Exhibit 10.1

LIMITED LIABILITY COMPANY AGREEMENT

OF

BEMT SPRINGHOUSE, LLC

THIS LIMITED LIABILITY AGREEMENT (“Agreement”) of BEMT Springhouse, LLC, a Delaware limited liability company (the “Company”), is effective as of December 3, 2009, between the Company and Bluerock Enhanced Multifamily Holdings, L.P., a Delaware limited partnership, as the sole member of the Company (the “Member”).

RECITALS

A.           The Member has caused the Company to be organized as a Delaware limited liability company in accordance with the Delaware Limited Liability Company Act, as amended and in force from time to time (the “Act”).

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

AGREEMENT

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

ARTICLE I

PURPOSE AND POWERS OF COMPANY

1.01            Purpose . The Company’s purpose is to acquire, hold, invest, sell or otherwise dispose of assets which it shall from time to time own, and to engage in any and all other related business activities.

1.02            Powers . The Company shall have all powers of a limited liability company organized under the Act and not proscribed by the Act, its Certificate of Formation, or this Agreement.

ARTICLE II

NAME AND ADDRESS OF INITIAL MEMBER

2.01          Name and Address. The name, address, and initial membership interest of the initial Member is as follows:

a Delaware limited partnership

680 5 ^th Avenue, 16 ^th Floor

New York, New York 10019

ARTICLE III

MANAGEMENT BY SOLE MEMBER

3.01            In General . The powers of the Company shall be exercised by, or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Member. Subject to the other provisions of this Agreement, the Member shall be entitled to make all decisions and take all actions for the Company, including the execution of all documents, agreements, certificates, and other writings in the name of, and on behalf of, the Company.

3.02            Indemnification . The Company shall indemnify, defend, and hold harmless the Member (including its members, officers, directors, agents, employees, and affiliates) to the fullest extent permitted under the Act against any and all liability, damage, loss, cost, or expense (including, without limitation, attorneys’ fees) incurred by the Member arising out of any transaction or course of conduct relating to the business and affairs of the Company.

3.03            Elimination of Liability . In any proceeding brought in the right of the Company or by or on behalf of the Members of the Company, the damages assessed against a Member arising out of a single transaction, occurrence, or course of conduct shall not exceed one dollar, unless such member engaged in willful misconduct or a knowing violation of the criminal law.

3.04            Advances . Expenses (including legal fees and expenses) of the Member (including its members, officers, directors, agents, employees, and affiliates) incurred by the Member arising out of any transaction or course of conduct relating to the business and affairs of the Company may be paid by the Company in advance of the final disposition of any proceeding relating thereto.

ARTICLE IV

CONTRIBUTIONS TO THE COMPANY AND DISTRIBUTIONS

4.01            Member Capital Contributions . The Member, upon execution of this Agreement shall have contributed as the Member’s initial capital contribution the cash and/or other property set forth on Exhibit A attached hereto.

4.02            Distributions and Allocations . All distributions of cash or other property (except upon the Company’s dissolution which shall be governed by the applicable provisions of the Act) and all allocations of income, profits, and loss shall be made 100% to the Member in accordance with his membership interest in the Company.

ARTICLE V

MISCELLANEOUS PROVISIONS

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

5.02            Amendments . No amendment or modification of this Agreement shall be effective unless approved in writing by the Member.

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

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

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

5.06            Creditors . None of the provisions of this Agreement shall be for the benefit of, or enforceable by any creditor of, the Company or the Member.

The undersigned hereby agree, acknowledge, and certify that the foregoing constitutes the sole and entire Limited Liability Company Agreement of the Company, effective as of the date first written above.

Exhibit 10.4

BR SPRINGHOUSE MANAGING MEMBER, LLC

ASSIGNMENT OF MEMBERSHIP INTEREST

Effective as of the 2 ^nd day of April, 2014, for value received, BLUEROCK SPECIAL OPPORTUNITY + INCOME FUND, LLC, a Delaware limited liability company (“Assignor”), a member of BR SPRINGHOUSE MANAGING MEMBER, LLC, a Delaware limited liability company (the "Company”), hereby sells, assigns and transfers unto BEMT SPRINGHOUSE, LLC, a Delaware limited liability company, (“Assignee”), all of its right, title, and interest to its forty nine percent (49%) limited liability company interest in the Company, together with any and all claims, title, interests, entitlements, capital account balances, distributions, and other rights related to such limited liability company interest (the “Interest”). Assignee hereby accepts from Assignor the Interest and agrees to be substituted as a member in the Company in the place and stead of Asssignor with respect to the Interest assigned to and accepted by Assignee as provided herein.

Assignor, in its capacity as a manager and a member of the Company, consents to and hereby admits Assignee as a member of the Company, with all rights and obligations as a substitute member of the Company with respect to the Interest. Assignee agrees to be bound by the terms of the Company’s limited liability company agreement, and by execution of this Assignment becomes a party thereto, and assumes and agrees to pay and discharge when and as due all the liabilities, obligations, and responsibilities of Assignor arising from the Assignor’s ownership of the Interest acquired by Assignee from and after the date hereof. Assignor and assignee mutually agree to reasonably cooperate at all times from and after the date hereof with respect to any of the matters described herein, and to execute such further documents as may be reasonably requested for the purpose of giving effect to, evidencing or giving notice of the transaction evidenced by this Agreement.

This Assignment shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs, personal representatives, successors and assigns. No supplement, modification, waiver or termination of this Assignment or any provisions hereof shall be ebinding unless executed in writing by the person to be bound thereby. No waiver of any of the provisions of this Assignment shall constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.

This Assignment can be executed in any number of counterparts, each of which, when so executed, shall be deemed an original such counterparts together shall constitute one original. This Assignment will be governed by the laws of the State of Delaware, without giving effect to principles of conflict of laws of that State.

[SIGNATURS ON FOLLOWING PAGE]

IN WITNESS WHEREOF, Assignor and Assignee have each duly authorized and executed this Assignment effective as of the date first written above.

Exhibit 10.5

AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT

OF

BR HAWTHORNE SPRINGHOUSE JV, LLC

A DELAWARE LIMITED LIABILITY COMPANY 

TABLE OF CONTENTS

BR HAWTHORNE SPRINGHOUSE JV, LLC

AMENDED AND RESTATED LIMITED

LIABILITY COMPANY AGREEMENT

This Amended and Restated Limited Liability Company Agreement (this “ Agreement ”) is adopted, executed and agreed to effective on December 1, 2016, by and among BR Springhouse Managing Member, LLC, a Delaware limited liability company (“ BR I ”); BR Springhouse TRS, LLC, a Delaware limited liability company (“ BR II ”), and Carroll Co-Invest IV Roswell, LLC, a Georgia limited liability company (“ Carroll Member ”), as Members (together, the “ Members ”), and BR I, as Manager.

WITNESSETH :

WHEREAS, BR I and Hawthorne Springhouse, LLC (“ Hawthorne ”) entered into that certain Limited Liability Company/Joint Venture Agreement of BR Hawthorne Springhouse JV, LLC, a Delaware limited liability company (the “ Company ”), on December 3, 2009, (the “ Original LLC Agreement ”);

WHEREAS, pursuant to that certain Membership Interest Purchase Agreement by and between Hawthorne, BR I and BR II, dated August 9, 2016, Hawthorne transferred 24.9% of its Interest to BR I and Hawthorne transferred the remaining 0.1% of its Interest to BR II and Hawthorne withdrew and ceased to be a Member of the Company;

WHEREAS, BR I and BR II amended the Original LLC Agreement to acknowledge BR II’s admission as a Member, confirm BR I as the Manager of the Company and adjust the Capital Contributions and Percentage Interests of the Members by virtue of that certain First Amendment to Limited Liability Company/Joint Venture Agreement for BR Hawthorne Springhouse JV, LLC dated August 9, 2016 (the “ First Amendment ”) (the “Original LLC Agreement, as amended by the First Amendment, the “ Prior LLC Agreement ”);

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

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

Section 1.               Definitions . As used in this Agreement:

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

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

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

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

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

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

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

“ Bankruptcy/Dissolution Event ” shall mean, with respect to the affected party, (i) the entry of an Order for Relief under the Bankruptcy Code, (ii) the admission by such party of its inability to pay its debts as they mature, (iii) the making by it of an assignment for the benefit of creditors generally, (iv) the filing by it of a petition in bankruptcy or a petition for relief under the Bankruptcy Code or any other applicable federal or state bankruptcy or insolvency statute or any similar law, (v) the expiration of sixty (60) days after the filing of an involuntary petition under the Bankruptcy Code without such petition being vacated, set aside or stayed during such period, (vi) an application by such party for the appointment of a receiver for the assets of such party, (vii) an involuntary petition seeking liquidation, reorganization, arrangement or readjustment of its debts under any other federal or state insolvency law, provided that the same shall not have been vacated, set aside or stayed within sixty (60) days after filing, (viii) the imposition of a judicial or statutory lien on all or a substantial part of its assets unless such lien is discharged or vacated or the enforcement thereof stayed within sixty (60) days after its effective date, (ix) an inability to meet its financial obligations as they accrue, or (x) a dissolution or liquidation.

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

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

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

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

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

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

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

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

“ Carroll Parent ” shall mean MPC Partnership Holdings LLC, a Georgia limited liability company.

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

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

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

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

“ Company ” shall mean BR Hawthorne Springhouse JV, LLC, a Delaware limited liability company organized under the Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“ IT Services Agreement ” shall mean that certain Service Agreement, by and between IT Support Solutions Group, LLC, a Georgia limited liability company, and the Property Owner.

“ Key Individuals ” shall mean Josh Champion and M. Patrick Carroll.

“ Loan ” shall mean that certain mortgage loan in the original principal amount of approximately $51,000,000.00 borrowed by Property Owner from MetLife HCMJV 1 REIT, LLC (together with its successors and assigns as the holder of the Loan, the “ Lender ”).

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

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

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

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

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

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

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

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

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

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

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

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

“ Property Management Agreement ” shall mean that certain Property Management Agreement, as amended, by and between Property Owner and the Property Manager.

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

“ Property Owner ” shall mean BR Roswell, LLC, a Delaware limited liability company, a Subsidiary of the Company and the holder of fee title in the Property.

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

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

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

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

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

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

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

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

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

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

Section 2.               Organization of the Company .

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

2.2            Place of Registered Office; Registered Agent . The address of the registered office of the Company in the State of Delaware is c/o National Registered Agents, Inc., 160 Greentree Drive, Dover, Delaware 19904. The name and address of the registered agent for service of process on the Company in the State of Delaware is National Registered Agents, Inc., 160 Greentree Drive, Dover, Delaware 19904. The Manager may at any time on five (5) days prior notice to all Members change the location of the Company’s registered office or change the registered agent.

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

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

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

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

Section 3.               Purpose .

The purpose of the Company, subject in each case to the terms hereof, shall be to engage in the business of acquiring, owning, operating, developing, renovating, repositioning, managing, leasing, selling, financing (including the borrowing of the Loan) and refinancing all or any portion of the real estate and any real estate related investments known as Roswell City Walk Apartments, which is located at 3000 Forrest Walk, Roswell, Georgia 30075, which is held by Property Owner (any property acquired as aforesaid shall hereinafter be referred to as the “ Property ”), and all other activities reasonably necessary to carry out such purposes. The Company shall possess and may exercise all of the powers and privileges granted by the Act, by any other law or by this Agreement, together with any powers incidental thereto, including such powers and privileges as are necessary or convenient to the conduct, promotion or attainment of the business, purposes or activities of the Company.

Section 4.               Reserved .

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

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

5.2            Additional Capital Contributions .

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

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

(1)          [Intentionally Omitted] ;

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

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

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

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

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

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

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

5.6            Capital Accounts .

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

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

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

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

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

Section 6.               Distributions .

6.1            Distribution of Distributable Funds

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

(b)          Any Distributions otherwise payable to a Member under this Agreement shall be applied first to satisfy amounts due and payable on account of the indemnity and/or contribution obligations of such Member under this Agreement and/or any other agreement delivered by such Member to the Company or any other Member but shall be deemed distributed to such Member for purposes of this Agreement.

6.2            Distributions in Kind . In the discretion of the Manager, Distributable Funds may be distributed to the Members in cash or in kind and the Members may be compelled to accept a distribution of any asset in kind even if the percentage of that asset distributed to it exceeds a percentage of that asset that is equal to the percentage in which such Member shares in distributions from the Company. In the case of all assets to be distributed in kind, the amount of the distribution shall equal the fair market value of the asset distributed as determined by the Manager. In the case of a distribution of publicly traded property, the fair market value of such property shall be deemed to be the average closing price for such property for the thirty (30) day period immediately prior to the distribution, or if such property has not yet been publicly traded for thirty (30) days, the average closing price of such property for the period prior to the distribution in which the property has been publicly traded.

Section 7.               Allocations .

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

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

7.3            U.S. Tax Allocations .

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

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

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

(d)          Such allocation shall be made in accordance with any permissible method set forth in Regulations Section 1.704-3, as reasonably determined by the Manager. Any other elections or other decisions relating to such allocations shall be made by the Manager in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 7.3 are solely for purposes of U.S. federal, state and local income taxes and shall not affect, or in any way be taken into account in computing, any Member’s share of Net Income, Net Loss, other items or distributions pursuant to any provisions of this Agreement.

Section 8.               Books, Records, Tax Matters and Bank Account s .

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

8.2           Reports and Financial Statements.

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

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

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

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

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

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

8.5            Tax Returns . The Manager shall cause to be prepared all income and other tax returns of the Company and the Subsidiaries required by applicable law. No later than the due date or extended due date thereof, the Manager shall deliver or cause to be delivered to each Member a copy of the tax returns for the Company and such Subsidiaries 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.

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

Section 9.               Management .

9.1            Management .

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

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

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

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

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

9.3            Other Activities .

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

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

9.4           Operation in Accordance with REOC/REIT Requirements.

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

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

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

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

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

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

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

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

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

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

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

(ix)         Failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year.

Notwithstanding the foregoing provisions of this Section 9.4(c) , the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 9.4(c) . For purposes of this Section 9.4(c) , “REIT Prohibited Transactions” shall mean any of the actions specifically set forth in this Section 9.4(c) .

9.5            FCPA .

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

The term “routine governmental action” does not include any decision by a government official whether, or on what terms, to award new business to or to continue business with a particular party, or any action taken by an official involved in the decision making process to encourage a decision to award new business to or continue business with a particular party.

(b)          Each Member agrees to notify immediately the Manager and the other Members of any request that such Member or any of its officers, directors, employees, shareholders, members, agents or Affiliates, acting on its behalf, receives to take any action that may constitute a violation of the Foreign Corrupt Practices Act.

Section 10.            Confidentiality .    

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

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

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

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

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

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

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

Section 11.             Representations and Warranties .

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

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

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

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

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

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

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

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

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

(h)           Securities Matters .

(i)          None of the Interests are registered under the Securities Act or any state securities laws. Such Member understands that the offering, issuance and sale of the Interests are intended to be exempt from registration under the Securities Act, based, in part, upon the representations, warranties and agreements contained in this Agreement. Such Member is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act.

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

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

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

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

(vi)        Such Member has adequate means for providing for its current financial needs and anticipated future needs and possible contingencies and emergencies and has no need for liquidity in the investment in the Interests.

(vii)       Such Member is knowledgeable about investment considerations and has a sufficient net worth to sustain a loss of such Member’s entire investment in the Company in the event such a loss should occur. Such Member’s overall commitment to investments which are not readily marketable is not excessive in view of such Member’s net worth and financial circumstances and the purchase of the Interests will not cause such commitment to become excessive. The investment in the Interests is suitable for such Member.

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

Section 12.             Sale, Assignment, Transfer or other Disposition .

12.1          Prohibited Transfers . Except as otherwise provided in this Section 12 , Section 5.2(b) or as approved by the Manager, no Member shall Transfer all or any part of its Interest, whether legal or beneficial, in the Company, and any attempt to so Transfer such Interest (and such Transfer) shall be null and void and of no effect. Notwithstanding the foregoing, and subject in all events to the terms of the Loan Documents, either or both of BR I and BR II shall have the right, with the consent of the Manager, at any time to pledge to a lender or creditor, directly or indirectly, all or any part of its Interest in the Company for such purposes as it deems necessary in the ordinary course of its business and operations.

12.2          Affiliate Transfers .

(a)          Subject to the provisions of Section 12.2(b) 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 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 Interest. If such Affiliate shall thereafter cease being an Affiliate of such Member while such Affiliate holds such 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 Members against loss or damage under any Collateral Agreement.

(b)          Notwithstanding anything to the contrary contained in this Agreement, the following Transfers shall not require the approval set forth in Section 12.2(a) :

(i)          Any Transfer by BR I or a BR I Transferee of up to one hundred percent (100%) of its Interest to any Affiliate of BR I, including but not limited to (A) BRG or any Person that is directly or indirectly owned by BRG; (B) Bluerock Residential Holdings, L.P. (“ BR REIT LP ”) or any Person that is directly or indirectly owned by BR REIT LP; (C) Bluerock Growth Fund, LLC (“ BGF ”) or any Person that is directly or indirectly owned by BGF; (D) Bluerock Growth Fund II, LLC (“ BGF II ”) or any Person that is directly or indirectly owned by BGF II; (E) BR II or any Person that is directly or indirectly owned by BR II; (F) Bluerock Special Opportunity + Income Fund II, LLC (“ SOIF II ”) or any Person that is directly or indirectly owned by SOIF II; (G) Bluerock Special Opportunity + Income Fund III, LLC (“ SOIF III ”) or any Person that is directly or indirectly owned by SOIF III and/or (H) Bluerock Real Estate, L.L.C. (“ Bluerock ”) or any Person that is directly or indirectly owned by Bluerock (collectively, a “ BR I Transferee ”);

(ii)         Any Transfer by BR II or a BR II Transferee of up to one hundred percent (100%) of its Interest to any Affiliate of BR II, including but not limited to (A) BRG or any Person that is directly or indirectly owned by BRG; (B) BR REIT LP or any Person that is directly or indirectly owned by BR REIT LP; (C) BGF or any Person that is directly or indirectly owned by BGF; (D)  BGF II or any Person that is directly or indirectly owned by BGF II; (E) SOIF II or any Person that is directly or indirectly owned by SOIF II; (F) SOIF III or any Person that is directly or indirectly owned by SOIF III; (G) BR I or any Person that is directly or indirectly owned by BR I; and/or (H) Bluerock or any Person that is directly or indirectly owned by Bluerock (collectively, a “ BR II Transferee ”);

(iii)        Any Transfer by Carroll Member of up to one hundred percent (100%) of its Interest to an Affiliate of Carroll Parent (a “ Carroll Transferee ”), it being expressly understood and agreed that transfers of ownership interests in Carroll shall not be prohibited as long as at least one of the Key Individuals (collectively or individually) remains actively involved in the operation and management of Carroll Member (to the extent that it continues to hold, or control, any interest in the Company), Carroll Parent and any Carroll Transferee, and provided that (i) the Transfer does not require any approval by Lender (if approval thereof by Lender is required, then such approval must be obtained as a prerequisite to any such Transfer by Carroll Member) and (ii) satisfactory evidence is provided to Manager confirming the status of such Carroll Transferee. Any fees owing to Lender or incurred by Manager relating to such Transfer shall be paid solely by Carroll Member.

provided however, no Transfer shall be permitted and shall be void ab initio if it shall violate any “Transfer” provision of any applicable Collateral Agreement with third party lenders.

(c)          Upon the execution by any such BR I Transferee or BR II Transferee or Carroll Transferee of such documents necessary to admit such party into the Company and to cause the BR I Transferee or BR II Transferee or Carroll Transferee (as applicable) to become bound by this Agreement, the BR I Transferee or BR II Transferee or Carroll Transferee (as applicable) shall become a Member, without any further action or authorization by any other Member.

12.3          Admission of Transferee; Partial Transfers . Notwithstanding anything in this Section 12 to the contrary and except as provided in Section 5.2(b) , no Transfer of Interests in the Company shall be permitted unless the potential transferee is admitted as a Member under this Section 12.3 .

(a)          If a Member Transfers all or any portion of its 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

(b)          Notwithstanding the foregoing, any Transfer or purported Transfer of any 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 Interest, if the Manager determines in its sole discretion that:

(i)          the Transfer would require registration of any Interest under, or result in a violation of, any federal or state securities laws;

(ii)         the Transfer would result in a termination of the Company under Code Section 708(b);

(iii)        as a result of such Transfer the Company would be required to register as an investment company under the Investment Company Act of 1940, as amended, or any rules or regulations promulgated thereunder;

(iv)        if as a result of such Transfer the aggregate value of Interests held by “benefit plan investors” including at least one benefit plan investor that is subject to ERISA, could be “significant” (as such terms are defined in U.S. Department of Labor Regulation 29 C.F.R. 2510.3-101(f)(2)) with the result that the assets of the Company could be deemed to be “plan assets” for purposes of ERISA;

(v)         as a result of such Transfer, the Company would or may have in the aggregate more than one hundred (100) members and material adverse federal income tax consequences would result to a Member. For purposes of determining the number of members under this Section 12.3(b)(v) , a Beneficial Owner indirectly owning an interest in the Company through a Flow-Through Entity shall be considered a member, but only if (i) substantially all of the value of the Beneficial Owner’s interest in the Flow-Through Entity is attributable to the Flow-Through Entity’s interest (direct or indirect) in the Company and (ii) in the sole discretion of the Manager, a principal purpose of the use of the Flow-Through Entity is to permit the Company to satisfy the 100-member limitation; or

(vi)        the transferor failed to comply with the provisions of Sections 12.2(a) or (b) .

The Manager may require the provision of a certificate as to the legal nature and composition of a proposed transferee of an 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 12.3 .

12.4          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 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 Section 13 . No Member shall be entitled to receive any distribution or otherwise receive the fair market value of its Interest in compensation for any purported resignation or withdrawal not in accordance with the terms of this Agreement.

Section 13.             Dissolution .

13.1          Limitations . The Company may be dissolved, liquidated and terminated only pursuant to the provisions of this Section 13 , and, to the fullest extent permitted by law but subject to the terms of this Agreement, the parties hereto do hereby irrevocably waive any and all other rights they may have to cause a dissolution of the Company or a sale or partition of any or all of the Company’s assets.

