AGREEMENT OF PURCHASE AND SALE

THIS AGREEMENT OF PURCHASE AND SALE (this “ Agreement ”) is made as of the 19 ^th day of January, 2015, by and between WRPV XI FH AUSTIN, L.P., a Delaware limited partnership (the “ Seller ”), and BLUEROCK REAL ESTATE, L.L.C., a Delaware limited liability company (the “ Buyer ”).

RECITALS

Seller is the owner of the Property described below. Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the Property, subject to and in accordance with the terms, conditions and other provisions of this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1
CERTAIN DEFINITIONS

The following capitalized terms shall have the meanings set forth in this Section 1 for all purposes under this Agreement:

Additional Property . Seller’s right, title and interest in, to and under any licenses, permits and warranties, applicable or appurtenant to the other components of the Property, if any.

Broker . Holiday Fenoglio Fowler, L.P.

Closing . The consummation of the transactions described herein as more fully described in Section 4 below.

Closing Date . March 19, 2015, or such earlier date mutually agreed upon by Seller and Buyer, unless extended by Buyer as provided in Section 4.1 below.

Due Diligence Expiration Date . February 18, 2015.

Due Diligence Period . The period commencing on the date hereof and continuing until 5:00 p.m. eastern time on the Due Diligence Expiration Date.

Earnest Money . Defined in Section 2.2(a) below.

Effective Date . January 19, 2015.

Escrow Company . Heritage Title Company of Austin through its office located at 401 Congress, Suite 1500, Austin, TX, 78701, Attention: John Bruce - Senior Vice President, Commercial Escrow (email: jbruce@heritage-title.com and telephone: (512-505-5012)).

Excluded Documents . All (a) correspondence, documents or reports prepared by or for Seller in connection with the proposed sale of the Property, (b) communications between Seller or any affiliate and their attorneys or other agents or representatives, (c) appraisals, assessments or other evaluations of the Property in the possession of Seller or its representatives, and (d) other correspondence, memoranda and documents prepared or intended for internal use of Seller and/or its representatives.

Excluded Personal Property . The rights to any and all operating systems, operating manuals, software and information associated with or contained in any computers and telephone equipment located at the Property or used in connection with the Property (exclusive of the computer and telecommunication equipment and hardware); the rights to any websites or domain names maintained by Seller or Property Manager with respect to the Property; and all mobile shop tools and parts systems.

Improvements . The buildings and other improvements situated on the Land (excluding, however, any building or other improvements situated on any easement parcels described in Exhibit A attached hereto).

Indemnified Seller Parties . Defined in Section 3.2(d) below.

Land . The parcel(s) of land legally described in Exhibit A attached hereto.

Leases . All leases, licenses, and other agreements to use or occupy all or any part of the Land or Improvements, together with all amendments thereto for those tenants listed on the Rent Roll attached hereto as Exhibit B attached hereto.

Personal Property . The items of personal property listed on Exhibit C attached hereto, but specifically excluding the Excluded Personal Property.

Property . Collectively, the Real Property, the Personal Property and all of Seller's right, title and interest in, to and under the Leases, the Service Contracts and the Additional Property.

Property Manager . Waterton Property Management, L.L.C.

Public Records . The official public records of the recording division of the Travis County Clerk’s office in Travis County, Texas.

Purchase Price . THIRTY EIGHT MILLION ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($38,150,000.00).

Real Property . The Land and Improvements, together with all rights and appurtenances pertaining to the Land and Improvements, including, without limitation, any and all rights of Seller in and to all air and development rights, all mineral and subsurface rights, roads, alleys, easements, streets and ways adjacent to the Land, rights of ingress and egress thereto, any strips and gores within or bounding the Land and in the profits, rights or other appurtenances with respect to the beneficial use or enjoyment of the Land and the Improvements.

Seller Parties . Collectively, (a) Seller, (b) its counsel, (c) Property Manager, (d) any direct or indirect equity owner, officer, director, employee, or agent of Seller, its counsel or Property Manager, and (e) any other entity or individual affiliated or related in any way to any of the foregoing.

Service Contracts . The service contracts and equipment leases listed in Exhibit D attached hereto.

Termination Surviving Obligations . Buyer’s obligations under Sections 3.1 and 3.2 hereof and Buyer’s and Seller’s obligations under Sections 10 and 14.3 hereof.

Title Company . First American Title Insurance Company through its agent, Escrow Company.

Transaction . The purchase and sale transaction contemplated by this Agreement.

SECTION 2
AGREEMENT TO SELL AND PURCHASE: PURCHASE PRICE

SECTION 3
SELLER’S DELIVERIES; CONDITIONS PRECEDENT

In the event that this Agreement terminates for any reason, Buyer shall promptly return to Seller all written and other physical materials (whether from Seller, Seller’s agents or otherwise) received by Buyer relating to the Property or Seller (collectively, the “ Seller Provided Materials ”).

Except as otherwise expressly set forth in this Agreement and in the documents delivered by Seller at Closing, Seller makes no representations or warranties, either expressed or implied, and shall have no liability with respect to the accuracy or completeness of the information, data or conclusions contained in the information provided to Buyer, and Buyer shall make its own independent inquiry regarding the economic feasibility, physical condition and environmental state of the Property during the Due Diligence Period.

SECTION 4
CLOSING

SECTION 5
PRORATIONS

All items of income and expense applicable to the Property shall be paid, prorated or adjusted as of the close of business on the day prior to the Closing Date in the manner hereinafter set forth:

SECTION 6
SELLER’S REPRESENTATIONS AND WARRANTIES

SECTION 7
AS-IS AND RELEASE

SECTION 8
BUYER’S REPRESENTATIONS AND WARRANTIES

Buyer hereby represents and warrants to Seller as follows:

The representations and warranties of Buyer set forth in this Agreement shall be deemed remade as of Closing, and said representations and warranties as so remade shall survive the Closing without limitation on duration.

SECTION 9
Closing costs

Seller shall pay the following expenses incurred in connection with the transactions described herein: (i) costs to obtain a standard Texas owner’s title policy (excluding any endorsements, (ii) one-half of all closing fees charged by the Escrow Agent (including earnest money, escrow and New York style closing charges), (iii) Seller’s legal fees and expenses, (iv) costs to cure any of the Objections with respect to which Seller is obligated to cure pursuant to Section 3 above, and (v) all deed documentary stamp taxes, if any. Buyer shall pay the following expenses incurred in connection with the transaction described herein: (a) the costs to obtain extended coverage title insurance and any title endorsements), and the cost of any Updated Survey obtained by Buyer, (b) one-half of all closing fees charged by the Escrow Agent (including earnest money, escrow and New York style closing charges), (c) the fee for the recording of the Deed, (d) Buyer’s legal fees and expenses, and (e) all financing costs, whether for new loans or loan assumptions (provided that the foregoing is not intended to imply that financing is a condition of the closing), including, without limitation, all documentary stamp taxes and intangible taxes in connection with any loan documents.

SECTION 10
Brokerage Commissions

Seller shall be solely responsible for the payment of the commission to Broker (subject to and in accordance with a separate listing agreement between Seller and Broker). Seller and Buyer each warrant and represent to the other that, other than Broker, neither has had any dealings with any broker, agent or finder relating to the sale of the Property or the other transactions contemplated hereby, and each agrees to indemnify, defend and hold the other harmless from and against any claim for brokerage commissions, compensation or fees by any broker, agent or finder in connection the sale of the Property or the other transactions contemplated hereby resulting from the acts of the indemnifying party. This provision shall survive a Closing or a termination of this Agreement.

SECTION 11
NOTICE

All notices, demands and communications (a “ Notice ”) under this Agreement shall be delivered or sent by: (a) hand delivery, (b) first class, registered or certified mail, postage prepaid, return receipt requested (c) facsimile transmission; or (d) nationally recognized overnight carrier; or (e) by e-mailing a .pdf or .tif file (provided that such e-mail shall be immediately followed by delivery of such notice pursuant to clause (a), (b) or (d) above), delivered to the address, fax number or e-mail address of the intended recipient set forth below or to such other address or fax number as either party may designate by notice pursuant to this Section:

Notices shall be deemed given: (i) on the date delivered, if sent by hand delivery; (ii) on the date of transmission if sent by facsimile or electronic mail (and in respect of a facsimile only, confirmation of completed transmission is received) prior to 5:00 P.M. Eastern Standard Time (and if sent later than such time, then the next business day); (iii) one business day after delivery to the overnight carrier, if sent by nationally recognized overnight carrier or (iv) upon receipt (or refusal of delivery), if sent by first class, registered or certified mail, postage prepaid, return receipt requested. Notices may be sent by counsel for a party and such shall be deemed notice by the party so represented. Notices shall be deemed served as set forth above, even if such notices are rejected by the intended recipient.

SECTION 12
CASUALTY AND CONDEMNATION

SECTION 13
OPERATIONS PRIOR TO CLOSING OR TERMINATION

Seller covenants and agrees with Buyer that after the date hereof until the Closing or termination of this Agreement, Seller shall conduct its business involving the Property as follows:

SECTION 14
DEFAULTS AND REMEDIES

SECTION 15

MISCELLANEOUS

NOTICE REGARDING POSSIBLE LIABILITY FOR ADDITIONAL TAXES

If for the current ad valorem tax year the taxable value of the land that is the subject of this Agreement is determined by a special appraisal method that allows for the appraisal of the land at less than its market value, the person to whom the land is transferred may not be allowed to qualify the land for that special appraisal in a subsequent tax year and the land may then be appraised at its full market value. In addition, the transfer of the land or a subsequent change in the use of the land may result in the imposition of an additional tax plus interest as a penalty for the transfer or the change in use of the land. The taxable value of the land and the applicable method of appraisal for current tax year is public information and may be obtained from the tax appraisal district established for the county in which the Property is located.

NOTICE REGARDING POSSIBLE ANNEXATION

If the property that is the subject of this Agreement is located outside the limits of a municipality, the property may now or later be included in the extraterritorial jurisdiction of a municipality and may now or later be subject to annexation by the municipality. Each municipality maintains a map that depicts its boundaries and extraterritorial jurisdiction. To determine if the property is located within a municipality's extraterritorial jurisdiction or is likely to be located within a municipality's extraterritorial jurisdiction, contact all municipalities located in the general proximity of the property for further information.

Notice required by § 13.257, Water Code: The real property, described in this Agreement, that you are about to purchase may be located in a certificated water or sewer service area, which is authorized by law to provide water or sewer service to the properties in the certificated area. If your property is located in a certificated area there may be special costs or charges that you will be required to pay before you can receive water or sewer service. There may be a period required to construct lines or other facilities necessary to provide water or sewer service to your property. You are advised to determine if the property is in a certificated area and contact the utility service provider to determine the cost that you will be required to pay and the period, if any, that is required to provide water or sewer service to your property. The undersigned Buyer hereby acknowledges receipt of the foregoing notice at or before the execution of a binding contract for the purchase of the Property or at closing of purchase of the Property.

SELLER ACKNOWLEDGES THAT BUYER MAY CONVERT THE LAND AND IMPROVEMENTS TO A CONDOMINIUM. IN SUCH CASE, BUYER AND/OR ITS PERMITTED ASSIGNEES WILL BE THE “DEVELOPER” OF THE CONDOMINIUM AND THE DECLARANT UNDER ANY CONDOMINIUM DOCUMENTS. BUYER HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD THE INDEMNIFIED SELLER PARTIES HARMLESS FROM ALL CLAIMS, DEMANDS, LOSSES, JUDGMENTS, LIABILITIES, COSTS, DAMAGES AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COSTS), OF WHATEVER KIND, NATURE OR DESCRIPTION, ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH ANY CONVERSION OF THE APARTMENT UNITS LOCATED ON THE PROPERTY TO CONDOMINIUM UNITS BY BUYER OR ANY PERMITTED ASSIGNEE(S), INCLUDING, WITHOUT LIMITATION; (A) CONSTRUCTION WARRANTY CLAIMS (WHETHER ARISING BY CONTRACT OR BY LAW), (B) CONSTRUCTION DISPUTES, (C) CLAIMS FOR INJURY TO PERSON OR PROPERTY ARISING OUT OF THE CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, CONSTRUCTION DEFECTS, (D) CLAIMS RISING UNDER THE CONSUMER PROTECTION ACT, THE CONDOMINIUM ACT IN EFFECT IN THE STATE(S) WHERE THE PROPERTY IS LOCATED, OR ANY ADDITIONAL, RELATED OR SUCCESSOR LEGISLATION GOVERNING THE CONVERSION OF APARTMENTS TO CONDOMINIUMS, AND (E) ANY CLAIMS MADE BY ANY SUCCESSOR OWNER OR OCCUPANT OF THE PROPERTY, INCLUDING ANY BUYER OF A CONDOMINIUM UNIT AT THE PROPERTY. UPON NOTICE FROM ANY OF THE INDEMNIFIED SELLER PARTIES OF A CLAIM FOR WHICH SUCH PARTY IS INDEMNIFIED HEREUNDER, BUYER WILL DEFEND SUCH PARTY, AT BUYER’S EXPENSE, USING COUNSEL APPROVED IN WRITING BY THE INDEMNIFIED SELLER PARTY REQUESTING SUCH DEFENSE. THE PROVISIONS OF THIS SECTION 15.20 SHALL SURVIVE THE CLOSING AND SHALL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND SHALL BE DEEMED INCORPORATED INTO THE DEED.

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Signature Page Follows.]

IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly executed as of the Effective Date.

LIST OF SCHEDULES AND EXHIBITS

SCHEDULES

EXHIBITS

SCHEDULE 6.1(e)

VIOLATION OF LAWS 

SCHEDULE 6.1(f)

LITIGATION

EXHIBIT A

LEGAL DESCRIPTION 

Lots 2 and 3, Block "A", PEDERNALES ELECTRIC COOPERATIVE-CIRCLE DRIVE, AUSTIN SUBDIVISION, a subdivision in Travis County, Texas, according to the map or plat thereof, recorded under Document No. 200600156 of the Official Public Records of Travis County, Texas.

EXHIBIT B

RENT ROLL

EXHIBIT C

LIST OF PERSONAL PROPERTY

Clubhouse Kitchen:

1 Black & Decker Coffee Maker

1 Coffee Warmer

1 Coffee cups & Creamer holder

1 Metal syrup holder

4 Small plants

4 Decorative baskets

2 Decorative pears

1 Microwave

1 Dishwasher

1 Refrigerator

1 Decorative fox cookie jar

Main Clubhouse Area:

2 Wooden Tables

8 Wooden Arm Chairs

2 Mats

1 Wood Table

1 White Lamp

2 Decorative Pineapples

3 Large Trees

4 Small Plants

4 Medium Plants

1 Black Leather Couch

2 Arm Chairs

1 Beige Suede Couch

2 Armless Chairs

1 Brown Lather Ottoman

1 Wood Coffee Table

4 Decorative pillows

2 Large Decorative Pictures

1 Black Sharp Aquos Flat screen TV

5 Decorations (Bowls, bases)

2 Small Wood Tables

1 Brown Metal Treasure Chest

1 Faux light brown wood plant

2 Area Rugs

Main Office Hallway:

2 Waterton Door Mats

1 Personal size black Fridge

2 Picture frames (Accent wall program)

2 Leather Benches

7 Faux Potted Plants

1 Framed Site Map

4 Floor plan Photos

1 Vizio Flat screen TV

1 Brown Wooden TV Table

1 DVD Player

Clubhouse Patio:

3 Round Iron Bar Height Tables

10 Iron Stools

4 Potted Plants

1 Picnic Table

1 Picnic Bench

1 Trashcan

1 Entry Mat

Leasing Office:

2 Executive Desks

2 2-Drawer Wood File Cabinets

2 Rolling Computer desk Chairs

2 Wooden Guest Chairs

2 Comdial Office Phones

2 Framed Tree Pictures

2 Business Card Holders

1 Large Canvas Picture

1 Ceramic Scentsy Pot

1 Framed dry erase

2 Nobilis Computers

2 Logitech Keyboards & Mouse

2 V7 Flat screen Monitors

1 Mesh File Holder

2 Trash Cans

1 2-punch hole punch

1 Label Maker

1 Staples Calculator

1 Swingline Stapler

1 Scotch Tape Dispenser

Managers Office:

3 Large Framed wood photos

2 Large potted plants

1 2-drawer wood file cabinet

1 Large Executive Desk

1 Rolling Computer Desk Chair

2 Metal Guest Chairs

1 Tall wood book 3 Shelve Bookcase

1 Samsung Flat screen Monitor

1 Comdial Phone

1 Casio Calculator

1 HP Keyboard & mouse

1 HP Pro Computer

1 Trash Can

1 Set Logitech Speakers

1 3-punch hole puncher

Assistant Managers Office:

2 Wood Guest Chairs

1 Large Executive Desk

1 Large Computer Desk

1 Rolling Computer Chair

2 2-drawer File Cabinets

2 Mesh File divider/organizers

1 Trash Can

1 Paper Shredder

1 2-hole hole puncher

1 Sharp Calculator

1 Comdial Phone

1 Logitech Keyboard & Mouse

1 V7 Flatscreen Monitor

1 HP Computer

1 Desktop Monitor Stand

1 Business Card Holder

1 Tape Dispenser

1 Large Potted Plant

1 Digital Check Scanner

Office Supply/Copy Room:

1 4-drawer Metal File Cabinet

1 Sentry Safe

1 Classic Cut paper cutter

1 Staples Stapler

1 Small Dry Erase Board w/ markers& eraser

1 Large Dry Erase Board w/ markers& eraser

1 Short 3-shelve Bookcase

1 Handy track Keypad & Key Box

Pool:

12 Light Brown Chairs

12 Light Brown Lounge Chairs

16 Table Chairs

8 Beach Style Chairs (low sitting)

4 Patio/Pool Tables

4 Umbrellas

5 Small round side Tables

7 Potted Plants

2 Trash Cans

2 Smoke Ashcans

Fitness Center:

1 Purell Sanitizer holder

2 Vizio TV’s

1 Towel (wet) dispenser(antibacterial)

1 Brown wood cabinet

2 BH Fitness Treadmills

1 BH Fitness Elliptical

1 BH Fitness Recumbent bicycle

1 BH Fitness Curlbar bicycle

1 Hoist Bench

1 Free weight Rack

1 Set of 8lb Weights

1 Set of 15lbs Weights

1 Set of 20lbs Weights

1 Set of 10lbs Weights

1 Set of 35lbs Weights

1 Set of 25lbs Weights

1 Set of 40lbs Weights

1 Set of 50lbs Weights

1 Set of 45lbs Weights

1 Set of 55lbs Weights

1 Large Blue Yoga Ball

5 Med ball w/ Rack

1 Vision Fitness ST710 Multi- Station machine

Laundry Room:

4 Coinmatch coin operated washers

4 Coinmatch coin operated dryers

1 Folding Table

1 Trash Can

Model (Kitchen):

3 Wicker baskets

1 Decorative Cow

1 Wooden Plate

1 Decorative Apple

1 Ceramic Utensils holder

1 Decorative Rooster

3 Wooden cooking utensils

1 Ceramic Chili Spoon holder

1 Cookbook

1 Bookstand

4 Red Dinner plates

4 Wine Glasses

4 Black napkins

4 Placemats

1 Cherry Wood Dining Table

4 Cherry Wood Chairs

4 Plastic plates

Model (Living Room):

1 Metal Bow/Candle

2 Bar Stools (Beige Suede)

1 Green Sofa

1 Green Arm Chair

5 Decorative Pillows

1 Area Rug

1 Oval Glass Coffee Table

1 Wooden End Table

2 Metal Lamps

1 Center Piece w/ Faux Flowers

2 Candle Sticks

2 White Candles

1 Small CD Player/ Radio

1 Large Wall Entertainment Center

2 Bookshelves

1 Faux Book

1 “Happy” Decoration

1 Decorative Dice

1 Decorative Metal Jack

1 Metal Feather Decoration

2 Red Vases

2 Red Candles

1 Set Brown Curtains w/ Rod

2 Faux Potted Plants

Model (Guest Bedroom):

