Exhibit 10.1

EXECUTION COPY

OPERATING AGREEMENT

OF BR/CDP CB VENTURE, LLC

THIS OPERATING AGREEMENT (this “Agreement”) is made and entered into this 29 ^th day of May, 2015, by and between CB DEVELOPER, LLC, a Georgia limited liability company (the “Catalyst Member”) and BR CHESHIRE MEMBER, LLC, a Delaware limited liability company (the “BR Member”).

BACKGROUND INFORMATION :

A.           BR/CDP CB VENTURE, LLC (the “Company”) was formed effective as of the 1st day of April, 2015 by the filing of its Certificate of Formation with the Secretary of State of Delaware.

B.           The Company is the sole member of CB Owner, LLC, a Delaware limited liability company (the “Borrower”).

C.           The Borrower is the trustee under that certain BR/CDP Trust Agreement dated on or about the date hereof (the “Trust Agreement”).

D.           The Borrower holds legal title to the Property (as defined below) for the benefit of the Company, Commander Habersham, LLC and Duke of Lexington, LLC, each an Ohio limited liability company (the “Brown Co-Tenants”), as tenants-in-common pursuant to (x) the Trust Agreement and (y) that certain Tenancy In Common Agreement and that certain TIC Management Agreement, in each case dated on or about the date hereof (collectively, the “TIC Agreement”).

E.           The Catalyst Member and the BR Member desire to enter into this Agreement to reflect the current business arrangement among the Members.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agree as follows:

ARTICLE 1.
DEFINITIONS

In addition to terms defined in the body of this Agreement, the following terms used in this Operating Agreement shall have the following meanings (unless otherwise expressly provided herein);

“Act” means the Delaware Limited Liability Company Act, as amended from time to time.

“Additional Member.” A member other than an Initial Member, who has acquired a Membership Interest from the Company.

“Additional Capital Contributions.” With respect to each Member, all additional Capital Contributions made by such Member in excess of their Initial Capital Contribution amounts, including for the funding of Shortfalls but not on account of Section 8.04(a) Advances.

“Additional Contribution Priority Return.” An amount accruing at the rate of ten percent (10%) per annum on a Member’s unreturned Additional Capital Contributions. The Additional Contribution Priority Return shall be compounded monthly, calculated on a cumulative basis.

“Adjusted Capital Account Deficit.” The deficit balance, if any, in the Member’s Capital Account as of the end of the relevant taxable year, after giving effect to the following adjustments: (a) the deficit shall be decreased by the amounts which the Member is deemed obligated to restore pursuant to Regulation Section 1.704-1(b)(2)(ii)(c); and (b) the deficit shall be increased by the items described in Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5), and (6).

“Affiliate.” (i) In the case of an individual, any relative of such Person, (ii) any officer, director, trustee, partner, manager, employee or holder of ten percent (10%) or more of any class of the voting securities of or equity interest in such Person; (iii) any corporation, partnership, limited liability company, trust or other entity controlling, controlled by or under common control with such Person; or (iv) any officer, director, trustee, partner, manager, employee or holder of ten percent (10%) or more of the outstanding voting securities of any corporation, partnership, limited liability company, trust or other entity controlling, controlled by or under common control with such Person.

“Available Cash.” The cash funds of the Company on hand as of a particular time after payment of all current operating expenses of the Company as of such time, less any Reserve(s) approved in accordance with this Agreement in order to provide for the payment of the Company’s and Borrower’s outstanding and unpaid obligations or for any other lawful purpose.

“Bankruptcy.” The filing by a Person of a voluntary petition or otherwise initiating proceedings (a) to have the Person adjudicated insolvent; (b) seeking an order for relief of the Person as debtor under the United States Bankruptcy Code; (c) file any petition seeking any composition, reorganization, readjustment, liquidation, dissolution, or similar relief under the present or any future federal bankruptcy laws or any other present or future applicable federal, state, or other statute or law relative to bankruptcy, insolvency, or other relief for debtors with respect to the Person; (d) or seek the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of the Person, or of all or any substantial part of its property, or make any general assignment for the benefit of creditors of the Person.

“BR Section 8.04(a) Advance” shall have the meaning ascribed in Section 8.04(a).

“Capital Account.” A capital account maintained in accordance with the rules contained in Treas. Reg. Section 1.704-1(b)(2) as maintained in accordance with applicable rules under the Code and as set forth in Treas. Reg. Section 1-704-1(b)(2)(4) as amended from time to time.

“Capital Contribution.” The total amount of cash and the Gross Asset Value of any property contributed or agreed to be contributed to the Company by each Member pursuant to the terms of this Agreement (minus any liabilities that the Company assumes or takes subject to).

“Capital Proceeds” means (a) the Company’s share of the net proceeds of a Capital Transaction after (i) payment of all expenses associated with the Capital Transaction, (ii) repayment of all secured and unsecured Company debts (other than an obligation incurred in order to effect a refinancing which is the applicable Capital Transaction) required to be paid in connection with such Capital Transaction or that the Managers determine should be paid in connection with such Capital Transaction, and (iii) such amounts retained as Reserves and (b) any amounts included in Reserves derived from Capital Contributions and/or Capital Transactions which the Managers reasonably determine to distribute.

“Capital Transaction” means (i) a transaction pursuant to which the indebtedness secured by the Project is fully financed or refinanced by the Borrower; (ii) a sale, condemnation, exchange or casualty not followed by reconstruction, or other disposition, whether by foreclosure or otherwise, of the Project or any part thereof by the Borrower; or (iii) an insurance recovery or any other transaction with respect to the Borrower which, in accordance with generally accepted accounting principles, is considered capital in nature.

“Catalyst Change of Control” shall be deemed to have occurred if any two of the four Principals should cease to maintain an ownership interest in and cease to be actively involved as principals of Catalyst Development Partners II, LLC.

“Catalyst Section 8.04(a) Advance” shall have the meaning ascribed in Section 8.04(a).

“Certificate of Formation.” The certificate of formation of the Company filed with the Delaware Secretary of State as required by the Act, as such certificate of formation may be amended or amended and restated from time to time.

“Co-Tenants.” Collectively, the Company and the Brown Co-Tenants.

“Code.” The Internal Revenue Code of 1986, as amended from time to time.

“Cost Savings” means the amount by which the total costs of developing and constructing the Project are less than the Total Project Budget.

“Cost-Sharing Agreement.” That certain Agreement Regarding Pre-Development Costs & Purchase and Sale Contract by and between Catalyst Development Partners II, LLC, an affiliate of the BR Member, and Bluerock Real Estate, L.L.C., an Affiliate of BR Member, dated March 20, 2015.

“Debt Service” means, for any period, scheduled principal, interest and other required payments (including any required loan rebalancing payments, except to the extent that such loan rebalancing is required by the Lender as a result of a Hard Cost Overrun or Soft Cost Overrun) owing on any Loan of the Company or the Borrower. Debt Service as used in this Agreement shall not mean any principal amounts due under the Loan at maturity or as a result of an acceleration after a default thereunder.

“Debt Service Shortfall” means for any period, the amount by which (i) the Company’s share of Debt Service exceeds (ii) the sum of (a) Available Cash for such period and (b) the Company’s share of amounts released from Reserves (including Reserves under the applicable Loan, as hereinafter defined, or any subsequent loan) during such period for payment of Debt Service.

“Default Action” is as defined in Section 6.06.

“Depreciation” means, for each fiscal year or other period, an amount equal to the depreciation, amortization and other cost recovery deductions allowable with respect to an asset for such fiscal year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such fiscal year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization and other cost recovery deductions for such fiscal year or other period bears to such beginning adjusted tax basis; provided, however , if the adjusted basis for federal income tax purposes of an asset at the beginning of such fiscal year or other period is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Managers.

“Developer.” CDP Developer I, LLC, a Georgia limited liability company.

“Development Agreement.” That certain Development Agreement between the Borrower and Developer dated of even date herewith, as the same may be amended from time to time.

“Discretionary Changes” means any modifications or changes that the Members agree to make to the Plans or the Project (and any applicable corresponding changes to the Total Project Budget) that (i) are not required to complete the construction of the Project as originally contemplated by the Plans and (ii) are not necessitated by design or construction deficiencies in or government-mandated revisions of the Plans or the Project. Discretionary Changes include, for example, upgrades/downgrades of interior or exterior finishes, additional/fewer Project amenities, and increases/decreases in square footage.

“Distributions.” The distributions payable (or deemed payable) to a Member.

“Economic Interest.” A Member’s or Economic Interest Owner’s share of one or more of the Company’s Profits, Losses and distributions of the Company’s assets pursuant to this Operating Agreement and the Act, but shall not include any right to vote on, consent to or otherwise participate in any decision of the Members or Managers.

“Economic Interest Owner.” The owner of an Economic Interest who is not a Member.

“Entity.” Any general partnership, limited partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative or association or any foreign trust or foreign business organization.

“Fiscal Year.” The Company’s fiscal year, which shall be the calendar year.

“Force Majeure Event” shall mean acts of God, war, riots, civil insurrections, hurricanes, tornados, floods, earthquakes, epidemics or plagues, acts or campaigns of terrorism or sabotage, interruptions to domestic or international transportation, trade restrictions, delays caused by any governmental or quasi-governmental entity, shortages of materials, natural resources or labor, labor strikes, governmental prohibitions or regulations including administrative delays in obtaining building permits, inability to obtain materials, or any other cause beyond the reasonable control of the Members.

“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.

“Gross Asset Value.” With respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

(a)          The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset on the date of the contribution, as agreed to and set forth in Exhibit A and, otherwise, as determined by the Managers;

(b)          The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values in accordance with Regulations Section 1.704-1(b)(2)(iv)(g) (taking Code Section 7701(g) into account), as determined by agreement of the Managers, as of the following times: (1) the acquisition of an additional Membership Interest by any new or existing Member in exchange for more than a de minimis Capital Contribution; (2) the distribution by the Company to a Member of more than a de minimis amount of property as consideration for a Membership Interest; (3) the grant of a Membership Interest in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company by a new or existing Member acting in a Member capacity or in anticipation of being a Member; provided, however, that an adjustment pursuant to clauses (1), (2) and (3) shall be made only if the Managers reasonably determine that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company; and (4) the liquidation of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)( g );

(c)          The Gross Asset Value of any Company asset distributed to any Member (taking Code Section 7701(g) into account) shall be adjusted to equal the gross fair market value of such asset on the date of distribution as reasonably determined by the Managers; and

(d)          The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 732(d), 734(b) or 743(b), but only to the extent that the adjustment is taken into account in determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)( m ), provided that Gross Asset Values will not be adjusted under this paragraph (d) to the extent that the Managers determine that an adjustment under paragraph (b) above is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment under this paragraph (d).

(e)          If the Gross Asset Value of an asset has been determined or adjusted pursuant to paragraph (a), (b) (c) or (d) hereof, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses.

(f)          In all other cases, Gross Asset Value of any Company asset means the adjusted basis of such asset for federal income tax purposes.

“Hard Costs” means all items under the category heading “Hard Cost” in the Total Project Budget. Notwithstanding the foregoing, in no event shall costs relating to Force Majeure Events, taxes, insurance premiums, Debt Service, Discretionary Changes and/or post-completion operating deficits of the Company or Borrower constitute Hard Costs.

“Hard Cost Overrun” means, from time to time, the amount by which the aggregate Hard Costs incurred in connection with the development and construction of the Project as of the date of measurement exceed the portion of the Total Project Budget allocated to Hard Costs, including the available Hard Cost contingency in the Total Project Budget. Hard Cost Overruns include, without duplication, loan rebalancing payments required by a Lender in connection with the Loan, but only to the extent that such loan rebalancing payments are required by the Lender as a result of an actual or projected Hard Cost Overrun. Hard Cost Overruns also include overruns resulting from Non-Discretionary Changes but not overruns resulting from Discretionary Changes.

“Initial Capital Contribution.” The initial contribution to the capital of the Company made by a Member pursuant to this Operating Agreement. The Initial Capital Contributions of the Initial Members are set forth on Exhibit A .

“Initial Members.” Those persons identified on Exhibit A attached hereto and made a part hereof by this reference, who have executed this Agreement.

“Internal Rate of Return” and “IRR.” As of any date, the internal rate of return on the IRR-Included Capital Contributions of a Member to such date (including, if applicable, giving credit for the 3:1 multiplier on the Member’s Additional Capital Contributions as may occur under Section 8.04(e) below), calculated to be that discount rate (expressed on a percentage basis) which, when divided by twelve (12), compounded monthly and applied to such IRR-Included Capital Contributions and the corresponding Distributions with respect thereto, causes the net present value, as of such date, of such Distributions and IRR-Included Capital Contributions to equal zero. For this purpose, Capital Contributions and Distributions shall be assumed to have occurred as of the first of the month nearest the actual date such Capital Contribution or Distribution is made. The formula used to calculate IRR shall be: (1+monthly IRR) ^ 12-1.

“IRR-Included Capital Contributions.” A Member's Initial Capital Contributions and any Additional Capital Contributions that are made solely as a result of a change in the Total Project Budget occurring on or prior to the later to occur of: (x) the date of the Loan closing and (y) the date of execution of the GMP Contract. For purposes of the waterfall in Section 9.01(e), any such Additional Capital Contributions made solely as a result of a change in the Total Project Budget occurring on or prior to the date of execution of the GMP Contract shall be (1) repaid as Additional Capital Contributions as provided in Sections 9.01(a) through (d), but (2) for purposes of determining whether the hurdles under Section 9.01(e) have been achieved, shall be included in the calculations required thereunder.

“Lender.” The lender that makes the Loan to Borrower.

“Loan.” The construction loan to be obtained by Borrower for the development of the Project.

“Managers.” The BR Member and the Catalyst Member, or any other Person(s) that succeed such Persons in their capacities as Managers.

“Member.” Each of the parties who executes a counterpart of this Operating Agreement as a Member and each of the parties who may hereafter become Members. To the extent a Manager has purchased a Membership Interest in the Company, he will have all the rights of a Member with respect to such Membership Interest, and the term “Member” as used herein shall include a Manager to the extent he has purchased such Membership Interest in the Company. If a Person is a Member immediately prior to the purchase or other acquisition by such Person of an Economic Interest, such Person shall have all the rights of a Member with respect to such purchased or otherwise acquired Membership Interest or Economic Interest, as the case may be. The initial Ownership Percentages associated with the Membership Interests of the Members are set forth on Exhibit A attached hereto and incorporated herein by reference.

“Membership Interest.” A Member’s entire interest in the Company including such Member’s Economic Interest and the right to participate in the management of the business and affairs of the Company, including the right to vote on, consent to, or otherwise participate in any decision or action of or by the Members granted pursuant to this Operating Agreement or the Act.

“Minimum Gain.” The same meaning set forth in Regulation Section 1.704-2(d). Minimum Gain shall be computed separately for each Member in a manner consistent with the Regulations under Code Section 704(b).

“Net Cash Flow” means, for any period, the total annual cash gross receipts of the Company during such period derived from Company’s co-tenancy interest in the Project and any and all sources, other than Capital Contributions or as a result of a Capital Transaction during such period, together with any amounts included in Reserves (other than Reserve amounts derived from Capital Contributions or Capital Transactions) or working capital from prior periods which the Managers reasonably determine to distribute, less (i) the Company’s share of Debt Service, (ii) the Operating Expenses of the Company paid during such period, and (iii) any increases or replacements in Company Reserves (other than from Capital Contributions or Net Cash from a Capital Transaction) during such period.

“Non-Development Cost Overrun” shall mean the Company’s share of any cost overruns with respect to the Project which are attributable to Force Majeure Events, taxes, insurance premiums, Debt Service, Discretionary Changes and/or post-completion operating deficits.

“Non-Discretionary Changes” means any modifications or changes that the Members are required to make to the Plans or to the Project (other than Discretionary Changes). Non-Discretionary Changes include, for example, changes to the Plans or the constructed portions of the Project to correct design or construction deficiencies or to implement government-mandated revisions, or general contractor claims under the GMP Contract for increased compensation in excess of the original “Contract Sum” (or similar term, as defined in the Construction Contract) for errors or inconsistencies in the Plans, concealed conditions, delays or other reasons (other than Discretionary Changes).

“Nonrecourse Deductions.” The same meaning set forth in Regulation Section 1.704-2(b)(1). The amount of Nonrecourse Deductions for a taxable year of the Company equals the net increase, if any, in the amount of Minimum Gain during that taxable year, determined according to the provisions of Regulation Section 1.704-2(c).

“Operating Agreement.” This Operating Agreement as originally executed and as amended from time to time, also referred to herein as the “Agreement,” from time to time.

“Operating Expenses” for the purposes herein, means the Company’s share of all cash expenditures made by the Borrower in connection with owning and operating the Project or otherwise conducting its business; provided, that, notwithstanding the foregoing, Operating Expenses shall not include any cash or capital expenditures expended out of established and accumulated cash Reserves of the Company or Borrower used for the particular purpose for which such Reserves were established or not otherwise allocated for specific purposes

“Ownership Percentage.” Subject to adjustment pursuant to other provisions of this Agreement, the initial Ownership Percentage of each Member is as described on Exhibit A.

“Person.” Any individual or Entity, and the heirs, executors, administrators, legal representatives, successors, and assigns of such “Person” where the context so permits.

“Principals” means Robert Meyer, Mark Mechlowitz, Jorge Sardinas and Robert Fishel.

“Profits or Losses” means, for each Fiscal Year or other period, an amount equal to the Company’s taxable loss or income, respectively, for such year or period, determined in accordance with Section 703(a) of the Code (and for this purpose, all items of income, gain, loss, or reduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments:

(a)          Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss;

(b)          Any expenditures of the Company described in Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) expenditures pursuant to Regulation Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses shall be subtracted from such taxable income or loss;

(c)          In the event the Gross Asset Value of any Company asset is adjusted pursuant to paragraph (b) or (c) of the definition thereof, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Profits or Losses;

(d)          Gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;

(e)          In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for the Fiscal Year or other period;

(f)          To the extent an adjustment to the tax basis of any Company asset pursuant to Code Section 734(b) is required pursuant to Treasury Regulation §1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a distribution other than a complete liquidation of Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Profits or Losses; and

(g)          Any items which are specially allocated pursuant to Article 10 hereof shall not be taken into account in computing Profits or Losses but shall be determined by applying rules analogous to those set forth in paragraphs (a) through (d) of this definition.

If the profit or loss for such Fiscal Year or other period, as adjusted in the manner provided herein, is a positive amount, such amount shall be the Profits for such Fiscal Year or other period; and if negative, such amount shall be the Losses for such Fiscal Year or other period.

“Project.” An approximately 285-unit Class A rental apartment complex to be constructed upon the Property.

“Project Completion” means completion of construction of the Project and issuance of a Final Certificate of Occupancy and less than $100,000 of punchlist items.

“Project Stabilization” means completion of construction of the Project and the Project at least is 90% leased up by third party tenants.

“Property.” That certain property located in Atlanta, Georgia which is more particularly described in Exhibit B attached hereto and incorporated herein upon which the Borrower intends to develop the Project.

“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.

“Reserves.” With respect to any fiscal period, funds set aside or amounts allocated to reserves for the Company’s co-tenancy interest in the Project during such period which shall be maintained in amounts deemed sufficient by the Catalyst Member for working capital, capital expenditures, repairs, replacements and anticipated expenditures for paying taxes, insurance, Debt Service or other costs or expenses incident to the ownership or operation of the Company’s business; provided that, BR Member shall have the right to reasonably approve the amount of any such Reserves.

“Section 8.04(a) Advance” shall have the meaning ascribed in Section 8.04(a).

“Soft Cost(s)” means all items under the category heading “Soft Cost” in the Total Project Budget. Soft Costs include, without limitation, interest reserve, architectural and engineering fees, and legal fees incurred by the Company. Notwithstanding the foregoing, in no event shall costs relating to Force Majeure Events, taxes, insurance premiums, Debt Service after Project Completion, Discretionary Changes and/or post-Project Completion operating deficits of the Company or Borrower constitute Soft Costs.

“Soft Cost Overrun” means, from time to time, the amount by which the aggregate Soft Costs incurred in connection with the development and construction of the Project as of the date of measurement exceed the portion of the Total Project Budget allocated to Soft Costs, including the available Soft Cost contingency in the Total Project Budget. Soft Cost Overruns include, without duplication, loan rebalancing payments required by the Lender in connection with the Loan, but only to the extent that such loan rebalancing payments are required by the Lender as a result of an actual or projected Soft Cost Overrun. Soft Cost Overruns includes overruns resulting from Non-Discretionary Changes but excludes overruns resulting from Discretionary Changes.

“Standard Market Financing” means non-recourse mortgage financing on commercially reasonable terms in an amount up to 80% of the Project value and at an interest rate not to exceed the then-current yield on the 10-year Treasury Bond plus 350 basis points.

“Total Project Budget.” The final budget annexed hereto as Exhibit C , as updated from time to time hereafter by the mutual consent of all of the Members and as approved by the Lender. For the avoidance of doubt, the Total Project Budget refers to the Borrower-level budget, inclusive of capital contributions required from the Company and the Brown Co-Tenants.

“Transferring Member.” A Member or Economic Interest Owner who sells, assigns, pledges, hypothecates or otherwise transfers for consideration or gratuitously all or any portion of its Membership Interest or Economic Interest.

“Treasury Regulations” or “Regulations.” The Federal Income Tax Regulations, including any temporary regulations, promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

ARTICLE 2.

FORMATION OF COMPANY

2.01          Formation . On April 1, 2015, the Company was formed as a Delaware limited liability company by executing and delivering the Certificate of Formation to the Secretary of State of Delaware in accordance with the provisions of the Act.

2.02          Name . The name of the Company is BR-CDP Cheshire Venture, LLC. The Company may do business under that name and under any other name or names the Members select. If the Company does business under a name other than that set forth in its Certificate of Formation, then the Company shall file a trade name certificate as required by law.

2.03          Principal Place of Business . The principal place of business of the Company is 880 Glenwood Avenue SE, Suite H, Atlanta, GA 30316. The Company may locate its places of business at any other place or places as the Managers may from time to time deem advisable.

2.04          Registered Office and Registered Agent . The Company’s initial registered office and the name of its initial registered agent shall be as set forth 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 with the Secretary of State of Delaware pursuant to the Act and the applicable rules promulgated thereunder.

2.05          Term . The term of the Company commenced on the date the Certificate of Formation was filed with the Secretary of State of Delaware and shall continue thereafter in perpetuity unless earlier dissolved in accordance with the provisions of this Operating Agreement or the Act.

ARTICLE 3.

BUSINESS OF COMPANY

3.01          Permitted Businesses . The business of the Company shall be:

(a)          To acquire, develop, sell, exchange, construct, improve, subdivide, mortgage, lease, maintain, transfer, operate, own as an investment and/or otherwise engage in all general business activities related or incidental to the ownership and development of the Project, in its capacity as a Co-Tenant;

(b)          To acquire a limited liability company interest in and serve as the sole member of the Borrower; and

(c)          To engage in all activities necessary, customary, convenient, or incident to any of the foregoing.

ARTICLE 4.

NAMES AND ADDRESSES OF INITIAL MEMBERS

The names and addresses of the Initial Members are set forth on Exhibit A attached hereto and by this reference made a part hereof.

ARTICLE 5.

RIGHTS AND DUTIES OF MANAGERS

5.01          Management . The business and affairs of the Company shall be managed by its Managers. Except for situations in which the approval of the Members is expressly required by this Operating Agreement or by nonwaivable provisions of applicable law or as otherwise set forth in this Agreement, the Managers shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the Company’s business. The Managers will delegate the day-to-day administration and management of the development and construction of the Project to the Developer pursuant to the terms, conditions and obligations of the Development Agreement. In addition, the Managers hereby delegate to the Catalyst Member the authority to implement any Operating Budget approved in accordance with the terms of this Operating Agreement.

5.02         Number, Tenure and Qualifications . The Company shall have two (2) Managers, and BR Member and the Catalyst Member shall serve as the initial Managers. Subject to the foregoing, each Manager shall hold office until its successor shall have been elected and qualified or until his earlier death, resignation, or removal. Subject to the foregoing and Section 5.10, Managers shall be elected by the affirmative vote of all Members.

5.03         Certain Powers of Managers . Subject to Sections 5.04 and 7.07 below, either Manager shall have power and authority, on behalf of the Company or in the Company’s capacity as a member of Borrower and/or as a Co-Tenant, as applicable:

(a)          To cause Borrower to acquire the Property and to construct and develop the Project.

(b)          To invest any Company funds (by way of example but not limitation) in time deposits, short-term governmental obligations, or other investments, provided the funds in any such investment vehicle are insured by the Federal Deposit Insurance Corporation (or its successor or replacement).

(c)          To execute all instruments and documents, including, without limitation, checks; drafts; notes and other negotiable instruments; purchase and sale agreements, mortgages or deeds of trust; security agreements; financing statements; deeds, contracts, settlement statements, agreements, affidavits and any other documents providing for the acquisition, mortgage or disposition of the Company’s or Borrower’s property; assignments; bills of sale; leases; partnership agreements; operating agreements of other limited liability companies; and any other instruments or documents necessary, in the opinion of the Managers, to the business of the Company.

(d)          To purchase liability and other insurance to protect employees, officers, property and business.

(e)          Subject to Section 5.14, to employ accountants, engineers, architects, surveyors, attorneys, managing agents, leasing agents, and other experts to perform services for the Company and to compensate them from Company funds.

(f)          To enter into any and all other agreements on behalf of the Company, with any other Person for any purpose, in such forms as the Managers may approve, including but not limited to the Trust Agreement and the TIC Agreement.

(g)          To create offices and designate officers, who need not be Members. Any such persons appointed to be officers of the Company may or may not be employees of the Company, any Member, or any Affiliate thereof. Any officers so appointed shall have such authority and perform such duties as the Managers may, from time to time, expressly delegate to them in writing and the officers so appointed shall serve at the pleasure of the Managers.

(h)          To the extent permissible in connection with the Loan, to borrow money for the Company from banks, other lending institutions, Managers, Members, or Affiliates of the Managers or Members on such terms as the Managers deem appropriate, and in connection therewith, to hypothecate, encumber and grant security interests in the assets of the Company to secure repayment of the borrowed sums. No debt shall be contracted or liability incurred by or on behalf of the Company except by the Managers or by agents or employees of the Company expressly authorized by the Managers to contract such debts or incur such liability by the Managers.

(i)          To do and perform all other acts as may be necessary or appropriate to the conduct of the Company’s business, to the extent such acts are not reserved unto the Members pursuant to Section 7.07 of this Agreement.

Unless authorized to do so by this Operating Agreement or by the Managers, no attorney-in-fact, employee or other agent of the Company shall have any power or authority to bind the Company in any way, to pledge its credit or to render it liable pecuniary for any purpose. No Member shall have any power or authority to bind the Company unless the Member has been authorized by the Managers or Members to act as an agent of the Company in accordance with the previous sentence.

5.04         Management Committee .

(a)          The Managers and Members hereby establish a management committee (the “Management Committee”) for the Company for the purpose of the Managers considering and approving actions pursuant to Section 5.03. The Management Committee shall consist of four (4) individuals appointed to act as “representatives” of the Manager and Member that appointed him or her (the “Representatives”) as follows: (i) BR Member shall be entitled to designate two (2) Representatives to represent the BR Member as Manager and Member; and (ii) Catalyst Member shall be entitled to designate two (2) Representatives to represent the Catalyst Member as Manager and Member. The initial members of the Management Committee are set forth on Exhibit A .

(b)          Each Representative as a member of the Management Committee, subject to this Section 5.04(b), shall hold office until death, resignation or removal at the pleasure of the Managers and Member that appointed him or her. If a vacancy occurs on the Management Committee, the Manager with the right to appoint and remove such vacating Representative shall appoint his or her successor. A Manager shall lose its right to have its Representatives vote on any item as of the date on which such Manager ceases to be a Manager, including by means of removal under Section 5.09, or as otherwise provided in this Agreement. If the BR Member transfers all or a portion of its membership interest to a transferee permitted by Section 12.02(a), such transferee shall automatically, and without any further action or authorization by any Manager or Member, succeed to the rights and powers of the BR Member under this Section 5.04 as may be agreed to between the BR Member which is transferring the membership interest, on the one hand, and the permitted transferee to which the membership interest is being transferred, on the other hand, including the shared or unilateral right to appoint the Representatives that the BR Member was theretofore entitled to appoint pursuant to this Section 5.04. If the Catalyst Member transfers all or a portion of its membership interest to a transferee permitted pursuant to Section 12.02(b), such permitted transferee shall automatically, and without any further action or authorization by any Manager or Member, succeed to the rights and powers of the Catalyst Member under this Section 5.04 as may be agreed to between the Catalyst Member which is transferring the membership interest, on the one hand, and the permitted transferee to which the membership interest is being transferred, on the other hand, including the shared or unilateral right to appoint the Representatives that the Catalyst Member was theretofore entitled to appoint pursuant to this Section 5.04.

(c)          The Management Committee shall meet at least once every quarter (unless waived by mutual agreement of the Managers) and as otherwise required. The only Representatives required to constitute a quorum for a meeting of the Management Committee shall be one (1) Representative appointed by BR Member and one (1) Representative appointed by Catalyst Member; provided, however, if any Representative fails to attend any meeting and as a result thereof the Company is unable to obtain a quorum, and thereafter such Representative fails to agree to reschedule and attend any such meeting within 15 days after receipt of written notice that the Company was unable to obtain a quorum (the “Absent Representative”) , then a quorum can be obtained without the attendance of a Representative of the Member who selected the Absent Representative.

(d)          Each of the two (2) Representatives appointed by BR Member shall be entitled to cast two (2) votes on any matter that comes before the Management Committee and each of the Representatives appointed by Catalyst Member shall be entitled to cast one (1) vote on any matter that comes before the Management Committee. Approval by the Management Committee of any matter (other than matters which are Major Decisions under Section 7.07 or which may be made unilaterally by a Member, but only as expressly set forth in this Agreement) shall require the affirmative vote of at least a majority of the votes of the Representatives then in office voting at a duly held meeting of the Management Committee.

(e)          Any meeting of the Management Committee may be held by conference telephone call, video conference or through similar communications equipment by means of which all persons participating in the meeting can communicate with each other. Participation in a telephonic and/or video conference meeting held pursuant to this Section 5.04(e) shall constitute presence in person at such meeting.

(f)          Any action required or permitted to be taken at a meeting of the Management Committee may be taken without a meeting, without prior notice and without a vote if a consent or consents in writing, setting forth the action so taken, shall be signed by Representatives having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all Representatives entitled to vote thereon were present and voted. All consents shall be filed with the minutes of the proceedings of the Management Committee.