13.2          Exclusive Events Requiring Dissolution . The Company shall be dissolved only upon the earliest to occur of the following events (each a “ Dissolution Event ”):

(a)          the expiration of the specific term set forth in Section 2.5 ;

(b)          at any time at the election of the Manager in writing;

(c)          at any time there are no Members (unless otherwise continued in accordance with the Act); or

(d)          the entry of a decree of judicial dissolution pursuant to Section 18-802 of the Act.

13.3          Liquidation . Upon the occurrence of a Dissolution Event, the business of the Company shall be continued to the extent necessary to allow an orderly winding up of its affairs, including the liquidation of the assets of the Company pursuant to the provisions of this Section 13.3 , as promptly as practicable thereafter, and each of the following shall be accomplished:

(a)          The Manager shall cause to be prepared a statement setting forth the assets and liabilities of the Company as of the date of dissolution, a copy of which statement shall be furnished to all of the Members.

(b)          The property and assets of the Company shall be liquidated or distributed in kind under the supervision of the Manager as promptly as possible, but in an orderly, businesslike and commercially reasonable manner.

(c)          Any gain or loss realized by the Company upon the sale of its property shall be deemed recognized and allocated to the Members in the manner set forth in Section 7.2 . To the extent that an asset is to be distributed in kind, such asset shall be deemed to have been sold at its fair market value on the date of distribution, the gain or loss deemed realized upon such deemed sale shall be allocated in accordance with Section 7.2 and the amount of the distribution shall be considered to be the fair market value of such asset.

(d)          The proceeds of sale and all other assets of the Company shall be applied and distributed as follows and in the following order of priority:

(i)          to the satisfaction of the debts and liabilities of the Company (contingent or otherwise) and the expenses of liquidation or distribution (whether by payment or reasonable provision for payment), other than liabilities to Members or former Members for distributions;

(ii)         to the satisfaction of loans made pursuant to Section 5.2(b) in proportion to the outstanding balances of such loans at the time of payment;

(iii)        the balance, if any, to the Members in accordance with Section 6.1 .

13.4          Continuation of the Company . Notwithstanding anything to the contrary contained herein, the death, retirement, resignation, expulsion, bankruptcy, dissolution or removal of a Member shall not in and of itself cause the dissolution of the Company, and the Members are expressly authorized to continue the business of the Company in such event, without any further action on the part of the Members.

Section 14.            Indemnification .

14.1          Exculpation of Members . No Member, Manager, representative or officer of the Company shall be liable to the Company or to the other Members for damages or otherwise with respect to any actions or failures to act taken or not taken relating to the Company, except to the extent any related loss results from fraud, gross negligence or willful or wanton misconduct on the part of such Member, Manager, representative or officer or the willful breach of any obligation under this Agreement.

14.2          Indemnification by Company . The Company hereby indemnifies, holds harmless and defends the Members, the Manager, any officers and each of their respective agents, officers, directors, managers, members, partners, shareholders and employees from and against any loss, expense, damage or injury suffered or sustained by them (including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) by reason of or arising out of (i) their activities on behalf of the Company or in furtherance of the interests of the Company, including, without limitation, the provision of guaranties to third party lenders in respect of financings relating to the Company or any of its assets (but specifically excluding from such indemnity by the Company any so called “bad boy” guaranties or similar agreements which provide for recourse as a result of failure to comply with covenants, willful misconduct or gross negligence), (ii) their status as Members, Manager, representatives, employees or officers of the Company, or (iii) the Company’s assets, property, business or affairs (including, without limitation, the actions of any officer, director, member, manager or employee of the Company or any of its Subsidiaries), if the acts or omissions were not performed or omitted fraudulently or as a result of gross negligence or willful or wanton misconduct by the indemnified party or as a result of the willful breach of any obligation under this Agreement by the indemnified party. For the purposes of this Section 14.2 , officers, directors, employees and other representatives of Affiliates of a Member who are functioning as representatives of such Member in connection with this Agreement shall be considered representatives of such Member for the purposes of this Section 14 . Reasonable expenses incurred by the indemnified party in connection with any such proceeding relating to the foregoing matters shall be paid or reimbursed by the Company in advance of the final disposition of such proceeding upon receipt by the Company of (x) written affirmation by the Person requesting indemnification of its good faith belief that it has met the standard of conduct necessary for indemnification by the Company and (y) a written undertaking by or on behalf of such Person to repay such amount if it shall ultimately be determined by a court of competent jurisdiction that such Person has not met such standard of conduct, which undertaking shall be an unlimited general obligation of the indemnified party but need not be secured.

14.3          General Indemnification by the Members .

(a)          Notwithstanding any other provision contained herein, each Member (the “ Indemnifying Party ”) hereby indemnifies and holds harmless the other Members, the Manager, the Company and each of their Subsidiaries and their agents, officers, directors, managers, members, partners, shareholders and employees (each, an “ Indemnified Party ”) from and against all losses, costs, expenses, damages, claims and liabilities (including reasonable attorneys’ fees) as a result of or arising out of (i) any breach of any obligation of the Indemnifying Party under this Agreement, or (ii) any breach of any obligation by or any inaccuracy in or breach of any representation or warranty made by the Indemnifying Party, whether in this Agreement or in any other agreement, with respect to the conveyance, assignment, contribution or other transfer of the Property (or interests therein, including the Company Interest), assets, agreements, rights or other interests conveyed, assigned, contributed or otherwise transferred to the Company (collectively, the “ Inducement Agreements ”).

(b)          Except as otherwise provided herein or in any other agreement, recourse for the indemnity obligations of the Members under this Section 14.3 shall be limited to such Indemnifying Party’s Interest in the Company.

(c)          The indemnities, contributions and other obligations under this Agreement shall be in addition to any rights that any Indemnified Party may have at law, in equity or otherwise. The terms of this Section 14 shall survive termination of this Agreement.

Section 15.             Reserved.

Section 16.             Miscellaneous .

16.1          Notices .

(a)          All notices, requests, approvals, authorizations, consents and other communications required or permitted under this Agreement shall be in writing and shall be (as elected by the Person giving such notice) hand delivered by messenger or overnight courier service, mailed (airmail, if international) by registered or certified mail (postage prepaid), return receipt requested, or sent via facsimile (provided such facsimile is immediately followed by the delivery of an original copy of same via one of the other foregoing delivery methods) addressed to:

If to BR I:

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

712 Fifth Avenue, 9 ^th Floor

New York, New York 10019

Attn: Jordan B. Ruddy and Michael L. Konig, Esq.

Facsimile: (646) 278-4220

If to BR II:

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

712 Fifth Avenue, 9 ^th Floor

New York, New York 10019

Attn: Jordan B. Ruddy and Michael L. Konig, Esq.

Facsimile: (646) 278-4220

If to Carroll Member:

c/o Carroll Organization, LLC
3340 Peachtree Road, Suite 1620
Atlanta, Georgia 30326
Attention: M. Patrick Carroll

Facsimile No. (404) 523-9372

With a copy to:

Morris, Manning & Martin LLP
1600 Atlanta Financial Center
3343 Peachtree Road, NE
Atlanta, Georgia 30326
Attention: Corey B. May, Esq.
Facsimile: (404) 365-9532

(b)          Each such notice shall be deemed delivered (i) on the date delivered if by hand delivery or overnight courier service or facsimile, and (ii) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed (provided, however, if such actual delivery occurs after 5:00 p.m. (local time where received), then such notice or demand shall be deemed delivered on the immediately following business day after the actual day of delivery).

(c)          By giving to the other parties at least fifteen (15) days written notice thereof, the parties hereto and their respective successors and assigns shall have the right from time to time and at any time during the term of this Agreement to change their respective notice addresses.

16.2          Governing Law . This Agreement and the rights of the Members hereunder shall be governed by, and interpreted in accordance with, the laws of the State of Delaware. The Company and each Member agree that any dispute among or between them concerning the Company or this Agreement shall be litigated in the state or federal courts sitting in the City of New York, State of New York. Each of the parties hereto irrevocably submits to the jurisdiction of the New York State courts and the Federal courts sitting in the State of New York and agree that all matters involving this Agreement shall be heard and determined in such courts. Each of the parties hereto waives irrevocably the defense of inconvenient forum to the maintenance of such action or proceeding. To the fullest extent permitted by applicable law, in any such suit, action or proceeding, the Company and each of the Members irrevocably and unconditionally waive any right it may have to a trial by jury. Each of the parties hereto designates CT Corporation System, 1633 Broadway, New York, NY 10019, as its agent for service of process in the State of New York, which designation may only be changed on not less than ten (10) days’ prior notice to all of the other parties.

16.3          Successors . This Agreement shall be binding upon, and inure to the benefit of, the parties and their successors and permitted assigns. Except as otherwise provided herein, any Member who Transfers its Interest as permitted by the terms of this Agreement shall have no further liability or obligation hereunder, except with respect to claims arising prior to such Transfer.

16.4          Pronouns . Whenever from the context it appears appropriate, each term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in either the masculine, the feminine or the neuter gender shall include the masculine, feminine and neuter.

16.5          Table of Contents and Captions Not Part of Agreement . The table of contents and captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of this Agreement or any provisions hereof.

16.6          Severability . If any provision of this Agreement shall be held invalid, illegal or unenforceable in any jurisdiction or in any respect, then the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired, and the Members shall use their best efforts to amend or substitute such invalid, illegal or unenforceable provision with enforceable and valid provisions which would produce as nearly as possible the rights and obligations previously intended by the Members without renegotiation of any material terms and conditions stipulated herein.

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

16.8          Entire Agreement and Amendment . This Agreement and the other written agreements described herein between the parties hereto entered into as of the date hereof, constitute the entire agreement between the Members relating to the subject matter hereof. In the event of any conflict between this Agreement or such other written agreements, the terms and provisions of this Agreement shall govern and control.

16.9          Further Assurances . Each Member agrees to execute and deliver any and all additional instruments and documents and do any and all acts and things as may be necessary or expedient to effectuate more fully this Agreement or any provisions hereof or to carry on the business contemplated hereunder.

16.10        No Third Party Rights . The provisions of this Agreement are for the exclusive benefit of the Members and the Company, and no other party (including, without limitation, any creditor of the Company) shall have any right or claim against any Member by reason of those provisions or be entitled to enforce any of those provisions against any Member.

16.11        Incorporation by Reference . Every Exhibit and Annex attached to this Agreement is incorporated in this Agreement by reference.

16.12        Limitation on Liability . Except as set forth in Section 14 or as set forth in Section 5.2(b) , the Members shall not be bound by, or be personally liable for, by reason of being a Member, a judgment, decree or order of a court or in any other manner, for the expenses, liabilities or obligations of the Company, and the liability of each Member shall be limited solely to the amount of its Capital Contributions as provided under Section 5 . Except as set forth in Section 5.2(b) , any claim against any Member (the “ Member in Question ”) which may arise under this Agreement shall be made only against, and shall be limited to, such Member in Question’s Interest, the proceeds of the sale by the Member in Question of such Interest or the undivided interest in the assets of the Company distributed to the Member in Question pursuant to Section 13.3(d) hereof. Except as set forth in Section 5.2(b) , any right to proceed against (i) any other assets of the Member in Question or (ii) any agent, officer, director, member, manager, partner, shareholder or employee of the Member in Question or the assets of any such Person, as a result of such a claim against the Member in Question arising under this Agreement or otherwise, is hereby irrevocably and unconditionally waived.

16.13        Remedies Cumulative . The rights and remedies given in this Agreement and by law to a Member shall be deemed cumulative, and the exercise of one of such remedies shall not operate to bar the exercise of any other rights and remedies reserved to a Member under the provisions of this Agreement or given to a Member by law. In the event of any dispute between the parties hereto, the prevailing party(ies) shall be entitled to recover from the other party reasonable attorney’s fees and costs incurred in connection therewith.

16.14        No Waiver . One or more waivers of the breach of any provision of this Agreement by any Member shall not be construed as a waiver of a subsequent breach of the same or any other provision, nor shall any delay or omission by a Member to seek a remedy for any breach of this Agreement or to exercise the rights accruing to a Member by reason of such breach be deemed a waiver by a Member of its remedies and rights with respect to such breach.

16.15        Limitation On Use of Names . Notwithstanding anything contained in this Agreement or otherwise to the contrary, each Member as to itself agrees that neither it nor any of its Affiliates, agents or representatives is granted a license to use or shall use the name of any other Member under any circumstances whatsoever, except such name may be used in furtherance of the business of the Company but only as and to the extent approved by the Manager.

16.16        Publicly Traded Partnership Provision . Each Member hereby severally covenants and agrees with the other Members for the benefit of such Members, that (i) it is not currently making a market in Interests in the Company and will not in the future make such a market and (ii) it will not Transfer its Interest on an established securities market, a secondary market or an over-the-counter market or the substantial equivalent thereof within the meaning of Code Section 7704 and the Regulations, rulings and other pronouncements of the U.S. Internal Revenue Service or the Department of the Treasury thereunder. Each Member further agrees that it will not assign any Interest in the Company to any assignee unless such assignee agrees to be bound by this Section 16.16 and to assign such Interest only to such Persons who agree to be similarly bound.

16.17        Uniform Commercial Code . The interest of each Member in the Company shall be an “uncertificated security” governed by Article 8 of the Delaware UCC and the UCC as enacted in the State of New York (the “ New York UCC ”), including, without limitation, (i) for purposes of the definition of a “security” thereunder, the interest of each Member in the Company shall be a security governed by Article 8 of the Delaware UCC and the New York UCC and (ii) for purposes of the definition of an “uncertificated security” thereunder. By their execution of this Agreement, the Members and Manager expressly revoke any prior election of the Company to “certificate” the membership interests in the Company and any existing certificates outstanding with respect to the membership interests are expressly withdrawn, terminated and cancelled and, for all purposes, deemed null and void.

16.18        No Construction Against Drafter . This Agreement has been negotiated and prepared by the Members and their respective attorneys and, should any provision of this Agreement require judicial interpretation, the court interpreting or construing such provision shall not apply the rule of construction that a document is to be construed more strictly against one party.

[ Remainder of Page Intentionally Left Blank ] 

IN WITNESS WHEREOF, the Members have executed this Second Amended and Restated Limited Liability Company Agreement as of the date set forth above.

[Signature Page to Amended and Restated Limited Liability Company

Agreement of BR Hawthorne Springhouse JV, LLC]

[Signature Page to Amended and Restated Limited Liability Company

Agreement of BR Hawthorne Springhouse JV, LLC]

Exhibit 10.6

LIMITED LIABILITY COMPANY AGREEMENT OF

BR ROSWELL, LLC

THIS LIMITED LIABILITY COMPANY AGREEMENT of BR ROSWELL, LLC, a Delaware limited liability company (the “ Company ”), as amended from time to time, (the " Agreement ") is entered into among BR Hawthorne Springhouse JV, LLC, a Delaware limited liability company, the sole member of the Company (the " Member "), Michael L. Konig (“ Springing Member 1 ”), and Jordan B. Ruddy (“ Springing Member 2 ” and together with Springing Member 1, the “ Springing 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 ").

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

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

AGREEMENT

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

ARTICLE I

PURPOSE AND POWERS OF COMP ANY

1.1            Purpose . The Company's business and purpose shall consist solely of the acquisition, ownership, operation, management, financing and disposition of the multi-family real estate project consisting of approximately 320 units and located at 3000 Forrest Walk, Roswell, Georgia 30075 and currently commonly known as Roswell City Walk Apartments (the " Property ") and such activities as are necessary, incidental or appropriate in connection therewith.

1.2            Powers . The Company shall have all powers of a limited liability company formed under the Act and not prohibited by the Act or this Agreement; provided, however, that during the term of that certain loan from the Lender in the approximate amount of $51,000,000.00 (the " Loan "), the Company will comply with the applicable special purpose entity requirements of the Lender set forth in the Loan Documents and in Section 1.7 of this Agreement.

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

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

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

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

1.7            Limitation on Certain Activities .

(a)          Until the Loan is paid in full, the Company shall remain a Special Purpose Entity.

(b)          A “ Special Purpose Entity ” means a limited liability company which, at all times since its formation and thereafter, shall not:

The provisions of this Section 1.7 shall govern and supersede any other provision of this Agreement to the contrary.

ARTICLE II

MEMBERS

2.1            Initial Member .

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

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

2.2            Special Member . Upon the occurrence of any event that causes the Member to cease to be a member of the Company (other than (i) upon an assignment by the Member of all of its limited liability company interest in the Company and the admission of the transferee, or (ii) the resignation of the Member and the admission of an additional member of the Company, (a “ Member Cessation Event ”)), Springing Member 1 shall, without any action of any Person and simultaneously with the Member Cessation Event, automatically be admitted to the Company as a Special Member and shall continue the Company without dissolution. If, however, at the time of a Member Cessation Event, Springing Member 1 has died or is otherwise no longer able to step into the role of Special Member, then in such event, Springing Member 2 shall, concurrently with the Member Cessation Event, and without any action of any Person and simultaneously with the Member Cessation Event, automatically be admitted to the Company as Special Member and shall continue the Company without dissolution. It is the intent of these provisions that the Company never have more than one Special Member at any particular point in time. No Special Member may resign from the Company or transfer its rights as Special Member unless a successor Special Member has been admitted to the Company as Special Member by executing a counterpart to this Agreement. The Special Member shall automatically cease to be a member of the Company upon the admission to the Company of a substitute member. The Special Member shall be a member of the Company that has no interest in the profits, losses and capital of the Company and has no right to receive any distributions of Company assets. Pursuant to Section 18-301 of the Act, a Special Member shall not be required to make any capital contributions to the Company and shall not receive a limited liability company interest in the Company. A Special Member, in its capacity as Special Member, may not bind the Company. Except as required by any mandatory provision of the Act, a Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, the Company, including, without limitation, the merger, consolidation or conversion of the Company. In order to implement the admission to the Company of the Special Member, each of Springing Member 1 and Springing Member 2 shall execute a counterpart to this Agreement. Prior to its admission to the Company as Special Member, neither Michael L. Konig nor Jordan B. Ruddy shall be a member of the Company.

The Company shall at all times have a Springing Member 1 and Springing Member 2. No resignation or removal of either Springing Member 1 or Springing Member 2, and no appointment of a successor Springing Member, shall be effective unless and until such successor shall have executed a counterpart to this Agreement. In the event of a vacancy in the position of Springing Member 1 or Springing Member 2, the Member shall, as soon as practicable, appoint a successor Springing Member to fill such vacancy. By signing this Agreement, a springing member agrees that, should such Springing Member become a Special Member, such springing member will be subject to and bound by the provisions of this Agreement applicable to a Special Member.

ARTICLE III

MANAGEMENT BY MEMBER

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

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

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

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

3.5            Authorization . The Company is authorized to acquire the Property and to borrow the Loan from MetLife HCMJV 1 REIT, LLC (together with its successors and assigns, the " Lender "), and from time to time refinance the Loan. In furtherance of the conduct of the purposes described herein, the Company shall possess and may exercise all of the powers and privileges granted by the Act, and the Company is hereby authorized to do any act, enter into any agreement, contract or other instrument, and otherwise to engage in any activity and to do any action not prohibited under the Act or other applicable law which is necessary, useful, desirable or convenient to the conduct, promotion and attainment of the business and purposes of the Company. In addition, the Company, or the Member on behalf of the Company, may enter into and perform the Loan Documents and all documents, agreements, certificates, or financing statements contemplated thereby or related thereto, all without any further act, vote or approval of any other Person notwithstanding any other provision of this Agreement, the Act or applicable law, rule or regulation. The foregoing authorization shall not be deemed a restriction on the powers of the Member to enter into other agreements on behalf of the Company in accordance with this Agreement.

ARTICLE IV

INTENTIONALLY OMITTED

ARTICLE V

SUBORDINATION OF INDEMNIFICATION PROVISIONS

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

ARTICLE VI

EFFECT OF BANKRUPTCY. DEATH OR INCOMPETENCY OF A MEMBER

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

ARTICLE VII

CONTRIBUTIONS TO THE COMPANY AND DISTRIBUTIONS

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

7.2            Distributions and Allocation s. All distributions of cash or other property (except upon the Company's dissolution, which shall be governed by the applicable provisions of the Act and Article IX hereof) and all allocations of income, profits, and loss shall be made 100% to the Member in accordance with its Membership Interest. All amounts withheld pursuant to the Code or any provisions of state or local tax law with respect to any payment or distribution to the Member from the Company shall be treated as amounts distributed to the Member pursuant to this Section 7.2. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or any other applicable law.

ARTICLE VIII

ASSIGNMENTS AND RESIGNATIONS

8.1            Assignment, Resignation and Admission Generally .

(a)           Assignments . Subject to the terms of the Loan Documents and this Section 8.l(a), the Member may assign in whole or in part its Membership Interest in the Company. If the Member transfers all of its Membership Interest pursuant to this Section 8.1, 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 Member shall cease to be a member of the Company. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation in compliance with the Basic Documents shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution.

(b)           Resignation . So long as any obligation is outstanding under the Loan, the Member may not resign, except as permitted under the Basic Documents. If the Member is permitted to resign pursuant to this Section 8.l(b), an additional member of the Company shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the resignation and, immediately following such admission, and the resigning Member shall cease to be a member of the Company.

(c)           Admission of Additional Members . One or more additional members may be admitted to the Company with the written consent of the Member or the members, if applicable; provided, however, that, notwithstanding the foregoing, except as otherwise provided in the Loan Documents, so long as any obligation remains outstanding under the Loan, no additional member may be admitted to the Company pursuant to this Section 8.l(c) unless approved by the Lender.

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

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

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

ARTICLE IX

DISSOLUTION AND TERMINATION

9.1            Dissolution . Subject to the other provisions of this Agreement, the Company shall be dissolved upon the first to occur of the following: (a) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act or (b) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company or that causes the Member to cease to be a member of the Company (other than upon continuation of the Company without dissolution upon (i) an assignment by the Member of all of its Membership Interest and the admission of the transferee pursuant to Section 8.1, or (ii) the resignation of the Member and the admission of an additional member of the Company pursuant to Section 8.1), 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 (x) to continue the Company and (y) to admit the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company.

9.2            Liquidation . Upon its dissolution, the Company shall wind up its affairs and distribute its assets in accordance with Section 9.4 below and the Act by either or a combination of the following methods as the Member (or the Person carrying out the liquidation) shall determine:

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

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

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

9.4            Distributions . Upon dissolution, the Company's assets (including any cash on hand) shall be distributed in the following order and in accordance with the following priorities:

(a)           first, to the satisfaction of the Loan; then

(b)           second, to the satisfaction of the other debts and liabilities of the Company (whether by payment or the making of reasonable provision for payment thereof) and the expenses of liquidation, including a sales commission to the selling agent, if any; then

(c)           third, to the Member.