1 Oval End Table

1 Lamp

1 Set Curtains w Rod

1 Brown Blanket

1 Decorative Pillow

1 Paisley Chair

1 Fabric Desk Chair

1 Wooden Desk

1 Faux Book Decoration

1 Faux Red Flower

1 Green Candle w/plate

2 Wicker Drawers

2 Faux Plants

Model (Guest Bathroom):

2 Wash Cloths

1 Hand Towel

2 Bath Towels

1 Ceramic Tooth Brush Holder

1 Shower Curtain & Rings

1 Red Bath Mat

Model (Master Bedroom):

1 Set of Curtains w/ Rod

1 Lamp

1 Night Stand

1 Head Board/ Footboard

1 Queen Box Spring

1 Queen Mattress

1 Frame

8 Decorative Pillows

2 Comforters

1 Dresser w/ Mirror

1 Center Piece

1 Faux Plant

Model (Master Bathroom):

1 Shower Curtain w/ Rod

1 Candle/Rock Tray

5 Candles

2 Bath Towels

6 Hand Towels

1 Wicker Basket

1 Small Plant

Maintenance Office:

2 Desk

2 Desk chairs

1 Dell computer

1 Charging scale

1 Filing cabinet

1 Studio one Dell Monitor

Maintenance Shop:

1 Speed key machine

1 Louisville 6ft ladder

2 Boxes of plank flooring

1 Just rite yellow fire cabinet

1 52'' fan

1 OccuFresh Eye Wash Station

1 Large trash can

1 First aid kit

1 Microwave

3 Mini space heaters

2 Large space heaters

1 Lock out tagout kit

2 6 Ft Ladders

Maintenance Tool Garage:

1 A\C recovery machine

1 Vacuum pump

1 35 lbs recovery tank

1 30 lbs tank (R22)

1 Handheld pipe auger

1 Oxygen & acetylene torch kit

1 MI-T-T-M power washer

1 25 ft garden hose

2 50 ft garden hoses

2 4 ft fiberglass ladders

2 12 ft fiberglass ladders

1 12 gal Louisville wet/dry vacuum

1 Ozone machine

1 General mini rooter

1 Back pack sprayer

4 Miscellaneous shovels

1 Blue EZ Lesion Golf Cart (Good Shape)

1 Maroon EZ GO Golf Cart (Fair Shape)

1 White Gas Powered Yamaha (Fair Shape)

Business Center:

1 Round Granite Top Table

2 Wooden Guest Chairs

5 Rolling brown Computer Chairs

1 Rule Sign

1 Large framed Canvas Picture

1 Brother printer/scanner

1 Apple Keyboard & Mouse

1 iMac Computer/monitor combo

4 HP Computer/monitor combo

4 HP Keyboard & Mice

1 Large framed photo

1 Large Faux tree

Maid Closet:

1 Hoover Vacuum

3 Wet Floor Signs

3 Caution Orange Pylons

3 Mop & Mop Bucket

1 Dustpan

1 Broom

1 Swiffer

1 Aloha breeze Portable Fan

Package Closet:

1 4-Drawer Metal File Cabinet

1 Folding Table

1 Sherwood Surround Sound System

Telephone Closet:

3 Rolling Office Chairs

2 Tubs of Holiday Decorations

EXHIBIT D

LIST OF SERVICE CONTRACTS AND EQUIPMENT LEASES

EXHIBIT E

FORM OF DEED  

SPECIAL WARRANTY DEED

NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.

That WRPV XI FH AUSTIN L.P., a Texas limited partnership (“ Grantor ”), for the sum of TEN DOLLARS ($10.00) and other good and valuable consideration paid to Grantor by _____________________ (“ Grantee ”), whose address is ______________________________, the receipt and sufficiency of which considerations are hereby acknowledged and confessed by Grantor, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does GRANT, BARGAIN, SELL and CONVEY unto Grantee the real property situated in Travis County, Texas and more particularly described on the attached Exhibit A (the “ Property ”) , together with the Seller’s right, title and interest, if any, in and to all buildings and other improvements situated upon said Property; adjacent and/or contiguous streets, roads, avenues, alleys, and rights of way; all right, title and interest of Seller in rivers, streams, and strips and gores of land adjoining, adjacent and contiguous thereto; all easements, rights of ingress and egress, rights of way, and rights under any covenants, conditions and/or restrictions appurtenant to or affecting the Property; all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the Property; all right title, and interest of Seller in and to all oil, gas, coal, and other minerals, whether hydrocarbon or not, in, on or under or that may be produced from the Property; and all rights, titles and interests appurtenant to the Property and the foregoing items ;

TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto belonging, unto Grantee and Grantee’s successors and assigns, forever; and Grantor binds itself, its successors and assigns, TO WARRANT AND FOREVER DEFEND the Property, together with all and singular the rights and appurtenances thereto belonging, unto Grantee and Grantee’s successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof by, through, or under Grantor but not otherwise.

This Special Warranty Deed may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Any facsimile copies hereof or signature hereon shall, for all purposes, be deemed originals.

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Executed on the date of the acknowledgment herein below taken, to be effective as of the ___ day of ____________, 20__.

This instrument was acknowledged before me on the ________ day of __________, 20__, by ___________, Authorized Signatory of WRPV XI FH AUSTIN L.P., a Texas limited partnership, on behalf of and as the act and deed of said company.

[SEAL]

EXHIBIT A

TO

SPECIAL WARRANTY DEED

LEGAL DESCRIPTION

Lots 2 and 3, Block "A", PEDERNALES ELECTRIC COOPERATIVE-CIRCLE DRIVE, AUSTIN SUBDIVISION, a subdivision in Travis County, Texas, according to the map or plat thereof, recorded under Document No. 200600156 of the Official Public Records of Travis County, Texas.

EXHIBIT F

FORM OF BILL OF SALE

BILL OF SALE

KNOW ALL MEN BY THESE PRESENTS, that WRPV XI FH AUSTIN, L.P., a Delaware limited partnership ("Seller"), in consideration of Ten and 00/00 Dollars ($10.00), the receipt and sufficiency of which are hereby acknowledged, does hereby sell, assign, transfer, quit claim and set over unto _________________________________, a _______________________________ ("Buyer"), all personal property described on Exhibit A attached hereto (the "Personal Property") located at the property legally described on Exhibit B attached hereto.

TO HAVE AND TO HOLD the Personal Property unto Buyer and Buyer's legal representatives, successors and assigns forever.

THE PERSONAL PROPERTY SOLD HEREUNDER IS SOLD IN ITS "AS IS", "WHERE IS" CONDITION WITHOUT ANY REPRESENTATION OR WARRANTY BY SELLER. The covenants, agreements, indemnities and limitations provided in that certain Agreement of Purchase and Sale, dated as of ___________, 201__ (the "Agreement"), by and between Seller and Buyer, with respect to the property conveyed hereunder are hereby incorporated herein by this reference as if herein set out in full and shall inure to the benefit of and shall be binding upon Seller and Buyer and their respective successors and assigns.

This Bill of Sale shall be governed by Sections 7.1, 7.2, 14.3, 15.4 and 15.9 of the Agreement.

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IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the ___ day of ________, 2015.

EXHIBIT G

FORM OF ASSIGNMENT OF LEASES

ASSIGNMENT AND ASSUMPTION OF LEASES

FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, WRPV XI FH AUSTIN, L.P., a Delaware limited partnership ("Assignor"), hereby sells, transfers, assigns, delegates and sets over unto ___________________________, a _______________________________ ("Assignee"), its legal representatives, successors and assigns, all of Assignor's rights, title, interests, duties, obligations and liabilities accruing on or after the date hereof in, to and under those certain leases and other leasing agreements referred to on Exhibit A attached hereto (the "Leases") affecting the property legally described on Exhibit B attached hereto.

Assignee does hereby accept the foregoing assignment of the Leases, and does hereby assume and agree to perform, fulfill and observe all of the duties, obligations and liabilities to be performed, fulfilled or observed by the landlord under the Leases arising on and after the date hereof, as if Assignee was the original landlord under the Leases. Assignor shall defend, indemnify and hold harmless Assignee from and against any all Claims (as defined below) asserted against or incurred by Assignee as a result of any acts or omissions of Assignor prior to the date of this Assignment and Assignee shall defend, indemnify and hold harmless Assignor from and against any all Claims asserted against or incurred by Assignor as a result of any acts or omissions of Assignee on or after the date of this Assignment. "Claims" means claims, demands, causes of action, losses, damages, liabilities, judgments, costs and expenses (including attorneys' fees, whether suit is instituted or not). Notwithstanding the foregoing, Assignor shall have no liability whatsoever to Assignee for any Claims: (a) unless the valid Claims collectively aggregate more than Fifty Thousand Dollars ($50,000), in which event the full amount of such valid Claims along with (i) any amount due by Assignor pursuant to the Assignment and Assumption of Contracts and Additional Property of even date herewith made by Assignor and Assignee, and (ii) Section 6.5 of the Agreement shall be actionable up to, but not in excess of Four Hundred Fifty Thousand Dollars ($450,000) (the “Cap”) in the aggregate for all liability; and (b) unless written notice containing a description of the specific nature of any such Claims shall have been given by Assignee to Assignor prior to the end of the Survival Period and an action shall have been commenced by Assignor against Assignee within nine (9) months after the date of this Assignment. In no event shall Assignor be liable for any incidental, consequential or punitive damages, or for any damages in excess of the Cap.

The covenants, agreements, indemnities and limitations provided in that certain Agreement of Purchase and Sale, dated as of January __, 2015, by and between Assignor and Assignee (the “Agreement”), with respect to the property conveyed hereunder are hereby incorporated herein by this reference as if herein set out in full and shall inure to the benefit of and shall be binding upon Assignor and Assignee, and their respective successors and assigns.

This Assignment and Assumption of Leases shall be governed by Sections 7.1, 7.2, 14.3, 15.4 and 15.9 of the Agreement.

This Assignment and Assumption of Leases may be executed in counterparts, and as so executed shall constitute one and the same agreement.

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IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption of Leases as of the ____ day of ___________, 2015.

EXHIBIT H

FORM OF ASSIGNMENT OF CONTRACTS AND ADDITIONAL PROPERTY

ASSIGNMENT AND ASSUMPTION OF CONTRACTS

AND ADDITIONAL PROPERTY

FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, WRPV XI FH AUSTIN, L.P., a Delaware limited partnership (“Assignor”), hereby sells, transfers, assigns, delegates and sets over unto _____________________________, a _____________________________ (“Assignee”), its legal representatives, successors and assigns, all of Assignor’s rights, title, interests, duties, obligations and liabilities accruing on or after the date hereof under or with respect to the “Service Contracts” and “Additional Property,” as such terms are defined and described in that certain Agreement of Purchase and Sale, dated as of ___________, 2015, by and between Assignor and Assignee (the “Agreement”), which relate to the operation of the property described on Exhibit A attached hereto (the “Property”).

Assignee does hereby accept the foregoing assignment of the Service Contracts and the Additional Property, and does hereby assume and agree to perform, fulfill and observe all of the duties, obligations and liabilities to be performed, fulfilled or observed by the owner of the Property under or with respect to the Service Contracts or the Additional Property arising on and after the date hereof, as if Assignee was the original named party under the Service Contracts and with respect to the Additional Property. Assignor shall defend, indemnify and hold harmless Assignee from and against any all Claims (as defined below) asserted against or incurred by Assignee as a result of any acts or omissions of Assignor prior to the date of this Assignment and Assignee shall defend, indemnify and hold harmless Assignor from and against any all Claims asserted against or incurred by Assignor as a result of any acts or omissions of Assignee on or after the date of this Assignment. "Claims" means claims, demands, causes of action, losses, damages, liabilities, judgments, costs and expenses (including attorneys' fees, whether suit is instituted or not). Notwithstanding the foregoing, Assignor shall have no liability whatsoever to Assignee for any Claims: (a) unless the valid Claims collectively aggregate more than Fifty Thousand Dollars ($50,000), in which event the full amount of such valid Claims along with (i) any amount due by Assignor pursuant to the Assignment and Assumption of Leases of even date herewith made by Assignor and Assignee, and (ii) Section 6.5 of the Agreement shall be actionable up to, but not in excess of Four Hundred Fifty Thousand Dollars ($450,000) (the “Cap”) in the aggregate for all liability; and (b) unless written notice containing a description of the specific nature of any such Claims shall have been given by Assignee to Assignor prior to the end of the Survival Period and an action shall have been commenced by Assignor against Assignee within nine (9) months after the date of this Assignment. In no event shall Assignor be liable for any incidental, consequential or punitive damages, or for any damages in excess of the Cap.

The covenants, agreements, representations, warranties, indemnities and limitations provided in the Agreement, with respect to the interests conveyed hereunder are hereby incorporated herein by this reference as if herein set out in full. This Assignment and Assumption of Contracts and Additional Property shall be binding on and shall inure to the benefit of Assignor and Assignee, and their respective legal representatives, heirs, successors and assigns, and shall also be governed by Sections 7.1, 7.2, 14.3, 15.4 and 15.9 of the Agreement.

This Assignment and Assumption of Contracts and Additional Property may be executed in counterparts, and as so executed shall constitute one and the same agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption of Contracts and Additional Property as of the ___________, 2015.

EXHIBIT I

FORM OF NOTICE TO TENANTS

_____________, 2015

Ladies and Gentlemen:

You are hereby advised that the above referenced property in which you are a tenant was sold and your lease was assigned and transferred effective as the date of this letter to [BUYER]. Responsibility for your security deposit, if any, has been transferred to the new owner, whose address is set forth below. The above referenced property will  be managed by [MANAGEMENT COMPANY] and all checks for rent and other charges should be made payable to [BUYER] and  forwarded to:

[MANAGEMENT COMPANY]

[Property Address]

In accordance with the terms of your lease, copies of all future notices to landlord should be sent to:

[BUYER]

If you have any questions or need any additional information, please feel free to contact the management office at  [Telephone Number].

Sincerely,

EXHIBIT J

ESCROW AGREEMENT

Escrow No.:____________

Date: January ___, 2015

EARNEST MONEY ESCROW AGREEMENT

The sum of $250,000 of earnest money will be deposited with Heritage Title Company of Austin, as escrowee ("Escrowee"), on or about the time of the execution of this Escrow Agreement, and an additional $150,000 of earnest money may be deposited with Escrowee, subject to and in accordance with the terms and conditions of Section 2.2 of the Agreement of Purchase and Sale described below. All of the funds deposited with Escrowee hereunder shall be disbursed by Escrowee only in accordance with this Earnest Money Escrow Agreement (this “Escrow Agreement”).

Escrowee is hereby expressly authorized to comply with and obey any and all orders or decrees entered or issued by any court, with or without jurisdiction, and in case Escrowee obeys or complies with any such order or decree of any court it shall not be liable to any of the parties hereto or any other person, firm or corporation by reason of such compliance, notwithstanding any such order or decree being entered without jurisdiction or being subsequently reversed, modified, annulled, set aside or vacated. In case of any suit or proceeding regarding this Escrow Agreement to which Escrowee is or may at any time become a party (except a suit or proceeding arising from Escrowee’s breach of its obligations hereunder), Escrowee shall have a lien on the contents hereof for any and all out-of-pocket costs, including reasonable attorneys' fees, whether such attorneys shall be regularly retained or specially employed, and any other reasonable expenses which it may have incurred or become liable for on account thereof, and it shall be entitled to reimburse itself therefor out of said deposit, and the undersigned jointly and severally agree to pay Escrowee, upon demand, all such costs, fees and expenses so incurred. In no case shall the above mentioned deposits be surrendered except on an order signed by the parties hereto, their respective legal representatives or assigns, or in obedience of the process or order of court as aforesaid, or in compliance with the Agreement of Purchase and Sale described below.

Deposits made pursuant to these instructions shall be invested on behalf of Buyer; provided that any direction to Escrowee for such investment shall be expressed in writing, and also provided that Escrowee is in receipt of the taxpayer's identification number and investment forms as required. Escrowee will, upon request, furnish information concerning its procedures and fee schedules for investment.

In the event the Escrowee is requested to invest deposits hereunder, Escrowee is not to be held responsible for any loss of principal or interest which may be incurred as a result of making the investment for the purposes of these escrow instructions unless such loss results from the gross negligence or intentional misconduct of Escrowee.

Except as to deposits of funds for which Escrowee has received express written direction concerning investment or other handling, the parties hereto agree that the Escrowee shall be under no duty to invest or reinvest any deposits at any time held by it hereunder. Escrowee may commingle any uninvested deposits with other deposits or with its own funds in the manner permitted under applicable law; provided, however, nothing herein shall diminish Escrowee's obligation to apply the full amount of the deposits, plus all interest and earnings thereon, in accordance with the terms of this Escrow Agreement.

The undersigned Buyer and Seller acknowledge that the amount deposited hereunder is the Earnest Money described in and governed by that certain Agreement of Purchase and Sale dated January ___ 2015, between the undersigned Seller and Buyer (the "Agreement"). Seller and Buyer agree to execute all joint directions and take all other actions required hereunder to cause the Earnest Money to be disbursed and applied in the manner required under said Agreement. If Escrowee shall receive an instruction (hereinafter the “Instruction”) with respect to the Earnest Money that is contrary to the Agreement, or any part thereof, from Seller but not from Buyer, or from Buyer but not from Seller (the party giving the Instruction being hereinafter referred to as the “Instructing Party” and the party which shall not have given the Instruction being hereinafter referred to as the “Non-Instructing Party”), Escrowee shall transmit a copy of the Instruction received from the Instructing Party to the Non-Instructing Party. Escrowee shall refrain from acting in accordance with the Instruction for three (3) business days after receipt of such Instruction, and thereafter shall act in accordance with the Instruction unless the Non-Instructing Party shall have notified Escrowee in writing within such three (3) business day period objecting to the disbursement of the Earnest Money in accordance with the Instruction. Each party shall only object if it has a good faith basis to do so. If the Non-Instructing Party shall advise Escrowee not to comply with the Instruction within such three (3) business day period, Escrowee shall not act in accordance with the Instruction, but may thereafter either

(a)         act solely in accordance with any of the following:

(i)       a new Instruction signed jointly by Seller and Buyer;

(ii)      separate Instructions of like tenor from each of Seller and Buyer;

(iii)     a certified copy of an arbitrator’s award issued under the rules of the American Arbitration Association as to which Escrowee shall have received an opinion of a law firm satisfactory to Escrowee in its sole and absolute discretion that such award is final beyond appeal; or

(iv)     a certified copy of a judgment of a court of competent jurisdiction as to which Escrowee shall have received an opinion of a law firm satisfactory to Escrowee in its sole and absolute discretion that such award is final beyond appeal; or

(b)        deposit the Earnest Money with a court selected by Escrowee and in such event all liability and responsibility of Escrowee shall terminate upon such deposit having been made.

Escrowee is acting only for the accommodation of the parties and in performing its duties, shall not be liable for: a) any loss, costs or damage which it may incur as result of serving as Escrowee hereunder, except for any loss, costs or damage arising out of its intentional misconduct or gross negligence, b) any action taken or omitted to be taken in reliance upon any document, escrow instructions, including any written instructions provided for in this Escrow Agreement, which Escrowee shall in good faith believe to be genuine, and c) any loss or impairment of the deposits deposited with a federally insured financial institution, resulting from the failure, insolvency, or suspension of the depository. Buyer and Seller hereby agree to indemnify and hold Escrowee harmless against any and all losses, claims, damages, liabilities and expenses, including reasonable attorneys’ fees, which may be incurred by Escrowee in connection with it serving as Escrowee hereunder.

Any notice, report, demand or instruction required or permitted under this Escrow Agreement shall be deemed to have been sufficiently transmitted, delivered, given or served for all purposes if delivered by nationally recognized overnight courier service which provides a receipt to the parties at their addresses hereinabove set forth below or at such other address as a party may hereafter designate by written notice as herein provided. The effective date of delivery or transmittal of a notice, report, demand or instruction shall be the actual date that delivery is effected.