5.05          Limitation of Liability . No Manager has guaranteed nor shall have any obligation with respect to the return of a Member’s Capital Contributions or profits from the operation of the Company. Each Manager shall be entitled to rely on information, opinions, reports or statements, including but not limited to financial statements or other financial data prepared or presented in accordance with the provisions of the Act. No Manager shall be liable to the Company or to any Member for good faith negligence or for honest mistakes of judgment or losses or liabilities due to such good faith mistakes or due to the negligence, dishonesty, unlawful acts or bad faith of any employee, broker or other agent, accountant, attorney, other professional or person employed by the Company provided that such person was selected, engaged, retained and supervised by such Manager with reasonable care. No Manager shall have any liability to the Company or to any Member for any loss suffered by the Company which arises out of any action or inaction of such Manager if, prior thereto, such Manager, in good faith, determined that such course of conduct was in, and not opposed to, the best interests of the Company and such course of conduct did not constitute willful misconduct or a material breach of this Agreement or gross negligence. It is the express intention of the parties that the Managers’ standard of care be limited to acting in a manner reasonably believed by them in good faith to be in accordance with their authority under this Agreement, that the Managers’ obligations be limited to those expressly provided in this Agreement, and that any duties of loyalty or care and any and all other fiduciary duties arising at law or in equity, if any, are hereby strictly limited to accord with the provisions of this Section 5.05 and to the performance by the Managers of their express obligations under this Agreement, and any broader duty is hereby waived by the other Members.

5.06          Managers Have No Exclusive Duty to Company . A Manager shall not be required to manage the Company as his or its sole and exclusive function and he or it (or any Manager) may have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any Member shall have any right, by virtue of this Operating Agreement, to share or participate in such other investments or activities of a Manager or to the income or proceeds derived therefrom. A Manager shall incur no liability to the Company or to any of the Members as a result of engaging in any other business or venture.

5.07          Bank Accounts . The Management Committee may from time to time open bank accounts, brokerage accounts and other accounts in the name of the Company, and the Managers shall be the sole signatories thereon, unless the Management Committee determines otherwise.

5.08          Resignation . Any Manager of the Company may resign at any time by giving written notice to the Members of the Company. The resignation of any Manager shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. The resignation of a Manager shall also constitute the resignation of such Manager’s Representatives on the Management Committee. The resignation of a Manager who is also a Member shall not affect the Manager’s rights as a Member and shall not constitute a withdrawal of a Member.

5.09          Removal of Managers . At a meeting called expressly for that purpose, a Manager may be removed, by the affirmative vote of all Members (excluding the Membership Interests of BR Member or its permitted transferee in the event BR Member or its permitted transferee is the subject of such removal vote and excluding the Membership Interests of Catalyst Member or its permitted transferee in the event Catalyst Member or its permitted transferee is the subject of such removal vote), only in the event of any of the following (each a “ Removal Action ”): (a) a material breach of this Agreement on the part of such Manager or its Affiliated Member, which breach shall continue uncured for thirty (30) calendar days after the giving of written notice thereof to such Manager specifying the nature of such breach; (b) a Default Action by a Member (or an Affiliate of such Member) affiliated with such Manager; (c) gross negligence or willful misconduct on the part of such Manager, its affiliated Member or any of their Affiliates (including any Affiliated developer or property manager); provided, however, with regard to such acts by Affiliates, only to the extent such acts result in a material adverse effect on the Property or the Company; or (d) in the case of a Manager designated by the Catalyst Member, the termination of the Development Agreement as a result of an event of default by the Developer thereunder. 

The removal of a Manager as a result of a Removal Action shall also constitute the removal of such Manager’s Representatives on the Management Committee. The removal of a Manager who is also a Member shall not affect the Managers’ rights as a Member and shall not constitute a withdrawal of a Member. However, if the Catalyst Member is removed as Manager pursuant to clause (b) of the preceding paragraph as a result of the occurrence of an event described in either subsection (2) or subsection (3) of the definition of a Default Action, (x) the BR Member shall have the right to cause the Company and the Borrower to terminate the Developer under the Development Agreement and (y) if such removal occurs before Project Stabilization, the Catalyst Member will no longer be entitled to receive any portion of the ‘promote’ otherwise payable to it under the Section 9.01 (i.e., the 30.56% share payable under Section 9.01(g) or the 38.89% share payable under Section 9.01(h)), but rather will only be entitled to distributions to it under Sections 9.01(g) or (h) based on its Ownership Percentage.

In any instance where the Catalyst Member is removed as Manager and/or the Developer is removed as developer under the Development Agreement, regardless of the cause of such removal, the BR Member shall cause the Catalyst Member and/or any Affiliate that executed a guaranty to be released in full from any Loan Guaranty; provided, that, if the BR Member is unable to obtain such release despite its commercially reasonable efforts to do so, the BR Member (and certain Affiliates reasonably acceptable to the Catalyst Member) shall be obligated to indemnify and hold harmless the Catalyst Member and/or any Affiliate (each, a “Catalyst Indemnified Party”) pursuant to an indemnification agreement in form and substance reasonably satisfactory to the Catalyst Indemnified Parties, without prejudice to any other indemnification right under Section 15 , for any amount paid by the Catalyst Indemnified Parties under such Loan Guaranty or other guaranty or indemnity agreement and actual losses and expenses (including reasonable attorney’s fees and costs) incurred by the Catalyst Indemnified Parties in defending against a claim for performance under such Loan Guaranty or other guaranty or indemnity agreement, except to the extent (i) the Catalyst Indemnified Parties are separately obligated to the Company or the BR Member, without right of reimbursement, under a written agreement for the amount sought to be recovered under such Loan Guaranty or indemnity agreement or (ii) the amount sought to be recovered would never be collectible from, or claimed against, the Company but for the fraud, willful misconduct, gross negligence or willful misappropriation of funds by the Catalyst Indemnified Parties; provided, however, that the BR Member and its Affiliates shall not be obligated to indemnify the Catalyst Indemnified Parties if, with respect to any action taken by the BR Member after the date of removal, the Catalyst Member has expressly approved of or consented to the action taken by BR Member in writing within two (2) business days following the receipt of written notice from BR Member that BR Member intends to take such action (and if the Catalyst Member has not affirmatively responded to BR Member by the end of such two (2) business day period, the Catalyst Member shall be deemed to have expressly disagreed with the action).

5.10        Vacancies . Any vacancy occurring for any reason in the number of Managers of the Company may be filled by the affirmative vote of all Members (excluding the Membership Interests of BR Member or its permitted transferee to the extent the vacancy results from BR Member or its permitted transferee being removed as Manager and excluding the Membership Interests of Catalyst Member or its permitted transferee to the extent the vacancy results from Catalyst Member or its permitted transferee being removed as Manager). A Manager elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office and shall hold office until the expiration of such term and until his successor shall be elected and shall qualify or until his earlier death, resignation or removal.

5.11        Salaries . The salaries and other compensation of the Managers shall be fixed from time to time by an affirmative vote of all the Members, and no Manager shall be prevented from receiving such salary by reason of the fact that he is also a Member of the Company.

5.12        Development and Development Fee .

5.13        Investment Banking Fee . At the Closing of the acquisition of the Property, the BR Member or its designee shall earn an investment banking fee equal to one percent (1%) of the Total Project Budget (exclusive of the Development Fee and this investment banking fee). In lieu of the Company paying the investment banking fee to the BR Member in cash, the BR Member shall be entitled to offset a portion of its Initial Capital Contribution by the amount of the investment banking fee.

5.14        Total Project Budget and Operating Budget .

5.15        Management Company . The Managers shall agree upon and cause the Borrower to enter into a management agreement (the “Management Agreement”) with a management company mutually agreed upon by the Members (“Management Company”) to manage, lease-up and operate the Property pursuant to the Management Agreement. The Management Agreement shall require that Management Company operate the Project in a first class manner, and in accordance with the standards and conditions for the type, style, class, use and location of the Property, consistent with the Property’s Operating Budget. The Borrower shall pay Management Company a management fee in the amount of no more than three percent (3%) of annual gross cash revenues (except during the lease up phase), payable monthly.

5.16        Operation in Accordance with REOC/REIT Requirements .

5.17          FCPA . 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. Each Member agrees to notify immediately the other Member 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.

ARTICLE 6.

RIGHTS AND OBLIGATIONS OF MEMBERS

6.01          Limitation on Liability . Each Members’ liability shall be limited as set forth in this Operating Agreement, the Act and other applicable law.

6.02          No Liability for Company Obligations . No Member will have any personal liability for any debts or losses of the Company beyond its respective Capital Contributions, except as provided by law or otherwise provided by separate agreement among the Members.

6.03        List of Members . Upon written request of any Member, the Company shall provide a list showing the names, addresses and Membership Interest and Economic Interest of all Members and any other information required by Section 18-305 of the Act and maintained pursuant to Section 11.02.

6.04        Dissenters’ Rights . No Member shall have appraisal or dissenters’ rights pursuant to Section 18-210 of the Act.

6.05        Financing and Recourse Obligations; Refinancing .

(a)          The Catalyst Member will use commercially reasonable efforts to secure a Loan from a Lender, which Loan shall be in an amount no less than 70% (and may be up to 75%) of total development costs as set forth on the Total Project Budget subject to market terms and conditions, with Borrower serving as the borrower; provided however, any “transfer” restrictions therein shall be at the sole but reasonable discretion of the BR Member. In the event that the Catalyst Member fails to secure a Loan within six (6) months after the date hereof, then, subject to Section 7.07, the BR Member shall have the right to secure a Loan on behalf of the Borrower.

(b)          If required in connection with the Loan, the Catalyst Member and/or an affiliate of the Catalyst Member acceptable to Lender in its sole discretion shall be obligated to provide, or cause its Affiliate to provide (subject to the requirements of the applicable Lender), any required guaranty or indemnity, including, without limitation, any project completion and repayment guaranties (each, a “Recourse Guaranty”) and any “bad boy” non-recourse carveout guaranty and/or any environmental indemnification agreement (each a “Non-Recourse Carveout Guaranty”); provided, however, the terms and conditions of such guaranty or indemnity shall be subject to the approval of the Catalyst Member in its sole and absolute discretion (each, as the same may be amended or restated from time to time, a “Loan Guaranty”). The BR Member, in its sole and absolute discretion may, if it elects to do so, provide or cause one of its Affiliates to provide, a Non-Recourse Carveout Guaranty on terms and conditions satisfactory to BR Member in its sole discretion. Neither BR Member nor any Affiliate of BR Member shall be required to execute a Recourse Guaranty or Non-Recourse Carveout Guaranty.

(c)          Notwithstanding anything contained in this Agreement to the contrary, the Catalyst Member, for so long as the Catalyst Member or its Affiliate has any outstanding Loan Guaranty, may unilaterally in the first instance make a call upon the Members for Additional Capital Contributions to fund on a timely basis (other for than Hard Cost Overruns or Soft Cost Overruns, or for any such portions of the capital that the Brown Co-Tenants would be obligated to fund under the TIC Agreement, or for amounts equivalent to Section 8.04(a) Advances) any Debt Service Shortfall or other payment which if unpaid would constitute a payment default on any such guaranty or under the Loan (a “Protection Payment”). Furthermore, if there is an imminent payment default under the Loan and the Catalyst Member has not initiated the capital call noted above, then the BR Member may do so to the same extent necessary to raise the necessary capital to make a Protection Payment.

In the event that either Member elects to make such capital call for a Protection Payment, it shall cause the Company to cause the Borrower to issue a Cash Call Notice (as that term is defined in the TIC Agreement) to the Co-Tenants, and they shall each have fourteen (14) days to fund their respective shares of the required capital; namely, the Brown Co-Tenants shall be obligated to fund ten percent (10%) as Additional Cash Contributions pursuant to the TIC Agreement, and the Company shall be required to fund the other ninety percent (90%) (all of which shall be funded by the BR Member as an Additional Capital Contribution pursuant to this Agreement). Notwithstanding the foregoing, if the Brown Co-Tenants do not timely fund their 10% share, then the Company shall be required to fund the full one hundred percent (100%) of the amount required pursuant to the Cash Call Notice (of which 90% shall be funded by the BR Member and 10% shall be funded by the Catalyst Member as an Additional Capital Contribution pursuant to this Agreement).

If either the BR Member, on the one hand, or both the Brown Co-Tenants and the Catalyst Member, on the other hand, fails or refuses to timely contribute its above share of such call for Additional Capital Contributions for a Protection Payment, then the Member initiating the capital call, as the sole remedy against the other Member, shall have the right to unilaterally cause the Borrower, but only so long as and only to the extent necessary to prevent or cure such default under a Loan Guaranty, to (1) refinance the Loan on commercially reasonable terms, (2) obtain commercially reasonable supplemental loans secured by assets of the Borrower, (3) enter into negotiations with the Lender to restructure the Loan and modify the terms of the Loan on commercially reasonable terms, (4) sell the Project, (5) exercise the Buy/Sell under Section 12.06 (notwithstanding any “lockout” period in Section 12.06) or (6) in the case of the Catalyst Member, initiate its Put Right. For avoidance of doubt, failure to fund such call for Additional Capital Contributions shall not give rise to Shortfall funding rights or treatment under Section 8.04(e) to the extent one Member, but not the other, funds.

(d)          The Catalyst Member shall have the unilateral right to cause the Borrower to refinance the Loan with Standard Market Financing at any time; provided, however:

(A)       (i) before closing the new refinancing loan the Catalyst Member must provide the terms of such proposed new loan to the BR Member (including without limitation a copy of a fully negotiated term sheet or similar evidence of the terms of the proposed Standard Market Financing), (ii) the BR Member shall have sixty (60) days from the date it receives the terms of such new proposed loan from the Catalyst Member within which to obtain a loan proposal with the same or better economic terms than those obtained by the Catalyst Member (without requirement for any guaranty or indemnity agreement by the Catalyst Member or any of its Affiliates, except as may have been included in the Standard Market Financing proposal provided by the Catalyst Member), (iii) if the BR Member is able to obtain better loan terms than those obtained by the Catalyst Member, the Company and the Members shall take any and all actions necessary to cause the Borrower to close the new loan proposed by the BR Member and (iv) if the BR Member is unable to obtain better loan terms, the Company and the Members shall take any and all actions necessary to cause the Borrower to close the Standard Market Financing obtained by the Catalyst Member; and

(B) in no event shall any such refinancing loan under this Section 6.05(d) , (i) include any prepayment lock-outs (but this provision does not prohibit breakage costs for loans based on LIBOR or other matched-funding arrangements or prepayment premiums not based on yield maintenance), (ii) provide for a principal amount in excess of the then-current principal amount of the Loan (except for an increase in principal to pay transactional costs for closing of the refinancing), (iii) provide for additional interest or similar payments to the lender based on cash flow or profits of the Company or capital proceeds realized by the Company, (iv) except for a standard CMBS financing transaction, be pooled (including as to collateralized or defaults) with any property not owned by the Company or (v) require the BR Member or its Affiliates to take on any guaranty obligations beyond that which it had in connection with the Loan.

Notwithstanding the foregoing, if the Catalyst Member has not prior to 120 days before maturity of the Loan put forth a Standard Market Financing proposal to refinance the Loan, then the BR Member may proceed to refinance it on commercially reasonable terms so long as such refinancing meets the same requirements and limitations in subsection (B) above and such financing does not require any guaranty or indemnity agreement by the Catalyst Member or any of its Affiliates beyond a Non-Recourse Carveout Guaranty of substantially similar scope to that signed by the BR Member or its Affiliates.

6.06        Default . If any Member or its Affiliate commits any Default Action (as defined below), then, provided the other Member and/or its Affiliate is not in material breach or default hereunder and has not otherwise committed a Default Action, in addition to the rights available under this Agreement (including but not limited to Section 5.09) and any other legal or equitable remedy available to the non-breaching Member, the non-breaching Member shall be entitled to recover its actual damages, including reasonable attorney’s fees (but specifically excluding special, consequential, punitive or exemplary damages) sustained by the non-breaching Member as a result of such Default Action. The following actions are collectively referred to as “Default Actions”: (1) Bankruptcy of a Member, (2) willful misconduct or gross negligence, (3) willful misappropriation of Company or Borrower funds, (4) the transfer of a Membership Interest in violation of this Agreement (5) any action or omission that, to the extent caused solely by a Member’s actions or omissions, results in Lender asserting liability under a Non-Recourse Carveout Guaranty (but expressly excluding therefrom, any liquidity based non-recourse carveout), (6) withdrawal of a Member in violation of the Agreement; (7) solely with respect to the Catalyst Member, the Bankruptcy of Developer or any Affiliate of Catalyst that has provided a Loan Guaranty, but only to the extent that the Bankruptcy by a Catalyst Affiliate triggers a default under the terms of the applicable Loan and (8) solely with respect to the BR Member, the Bankruptcy of Bluerock Residential Growth REIT, Inc. following the date that it first acquires a direct or indirect common interest in the Company or the Project; provided, that the non-defaulting Member shall provide notice to the defaulting Member of the occurrence of any Default Action under clauses (1), (4), (5), (6), (7) or (8) and the defaulting Member shall have thirty (30) days from the receipt of such notice to cure such Default Action; provided, however, that if more than thirty (30) days is reasonably required to cure such Default Action and if the defaulting Member has commenced to cure within the original thirty (30) day cure period and diligently continues to cure such default, then the defaulting Member shall receive such additional time as is reasonably necessary to cure the Default Action (not to exceed an additional thirty (30) days).

ARTICLE 7.

MEETINGS OF MEMBERS

7.01        Meetings . Meetings of the Members, for any purpose or purposes, may be called by the Managers or any Member.

7.02        Place of Meetings . The Persons calling any meeting may designate any place in Atlanta, Georgia as the place of meeting for any meeting of the Members. If no designation is made, the place of meeting shall be the principal executive office of the Company in the State of Georgia.

7.03        Notice of Meetings . Written notice stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than two (2) nor more than five (5) days before the date of the meeting, either personally or by mail, by or at the direction of the Managers or Person calling the meeting, to each Member entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered two (2) calendar days after being deposited in the United States mail, addressed to the Member at its address as it appears on the books of the Company, with postage thereon prepaid. Notice provided in accordance with this Section shall be effective notwithstanding anything in the Act to the contrary.

7.04        Meeting of all Members . If all of the Members shall meet at any time and place, either within or outside of the State of Georgia, and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting any lawful action may be taken.

7.05        Record Date . For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the date on which notice of the meeting is mailed or the date on which such distribution is made, as the case may be, shall be the record date for such determination of Members unless the Managers shall otherwise specify another record date. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section, such determination shall apply to any adjournment thereof.

7.06        Quorum . All of the Members, represented in person or by proxy, shall constitute a quorum at any meeting of Members.

7.07        Manner of Acting . The affirmative consent of both the BR Member and the Catalyst Member shall be required to approve these actions (each, a “Major Decision”):

(a)          do any act in contravention of, or amend the Company’s Certificate of Formation or this Operating Agreement;

(b)          do any act not specifically authorized herein which would make it impossible or impractical to own or develop the Project or to otherwise carry on the ordinary business of the Company or the Borrower;

(c)          possess any property of the Company or assign the rights of the Company in any specific property of the Company for other than a Company purpose;

(d)          change or reorganize the Company into any other legal form or to cause any merger of the Company with another entity;

(e)          commence, or respond to, or settle any litigation involving the Company, the Borrower or the Property;

(f)          filing or initiating a Company or Borrower Bankruptcy;

(g)          permit or cause the Company or the Borrower to purchase or invest in real property other than its co-tenancy interest in the Project;

(h)          make loans using funds of the Company;

(i)          except as expressly provided in Section 12.02, the admission of additional Members to the Company;

(j)          take any action which would cause a default under the Loan or reasonably be expected to otherwise expose the Catalyst Member, BR Member or any Affiliate thereof to liability under any Loan Guaranty;

(k)          enter into any transaction with a Member and/or any Affiliate thereof (except as expressly authorized herein);

(l)           adoption of or modifications to the preliminary drawings or the final bid set of construction drawings and specifications for the Project (collectively, such plans, drawings and specifications, as they may be modified in accordance with this Agreement, are referred to as the “Plans”); and any changes to the final Plans, including, without limitation, any Discretionary Changes (as hereinafter defined); except for (i) government-mandated changes, (ii) supplemental instructions and clarifications issued by the Project architect, (iii) changes required by a Lender, and (iv) changes deemed appropriate by the Catalyst Member that individually do not increase or decrease Hard Costs by more than $75,000 and, when taken together with all other change orders that are not either approved by the Members or required by governmental authorities or a Lender, do not increase or decrease Hard Costs, on a net basis, by more than $200,000 in the aggregate; provided, however, that no such changes described in this clause (iv) shall be inconsistent with the Total Project Budget;

(m)         approve any modifications to the Total Project Budget;

(n)          make any expenditure or incur any obligation that varies from the Total Project Budget or Operating Budget, as applicable;

(o)          approve any general contractor or co-developer for the Property, or any agreement with such Person, except (i) as provided in Section 5.12 or (ii) for the engagement of a replacement developer if the Catalyst Member is removed as a Manager under Section 5.09;

(p)          incur any indebtedness for borrowed money or grant a security interest in the Company’s or Borrower’s property;

(q)          enter into any one or more agreements or contractual commitments, on behalf of the Company or the Borrower obligating the Company or Borrower, as applicable, to make expenditures exceeding, in the aggregate for any one year, $30,000 (except as expressly authorized herein);

(r)           approve any Operating Budget or make any modifications thereto;

(s)          subject to Sections 6.05(c), 6.05(d), 12.06 and 12.09 , any sale, refinance or other capital transaction with regard to the Project;

(t)          in the event of a fire, other casualty or partial condemnation of the Property, a determination whether to construct or reconstruct improvements located in the Property, where such construction or reconstruction would cost in excess of One Hundred Thousand Dollars ($100,000) and is not required under the terms and provisions of any lease, mortgage or deed of trust affecting the damaged or condemned portion of the Property in question;

(u)          any material changes to the Company’s or Borrower’s business plan, including without limitation changes with regard to leasing strategy and rental rates;

(v)         hiring or terminating any property manager and the entry into any related property management agreement for the Property; and

(w)        making any decisions or elections under the Trust Agreement or TIC Agreement.

Notwithstanding anything contained herein to the contrary, the items listed in subsections (p) through (w) above shall cease to be Major Decisions and shall only require the approval of the BR Member, after soliciting the viewpoint of the Catalyst Member, from and after the date that the Termination Conditions (as hereinafter defined) have been satisfied. As used herein, “Termination Conditions” shall mean (i) at least thirty (30) months have lapsed from the date of this Agreement, and (ii) the Catalyst Member and/or any Affiliate have been or, upon consummation of the proposed Major Decision, will be released in full from any Loan Guaranty.

7.08          Proxies . A Member may vote in person or by proxy executed in writing by the Member or by a duly authorized attorney-in-fact. Such written proxy shall be delivered to the Company.

7.09          Action by Members Without a Meeting . Action required or permitted to be taken by the Members at a meeting may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by all of the Members. Action take under this Section is effective when the Members required to approve such action have signed the consent, unless the consent specifies a different effective date. The record date for determining Members entitled to take action without a meeting shall be the date the first Member signs a written consent.

7.10        Waiver of Notice . Pursuant to Section 18-302(c) of the Act, when any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at, or after the time stated therein, shall be equivalent to the giving of such notice.

7.11        Meeting by Telephone; Action by Consent . Pursuant to Section 18-302(d) of the Act, Members may also meet by conference telephone call if all Members can hear one another on such call and the requisite notice is given or waived.

ARTICLE 8.

CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS

8.01        Members’ Initial Capital Contributions . Each Member shall be obligated to contribute such amount as is set forth in Exhibit “A” hereto as its share of the Initial Capital Contribution. The Members shall make their entire Initial Capital Contribution on the date hereof. In addition to the Members’ Initial Capital Contributions, Exhibit A for informational purposes only reflects the initial capital contributions into the Borrower that will be required from and simultaneously made by the Brown Co-Tenants. Notwithstanding the foregoing, the Members agree that all Pursuit Costs (as such term is defined in the Cost-Sharing Agreement) previously incurred by a Member or its Affiliate either (i) shall be deemed an Initial Capital Contribution of such Member and reduce the amount otherwise to be contributed by it to the Company or (ii) shall be refunded to such Member by the Borrower such that each of the Co-Tenants bears its pro rata share of such amount.

8.02        Additional Contributions . Except as set this Article 8, no Member shall be required to make any Capital Contributions to the Company.

8.03        Loans to Company . To the extent approved by the Managers and Members pursuant to Section 7.07, any Member may make a secured or unsecured loan to the Company or the Borrower.

8.04        Mandatory Additional Capital Contributions; Cost Savings .

(a)           Non-Development Cost Overruns . Except as separately addressed in Section 8.04(b) for Hard Cost Overruns and Soft Cost Overruns, in the event the Borrower is reasonably expected to incur a Non-Development Cost Overrun not solely caused by the Catalyst Member, the BR Member or their respective Affiliates and is expected to result in the Borrower having an imminent cash deficit, and such funds are not obtained pursuant to Section 8.03 above or pursuant to the TIC Agreement, the Catalyst Member as Manager shall in the first instance determine the amount of required funds (but if it fails to timely do so, the BR Member as Manager may do so), shall notify the Management Committee of same and shall recommend that the Management Committee make a capital call for such funds pursuant to this Section 8.04(a) .

Upon the receipt of such recommendation, the Management Committee shall evaluate it in good faith and determine whether such capital call is reasonably required under the circumstances. In the event that the Management Committee elects to make such capital call, it shall cause the Company to cause the Borrower to issue a Cash Call Notice (as that term is defined in the TIC Agreement) to the Co-Tenants, and they shall each have fourteen (14) days to fund their respective shares of the required capital; namely, the Brown Co-Tenants shall be obligated to fund ten percent (10%) as Additional Cash Contributions pursuant to the TIC Agreement, and the Company shall be required to fund the other ninety percent (90%) (all of which shall be funded by the BR Member as an Additional Capital Contribution pursuant to this Agreement). Notwithstanding the foregoing, if the Brown Co-Tenants do not timely fund their 10% share, then the Company shall be required to fund the full one hundred percent (100%) of the amount required pursuant to the Cash Call Notice (of which 90% shall be funded by the BR Member and 10% shall be funded by the Catalyst Member as an Additional Capital Contribution pursuant to this Agreement). These fundings will, in turn, be contributed to the Borrower as Additional Cash Contributions (as that term is defined and used in the TIC Agreement) and then returned by the Borrower back to the Company on a fourth priority basis, in accordance with the provisions of the TIC Agreement.

Notwithstanding the foregoing: (i) the Catalyst Member must on its own account solely fund into the Company any Non-Development Cost Overrun caused by, or any other additional capital required by the Company because of, a Default Action of the Catalyst Member or its Affiliates (a “Catalyst Section 8.04(a) Advance”) (to be paid back as provided in Section 9.01(f) below, but without any interest or return thereon); and (ii) the BR Member must on its own account solely pay over to the Company any Non-Development Cost Overrun caused by, or any other additional capital required by the Company because of, a Default Action of the BR Member or its Affiliates (a “BR Section 8.04(a) Advance” and, generically with the Catalyst Section 8.04(a) Advance, the “Section 8.04(a) Advance”) (to be paid back as provided in Section 9.01(f) below, but without any interest or return thereon).

(b)           Hard Cost Overruns and Soft Cost Overruns . In the event the Borrower is reasonably expected to incur a Hard Cost Overrun or Soft Cost Overrun, the Catalyst Member shall determine the amount of required funds to keep the Loan “in balance,” and shall promptly notify the Management Committee of same and recommend that the Management Committee make a capital call for such funds pursuant to this Section 8.04(b). Upon the receipt of the recommendation of the Catalyst Member, the Management Committee shall evaluate it in good faith and determine whether such capital call is reasonably required under the circumstances. In the event that the Management Committee elects to make such capital call, it shall cause the Company to cause the Borrower to issue a Cash Call Notice (as that term is defined in the TIC Agreement) to the Co-Tenants, and they shall each have fourteen (14) days to fund their respective shares of the required capital; namely, the Brown Co-Tenants shall be obligated to fund ten percent (10%) as Additional Cash Contributions pursuant to the TIC Agreement, and the Company shall be required to fund the other ninety percent (90%) (of which 55.56% shall be funded by the BR Member and 44.44% shall be funded by the Catalyst Member as an Additional Capital Contribution pursuant to this Agreement). Notwithstanding the foregoing, if the Brown Co-Tenants do not timely fund their 10% share, then the Company shall be required to fund the full one hundred percent (100%) of the amount required pursuant to the Cash Call Notice (of which 50% shall be funded by the BR Member and 50% shall be funded by the Catalyst Member as an Additional Capital Contribution pursuant to this Agreement).

(c)          In the event a Member fails (as applicable, the “Defaulting Member”) to make all the Additional Capital Contributions required above, or its Section 8.04(a) Advances, by the due date (the “Contribution Default Date”), the non-Defaulting Member(s) may (but shall not be obligated to) contribute the unpaid portion that the Defaulting Member was obligated to fund (the “Shortfall”). If there is more than one non-Defaulting Member desiring to contribute the Shortfall on behalf of a Defaulting Member, then such non-Defaulting Members shall be entitled to do so in such amounts as they may agree among each other, or, in the absence of such agreement, in proportion to their respective Ownership Percentages. For the avoidance of doubt, it is the intent of the Members that any such Shortfall will, in turn, be contributed to the Borrower and that the Borrower will then return such Shortfall to the Company on a priority basis, in accordance with the provisions of the TIC Agreement.

(d)           Cost Savings . With the approval of the Lender, the Catalyst Member may reallocate Cost Savings within Hard Costs or Soft Costs to other line items within either such category of the Total Project Budget (including the contingency for Hard Costs or Soft Costs) in order to pay for Hard Cost Overruns before having to make a capital call to pay for such Hard Cost Overruns or to pay for Soft Cost Overruns before having to make a capital call to pay for such Soft Cost Overruns. The Catalyst Member shall provide to the BR Member, on a monthly basis, a list of any proposed Cost Savings to be reallocated to another line item of the Total Project Budget, identifying the line item from which the Cost Savings originated and the line item to which the Cost Savings were reallocated if approved by the Lender. In the event Lender approves a construction draw on the Loan to pay the aggregate Cost Savings to Borrower, then in such event the Catalyst Member shall be entitled to 100% of the proceeds derived from such funding draw on the Loan.

