at any time and from time to time for such
consideration and on such terms and conditions as the Board of Managers shall determine in its sole
discretion, and, subject to the Unanimous Approval required in accordance with Exhibit A,
may admit as additional Members the Persons to whom such additional Interests are issued. Upon the
issuance pursuant to and in accordance with this ARTICLE III of any Interests, the Board of
Managers may amend any provision of this Agreement, and authorize any Person to execute,
acknowledge, deliver, file and record, if required, such documents, to the extent necessary or
desirable to reflect the admission of any additional Member to the Company or the authorization and
issuance of such other Interests (or options or convertible securities with respect thereto).




          (b) Each additional Interest authorized to be issued by the Company pursuant to Section
3.7.1(a) may be issued in one or more classes, or one or more series of any such classes, with such
designations, preferences, rights, powers and duties (which may be senior to existing classes and
series of Interests), as shall be fixed by the Board of Managers in its sole discretion, including
(i) the right to share in Company profits and losses or items thereof; (ii) the right to share in
Company distributions; (iii) the rights upon dissolution and liquidation of the Company; (iv)
whether, and the terms and conditions upon which, the Company may or shall be required to redeem
the Interest (including sinking fund provisions); (v) whether such Interest is issued with the
privilege of conversion or exchange and, if so, the terms and conditions of such conversion or
exchange; (vi) the terms and conditions upon which each Interest will be issued,
evidenced by certificates and assigned or transferred; and (vii) the right, if any, of the
holder of each such Interest to vote on Company matters, including matters relating to the relative
designations, preferences, rights, powers and duties of such Interest.




     Section 3.7.2 Conditions to Admission. No additional Member shall be admitted to the
Company (a) in connection with newly issued Interests, unless and until such prospective additional
Member has executed a signature page counterpart to this Agreement and an acceptance of all of the
terms and conditions of this Agreement, and such other documents or instruments as may be required
to effect the admission in the Board of Managers’ reasonable judgment or (b) in connection with a
Transfer of Interests, unless and until all the conditions of ARTICLE X are satisfied, and such
prospective additional Member executes and delivers to the Company the documentation contemplated
by Section 10.2.



ARTICLE IV




MANAGEMENT




     Section 4.1 Board of Managers 



          (a) The business and affairs of the Company shall be managed under the direction of a board of
managers (the “Board of Managers”), who shall be the managers of the Company. Subject to the
provisions of this Section 4.1, the Board of Managers shall consist of five (5) individuals (each,
a “Board Member”) comprised as follows: (i) three (3) Board Members designated by Northland Corp
(together, with their permitted successors, the



10









 






“Northland Board Members”) and (ii) two (2) Board
Members designated by Tarragon Corp (together with their permitted successors, the “Tarragon Board
Members”). Each Board Member shall be a “manager” within the meaning of the Act. The names of the
individuals who shall serve as the initial Northland Board Members and the initial Tarragon Board
Members (the “Initial Tarragon Board Members”) are set forth on Exhibit B. A Tarragon
Board Member shall be a Board Member only so long as such individual is serving as a member of the
Board of Directors of Tarragon Corp. If not nominated for continuing service on the Board of
Directors of Tarragon Corp, (except, in the case of the Initial Tarragon Board Members who shall,
subject to the provisions of this Section 4.1, serve on the Board of Managers until they no longer
serve on the Board of Directors of Tarragon Corp), the term of such Tarragon Board Member shall
immediately end and the vacancy created thereby will be filled by Tarragon Corp, subject to the
reasonable approval of such replacement Tarragon Board Member by the Northland Board Members;
provided, however, that the Northland Board Members shall not have the right to
withhold such approval for a proposed replacement Tarragon Board Member who is then serving as a
director or senior officer of Tarragon Corp unless the participation of such proposed replacement
on the Board of Managers is reasonably likely, in the reasonable judgment of Northland Corp, to
have a material adverse effect on the ability of the Joint Venture or its Subsidiaries to raise
equity or debt financing from Third Parties. Notwithstanding any provision set forth herein to the
contrary, upon the happening of a Bankruptcy Event, the Tarragon Board Members shall immediately
resign and all Board Members shall be appointed by Northland Corp.




          (b) Any vacancy on the Board of Managers with regard to the Northland Board Members shall be
filled by Northland Corp. Subject to the provisions of this Section 4.1, any vacancy on the Board
of Managers with regard to the Tarragon Board Members shall be filled by Tarragon Corp.




          (c) In the event that the Percentage Interest owned by Tarragon Corp hereafter falls below
forty percent (40%) of the Tarragon Corp Initial Interest, then the Tarragon Board Members shall
immediately resign and Tarragon Corp shall have no right to appoint any individuals to the Board of
Managers. The resulting vacancy or vacancies shall be filled by Northland Corp.




          (d) The Board of Managers may at any time increase the size of the Board of Managers;
provided, however, that the Board of Managers shall not exceed nine (9) members.
The vacancies created by any increase shall be filled by individuals appointed by the Board of
Managers and shall be deemed to be Northland Board Members.




11









 








     Section 4.2 Powers of the Board of Managers.



          Section 4.2.1 General Authority. Except as otherwise provided in this Agreement and
subject to Unanimous Approval, if required in accordance with Exhibit A, the Board of
Managers shall have complete and exclusive control of the management and conduct of the business of
the Company and the authority to do all things necessary or appropriate to carry out the purposes
of the Company without any further act, vote or approval of any Member and shall have all rights
and powers with respect to the Company which may be vested in a Board of Managers under Delaware
law. Any contract, instrument or act of the Board of Managers on behalf of the Company shall be
conclusive evidence in favor of any third party dealing with the Company that the Board of Managers
has the authority, power, and right to execute and deliver such contract or instrument and to take
such action on behalf of the Company.




          Section 4.2.2 Authority for Specific Actions. Without limiting the authority of the
Board of Managers pursuant to Section 4.2.1, upon a Majority Vote, is authorized to take the
following actions on behalf of the Company and its Subsidiaries:




               (a) collect all rents and other charges which may become due at any time from any tenant under
any lease or use and occupancy agreement and any other monies due the Company in connection with
the Property and deposit all funds collected in the applicable account;



               (b) coordinate the bidding (when appropriate), awarding, and negotiation of contracts with,
and coordinate activities among all applicable service providers
such as architects, engineers, designers, brokers, consultants, attorneys and other
professionals providing services to the Company in connection with the ownership, development,
operation, management, or redevelopment of the Property;



               (c) coordinate the administration and payment of all construction costs, equipment costs,
architectural and engineering costs, insurance costs and other hard and soft costs incurred in
connection with the Project or other capital improvement to or development or redevelopment of the
Property;



               (d) maintain copies of all documents evidencing or securing any indebtedness related to the
Property and take such actions as it determines, in the exercise of reasonable business judgment,
to be necessary or required to be in compliance with all such documents;



               (e) maintain copies of all leases and other use and occupancy agreements and all offers,
purchase and sale agreements and the like and any amendments or modifications thereof; advise,
administer, coordinate and oversee all leasing and sales activities, leasing and sales negotiations
and other communications with present and proposed tenants and take such action as it determines,
in the exercise of reasonable business judgment, to be necessary or required to be in compliance
with the material terms of all such leases and occupancy agreements;



12









 





               (f) review bills for real estate taxes, improvements assessments and other like charges which
are or may become liens against the Property and, subject to the terms of each lease, pay, appeal
or apply for abatement as in its reasonable judgment it shall determine;



               (g) inspect or cause to be inspected the Property as often as reasonably prudent property
managers managing properties comparable to the Property would inspect such properties;



               (h) to borrow money and issue evidences of indebtedness, letters of credit and guaranties in
connection with the business and affairs of the Company, to guarantee the obligations of any third
party (including, without limitation, debt guaranties, nonrecourse guaranties of any nature,
completion guaranties and environmental guaranties), to secure any such borrowings, indebtedness
and/or guaranties by mortgages, pledges or other liens on any assets of the Company, to enter into
participating debt arrangements, to enter into convertible debt arrangements, to hedge interest
rate changes on borrowings, to use as collateral for any such obligations the capital commitments
to the Company and any other assets of the Company, and to prepay in whole or in part, refinance,
increase, modify or extend such obligations;



               (i) to make loans to Third Parties and Affiliates;



               (j) to maintain such insurance as the Board of Managers may deem appropriate to protect the
assets and interests of the Company and the Indemnified Parties and to satisfy any contractual
undertakings of the Company;



               (k) subject to Section 4.9, to enter into transactions with Affiliates;



               (l) to acquire, by purchase, lease or otherwise, any and all property which may be necessary
or desirable to carry out the business of the Company;



               (m) to take all actions appropriate to the liquidation of the Company;



               (n) to pay, extend, renew, modify, adjust, submit to arbitration, prosecute, defend,
compromise, or confess judgment upon such terms as it may determine and upon such evidence as it
may deem sufficient, any debt obligation, suit, liability, cause of action or claim, including
taxes, either in favor of or against the Company;



               (o) to make decisions for and act on behalf of the Company in dealing with the Internal
Revenue Service and other tax authorities;



               (p) to cause the Company to make or revoke any of the tax elections provided for under the
Code or the Treasury Regulations;



13









 





               (q) subject to the Unanimous Approval required in accordance with Exhibit A, to admit
additional Members to the Company in accordance with Section 3.7, including, without limitation,
through the issuance of additional Interests in the Company in one or more series or classes on
terms and conditions determined by the Board of Managers in its sole discretion;



               (r) to engage in any kind of activity and to perform and carry out contracts of any kind
necessary to, in connection with or incidental to, the accomplishment of the purposes of the
Company;



               (s) to do all things, carry on any activities and enter into, perform, modify, supplement or
terminate any agreements of any kind (including transactions and agreements with Affiliates of one
or more of the Members), in connection with or incidental to the furtherance of the purpose of the
Company, so long as such things, activities and agreements may be lawfully done, carried on or
entered into by the Members under the laws of the State of Delaware; and



               (t) the distribution of Company cash; and



               (u) to amend Schedule A in accordance with changes in the Members’ Percentage
Interests.



          Section 4.2.3 Actions Requiring Board Consideration. The following actions shall be
brought to the Board of Managers for its consideration; provided, however, that
notwithstanding anything contained in this Agreement or Exhibit A, none of the following
actions shall be subject to Unanimous Approval:




               (a) hiring, termination and promotion of Company executive officers;



               (b) compensation of Company employees;



               (c) the Company’s annual budget;



               (d) distributions of surplus Company cash; and



               (e) additional capital calls pursuant to Section 5.2.



     Section 4.3 Exercise of Authority; Guarantee. In exercising its authority under this
Agreement, the Board of Managers may, but shall be under no obligation to, take into account the
tax consequences to any Member of any action taken (or not taken) by it. The Board of Managers and
the Company shall not have any liability to a Member for monetary damages or otherwise for losses
sustained, liabilities incurred or benefits not derived by such Member in connection with such
decisions so long as the Board of Managers has acted pursuant to its



14









 







authority under this
Agreement. The Board of Managers does not in any way guarantee the return of any Member’s
Contributions or a profit for the Members.



     Section 4.4 Meetings and Action of the Board of Managers. Except as otherwise set
forth in this Agreement, all action to be taken by the Board of Managers thereof shall be taken at
a meeting of the Board of Managers, by the affirmative vote of a majority in number of the Board
Members then entitled to vote on the matter (a “Majority Vote”). If action is to be taken at a
duly called meeting of the Board of Managers, notice of the time, date, place and purpose of such
meeting shall be given to each Board Member then entitled to vote on the matter by the Board
Member(s) calling the meeting by personal delivery, telephone or fax sent to the address of each
Board Member then entitled to vote on the matter set forth on Exhibit B at least three (3)
Business Days in advance of the meeting; provided, however, no notice need be given
to a Board Member who waives notice before or after the meeting or who attends the meeting without
protesting at or before its commencement the inadequacy of notice to him or her. Meetings of the
Board of Managers shall be held at least quarterly. The Board Members may attend a meeting of the
Board of Managers in person or by proxy, and may participate in such meeting by means of conference
call or similar communications equipment that permits all Board Members participating in the
meeting to hear and speak to each other. A chairman selected by Northland Corp shall preside over
all meetings of the full Board of Managers. The chairman shall determine the order of business and
the procedures to be followed at each such meeting. Any action required or permitted to be taken
at any meeting of the Board of Managers may be taken without a meeting if one or more written
consents to such action shall
be signed by at least a majority of the Northland Board Members and at least one (1) Tarragon
Board Member. Each Board Member may authorize any Person or Persons to act for him or her by proxy
on all matters in which a Board Member is entitled to participate, including waiving notice of any
meeting, or voting or participating at a meeting. Every proxy must be signed by the Board Member or
its attorney-in-fact. No proxy shall be valid after the expiration of eleven (11) months from the
date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the Board Member executing it, such revocation to be effective upon the Company’s receipt of
written notice thereof. Such written consents shall be delivered to the Company at the principal
office of the Company and, unless otherwise specified, shall be effective on the date when the
first consent is delivered. To the extent that this Agreement permits the Board of Managers to
request materials, reports, information or clarifications, such request may be made by any
individual Board Member without further action by the Board of Managers.



     Section 4.5 Expenses; Compensation of Board Members. Board Members shall be
reimbursed by the Company for all reasonable out-of-pocket expenses incurred by them in connection
with their service on the Board of Managers (including all reasonable travel and accommodation
expenses) but shall not receive any compensation for their service on the Board of Managers.



     Section 4.6 Unanimous Approval Requirement. Notwithstanding any provision of this
Agreement to the contrary, the Board of Managers shall not take or cause or permit the Company or
to take any of the actions described on Exhibit A without in each instance first obtaining
Unanimous Approval.



15









 





     Section 4.7 Certain Loans by the Members. The Board of Managers may from time to time make
written request (a “Loan Request Notice”) that the Members, pro rata in accordance with their
respective Percentage Interests, make loans to the Company for use by the Company. Such loans
shall have the terms and conditions as may be specified by the Board of Managers in the Loan
Request Notice, and may be secured by liens or other charges upon property of the Company as
determined by the Board of Managers, subject to this Section 4.7. Such terms and conditions for
such loans shall include that the loan shall bear interest compounded monthly, at the then current
market rates, subject to a minimum annual percentage of 10%. No Member shall have any obligation
to make any such loans, and to the extent that one or more of the Members decline a request to make
such a loan, the Members who accepted such loan request (or it Affiliates) will have the right to
make the loans declined by the other Members. A Member shall be deemed to have declined a request
to make such a loan if within fifteen (15) days of the receipt of a Loan Request Notice, a Member
has not given written notice to the Board of Managers indicating whether or not it agrees to make
the loan specified in the Loan Request Notice. Members that participate in the loan request shall
make such loan not later than thirty (30) days after the receipt of such Loan Request Notice by
wire transfer of immediately available funds to the account designated in the Loan Request Notice.



     Section 4.8 Tax Classification. The Board of Managers shall take all reasonably necessary
actions to ensure that the Company is treated for federal income tax purposes as a partnership and
not as an association or publicly traded Company taxable as a corporation. The Company shall not
elect to be treated other than as a partnership for federal income tax purposes.



     Section 4.9 Standards of Conduct and Modification of Duties; Certain Transactions with
Affiliates.



               (a) In taking any action as a Board Member, each Board Member shall have no duty to consider
the separate interests of, or any factors affecting, any Member (or any such Member’s direct or
indirect stockholders (or other owners) or anyone claiming by, through or on behalf of any such
Member (including any creditor)), other than the Member that appointed such Board Member. No
Member shall owe any duty (including any fiduciary duty) to any other Member (or such other
Member’s direct or indirect stockholders (or other owners) or anyone claiming by, through or on
behalf of such other Member (including any creditor)), other than the implied contractual covenant
of good faith and fair dealing. No Board Member shall owe any fiduciary duty to any Member (or any
Member’s direct or indirect stockholders (or other owners) or anyone claiming by, through or on
behalf of any Member (including any creditor)), other than the Member appointing such Board Member.
Notwithstanding the foregoing, however, each Board Member shall owe to the Company the same duties
that a member of the board of directors of a Delaware corporation organized under the General
Corporation Law of the State of Delaware would owe to such corporation. The provisions of this
Agreement, to the extent they restrict or eliminate the duties (including fiduciary duties) and
liabilities of a Member or a Board Member otherwise existing at law or in equity are agreed by the
Members to replace such other duties and liabilities of the Members and the Board Members.



               (b) The Company may from time to time enter into transactions with a Member or any of its
Affiliates. The terms and conditions of such transaction shall be no more



16









 







favorable to the Member
or such Member’s Affiliate(s) as those that would then be available to the Company in an arm’s
length transaction from a Third Party not an Affiliate of such Member, including without limitation
competitive pricing and quality.



               (c) Upon the execution of the Joint Venture Agreement, in accordance with this ARTICLE IV, the
Board of Managers is expressly authorized for, in the name of, and on behalf of the Company to
enter into a management agreement with the Joint Venture, as long as such management agreement is
on substantially the same economic terms as the interim management agreement (“Interim Management
Agreement”) attached hereto as Exhibit C, and may permit the Company to enter into property
management agreements (each, a “Property Management Agreement”) with the Joint Venture, with
respect to the Properties (or any later acquired Properties) in a form approved by the Board of
Managers.