9.5            Termination . The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company, shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act.

ARTICLE X

MISCELLANEOUS PROVISIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

ARTICLE XI

DEFINITIONS

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

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

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

(c)           "Certificate of Formation" shall mean the Certificate of Formation of the Company, as amended and in force from time to time.

(d)           “Company Interest” shall mean any equity interest in the Company, direct or indirect.

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

(f)           “Company” shall mean BR ROSWELL, LLC.

(g)           “Lender” is defined in Section 3.5 of this Agreement.

(h)           "Loan" is defined in Section 1.2 of this Agreement.

(i)           “Loan Agreement” means that certain loan agreement, dated December 1, 2016, in the amount of Fifty One Million and No/100 Dollars ($51,000,000.00) by and between Lender and the Company.

(j)          "Loan Documents" shall mean collectively the Loan Agreement, the Note, the Mortgage, any Guaranty of Recourse Obligations, assignment, indemnity agreement, escrow agreement, or the functional equivalent of any of the aforementioned, and any and all other documents evidencing or securing the Loan and any and all documents related thereto.

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

(l)          “Member Cessation Event” shall have the meaning prescribed in Section 2.2 of this Agreement.

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

(n)           "Mortgage" shall mean that certain security instrument executed by the Company in favor of the Lender pursuant to which the Company conveys security title in the Property to Lender.

(o)           “Note” shall mean that certain promissory note related to and evidencing the Loan.

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

(q)           “Property” is defined in Section 1.1 of this Agreement.

(r)           "Property Manager" shall mean Carroll Management Group, LLC, a Georgia limited liability company, and its successors and assigns, so long as the initial Property Management Agreement is in full force and effect and, thereafter, the entity performing similar services for the Company with respect to the Property.

(s)           "Property Management Agreement" shall mean that certain management agreement between the Company and the Property Manager with respect to the management of the Property.

(t)           "Special Member" shall mean, upon such Springing Member’s admission to the Company as a member of the Company, the Person bound by this Agreement as Special Member in such Person's capacity as a member of the Company. A Special Member shall only have the rights and duties expressly set forth in this Agreement.

(u)           “Special Purpose Entity” is defined in Section 1.7 of this Agreement.

(v)          “Springing Member 1” shall be Michael L. Konig or any successor to him.

(w)           “Springing Member 2” shall be Jordan B. Ruddy or any successor to him.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

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

Exhibit 10.7

LOAN AGREEMENT

Dated as of December 1, 2016

By and Between

BR ROSWELL, LLC ,

as Borrower,

and

METLIFE HCMJV 1 REIT, LLC

as Lender

Property:

Roswell City Walk Apartments

3000 Forrest Street

Roswell, Fulton County, Georgia, 30075

Loan Amount: $51,000,000.00 

TABLE OF CONTENTS

Schedules and Exhibits

Schedule 4.1.21 – Material Agreements

Schedule 4.1.35 – REAs

Schedule 9.1 – Environmental Reports

Exhibit A – Legal Description

Exhibit B – Leasing Guidelines

Exhibit C – Rent Roll

Exhibit C-1 – Delinquent and Prepaid Report

Exhibit D – Organizational Chart

LOAN AGREEMENT

THIS LOAN AGREEMENT (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “ Agreement ”), dated as of December 1, 2016 (the “ Execution Date ”), by and between METLIFE HCMJV 1 REIT, LLC, a Delaware limited liability company, having an address at One MetLife Way, Whippany, NJ 07981-1449 (together with its successors and assigns, “ Lender ”), and BR ROSWELL, LLC , a Delaware limited liability company, having an address at c/o Bluerock Real Estate, LLC, 712 Fifth Avenue, 9 ^th Floor, New York, NY 10019 (“ Borrower ”).

All capitalized terms used herein shall have the respective meanings set forth in Article I hereof.

WITNESSETH :

WHEREAS , Borrower desires to obtain the Loan from Lender; and

WHEREAS , Lender is willing to make the Loan to Borrower, subject to and in accordance with the conditions and terms of this Agreement and the other Loan Documents.

NOW, THEREFORE , in consideration of the covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree, represent and warrant as follows:

I.            DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1    Definitions .

For all purposes of this Agreement, except as otherwise expressly provided:

“ Accelerated Loan Amount ” shall mean, the Secured Indebtedness, and all other sums evidenced and/or secured by the Loan Documents, including without limitation any applicable prepayment fees.

“ Advance Date ” The date funds are disbursed to Borrower.

“ Affiliate ” shall mean, any Person that either Liable Party or Ramin Kamfar, directly or indirectly, (i) owns more than fifty percent (50%) of such Person, or (ii) Controls such Person.

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

“ ALTA ” shall mean American Land Title Association or any successor thereto.

“ Apartment Units ” shall mean, collectively, the residential apartment units at the Property.

“ Application ” shall mean the application submitted for the Loan by Borrower.

“ Approved Plans and Specifications ” shall have the meaning set forth in Section 6.2.3(a) .

“ Architect ” shall have the meaning set forth in Section 6.2.3(a) .

“ Assignment of Leases ” shall mean that certain first priority Assignment of Leases, dated as of the date hereof, from Borrower, as assignor, to Lender, as assignee, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“ Assignment of Management Agreement ” shall mean that certain Assignment and Subordination of Management Agreement dated as of the date hereof executed by Borrower and Manager to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“ Bankruptcy Code ” shall mean Title 11 of the United States Code entitled “Bankruptcy”, as amended from time to time, and any successor statute or statutes and all rules and regulations from time to time promulgated thereunder, and any comparable foreign laws relating to bankruptcy, insolvency or creditors’ rights.

“ BR Control Conditions ” shall have the meaning set forth in Section 8.1 .

“ BR Operating Partnership ” shall have the meaning set forth in Section 8.1 .

“ Borrower ” shall have the meaning set forth in the introductory paragraph hereto.

“ Borrower’s Constituents ” shall have the meaning set forth in Section 4.1.26 .

“ Broker ” shall have the meaning set forth in Section 12.19 .

“ Business Day ” shall mean any day on which Lender is conducting normal business operations.

“ Business Income ” shall mean the sum of (i) the total anticipated gross income from occupancy of the Property, (ii) the amount of all charges (such as, but not limited to, operating expenses, insurance premiums, and taxes) that are the obligation of Tenants or occupants to Borrower, (iii) the fair market rental value of any Apartment Unit physically occupied and/or leased by Borrower and/or its affiliates, and (iv) any other amounts payable to Borrower or to any affiliate of Borrower pursuant to the Leases.

“ Carroll Member ” shall have the meaning set forth in Section 8.1 .

“ Carroll Parent ” shall have the meaning set forth in Section 8.1 .

“ Carroll Transferee ” shall have the meaning set forth in Section 8.1 .

“ Casualty Threshold ” shall mean $100,000.00.

“ Certification Parties ” shall mean Lender, its subsidiaries and affiliates, and their respective successors and/or assigns.

“ Closing Date Extraordinary Rental Payments ” shall have the meaning set forth in Section 4.1.16(e) .

“ Code ” shall mean the Internal Revenue Code of 1986, as amended, and as it may be further amended from time to time, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“ Condemnation ” shall mean a temporary or permanent taking by reason of any condemnation or similar eminent domain proceeding or by grant or conveyance in lieu of condemnation or eminent domain.

“ Condemnation Proceeds ” shall mean any and all compensation, awards, damages, proceeds and payments or relief for the Condemnation paid in connection with a Condemnation in respect of all or any part of the Property.

“ Contractor ” shall have the meaning set forth in Section 6.2.3(a) .

“ Control ” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person (subject to the rights of others to approve significant decisions), whether through ownership of voting securities, by contract or otherwise. The definition is to be construed to apply equally to variations of the word “ Control ” including “ Controlled ,” “ Controlling ” or “ Controlled by .”

“ Default Rate ” shall mean an annual rate equal to the Interest Rate plus four percent (4%).

“ Delinquent and Prepaid Report ” shall have the meaning set forth in Section 4.1.16(b) .

“ DOWNREIT ” means a real estate investment trust that holds all or substantially all of its real estate assets through multiple “Down-REIT” partnerships in which such trust owns a general or limited partnership interest approximately equal to the value of equity contributed (typically cash) to the “Down-REIT” partnership, and can involve one or more third party general or limited partners which contribute commercial real estate properties or other real estate assets in exchange for partnership interests in the “Down-REIT” partnership and possibly other consideration such as put rights.

“ Environmental Indemnity ” shall mean that certain Unsecured Indemnity Agreement, dated as of the date hereof, executed by Borrower and Liable Party, if any, in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“ Environmental Reports ” shall have the meaning set forth in Section 9.1 .

“ EPI ” shall have the meaning set forth in Section 6.1.1(a)(iii) .

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

“ Event of Default ” shall have the meaning set forth in Section 11.1 .

“ Execution Date ” shall have the meaning set forth in the introductory paragraph hereof.

“ Existing Contamination ” shall have the meaning set forth in the Environmental Indemnity.

“ Existing Leases ” shall mean all existing Leases, including all existing modifications and amendments, and including all existing Lease Guaranties.

“ Extraordinary Rental Payments ” means any security deposit payments under any Lease in excess of two (2) calendar months.

“ Extraordinary Rental Escrow ” shall have the meaning set forth in Section 5.1.14(b) .

“ Full Replacement Cost ” shall have the meaning set forth in Section 6.1.1(a)(i) .

“ GAAP ” shall mean generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession), or in such other statements by such entity as may be in general use by significant segments of the U.S. accounting profession.

“ General Transfer Requirements ” shall have the meaning set forth in Section 8.1 .

“ Governmental Authority ” shall mean any court, board, agency, commission, office or authority of any nature whatsoever or any governmental unit (federal, state, county, district, municipal, city, foreign or otherwise) whether now or hereafter in existence.

“ Guaranty ” shall mean any Guaranty of Recourse Obligations, whether dated as of the date hereof or subsequently, executed by Liable Party in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“ Hazardous Materials ” shall include without limitation:

(i)          Those substances included within the definitions of “hazardous substances,” “hazardous materials,” “toxic substances,” or “solid waste” in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Sections 9601 et seq .), as amended by Superfund Amendments and Reauthorization Act of l986 (Publ. L. 99-499 100 Stat. 1613), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Sections 6901 et seq .), and the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801 et seq ., and in the regulations promulgated pursuant to said laws, all as amended;

(ii)         Those substances regulated under the Georgia Solid Waste Management Act (O.C.G.A. Section 12-8-20 et seq .), the Georgia Hazardous Waste Management Act (O.C.G.A. Section 12-8-60 et seq .), the Georgia Underground Storage Tank Act (O.C.G.A. Section 12-13-1 et seq .), the Georgia Hazardous Site Response Act (O.C.G.A. Section 12-8-90 et seq .) and in the regulations promulgated pursuant to such laws, all as amended;

(iii)        Those chemicals known to cause cancer or reproductive toxicity, as published pursuant to the applicable State statutes, if any, including the statutes and laws referred to in subparagraph (ii) above;

(iv)        Those substances listed in the United States Department of Transportation Table (49 CFR 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) as hazardous substances (40 CFR Part 302 and amendments thereto);

(v)         Any material, waste or substance which is (A) petroleum, (B) asbestos, (C) polychlorinated biphenyls, (D) designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq . (33 U.S.C. Section 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317); (E) a chemical substance or mixture regulated under the Toxic Substances Control Act of 1976, 15 U.S.C. Sections 2601 et seq .; (F) flammable explosives; or (G) radioactive materials; and

(vi)        Such other substances, materials and wastes which are or become regulated as hazardous or toxic under applicable local, state or federal law, or the United States government, or which are classified as hazardous or toxic under federal, state, or local laws or regulations.

“ Impairment of the Security ” shall mean any or all of the following: (i) any of the Leases for more than thirty-two (32) Apartment Units existing immediately prior to the damage, destruction, Condemnation or casualty shall have been cancelled, or shall contain any exercisable right to cancel as a result of the damage, destruction or casualty that has not been legally waived in writing by the applicable Tenant; (ii) if the Casualty Threshold has been exceeded, the casualty or damage occurs during the last year of the term of the Loan; or (iii) restoration of the Property is estimated to require more than one year to complete from the date of the occurrence.

“ Impositions ” shall mean real estate and other taxes and assessments which may be payable, assessed, levied, imposed upon or become a lien on or against any portion of the Property.

“ Improvements ” shall have the meaning set forth in the Security Instrument.

“ Indemnified Parties ” means Lender, MetLife HCMJV 1, LP, and their respective affiliates, partners and participants, and the officers, directors, agents, employees of each of them, and the successors and assigns of each of them, and any Person who is or will have been involved in the origination of the Loan, any Person who is or will have been involved in the servicing of the Loan secured hereby, any Person in whose name the encumbrance created by the Security Instrument is or will have been recorded, persons and entities who may hold or acquire or will have held a full or partial interest in the Loan secured hereby (including, but not limited to, investors or prospective investors in the Securities, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan secured hereby for the benefit of third parties) as well as the respective directors, officers, shareholders, partners, employees, agents, servants, representatives, contractors, subcontractors, affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including but not limited to any other Person who holds or acquires or will have held a participation or other full or partial interest in the Loan, whether during the term of the Loan or as a part of or following a foreclosure of the Loan and including, but not limited to, any successors by merger, consolidation or acquisition of all or a substantial portion of Lender’s assets and business).

“ Insolvent Entity ” shall have the meaning set forth in Section 11.1(c) .

“ Insurance Proceeds ” shall mean all insurance proceeds payable to Borrower in connection with the Property whether or not such insurance coverage is specifically required under the terms of this Agreement.

“ Interest Rate ” shall mean a per annum rate equal to three and sixty-three hundredths percent (3.63%).

“ Investor ” shall have the meaning set forth in Section 10.1 .

“ IT Agreement ” shall mean that certain Service Agreement dated as of December 1, 2016 entered into by and between Borrower and IT SUPPORT SOLUTIONS GROUP, LLC, a Georgia limited liability company.

“ Late Charge ” shall mean an amount equal to four cents ($0.04) for each dollar that is overdue.

“ Lease ” shall mean all leases and all other agreements for possession of all or any portion of the Property, including all of the same now or hereafter existing, and all extensions, modifications, amendments, expansions and renewals of any of the same and all Lease Guaranties.

“ Lease Guaranties ” shall mean every guarantee of any obligation under any Lease, including all modifications and amendments to such guaranties.

“ Leasing Guidelines ” shall mean the Leasing Guidelines attached to this Agreement as Exhibit B , as the same may be amended, modified or supplemented in accordance with the provisions of this Agreement by Lender.

“ Lender ” shall have the meaning set forth in the introductory paragraph hereof.

“ Lender’s Address for Insurance Notification ” shall mean: MetLife HCMJV 1 REIT, LLC, and its successors, assigns, affiliates, partners and participants, One MetLife Way, Whippany, NJ 07981-1449, Attention: Officer in Charge.

“ Liable Party ” shall mean, collectively, Bluerock Residential Growth REIT, Inc., a Maryland corporation, and any other Person now or hereafter executing the Environmental Indemnity (other than Borrower) and/or any guaranty of any of Borrower’s obligations under the Loan Documents.

“ Liens and Encumbrances ” shall mean any lien or encumbrance on the Property, including deeds of trust, mortgages, security interests, conditional sales, mechanic liens, tax liens or assessment liens (including any tax liens or assessment liens to secure repayment of any loan or other financing including, without limitation, any Property-Assessed Clean Energy loan) regardless of whether or not they are subordinate to the security title conveyed by the Security Instrument.

“ Loan ” shall mean, collectively, the indebtedness evidenced by the Note with interest at the rates set forth herein, all additional advances or fundings made by Lender, and any other amounts required to be paid by Borrower under any of the Loan Documents.

“ Loan Amount ” shall equal Fifty One Million and No/100 Dollars ($51,000,000.00).

“ Loan Documents ” shall mean, collectively, this Agreement, the Note, the Security Instrument, the Assignment of Leases, the Assignment of Management Agreement and any and all other documents now or hereafter executed and/or delivered in connection with the Loan (except the Environmental Indemnity and the Guaranty, if any), as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. The Environmental Indemnity and the Guaranty, if any, are not Loan Documents and shall survive repayment of the Loan or other termination of the Loan Documents to the extent set forth therein.

“ Losses ” shall mean, collectively, any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement, punitive damages, foreseeable and unforeseeable consequential damages, of whatever kind or nature (including but not limited to reasonable attorneys’ fees and other costs of defense).

“ LTV ” shall mean the ratio of the then outstanding principal balance of the Loan to the value of the Property, as determined by Lender.

“ Management Agreement ” shall mean the Property Management Agreement, dated as of December 1, 2016 entered into by and between Borrower and Manager, pursuant to which the Manager is to provide management and other services with respect to the Property, and all amendments thereto entered into in accordance with the terms and conditions set forth in this Agreement.

“ Manager ” shall mean Carroll Management Group, LLC, a Georgia limited liability company, or any other manager approved in accordance with the terms and conditions of the Loan Documents.

“ Material Adverse Change ” shall mean a material adverse change in (i) the condition (financial, physical or otherwise) of the Property and/or (ii) the financial condition of Borrower that would reasonably be expected to impair its ability to perform its obligations under the Loan Documents to which it is a party.

“ Material Agreements ” shall mean each contract and agreement relating to the ownership, management, development, use, operation, leasing, maintenance, repair or improvement of the Property (other than the Management Agreement and the Leases), (i) under which there is an obligation of Borrower to pay more than $250,000.00 per annum, (ii) the termination of which would materially adversely affect the Property or the operation thereof, or (iii) which is not terminable by the owner of the Property upon thirty (30) days’ or less notice without payment of a termination fee in excess of $25,000.00 in the aggregate for all contracts and agreements under this clause (iii).

“ Maturity Date ” shall mean December 1, 2026.

“ MetLife Parties ” shall have the meaning set forth in Section 4.1.28 .

“Monthly Installment” shall mean equal monthly installments of principal and interest at the Interest Rate each in the amount of $232,729.71 based on an amortization period of thirty (30) years.

“ Net Condemnation Proceeds ” shall mean all Condemnation Proceeds less the cost, if any, to Lender of recovering the Condemnation Proceeds including, without limitation, reasonable attorneys’ fees and expenses, and adjusters’ fees.

“ Net Insurance Proceeds ” shall mean Insurance Proceeds less the cost, if any, to Lender of recovering the Insurance Proceeds including, without limitation, reasonable attorneys’ fees and expenses, and adjusters’ fees.

“ Note ” shall mean that certain Promissory Note, dated as of the date hereof, in the original principal amount of Fifty One Million and No/100 Dollars ($51,000,000.00), made by Borrower to the order of Lender, as the same may be hereinafter amended, consolidated, split, severed, restated, replaced (whether by one or more replacement notes), supplemented, renewed, extended or otherwise modified from time to time.

“ O&M Agreement ” shall mean an Operations and Maintenance Agreement with respect to the Property, if any, reviewed and approved by Lender in connection with underwriting the Loan.

“ One-Time Property Transfer ” shall have the meaning set forth in Section 8.1 .

“ Ordinary Course Transfers ” shall mean (i) any transfer by current shareholders or limited partners of Liable Party or BR Operating Partnership or (ii) in the case of any issuance of interests, the issuance thereof by Liable Party or BR Operating Partnership, in each case undertaken in connection with the day to day operations and/or capital raising of Liable Party, including any issuance, redemption, creation and issuance of new classes or series of ownership interests, of corporate stock, partnership interests or other ownership interests in Liable Party or BR Operating Partnership

“ Other Charges ” shall mean all ground rents, maintenance charges, impositions other than Impositions, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

“ Permitted Exceptions ” shall mean, collectively, (i) the lien and security interests created and the security title conveyed by the Loan Documents, (ii) those property specific exceptions to title recorded in the real estate records of the county where the Property is located and contained in Schedule B-1 of the title insurance policy or policies which have been approved by Lender, (iii) Liens and Encumbrances, if any, for taxes imposed by any Governmental Authority not yet due or delinquent, and (iv) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion. Notwithstanding the foregoing, Permitted Exceptions shall not include any tax liens or assessment liens to secure repayment of any loan or other financing including, without limitation, any Property-Assessed Clean Energy loan.

“ Permitted Indebtedness ” shall have the meaning set forth in Section 8.3 .

“ Permitted Transfer ” shall have the meaning set forth in Section 8.1 .

“ Person ” shall mean any individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association, any other entity, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“ Personal Property ” shall have the meaning set forth in the Security Instrument.

“ Plan ” shall have the meaning set forth in Section 4.1.5 .

“ Policies ” and “ Policy ” shall mean all insurance provided for in Section 6.1.1(a) and obtained under valid and enforceable policies.

“ Premiums ” shall mean all premiums for the Policies required under this Agreement.

“ Prepayment Fee ” shall be the greater of (A) (x) the present value of all remaining payments of principal and interest under the Loan including the outstanding principal due on the Maturity Date, discounted at the rate which, when compounded monthly, is equivalent to the Treasury Rate compounded semi-annually, less (y) the amount of the principal then outstanding, or (B) one percent (1%) of the amount of the principal being prepaid.

“ Principal and Interest Installment Date ” shall mean January 1, 2020.

“ Property ” shall mean the fee estate of Borrower with regard to the property described on Exhibit A , the Improvements thereon and all personal property owned by Borrower and encumbered by the Security Instrument, together with all rights pertaining to such property and Improvements, all as more particularly described in the Security Instrument.

“ Purchase Agreement ” shall mean that certain Purchase and Sale Agreement between GGT LMI City Walk GA, LLC, a Delaware limited liability company, as seller, and Bluerock Real Estate, LLC, a Delaware limited liability company, as purchaser, with an effective date of September 15, 2016, as amended by that certain First Amendment to Purchase and Sale Agreement dated as of September 19, 2016, that certain Second Amendment to Purchase and Sale Agreement dated as of September 30, 2016 and that certain Third Amendment to Purchase and Sale Agreement dated as of November 3, 2016, and as assigned by Bluerock Real Estate, LLC, a Delaware limited liability company, to Borrower pursuant to that certain Assignment of Purchase and Sale Agreement dated as of December 1, 2016.