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Exhibit 10.2

ASSIGNMENT OF AGREEMENT OF PURCHASE AND SALE

BLUEROCK REAL ESTATE, L.L.C., a Delaware limited liability company (“ Assignor ”), hereby assigns and transfers all of its right, title and interest as the “Buyer” under and pursuant to that certain Agreement of Purchase and Sale between WRPV XI FH AUSTIN, L.P., a Delaware limited partnership (“ Seller ”), and Assignor, as Buyer, having an effective date of January 19, 2015, as from time to time amended (the “ Purchase Agreement ”), to BR FOX HILLS TIC-1, LLC, a Delaware limited liability company, and BR FOX HILLS TIC-2, LLC, a Delaware limited liability company, as tenants in common (individually and together, “ Assignee ”).

As consideration for the foregoing assignment, Assignee shall assume and perform all of the rights and obligations of Assignor under the Purchase Agreement. Notwithstanding such assignment, Assignor and Assignee shall be jointly and severally liable to Seller for the Buyer’s obligations under the Purchase Agreement.

This Assignment of Agreement of Purchase and Sale may be executed in multiple counterparts, all of which together shall constitute one and the same original.

This Assignment of Agreement of Purchase and Sale shall be governed by, and interpreted in accordance with, the laws of the State of Texas.

[SIGNATURES TO FOLLOW]

DATE:         March 5, 2015

Exhibit 10.3

TENANTS IN COMMON AGREEMENT

This TENANTS IN COMMON AGREEMENT (“Agreement”) dated March 26, 2015, by and among BR FOX HILLS TIC-1, LLC , a Delaware limited liability company (“TIC-1”), and BR FOX HILLS TIC-2, LLC , a Delaware limited liability company (“TIC-2”) (together with any other persons or parties who acquire an interest and assume the rights and obligations hereunder by written instrument, each sometimes referred to as a “Tenant in Common” or collectively as the “Tenants in Common”), with reference to the facts set forth below.

RECITALS

A.           The Tenants in Common own real property and improvements thereon, located at 8800 Highway 290 West, Austin, Texas, and more particularly described in Exhibit A attached hereto and incorporated herein (“Property”). The notice addresses for the Tenants in Common, and percentage interest held by each Tenant in Common in the Property, are set forth on Exhibit B attached hereto and incorporated herein.

B.           The Tenants in Common desire to enter into this Agreement to (a) provide for the orderly administration of their rights and responsibilities as to each other and as to others and (b) delegate authority and responsibility for the intended further operation and management of the Property.

NOW, THEREFORE, in consideration of the mutual covenants and conditions contained in this Agreement and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties agree as set forth below.

1.             Nature of Relationship Between Co-Tenants .

1.1            Tenants in Common Relationship; No Partnership . The Tenants in Common each shall hold their respective undivided tenancy in common interests in the Property (the “Interests”) as tenants-in-common. The Tenants in Common do not intend by this Agreement to create a partnership or joint venture among themselves, but merely to set forth the terms and conditions upon which each of them shall hold their respective Interests. In addition, the Tenants in Common do not intend to create a partnership or joint venture with the Property Manager (as defined below). Therefore, each Tenant in Common hereby elects to be excluded from the provisions of Subchapter K of Chapter 1 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to the tenancy in common ownership of the Property. The exclusion elected by the Tenants in Common hereunder shall commence with the execution of this Agreement.

1.2            Reporting as Direct Owners and Not a Partnership . Each Tenant in Common hereby covenants and agrees to report on such Tenant in Common’s respective federal and state income tax returns all items of income, deduction and credits that result from its Interests. All such reporting shall be consistent with the exclusion of the Tenants in Common from Subchapter K of Chapter 1 of the Code, commencing with the first taxable year following the execution of this Agreement. Further, each Tenant in Common covenants and agrees not to notify the Commissioner of Internal Revenue (“Commissioner”) that it desires that Subchapter K of Chapter 1 of the Code apply to the Tenants in Common.

1.3            Indemnity . Each Tenant in Common hereby agrees to indemnify, protect, defend and hold the other Tenant in Common free and harmless from all costs, liabilities, tax consequences and expenses (for example, taxes, interest and any penalties), including, without limitation, attorneys’ fees and costs, which may result from any Tenant in Common so notifying the Commissioner in violation of this Agreement or otherwise taking a contrary position on any tax return, report or other document.

1.4            No Agency . No Tenant in Common is authorized to act as agent for, to act on behalf of, or to do any act that will bind, any other Tenant in Common, or to incur any obligations with respect to the Property.

2.              Management . The Tenants in Common are currently parties to (or are concurrently herewith becoming parties to) a Property Management Agreement with respect to the Property (as amended, the “Property Management Agreement”) with Bluerock Property Management, LLC, a Michigan limited liability company (which in turn with subcontract management services with Bell Partners, Inc. a North Carolina corporation (“Bell”)) (the “Property Manager”). Pursuant to the Property Management Agreement, the Property Manager shall be the sole and exclusive manager of the Property to act on behalf of the Tenants in Common with respect to the management, operation, maintenance and leasing of the Property during the term of the Property Management Agreement. The Property Management Agreement (and the subcontract between Property Manager and Bell) is hereby ratified and reconfirmed by the Tenants in Common, and all of the terms, covenants and conditions of the Property Management Agreement are hereby incorporated herein as if set forth in full herein.

3.              Income and Liabilities . Except as otherwise provided herein and in the Property Management Agreement, each of the Tenants in Common shall be entitled to all benefits and obligations of ownership of the Property. Accordingly, each of the Tenants in Common shall (a) be entitled to all benefits of ownership of the Property, on a gross and not a net basis, including, without limitation, all items of income, revenue and proceeds from sale or refinance or condemnation of the Property, in proportion to their respective Interests, and (b) bear, and shall be liable for, payment of all expenses of ownership of the Property, on a gross and not a net basis, including by way of illustration, but not limitation, all operating expenses and expenses of sale or refinancing or condemnation, in proportion to their respective Interests; except for such amounts as may be reasonably determined by the Tenants in Common or by the Property Manager (to the extent that the Property Manager has the authority to make such a determination pursuant to the Property Management Agreement) to be retained for reserves or improvements in accordance with the Property Management Agreement or the applicable budget for the Property.

4.              Co-Tenant’s Obligations . The Tenants in Common each agree to perform such acts as may be reasonably necessary to carry out the terms and conditions of this Agreement, including, without limitation:

4.1            Documents . Executing documents required in connection with the acquisition, financing, sale or refinancing of the Property approved by the Tenants in Common in accordance with Section 5 below and such additional documents as may be required under this Agreement or may be reasonably required to effect the intent of the Tenants in Common with respect to the Property, the Property Management Agreement or any loans encumbering the Property, including that certain mortgage loan (the “Existing Loan”) evidenced by that certain Multifamily Note (“Note”) dated March 26, 2015 in the original principal amount of $26,705,000.00 issued by the Tenants in Common to Walker & Dunlop, LLC and currently held by Fannie Mae (Walker & Dunlop, LLC, Fannie Mae and their respective successors and assigns as the holder of the Note are referred to herein as the “Mortgage Lender”).

4.2            Additional Funds . Each Tenant in Common will be responsible for a pro rata share (based on each Tenant in Common’s respective Interests) of any future cash needed for any purpose in connection with the ownership, operation and maintenance of the Property as determined by the Tenants in Common (including under any budget applicable to the Tenants in Common) or by the Property Manager (and approved by the Tenants in Common) pursuant to the Property Management Agreement or as required by any loan secured by the Property, including the Existing Loan. In addition to the foregoing, in the event that any lender under financing secured by the Property, including the Existing Loan, elects to pursue one or more, but not all, of the Tenants in Common based on the joint and several liability of the Tenants in Common under such financing, then any Tenants in Common that paid (either in cash or through foreclosure of its Interest) in excess of its allocable share of the financing shall be entitled to reimbursement by the remaining Tenants in Common for any excess share paid by such Tenant in Common; provided that no such reimbursement shall be sought or enforced at any time prior to the timely repayment in full of the Existing Loan. Further, any Tenant in Common who breaches any of the recourse exceptions to the non-recourse nature of any such financing, including the Existing Loan, shall be liable to reimburse any other Tenant in Common (or party(ies) related thereto or owner(s) thereof) for any amounts paid by such other party (or if such other party likewise was responsible for such breach, then such Tenant in Common shall pay an amount equal to its allocable share thereof); provided that no such liability shall be sought or enforced at any time prior to the timely repayment in full of the Existing Loan. To the extent any Tenant in Common fails to pay any such funds within fifteen (15) days after its receipt of notice that such additional funds are required, any other Tenant(s) in Common may loan any such funds to the nonpaying Tenant(s) in Common, who shall be liable on a fully recourse basis to repay the paying Tenant(s) in Common the amount of any such loan plus interest thereon at the rate of eighteen percent (18%) per annum (but not more than the maximum rate allowed by law) within thirty one (31) days of funding the loan. In addition, the Property Manager is hereby authorized and directed to pay the Tenant(s) in Common entitled to reimbursement the sum loaned (with interest thereon as provided above) out of future cash from operations or from the sale or refinancing of the Property or other distributions otherwise due the nonpaying Tenant(s) in Common pursuant to the Property Management Agreement. The remedies against a nonpaying Tenant in Common provided for herein are in addition to any other remedies that may otherwise be available, including by way of illustration, but not limitation, the right to obtain a lien against the Interests of the nonpaying Tenant in Common to the extent allowed by law and by any third party financing secured by the Property (including the Existing Loan). By executing this Agreement, each Tenant in Common agrees (i) that any such short term loan will be made on a fully recourse basis, (ii) if such Tenant in Common is an entity that is, for federal tax purposes, disregarded, such loan shall be recourse to the owners of such disregarded entity, and (iii) to repay such loan within thirty-one (31) days of funding. So long as there is outstanding any balance on the Existing Loan, the Tenants in Common each waive any and all lien rights it holds against another Tenant in Common, including for a failure to pay funds under this Section 4.2 or for a failure of such Tenant in Common to perform its obligations as a Tenant in Common, whether under this Agreement or at law.

5.              Sale or Encumbrance of Property .

5.1            Approval . The taking of any of the Major Decisions regarding the Property set forth in Exhibit D attached hereto and incorporated herein shall be subject to the prior unanimous approval by the Tenants in Common. The Tenants in Common, by their execution hereof, shall be deemed to have approved the Existing Loan affecting the Property.

5.2            Distribution of Loan or Sales Proceeds . Notwithstanding any other provisions of this Agreement, proceeds of a loan or sale shall be distributed at the closing of the loan or the sale as set forth below.

5.2.1           To the extent necessary, the proceeds first shall be used to pay in full any loans encumbering title to the Property, including the Existing Loan.

5.2.2           The proceeds next shall be used to pay all outstanding costs and expenses incurred in connection with the holding, marketing, financing and/or sale of the Property.

5.2.3           To the extent necessary, the proceeds next shall be used to pay in full any unsecured loans made or allocable to the Tenants in Common with respect to the Property.

5.2.4           Any proceeds remaining shall be paid to each Tenant in Common in accordance with their respective Interests as provided in Section 3 above.

5.3            Purchase Rights . In the event that the Tenants in Common are unable to obtain unanimous approval of any Major Decision pursuant to Section 5.1, then either Tenant in Common may exercise the purchase rights set forth and described in Exhibit E attached hereto and incorporated herein.

6.              Possession . The Tenants in Common intend to lease the Property at all times. Accordingly, no Tenant in Common shall have the right to occupy or use the Property at any time during the term of this Agreement and hereby expressly waive any such right.

7.              Transfer or Encumbrance . Except as specifically provided in this Agreement and subject to compliance with any loan (and associated loan documents) secured by the Property, including the Existing Loan, each Tenant in Common may sell, transfer, convey, pledge, encumber or hypothecate the Interests or any part thereof, provided that (a) any transferee shall take such Interests subject to this Agreement and the Property Management Agreement, (b) the transferor and transferee shall execute and cause to be recorded an assignment and assumption agreement whereby (i) transferor assigns to transferee, to the extent of the Interests being transferred, all of its right, title and interest in and to this Agreement and the Property Management Agreement; and (ii) transferee assumes and agrees to perform faithfully and to be bound by all of the terms, covenants, conditions, provisions and agreements of this Agreement and the Property Management Agreement with respect to the Interests to be transferred and (c) such transferor and transferee shall execute and cause to be recorded any related loan assumption agreements required by the lender under any financing secured by the Property, including the Existing Loan. Upon execution and recordation of such assumption agreements, the transferee shall become a party to this Agreement and the Property Management Agreement and any such financing without further action by the other Tenants in Common.

8.              Right of Partition .

8.1            General . The Tenants in Common agree generally that any Tenant in Common (and any of its successors-in-interest) shall have the right, while this Agreement remains in effect, to have the Property partitioned, and to file a complaint or institute any proceeding at law or in equity to have the Property partitioned, in accordance with, and to the extent provided by, applicable law. The Tenants in Common acknowledge and agree that partition of the Property may result in a forced sale by all of the Tenants in Common. To avoid the inequity of a forced sale and the potential adverse effect on the investment by the other Tenants in Common, the Tenants in Common agree that, as a condition precedent to filing a partition action, the Tenant in Common intending to file such action shall follow the buy-sell procedure set forth in Section 10.

8.2            Lender Mandate . Notwithstanding the general provision of Section 8.1, as a condition of the Mortgage Lender making the Existing Loan to the Tenants in Common to acquire the Property or, if required by any subsequent lender in connection with the refinancing of the Existing Loan or any subsequent loan secured by the Property, the Tenants in Common shall be deemed to have waived, for the entire term of any such loan (including, without limitation, the Existing Loan), their right to partition the Property or to file a complaint or institute any proceeding at law or in equity to have the Property partitioned in accordance with local law.

9.              Bankruptcy . To avoid the inequity of a forced sale and the potential adverse effect on the investment of the other Tenants in Common, the Tenants in Common agree that, as a condition precedent to entering into this Agreement, the Tenant in Common causing an Event of Bankruptcy (as defined below) shall follow the buy-sell procedure set forth in Section 10. The Tenants in Common agree that the following shall constitute an “Event of Bankruptcy” with respect to any Tenant in Common (and any of its successors-in-interests): if a receiver, liquidator or trustee is appointed for any Tenant in Common, if any Tenant in Common becomes insolvent, makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts generally as they become due if any petition for bankruptcy, reorganization, liquidation or arrangement pursuant to federal bankruptcy law, or similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, any Tenant in Common; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by such Tenant in Common then, upon the same not being discharged, stayed or dismissed within thirty (30) days thereof.

10.            Buy-Sell Procedure . Prior to the filing of a partition action in accordance with Section 8 or upon the occurrence of an Event of Bankruptcy in accordance with Section 9, the Tenant in Common filing such action or the subject of the Event of Bankruptcy (hereinafter, “Seller”) shall first make a written offer (“Offer”) to sell its Interest to the other Tenant in Common at a price equal to (a) the Fair Market Value (as defined below) of Seller’s undivided Interest minus (b) Seller’s proportionate share of any selling, prepayment or other costs that would apply in the event the Property was sold on the date of the offer. The other Tenant in Common shall be entitled to purchase the selling Tenant in Common’s Interest in the Property. “Fair Market Value” shall mean the fair market value of Seller’s undivided Interest in the Property (reduced by liabilities secured by the Property or liabilities taken subject to) on the date the Offer is made as determined in accordance with the procedures set forth below. The other Tenant in Common shall have twenty (20) days after delivery of the Offer to accept the Offer. If the other Tenant in Common (the Tenant in Common electing to accept the Offer, “Purchaser”) accepts the Offer, Seller and Purchaser shall commence negotiation of the Fair Market Value within fifteen (15) days after the Offer is accepted. If the parties do not agree, after good faith negotiations, within ten (10) days, then each party shall submit to the other a proposal containing the Fair Market Value the submitting party believes to be correct (each a “Proposal”). If either Purchaser or Seller fails to timely submit a Proposal, the other party’s submitted Proposal shall determine the Fair Market Value. If both Purchaser and Seller timely submit Proposals, then the Fair Market Value shall be determined by final and binding arbitration in accordance with the procedures set forth below. Purchaser and Seller shall meet, telephonically or at a mutually agreeable location, within seven (7) days after delivery of the last Proposal and make a good faith attempt to mutually appoint a certified MAI real estate appraiser who shall have been active full-time over the previous five (5) years in the appraisal of comparable properties located in Austin, Texas to act as the arbitrator. If Purchaser and Seller are unable to agree upon a single arbitrator, then Purchaser and Seller each, within five (5) days after the meeting, shall select an arbitrator that meets the foregoing qualifications. The two (2) arbitrators so appointed, within fifteen (15) days after their appointment, shall appoint a third arbitrator meeting the foregoing qualifications; provided, however, if one party fails to appoint an arbitrator in such period, then the one appointed arbitrator shall make such determination itself without the need for an additional, or third, arbitrator to be appointed or chosen. The determination of the arbitrator(s) shall be limited solely to the issue of whether Seller’s or Purchaser’s Proposal most closely approximates the Fair Market Value. The decision of the single arbitrator or of the arbitrator(s) shall be made within thirty (30) days after the appointment of a single arbitrator or the third arbitrator, as applicable. The arbitrator(s) shall have no authority to create an independent structure of fair market value or prescribe or change any or several of the components or the structure thereof; the sole decision to be made shall be which of the parties’ Proposals most closely corresponds to the Fair Market Value. The decision of the single arbitrator or majority of the three (3) arbitrators shall be binding upon Purchaser and Seller. If Purchaser or Seller fails to appoint an arbitrator within the time period specified above, the arbitrator appointed by one of them shall reach a decision that shall be binding upon the parties. The cost of the arbitrators shall be paid equally by Seller and Purchaser. The arbitration shall be conducted in New York City, New York, in accordance with applicable Texas law, as modified by this Agreement. The parties agree that Federal Arbitration Act, Title 9 of the United States Code, shall not apply to any arbitration hereunder. The parties shall have no discovery rights in connection with the arbitration. The decision of the arbitrator(s) may be submitted to any court of competent jurisdiction by the party designated in the decision (i.e., New York, Delaware or Texas, as applicable). Such party shall submit to the applicable court having subject matter jurisdiction a form of judgment incorporating the decision of the arbitrator(s), and such judgment, when signed by a judge of such court, shall become final for all purposes and shall be entered by the clerk of the court on the judgment roll of the court. If either Purchaser or Seller refuses to arbitrate an arbitrable dispute and the party demanding arbitration obtains a court order directing the other to arbitrate, the party demanding arbitration shall be entitled to all of its reasonable attorneys’ fees and costs in obtaining such order, regardless of which party ultimately prevails in the matter. BY EXECUTING THIS AGREEMENT, EACH TENANT IN COMMON AGREES TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY TEXAS LAW AND EACH TENANT IN COMMON KNOWINGLY GIVES UP ANY RIGHTS IT MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY EXECUTING THIS AGREEMENT EACH TENANT IN COMMON GIVES UP ITS JUDICIAL RIGHTS TO APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF TEXAS LAW. EACH TENANT IN COMMON’S AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. Once the Fair Market Value is determined, the Purchaser shall be obligated to acquire the Seller’s Interest. The closing of the purchase shall occur at or through a mutually agreeable title company where the Property is located within thirty (30) days from the date a Fair Market Value is determined, whether by agreement or arbitration. Closing costs and prorations shall be allocated as is standard practice where the Property is located.