     Section 4.10 Exculpation. No Indemnified Party shall have any liability to the
Company or any Member for any loss suffered by the Company or any Member which arises out of any
action or inaction of an
Indemnified Party, unless such action or inaction (i) is undertaken or omitted in connection
with providing services to the Company or the performance of the Board of Manager’s duties under
this Agreement and (ii) is finally adjudicated by a court of competent jurisdiction to constitute
fraud or willful misconduct. To the extent permitted by law, each Indemnified Party’s duties
(including fiduciary duties) to the Company, any Member or any other Person shall be limited to
those set forth in this Agreement.



     Section 4.11 Indemnification. Subject to the limitations contained in this Section
4.11, the Company shall indemnify each Indemnified Party against all losses, liabilities, damages
and expenses incurred by such Indemnified Party as a result of any actions or omissions taken or
omitted in connection with providing services to the Company or the performance of the Board of
Managers’ or the Liquidating Agent’s duties under this Agreement or by reason of any action or
omission taken or omitted on behalf of the Company. Such indemnity shall cover, without implied
limitation, judgments, settlements, fines, penalties and counsel and expert fees incurred in
connection with the defense or disposition of any action, suit or other proceeding, whether civil
or criminal, before or threatened to be brought before any court or administrative body, in which
an Indemnified Party may be or may have been involved as a party or otherwise, or with which it may
have been threatened, by reason of being or having been an Indemnified Party, or by reason of any
act or omission on behalf of the Company or otherwise taken or omitted in connection with providing
services to the Company or the performance of the Board of Managers’ or the Liquidating Agent’s
duties under this Agreement. No Indemnified Party shall be entitled to indemnification pursuant to
this Section 4.11 with respect to any matter as to which such Indemnified Party shall have been
finally adjudicated by a court of competent jurisdiction in any such action, suit or other
proceeding to have committed an act or omission (i) that was undertaken or omitted in connection
with providing services to the Company or the performance of the Board of Managers’ or the
Liquidating Agent’s duties under this Agreement and (ii) constituted fraud or willful misconduct.
No Indemnified Party shall be entitled to indemnification pursuant to this Section 4.11 with
respect to any action, suit or proceeding that relates solely to a dispute between or among the
Members or the Board of Managers or any Affiliate providing services to the Company and any of its
members, managers or employees. The right of indemnification provided hereby shall not be
exclusive of, and shall not affect, any other rights to which any Indemnified Party may be entitled
and nothing contained in this



17









 







Section 4.11 shall limit any lawful rights to indemnification
existing independently of this Section 4.11.



     Section 4.12 Payment of Indemnification Expenses. Prior to the final disposition of
any claim or proceeding with respect to which any Indemnified Party may be entitled to
indemnification hereunder, in the Board of Managers’ discretion, the Company may pay to the
Indemnified Party, in advance of such final disposition, an amount equal to all expenses of such
Indemnified Party reasonably incurred in the defense of such claim or proceeding so long as the
Company has received a written undertaking of such Indemnified Party to repay to the Company the
amount so advanced if it shall be finally adjudicated by a court of competent jurisdiction that
such Indemnified Party was not entitled to indemnification hereunder.



     Section 4.13 EPA Compliance Plan. The Members acknowledge that the Company may be
considered a successor to Tarragon Management, Inc. pursuant to that certain Environmental
Compliance Plan the (“EPA Plan”) adopted by it pursuant to a Plea Agreement entered into on June
19, 2006. Tarragon Corp will indemnify and hold harmless the Company from and against any loss,
liability, damage or cost (including reasonable attorneys’ fees) arising as a result of the failure
of Tarragon Corp or its Affiliates to comply with the EPA Plan prior to the date hereof. The
Company hereby agrees that it will comply with the EPA Plan from and after the date hereof.



ARTICLE V




CAPITAL CONTRIBUTIONS




     Section 5.1 Initial Contributions. Each Member has initially contributed to the
Company the amounts reflected on Schedule A. In consideration for such Contribution, each
of Northland Corp and Tarragon Corp shall receive an Interest in the Company. All Contributions
shall be set forth on Schedule A, as amended from time to time.



     Section 5.2 Additional Capital Contributions.



               (a) If the Board of Managers determines that additional capital is needed, in excess of that
provided in Section 5.1, and that such additional capital shall be raised through the issuance of
Interests that will have participation rights that are in any respect pari passu with an
outstanding class of Interests, then, subject to the Unanimous Approval required in accordance with
Exhibit A, the Board of Managers may issue a notice to the Members requesting that the
Members fund such additional capital as a cash Contribution, pro rata in proportion to their
respective Percentage Interest (a “Funding Notice”). Each Funding Notice shall set forth (i) the
total amount of additional Contributions being requested, (ii) the reason the Contributions are
needed, together with such ancillary documentation relating to the same sufficient to adequately
inform the Members in such regard, (iii) the amount of additional Contributions being requested
from each Member and the wire transfer instructions for the account to which such Contributions
should be made and (iv) the Interests to be issued to the Members in respect of their Contribution.
Each Member shall give written notice to the Board of Managers indicating whether or not it agrees
to make an additional capital Contribution equal to its pro rata share, based upon its Percentage
Interest, of the requested funds (a “Funding Election Notice”) within



18









 







ten (10) Business Days of
receipt of such Funding Notice. If a Member elects to make such Contributions, then such Member
shall make such Contributions within ten (10) Business Days of delivery of such Funding Notice.
Each Member shall have the right (but not the obligation) to advance to the Company as a
Contribution of additional capital such Member’s Percentage Interest of the additional capital
requested in such Funding Notice. There shall be only one Funding Notice in connection with the
implementation of the rights of the Members under this Section 5.2.



               (b) If any Member (a “Non-Contributing Member”) fails to timely deliver a Funding Election
Notice or if so elected, fails to make any additional Contributions (or any portion thereof)
requested under this Section 5.2, and any other Member (a “Contributing Member”) has delivered a
Funding Election Notice that it will make its pro rata share of such additional Contributions (or
any portion thereof), then each Contributing Member may either (i) contribute the portion of such
requested Contribution the Non-Contributing Member failed to contribute (if there is more than one
Contributing Member, then in proportion to the relative Percentage Interest of such Contributing
Members, unless they otherwise agree), and receive in respect of such additional Contributions the
Interests corresponding thereto or (ii) withdraw its share of such requested additional
Contributions. Each Member acknowledges that failure to participate in any funding pursuant to
this Section 5.2 may result in a dilution of its interest and rights in the Company. No Member
shall be required to provide funds pursuant to this Section 5.2. The rights set forth in this
Section 5.2 shall constitute the sole remedy and recourse of the Company in respect of the failure
of any Member to make any additional Contribution.



               (c) Subject to the last sentence of Section 5.2(a), the Interests to be issued in connection
with any additional Contributions shall reflect the fair market value of Interests in the Company
at the time, as determined by the Board of Managers in good faith.



     Section 5.3 No Right to Interest or Return of Capital. Except as specifically provided for herein, no Member shall be entitled to any return of,
or interest on, Contributions to the Company or on such Member’s Capital Account, except to the
extent, if any, that distributions made pursuant to this Agreement or upon dissolution of the
Company may be considered as such by law and then only to the extent provided for in the Agreement.



     Section 5.4 No Third-Party Rights. Any obligations or rights of the Company or the
Members to make or require any Contribution under this ARTICLE V shall not result in the grant of
any rights to or confer any benefits upon any Person who is not a Member.



     Section 5.5 Limitations. Except as set forth in this ARTICLE V, no Member shall be
entitled or required to make any additional Contribution to the Company. No Member shall be
obligated to guarantee any indebtedness or other obligations of the Company. No Member shall have
any liability for the repayment of the Contribution of any other Member. No Member shall be
entitled to any interest or compensation with respect to its services rendered on behalf of the
Company except as specifically provided in this Agreement. No Member shall have any personal
liability for the repayment of the Contribution of any other Member; and each Member shall look
only to the assets to the Company for return of his, her or its Contribution.



19









 





ARTICLE VI




CAPITAL ACCOUNTS, ALLOCATIONS OF INCOME AND LOSS 




     Section 6.1 Capital Accounts. A separate capital account (each, a “Capital Account”)
shall be maintained for each Member. Capital Accounts shall be maintained in accordance with the
rules of Section 1.704-1(b)(2)(iv) of the Treasury Regulations, and this Section 6.1 shall be
interpreted and applied in a manner consistent with said Section of the Treasury Regulations. The
Company shall adjust the Capital Accounts of the Members to reflect revaluations of the Company
property whenever the adjustment would be permitted under Treasury Regulations Section
1.704-1(b)(2)(iv)(f)(5), unless the Board of Managers reasonably determines that any such
adjustment is not necessary to reflect the economic interests of the Members. In the event that
the Capital Accounts of the Members are so adjusted, (i) the Capital Accounts of the Members shall
be adjusted in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g) for allocations of
depreciation, depletion, amortization and gain or loss, as computed for book purposes, with respect
to such property and (ii) the Members’ distributive shares of depreciation, depletion, amortization
and gain or loss, as computed for tax purposes, with respect to such property shall be determined
so as to take account of the variation between the adjusted tax basis and book value of such
property in the same manner as under Section 704(c) of the Code. In the event that Code Section
704(c) applies to Company property, the Capital Accounts of the Members shall be adjusted in
accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g) for allocations of depreciation,
depletion, amortization and gain and loss, as computed for book
purposes, with respect to such property. The amounts of all distributions to Members (other
than liquidating distributions) shall be determined pursuant to Section 7.1.



     Section 6.2 Allocations



               (a) After giving effect to the provisions of Sections 6.2(b) through 6.2(e), and subject to
Section 6.2(f), net income and net loss of the Company (as determined for purposes of adjusting
Capital Accounts in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)) shall be
allocated among the Members so as to make, as nearly as possible, the Adjusted Capital Accounts of
the Members stand in proportion to their Percentage Interests.



               (b) Notwithstanding any other provision of this Agreement, in the event there is a net
decrease in Partnership Minimum Gain during a taxable year of the Company, the Members shall be
allocated items of income and gain in accordance with Treasury Regulations Section 1.704-2(f). For
purposes of this Agreement, the term “Partnership Minimum Gain” shall have the meaning set forth in
Treasury Regulations Section 1.704-2(b)(2), and any Member’s share of Partnership Minimum Gain
shall be determined in accordance with Treasury Regulations Section 1.704-2(g)(1). This Section
6.2(b) is intended to comply with the minimum gain charge-back requirement of Treasury Regulations
Section 1.704-2(f) and shall be interpreted and applied in a manner consistent therewith.



               (c) Notwithstanding any other provision of this Agreement, non-recourse deductions shall be
allocated one hundred percent (100%) to the Members, pro



20









 







rata, in proportion to their Percentage
Interests. “Non-recourse deductions” shall have the meaning set forth in Treasury Regulations
Section 1.704-2(b)(1).



               (d) Notwithstanding any other provision of this Agreement, to the extent required by Treasury
Regulations Section 1.704-2(i), any items of income, gain, loss or deduction of the Company that
are attributable to a nonrecourse debt of the Company that constitutes “partner nonrecourse debt”
as defined in Treasury Regulations Section 1.704-2(b)(4) (including chargebacks of partner
nonrecourse debt minimum gain) shall be allocated in accordance with the provisions of Treasury
Regulations Section 1.704-2(i). This Section 6.2(d) is intended to satisfy the requirements of
Treasury Regulations Section 1.704-2(i) (including the partner nonrecourse debt minimum gain
chargeback requirements) and shall be interpreted and applied in a manner consistent therewith.



               (e) Any Member who unexpectedly receives an adjustment, allocation or distribution described
in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) that causes or increases a
deficit balance in its Capital Account shall be allocated items of income and gain in an amount and
a manner sufficient to eliminate, to the extent required by the Treasury Regulations Section
1.704-1(b)(2)(ii)(d), such deficit balance as quickly as possible. This Section 6.2(e) is intended
to comply with the alternate test for economic effect set forth in Treasury Regulations Section
1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in a manner consistent therewith.



               (f) The allocation provisions contained in this ARTICLE VI are intended to comply with Code
Section 704(b) and the Treasury Regulations promulgated thereunder, and shall be interpreted and
applied in a manner consistent therewith. The Board of Managers in its reasonable discretion shall
modify such allocations as necessary to carry out the parties’ intended economic arrangement in a
manner that complies with such Code sections and regulations.



     Section 6.3 Allocations for Tax Purposes.



               (a) Subject to Section 6.3(b), net income and net loss to be allocated for income tax purposes
shall be allocated among the Members on the same basis as the corresponding “book” items are
allocated as provided in Section 6.2; provided, however, that the tax items
allocated to the Members pursuant to this Section 6.3 shall not be reflected in the Members’
Capital Accounts.



               (b) If any asset of the Company is subject to Code Section 704(c) or reflected in the Capital
Accounts of the Members at a book value (as determined in accordance with Treasury Regulations
Sections 1.704-1(b)(2)(iv)(d) and 1.704-1(b)(2)(iv)(f)) that differs from the adjusted federal
income tax basis of such asset, then the tax items with respect to such asset shall be shared among
the Members in a manner that takes account of the variation between the adjusted federal income tax
basis of such asset and its book value in accordance with the requirements of Code Section 704(c),
the Treasury Regulations thereunder, and Treasury Regulations Section 1.704-1(b)(4)(i). For
purposes of making allocations under Code Section



21









 







704(c) (including so-called “reverse Section
704(c) allocations”) and this Section 6.3(b), the Company shall adopt such allocation method as the
Board of Managers shall agree for each asset of the Company, provided that such
designation is made within a reasonable time after each contribution of an asset to the Company or,
as applicable, any revaluation of the Company’s assets in accordance with Section 6.1.



     Section 6.4 No Deficit Restoration by Members. No Member shall be required to contribute
capital to the Company to restore a deficit balance in its Capital Account upon liquidation or
otherwise.



     Section 6.5 Allocations When Interests Change. In the event that during any calendar month
there is any change of Members or Percentage Interests (whether as a result of the admission of an
additional Member, a non de-minimis contribution of property by an existing Member, the redemption
by the Company of all (or any portion) of any Member’s Interest, a transfer of Interests or
otherwise), the following rules shall apply for purposes of this Article VI: (i) such change,
contribution, redemption, admission or transfer shall be deemed to have occurred as of the
beginning of the first day of the month in which such change occurred, (ii) the books of account of
the Company shall be closed effective as of the close of business on the day before any such
change, contribution, redemption, admission or transfer as set forth in clause (i) and the
Company’s fiscal year that includes such
event shall thereupon be divided into two or more portions, (iii) each item of income, gain, loss
and deduction for the portion of such fiscal year ending with the date on which the books of
account of the Company are so closed shall be allocated to those persons who were Members during
such portion of such fiscal year (and taking into account their relative Percentage Interests
during such period) in accordance with Section 6.2, and (iv) each item of income, gain, loss and
deduction for the portion of such fiscal year beginning after the date on which the books of
account of the Company are so closed shall be allocated to those persons who are Members during
such portion of such fiscal year (and taking into account their relative Percentage Interests
during such period) in accordance with Section 6.2.



ARTICLE VII




DISTRIBUTIONS




     Section 7.1 Distributions.



               (a) Except as otherwise provided in this ARTICLE VII, quarterly distributions of Operating
Cash Flow shall be made to the Members within thirty-five (35) days after the end of each calendar
quarter. Subject to Section 7.3, the timing of all other distributions, if any, shall be at the
sole discretion of the Board of Managers. Notwithstanding the foregoing, following the First
Closing (as defined in the Contribution Agreement) and until December 31, 2008 (or the earlier date
on which all of the Closings contemplated under the Contribution Agreement have taken place),
distributions of Operating Cash Flow shall be made the day before each such Closing to the Members,
pro rata, in proportion to their respective Percentage Interests.



22









 





               (b) Except to the extent otherwise expressly set forth in this Agreement, all distributions
shall be made to the Members, pro rata, in proportion to their respective Percentage Interests.
Unless otherwise expressly provided for in the terms established for a new class of Interests
created in accordance with Section 3.7.1, no Interest shall be entitled to a distribution in
preference to any other Interest.



     Section 7.2 Liability for Amounts Distributed. The Members hereby agree that, except
as otherwise expressly provided herein or required by applicable Law, no Member shall have an
obligation to return money or other property paid or distributed to such Member whether or not such
distribution was in violation of the Act. However, if any court of competent jurisdiction holds
that, notwithstanding the provisions of this Agreement, any Member is obligated to make any such
return, such obligation shall be the obligation of such Member and not of any other Person.



     Section 7.3 Distributions Upon Liquidation. Proceeds upon liquidation shall be
distributed to the Members in accordance with Section 12.4.