(e)           Failure to Make Section 8.04(a) Advances or Fund Cost Overruns . Notwithstanding anything contained herein to the contrary, and in addition to any other rights available under this Agreement, if a non-Defaulting Member contributes a Shortfall amount on behalf of a Defaulting Member in connection with the failure to make Additional Capital Contributions required to fund Hard Cost Overruns or Soft Cost Overruns or Section 8.04(a) Advances, then the non-Defaulting Member shall be credited with Additional Capital Contributions at a 3:1 ratio for each such dollar of Shortfall/Additional Capital Contribution so made on behalf of the Defaulting Member. For example, if the Brown Co-Tenants fail to fund their share of a Hard Cost Overrun and the Catalyst Member fails on their behalf to do so as required under Section 8.04(b), the BR Member shall have the right but not the obligation to fund such amount to the Company as an Additional Capital Contribution and, to the extent that it does, shall be credited at a 3:1 ratio (meaning, for every $100,000 of Additional Capital Contribution made by the BR Member for that purpose, the BR Member would be credited with having made $300,000 of Additional Capital Contributions and the 10% Additional Contribution Priority Return will be calculated on such $300,000 figure). For the avoidance of doubt, as provided in the TIC Agreement, any such Shortfalls/Additional Capital Contributions made under this Section 8.04(e) and contributed to the Borrower will be entitled to the same 3:1 ratio at the Borrower level and shall be returned by the Borrower to the Company with the three times multiple, along with any further preferred return thereon, on a priority basis, in accordance with the TIC Agreement. For the avoidance of doubt, this Section 8.04(e) shall not apply with respect to the failure of a Member to fund Non-Development Cost Overruns.

(f)           The remedies provided in this Section 8.04 with respect to any Member’s failure to make any Additional Capital Contribution or Section 8.04(a) Advance shall be the sole and exclusive remedies of the non-Defaulting Member for such failure.

8.05        Withdrawal or Reduction of Members’ Contributions to Capital .

(a)          A Member shall not receive out of the Company’s property any part of such Member’s Capital Contributions until all liabilities of the Company, except liabilities to Members on account of their Capital Contributions, have been paid or there remains property of the Company sufficient to pay them.

(b)          A Member, irrespective of the nature of such Member’s Capital Contribution, has only the right to demand and receive cash in return for such Capital Contribution.

8.06        Maintenance of Capital Accounts . The Company shall establish and maintain a Capital Account for each Member and Economic Interest Owner. Each Member’s Capital Account shall be increased by (a) the amount of any Capital Contribution contributed by the Member to the Company, (b) the fair market value of any property, as determined by the Company and the Member by arm’s length agreement at the time of contribution (net of liabilities assumed by the Company or subject to which the Company takes such property within the meaning of Section 752 of the Code), and (c) the Member’s share of Profits and of any separately allocated items of income or gain (including any gain or income allocated to the Member to reflect the difference between the book value and tax basis of assets contributed by such Member). Each Member’s Capital Account shall be decreased by (a) the amount of any money distributed to the Member by the Company (excluding payments received by a Member from the Company as repayment of a loan by the Company to the Member), (b) the fair market value of any property distributed to the Member (net of liabilities of the Company assumed by the Member or subject to which the Member takes such property within the meaning of Section 752 of the Code), and (c) the Member’s share of Losses and of any separately allocated items of deduction or loss (including any loss or deduction allocated to the Member to reflect the difference between the book value and tax basis of assets contributed by the Member).

ARTICLE 9.

DISTRIBUTIONS

9.01        Distributions . Distributions of Net Cash Flow and Capital Proceeds shall be distributed and applied by the Managers in the following order and priority:

(a)          First, to non-Defaulting Members, pari passu, in accordance with their accrued but unpaid Additional Contribution Priority Return, if any, until each non-Defaulting Member entitled to an Additional Contribution Priority Return is paid such amount in full;

(b)          Next, to non-Defaulting Members, pari passu, in accordance with their Additional Capital Contributions, until their unreturned Additional Capital Contributions are reduced to zero;

(c)          Next, to Defaulting Members, pari passu, in accordance with their accrued but unpaid Additional Contribution Priority Return, if any, until each Defaulting Member entitled to an Additional Contribution Priority Return is paid such amount in full;

(d)          Next, to Defaulting Members, pari passu, in accordance with their Additional Capital Contributions, until their unreturned Additional Capital Contributions are reduced to zero;

(e)          Next, to the Members, pari passu, in accordance with their Ownership Percentages, until such time as the BR Member has received an amount which, when aggregated with all prior applicable distributions pursuant to subsections (a) through (d) above, is equal to the greater of (1) an Internal Rate of Return of ten percent (10%) and (2) 135% of the BR Member’s IRR-Included Capital Contributions;

(f)          Next, to each applicable Member in accordance with their Section 8.04(a) Advances, without interest, pari passu to the Members based on the principal amounts advanced with respect to each Member;

(g)          Next, pari passu, 69.44% to the BR Member and 30.56% to the Catalyst Member, until such time as the BR Member has received an Internal Rate of Return of at least twenty percent (20%); and

(h)         Thereafter, pari passu, 61.11% to the BR Member and 38.89% to the Catalyst Member.

9.02          Limitation Upon Distributions . No distribution shall be made to Members if prohibited by Section 18-607 of the Act.

9.03          Interest On and Return of Capital Contributions . No Member shall be entitled to interest on its Capital Contribution or to return of its Capital Contribution, except as otherwise specifically provided for herein.

ARTICLE 10.

ALLOCATIONS OF NET PROFITS AND NET LOSSES

10.01       Allocation of Profits and Losses . Profits and Losses for any Fiscal Year or other period of the Company will be allocated to the Members as follows:

(a)           Allocations of Profits and Losses for Capital Account Purposes . After giving effect to the special allocations set forth in Sections 10.02 and 10.03, Profits and Losses of the Company for any Fiscal Year or portion thereof shall be allocated among the Capital Accounts of the Members in such a manner that would cause, to the extent possible, the Capital Accounts of the Members as of the end of a Fiscal Year or portion thereof, after adjustment for all contributions and distributions during the year, and after adjustment for the special allocations set forth in Sections 10.02 and 10.03 (including the allocations of such Members’ shares of the “partnership minimum gain” and “partner nonrecourse debt minimum gain” (as such terms are used in Regulation Section 1.704-2) not otherwise required to be taken into account during such period), to equal the aggregate distributions that the Members would be entitled to receive pursuant to Section 9.01, in each case determined as if (i) all assets of the Company, including cash, were sold for their Gross Asset Values (which, for the avoidance of doubt, shall not be “booked up” to fair market value for this purpose outside of an actual liquidation), (ii) all Company liabilities, including the Company’s share of any liability of any entity treated as a partnership for U.S. federal income tax purposes in which the Company is a partner, were satisfied in cash according to their terms (each nonrecourse liability is limited to the book value of the assets securing such liability) and (iii) the remaining proceeds were distributed in accordance with Section 9.01. The Managers, based on the advice of the Company’s tax advisors, shall have the authority to correct or adjust any allocation provision hereunder as it determines to be necessary or appropriate (and not unfairly discriminatory against any Member) for such allocations, in the aggregate, to be made in the manner provided in the first sentence of this Section 10.01.

(b)           Limitations on Losses for Capital Account Purposes . Notwithstanding anything in Section 10.01(a) to the contrary, the Managers will not allocate any item of loss or deduction to a Member that would cause or increase a deficit balance in such Member’s Capital Account (as increased by such Member’s share of “partnership minimum gain” and “partner nonrecourse debt minimum gain”, as such terms are defined in Regulations Section 1.704-2 and applied to the Members of the Company), and will make special allocations of the Profits or Losses of the Company among the Members as necessary to cause the allocations under this Section 10.01 to be respected under Code Section 704(b) and Regulations Section 1.704 1(b)(1). The Managers shall, to the extent possible and in whatever manner they deem appropriate, make subsequent curative allocations of other items of income, gain, loss and deduction to offset any such special tax allocations.

10.02      Special Allocations . The following special allocations shall be made in the following order:

(a)           Minimum Gain Chargeback . Notwithstanding any other provision of this Article 10, if there is a net decrease in Company Minimum Gain during any Company Fiscal Year, each Member shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Section 1.704-2(f) of the Regulations. This Section 10.02(a) is intended to comply with the minimum gain chargeback requirement in such Section of the Regulations and shall be interpreted consistently therewith.

(b)           Member Minimum Gain Chargeback . Notwithstanding any other provision of this Article 10, except Section 10.02(a), if there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Debt during any Company Fiscal Year, each Member who has a share of the Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Section 1.704-2(i)(4) of the Regulations. This Section 10.02(b) is intended to comply with the minimum gain chargeback requirement in such Section of the Regulations and shall be interpreted consistently therewith.

(c)           Qualified Income Offset . In the event any Member unexpectedly receives any adjustments, allocations, or Distributions described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6), items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this Section 10.02(c) shall be made if and only to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article 10 have been tentatively made as if this Section 10.02(c) were not in the Agreement.

(d)           Gross Income Allocation . In the event any Member has a deficit Capital Account at the end of any Company Fiscal Year that is in excess of the sum of (i) the amount such Member is obligated to restore, and (ii) the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 10.02(d) shall be made if and only to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Article 10 have been tentatively made as if Section 10.02(c) hereof and this Section 10.02(d) were not in the Agreement.

(e)           Nonrecourse Deductions . Nonrecourse Deductions for any fiscal year or other period shall be specially allocated to the Members in accordance with their respective Ownership Percentages.

(f)           Member Nonrecourse Deductions . Any Member Nonrecourse Deductions for any fiscal year or other period shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Regulations Section 1.704-2(i).

(g)           Section 754 Adjustment . To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Members in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Regulations.

10.03      Curative Allocations .

(a)          The allocations set forth in Sections 10.01(b) and 10.2 (the “Regulatory Allocations”) are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 10.03. Therefore, notwithstanding any other provision of this Article 10 (other than the Regulatory Allocations), the Managers shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner they determine appropriate so that, after such offsetting allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of the Agreement and all Company items were allocated pursuant to Section 10.01.

(b)          The Managers shall have reasonable discretion, with respect to each Company Fiscal Year, to (i) apply the provisions of Section 10.03(a) hereof in whatever manner is likely to minimize the economic distortions that might otherwise result from the Regulatory Allocations, and (ii) divide all allocations pursuant to Section 10.03(a) hereof among the Members in a manner that is likely to minimize such economic distortions.

10.04      Tax Allocations .

(a)          Except as set forth in this Section 10.04, allocations for income tax purposes of items of income, gain, loss, deduction, and credits, and basis therefor, shall be made in the same manner as allocations for book purposes set forth in Sections 10.01, 10.02 and 10.03 hereof. In applying this Section 10.04, each item of income, gain, expense and loss for a period not specially allocated shall be allocated in the same proportions as the allocation of Profits and Losses for such period.

(b)          In the event of a contribution of property other than cash to the Company, income, gain, loss and deduction with respect to such contributed property shall be shared among the Members for tax purposes so as to take account of the variation between the basis of the property to the Company and its fair market value at the time of contribution in accordance with Code Section 704(c) and the Regulations thereunder.

(c)          In the event the book value of any Company asset is adjusted to equal its fair market value in accordance with Regulations Sections 1.704-1(b)(2)(iv)(d) and 1.704-1(b)(2)(iv)(f), subsequent allocations of income, gain, loss and deduction with respect to such asset shall take into account any variation between the adjusted basis of such asset for federal income tax purposes and its fair market value pursuant to Code Section 704(c) and the Regulations thereunder.

(d)          In accordance with Sections 704(b) and 704(c) of the Code and applicable Treasury Regulations, including Treasury Regulations Section 1.704-1(b)(4)(i), items of income, gain, deduction and loss with respect to any property that is properly reflected on the books of the Company at a book value that differs from the adjusted tax basis of such property within the meaning of the Regulation 1.704-1(b)(2)(iv)(g)(1) (“Book Property”) (and, if necessary, any other property of the Company) shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of the Book Property to the Company for federal income tax purposes and its book value.

(e)          To the extent of any recapture income resulting from the sale or other taxable disposition of assets of the Company, the amount of any gain from such disposition allocated to a Member (or a successor in interest) for federal income tax purposes pursuant to the above provisions shall be deemed to be recapture income to the extent that such Member has been allocated or has claimed any deduction directly or indirectly giving rise to the treatment of such gain as recapture income.

(f)          The items of income, gain, deduction and loss for tax purposes allocated to the Members pursuant to this Section 10.04 shall not be reflected in the Members’ Capital Accounts. Any elections or other decisions relating to such allocations shall be made by the Managers in any manner that reasonably reflects the purpose and intent of this Agreement and is consistent with the economic arrangement among the Members.

(g)          Pursuant to Treasury Regulations Section 1.752-3(a)(3), the Members hereby agree to allocate excess nonrecourse liabilities of the Company in accordance with their respective Ownership Percentages.

10.05          Varying Interest in Company . Allocations to any Member whose Membership Interest changes during a Company Fiscal Year or to any Member who is a Member for less than a full Company Fiscal Year, whether by reason of the admission of a Member, the withdrawal of a Member, a non-pro rata contribution of capital to the Company or any other event described in Section 706(d)(1) of the Code and the Regulations issued thereunder, shall be made in accordance with Section 706(d) of the Code and the Regulations promulgated thereunder to take into account the varying Interests of the Members in the Company during the Company Fiscal Year.

ARTICLE 11.

BOOKS AND RECORDS

11.01      Accounting Period . The Company’s accounting period shall be the calendar year.

11.02      Records . Proper and complete records and books of accounts shall be kept or shall be caused to be kept by the Managers in which shall be entered fully and accurately all transactions and other matters relating to the Company’s business in such detail and completeness as is customary and usual for businesses of the type engaged in by the Company. The Company shall keep at its principal place of business the following records:

(a)          A current list of the full name and last known address of each Member, Economic Interest Owner and Manager;

(b)          Copies of records to enable a Member to determine the relative voting rights, if any, of the Members;

(c)          A copy of the Certificate of Formation of the Company and all amendments thereto;

(d)          Copies of the Company’s federal, state and local income tax returns and reports, if any, for the three most recent years;

(e)          Copies of the Company’s written Operating Agreement, together with any amendments thereto;

(f)          Copies of any financial statements of the Company for the three (3) most recent years.

The books and records shall at all times be maintained at the principal office of the Company and shall be open to the reasonable inspection and examination of the Members, Economic Interest Owners, or their duly authorized representatives during reasonable business hours.

11.03      Reports and Financial Statements .

(a)          Within fifteen (15) days of the end of each Fiscal Year, the Catalyst Member shall cause each Member to be furnished with the following annual reports computed as of the last date of the Fiscal Year: (i) an unaudited balance sheet of the Company; (ii) an unaudited statement of the Company’s profit and loss; and (iii) a statement of the Members’ Capital Accounts and changes therein in such Fiscal Year.

(b)          Within fifteen (15) days of the end of each quarter of each Fiscal Year, the Catalyst Member shall cause to be furnished to the BR Member such information as reasonably requested by the BR Member, and to the extent not readily available, which may be reasonably prepared by the Catalyst Member at the expense of the Company, as is necessary for any REIT Member (whether a direct or indirect owner) to determine its qualification as a REIT and its compliance with REIT Requirements as shall be requested by the BR Member. Further, the Catalyst Member shall cooperate in a reasonable manner at the request of any Member, at the expense of the Company, to work in good faith with any designated accountants or auditors of such Member or its Affiliates so that such Member or its Affiliate is able to comply with any public reporting, attestation, certification and other requirements under the Securities Exchange Act of 1934, as amended, applicable to such entity, and to work in good faith with the designated accountants or auditors of the Member or any of its Affiliates in connection therewith, including for purposes of testing internal controls and procedures of such Member or its Affiliates.

11.04      Tax Returns . Until such time as the BR Member otherwise elects by written notice to the Catalyst Member to undertake such preparation and filing activities, the Catalyst Member shall cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Code and all other tax returns deemed necessary and required in each jurisdiction in which the Company does business and shall submit such returns to the Members for their review, comment and approval at least ten (10) days prior to the due date or extended due date thereof and shall thereafter cause the same to be filed in a timely manner (including extensions). No later than the due date or extended due date, the Member responsible for making such filings hereunder shall deliver or cause to be delivered to each Member a copy of the tax returns for the Company and such Subsidiaries with respect to such Fiscal Year, together with such information with respect to the Company and such Subsidiaries as shall be necessary for the preparation by such Member of its U.S. federal and state income or other tax and information returns.

ARTICLE 12.

TRANSFERABILITY

12.01      General Prohibition . Except as provided in Sections 12.02, 12.06 and 12.09 hereof, in which event no consent from any party shall be required to effectuate the transfer(s) described therein, no Member or Economic Interest Owner may assign, convey, sell, transfer, liquidate, encumber, or in any way alienate (collectively a “Transfer”), all or any part of its Interest without the prior written consent of the Members, which consent may be given or withheld in the sole discretion of any Member; provided, however, that nothing contained herein shall prohibit any transfers of direct or indirect equity interests in the Members so long as, in the case of the Catalyst Member, such transfers do not result in a Catalyst Change of Control until after the Termination Conditions have been satisfied. Any attempted Transfer of all or any portion of an Interest without the necessary consent, or as otherwise permitted hereunder, shall be null and void and shall have no effect whatsoever. Upon the transfer of a Membership Interest in accordance with this Article 12, the Ownership Percentages of the transferring Member and of the transferee shall be adjusted accordingly. Notwithstanding anything contained herein to the contrary, no Transfers shall be permitted that would violate the terms of any Loan documents.

12.02      Affiliate Transfers . Notwithstanding anything to the contrary contained in this Agreement, the following Transfers shall not require the approval set forth in Section 12.01:

(a)          Any Transfer by BR Member or a Bluerock Transferee of up to one hundred percent (100%) of its Interest to any Affiliate of Bluerock Real Estate, L.L.C., including but not limited to (A) Bluerock Residential Growth REIT, Inc. (“ BR REIT ”) or any Person that is directly or indirectly owned by BR REIT; (B) Bluerock Special Opportunity + Income Fund, LLC (“ BR SOIF ”) or any Person that is directly or indirectly owned by BR SOIF; (C) Bluerock Special Opportunity + Income Fund II, LLC (“ BR SOIF II ”) or any Person that is directly or indirectly owned by BR SOIF II, (D) Bluerock Special Opportunity + Income Fund III, LLC (“BR SOIF III”) or any Person that is directly or indirectly owned by BR SOIF III, (E) Bluerock Growth Fund, LLC (“ BR Growth ”) or any Person that is directly or indirectly owned by BR Growth, and/or (F) Bluerock Growth Fund II, LLC (“ BR Growth II ”) or any Person that is directly or indirectly owned by BR Growth II (collectively, a “ Bluerock Transferee ”); provided, that, following the date the BR REIT first acquires a direct or indirect common interest in the Company or the Project, in all instances, BR REIT shall either retain, direct or indirectly, more than a fifty percent (50%) equity interest in the BR Member or otherwise retain the power to control, directly or indirectly, the major activities of the BR Member such that BR REIT can consolidate the BR Member on its audited financial statements; and

(b)          Provided only that the development of the Project is complete (as evidenced by the delivery of a final certificate of occupancy, the delivery of an architect’s certificate of completion and the release of the final contractor retainage), any Transfer by Catalyst Member or a Catalyst Transferee of up to one hundred percent (100%) of its Interest to any Affiliate of the Catalyst Member (a “Catalyst Transferee”).

12.03      Conditions of Transfer and Assignment . A transferee of an Interest pursuant to 12.01 or 12.02 shall become a Member only if the following conditions have been satisfied:

(a)          the transferor, his legal representative or authorized agent must have executed a written instrument of transfer of such Interest in form and substance satisfactory to the Managers;

(b)          the transferee must have executed a written agreement, in form and substance satisfactory to the Managers, to assume all of the duties and obligations of the transferor under this Operating Agreement with respect to the transferred Interest and to be bound by and subject to all of the terms and conditions of this Operating Agreement;

(c)          the transferor, his legal representative or authorized agent, and the transferee must have executed a written agreement, in form and substance satisfactory to the Managers to indemnify and hold the Company, the Managers and the other Members harmless from and against any loss or liability arising out of the transfer;

(d)          the transferee must have executed such other documents and instruments as the Managers may deem necessary to effect the admission of the transferee as a Member; and

(e)          unless waived by the Managers, the transferee or the transferor must have paid the expenses incurred by the Company in connection with the admission of the transferee to the Company.

12.04     Transfers of Economic Interest Only . A permitted transferee of an Economic Interest who does not become a Member shall be an Economic Interest Owner only and shall be entitled only to the transferor’s Economic Interest to the extent assigned. Such transferee shall not be entitled to vote on any question regarding the Company, and the Ownership Percentage associated with the transferred Economic Interest shall not be considered to be outstanding for voting purposes.

12.05      Successors as to Economic Rights . References in this Operating Agreement to Members shall also be deemed to constitute a reference to Economic Interest Owners where the provision relates to economic rights and obligations. By way of illustration and not limitation, such provisions would include those regarding Capital Accounts, distributions, allocations, and contributions. A transferee shall succeed to the transferor’s Capital Contributions and Capital Account to the extent related to the Economic Interest transferred, regardless of whether such transferee becomes a Member.

12.06      Buy/Sell .

(a)          In the event the Members are deadlocked and are unable to agree unanimously on any Major Decision that requires unanimity, and the Members are unable through good faith and the exercise of their reasonable efforts to break such deadlock for a period of fifteen (15) days following notice from one Member to the other Member that a deadlock exists with regard to a Major Decision, the deadlock may be broken by the invocation of the provisions of this Section 12.06; provided, however, this Section 12.06 may be invoked if and only if such deadlock occurs after the date which is 24 months from the date of Project Stabilization. Prior to invoking the provisions of this Article, the Members shall in good faith meet within fifteen (15) days of such deadlock, and use their reasonable efforts to resolve any disagreements regarding any Major Decision. As used in this Section 12.06, “deadlock” shall mean the inability of the Members to unanimously agree with respect to a Major Decision that requires unanimity.

(b)          Either Member may initiate the buy/sell procedure by providing a written notice (the “Value Notice”) to the other Member. The Member which initiates the buy/sell procedure, is referred to herein as the “Offeror.” The Member who receives the Value Notice is referred to herein as the “Offeree.” The Value Notice shall include an offer by the Offeror to purchase all (and not less than all) of the Membership Interest(s) owned by the Offeree and an offer by the Offeror to sell all (and not less than all) of the Membership Interest(s) owned by the Offeror to the Offeree. In the case of the BR Member, the offer referred to in the preceding sentence shall also include an offer to purchase the co-tenancy interest of the Brown Co-Tenants; and in the case of the Catalyst Member, the offer referred to in the preceding sentence shall also include an offer to sell the co-tenancy interest of the Brown Co-Tenants (with respect to which the Catalyst Member represents to the BR Member that it has such drag-along rights). The Value Notice shall specify an amount (the “Stated Amount”), which shall in any case be not less than the aggregate of all indebtedness owed at that time by the Borrower, and which shall be used in the calculations of the purchase price pursuant to this Section 12.06. Notwithstanding the foregoing, upon the receipt of a Value Notice from the BR Member, the Catalyst Member shall have the right, to the extent available pursuant to Section 12.09, to exercise the Put Right contained in Section 12.09 below by issuing a Put Notice within ten (10) business days thereafter, in which case the Value Notice shall be deemed to have been rescinded by the BR Member.

(c)          The Offeree shall have forty-five (45) days from its receipt of the Value Notice to provide a written notice (the “Election Notice”) to the Offeror stating either that the Offeree will sell all (and not less than all) its Membership Interest(s) to the Offeror or that the Offeree will purchase all (and not less than all) the Offeror’s Membership Interest(s) at the purchase price referenced in Section 12.06(b) hereof. If the Offeree fails to give a timely Election Notice, the Offeree shall be deemed to have elected to sell all (and not less than all) its Membership Interest(s) to the Offeror. The Election Notice shall specify the date of closing (the “Buy-Sell Closing Date”), which date shall be at least thirty (30) days after the giving of the Election Notice, but in any event not later than the ninetieth (90th) day after such notice. If the Offeree fails to provide an Election Notice, the Buy-Sell Closing Date shall be held on the first Business Day which is at least ninety (90) days after the giving of the Value Notice. For the sake of clarity, all references in this Section and in Sections 12.07 and 12.08 to the Membership Interest of the Catalyst Member shall be deemed to include a reference to the co-tenancy interests of the Brown Co-Tenants, to the extent applicable.

(d)          The Member (or Members) that finally becomes obligated to sell its or their Membership Interest(s) is sometimes referred to herein collectively as the “Seller,” and the Member or Members that finally becomes obligated to purchase the other Member’s or Members’ Membership Interest(s) is sometimes referred to herein as the “Buyer.” If the Catalyst Member is the Seller, then the term shall also be deemed to include the Brown Co-Tenants.

(e)          The aggregate purchase price for the Seller’s Membership Interest(s) pursuant to this Section 12.06 shall be that amount which would be distributed to the Seller pursuant to Section 9.01 above (after giving effect to all applicable provisions of this Agreement, but after liquidating all Reserves then existing and without establishing any additional Reserves) if the Project was sold by the Borrower on the Buy-Sell Closing Date for a gross sales price equal to the Stated Amount and all liabilities and obligations of the Borrower were satisfied from the proceeds from such sales price and any remaining proceeds were distributed to the Co-Tenants by the Borrower as required under applicable agreements, and then the proceeds received by the Company were distributed to the Members in accordance with Section 9.01. If the Catalyst Member is the Seller, then the purchase price shall also include that amount that would be distributed to the Brown Co-Tenants directly pursuant to the TIC Agreement in connection with the sale of the Project, with any such portion of the price allocable to the Brown Co-Tenants paid directly thereto in exchange for full and complete relinquishment of any and all of their rights in and to the Trust or the Property. No Member shall be entitled to any sales fee or commission if either Member exercises the buy/sell procedure set forth in this Section 12.06.

(f)          The closing of a purchase of Membership Interest(s) pursuant to this Section 12.06 shall be held on the Buy-Sell Closing Date, subject to the terms and conditions specified herein.

(g)         As of the effective date of any transfer of a Membership Interest(s) pursuant to this Section 12.06, the Buyer shall assume all obligations of the Seller with respect to the Membership Interest so transferred, including any liability of the Seller or any Affiliate thereof with respect to any Company liabilities. Upon such transfer, the Seller’s rights and obligations under this Agreement shall terminate with respect to such transferred Membership Interest, except as to indemnity rights of such Member under this Agreement attributable to acts or events occurring prior to the effective date of such transfer. If the Buyer is the BR Member, the Buyer shall also assume any obligations of the Brown Co-Tenants pursuant to the TIC Agreement.

(h)          Notwithstanding anything contained herein to the contrary, if the Catalyst Member is the Buyer, the Catalyst Member shall have the right to assign all of any portion of its rights under this Section 12.06 to one or more of the Brown Co-Tenants or their Affiliates.

12.07      Escrow and Closing of Buy-Sell .

(a)           Closing Time and Location . Except as otherwise provided for in this Agreement, the closing of any offer of a Membership Interest between the Members pursuant to Section 12.06 shall take place through a mutually agreed escrow agent located in Atlanta, Georgia.

(b)           Required Documents . Prior to or at the closing, Seller shall supply to Buyer all documents customarily required (or reasonably required by Buyer) to make a good and sufficient conveyance of such Membership Interest to the Buyer, which documents shall be in form and substance reasonably satisfactory to the Buyer and Seller. All payments shall be by wire transfer of immediately available funds.

(c)           Conditions Precedent to Closing . The obligation of Buyer to pay the purchase price shall be conditioned upon the Membership Interest being transferred free and clear of all liens, claims and encumbrances (except for, in the case of the co-tenancy interest of the Brown Co-Tenants, non-monetary liens otherwise affecting the Property that were of record on the date hereof or that were otherwise previously approved by the Members (“Permitted Liens”)). This condition is for the sole benefit of Buyer and may be waived by Buyer in whole or in part in its sole discretion.

(d)           Closing Costs . Each party shall pay its own attorneys’ fees and expenses incurred in connection with the closing, and costs of the escrow or closing, including, without limitation all premiums for title insurance and any escrow fees, recording charges, and transfer taxes arising from the closing of the buy-sell transaction, shall be borne or allocated in the manner customary in the area in which the Project is located and, to the extent no custom exists, shall be shared equally by Seller and Buyer. Unless previously deducted in determining the price for the Membership Interest, the Buyer shall deduct from the price otherwise payable to the Seller an amount equal to all liens, claims and encumbrances of a definite or ascertainable amount, if any, which encumber the Seller’s Membership Interest being transferred which are not released or repaid on or prior to the closing (if Buyer elects to waive the conditions set forth in Section 12.07(c)).

(e)           Warranty of Title . The Seller shall represent, warrant and agree that its Membership Interest being sold hereunder is free of all liens, claims and encumbrances (except liens, claims or encumbrances that were deducted in determining the applicable price of the Membership Interest and except for Permitted Liens) and that the Seller shall defend, indemnify and hold harmless the Buyer from any such liens, claims and encumbrances.

(f)           Closing of Buy-Sell Transaction . At the closing of a sale of a Membership Interest by one Member to the other Member pursuant to Section 12.06 hereof, the following shall occur:

(i)          The Seller shall convey and assign to the Buyer or its designee the entire Membership Interest of the Seller, free and clear of all liens, claims and encumbrances (other than liens, claims and encumbrances that were waived by Buyer and deducted in determining the applicable price of the Membership Interest and except for Permitted Liens), and the Seller and the Buyer shall execute all documents which may be reasonably required to give effect to the sale and purchase of such Membership Interest.

(ii)         The Buyer shall pay or cause to be paid to the Seller the applicable purchase price for the Membership Interest being purchased in cash or by wire transfer at the closing.

(iii)        Notwithstanding any provision herein to the contrary, it shall be a condition or requirement of any offer and the closing to obtain a release of the Seller and the Seller’s Affiliates from any personal liability arising out of any and all Recourse Guaranties and Non-Recourse Carveout Guaranties.

12.08      Default .

(a)           Events of Default . The failure of a Member to perform any of the obligations set forth in Sections 12.06 or 12.07 with respect to an offer of its Membership Interest or purchase of the other Member’s Membership Interest shall constitute an event of default (“Event of Default”) on the part of the Member with respect to whom such failure occurs.

(b)           Remedies . Upon the occurrence of an Event of Default, the non-defaulting Member may exercise, in addition to all other rights and remedies provided in this Agreement or available at law or in equity, any one or more of the remedies provided for in Section 12.08 (c) below.

(c)           Remedies for Failure to Transfer Membership Interest .