11.            General Provisions .

11.1          Mutuality; Reciprocity; Runs With the Land . All provisions, conditions, covenants, restrictions, obligations and agreements contained herein or in the Property Management Agreement are made for the direct, mutual and reciprocal benefit of each and every part of the Property; shall be binding upon and shall inure to the benefit of each of the Tenants in Common and their respective heirs, executors, administrators, successors, assigns, devisees, representatives, lessees and all other persons acquiring any undivided interest in the Property or any portion thereof whether by operation of law or any manner whatsoever (collectively, “Successors”); shall create mutual, equitable servitudes and burdens upon the undivided Interest in the Property of each Tenant in Common in favor of the Interest of every other Tenant in Common; shall create reciprocal rights and obligations between the respective Tenants in Common, their Interests in the Property, and their Successors; and shall, as to each of the Tenants in Common and their Successors operate as covenants running with the land, for the benefit of the other Tenants in Common pursuant to applicable law. It is expressly agreed that each covenant contained herein or in the Property Management Agreement (i) is for the benefit of and is a burden upon the undivided Interests in the Property of each of the Tenants in Common, (ii) runs with the undivided Interest in the Property of each Tenant in Common, and (iii) benefits and is binding upon each Successor owner during its ownership of any undivided Interest in the Property, and each owner having any interest therein derived in any manner through any Tenant in Common or Successor. Every person or entity who now or hereafter owns or acquires any right, title or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and agreed to every restriction, provision, covenant, right and limitation contained herein or in the Property Management Agreement, whether or not such person or entity expressly assumes such obligations or whether or not any reference to this Agreement or the Property Management Agreement is contained in the instrument conveying such interest in the Property to such person or entity. The Tenants in Common agree that, subject to the restrictions on transfer contained herein, any Successor shall become a party to this Agreement and the Property Management Agreement upon acquisition of an undivided interest in the Property as if such person was a Tenant in Common initially executing this Agreement.

11.2          Binding Arbitration . Any controversy arising out of or related to this Agreement or the breach thereof or an investment in the interests shall be settled by arbitration in New York City, New York , in accordance with the rules of The American Arbitration Association, and judgment entered upon the award rendered may be enforced by appropriate judicial action pursuant to Texas law. The arbitration panel shall consist of one member, which shall be the mediator if mediation has occurred or shall be a person agreed to by each party to the dispute within 30 days following notice by one party that it desires that a matter be arbitrated. If there was no mediation and the parties are unable within such 30 day period to agree upon an arbitrator, then the panel shall be one arbitrator selected by the New York City, New York office of The American Arbitration Association, which arbitrator shall be experienced in the area of real estate and who shall be knowledgeable with respect to the subject matter area of the dispute. The losing party shall bear any fees and expenses of the arbitrator, other tribunal fees and expenses, reasonable attorneys’ fees of both parties, any costs of producing witnesses and any other reasonable costs or expenses incurred by it or the prevailing party or such costs shall be allocated by the arbitrator. The arbitration panel shall render a decision within thirty (30) days following the close of presentation by the parties of their cases and any rebuttal. The parties shall agree within thirty (30) days following selection of the arbitrator to any prehearing procedures or further procedures necessary for the arbitration to proceed, including interrogatories or other discovery; provided, in any event each Tenant in Common shall be entitled to discovery in accordance with Texas law.

11.3          Attorneys’ Fees . If any action or proceeding is instituted between all or any of the Tenants in Common arising from or related to or with this Agreement, the Tenant in Common or Tenants in Common prevailing in such action or arbitration shall be entitled to recover from the other Tenant in Common or Tenants in Common all of its or their costs of action or arbitration, including, without limitation, reasonable attorneys’ fees and costs as fixed by the court or arbitrator therein.

11.4          Entire Agreement . This Agreement, together with the Property Management Agreement, constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations, negotiations and understandings of the parties hereto, oral or written, are hereby superseded and merged herein.

11.5          Governing Law . This Agreement shall be governed by and construed under the internal laws of the State of Texas without regard to choice of law rules.

11.6          Modification . No modification, waiver, amendment, discharge or change of this Agreement shall be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver, amendment, discharge or change is or may be sought. The assumption of a new Tenant in Common of this Agreement through the acquisition of an undivided interest in the Property, whether pursuant to the execution of a new Tenants in Common Agreement with identical terms as this Agreement, the execution of a counterpart of this Agreement or the execution of an assignment and assumption instrument applicable to this Agreement, shall not constitute a modification of this Agreement requiring the consent to, or execution of, such instrument by the other Tenants in Common under this Agreement. So long as there is outstanding any balance on the Existing Loan, no termination, modification or waiver of the Agreement may be made without the Mortgage Lender’s written consent.

11.7          Notice and Payments .

11.7.1   Any notice to be given or other document or payment to be delivered by any party to any other party hereunder may be delivered in person, or may be deposited in the United States mail, duly certified or registered, return receipt requested, with postage prepaid, or by Federal Express or other similar overnight delivery service, and addressed to the Tenants in Common at the addresses specified below or in any instrument effecting an assignment and assumption hereof. Any party hereto from time to time, by written notice to the others (and Mortgage Lender), may designate a different address (or phone number) that shall be substituted for the one above specified. Unless otherwise specifically provided for herein, all notices, payments, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly given and received (i) upon personal delivery, or (ii) as of the third business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as set forth above, or (iii) the immediately succeeding business day after deposit with Federal Express or other similar overnight delivery system.

11.7.2   For all purposes of the Existing Loan, the Tenants in Common hereby designate Bluerock Asset Management, LLC, c/o Bluerock Real Estate, L.L.C., 712 Fifth Avenue, 9th Floor, New York, New York 10019, Attn: R. Ramin Kamfar and Michael L. Konig, Esq., as the notice party for purposes of all communication and correspondence by, with or on behalf of the Tenants in Common with respect to the Mortgage Lender.

11.8          Successors and Assigns . All provisions of this Agreement shall inure to the benefit of and shall be binding upon the successors-in-interest, assigns and legal representatives of the parties hereto.

11.9          Term . This Agreement shall commence as of the date of recordation and shall terminate at such time as the Tenants in Common or their successors-in-interest or assigns no longer own the Property as tenants-in-common. In no event shall this Agreement continue beyond December 1, 2035.

11.10        Waivers . No act of any Tenant in Common shall be construed to be a waiver of any provision of this Agreement, unless such waiver is in writing and signed by the Tenant in Common affected. Any Tenant in Common hereto may specifically waive any breach of this Agreement by any other Tenant in Common, but no such waiver shall constitute a continuing waiver of similar or other breaches.

11.11        Counterparts . This Agreement may be executed in counterparts, each of which, when taken together, shall be deemed one fully executed original.

11.12        Severability . If any portion of this Agreement shall become illegal, null or void or against public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining portions of this Agreement shall not be affected thereby and shall remain in full force and effect to the fullest extent permissible by law.

11.13        Securities Laws . THE UNDIVIDED INTERESTS IN THE PROPERTY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, NOR APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, OR BY THE SECURITIES REGULATORY AUTHORITY OF ANY STATE, NOR HAS ANY COMMISSION OR AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF ANY OFFERING OR THE ACCURACY OR ADEQUACY OF ANY DISCLOSURE MADE IN CONNECTION THEREWITH. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

11.14        Time is of the Essence . Time is of the essence of each and every provision of this Agreement.

11.15        Subordination .

11.15.1   As security for the Existing Loan, the Tenants in Common have executed and delivered a first deed of trust in favor of the holder of the Existing Loan (“Security Instrument”). The Security Instrument, the Note and all other documents and instruments existing now or after the date hereof, evidencing, securing, or otherwise relating to the Existing Loan or the Property or any other collateral for the Existing Loan, including any assignment of leases and rents, other assignments, security agreements, financing statements, guaranties, indemnity agreements (including environmental indemnity agreements), letters of credit, or escrow/holdback or similar agreements or arrangements, together with all amendments, modifications, substitutions or replacements thereof, are herein collectively referred to as the “Loan Documents.”

11.15.2   So long as there is outstanding any balance on the Existing Loan, the Security Instrument, and any renewals and extensions thereof, shall unconditionally be and remain at all times a lien on the Property prior and superior to this Agreement and all rights, privileges, duties and obligations of each Tenant in Common hereunder. So long as there is outstanding any balance on the Existing Loan, this Agreement and all rights, privileges, duties and obligations of the Tenants in Common hereunder shall be and hereby are subjected and subordinated to the Note, the Security Instrument, and the other Loan Documents, including, without limitation, all indebtedness, and any interest, fees, costs or expenses thereon due or to become due to the holder thereof under the Note, Security Instrument or any other Loan Document. In the event of a conflict between the terms and provisions of this Agreement and the terms and provisions of the Loan Documents, the terms and provisions of the Loan Documents shall prevail. Nothing contained herein, however, shall obligate either Tenant in Common with respect to any of the Loan Documents which is not applicable to such respective party. Any holder of the Existing Loan, including, without limitation, the Mortgage Lender, shall be an express third-party beneficiary of this Agreement and shall have privity to enforce the provisions hereof against any party hereto. The Tenants in Common each agree that they shall not engage in any activity which would violate the terms of any of the Loan Documents. The Tenants in Common each agree not to allow its Interest in the Property to become subject to any liens from any third parties, and if a Tenant in Common’s Interest is involuntarily liened, such lien will be discharged within thirty (30) days. Each Tenant in Common shall promptly respond to requests for information from the other Tenant in Common or Mortgage Lender and will promptly make itself available for execution of documents required in connection with the Existing Loan and the operation of the Property.

11.15.3    Standstill . So long as there is outstanding any balance on the Existing Loan, the Tenants in Common agree: (i) that any and all rights and remedies, including rights of indemnity or otherwise under this Agreement and the Property Management Agreement, are fully subordinate to the lien of the Existing Loan and all other terms and provisions of the Loan Documents; and (ii) to stand still with respect to the enforcement of any of their rights and remedies, including under this Agreement and the Property Management Agreement, and shall take no enforcement action with respect thereto.

11.16        Memorandum . The Tenants in Common acknowledge and agree that they will execute and record the Memorandum of Tenants in Common Agreement in the land records of Travis County, Texas in the form of Exhibit C attached hereto, in lieu of the recordation of this Tenants in Common Agreement.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.

EXHIBITS

EXHIBIT “A”

Description of Property

Lots 2 and 3, Block “A”, PEDERNALES ELECTRIC COOPERATIVE-CIRCLE DRIVE, AUSTIN SUBDIVISION, a subdivision in Travis County, Texas, according to the map or plat thereof, recorded under Document No. 200600156 or the Official Public Records of Travis County, Texas.

Exhibit 10.4

LIMITED LIABILITY COMPANY AGREEMENT

OF

BR FOX HILLS TIC-1, LLC

THIS LIMITED LIABILITY COMPANY AGREEMENT of BR FOX HILLS TIC-1, LLC, a Delaware limited liability company (as amended from time to time, the “ Agreement ”) is entered into among 23HUNDRED, LLC, a Delaware limited liability company, the sole member of the Company (the “ Member ”), and Bluerock Asset Management LLC, a Delaware limited liability company (“ BAM ”), as a Special Member (the “ Special Member ”).

RECITALS

A.          The Company was formed as a Delaware limited liability company in accordance with the Delaware Limited Liability Company Act, as amended from time to time (the “ Act ”).

B.           The undersigned desire to execute this Agreement to set forth the terms and conditions under which the management, business, and financial affairs of the Company will be conducted.

C.           Definitions for this Agreement are set forth in Article XI.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, covenants, and conditions herein contained, the receipt and sufficiency of which are hereby acknowledged, the undersigned parties hereby covenant and agree as follows:

ARTICLE I

PURPOSE AND POWERS OF COMPANY

1.01          Purpose . The Company’s business and purpose shall consist solely of the acquisition, ownership, operation, management, financing and disposition of an undivided tenant-in-common ownership interest in that certain multi-family real estate project consisting of 288 apartment units located at 8800 Highway 290 West, Austin, Texas 78736, and to be hereafter commonly known as Fox Hill Apartments (the “ Property ”) and such activities as are necessary, incidental or appropriate in connection therewith.

1.02         Powers . The Company shall have all powers of a limited liability company formed under the Act and not prohibited by the Act or this Agreement; provided, however, that during the term of that certain loan from the Lender (defined below) in the approximate amount of $26,705,000.00 (the “ Loan ”), the Company will comply with any applicable single purpose requirements of the Lender set forth in the Loan Documents.

1.03        Title to Company Property . All property owned by the Company shall be owned by the Company as an entity and, insofar as permitted by applicable law, no Member shall have any ownership interest in any Company property in its individual name or right, and each Member’s Membership Interest shall be personal property for all purposes.

1.04         Term . This Agreement shall not terminate until the Company is terminated in accordance with this Agreement.

1.05         Registered Office and Registered Agent . The Company’s initial registered office and initial registered agent shall be as provided in the Certificate of Formation. The registered office and registered agent may be changed from time to time by filing the address of the new registered office and/or the name of the new registered agent pursuant to the Act.

1.06         Formation and Authorized Person . The Certificate of Formation has been filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Act. Chris Vohs is hereby designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and is hereby authorized to execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary or desirable for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business (the “ Qualification Papers ”). The execution, delivery and filing of the Qualification Papers by Chris Vohs as an “authorized person” within the meaning of the Act is hereby approved and ratified in all respects. Upon the filing of all of Qualification Papers, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act.

ARTICLE II

MEMBERS

2.01          Initial Member .

(a)          The name, address and initial Membership Interest of the initial Member is as follows:

(b)          The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

2.02          Special Member . Upon the occurrence of any event that causes the Member to cease to be a member of the Company (other than upon continuation of the Company without dissolution upon (a) an assignment by the Member of all of its Membership Interest and the admission of the transferee pursuant to Section 8.01 below, or (b) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 8.01 below), BAM as the Special Member shall, without any action of such Person and simultaneously with the Member ceasing to be a member of the Company, automatically be admitted to the Company as a member and shall continue the Company without dissolution. No Special Member may resign from the Company or transfer its rights as Special Member unless a successor Special Member has been approved in writing by Lender and has been admitted to the Company as Special Member by executing a counterpart to this Agreement; provided, however, a Special Member shall automatically cease to be a member of the Company upon the admission to the Company of a substitute member. A Special Member shall be a member of the Company that has no interest in the profits, losses and capital of the Company and has no right to receive any distributions of Company assets. Pursuant to Section 18-301 of the Act, a Special Member shall not be required to make any capital contributions to the Company and shall not receive a Membership Interest in the Company. A Special Member, in its capacity as Special Member, may not bind the Company. Except as required by any mandatory provision of the Act, a Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, the Company, including, without limitation, the merger, consolidation or conversion of the Company. In order to implement the admission to the Company of each Special Member, the Person acting as a Special Member shall execute counterpart to this Agreement. Prior to admission to the Company as Special Member, no Person executing this Agreement as a Special Member shall be a member of the Company.

ARTICLE III

MANAGEMENT BY MEMBER

3.01          In General . The powers of the Company shall be exercised by, or under the authority of, the Member. In addition, the business and affairs of the Company shall be managed under the direction of the Member. Subject to the limitations set forth in this Agreement, the Member shall be entitled to make all decisions and take all actions for the Company.

3.02          Management by Member . Except as otherwise limited by this Agreement, the Member shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise; provided, however, that the Company may, at its election, appoint one or more officers to exercise its rights under this Agreement. The Member shall be entitled to make all decisions and take all actions for the Company, and the Member has the authority to bind the Company.

3.03          Required Approval . Any provision in this Agreement that requires the approval of the Members, but does not specify the particular percentage interests or number of Members required for such approval, shall be interpreted to require the affirmative vote of the Member or Members holding a majority of the total Membership Interests from time to time, and specifically shall not be interpreted to require unanimous consent of the Members.

3.04          Action By Member . In exercising the voting or other approval rights as provided herein, the Member may act through meetings and/or written consents.

3.05          Authorization . The Company is authorized to acquire an undivided tenant-in-common interest in the Property and to borrow the Loan, along with TIC-2 as co-borrower, from Walker & Dunlop, LLC for and on behalf of Fannie Mae, the assignee of the Loan (together with its successors and assigns, the “ Lender ”), and from time to time refinance the Loan. In furtherance of the conduct of the purposes described herein, the Company shall possess and may exercise all of the powers and privileges granted by the Act, and the Company is hereby authorized to do any act, enter into any agreement, contract or other instrument, and otherwise to engage in any activity and to do any action not prohibited under the Act or other applicable law which is necessary, useful, desirable or convenient to the conduct, promotion and attainment of the business and purposes of the Company. In addition, the Company, or the Member on behalf of the Company, may enter into and perform the Loan Documents and all documents, agreements, certificates, or financing statements contemplated thereby or related thereto, all without any further act, vote or approval of any other Person notwithstanding any other provision of this Agreement, the Act or applicable law, rule or regulation. The foregoing authorization shall not be deemed a restriction on the powers of the Member to enter into other agreements on behalf of the Company in accordance with this Agreement.

ARTICLE IV

[INTENTIONALLY OMITTED]

ARTICLE V

SUBORDINATION OF INDEMNIFICATION PROVISIONS

5.01         Notwithstanding any provision hereof to the contrary, any indemnification claim against the Company arising under the Certificate of Formation, this Agreement or the laws of the state of organization of the Company shall be fully subordinate to any obligations of the Company arising under the Mortgage or any other Loan Document, and shall only constitute a claim against the Company to the extent of, and shall be paid by the Company in monthly installments only from, the excess of net operating income of the Company for any month over all amounts then due under the Mortgage and the other Loan Documents.

ARTICLE VI

EFFECT OF BANKRUPTCY, DEATH OR INCOMPETENCY OF A MEMBER

6.01         The bankruptcy, death, dissolution, liquidation, termination or adjudication of incompetency of a Member shall not cause the termination or dissolution of the Company and the business of the Company shall continue. Upon any such occurrence, the trustee, receiver, executor, administrator, committee, guardian or conservator of such Member shall have all the rights of such Member for the purpose of settling or managing its estate or property, subject to satisfying conditions precedent to the admission of such assignee as a substitute member. The transfer by such trustee, receiver, executor, administrator, committee, guardian or conservator of any Membership Interest shall be subject to all of the restrictions hereunder to which such transfer would have been subject if such transfer had been made by such bankrupt, deceased, dissolved, liquidated, terminated or incompetent Member. The foregoing shall apply to the extent permitted by applicable law. Notwithstanding any other provision of the Certificate of Formation or this Agreement, no Member or Special Member of the Company shall have any right under Section 18-801(b) of the Act to agree in writing to dissolve the Company upon the bankruptcy of a Member or Special Member or the occurrence of any event that causes a Member or Special Member of the Company to cease to be a member of the Company. The existence of the Company as a separate legal entity shall continue until the cancellation of its Certificate of Formation as provided in the Act.

ARTICLE VII

CONTRIBUTIONS TO THE COMPANY AND DISTRIBUTIONS

7.01          Member Capital Contributions . Upon execution of this Agreement, the Member shall contribute as the Member’s initial Capital Contribution, $100 in cash.

7.02         [Intentionally Left Blank]

7.03          Distributions and Allocations . All distributions of cash or other property (except upon the Company’s dissolution, which shall be governed by the applicable provisions of the Act and Article IX hereof) and all allocations of income, profits, and loss shall be made 100% to the Member in accordance with its Membership Interest. All amounts withheld pursuant to the Code or any provisions of state or local tax law with respect to any payment or distribution to the Member from the Company shall be treated as amounts distributed to the Member pursuant to this Section 7.03. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

ARTICLE VIII

ASSIGNMENTS; RESIGNATIONS

8.01          Assignment, Resignation and Admission Generally .

(a)           Assignments . Subject to the terms of the Loan Documents and this Section 8.01(a), the Member may assign in whole or in part its Membership Interest in the Company. If the Member transfers all of its Membership Interest pursuant to this Section 8.01, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation in compliance with the Basic Documents shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

(b)           Resignation . So long as any obligation is outstanding under the Loan, the Member may not resign, except as permitted under the Basic Documents. If the Member is permitted to resign pursuant to this Section 8.01(b), an additional member of the Company shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

(c)           Admission of Additional Members . One or more additional members of the Company may be admitted to the Company with the written consent of the Member; provided, however, that, notwithstanding the foregoing, except as otherwise provided in the Loan Documents, so long as any obligation remains outstanding under the Loan, no additional member may be admitted to the Company pursuant to this Section 8.01(c) unless approved by the Lender.