     Section 7.4 Withholding. The Company shall at all times be entitled to make payments with respect to any Member in
amounts required to discharge any obligation of the Company to withhold from a distribution
otherwise payable to such Member or with respect to amounts allocable to such Member or to make any
other payments to any governmental authority with respect to any foreign, federal, state or local
tax or withholding liability arising as a result of such Member’s Interest in the Company (a
“Withholding Payment”). Any Withholding Payment made from funds withheld upon a distribution will
be treated as distributed to such Member for all purposes of this Agreement. Any other Withholding
Payment will be deemed to be a recourse loan by the Company to the relevant Member or, at the
option of the Board of Managers, in its discretion, any such other Withholding Payment may be
withheld from future distributions to which the relevant Member is entitled. The amount of any
Withholding Payment treated as a loan, plus interest thereon from the date of each such Withholding
Payment until such amount is repaid to the Company at an interest rate per annum equal to the prime
rate quoted in The Wall Street Journal from time to time, plus 2%, shall be repaid to the Company
(i) upon demand by the Company, (ii) by deduction from any distributions payable to such Member
pursuant to this Agreement (with the amount of such deduction treated as distributed to the Member)
as determined by the Board of Managers in its discretion, or (iii) by earlier payment by the Member
to the Company. If the proceeds to the Company from an investment are reduced on account of taxes
withheld at the source, and such taxes are imposed on, or with respect to, one or more of the
Members in the Company, the amount of the reduction shall be borne by the relevant Members and
treated as if it were paid by the Company as a Withholding Payment with respect to such Members.
If the proceeds to the Company from an investment are reduced on account of taxes withheld at the
source, and such taxes are imposed on the Company, the amount of the reduction shall be treated as
an expense of the Company. This Section 7.4 and the other provisions of this Agreement shall be
applied consistently with the requirements of Treasury Regulations Section 1.704-1(b)(4)(viii).



23









 





ARTICLE VIII




OTHER ACTIVITIES




     Section 8.1 General Provisions. Any Member or its Affiliates may engage independently or
with others in other business ventures of every nature and description, including, without
limitation, providing services relating to assets of the type included within the definition of
Real Estate Investments and receiving compensation therefor and the making or management of other
investments and serving as a sponsor of other real estate funds. Subject to Section 4.9, nothing
in this Agreement shall be deemed to prohibit any Member or its Affiliates from dealing or
otherwise engaging in business with Persons transacting business with the Company. Subject to
Section 4.9, neither the Company nor any Member shall have any right by virtue of this Agreement or
the relationship created hereby in or to such other ventures or activities or to the income or
proceeds derived therefrom, and the pursuit of such ventures shall not be deemed wrongful or
improper.



ARTICLE IX




RIGHTS AND OBLIGATIONS OF MEMBERS




     Section 9.1 Limited Liability. No Member shall be personally liable to any third party for
any liability or other obligation of the Company. A Member that receives the return of any part of
its Contribution shall be liable to the Company for the amount of its Contribution so returned to
the extent, and only to the extent, provided by the Act or other applicable Law.



     Section 9.2 Wrongful Distributions. To the extent required by the Act or other applicable
law, a Member may, under certain circumstances, be required to return amounts previously wrongfully
distributed to such Member. It is the intent of the Company that, in connection with any
distribution to any Member, except as provided in Section 9.1 or under the Act or other applicable
Law, no Member shall be obligated to pay or return any such amount to, or for the account of, the
Company or any creditor of the Company. The payment of any such money or distribution of any such
property to a Member, whether or not deemed to be a return of Contributions, shall be deemed to be
a compromise within the meaning of Section 17-502(b) of the Act and, to the fullest extent
permitted by law, the Member receiving any such money or property shall not be required to return
any such money or property to the Company or any creditor of the Company. However, if any court of
competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Member is
obligated to make any such payment, such obligation shall be the obligation of such Member and not
of the Company.



     Section 9.3 Authority of Members. The Members shall not participate in, or take part in
the control of, the management of the Company or its business and affairs and shall not have any
power or authority to act for or bind the Company.



     Section 9.4 Confidential Information. “Confidential Information” means all information
relating to the Company, its Affiliates, any Properties, any Real Estate Investment or the business
or operations of the Company or its Affiliates (including, without limitation, processes, plans,
data, reports, drawings, documents, business secrets, financial information or



24









 







information of any
other kind) other than information that (i) was publicly known or otherwise known to a Member prior
to the time it was disclosed pursuant to this Agreement and was not otherwise subject to any
restriction on disclosure by such Member, (ii) subsequently becomes publicly known through no act
or omission by a Member or any person acting on a Member’s behalf, or (iii) becomes known to a
Member other than through disclosure by the Company without breach of this Agreement or any other
contractual, legal, or fiduciary obligation and is not otherwise subject to any restriction on
disclosure by such Member.



     Section 9.5 Confidentiality Obligations. Subject to Section 9.6, each Member agrees
(i) to maintain in confidence all Confidential Information received by such Member; (ii) to use
such Confidential Information only for the purpose of monitoring such Member’s investment in the
Company; (iii) not to use
any Confidential Information for any other purpose, including, without limitation, use in
conducting or furthering such Member’s own business or that of any Affiliates or any competing
business; (iv) to cooperate in any appropriate action that the Company may decide to take to
prevent or minimize the disclosure of such Confidential Information; and (v) that the
misappropriation or unauthorized disclosure of Confidential Information by a Member is likely to
cause substantial and irreparable damage to the Company and/or one or more Affiliates such that
damages may not be an adequate remedy for breach of this Section 9.5. Accordingly, the Company and
its Affiliates shall be entitled to injunctive and other equitable relief, in addition to all other
remedies available to them at law or at equity, and no proof of special damages shall be necessary
for the enforcement of this Section 9.5.



     Section 9.6 Exceptions to Confidentiality. The obligations of limited use and
nondisclosure contained in Section 9.5 will not (i) restrict the disclosure of Confidential
Information to a Member’s attorneys, tax advisors, accountants or other professional advisors or
consultants who have a reason to have access to such Confidential Information in connection with
their duties and responsibilities to such Member relating to administering such Member’s investment
in the Company so long as such Persons are under an obligation of confidentiality consistent with
the terms of Section 9.5, (ii) restrict the disclosure of Confidential Information by a Member to
the extent such disclosure is required by any governmental or regulatory authority or court
entitled by law to such disclosure, or that is required by law to be disclosed, provided
that such Member promptly notifies the Company when such requirement to disclose arises to
enable the Company to seek an appropriate protective order and to make known to such governmental
or regulatory authority or court the proprietary nature of the Confidential Information and to make
any applicable claim of confidentiality in respect thereof, and provided, further, that such party
shall only make such disclosure to the extent it is required to do so by law, (iii) restrict the
disclosure of Confidential Information required in order for a Member or its Affiliates to comply
with its disclosure obligations under applicable securities laws or regulations, including the
rules of any stock exchange or other self-regulatory body (“Disclosure Obligations”) or
(iv) restrict the disclosure of Confidential Information by a Member to the extent permitted with
the written consent of the Company.



     Section 9.7 Services to Tarragon Corp.



               (a) Tarragon Corp shall be permitted to appoint the Company as the Manager (as defined in the
Interim Management Agreement) of its real estate assets. Tarragon Corp shall pay the Company a
property management fee equal to 4% of the gross revenues of its



25









 







real estate assets per annum.
Tarragon Corp may also engage the Company to perform construction management, asset management,
real estate brokerage, financing and development services. Tarragon Corp and the Company shall
negotiate in good faith reasonable fees for such services and Tarragon Corp acknowledges that to
the extent the Board of Managers approves such additional services to be rendered and a fee
structure in connection therewith, such fees shall be deemed approved by Tarragon.



               (b) Tarragon Corp shall be permitted to use Company employees to conduct due diligence for
non-Joint Venture activities. Tarragon Corp shall reimburse the Company for expenses incurred,
including without limitation all compensation of Company employees.



ARTICLE X




TRANSFER OF COMPANY INTERESTS




     Section 10.1 Transfer of Interests.



               (a) Transfers Generally. Except as specifically provided by this Agreement, no Member
may Transfer all or any portion of its Interest in the Company without the prior written consent of
the Board of Managers, which consent may be given or withheld in its sole and absolute discretion.
Any Transfer or purported Transfer of an Interest in the Company not made in accordance with this
ARTICLE X shall be null and void. No assignment shall be binding upon the Company until the Board
of Managers receives an executed copy of such assignment and assumption agreement or other transfer
agreement required to effectuate such Transfer (“Transfer Documents”), which Transfer Documents
shall be in form and substance satisfactory to the Board of Managers. Any assignee of a Member’s
interest pursuant to this Section 10.1 may only be admitted to the Company as a substitute Member
in accordance with Section 10.2. The Board of Managers may require that any Member proposing to
Transfer the Member’s Interest in the Company pay the Company’s reasonable out-of-pocket costs
incurred in connection with the proposed Transfer.



               (b) Permitted Tarragon Corp Transfers. Notwithstanding anything to the contrary in
this Section 10.1 or Section 10.2, but subject to compliance with Section 10.3 and Section 10.4,
the Board of Managers shall not withhold its consent to the following Transfers of Interest by
Tarragon Corp, provided that the Board of Managers receives reasonable prior notice of any such
Transfer and has approved the form of Transfer Documents (such approval not to be unreasonably
withheld, conditioned or delayed):




               (i) the Transfer of Tarragon Corp’s Interest to an Affiliate of Tarragon Corp;




               (ii) after the end of the Lock-Out Period, a Transfer to the shareholders of Tarragon
Corp and any subsequent Transfer by such shareholders or their transferees; provided,
however, that no such transferee under this clause (ii) shall have the right to be
admitted as a substitute Member or shall acquire any right to appoint any Board Member
pursuant to Section 4.1 or otherwise; and



26









 






               (iii) after the end of the Lock-Out Period, a Transfer by Tarragon Corp of all or part
of its Interest to any Person; provided, however, that (x) such Interest has
first been offered to Northland Corp pursuant to and in compliance with the right of first
offer procedure set forth in Section 13.4, and (y) no such transferee under this
clause (iii) shall have the right to be admitted as a substitute Member or shall acquire
any right to appoint any Board Member pursuant to Section 4.1 or otherwise.



     Section 10.2 Substitute Members. Except as otherwise provided in this ARTICLE X, any
Person that acquires an interest by assignment from another Member in accordance with the
provisions of Section 10.1, including, without limitation any Interest acquired by operation of law
or otherwise from Tarragon Corp as a result of any Change of Control of Tarragon Corp may only be
admitted to the Company as a substitute Member with the written consent of the Board of Managers,
which may be withheld in its sole and absolute discretion. The admission of an assignee as a
substitute Member shall in all events be conditioned upon (i) compliance with Section 10.3 and
Section 10.4, (ii) the assignee’s written assumption, in form and substance satisfactory to the
Board of Managers, of all obligations of the assigning Member relating to the assigned Interest and
(iii) execution of an instrument satisfactory to the Board of Managers whereby such assignee
becomes a party to this Agreement as a Member.



     Section 10.3 Obligations of Assignee. Any assignee of the Interest of a Member in the
Company, irrespective of whether such assignee has accepted and adopted in writing the terms and
provisions of this Agreement, shall be deemed by the acceptance of such assignment to have agreed
to be subject to the terms and provisions of this Agreement in the same manner as its assignor.
Furthermore, if Section 743(b) of the Code applies to any Transfer of an Interest of a Member, the
assignee of such Interest shall be responsible for any costs reasonably incurred by the Board of
Managers or the Company in complying with the requirements thereof.



     Section 10.4 Additional Requirements. As additional conditions to the validity of any
direct or indirect assignment or Transfer of a Member’s Interest in the Company, such assignment or
Transfer shall not, except to the extent waived by the Board of Managers:



               (a) violate the registration provisions of the Securities Act of 1933, as amended, or the
securities laws of any applicable jurisdiction;



               (b) cause the Company not to be entitled to the exemption from registration as an “investment
company” pursuant to the Investment Company Act of 1940, as amended;



               (c) cause the Company to be required to register Interests with the Securities and Exchange
Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended;



               (d) result in the termination of the Company as a partnership under the Code; or



27









 





               (e) cause the Company to be taxed as a corporation under the “publicly traded partnership”
rules in Section 7704 of the Code.


The Board of Managers may require reasonable evidence as to the foregoing, including, without
limitation, a favorable Opinion of Counsel. Except to the extent waived by the Board of Managers,
any assignment or transfer that violates the conditions of this Section 10.4 shall be null and void
ab initio.




     Section 10.5 Allocation of Distributions Between Assignor and Assignee. Upon the
assignment or Transfer of an Interest in the Company pursuant to this ARTICLE X, distributions
pursuant to ARTICLE XII made thereafter shall be made to the Person owning the Interest in the
Company at the date of distribution, unless the assignor and assignee otherwise agree and direct
the Board of Managers in a written statement signed by both.



     Section 10.6 Treatment of Assignees. Any reference in this Agreement to the Capital
Account or Contribution of a Member who is an assignee of all or a portion of an Interest shall
include the Capital Account and Contribution of the assignor (or a pro rata portion thereof in the
case of an assignment to such assignee of less than the entire Interest of the assignor).



     Section 10.7 Withdrawal by Members. Notwithstanding any provision of the Act to the
contrary, no Member may resign, withdraw or withdraw capital from the Company, except pursuant to a
right expressly set forth herein.



ARTICLE XI




REPORTING, RECORDS AND ACCOUNTING MATTERS




     Section 11.1 Books and Accounts. Complete and accurate books and accounts shall be
kept and maintained for the Company at its principal place of business or such other location as
the Board of Managers may specify from time to time. Such books and accounts shall be kept in
accordance with generally accepted accounting principles consistently applied to the extent
specified in Section 11.3. Each Member or its duly authorized representative at its own expense
shall at all reasonable times have access to, and may inspect and make copies of, such books and
accounts of the Company upon reasonable prior written notice to the Board of Managers, for any
purpose reasonably related to the Member’s interest as a Member. All funds received by the shall
be deposited in the name of the Company in such bank account or accounts, and all securities owned
by the Company may be deposited with such custodian, as the Board of Managers may designate from
time to time and withdrawals therefrom shall be made upon such signature or signatures on behalf of
the Company as the Board of Managers may designate from time to time. The Board of Managers shall
prepare and maintain a list (the “Schedule of Members”) indicating the name of each Member and the
Members’ status as a Member and the aggregate amount of such Member’s Contributions.



     Section 11.2 Records Available. The Board of Managers shall maintain at the Company’s
principal office the following documents: (i) a current list of the full name and last known
business address of each Member; (ii) a copy of the certificate of LLC Certificate and all
amendments thereto; (iii) copies of all of the Company’s federal, state and local income tax



28









 







returns and of any financial statements of the Company for the three (3) most recent Fiscal Years;
and (iv) copies of this Agreement and all amendments thereto, together with executed copies of any
powers of attorney pursuant to which this Agreement, the LLC Certificate, or any such amendment has
been executed. Such documents are subject to inspection and copying at the reasonable request and
at the expense of any Member during ordinary business hours upon reasonable prior notice to the
Board of Managers, for any purpose reasonably related to the Member’s interest as a Member. Except
to the extent requested by a Member, the Board of Managers shall have no obligation to deliver or
mail a copy of the Company’s LLC Certificate or any amendment thereto to the Members.



     Section 11.3 Financial Reports. The Company shall engage an independent certified
public accountant selected by the Board of Managers to act as the accountant for the Company. The
Board of Managers, at the Company’s expense, shall use its commercially reasonable efforts to
prepare and to deliver to each Member the following reports:



               (a) Annual Financial Statements. As soon as available following the end of each
Fiscal Year and in any event not less than fifteen (15) days prior to the date on which Tarragon
Corp would be required to file an Annual Report on Form 10-K with the Securities and Exchange
Commission (whether or not required by the rules and regulation of the Securities and Exchange
Commission), a consolidated balance sheet of the Company as of the end of such Fiscal Year,
together with related consolidated statements of income, members’ capital, cash flows and changes
in financial position for such Fiscal Year, all in reasonable detail and stating in comparative
form the respective figures for the corresponding date and period in the prior Fiscal Year and all
prepared in accordance with GAAP. The annual financial statements referred to above shall include
all required disclosures that are considered an integral part of the financial statements as
prepared in conformity with GAAP and industry standards and shall be accompanied by an audit
opinion of the Company’s independent certified public accountant.



               (b) Quarterly Reports. As soon as available following the end of each quarter in each
Fiscal Year and in any event not less than ten (10) days prior to the date on which Tarragon Corp
would be required to file a Quarterly Report on Form 10-Q with the Securities and Exchange
Commission (whether or not required by the rules and regulation of the Securities and Exchange
Commission), such financial information for such quarter as Tarragon Corp may reasonably require in
order to comply with its quarterly Disclosure Obligations or contractual obligations.



               (c) Monthly Management Reports. The Company shall provide to Tarragon Corp monthly
financial reports prepared by management, which reports need not be prepared in conformity with
GAAP.



               (d) Other Reports. Upon reasonable prior request of Tarragon Corp, the Company shall
at the Company’s expense provide such additional financial reports from time to time as Tarragon
Corp may reasonably require in order to comply with its Disclosure Obligations.



29









 





               (e) Termination of Obligations. The obligations to accompany annual financial
statements by an audit opinion and to prepare any of the financial statements required by this
Section 11.3 in conformity with GAAP shall cease when Tarragon Corp is no longer required to file
reports under the Exchange Act and has no contractual obligations to provide an audited report or
financial statements prepared in conformity with GAAP.



     Section 11.4 Reliance on Accountants. All decisions as to accounting matters shall be
made by the Board of Managers, to the extent consistent with the terms of this Agreement. The
Board of Managers may rely upon the advice of the Company’s accountants.



     Section 11.5 Tax Matters Member; Filing of Returns. Northland Corp shall be the “tax
matters partner” of the Company for purposes of Section 6231(a)(7) of the Code and shall, at the
Company’s expense, cause to be prepared and timely filed after the end of each Fiscal Year of the
Company all Federal and state income tax returns required of the Company for such Fiscal Year. The
Company shall endeavor to deliver to each Member an IRS Form K-1 within ninety (90) days after the
end of each Fiscal Year or as soon as practicable thereafter. The tax matters partner shall take
such actions as are reasonably necessary to ensure that Tarragon Corp is a “notice partner” within
the meaning of Code Section 6231.