“ Rating Agencies ” shall mean any nationally recognized statistical rating agency which has assigned a rating to any Securities.

“ REAs ” shall mean, collectively, those agreements as set forth on Schedule 4.1.35 attached hereto.

“ Regulated Entity ” shall have the meaning set forth in Section 4.1.29 .

“ Remedial Work ” shall mean any investigation or monitoring of site conditions or any clean up, containment, restoration, removal or other remedial work.

“ Rent Roll ” shall have the meaning set forth in Section 4.1.16(a) .

“ Rents and Profits ” shall have the meaning set forth in the Security Instrument.

“ Request for Payment ” shall have the meaning set forth in Section 6.2.3(b)(ii) .

“ Requirements ” shall mean all laws, ordinances, orders, covenants, conditions and restrictions and other requirements relating to land and building design and construction, use and maintenance, that may now or hereafter pertain to or affect the Property or any part of the Property or the Use, including, without limitation, planning, zoning, subdivision, environmental, air quality, flood hazard, fire safety, handicapped facilities, building, health, fire, traffic, safety, wetlands, coastal and other governmental or regulatory rules, laws, ordinances, statutes, codes and requirements applicable to the Property, including permits, licenses and/or certificates that may be necessary from time to time to comply with any of the these requirements.

“ Requirements for Restoration ” shall have the meaning set forth in Section 6.2.3 .

“ Requirements of Environmental Laws ” means all Requirements of environmental, ecological, health, or industrial hygiene laws or regulations or rules of common law related to the Property, including, without limitation, all Requirements imposed by any environmental permit, law, rule, order, or regulation of any federal, state, or local executive, legislative, judicial, regulatory, or administrative agency, which relate to (i) exposure to Hazardous Materials; (ii) pollution or protection of the air, surface water, ground water, land; (iii) solid, gaseous, or liquid waste generation, treatment, storage, disposal, or transportation; or (iv) regulation of the manufacture, processing, distribution and commerce, use, or storage of Hazardous Materials.

“ Restoration ” shall have the meaning set forth in Section 6.2.1(b) .

“ Restoration Funds ” shall have the meaning set forth in Section 6.2.3(a) .

“ Secondary Financing ” shall have the meaning set forth in Section 8.2 .

“ Secured Indebtedness ” shall mean, collectively, the indebtedness evidenced by the Note with interest at the rates set forth herein, all additional advances or fundings made by Lender under the Loan Documents, and any other amounts required to be paid by Borrower under any of the Loan Documents.

“ Securities ” shall have the meaning set forth in Section 10.1 .

“ Security Instrument ” shall mean that certain first priority Deed to Secure Debt, Security Agreement and Fixture Filing, dated as of the date hereof, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, consolidated, split, spread, severed, restated, replaced, supplemented, renewed, extended or otherwise modified from time to time.

“ Servicer ” shall mean a servicer, if any, selected by Lender to service the Loan.

“ Sole Member ” shall have the meaning set forth in Section 8.1 .

“ Special Purpose Entity ” means a Person, other than a natural person, which shall not:

(i)          engage in any business other than owning and operating the Property;

(ii)         acquire or own a material asset other than the Property and incidental personal property (other than substitutes thereof);

(iii)        maintain assets in a way difficult to segregate and identify, or commingle its assets with the assets of any other person or entity;

(iv)        fail to hold itself out to the public as a legal entity separate from any other;

(v)         fail to conduct business solely in its name;

(vi)        fail to maintain records, accounts or bank accounts separate from any other person or entity;

(vii)       file or consent to a petition pursuant to applicable bankruptcy, insolvency, liquidation or reorganization statutes, or make an assignment for the benefit of creditors without the unanimous consent of its partners or members, as applicable;

(viii)      incur additional indebtedness except for Permitted Indebtedness and except for trade payables in the ordinary course of business of owning and operating the Property, provided that such trade payables are paid within ninety (90) days of when incurred;

(ix)         dissolve, liquidate, consolidate, merge or (except as permitted by this Agreement) sell all or substantially all of its assets; or

(x)          without the consent of Lender, modify, amend or revise its organizational documents in any material respect.

“ Standard Lease Form ” shall have the meaning set forth in Exhibit B .

“ State ” shall mean the state where the Property is located.

“ Tenant ” shall mean any Person obligated by contract or otherwise to pay monies (including a percentage of gross income, revenue or profits) under any Lease now or hereafter affecting all or any part of the Property.

“ Title Insurance Policy ” shall mean an ALTA mortgagee title insurance policy or policies in the form acceptable to Lender issued with respect to the Property and insuring the security title conveyed by the Security Instrument, together with such endorsements and affirmative coverage as Lender may require.

“ Transfer ” shall have the meaning set forth in Section 8.1 .

“ Treasury Rate ” shall mean the annualized yield on securities issued by the United States Treasury having a maturity equal to the remaining stated term of the Loan, as quoted in the Federal Reserve Statistical Release [H. 15 (519)] under the heading “U.S. Government Securities - Treasury Constant Maturities” for the date which is five (5) Business Days prior to the date on which prepayment is being made. If this rate is not available as of the date of prepayment, the Treasury Rate shall be determined by interpolating between the yield on securities of the next longer and next shorter maturity. If the Treasury Rate is no longer published, Lender shall select a comparable rate.

“ UCC ” or “ Uniform Commercial Code ” shall mean the Uniform Commercial Code as in effect in the State.

“ Unsecured Obligations ” means any obligations evidenced by or arising under the Environmental Indemnity.

“ UPREIT ” means an “Umbrella Partnership” real estate investment trust that holds all or substantially all of its real estate assets through an operating partnership in which such trust holds a general or limited partnership interest approximately equal to the value of capital raised by such trust through sales of its capital stock, and can involve one or more third party general or limited partners which contribute property or other real estate assets in exchange for partnership units of the operating partnership which are convertible (at the option of the holder) into equity interests in the real estate investment trust.

“ Use ” shall have the meaning set forth in Section 5.1.13 .

“ Work ” shall have the meaning set forth in Section 6.2.3(a) .

Section 1.2   Principles of Construction . All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. Any reference in this Agreement or in any other Loan Document, the Guaranty, if any, or the Environmental Indemnity to any Loan Document shall be deemed to mean such Loan Document, Guaranty, if any, or Environmental Indemnity (as applicable) as the same may hereafter be amended, modified, supplemented, extended, replaced and/or restated from time to time (and, in the case of any note or other instrument, to any instrument issued in substitution therefor). Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.

II.            THE LOAN

Section 2.1    The Loan .

2.1.1     Agreement to Lend and Borrow . Subject to and upon the terms and conditions set forth herein, Lender shall make the Loan to Borrower and Borrower shall accept the Loan from Lender on the Advance Date.

2.1.2     Single Disbursement to Borrower . Borrower shall receive only one disbursement hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the Loan may not be reborrowed.

2.1.3      The Note . The Loan shall be evidenced by the Note and shall be repaid in accordance with the terms of this Agreement and the Note.

Section 2.2    Interest Rate .

2.2.1      Payment of Principal and Interest . Principal and interest under this Agreement and the Note shall be payable as follows:

(a)           Interest on the funded portion of the Loan Amount shall accrue from the Advance Date at the Interest Rate and shall be paid on January 1, 2017 and on the first day of each calendar month thereafter until the Principal and Interest Installment Date;

(b)           Commencing on the Principal and Interest Installment Date and on the first day of each calendar month thereafter, to and including the first day of the calendar month immediately preceding the Maturity Date, Borrower shall pay the Monthly Installment; and

(c)           On the Maturity Date, a final payment in the aggregate amount of the unpaid principal sum evidenced by the Note, all accrued and unpaid interest, and all other unpaid amounts of the Secured Indebtedness shall become immediately payable in full.

(d)           Borrower acknowledges and agrees that a substantial portion of the original Loan Amount shall be outstanding and due on the Maturity Date.

(e)           Interest shall be calculated on the basis of a thirty (30) day month and a three hundred sixty (360) day year, except that (i) if the Advance Date occurs on a date other than the first day of a calendar month, interest payable for the period commencing on the Advance Date and ending on the last day of the month in which the Advance Date occurs shall be calculated on the basis of the actual number of days elapsed over a 365 day or 366 day year, as applicable, and (ii) if the Maturity Date occurs on a date other than the last day of the month, interest payable for the period commencing on the first day of the month in which the Maturity Date occurs and ending on the Maturity Date shall be calculated on the basis of the actual number of days elapsed over a 365 day or 366 day year, as applicable.

Section 2.3            Application of Payments . At the election of Lender, and to the extent permitted by law, all payments shall be applied in the order selected by Lender to any expenses, prepayment fees, late charges, escrow deposits and other sums due and payable under the Loan Documents, and to unpaid interest at the Interest Rate or at the Default Rate, as applicable. The balance of any payments shall be applied to reduce the then unpaid Loan Amount.

Section 2.4   Security . The covenants of the Security Instrument are incorporated by reference into this Agreement. The Note shall evidence, and the Security Instrument and the Assignment of Leases shall secure, the Secured Indebtedness.

Section 2.5   Late Charge . If any payment of interest and/or principal (other than the outstanding principal balance of the Loan on the Maturity Date), or any payment of a required escrow deposit is not paid within seven (7) days after the due date, Lender shall have the option to charge Borrower the Late Charge, provided, however, such Late Charge shall not be charged with respect to the first late payment during the term of the Loan nor with respect to the final payment due on the Maturity Date. The Late Charge is for the purpose of defraying the expenses incurred in connection with handling and processing delinquent payments and is payable in addition to any other remedy Lender may have. Unpaid Late Charges shall become part of the Secured Indebtedness and shall be added to any subsequent payments due under the Loan Documents.

Section 2.6   Acceleration Upon Event of Default . At the option of Lender, if Borrower fails to pay any sum specified in this Agreement or the Note within seven (7) days after the due date, or if any other Event of Default occurs, the Accelerated Loan Amount shall become immediately due and payable.

Section 2.7    Interest Upon Event of Default . The Accelerated Loan Amount shall bear interest at the Default Rate, which shall never exceed the maximum rate of interest permitted to be contracted for under the laws of the State. The Default Rate shall commence upon the occurrence of an Event of Default and shall continue until all defaults are cured.

Section 2.8    Limitation on Interest . The agreements made by Borrower with respect to this Agreement, the Note and the other Loan Documents are expressly limited so that in no event shall the amount of interest received, charged or contracted for by Lender exceed the highest lawful amount of interest permissible under the laws applicable to the Loan. If at any time performance of any provision of this Agreement, the Note or the other Loan Documents results in the highest lawful rate of interest permissible under applicable laws being exceeded, then the amount of interest received, charged or contracted for by Lender shall automatically and without further action by any party be deemed to have been reduced to the highest lawful amount of interest then permissible under applicable laws. If Lender shall ever receive, charge or contract for, as interest, an amount which is unlawful, at Lender’s election, the amount of unlawful interest shall be refunded to Borrower (if actually paid) or applied to reduce the then unpaid Loan Amount. To the fullest extent permitted by applicable laws, any amounts contracted for, charged or received under the Loan Documents included for the purpose of determining whether the Interest Rate would exceed the highest lawful rate shall be calculated by allocating and spreading such interest to and over the full stated term of the Loan.

Section 2.9   Prepayment . Borrower shall not have the right to prepay all or any portion of the Loan Amount at any time during the term of this Loan except as expressly set forth in this Section 2.9 . During the 120-day period prior to the Maturity Date, Borrower may prepay the Loan without a Prepayment Fee on thirty (30) days’ prior written notice to Lender. In addition, commencing on December 1, 2021, Borrower may prepay the Loan with a Prepayment Fee on forty-five (45) days’ prior written notice to Lender. If Borrower provides notice of its intention to prepay, the Accelerated Loan Amount shall become due and payable on the date specified in the prepayment notice.

2.9.1     Prepayment Fee . Any tender of payment by Borrower or any other person or entity of the Secured Indebtedness, other than as expressly provided in the Loan Documents, shall constitute a prohibited prepayment. If a prepayment of all or any part of the Secured Indebtedness is made following (i) an Event of Default and an acceleration of the Maturity Date, (ii) the application of money to the principal of the Loan after a casualty or Condemnation, or (iii) in connection with a purchase of the Property or a repayment of the Secured Indebtedness at any time before, during or after, a judicial or non-judicial foreclosure or sale of the Property, then to compensate Lender for the loss of the investment, Borrower shall pay to Lender an amount equal to the Prepayment Fee. Notwithstanding the foregoing, so long as Borrower makes a good faith effort to recover any Prepayment Fee which would be due as a result of a casualty or Condemnation, from the insurer in the case of a casualty or from the condemning authority in the case of a Condemnation, then the Prepayment Fee due as a result of the casualty or Condemnation shall be waived except to the extent recovered by Borrower. Lender will, upon request, provide an estimate of the amount of the Prepayment Fee two (2) weeks before the date of the scheduled prepayment.

2.9.2     Waiver of Right to Prepay Note Without Prepayment Fee . Borrower acknowledges that Lender has relied upon the anticipated investment return under the Note and this Agreement in entering into transactions with, and in making commitments to, third parties and that the tender of any prohibited prepayment or any permitted prepayment which pursuant to the terms of the Note and this Agreement requires a Prepayment Fee, shall include the Prepayment Fee. Borrower agrees that the determination of the Interest Rate was based on the intent, expectation and agreement (and the Interest Rate would have been higher without such agreement) of Borrower and Lender that the amounts advanced under the Note and this Agreement would not be prepaid during the term of the Loan, or if any such prepayment would occur, the Prepayment Fee would apply (except as expressly permitted by the terms of the Note and this Agreement). Borrower also agrees that the Prepayment Fee represents the reasonable estimate of Lender and Borrower of a fair average compensation for the loss that may be sustained by Lender as a result of a prepayment of the Loan and it shall be paid without prejudice to the right of Lender to collect any other amounts provided to be paid under the Loan Documents

BORROWER EXPRESSLY (A) WAIVES ANY RIGHTS IT MAY HAVE UNDER GEORGIA LAW TO PREPAY THE LOAN, IN WHOLE OR IN PART, WITHOUT FEE OR PENALTY, UPON ACCELERATION OF THE MATURITY DATE OF THE LOAN, AND (B) AGREES THAT IF, FOR ANY REASON, A PREPAYMENT OF THE LOAN IS MADE, UPON OR FOLLOWING ANY ACCELERATION OF THE MATURITY DATE OF THE LOAN BY LENDER ON ACCOUNT OF ANY DEFAULT BY BORROWER UNDER ANY LOAN DOCUMENT, INCLUDING BUT NOT LIMITED TO ANY TRANSFER, FURTHER ENCUMBRANCE OR DISPOSITION WHICH IS PROHIBITED OR RESTRICTED BY THIS AGREEMENT, THE SECURITY INSTRUMENT OR ANY OF THE OTHER LOAN DOCUMENTS, THEN BORROWER SHALL BE OBLIGATED TO PAY LENDER CONCURRENTLY THE PREPAYMENT FEE. BY EXECUTING THE NOTE AND THIS AGREEMENT, BORROWER AGREES THAT LENDER’S AGREEMENT TO MAKE THE LOAN AT THE INTEREST RATE AND FOR THE TERM SET FORTH IN THIS AGREEMENT CONSTITUTES ADEQUATE CONSIDERATION FOR THIS WAIVER AND AGREEMENT.

III.           TAXES, LIENS AND ENCUMBRANCES AND OTHER CHARGES.

Section 3.1   Payment of Impositions . Unless otherwise paid to Lender as provided in Section 5.1.14(a) , Borrower shall pay all Impositions. The Impositions shall be paid not later than thirty (30) days before the date on which the particular Imposition would become delinquent and Borrower shall produce to Lender receipts of the imposing authority, or other evidence reasonably satisfactory to Lender, evidencing the payment of the Imposition in full. If Borrower elects by appropriate legal action to contest any Imposition, Borrower shall first deposit cash with Lender as a reserve in an amount which Lender reasonably determines is sufficient to pay the Imposition plus all fines, interest, penalties and costs which may become due pending the determination of the contest. If Borrower deposits this sum with Lender, Borrower shall not be required to pay the Imposition provided that the contest operates to prevent enforcement or collection of the Imposition, or the sale or forfeiture of, the Property, and is prosecuted with due diligence and continuity. Upon termination of any proceeding or contest, Borrower shall pay the amount of the Imposition as finally determined in the proceeding or contest. Provided that there is not then an Event of Default, the monies which have been deposited with Lender pursuant to this Section shall be applied toward such payment and the excess, if any, shall be returned to Borrower.

IV.            REPRESENTATIONS AND WARRANTIES

Section 4.1    Borrower Representations . Borrower represents and warrants as of the date hereof that:

4.1.1     Organization .

(a)           The execution of the Loan Documents and the Environmental Indemnity have been duly authorized and there is no provision in the organizational documents of Borrower requiring further consent for such action by any other entity or person.

(b)           It is duly organized, validly existing and is in good standing under the laws of the state of its formation and in the State, and it has all necessary licenses, authorizations, registrations, permits and/or approvals to own its properties and to carry on its business as presently conducted.

(c)           The execution, delivery and performance of the Loan Documents and the Environmental Indemnity will not result in Borrower’s being in default under any provision of its organizational documents or of any deed of trust, deed to secure debt, mortgage, lease, credit or other agreement to which it is a party or which affects it or the Property.

(d)           The Loan Documents and the Environmental Indemnity have been duly authorized, executed and delivered by Borrower and constitute valid and binding obligations of Borrower which are enforceable in accordance with their terms, except to the extent that such enforcement may be limited by applicable bankruptcy or similar laws affecting the enforcement of creditors’ rights generally and the availability of equitable remedies.

4.1.2     Litigation . Neither Borrower nor any of Borrower’s Constituents is involved in any litigation, arbitration, or other proceeding or governmental investigation pending which if determined adversely would materially adversely affect Borrower’s ability to perform in accordance with the Loan Documents or the Environmental Indemnity.

4.1.3      Agreements . Borrower is not in default with respect to any order or decree of any court or any order, regulation or demand of any Governmental Authority, which default would be reasonably likely to materially and adversely affect the condition (financial or other) or operations of the Property or Borrower or Borrower’s ability to perform its obligations hereunder or under the Loan Documents or the Environmental Indemnity. Borrower has complied with all requirements of all instruments and agreements affecting the Property, whether or not of record, including without limitation all covenants and agreements by and between Borrower and any governmental or regulatory agency pertaining to the development, use or operation of the Property.

4.1.4     Consents . No consent, approval, authorization or order of any court or Governmental Authority is required for the execution, delivery and performance by Borrower of, or compliance by Borrower with, this Agreement or any of the other Loan Documents or the Environmental Indemnity or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by Borrower.

4.1.5     No Plan Assets . (i) it is acting on its own behalf; (ii) it is not an employee benefit plan as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, nor a plan as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “ Code ”), that is subject to Section 4975 of the Code (each of the foregoing hereinafter referred to collectively as a “ Plan ”); (iii) Borrower’s assets do not constitute “plan assets” of one or more such Plans within the meaning of Department of Labor Regulation Section 2510.3-101, as modified by Section 3(42) of ERISA; (iv) it will not be reconstituted as a Plan or as an entity whose assets constitute “plan assets”; and (v) it is not, and will not be, a “governmental plan” within the meaning of Section 3(32) of ERISA and the transactions contemplated by the Loan Documents are not and will not be in violation of any state statutes applicable to Borrower that regulate investments of, and fiduciary obligations with respect to, governmental plans and that are similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.

4.1.6     Compliance . The Improvements and their Use comply with (and no notices of violation have been received in connection with) all Requirements.

4.1.7     Zoning . The zoning approval for the Property is not dependent upon the ownership or use of any property which is not encumbered by the Security Instrument.

4.1.8     Financial Information . All financial statements, including, without limitation, the statements of cash flow and income and operating expense, that have been delivered to Lender in respect of the Property and/or in connection with the Loan (i) are true, complete and correct in all material respects as of the date of such reports, (ii) accurately represent the financial condition of the Property as of the date of such reports, and (iii) have been prepared in accordance with GAAP (or other accounting standards consistently applied and acceptable to Lender) throughout the periods covered. Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower and which are, individually or in the aggregate, reasonably likely to have a materially adverse effect on the Property or the operation thereof, except as referred to or reflected in the most recent financial statements of Borrower delivered to Lender. Since the date of such financial statements, there has been no Material Adverse Change in the financial condition, operations or business of Borrower or the Property from that set forth in the financial statements.

4.1.9     Casualty and Condemnation . Except as expressly approved by Lender in writing, no casualty or damage to any part of the Property that would cost more than $50,000 to restore or replace has occurred which has not been fully restored or replaced. No part of the Property has been taken in Condemnation or other similar proceeding or transferred in lieu of Condemnation, nor has Borrower received notice of any proposed Condemnation or other similar proceeding affecting the Property. No Condemnation or other proceeding has been commenced, is pending or, to Borrower’s best knowledge, is contemplated with respect to all or any portion of the Property or for the relocation of roadways providing access to the Property.

4.1.10   Enforceability . The Loan Documents and the Environmental Indemnity are not subject to any right of rescission, set off, counterclaim or defense by Borrower, including the defense of usury, nor would the operation of any of the terms of the Loan Documents or the Environmental Indemnity, or the exercise of any right thereunder, render the Loan Documents or the Environmental Indemnity unenforceable, and Borrower has not asserted any right of rescission, set off, counterclaim or defense with respect thereto.

4.1.11   Assignment of Leases . Pursuant to the Assignment of Leases, Borrower has assigned the Leases and the Rents and Profits to Lender. Borrower acknowledges that it is permitted to collect certain of the Rents and Profits pursuant to a revocable license as set forth in the Assignment of Leases. No Person other than Lender has any interest in or assignment of the Leases or any portion of the Rents and Profits due and payable or to become due and payable thereunder.

4.1.12   Insurance . Borrower has obtained and has delivered to Lender evidence of all of the Policies, with all premiums prepaid thereunder, reflecting the insurance coverages, amounts and other requirements set forth in this Agreement.  No claims have been made under any of the Policies, and no Person, including Borrower, has done, by act or omission, anything which would impair the coverage of any of the Policies.

4.1.13   Licenses . All authorizations, permits, licenses, including, without limitation liquor licenses, if any, and operating permits, required by any Governmental Authority for the use, occupancy and operation of the Property in the manner in which the Property is currently being used, occupied and operated have been obtained, paid for and are in full force and effect and, to the knowledge of Borrower, all Tenants have such permits and approvals as are required by any Governmental Authority for the use, occupancy and operation of the premises demised under their respective Leases.