(i)           Seller’s Failure . In the event that the Seller fails to make conveyance of its Membership Interest pursuant to its obligations herein, then the Buyer shall have the option: (A) to demand and receive specific performance of the Seller’s obligations to convey its Membership Interest as provided for herein; (B) to recover damages on account of the Seller’s failure to make conveyance (which rights shall be in addition to the right granted under subparagraph (A) above, if the Buyer so elects); or (C) to terminate the obligations of the parties to proceed with the sale of the Membership Interest, whereupon the position of the parties shall revert to the status quo ante as if no notice to purchase from either party to the other had been given under the provisions of this Agreement.

(ii)          Buyer’s Failure . In the event that the Buyer defaults in the closing of a purchase of a Membership Interest as herein provided, then the Seller shall have the option to: (A) elect to purchase the Buyer’s Membership Interest on the terms and conditions otherwise set forth herein, by notice to the Buyer of the Seller’s intention so to do, given within fifteen (15) days after such default in which event the Seller shall become the Buyer and the Buyer shall become the Seller, and all the applicable terms, conditions and provisions of this Agreement with respect to such sales shall govern, except that the closing thereof shall take place thirty (30) days after such date of notice from the Seller (now the Buyer) to the Buyer (now the Seller) and except that the purchase price shall be ten percent (10%) less than the price which the Seller (now the Buyer) would have had to pay had such Buyer (now the Seller) originally elected to sell its Membership Interest; (B) terminate the Seller’s obligation to convey its Membership Interest to the Buyer by notice to the Buyer, in which case the position of the parties shall revert to the status quo ante as if no notice from either party to the other had been given under the provisions of this Agreement; or (C) sue Buyer in the appropriate court for specific performance.

12.09      Catalyst Put Right .

(a)          Notwithstanding anything contained herein to the contrary, in the event that the Catalyst Member desires to either sell the Project or refinance the Loan, and in either such case the BR Member fails to provide its consent thereto, then at the Catalyst Member’s election, the Catalyst Member shall have the right to require that the BR Member purchase its Membership Interest on the terms contained herein, along with the purchase of the co-tenancy interest of the Brown Co-Tenants (the “Put Right”); provided, however, this Section 12.09 may only be invoked following Project Completion.

(b)          The Catalyst Member may exercise the Put Right by providing a written notice (the “Put Notice”) to the BR Member. The Put Notice shall state that the Catalyst Member is requiring the BR Member to purchase all (but not less than all) of the Membership Interest owned by the Catalyst Member along with the co-tenancy interest of the Brown Co-Tenants at a price to be derived from the Appraised Value of the Project. The Put Notice shall specify the date of closing (the “Put Closing Date”), which date shall be no earlier than the later of (i) the thirtieth (30th) day after the giving of the Put Notice and (ii) the tenth (10 ^th ) day following the final determination of Appraised Value, but in any event not later than the ninetieth (90th) day after such notice.

(c)          As used herein, the term “Appraised Value” means the fair market value for the Project, to be established through the following appraisal process. Each Member shall select an MAI certified appraiser, licensed in the State of Georgia, to value the Project. If the deviation between the two valuations is less than three percent (3%), then the average of the two appraisals shall form the basis of valuation for the Project. In the event the two appraised valuations deviate by more than three percent (3%), then the two appraisers shall select a third appraiser to appraise the Project. The average of the two closest appraisals shall form the basis of valuation for the Project. Catalyst shall have the right in its sole discretion to rescind its exercise of the Put Right if it is unsatisfied with the results of the appraisal process but only on the following conditions: (i) it agrees to bear all actual out-of pocket costs incurred in connection with the appraisal process; (ii) it agrees to waive all further rights to exercise the Put Right; and (iii) if the BR Member had previously exercised the Buy-Sell in accordance with Section 12.06 above, the BR Member shall have the right to return to the extant Buy-Sell.

(d)          The aggregate purchase price for the Catalyst Member’s Membership Interest pursuant to this Section 12.09 (the “Put Price”) shall be that amount which would be distributed to the Catalyst Member pursuant to Section 9.01 above (after giving effect to all applicable provisions of this Agreement, but after liquidating all Reserves then existing and without establishing any additional Reserves) if the Project were sold by the Borrower on the Put Closing Date for a gross sales price equal to the Appraised Value and all liabilities and obligations of the Borrower were satisfied from the proceeds from such sales price and any remaining proceeds were distributed to the Co-Tenants by the Borrower, and then the proceeds received by the Company were distributed to the Members in accordance with Section 9.01. In addition, the purchase price shall include that amount that would be distributed to the Brown Co-Tenants directly pursuant to the TIC Agreement in connection with the sale of the Project, with any such portion of the price allocable to the Brown Co-Tenants paid directly thereto in exchange for full and complete relinquishment of any and all of their rights in and to the Trust or the Property. No Member shall be entitled to any sales fee or commission if the Catalyst Member exercises the Put Right set forth in this Section 12.09 .

(e)          Notwithstanding anything contained herein to the contrary, at any time prior to the commencement of vertical construction of the Project, in the event that: (i) the Catalyst Member desires to commence vertical construction of the Project but is prohibited from doing so as a result of the exercise by the BR Member of its rights pursuant to Section 7.07 above; and (ii) the Catalyst Member exercises the Put Right as a result of its desire to market and sell the Project because of the BR Member’s unwillingness to proceed with vertical construction, then the amount of the Put Price shall be an amount equal to the greater of: (x) the amount determined pursuant to Section 12.09(d) above and (y) the sum of the (i) amount of the Catalyst Member’s Initial Capital Contributions and (ii) the amounts contributed to the Borrower by the Brown Co-Tenants pursuant to the TIC Agreement.

(f)          The closing of a purchase of Membership Interest(s) pursuant to this Section 12.09 shall be held on the Put Closing Date, subject to the terms and conditions specified herein.

(g)          As of the Put Closing Date, the BR Member shall assume all obligations of the Catalyst Member with respect to the Membership Interest so transferred, including any liability of the Seller or any Affiliate thereof with respect to any Company liabilities. Upon such transfer, the Catalyst Member’s rights and obligations under this Agreement shall terminate with respect to such transferred Membership Interest, except as to indemnity rights of such Member under this Agreement attributable to acts or events occurring prior to the effective date of such transfer. In addition, the BR Member shall cause the TIC Agreement to be terminated in its entirety following the purchase of the co-tenancy interest of the Brown Co-Tenants.

(h)          The provisions of Sections 12.07 (including without limitation Section 12.07(f)(iii)) and 12.08 above shall apply to this Section 12.09, to the extent applicable.

12.10      Specific Performance . It is expressly agreed that the remedy at law for breach of any of the obligations set forth in this Article 12 is inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a party to comply fully with each of said obligations, and (ii) the uniqueness of each Member’s business and assets and the relationship of the Members. Accordingly, each of the aforesaid obligations and restrictions shall be, and is hereby expressly made, enforceable by specific performance.

ARTICLE 13.

ISSUANCE OF ADDITIONAL MEMBERSHIP INTERESTS

Except as otherwise provided for herein, any Person approved by all of the Members may become a Member in the Company by the issuance by the Company of Membership Interests for such consideration as all of the Members shall determine. No new Members shall be entitled to any retroactive allocation of losses, income or expense deductions incurred by the Company. The Managers may, upon the approval of all the existing Members, at the time a Member is admitted, close the Company books (as though the Company’s tax year had ended) or make pro rata allocations of loss, income and expense deductions to a new Member for that portion of the Company’s tax year in which a Member was admitted in accordance with the provisions of Section 706(d) of the Code and the Treasury Regulations promulgated thereunder.

ARTICLE 14.

DISSOLUTION AND TERMINATION

14.01      Dissolution .

(a)          The Company shall be dissolved upon the occurrence of any of the following events:

i.            by the unanimous written agreement of all Members; or

ii.         by a decree of judicial dissolution under the Act.

To the maximum extent permitted under the Act, the Company shall not dissolve upon an event of dissociation with respect to the last remaining Member, but instead the legal successor to such Member shall automatically become a Member of the Company with all rights and obligations appurtenant thereto.

(b)          If a Member who is an individual dies or a court of competent jurisdiction adjudges him to be incompetent to manage his person or his property, the Member’s executor, administrator, guardian, conservator, or other legal representative may exercise all of the Member’s rights for the purpose of settling his estate or administering his property, but such person shall be a holder of an Economic Interest and shall not have the rights of a Member. Further, such Person shall be subject to the provisions of Article 12.

14.02      Effect of Dissolution . Upon dissolution, the Company shall cease to carry on its business, except as permitted by Section 18-803 of the Act.

14.03      Winding Up, Liquidation and Distribution of Assets .

(a)          Upon dissolution, an accounting shall be made by the Company’s independent accountants of the accounts of the Company and of the Company’s assets, liabilities and operations, from the date of the last previous accounting until the date of dissolution. The Managers or if none, the Person or Persons selected by the Members (the “Liquidators”) shall immediately proceed to wind up the affairs of the Company.

(b)          If the Company is dissolved and its affairs are to be wound up, the Liquidators shall:

i.            Sell or otherwise liquidate all of the Company’s assets as promptly as practicable;

ii.         Allocate any profit or loss resulting from such sales to the Members’ and Economic Interest Owners’ in accordance with Article 10 hereof as if the Company had distributed all distributable Capital Proceeds in accordance with Article 9 hereof;

iii.         Discharge all liabilities of the Company, including liabilities to Members and Economic Interest Owners who are creditors, to the extent otherwise permitted by law, other than liabilities to Members and Economic Interest Owners for distributions, and establish such Reserves as may be reasonably necessary to provide for contingent liabilities of the Company; and

iv.         Distribute the remaining proceeds to the Members in accordance with Section 9.01.

(c)          In the final Fiscal Year of the Company, before making the final distributions provided for in Section 14.03(b)(iv), Profits and Losses shall be credited or charged to Capital Accounts of the Members (which Capital Accounts shall be first adjusted to take into account all distributions other than liquidating distributions made during the Fiscal Year) in the manner provided in Article 10. The allocations and distributions provided for in this Agreement are intended to result in the Capital Account of each Member immediately prior to the liquidation distributions of the Company’s assets pursuant to Section 14.03(b)(iv) being equal to the amount distributable to such Member pursuant to Section 14.03(b)(iv). The Managers are authorized to make appropriate adjustments in the allocation of Profits and Losses and, if necessary, items of gross income and gross deductions of the Company, for the year of liquidation of the Company (or, if earlier, the year in which all or substantially all of the Company’s assets are sold, transferred or disposed of) as necessary to cause the amount of each Member’s Capital Account immediately prior to the distribution of the Company’s assets pursuant to Section 14.03(b)(iv) to equal the amount distributable to such Member pursuant to Section 14.03(b)(iv). Notwithstanding the foregoing, nothing in this Section 14.03(c) shall affect the amounts distributable to the Members under Section 14.03(b)(iv).

(d)          Notwithstanding anything to the contrary in this Operating Agreement, upon a liquidation within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury Regulations, if any Member has a deficit Capital Account (after giving effect to all contributions, distributions, allocations and other Capital Account adjustments for all taxable years, including the year during which such liquidation occurs), such Member shall have no obligation to make any Capital Contribution, and the negative balance of such Member’s Capital Account shall not be considered a debt owed by such Member to the Company or to any other Person for any purpose whatsoever.

(e)          Upon completion of the winding up, liquidation and distribution of the assets, the Company shall be deemed terminated.

(f)          The Liquidators shall comply with any applicable requirements of applicable law pertaining to the winding up of the affairs of the Company and the final distribution of its assets.

14.04      Certificate of Cancellation . When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets have been distributed to the Members, a Certificate of Cancellation may be executed and filed with the Secretary of State of Delaware in accordance with Section 18-203 of the Act.

14.05      Return of Contribution Nonrecourse to Other Members . Except as provided by law or as expressly provided in this Operating Agreement, upon dissolution, each Member shall look solely to the assets of the Company for the return of its Capital Contribution. If the Company property remaining after the payment or discharge of the debts and liabilities of the Company is insufficient to return the cash contribution of one or more Members, such Member or Members shall have no recourse against any other Member.

ARTICLE 15. 

INDEMNIFICATION

15.01      Indemnification by Company . The Managers, the Members or their respective members, managers, agents, employees and representatives (each, an “Indemnitee”) shall be indemnified by the Company to the fullest extent permitted by law, against any losses, judgments, liabilities, expenses and amounts paid in settlement of any claims sustained by it or any of them in connection with the Company (each, a “Claim”), provided that (i) such course of conduct was, in good faith, intended to be in, and not opposed to, the best interests of the Company and such liability or loss was not the result of willful misconduct, or a material breach of this Agreement or gross negligence on the part of such Indemnitee, and (ii) any such indemnification will only be recoverable from the assets of the Company and the Members shall not have any liability on account thereof except any obligations to return distributions received from the Company that are required to be returned to the Company in respect of such indemnification obligations under applicable law. No Member shall be authorized to make a call for capital to satisfy the Company’s indemnification obligations under this Section 15.01.

15.02      Indemnification by Members for Misconduct .

(a)          Catalyst Member hereby indemnifies, defends and holds harmless the Company, BR Member, each Bluerock Transferee and each of their subsidiaries and their officers, directors, members, managers, partners, shareholders, employees, agents and appointees from and against all losses, costs, expenses, damages, claims and liabilities (including reasonable attorneys’ fees) incurred under any Loan Guaranty to the extent arising out of any fraud, gross negligence or willful misconduct on the part of, or by, Catalyst Member.

(b)          BR Member hereby indemnifies, defends and holds harmless the Company, Catalyst Member, each Catalyst Transferee and each of their subsidiaries and their officers, directors, members, managers, partners, shareholders, employees, agents and appointees from and against all losses, costs, expenses, damages, claims and liabilities (including reasonable attorneys’ fees) incurred under any Loan Guaranty to the extent arising out of any fraud, gross negligence or willful misconduct on the part of, or by, BR Member.

ARTICLE 16.

MISCELLANEOUS PROVISIONS

16.01      Application of Delaware Law . This Operating Agreement, and the application and interpretation thereof, shall be governed exclusively by its terms and by the laws of the State of Delaware, and specifically the Act.

16.02      No Action for Partition . No Member or Economic Interest Owner has any right to maintain any action for partition with respect to the property of the Company.

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

16.04      Headings . The headings in this Operating 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 Operating Agreement or any provision hereof.

16.05      Waivers . 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 Operating Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.

16.06      Rights and Remedies Cumulative . The rights and remedies provided by this Operating Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right not to use any or all other remedies. Such rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.

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

16.08      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 Operating Agreement, their respective heirs, legal representatives, successors and assigns.

16.09      Creditors . None of the provisions of this Operating Agreement shall be for the benefit of or enforceable by any creditors of the Company or by any Person not a party hereto.

16.10      Counterparts . This Operating 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.

16.11      Federal Income Tax Elections . All elections required or permitted to be made by the Company under the Code shall be made by the Members.

16.12      Certification of Non-Foreign Status . In order to comply with Section 1445 of the Code and the applicable Treasury Regulations thereunder, in the event of the disposition by the Company of a United States real property interest as defined in the Code and Treasury Regulations, each Member shall provide to the Company, an affidavit stating, under penalties of perjury, (i) the Member’s address, (ii) United States taxpayer identification number, and (iii) that the Member is not a foreign person as that term is defined in the Code and Treasury Regulations. Failure by any Member to provide such affidavit by the date of such disposition shall authorize the Managers to withhold ten percent (10%) of each such Member’s distributive share of the amount realized by the Company on the disposition.

16.13      Notices . Any and all notices, offers, demands or elections required or permitted to be made under this Agreement (“Notices”) shall be in writing and shall be delivered either by personally delivering it by hand or Federal Express or similar commercial courier service to the person to whom Notice is directed, or by electronic mail, or by depositing it with the United States Postal Service, certified mail, return receipt requested, with adequate postage prepaid, addressed to the appropriate party (and marked to a particular individual’s attention). Notice shall be deemed given and effective (i) when hand-delivered if by personal delivery or Federal Express or similar commercial courier service, (ii) as of the date and time it is transmitted by electronic mail if there is a written or electronic record of the date, time and email address to which the Notice was sent, or (iii) on the third (3rd) business day (which term means a day when the United States Postal Service, or its legal successor (“Postal Service”) is making regular deliveries of mail on all of its regularly appointed week-day rounds in Dover, Delaware) following the day (as evidenced by proof of mailing) upon which such Notice is deposited, postage pre-paid, certified mail, return receipt requested, with the Postal Service. Rejection or other refusal by the addressee to accept the Notice shall be deemed to be receipt of the Notice. In addition, the inability to deliver the Notice because of a change of address of the party of which no Notice was given to the other party as provided on Exhibit A hereof shall be deemed to be the receipt of the Notice sent. The addresses to which Notice is to be sent shall be those set forth below on Exhibit A or such other address as shall be designated in writing to Managers. Managers shall keep a list of all designated addresses and such list shall be available to any Member upon request thereof. Such addresses may be changed by designating the change of address to the Managers in writing.

16.14      Amendments . Any amendment to this Agreement shall be made in writing and signed by Members holding all of the Ownership Percentages; provided , however, the Managers shall have the right upon any transfer of Membership Interests or admission of any new Member in accordance herewith to unilaterally amend this Agreement without a writing signed by all Members to substitute Exhibit “A” attached hereto with an updated Exhibit “A” reflecting all of the current Members and their respective Ownership Percentages.

16.15      Invalidity . The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and the Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. If any particular provision herein is construed to be in conflict with the provisions of the Act, the Act shall control and such invalid or unenforceable provisions shall not affect or invalidate the other provisions hereof, and this Agreement shall be construed in all respects as if such conflicting provision were omitted.

16.16       Captions . Titles and captions are inserted for convenience only and in no way define, limit, extend or describe the scope or intent of this Agreement or any of its provisions and in no way are to be construed to affect the meaning or construction of this Agreement or any of its provisions.

16.17       Banking . All funds of the Company shall be deposited in its name in an account or accounts as shall be designated from time to time by the Managers. All funds of the Company shall be used solely for the business of the Company. All withdrawals from the Company bank accounts shall be made only upon check signed by the Managers or by such other persons as the Managers may designate from time to time.

16.18       Governing Law; Jurisdiction . This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto agree that any suit brought to enforce this Agreement shall be venued only in any court of competent jurisdiction in the State of New York, Borough of Manhattan, and, by execution and delivery of this Agreement, each of the parties to this Agreement hereby irrevocably accepts and waives all objection to, the exclusive jurisdiction of the aforesaid courts in connection with any suit brought to enforce this Agreement, and irrevocably agrees to be bound by any judgment rendered thereby. Each of the parties hereto hereby agrees that service of process in any such proceeding may be made by giving notice to such party in the manner and at the place set forth in 16.13 herein.

16.19       Further Assurances . The Members each agree to cooperate, and to execute and deliver in a timely fashion any and all additional documents or instruments necessary to effectuate the purposes of the Company and this Agreement or necessary to comply with any laws, rules or regulations.

16.20       Time . TIME IS OF THE ESSENCE OF THIS AGREEMENT, AND TO ANY PAYMENTS, ALLOCATIONS AND DISTRIBUTIONS SPECIFIED UNDER THIS AGREEMENT.

16.21       Investment Representations and Indemnity Agreement . In addition to the restrictions on transfer set forth above, each Member understands that Members must bear the economic risk of this investment for an indefinite period of time because the Membership Interests are not registered under the Securities Act of 1933, as amended (the “1933 Act”) or the securities laws of any state or other jurisdiction. Each Member has been advised that there is no public market for the Membership Interests and that the Membership Interests are not being registered under the 1933 Act upon the basis that the transactions involving its sale are exempt from such registration requirements and that reliance by the Company on such exemption is predicated in part on the Member’s representations set forth in this Agreement. Each Member acknowledges that no representations of any kind concerning the Property or the future intent or ability to offer or sell the Membership Interest in a public offering or otherwise have been made to the Member by the Company or any other Person or entity. Each Member understands that the Company makes no covenant, representation or warranty with respect to the registration of securities under the Securities Exchange Act of 1933, as amended, or its dissemination to the public of any current financial or other information concerning the Company. Accordingly, the Members acknowledge that there is no assurance that there will ever by any public market for the Membership Interests, and that the Members may not be able to publicly offer or sell any thereof. Furthermore, each Member (and his/her/its assignees and transferees) agrees to indemnify the other Members, the Managers, the Company and any director, officer, employee, affiliate or legal counsel of such parties, from any and all losses, damage, liability, claims and expenses incurred, suffered or sustained by any of them in any manner because of the falsity of any representation contained in this Section including, without limitation, liability, for violation of the Securities Laws of the United States or of any state which violation would not have occurred had such representation been true.

16.22       No Partnership Interest for Non-Tax Purposes . The Members have formed the Company under the Act and expressly disavow any intention to form a partnership under Delaware’s Uniform Partnership Act, Delaware’s Uniform Limited Partnership Act, or the Partnership Act or laws of any other state. The Members do not intend to be partners one to another or partners as to any third party. To the extent any Member, by word or action, represents to another person that any other Member is a partner or that the Company is a partnership, the Member making such wrongful representations shall be liable to any other Member who incurs personal liability by reason of such wrongful representation.

16.23       Entire Agreement . This Agreement, along with the Cost-Sharing Agreement, the Trust Agreement and the TIC Agreement, contains the entire understanding among the parties hereto with respect to the subject matter hereof. This Agreement supersedes all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, except for the Cost-Sharing Agreement, Trust Agreement and TIC Agreement, which shall survive in accordance with its terms.

(Signatures on following page)

IN WITNESS WHEREOF , the parties have executed this Agreement as of the date first written above.

List of Exhibits :

BROWN CO-TENANTS’ INITIAL CASH CONTRIBUTION TO BORROWER: $1,211,000

MANAGEMENT COMMITTEE REPRESENTATIVES:

Catalyst Member

1. Rob Meyer

2. Mark Mechlowitz

BR Member

1. Ryan MacDonald

2. Michael Konig

Exhibit B

LEGAL DESCRIPTION OF PROPERTY

All that tract of land lying or being Land Lot 6, 17 ^th District, Fulton County and the City of Atlanta, Georgia, and being more particularly described as follows:

BEGINNING at a 1/2 inch re-bar found at the intersection of the southerly right of way of Interstate 85, a variable width right of way, and the westerly right of way of Cheshire Bridge Road, also a variable width right of way;

THEN leaving the right of way of Interstate 85, proceed the following courses along the said westerly right of way of Cheshire Bridge Road:

South 55 degrees 38 minutes 44 seconds East for 30.92 feet to a 1/2 inch re-bar found;

THEN South 06 degrees 51 minutes 23 seconds East for 248.74 feet to a nail found;

THEN South 28 degrees 07 minutes 38 seconds East for 42.38 feet to a 1/2 inch re-bar found;

THEN South 67 degrees 28 minutes 12 seconds West for 145.43 feet to a 1/2 inch re-bar found;

THEN South 00 degrees 42 minutes 52 seconds West for 123.24 feet to a 1/2 inch re-bar found;

THEN North 88 degrees 37 minutes 53 seconds West for 43.35 feet to a 1/2 inch re-bar found;

THEN South 09 degrees 34 minutes 54 seconds East for 86.90 feet to a 1/2 inch re-bar found;

THEN North 89 degrees 25 minutes 02 seconds West for 172.15 feet to a 1/2 inch open top pipe found;

THEN North 25 degrees 59 minutes 36 seconds West for 95.01 feet to a point;

THEN North 26 degrees 42 minutes 06 seconds West for 470.00 feet to a point on the southerly variable right of way of Interstate 85;

THEN continue the following courses along said southerly right of way of Interstate 85;

North 82 degrees 57 minutes 58 seconds East for 105.01 feet to a 1/2 inch re-bar found;

THEN North 79 degrees 50 minutes 07 seconds East for 257.68 feet to a point;

THEN North 89 degrees 59 minutes 21 seconds East for 156.66 feet to a 1/2 inch re-bar found at the POINT OF BEGINNING.

Together with and subject to covenants, easements, and restrictions of record.

Said property contains 4.877 acres more or less.

Exhibit D

DEVELOPMENT AGREEMENT

Exhibit 10.2

LIMITED LIABILITY COMPANY AGREEMENT

OF

BR CHESHIRE Member, LLC

A DELAWARE LIMITED LIABILITY COMPANY

THE UNITS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”) OR UNDER THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE UNITS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION, OR ANY OTHER REGULATORY AUTHORITY. ACCORDINGLY, THESE SECURITIES MAY NOT BE RESOLD OR OTHERWISE TRANSFERRED OR CONVEYED IN THE ABSENCE OF REGISTRATION OF THE SAME PURSUANT TO THE APPLICABLE SECURITIES LAWS UNLESS AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS FIRST OBTAINED THAT SUCH REGISTRATION IS NOT THEN NECESSARY. ANY TRANSFER CONTRARY HERETO SHALL BE VOID.

THIS LIMITED LIABILITY COMPANY AGREEMENT OF BR CHESHIRE Member, LLC (herein referred to as the “ Agreement ”), is made and entered into as of May 29, 2015 (the “Effective Date”), by and among BRG Cheshire, LLC , a Delaware limited liability company, as the Class A Member (“ BRG ”), and Bluerock Special Opportunity + Income Fund III, LLC , a Delaware limited liability company (“ SOIF III ”), as the Class B Member (BRG and SOIF III, together with any additional members hereinafter admitted, are referred to as the “ Members ”).

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 ”) on May 6, 2015.

B.           The Company was formed to hold a membership interest in the Company Subsidiary (as defined below) (the “ Subsidiary Interest ”).

C.           The Company Subsidiary currently holds (or will as of closing of the acquisition hold) all of the membership interests in CB Owner, LLC, a Delaware limited liability company which, in its capacity as Trustee under the BR/CDP Cheshire Bridge Trust Agreement dated May 29, 2015 (in such capacity, the “Property Owner”), will in turn own the fee interest in the Property (as defined below).

D.           The Members desire to set forth their agreement and understanding with respect to the operation of the Company as a Delaware limited liability company from and after the date hereof.

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 Members hereby covenant and agree as follows:

ARTICLE 1

DEFINITIONS

For purposes of this Agreement, the following terms have the meanings set forth below:

1.1           “ Accountant ” shall mean the certified public accounting firm that, from time to time, represents the Company.

1.2            “ Act ” has the meaning set forth in the preamble to this Agreement.

1.3           “ Additional Capital Contributions ” shall have the meaning set forth in Section 5.3 .

1.4           “ Adjustment Period ” shall mean a period of time as follows: The first Adjustment Period shall commence on the date hereof and each succeeding Adjustment Period shall commence on the date immediately following the last day of the immediately preceding Adjustment Period; each Adjustment Period shall end on the earliest to occur after the commencement of such Adjustment Period of (i) the last day of each Fiscal Year as now exists or as may, from time to time, be selected by the Manager, (ii) a Capital Date, (iii) the day immediately preceding the date of the “liquidation” of a Member’s Membership Interest in the Company (within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury Regulations), (iv) the day immediately preceding the date of an increase in the Membership Interest of a Member, or (v) the date on which the Company is terminated under Article 3 or Section 12.1 of this Agreement.

1.5           “ Affiliate ” shall mean (i) any Entity more than five percent (5%) of the issued and outstanding stock of which, or more than five percent (5%) interest in which, is owned, directly or indirectly, by any Member or (ii) any Entity that now or hereafter owns, directly or indirectly, more than a ten percent (10%) interest in the Company or in any Member or (iii) any Entity who is an agent, trustee, officer, director, employee, member or shareholder or member of the family (or any member of the family of any agent, trustee, officer, director, employee, partner, member or shareholder) of the Company or of any Member or (iv) any Entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company or any Member. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an Entity, whether through the ownership of voting securities, by contract or otherwise. The term “family” shall be deemed to include spouses, children, parents, brothers and sisters, and the spouse, children, parents, brothers and sisters of such spouse’s children, parents, brothers and sisters.

1.6           “ Agreement ” shall mean this Limited Liability Company Agreement of BR Cheshire Member, LLC, as it now exists and as it may from time to time hereafter be amended, restated or supplemented or otherwise modified from time to time.

1.7           “ Annual Financial Statements ” shall have the same meaning as set forth in Section 13.3 hereof.

1.8           “ Bankruptcy ” means, 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 one hundred twenty (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 ninety (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 ninety (90) days after the expiration of any such stay, the appointment is not vacated.

1.9           “ Basic Documents ” means the (a) documents to be executed by the Property Owner in favor of the Lender as of the closing of the Loan, and all documents and certificates contemplated thereby or delivered in connection therewith; and (b) all similar documentation required by and delivered to any successor Lender and/or Mortgagee.

1.10         “ Benefit Plan Investor ” means (i) any “employee benefit plan” as defined by the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), regardless of whether it is subject to ERISA, (ii) any plan as defined in Section 4975 of the IRC, and (iii) any entity deemed for any purpose of ERISA or Section 4975 of the IRC to hold assets of any such employee benefit plan or plan due to investments made in such entity by such employee benefit plans and plans.

1.11         “ BGF ” shall mean Bluerock Growth Fund, LLC, a Delaware limited liability company.

1.12         “ BGF II ” shall mean Bluerock Growth Fund II, LLC, a Delaware limited liability company.

1.13         “ BRG ” shall have the meaning set forth in the introductory paragraph above.

1.14         “ Budgeted Development Capital Calls ” shall have the meaning as set forth in Section 5.3(a).

1.15         “ Capital Accounts ” shall mean the capital accounts established by the Company for each Member pursuant to Section 5.5 hereof. Capital Accounts shall be determined and maintained throughout the full term of the Company for each Member in accordance with the rules of this definition. The balance of each Member’s Capital Account, as of any particular date, shall be an amount equal to the sum of the following:

(a)          The cumulative amount of cash and the value of all other property that has been contributed to the capital of the Company by such Member as a Capital Contribution; plus

(b)          The cumulative amount of the Company’s Net Profit and Gain that has been allocated to such Member hereunder; minus

(c)          The cumulative amount of the Company’s Net Loss and Loss that has been allocated to such Member hereunder; and minus

(d)          The cumulative amount of cash and the agreed upon value of all other property that has been distributed by the Company to such Member (other than in repayment of any loans).

A Member’s Capital Account shall also be increased or decreased to reflect any items described in Section 1.704-1(b)(2)(iv) of the Treasury Regulations that are required to be reflected in such Member’s Capital Account and that are not otherwise taken into account in computing such Capital Account under this definition.

1.16         “ Capital Contributions ” shall mean all amounts paid by a Member for its Membership Interests and any Additional Capital Contributions or Class A Priority Capital Contributions made by a Member.

1.17         “ Capital Date ” means the date on which any Gain or Loss is recognized by the Company.