     Section 11.6 Tax Elections. The Board of Managers shall determine in its reasonable
discretion whether to make or revoke any elections available under the Code or under any other tax
laws on behalf of the Company; provided, however, that if requested by a Member the
Company will make an election under Section 754 of the Code and such election shall not be revoked
without the consent of the requesting Member.



     Section 11.7 Fiscal Year. The fiscal year (the “Fiscal Year”) of the Company shall be
the same as its taxable year. The taxable year of the Company shall be the period ending on
December 31 of each year, or such other period as required by the Code.



ARTICLE XII




DISSOLUTION AND LIQUIDATION




     Section 12.1 No Dissolution. The Company shall not be dissolved by the admission of Additional Members or Substitute
Members in accordance with the terms of this Agreement.



     Section 12.2 Events Causing Dissolution. The Company shall be dissolved and its
affairs shall be wound up upon the occurrence of any of the following events:



               (a) the expiration of the term of the Company, as provided in Section 1.3 hereof;



               (b) at the election of any Member if the Contribution Agreement is terminated as to all of the
Properties thereto in accordance with the terms thereof, prior to the earlier of September 30, 2008
or the “First Closing” (as defined therein) thereunder;



30









 





               (c) An election to dissolve made by the Board of Managers, in its sole and absolute
discretion; or



               (d) the entry of a decree of judicial dissolution of the Company pursuant to the provisions of
the Act.



     Section 12.3 General. Upon the dissolution of the Company, the Company shall be
liquidated in accordance with this ARTICLE XII and the Act. The dissolution, liquidation and
termination shall be conducted and supervised (i) by the Board of Managers or (ii) by a Person
selected by the Board of Managers (the Board of Managers or such other Person, as applicable, being
referred to as the “Liquidating Agent”). The Liquidating Agent shall have all of the rights,
powers, and authority with respect to the assets and liabilities of the Company in connection with
the dissolution, liquidation and termination of the Company that the Board of Managers has with
respect to the assets and liabilities of the Company during the term of the Company, and the
Liquidating Agent is hereby expressly authorized and empowered to execute any and all documents
necessary or desirable to effectuate the liquidation of the Company and the transfer of any assets
or liabilities of the Company. The Liquidating Agent shall have the right from time to time, by
revocable powers of attorney, to delegate to one or more Persons any or all of such rights and
powers and such authority and power to execute documents and, in connection therewith, to fix the
reasonable compensation of each such Person, which compensation shall be charged as an expense of
liquidation. The Liquidating Agent shall liquidate the Company as promptly as shall be practicable
after the dissolution of the Company’s term, consistent with realizing the value of Company assets.
Without limiting the rights, powers, and authority of the Liquidating Agent as provided in this
Section 12.3, any Company asset that the Liquidating Agent may sell shall be sold at such price and
on such terms as the Liquidating Agent may, in its discretion, deem appropriate. The Liquidating
Agent may, if it so determines, distribute restricted securities and other assets of the Company in
kind to the Members.



     Section 12.4 Priority. The proceeds of liquidation shall be applied in the following order of priority:



               (a) first, to pay the costs and expenses of the dissolution and liquidation;



               (b) second, to pay matured debts and liabilities of the Company to all creditors of the
Company (including, without limitation, any liability to any Member or any Affiliate thereof);



               (c) to establish any reserves which the Liquidating Agent may deem necessary or advisable for
any contingent or unmatured liability of the Company to all Persons who are not Members;



               (d) to establish any reserves which the Liquidating Agent may deem necessary or advisable for
any contingent or unmatured liability of the Company to the Members;



31









 





               (e) the balance, if any, to the Members in accordance with Section 7.1.



     Section 12.5 Orderly Liquidation. A reasonable time shall be allowed for the orderly
liquidation of the assets of the Company and the discharge of liabilities so as to minimize the
losses normally attendant upon a liquidation. The Liquidating Agent shall, however, if possible to
do so in a manner consistent with the preceding sentence, dispose of all Company assets other than
reserves and effect distributions to the Members within one-hundred eighty (180) days after the
date of dissolution of the Company.



     Section 12.6 Source of Distributions. The Board of Managers shall not be liable out
of its own assets for the return of the Contributions of the Members, it being expressly understood
that any such return shall be made solely from the Company’s assets.



     Section 12.7 Statements on Termination. Upon the completion of the liquidation of the
Company, each Member shall be furnished with a statement prepared by the Company’s accountant which
shall set forth the assets and liabilities of the Company as at the date of complete liquidation
and each Members’ share thereof. Upon completion of the liquidation of the Company pursuant to
this ARTICLE XII, the Members shall cease to be Members of the Company and the Liquidating Agent
shall execute, acknowledge, and cause to be filed a certificate of cancellation of the Company.



     Section 12.8 Liquidation Upon Termination of the Contribution Agreement. Notwithstanding anything in this Article XII to the contrary, upon a termination of the
Company as a result of the election made under Section 12.2(b), the Members will endeavor to unwind
the Company in good faith, including without limitation (i) distributing to each Member those
Company contracts, rights and other properties that were held by such Member prior to the formation
of the Company and (ii) permitting employees of the Company to be hired or solicited by the Member
that had employed such persons prior to the formation of the Company.



ARTICLE XIII




DRAG-ALONG RIGHT, TAG-ALONG RIGHT AND RIGHT OF FIRST REFUSAL




     Section 13.1 Drag-Along Right.



               (a) If at any time or from time to time Northland Corp proposes to sell in the aggregate 25%
or more of its Interests to a Third Party who is a bona fide purchaser (the “Sale”), Northland Corp
may deliver a notice (a “Drag Along Notice”) to Tarragon Corp stating that Northland Corp proposes
to effect such Sale, and specifying the name and address of the proposed parties to such
transaction and the consideration payable in connection therewith. Upon receipt of a Drag-Along
Notice, Tarragon Corp shall be obligated to transfer its entire Interest in the Company owned by it
in the Sale (or, in the case of a Sale involving a sale of less than all of the Interest held by
Northland Corp, a percentage of the Interest owned by it equal to the percentage of Northland
Corp’s Interest being sold), for a price and on other terms and conditions not less favorable to
Tarragon Corp than to Northland Corp.



               (b) The Sale shall be made on the same date and at the same price and on terms and conditions
at least as favorable to Tarragon Corp as the terms and conditions



32









 







contained in the Drag-Along
Notice delivered in connection with such proposed transaction. Tarragon Corp shall take all
actions which Northland Corp deems reasonably necessary or desirable to consummate such Sale,
including, without limitation, (i) entering into agreements with third parties on terms
substantially identical or more favorable to Tarragon Corp than those agreed to by Northland Corp
and including representations, indemnities, releases, holdbacks, escrows, and other agreements,
instruments, certificates and other documents as may be requested by Northland Corp and
(ii) obtaining all consents and approvals reasonably necessary or desirable to consummate the Sale.
Northland Corp and Tarragon Corp shall each pay their pro rata share (based upon the Interests
sold in such transaction by Northland Corp and Tarragon Corp) of any reasonable transaction costs
associated with the Sale.



               (c) Tarragon Corp shall to the fullest extent permitted by law take or cause to be taken all
such actions as may reasonably be requested by Northland Corp in order expeditiously to consummate
the Sale and any related transactions, including, without limitation, executing, acknowledging and
delivering consents, assignments, waivers, agreements, releases and other documents or instruments,
furnishing information and copies of documents, filing applications, reports, returns, filings and
other documents or instruments with governmental authorities, and otherwise cooperating with the
Company and Northland Corp.



               (d) Tarragon Corp hereby grants to Northland Corp an irrevocable power of attorney, which is
coupled with an interest, to take such other actions, in each case to
the extent necessary to carry out the provisions of this Section 13.1 in the event of any
breach by Tarragon Corp of its obligations hereunder.



     Section 13.2 Tarragon Tag-Along Right.



               (a) If Northland Corp desires to sell in one or more series of related transactions 10% or
more of its Interest in the Company (a “Northland Sale”) to a Third Party (the “Northland Buyer”),
then at least thirty (30) days prior to any such sale, Northland Corp shall provide to Tarragon
Corp a notice (a “Tarragon Tag-Along Notice”) setting forth in reasonable detail the terms of the
Northland Sale, the percentage of its Interest in the Company that the Northland Buyer wishes to
purchase and identifying the name and address of the Northland Buyer. Upon the written request of
Tarragon Corp made within fifteen (15) days after the day the Tarragon Tag-Along Notice is received
by Tarragon Corp, Northland Corp shall cause the Northland Buyer to purchase from Tarragon Corp the
percentage of Tarragon Corp’s Interest equal to the lesser of (i) the percentage of its Interest
requested to be included in the Northland Sale by Tarragon Corp and (ii) a number determined by
multiplying (x) Tarragon Corp’s Percentage Interest by (y) the percentage of Northland Corp’s
Interest in the Company to be sold in the Northland Sale. Such purchase shall be made on the same
date and at the same price and on terms and conditions at least as favorable to Tarragon Corp as
the terms and conditions contained in the Tarragon Tag-Along Notice delivered in connection with
such proposed transaction. Tarragon Corp shall take all actions which Northland Corp deems
reasonably necessary or desirable to consummate such transaction, including, without limitation,
(i) entering into agreements with third parties on terms substantially identical or more favorable
to Tarragon Corp than those agreed to by Northland Corp and including representations, indemnities,
holdbacks, and escrows, and (ii) obtaining all consents and approvals reasonably necessary or
desirable to consummate the Northland Sale. Tarragon Corp and Northland Corp



33









 







shall each pay their
pro rata share (based upon the Interests sold in such transaction by Tarragon Corp and Northland
Corp) of any reasonable transaction costs associated with the Northland Sale.



               (b) Tarragon Corp shall to the fullest extent permitted by law take or cause to be taken all
such actions as may reasonably be requested by Northland Corp in order expeditiously to consummate
the Northland Sale and any related transactions, including, without limitation, executing,
acknowledging and delivering consents, assignments, waivers, agreements, releases and other
documents or instruments, furnishing information and copies of documents, filing applications,
reports, returns, filings and other documents or instruments with governmental authorities, and
otherwise cooperating with the Company and Northland Corp.



               (c) Tarragon Corp hereby grants to Northland Corp an irrevocable power of attorney, which is
coupled with an interest, to take such other actions, in each case to the extent necessary to carry
out the provisions of this Section 13.2 in the event of any breach by Tarragon Corp of its
obligations hereunder.



     Section 13.3 Northland Tag-Along Right.



               (a) If Tarragon Corp desires to sell in one or more series of related transactions 10% or more
of its Interest in the Company (a “Tarragon Sale”) to a Third Party
(the “Tarragon Buyer”), then at least thirty (30) days prior to any such sale, Tarragon Corp
shall provide to Northland Corp a notice (a “Northland Tag-Along Notice”) setting forth in
reasonable detail the terms of such sale, the percentage of its Interest in the Company that the
Tarragon Buyer wishes to purchase and identifying the name and address of the Tarragon Buyer. Upon
the written request of Northland Corp made within fifteen (15) days after the day the Northland
Tag-Along Notice is received by Northland Corp, Tarragon Corp shall cause the Tarragon Buyer to
purchase from Northland Corp the percentage of Northland Corp’s Interest equal to the lesser of (i)
the percentage of its Interest requested to be included in the Tarragon Sale by Northland Corp and
(ii) a number determined by multiplying (x) Northland Corp’s Percentage Interest by (y) the
percentage of Tarragon Corp’s Interest in the Company to be sold in the Tarragon Sale. Such
purchase shall be made on the same date and at the same price and on terms and conditions at least
as favorable to Northland Corp as the terms and conditions contained in the Northland Tag-Along
Notice delivered in connection with such proposed transaction. Northland Corp shall take all
actions which Tarragon Corp deems reasonably necessary or desirable to consummate such transaction,
including, without limitation, (i) entering into agreements with third parties on terms
substantially identical or more favorable to Northland Corp than those agreed to by Tarragon Corp
and including representations, indemnities, holdbacks, and escrows, and (ii) obtaining all consents
and approvals reasonably necessary or desirable to consummate the Tarragon Sale. Northland Corp
and Tarragon Corp shall each pay their pro rata share (based upon the Interests sold in such
transaction by Northland Corp and Tarragon Corp) of any reasonable transaction costs associated
with the Tarragon Sale.



               (b) Northland Corp shall to the fullest extent permitted by law take or cause to be taken all
such actions as may reasonably be requested by Tarragon Corp in order expeditiously to consummate
the Tarragon Sale and any related transactions, including, without limitation, executing,
acknowledging and delivering consents, assignments, waivers, agreements,



34









 







releases and other
documents or instruments, furnishing information and copies of documents, filing applications,
reports, returns, filings and other documents or instruments with governmental authorities, and
otherwise cooperating with the Company and Tarragon Corp.



     Section 13.4 Right of First Offer.



               (a) Other than with the prior written consent of the Board of Managers, if Tarragon Corp
desires to sell, in accordance with Section 10.1(b)(iii), all or any portion of its Interests in
the Company (the “Target Interests”) for cash, upon terms proposed by Tarragon Corp and that
Tarragon Corp would in good faith be willing to accept in an arm’s length transaction from a Third
Party, (“Acceptable Transfer Terms”), then Tarragon Corp shall provide Northland Corp a notice (a
“ROFO Notice”) setting forth, in reasonable detail, the terms of such sale, which ROFO Notice shall
include, without limitation, the Interests in the Company that the Selling Tarragon Members wish to
sell, the proposed cash sale price and all other material terms and conditions of such Acceptable
Transfer Terms, including closing conditions, if any. Northland Corp need not have located a
prospective transferee or have in their possession an actual offer to purchase in order to exercise
their rights pursuant to this Section 13.4 but must have at the time of the ROFO Notice a good
faith intention to sell its Interests to a Third Party on the Acceptable Transfer Terms. At any
time within thirty (30) days after the date Northland Corp receives the ROFO Notice (the “Transfer
Response Period”),
Northland Corp shall have the right, exercisable by delivery of notice in writing (the
“Transfer Election”) to Tarragon Corp, to elect one of the following:




               (i) approve the Acceptable Transfer Terms and authorize Tarragon Corp to attempt to sell
for cash the Target Interests in accordance with the Acceptable Transfer Terms; or




               (ii) elect to purchase all of the Target Interests for the cash purchase price and upon
the material terms and conditions, each as set forth in the Acceptable Transfer Terms.



               (b) Any election pursuant to subparagraph (ii) of Section 13.4(a) shall be made by (1)
delivering to Tarragon Corp the Transfer Election, which shall affirmatively state that Northland
Corp is exercising such option, and (2) depositing in an escrow account at a bank or other
financial institution selected by Northland Corp (the “Transfer Escrow Agent”), an earnest money
deposit in cash equal to 3% of the purchase price (the “Transfer Escrow Deposit”). Within ninety
(90) days after the date of the election by Northland Corp to purchase the Target Interests or such
earlier date as Northland Corp may specify on at least ten (10) days prior written notice to
Tarragon Corp, Northland Corp and Tarragon Corp shall close the purchase of the Target Interests,
and Tarragon Corp shall assign the Target Interests to Northland Corp, against receipt of payment
of the cash purchase price. All closings of any purchase and sale under this Section 13.4 will be
held at the Company’s principal office. All transfer, stamp and recording taxes imposed on the
sale shall be allocated to Tarragon Corp. All other closing costs shall be allocated 50% to
Tarragon Corp and 50% to Northland Corp, except as otherwise allocated between the seller and the
purchaser in the Acceptable Transfer Terms and except that, in any event, Tarragon Corp and
Northland Corp shall each be responsible for and pay their own attorneys’ fees.



35









 





               (c) If during the Transfer Response Period Northland Corp fails to make the election among
clauses (i) and (ii) required by Section 13.4(a), then Northland Corp shall be deemed to have
approved a Sale of the Target Interests pursuant to clause (i) of Section 13.4(a), for a cash
purchase price not less than 95% of the purchase price set forth in the Acceptable Transfer Terms
and substantially upon the material terms, conditions and provisions set forth in the Acceptable
Transfer Terms.



               (d) If Northland Corp authorizes or is deemed to have authorized the Transfer of the
applicable Target Interests pursuant to the terms described above, and Tarragon Corp thereafter
receive a bona fide all cash offer for the purchase of the Target Interests from any purchaser for
a purchase price which is at least equal to 95% of the purchase price set forth in the Acceptable
Transfer Terms and substantially upon the material terms, conditions, and provisions set forth in
the Acceptable Transfer Terms, Tarragon Corp may consummate the sale of the applicable Target
Interests on such terms, without the approval of the Board of Managers; provided,
however, that such sale must be consummated within one hundred twenty (120) days after the
date on which Northland Corp approved or was deemed to have approved such sale and must be in
accordance with the terms, conditions, and provisions set forth in the Acceptable Transfer Terms.
If such sale does not occur within the 120-day period referred to in the immediately preceding
sentence or in compliance with the terms, conditions and provisions set
forth in the Acceptable Transfer Terms, Tarragon Corp will be required to again deliver to
Northland Corp an additional ROFO Notice and to again follow the procedures set forth in this
Section 13.4 before consummating any sale.