4.1.14   Flood Zone . None of the Improvements on the Property is located in an area identified by the Federal Emergency Management Agency as a special flood hazard area.

4.1.15   Physical Condition . To Borrower’s knowledge and except as identified in any property condition report ordered by and delivered to Lender in connection with the Loan, the Property, including, without limitation, all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair; there exists no structural or other material defects or damages in the Property, whether latent or otherwise. Borrower has not received notice from any insurance company or bonding company of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any Policy or bond. Construction of the Improvements on the Property is complete.

4.1.16   Leases .

(a)           The rent roll attached hereto as Exhibit C (the “ Rent Roll ”) is true, correct and complete and there are no Leases affecting the Property except those Leases identified on the Rent Roll. All agreements between the landlord and Tenant or between the landlord and any guarantor pertaining to any of such Leases are set forth in writing.

(b)           There are no defaults by Borrower under the Existing Leases. To the best knowledge of Borrower and except as reflected in the delinquent and prepaid report attached hereto as Exhibit C-1 (the “ Delinquent and Prepaid Report ”), there are no defaults by any Tenants under the Existing Leases nor by any guarantors under the existing Lease Guaranties. The Existing Leases, including the existing Lease Guaranties, are in full force and effect.

(c)           No Tenant now occupies or has a Lease with regard to, nor will any Tenant occupy or have a Lease with regard to, ten (10) or more Apartment Units.

(d)           No Existing Lease may be amended, terminated or canceled unilaterally by a Tenant, and no Tenant may be released from its obligations, except in the event of material casualty or Condemnation or except with regard to termination provisions that are specifically required by law, including, without limitation, the Servicemembers Civil Relief Act, 50 USC App. Sec. 501-597(b), as may be amended from time to time.

(e)           Except as reflected in the Delinquent and Prepaid Report and except for rent and additional rent for the current month, Borrower has not accepted any payment of rent more than one month in advance of its due date, nor, except with regard to Apartment Unit 4318 (the “ Closing Date Extraordinary Rental Payments ”), any security deposit in an amount exceeding two (2) month’s rent.

4.1.17   Filing and Recording Taxes . All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by Borrower under applicable Requirements in connection with the transfer of the Property to Borrower have been paid or are being paid simultaneously herewith. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid under applicable Requirements in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Security Instrument, have been paid or are being paid simultaneously herewith. All taxes and governmental assessments due and owing in respect of the Property have been paid, or an escrow of funds in an amount sufficient to cover such payments has been established hereunder or are insured against by the Title Insurance Policy.

4.1.18   Special Purpose Entity/Separateness .

(a)           Borrower is a Special Purpose Entity.

(b)           The Property has “single asset real estate” status as defined by Section 101(51)(B) of the Bankruptcy Code.

(c)           The representations and warranties set forth in this Section 4.1.18 shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.

4.1.19   Solvency . Borrower (a) has not entered into the transaction contemplated by this Agreement or any Loan Document or the Environmental Indemnity with the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Loan Documents and the Environmental Indemnity. Giving effect to the Loan, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted.

4.1.20   Organizational Chart . The organizational chart attached as Exhibit D hereto, relating to Borrower and certain affiliates and other parties, is true, complete and correct on and as of the date hereof and shows all Persons holding a twenty-five percent (25%) or more direct or indirect ownership interest in Borrower and/or holding a Controlling interest in Borrower. Borrower has delivered to Lender true and correct copies of all Borrower’s organizational documents and except as expressly approved by Lender in writing, there have been no changes in Borrower’s Constituents since the date that the Application was executed by Borrower.

4.1.21   Material Agreements . Attached hereto as Schedule 4.1.21 is a list of all Material Agreements, true and complete copies of each of which have been delivered to Lender.

4.1.22   No Other Debt . Borrower has not borrowed or received debt financing (other than permitted pursuant to this Agreement) that has not been heretofore repaid in full.

4.1.23   No Bankruptcy Filing . Neither Borrower, nor any of Borrower’s Constituents, is involved in any bankruptcy, reorganization, insolvency, dissolution or liquidation proceeding, and to the best knowledge of Borrower, no such proceeding is contemplated or threatened.

4.1.24   Full and Accurate Disclosure . No information contained in this Agreement, the other Loan Documents or the Environmental Indemnity, or any written statement furnished by or on behalf of Borrower pursuant to the terms of this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading in any material respect in light of the circumstances under which they were made. There is no fact or circumstance presently known to Borrower which has not been disclosed to Lender and which materially adversely affects, or is reasonably likely to materially adversely affect, the Property, Borrower or its business, operations or condition (financial or otherwise).

4.1.25   Foreign Person . Neither Borrower nor any partner, member, shareholder or stockholder of Borrower is, and no legal or beneficial interest in a partner, member, shareholder or stockholder of Borrower is or will be held, directly or indirectly by, a “foreign person” within the meaning of Sections 1445 and 7701 of the Code.

4.1.26   No Change in Facts or Circumstances; Disclosure . There has been no Material Adverse Change from the conditions shown in the Application or in the materials submitted in connection with the Application or in the credit rating or financial condition of Borrower, the directors, officers, partners, shareholders, stockholders or members of Borrower or any entity which is a partner, shareholder, stockholder, beneficiary or member of any entity which is a partner, shareholder, stockholder, beneficiary or member of Borrower, respectively as the case may be (collectively, “ Borrower’s Constituents ”). The foregoing notwithstanding, the definition of “ Borrower’s Constituents ” shall expressly exclude the Carroll Member and any holder of any indirect publicly held interest in Borrower owning less than a twenty-five percent (25%) interest.

4.1.27   Management Agreement . Borrower has provided to Lender a true, correct and complete copy of the Management Agreement. The Management Agreement is in full force and effect and no event of default has occurred thereunder nor has any event under the Management Agreement occurred which, but for the giving of notice, or passage of time, or both would be an event of default thereunder. All fees payable to Manager have been paid in full.

4.1.28   Non-Relationship . Neither Borrower nor any of Borrower’s Constituents, as the case may be, is (a) a director or officer of any of MetLife, Inc., Metropolitan Life Insurance Company, MetLife HCMJV 1, LP, MetLife HCMJV 1 GP, LLC, MetLife HCMJV 1 LP, LLC or MetLife HCMJV 1 REIT, LLC (collectively, the “ MetLife Parties ”), (b) a parent, son or daughter of a director or officer of any of the MetLife Parties, or a descendent of any of them, (c) a stepparent, adopted child, step-son or step-daughter of a director or officer of any of the MetLife Parties, (d) a spouse of a director or officer of any of the MetLife Parties, or (e) an affiliate of any of the MetLife Parties or is receiving asset management services from any of the MetLife Parties or any affiliate of any of the MetLife Parties, and none of the collateral for the Loan herein is owned wholly or partially by any of the MetLife Parties or any affiliate of any of the MetLife Parties nor is any of the MetLife Parties or any affiliate of any of the MetLife Parties providing asset management services for such collateral.

4.1.29   US Patriot Act . Either (a) Borrower is regulated by the Securities and Exchange Commission, Financial Industry Regulatory Authority, Inc. or the Federal Reserve System (a “ Regulated Entity ”), or is a wholly-owned subsidiary or wholly-owned affiliate of a Regulated Entity, or (b) neither Borrower nor any person or entity that directly or indirectly (i) controls Borrower or (ii) has an ownership interest in Borrower of twenty-five percent (25%) or more appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control of the U.S. Department of the Treasury, or any similar list maintained by any other Governmental Authority, with respect to which entering into transactions with such person or entity would violate the USA Patriot Act or regulations or any Presidential Executive Order or any other similar applicable law, ordinance, order, rule or regulation and shall provide evidence as reasonably requested by Lender from time to time, to confirm compliance.

4.1.30   Criminal Acts . Neither Borrower nor any of Borrower’s Constituents has been convicted of, or been indicted for a felony criminal offense.

4.1.31   No Defaults . Neither Borrower nor any of Borrower’s Constituents is in default under any mortgage, deed of trust, deed to secure debt, note, loan or credit agreement.

4.1.32   Purchase Agreement . Borrower has delivered to Lender a true and complete copy of the Purchase Agreement and there exist no material documents or instruments relating to the purchase of the Property other than those documents and instruments that have been delivered to Lender.

4.1.33   Personal Property . Borrower owns the Personal Property free from any lien, security interest, encumbrance or adverse claim, except as otherwise expressly approved by Lender in writing. The Personal Property has not been used or bought for personal, family, or household purposes, but has been bought and used solely for the purpose of carrying on Borrower’s business.

4.1.34   O&M Agreement . The O&M Agreement, if any, is in full force and effect and there is no default thereunder by any party thereto and no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder.

4.1.35   REA . All of the REAs are in full force and effect and neither Borrower nor, to Borrower’s knowledge, any other party to any of the REAs, is in default thereunder, and to the best of Borrower’s knowledge, there are no conditions which, with the passage of time or the giving of notice, or both, would constitute a default thereunder. Except as set forth on Schedule 4.1.35 , no REA has been modified, amended or supplemented.

V.           BORROWER COVENANTS

Section 5.1   Borrower Affirmative Covenants . From the date hereof until payment of the Secured Indebtedness in full, Borrower hereby covenants and agrees with Lender that:

5.1.1     Existence; Compliance with Requirements . Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, licenses, permits and franchises and comply with all present and future Requirements affecting or relating to Borrower, the Property and/or the Use. Borrower shall not use or knowingly permit the use of the Property, or any part thereof, for any illegal purpose. Borrower shall furnish to Lender, on request, proof of compliance with the Requirements.

5.1.2     Litigation . Borrower shall give prompt notice to Lender of any litigation or governmental proceedings pending or threatened in writing against Borrower, Liable Party, if any, or the Property which could, if determined adversely to Borrower, Liable Party, if any, or the Property, be reasonably expected to affect the Property, or Borrower’s or Liable Party’s, if any, ability to perform its obligations, as applicable, hereunder or under the other Loan Documents, the Guaranty, if any, or the Environmental Indemnity.

5.1.3     Access to Property . Subject to the rights of Tenants under the Leases, Lender shall have the right, at any time and from time to time during normal business hours, to enter the Property in order to ascertain Borrower’s compliance with the Loan Documents, to examine the condition of the Property, to perform an appraisal, to undertake surveying or engineering work, and to inspect premises occupied by Tenants. Borrower shall cooperate with Lender in performing these inspections.

5.1.4     Books and Records; Financial Reporting . Borrower shall keep adequate books and records of account in accordance with GAAP, or in accordance with other methods acceptable to Lender in its sole discretion, consistently applied and furnish to Lender:

(a)           a quarterly certified rent roll signed and dated by Borrower, detailing the names of all Tenants of the Improvements, the portion of Improvements occupied by each Tenant, the base rent and any other charges payable under each Lease and the term of each Lease, including the expiration date, and any other information as is reasonably required by Lender, within thirty (30) days after the end of each fiscal quarter;

(b)           a quarterly operating statement of the Property and year to date operating statements detailing the total revenues received, total expenses incurred, total cost of all capital improvements, total debt service and total cash flow, to be prepared and certified by Borrower in the form required by Lender, and if available, any quarterly operating statement prepared by an independent certified public accountant, within thirty to sixty (30-60) days after the close of each fiscal quarter of Borrower;

(c)           an annual balance sheet and profit and loss statement of Borrower in the form required by Lender, prepared and certified by Borrower, or if required by Lender following an Event of Default, audited financial statements for Borrower, prepared by an independent certified public accountant acceptable to Lender within ninety (90) days after the close of each fiscal year of Borrower;

(d)           an annual operating budget presented on a monthly basis consistent with the annual operating statement described above for the Property including cash flow projections for the upcoming one (1) year period and all proposed capital replacements and improvements at least fifteen (15) days prior to the start of each calendar year;

(e)           an annual ARGUS ^© valuation file in electronic form which includes, without limitation, a then current rent roll, all income of the Property and all Property expenses within ninety (90) days after the close of each fiscal year of Borrower; and

(f)            any financial statements required pursuant to the Guaranty, if any, including, without limitation, within ninety (90) days after the end of each fiscal year of Liable Party, beginning with the fiscal year ending December 31, 2016, (i) an annual balance sheet and profit and loss statement of Liable Party in the form required by Lender, prepared and certified by Liable Party, or if required by Lender following an Event of Default, audited financial statements for Liable Party, if any, prepared by an independent certified public accountant reasonably acceptable to Lender (and for these purposes, BDO USA, LLP is hereby deemed approved by Lender; provided, however, in the event Lender reasonably determines that such accountant is no longer acceptable, such audited financial statements shall be prepared by an independent certified public account that is then reasonably acceptable to Lender), and (ii) a certificate of Liable Party to Lender (A) stating that no default under the Guaranty and no event which with notice or lapse of time or both would be a default under the Guaranty has occurred and is continuing, or if in Liable Party’s opinion a default under the Guaranty has occurred and is continuing, a statement as to the nature thereof and (B) disclosing and certifying as to all material changes in Liable Party’s debt or net worth or otherwise certifying that there has been no material change in Liable Party’s debt or net worth since the previous financial statement delivered to Lender.

5.1.5      Property Reports . Upon request from Lender or its representatives and designees, Borrower shall furnish in a timely manner to Lender:

(a)           a property management report for the Property, showing the number of inquiries made and/or rental applications received from Tenants or prospective tenants and deposits received from Tenants and any other information requested by Lender, in reasonable detail and certified by Borrower (or an officer, general partner, member or principal of Borrower if Borrower is not an individual) under penalty of perjury to be true and complete, but no more frequently than quarterly; and

(b)           an accounting of all security deposits held in connection with any Lease of any part of the Property, including the name and identification number of the accounts in which such security deposits are held, the name and address of the financial institutions in which such security deposits are held and the name of the person to contact at such financial institution, along with any authority or release necessary for Lender to obtain information regarding such accounts directly from such financial institutions.

5.1.6      Additional Financial or Management Information; Right to Audit .

(a)           Borrower shall furnish Lender with such other additional financial or management information (including state and federal tax returns) as may, from time to time, be reasonably required by Lender or the Rating Agencies in form and substance satisfactory to Lender or the Rating Agencies.

(b)           Lender and its representatives shall have the right upon at least five (5) days prior written notice to Borrower to examine and audit the records, books, management and other papers of Borrower and its affiliates or of any guarantor or indemnitor which reflect upon their financial condition and/or the income, expenses and operations of the Property, at the Property or at any office regularly maintained by Borrower, its affiliates or any guarantor or indemnitor where the books and records are located. Lender shall have the right upon notice to make copies and extracts from the foregoing records and other papers.

(c)           Borrower shall furnish Lender and its agents convenient facilities for any such examination and audit of any such books and records.

5.1.7      Title to the Property . Borrower will warrant and defend the validity and priority of the security title conveyed by the Security Instrument and the Assignment of Leases on the Property against the claims of all Persons whomsoever, subject only to Permitted Exceptions.

5.1.8      Estoppel Statements .

(a)           Within ten (10) days after a request by Lender, Borrower shall furnish an acknowledged written statement in form satisfactory to Lender (i) setting forth the amount of the Loan and the interest rate, (ii) stating either that no offsets or defenses exist against the Loan, or if any offsets or defenses are alleged to exist, their nature and extent, (iii) whether any default then exists under the Loan Documents or the Environmental Indemnity or any event has occurred and is continuing that with the lapse of time, the giving of notice, or both, would constitute such a default, and (iv) any other matters as Lender may reasonably request. If Borrower does not furnish an estoppel certificate, certified to the Certification Parties, within the 10-day period, Borrower appoints Lender as its attorney-in-fact to execute and deliver the certificate on its behalf, which power of attorney shall be coupled with an interest and shall be irrevocable.

(b)           Borrower shall use best efforts to deliver to Lender, upon request, estoppel certificates, certified to the Certification Parties, from each party under the REAs; provided that such certificates may be in form required under the REAs; provided, further, that Borrower shall not be required to deliver such certificates more frequently than two (2) times in any calendar year.

5.1.9      Leases and Other Agreements Affecting the Property .

(a)           Borrower shall perform all obligations of landlord under any and all Leases. Upon request of Lender, Borrower agrees to furnish Lender true, correct and complete executed copies of all Existing Leases and all future Leases.

(b)           Borrower shall not, without the prior written consent of Lender, (i) enter into any Lease, (ii) modify, amend or extend any Lease, (iii) provide consents regarding subleases or assignments or other minor deviations from the terms of any Lease (unless the tenant (and any guarantor, if applicable) who is liable immediately prior to such subletting or assignment covenants to remain fully liable thereafter), (iv) cancel, terminate or accept surrender of any Lease, or (v) exercise other lawful rights and remedies with regard to any Lease, unless (x) the Lease, modification, amendment, extension or consent complies with the Leasing Guidelines or, (y) with regard to a cancellation, termination or acceptance of surrender, such act is in compliance with the Leasing Guidelines or Borrower has entered into a new Lease complying with the provisions set forth herein, including the Leasing Guidelines, and covering all of the premises of the Lease being cancelled, terminated or surrendered. Further, Borrower shall not, without the prior written consent of Lender, (1) accept any payment of rent more than one month in advance of its due date, or (2) enter into any option to purchase the Property. If any of the acts described in this paragraph are done without the prior written consent of Lender to the extent required pursuant to the terms hereof, at the option of Lender, they shall be of no force or effect and shall constitute a default under this Agreement.

(c)           Each Lease affecting the Property entered into from and after the date hereof shall be on the Standard Lease Form as provided in the Leasing Guidelines or, if any other form of lease is used (which such form shall be subject to Lender’s prior written approval), such form shall be absolutely subordinate to the security title conveyed by the Security Instrument and shall also contain a provision, satisfactory to Lender, to the effect that in the event of the judicial or non-judicial foreclosure of the Property, at the election of the acquiring foreclosure purchaser, the particular Lease shall not be terminated and the tenant shall attorn to the purchaser. If requested to do so, the tenant shall agree to enter into a new Lease for the balance of the term upon the same terms and conditions.

(d)           Borrower covenants and agrees that all contracts and agreements relating to the Property requiring the payment of leasing commissions or management fees or other similar compensation shall (i) provide that the obligation will not be enforceable against Lender and (ii) be subordinate to the security title conveyed by the Security Instrument. Lender will be provided evidence of Borrower’s compliance with this Section 5.1.9(d) upon request.

5.1.10    Material Agreements . Borrower shall (a) promptly perform and/or observe all of the material covenants and agreements required to be performed and observed by it under each Material Agreement to which it is a party, and do all things necessary to preserve and to keep unimpaired its rights thereunder, (b) promptly notify Lender in writing of the giving of any notice of any default by any party under any Material Agreement of which it is aware and (c) promptly enforce the performance and observance of all of the material covenants and agreements required to be performed and/or observed by the other party under each Material Agreement to which it is a party in a commercially reasonable manner.

5.1.11    Performance by Borrower . Borrower shall in a timely manner observe, perform and fulfill each and every covenant, term and provision of each Loan Document and the Environmental Indemnity executed and delivered by Borrower.

5.1.12    Maintenance of the Property . Borrower, at its sole cost and expense, shall keep the Property in good order, condition and repair, and make all necessary structural and non-structural, ordinary and extraordinary repairs to the Property and the Improvements.

5.1.13    Use . Borrower shall use, or cause to be used, the Property continuously as residential multifamily apartments and certain ancillary uses in connection therewith, including the provision of recreational amenities to tenants (the “ Use ”). Borrower shall not use, or permit the use of, the Property for any other use without the prior written consent of Lender. Borrower shall not file or record a declaration of condominium, master mortgage or deed of trust or any other similar document evidencing the imposition of a so-called “condominium regime” whether superior or subordinate to the Security Instrument and Borrower shall not permit any part of the Property to be converted to, or operated as, a “cooperative apartment house” whereby the tenants or occupants participate in the ownership, management or control of any part of the Property.

5.1.14   Escrow Deposits .

(a)           Without limiting the effect of Section 3.1 and Section 6.1 , Borrower shall pay to Lender monthly on the same date the monthly installment is payable under the Note and this Agreement, an amount equal to 1/12th of the amounts Lender reasonably estimates are necessary to pay, on an annualized basis, (1) all Impositions and (2) the Premiums until such time as Borrower has deposited an amount equal to the annual charges for these items and on demand, from time to time, shall pay to Lender any additional amounts necessary to pay the Premiums and Impositions. Borrower will furnish to Lender bills for Impositions and Premiums thirty (30) days before Impositions become delinquent and such Premiums become due for payment and, except if an Event of Default occurs, Lender shall use commercially reasonable efforts to remit such amounts on behalf of Borrower prior to the due date thereof. No amounts paid as Impositions or Premiums shall be deemed to be trust funds and these funds may be commingled with other funds held on behalf of borrowers of Lender without any requirement to pay interest to Borrower on account of these funds. If an Event of Default occurs, Lender shall have the right, at its election, to apply any amounts held under this Section 5.1.14(a) in reduction of the Secured Indebtedness, or in payment of the Premiums or Impositions for which the amounts were deposited.

(b)           Pursuant to the terms of the Security Instrument and the Assignment of Leases, Borrower has absolutely and unconditionally assigned, set over and transferred to Lender all of Borrower’s right, title, interest and estates in and to the Leases and the Rents and Profits, including, without limitation, the Extraordinary Rental Payments, subject to the terms and license granted to Borrower thereunder, which documents shall govern and control the provisions of said assignment. Notwithstanding anything to the contrary, such license shall not be applicable to any Extraordinary Rental Payments, all of which, except with regard to the Closing Date Extraordinary Rental Payments, shall be paid directly to Lender, held by Lender (hereinafter referred to as the “ Extraordinary Rental Escrow ”) and disbursed or applied as hereinafter provided. Subject to the terms hereof, Lender shall be entitled to hold Extraordinary Rental Payments it receives in an account as additional security for the Loan and the funds shall be governed by the terms set forth in this subparagraph (b) and applied in accordance with the terms of any applicable Lease as provided in this subparagraph (b). Borrower shall render such accounts of collections as Lender may reasonably require. Any Tenant is authorized and directed to pay all Extraordinary Rental Payments to Lender. None of the Extraordinary Rental Escrow shall be deemed to be trust funds and these funds may be commingled with other funds held on behalf of borrowers of Lender without any requirement to pay interest to Borrower on account of these funds. So long as no Event of Default then exists, upon request of Borrower, Lender shall disburse funds from time to time from the Extraordinary Rental Escrow for use by Borrower, subject to Lender’s consent, which consent shall not be unreasonably withheld, conditioned or delayed, except in accordance with the terms of any applicable Lease. Such disbursements of funds from the Extraordinary Rental Escrow shall be conditioned upon Borrower furnishing to Lender a written request for each such disbursement together with those items as Lender deems reasonably necessary in its discretion. If an Event of Default occurs, Lender shall have the right to use such Extraordinary Rental Escrow in accordance with the terms of the Leases for which the amounts were deposited, provided, however, Lender shall not have the right to apply any amounts held under this Section 5.1.14(b) in reduction of the Secured Indebtedness. In the event of a foreclosure or a deed foreclosure of the Property, such Extraordinary Rental Escrow shall be transferred to the acquiring foreclosure purchaser.

