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Declaration of Covenants pg 2

 ARTICLE VI

NO PARTITION

6.1 No Partition. Except as is permitted in this Declaration, or any Supplemental Declaration, there shall be no physical partition of the Common Area or any part thereof, nor shall any person acquiring any interest in the Development or any part thereof seek any such judicial partition unless the applicable portions of the Development have removed from the provisions of this Declaration. This Article shall not be construed to prohibit the Board of Directors from acquiring and disposing of tangible personal property nor from acquiring title to real property which may or may not be subject to this Declaration.

ARTICLE VII

ANNEXATION OF ADDITIONAL PROPERTY

7.1 Annexation without Approval of Owners. Declarant shall have the unilateral right, privilege, and option, from time to time at any time until December 31, 2015, to subject to the provisions of this Declaration all or any real property adjacent to the Development by filing in the Recorder’s Office of Porter County, Indiana, an amendment or Supplemental Declaration annexing such property. Such Supplemental Declaration or amendment to this Declaration shall not require the vote or approval of any Owners. Any such annexation shall be effective upon the filing for record of such supplemental Declaration unless otherwise provided therein. The rights reserved unto Declarant to subject additional land to the Declaration shall not be implied or construed so as to impose any obligation upon Declarant to subject any of such additional land to this Declaration nor any obligation, if subjected, to build housing of the same type, design, or materials. If such additional land is not subjected to this Declaration, Declarant’s reserved rights shall not impose any covenants and restrictions similar to those contained herein upon such additional land, nor shall such rights in any manner limit or restrict the use to which such additional land may be put by Declarant or any subsequent owner thereof, whether such uses are consistent with the covenants and restrictions imposed hereby or not.

7.2 Acquisition of additional Common Area. Declarant may convey to the Association additional real estate, improved or unimproved, which upon conveyance or dedication shall be accepted by the Association as a Common Expense for the benefit of all Owners.

7.3 Amendment. This Article shall not be amended without the written consent of the Declarant, so long as the Declarant owns any property described in Exhibit A attached hereto or as added by this Article.

ARTICLE VIII

RIGHTS AND OBLIGATIONS OF THE ASSOCIATION 

8.1 COMMON AREA. The Association, subject to the rights of the Owners set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Area and all improvements thereon (including furnishings and equipment related thereto, if any), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, pursuant to the terms and conditions of this Declaration and the By-Laws of the Association.

8.2 Services. The Association may obtain and pay for the services of any person or entity to manage its affairs or any part thereof, to the extent it deems advisable, as well as such other personnel as the Association shall determine to be necessary or desirable for the proper operation of the Development, whether such personnel are furnished or employed directly by the Association or by any person or entity with whom or with which it contracts. The Association may obtain and pay for legal and accounting services necessary or desirable in connection with the operation of the Development or enforcement of this Declaration.

8.3 Personal Property and Real Property for Common Use. The Association, through action of its Board of Directors, may acquire, hold and dispose of tangible and intangible personal property and real property. The Board, acting on behalf of the Association, shall accept any real or personal property, leasehold, or other property interests located within the properties described in Exhibit A attached hereto or hereafter annexed into the Development and conveyed to it by the Declarant.

ARTICLE IX

ASSESSMENTS

9.1 Purpose of Assessment. The assessments for Common Areas and Common Expenses provided for herein shall be used for the general purposes of promoting the recreating, health, safety, welfare, common benefit, and enjoyment of the Owners, including the maintenance of real and personal property, all as may be more specifically authorized from time to time by the Board of Directors.

9.2 Creation of Assessments. There are hereby created Assessments for Common Expenses as may be from time to time specifically authorized by the Board of Directors. General assessments shall be allocated among all Owners within the Association as described in 9.3 hereof and shall be for capital improvements and expenses determined by the Board to be for the benefit of the Association as a whole. Each owner, by acceptance of his or her deed, is deemed to covenant and agree to pay all assessments created or referenced herein. Each assessment, together with interest, cost, and reasonable attorney’s fees, shall also be the personal obligation of the person or persons who was the Owner of such Lot at the time the assessment arose, and his or her grantee shall be jointly and severally liable for total unpaid assessments as may be due and payable at the time of conveyance, except no first mortgagee who obtains title to a Lot pursuant to the remedies provided in the mortgage shall be liable for unpaid assessments which accrued prior to such acquisition of title by such lender. Assessments shall be paid in such manner and on such dates as may be fixed by the Board of Directors which may include, without limitation, monthly, quarterly, semi-annually or annually and acceleration of the annual assessments for delinquents. Unless the Board otherwise provides, all assessments shall be paid annually within thirty (30) days after the date of billing.