1.18         “ Capital Transaction ” shall mean any (i) direct or indirect sale or other disposition of the Property or substantially all of the assets of the Company (including the Subsidiary Interest, the membership interests held by Company Subsidiary in Property Owner, or the Property) outside the ordinary and customary course of business, (ii) payment, on account of a casualty, for the Property or substantially all of the assets of the Company, Company Subsidiary or Property Owner to the extent such assets are not replaced or repaired, (iii) refinancing of any indebtedness incurred by the Company, the Company Subsidiary or Property Owner, including the Obligations, and (iv) similar items or transactions relating to the Property, the Subsidiary Interest, the membership interests held by Company Subsidiary in Property Owner, or substantially all of the assets of the Company, the Company Subsidiary or Property Owner, the proceeds of which under generally accepted accounting principles are deemed attributable to capital.

1.19         “ Cash Flow From Operations ” shall mean, for a given period, the amount of cash received by the Company from the Company Subsidiary and/or Property Owner other than on account of a Capital Transaction, minus administrative expenses of the Company, all determined in accordance with cash basis accounting principles, consistently applied.

1.20         “ Certificate of Formation ” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on May 6, 2015, as amended or amended and restated from time to time.

1.21         “ Class A Capital Commitment ” shall mean the amount of the Capital Contribution committed to be made by the Class A Member (including the projected amount of the Class A Preferred Reserve that will be required of the Company), exclusive of any Class A Priority Capital Contribution, as set forth on Schedule I . The Class A Capital Commitment represents the total amount of projected capital, together with the Class B Members’ initial Capital Contributions, that will be required of the Company by the Company Subsidiary and/or Property Owner to develop and lease-up the Project, as estimated under the Project Budget.

1.22         “ Class A Capital Contributions ” shall mean the amount of the Capital Contribution made by a Class A Member (including any Class A Preferred Reserve), but exclusive of any Class A Priority Capital Contribution.

1.23         “ Class A Mandatory Redemption Date ” shall mean that date which is the earlier of six (6) months following the maturity date of the Loan (including the exercise of any extensions, but not any refinancings thereof), or any earlier acceleration or due date thereof.

1.24         “ Class A Member ” means BRG and, with respect to those Units transferred from a Class A Member, any Person who has been admitted as a Substitute Member as to the Class A Membership Interest transferred. An Assignee of a Membership Interest who receives Units from a Class A Member shall not be considered a Class A Member.

1.25         “ Class A Membership Interest ” means with respect to any Class A Member the membership interest allocated to such Class A Member, which membership interest will be determined by using a fraction in which the number of Units owned by such Class A Member is the numerator and the aggregate number of Units that are then owned by all Class A Members is the denominator. The foregoing determination is also referred to as “Pro Rata as to the Class A Membership Interest”.

1.26         “ Class A Preferred Reserve ” shall have the meaning set forth in Section 5.2.

1.27         “ Class A Priority Capital Contribution ” shall have the meaning set forth in Section 5.3(b).

1.28         “ Class A Sinking Fund ” shall have the meaning set forth in Section 6.6(a).

1.29         “ Class A Units ” means the Units held by the Class A Members.

1.30         “ Class A Unit Redemption Amount ” shall mean, as of the date of redemption of the Class A Units pursuant to Section 10.5, the sum of (i) the aggregate Net Capital Contributions of the Class A Members plus (ii) the accrued but unpaid Current Class A Return and the accrued but unpaid Priority Class A Return of the Class A Members.

1.31         “ Class B Member ” means SOIF III, and, with respect to those Units transferred from a Class B Member, any Person who has been admitted as a Substitute Member as to the Class B Membership Interest transferred. An Assignee of a Membership Interest who receives Units from a Class B Member shall not be considered a Class B Member.

1.32         “ Class B Membership Interest ” means with respect to any Class B Member the membership interest allocated to such Class B Member, which membership interest will be determined by using a fraction in which the number of Units owned by such Class B Member is the numerator and the aggregate number of Units that are then owned by all Class B Members is the denominator. The foregoing determination is also referred to as “Pro Rata as to the Class B Membership Interest”.

1.33         “ Class B Units ” means the Units held by the Class B Members.

1.34         “ Company ” shall refer to BR Cheshire Member, LLC, a Delaware limited liability company, as it may from time to time be constituted.

1.35         “ Company Subsidiary ” shall refer to BR/CDP CB Venture, LLC, a Delaware limited liability company, as it may from time to time be constituted.

1.36         “ Company Subsidiary LLC Agreement ” shall refer to the Limited Liability Company Agreement of Company Subsidiary dated as of May 29, 2015, as may be amended or restated from time to time.

1.37         “ Conversion Date ” shall have the meaning set forth in Section 10.4(b).

1.38         “ Conversion Period ” shall mean the six (6) month period of time that commences on the Conversion Trigger Date.

1.39         “ Conversion Right ” shall mean the Class A Member’s right to convert its Class A Units to Class B Units, as provided in Section 10.4.

1.40          “ Conversion Trigger Date ” shall mean the date on which seventy percent (70%) of the Project’s apartments have been leased.

1.41         “ Current Class A Return ” means an amount equal to the product of fifteen percent (15.0%) per annum, determined on the basis of 365 or 366 days, as the case may be, for the actual number of days in the period for which the Current Class A Return is being determined, times the sum of the Net Class A Capital Contributions, commencing on the date the initial Class A Capital Contribution is made.

1.42          “ Default Event ” shall have the meaning as set forth in Section 8.6(c).

1.43          “ Entity ” shall mean any Person or other business entity, other than an individual.

1.44          “ Fiscal Year ” shall mean the fiscal year of the Company as set forth in Section 13.2 hereof.

1.45          “ Gain ” shall mean the gain recognized by the Company for federal income tax purposes in any Adjustment Period by reason of a Capital Transaction.

1.46         “ IRC ” shall mean the Internal Revenue Code of 1986, Title 26 of the United States Code, as the same may now or hereafter be amended.

1.47         “ Lender ” shall mean U.S. Bank National Association, and its successors and/or assigns.

1.48         “ Liquidating Trustee ” shall have the meaning as set forth in Section 12.4.

1.49         “ Loan ” shall refer to that certain construction loan in the approximate amount of $36,550,000 to be hereafter borrowed by the Property Owner, as the same will be more specifically described in the Basic Documents, including any successor in interest to the Loan.

1.50          “ Loss ” shall mean the loss recognized by the Company for federal income tax purposes in any Adjustment Period by reason of a Capital Transaction.

1.51          “ Majority ” means a collection of Members owning, in the aggregate, more than 50% of the Membership Interests of all Members and, in the context of voting, means a collection of Members who approve, consent to, or vote in favor of a matter before the Members and who own, in the aggregate, more than 50% of the Membership Interests of all Members entitled to vote thereon. When used in the context of a class of Membership Interests, “Majority” shall mean a collection of those class Members owning, in the aggregate, more than 50% of the Membership Interests of all Members of that class, and, in the context of voting, means a collection of class Members who approve, consent to, or vote in favor of a matter before the class Members and who own, in the aggregate, more than 50% of the class Membership Interests of all class Members entitled to vote thereon.

1.52         “ Management Committee ” means the management committee of the Company Subsidiary as more fully described in the Company Subsidiary LLC Agreement.

1.53         “ Manager ” or “ Managers ” shall mean the Person or Persons selected to be the manager or managers of the Company from time to time by either a Majority of the Class B Members or pursuant to Section 7.4 herein. The initial Manager is SOIF III. A Member simply by virtue of its status as a member in the Company shall not be a Manager of the Company unless so selected by a Majority of the Class B Members or pursuant to Section 7.4 herein. A Manager does not have to be a Member of the Company. The term “Manager” as used herein shall specifically mean all of the then incumbent Managers of the Company where the context requires.

1.54         “ Material Action ” means to file any insolvency, or reorganization case or proceeding, to institute proceedings to have the Company be adjudicated bankrupt or insolvent, to institute proceedings under any applicable insolvency law, to seek any relief under any law relating to relief from debts or the protection of debtors, or consent to the institution of bankruptcy or insolvency proceedings against the Company or file a petition seeking, or consent to, reorganization or relief with respect to the Company under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a substantial part of its property, or make any assignment for the benefit of creditors of the Company, or admit in writing the Company’s inability to pay its debts generally as they become due, or take action in furtherance of any such action.

1.55         “ Member ” or “ Members ” shall refer to the Persons listed above as Members and any other Persons who shall subsequently be admitted as Substitute Members in the Company, each in its capacity as a Member of the Company, including both Class A Members and Class B Members.

1.56         “ Membership Interest ” means with respect to any Member the membership interest allocated to such Member, which membership interest will be determined by using a fraction in which the number of Units owned by a Member is the numerator and the aggregate number of Units that are then outstanding is the denominator.

1.57         “ Minimum Gain ” shall mean, as of any particular date, an amount determined with respect to the Company on such date in accordance with Section 1.704-1(b)(4)(ii)(c) of the Treasury Regulations interpreting the IRC.

1.58         “ Mortgage ” means any deed to secure debt, mortgage, deed of trust, security agreement or other similar instrument at any time and from time to time constituting a lien upon, security interest in or security title to any of the assets of the Company, the Company Subsidiary or the Property Owner.

1.59         “ Mortgagee ” shall mean the holder of a Mortgage.

1.60         “ Net Cash Proceeds ” shall mean the proceeds received by the Company from a Capital Transaction less (i) any amounts retained by a Mortgagee and (ii) any costs incurred by the Company, the Company Subsidiary or the Property Owner in connection with such Capital Transaction not paid to an Affiliate of a Member.

1.61         “ Net Class A Capital Contributions ” means the Class A Capital Contributions, less all distributions made to the Class A Members under Section 6.8(f).

1.62         “ Net Class A Priority Capital Contributions ” means the Class A Priority Capital Contributions, less all distributions made to the Class A Members under Section 6.8(d).

1.63         “ Net Capital Contributions ” means, with respect to any Member, its aggregate Capital Contributions less any distributions delineated as return of Capital Contributions.

1.64         “ Net Profit ” or “ Net Loss ” shall mean, for each Adjustment Period, the Company’s taxable income or taxable loss for such Adjustment Period, as determined under Section 703(a) of the IRC and Section 1.703-1 of the Treasury Regulations interpreting the IRC (for this purpose, all items of income, gain, loss or deduction are required to be stated separately pursuant to Section 703(a)(1) of the IRC and shall be included in taxable income or taxable loss), with the following adjustments:

(a)          any tax-exempt income, as described in Section 705(a)(1)(B) of the IRC, realized by the Company during such Adjustment Period shall be taken into account in computing such Net Profit or Net Loss as if it were taxable income;

(b)          any expenditures of the Company described in Section 705(a)(2)(B) of the IRC for such Adjustment Period, including any items treated under Section 1.704-1(b)(2)(iv)(i) of the Treasury Regulations interpreting the IRC as items described in Section 705(a)(2)(B) of the IRC, shall be taken into account in computing such Net Profit or Net Loss as if they were deductible items;

(c)          any items of income, deduction, gain or loss that are specially allocated pursuant to Sections 6.4, 6.5 and 6.9 shall not be taken into account in computing Net Profit or Net Loss;

(d)          if the Company’s taxable income or taxable loss for such Adjustment Period, as adjusted in the manner provided above, is a positive amount, such amount shall be the Company’s Net Profit for such Adjustment Period, and if negative, such amount shall be the Company’s Net Loss for such Adjustment Period.

1.65         “ Obligations ” shall mean the indebtedness, liabilities and obligations of the Company, Company Subsidiary or Property Owner under or in connection with the Basic Documents or any related document in effect as of any date of determination.

1.66         “ Person ” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization or other organization, whether or not a legal entity, and any governmental authority.

1.67         “ Priority Class A Return ” shall have the meaning set forth in Section 5.3(b) .

1.68         “ Project ” means an approximately 285–unit Class A rental apartment complex to be constructed on the Property and owned by Property Owner, as more fully described in the Company Subsidiary LLC Agreement.

1.69         “ Project Budget ” means the Total Project Budget for the construction of the Project as those terms are used in the Company Subsidiary LLC Agreement.

1.70         “ Property ” shall mean that certain real property located in Atlanta, Georgia and more fully described in the Company Subsidiary LLC Agreement in which a fee interest is held by Property Owner and upon which the Project is to be located.

1.71         “ Property Owner ” shall have the meaning set forth in the preamble of this Agreement.

1.72         “ Property Owner LLC Agreement ” shall mean the Limited Liability Company Agreement of the Property Owner.

1.73         “ Representative ” means a representative to the Management Committee.

1.74         “ SOIF II ” shall mean Bluerock Special Opportunity+ Income Fund II, LLC, a Delaware limited liability company.

1.75         “ SOIF III ” shall have the meaning set forth in the introductory paragraph above.

1.76         “ Subsidiary Interest ” shall have the meaning set forth in the preamble to this Agreement.

1.77          “ Substitute Member ” shall mean a transferee of a Member’s Membership Interest who has complied with the requirements under Article 10 of this Agreement and is a Member of the Company.

1.78         “ Tax Rate ” shall mean, for any Fiscal Year, the sum of (i) the highest then marginal income tax rate for individual taxpayers as set forth in the IRC and (ii) the highest then marginal income tax rate for individual taxpayers in effect in the State of Delaware.

1.79         “ Taxing Jurisdiction ” means the federal, state, local, or foreign government that collects tax, interest, or penalties, however designated, on any Member’s share of the income or gain attributable to the Company.

1.80         “ Treasury Regulations ” shall mean the Income Tax Regulations promulgated under the IRC, as such regulations may be amended from time to time including corresponding provisions of succeeding regulations.

1.81         “ Unit ” means one or more of the units of limited liability company interest, or fractional portions thereof, representing a Member’s ownership rights in the Company, classified as Class A or Class B. Except as may be specifically otherwise provided in this Agreement (e.g., Section 10.4) a Member will be issued one (1) Unit for each dollar of Capital Contributions made by such Member.

ARTICLE 2

NAME, OFFICE, REGISTERED AGENT, AND
MEMBER’S NAMES AND MAILING ADDRESSES

2.1            Name : The name of the limited liability company is:

“BR CHESHIRE MEMBER, LLC”

2.2            Principal Business Office . The address of the principal business office of the Company shall be located at 712 Fifth Avenue, 9 ^th Floor, New York, New York 10019, and shall also be at such other place or places as the Manager may hereafter determine.

2.3            Registered Office . The address of the registered office of the Company in the State of Delaware is c/o National Registered Agents, Inc., 160 Greentree Dr., Suite 101, Dover, Delaware 19904.

2.4            Registered Agent . The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is National Registered Agents, Inc., 160 Greentree Dr., Suite 101, Dover, Delaware 19904.

2.5            Members’ Names and Number of Units . The names and addresses of the Members, number of Class A and Class B Units owned by each Member, Class A Membership Interests, and Class B Membership Interests are set forth on Schedule I .

ARTICLE 3

DURATION

The term of the Company shall commence on the date of the filing of a Certificate of Formation with the Office of the Secretary of State of the State of Delaware, and its duration shall be perpetual. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation.

ARTICLE 4

PURPOSE

The Company is organized for the purpose of: (i) acquiring, owning, holding, financing, hypothecating, pledging and disposing of the Subsidiary Interest; and (ii) engaging in any lawful business, purpose or activity that may be undertaken by a limited liability company organized under and governed by the Act. 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.

ARTICLE 5

CAPITAL CONTRIBUTIONS, MEMBERSHIP INTERESTS, ETC.

5.1            Admission of Member . The Members are admitted to the Company as the sole equity members of the Company upon their respective execution and delivery of a counterpart signature page to this Agreement.

5.2            Capital Contribution of the Members; Payment . The Members have made their respective initial Capital Contributions to the Company as set forth on Schedule I , and shall contribute such additional amounts of capital as provided in this Agreement. The Members agree that the Class A Member’s initial Capital Contributions, and each subsequent Capital Contribution pursuant to its Class A Capital Commitment, shall include an interest reserve calculated at a fifteen percent (15%) annual interest rate which shall be segregated by the Company from all other Capital Contributions made by the Class A Member pursuant to its Class A Capital Commitment, and from all other funds held by the Company, and shall be solely used to establish a specific reserve to the benefit of the Class A Member (the “ Class A Preferred Reserve ”). Except as otherwise provided in Sections 6.7 and 10.4(b), the funds on deposit in the Class A Preferred Reserve shall be earmarked and used specifically for the monthly draw and payment of a portion of the Current Class A Return equivalent to a 15% annualized return on all Class A Capital Contributions, and the Manager shall not have the authority to use the funds in the Class A Preferred Reserve for any other purpose without the prior written approval of the Class A Member (or if there is more than one Class A Member, Members owning a Majority of the Class A Membership Interests). Until such time as the Class A Units are redeemed or converted to Class B Units as provided in Section 10.4, the Company must at all times maintain not less than three (3) months’ worth of payments in the Class A Preferred Reserve.

5.3            Additional Contributions .

(a)          To the extent necessary and as required of the Company by the Company Subsidiary and/or Property Owner to develop and lease-up the Project under the Project Budget, the Manager may call for additional capital from the Members, and, until such time as the Class A Member has fully funded the Class A Capital Commitment, the Class A Member shall be obligated to fund its share (based on 89.5%% Class A Member share and 10.5% Class B Member share) of all such capital calls (“ Budgeted Development Capital Calls ”). If Class A Member fails to fund its share of any Budgeted Development Capital Calls within ten (10) days of written notification of the need therefor, its Current Class A Return shall be as of that date reduced to seven percent (7%) per annum. All other capital calls shall be made as and in the amount determined by the Manager, including but not limited to for the funding of any Current Class A Return after payments thereon are drawn from the Class A Preferred Reserve, Priority Class A Return, or if additional funds are required by or called for pursuant to the Company Subsidiary LLC Agreement and/or Property Owner LLC Agreement (all such additional funds, other than Budgeted Development Capital Calls, are referred to as “ Additional Capital Contribution(s) ”). For the avoidance of doubt, to the extent that Cash Flow From Operations is insufficient to allow the Company, after taking into account any draws from the Class A Preferred Reserve as provided in Section 6.7, to pay the Class A Return and Priority Class A Return in full on a monthly basis as required under Sections 6.6(b) and (c), Manager shall be obligated to make a call for Additional Capital Contributions in such amounts as are necessary in order to allow the Company to do so, and all such capital called for that purpose shall be distributed as provided in Sections 6.6(b) and (c). Additional Capital Contributions shall be solely the obligation of the Class B Members, and the Class A Member shall have no obligation to make Additional Capital Contributions. All additional funds contributed by the Class B Members shall be contributed as additional capital to the Company by the Class B Members Pro Rata as to the Class B Membership Interest (or in any such other percentages as they shall agree) within ten (10) days of written notification of the need therefor; provided, that no Additional Capital Contributions funded shall be distributed to the Members without the prior written consent of the Class A Member. Any Additional Capital Contributions made by the Class B Members will be treated on the same basis and parity as the initial Capital Contributions of the Class B Members made in accordance with Section 5.2 above.

(b)          If the Class B Members fail to contribute all of their share (based on 89.5% Class A Member share and 10.5% Class B Member share) of any Budgeted Development Capital Call or to make all of an Additional Capital Contribution, the Class A Member may, but shall not be obligated to, contribute as additional capital to the Company (if there is more than one Class A Member, Pro Rata as to the Class A Membership Interest (or in any such other percentages as they shall agree)) all or a portion of the amount that the Class B Members failed to fund. Any such Capital Contributions made by the Class A Member shall be referred to as the “ Class A Priority Capital Contributions. ” Any Class A Priority Capital Contributions made by the Class A Member will be treated on the same basis as its prior Capital Contributions of the Class A Member made in accordance with Section 5.2 above, except that the Current Class A Return on such Class A Priority Capital Contributions shall be twenty percent (20%) per annum (the “ Priority Class A Return ”) and the Class A Member shall have a priority return of its Priority Class A Return and Class A Priority Capital Contributions in distributions from Capital Transactions and Liquidations, as set forth in Section 6.8.

(c)          Additional Capital Contributions shall be made in cash unless the Manager and Class A Member agree otherwise.

(d)          Except as provided in Sections 5.2, 5.3(a) and 5.3(b), no Capital Contributions may be made to the Company without the prior written consent of the Class A Member.

5.4            Return of Capital Contributions; Interest on Capital Contributions .

(a)          No Member shall have the right to withdraw his Capital Contributions or demand or receive the return of his Capital Contributions or any part thereof, except as provided in Section 10.5 with respect to the Class A Member and as otherwise provided in this Agreement.

(b)          The Manager shall not be liable for the return of the Capital Contributions of the Members. If and to the extent that any such return is required, such return shall be made solely from the assets of the Company.

(c)          The Company shall not pay interest on the Capital Contributions of any Member, except as otherwise provided in this Agreement.

5.5            Capital Accounts . The Capital Accounts of the Company shall be established and maintained for each Member hereunder in accordance with the federal income tax accounting practices and rules established under Section 704(b) of the IRC and the Treasury Regulations thereunder.

5.6            Membership Interests . The Class A Membership Interests and Class B Membership Interests in the Company are set forth on Schedule I .

5.7            Admission of Additional Members . The Company shall not be permitted to admit additional Members hereunder without consent of: (1) the Manager and (2)(a) the Members owning a Majority of the Membership Interests and (b) the Class A Membership Interest, to the extent outstanding. Except as expressly permitted in this Agreement, no other Person shall be admitted as a Member of the Company, and no additional interest in the Company shall be issued, without such approval of a Majority of the Membership Interests and the Class A Membership Interest.

ARTICLE 6

ALLOCATION AND DISTRIBUTION OF CERTAIN ITEMS

6.1           Net Profit . After giving effect to the special allocations set forth in Sections 6.4, 6.5 and 6.9, all Net Profit shall be allocated to the Members’ Capital Accounts in the following manner and order of priorities:

(a)          After giving effect to the allocations contained in Section 6.1(b), the Company’s Net Profit shall be allocated one hundred percent to the Class B Members’ Capital Accounts.

(b)          To the extent Net Loss was allocated to the Members’ Capital Accounts pursuant to Section 6.2(a), then prior to making the allocations under Section 6.1(a), Net Profit shall be allocated to the Members’ Capital Accounts in an amount equal to and in the reverse order that such Net Loss was allocated.

6.2           Net Loss . After giving effect to the special allocations set forth in Sections 6.4, 6.5, and 6.9, all Net Loss shall be allocated to the Members’ Capital Accounts in the following manner and order of priorities:

(a)          After giving effect to the allocations contained in Section 6.2(b), the Company’s Net Loss shall be allocated in the following manner and order of priorities:

(i)          First, one hundred percent (100%) to the Class B Members’ Capital Accounts until the cumulative Net Loss allocated to the Class B Members’ Capital Accounts pursuant to this Section 6.2(a)(i) equals the amount of the Class B Members’ capital contributions to the Company;

(ii)         Second, one hundred percent (100%) to the Class A Members’ Capital Accounts until the cumulative Net Loss allocated to the Class A Members’ Capital Accounts pursuant to this Section 6.2(a)(ii) equals the amount of the Class A Members’ capital contributions to the Company; and

(iii)        Third, the balance, to the Members who bear the risk of such loss or if no Members bears the risk of loss, one hundred percent (100%) to the Class B Members’ Capital Accounts.

(b)          To the extent Net Profit was allocated to the Members’ Capital Accounts pursuant to Section 6.1(a), then prior to making any allocations of Net Loss under Section 6.2(a), Net Loss shall be allocated to the Members’ Capital Accounts in an amount equal to and in the reverse order that such Net Profit were allocated.

6.3           Composition of Special Allocation Items . Except as required otherwise under the IRC or the Regulations issued thereunder, all special allocations of income, gain or deduction made pursuant to Sections 6.4, 6.5 and 6.9 shall consist of a proportionate part of each item of gross income, gain or deduction, as the case may be, that the Company recognizes in the year such allocation is to be made.

6.4            Special Current Class A Return Allocations . Prior to the allocations contained in Sections 6.1 and 6.2, items of income and Gain shall be specially allocated to the Class A Members in proportion to and to the extent of the excess, if any, of (i) the cumulative Current Class A Return distributed to each Member pursuant to Sections 6.6(b), 6.7(a) and 6.8(e) hereof from the commencement of the Company to a date thirty (30) days after the end of such Adjustment Period, over (ii) the cumulative items of income and Gain allocated to such Member pursuant to this Section 6.4 for all prior Adjustment Periods.

6.5            Special Priority Class A Return Allocations . Prior to the allocations contained in Sections 6.1 and 6.2, items of income and Gain shall be specially allocated to the Class A Members in proportion to and to the extent of the excess, if any, of (i) the cumulative Priority Class A Return distributed to each Member pursuant to Sections 6.6(c), 6.7(b) and Section 6.8(c) hereof from the commencement of the Company to a date thirty (30) days after the end of such Adjustment Period, over (ii) the cumulative items of Gain allocated to such Member pursuant to this Section 6.5 for all prior Adjustment Periods.

6.6            Distributions of Cash Flow From Operations . Distributions of Cash Flow From Operations shall be made monthly. Distributions made pursuant to this Section shall be made monthly to the Members in the following order of priority:

(a)          On and after the Class A Mandatory Redemption Date, to the Class A Members until such Class A Members have received distributions in an amount equal to the Class A Unit Redemption Amount; provided, that, if distributions of Cash Flow From Operations to be made under this Section 6.6(a) are insufficient to fully satisfy the Class A Unit Redemption Amount, all Cash Flow From Operations shall be segregated in a separate account of the Company (the “ Class A Sinking Fund ”) until such time as distributions to be made under this Section 6.6(a) plus the amounts in the Class A Sinking Fund are sufficient, and are used, to fully satisfy the Class A Unit Redemption Amount;

(b)          Second, to the Class A Members (to be shared among them, pro rata, according to their respective unpaid Current Class A Return) until such Class A Members have received distributions in an amount equal to their respective unpaid Current Class A Return (as may be modified by Section 6.14) until it is paid in full pursuant to this Section 6.6(b), Section 6.7(a) and Section 6.8(e);

(c)          Third, to the Class A Members (to be shared among them, pro rata, according to their respective unpaid Priority Class A Return) until such Class A Members have received distributions in an amount equal to their respective unpaid Priority Class A Return (as may be modified by Section 6.14) until it is paid in full pursuant to this Section 6.6(c), Section 6.7(b) and Section 6.8(c); and

(d)          Fourth, to the Class B Members pro rata, in accordance with their respective Class B Membership Interests.

For the avoidance of doubt, to the extent that Cash Flow From Operations is insufficient to allow the Company, after taking into account any draws from the Class A Preferred Reserve as provided in Section 6.7, to pay the Class A Return and Priority Class A Return in full on a monthly basis, Manager shall be obligated to make a call for Additional Capital Contributions in such amount as are necessary in order to allow the Company to do so, and all such capital called for that purpose shall be distributed as provided in subsections (b) and (c) above.

6.7            Distributions from Class A Preferred Reserve . The Manager shall cause distributions to be made from the Class A Preferred Reserve on a monthly basis as necessary in order to pay a portion of the unpaid Current Class A Return equivalent to a 15% annualized return on all Class A Capital Contributions; provided however , from and after the occurrence of a Default Event, the Manager shall cause distributions to be made from the Class A Preferred Reserve on a monthly basis as necessary in order to pay any unpaid Current Class A Return and all unpaid Priority Class A Return, in the following order of priority:

(a)          To the Class A Members (to be shared among them, pro rata, according to their respective unpaid Current Class A Return) until such Class A Members have received distributions in an amount equal to their respective unpaid Current Class A Return (as may be modified by Section 6.14) until it is paid in full pursuant to Section 6.6(b), this Section 6.7(a) and Section 6.8(e); and

(b)          Second, to the Class A Members (to be shared among them, pro rata, according to their respective unpaid Priority Class A Return) until such Class A Members have received distributions in an amount equal to their respective unpaid Priority Class A Return (as may be modified by Section 6.14) until it is paid in full pursuant to Section 6.6(c), this Section 6.7(b) and Section 6.8(c).

6.8            Distributions From Capital Transactions and on Liquidations . Net Cash Proceeds in connection with Capital Transactions and/or in connection with the liquidation of the Company shall be distributed within thirty (30) days of the completion of the applicable event. Distributions made pursuant to this Section shall be made in the following amounts and order of priority:

(a)          To discharge the debts and obligations of the Company;

(b)          To fund reasonable and necessary reserves (i) as determined in good faith by the Manager and (ii) approved by the Class A Members;

(c)          To the Class A Members (to be shared among them, pro rata, according to their respective unpaid Priority Class A Return) until such Class A Members have received distributions of Net Cash Proceeds in an amount equal to their respective unpaid Priority Class A Return until it is paid in full pursuant to this Section 6.8(c), Section 6.7(b) and Section 6.6(c);

(d)          To the Class A Members (to be shared among them, pro rata, according to their respective Net Class A Priority Capital Contributions) until such Class A Members have received distributions of Net Cash Proceeds in an amount equal to their respective Net Class A Priority Capital Contributions until it is paid in full pursuant to this Section 6.8(d);

(e)          To the Class A Members (to be shared among them, pro rata, according to their respective unpaid Current Class A Return) until such Class A Members have received distributions of Net Cash Proceeds in an amount equal to their respective unpaid Current Class A Return until it is paid in full pursuant to this Section 6.8(e), Section 6.7(a) and Section 6.6(b);

(f)          To the Class A Members (to be shared among them, pro rata, according to their respective aggregate Net Class A Capital Contributions), until such Class A Members have received distributions of Net Cash Proceeds in the amount equal to their respective aggregate Net Class A Capital Contributions until they are repaid in full pursuant to this Section 6.8(f);

(g)          To the Class B Members pro rata, in accordance with (and in reduction of) their respective positive Capital Accounts; and

(h)          To the Class B Members pro rata, in accordance with their respective Class B Membership Interests.

6.9            Special Tax Allocations . The allocations in this Section 6.9 shall be given effect before giving effect to the allocations contained in Sections 6.1 through Section 6.5:

(a)          Notwithstanding any provision contained herein to the contrary, if the amount of Net Loss and Loss for any Adjustment Period that would otherwise be allocated to a Member hereunder would cause or increase a deficit balance in such Member’s Capital Account to an amount in excess of the sum of such Member’s share of Minimum Gain as of the last day of such Adjustment Period, then a proportionate part of such Net Loss and Loss equal to such excess shall be allocated proportionately first to the other Members in an amount up to, but not in excess of, the amount that would cause or increase a deficit balance in each of such Member’s Capital Accounts to an amount equal to the sum of their respective shares of Minimum Gain as of the last day of such Adjustment Period. For purposes of this Section 6.9(a), each Member’s Capital Account shall be computed as of the last day of such Adjustment Period in the manner provided in the definition of Capital Account, but shall be reduced for the items described in Section 1.704-1(b)(2)(ii)-(d)(4), (5) and (6) of the Treasury Regulations interpreting the IRC.