8.02          Absolute Prohibition . Notwithstanding any other provision in this Article VIII, the Membership Interest of the Member, in whole or in part, or any rights to distributions therefrom, shall not be sold, exchanged, conveyed, transferred, pledged, hypothecated, subjected to a security interest, or otherwise assigned or encumbered, if such action would result in a violation of federal or state securities laws in the opinion of counsel for the Company.

8.03          Additional Requirements . In addition to all requirements imposed in this Article VIII, any admission of a member or assignment of a Membership Interest shall be subject to all restrictions relating thereto expressly imposed by the Act.

8.04          Effect of Prohibited Action . Any assignment in violation of this Article VIII shall be, to the fullest extent permitted by law, void and of no force or effect whatsoever.

ARTICLE IX

DISSOLUTION AND TERMINATION

9.01          Dissolution . Subject to the other provisions of this Agreement, the Company shall be dissolved upon the first to occur of the following: (a) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act, or (b) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than upon continuation of the Company without dissolution upon (i) an assignment by the Member of all of its Membership Interest and the admission of the transferee pursuant to Section 8.01, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 8.01), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (x) to continue the Company and (y) to admit the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company.

9.02          Liquidation . Upon the dissolution of the Company, it shall wind up its affairs and distribute its assets in accordance with Section 9.04 below and the Act by either or a combination of the following methods as the Member (or the Person carrying out the liquidation) shall determine:

(a)          selling the Company’s assets and, after the satisfaction of Company liabilities, distributing the net proceeds therefrom to the Member; and/or

(b)          subject to the satisfaction of Company liabilities, distributing the Company’s assets to the Member in kind, with the Member accepting an undivided interest in the Company’s assets in satisfaction of its Membership Interest.

9.03          Orderly Liquidation . A reasonable time as determined by the Member (or the Person carrying out the liquidation) shall be allowed for the orderly liquidation of the assets of the Company and the discharge of liabilities to the creditors so as to minimize any losses attendant upon dissolution.

9.04          Distributions . Upon dissolution, the Company’s assets (including any cash on hand) shall be distributed in the following order and in accordance with the following priorities: (a) first, to the satisfaction of the Loan; then (b) second, to the satisfaction of the other debts and liabilities of the Company (whether by payment or the making of reasonable provision for payment thereof) and the expenses of liquidation, including a sales commission to the selling agent, if any; then (c) third, to the Member. 9.05 Termination. The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company, shall have been distributed to the Member in the manner provided for in this Agreement, and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

ARTICLE X

MISCELLANEOUS PROVISIONS

10.01          Governing Law . This Agreement shall be construed, enforced, and interpreted in accordance with the laws of the State of Delaware, without regard to conflicts of law provisions and principles thereof.

10.02       Indemnity . The Company shall indemnify and hold harmless any person who was or is a party to any proceeding, including any proceeding brought by a member in the right of the Company or brought by or on behalf of any member of the Company, by reason of the fact that he is or was an officer of the Company, against any liability incurred by him in connection with such proceedings unless he engaged in willful misconduct or knowing violation of the criminal law or any federal or state securities laws. Furthermore, in any such proceedings brought by or on behalf of the Company or bought by or on behalf of the members of the Company, no officer shall be liable to the Company or its members for any monetary damages with respect to any transaction, occurrence, course of conduct or otherwise, except for liability resulting from such officer’s having engaged in willful misconduct or a knowing violation of the criminal law or any federal or state securities laws.

10.03      Integrated and Binding Agreement; Amendment . This Agreement contains the entire understanding and agreement among the parties hereto with respect to the subject matter hereof, and there are no other agreements, understandings, representations or warranties among the parties hereto other than those set forth herein. This Agreement may be amended only by written agreement of the Member and only as provided in this Agreement. Notwithstanding any other provision of this Agreement, the parties hereto agree that this Agreement constitutes a legal, valid and binding agreement, and is enforceable against each of them in accordance with its terms.

10.04      Construction . Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and vice versa.

10.05       Headings . The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.

10.06       Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

10.07       Severability . If any provision of this Agreement or the application thereof to any Person or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.

10.08       Notices . All notices under this Agreement shall be in writing and shall be given to the party entitled thereto by personal service or by mail, posted to the address maintained by the Company for such person or at such other address as he may specify in writing.

10.09        Rights and Remedies Cumulative; Waivers . The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies, and are given in addition to any other rights the parties may have by law, statute, ordinance, or otherwise. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.

10.10       Heirs, Successors, and Assigns . Each and all of the covenants, terms, provisions, and agreements herein contained shall be binding upon, and inure to the benefit of, the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, and assigns.

10.11       Partition . Each Member agrees that the assets of the Company are not and will not be suitable for partition. Accordingly, each Member hereby irrevocably waives (to the fullest extent permitted by law) any and all rights that he may have, or may obtain, to maintain any action for partition of any of the assets of the Company.

10.12       Tax Status . It is the intention of the Member that the Company be a disregarded entity for federal income tax purposes under Section 7701 of the Code and the Treasury Regulations promulgated pursuant thereto.

10.13       Effective Date . Pursuant to Section 18-201(d) of the Act, this Agreement shall be effective as of the time of the filing of the Certificate of Formation with the Office of the Delaware Secretary of State.

ARTICLE XI

DEFINITIONS

In addition to any other defined terms herein, the following terms used in this Agreement shall have the following meanings (unless otherwise expressly provided herein):

(a) “Affiliate” shall mean any Person controlling or controlled by or under common control with the Company, including, without limitation (i) any person who has a familial relationship, by blood, marriage or otherwise with any Member or employee of the Company, or any Affiliate thereof and (ii) any Person which receives compensation for administrative, legal or accounting services from the Company, or any of its Affiliates. For purposes of this definition, “control” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

(b) “Bankruptcy” shall mean, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

(c) “Basic Documents" shall mean collectively this Agreement, the Loan Documents, the Property Management Agreement and all documents and certificates contemplated thereby or delivered in connection therewith.

(d) “Capital Contribution” shall mean any contribution to the capital of the Company by the Member in cash, property, or services, or a binding obligation to contribute cash, property, or services, whenever made.

(e) “Certificate of Formation” shall mean the Certificate of Formation of the Company, as amended and in force from time to time.

(f) “Closing Date” shall mean the date on which the Company acquires its undivided tenant-in-common ownership interest in the Property.

(g) “Code” shall mean the Internal Revenue Code of 1986, as amended, or corresponding provisions of subsequent superseding federal revenue laws and the rules and regulations promulgated thereunder.

(h) “Company” shall mean BR FOX HILLS TIC-1, LLC.

(i) “Entity” shall mean any general partnership, limited partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative, association or other entity.

(j) “Loan” is defined in Section 1.02.

(k) “Loan Documents” shall mean collectively the promissory note, the Mortgage, any guaranty, assignment, indemnity agreement, escrow agreement, or the functional equivalent of any of the aforementioned, and any and all other documents evidencing or securing the Loan and any and all documents related thereto.

(l) “Member” shall mean the Person identified in Article II hereof and includes any Person admitted as an additional member or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company; provided, however, the term “Member” shall not include the Special Member.

(m) “Membership Interest” shall mean the Member’s limited liability company interest in the Company and the other rights and obligations with respect thereto as set forth in this Agreement. The Membership Interest is set forth beside the Member’s name in Article II of this Agreement.

(n) “Mortgage” shall mean that certain security instrument executed by the Company in favor of the Lender pursuant to which the Company (and TIC-2) grants a mortgage lien to Lender against the Property.

(o) “Person” shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization, or government or any agency or political subdivision thereof.

(p) “Property” is defined in Section 1.01.

(q) “Property Manager” shall mean Bluerock Property Management, LLC and its successors and assigns.

(r) “Property Management Agreement” shall mean that certain management agreement between the Company and TIC-2 and the Property Manager with respect to the management of the Property.

(s) “Special Member” shall mean, upon such Person’s admission to the Company as a member of the Company, each of the Persons bound by this Agreement as Special Member in such Person’s capacity as a member of the Company. A Special Member shall only have the rights and duties expressly set forth in this Agreement.

(t) “TIC-2” shall mean BR FOX HILLS TIC-2, LLC, a Delaware limited liability company.

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The undersigned hereby agree, acknowledge, and certify that the foregoing constitutes the sole and entire Limited Liability Company Agreement of the Company.

Exhibit 10.5

LIMITED LIABILITY COMPANY AGREEMENT

OF

BR FOX HILLS TIC-2, LLC

THIS LIMITED LIABILITY COMPANY AGREEMENT of BR FOX HILLS TIC-2, LLC, a Delaware limited liability company (as amended from time to time, the “ Agreement ”) is entered into among BELL BR WATERFORD CROSSING JV, LLC, a Delaware limited liability company, the sole member of the Company (the “ Member ”), and Bluerock Asset Management LLC, a Delaware limited liability company (“ BAM ”), as a Special Member (the “ Special Member ”).

RECITALS

A.           The Company was formed as a Delaware limited liability company in accordance with the Delaware Limited Liability Company Act, as amended from time to time (the “ Act ”).

B.            The undersigned desire to execute this Agreement to set forth the terms and conditions under which the management, business, and financial affairs of the Company will be conducted.

C.            Definitions for this Agreement are set forth in Article XI.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, covenants, and conditions herein contained, the receipt and sufficiency of which are hereby acknowledged, the undersigned parties hereby covenant and agree as follows:

ARTICLE I

PURPOSE AND POWERS OF COMPANY

1.01          Purpose . The Company’s business and purpose shall consist solely of the acquisition, ownership, operation, management, financing and disposition of an undivided tenant-in-common ownership interest in that certain multi-family real estate project consisting of 288 apartment units located at 8800 Highway 290 West, Austin, Texas 78736, and to be hereafter commonly known as Fox Hill Apartments (the “ Property ”) and such activities as are necessary, incidental or appropriate in connection therewith.

1.02         Powers . The Company shall have all powers of a limited liability company formed under the Act and not prohibited by the Act or this Agreement; provided, however, that during the term of that certain loan from the Lender (defined below) in the approximate amount of $26,705,000.00 (the “ Loan ”), the Company will comply with any applicable single purpose requirements of the Lender set forth in the Loan Documents.

1.03         Title to Company Property . All property owned by the Company shall be owned by the Company as an entity and, insofar as permitted by applicable law, no Member shall have any ownership interest in any Company property in its individual name or right, and each Member’s Membership Interest shall be personal property for all purposes.

1.04          Term . This Agreement shall not terminate until the Company is terminated in accordance with this Agreement.

1.05          Registered Office and Registered Agent . The Company’s initial registered office and initial registered agent shall be as provided in the Certificate of Formation. The registered office and registered agent may be changed from time to time by filing the address of the new registered office and/or the name of the new registered agent pursuant to the Act.

1.06          Formation and Authorized Person . The Certificate of Formation has been filed with the Secretary of State of the State of Delaware in accordance with and pursuant to the Act. Chris Vohs is hereby designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware, and is hereby authorized to execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary or desirable for the Company to qualify to do business in any other jurisdiction in which the Company may wish to conduct business (the “ Qualification Papers ”). The execution, delivery and filing of the Qualification Papers by Chris Vohs as an “authorized person” within the meaning of the Act is hereby approved and ratified in all respects. Upon the filing of all of Qualification Papers, his powers as an “authorized person” ceased, and the Member thereupon became the designated “authorized person” and shall continue as the designated “authorized person” within the meaning of the Act.

ARTICLE II

MEMBERS

2.01          Initial Member .

(a)          The name, address and initial Membership Interest of the initial Member is as follows:

(b)          The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

2.02          Special Member . Upon the occurrence of any event that causes the Member to cease to be a member of the Company (other than upon continuation of the Company without dissolution upon (a) an assignment by the Member of all of its Membership Interest and the admission of the transferee pursuant to Section 8.01 below, or (b) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 8.01 below), BAM as the Special Member shall, without any action of such Person and simultaneously with the Member ceasing to be a member of the Company, automatically be admitted to the Company as a member and shall continue the Company without dissolution. No Special Member may resign from the Company or transfer its rights as Special Member unless a successor Special Member has been approved in writing by Lender and has been admitted to the Company as Special Member by executing a counterpart to this Agreement; provided, however, a Special Member shall automatically cease to be a member of the Company upon the admission to the Company of a substitute member. A Special Member shall be a member of the Company that has no interest in the profits, losses and capital of the Company and has no right to receive any distributions of Company assets. Pursuant to Section 18-301 of the Act, a Special Member shall not be required to make any capital contributions to the Company and shall not receive a Membership Interest in the Company. A Special Member, in its capacity as Special Member, may not bind the Company. Except as required by any mandatory provision of the Act, a Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, the Company, including, without limitation, the merger, consolidation or conversion of the Company. In order to implement the admission to the Company of each Special Member, the Person acting as a Special Member shall execute counterpart to this Agreement. Prior to admission to the Company as Special Member, no Person executing this Agreement as a Special Member shall be a member of the Company.

ARTICLE III

MANAGEMENT BY MEMBER

3.01          In General . The powers of the Company shall be exercised by, or under the authority of, the Member. In addition, the business and affairs of the Company shall be managed under the direction of the Member. Subject to the limitations set forth in this Agreement, the Member shall be entitled to make all decisions and take all actions for the Company.

3.02          Management by Member . Except as otherwise limited by this Agreement, the Member shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise; provided, however, that the Company may, at its election, appoint one or more officers to exercise its rights under this Agreement. The Member shall be entitled to make all decisions and take all actions for the Company, and the Member has the authority to bind the Company.

3.03          Required Approval . Any provision in this Agreement that requires the approval of the Members, but does not specify the particular percentage interests or number of Members required for such approval, shall be interpreted to require the affirmative vote of the Member or Members holding a majority of the total Membership Interests from time to time, and specifically shall not be interpreted to require unanimous consent of the Members.

3.04          Action By Member . In exercising the voting or other approval rights as provided herein, the Member may act through meetings and/or written consents.

3.05          Authorization . The Company is authorized to acquire an undivided tenant-in-common interest in the Property and to borrow the Loan, along with TIC-2 as co-borrower, from Walker & Dunlop, LLC for and on behalf of Fannie Mae, the assignee of the Loan (together with its successors and assigns, the “ Lender ”), and from time to time refinance the Loan. In furtherance of the conduct of the purposes described herein, the Company shall possess and may exercise all of the powers and privileges granted by the Act, and the Company is hereby authorized to do any act, enter into any agreement, contract or other instrument, and otherwise to engage in any activity and to do any action not prohibited under the Act or other applicable law which is necessary, useful, desirable or convenient to the conduct, promotion and attainment of the business and purposes of the Company. In addition, the Company, or the Member on behalf of the Company, may enter into and perform the Loan Documents and all documents, agreements, certificates, or financing statements contemplated thereby or related thereto, all without any further act, vote or approval of any other Person notwithstanding any other provision of this Agreement, the Act or applicable law, rule or regulation. The foregoing authorization shall not be deemed a restriction on the powers of the Member to enter into other agreements on behalf of the Company in accordance with this Agreement.

ARTICLE IV

[INTENTIONALLY OMITTED]

ARTICLE V

SUBORDINATION OF INDEMNIFICATION PROVISIONS

5.01         Notwithstanding any provision hereof to the contrary, any indemnification claim against the Company arising under the Certificate of Formation, this Agreement or the laws of the state of organization of the Company shall be fully subordinate to any obligations of the Company arising under the Mortgage or any other Loan Document, and shall only constitute a claim against the Company to the extent of, and shall be paid by the Company in monthly installments only from, the excess of net operating income of the Company for any month over all amounts then due under the Mortgage and the other Loan Documents.

ARTICLE VI

EFFECT OF BANKRUPTCY, DEATH OR INCOMPETENCY OF A MEMBER

6.01         The bankruptcy, death, dissolution, liquidation, termination or adjudication of incompetency of a Member shall not cause the termination or dissolution of the Company and the business of the Company shall continue. Upon any such occurrence, the trustee, receiver, executor, administrator, committee, guardian or conservator of such Member shall have all the rights of such Member for the purpose of settling or managing its estate or property, subject to satisfying conditions precedent to the admission of such assignee as a substitute member. The transfer by such trustee, receiver, executor, administrator, committee, guardian or conservator of any Membership Interest shall be subject to all of the restrictions hereunder to which such transfer would have been subject if such transfer had been made by such bankrupt, deceased, dissolved, liquidated, terminated or incompetent Member. The foregoing shall apply to the extent permitted by applicable law. Notwithstanding any other provision of the Certificate of Formation or this Agreement, no Member or Special Member of the Company shall have any right under Section 18-801(b) of the Act to agree in writing to dissolve the Company upon the bankruptcy of a Member or Special Member or the occurrence of any event that causes a Member or Special Member of the Company to cease to be a member of the Company. The existence of the Company as a separate legal entity shall continue until the cancellation of its Certificate of

Formation as provided in the Act.

ARTICLE VII

CONTRIBUTIONS TO THE COMPANY AND DISTRIBUTIONS

7.01          Member Capital Contributions . Upon execution of this Agreement, the Member shall contribute as the Member’s initial Capital Contribution, $100 in cash.

7.02         [Intentionally Left Blank]

7.03          Distributions and Allocations . All distributions of cash or other property (except upon the Company’s dissolution, which shall be governed by the applicable provisions of the Act and Article IX hereof) and all allocations of income, profits, and loss shall be made 100% to the Member in accordance with its Membership Interest. All amounts withheld pursuant to the Code or any provisions of state or local tax law with respect to any payment or distribution to the Member from the Company shall be treated as amounts distributed to the Member pursuant to this Section 7.03. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

ARTICLE VIII

ASSIGNMENTS; RESIGNATIONS

8.01          Assignment, Resignation and Admission Generally .

(a)           Assignments . Subject to the terms of the Loan Documents and this Section 8.01(a), the Member may assign in whole or in part its Membership Interest in the Company. If the Member transfers all of its Membership Interest pursuant to this Section 8.01, the transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation in compliance with the Basic Documents shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

(b)           Resignation . So long as any obligation is outstanding under the Loan, the Member may not resign, except as permitted under the Basic Documents. If the Member is permitted to resign pursuant to this Section 8.01(b), an additional member of the Company shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, the resigning Member shall cease to be a member of the Company.

(c)           Admission of Additional Members . One or more additional members of the Company may be admitted to the Company with the written consent of the Member; provided, however, that, notwithstanding the foregoing, except as otherwise provided in the Loan Documents, so long as any obligation remains outstanding under the Loan, no additional member may be admitted to the Company pursuant to this Section 8.01(c) unless approved by the Lender.

8.02          Absolute Prohibition . Notwithstanding any other provision in this Article VIII, the Membership Interest of the Member, in whole or in part, or any rights to distributions therefrom, shall not be sold, exchanged, conveyed, transferred, pledged, hypothecated, subjected to a security interest, or otherwise assigned or encumbered, if such action would result in a violation of federal or state securities laws in the opinion of counsel for the Company.

8.03          Additional Requirements . In addition to all requirements imposed in this Article VIII, any admission of a member or assignment of a Membership Interest shall be subject to all restrictions relating thereto expressly imposed by the Act.

8.04          Effect of Prohibited Action . Any assignment in violation of this Article VIII shall be, to the fullest extent permitted by law, void and of no force or effect whatsoever.

ARTICLE IX

DISSOLUTION AND TERMINATION

9.01          Dissolution . Subject to the other provisions of this Agreement, the Company shall be dissolved upon the first to occur of the following: (a) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act, or (b) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than upon continuation of the Company without dissolution upon (i) an assignment by the Member of all of its Membership Interest and the admission of the transferee pursuant to Section 8.01, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 8.01), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (x) to continue the Company and (y) to admit the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company.

9.02          Liquidation . Upon the dissolution of the Company, it shall wind up its affairs and distribute its assets in accordance with Section 9.04 below and the Act by either or a combination of the following methods as the Member (or the Person carrying out the liquidation) shall determine:

(a)          selling the Company’s assets and, after the satisfaction of Company liabilities, distributing the net proceeds therefrom to the Member; and/or

(b)          subject to the satisfaction of Company liabilities, distributing the Company’s assets to the Member in kind, with the Member accepting an undivided interest in the Company’s assets in satisfaction of its Membership Interest.