9.3 Computation of Assessments. It shall be the duty of the Board, at least sixty (60) days before the beginning of the fiscal year and thirty (30) days prior to the meeting at which the budget shall be presented to the membership, to prepare a budget covering the estimated costs of operating the Association during the coming year. The budget shall include a capital contribution establishing a reserve fund in accordance with a capital budget separately prepared and shall separately list Common Expenses. Common Expenses shall be allocated among Owners in the Development on an equal per Lot basis. Each Owner of any Lot or approved combined Lot building site (including any Residential Unit) in the Development hereby covenants and agrees to pay to the Association a Proportionate Share (as hereinafter defined) of the annual Common Expenses for the Development, as fixed, established and determined from time to time as herein provided. The Proportionate Share of each Owner in the Development shall be the percentage obtained by dividing “one” by the total number of Lots (and/or building sites if contiguous Lots are combined) shown on the Plats of the Development as the same may be recorded from time to time and owned by Owners (including Declarant). The Board shall cause a copy of the budget, and the amount of the assessments to be levied against each Lot for the following year to be delivered to each Owner at least fifteen (15) days prior to the meeting. The budget and the assessments shall become effective unless disapproved at the meeting addressing Common Expenses by a vote of at least a two-thirds (2/3) Majority of the total Lot Owners. Notwithstanding the foregoing, however, in the event the membership disapproves the proposed budget or the Board fails for any reason so to determine for the budget for the succeeding year, then and until such time as a budget shall have been determined as to provided herein, the budget in effect for the then current year shall continue for the succeeding year.

9.4 Special Assessments. In addition to the other assessments authorized herein, the Association may levy special assessments in any year. So long as the total amount of special assessments allocable to each Lot does not exceed $50.00 in any one fiscal year, the Board may impose the special assessment. Any special assessment which would cause the amount of special assessments allocable to any Lot to exceed this limitation shall be effective only if approved by a two-thirds (2/3) majority of the Owners, present in person or by the Board, and the Board may permit special assessments to be paid in installments extending beyond the fiscal year in which the special assessment is imposed.

9.5 Lien for Assessments. All sums assessed against any Lot pursuant to this Declaration, together with late charges, interest, costs and reasonable attorney’s fees actually incurred, as provided herein, shall be secured by a lien on such Lot in favor of the Association. Such lien shall be by the Association with the Porter County Recorder. Such lien shall be superior to all other liens and encumbrances on such Lot, except for (i) liens of ad valorem taxes: or (ii) liens for all sums unpaid on a first mortgage or on any mortgage to Declarant duly recorded in the land records of Porter County, Indiana, and all amounts advanced pursuant to such respective Mortgage or Mortgages and secured thereby in accordance with the terms of such instrument.

9.6 Effect of Nonpayment of Assessments: Remedies of the Association. Any assessments which are not paid when due shall be delinquent. Any assessment delinquent for a period of more than ten (10) days shall incur a late charge in an amount as the Board may from time to time determine. The Association shall cause a notice of delinquency to be given to any member who has not paid within ten (10) days following the due date. If the assessment is not paid within thirty (30) days from the due date, a lien, as herein provided, shall attach and, in addition, the lien shall include the late charge, interest, not exceed the maximum legal rate, on the principal amount due, and all late charges from the date first due and payable, all costs of collection, reasonable attorney’s fee actually incurred, and any other amounts provided or permitted by law. In the event that the assessment remains unpaid after sixty (60) days from the due date, the Association may, as the Board shall determine, institute suit to collect such amounts and to foreclose its lien. Each Owner, by acceptance of a deed or as a party to any other type of a conveyance, vests in the Association or its agents the right and power to bring all actions against him or her, personally, or all persons or parties in title, jointly and severally, for the collection of such charges as a debt or to foreclose the aforesaid lien in the same manner as other liens for the improvement of real property (i.e.: mechanics and material men’s liens). The lien provided for in this Article shall be in favor of the Association and shall be for the benefit of all other Owners. The Association, acting on behalf of the Owners, shall have the power to bid on the Lot at any foreclosure sale or to acquire and to hold, lease, mortgage, or convey the Lot. No Owner may waive, purge himself, or otherwise except liability for the assessments provided for herein, including, by way of illustration, but not limitation, abandonment of the Lot.

9.7 Capital Budget and Contribution. The Board of Directors shall annually prepare a capital budget which shall take into account the number and nature of replacement costs for the Common Area. The Board shall set the required capital contribution, if any, in an amount sufficient to permit meeting the projected capital needs of the Association as shown on the capital budget, with respect to both amount and timing of need for funds by annual assessments over the period of the budget. The capital contribution required shall be fixed by the Board and be included within the budget assessment for Common Expenses as provided in 9.3. A copy of the capital budget shall be distributed to each member in the same manner as the operating budget.