5.1.15   Personal Property . Borrower will notify Lender of, and will protect, defend and indemnify Lender and MetLife HCMJV 1, LP, and their respective affiliates, partners and participants, and the officers, directors, agents, employees of each of them, and the successors and assigns of each of them against, all claims and demands of all persons at any time claiming any rights or interest in the Personal Property. The Personal Property shall not be used or bought for personal, family, or household purposes, but shall be bought and used solely for the purpose of carrying on Borrower’s business.

5.1.16   Special Purpose Entity/Separateness .

(a)           Borrower shall continue to be a Special Purpose Entity.

(b)           The Property shall continue to have “single asset real estate” status as defined by Section 101(51)(B) of the Bankruptcy Code.

(c)           The covenants set forth in this Section 5.1.16 shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.

Section 5.2     Borrower Negative Covenants . From the date hereof until the Secured Indebtedness is paid in full, Borrower hereby covenants and agrees with Lender that:

5.2.1      Liens and Encumbrances . Without the prior written consent of Lender, to be exercised in Lender’s sole and absolute discretion, other than the Permitted Exceptions, Borrower shall not create, place or allow to remain any Liens and Encumbrances on the Property. If any Liens and Encumbrances are recorded against the Property or any part of the Property, Borrower shall obtain a discharge and release of any Liens and Encumbrances within fifteen (15) days after receipt of notice of their existence. The foregoing notwithstanding, Borrower shall be permitted to enter into typical utility easements with applicable utility providers as long as such utility easements do not interfere with the use and operation of the Property and such utility easements are otherwise subject to Lender’s reasonable approval.

5.2.2      Change in Business . Borrower shall not enter into any line of business other than the ownership and operation of the Property.

5.2.3      Affiliate Transactions . Other than (i) the Management Agreement in effect as of the date hereof and (ii) the IT Agreement in effect as of the date hereof, Borrower shall not enter into, or be a party to, any transaction with an affiliate of Borrower or any of the partners of Borrower except in the ordinary course of business and on terms which are fully disclosed to Lender in advance and are no less favorable to Borrower or such affiliate than would be obtained in a comparable arm’s length transaction with an unrelated third party.

5.2.4      Zoning . Without the prior written consent of Lender, Borrower shall not (i) initiate or acquiesce in a change in the zoning classification of and/or restrictive covenants affecting the Property or seek any variance under existing zoning ordinances, (ii) use or permit the use of the Property in a manner which may result in the Use becoming a non-conforming use under applicable zoning ordinances, or (iii) subject the Property to restrictive covenants.

5.2.5      Assets . Borrower shall not purchase or own any property other than the Property and any property necessary or incidental to the ownership and operation of the Property.

5.2.6      No Joint Assessment . Borrower shall not suffer, permit or initiate the joint assessment of the Property (i) with any other real property constituting a tax lot separate from the Property, and (ii) with any portion of the Property which may be deemed to constitute personal property, or any other procedure whereby the lien of any taxes which may be levied against such personal property shall be assessed or levied or charged to the Property.

5.2.7      Principal Place of Business; Chief Executive Office; Books and Records . Borrower shall not (i) change its principal place of business or name from the address and name set forth in the introductory paragraph hereof without, in each instance, (A) giving Lender at least thirty (30) days’ prior written notice thereof and (B) taking all action required by Lender for the purpose of perfecting and/or protecting the Lien and security interest of Lender created pursuant to this Agreement and the other Loan Documents or (ii) change its organizational structure without (A) obtaining the prior written consent of Lender and (B) taking all action reasonably required by Lender for the purpose of perfecting or protecting the Lien and security interest of Lender created pursuant to this Agreement and the other Loan Documents. At the request of Lender, Borrower shall execute a certificate, certified to the Certification Parties, in form reasonably satisfactory to Lender listing the trade names under which Borrower intends to operate the Property, and representing and warranting that Borrower does business under no other trade name with respect to the Property.

5.2.8      ERISA . Borrower will not be reconstituted as a Plan or as an entity whose assets constitute “plan assets”. Borrower will not become a “governmental plan” within the meaning of Section 3(32) of ERISA and will not become subject to any state statutes that regulate investments of, and fiduciary obligations with respect to, governmental plans, that are similar to the provisions of Section 406 of ERISA or Section 4975 of the Code and that would be violated by the transactions contemplated by the Loan Documents.

5.2.9      Material Agreements . Borrower shall not, without Lender’s prior written consent, such consent not to be unreasonably withheld: (a) enter into any Material Agreement, (b) surrender or terminate any Material Agreement to which it is a party (unless the other party thereto is in material default and the termination of such Material Agreement would be commercially reasonable and then only if Borrower shall have provided to Lender not less than five (5) Business Days’ notice of such termination and such termination would not be reasonably expected to result in a Material Adverse Change), (c) increase or consent to the increase of the amount of any fees or charges payable by Borrower under any Material Agreement, except for such increases as are expressly provided for therein, or (d) modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under any Material Agreement.

5.2.10    Improvements . Borrower shall abstain from, and not permit the commission of waste to the Property and shall not remove or alter in any substantial manner, the structure or character of any Improvements without the prior written consent of Lender.

5.2.11    Personal Property Borrower will not remove the Personal Property without the prior written consent of Lender, except items of Personal Property which are consumed or worn out in ordinary usage which shall be promptly replaced by Borrower with other Personal Property of value equal to or greater than the value of the replaced Personal Property.

VI.            INSURANCE, CASUALTY AND CONDEMNATION

Section 6.1     Insurance .

6.1.1      Insurance Policies .

(a)           During the term of the Loan, Borrower at its sole cost and expense must provide Policies and certificates of insurance for types of insurance described below all of which must be satisfactory to Lender as to form of policy, amounts, deductibles, sublimits, types of coverage, exclusions and the companies underwriting these coverages. In no event shall such Policies be terminated or otherwise allowed to lapse. Borrower shall be responsible for its own deductibles. Borrower shall also pay for any insurance, or any increase of policy limits, not described in this Agreement that Borrower requires for its own protection or for compliance with government statutes. Borrower’s insurance shall be primary and without contribution from any insurance procured by Lender including, without limitation, any insurance obtained by Lender pursuant to Section 6.1.1(d) .

Policies of insurance shall be delivered to Lender in accordance with the following requirements:

(i)           Property insurance on the Improvements and the Personal Property insuring against any peril now or hereafter included within the classification “All Risk” or “Special Perils,” in each case (1) in an amount equal to 100% of the Full Replacement Cost of the Improvements and Personal Property with a waiver of depreciation and with a Replacement Cost Endorsement; (2) containing an agreed amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions; (3) providing for no deductible in excess of $250,000.00 and (4) containing no margin clause unless approved by Lender and (5) containing Ordinance or Law Coverage, Operation of Building Laws, Demolition Costs and Increased Cost of Construction in an amount reasonably required by Lender or if any of the Improvements or the use of the Property constitute non-conforming structures then in the amount of 100% of the Full Replacement Cost. The Full Replacement Cost shall be determined from time to time by an appraiser or contractor designated and paid by Borrower and approved by Lender or by an engineer or appraiser in the regular employ of the insurer. The “ Full Replacement Cost ” for purposes of this Article VI shall mean the estimated total cost of construction required to replace the Improvements with a substitute of like utility, and using modern materials and current standards, design and layout. For purposes of calculating Full Replacement Cost direct (hard) costs shall include, without limitation, labor, materials, supervision and contractor’s profit and overhead and indirect (soft) costs shall include, without limitation, fees for architect’s plans and specifications, construction financing costs, permits, sales taxes, insurance and other costs included in the Marshall Valuation Service published by Marshall & Swifts.

(ii)          Commercial General Liability insurance, including liquor liability insurance if applicable, against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, such insurance (1) to be on the so-called “occurrence” form with a combined single limit of not less than Forty Million Dollars ($40,000,000.00); (2) to continue at not less than this limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (iii) to cover at least the following hazards: (a) premises and operations; (b) products and completed operations on an “if any” basis; (c) independent contractors; (d) blanket contractual liability for all written and oral contracts; and (e) contractual liability covering the indemnities contained in this Agreement and the other Loan Documents to the extent available. The required limit may be satisfied through a combination of Primary and Excess Liability policies.

(iii)         Business Income insurance in an amount sufficient to prevent Borrower from becoming a co-insurer within the terms of the applicable Policies, and sufficient to recover twenty four (24) months Business Income and with an Extended Period of Indemnity (“ EPI ”) of 12 months. The amount of such insurance shall be increased from time to time during the term of the Loan as and when new leases and renewal leases are entered into and rents payable increase or the annual estimate of gross income from occupancy of the Property increases to reflect such rental increases.

(iv)         If Lender determines at any time that any part of the Property is located in an area identified on a Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards and flood insurance has been made available, Borrower will maintain a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration with a generally acceptable insurance carrier, in an amount not less than the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended. In addition Difference in Conditions (DIC) insurance and/or excess insurance from and against all losses, damages, costs, expenses, claims and liabilities related to or arising from acts of flood, of such types, in such amounts, with such deductibles, issued by such companies, and on such forms of insurance policies as required by Lender, if Lender determines at any time that any part of the Property is located in Flood Zone A or V.

(v)          During the period of any construction or renovation or alteration of the Improvements, and only if the Property insurance (as described in Section 6.1.1(a)(i) ) form does not otherwise provide coverage, a so-called “Builder’s All Risk” insurance policy in non-reporting form for any Improvements under construction, renovation or alteration including, without limitation, for demolition and increased cost of construction or renovation, in an amount approved by Lender including an Occupancy endorsement and Worker’s Compensation Insurance covering all persons engaged in the construction, renovation or alteration in an amount at least equal to the minimum required by statutory limits of the State.

(vi)         Workers’ Compensation insurance, subject to the statutory limits of the State, and employer’s liability insurance with a limit of at least $1,000,000 per accident and per disease per employee, and $1,000,000 for disease in the aggregate in respect of any work or operations on or about the Property, or in connection with the Property or its operations (if applicable).

(vii)        Boiler & Machinery, or Equipment Breakdown Coverage, insurance covering the major components of the central heating, air conditioning and ventilating systems, boilers, other pressure vessels, high pressure piping and machinery, elevators and escalators, if any, and other similar equipment installed in the Improvements, in an amount equal to one hundred percent (100%) of the full replacement cost of all equipment installed in, on or at the Improvements. These Policies shall insure against physical damage to and loss of occupancy and use of the Improvements arising out of an accident or breakdown.

(viii)       Insurance from and against all losses, damages, costs, expenses, claims and liabilities related to or arising from acts of terrorism, of such types, in such amounts, with such deductibles, issued by such companies, and on such forms of insurance policies as required by Lender and as may be commercially available; provided, however, that as to the original Borrower (but not to any successor borrower), Borrower shall only be obligated to maintain that amount of terrorism coverage that could be purchased with a premium that is equal to two hundred percent (200%) of the premium, as determined by Lender, that Borrower would need to pay to obtain All Risk Property insurance for the Property without terrorism coverage.

(ix)          Business Automobile Insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage arising out of the use of owned, non-owned, hired and/or leased automotive equipment when such equipment is operated by Borrower, Borrower’s employees or Borrower’s agents in connection with the Property.

(x)           Windstorm coverage, including coverage for Named Storms, in an amount equal to the Full Replacement Cost, plus an amount equal to the Business Income insurance and EPI contemplated in Subsection (a)(iii) of this Section 6.1.1 and on terms consistent with the commercial property Policy required under Subsection (a)(i) of this Section 6.1.1 , provided, however, that the deductible for windstorm coverage shall not exceed the greater of (i) $250,000 or (ii) five percent (5%) of the Full Replacement Cost.

(xi)          Insurance from or against all losses, damages, costs, expenses, claims and liabilities related to or arising from earthquake on such form of insurance policy and in such amount as required by Lender, and provided that the deductible for earthquake coverage shall not exceed the greater of (i) $250,000 or (ii) five percent (5%) of the Full Replacement Cost.

(xii)         Such other insurance (i) as may from time to time be required by Lender to replace coverage against any hazard, which as of the date hereof is insured against under any of the Policies described in Subsections (a)(i) through (a)(xi) of this Section 6.1.1 , and (ii) as may from time to time be reasonably required by Lender against other insurable hazards, including, but not limited to, vandalism, earthquake, environmental, sinkhole and mine subsidence.

(b)           Lender’s interest must be clearly stated by endorsement in the Policies described in this Section 6.1.1 as follows:

(i)           The Policies referenced in Subsections (a)(i) , (a)(iii) , (a)(iv) , (a)(v) , (a)(vii) , (a)(x) and (a)(xi) of this Section 6.1.1 shall identify “MetLife HCMJV 1, LP, and its Successors, Assigns, Affiliates, Partners and Participants” under the New York Standard Mortgagee Clause (non-contributory) endorsement.

(ii)          The Policies referenced in Sections 6.1.1(a)(ii) and 6.1.1(a)(ix) shall name as additional insureds “MetLife HCMJV 1, LP, and its Successors, Assigns, Affiliates, Partners and Participants”.

(iii)         The Policies referenced in Section 6.1.1(a)(viii) shall name Lender in such form and manner as Lender shall require.

(iv)         All of the Policies referred to in Section 6.1.1 shall provide for at least thirty (30) days’ written notice to Lender in the event of policy cancellation and/or material change.

(c)           All the insurance companies must be authorized to do business in New York State and the State and be approved by Lender. The insurance companies must have a general policy rating of A.M. Best “Excellent” or better and a financial class of X or better by A.M. Best. Notwithstanding the foregoing, Lender hereby approves Hallmark Specialty Insurance as an insurance company through July 26, 2017 notwithstanding its rating of A-, VIII, provided if such rating decreases prior to July 26, 2017, Borrower shall replace, by the date that is thirty (30) days from the date of such rating decrease, such insurance company with an insurance company that meets the requirements set forth in this subsection (c). In any event, upon renewal of Borrower’s insurance on July 26, 2017, Borrower shall replace Hallmark Specialty Insurance with an insurance company that meets the requirements set forth in this subsection (c) if Hallmark Specialty Insurance’s rating is not an “A” “X”. So called “Cut-through” endorsements shall not be permitted. If there are any Securities issued with respect to this Loan which have been assigned a rating by a Rating Agency, the insurance company shall have a claims paying ability rating by such Rating Agency equal to or greater than the rating of the highest class of the Securities. Borrower shall deliver evidence satisfactory to Lender of payment of premiums due under the Policies.

(d)           Certified copies of the Policies, and any endorsements, shall be made available for inspection by Lender upon request. If Borrower fails to obtain or maintain Policies and coverages as required by this Section 6.1.1 , then Lender shall have the right, following written notice to Borrower, but shall not have the obligation immediately to procure any such Policies and coverages at Borrower’s cost.

(e)           Borrower shall be required during the term of the Loan to continue to provide Lender with original renewal Policies or replacements of the Policies referenced in Section 6.1.1(a) . Lender may accept Certificates of Insurance, if satisfactory to Lender, evidencing Policies referenced in this Section 6.1.1 instead of requiring the actual Policies. Lender shall be provided with renewal Certificates of Insurance, or Binders, prior to each expiration. The failure of Borrower to maintain the insurance required under this Article VI shall not constitute a waiver of Borrower’s obligation to fulfill these requirements.

(f)           All binders, Policies, endorsements, certificates, and cancellation notices are to be sent to the Lender’s Address for Insurance Notification until changed by notice from Lender.

(g)           If any Policy referred to in this Section 6.1.1 is written on a blanket basis, a list of locations and their insurable values shall be provided, as required by Lender. If the Property is located in an area for potential catastrophic loss Borrower shall provide Lender with a Natural Hazard Loss Analysis Report on an annual basis. This report is to be completed by a recognized risk modeling company (e.g. RMS, EQE, AIR) approved by Lender.

6.1.2      Adjustment of Claims . Borrower hereby authorizes and empowers Lender to settle, adjust or compromise any claims for damage to, or loss or destruction of, all or a portion of the Property, regardless of whether there are Insurance Proceeds available or whether any such Insurance Proceeds are sufficient in amount to fully compensate for such damage, loss or destruction.

6.1.3      Assignment to Lender . The provisions of Section 3.2 of the Security Instrument are hereby incorporated by reference into this Agreement to the same extent and with the same force as if fully set forth herein.

Section 6.2     Casualty and Condemnation .

6.2.1      Casualty .

(a)           Borrower shall give prompt written notice of any casualty to the Property to Lender whether or not required to be insured against. The notice shall describe the nature and cause of the casualty and the extent of the damage to the Property. Borrower covenants and agrees to commence and diligently pursue to completion the Restoration.

(b)           Borrower assigns to Lender all Insurance Proceeds which Borrower is entitled to receive in connection with a casualty whether or not such insurance is required under this Agreement; provided that, if the cost of the repair, restoration and rebuilding of any portion of the Property that has been partially damaged or destroyed (the “ Restoration ”) does not exceed the Casualty Threshold, as reasonably determined by Lender, and there is then no existing Event of Default, Borrower shall be permitted to collect the Insurance Proceeds for such claim and shall complete the Restoration in full compliance with all Requirements to the same condition, character and general utility as nearly as possible to that existing prior to the casualty and at least equal in value as that existing prior to the casualty; and provided further that, if the cost of the Restoration exceeds the Casualty Threshold, as reasonably determined by Lender, and (1) an Event of Default does not currently exist, and (2) Lender has determined that (i) there has not been an Impairment of the Security, and (ii) the Restoration can be accomplished in full compliance with all Requirements to the same condition, character and general utility as nearly as possible to that existing prior to the casualty and at least equal in value as that existing prior to the casualty, the Net Insurance Proceeds shall be applied to the cost of Restoration in accordance with the terms of this Article VI. Lender shall hold and disburse the Net Insurance Proceeds to the Restoration.

(c)           If the Net Insurance Proceeds are to be used for the Restoration in accordance with this Article VI, Borrower shall comply with Lender’s Requirements For Restoration as set forth in Section 6.2.3 . Upon Borrower’s satisfaction and completion of the Requirements For Restoration and upon confirmation that there is no Event of Default then existing, Lender shall pay any remaining Restoration Funds then held by Lender to Borrower.

(d)           In the event that the conditions for Restoration set forth in this Section 6.2.1 have not been met, Lender may, at its option, apply the Net Insurance Proceeds to the reduction of the Secured Indebtedness in such order as Lender may determine and Lender may declare the entire Secured Indebtedness immediately due and payable. After payment in full of the Secured Indebtedness, any remaining Restoration Funds shall be paid to Borrower.

6.2.2      Condemnation .

(a)           If the Property or any part of the Property is taken by reason of any Condemnation, Lender shall be entitled to all Condemnation Proceeds. At its option, Lender shall be entitled to commence, appear in and prosecute in its own name any action or proceeding or to make any compromise or settlement in connection with such Condemnation. Borrower hereby irrevocably constitutes and appoints Lender as its attorney-in-fact, which appointment is coupled with an interest, to commence, appear in and prosecute any action or proceeding or to make any compromise or settlement in connection with any such Condemnation.

(b)           Borrower assigns to Lender all Condemnation Proceeds which Borrower is entitled to receive. In the event of any Condemnation, and provided (1) an Event of Default does not currently exist, and (2) Lender has determined that (i) there has not been an Impairment of the Security, and (ii) the Restoration of any portion of the Property that has not been taken can be accomplished in full compliance with all Requirements to the same condition, character and general utility as nearly as possible to that existing prior to the taking and at least equal in value as that existing prior to the taking, then Borrower shall commence and diligently pursue to completion the Restoration. Lender shall hold and disburse the Net Condemnation Proceeds to the Restoration.

(c)           In the event the Net Condemnation Proceeds are to be used for the Restoration, Borrower shall comply with Lender’s Requirements For Restoration as set forth in Section 6.2.3 . Upon Borrower’s satisfaction and completion of the Requirements For Restoration and upon confirmation that there is no Event of Default then existing, Lender shall pay any remaining Restoration Funds then held by Lender to Borrower.

(d)           In the event that the conditions for Restoration set forth in this Section 6.2.2 have not been met, Lender may, at its option, apply the Net Condemnation Proceeds to the reduction of the Secured Indebtedness in such order as Lender may determine and Lender may declare the entire Secured Indebtedness immediately due and payable. After payment in full of the Secured Indebtedness, any remaining Restoration Funds shall be paid to Borrower.

6.2.3      Requirements For Restoration . Unless otherwise expressly agreed in a writing signed by Lender, the following are the “ Requirements For Restoration ”:

(a)           If the Net Insurance Proceeds or Net Condemnation Proceeds are to be used for the Restoration, prior to the commencement of any Restoration work (the “ Work ”), Borrower shall provide Lender for its review and written approval (i) complete plans and specifications for the Work which (A) have been approved by all required Governmental Authorities, (B) have been approved by an architect satisfactory to Lender (the “ Architect ”) and (C) are accompanied by Architect’s signed statement of the total estimated cost of the Work (the “ Approved Plans and Specifications ”); (ii) the amount of money which Lender reasonably determines will be sufficient when added to the Net Insurance Proceeds or Net Condemnation Proceeds to pay the entire cost of the Restoration (collectively referred to as the “ Restoration Funds ”); (iii) evidence that the Approved Plans and Specifications and the Work are in compliance with all Requirements; (iv) an executed contract for construction with a contractor satisfactory to Lender (the “ Contractor ”) in a form approved by Lender in writing; and (v) a surety bond and/or guarantee of payment with respect to the completion of the Work. The bond or guarantee shall be satisfactory to Lender in form and amount and shall be signed by a surety or other entities who are acceptable to Lender.