9.03          Orderly Liquidation . A reasonable time as determined by the Member (or the Person carrying out the liquidation) shall be allowed for the orderly liquidation of the assets of the Company and the discharge of liabilities to the creditors so as to minimize any losses attendant upon dissolution.

9.04          Distributions . Upon dissolution, the Company’s assets (including any cash on hand) shall be distributed in the following order and in accordance with the following priorities: (a) first, to the satisfaction of the Loan; then (b) second, to the satisfaction of the other debts and liabilities of the Company (whether by payment or the making of reasonable provision for payment thereof) and the expenses of liquidation, including a sales commission to the selling agent, if any; then (c) third, to the Member. 9.05 Termination. The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company, shall have been distributed to the Member in the manner provided for in this Agreement, and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

ARTICLE X

MISCELLANEOUS PROVISIONS

10.01        Governing Law . This Agreement shall be construed, enforced, and interpreted in accordance with the laws of the State of Delaware, without regard to conflicts of law provisions and principles thereof.

10.02         Indemnity . The Company shall indemnify and hold harmless any person who was or is a party to any proceeding, including any proceeding brought by a member in the right of the Company or brought by or on behalf of any member of the Company, by reason of the fact that he is or was an officer of the Company, against any liability incurred by him in connection with such proceedings unless he engaged in willful misconduct or knowing violation of the criminal law or any federal or state securities laws. Furthermore, in any such proceedings brought by or on behalf of the Company or bought by or on behalf of the members of the Company, no officer shall be liable to the Company or its members for any monetary damages with respect to any transaction, occurrence, course of conduct or otherwise, except for liability resulting from such officer’s having engaged in willful misconduct or a knowing violation of the criminal law or any federal or state securities laws.

10.03    Integrated and Binding Agreement; Amendment . This Agreement contains the entire understanding and agreement among the parties hereto with respect to the subject matter hereof, and there are no other agreements, understandings, representations or warranties among the parties hereto other than those set forth herein. This Agreement may be amended only by written agreement of the Member and only as provided in this Agreement. Notwithstanding any other provision of this Agreement, the parties hereto agree that this Agreement constitutes a legal, valid and binding agreement, and is enforceable against each of them in accordance with its terms.

10.04    Construction . Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and vice versa.

10.05     Headings . The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any provision hereof.

10.06     Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

10.07     Severability . If any provision of this Agreement or the application thereof to any Person or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.

10.08     Notices . All notices under this Agreement shall be in writing and shall be given to the party entitled thereto by personal service or by mail, posted to the address maintained by the Company for such person or at such other address as he may specify in writing.

10.09     Rights and Remedies Cumulative; Waivers . The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies, and are given in addition to any other rights the parties may have by law, statute, ordinance, or otherwise. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.

10.10     Heirs, Successors, and Assigns . Each and all of the covenants, terms, provisions, and agreements herein contained shall be binding upon, and inure to the benefit of, the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, and assigns.

10.11     Partition . Each Member agrees that the assets of the Company are not and will not be suitable for partition. Accordingly, each Member hereby irrevocably waives (to the fullest extent permitted by law) any and all rights that he may have, or may obtain, to maintain any action for partition of any of the assets of the Company.

10.12     Tax Status . It is the intention of the Member that the Company be a disregarded entity for federal income tax purposes under Section 7701 of the Code and the Treasury Regulations promulgated pursuant thereto.

10.13     Effective Date . Pursuant to Section 18-201(d) of the Act, this Agreement shall be effective as of the time of the filing of the Certificate of Formation with the Office of the Delaware Secretary of State.

ARTICLE XI

DEFINITIONS

In addition to any other defined terms herein, the following terms used in this Agreement shall have the following meanings (unless otherwise expressly provided herein):

(a) “Affiliate” shall mean any Person controlling or controlled by or under common control with the Company, including, without limitation (i) any person who has a familial relationship, by blood, marriage or otherwise with any Member or employee of the Company, or any Affiliate thereof and (ii) any Person which receives compensation for administrative, legal or accounting services from the Company, or any of its Affiliates. For purposes of this definition, “control” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

(b) “Bankruptcy” shall mean, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede and replace the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

(c) “Basic Documents" shall mean collectively this Agreement, the Loan Documents, the Property Management Agreement and all documents and certificates contemplated thereby or delivered in connection therewith.

(d) “Capital Contribution” shall mean any contribution to the capital of the Company by the Member in cash, property, or services, or a binding obligation to contribute cash, property, or services, whenever made.

(e) “Certificate of Formation” shall mean the Certificate of Formation of the Company, as amended and in force from time to time.

(f) “Closing Date” shall mean the date on which the Company acquires its undivided tenant-in-common ownership interest in the Property.

(g) “Code” shall mean the Internal Revenue Code of 1986, as amended, or corresponding provisions of subsequent superseding federal revenue laws and the rules and regulations promulgated thereunder.

(h) “Company” shall mean BR FOX HILLS TIC-1, LLC.

(i) “Entity” shall mean any general partnership, limited partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative, association or other entity.

(j) “Loan” is defined in Section 1.02.

(k) “Loan Documents” shall mean collectively the promissory note, the Mortgage, any guaranty, assignment, indemnity agreement, escrow agreement, or the functional equivalent of any of the aforementioned, and any and all other documents evidencing or securing the Loan and any and all documents related thereto.

(l) “Member” shall mean the Person identified in Article II hereof and includes any Person admitted as an additional member or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company; provided, however, the term “Member” shall not include the Special Member.

(m) “Membership Interest” shall mean the Member’s limited liability company interest in the Company and the other rights and obligations with respect thereto as set forth in this Agreement. The Membership Interest is set forth beside the Member’s name in Article II of this Agreement.

(n) “Mortgage” shall mean that certain security instrument executed by the Company in favor of the Lender pursuant to which the Company (and TIC-2) grants a mortgage lien to Lender against the Property.

(o) “Person” shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization, or government or any agency or political subdivision thereof.

(p) “Property” is defined in Section 1.01.

(q) “Property Manager” shall mean Bell Partners, Inc. and its successors and assigns.

(r) “Property Management Agreement” shall mean that certain management agreement between the Company and TIC-1 and the Property Manager with respect to the management of the Property.

(s) “Special Member” shall mean, upon such Person’s admission to the Company as a member of the Company, each of the Persons bound by this Agreement as Special Member in such Person’s capacity as a member of the Company. A Special Member shall only have the rights and duties expressly set forth in this Agreement.

(t) “TIC-1” shall mean BR FOX HILLS TIC-1, LLC, a Delaware limited liability company.

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The undersigned hereby agree, acknowledge, and certify that the foregoing constitutes the sole and entire Limited Liability Company Agreement of the Company.

Exhibit 10.6

SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

BELL BR WATERFORD CROSSING JV, LLC

A DELAWARE LIMITED LIABILITY COMPANY

TABLE OF CONTENTS

BELL BR WATERFORD CROSSING JV, LLC

SECOND AMENDED AND RESTATED LIMITED

LIABILITY COMPANY AGREEMENT

This SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) is adopted, executed and agreed to effective on March 26, 2015, by and among BR Waterford JV Member, LLC, a Delaware limited liability company (“ BR I ”); BR Waterford JV Minority Member, LLC, a Delaware limited liability company (“ BR II ”); Durant Holdings, LLC, a North Carolina limited liability company (“ Durant ”); V BELLS LLC, a North Carolina limited liability company (“ VBells ”); and Craig S. West, an individual (“ West ”), as Members (together, the “ Members ”), and BR I, as Manager.

WITNESSETH :

WHEREAS, BR I and Bell HNW Nashville Portfolio, LLC (“ Bell ”) entered into that certain Limited Liability Company/Joint Venture Agreement of Bell BR Waterford Crossing JV, LLC, a Delaware limited liability company (the “ Company ”), on March 29, 2012, as amended pursuant to that certain First Amendment to Limited Liability Company/Joint Venture Agreement for Bell BR Waterford Crossing JV, LLC dated April 2, 2014 (the “ Original LLC Agreement ”);

WHEREAS, BR I assigned a 0.1% Interest in the Company to BR II and BR II was admitted as a Member of the Company on December 3, 2014;

WHEREAS, pursuant to that certain Redemption Agreement by and between Bell and the Company, among other parties, dated December 3, 2014, the Interest of Bell was redeemed and Bell withdrew and ceased to be a Member of the Company and resigned as Manager of the Company;

WHEREAS, BR I and BR II amended and restated the Original LLC Agreement in its entirety by virtue of that certain Amended and Restated Limited Liability Company Agreement dated effective as of December 3, 2014 (the “ Prior A&R Agreement ”);

WHEREAS, the parties hereto desire to amend, restate and replace the Prior A&R Agreement in its entirety and to enter into this Second Amended and Restated Limited Liability Company Agreement to provide for, among other things, (i) the continuation of the Company, as reconstituted, (ii) the admission of each of Durant, VBells and West as a member in exchange for their respective Capital Contributions as provided herein, (iii) a restatement of the rights, obligations and duties of the Members to each other and to the Company, (iv) the allocation of Net Income, Net Losses, credits and distribution of cash flow and other proceeds of the Company among the Members, (v) the respective rights, obligations and interests of the Members to each other and to the Company, and (vi) certain other matters, all as hereinafter provided; and

NOW, THEREFORE, in consideration of the agreements and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Members hereby covenant and agree that the Prior A&R Agreement is hereby amended and restated in its entirety as follows:

Section 1.           Definitions . As used in this Agreement:

“ Act ” shall mean the Delaware Limited Liability Company Act (currently Chapter 18 of Title 6 of the Delaware Code), as amended from time to time.

“ Adjusted Capital Account Deficit ” shall mean, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the applicable Fiscal Year after (i) crediting such Capital Account with any amounts which such Member is deemed to be obligated to restore pursuant to Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), and (ii) debiting such Capital Account by the amount of the items described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6). The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

“ Advisor ” shall mean any accountant, attorney or other advisor retained by a Member.

“ Affiliate ” shall mean as to any Person any other Person that directly or indirectly controls, is controlled by, or is under common control with such first Person. For the purposes of this Agreement, a Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management, policies and/or decision making of such other Person, whether through the ownership of voting securities, by contract or otherwise. In addition, “Affiliate” shall include as to any Person any other Person related to such Person within the meaning of Code Sections 267(b) or 707(b)(1).

“ Agreed Upon Value ” shall mean the fair market value (net of any debt) agreed upon pursuant to a written agreement between the Members of property contributed by a Member to the capital of the Company, which shall for all purposes hereunder be deemed to be the amount of the Capital Contribution applicable to such property contributed.

“ Agreement ” shall mean this Second Amended and Restated Limited Liability Company Agreement, as amended from time to time.

“ Bankruptcy Code ” shall mean Title 11 of the United States Code, as amended, or any other applicable bankruptcy or insolvency statute or similar law.

“ Bankruptcy/Dissolution Event ” shall mean, with respect to the affected party, (i) the entry of an Order for Relief under the Bankruptcy Code, (ii) the admission by such party of its inability to pay its debts as they mature, (iii) the making by it of an assignment for the benefit of creditors generally, (iv) the filing by it of a petition in bankruptcy or a petition for relief under the Bankruptcy Code or any other applicable federal or state bankruptcy or insolvency statute or any similar law, (v) the expiration of sixty (60) days after the filing of an involuntary petition under the Bankruptcy Code without such petition being vacated, set aside or stayed during such period,

(vi) an application by such party for the appointment of a receiver for the assets of such party, (vii) an involuntary petition seeking liquidation, reorganization, arrangement or readjustment of its debts under any other federal or state insolvency law, provided that the same shall not have been vacated, set aside or stayed within sixty (60) days after filing, (viii) the imposition of a judicial or statutory lien on all or a substantial part of its assets unless such lien is discharged or vacated or the enforcement thereof stayed within sixty (60) days after its effective date, (ix) an inability to meet its financial obligations as they accrue, or (x) a dissolution or liquidation.

“ Bell Control Party ” shall mean any person holding a senior management position and ownership interest in Bell Partners Inc. at the time of a proposed Transfer by Durant or VBells (or an entity that is wholly-owned by one or more of such senior management personnel).

“ Beneficial Owner ” shall have the meaning provided in Section 5.7.

“ BR I ” shall have the meaning set forth in the recitals.

“ BR I Transferee ” shall have the meaning set forth in Section 12.2(b)(i).

“ BR II ” shall have the meaning set forth in the recitals.

“ BR II Transferee ” shall have the meaning set forth in Section 12.2(b)(ii).

“ BRG ” shall mean Bluerock Residential Growth REIT, Inc., a Maryland corporation.

“ Capital Account ” shall have the meaning provided in Section 5.6.

“ Capital Contribution ” shall mean, with respect to any Member, the aggregate amount of (i) cash, and (ii) the Agreed Upon Value of other property contributed by such Member to the capital of the Company net of any liability secured by such property that the Company assumes or takes subject to.

“ Cash Flow ” shall mean, for any period for which Cash Flow is being calculated, gross cash receipts of the Company (but excluding Capital Contributions), less the following payments and expenditures: (i) all payments of operating expenses of the Company, (ii) all payments of principal of, interest on and any other amounts due with respect to indebtedness, leases or other commitments or obligations of the Company (and other loans by Members to the Company), (iii) all sums expended by the Company for capital expenditures, (iv) all prepaid expenses of the Company, and (v) all sums expended by the Company which are otherwise capitalized.

“ Certificate of Formation ” shall mean the Certificate of Formation of the Company, as amended from time to time.

“ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time, including the corresponding provisions of any successor law.

“ Collateral Agreement ” shall mean any agreement, instrument, document or covenant concurrently or hereafter made or entered into under, pursuant to, or in connection with this Agreement and any certifications made in connection therewith or amendment or amendments made at any time or times heretofore or hereafter to any of the same.

“ Company ” shall mean Bell BR Waterford Crossing JV, LLC, a Delaware limited liability company organized under the Act.

“ Company Interest ” shall mean all of the Company’s interest in TIC-2, including its limited liability company interest and its managerial interest therein.

“ Company Minimum Gain ” shall have the meaning given to the term “partnership minimum gain” in Regulations Sections 1.704-2(b)(2) and 1.704-2(d).

“ Confidential Information ” shall have the meaning provided in Section 10(a). “Default Amount” shall have the meaning provided in Section 5.2(b).

“ Defaulting Member ” shall have the meaning provided in Section 5.2(b).

“ Delaware UCC ” shall mean the Uniform Commercial Code as in effect in the State of Delaware from time to time.

“ Dissolution Event ” shall have the meaning provided in Section 13.2.

“ Distributable Funds ” with respect to any month or other period, as applicable, shall mean (x) an amount equal to the Cash Flow of the Company for such month or other period, as applicable, as reduced by (y) reserves for anticipated capital expenditures, future working capital needs and operating expenses, contingent obligations and other purposes, the amounts of which shall be reasonably determined from time to time by the Manager.

“ Distributions ” shall mean the distributions payable (or deemed payable) to a Member (including, without limitation, its allocable portion of Distributable Funds).

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ Fiscal Year ” shall mean each calendar year ending December 31.

“ Flow Through Entity ” shall have the meaning provided in Section 5.7.

“ Foreign Corrupt Practices Act ” shall mean the Foreign Corrupt Practices Act of the United States, 15 U.S.C. Sections 78a, 78m, 78dd-1, 78dd-2, 78dd-3, and 78ff, as amended, if applicable, or any similar law of the jurisdiction where the Property is located or where the Company or any of its Subsidiaries transacts business or any other jurisdiction, if applicable.

“ Imputed Closing Costs ” means an amount (not to exceed one and one quarter percent (1.25%) of the purchase price) that would normally be incurred by a Subsidiary if the Property were sold for an amount specified in Section 15.1, for title insurance premiums, survey costs, brokerage commissions, legal fees, and other commercially reasonable closing costs.

“ Income ” shall mean the gross income of the Company for any month, Fiscal Year or other period, as applicable, including gains realized on the sale, exchange or other disposition of the Company’s assets.

“ Indemnified Party ” shall have the meaning provided in Section 14.3(a).

“ Indemnifying Party ” shall have the meaning provided in Section 14.3(a).

“ Inducement Agreements ” shall have the meaning provided in Section 14.3(a).

“ Interest ” of any Member shall mean the entire limited liability company interest of such Member in the Company, which includes, without limitation, any and all rights, powers and benefits accorded a Member under this Agreement and the duties and obligations of such Member hereunder, and “Interests” shall mean, collectively, the Interest of each Member of the

Company.

“ Loan ” shall mean that certain mortgage loan in the original principal amount of approximately $26,705,000.00 borrowed by TIC-1 and TIC-2 from Walker & Dunlop, LLC and assigned to Fannie Mae (together with its successors and assigns as the holder of the Loan, the “ Lender ”).

“ Loan Documents ” shall mean that certain Multifamily Loan and Security Agreement and all related documents evidencing and securing the Loan.

“ Loss ” shall mean the aggregate of losses, deductions and expenses of the Company for any month, Fiscal Year or other period, as applicable, including losses realized on the sale, exchange or other disposition of the Company’s assets.

“ Major Decision ” means any decision for the Company to take, or refrain from taking, any action or incurring any obligation with respect to the following matters (or the effectuation of any such action or obligation), including in the Company’s capacity as a member and/or manager of TIC-2 with respect to making or refraining to make a decision on the following matters to the extent the vote or approval of the Company is required:

(i)        any merger, conversion or consolidation involving the Company or any Subsidiary or the sale, lease, transfer, exchange or other disposition of all or substantially all of the Company’s assets, including the Company Interest, or all of the Interests of the Members in the Company, in one or a series of related transactions; provided, however, nothing herein shall require the consent of the Members with respect to the sale of the Property or the sale of the TIC-2 Interest by TIC-2.

(ii)       except as expressly provided in Section 12 with respect to Transfers (x) (i) by BR I or a BR I Transferee to a BR I Transferee, or (ii) by BR II or a BR II Transferee to a BR II Transferee, or (y) by Durant or VBells to any Bell Control Party, the admission or removal of any Member or the Company’s issuance to any third party of any equity interest in the Company (including interests convertible into, or exchangeable for, equity interests in the Company) that would dilute the Interests of the other Members;

(iii)       except as provided in Section 13, any liquidation, dissolution or termination of the Company;

(iv)       any material change in the strategic direction of the Company or any material expansion of the business of the Company, whether into new or existing lines of business or any change in the structure of the Company;

(v)        acquiring by purchase, ground lease or otherwise, any real property or other material asset or the entry into of any agreement, commitment or assumption with respect to any of the foregoing, or the making or posting of any deposit (refundable or non-refundable); or

(vi)       amendment of the Company’s Certificate of Formation or this Agreement in a manner that materially and adversely affects the interests of the Members (excluding BR I).

“ Manager ” shall mean BR I, or any Person(s) that succeeds BR I in the capacity as manager of the Company.

“ Member ” and “ Members ” shall mean BR I, BR II, Durant, VBells, West and any other Person admitted to the Company pursuant to this Agreement. For purposes of the Act, the Members shall constitute a single class or group of members.

“ Member in Question ” shall have the meaning provided in Section 16.12.

“ Net Income ” shall mean the amount, if any, by which Income for any period exceeds Loss for such period.

“ Net Loss ” shall mean the amount, if any, by which Loss for any period exceeds Income for such period.

“ New York UCC ” shall have the meaning provided in Section 16.17.

“ Offerees ” shall have the meaning provided in Section 15.1(b).

“ Offeror ” shall have the meaning provided in Section 15.1(b).

“ Percentage Interest ” shall have the meaning provided in Section 5.3.

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

“ Property ” shall have the meaning set forth in Section 3 hereof.

“ Property Manager ” shall mean Bell Partners, Inc., so long as the Property Management Agreement is in full force and effect and thereafter, the entity performing similar services with respect to the Property.

“ Property Management Agreement ” shall mean that certain Property Management Agreement, as amended, by and between TIC-1, TIC-2Bluerock Property Management, LLC and the Property Manager.