9.8 Subordination of the Lien to First Deeds of Trust and First Mortgage. The lien of the assessments, including interest, late charges, cost (including attorney’s fees) provided for herein, shall be subordinate to the lien of any first Mortgage upon any Lot. The sale or transfer of any lot shall not affect the assessment lien.

9.9 Date of Commencement of Annual Assessments. The annual assessments provided for herein shall commence as to all Lots subject under this Declaration on the first day of the month following the conveyance of the first Lot by the Declarant to an Owner and shall be due and payable in a manner and on a schedule as the Board of Directors may provide. The first annual assessment shall be adjusted according to the number of months then remaining in the fiscal year. The date any Lot becomes subject to assessment hereunder shall be the date on which such Lot is transferred to an Owner.

9.10 Assessments by Declarant. After the commencement of assessments on any Lot, Declarant covenants and shall be liable for and agrees to pay the full amount of the annual assessment for each Lot is owns.

ARTICLE X

GENERAL PROVISIONS

10.1 Duration. The provisions of this Declaration shall run with and bind the land and shall be and in effect perpetually to the extent permitted by law.

10.2 Amendment. This Declaration may be amended unilaterally at any time and from time to time by Declarant (i) if such amendment is necessary to bring any provision hereof into compliance with any applicable governmental statute, rule, or regulation or judicial determination which shall be in conflict therewith; (ii) at Declarant’s option, if such amendment is reasonably necessary to enable any reputable title insurance company to issue title insurance coverage with respect to the Lots subject to this declaration; (iii) at Declarant’s option, if such amendment is required by an institutional or governmental lender or purchaser of mortgage loans, including, for example Federal Housing Administration, the Federal National Mortgage Association or Federal Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase mortgage loans on the Lots subject to Declaration; or (iv) at Decarant’s option, if such amendment is necessary to enable any governmental agency or reputable private insurance company to insure mortgage on the loans on the Lots subject to this Declaration; provided, however, any such amendment shall not adversely affect the title to any Owner’s Lot unless any such Lot Owner shall consent thereto in writing.

Further, so long Declarant owns any property in the Development or any property capable of being annexed thereto, Declarant may unilaterally amend this Declaration for any purpose; provided, however, any such amendment shall not adversely affect in a material magnitude, the substantive rights of any then present Lot Owner hereunder, nor shall it substantially affect marketability of title to any Lot without the consent of the Lot Owner. In addition to the above, this Declaration may be amended upon the affirmative vote or written consent, or any combination thereof, of at lease two-thirds (2/3) a majority of the Owners and the consent of the Declarant, so long as Declarant has an unexpired option to subject property to this Declaration, as set forth in Article VII. Amendments to this Declaration shall become effective upon recordation in the Porter County, Indiana records, unless a later date is specified therein.

10.3 Construction and Sale. Notwithstanding any provisions contained in the Declaration to the contrary, so long as construction and initial sale of Lots shall continue, it shall be expressly permissible for Declarant to maintain and carry on upon portions of the Common Area such facilities and activities as, in the sole opinion of Declarant, may be reasonably required, convenient, or incidental to the construction or sale of such residences, including, but not limited to, business offices, signs, model units, and sales offices, and the Declarant shall have an easement for access to such facilities. The right to maintain and carry on such facilities and activities shall  include specifically the right to use residences owned by the Declarant the Common Area facilities, if any, which may be owned by the association, as models and sales offices. This, 10.3 may not be amended without the express written consent of the Declarant;provided, however, the rights contained in this paragraph shall terminate upon the earlier of (a) twenty-five (25) years from the date of this Declaration is recorded or (b) upon the Declarant’s recording a written statement that all sales activity has ceased.

10.4 Severability. Whenever possible, each provision of this Declaration shall be interpreted in such manner as to be effective and valid, but if the application of any provision of the declaration to any person or to any property shall be prohibited or held invalid, such prohibition or invalidity shall not affect any other provision or the application of any provision which can be given effect without the invalid provision or application, and, to this end, the provisions of this Declaration are declared to be severable.

ARTICLE XI

LIMITATION ON DEVELOPERS LIABILITY

10.5 Limitation on Developer’s Liability. Notwithstanding anything to the contrary herein, it is expressly agreed, and each Owner, by accepting title to a Lot or Residential unit and becoming an owner acknowledges and agrees, that neither Developer (including without limitation any assignee of the interest of Developer hereunder) nor any director, officer or shareholder of Developer (or any partner, officer, director or shareholder in any such assignee) shall have any personal liability to the Association, or any Owner, Member or other person, arising under, in connection with, or resulting from (including without limitation resulting from action or failure to act with respect to) this Declaration or the Association except, in the case of Developer (or its assignee), to the extent of its interest in the Property; and, in the event of a judgment no execution or other action shall be sought or brought thereon against any other assets, nor be a lien upon such other assets of the judgment debtor.