               (e) If Northland Corp defaults in its obligation to purchase any Target Interests pursuant to
the terms of this Section 13.4, the sole and exclusive remedy for such default shall be the
immediate delivery to Tarragon Corp by the Transfer Escrow Agent of the Transfer Escrow Deposit
(such amount shall not be deemed to be a contribution or distribution of capital, or affect in any
way the Capital Account of any Member, the allocation provisions or any other equity provisions of
this Agreement).



ARTICLE XIV




AMENDMENTS




     Section 14.1 Amendment to be Adopted Solely by the Board of Managers. Each Member
agrees that the Board of Managers, without the approval of any Member, any holder of Interests or
any other Person, may amend any provisions of this Agreement and execute, swear to, acknowledge,
deliver, file and record whatever documents may be required in connection therewith.



     Section 14.2 Amendments Requiring Member Approval. Notwithstanding Section 14.1, the
Board of Managers shall not amend this Agreement, by merger, consolidation, conversion or
otherwise, if such amendment shall materially and adversely impair or alter the legal or economic
rights, preferences, privileges or obligations of the Members without the consent of each Member
materially and adversely affected by such amendment; provided, however, that the
Board of Managers shall be authorized to amend this Agreement, by merger, consolidation, conversion
or otherwise even if such amendment shall materially and adversely



36









 







impair or alter the legal
rights, preferences, privileges or obligations of a Member without the consent of such Member
materially and adversely affected by such amendment, but only if such amendment (i) does not
materially and adversely impair or alter the economic rights, preferences, privileges or
obligations of such Member, (ii) such Member receives the same consideration and is afforded the
same rights as other Members holding the same class of Interests and (iii) such amendment is being
effected in connection with a transaction that in the reasonable judgment of the Board of Managers
is part of an overall plan designed to enhance the liquidity of the Interests of the Member. In
addition, no amendment (by merger, consolidation, conversion or otherwise), without the consent of
such Member, shall obligate a Member to make additional contributions to the Company, adversely
affect the limited liability of a Member, otherwise increase the liabilities or legal obligations
of a Member or reduce the distributions payable to a Member that is disproportionate relative to
other Members of the same class. The Board of Managers may, with the consent of any affected
Member, and without the approval of any other Member, amend this Agreement in a manner that affects
adversely solely such consenting Member. This Article XIV may not be amended (by merger,
consolidation, conversion or otherwise) without the consent of each Member. In addition,
notwithstanding anything to the contrary contained in this Article XIV, any other provision of
this Agreement that permits or requires the vote, election or consent of a certain Percentage
Interest of a specified group of Members, or the Board of Managers, may only be amended with the
consent of the Board of Managers and of such Percentage Interest of such specified group of
Members.



ARTICLE XV




MISCELLANEOUS




     Section 15.1 Further Assurances. The Members agree to execute such instruments and
documents as may be required by law or which the Board of Managers reasonably deems necessary or
appropriate to carry out the intent of this Agreement so long as they do not alter the rights and
obligations of the Members under this Agreement.



     Section 15.2 Successors and Assigns. The agreements contained herein shall be binding upon
and inure to the benefit of the permitted successors and assigns of the respective parties hereto.



     Section 15.3 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.



     Section 15.4 Severability. The determination that any one or more of the provisions of
this Agreement is unenforceable shall not affect the enforceability of the other provisions of this
Agreement.



     Section 15.5 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Agreement binding on the parties hereto.



     Section 15.6 Entire Agreement. Except as provided below in this Section 15.6 this
Agreement represents the entire agreement among the parties hereto with respect to the subject



37









 







matter hereof. The Company may enter into agreements with one or more Members amending,
interpreting, supplementing or otherwise modifying the terms of this Agreement. Each such
agreement shall be deemed to be a part of this Agreement solely with respect to the applicable
Members.



     Section 15.7 Construction. The captions used in this Agreement are for convenience only
and shall not affect the meaning or interpretation of any of the provisions of this Agreement. As
used herein, the singular shall
include the plural, the masculine gender shall include the feminine and neuter, and the neuter
gender shall include the masculine and feminine, unless the context otherwise requires. The words
“hereof”, “herein”, and “hereunder”, and words of similar import, when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this Agreement. All
references to Sections, Articles, Exhibits or Schedules are to Sections, Articles, Exhibits or
Schedules of or to this Agreement. The terms “include” and “including” are to be construed as if
followed by the phrase “without limitation”, regardless whether such phrase actually appears.



     Section 15.8 Force Majeure. If any Member, the Company or the Board of Managers is delayed
by causes beyond its reasonable control in performing any act which this Agreement requires be
performed by a specified time, such Member, the Company or the Board of Managers, as the case may
be, shall be entitled to such additional time to perform such act as is reasonable in light of such
delay. This provision shall not relieve the Members, the Company or the Board of Managers from the
obligation to perform any such act.



     Section 15.9 Notices. All notices, demands, solicitations of consent or approval, and
other communications hereunder shall be in writing and shall be sufficiently given if personally
delivered, transmitted by facsimile, sent by electronic transmission or sent postage prepaid by
overnight courier or registered or certified mail, return receipt requested, addressed as follows:
if intended for the Company, to the Company’s principal office determined pursuant to Section 1.5,
and, if intended for Northland Corp, to Northland Investment Corporation, 2150 Washington Street,
Newton, Massachusetts 02462, Attention: Steven Rosenthal and Suzanne Abair, Facsimile: (617)
630-7201; with a copy to Goodwin Procter LLP, Exchange Place, Boston, Massachusetts 02109,
Attention: Gilbert G. Menna and Suzanne D. Lecaroz, Facsimile: (617) 523-1231, and for Tarragon
Corp to Tarragon Corporation, 1775 Broadway, 23rd Floor New York, New York 10019,
Attention: William Friedman, Facsimile: (212) 949-8001; with a copy to Tarragon Corporation, 3100
Monticello Avenue, Suite 200, Dallas, Texas 75205, Attention: Kathryn Mansfield, Executive Vice
President and General Counsel, Facsimile: (214) 599-2250; and a copy to Jones Day, 222 East
41st Street, New York, New York 10017, Attention Kent R. Richey, Facsimile: (212)
755-7306, and, if intended for Ansonia LLC, c/o APA Management, LLC, 131 East 36th
Street, New York, New York 10016, Facsimile:                     , Attention: Richard S. Frary, with a copy
to Holland & Knight LLP, 195 Broadway, New York, New York 10007, Facsimile: (212) 341-7292,
Attention: Jim Spitzer, Esq., or to such other address as such Member designate from time to time
by written notice to the Company. Notices shall be deemed to have been given when personally
delivered or when transmitted on a Business Day by electronic transmission with confirmation of
receipt or by facsimile with machine-generated confirmation of transmission without notation of
error, if sent before 5:00 p.m. local time of the recipient, otherwise the following Business Day,
or, if mailed or sent by overnight courier, on the date on which received.



38









 





     Section 15.10 No Right of Partition or Redemption. No Member and no successor-in-interest to any Member shall have the right to have the property
of the Company partitioned, or, except as otherwise provided in this Agreement or as the Board of
Managers may agree, to require the redemption of its interest in the Company.



     Section 15.11 Third-Party Beneficiaries. The provisions of this Agreement are not intended
to be for the benefit of any creditor or other person to whom any debts or obligations are owed by,
or who may have any claim against, the Company, its Subsidiaries or any of its Members, except for
Members, in their capacities as such. Notwithstanding any contrary provision of this Agreement, no
such creditor or person shall obtain any rights under this Agreement or shall, by reason of this
Agreement, be permitted to make any claim against the Company, its Subsidiaries or any Member.



[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]




39









 





     IN WITNESS WHEREOF, each of the Members has executed this Limited Liability Company Agreement
of Northland Properties Management LLC as of the date first written above.



	 	 	 	 	 
	 	NORTHLAND INVESTMENT CORPORATION

 	 
	 	By:  	/s/ Steven P. Rosenthal
 	 
	 	 	Name:  	Steven P. Rosenthal 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	TARRAGON CORPORATION

 	 
	 	By:  	/s/ William S. Friedman
 	 
	 	 	William S. Friedman 	 
	 	 	Chief Executive Officer 	 
	 



Northland Properties Management LLC Agreement Signature Page




 









 








Exhibit C




 









 








Exhibit A




ACTIONS REQUIRING UNANIMOUS APPROVAL



(1) Any amendment to Section 1.4 relating to the purpose of the Company.



(2) Any transaction that would affect the economic interests of Tarragon Corp in a manner that is
adversely disproportionate in any material respect, relative to the effect on the corresponding
economic interests of Northland Corp, other than any adjustment provided for in the definition of
“Percentage Interest”.



(3) Any additional capital call pursuant to Section 5.2.




Exhibit A





 









 








Exhibit B




INITIAL BOARD MEMBERS




Tarragon Board Members:




     William S. Friedman




     Robert Rothenberg




Northland Board Members:




     Lawrence Gottesdiener




     Steven Rosenthal




     As selected by Northland Corp




Exhibit B





 









 












Exhibit C




MANAGEMENT
AGREEMENT





     THIS MANAGEMENT AGREEMENT (“Agreement”) is made as of March 31, 2008 by and between TARRAGON
CORPORATION, A Nevada corporation (“Tarragon”) with and on behalf of the affiliated entities listed
on Exhibit A-1 attached hereto (the “Tarragon Subsidiaries”) and the property managers
listed on Exhibit B-1 (the “Tarragon Managers”), Northland Investment Corporation (“NIC”),
the affiliates of NIC identified as Northland Contributors listed on the signature pages attached
hereto (collectively with NIC, “Northland”) with and on behalf of the affiliated entities listed on
Exhibit A-2 attached hereto (collectively the “Northland Subsidiaries” and collectively
with Northland, the Tarragon Subsidiaries, the Tarragon Managers and Tarragon, “Owner”) and
NORTHLAND PROPERTIES MANAGEMENT LLC, a Delaware limited liability company (“Manager”).



W I T N E S S E T H




     WHEREAS, Tarragon and affiliates of Northland have agreed to form Northland Properties LLC
(the “Joint Venture’)



     WHEREAS, The Subsidiaries are the owners of the apartment complexes described on Exhibit C-1
attached hereto (the “Tarragon Properties”) and the Northland Subsidiaries are the owners of the
apartment complexes as described on Exhibit C-2 attached hereto (the “Northland Properties
and collectively with the Tarragon Properties, the “Property”);



     WHEREAS, as part of the formation of the Joint Venture, Tarragon will contribute the equity
interests in the Tarragon Subsidiaries (or otherwise contribute the beneficial interests in the
Tarragon Properties ) to the Joint Venture and affiliates of Northland will contribute the equity
interest in the Northland Subsidiaries (or otherwise contribute the beneficial interests in the
Northland Properties) to the Joint Venture, which agreements are set forth in a Contribution
Agreement which is being entered into contemporaneously herewith,



     WHEREAS, the terms of the limited liability company agreement of the Joint Venture provide
that Manager shall provide property management and other services for the Property,



     WHEREAS, certain of the Tarragon Properties are currently managed by Tarragon or its
affiliates pursuant to the Management Agreements as listed on Exhibit B-1,



     WHEREAS, certain of the Northland Properties are currently managed by NIC or its affiliates
pursuant to the Management Agreement as listed on Exhibit B-2,



     WHEREAS, there are certain conditions that need to be satisfied prior to Tarragon and
Northland (and/or their affiliates, as applicable) entering into the Joint Venture,



1









 





     WHEREAS, Northland and Tarragon have agreed that in the interim period prior to execution of
the Joint Venture the parties desire that Manager manage the Properties (and/or sub manage the
Properties, and



     WHEREAS, Manager is in the business of acting as manager for facilities similar to the
Property and is ready, willing and able to act as a manager for the Property pursuant to the terms
hereof.



     NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and
covenants herein made and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Owner and Manager hereby agree as follows:



     1. Appointment. Owner hereby appoints Manager and Manager hereby accepts appointment,
on the terms and conditions hereafter provided, as the exclusive managing agent to maintain,
operate, manage, supervise, rent and lease the Property (or to act as the sub-manager to the
Tarragon Managers or NIC, as applicable) .



     2. Duties of Manager. Manager is hereby charged with the sole and exclusive
management and leasing of the Property, (or to act as the sub-manager to the Tarragon Managers or
NIC, as applicable in performing such duties) and shall provide Owner with the services customarily
provided in such instances, including, but not limited to, the services specifically provided for
herein other than “extraordinary services” (as defined in Section 2.14) and shall do and perform
any and all things reasonably necessary for the pleasure, comfort, service and convenience of the
tenants and for the ownership, operation, maintenance, repair and leasing of the Property, subject
to the budgets, policies and limitations imposed by Owner, and applicable laws, rulings,
regulations and orders of governmental authorities having jurisdiction over the Property and its
tenants. All services shall be performed in a diligent and professional manner in accordance with
recognized standards of the property management industry applicable to properties similar to the
Property. The duties of Manager shall include, but not be limited to the following:



          2.1 Leasing and Collection. Manager shall be the leasing agent of Owner with respect
to the Property and in connection therewith Manager shall (i) advertise the availability for
rental of the Property or any part thereof, and display for that purpose signs thereon; (ii) on
behalf of Owner, in Manager’s own name or in the name of Owner, with prior consent of Owner,
execute, sign, renew and cancel leases or other tenancy agreements, under seal or otherwise; (iii)
collect rents and other charges due or to become due from tenants and give receipts therefor; (iv)
terminate tenancies and sign and serve in the name of Owner or its own name such notices as are
appropriate in connection with such terminations; (v) after notification to Owner, institute and
prosecute actions to evict tenants and recover possession of leased premises and to recover rents
and other sums due; and (vi) when expedient, with Owner’s consent, settle, compromise and release
such actions or suits
or reinstate such tenancies. Nothing herein contained shall constitute a guaranty by Manager of
the payment of rent or other obligations of the tenants of the Property.




2









 








          2.2 Books and Records. Manager shall maintain adequate and separate books and
records in connection with its management and operation of each apartment complex comprising the
Property. Owner shall have the right to examine such books and records at the Property, or at
Manager’s principal office upon reasonable prior notice to Manager. Manager shall render to
Owner, on or before the twenty-fifth (25th) day of each month, commencing on May 25, 2008, a
statement for the Property of the receipts and disbursements for the preceding month, and a
statement of cash flow for the preceding month, and such other reports and statements as Owner may
reasonably request from time to time. Owner may, at its sole cost and expense, cause the books
and records of the Property to be audited at Manager’s principal office upon reasonable prior
notice to Manager.




          2.3 Preparation of Employee Forms. Manager shall prepare and file in a timely fashion
all forms and reports necessary in connection with Owner’s employees at the Property, including,
but not limited to, unemployment insurance, withholding taxes and social security taxes for
permanent or temporary employees.




          2.4 Hiring and Supervision. Manager shall hire, pay, supervise and discharge the
cleaning, maintenance, repair, security and other personnel, who shall be screened and qualified by
training and experience to perform their assigned tasks, or companies which will perform such
services (“Personnel”) necessary to keep the Property maintained, serviceable and properly
operational. Manager may, in Manager’s sole discretion, either:





     (i) employ and/or discharge such Personnel itself;




     (ii) contract with another entity for the provision of Personnel, where such
contractor shall be the employer of the Personnel; or




     (iii) use a combination of these methods as to different portions of Personnel.



     Manager may perform any of its duties through or seek advice or services from brokers,
attorneys, or agents, and shall not be responsible for their acts, defaults, or negligence
if reasonable care has been exercised in their appointment and retention.



          2.5 Maintenance and Operation Contracts. Manager shall maintain the Property in good
condition and repair provided that Owner makes adequate funds available to Manager. Manager, as
Owner’s agent, shall enter into such contracts as are reasonably necessary for the maintenance and
repair of, and services to, the Property. Except with
respect to such emergency situations, Manager shall not, without the prior consent of Owner, incur
any capital expenditures which are not contained in the approved annual budget or otherwise
approved by Owner.




3









 








          2.6 Annual Budget. Prior to the beginning of each calendar year, Manager shall
prepare and submit to Owner a budget for the operation of the Property for the following calendar
year. The budget shall be subject to the reasonable review and approval of Owner, and Manager
agrees to make modifications thereto as Owner shall reasonably deem necessary. Upon approval by
Owner, such budget shall constitute the approved operating budget for the succeeding calendar year.
In the event that Owner fails to approve a budget, Manager is hereby authorized to continue
operating the Property under the budget in effect for the immediately preceding calendar year
(subject only to non-discretionary changes and expenses such as taxes, utilities and insurance)
until such time as an approved budget shall be adopted by Owner.




          2.7 Insurance. If requested by Owner, Manager shall cause to be placed and kept in
force, at Owner’s expense, such insurance coverage as is requested by Owner, which shall be placed
with companies, with such limits of coverage and deductibles as shall be reasonably acceptable to
Owner and any mortgagee having a security interest in the Property (each a “Mortgagee”). All
policies of insurance shall name Owner, Manager, and any Mortgagee as named insureds thereunder.
Manager shall promptly investigate and report to Owner and to any insurance companies providing
coverage therefor, incidents and claims for damage relating to the ownership, operation and
maintenance of the Property and any damage to or destruction of the Property. Manager is
authorized to settle any and all claims against insurance companies not in excess of One Hundred
Thousand Dollars ($100,000.00) arising out of any policies, and to satisfy the requirements or
conditions imposed by the insurance companies necessary to allow for payment of claims including,
but not limited to, execution of proof of loss, the adjustment of losses, signing of receipts and
collection of proceeds. Manager shall, at Owner’s expense, maintain workers’ compensation
insurance covering all employees of Manager and Owner employed in, on or about the Property so as
to provide statutory benefits required by state and/or federal laws. The cost of such insurance
shall be paid by Owner.