“ Property Manager Reports ” shall have the meaning set forth in Section 8.2(c).

“ Pursuer ” shall have the meaning provided in Section 10(c).

“ Regulations ” shall mean the Treasury Regulations promulgated pursuant to the Code, as amended from time to time, including the corresponding provisions of any successor regulations.

“ REIT ” shall mean a real estate investment trust as defined in Code Section 856.

“ REIT Member ” shall mean any Member, if such Member is a REIT or a direct or indirect subsidiary of a REIT.

“ REIT Requirements ” shall mean the requirements for qualifying as a REIT under the Code and Regulations.

“ Securities Act ” shall mean the Securities Act of 1933, as amended.

“ Subsidiary ” shall mean any corporation, partnership, limited liability company or other entity of which fifty percent (50%) or more is owned by the Company or of which at least a majority of the capital stock or other equity securities is owned by the Company.

“ Tax Matters Member ” shall have the meaning provided in Section 8.3.

“ TIC-1 ” shall mean BR Fox Hills TIC-1, LLC, a Delaware limited liability company, or its successors as the holder of the TIC-1 Interest.

“ TIC-1 Interest ” shall mean the undivided 19.07% tenant-in-common interest in the Property owned by TIC-1.

“ TIC-2 ” shall mean BR Fox Hills TIC-2, LLC, a Delaware limited liability company.

“ TIC-2 Interest ” shall mean the undivided [80.6180.93%] tenant-in-common interest in the Property owned by TIC-2.

“ Total Investment ” shall mean the sum of the aggregate Capital Contributions made by a Member.

“ Transfer ” means, as a noun, any transfer, sale, assignment, exchange, charge, pledge, gift, hypothecation, conveyance, encumbrance or other disposition, voluntary or involuntary, by operation of law or otherwise and, as a verb, voluntarily or involuntarily, by operation of law or otherwise, to transfer, sell, assign, exchange, charge, pledge, give, hypothecate, convey, encumber or otherwise dispose of.

“ Valuation Amount ” shall have the meaning provided in Section 15.1(b).

Section 2.             Organization of the Company .

2.1            Name . The name of the Company shall be “ Bell BR Waterford Crossing JV, LLC ”. The business and affairs of the Company shall be conducted under such name or such other name as the Manager deems necessary or appropriate to comply with the requirements of law in any jurisdiction in which the Company may elect to do business.

2.2            Place of Registered Office; Registered Agent . The address of the registered office of the Company in the State of Delaware is Corporation Trust Center, 1209 Orange St., Wilmington, Delaware 19801. The name and address of the registered agent for service of process on the Company in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange St., Wilmington, Delaware 19801. The Manager may at any time on five (5) days prior notice to all Members change the location of the Company’s registered office or change the registered agent.

2.3            Principal Office . The principal address of the Company shall be c/o Bluerock Real Estate, L.L.C., 712 Fifth Avenue, 9th Floor, New York, New York 10019, or, in each case, at such other place or places as may be determined by the Manager from time to time.

2.4            Filings . The Manager shall use its best efforts to take such other actions as may be reasonably necessary to perfect and maintain the status of the Company as a limited liability company under the laws of Delaware. Notwithstanding anything contained herein to the contrary, the Company shall not do business in any jurisdiction that would jeopardize the limitation on liability afforded to the Members under the Act or this Agreement.

2.5            Term . The Company shall continue in existence in perpetuity, unless and until the Company is dissolved as provided in Section 13.

2.6            Expenses of the Company . Other than the reimbursements of costs and expenses as provided herein, no fees, costs or expenses shall be payable by the Company to any Member (or its Affiliates).

Section 3.             Purpose .

The purpose of the Company, subject in each case to the terms hereof, shall be to engage in the business of acquiring, owning, operating, developing, renovating, repositioning, managing, leasing, selling, financing (including the borrowing of the Loan) and refinancing all or any portion (including, without limitation, the TIC-2 Interest) of the real estate and any real estate related investments known as Fox Hill Apartments, which is located at 8800 Highway 290 West, Austin, Texas, which is held by TIC-1 and TIC-2 as tenants in common (any property acquired as aforesaid shall hereinafter be referred to as the “ Property ”), and all other activities reasonably necessary to carry out such purposes. The Company shall possess and may exercise all of the powers and privileges granted by the Act, by any other law or by this Agreement, together with any powers incidental thereto, including such powers and privileges as are necessary or convenient to the conduct, promotion or attainment of the business, purposes or activities of the Company.

Section 4.             Reserved .

Section 5.             Capital Contributions, Loans, Percentage Interests and Capital Accounts .

5.1          Capital Contributions . BR I and BR II have each previously made or been attributed Capital Contributions to the Company as reflected on the Company’s books and as shown on Exhibit A attached hereto. On the date hereof, Durant, VBells and West have each made the Capital Contribution to the Company shown on Exhibit A attached hereto in exchange for admission as a Member of the Company.

5.2            Additional Capital Contributions .

 (a) Additional Capital Contributions may be called for from the Members by the Manager from time to time as and to the extent capital is necessary in connection with the Property. Except as otherwise agreed by the Members, such additional Capital Contributions shall be in an amount for each Member equal to the product of the amount of the aggregate Capital Contribution called for multiplied by their respective Percentage Interest. Such additional Capital Contributions shall be payable by the Members to the Company upon the earlier of (i) twenty (20) days after written request from the Company, or (ii) the date when the Capital Contribution is required, as set forth in a written request from the Company.

 (b)          If a Member (a “ Defaulting Member ”) fails to make a Capital Contribution that is required as provided in Section 5.2(a) within the time frame required therein (the amount of the failed contribution and related loan shall be the “ Default Amount ”), the other Members, provided that it has made the Capital Contribution required to be made by it, in addition to any other remedies it may have hereunder or at law, but subject in all events to any restrictions contained in the Loan Documents, shall have one or more of the following remedies:

(1)          [Intentionally Omitted] ;

(2)         subject to any applicable thin capitalization limitations on indebtedness of the Company, to treat its portion of such Capital Contribution as a loan to the Company (rather than a Capital Contribution) and to advance to the Company as a loan to the Company an amount equal to the Default Amount, which loan shall be evidenced by a promissory note in form reasonably satisfactory to the non-failing Member(s) and which loan shall bear interest at the Default Loan Rate and be payable on a first priority basis by the Company from available Cash Flow and prior to any Distributions made to the Defaulting Member. If each Member has loans outstanding to the Company under this provision, such loans shall be payable to each Member in proportion to the outstanding balances of such loans to each Member at the time of payment. Any advance to the Company pursuant to this Section 5.2(b)(2) shall not be treated as a Capital Contribution made by the Defaulting Member. For purposes of this Agreement, the “ Default Loan Rate ” means a twenty percent (20%) per annum interest rate, but in no event in excess of the highest rate permitted by applicable laws;

(3)         in lieu of the remedies set forth in subparagraphs (1) or (2), revoke its portion of such additional Capital Contribution, whereupon the portion of the Capital Contribution made by the non-failing Member(s) shall be returned within ten (10) days with interest computed at the Default Loan Rate by the Company.

 (c)          Notwithstanding the foregoing provisions of this Section 5.2, no additional Capital Contributions shall be required from any Member if (i) the Company or any other Person shall be in default (or with notice or the passage of time or both, would be in default) in any material respect under any loan, indenture, mortgage, lease, agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company (or any of its Subsidiaries) or any of its properties or assets is or may be bound, (ii) any other Member, the Company or any of its Subsidiaries shall be insolvent or bankrupt or in the process of liquidation, termination or dissolution, (iii) any other Member, the Company or any of its Subsidiaries shall be subjected to any pending litigation (x) in which the amount in controversy exceeds $500,000, (y) which litigation is not being defended by an insurance company who would be responsible for the payment of any judgment in such litigation, and (z) which litigation if adversely determined could have a material adverse effect on such other Member and/or the Company or any of its Subsidiaries and/or could interfere with their ability to perform their obligations hereunder or under any Collateral Agreement, (iv) there has been a material adverse change in (including, but not limited to, the financial condition of) any other Member (and/or its Affiliates) which, in Member’s reasonable judgment, prevents such other Member (and/or its Affiliates) from performing, or substantially interferes with their ability to perform, their obligations hereunder or under any Collateral Agreement. If any of the foregoing events shall have occurred and any Member elects not to make a Capital Contribution on account thereof, then any other Member which has made its pro rata share of such Capital Contribution shall be entitled to a return of such Capital Contribution from the Company.

 (d)          Notwithstanding the terms of this Section 5.2, neither the Company nor the non-failing Members shall have the right to pursue any direct recourse action against the Defaulting Member, their remedies being limited to those specifically set forth in Sections 5.2(b)(1), (2) and (3) hereof.

5.3            Percentage Ownership Interest . The Members shall have the initial percentage ownership interests (as the same are adjusted as provided in this Agreement, a “ Percentage Interest ”) in the Company set forth on Exhibit A. Percentage Interests shall not be adjusted by Distributions made (or deemed made) to a Member.

5.4            Return of Capital Contribution . Except as approved by each of the Members, no Member shall have any right to withdraw or make a demand for withdrawal of the balance reflected in such Member’s Capital Account (as determined under Section 5.6) until the full and complete winding up and liquidation of the business of the Company.

5.5           No Interest on Capital . Interest earned on Company funds shall inure solely to the benefit of the Company, and no interest shall be paid upon any Capital Contributions nor upon any undistributed or reinvested income or profits of the Company.

5.6           Capital Accounts .

(a)          A separate capital account (the “ Capital Account ”) shall be maintained for each Member in accordance with Section 1.704-1(b)(2)(iv) of the Regulations. Without limiting the foregoing, the Capital Account of each Member shall be increased by (i) the amount of any Capital Contributions made by such Member, (ii) the amount of Income allocated to such Member and (iii) the amount of income or profits, if any, allocated to such Member not otherwise taken into account in this Section 5.6. The Capital Account of each Member shall be reduced by (i) the amount of any cash and the fair market value of any property distributed to the Member by the Company (net of liabilities secured by such distributed property that the Member is considered to assume or take subject to), (ii) the amount of Loss allocated to the Member and (iii) the amount of expenses or losses, if any, allocated to such Member not otherwise taken into account in this Section 5.6.

(b)          The Capital Accounts of the Members shall be adjusted pursuant to Regulations Section 1.704-1(b)(2)(iv)(f) to reflect a revaluation of the Company’s assets on the Company’s books in connection with any contribution of money or other property to the Company by new or existing Members. If any property other than cash is distributed to a Member, the Capital Accounts of the Members shall be adjusted as if such property had instead been sold by the Company for a price equal to its fair market value, the gain or loss allocated pursuant to Section 7, and the proceeds distributed in the manner set forth in Section 6.1 or Section 13.3(d)(iii).

(c)          The Capital Accounts of the Members shall be adjusted to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treas. Reg. § 1.704-1(b)(2)(iv)(m); provided, however, that no adjustment shall occur pursuant to this Section 5.6(c) to the extent the Manager determines that an adjustment pursuant to Section 5.6(b) hereof is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this Section 5.6(c).

(d)          No Member shall be obligated to restore any negative balance in its Capital Account. No Member shall be compensated for any positive balance in its Capital Account except as otherwise expressly provided herein. The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with the provisions of Regulations Section 1.704-1(b)(2) and shall be interpreted and applied in a manner consistent with such Regulations.

5.7           New Members . The Company may issue additional Interests and thereby admit a new Member or Members, as the case may be, to the Company, only if such new Member (i) has delivered to the Company its Capital Contribution, (ii) has agreed in writing to be bound by the terms of this Agreement by becoming a party hereto, and (iii) has delivered such additional documentation as the Company shall reasonably require to so admit such new Member to the Company. Without the prior written consent of each then-current Member, a new Member may not be admitted to the Company if the Company would, or may, have in the aggregate more than one hundred (100) members. For purposes of determining the number of members under this Section 5.7 and under Section 12.3(b)(v), a Person (the “ Beneficial Owner ”) indirectly owning an interest in the Company through a partnership, grantor trust or S corporation (as such terms are used in the Code) (the “ Flow-Through Entity ”) shall be considered a member, but only if (i) substantially all of the value of the Beneficial Owner’s interest in the Flow-Through Entity is attributable to the Flow-Through Entity’s interest (direct or indirect) in the Company and (ii) in the sole discretion of the Manager, a principal purpose of the use of the Flow-Through Entity is to permit the Company to satisfy the 100-member limitation.

Section 6.             Distributions .

6.1           Distribution of Distributable Funds .

(a)          The Manager shall calculate and determine the amount of Distributable Funds for each applicable period. Except as provided in Sections 5.2(b), 6.1(b) or 13.3 or otherwise provided hereunder, Distributable Funds, if any, shall be distributed to the Members, in proportion to their Percentage Interests, on the 15th day of each month or from time to time as determined by the Manager.

(b) Any Distributions otherwise payable to a Member under this Agreement shall be applied first to satisfy amounts due and payable on account of the indemnity and/or contribution obligations of such Member under this Agreement and/or any other agreement delivered by such Member to the Company or any other Member but shall be deemed distributed to such Member for purposes of this Agreement. 6.2 Distributions in Kind. In the discretion of the Manager, Distributable Funds may be distributed to the Members in cash or in kind and the Members may be compelled to accept a distribution of any asset in kind even if the percentage of that asset distributed to it exceeds a percentage of that asset that is equal to the percentage in which such Member shares in distributions from the Company. In the case of all assets to be distributed in kind, the amount of the distribution shall equal the fair market value of the asset distributed as determined by the Manager. In the case of a distribution of publicly traded property, the fair market value of such property shall be deemed to be the average closing price for such property for the thirty (30) day period immediately prior to the distribution, or if such property has not yet been publicly traded for thirty (30) days, the average closing price of such property for the period prior to the distribution in which the property has been publicly traded.

Section 7.             Allocations .

7.1           Allocation of Net Income and Net Losses Other than in Liquidation . Except as otherwise provided in this Agreement, Net Income and Net Losses of the Company for each Fiscal Year shall be allocated among the Members in a manner such that, as of the end of such Fiscal Year and taking into account all prior allocations of Net Income and Net Losses of the Company and all distributions made by the Company through such date, the Capital Account of each Member is, as nearly as possible, equal to the distributions that would be made to such Member pursuant to Section 6.1 if the Company were dissolved, its affairs wound up and assets sold for cash equal to their tax basis (or book value in the case of assets that have been revalued in accordance with Section 704(b) of the Code), all Company liabilities were satisfied, and the net assets of the Company were distributed in accordance with Section 6.1 immediately after such allocation.

7.2           Allocation of Net Income and Net Losses in Liquidation . Net Income and Net Losses realized by the Company in connection with the liquidation of the Company pursuant to Section 13 shall be allocated among the Members in a manner such that, taking into account all prior allocations of Net Income and Net Losses of the Company and all Distributions made by the Company through such date, the Capital Account of each Member is, as nearly as possible, equal to the amount which such Member is entitled to receive pursuant to Section 13.3(d)(iii).

7.3           U.S. Tax Allocations .

(a)           Standard Allocation . Subject to Section 704(c) of the Code, for U.S. federal and state income tax purposes, all items of Company income, gain, loss, deduction and credit shall be allocated among the Members in the same manner as the corresponding item of income, gain, loss, deduction or credit was allocated pursuant to the preceding paragraphs of this Section 7.

(b)           Code Section 704(c) . In accordance with Code Section 704(c) and the Regulations promulgated thereunder, income and loss with respect to any property contributed to the capital of the Company (including, if the property so contributed constitutes a partnership interest, the applicable distributive share of each item of income, gain, loss, expense and other items attributable to such partnership interest whether expressly so allocated or reflected in partnership allocations) shall, solely for U.S. federal income tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for U.S. federal income tax purposes and its Agreed Upon Value at the time of contribution.

(c) In the event the Capital Accounts of the Members are adjusted pursuant to Section 5.6(b) or (c) to reflect a revaluation of the Company’s assets on the Company’s books, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its book value in the same manner as under Code Section 704(c) and the Treasury Regulations thereunder.

(d) Such allocation shall be made in accordance with any permissible method set forth in Regulations Section1.704-3, as reasonably determined by the Manager and approved by VBells, in its reasonable discretion. Any other elections or other decisions relating to such allocations shall be made by the Manager in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 7.3 are solely for purposes of U.S. federal, state and local income taxes and shall not affect, or in any way be taken into account in computing, any Member’s share of Net Income, Net Loss, other items or distributions pursuant to any provisions of this Agreement.

Section 8.             Books, Records, Tax Matters and Bank Accounts .

8.1           Books and Records . The books and records of account of the Company shall be maintained in accordance with industry standards and shall be based on the Property Manager Reports. The books and records shall be maintained at the Company’s principal office or at a location designated by the Manager, and all such books and records (and the dealings and other affairs of the Company and its Subsidiaries) shall be available to any Member at such location for review, investigation, audit and copying, at such Member’s sole cost and expense, during normal business hours on at least twenty-four (24) hours prior notice.

8.2           Reports and Financial Statements .

(a)          Within thirty (30) days of the end of each Fiscal Year, the Manager shall cause each Member to be furnished with two sets of the following additional annual reports computed as of the last day of the Fiscal Year:

(i) An unaudited balance sheet of the Company and TIC-2;

(ii) An unaudited statement of profit and loss for the Company and TIC-2; and

(iii) A statement of the Members’ Capital Accounts and changes therein for such Fiscal Year.

(b)          Within fifteen (15) days of the end of each quarter of each Fiscal Year, the Manager shall cause to be furnished to any REIT Member such information as requested by any REIT Member as is necessary for such REIT Member to determine its qualification as a REIT and its compliance with REIT Requirements.

(c)          The Members acknowledge that the Property Manager is obligated to perform Property-related accounting and furnish Property-related accounting statements under the terms of the Property Management Agreement (and any future property manager for the Property shall be required to do the same) (collectively, the “ Property Manager Reports ”). The Manager shall be entitled to rely on the Property Manager Reports with respect to its obligations under this Section 8, and the Members acknowledge that the reports to be furnished hereunder shall be based on the Property Manager Reports, without any duty on the part of the Manager to further investigate the completeness, accuracy or adequacy of the Property Manager Reports.

(d)          The Manager will use its commercially best efforts to obtain such financial statements (audited or unaudited), information and attestations as may be required by any Member or any of its Affiliates in connection with public reporting, attestation, certification and other requirements under the Securities Exchange Act of 1934, as amended, and the Sarbanes-Oxley Act of 2002, as amended, applicable to such entity, and work in good faith with the designated accountants or auditors of any Member or any of its Affiliates in connection therewith, including for purposes of testing internal controls and procedures of any Member or any of its Affiliates.

8.3            Tax Matters Member . BR I is hereby designated as the “tax matters partner” of the Company and the Subsidiaries, as defined in Section 6231(a)(7) of the Code (the “ Tax Matters Member ”) and shall prepare or cause to be prepared all income and other tax returns of the Company and the Subsidiaries pursuant to the terms and conditions of Section 8.5. Except as otherwise provided in this Agreement, all elections required or permitted to be made by the Company and the Subsidiaries under the Code or state tax law shall be timely determined and made by BR I. The Members intend that the Company be treated as a partnership for U.S. federal, state and local tax purposes, and the Members will not elect or authorize any person to elect to change the status of the Company from that of a partnership for U.S. federal, state and local income tax purposes. In addition, upon the request of any Member, the Company and each Subsidiary shall make an election pursuant to Code Section 754 to adjust the basis of the Company’s property in the manner provided in Code Sections 734(b) and 743(b). The Company hereby indemnifies and holds harmless BR I from and against any claim, loss, expense, liability, action or damage resulting from its acting or its failure to take any action as the “tax matters partner” of the Company and the Subsidiaries, provided that any such action or failure to act does not constitute gross negligence or willful misconduct.

8.4            Bank Accounts . All funds of the Company are to be deposited in the Company’s name in such bank account or accounts as may be designated by the Manager and shall be withdrawn on the signature of such Person or Persons as the Manager may authorize.