(b)          Notwithstanding any provision in this Agreement to the contrary, if any of the Members, as of the last day of any Adjustment Period, has a deficit balance in its Capital Account that exceeds the sum of its share of Minimum Gain as of such last day, then all items of income and gain of the Company (consisting of a prorata portion of each item of Company income, including gross income and Gain) for such Adjustment Period shall be allocated to such Members in the amount and in the proportions required to eliminate such excess as quickly as possible. For purposes of this Section, a Member’s Capital Account shall be computed as of the last day of an Adjustment Period in the manner provided in the definition of Capital Account, but shall be increased by any allocation of income to such Member for such Adjustment Period under Section 6.9(c).

(c)          Notwithstanding any provision in this Agreement to the contrary, if there is a net decrease in the Minimum Gain during any Adjustment Period, then all items of gross income and Gain of the Company for such Adjustment Period (and, if necessary, for subsequent Adjustment Periods) shall be allocated to each Member in proportion to, and to the extent of, an amount equal to the greater of (i) the portion of such Member’s share of the net decrease that is allocable to the disposition of Company property subject to one or more nonrecourse liabilities of the Company or (ii) the deficit balance in such Member’s Capital Account (determined before any allocation for such Adjustment Period) in excess of the sum of such Member’s share of the Minimum Gain as of the close of such Adjustment Period. The items required to be allocated to the Members under this Section 6.9(c) shall be determined in accordance with Section 1.704-2(f) of the Treasury Regulations.

(d)          Notwithstanding any other provision contained herein, any item of Company loss, deduction or IRC Section 705(a)(2)(B) expenditure that is attributable to a nonrecourse liability of the Company for which any Member bears the economic risk of loss (e.g., a Member or an Affiliate makes the nonrecourse loan to the Company) shall be allocated to the Member or Members who bear the economic risk of loss with respect to such liability to the extent required in Section 1.704-2(i) of the Treasury Regulations interpreting the IRC.

6.10          Curative Allocations. The allocations set forth in Section 6.9 (the “ Regulatory Allocations ”) are intended to comply with the requirements of the Treasury Regulations. The Regulatory Allocations may not be consistent with the manner in which the Members intend to divide Company distributions. Accordingly, notwithstanding any other provision of this Article (other than the Regulatory Allocations), the Manager may make such offsetting special allocations of income, gain, loss, or deduction in whatever manner it determines appropriate so as to prevent the Regulatory Allocations from distorting the manner in which the Company’s distributions would otherwise be divided among the Members. In general, the Members anticipate that this will be accomplished by specially allocating other profit, losses, gain, and deductions among the Members so that, after such offsetting special allocations are made, the amount of each Member’s Capital Account will be, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not a part of this Agreement and all Company items had been allocated to the Members solely pursuant to Sections 6.1 through 6.5.

6.11          IRC Section 704(c) Tax Allocations . In accordance with IRC Section 704(c) and the Treasury Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for 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 federal income tax purposes and its fair market value. Any elections or other decisions relating to such allocations shall be made by the Manager in its sole discretion.

6.12          Distribution Limitations . Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Members on account of their interests in the Company if such distribution would violate the Act or any other applicable law or would constitute a default under any Basic Document.

6.13          Amounts Withheld for Taxes or Paid on Composite Returns . All amounts withheld pursuant to the IRC or any provision of any state or local tax law with respect to any payment, distribution or allocation to the Company or one or more of the Members shall be treated as amounts paid or distributed, as the case may be, to the Members for whom such amounts were withheld pursuant to this Article for all purposes under this Agreement. The Manager may allocate any such amount among the Members in any manner that is in accordance with applicable law. The Company is authorized to withhold from payments and distributions to one or more Members, or with respect to allocations to one or more Members, and to pay over to any federal, state or local government, any amounts so withheld under this Agreement, the IRC or any provisions of any other federal, state, or local law, and shall allocate any such amounts to the Members for whom such amounts were withheld. To the extent required by any provision of any state or local tax law, the Company shall file a composite tax return on behalf of one or more of its Members and shall report and pay income taxes required by law to be paid with such composite tax returns to any Taxing Jurisdiction, and any such amounts shall be treated as a distribution to the Member for whom such composite tax return is filed. The Company shall have the power and authority to determine (a) whether a Member should be included in a composite tax return required to be filed by any provision of any applicable tax law, and (b) whether the Member is subject to withholding, pursuant to this Section, on payments, distributions or allocations from the Company. A Member shall be limited to an action against the applicable Taxing Jurisdiction(s) with respect to any claims based on over-withholding or over-payment on a composite tax return, and neither the Company, nor the Manager shall have any liability to any Member with respect to any withholding or composite tax return filings or payments made pursuant to this Section.

6.14          Timing of Distributions of Current Class A Return and Priority Class A Return . Distributions of Current Class A Return under Section 6.6(b) or Section 6.8(e) and Priority Class A Return under Section 6.6(c) or Section 6.8(c) will be made on a monthly basis on or before the 10 ^th day of each calendar month following the calendar month to which the Current Class A Return or Priority Class A Return relates. If a distribution of Current Class A Return or Priority Class A Return is not made on or before the 10 ^th day of a calendar month (a “ Delayed Distribution ”), the Current Class A Return and the Priority Class A Return (if any) shall be calculated by increasing the annual percentage rate therein by 3.5% from the 11 ^th day of such calendar month until such time as all Delayed Distributions are made.

ARTICLE 7

APPOINTMENT OF MANAGER; OBLIGATIONS, REPRESENTATIONS AND
WARRANTIES OF THE MANAGER

7.1            Appointment of the Manager . Subject to Section 8.6, the business and affairs of the Company shall be managed by or under the direction of the Manager. The Manager shall hold office until such Manager’s earlier dissolution, death, resignation, expulsion or removal. Any successor Manager shall be appointed by a Majority of the Class B Membership Interest prior to the Conversion Date and by a Majority of the Membership Interest on and after the Conversion Date, unless otherwise provided in this Agreement. A Manager need not be a Member. A Member shall not be deemed to be a Manager simply by virtue of being a Member in the Company. The initial Manager designated by the Class B Members is SOIF III.

7.2            Compensation of Manager; Removal of Manager . The Manager shall receive no compensation for serving as the Manager of the Company. The Manager shall be reimbursed for all reasonable expenses incurred in managing the Company. The Manager and Affiliates of a Member or the Manager may provide services to the Company, the Company Subsidiary, the Property Owner and the Property in addition to those contemplated to be provided by a manager and receive additional compensation therefor; provided that any fee paid by the Company, the Company Subsidiary or the Property Owner for such services shall be at rates customarily charged for similar services by Persons engaged in the same or substantially similar activities in the relevant geographical area and the provisions of each such contract shall be at least as favorable to the Company as the terms reasonably expected by the Manager to be available in an arm’s-length transaction with an independent third party and, provided further, that any such contract with an Affiliate of the Manager, Class B Members and/or their Affiliates must be approved by the Class A Members, which approval will not be unreasonably withheld, conditioned or delayed. Unless otherwise restricted by law or the Basic Documents, the Manager may resign by written notice to the Company, in which case if there are no persons or entities appointed by or willing to serve as Manager under the Class B Members, then any vacancy may be filled by the written consent of the Members owning a Majority of the Class A Membership Interests. Notwithstanding the foregoing and except as provided in Section 7.4, a Manager may not be removed or expelled as the Manager and no additional Manager may be appointed unless there is cause for removal. For purposes hereof, “cause for removal” shall mean (i) an event of default under the Loan or Basic Documents has been declared by the Lender, (ii) the assertion by the Class A Members that any action by the Manager constitutes fraud against the Company, the Company Subsidiary, the Class A Members, or the Project, (iii) the good faith assertion by the Class A Members that any action or failure to act by the Manager constitutes (or constituted) gross negligence, willful misconduct, bad faith or a material violation of law in the performance of its duties to the Company, (iv) the assertion by the Class A Members of a violation by the Manager of its fiduciary obligations to the Company, and (v) the good faith assertion by the Class A Members of any material breach by the Manager of the material terms of this Agreement; provided, however, that such alleged breach of this Agreement by the Manager described in subpart (v) has not been cured by the Manager within sixty (60) days after such time as it may be demonstrated that the Manager had actual knowledge of such alleged material breach; provided, however that if such breach cannot reasonably be cured within such sixty (60) day period and the Manager is diligently pursuing such cure, the sixty (60) day period shall be extended to ninety (90) days.

In the event that a “cause for removal” described in the definition of “cause for removal” above occurs, upon the giving of written notice by the Class A Members to the Manager that the Manager is replaced, then the current Manager shall be replaced by the Manager designated in such notice (the “ Class A Manager ”) and the Class A Manager shall be the sole Manager of the Company with all powers of the Manager of the Company and the initial Manager shall have no further rights as and shall immediately cease to act as Manager of the Company, and notwithstanding anything in this Agreement to the contrary, such Class A Manager may not thereafter be removed without the consent of the Class A Members.

7.3            Manager as Agent . To the extent of its powers set forth in this Agreement and subject to Section 8.6, the Manager is an agent of the Company for the purpose of the Company’s business, and the actions of the Manager taken in accordance with such powers set forth in this Agreement shall bind the Company.

7.4            Manager Following Class A Conversion Date . As of the date of closing of BRG’s exercise of its Conversion right as provided in Section 10.4 (the “ Conversion Date ”), SOIF III, and any then current Manager shall each and all be deemed to have automatically resigned as Managers and cease to be Managers of the Company, whereupon BRG shall become the sole Manager of the Company. Notwithstanding Section 7.2, on and after the Conversion, the Manager may only be removed by a Majority Vote of the Members for an act or omission by the Manager related to the Company constituting gross negligence or fraud causing a material diminution of value in the Company or the Subsidiary Interest.

ARTICLE 8

STATUS OF THE MANAGER’S POWERS
AND TRANSFERABILITY OF INTERESTS

8.1            Control and Responsibility . Except as otherwise expressly provided herein, the Manager shall be responsible for the management of the Company business and shall have all powers conferred by law as well as those that are necessary, advisable or consistent in connection therewith. Except as otherwise provided in Section 8.6(d) as to the Class A Member, any note, contract, management agreement, deed, bill of sale, assignment, conveyance, mortgage, lease or other commitment purporting to bind the Company or any third party to any action shall be executed and delivered by the Manager on behalf of the Company and no other signature whatsoever shall be required.

8.2            Status of Manager’s Interests . The Manager shall not have the right to transfer or assign the interests it holds as Manager in the Company; provided, however, t o the extent that BRG or a BRG Transferee Transfers all or a portion of its Interest in accordance with Article 10 to a BRG Transferee, then after a Conversion such BRG Transferee may be appointed as an additional Manager under Section 7.1 by BRG or a BRG Transferee then holding all or a portion of an Interest without any further action or authorization by any Member. 

8.3            No Right to Partition . To the fullest extent permitted by law, neither the Members nor the Manager shall have the right to bring an action for partition or any sale for division against the Company or any of its properties. Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by law, each of the Members hereby irrevocably waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. To the fullest extent permitted by law, each of the Members hereby irrevocably waives any right or power that such Person might have to reject this Agreement in any bankruptcy or insolvency proceedings relating to such Person. The Members shall not have any interest in any specific assets of the Company, and the Members shall not have the status of a creditor with respect to any distribution pursuant to Agreement. The interest of the Members in the Company is personal property.

8.4            Extent of Obligation . The Manager shall devote such time to the business and affairs of the Company as the Manager shall reasonably deem necessary to conduct properly such business and affairs in accordance with this Agreement and applicable law.

8.5            Rights and Powers . In addition to any other rights and powers that it may possess under applicable law or by virtue of this Agreement, but in any event subject to Section 8.6 hereof and the Basic Documents to the contrary, the Manager shall have the full and absolute power and authority to bind the Company and take any and all actions and do anything and everything it deems necessary or appropriate in performing its duties hereunder and shall have all rights and powers required or appropriate to its management of the Company business (and indirectly the business of the Company Subsidiary and/or the Property Owner), including, but not limited to, the following specific rights and powers. If there is more than one Manager at any time, any action taken by the Managers must be agreed to by each Manager.

8.6            Limitations on Authority of the Manager .

(a)          It is expressly understood that the Manager shall not do or perform any of the following acts on behalf of the Company without first obtaining the approval of the Members holding at least a Majority of the Membership Interests:

(i)          any act in contravention of this Agreement;

(ii)         any act that would make it impossible to carry on the ordinary business of the Company, the Company Subsidiary or the Property Owner;

(iii)        confess a judgment against the Company;

(iv)        possess Company (or Company Subsidiary or Property Owner) property or assign the rights of the Company (or Company Subsidiary or Property Owner) in specific Company (or Company Subsidiary or Property Owner) property for other than Company (or Company Subsidiary or Property Owner) purposes;

(v)         admit a Person as a Manager, except as provided in Section 7.2;

(vi)        admit a Person as a Member except as otherwise provided herein;

(vii)       continue the business of the Company in contravention of Section 12.1 hereof; or

(viii)      cause or permit the Company to extend credit to or to make any loans or become surety, guarantor, endorser, or accommodation endorser for any Entity.

(b)          It is expressly understood that, without first obtaining the approval of a Majority of the Class A Membership Interests, in their sole and absolute discretion, and subject to the Basic Documents, the Manager shall not undertake or perform any of the actions set forth in Section 8.6(a) if doing so would cause any dilution of or material adverse economic effect upon the Class A Member’s Membership Interest or its rights under this Agreement or the Company Subsidiary LLC Agreement or the Property Owner LLC Agreement, nor may the Manager undertake or perform any of the following acts on behalf of the Company without first obtaining the approval of a Majority of the Class A Membership Interests, in their sole and absolute discretion, subject to the Basic Documents:

(i)          cause the Company to approve any Major Decision (as defined in Section 7.07 of the Company Subsidiary LLC Agreement, or any successor section thereto);

(ii)         cause the Company to approve any amendment to the Company Subsidiary LLC Agreement;

(iii)        file or consent to any filing any reorganization, receivership, insolvency, bankruptcy or other similar proceedings as to the Company, the Company Subsidiary or the Property Owner pursuant to any federal or state law affecting debtor and creditor rights;

(iv)        to the fullest extent permitted by law, dissolve or liquidate the Company;

(v)         distribute any cash or property of the Company other than as provided in this Agreement;

(vi)        merge or consolidate with any other Entity;

(vii)       amend, modify or alter this Agreement, except as otherwise provided herein; or

(viii)      cause the Company, the Company Subsidiary or the Property Owner to consent to any REIT Prohibited Transaction, as defined in the Company Subsidiary LLC Agreement.

(c)          Any action or failure to act by the Manager to comply with the provisions of Sections 8.6(a) or (b), or any other breach of this Agreement by the Manager or any Class B Member, shall constitute a “ Default Event .”

(d)           Notwithstanding any provision herein to the contrary, on and after the Conversion Date (if applicable), any decision to be made by the Company or its Representatives on the Management Committee, or pursuant to Sections 7.07 or 12.06 of the Company Subsidiary LLC Agreement, shall only require the approval of and be subject to the direction of BRG and not any other Member of the Company;  provided ,  further , that on and after the Conversion Date (if applicable) only BRG, and not any other Member of the Company, shall have the power and authority to exercise the powers and privileges of the Company as manager of the Company Subsidiary.

ARTICLE 9

STATUS OF MEMBERS

9.1            Liability . Except as otherwise provided by the Act, a Member shall not be bound by, or be personally liable for, the expenses, liabilities or obligations of the Company, solely by reason of being a member of the Company.

9.2            Business of the Company . Except as otherwise provided herein, a Member shall take no part in the conduct or control of the business of the Company and shall have no right or authority to act for or to bind the Company in any manner whatsoever. Whenever this Agreement provides for the approval or action of the Class B Members, unless specifically stated otherwise, such approval or action shall be made by the Class B Members owning a Majority of the Class B Membership Interest. Whenever this Agreement provides for the approval or action of the Class A Members, unless specifically stated otherwise, such approval or action shall be made by the Class A Member (or if there is more than one Class A Member, the Class A Members owning a Majority of the Class A Membership Interest).

9.3            Status of Member’s Interest . Except as otherwise provided in this Agreement, a Member’s Membership Interest shall be fully paid and non-assessable. No Member shall have the right to withdraw or reduce its Capital Contribution to the Company except as a result of (i) the dissolution and termination of the Company or (ii) as otherwise provided in this Agreement and in accordance with applicable law.

ARTICLE 10

TRANSFER OF MEMBERSHIP INTEREST; CLASS A CONVERSION RIGHT AND REDEMPTION

10.1          Sale, Assignment, Transfer or Other Disposition of Membership Interest .

(a)           Prohibited Transfers . Except as otherwise provided in this Article 10, or as approved by the Manager, no Member shall have the right to sell, transfer, assign, pledge or encumber (“ Transfer ”) all or any part of its Membership Interest, whether legal or beneficial, in the Company, and any attempt to so Transfer such Membership Interest (and such Transfer) shall be null and void and of no effect. Notwithstanding the foregoing, any Member shall have the right, with the consent of the other Members, at any time to pledge to a lender or creditor, directly or indirectly, all or any part of its Membership Interest in the Company for such purposes as it deems necessary in the ordinary course of its business and operations.

(b)            Affiliate Transfers .

(i)          Subject to the provisions of Section 10.1(b)(ii) hereof, and subject in each case to the prior written approval of each Member (such approval not to be unreasonably withheld), any Member may Transfer all or any portion of its Membership Interest in the Company at any time to an Affiliate of such Member, provided that such Affiliate shall remain an Affiliate of such Member at all times that such Affiliate holds such Membership Interest. If such Affiliate shall thereafter cease being an Affiliate of such Member while such Affiliate holds such Membership Interest, such cessation shall be a non-permitted Transfer and shall be deemed  void ab initio , whereupon the Member having made the Transfer shall, at its own and sole expense, cause such putative transferee to disgorge all economic benefits and otherwise indemnify the Company and the other Member(s) against loss or damage under the Basic Documents.

(ii)         Notwithstanding anything to the contrary contained in this Agreement, the following Transfers shall not require the approval set forth in Section 10.1(b)(i):

(a)          Intentionally Omitted

provided however, as to subparagraphs (b)(ii)(a), (b), and (c), and as to subparagraph (b)(i), no Transfer shall be permitted and shall be  void ab initio  if it shall violate any “Transfer” provision of the Basic Documents. Upon the execution by any such SOIF III Transferee or BRG Transferee of such documents necessary to admit such party into the Company and to cause the SOIF III Transferee or BRG Transferee (as applicable) to become bound by this Agreement, the SOIF III Transferee or BRG Transferee (as applicable) shall become a Member, without any further action or authorization by any Member.

(c)           Admission of Transferee; Partial Transfers . Notwithstanding anything in this Article 10 to the contrary, no Transfer of Membership Interests in the Company shall be permitted unless the potential transferee is admitted as a Member under this Section 10.1(c):

(i)          If a Member Transfers all or any portion of its Membership Interest in the Company, such transferee may become a Member if (i) such transferee executes and agrees to be bound by this Agreement, (ii) the transferor and/or transferee pays all reasonable legal and other fees and expenses incurred by the Company in connection with such assignment and substitution and (iii) the transferor and transferee execute such documents and deliver such certificates to the Company and the remaining Members as may be required by applicable law or otherwise advisable; and

(ii)         Notwithstanding the foregoing, any Transfer or purported Transfer of any Membership Interest, whether to another Member or to a third party, shall be of no effect and  void ab initio , and such transferee shall not become a Member or an owner of the purportedly transferred Membership Interest, if the Manager determines in its sole discretion that:

The Manager may require the provision of a certificate as to the legal nature and composition of a proposed transferee of a Membership Interest of a Member and from any Member as to its legal nature and composition and shall be entitled to rely on any such certificate in making such determinations under this Section 10.1(c).

10.2          Withdrawals . Each of the Members does hereby covenant and agree that it will not withdraw, resign, retire or disassociate from the Company, except as a result of a Transfer of its entire Membership Interest in the Company permitted under the terms of this Agreement and that it will carry out its duties and responsibilities hereunder until the Company is terminated, liquidated and dissolved under Article 12. No Member shall be entitled to receive any distribution or otherwise receive the fair market value of its Membership Interest in compensation for any purported resignation or withdrawal not in accordance with the terms of this Agreement.

10.3          Death, Incapacity or Dissolution of a Member .

(a)          The death, insanity or incompetency of a Member who is an individual shall not, in and of itself, cause the termination or dissolution of the Company. Thereafter, the legally authorized personal representative of such Member shall have all the rights of a Member for the purpose of settling or managing his estate, and shall have such power as such party possessed to make an assignment of his interest in the Company in accordance with the terms hereof and to join with such assignee in making application to substitute such assignee as a Member, provided all of the provisions of this Agreement are complied with by the holder of such Member’s interest.

(b)          The dissolution or other cessation to exist as a legal entity of any Member that is not an individual shall not, in and of itself, cause the termination or dissolution of the Company. Thereafter, the authorized representative of such entity, possessed of the rights of such Member for the purpose of winding up, in any orderly fashion, and disposing of the business of such entity, shall have such power as such entity possessed to make an assignment of its interest in the Company in accordance with the terms hereof and to join with such assignee in making application to substitute such assignee as a Member, provided all of the provisions of this Agreement are complied with by the holder of such Member’s interest.

10.4          BRG Class A Conversion Right . During the Conversion Period and for so long as BRG holds Class A Units in the Company, BRG shall have the right to convert all, but not less than all, of its Class A Units into Class B Units in accordance with this Section 10.4.

(a)          During the Conversion Period, and so long as BRG then holds a Majority of the Class A Membership Interests, BRG may deliver a notice to the Company (a “ Conversion Notice ”) indicating that BRG is exercising its conversion right under this Section 10.4. From and after the date of the Company’s receipt of the Conversion Notice (the “ Receipt Date ”), Current Class A Return and Priority Class A Return shall cease to accrue on BRG’s Net Capital Contributions to the Company; however, BRG shall retain all other rights of a Class A Member until the Conversion Date.

(b)          Within one (1) day of the date of the Receipt Date of the Conversion Notice, the Company shall simultaneously issue to BRG a number of Class B Units as determined in accordance with Section 10.4(c) below (the “ Conversion Units ”), cancel all of BRG’s Class A Units, and return to BRG any remaining funds in the Class A Preferred Reserve. The date of such issuance, cancellation and return of funds shall be referred to in this Agreement as the “ Conversion Date .” From and after the Conversion Date, BRG shall cease to be a Class A Member and, if not previously admitted as a Class B Member, shall be admitted as a Class B Member with no further action required by the Company, the Manager or the Members. The Manager shall amend Schedule I as of the Conversion Date to reflect the conversion, including but not limited to an updated enumeration of all Class B Units and Membership Interests as of the Conversion Date.

(c)          The number of Conversion Units to be issued to BRG on the Conversion Date shall equal the number of Class B Units that would cause the Class B Membership Interest acquired by BRG pursuant to this Section 10.4 to hold a proportional eighty seven percent (87.0%) Class B Membership Interest and a Capital Account in an amount equal to the same proportion. The foregoing conversion ratio assumes the Members have fully funded their respective initial Capital Contributions, that the Class A Capital Commitment has been fully funded, that the Project was developed and funded as provided in the Project Budget, that Additional Capital Contributions have been made by the Class B Members as projected, and that all Current Class A Returns and Priority Class A Returns have been paid.  In the event that the Class B Members’ Capital Contributions were substantially more than projected, the Members will confer and in good faith determine a commensurate conversion ratio.

10.5          Class A Mandatory Redemption .

(a)          Notwithstanding the restrictions on Transfer contained in this Article 10, but subject to the Basic Documents, the Company shall redeem all, but not less than all, of the Class A Units on the Class A Mandatory Redemption Date for payment of the Class A Unit Redemption Amount in immediately available funds to the Class A Members, unless prohibited by law, and in such event, on the earliest practicable date such redemption would not be prohibited by law; provided, however, this Section 10.5 shall not be applicable to the extent the Class A Member has exercised its Conversion Right under Section 10.4 prior to the Class A Mandatory Redemption Date.

(b)          Subjection to Section 10.5(a), on the Class A Mandatory Redemption Date (or earliest practicable date), upon receipt of the Class A Unit Redemption Amount, the Class A Member shall transfer its Class A Units to the Company free and clear of any and all liens, encumbrances or other restrictions and execute and acknowledge a written instrument of assignment, together with such other instruments as the Manager, in its reasonable discretion, may deem necessary or desirable to effect the Transfer to the Company of the Class A Units, all in form and substance reasonably satisfactory to the Manager.

(c)          Without limiting the generality of any other provision of this Agreement, following the redemption of the Class A Units, the Class A Members shall have no rights in the Company.

(d)          To the extent the Company does not redeem the Class A Units on the Class A Mandatory Redemption Date, the Class A Units shall continue to accrue the Current Class A Return except that the Current Class A Return shall be twenty percent (20%) per annum on and after the Class A Mandatory Redemption Date until and through the date the Class A Unit Redemption Amount is paid in full.

ARTICLE 11

CESSATION OF A MEMBER

A Member shall cease to be a Member of the Company upon the assignment of all of the Member’s Membership Interest in the Company.

ARTICLE 12

DISSOLUTION AND TERMINATION OF THE COMPANY

12.1          Dissolution and Termination . The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) the decision of the Manager, with the written concurrence of the Members owning more than fifty percent (50%) of the Membership Interests, that it would be in the best interest of the Company to dissolve; (ii) the termination of the legal existence of the last remaining Member of the Company or the occurrence of any other event that 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; (iii) the entry of a decree of judicial dissolution under the Act; or (iv) the filing by the Secretary of State of a Certificate of Dissolution. Upon the occurrence of any event that causes the last remaining Member of the Company to cease to be a Member of the Company (other than upon continuation of the Company without dissolution upon (i) an assignment by the last remaining Member of all of its Membership Interest in the Company and the admission of the transferee pursuant to Article 10, or (ii) the resignation of the last remaining Member and the admission of an additional member of the Company pursuant to Article 10), to the fullest extent permitted by law, the personal representative of such Member is hereby authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such Member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of 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 such Member in the Company.

(a)          Notwithstanding any other provision of this Agreement, the Bankruptcy of a Member shall not cause such Member to cease to be a Member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

(b)          In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 12.2.

(c)          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 Members 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.

12.2          Distribution Upon Dissolution . Upon the dissolution of the Company, the Manager shall take full account of the Company assets and liabilities, the assets shall be liquidated as promptly as is consistent with obtaining fair value thereof, and the proceeds therefrom, to the extent sufficient therefor, after payment of or due provision for all debts, liabilities and obligations of the Company as required by the Act and applicable law, shall be applied and distributed in accordance with Section 6.8 hereof. In the event it becomes necessary or desirable, in the sole discretion of the Manager, to make a distribution of the Company property in kind, then such property shall be transferred and conveyed to the Members, or their assigns, so as to vest in each of them as a tenant-in-common, a percentage interest in the whole of said property equal to the percentage interest he or she would have received had the aforesaid property not been distributed in kind.

12.3          Time . A reasonable time, as determined by the Manager, from the date of an event of dissolution, shall be allowed for the orderly liquidation of the assets of the Company and the discharge of Company liabilities.

12.4          Liquidating Trustee. In the event of a dissolution of the Company, liquidation of the assets of the Company and discharge of its liabilities may, in the sole discretion of the Manager, be carried out by a liquidation trustee or receiver, who shall be selected by the Manager and shall be a bank or trust company or other person or firm having experience in managing, liquidating or otherwise handling property of the type then owned by the Company. This trustee (the “ Liquidating Trustee ”) shall not be personally liable for the debts of the Company but otherwise shall have such obligations and authorities as are given the Manager pursuant to this Agreement.

12.5          Statement of Termination . The Members shall be furnished by the Manager with a statement prepared, at Company expense, by the Accountant that shall set forth the assets and liabilities of the Company as of the date of complete liquidation and distribution as herein provided. Such statement shall also schedule the receipts and disbursements made with respect to the termination hereunder.

ARTICLE 13

ACCOUNTING AND REPORTS

13.1          Books and Records .

(a)          The Manager shall maintain full and accurate books of the Company, showing all receipts and expenditures, assets and liabilities, profits and losses, and all other records necessary for recording the Company’s business and affairs, including those sufficient to record the allocations and distributions provided for in Article 6 and Section 12.2 hereof. Such books and records shall be open for the inspection and examination by any Member, in person or by its duly authorized representative, at reasonable times at the offices of the Company upon prior written notice.

(b)          The Company books and records shall be kept in accordance with Generally Accepted Accounting Principles and any change in method shall be made by the Manager in its sole discretion.

13.2          Fiscal Year . The annual accounting period of the Company shall be the calendar year. The cutoff date of the accounting period shall be the last day of the calendar month.

13.3          Reports . The Company shall create an internally prepared annual statement showing the revenue and expenses of the Company, the balance sheet thereof and a statement of change in cash flow at the end of each Fiscal Year (the “ Annual Financial Statements ”). The Annual Financial Statements shall be mailed to each Member within fifteen (15) days following the end of the Fiscal Year for which such statements were prepared. Each Member’s Schedule K-1 will be mailed to the Member no later than thirty (30) days after the end of each Fiscal Year of the Company. The Company shall transmit all reports received under Section 11.03 of the Company Subsidiary LLC Agreement to the Class A Members immediately upon the Company’s receipt of such reports.

13.4          Bank Accounts . All funds of the Company shall be deposited in its name in such checking and savings accounts or time certificates as shall be designated by the Manager. Withdrawals therefrom shall be made upon such signature(s) as the Manager may designate.

13.5          Tax Returns . In addition to the Annual Financial Statements, the Manager shall, at Company expense, cause all tax returns for the Company to be timely prepared and filed with the appropriate authorities.

13.6          Tax Matters . SOIF III is hereby charged with the responsibility for all tax-related matters affecting the Company and is hereby designated as the “ Tax Matters Representative ”. It shall, within ten (10) days of receipt thereof, forward to each Member a photocopy of any relevant correspondence relating to the Company received from any Federal and/or State taxing authority (the “ Taxing Authority ”). It shall, within five (5) days thereof, advise each Member in writing of the substance of any material conversation held with any representative of a Taxing Authority. Any reasonable costs incurred by the Tax Matters Representative for retaining accountants and/or attorneys on behalf of the Company in connection with any Taxing Authority audit of the Company shall be expenses of the Company. The Tax Matters Representative shall, if applicable, comply with all requirements concerning the registration of tax shelters pursuant to Section 6111 of the IRC and the Treasury Regulations thereunder, and Form 8264 (or any successor thereto), including, but not limited to, registering the Company with the Taxing Authority and furnishing to each Member any identification numbers assigned by any Taxing Authority to the Company.