          2.8 Bank Accounts. Manager, on behalf of Owner, shall maintain in Owner’s name, a
separate bank account for the Property for which Manager and Owner shall be the sole parties
authorized to draw funds. Manager agrees to deposit in such bank account all cash, rental receipts
and other funds collected from the operation of the Property, other than apartment security
deposits, subject to the provisions hereof. To the extent funds are available in the bank account
for the Property, Manager shall pay therefrom: (i) all expenses incurred by Manager in the
operation and maintenance of the Property pursuant hereto and in accordance herewith, (ii) the
costs of replacements, renovations and capital improvements, real estate taxes, ad valorem taxes
and for any non-recurring expenditures or other item authorized under the terms of this Agreement
or by Owner, (iii) Manager’s compensation as provided herein, (iv) such amounts necessary to
establish reserves for contingencies and nonrecurring expenses as may be agreed upon by Manager and
Owner, (v) installments of principal and interest and any other costs and expenses due under any
mortgage or deed of
trust encumbering the Property. In the event that the funds in the account are at any time
insufficient to cover the items specified in clauses (i) through (v) above, Owner shall deposit in
the account additional funds necessary to satisfy the foregoing obligations. Nothing contained
herein shall obligate Manager at any time to use its own funds to cover operating



4









 






deficits for the
Property. Nothing contained herein shall be deemed to prohibit Manager from maintaining petty cash
funds and to make payments therefrom in accordance with customary property management practices.




          2.9 Escrow Account. Manager shall establish and maintain an escrow account in Owner’s
name for apartment security deposits, if required by state, county or municipal law, regulation or
order, and shall oversee the investment of such account and of any reserve accounts hereunder
established.




          2.10 Site Visits. Manager shall arrange for its supervisory employees, agents and
consultants to visit the Property at such times as Manager deems reasonably appropriate as required
to carry out its duties hereunder. The cost for such site visits, including, but not limited to,
costs of travel, lodging and meals shall be borne by Owner as an operating expense of the Property.




          2.11 Equipment and Supplies. Manager shall purchase, at Owner’s expense, reasonable
quantities of operating supplies, replacement parts, tools, equipment, appliances, goods and
expendable items which shall be reasonably necessary or desirable for Manager to perform its duties
in accordance with the terms and provisions of this Agreement, including the cleaning, maintenance,
upkeep, replacement, refurbishing and preservation of the Property. Such purchases shall be
consistent with and in accordance with the approved Budget then in effect.




          2.12 Tax Returns. Manager shall assist in the preparation of Owner’s tax returns.
Owner shall be responsible for the preparation and filing of tax returns and annual reports and the
payment of all income taxes, property taxes (both real and personal property), franchise taxes and
taxes on its employees’ wages.




          2.13 Intentionally Omitted.




          2.14 Extraordinary Services. At Owner’s request and for additional compensation to be
determined by Owner and Manager on a case-by-case basis, Manager or an affiliate of Manager, shall
provide, or cause to be provided, certain services outside of the scope of services otherwise
provided herein in connection with the Property.




     3. Duties of Owner. During the term of this Agreement, Owner shall provide Manager
with (i) a complete set of architectural, mechanical, electrical and site plans as soon as
practicable after the commencement of the term of this Agreement, to the extent that such plans
exist and are available and (ii) timely decisions, information and consultations as necessary to
permit Manager to perform its duties hereunder and reasonably cooperate with Manager so as to
facilitate Manager’s performance of its duties hereunder.



     4. Charges. Notwithstanding anything herein to the contrary, it is specifically
understood that Manager does not undertake to pay any expenses of the Property from its own funds
and shall only be required to perform its services and make disbursements to the extent that, and
so long as, payments received from the revenue, if any, of the Property, or



5









 







from Owner, shall be
sufficient to pay the costs and expenses of such services and the amounts of such disbursements.
If it shall appear to Manager that such revenues, if any, of the Property are insufficient to pay
the same and to adequately fund reserves, the Manager shall promptly so notify the Owner in detail
of that fact and request the Owner to provide sufficient funds to pay such costs, expenses and
disbursements.



     5. Manager’s Compensation.



          5.1 Fee for Services. Owner shall pay Manager as full compensation for its property
management services as Manager under this Agreement an amount per annum (or otherwise as set forth
therein) as provided below in this sub-paragraph and in Exhibit E (“Management Fee”). It
is also anticipated that Manager shall be engaged by Owner to perform construction management,
asset management, real estate brokerage, financing and development services. Owner and Manager
shall negotiate in good faith reasonable fees for such services and Owner acknowledges that to the
extent that the Board of Managers of Manager (on which Tarragon or its affiliates has certain
representation rights) approves such additional services to be rendered and a fee structure in
connection therewith, such fees shall be deemed approved by Owner.




          5.2 Reimbursement for Expenses. The foregoing Management Fee shall be in addition to
amounts reimbursed for costs and expenses incurred by Manager for Owner’s account. Manager shall
be reimbursed for all expenses and disbursements made for the account of Owner in accordance with
the terms of this Agreement and the approved budget promptly after submission of an invoice for
reimbursement.




          5.3 Overhead. The overhead expenses of Manager’s corporate office are included in the
Management Fee. Such overhead expenses shall include maintenance of the Property’s records and
books, rent and insurance costs, as well as the salaries, office expenses, and all other expenses
of management personnel and associated clerical support staff not allocable to the Property’s
day-to-day operations or oversight. Notwithstanding the foregoing, a charge for property
accounting and information systems functions performed and/or located at the Manager’s corporate,
regional or satellite offices, legal, human resources, informational technology, insurance
procurement and/or other similar services rendered to or for the benefit of the Property and/or
other properties may be reasonably allocated by Manager to and/or among the Property and/or such
other properties and the amount thereof so allocated to the Property shall be separately invoiced
to, and reimbursed by, the Owner/Property. Similarly, if Manager has a regional office that
supports or provides services to the Property, Manager shall have the right to reasonably allocate
to the Property the Property’s share of the expenses of such office (including the salaries and
expenses of personnel) and the amount thereof so allocated to the Property shall be separately
invoiced to, and reimbursed by, the Owner/Property. The Management Fee does not include on-site
costs, i.e. salaries of property managers or general managers, secretary and other on-site
office expenses for daily building operations and the salaries of the Personnel (as evidenced
by certified payrolls) and other reasonable expenses of the Property which shall be separately
invoiced to, and reimbursed, by the Owner/Property. All
such salaries and other expenses incurred
for the exclusive benefit of the Property shall be paid by the Owner/Property. All



6









 






undertakings by
Manager pursuant to the provisions of Section 2 shall be performed as Manager of the Property, and
all obligations or expenses authorized and incurred thereunder, except as otherwise provided in
this Agreement, shall be for the account, on behalf of, and at the expense of the Owner.




          5.4 Intentionally Omitted.




          5.5 Payments Net of Sales Taxes. All payments by Owner to Manager under or pursuant
to this Agreement (including, without limitation, the Management Fee) shall be net of applicable
sales taxes that Owner agrees to pay to the applicable taxing authority; provided, however, that if
Manager pays or is required by law to pay such sales taxes, Owner shall reimburse or pay Manager
such sales taxes.




     6. Term and Termination.



          6.1. Term and Termination. This Agreement shall commence as of the date hereof and
shall continue until December 31, 2008 unless earlier terminated upon the occurrence of any of the
following events:




          (i) Cause. By either party at anytime, for cause. “Cause” shall mean the material
failure by either Manager or Owner, as the case may be, without reasonable cause, to perform their
respective obligations hereunder for a period of thirty (30) days after written notice from the
other party, specifying in detail the act or acts deemed to be in violation; provided, however,
that if the violation cannot be cured within such thirty (30) day period, and Owner’s interest in
the Property and its rents are not jeopardized, then this Agreement shall nevertheless continue in
effect so long as the defaulting party has commenced curing the violation in good faith, promptly
after the receipt of such notice, and is diligently pursuing same to a conclusion.




          (ii) Manager. By Manager, upon thirty (30) days prior written notice.




          (iii) Joint Venture. Upon the consummation of the Joint Venture and the entering into
of property management agreements between the Joint Venture (or its subsidiaries) and Manager with
respect to the Property.




          6.2 Payments Due Upon Termination. In all events, upon any termination, whenever it
shall occur and for whatever reason, Manager shall be reimbursed for all amounts expended or
accrued on behalf of the Property pursuant to this Agreement.




          6.3 Intentionally Deleted.




          6.4 No Prejudice. The termination of this Agreement shall not prejudice the rights of
either party against the other for any accrued default or breach of this Agreement.





7











 





     7. Indemnification. If either party is a limited liability company, partnership,
trust or corporation, no member or manager of such limited liability company, nor general or
limited partner of such partnership nor trustee or beneficiary of any trust nor shareholder,
officer or director of any corporation shall be personally liable to the other party. Manager
shall not be liable for any act or omission whatsoever of any agent or representative or for
Manager’s negligence or error in judgment, except for its willful misfeasance, bad faith, or gross
negligence in the conduct of its duties. Owner shall indemnify and save harmless Manager from and
against any and all liabilities, claims, damages, costs and expenses (including reasonable
attorney’s fees) to which Manager may become subject by reason of or arising out of the performance
or non-performance of its duties as Manager under this Agreement (collectively, “Liabilities”);
provided, however, that no such right or indemnity shall exist with respect to any Liabilities
shall be made, and Manager shall indemnify Owner against, and shall hold Owner harmless from, any
Liabilities which may be incurred by reason of Manager’s willful misfeasance, bad faith, or gross
negligence in the conduct of its duties. Notwithstanding the foregoing, Owner agrees to indemnify,
hold harmless and defend Manager, its agents and employees from and against any Liabilities arising
in connection with any kind of suit for discrimination brought against Manager by a tenant,
potential tenant, discrimination “tester”, governmental agency, or other party unless it is
established by a court of competent jurisdiction that it was Manager’s policy to engage in the
discriminatory practice(s) on which such Liabilities are based. For purposes of determining
liability for actions of employees, all employees whose compensation is paid by Owner (generally
from the Property’s operating funds) shall be deemed employees of Owner. It is expressly
understood that the indemnification provisions of this Section 7 shall survive the expiration or
termination of this Agreement.



     8. Commitment of Manager. It is understood and agreed that Manager shall devote such
time as may be required for the good and proper management of the Property. Notwithstanding the
foregoing, Manager shall be at liberty to manage property for the account of other owners and to
engage in the same or other businesses for its own account or as agent or contractor for others
without being in violation of the terms of this Agreement.



     9. Miscellaneous.



          9.1 Notices. All notices provided for in this Agreement shall be in writing and
delivered by hand delivery, overnight delivery service, facsimile or by registered or certified
mail, postage prepaid, at the following addresses:




     Owner:


c/o Northland Investment Corporation

2150 Washington Street

Newton, MA 02462

Attn:




     and


Tarragon Corporation

423 West 55th Street — 12th Floor

New York, NY 10019

Attn: William S. Friedman




8









 








     with copies to:


Tarragon Corporation

3100 Monticello – Suite 200

Dallas, TX 75205

Attn: Kathryn Mansfield, Esq.




     Manager:


c/o Northland Investment Corporation

2150 Washington Street

Newton, MA 02462

Attn:




     and


Tarragon Corporation

423 West 55th Street — 12th Floor

New York, NY 10019

Attn: William S. Friedman




     with copies to:


Tarragon Corporation

3100 Monticello – Suite 200

Dallas, TX 75205

Attn: Kathryn Mansfield, Esq.



Either party may change its address for notice by giving notice to the other in the manner as
herein provided.




          9.2 Benefits and Burdens. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective representatives, successors and permitted
assigns.




          9.3 Entire Agreement. This Agreement is the entire agreement between the parties
hereto with respect to the subject matter hereof, and no alteration, modification or interpretation
hereof shall be binding unless in writing and signed by both parties.




          9.4 Severability. If any provisions of this Agreement or application to any party or
circumstance shall be determined by any court of competent jurisdiction to be invalid and
unenforceable, each other provision hereof shall continue to be deemed valid and shall be
enforceable to the fullest extent permitted by law.




          9.5 No Joint Venture. Nothing contained herein shall be deemed to render Manager and
Owner as joint venturers or partners of each other or to make either party hereto




9









 







the agent of the
other party and neither party shall have the power to bind or obligate the other party except in
accordance with the terms of this Agreement. Nothing contained herein shall deprive or otherwise
affect the right of either party to own, invest in, manage, or operate, or to conduct business
activities which compete with the business of the Property.




          9.6 Applicable Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts.




          9.7 Captions. The captions contained herein are for convenience only and shall not be
deemed to have substantive meaning.




(Signature page follows)




10









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under the
seal as of the date first above written.



	 	 	 	 	 	 	 
	 	 	Tarragon Corporation, individually and on behalf of
the Tarragon Subsidiaries	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ William S. Friedman
 

William S. Friedman
	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Northland Properties Management LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Steven Pr. Rosenthal
 

Steven P. Rosenthal
	 	 
	 

	 	Title:
	 	President and Treasurer	 	 






	 	 	 	 	 	 	 	 	 
	 	 	NORTHLAND CONTRIBUTORS,

individually and on behalf of the Northland
Subsidiaries:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Northland Portfolio L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	Northland Portfolio Partners LLC, Its

General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Steven P. Rosenthal
 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Northland Fund L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	Northland Fund I Partners L.P., Its

General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	By: Northland Fund I Partners, Inc., Its

General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Steven P. Rosenthal
 

	 	 






11









 








	 	 	 	 	 	 	 	 	 
	 	 	Northland Fund II, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	Northland Fund II Partners LLC, Its

General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Steven P. Rosenthal	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Northland Fund III, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	Northland Fund III Partners LLC, Its

General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 /s/ Steven Pr. Rosenthal
 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Northland Investment Corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Steven P. Rosenthal
 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Northland Austin Investors LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Steven P. Rosenthal
 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Austin Investors L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	Northland Austin Partners LLC, Its

General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By: 	 	/s/ Steven P. Rosenthal
 

	 	 





12









 










	 	 	 	 	 	 	 	 	 
	 	 	Drake Investors L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	Northland Drake Partners LLC, Its

General Partner 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Steven P. Rosenthal
 

	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Tatstone Investors L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	Northland Tatstone Partners LLC, Its	 	 
	 

	 	 	 	 	 	General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 /s/ Steven P. Rosenthal
 

	 	 






13









 






EXHIBIT A-1

TARRAGON SUBSIDIARIES




	 
	Owner of Record

	Tarragon Corporation

	National Income Realty Investors, Inc.

	Tarragon Development Company LLC

	RI Panama City LLC

	Ansonia Apartments, L.P.

	Gull Harbor MGR, Inc.

	Gull Harbor Apts, L.L.C.

	Ansonia MezzCo, LLC

	Ansonia Acquisitions I, L.L.C.

	Ansonia Liberty, LLC

	Autumn Ridge Apartments, LLC

	Danforth Apartment Owners, L.L.C.

	Dogwood Hills Apartments, L.L.C.

	Forest Park Tarragon, LLC

	Hamden Centre Apartments, L.L.C.

	Heron Cove National, Inc.

	Ocean Beach Apartments, LLC

	Plantation Bay Apartments, L.L.C.

	Stewart Square National, Inc.

	Summit/Tarragon Murfreesboro,
LLC

	Tarragon Huntsville Apartments,
L.L.C.

	Tarragon Savannah I, L.L.C.

	Tarragon Savannah II, L.L.C.

	TRI Woodcreek, Inc.

	Woodcreek Garden Apartments, a
California limited partnership

	Manchester Tarragon, LLC

	Vintage National, Inc.

	Heather Limited Partnership

	West Dale National Associates,
L.P.

	Vintage Legacy Lakes National,
L.P.

	Woodcreek National, L.C.

	Vinland Property Investors, Inc.

	SO. Elms National Associates Limited Partnership

	French Villa Apartments, L.L.C.







 









 






	 
	Owner of Record

	French Villa National Associates Limited Partnership

	Tarragon Limited, Inc.

	Vinland Aspentree, Inc.

	Mustang National, Inc.

	Mustang Creek National, L.P.

	Summit on the Lake Associates, Ltd.







 









 






EXHIBIT A-2

NORTHLAND SUBSIDIARIES




ENTITIES OWNED BY NORTHLAND PORTFOLIO L.P.