8.5            Tax Returns . The Manager shall cause to be prepared all income and other tax returns of the Company and the Subsidiaries (and TIC-2, if applicable) required by applicable law. No later than the due date or extended due date thereof, the Manager shall deliver or cause to be delivered to each Member a copy of the tax returns for the Company and such Subsidiaries (and TIC-2, if applicable) with respect to such Fiscal Year, together with such information with respect to the Company and such Subsidiaries (and TIC-2, if applicable) as shall be necessary for the preparation by such Member of its U.S. federal and state income or other tax and information returns.

8.6            Expenses . Notwithstanding any contrary provision of this Agreement, the Members acknowledge and agree that the reasonable expenses and charges incurred directly or indirectly by or on behalf of the Manager in connection with its obligations under this Section 8 will be reimbursed by the Company to the Manager.

Section 9.             Management .

9.1           Management .

(a)          The Company shall be managed by one manager. BR I shall have the power and authority to appoint the Manager without any further action or approval by any other Member, and BR I hereby appoints BR I as the Manager. To the extent that BR I or a BR I Transferee Transfers all or a portion of its Interest in accordance with Section 12 to a BR I Transferee, such BR I Transferee may be appointed as the Manager under this Section 9.1(a) by BR I or a BR I Transferee then holding all or a portion of an Interest without any further action or authorization by any other Member. The Manager may not be removed by the Members other than for an act or omission related to the Company constituting gross negligence or fraud.

(b)          The Manager, acting alone, shall have the authority to exercise all of the powers and privileges granted by the Act, any other law or this Agreement, together with any powers incidental thereto, and to take any other action not prohibited under the Act or other applicable law, so far as such powers or actions are necessary or convenient or related to the conduct, promotion or attainment of the business, purposes or activities of the Company, except that any Major Decision shall require the express and unanimous approval of the Members.

(c)          Manager shall substantially participate in the management of the Property, and in all decision-making with respect to the development of the Property, both directly and through the control Manager maintains and exercises over Company Subsidiaries (and the Company maintains and exercises over TIC-2). In furtherance of such management and decision-making authority, the Manager shall meet with the Property Manager on no less than a quarterly basis to discuss issues and make decisions related to the management and operation of the Property.

(d)          The Manager may appoint individuals to act on behalf of the Company with such titles and authority as determined from time to time by the Manager. Each of such individuals shall hold office until his or her death, resignation or replacement by the Manager.

9.2           Affiliate Transactions . No agreement shall be entered into by the Company or any Subsidiary with a Member or any Affiliate of a Member and no decision shall e made in respect of any such agreement (including, without limitation, the enforcement or termination thereof) unless such agreement or related decision shall have been approved in writing by the Manager and, if the terms of any such agreement are other than on commercially reasonably market terms, with the unanimous consent of the Members.

9.3           Other Activities .

(a)           Right to Participation in Other Member Ventures . Neither the Company nor any Member (or any Affiliate of any Member) shall have any right by virtue of this Agreement either to participate in or to share in any other now existing or future ventures, activities or opportunities of the Manager (or its Affiliates) or any of the other Members or their Affiliates, or in the income or proceeds derived from such ventures, activities or opportunities. Neither the Company nor any Member (or any Affiliate of any Member) shall have any right by virtue of this Agreement either to participate in or to share in any other now existing or future ventures, activities or opportunities of the Manager (or its Affiliates) or any of the other Members or their Affiliates, or in the income or proceeds derived from such ventures, activities or opportunities.

(b)           Limitation on Actions of Members; Binding Authority . No Member shall take any action on behalf of, or in the name of, the Company, or enter into any contract, agreement, commitment or obligation binding upon the Company, or, in its capacity as a Member or Manager of the Company, perform any act in any way relating to the Company or the Company’s assets, except in a manner and to the extent consistent with the provisions of this Agreement.

9.4           Operation in Accordance with REOC/REIT Requirements .

(a)          The Members acknowledge that one or more Affiliates of the Members (a “ BR Affiliate ”) intends to qualify as a “real estate operating company” or “venture capital operating company” within the meaning of U.S. Department of Labor Regulation 29 C.F.R. §2510.3-101 (a “ REOC ”), and agree that the Company and its Subsidiaries shall be operated in a manner that will enable each BR Affiliate to so qualify. Notwithstanding anything herein to the contrary, the Company and its Subsidiaries shall not take, or refrain from taking, any action that would result in a BR Affiliate from failing to qualify as a REOC. No Member shall fund any Capital Contribution with the “plan assets” of any “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, or any “plan” as defined by Section 4975 of the Internal Revenue Code of 1986, as amended. The Members and the Manager shall comply with any requirements specified by a BR Affiliate in order to ensure compliance with this Section 9.4.

(b)          Notwithstanding anything in this Agreement to the contrary, unless specifically agreed to by the Manager in writing, neither the Company nor its Subsidiaries shall hold any investment, incur any indebtedness or otherwise take any action that would cause any Member of the Company (or any Person holding an indirect interest in the Company through an entity or series of entities treated as partnerships for U.S. federal income tax purposes) to realize any “unrelated business taxable income” as such term is defined in Code Sections 511 through 514 (“ UBTI ”). No Manager or Member shall be liable for any income or other taxes, damages, costs or expenses incurred by the Company or any Member by reason of the recognition by the Company of UBTI, unless caused by its own willful misconduct or gross negligence and not related to the Property.

(c)          The Company (and any direct or indirect Subsidiary of the Company) may not engage in any activities or hold any assets that would constitute or result in the occurrence of a REIT Prohibited Transaction (as defined below). Notwithstanding anything to the contrary contained in this Agreement, during the time a REIT Member is a Member of the Company, neither the Company nor TIC-2, nor any direct or indirect Subsidiary of the Company or TIC-2, nor any Manager or Member of the Company, shall take or refrain from taking any action which, or the effect of which, would constitute or result in the occurrence of a REIT Prohibited Transaction by the Company or TIC-2 or any direct or indirect Subsidiary thereof, including, without limiting the generality of the foregoing, but in amplification thereof:

(i)          Entering into any lease, license, concession or other agreement or permitting any sublease, license, concession or other agreement that provides for rent or other payment based in whole or in part on the income or profits of any person, excluding for this purpose a lease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person without reduction for any costs of the lessee (and in the case of a sublease, without reduction for any sublessor costs);

(ii)         Leasing, as a lessor, personal property, excluding for this purpose a lease of personal property that is entered into in connection with a lease of real property where the rent attributable to the personal property is less than 15% of the total rent provided for under the lease;

(iii)        Acquiring or holding any debt investments, excluding for these purposes “debt” solely between wholly-owned Subsidiaries of the Company, unless (I) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, and (II) the debt is fully secured by mortgages on real property or on interests in real property. Notwithstanding anything to the contrary herein, in the case of debt issued to the Company by a Subsidiary which is treated as a “taxable REIT subsidiary” of the REIT Member, such debt shall be secured by a mortgage or similar security interest, or by a pledge of the equity ownership of a subsidiary of such taxable REIT subsidiary;

(iv)        Acquiring or holding, directly or indirectly, more than 10% of the outstanding securities of any one issuer (by vote or value) other than an entity which either (i) is taxable as a partnership or a disregarded entity for United States federal income tax purposes, (ii) has properly elected to be a taxable REIT subsidiary of the REIT Member by jointly filing with the associated REIT, IRS Form 8875, or (iii) has properly elected to be a real estate investment trust for U.S. federal income tax purposes;

(v)         Entering into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any property that is owned, directly or indirectly, by the Company other than (i) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which the Property is located where such services are either provided by (A) an Independent Contractor (as defined in Section 856(d)(3) of the Code) who is adequately compensated for such services and from which the Company or REIT Member do not, directly or indirectly, derive revenue or (B) a taxable REIT subsidiary of REIT Member who is adequately compensated for such services or (ii) amounts received for services that are customarily furnished or rendered in connection with the rental of space for occupancy only (as opposed to being rendered primarily for the convenience of the Property’s tenants);

(vi)        Entering into any agreement where a material amount of income received or accrued by the Company under such agreement, directly or indirectly, does not qualify as either (i) “rents from real property” or (ii) “interest on obligations secured by mortgages on real property or on interests in real property,” in each case as such terms are defined in Section 856(c) of the Code;

(vii)       Holding cash of the Company available for operations or distribution in any manner other than a traditional bank checking or savings account;

(viii)      Selling or disposing of any property, subsidiary or other asset of the Company prior to (i) the completion of a two (2) year holding period with such period to begin on the date the Company acquires a direct or indirect interest in such property and begins to hold such property, subsidiary or asset for the production of rental income, and (ii) the satisfaction of any other requirements under Section 857 of the Code necessary for the avoidance of a prohibited transaction tax on the REIT; or

(ix)         Failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year. Notwithstanding the foregoing provisions of this Section 9.4(c), the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 9.4(c). For purposes of this Section 9.4(c), “ REIT Prohibited Transactions ” shall mean any of the actions specifically set forth in this Section 9.4(c).

9.5           FCPA .

(a)          In compliance with the Foreign Corrupt Practices Act, each Member will not, and will ensure that its officers, directors, employees, shareholders, members, agents and Affiliates, acting on its behalf or on the behalf of the Company or any of its Subsidiaries or Affiliates do not, for a corrupt purpose, offer, directly or indirectly, promise to pay, pay, promise to give, give or authorize the paying or giving of anything of value to any official representative or employee of any government agency or instrumentality, any political party or officer thereof or any candidate for office in any jurisdiction, except for any facilitating or expediting payments to government officials, political parties or political party officials the purpose of which is to expedite or secure the performance of a routine governmental action by such government officials or political parties or party officials. The term “routine governmental action” for purposes of this provision shall mean an action which is ordinarily and commonly performed by the applicable government official in (i) obtaining permits, licenses, or other such official documents which such Person is otherwise legally entitled to; (ii) processing governmental papers; (iii) providing police protection, mail pick-up and delivery or scheduling inspections associated with contract performance or inspections related to transit of goods across country; (iv) providing phone service, power and water supply, loading and unloading of cargo, or protecting perishable products or commodities from deterioration; or (v) actions of a similar nature. The term “routine governmental action” does not include any decision by a government official whether, or on what terms, to award new business to or to continue business with a particular party, or any action taken by an official involved in the decision making process to encourage a decision to award new business to or continue business with a particular party. (b) Each Member agrees to notify immediately the Manager and the other Members of any request that such Member or any of its officers, directors, employees, shareholders, members, agents or Affiliates, acting on its behalf, receives to take any action that may constitute a violation of the Foreign Corrupt Practices Act.

Section 10.            Confidentiality .

(a)          Any information relating to a Member’s business, operation or finances which are proprietary to, or considered proprietary by, a Member are hereinafter referred to as “ Confidential Information ”. All Confidential Information in tangible form (plans, writings, drawings, computer software and programs, etc.) provided to or conveyed orally or visually to a receiving Member shall be presumed to be Confidential Information at the time of delivery to the receiving Member. All such Confidential Information shall be protected by the receiving Member from disclosure with the same degree of care with which the receiving Member protects its own Confidential Information from disclosure. Each Member agrees: (i) not to disclose such Confidential Information to any Person except to those of its employees or representatives who need to know such Confidential Information in connection with the conduct of the business of the Company and who have agreed to maintain the confidentiality of such Confidential Information and (ii) neither it nor any of its employees or representatives will use the Confidential Information for any purpose other than in connection with the conduct of the business of the Company; provided that such restrictions shall not apply if such Confidential Information:

(x)          is or hereafter becomes public, other than by breach of this Agreement;

(y)          was already in the receiving Member’s possession prior to any disclosure of the Confidential Information to the receiving Member by the divulging Member; or

(z)          has been or is hereafter obtained by the receiving Member from a third party not bound by any confidentiality obligation with respect to the Confidential Information;

provided, further, that nothing herein shall prevent any Member from disclosing any portion of such Confidential Information (1) to the Company and allowing the Company to use such Confidential Information in connection with the Company’s business, (2) pursuant to judicial order or in response to a governmental inquiry, by subpoena or other legal process, but only to the extent required by such order, inquiry, subpoena or process, and only after reasonable notice to the original divulging Member, (3) as necessary or appropriate in connection with or to prevent the audit by a governmental agency of the accounts of any Member, (4) in order to initiate, defend or otherwise pursue legal proceedings between the parties regarding this Agreement, (5) necessary in connection with a Transfer of an Interest permitted hereunder or (6) to a Member’s respective attorneys or accountants or other representative.

(b)          The Members and their Affiliates shall each act to safeguard the secrecy and confidentiality of, and any proprietary rights to, any non-public information relating to the Company and its business, except to the extent such information is required to be disclosed by law or reasonably necessary to be disclosed in order to carry out the business of the Company. Each Member may, from time to time, provide the other Members written notice of its non-public information which is subject to this Section 10(b).

(c)          Without limiting any of the other terms and provisions of this Agreement, to the extent a Member (the “Pursuer”) provides the other Members with information relating to a possible investment opportunity then being actively pursued by the Pursuer on behalf of the Company, the other Members receiving such information shall not use such information to pursue such investment opportunity for their own account to the exclusion of the Pursuer so long as the Pursuer is actively pursuing such opportunity on behalf of the Company and shall not disclose any Confidential Information to any Person (except as expressly permitted hereunder) or take any other action in connection therewith that is reasonably likely to cause damage to the Pursuer.

Section 11.           Representations and Warranties .

11.1         In General . As of the date hereof, each of the Members hereby makes each of the representations and warranties applicable to such Member as set forth in Section 11.2. Such representations and warranties shall survive the execution of this Agreement.

11.2         Representations and Warranties . Each Member hereby represents and warrants that:

(a)           Due Incorporation or Formation; Authorization of Agreement . Each Member that is an entity (an “ Entity Member ”) is a corporation duly organized or a partnership or limited liability company duly formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation and has the corporate, partnership or company power and authority to own its property and carry on its business as owned and carried on at the date hereof and as contemplated hereby. Each Entity Member is duly licensed or qualified to do business and in good standing in each of the jurisdictions in which the failure to be so licensed or qualified would have a material adverse effect on its financial condition or its ability to perform its obligations hereunder. Each Entity Member has the corporate, partnership or company power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate, partnership or company action. This Agreement constitutes the legal, valid and binding obligation of each Member.

(b)           No Conflict with Restrictions; No Default . Neither the execution, delivery or performance of this Agreement nor the consummation by such Member (or any of its Affiliates) of the transactions contemplated hereby (i) does or will conflict with, violate or result in a breach of (or has conflicted with, violated or resulted in a breach of) any of the terms, conditions or provisions of any law, regulation, order, writ, injunction, decree, determination or award of any court, any governmental department, board, agency or instrumentality, domestic or foreign, or any arbitrator, applicable to such Member or any of its Affiliates, (ii) does or will conflict with, violate, result in a breach of or constitute a default under (or has conflicted with, violated, resulted in a breach of or constituted a default under) any of the terms, conditions or provisions of the articles of incorporation, bylaws, partnership agreement or operating agreement of any Entity Member or any of its Affiliates or of any material agreement or instrument to which such Member or any of its Affiliates is a party or by which such Member or any of its Affiliates is or may be bound or to which any of its properties or assets is subject, (iii) does or will conflict with, violate, result in (or has conflicted with, violated or resulted in) a breach of, constitute (or has constituted) a default under (whether with notice or lapse of time or both), accelerate or permit the acceleration of (or has accelerated) the performance required by, give (or has given) to others any material interests or rights or require any consent, authorization or approval under any indenture, mortgage, lease, agreement or instrument to which such Member or any of its affiliates is a party or by which such Member or any of its Affiliates or any of their properties or a sets is or may be bound or (iv) does or will result (or has resulted) in the creation or imposition of any lien upon any of the properties or assets of such Member or any of its Affiliates.

(c)           Governmental Authorizations . Any registration, declaration or filing with, or consent, approval, license, permit or other authorization or order by, or exemption or other action of, any governmental, administrative or regulatory authority, domestic or foreign, that was or is required in connection with the valid execution, delivery, acceptance and performance by such Member under this Agreement or consummation by such Member (or any of its Affiliates) of any transaction contemplated hereby has been completed, made or obtained on or before the date hereof.

(d)           Litigation . There are no actions, suits, proceedings or investigations pending, or, to the knowledge of such Member or any of its Affiliates, threatened against or affecting such Member or any of its Affiliates or any of their properties, assets or businesses in any court or before or by any governmental department, board, agency or instrumentality, domestic or foreign, or any arbitrator which could, if adversely determined (or, in the case of an investigation could lead to any action, suit or proceeding which if adversely determined could) reasonably be expected to materially impair such Member’s ability to perform its obligations under this Agreement or to have a material adverse effect on the consolidated financial condition of such Member; such Member or any of its Affiliates has not received any currently effective notice of any default, and such Member or any of its Affiliates is not in default, under any applicable order, writ, injunction, decree, permit, determination or award of any court, any governmental department, board, agency or instrumentality, domestic or foreign, or any arbitrator which could reasonably be expected to materially impair such Member’s (or any of its Affiliate’s) ability to perform its obligations under this Agreement or to have a material adverse effect on the consolidated financial condition of such Member.

(e)           Investigation . Such Member is acquiring its Interest based upon its own investigation, and the exercise by such Member of its rights and the performance of its obligations under this Agreement will be based upon its own investigation, analysis and expertise. Such Member is a sophisticated investor possessing an expertise in analyzing the benefits and risks associated with acquiring investments that are similar to the acquisition of its Interest.

(f)           Broker . No broker, agent or other person acting as such on behalf of such Member was instrumental in consummating this transaction and that no conversations or prior negotiations were had by such party with any broker, agent or other such person concerning the transaction that is the subject of this Agreement.

(g)           Investment Company Act . Neither such Member nor any of its Affiliates is, nor will the Company as a result of such Member holding an Interest therein be, an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

(h)            Securities Matters .

(i)          None of the Interests are registered under the Securities Act or any state securities laws. Such Member understands that the offering, issuance and sale of the Interests are intended to be exempt from registration under the Securities Act, based, in part, upon the representations, warranties and agreements contained in this Agreement.

Such Member is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act.

(ii)          Neither the Securities and Exchange Commission nor any state securities commission has approved the Interests or passed upon or endorsed the merits of the offer or sale of the Interests. Such Member is acquiring the Interests solely for such Member’s own account for investment and not with a view to resale or distribution thereof in violation of the Securities Act.

(iii)         Such Member is unaware of, and in no way relying on, any form of general solicitation or general advertising in connection with the offer and sale of the Interests, and no Member has taken any action which could give rise to any claim by any person for brokerage commissions, finders’ fees (without regard to any finders’ fees payable by the Company directly) or the like relating to the transactions contemplated hereby.

(iv)        Such Member is not relying on the Company, the Manager or any of their respective officers, directors, employees, advisors or representatives with regard to the tax and other economic considerations of an investment in the Interests, and such Member has relied on the advice of only such Member’s advisors.

(v)         Such Member understands that the Interests may not be sold, hypothecated or otherwise disposed of unless subsequently registered under the Securities Act and applicable state securities laws, or an exemption from registration is available. Such Member agrees that it will not attempt to sell, transfer, assign, pledge or otherwise dispose of all or any portion of the Interests in violation of this Agreement.

(vi)        Such Member has adequate means for providing for its current financial needs and anticipated future needs and possible contingencies and emergencies and has no need for liquidity in the investment in the Interests. (vii) Such Member is knowledgeable about investment considerations and has a sufficient net worth to sustain a loss of such Member’s entire investment in the Company in the event such a loss should occur. Such Member’s overall commitment to investments which are not readily marketable is not excessive in view of such Member’s net worth and financial circumstances and the purchase of the Interests will not cause such commitment to become excessive. The investment in the Interests is suitable for such Member.

(viii)       Such Member represents to the Company that the information contained in this subparagraph (h) and in all other writings, if any, furnished to the Company with regard to such Member (to the extent such writings relate to its exemption from registration under the Securities Act) is complete and accurate and may be relied upon by the Company in determining the availability of an exemption from registration under federal and state securities laws in connection with the sale of the Interests.