ARTICLE 14

SPECIAL LIMITED POWER OF ATTORNEY

14.1          Grant of Power .

(a)          Each Member does hereby irrevocably constitute and appoint the Manager as its true and lawful attorney, in its name, place and stead, to make, execute, sign, acknowledge, swear to (where appropriate), and file or record:

(i)          any articles, certificates, documents or instruments (including this Agreement) that may be required to be filed by the Company under applicable laws of any jurisdiction(s) to the extent that the Manager deems such filing(s) to be necessary or required;

(ii)         any and all amendments or modifications of the instruments described in subparagraph (a)(i) above; provided, that such amendments or modifications are necessary to effect the terms and intent of this Agreement, including, for example, but not limited to, the substitution of a Member, and to evidence or effect the consent, approval or acceptance of the Member to any action approved by the Member where this Agreement provides that such consent, approval or acceptance by the Member binds the Member with regard thereto;

(iii)        all certificates and other instruments that may be required to effect the dissolution and termination of the Company pursuant to the terms of this Agreement; and

(iv)        any and all consents or other instruments deemed necessary or desirable by the Manager for the admission of the Member and Substitute Members, pursuant to the terms of this Agreement;

(b)          It is expressly understood and intended by the Members that the grant of the foregoing powers of attorney are coupled with an interest and are irrevocable.

(c)          The foregoing powers of attorney are durable powers of attorney and shall not be affected by the disability, incompetency, and/or incapacity of the principal. Furthermore, the foregoing powers of attorney shall survive the death of any Member who shall die during the term of the Company.

(d)          The foregoing powers of attorney may be exercised by the Manager acting for any Member individually.

14.2          Limitation on Powers . To the fullest extent permitted by law, the foregoing power of attorney shall in no way cause a Member to be liable in any manner for the acts or omissions of the Manager.

14.3          Substitute Members . Each Substitute Member, upon admission to the Company, shall be deemed to have appointed, ratified and reaffirmed the appointment of the Manager as its true and lawful attorney for the purposes and on the same terms as set forth in Article 14 hereof.

ARTICLE 15

AMENDMENTS

(a)          Except as otherwise provided herein, this Agreement may only be amended by the unanimous written consent of all Members.

(b)          This Agreement shall be amended by the Manager without the consent of the Members whenever:

(i)          to reflect the transfer of Units, the admission of a Member, the change in any Unit, the change in the Membership Interests, or any other alteration in the matters set forth on Schedule I ; and

(ii)         it is necessary or appropriate, in the opinion of counsel to Company, to satisfy the requirements of the IRC, Treasury Regulations thereunder or administrative guidelines or interpretations relating thereto, to maintain the status of partnership taxation or to satisfy the requirements of federal and/or state securities laws.

(c)          Notwithstanding anything herein to the contrary, no amendment shall be made to this Agreement that, in the opinion of counsel for the Company:

(i)          is in violation of the provisions of applicable law; or

(ii)         would result in the Company being treated as other than a partnership for federal income tax purposes.

ARTICLE 16

INVESTMENT REPRESENTATION

Each of the Members, by executing this Agreement, represents and warrants to the Company and the Manager as follows:

(a)          Each Member or individual executing this Agreement on behalf of an Entity that is a Member hereby represents and warrants that such Member has acquired such Member’s Membership Interest in the Company for investment solely for such Member’s own account with the intention of holding such Membership Interest for investment, without any intention of participating directly or indirectly in any distribution of any portion of such Membership Interest, including an economic interest, and without the financial participation of any other Person in acquiring such Membership Interest in the Company.

(b)          Each Member hereby acknowledges that such Member is aware that such Member’s Membership Interest in the Company has not been registered (i) under the Securities Act of 1933, as amended (the “ Securities Act ”), (ii) under applicable Delaware securities laws or (iii) under any other state securities laws. Each Member further understands and acknowledges that his representations and warranties contained in this Section are being relied upon by the Company as the basis for the exemption of the Members’ Membership Interests in the Company from the registration requirements of the Securities Act and from the registration requirements of applicable state securities laws. Each Member further acknowledges that the Company will not and has no obligation to recognize any sale, transfer, or assignment of all or any part of such Member’s Membership Interest, including an economic interest in the Company to any Person unless and until the provisions of this Agreement hereof have been fully satisfied.

(c)          Each Member hereby acknowledges that prior to its execution of this Agreement, such Member received a copy of this Agreement and that such Member has examined this Agreement or caused this Agreement to be examined by such Member’s representative or attorney. Each Member hereby further acknowledges that such Member or such Member’s representative or attorney is familiar with this Agreement and with the Company’s business plans. Each Member acknowledges that such Member or such Member’s representative or attorney has made such inquiries and requested, received, and reviewed any additional documents necessary for such Member to make an informed investment decision and that such Member does not desire any further information or data relating to the Company. Each Member hereby acknowledges that such Member understands that the purchase of such Member’s Membership Interest in the Company is a speculative investment involving a high degree of risk and hereby represents that such Member has a net worth sufficient to bear the economic risk of such Member’s investment in the Company and to justify such Member’s investing in a highly speculative venture of this type.

ARTICLE 17

MISCELLANEOUS

17.1          Meetings . Meetings of the Company may be called by the Manager and shall be called by the Manager upon the written request of the Members holding at least twenty-five (25%) percent of the Membership Interests of the Company.

17.2          Members’ Action by Consent in Lieu of Meeting. Any action required by law to be taken at any annual or special meeting of Members, or any action which may be taken at a meeting of the Members, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken is signed by the Members having not less than the Membership Interests that would be necessary to authorize such action at a meeting at which all Members entitled to vote thereon were present and voted. Such consents shall have the same force and effect as the unanimous consent of the Members at a meeting duly held. Such consents shall be filed with the minutes of the meetings of the Members.

17.3          Other Ventures . Notwithstanding any duty otherwise existing at law or in equity, except as otherwise provided in this Agreement to the contrary, any of the Members, the Manager, BRG’s direct and indirect parents, SOIF II’s members, SOIF III’s members, BGF’s members, BGF II’s members or any of their Affiliates may engage in or possess an interest in other profit-seeking or business ventures of every nature and description, independently or with others, including those that may compete with the Company without any obligation to share any profits therefrom with the Company or the Members. The doctrine of corporate opportunity or any analogous doctrine, shall not apply to any Member, Manager, member of a Member or Manager, direct or indirect parent of BRG, member of SOIF II, SOIF III, BGF or BGF II, or any of their Affiliates. No Member, Manager, member of a Member or Manager, direct or indirect parent of BRG, member of SOIF II, SOIF III, BGF or BGF II, or any of their Affiliates who acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Company shall have any duty to communicate or offer such opportunity to the Company, and such Member, Manager, member of a Member or Manager, direct or indirect parent of BRG, member of SOIF II, SOIF III, BGF or BGF II, or Affiliate shall not be liable to the Company or to the other Members for breach of any fiduciary or other duty by reason of the fact that such Member, Manager, member of a Member or Manager, direct or indirect parent of BRG, member of SOIF II, SOIF III, BGF or BGF II, or Affiliate pursues or acquires for, or directs such opportunity to, another Person or does not communicate such opportunity or information to the Company. Neither the Company nor any Member shall have any rights or obligations by virtue of this Agreement or the relationship created hereby in or to such independent ventures or the income or profits or losses derived therefrom, and the pursuit of such ventures, even if competitive with the activities of the Company, shall not be deemed wrongful or improper.

Nothing in this Agreement shall be deemed to preclude any Member, Manager, member of a Member or Manager, direct or indirect parent of BRG, member of SOIF II, SOIF III, BGF or BGF II, or any Affiliate of any Member, Manager, member of a Member or Manager, direct or indirect parent of BRG, or member of SOIF II, SOIF III, BGF or BGF II, from conducting its business in any manner it may elect, including, without limitation, entering into any transaction with any Person affiliated in any way with such Person, provided that no such conduct of its business shall result in a breach by such Member or Manager of its obligations under this Agreement.

17.4          Exculpation and Indemnification .

(a)          To the fullest extent permitted by applicable law, neither the Members, the Manager, SOIF III, BRG, direct or indirect parent of BRG, the members of SOIF III, nor any officer, manager, director, employee, agent or Affiliate of the foregoing (collectively, the “ Covered Persons ”) shall be liable to the Company or any other Person who is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

(b)          To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided , however , that any indemnity under this Section by the Company shall be provided out of and to the extent of Company assets only, and the Members and the Manager shall not have personal liability on account thereof; and provided , further , that so long as any Obligations are outstanding, no indemnity payment from funds of the Company (as distinct from funds from other sources, such as insurance) of any indemnity under this Section shall be payable from amounts allocable to any other Person pursuant to the Basic Documents.

(c)          To the fullest extent permitted by applicable law, expenses (including reasonable legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section.

(d)          A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Members might properly be paid.

(e)          To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or any other Member, any Covered Person acting under this Agreement or otherwise shall not be liable to the Company or any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Person to the Company or its members otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Covered Person.

(f)          Any liability of the Company shall be satisfied out of the income or assets of the Company (including the proceeds of any insurance that the Company may recover) and no Member shall have any liability with respect thereto.

(g)          Notwithstanding the foregoing provisions, any indemnification set forth herein shall be fully subordinate to the Loan, and to the fullest extent permitted by law, shall not constitute a claim against the Company in the event that the Company’s Cash Flow From Operations (including any additional capital contributions by the Members, if any) are insufficient to pay all of its monthly obligations to creditors.

(h)          The foregoing provisions of this Section shall survive any termination of this Agreement.

17.5          Notices . All notices under this Agreement shall be in writing, duly signed by the party giving such notice, and transmitted by registered or certified mail (and such notice shall be deemed delivered three (3) business days after deposit in the mail) or by a national overnight delivery service, such as Federal Express (and such notice will be deemed delivered the next business day after it is deposited with such delivery service) addressed as follows:

(a)          If given to the Company:

BR Cheshire Member, LLC

c/o Bluerock Real Estate, L.L.C.

712 Fifth Avenue, 9 ^th Floor

New York, NY 10019

(b)          If given to the Manager:

c/o Bluerock Real Estate, L.L.C.

New York, NY 10019

(c)          If given to any Member, at the address set forth on Schedule I , or at such other address as any Member may hereafter designate by notice to the Company and all other Members.

Any party to this Agreement may change the address to which notices are to be sent in accordance with this Section by notifying the other parties hereto in writing of such new address.

17.6          Captions . Article and Section titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.

17.7          Identification . Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and vice versa; and the masculine gender shall include the feminine and neuter genders, and vice versa. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision.

17.8          Counterparts . This Agreement may be executed in any number of counterparts and all of such counterparts shall be deemed an original and for all purposes constitute one agreement binding on the parties hereto, notwithstanding that all parties are not signatory to the same counterpart.

17.9          Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflict of laws.

17.10          Members’ Competence . Anything in this Agreement to the contrary notwithstanding, no Member, or any Assignee of the Membership Interest thereof, shall be a person or organization prohibited by law from becoming such. Any assignment of an interest in the Company to any Person not meeting such standard shall be, to the fullest extent permitted by law, void and ineffectual and shall not bind the Company.

17.11          Binding Agreement . Except as otherwise provided herein to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their personal representatives, successors and assigns, and shall be enforceable in accordance with its terms.

17.12          Severability . If any provision of this Agreement shall be declared invalid or unenforceable, the remainder of this Agreement will continue in full force and effect so far as the intent of the parties can be carried out, and the parties further understand and agree that any non-waiveable provision of the Act shall supersede any provision of the Agreement.

17.13          Entire Agreement . This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.

17.14          Benefits of Agreement; No Third-Party Rights . None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditor of the Company or by any creditor of the Members. Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person (other than Covered Persons).

17.15          Member’s Rights .           In addition to all other rights and remedies that a Member may have at law and in equity, including, but not limited to, under the Act, a Member may bring any action against the Manager, another Member and/or the Company to enforce the terms and provisions of this Agreement, to obtain a judgment for damages for a breach of this Agreement, and/or to cause the Manager and/or a Member to perform its obligations under this Agreement.

17.16          Jurisdiction and Venue . Regardless of what venue would otherwise be permissive or required, the Members and Managers stipulate that all actions arising under or affecting this Agreement shall be brought in the appropriate city and/or county courts in the City of New York, State of New York (the “ State Courts ”) or the United States District Court for the Southern District of New York in the State of New York (the “ Federal Court ”), the Members and Managers agreeing that such forums are mutually convenient and bear a reasonable relationship to this Agreement.

17.17          Consent to Jurisdiction and Service of Process. The parties irrevocably submit to the jurisdiction of the State Courts and the Federal Court for the purpose of any suit, action, or other proceeding arising under or affecting this Agreement. In addition to all other proper forms of service of process, the Members and Managers hereby agree that service of process may be accomplished by providing such service in accordance with the notice provisions of Section 17.5.

17.18          Attorneys’ Fees . In any action or suit arising out of this Agreement, the prevailing party, as determined by the trier of fact, shall be entitled to recover from the other party its reasonable attorneys’ fees and costs incurred in such action or suit. Reasonable attorneys’ fees shall be based upon such fees actually incurred at the customary hourly rates of attorneys in the New York, New York area for the expertise required and shall not be based upon any statutory presumptions or rates.

17.19          Waiver of Right to Jury Trial . The Manager and Members do each hereby waive to the fullest extent of the law their right to a jury trial in regard to any matter, issue, dispute or other claim which arises out of this Agreement or the transactions contemplated by this Agreement. The Manager and each Member represent to one another that each has sought the advice of legal counsel in waiving its right to a jury trial and makes such waiver willingly and freely.

[SIGNATURES APPEAR ON THE IMMEDIATELY FOLLOWING PAGES]

COMPANY AND MANAGER SIGNATURES

The Company and the Manager, agreeing to be bound by the foregoing, execute this Agreement as of the 29th day of May, 2015.

MEMBER SIGNATURE

The undersigned Member, agreeing to be bound by the foregoing executes this Agreement as of the 29th day of May, 2015.

SCHEDULE I

Class A Member : BRG Cheshire, LLC

Class A Capital Commitment: $15,638,775 (inclusive of $7,037,449 for projected Class A Preferred Reserve)

Class A Initial Capital Contribution: $15,638,775 (inclusive of $7,037,449 funded into the Class A Preferred Reserve)*

*Represents 36 months’ worth of reserves to pay Current Class A Return and all scheduled capital commitments for the development period.

Exhibit 10.3

LIMITED LIABILITY COMPANY AGREEMENT
OF
CB OWNER, LLC

This Limited Liability Company Agreement (together with the schedules attached hereto, this “ Agreement ”) of CB OWNER, LLC, a Delaware limited liability company (the “ Company ”), is entered into by BR/CDP CB VENTURE, LLC, a Delaware limited liability company, as the sole member (the “ Member ”). Capitalized terms used and not otherwise defined herein have the meanings set forth on Schedule A hereto.

The Member, by execution of this Agreement, hereby forms the Company as a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq .), as amended from time to time (the “ Act ”), and this Agreement, and the Member hereby agrees as follows:

The name of the limited liability company formed hereby is CB Owner, LLC.

The principal business office of the Company shall be located at 880 Glenwood Ave SE, Suite H, Atlanta, GA 30316 or such other location as may hereafter be determined by the Member.

The address of the registered office of the Company in the State of Delaware is c/o Paracorp Incorporated, 2140 S. Dupont Highway, Camden, DE 19934.

The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Paracorp Incorporated, 2140 S. Dupont Highway, Camden, DE 19934.

The mailing address of the Member is set forth on Schedule B attached hereto. The Member was admitted to the Company as a member of the Company upon its execution of a counterpart signature page to this Agreement.

Michael Rubinger 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. Michael Rubinger shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in Georgia and in any other jurisdiction in which the Company may wish to conduct business. Upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware and the filing of all applicable qualification documents in the State of Georgia, 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. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

The sole purpose to be conducted or promoted by the Company is to engage in the following activities: (a) to serve as trustee under that certain BR/CDP Cheshire Bridge Trust Agreement dated May 29, 2015 (the “Trust Agreement”); (b) to acquire, own, manage and operate the Property for the benefit of the Beneficiaries (as such term is defined in the Trust Agreement); (c) to enter into and perform its obligations under the Loan Documents; (d) to refinance the Property in connection with a permitted repayment of the Loan; and (e) to transact any lawful business permitted to be transacted by limited liability companies organized under the laws of the State of Delaware that is related or incidental to and necessary, convenient or advisable for the accomplishment of the above mentioned purposes.

The Company, and the Member on behalf of the Company, (a) shall have and exercise all powers necessary, convenient or incidental to accomplish its purposes as set forth in Section 7 and (b) shall have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.

The business and affairs of the Company shall be managed by or under the direction of the Member. 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. Subject to Section 7 , the Member has the authority to bind the Company.

(a)           Officers . The Company may have such officers, representatives or agents as are appointed from time to time by the Member (the “ Officers ”). The initial Officers are hereby designated by the Member as listed on Schedule C hereto. The additional or successor Officers shall be chosen by the Member and may consist of a President, a Secretary and a Treasurer. The Member may also choose one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any number of offices may be held by the same person. The Member may appoint such other Officers and agents as it shall deem necessary or advisable who shall hold their offices for such terms as shall be determined from time to time by the Member. The salaries of all Officers and agents of the Company shall be fixed by or in the manner prescribed by the Member. The Officers of the Company shall hold office until their successors are chosen and qualified. Any Officer may be removed at any time, with or without cause, by the Member. Any vacancy occurring in any office of the Company shall be filled by the Member.

(b)           Powers of the Officers . Notwithstanding anything else in this Agreement, the Officers shall have the authority to act on behalf of and bind the Company only to the extent that the Member approves such action in each particular instance. For the sake of clarity and without limiting the foregoing, the Officers shall not have the power and authority to take any action without the specific approval or consent of the Member to take such action.

(c)           President . The President shall be the chief executive officer of the Company, shall be responsible for the general and active management of the business of the Company and, subject to Section 10(b) , shall see that all specific orders and resolutions of the Member are carried into effect. When expressly authorized by the Member, the President or any other Officer authorized by the President or the Member shall execute all bonds, mortgages and other contracts, except where required or permitted by law or this Agreement to be otherwise signed and executed.

(d)           Vice President . In the absence of the President or in the event of the President’s inability to act, the Vice President, if any (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Member, or in the absence of any designation, then in the order of their election), shall perform the duties of the President expressly authorized by the Member, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. In accordance with Section 10(b) , the Vice Presidents, if any, shall perform such other duties and have such other powers as the Member may from time to time prescribe.

(e)           Secretary and Assistant Secretary . The Secretary shall be responsible for filing legal documents and maintaining records for the Company. The Secretary shall record all the proceedings of the meetings of the Company in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or shall cause to be given, notice of all meetings of the Member, if any, and, subject to Section 10(b) , shall perform such other duties as may be prescribed by the Member or the President, under whose supervision the Secretary shall serve. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Member (or if there be no such determination, then in order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Member may from time to time prescribe in accordance with Section 10(b) .

(f)           Treasurer and Assistant Treasurer . The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Member. The Treasurer shall disburse the funds of the Company as may be expressly ordered by the Member, taking proper vouchers for such disbursements, and shall render to the President and to the Member an account of all of the Treasurer’s transactions and of the financial condition of the Company. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Member (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Member may from time to time prescribe in accordance with Section 10(b) .

(g)           Officers as Agents . The Officers, to the extent their powers are vested in them by specific action of the Member not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business and the actions of the Officers taken in accordance with such powers shall bind the Company.

(h)           Duties of Officers . Except to the extent otherwise provided herein, each Officer shall have a fiduciary duty of loyalty and care similar to that of officers of business corporations organized under the General Corporation Law of the State of Delaware.

Except as otherwise expressly provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member of the Company.

The Member has contributed to the Company property listed on Schedule B attached hereto.

The Member is not required to make any additional capital contribution to the Company. However, the Member may make additional capital contributions to the Company at any time upon the written consent of such Member. To the extent that the Member makes an additional capital contribution to the Company, the Member shall revise Schedule B of this Agreement.

The Company’s profits and losses shall be allocated to the Member.

Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Member. 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 or, until the Loan is paid in full, any provision of the Loan Documents.

The Officers shall keep or cause to be kept complete and accurate books of account and records with respect to the Company’s business. The books of the Company shall at all times be maintained by the Officers. The Member and its duly authorized representatives shall have the right to examine the Company books, records and documents during normal business hours. The Company’s books of account shall be kept using the method of accounting determined by the Member. The Company’s independent auditor, if any, shall be an independent public accounting firm selected by the Member.

The Member and any Affiliate of the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others notwithstanding any provision to the contrary at law or in equity. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

(a)          Neither the Member nor any Officer, employee or agent of the Company nor any employee, representative, agent or Affiliate of the Member (collectively, the “ Covered Persons ”) shall, to the fullest extent permitted by law, be liable to the Company or any other Person that is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

(b)          To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided , however , that any indemnity under this Section 18 by the Company shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.

(c)          To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 18 .

(d)          A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

(e)          To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement or any approval or authorization granted by the Company or any other Covered Person. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person.

(f)          The foregoing provisions of this Section 18 shall survive any termination of this Agreement.

Subject to any transfer restrictions contained in the Loan Documents and the Trust Agreement, the Member may assign its limited liability company interest in the Company. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 19 , 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.

One or more additional members of the Company may be admitted to the Company with the written consent of the Member. Notwithstanding the foregoing, until the Loan is paid in full, the Company shall only have one member at any time.

(a)          The Company shall be dissolved, and its affairs shall be wound up upon the first to occur of the following: (i) 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 (ii) the entry of a decree of judicial dissolution of the Company 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, 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 (i) to continue the existence of the Company and (ii) to the admission of 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 or the Member in the Company.

(b)         Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member or any additional member shall not cause the Member or additional member, respectively, to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution.

(c)         In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets and property of the Company in an orderly manner), and the assets and property of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.

(d)         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.

Nothing in this Agreement shall be deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person.

Each provision of this Agreement shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.

This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.

This Agreement may be modified, altered, supplemented or amended pursuant to a written agreement executed and delivered by the Member.

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.

Any notices required to be delivered hereunder shall be in writing and personally delivered, mailed or sent by telecopy, electronic mail or other similar form of rapid transmission, and shall be deemed to have been duly given upon receipt (a) in the case of the Company, to the Company at its address in Section 2 , (b) in the case of the Member, to the Member at its address as listed on Schedule B attached hereto and (c) in the case of either of the foregoing, at such other address as may be designated by written notice to the other party.

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 on April 1, 2015.

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Limited Liability Company Agreement as of the 29th day of May, 2015.

SCHEDULE A

Definitions

When used in this Agreement, the following terms not otherwise defined herein have the following meanings:

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such Person.

“ Agreement ” means this Limited Liability Company Agreement of the Company, together with the schedules attached hereto, as amended, restated or supplemented or otherwise modified from time to time.

“ Bankruptcy ” means, 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 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.

“ Certificate of Formation ” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on April 1, 2015, as amended or amended and restated from time to time.

“ Company ” means CB Owner, LLC, a Delaware limited liability company.

“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise. “Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests.

“ Lender ” means U.S. Bank National Association, and its successors and assigns of the Loan.

“ Loan ” has the meaning assigned to that term in the Loan Agreement.

“ Loan Agreement ” means that certain Construction Loan Agreement dated as of May 29, 2015 by and between Lender and the Company, as amended, restated, supplemented or otherwise modified from time to time.

“ Loan Documents ” has the meaning assigned to that term in the Loan Agreement.

“ Member ” means BR/CDP CB Venture, LLC, a Delaware limited liability company, as the initial member of the Company, and includes any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions of this Agreement, each in its capacity as a member of the Company.

“ Officers ” means the officers, representatives or agents appointed from time to time by the Member pursuant to Section 10(a) .

“ Person ” means any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.

“ Property ” has the meaning assigned to that term in the Loan Agreement.

Definitions in this Agreement apply equally to both the singular and plural forms of the defined terms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, paragraph or subdivision. The Section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references not attributed to a particular document shall be references to such parts of this Agreement.

Exhibit 10.4

TENANCY IN COMMON AGREEMENT

THIS TENANCY IN COMMON AGREEMENT (the “Agreement”) is made as of this 29 ^th day of May, 2015 (the “Effective Date”) by and between the following:

Duke, Commander and BR CDP shall be known collectively as the "Co-Tenants."

RECITALS :

WHEREAS, the Co-Tenants have entered into that certain BR/CDP Cheshire Bridge Trust Agreement (the “Trust Agreement”) dated as of May 29, 2015, creating the BR CDP Cheshire Bridge Trust (the “Trust”) and have pursuant thereto named CB Owner, LLC as trustee (the “Trustee”);

WHEREAS, the Co-Tenants are the sole Beneficiaries under the Trust;

WHEREAS, the Co-Tenants intend to purchase and hold certain real property located in Fulton County, Georgia as described in Exhibit “A” attached hereto and made a part hereof by this reference (the “Property”), which Property shall be held by the Trustee as an investment for the benefit of the Co-Tenants as set forth in the Trust Agreement;

WHEREAS, the Co-Tenants have appointed BR CDP as manager to administer their affairs and enforce their rights and obligations under this Agreement; and

WHEREAS, the Co-Tenants desire to enter into this Agreement to govern their rights and obligations concerning the Property.

AGREEMENT :

NOW THEREFORE, in consideration of the mutual promises of the Co-Tenants hereto, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Co-Tenants hereby agree as follows:

1.           Recitals . The above recitals are true and correct and are incorporated herein by this reference.

2.           Purposes . The Co-Tenants intend to take and hold the Property for investment purposes only, title to which shall be held by the Trustee for the benefit of the Co-Tenants pursuant to the terms of the Trust Agreement.

3.           Transfer and Assignment . Subject to Section 11A, the Co-Tenants must unanimously approve any sale or exchange of the Property; provided, however each of the Co-Tenants reserve the right to transfer or assign its own interest in the Property subject to the rights of the other Co-Tenants set forth in Section 15 E.

4.           Partition . Subject to any restrictions imposed by any Lender as set forth in any Loan Documents, each Co-Tenant shall have the right to partition the Property; provided further, that each Co-Tenant acknowledges a partition may result in a forced sale of the Property and, to seek to avoid the inequity of a forced sale, each Co-Tenant agrees that as a condition precedent to seeking partition that it shall first make a written offer to sell its interest in the Property to the other Co-Tenants at fair market value.

5.           Election out of IRC Subchapter K . The Co-Tenants elect pursuant to IRC §761(a) not to be treated as a partnership and to be excluded from Subchapter K of the Code.

6.           Appointment of BR CDP to Administer . The Co-Tenants hereby appoint BR CDP to manage and implement the provisions of this Agreement and oversee the development of the Property, who, unless otherwise agreed to by the Beneficiaries in writing, shall serve for a one (1) year term, and at the end of said one (1) year term, if no other replacement manager has been appointed, shall continue to serve as manager until another manager is appointed.

7.           Cash Contributions .

A.            Initial Cash Contribution . BR CDP, Duke and Commander agree to make an initial cash contribution to acquire the Property ("Initial Cash Contribution"), as shown on Exhibit “B” . BR CDP, as manager, shall notify Duke and Commander in writing of the timing for the Initial Cash Contribution to be delivered setting forth: (i) the total amount required; and (ii) each Co-Tenant’s Pro Rata Share thereof (based on the percentages set forth above). Each Co-Tenant shall deliver to said Co-Tenant’s Pro Rata Share as set forth in BR CDP’s written notice within one (1) day from the date of said notice. The Co-Tenants agree that all pre-development costs, earnest money deposits, due diligence costs, professional fees and other pursuit costs previously incurred by BR CDP shall be trued up by Duke and Commander contributing their Pro Rata Share thereof.

B.            Additional Cash Contributions . If, after expenditure in full of the Initial Cash Contribution, additional cash contributions beyond those funds contemplated in Exhibit B are required in the reasonable discretion of BR CDP to accomplish the intent of this Agreement (each, an “Additional Cash Contribution”), then BR CDP may make a request in writing (a "Cash Call Notice") for said Additional Cash Contribution (a “Cash Call”). Each Cash Call Notice shall set forth: (i) the total amount of the Additional Cash Contribution; (ii) each Co-Tenant’s Pro Rata Share thereof; and (iii) the specific proposed use of the funds requested. Each Co-Tenant shall deliver to BR CDP said Co-Tenant’s Pro Rata Share of the Additional Cash Contribution as set forth in the Cash Call Notice within fourteen (14) days from the date of said notice. The terms “Initial Cash Contribution” and “Additional Cash Contribution” may be hereinafter referred to together as “Cash Contributions” where appropriate.

C.            Interest on Cash Contributions . Except as specifically provided in this Agreement, no interest shall be paid to any Co-Tenant with respect to any Cash Contributions.

8.           Failure to Make Required Cash Contributions .

A.           If any Co-Tenant fails to honor an appropriate request to fund its Pro-Rata Share of its Initial Cash Contributions, its Pro Rata Share of the Trust shall be reduced to zero percent (0.00%) and it shall have no further rights or obligations under this Agreement or in the Property or the Trust. If any Co-Tenant fails to honor an appropriate request to fund its Pro Rata Share of any Additional Cash Contribution requested in any Cash Call Notice in accordance with the terms hereof, such failure shall be a default hereunder and the other Co-Tenants may, in their sole discretion, fund the shortfall and elect to treat these funds as a Default Loan pursuant to Section 8(A)(i) below.

(i)           Loan . Any non-defaulting Co-Tenant may advance the Defaulting Co-Tenant’s share of the shortfall described in the preceding paragraph on behalf of the defaulting Co-Tenant (“Defaulting Co-Tenant”) and such funds shall be treated as a loan to the Defaulting Co-Tenant from the advancing Co-Tenant ("Default Loan"), and such Default Loan shall bear interest at a rate equal to ten percent (10%) per annum until repaid. If one or more Co-Tenants (the "Lending Co-Tenants") make a Default Loan to a Defaulting Co-Tenant, then all subsequent cash distributions from the Co-Tenancy that would otherwise be payable to the Defaulting Co-Tenant shall be paid to the Lending Co-Tenants until the Default Loan(s) is paid in full, including all interest due thereon.