Northland Bigelow Commons LLC—Limited Liability Company Agreement dated as of February 7, 2008




Northland Boulders LLC – Operating Agreement dated as of July 20, 2007, as amended




Northland Cliffside LLC – Operating Agreement dated as of July 20, 2007, as amended




Northland Hilands I LLC—Limited Liability Company Agreement dated as of February 8, 2008




Northland Hilands II LLC—Limited Liability Company Agreement dated as of February 8, 2008




Northland Pavilions LLC—Limited Liability Company Agreement dated as of July 18, 2001, as
amended




Northland Plantation Club LLC—Limited Liability Company Agreement dated as of February 8, 2008




Northland Promontory LLC—Limited Liability Company Agreement dated as of February 8, 2008




Northland Randolph Park LLC – Operating Agreement dated as of October 24, 2003, as amended




Southern Tier Randolph Park Incorporated




Northland Sunbelt LLC—Amended and Restated Limited Liability Company Agreement dated as of July
23, 2003, as amended




Northland The Park LLC – Operating Agreement dated as of October 24, 2003, as amended




Southern Tier The Park Incorporated




Southeast Brittany/Bay Club Limited Partnership – Third Amended and Restated Agreement of
Limited Partnership dated as of October 24, 2003, as amended




Southern Tier Brittany Incorporated




Southeast Del Oro Limited Partnership—Second Amended and Restated Agreement of Limited
Partnership dated as of January 17, 2002, as amended




Southern Tier Del Oro Incorporated




Southern Tier Candlewood/Coppermill Limited Partnership – Third Amended and Restated Agreement
of Limited Partnership dated as of October 24, 2003, as amended




Southern Tier Candlewood Incorporated



 









 






Southern Tier Country Club Limited Partnership—First Amended and Restated Agreement of Limited
Partnership dated as of January 17, 2002, as amended




Southern Tier Country Club Incorporated




Southern Tier Royal Crest Limited Partnership—First Amended and Restated Agreement of Limited
Partnership dated as of January 17, 2002, as amended




Southern Tier Royal Crest Incorporated




Southern Tier Southeast Portfolio Limited Partnership—Second Amended and Restated Agreement of
Limited Partnership dated as of January 17, 2002, as amended




Southern Tier Southeast Incorporated




Northland Pavilions Intermediate LLC—Limited Liability Company Agreement dated as of February 8,
2008



 









 





ENTITIES OWNED BY NORTHLAND FUND L.P.



Northland Gleneagles LLC – Operating Agreement dated as of April 5, 2007



Northland Governor’s Point LLC – Operating Agreement dated as of February 22, 2005



Northland Great Hills L.P. – Agreement of Limited Partnership dated as of January
19, 2005



Northland Hickory Farm LLC – Operating Agreement dated as of April 5, 2007



Northland High Oaks L.P. – Agreement of Limited Partnership dated as of December
7, 2005



Northland Kimbrough LLC – Operating Agreement dated as of April 5, 2007



Northland Lakeline L.P. – Agreement of Limited Partnership dated as of January 19,
2005



Northland Memphis Portfolio LLC – Amended and Restated Operating Agreement dated
as of April 11, 2007, as amended



Northland Great Hills LLC – Operating Agreement dated as of January 19, 2005



Northland Lakeline LLC – Operating Agreement dated as of January 19, 2005



Northland Austin L.P. – Amended and Restated Agreement of Limited Partnership
dated as of March 15, 2005



Northland Austin Partners, Inc.



Northland Austin Portfolio L.P. – Agreement of Limited Partnership dated as of
March 15, 2005, as amended



Northland High Oaks LLC – Operating Agreement dated as of December 7, 2005




 









 








ENTITIES OWNED BY NORTHLAND FUND II, L.P.



Northland Ballantrae LLC – Amended and Restated Limited Liability Company
Agreement dated as of December 28, 2007



Northland Canyon Creek L.P. – Agreement of Limited Partnership dated as of
December 6, 2005, as amended



Northland Channing’s Mark LLC – Operating Agreement dated as of October 19,
2007, as amended



Northland Faxon Woods LLC – Operating Agreement dated as of November 28, 2007



Northland Germantown Falls LLC – Operating Agreement dated as of December 6,
2005, as amended



Northland Lugano LLC – Second Amended and Restated Limited Liability Company
Agreement dated as of December 28, 2007



Northland Lugano Manager Inc.



Northland Madison at Park West LLC – Amended and Restated Limited Liability
Company Agreement dated as of December 28, 2007



Northland Park Manager Inc.



Northland Monterra LLC – Amended and Restated Limited Liability Company
Agreement dated as of December 28, 2007



Northland Monterra Manager Inc.



Northland Reflection Lakes LLC – Amended and Restated Limited Liability Company
Agreement dated as of December 28, 2007



Northland Reflection Lakes Manager Inc.



Northland River Birch L.P. – Agreement of Limited Partnership dated as of
November 20, 2007



Northland Rosecrest LLC – Operating Agreement dated as of August 13, 2007, as
amended




 









 







Northland Stone Ridge LLC – Operating Agreement dated as of September 21, 2005,
as amended



Northland Tatnuck LLC – Operating Agreement dated as of May 5, 2006



Northland TPLP LLC – Operating Agreement dated as of August 13, 2007, as amended



Northland Windemere LLC – Operating Agreement dated as of October 19, 2007



Northland Ybor City LLC – Amended and Restated Limited Liability Company
Agreement dated as of December 28, 2007



Northland Ybor City Manager Inc.



Northland Canyon Creek LLC – Operating Agreement dated as of December 6, 2005,
as amended



Northland River Birch Member LLC – Operating Agreement dated as of November 20,
2007



Northland River Birch Partners L.P.- Agreement of Limited Partnership dated as
of November 20, 2007



Northland River Birch Partners LLC – Operating Agreement dated as of November
20, 2007




 









 








ENTITIES OWNED BY NORTHLAND FUND III, L.P.





Northland Stanford Court L.P. – Agreement of Limited Partnership dated as of
September 22, 2005, as amended




Northland Stanford Court LLC – Operating Agreement dated as of September 22,
2005, as amended



 









 





ENTITIES OWNED BY NORTHLAND INVESTMENT CORPORATION



Park Lake at Parsons LLC – Operating Agreement dated as of July 25, 2005




 









 








EXHIBIT B-1

TARRAGON MANAGEMENT AGREEMENTS




A. Pacific West Management Company managed properties




French Villas Apartments

Southern Elms

Mustang Creek Apartments

Summit on the Lake

Aventerra Apartment Homes

Vintage at Legacy




B. Tarragon Management Inc. managed properties




Groton Towers

Gull Harbor

Lakeview Apartments

Parkview Apartments

Sagamore Hills Apartments

Nutmeg Woods Apartments

Woodcliff Estates

Liberty Building

Autumn Ridge Apartments

Club at Danforth Apartments

Dogwood Hills Apartments

Forest Park Apartments

Hamden Centre Apartments

Heather Hill Apartments

River City Landing

Ocean Beach Apartments

Vintage at Plantation Bay

Vintage at the Parke

Vintage at Madison Crossing

Links at Georgetown (Phase I & II)

Woodcreek

200 Fountain

278 Main

Lofts at the Mills

Harbor Green




 









 









EXHIBIT B-2

NORTHLAND MANAGEMENT AGREEMENTS




Northland Investment Corporation

Management Agreements




	 	 	 	 	 
	Property Name	 	Date	 	Property Owner
	Ballantrae Apartments*

	 	December 28, 2007
	 	Northland Ballantrae LLC
	Bay Club Apartments

	 	January, 2002
	 	Southeast Brittany/BayClub Limited Partnership
	Bel Air Apartments

	 	December 14, 1999
	 	Northland Sunbelt LLC
	Bigelow Commons

	 	April 21, 1999
	 	Northland Bigelow Commons LLC
	The Boulders

	 	August 10, 2007
	 	Northland Boulders LLC
	Brittany Apartments

	 	January, 2002
	 	Southeast Brittany/Bay Club Limited Partnership
	Candlewood Apartments

	 	January, 2002
	 	Southern Tier Candlewood/Coopermill Limited Partnership
	Canyon Creek

	 	January 17, 2006
	 	Northland Canyon Creek LP
	Channing’s Mark

	 	November 30, 2007
	 	Northland Channing’s Mark LLC
	Cliffside

	 	August 10, 2007
	 	Northland Cliffside LLC
	Commons

	 	January 17, 2002
	 	Southern Tier Southeast Portfolio Limited Partnership
	Copper Mill

	 	January, 2002
	 	Southern Tier Candlewood/Coppermill Limited Partnership
	Country Club Villas

	 	January 17, 2002
	 	Southern Tier Country Club Limited Partnership
	Crossing at Fox Meadows

	 	May 3, 2007
	 	Northland Gleneagles LLC
	Del Oro

	 	January 17, 2002
	 	Southeast Del Oro Limited Partnership
	Governor’s Point

	 	April 1, 2005
	 	Northland Governor’s Point LLC
	Great Hills

	 	February 3, 2005
	 	Northland Great Hills L.P.
	Green Trees

	 	January 17, 2002
	 	Southern Tier Southeast Portfolio Limited Partnership
	Hickory Farm

	 	May 3, 2007
	 	Northland Hickory Farm LLC
	High Oaks

	 	January 17, 2006
	 	Northland High Oaks L.P.
	Highlands at Faxon Woods

	 	December 20, 2007
	 	Northland Faxon Woods LLC
	Hilands I

	 	June, 1997
	 	Northland Hilands II LLC
	Hilands II

	 	February 10, 2006
	 	Northland Hilands II LLC
	Kimbrough Towers

	 	May 8, 2007
	 	Northland Kimbrough LLC
	Lodge at Lakeline

	 	January 26, 2005
	 	Northland Lakeline L.P.
	Madison at Park West*

	 	December 28, 2007
	 	Northland Madison at Park West LLC
	Monterra at Bonita Springs*

	 	December 28, 2007
	 	Northland Monterra LLC
	Park

	 	January 15, 2002
	 	Northland The Park LLC
	Pavilions

	 	August 1, 2001
	 	Northland
Pavilions, LLC
	Plantation Club

	 	May 11, 2007
	 	Northland Plantation Club LLC
	Promenade at Reflection Lakes

	 	December 28, 2007
	 	Northland Reflection Lakes LLC
	Promontory

	 	February 10, 2002
	 	Northland Promontory LLC
	Quarter at Ybor City

	 	December 28, 2007
	 	Northland Ybor City LLC
	Randolph Park

	 	January 17, 2002
	 	Northland Randolph Park LLC
	Residences
at Westborough St.

	 	September 25, 2007
	 	Northland TPLP LLC
	River Birch

	 	January 12, 2008
	 	Northland River Birch L.P.
	Rosecrest

	 	October 5, 2007
	 	Northland Rosecrest LLC
	Royal Crest

	 	January 17, 2002
	 	Southern Tier Royal Crest Limited Partnership
	Stanford Court

	 	October 11, 2005
	 	Northland Stanford Court L.P.
	Stone Ridge

	 	October 11, 2005
	 	Northland Stone Ridge LLC
	Summit at Avent Ferry

	 	December 14, 1999
	 	Northland Sunbelt LLC
	Tatnuck Arms

	 	May 24, 2006
	 	Northland Tatnuck LLC
	Valley View

	 	December 14, 1999
	 	Northland Sunbelt LLC
	Via Lugano*

	 	December 28, 2007
	 	Northland Lugano LLC
	Windemere

	 	November 28, 2007
	 	Northland Windemere LLC








 




			
	*	 	Currently managed by Tarragon Management, Inc.






 












 






EXHIBIT C-1




TARRAGON PROPERTIES




     Tarragon Corporation owns 100% of the following properties, directly or indirectly.



	 	 	 
	Property Name	 	Address
	French Villas Apartments
	 	4752 S. Harvard St., Apt 86
	 
	 	Tulsa, OK 74135
	 
	 	 
	Southern Elms
	 	4519 E. 31st St
	 
	 	Tulsa, OK  74135
	 
	 	 
	Mustang Creek Apartments
	 	2900 Matlock Rd.
	 
	 	Arlington, TX  76015
	 
	 	 
	Summit on the Lake
	 	6555 Shady Oaks Manor Dr.
	 
	 	Ft. Worth,  TX 76135
	 
	 	 
	Aventerra Apartment Homes
	 	11661 Dennis Rd.
	 
	 	Dallas, TX  75229
	 
	 	 
	Woodcreek Apartments
	 	401 Monument Rd.
	 
	 	Jacksonville, FL  32225
	 
	 	 
	Harbour Green
	 	7120 Patronis Dr.
	 
	 	Panama City, FL  32408






Tarragon Corporation owns 89.44%, and Ansonia, LLC owns 10.56%, directly or indirectly




	 	 	 
	Name	 	Address
	Groton Towers
	 	39 Broad Street Extension
	 
	 	Groton, CT 06340
	 
	 	 
	Gull Harbor
	 	83 Mansfield Rd.
	 
	 	New London, CT 06320
	 
	 	 
	Lakeview Apartments
	 	440 Meridien Road
	 
	 	Waterbury, CT 06705
	 
	 	 
	Parkview Apartments
	 	270 Spring St., #5
	 
	 	Naugatuck, CT 06770
	 
	 	 
	Sagamore Hills Apartments
	 	1151 Washington St. B-2
	 
	 	Middleton, CT 06457
	 
	 	 
	Nutmeg Woods Apartments
	 	84 Hawthorne Drive
	 
	 	New London, CT 06320
	 
	 	 
	Woodcliff Estates
	 	181 Nutmeg Lane
	 
	 	E Hartford CT 06118
	 
	 	 
	Liberty Building
	 	152 Temple St.
	 
	 	New Haven, CT 06510
	 
	 	 
	Autumn Ridge Apartments
	 	90 Gerrish Avenue
	 
	 	East Haven, CT 06512
	 
	 	 
	Club at Danforth Apartments
	 	3701 Danforth Dr.
	 
	 	Jacksonville, FL  32224
	 
	 	 
	Dogwood Hills Apartments
	 	200 Evergreen Ave.
	 
	 	Hamden, CT 06518






 









 






	 	 	 
	Name	 	Address
	Forest Park Apartments
	 	108D West Street
	 
	 	Rocky Hill, CT 06067
	 
	 	 
	Hamden Centre Apartments
	 	169 School Street
	 
	 	Hamden, CT 06518
	 
	 	 
	Heather Hill Apartments
	 	5837 Fisher Rd.
	 
	 	Temple Hills, MD  20748
	 
	 	 
	River City Landing
	 	2681 University Blvd.
	 
	 	Jacksonville, FL  32211
	 
	 	 
	Ocean Beach Apartments
	 	5 Nob Hill Rd.
	 
	 	New London, CT 06320
	 
	 	 
	Vintage at Plantation Bay
	 	7740 Plantation Bay Dr.
	 
	 	Jacksonville, FL  32244
	 
	 	 
	Vintage at the Parke
	 	261 Barfield Crescent Road
	 
	 	Murfreesboro, TN  37128
	 
	 	 
	Vintage at Madison Crossing
	 	7584 Old Madison Pike
	 
	 	Huntsville, AL 35806
	 
	 	 
	Links at Georgetown (Phase I & II)
	 	450 Al Henderson Blvd.
	 
	 	Savannah, GA  31419
	 
	 	 
	Vintage at Legacy
	 	3700 Legacy Drive
	 
	 	Frisco, TX  75034
	 
	 	 
	200 Fountain
	 	216 Fountain St.
	 
	 	New Haven, CT 06515
	 
	 	 
	278 Main
	 	278 Main Street
	 
	 	West Haven, CT 06516
	 
	 	 
	Lofts at the Mills
	 	91 Elm Street
	 
	 	Manchester, CT 06040






 









 





EXHIBIT C-2

NORTHLAND PROPERTIES




REAL PROPERTY OWNED BY NORTHLAND PORTFOLIO L.P.




	 	 	 
	 
	 	9350 South Padre Island Drive
	Bay Club
	 	Corpus Christi, TX 78418
	 
	 	 
	 
	 	1200 102nd Avenue North
	Bel Air
	 	St. Petersburg, FL 33716
	 
	 	 
	 
	 	55 Main Street
	Bigelow Commons
	 	Enfield, CT 6082
	 
	 	 
	 
	 	2002 Airline Road
	Candlewood
	 	Corpus Christi, TX 78412
	 
	 	 
	 
	 	248 Amherst Road
	Cliffside
	 	Sunderland, MA 1375
	 
	 	 
	 
	 	5827 N.W. Loop 410
	Coppermill
	 	San Antonio, TX 78238
	 
	 	 
	 
	 	4450 Ridgemont Drive
	Country Club Villas
	 	Abilene, TX 79606
	 
	 	 
	 
	 	7001 N.W. 16th Street
	Del Oro
	 	Plantation, FL 33313
	 
	 	 
	 
	 	5201 North Dixie Highway
	Greentree
	 	Fort Lauderdale, FL 33334
	 
	 	 
	 
	 	5755 East River Road
	Hilands I
	 	Tucson, AZ 85750
	 
	 	 
	 
	 	5755 East River Road
	Hilands II
	 	Tucson, AZ 85750
	 
	 	 
	 
	 	201 Plantation Club Drive
	Plantation Club
	 	Melbourne, FL 32940
	 
	 	 
	 
	 	60 West Stone Loop
	Promontory
	 	Tucson, AZ 85704






 









 






	 	 	 
	 
	 	4516 Randolph Road, #52
	Randolph Park
	 	Charlotte, NC 28211
	 
	 	1909 Sybil Lane
	Royal Crest
	 	Tyler, TX 75703
	 
	 	 
	 
	 	156A Brittany Drive
	The Boulders
	 	Amherst, MA 1002
	 
	 	 
	 
	 	1874 Brittany Drive
	The Brittany
	 	Indialantic, FL 32903
	 
	 	 
	 
	 	3408 Lancaster Court
	The Commons
	 	Tampa, FL 33614
	 
	 	 
	 
	 	2332 B Dunlavin Way
	The Park
	 	Charlotte, NC 28205
	 
	 	 
	 
	 	345 Buckland Hills Dr., Suite 100
	The Pavilions
	 	Manchester, CT 6040
	 
	 	 
	 
	 	1025 Avent Hill
	The Summit at Avent Ferry
	 	Raleigh, NC 27606
	 
	 	 
	 
	 	5025 N. 1st Avenue
	Valley View
	 	Tucson, AZ 85718






 









 





REAL PROPERTY OWNED BY NORTHLAND FUND L.P.