(b)           Borrower shall not commence the Work, other than temporary work to protect the Property or prevent interference with business, until Borrower shall have complied with the requirements of subsection (a) of this Section 6.2.3 . So long as there does not currently exist an Event of Default and the following conditions have been complied with or, in Lender’s discretion, waived, Lender shall disburse the Restoration Funds in increments to Borrower, from time to time as the Work progresses:

(i)           Architect shall be in charge of the Work.

(ii)          Lender shall disburse the Restoration Funds directly or through escrow with a title company selected by Borrower and approved by Lender, upon not less than ten (10) days’ prior written notice from Borrower to Lender and Borrower’s delivery to Lender of (A) Borrower’s written request for payment (a “ Request for Payment ”) accompanied by a certificate by Architect, certified to the Certification Parties, in a form satisfactory to Lender which states that (a) all of the Work completed to that date has been completed in compliance with the Approved Plans and Specifications and in accordance with all Requirements, (b) the amount requested has been paid or is then due and payable and is properly a part of the cost of the Work, and (c) when added to all sums previously paid by Lender, the requested amount does not exceed the value of the Work completed to the date of such certificate; and (B) evidence satisfactory to Lender that the balance of the Restoration Funds remaining after making the payments shall be sufficient to pay the balance of the cost of the Work. Each Request for Payment shall be accompanied by (x) waivers of liens covering that part of the Work previously paid for, if any, (y) a title search or by other evidence satisfactory to Lender that no mechanic’s or materialmen’s liens or other similar liens for labor or materials supplied in connection with the Work have been filed against the Property and not discharged of record, and (z) an endorsement to the Title Insurance Policy insuring that no encumbrance exists on or affects the Property other than the Permitted Exceptions.

(iii)         The final Request for Payment shall be accompanied by (i) a final certificate of occupancy or other evidence of approval of appropriate Governmental Authorities for the use and occupancy of the Improvements, (ii) evidence that the Restoration has been completed in accordance with the Approved Plans and Specifications and all Requirements, (iii) evidence that the costs of the Restoration have been paid in full, and (iv) evidence that no mechanic’s or similar liens for labor or material supplied in connection with the Restoration are outstanding against the Property, including final waivers of liens covering all of the Work and an endorsement to the Title Insurance Policy insuring that no encumbrance exists on or affects the Property other than the Permitted Exceptions.

(c)           If (i) within sixty (60) days after the occurrence of any damage, destruction or Condemnation requiring Restoration, Borrower fails to submit to Lender and receive Lender’s approval of plans and specifications or fails to deposit with Lender the additional amount necessary to accomplish the Restoration as provided in subparagraph (a) above, or (ii) after such plans and specifications are approved by all such Governmental Authorities and Lender, Borrower fails to commence promptly or diligently continue to completion the Restoration, or (iii) Borrower becomes delinquent in payment to mechanics, materialmen or others for the costs incurred in connection with the Restoration, or (iv) there exists an Event of Default, then, in addition to all of the rights herein set forth and after ten (10) days’ written notice of the non-fulfillment of one or more of these conditions, Lender may apply the Restoration Funds to reduce the Secured Indebtedness in such order as Lender may determine, and at Lender’s option and in its sole discretion, Lender may declare the Secured Indebtedness immediately due and payable together with the Prepayment Fee.

VII.           PROPERTY MANAGEMENT

Section 7.1     The Management Agreement . Borrower shall cause Manager to manage the Property in accordance with the Management Agreement. Borrower shall (i) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed and observed, (ii) promptly notify Lender of any notice to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower to be performed and observed, and (iii) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, report and estimate received by it under the Management Agreement. If Borrower defaults in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting Lender’s other rights or remedies under this Agreement or the other Loan Documents, the Environmental Indemnity or the Guaranty, if any, and without waiving or releasing Borrower from any of its obligations hereunder or under the Management Agreement, Lender shall have the right after ten (10) days written notice to Borrower, but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to cause all the material terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or observed.

Section 7.2    Prohibition Against Termination or Modification . Except with regard to applicable automatic renewals as set forth in such Management Agreement in effect as of the date hereof and provided no other modifications are made in connection therewith, Borrower shall not surrender, terminate, cancel, amend, modify, supplement, replace, renew or extend the Management Agreement, or enter into any other agreement relating to the management or operation of the Property with Manager or any other Person, or consent to the assignment by the Manager of its interest under the Management Agreement, in each case without the express consent of Lender (such consent not to be unreasonably withheld). If at any time Lender consents to the appointment of a new manager, such manager and Borrower shall, as a condition of Lender’s consent, execute an assignment and subordination of management agreement in the form then used by Lender.

Section 7.3    Replacement of Manager . Lender shall have the right, in its sole discretion, to require Borrower to replace the Manager upon prior notice with a Person reasonably approved by Lender upon the occurrence of any one or more of the following events: (i) at any time following the occurrence and continuance of an Event of Default and/or (ii) if Manager is in default of any material provision under the Management Agreement beyond any applicable notice and cure period or if at any time the Manager has engaged in gross negligence, fraud or willful misconduct.

VIII.           CHANGE IN OWNERSHIP, PROHIBITION ON ADDITIONAL FINANCING AND ADDITIONAL OBLIGATIONS

Section 8.1    Permitted Transfers of Interest in Borrower . Except as expressly permitted herein, Borrower shall not cause or permit: (i) any part of the Property or any direct or indirect interest in the Property, to be conveyed, transferred, assigned, encumbered, sold or otherwise disposed of; or (ii) any transfer, assignment or conveyance of any direct or indirect interest in Borrower or its partners, stockholders, shareholders, members, beneficiaries, or any of Borrower’s direct or indirect constituents or (iii) any merger, reorganization, dissolution or other change in the ownership structure of Borrower or any of the direct or indirect general partners or members of Borrower, including, without limitation, any conversion of Borrower or any direct or indirect general partner or member of Borrower to a limited partnership, a limited liability partnership or a limited liability company (collectively, a “ Transfer ” or “ Transfers ”).

The above prohibitions on Transfers shall not be applicable to (i) Ordinary Course Transfers of ownership interests in Liable Party and Bluerock Residential Holdings, LP, its operating partnership (“ BR Operating Partnership ”), so long as Liable Party is traded on a U.S. national securities exchange and remains the sole general partner of BR Operating Partnership; (ii) any Transfer by Carroll Co-Invest IV Roswell, LLC, a Georgia limited liability company (the “ Carroll Member ”), of up to one hundred percent (100%) of its ownership interest as of the date hereof in BR Hawthorne Springhouse JV, LLC, a Delaware limited liability company (the “ Sole Member ”), to an affiliate of MPC Partnership Holdings LLC, a Georgia limited liability company (the “ Carroll Parent ”), so long as at least either M. Patrick Carroll and/or Josh Champion (collectively or individually) remains actively involved in the operation and management of such transferee (the “ Carroll Transferee ”), the Carroll Member (to the extent that it continues to hold, or control, any ownership interest in the Sole Member), and the Carroll Parent and so long as satisfactory evidence is provided to Lender confirming the status of such Carroll Transferee; (iii) Transfers as a result of the death of a natural person; and/or (iv) Transfers in connection with estate planning by a natural person to a spouse, son or daughter or descendant of either, a stepson or stepdaughter or descendant of either.

Notwithstanding the foregoing, subject to the General Transfer Requirements, the Transfers as described in each of the following clauses (i) through (iii) may occur without the prior written approval of Lender (in each case, a “ Permitted Transfer ”):

(i)          relating to the sale of a majority (or all) of the outstanding shares (or partnership interests) of Liable Party or BR Operating Partnership, or a merger, combination or “roll-up” of Liable Party or BR Operating Partnership into a partnership, limited liability company or other entity or participation in an UPREIT transaction, DOWNREIT transaction or similar transaction with a real estate investment trust or other entity, with the surviving entity having a net worth and liquidity that equals or exceeds that which existed as of the date hereof and is advised by a manager that is regularly engaged, directly or indirectly, in the business of making or owning commercial real estate loans or operating commercial real estate properties in the United States that is reasonably acceptable to Lender;

(ii)         by and among Borrower’s Affiliates, provided that Liable Party, directly or indirectly, individually or jointly, Controls the management, operations, business and affairs of Borrower following such Transfer (the “ BR Control Conditions ”); and/or

(iii)        by the Carroll Member to BR Springhouse Managing Member, LLC, a Delaware limited liability company, of membership interests in the Sole Member, provided the BR Control Conditions remain satisfied.

Each Permitted Transfer shall further be subject to the following conditions: (i) there shall be no Event of Default under the Loan Documents, the Guaranty or the Environmental Indemnity that remains uncured beyond any applicable notice and cure period (unless such default shall be cured in connection with the Permitted Transfer); (ii) after giving effect to the Permitted Transfer, the entity that comprises Borrower shall continue to be able to make the representations and warranties set forth in Article IV hereof, and Borrower shall furnish to Lender such information as Lender requests in order for Lender to conduct due diligence, satisfactory to Lender, with respect to Section 4.1.5 and Section 4.1.29 ; (iii) Lender receives written notice thereof not later than thirty (30) days prior to such contemplated Permitted Transfer; (iv) Lender has reviewed and approved the Transfer documents and received organizational charts reflecting the structure of Borrower prior to and after the Transfer and copies of the then-current organizational documents of Borrower, including any amendments; (v) Borrower pays or reimburses Lender, upon demand, for all of Lender’s out-of-pocket costs (including reasonable attorneys’ fees) incurred in reviewing the Transfer request; (vi) neither transferee nor any partner, beneficiary, member, shareholder, stockholder, director or officer of transferee is an affiliate of the MetLife Parties, is receiving asset management services from the MetLife Parties or any affiliate of any of the MetLife Parties, and none of the collateral for the Loan herein is owned wholly or partially by any of the MetLife Parties or any affiliate of any of the MetLife Parties nor is any of the MetLife Parties or any affiliate of any of the MetLife Parties providing asset management services for such collateral; and (vii) Liable Party shall have reaffirmed its status as “Guarantor” under the Guaranty and as an “Indemnitor” under the Environmental Indemnity (or Liable Party shall have been replaced in connection with the applicable Permitted Transfer with a Person meeting the reasonable underwriting requirements of the MetLife Parties and having equal or greater net worth and liquidity as Liable Party as of the date hereof, in which case Liable Party shall be released from liability under the Guaranty and the Environmental Indemnity arising from and after the Transfer and such replacement Person shall confirm its status as “Guarantor” under the Guaranty and an “Indemnitor” under the Environmental Indemnity) (the foregoing conditions in clauses (i) through (vii), inclusive, shall constitute and be referred to collectively as the “ General Transfer Requirements ”).

Any Transfer pursuant to and in accordance with the provisions set forth above in this Section 8.1 will not relieve Borrower of its obligations under this Agreement, the Note or any other Loan Document or the Environmental Indemnity, or Liable Party of its obligations under the Guaranty, the Environmental Indemnity, or under the Loan Documents to the extent applicable (unless Liable Party shall have been replaced in connection with the applicable Permitted Transfer with a Person meeting the reasonable underwriting requirements of the MetLife Parties and having equal or greater net worth and liquidity as Liable Party as of the date hereof, in which case Liable Party shall be released from liability under the Guaranty and the Environmental Indemnity arising from and after the Transfer).

In addition to the rights to Transfer set forth above, Borrower shall have a one-time right to transfer the Property (the “ One-Time Property Transfer ”), subject to the following conditions: (i) there being no Event of Default under the Loan Documents, the Environmental Indemnity or the Guaranty at the time of such One-Time Property Transfer; (ii) Lender’s approval of transferee; (iii)  transferee shall be able to make the representations set forth in Article IV hereof, including, without limitation, the representations set forth in Section 4.1.5 hereof; (iv) the cash flow, in the reasonable opinion of Lender, derived from the Property shall be no less than 2.0 times the annual payments required under the Loan during the period prior to the Principal and Interest Installment Date and 1.5 times the annual payments required under the Loan during the period from and after the Principal and Interest Installment Date; (v) the LTV at the time of the One-Time Property Transfer shall not be greater than sixty-two percent (62%); (vi) Borrower or transferee shall pay a fee equal to one percent (1%) of the outstanding principal balance of the Note at the time of the One-Time Property Transfer and assumption, together with a non-refundable processing fee in the amount of $10,000; (vii)  transferee shall expressly assume the Loan Documents and the Environmental Indemnity in a manner satisfactory to Lender and an additional Liable Party acceptable to Lender shall execute the Guaranty and the Environmental Indemnity with respect to events arising or occurring from and after the date of the One-Time Property Transfer, which additional Liable Party shall have (in the aggregate if more than one) a net worth of not less than $150,000,000; (viii) transferee must have a net worth not less than $25,000,000 as shown on a proforma balance sheet reflecting transferee’s acquisition of the Property; (ix) transferee or sponsor must be of institutional quality (e.g., an entity sponsored by a public real estate investment trust, pension fund, insurance company, bank, private equity fund, or similar fund or institution, or a high net worth individual controlled entity active with institutional-quality properties, or an investment manager acting on behalf of one or more of the foregoing) with assets under management of a least $100 million and experienced in the ownership, management and leasing of institutional properties similar to the Property; (x) Borrower or transferee shall pay all costs and expenses incurred by Lender in connection with the One-Time Property Transfer and assumption, including title insurance premiums, documentation costs and reasonable attorneys’ fees; (xi) if the Loan has been securitized, Lender shall have received confirmation that the assumption of the Loan by transferee will not result in an adverse change in the rating of the Securities by the Rating Agency; (xii) no One-Time Property Transfer shall release Borrower or Liable Party from their respective obligations under the Loan Documents, the Environmental Indemnity or the Guaranty with respect to events arising or occurring prior to the date of such One-Time Property Transfer (although such parties shall be released from liability for events first arising or accruing from and after the date of such One-Time Property Transfer); and (xiii) neither transferee nor any partner, beneficiary, member, shareholder, stockholder, director or officer of transferee is an affiliate of the MetLife Parties, is receiving asset management services from the MetLife Parties or any affiliate of any of the MetLife Parties, and none of the collateral for the Loan is owned wholly or partially by any of the MetLife Parties or any affiliate of any of the MetLife Parties nor are any of the MetLife Parties or any affiliate of any of the MetLife Parties providing asset management services for such collateral. In the event that the proposed One-Time Property Transfer does not satisfy all of the conditions set forth in clauses (i) through (xi), such One-Time Property Transfer shall nevertheless be permitted, subject to Lender’s approval of any such deviations.

Borrower shall pay all costs and expenses, including reasonable attorneys’ fees and disbursements incurred by Lender in connection with any Transfer.

Section 8.2     Prohibition on Additional Financing . Borrower shall not incur or permit the incurring of: (i) any financing in addition to the Loan that is secured by a lien, security interest or other encumbrance of any part of the Property (including any loan or financing which is repaid by assessments or other taxes related to the Property including, without limitation, any Property-Assessed Clean Energy loan) or (ii) any pledge or encumbrance of a partnership, member or shareholder or beneficial interest or other direct or indirect interest in Borrower (collectively “ Secondary Financing ”). Notwithstanding the foregoing, Liable Party shall be permitted to maintain a line of credit facility so long as any exercise of any remedies thereunder would not result in a Transfer in violation of the terms hereof.

Section 8.3    Restrictions on Additional Obligations . During the term of the Loan, Borrower shall not, without the prior written consent of Lender, become liable with respect to any indebtedness or other obligation except for (i) the Loan, (ii) Leases entered into in the ordinary course of owning and operating the Property for the Use, (iii) other liabilities incurred in the ordinary course of owning and operating the Property for the Use but excluding any loans or borrowings, (iv) liabilities or indebtedness disclosed in writing to and approved by Lender on or before the Execution Date, and (v) any other single item of indebtedness or liability which does not exceed $100,000.00 or, when aggregated with other items of indebtedness or liability, does not exceed $200,000.00 (collectively, the “ Permitted Indebtedness ”).

Section 8.4     Statements Regarding Ownership . Borrower agrees to submit or cause to be submitted to Lender within thirty (30) days after December 31st of each calendar year during the term of the Loan and ten (10) days after any written request by Lender, a sworn, notarized certificate, certified to the Certification Parties, signed by an authorized (i) individual who is Borrower or one of the individuals comprising Borrower, (ii) member of Borrower, (iii) partner of Borrower or (iv) officer of Borrower, as the case may be, stating whether (x) any part of the Property, or any interest in the Property, has been conveyed, transferred, assigned, encumbered, or sold, and if so, to whom; (y) any conveyance, transfer, pledge or encumbrance of any interest in Borrower has been made and if so, to whom; or (z) there has been any change in the individual(s) comprising Borrower or Borrower’s Constituents from those on the Execution Date, and if so, a description of such change or changes.

IX.            ENVIRONMENTAL HAZARDS

Section 9.1    Representations and Warranties . Borrower hereby represents, warrants, covenants and agrees to and with Lender that, except as otherwise described in the environmental reports described on Schedule 9.1 attached hereto (collectively, the “ Environmental Reports ”), (i) neither Borrower nor, to the best of Borrower’s knowledge, after due inquiry, any Tenant, subtenant or occupant of the Property, has at any time placed, suffered or permitted the presence of any Hazardous Materials at, on, under, within or about the Property except (x) as expressly approved by Lender in writing, or (y) de minimus amounts of Hazardous Materials used or stored at the Property by Borrower or any Tenant in the ordinary course which do not violate any Requirements of Environmental Laws, and (ii) all operations or activities upon the Property, and any use or occupancy of the Property by Borrower are presently and shall in the future be in compliance with all Requirements of Environmental Laws, (iii) Borrower will use best efforts to ensure that any Tenant, subtenant or occupant of the Property shall in the future be in compliance with all Requirements of Environmental Laws, (iv) all operations or activities upon the Property are presently and shall in the future be in compliance with all Requirements of Environmental Laws, (v) Borrower does not know of, and has not received, any written or oral notice of other communication from any person or entity (including, without limitation, a governmental entity) relating to Hazardous Materials or Remedial Work pertaining thereto, of possible liability of any person or entity pursuant to any Requirements of Environmental Laws, other environmental conditions in connection with the Property, or any actual administrative or judicial proceedings in connection with any of the foregoing, (vi) Borrower shall not do or allow any Tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property, and (vii) Borrower has truthfully and fully provided to Lender, in writing, any and all information relating to environmental conditions in, on, under or from the Property that is known to Borrower and that is contained in Borrower’s files and records, including, without limitation, any reports relating to Hazardous Materials in, on, under or from the Property and/or to the environmental condition of the Property.

Section 9.2    Remedial Work . In the event any Remedial Work is required under any Requirements of Environmental Laws, Borrower shall perform or cause to be performed the Remedial Work in compliance with the applicable law, regulation, order or agreement; provided, however, that Borrower shall not be obligated to undertake any Remedial Work with respect to the Existing Contamination except as required pursuant to Section 21 of the Environmental Indemnity or as otherwise required in order to be in compliance with all Requirements of Environmental Laws. All Remedial Work shall be performed by one or more contractors, selected by Borrower and approved in advance in writing by Lender, and under the supervision of a consulting engineer, selected by Borrower and approved in advance in writing by Lender. All costs and expenses of Remedial Work shall be paid by Borrower including, without limitation, the charges of the contractor(s) and/or the consulting engineer, and Lender’s reasonable attorneys’, architects’ and/or consultants’ fees and costs incurred in connection with monitoring or review of the Remedial Work. In the event Borrower shall fail to timely commence, or cause to be commenced, or fail to diligently prosecute to completion, the Remedial Work, Lender may, but shall not be required to, cause such Remedial Work to be performed, subject to the provisions of Section 7.5 , Section 7.6 and Section 7.7 of the Security Instrument.

Section 9.3     Environmental Site Assessment . Lender shall have the right, at any time and from time to time, to undertake, at the expense of Borrower, an environmental site assessment on the Property, including any testing that Lender may determine, in its sole discretion, is necessary or desirable to ascertain the environmental condition of the Property and the compliance of the Property with Requirements of Environmental Laws; provided, however, that unless an Event of Default has occurred and/or Lender has a reasonable expectation that there has been an exposure to, introduction of, or release of Hazardous Materials or a violation of any Requirements of Environmental Law, Lender shall not have the right to undertake at the expense of Borrower such environmental site assessment on the Property more frequently than every twelve (12) months. Borrower shall cooperate fully with Lender and its consultants performing such assessments and tests.

Section 9.4    Unsecured Obligations . No amounts which may become owing by Borrower to Lender under this Article IX or under any other provision of this Agreement as a result of a breach of or violation of this Article IX shall be secured by the Security Instrument. The obligations shall continue in full force and effect and any breach of this Article IX shall constitute an Event of Default. The security title conveyed by the Security Instrument shall not secure (i) any Unsecured Obligations, or (ii) any other obligations to the extent that they are the same or have the same effect as any of the Unsecured Obligations. The Unsecured Obligations shall continue in full force, and any breach or default of any such obligations shall constitute a breach or default under this Agreement but the proceeds of any foreclosure sale shall not be applied against Unsecured Obligations. Subject to Section 12.20 , nothing in this Section shall in any way limit or otherwise affect the right of Lender to obtain a judgment in accordance with applicable law for any deficiency in recovery of all obligations that are secured by the Security Instrument following foreclosure, notwithstanding that the deficiency judgment may result from diminution in the value of the Property by reason of any event or occurrence pertaining to Hazardous Materials or any Requirements of Environmental Laws.

X.             PARTICIPATION AND SALE OF LOAN

Section 10.1  Sale of Loan/Participation . Lender may sell, transfer or assign all or any portion of its interest or one or more participation interests in the Loan, the Loan Documents, the Guaranty, if any, and the Environmental Indemnity at any time and from time to time, including, without limitation, its rights and obligations as servicer of the Loan. Lender may issue mortgage pass-through certificates or other securities evidencing a beneficial interest in the Loan in a rated or unrated public offering or private placement, including depositing the Loan Documents, the Guaranty, if any, and the Environmental Indemnity with a trust that may issue securities (the “ Securities ”). Lender may forward to each purchaser, transferee, assignee, servicer, participant, investor or prospective investor in such Securities (collectively, the “ Investor ”) and any Rating Agency rating or assigning value to such Securities, all documents and information which Lender now has or may hereafter acquire relating to the Loan and to Borrower or any Liable Party and the Property, whether furnished by Borrower, any Liable Party or otherwise, as Lender determines necessary or desirable. No such sale, transfer, assignment, participation or securitization by Lender shall increase in any material respect Borrower’s costs or obligations or reduce Borrower’s rights in connection with the Loan. Borrower and Liable Party shall provide an estoppel certificate or any other documents to the Investor or the Rating Agency as may be reasonably requested by Lender, provided such requirements do not unreasonably exceed Borrower’s reporting obligations under the Loan Documents.