9.           Reserved .

10.          Borrowing Additional Cash Requirements . Notwithstanding anything hereinabove to the contrary, in the event that BR CDP shall determine at any time (except as set forth in Section 7.B., in which event, Section 7.B. shall control) that there exists a need for additional cash beyond the Initial Cash Contribution, BR CDP shall use commercially reasonable efforts to raise such additional cash through a loan from a third party private or institutional lender prior to initiating a Cash Call Notice unless the Co-Tenants shall unanimously direct BR CDP otherwise in writing. The terms of any such loan or loans, including the interest rate, payment terms and security therefore, shall be subject to the prior unanimous approval of the Co-Tenants, which approval shall not be unreasonably withheld.

11.          Decisions of the Co-Tenants .

A.           Subject to the terms of any other agreement entered into by the Co-Tenants, and/or the Trustee, the Trustee shall have the absolute authority and right to manage, develop, operate and sell the Property; provided, however, the unanimous written approval of the Co-Tenants shall be required to approve the following (for avoidance of doubt, in the event of any conflict between the terms of this Section 11A and Section 8 or 10 of this Agreement, Section 8 or 10, as applicable, shall control):

(i)          Any sale, transfer, lease, deed restriction, or grant of easement of/on any portion of the Property.

(ii)         Any loan or other debt secured by the Property or the income therefrom, or upon which any of the Co-Tenants are or may be personally liable.

(iii)        Any Cash Call Notice for Additional Cash Contributions.

(iv)        All Budgets.

(v)         Such other acts or decisions reserved to the Co-Tenants as set forth in the Development Agreement.

B.           In no event shall any person dealing with BR CDP be obligated to determine BR CDP’s authority to make any undertaking in connection with the Property, or be obligated to determine any fact or circumstance bearing upon the existence of BR CDP’s authority, or be obligated to see that the terms of this Agreement have been complied with, or be obligated to inquire into the necessity or expediency of any act or action of BR CDP. Every contract, agreement, lease or other instrument or document executed by BR CDP with respect to the affairs of the Property shall be conclusive evidence in favor of any and every person relying thereon or claiming thereunder that such instrument or document was duly executed in accordance with the terms and provisions of this Agreement and is binding upon the Property and all Co-Tenants hereof, and that BR CDP was duly authorized and empowered to execute and deliver any and every such instrument or document for and on behalf of the Property.

12.          Distribution of Net Cash from Operations, Sales or Refinancings . Subject to any applicable restrictions in any loan document created with respect to the Property, Net Cash from Operations and Net Cash from Sales or Refinancings shall be distributed to the Co-Tenants, in the following order and priority:

A.           First, to repay any Default Loan to the Lending Co-Tenant(s);

B.           Second, to repay any loan (excluding a Default Loan made on behalf of a Defaulting Co-Tenant pursuant to Section 8 above) approved by BR CDP and made by any Co-Tenant for the benefit of the Property or in furtherance of the ownership or operation thereof. Payments to the Co-Tenants to repay loans shall be made, pari passu, in proportion to each Co-Tenant’s share of the total of such loans;

C.           Third, to the Co-Tenants until they have been repaid in full their Additional Cash Contributions. Payment to the Co-Tenants shall be pari passu, and made pro-rata in accordance with each Co-Tenant’s percentage share of all such Additional Cash Contributions;

D.           Fourth, to the Co-Tenants until they have been repaid in full their Initial Cash Contributions. Payment to the Co-Tenants shall be made in proportion to their Pro Rata Shares; and;

E.           Fifth, to the Co-Tenants, in proportion to their Pro Rata Shares.

13.          Right to Vote .           Whenever this Agreement provides that the Co-Tenants shall be entitled to vote upon a matter, each Co-Tenant shall be entitled to vote in proportion to its Pro Rata Share.

14.          Bank Accounts . The funds of the Co-Tenancy shall be deposited in such separate Co- Tenancy bank account or accounts in such bank or banks as shall be determined by the Trustee. Any Co-Tenant shall be entitled to receive copies of monthly bank statements from all accounts maintained for the benefit of the Co-Tenants.

15.          Miscellaneous Provisions .

A.            Notice .

(i)           Delivery Method . Any notice, election, or other communication required or permitted hereunder shall be delivered in writing to the address set forth on the first page of this Agreement and shall be either: (a) delivered in person to the Co-Tenants, (b) sent by same day or overnight courier service, (c) via facsimile with next business day delivery by one of the methods set forth herein, or (d) sent by certified or registered United States mail, return receipt requested, postage and charges prepaid, to the Co-Tenants at the addresses referenced herein.

(ii)          Effective Date . Any notice, election, or other communication delivered or mailed as aforesaid ("Notice") shall, (a) if delivered in person, be effective upon date of delivery; (b) if delivered by same day or overnight delivery service, be effective on the date of delivery to such address or addresses regardless if accepted; (c) if delivered by facsimile transmission, be effective on the date the same was delivered if received at the recipient’s facsimile machine prior to 5:00 p.m. EST/EDT, on a business day, or on the next business day if received at the recipient’s facsimile machine on a non-business day or after 5:00 p.m. EST/EDT on a business day; and (d) if delivered by mail, be effective upon the earlier of the date of actual receipt, or five (5) business days after deposit with the U.S. Postal Service regardless if actually received.

(iii)         Change of Address . Each party hereto may change its address and addresses for notice, election and other communication from time to time by notifying the other parties hereto of the new address in the manner provided for giving notice herein.

B.            Applicable Law . It is the intention of the Co-Tenants that all questions with respect to the construction, enforcement and interpretation of this Agreement and the rights and liabilities of the Co-Tenants shall be determined in accordance with the laws of the State of Georgia, without regard to principles of conflicts of laws.

C.            Separability . This Agreement is intended to be performed in accordance with and, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of this Agreement or the application thereof to any person or circumstances shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.

D.            Binding Effect . This Agreement is binding upon, and inures to the benefit of, the Co-Tenants and their respective spouses, heirs, executors and administrators, personal and legal representatives, successors and assigns; provided, however, that no party to this Agreement shall be permitted to assign any or all of its rights or obligations under this Agreement, except as provided in Paragraph E below.

E.            Transfers; Assignments . No party, including all Co-Tenants and principal owners of the Co-Tenants, shall be permitted to assign any of its rights or obligations under this Agreement, without the prior written consent of BR CDP. Any assignment or attempted assignment of any of the rights or obligations under this Agreement without complying with this Paragraph E shall be void ab initio. Notwithstanding the foregoing, to the extent permitted under any Loan, interparty transfers of Co-Tenancy interests in the Property between Duke and Commander shall be permitted provided the ownership composition of Duke and Commander does not change from the ownership composition which existed as of the date of this Agreement. The Co-Tenants agree among themselves to cause Trustee to use commercially reasonable efforts when negotiating Loan Documents to provide for such interparty transfers under the Loan.

F.            Entire Agreement / Amendment / Waiver . Except as otherwise set forth herein or in any other agreement entered into by the Co-Tenants, this Agreement contains all of the agreements of the Co-Tenants. All prior or contemporaneous agreements or understandings, oral or written, are merged in this Agreement and shall not be effective for any purpose. No amendment of this Agreement or waiver of any provisions hereof shall be valid or binding on the parties hereto unless such amendment or waiver shall be in writing and signed by or on behalf of all the parties hereto.

G.            Counterparts . This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed to be an original copy, and all of which together shall constitute one agreement binding on all Co-Tenants, notwithstanding that all the Co-Tenants shall not have signed the same counterpart.

16.          Tenancy-in-Common Covenants. The Co-Tenants acknowledge and agree that they shall acquire, own and deal with the Property, subject to the terms of the Trust Agreement, as tenants-in-common pursuant to applicable law of the State of Georgia. The Co-Tenants are not partners, joint venturers or joint tenants with right of survivorship. No Co-Tenant has any right to act on behalf of the other Co-Tenants, except as expressly set forth in this Agreement. No Co-Tenant shall, by virtue of this Agreement, have any liability for any undertaking, act or omission of the other Co-Tenants, except as expressly set forth in this Agreement. No Co-Tenant shall cause or permit its Co-Tenant Interest to become subject to a lien or liens in favor of third parties, except for the security interest derivative of the Loan, and in the event such Co-Tenant Interest becomes subject to an involuntary lien, such affected Co-Tenant shall have such lien promptly discharged.

17.          Further Assurances . The Co-Tenants agree to execute and deliver to each other such additional agreements and documents to accommodate the reasonable requirements of future lenders.

18.          Definitions .

A.           "Code" means the Internal Revenue Code of 1986, as amended, and all regulations promulgated thereunder by the United States Department of the Treasury.

B.           "Lender" means any lender under any Loan.

C. "Loan" means any construction or development loan secured by the Property and Approved by the Co-Tenants under Section 11(A), and any other loan approved by the Co-Tenants under Section 11(A), and secured by the Property.

D.           "Loan Documents "means any and all documents evidencing the Loan and/or securing the Property with respect to the Loan, including, without limitation, any mortgage, note, guaranty, loan agreement and indemnity.

E.           "Net Cash From Operations" means the net cash proceeds from rents and other income (excluding Net Cash from Sales or Refinancings) (net of all operating expenses and payments required to lenders for secured debt of the Co-Tenancy), less any portion thereof used to establish reserves, all as determined by BR CDP.

F.           "Net Cash From Sales or Refinancings" means the net cash proceeds from all sales, other dispositions, and refinancings of all or any portion of the Property (net of all expenses of sale, disposition fees payable and payments required to lenders for secured debt of the Co-Tenancy), less any portion thereof used to establish reserves, all as determined by BR CDP.

G.           "Pro Rata Share" means, with respect to any Co-Tenant, the percentage interest set for such Co-Tenant in the Preamble on page 1 hereof, as adjusted from time to time pursuant to the terms hereof.

(Signatures on following page)

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

EXHIBIT “A”

Legal Description

All that tract of land lying or being Land Lot 6, 17th District, Fulton County and the City of Atlanta, Georgia, and being more particularly described as follows:

BEGINNING at a 1/2 inch re-bar found at the intersection of the southerly right of way of Interstate 85, a variable width right of way, and the westerly right of way of Cheshire Bridge Road, also a variable width right of way;

THEN leaving the right of way of Interstate 85, proceed the following courses along the said westerly right of way of Cheshire Bridge Road:

South 55 degrees 38 minutes 44 seconds East for 30.92 feet to a 1/2 inch re-bar found;

THEN South 06 degrees 51 minutes 23 seconds East for 248.74 feet to a nail found;

THEN South 28 degrees 07 minutes 38 seconds East for 42.38 feet to a 1/2 inch re-bar found;

THEN South 67 degrees 28 minutes 12 seconds West for 145.43 feet to a 1/2 inch re-bar found;

THEN South 00 degrees 42 minutes 52 seconds West for 123.24 feet to a 1/2 inch re-bar found;

THEN North 88 degrees 37 minutes 53 seconds West for 43.35 feet to a 1/2 inch re-bar found;

THEN South 09 degrees 34 minutes 54 seconds East for 86.90 feet to a 1/2 inch re-bar found;

THEN North 89 degrees 25 minutes 02 seconds West for 172.15 feet to a 1/2 inch open top pipe found;

THEN North 25 degrees 59 minutes 36 seconds West for 95.01 feet to a point;

THEN North 26 degrees 42 minutes 06 seconds West for 470.00 feet to a point on the southerly variable right of way of Interstate 85;

THEN continue the following courses along said southerly right of way of Interstate 85;

North 82 degrees 57 minutes 58 seconds East for 105.01 feet to a 1/2 inch re-bar found;

THEN North 79 degrees 50 minutes 07 seconds East for 257.68 feet to a point;

THEN North 89 degrees 59 minutes 21 seconds East for 156.66 feet to a 1/2 inch re-bar found at the POINT OF BEGINNING.

Together with and subject to covenants, easements, and restrictions of record.

Said property contains 4.877 acres more or less.

Exhibit 10.5

TIC MANAGEMENT AGREEMENT

THIS TIC MANAGEMENT AGREEMENT (the “Agreement”) is made as of this 29 ^th day of May, 2015 (the “Effective Date”) by and between the following:

Duke, Commander and BR CDP shall be known collectively as the “Co-Tenants.”

WHEREAS, the Co-Tenants have entered into: (i) that certain Tenancy-In-Common Agreement, dated of even date herewith (“TIC Agreement”), and (ii) that certain BR/CDP Cheshire Bridge Trust Agreement (the “Trust Agreement”) dated as of May 29, 2015, creating the BR CDP Cheshire Bridge Trust (the “Trust”) and have pursuant thereto named CB Owner, LLC as trustee (the “Trustee”);

WHEREAS, the Co-Tenants are the sole Beneficiaries under the Trust;

WHEREAS, the Co-Tenants intend to purchase and hold certain real property located in Fulton County, Georgia as described in Exhibit “A” attached hereto and made a part hereof by this reference (the “Property”), which Property shall be held by the Trustee as an investment for the benefit of the Co-Tenants as set forth in the Trust Agreement;

WHEREAS, pursuant to the TIC Agreement, the Co-Tenants intend to enter into a Development Agreement with CDP Developer I, LLC, a Georgia limited liability company (“Catalyst,” and together with its successors and assigns, as the “Developer”) in substantially the form attached hereto as Exhibit “B” ;

WHEREAS, the Co-Tenants desire to enter into this Agreement to amend and supersede certain terms and conditions set forth in the TIC Agreement, and Duke and Commander shall hereby subordinate and waive certain of their rights under the TIC Agreement as provided herein;

NOW THEREFORE, In consideration of the mutual promises of the Co-Tenants hereto, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Co-Tenants hereby agree as follows:

1.           Recitals . The above recitals are true and correct and are incorporated herein by this reference. For so long as BR CDP, or any successor in interest to BR CDP’s Co-Tenancy interest, shall have any interest in the Property, the terms and conditions of this Agreement shall be effective. In the event Duke and/or Commander acquire one hundred percent (100%) of the Co-Tenancy interests of BR CDP, then said entities may, at their election, terminate this Agreement.

2.           Defined Terms . Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to said terms in the TIC Agreement.

3.           Management . Notwithstanding anything contained to the contrary herein, in the TIC Agreement, in the Trust Agreement or in any other agreement entered into by all of the Co-Tenants, the Co-Tenants hereby grant to BR CDP the full, sole and exclusive authority (i.e., without the approval, vote or consent of Duke and/or Commander) to make, decide or cause the Trustee to make, decide or implement any and/or all decisions affecting the Trustee, the Co-Tenants, the Property, and/or arising under the TIC Agreement or the Development Agreement, including, without limitation, those decisions set forth in Section 11A of the TIC Agreement, which such decisions include, without limitation, the following:

4.           Tax Treatment . In no event shall BR CDP, its principals, members, attorneys or affiliates (collectively, the “BR CDP Indemnified Parties”) have any liability to Duke and/or Commander with regard to any determination or ruling by the Internal Revenue Service that results in the organizational structure of the tenancy-in-common created by the TIC Agreement, as modified, amended, expanded or otherwise affected by this Agreement, the Development Agreement and/or the Trust Agreement, to be characterized as anything other than a tenancy-in-common for tax purposes (“Characterization Issues”), and each of Duke and Commander hereby agrees to indemnify the BR CDP Indemnified Parties against any and all attorney’s fees and costs, claims, losses or damages associated with any proceeding or hearing instituted by the Internal Revenue Service in connection with the Characterization Issues.

5.           Buy/Sell; Drag Along . BR CDP, Duke and Commander each acknowledge and agree that BR CDP shall acquire the Co-Tenancy interests of Duke and Commander in the event BR JV Member (as hereinafter defined) exercises any so-called “buy/sell” rights or similar rights against CDP JV Member (as hereinafter defined) in that certain Operating Agreement for BR CDP, by and between BR Cheshire Member, LLC, a Delaware limited liability company (“BR JV Member”) and CB Developer, LLC, a Georgia limited liability company (“CDP JV Member”) dated on or about the date hereof (“BR CDP JV Agreement”). For avoidance of doubt, the intent of the foregoing is to effect a “drag along” so that all Co-Tenancy and ownership interests of Duke and/or Commander shall be acquired by BR JV Member in the event BR JV Member acquires the interests of CDP JV Member in BR CDP pursuant to the “buy/sell” rights or put rights established under the BR CDP JV Agreement, including, without limitation, Sections 12.06 and 12.09 thereof. The terms and conditions, including, without limitation, terms pertaining to price and timing, governing the method by which the BR JV Member shall acquire the interests of Duke and Commander shall be as set forth in the BR CDP JV Agreement, a copy of which Duke and Commander acknowledge has been provided to them. For the avoidance of doubt, not only, if applicable, shall BR JV Member acquire the Duke and Commander Co-Tenancy interests under such circumstances, but Duke and Commander expressly acknowledge and agree that they are required to, and shall, convey their Co-Tenancy interests to BR JV Member in such circumstances.

6.           Waiver Regarding Right of Partition, Sale, Refinancing and Exchange . Notwithstanding Section 4 of the TIC Agreement, each of Duke and Commander hereby fully and irrevocably waive their right to partition the Property and/or to vote on any sale, refinancing or exchange of the Property.

7.           Developer . The Co-Tenants hereby approve the Development Agreement. The Co-Tenants hereby agree that Developer will be paid a Development Fee as set forth in the Development Agreement together with such other fees as are set forth in the Development Agreement. Notwithstanding the provisions of Section 11 of the TIC Agreement, and in addition to any rights BR CDP has under the TIC Agreement, BR CDP shall have the exclusive right and authority to unilaterally declare a “default” or “Event of Default” under the Development Agreement and to exercise, in the name and on behalf of the Co-Tenants and the Owner (as such term is defined in the Development Agreement), any right of termination contained therein as a result of such default or Event of Default (after the expiration of any applicable cure period). BR CDP shall have the right, but not the obligation, to (a) replace Catalyst Developer I, LLC (“Catalyst”) and/or Trustee with a new Developer and a new Trustee reasonably qualified to complete the Project (as such term is defined in the Development Agreement); and (b) take such other actions as BR CDP deems, in its sole but reasonable discretion as necessary or appropriate for the benefit of the Co-Tenants to protect the Property and/or to complete the Project. Notwithstanding the foregoing, as a condition precedent to removing or replacing Catalyst as set forth in this Section 7, (x) BR CDP must cause Catalyst (or any affiliate or principal of Catalyst) who has executed a guaranty in connection with the Loan to be prospectively released from such guaranty or (y) if the lender under the Loan refuses to release Catalyst or its affiliates or principals, BR CDP (and certain Affiliates of the BR JV Member reasonably acceptable to Catalyst) must indemnify and hold harmless such parties with respect to any losses, costs or expenses incurred thereunder except to the extent that (x) Catalyst or its affiliates are otherwise obligated to BR CDP or to BR JV Member, without right of reimbursement, under a written agreement for the amount sought to be recovered under such guaranty or (y) the amount sought to be recovered would never be collectible from, or claimed against, BR CDP but for the fraud, willful misconduct, gross negligence or willful misappropriation of funds by Catalyst or its affiliates; provided, that BR CDP shall not be obligated to indemnify Catalyst with respect to any action which Catalyst has expressly approved of or consented to in writing within two (2) business days following the receipt of written notice from BR CDP that BR CDP intends to take such action. If Catalyst has not affirmatively responded to BR CDP by the end of such two (2) business day period, Catalyst shall be deemed to have expressly disagreed with the action.

8.           Administration . The Co-Tenants hereby appoint BR CDP to administer and enforce the rights and obligations of the Co-Tenants under this Agreement, the TIC Agreement and the Development Agreement.

9.           Investment Banking Fee . Each of the Co-Tenants acknowledges and agrees that, at the Closing of the acquisition of the Property, they shall proportionally bear the expense of an investment banking fee to BR JV Member equal to one percent (1%) of the Project’s Total Project Budget (as defined in the BR CDP JV Agreement) (exclusive of the Development Fee payable pursuant to the Development Agreement and this investment banking fee).

10.          Capital Contribution Obligations; Distributions of Net Cash From Operations and Net Cash From Sales or Refinancings; Failure to Make Required Cash Contributions .

“Distribution of Net Cash from Operations, Sales or Refinancings . Subject to any applicable restrictions in any loan document created with respect to the Property, Net Cash from Operations and Net Cash from Sales or Refinancings shall be distributed to the Co-Tenants, in the following order and priority:

A.           First, to repay any Default Loan, with payment of interest first and then principal;

B.           Second, to BR CDP in connection with any funded Shortfall to the extent provided under Sections 10(c) of the TIC Management Agreement;

C.           Third, to repay any loan (excluding a Default Loan made on behalf of a Defaulting Co-Tenant pursuant to Section 8 above) approved by BR CDP and made by any Co-Tenant for the benefit of the Property or in furtherance of the ownership or operation thereof. Payments to the Co-Tenants to repay loans shall be made, pari passu, in proportion to each Co-Tenant’s share of the total of such loans, with payment of interest first and then principal;

D.           Fourth, to the Co-Tenants until they have been repaid in full their Additional Cash Contributions and their Additional Cash Contribution Preferred Return (i.e., an amount accruing at the rate of ten percent (10%) per annum on each Co-Tenant’s unreturned Additional Cash Contributions, compounded monthly and calculated on a cumulative basis). Payment to the Co-Tenants shall be pari passu, and made pro-rata in accordance with each Co-Tenant’s percentage share of all such Additional Cash Contributions;

E.           Fifth, to the Co-Tenants until they have been repaid in full their Initial Cash Contributions. Payment to the Co-Tenants shall be made in proportion to their Pro Rata Shares;

F.           Sixth, to BR CDP in return of its Section 8.04(a) Advances, to the extent provided under Section 10(d) of the TIC Management Agreement; and

G.           Seventh, to the Co-Tenants, in proportion to their Pro Rata Shares.

11.          Loan Guarantees . BR CDP agrees that certain of its principals shall personally guarantee any Loan; provided, however, (i) in no event shall principals of BR CDP comprising any affiliate of Bluerock Real Estate, LLC be obligated to provide such a guaranty, and (ii) the content of such guarantees shall be on terms and conditions reasonably acceptable to BR CDP.

12.         Modifications to TIC Agreement and Trust Agreement .

A.         Nothing in Section 8 of the TIC Agreement is intended to affect the Co-Tenants’ right to exercise any other available remedies with respect to any failure to make the Cash Contributions described in the TIC Agreement.

B.          Nothing in Section 10 of the TIC Agreement is intended to limit the obligations of the members of BR CDP to make any required capital contributions required under the BR CDP JV Agreement, nor shall Section 10 of the TIC Agreement limit any Co-Tenant’s obligation to make their pro rata share of the called capital.

C.           Additional Capital Contributions to avoid Loan Defaults . Without limiting Subsection 7 of the TIC Agreement, and notwithstanding anything herein to the contrary, if: (i) an event of default occurs under the Loan or, in the reasonable opinion of the CDP JV Member, an event of default under the Loan is imminent; (ii) funds sufficient to cure or avoid such event of default under the Loan are not available from existing cash flow or applicable reserves; and (iii) such default is not a result of any act or omission involving knowing violations of the law, material breach of the TIC Agreement or any loan agreement pertaining to the Loan, fraud, bad faith or gross negligence on the part of CDP JV Member or any of its Affiliates (as defined in the BR CDP JV Agreement), and (iv) the CDP JV Member or its Affiliates have an outstanding Loan guaranty, then, if appropriate, CDP JV Member shall have the unilateral right (on behalf of BR CDP) to make a Cash Call for a Protection Payment (as defined in the BR CDP JV Agreement); provided, however, if CDP JV Member has failed to initiate the Cash Call then the BR JV Member shall have the right to do so. Each such authorized Cash Call Notice shall be in writing and shall set forth: (i) the total amount of the Additional Cash Contribution; (ii) each Co-Tenant’s Pro Rata Share thereof; and (iii) the specific proposed use of the funds requested. Each Co-Tenant shall deliver to BR CDP said Co-Tenant’s Pro Rata Share of the Additional Cash Contribution as set forth in the Cash Call Notice within ten (10) days from the date of said notice, and such funds shall thereafter be used solely in the manner described in the Cash Call Notice.

Solely in the event of a Cash Call pursuant to this Section 12.C, if either or both of Duke or Commander elects not to or fails to contribute its Pro Rata Share of such Cash Call, then CDP JV Member or BR JV Member if BR JV Member has made the Cash Call in accordance with the preceding paragraph (in either case, on behalf of BR CDP) shall have the unilateral right to do one or more of the following: (1) cause the Trustee to borrow the required funds (whether from a Co-Tenant or an unrelated third party), (2) cause the Trustee to sell the Property (whether to a Co-Tenant or an unrelated third party), (3) cause the Trustee to negotiate, compromise or settle any outstanding claim arising in connection with the Loan, or (4) directly fund any amounts necessary to cure any default under the Loan, in which event an amount equal to the product of (x) the amount so funded to cure the default under the Loan multiplied by (y) the aggregate percentage ownership in the Property of each of Duke and Commander, shall be deemed a Default Loan by BR CDP to each of Duke and Commander and treated accordingly pursuant to Section 8(A)(i) of the TIC Agreement. This provision shall not be for the benefit of any creditor of the Trustee (including a trustee in bankruptcy), and no creditor (including a trustee in bankruptcy) shall have the right to force any of the Co-Tenants to make any such contributions or loans. The exercise of these rights on behalf of BR CDP are, as between the BR JV Member and the CDP JV Member, subject to any and all restrictions and limitations within Section 6.05(c) of the BR CDP JV Agreement .

D.           Section 5 of the Trust Agreement is hereby modified by inserting the following phrase at the beginning of the first sentence thereof: “Except as otherwise agreed in writing by the Beneficiaries.”

E.           Section 6 of the TIC Agreement is hereby modified by deleting the following phrase: “who, unless otherwise agreed to by the Beneficiaries in writing, shall serve for a one (1) year term, and at the end of said one (1) year term, if no other replacement manager has been appointed, shall continue to serve as manager until another manager is appointed.” It is the intent of the Co-Tenants that BR CDP retain the appointment made pursuant to Section 6 of the TIC Agreement until such time as BR CDP elects to appoint a successor, which BR CDP shall have the right to do in its sole discretion.

F.           The Co-Tenants shall fund their respective Initial Cash Contributions, as set forth on Exhibit “B” to the TIC Agreement, in a single installment when called for under Section 7.A. of the TIC Agreement.

13.          Miscellaneous Provisions .

A.            Notice .

(i)           Delivery Method . Any notice, election, or other communication required or permitted hereunder shall be in writing addressed to the address set forth on the first page of this Agreement and shall be either: (a) delivered in person to the Co-Tenants, (b) sent by same day or overnight courier service, (c) sent via facsimile with next business day delivery by one of the methods set forth herein, or (d) sent by certified or registered United States mail, return receipt requested, postage and charges prepaid, to the Co-Tenants at the addresses referenced herein.

(ii)          Effective Date . Any notice, election, or other communication delivered or mailed as aforesaid (“Notice”) shall, (a) if delivered in person, be effective upon date of delivery; (b) if delivered by same day or overnight delivery service, be effective on the date of delivery to such address or addresses regardless if accepted; (c) if delivered by facsimile transmission, be effective on the date the same was delivered if received at the recipient’s facsimile machine prior to 5:00 p.m. EST/EDT, on a business day, or on the next business day if received at the recipient’s facsimile machine on a non-business day or after 5:00 p.m. EST/EDT on a business day; and (d) if delivered by mail, be effective upon the earlier of the date of actual receipt, or five (5) business days after deposit with the U.S. Postal Service regardless if actually received.

(iii)         Change of Address . Each party hereto may change its address and addresses for notice, election and other communication from time to time by notifying the other parties hereto of the new address in the manner provided for giving notice herein.

B.            Applicable Law . It is the intention of the Co-Tenants that all questions with respect to the construction, enforcement and interpretation of this Agreement and the rights and liabilities of the Co-Tenants shall be determined in accordance with the laws of the State of Georgia, without regard to principles of conflicts of laws.

C.            Separability . This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of this Agreement or the application thereof to any person or circumstances shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.

D.            Binding Effect . This Agreement is binding upon, and inures to the benefit of, the Co-Tenants and their respective spouses, heirs, executors and administrators, personal and legal representatives, successors and assigns; provided, however, that no party to this Agreement shall be permitted to assign any or all of its rights or obligations under this Agreement, except as provided in Paragraph E below.

E.            Transfers; Assignments; Right of First Refusal . No party, including all Co-Tenants and principal owners of the Co-Tenants, shall be permitted to assign any of its rights or obligations under this Agreement, without the prior written consent of BR CDP. Any assignment or attempted assignment of any of the rights or obligations under this Agreement without complying with this Paragraph E shall be void ab initio. Notwithstanding the foregoing, interparty transfers of Co-Tenancy interests in the Property between Duke and Commander shall be permitted provided the ownership composition of Duke and Commander does not change from the ownership composition which existed as of the date of this Agreement.

F.            Construction . In the event of any conflict between the terms and provisions of the TIC Agreement (including, without limitation, Section 11(A) of the TIC Agreement), and the terms and provisions of this Agreement, the terms and provisions of this Agreement shall control and supersede over the TIC Agreement. Duke and Commander expressly acknowledge and agree that the provisions and powers of and granted under this Agreement to BR CDP supersede any contrary or inconsistent provisions or powers that they may have under the TIC Agreement or the Trust Agreement with the intent that all such powers may be exercised only by BR CDP and not by Duke or Commander.

G.            Entire Agreement / Amendment / Waiver . Except as otherwise set forth herein, together with the Development Agreement, the TIC Agreement and the Trust Agreement, this Agreement contains all of the agreements of the Co-Tenants. All prior or contemporaneous agreements or understandings, oral or written, are merged in this Agreement and shall not be effective for any purpose. No amendment of this Agreement or waiver of any provisions hereof shall be valid or binding on the parties hereto unless such amendment or waiver shall be in writing and signed by or on behalf of all the parties hereto, and no waiver on one occasion shall be deemed to be a waiver of the same or any other provision hereof in the future.

H.            Counterparts . This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed to be an original copy, and all of which together shall constitute one agreement binding on all Co-Tenants, notwithstanding that all the Co-Tenants shall not have signed the same counterpart.

I.             Venue-Jury Trial Waiver . The parties hereto agree that any suit brought to enforce this Agreement, the TIC Agreement or the Trust Agreement shall be venued only in any court of competent jurisdiction in the State of New York, Borough of Manhattan, and, by execution and delivery of this Agreement, each of the parties to this Agreement hereby irrevocably accepts and waives all objection to, the exclusive jurisdiction of the aforesaid courts in connection with any suit brought to enforce this Agreement, and irrevocably agrees to be bound by any judgment rendered thereby. Each of the parties hereto hereby agrees that service of process in any such proceeding may be made by giving notice to such party in the manner and at the place set forth in Section 15 A. of the TIC Agreement. The parties further mutually agree to waive all rights to trial by jury.

(SIGNATURES ON FOLLOWING PAGE)

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