	 	 	 
	Governors Point

	 	3230 Stream Side Road

Raleigh, NC 27613
	 
	 	 
	Great Hills

	 	10610 Morado Circle

Austin, TX 78759
	 
	 	 
	Hickory Farm

	 	3822 Hickory Farm Drive

Memphis, TN 38115
	 
	 	 
	High Oaks

	 	11028 Jollyville Road

Austin, TX 78759
	 
	 	 
	Kimbrough Towers and Center

	 	172 Kimbrough Place

Memphis, TN 38104
	 
	 	 
	Lodge at Lakeline Village

	 	2000 South Lakeline Boulevard

Cedar Park, TX 78613
	 
	 	 
	The Crossings at Fox Meadows

	 	2894 Putting Green Drive

Memphis, TN 38115






 









 





REAL PROPERTY OWNED BY NORTHLAND FUND II, L.P.




	 	 	 
	 
	 	1950 Pebble Ridge Lane
	Ballantrae
	 	Sanford, FL 32771
	 
	 	 
	 
	 	11316 Jollyville Road
	Canyon Creek
	 	Austin, TX 78759
	 
	 	 
	 
	 	11282 Taylor Draper Lane
	Channing’s Mark
	 	Austin, TX 78759
	 
	 	 
	 
	 	6895 Club Ridge Circle
	Germantown Falls (Stoneridge II)
	 	Memphis, TN 38115
	 
	 	 
	Certain condominium units at Madison Park
West as indicated on the rent roll
pertaining to such property, as the same may
be amended from time to time to reflect
	 	1300 Park West Boulevard
	sales of such units
	 	Mount Pleasant, SC 29466
	 
	 	 
	 
	 	28151 Dovewood Court
	Monterra at Bonita Springs
	 	Bonita Springs, FL 34135
	 
	 	 
	 
	 	7861 Reflection Cove Drive
	The Promenade at Reflection Lakes
	 	Fort Meyers, FL 33907
	 
	 	 
	 
	 	8200 Riverbirch Drive
	River Birch
	 	Charlotte, NC 28210
	 
	 	 
	 
	 	45 South Idlewild Road
	Rosecrest
	 	Memphis, TN 38104
	 
	 	 
	 
	 	6895 Club Ridge Circle
	Stoneridge
	 	Memphis, TN 38115
	 
	 	 
	 
	 	13 Brookside Avenue
	Tatnuck Arms Apartments
	 	Worcester, MA 01602
	 
	 	 
	 
	 	2001 Falls Boulevard
	The Highlands at Faxon Woods
	 	Quincy, MA 02169
	 
	 	 
	Certain condominium units at The Quarter at
Ybor City as indicated on the rent roll
pertaining to such property, as the same may
	 	1800 East Palm Avenue
	be
	 	Tampa, FL 33605






 









 






	 	 	 
	amended from time to time to reflect
sales of such units
	 	 
	 
	 	 
	 
	 	100 Charlestown Meadows Drive
	The Residences at Westborough Station
	 	Westborough, MA 01581
	 
	 	 
	Certain condominium units at Via Lugano as
indicated on the rent roll pertaining to
such property, as the same may be amended
from time to time to reflect sales of such
	 	1400 Via Lugano Circle
	units
	 	Boynton Beach, FL 33436
	 
	 	 
	 
	 	2105 Ravenglass Place
	Windemere
	 	Raleigh, NC 27612






 









 





REAL PROPERTY OWNED BY NORTHLAND FUND III, L.P.




	 	 	 
	Stanford Court

	 	18175 Midway

Dallas, TX 75287






 









 





REAL PROPERTY OWNED BY NORTHLAND INVESTMENT CORPORATION




	 	 	 
	Certain condominium units at Park Lake at
Parsons as indicated on the rent roll
pertaining to such property, as the same
may be amended from time to time to
reflect sales of such units

	 	221 Lake Brook Circle, Unit 102

Brandon, FL 33511






 









 





EXHIBIT D




MANAGER’S COMPENSATION




A. PROPERTY MANAGEMENT FEE




     The Manager shall be paid a property management fee equal to the lesser of (x) 4% of the gross
revenues of the Property and (y) with respect to the apartment complexes listed below, the maximum
amount permitted under the Mortgage debt encumbering such complex, as indicated below. Such fee
shall be payable monthly based upon the gross revenues of the Property received for the previous
month. As used herein, “gross revenues” shall mean all monthly gross revenues derived from the
Property determined on a “cash basis” but otherwise in accordance with generally accepted
accounting principles, consistently applied, and shall include, but not be limited to, revenues
from the rental of apartments and storage areas, lease termination payments and penalties, laundry
rentals, rentals of any parking spaces, rent loss insurance proceeds, concession payments, other
revenues (other than rent) received from persons occupying apartments or other space located at the
Property, use charges, utility reimbursements, guest fees, non-refundable deposits, payments or
rent received by Owner or Manager from concessionaires, licensees or lessees, in connection with
the operation of the Property or any part thereof and any and all other ancillary revenue relating
to the Property or derived from services provided, sold or marketed to tenants of the Property
during any applicable period, but shall not include (i) apartment security deposits (except to the
extent that such security deposits are forfeited for breach of a lease), (ii) the proceeds from the
sale of the Property, or (iii) condemnation awards or casualty insurance proceeds resulting from
the condemnation of or a casualty to, as the case may be, the Property or a substantial part
thereof. Compensation for extraordinary services shall be paid to Manager as provided in Section
2.14 of the Agreement and shall be separate from, and not credited against, the compensation
specified in Section 5 of the Agreement.



	 	 	 
	Apartment Complex
	 	Maximum Management Fee
	 
	 	 





 









 





Exhibit F




Exhibit to Contribution Agreement




TRADEMARK LICENSE AGREEMENT




     This Trademark License Agreement (the “License Agreement”) is made and entered into as
of                     , 2008 (the “Effective Date”) by and between Tarragon Corporation a Nevada
corporation (the “Licensor”), and Northland Properties LLC, a Delaware limited liability
company (the “Licensee”). Licensor and Licensee are sometimes referred to individually
herein as a “Party” and collectively as the “Parties.”



     WHEREAS, Licensor owns rights to the name and Mark “Vintage” (the “Mark”); [Note: If
Licensee will also be permitted to use any of Tarragon’s logos, then a license to the logo(s) needs
to be added.]



     WHEREAS, Licensor is party to that certain Agreement to Contribute dated March ___, 2008 (the
“Contribution Agreement”), whereby Licensor is contributing to Licensee its direct and
indirect equity ownership interests in the Properties listed on Exhibit A (collectively, the
“Properties”) in return for certain equity interests in Licensee; and whereas it is a
condition of Licensee’s acceptance of such contribution that Licensor grant Licensee the license to
use the Mark granted hereunder; and



     WHEREAS, Licensee acknowledges Licensor’s exclusive rights to the Mark for real estate
ownership and investment, management and syndication, brokerage, leasing, appraisal, consulting and
financing services and desires to obtain a license to use the Mark in connection with the
ownership, management, brokerage and leasing of the Properties; and



     WHEREAS, Licensor agrees to grant to Licensee a non-exclusive, royalty-free license, pursuant
to the terms and conditions herein, to use the Mark in connection with the ownership, management,
brokerage and leasing of the Properties.



     NOW, THEREFORE, for and in consideration of the premises, and of the agreements and covenants
hereinafter set forth, as well as other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:


1. LICENSE. Licensor hereby grants to Licensee a non-exclusive, royalty-free license to use the
Mark in connection with the ownership, management, brokerage and leasing of the Properties, (the
“Licensed Use”), subject to the terms and conditions contained herein.



2. OWNERSHIP AND PROTECTION OF MARKS.




     2.1 No Registration. Licensee shall not register or attempt to register the Mark, any
variations thereof, or any trade names, trademarks, service marks, domain names, or logos that are
confusingly similar to the Mark or that contain the Mark.



     2.2 Protection of the Marks. Licensee shall not use its own name or marks, or the name or
marks of any third party nor any word, symbol or device, in connection with the Mark in a manner
that would create a new mark containing the Mark.



 









 





     2.3 Licensor’s Rights. All rights and goodwill to the Mark shall inure to the benefit of
Licensor. Licensee shall acquire no property rights in the Mark by reason of its use thereof, and
if, by operation of law, or otherwise, Licensee is deemed to or appears to own any property rights
in the Mark, Licensee shall, at Licensor’s reasonable request, execute any and all documents
necessary to confirm or otherwise establish Licensor’s rights therein.



     2.4 Limited Use. The Licensee acknowledges and agrees that it may use the Mark only in
connection with the Licensed Use and pursuant to the terms and conditions set forth herein.
Licensee further acknowledges and agrees it will not use the Licensed Mark in a manner that will
prejudice the rights, title and goodwill of the Licensor in and to the Mark.



3. QUALITY CONTROL STANDARDS.




     3.1 Quality Control. In order to preserve the inherent value of the Mark, Licensee agrees to
use its reasonable efforts to ensure that all aspects of the Licensed Use offered in connection
with the Mark pursuant to this License Agreement shall be at least of a standard of quality
substantially equal to the quality of the service Licensor offers under the Mark in connection with
its Properties as of the Effective Date of this License Agreement, or any greater standard of
quality thereafter widely recognized in the real estate industry for comparable properties and
services (the “Usage Standards”).



     3.2 Inspection. For as long as this License Agreement is in effect, the Licensee will permit
the Licensor or its authorized representatives to enter the Properties at reasonable times, with
forty-eight (48) hours written notice, to examine the locations and the manner in which the
Licensed Mark is used for the purpose of ensuring that the Mark is used in accordance with the
Usage Standards and that the Licensee is not in default of any of its covenants or obligations.



     3.3 Notification. If based on the inspection Licensor finds that Licensee’s use of the Mark
is not in accordance with the Usage Standards, Licensor shall notify Licensee in writing and
Licensee shall promptly, but in any event within thirty (30) days of receipt
of the written notice, make such adjustments as are necessary so that it is in compliance with
the Usage Standards.



4. TERM AND TERMINATION.




     4.1 Term.




	 	(a)	 	This License Agreement, and the license granted herein, shall commence on the
Effective Date, and shall continue for a term of twenty-five (25) years, and
thereafter, shall be automatically renewed for successive periods of ten (10) years
each (the “Term”), unless terminated prior to the end of the Term by mutual
agreement by the Parties, or until otherwise terminated as provided in this License
Agreement; or
	 
	 	(b)	 	If Licensee sells, assigns or otherwise transfers its direct or indirect
ownership interest in a Property, this License Agreement shall automatically terminate
as to such Property (but without affecting Licensee’s rights to continue the Licensed
Use in connection with any remaining Properties that it or its subsidiaries or




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	 	 	 	affiliates continue to own), except to the extent of any sub-license granted to the
purchaser in accordance with Section 7.2 hereof (and if there is such a sub-license,
then upon the expiration of such sub-license, this License Agreement shall
automatically terminate as to such Property).





     4.2 Termination. This License Agreement may be terminated at any time prior to the end of the
Term:



     (a) By Licensor if the Licensee has committed a material breach of any provision
of this License Agreement, Licensor has not waived such breach in writing and such
breach is not curable, or, if curable, is not cured within thirty (30) calendar days
after written notice of such breach is given to the Licensee by the Licensor; or



     (b) By the Licensee at any time upon written notice to the Licensor.



     4.3 Upon Termination. Upon the termination of this License Agreement, Licensee shall
discontinue any and all use of the Mark, and shall not thereafter directly or indirectly use the
Mark or any names or Marks, confusingly similar to the Mark or that incorporate the Mark. The
Licensee further covenants and agrees that after termination of this License Agreement it will not
operate or do business under any name or in any manner that might tend to give the general public
the impression that it is in any way associated, affiliated, licensed by or related to the
Licensor.



     4.4 Effect of Termination. If this License Agreement is terminated as a result of a material
breach, the right of the non-breaching Party to terminate shall be in addition to, and not in lieu
of, any equitable or legal remedies available to such Party. Upon the termination of this License
Agreement for any cause, neither Party shall have any further obligation to the other except for
obligations that by their terms are to be
performed after termination of this License Agreement, and any obligations or liabilities
arising prior to or in connection with such termination, including the right to damages for breach.



5. INFRINGEMENT.




     (a) The Licensee will notify the Licensor promptly in the event the Licensee becomes aware of
any unauthorized third-party usage of the Mark.



     (b) The Licensee and Licensor agree that under all circumstances, that any and all
infringement actions taken or to be taken with respect to any unauthorized third-party usage of the
Mark will be undertaken solely by the Licensor.



     (c) The Licensee will cooperate with, lend such assistance to and provide relevant documents
to the Licensor, as reasonably requested by the Licensor from time to time, in connection with any
infringement actions taken or to be taken with respect to any unauthorized third-party usage of the
Mark.


6. INDEMNIFICATION BY LICENSEE. Licensee shall be solely responsible for and hereby agrees to
indemnify and defend Licensor, its Affiliates, and Licensor’s and such Affiliate’s respective
officers, directors, shareholders, employees and agents, and to hold each of




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them harmless from any
and all claims, demands, causes of action, or damages, including reasonable attorneys’ fees and
expenses from third parties: (i) arising out of or in connection with the use by Licensee, an
assignee, sub-licensee or anyone under Licensee’s direct or indirect control, of the Mark; (ii)
resulting from any claims concerning the Properties in connection with the Licensed Mark; or (iii)
arising out of Licensee’s, an assignee’s or sub-licensee’s offering of services in connection with
the Licensed Mark.



7. GENERAL. The following provisions shall apply to this License Agreement:




     7.1 Entire Agreement. This License Agreement and the Exhibit referenced herein (and attached
hereto), constitutes the entire agreement between the Parties concerning the Licensed Mark. This
License Agreement may not be modified or amended except by a written instrument executed by duly
authorized officers of both Parties.



     7.2 Assignment and Sub-license. Licensee may not transfer or sub-license its respective
rights to this License Agreement without the prior written consent of Licensor; provided,
however, that (i) Licensor may from time to time grant its subsidiaries and affiliates a
sub-license of its rights and obligations under this License Agreement (but expressly without any
further right to sub-license) and (ii) upon written notice to the Licensor, Licensee may grant a
non-exclusive, non-assignable, non-renewable ten (10) year sub-license of its rights and
obligations under this License Agreement in respect of a particular Property to a bona fide
purchaser of such Property who agrees in a writing delivered to Licensor to be bound to Licensor in
respect of such Property hereunder. Except as aforesaid, without Licensor’s prior written consent,
the
assignment or sub-license of any rights or obligations hereunder by Licensee or its
sub-licensees shall be null and void.



     7.3 Governing Law. This License Agreement and the license granted hereunder shall be
governed by and controlled as to validity, enforcement, interpretation, construction, effect and in
all other respects by the laws of New York.



     7.4 Notices. Any notice, communication, request, instruction or other document required or
permitted hereunder or under any document delivered pursuant hereto will be given in writing and
delivered in person or sent by courier, or by facsimile to the addresses or facsimile numbers, as
appropriate, each as set forth below.



     If to Licensee, to:


                                        




     with a copy to:


                                        




     If to Licensor, to:


Tarragon Corporation

423 West 55th Street

12th Floor




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New York, New York 10019

Facsimile: 646-354-2171

Attn: William S. Friedman




     with a copy to:


Jones Day

222 East 41st Street

New York, New York 10017-6702

Facsimile: 212-755-7306

Attn: Kent R. Richey, Esq.



or to such other addresses as may be designated by notice given in accordance with the provisions
hereof.




     7.5 Non-Waiver. The failure in any one or more instances of a Party to insist upon
performance of any of the terms, covenants or conditions of this License Agreement, to exercise any
right or privilege in this License Agreement conferred, or the waiver by said Party of any breach
of any of the terms or covenants of this License Agreement, shall not be construed as a subsequent
waiver of any such terms or covenants, rights or privileges, but the same shall continue and remain
in full force and
effect as if no such forbearance or waiver had occurred. No waiver shall be effective unless
it is in writing and signed by an authorized representative of the waiving Party.



     7.6 Successors and Assigns. All rights under this License Agreement will inure to the benefit
of and be binding upon the Parties hereto and their successors and any assigns and sub-licenses, to
the extent assignment or sub-licensing is permitted and subject to the terms and conditions under
which Licensee is permitted to assign its rights.



     7.7 Counterparts. This License Agreement may be executed in multiple counterparts, each of
which will be deemed an original, but which together will constitute one and the same instrument.



[The remainder of this page is intentionally left blank. Signature page to follow.]




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     IN WITNESS WHEREOF, the parties hereto have executed this License Agreement as of the date
first set forth above.



	 	 	 	 	 
	 	LICENSOR:





TARRAGON CORPORATION

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 
	 	LICENSEE:





NORTHLAND PROPERTIES LLC

 	 
	 	By:  	 	 
	 	 	 	 
	 	 	 	 
	 




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EXHIBIT A




PROPERTIES





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