Section 10.2  Splitting of the Mortgage . The provisions of Section 5.2 of the Security Instrument are hereby incorporated by reference into this Agreement to the same extent and with the same force as if fully set forth herein.

Section 10.3  Cooperation . Borrower will cooperate with Lender and the Rating Agencies in furnishing such information and providing such other assistance, reports and legal opinions as Lender may request in connection with any such transaction. In addition, Borrower acknowledges that Lender may release or disclose to potential purchasers or transferees of the Loan, or potential participants in the Loan, originals or copies of the Loan Documents, the Guaranty, if any, the Environmental Indemnity, title information, engineering reports, financial statements, operating statements, appraisals, Leases, rent rolls, and all other materials, documents and information in Lender’s possession or which Lender is entitled to receive under the Loan Documents, the Guaranty, if any, and the Environmental Indemnity with respect to the Loan, Borrower, any Liable Party or the Property. Borrower shall also furnish to such Investors or such Rating Agency any and all information concerning the Property, the Leases, the financial condition of Borrower or any Liable Party as may be requested by Lender, any Investor or any Rating Agency in connection with any sale, transfer or participation interest. Notwithstanding the foregoing, Lender shall be responsible for all fees Lender incurs in connection with any such transaction.

XI.            DEFAULTS

Section 11.1   Event of Default .

Any of the following shall be deemed to be a material breach of Borrower’s covenants in this Agreement and shall constitute a default (“ Event of Default ”):

(a)           The failure of Borrower to pay any installment of principal, interest or principal and interest, any required escrow deposit or any other sum required to be paid under any Loan Document, whether to Lender or otherwise, within seven (7) days of the due date of such payment;

(b)           The failure of Borrower to perform or observe any other term, provision, covenant, condition or agreement under any Loan Document for a period of more than thirty (30) days after receipt of notice of such failure, which such thirty (30) day period shall be extended as necessary as long as Borrower is attempting in good faith to cure such failure but in no event longer than sixty (60) days from the date of receipt of notice of such failure;

(c)           The filing by Borrower or any Liable Party (an “ Insolvent Entity ”) of a voluntary petition or application for relief in bankruptcy, the filing (other than by Lender) against an Insolvent Entity of an involuntary petition or application for relief in bankruptcy that is not dismissed within sixty (60) days, or an Insolvent Entity’s adjudication as a bankrupt or insolvent, or the filing by an Insolvent Entity of any petition, application for relief or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law, code or regulation relating to bankruptcy, insolvency or other relief for debtors, or an Insolvent Entity’s seeking or consenting to or acquiescing in the appointment of any trustee, custodian, conservator, receiver or liquidator of an Insolvent Entity or of all or any substantial part of the Property or of any or all of the Rents and Profits, or the making by an Insolvent Entity of any general assignment for the benefit of creditors, or the admission in writing by an Insolvent Entity of its inability to pay its debts generally as they become due;

(d)           If any warranty, representation, certification, financial statement or other information made or furnished at any time pursuant to the terms of the Loan Documents, the Guaranty, if any, or the Environmental Indemnity by Borrower or by any Liable Party is materially false or misleading;

(e)           If Borrower suffers or permits the Property, or any part of the Property, to be used in a manner that might (1) impair Borrower’s title to the Property, (2) create rights of adverse use or possession, or (3) constitute an implied dedication of any part of the Property; or

(f)            If Liable Party defaults under the Guaranty, if any, or Borrower or Liable Party, if any, defaults under the Environmental Indemnity.

Section 11.2  Remedies . The provisions of Article VII of the Security Instrument are hereby incorporated by reference into this Agreement to the same extent and with the same force as if fully set forth herein.

Section 11.3  Duration of Events of Default . If any Event of Default occurs (irrespective of whether or not the same consists of an ongoing condition, a one-time occurrence, or otherwise), the same shall be deemed to continue at all times thereafter; provided, however, that such Event of Default shall cease to continue only if Lender shall accept, in writing, performance of the defaulted obligation or shall execute and deliver a written agreement in which Lender expressly states that such Event of Default has ceased to continue. Borrower shall have no right to cure any Event of Default, and Lender shall not be obligated under any circumstances whatsoever to accept such cure or performance or to execute and deliver any such writing. Without limitation, this Section shall govern in any case where reference is made in the Loan Documents, the Guaranty, if any, and/or the Environmental Indemnity to (i) any “cure” (whether by use of such word or otherwise) of any Event of Default, (ii) “during an Event of Default,” “the continuance of an Event of Default” or “after an Event of Default has ceased” (in each case, whether by use of such words or otherwise), or (iii) any condition or event which continues beyond the time when the same becomes an Event of Default.

XII.           MISCELLANEOUS

Section 12.1  Successors and Assigns; Terminology . This Agreement applies to Lender, Liable Party and Borrower, and their heirs, legatees, devisees, administrators, executors, successors and assigns. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Lender. The term “Borrower” shall include both the original Borrower and any subsequent owner or owners of any of the Property. The term “Liable Party” shall include both the original Liable Party, if any, and any subsequent or substituted Liable Party. In this Agreement, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural.

Section 12.2  Lender’s Discretion . Whenever pursuant to this Agreement Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender or any financial ratio is to be calculated or determined, the decision of Lender to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory or Lender’s calculation or determination shall (except as is otherwise expressly herein provided) be in the sole discretion of Lender and, absent manifest error, shall be final and conclusive.

Section 12.3  Governing Law . This Agreement, the Note, the other Loan Documents, the Guaranty, if any, and the Environmental Indemnity, their construction, interpretation, and enforcement, and the rights of Borrower and Lender, shall be determined under, governed by, and construed in accordance with the internal laws of the State, without regard to principles of conflicts of law.

Section 12.4  Modification . No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.

Section 12.5  Notices . All notices, demands and requests given or required to be given by, pursuant to, or relating to, this Agreement shall be in writing. All notices shall be deemed to have been properly given if mailed by United States registered or certified mail, with return receipt requested, postage prepaid, or by United States Express Mail or other comparable overnight courier service to the parties at its address hereinafter set forth, or to such other address as such party may hereafter specify in accordance with the provisions of this Section 12.5 . Any notice shall be deemed to have been received upon receipt or refusal to accept delivery, in each case as shown on the return receipt or the receipt of United States Express Mail or such overnight commercial courier service.

Section 12.6  Waiver of Jury Trial . To the fullest extent permitted by law, Borrower and Lender HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY in any action, proceeding and/or hearing on any matter whatsoever arising out of, or in any way connected with, the Note, the Security Instrument or any of the other Loan Documents, or the enforcement of any remedy under any law, statute, or regulation. Neither party will seek to consolidate any such action in which a jury has been waived, with any other action in which a jury trial cannot or has not been waived. Each party has received the advice of counsel with respect to this waiver.

Section 12.7  Headings . The Article and/or Section headings and the Table of Contents in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, or describe the scope or intent of any provisions of this Agreement.

Section 12.8  Severability . If any provision of this Agreement should be held unenforceable or void, then that provision shall be separated from the remaining provisions and shall not affect the validity of this Agreement except that if the unenforceable or void provision relates to the payment of any monetary sum, then, Lender may, at its option, declare the Secured Indebtedness immediately due and payable but without the payment of any Prepayment Fee.

Section 12.9  Preferences . Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

Section 12.10  Waiver of Notice . Borrower shall not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.

Section 12.11  Remedies of Borrower . In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where, by law or under this Agreement, the other Loan Documents or the Environmental Indemnity, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedy shall be limited to commencing an action seeking injunctive relief or declaratory judgment. Any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment.

Section 12.12  Expenses; Indemnity .

(a)           The provisions of Section 7.6 and Section 7.7 of the Security Instrument are hereby incorporated by reference into this Agreement to the same extent and with the same force as if fully set forth herein. Notwithstanding any provision to the contrary contained herein or in the other Loan Documents, Lender’s right to receive reimbursement of legal fees, attorney fees, reasonable attorneys’ fees, or similar language shall be deemed to mean Lender’s reasonable attorneys’ fees actually incurred and such provision shall not be subject to the statutory presumption contained in O.C.G.A. Section 13-1-11.

(b)           Without limiting the effect of Section 12.12(a) , Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole and absolute discretion) that Lender may incur, directly or indirectly, as a result of a default under Section 4.1.5 or Section 5.2.8 of this Agreement.

Section 12.13  Schedules and Exhibits Incorporated . The Schedules and Exhibits annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.

Section 12.14  No Joint Venture or Partnership; No Third Party Beneficiaries .

(a)           Borrower and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy in common, or joint tenancy relationship between Borrower and Lender nor to grant Lender any interest in the Property other than that of mortgagee, beneficiary or lender.

(b)           This Agreement, the other Loan Documents and the Environmental Indemnity are solely for the benefit of Lender and nothing contained in this Agreement, the other Loan Documents or the Environmental Indemnity shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

Section 12.15  Publicity . All news releases, publicity or advertising by Borrower or its affiliates through any media intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents or to Lender or any of its affiliates shall be subject to the prior written approval of Lender; provided, however, Lender shall not be entitled to review or approve any filings or any press releases that Borrower or its counsel reasonably believe are required in order to comply with applicable laws, including any applicable securities laws, provided that Lender and its affiliates shall not be named in any press release without Lender’s prior written consent.

Section 12.16  Waiver of Marshalling of Assets . To the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Borrower’s partners and others with interests in Borrower, and of the Property, and shall not assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Property for the collection of the Secured Indebtedness without any prior or different resort for collection or of the right of Lender to the payment of the Secured Indebtedness out of the net proceeds of the Property in preference to every other claimant whatsoever.

Section 12.17  Waiver of Offsets/Defenses/Counterclaims . Borrower hereby waives the right to assert a counterclaim, other than a mandatory or compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents or otherwise to offset any obligations to make the payments required by the Loan Documents or the Environmental Indemnity. No failure by Lender to perform any of its obligations hereunder shall be a valid defense to, or result in any offset against, any payments which Borrower is obligated to make under any of the Loan Documents or the Environmental Indemnity.

Section 12.18  Conflict; Construction of Documents; Reliance . In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents or the Environmental Indemnity, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and the Environmental Indemnity and that such Loan Documents and the Environmental Indemnity shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or affiliate of Lender. Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents, the Environmental Indemnity or any other agreements or instruments that govern the Loan by virtue of the ownership by it or any parent, subsidiary or affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any such rights or remedies. Borrower acknowledges that Lender and its affiliates engage in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its affiliates.

Section 12.19   Brokers and Financial Advisors . Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement other than CBRE Capital Markets (“ Broker ”), and Borrower shall be solely responsible for payment of all commissions, finder’s fees or similar amounts due and payable to Broker pursuant to the terms of their separate agreement, all of which commissions, finder’s fees or similar amounts shall be paid to Broker by Borrower on the Execution Date. Borrower shall indemnify, defend and hold Lender and MetLife HCMJV 1, LP, and their respective affiliates, partners and participants, and the officers, directors, agents, employees of each of them, and the successors and assigns of each of them harmless from and against any and all claims, liabilities, costs and expenses of any kind (including Lender’s reasonable attorneys’ fees and disbursements) in any way relating to or arising from a claim by any Person (including Broker) that such Person acted on behalf of Borrower or Lender in connection with the transactions contemplated herein. The provisions of this Section 12.19 shall survive the expiration and termination of this Agreement and the payment of the Secured Indebtedness. Borrower acknowledges that Lender may have been involved in other transactions with Broker, and Borrower agrees that it shall have no rights against Lender or defenses to Borrower’s obligations under the Loan Documents or the Environmental Indemnity due to any such relationship.

Section 12.20   Exculpation . Upon the occurrence of an Event of Default, except as provided in this Section 12.20 , Lender will look solely to the Property and the security under the Loan Documents for the repayment of the Secured Indebtedness and will not enforce a deficiency judgment against Borrower. However, nothing contained in this Section shall limit the rights of Lender to proceed against Borrower and the general partners of Borrower (if any) and/or Liable Party, if any, (i) to enforce any Leases entered into by Borrower or its affiliates as Tenant; (ii) to recover damages actually incurred by Lender due to fraud, material misrepresentation, material breach of warranty or intentional physical waste committed by Borrower; (iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been applied by Borrower in a manner prohibited by the Loan Documents or which, under the terms of the Loan Documents, should have been paid to Lender; (iv) to recover any tenant security deposits, tenant letters of credit or other deposits or fees paid to Borrower that are part of the collateral for the Loan or prepaid rents for a period of more than thirty (30) days which have been applied by Borrower in a manner prohibited by the Loan Documents; (v) to recover Rents and Profits received by Borrower after the first day of the month in which an Event of Default occurs and prior to the date Lender acquires title to the Property which have not been applied to the Secured Indebtedness or in accordance with the Loan Documents to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses actually incurred by Lender and directly arising from, or in connection with Article IX of this Agreement pertaining to Hazardous Materials or the Environmental Indemnity; (vii) to recover all amounts due and payable pursuant to Section 9 of the Note, Section 7.6 and Section 7.7 of the Security Instrument and Section 12.12 hereof and any amount expended by Lender in connection with the foreclosure of the Security Instrument; (viii) to recover costs and damages arising from Borrower’s failure to pay Premiums or Impositions in the event Borrower is not required to deposit such amounts with Lender pursuant to Section 5.1.14(a) of this Agreement, but only to the extent adequate Rents and Profits from the Property then exist to pay such Premiums and Impositions (provided nothing herein shall be construed to preclude Lender from looking to the Property and the security under the Loan Documents to recover such costs and damages); and/or (ix) to recover damages arising from Borrower’s failure to comply with Section 4.1.5 and/or Section 5.2.8 pertaining to ERISA.

The limitation of liability set forth in this Section 12.20 shall not apply and the Loan shall be fully recourse in the event that prior to the repayment of the Loan, Borrower commences a voluntary bankruptcy or insolvency proceeding or an involuntary bankruptcy or insolvency proceeding is commenced against Borrower (other than by the MetLife Parties) and is not dismissed within ninety (90) days after Borrower obtains actual knowledge of filing. In addition, this agreement shall not waive any rights which Lender would have under any provisions of the Bankruptcy Code to file a claim for the full amount of the Loan or to require that the Property shall continue to secure all of the Loan.

Notwithstanding the foregoing, the Loan shall be fully recourse to Borrower in the event there is a Transfer or Secondary Financing except as permitted in the Loan Documents or otherwise approved in writing by Lender.

Section 12.21   Prior Agreements . This Agreement, the other Loan Documents and the Environmental Indemnity contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written, including, without limitation, the loan application, are superseded by the terms of this Agreement, the other Loan Documents and the Environmental Indemnity.

Section 12.22   Liability of Borrower . The obligations of Borrower under this Agreement, the Security Instrument and the other Loan Documents are subject to the limitations on recourse set forth in Section 12.20 .

Section 12.23   Joint and Several Liability . If more than one Person has executed this Agreement as “Borrower,” the representations, covenants, warranties and obligations of all such Persons hereunder shall be joint and several.

Section 12.24   Counterparts . This Agreement may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original and all of which together shall constitute a single agreement.

Section 12.25   Time Of The Essence . Time shall be of the essence with respect to all of Borrower’s obligations under this Agreement, the other Loan Documents and the Environmental Indemnity.

Section 12.26   No Merger . In the event that Lender should become the owner of the Property, there shall be no merger of the estate created by the Security Instrument with the fee estate in the Property.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the date of this Agreement.

LENDER :

BORROWER :

BR ROSWELL, LLC ,

a Delaware limited liability company

SCHEDULE 4.1.21

MATERIAL AGREEMENTS

SCHEDULE 4.1.35

REAs

Drainage Easement Agreement by and between Roswell Commons Group, L.P. and Habitat for Humanity-North Central Georgia, Inc. and others, recorded November 18, 2013, in Deed Book 53351, Page 14, Fulton County, Georgia records.

SCHEDULE 9.1

ENVIRONMENTAL REPORTS

Freddie Mac Multifamily Seller/Servicer Phase I Environmental Site Assessment, Roswell City Walk, 3000 Forrest Walk, Roswell, Fulton County, Georgia 30075, dated September 14, 2016, prepared by Blackstone Consulting LLC for CBRE Capital Markets, Inc., Houston, Texas

Phase I Environmental Site Assessment of Roswell City Forrest Apartments, 3000 Forrest Walk, Roswell, Georgia 30075, ATC Project No. 301MET0043, dated October 14, 2016, prepared by ATC Group Services LLC

Prospective Purchaser Corrective Action Plan, Frazier Street Apartments, 6700 Wren Court and 188 Norcross Street, Roswell, Fulton County, Georgia, dated June 7, 2013, prepared by Terracon for Lennar Multifamily Investors, LLC and its entity, GGT LMI City Walk GA, LLC

Prospective Purchaser Compliance Status Report, Frazier Street Apartments, 6700 Wren Court and 188 Norcross Street, Roswell, Fulton County, Georgia, dated September 13, 2016, prepared by Terracon for GGT LMI City Walk GA, LLC, Atlanta, Georgia

Letter from the Georgia Department of Natural Resources, Environmental Protection Division, dated October 25, 2016 regarding Brownfield Limitation of Liability – Frazier Street Apartments (sub-listed under HIS #10880, Dry Cleaning Depot) 6700 Wren Street and 188 Norcross Street, Roswell, Fulton County, Georgia

EXHIBIT A

LEGAL DESCRIPTION OF PROPERTY

All that tract or parcel of land lying and being in Land Lot 426 of the 1st District, 2nd Section, City of Roswell, Fulton County Georgia and being more particularly described as follows:

To Reach the TRUE POINT OF BEGINNING commence at a nail found on the northerly mitered intersection of the northerly Right of Way of Norcross Street (Variable R/W) and the easterly Right of Way of Frazier Street (Variable R/W); thence running along the easterly Right of Way of Frazier Street (Variable R/W) North 01° 09' 00" East a distance of 97.50 feet to a 1/2” rebar found; thence South 87º 25' 18” East a distance of 1.98 feet to the TRUE POINT OF BEGINNING, from point thus established and running along said Right of Way North 00° 49' 41" East a distance of 618.33 feet to an iron pin set; thence leaving said Right of Way South 88° 59' 39" East a distance of 572.40 feet to an iron pin set; thence South 01° 09' 56" East a distance of 306.45 feet to a 1/2” rebar found; thence North 82° 18' 10" East a distance of 85.64 feet to a 1/2" rebar and cap found; thence North 86° 44' 06" East a distance of 78.09 feet to 1” open top pipe found; thence South 06° 05' 06" West a distance of 399.71 feet to an iron pin set on the northerly Right of Way of Norcross Street (Variable R/W); thence running along said Right of Way the following courses: South 89° 19' 52" West a distance of 42.30 feet to a point; thence running along a curve to the left an arc length of 36.20 feet, (said curve having a radius of 319.00 feet, with a chord bearing of South 86° 04' 49" West, and a chord length of 36.18 feet) to a point; thence along a curve to the right an arc length of 61.20 feet, (said curve having a radius of 1111.26 feet, with a chord bearing of South 84° 24' 25" West, and a chord length of 61.19 feet) to a point; thence along a curve to the right an arc length of 120.72 feet, (said curve having a radius of 1388.01 feet, with a chord bearing of South 87° 43' 38" West, and a chord length of 120.68 feet) to a point; thence North 88° 28' 06" West a distance of 74.44 feet to a point; thence running along a curve to the left an arc length of 29.61 feet, (said curve having a radius of 16313.25 feet, with a chord bearing of North 88° 37' 21" West, and a chord length of 29.61 feet) to a point; thence North 89° 02' 19" West a distance of 91.10 feet to a point; thence running along a curve to the left an arc length of 29.01 feet, (said curve having a radius of 219.00 feet, with a chord bearing of South 87° 10' 01" West, and a chord length of 28.99 feet) to a point; thence South 82° 44' 08" West a distance of 35.47 feet to a point; thence leaving said Right of Way North 00° 23' 37" East a distance of 101.05 feet to a 1/2” rebar found; thence North 86° 37' 42" West a distance of 98.14 feet to a 1/2" rebar found; thence South 00° 26' 40" West a distance of 15.82 feet to a 1/2" rebar found; thence North 87° 25' 18" West a distance of 91.52 feet to the TRUE POINT OF BEGINNING. Said tract contains 10.280 Acres (447,775 Square Feet).

TOGETHER WITH all easements appurtenant to the above described parcel as set forth in that certain Drainage Easement Agreement dated November 14, 2013 among Roswell Commons Group, L.P., Habitat for Humanity of North Fulton, Inc., Norcross Village Homeowners Association, Inc., Roswell Landings Condominium Association, Inc. and Liberty Lofts and Townhomes Association, Inc., filed November 18, 2013, recorded in Deed Book 53351, page 14, Fulton County, Georgia records.

EXHIBIT B

LEASING GUIDELINES

The following are the initial Leasing Guidelines:

(a)           All Leases entered into from and after the date hereof shall be on a form of lease that is not materially different from the standard form of apartment lease approved by Lender in connection with the closing of this Loan (such approved form of Lease, the “ Standard Lease Form ”), with only those modifications that do not materially and adversely affect the obligations of the landlord;

(b)           All Leases shall have a maximum term of fifteen (15) months;

(c)           All Leases shall have an annual minimum rent payable at a market rent for units with comparable size, location and view premiums, with concessions not greater than generally available in units of comparable size and location in the market area;

(d)           Borrower may (i) modify, amend or extend any residential Lease, (ii) provide consents regarding subleases or assignments or other minor deviations from the terms of any residential Lease, (iii) cancel, terminate or accept surrender of any residential Lease, or (iv) exercise other lawful rights and remedies with regard to any residential Lease, so long as such modification, amendment, extension, consent, cancellation, termination, acceptance of surrender, or exercise of rights and remedies is in the ordinary course of business and all other provisions within the Leasing Guidelines are satisfied (except to the extent with regard to a cancellation, termination or acceptance of surrender); and

(e)           All payments of rent, additional rent or any other amounts due from a Tenant to a landlord under any Lease shall be made in money of the United States of America that at the time of payment shall be legal tender for the payment of all obligations.

*          *          *

EXHIBIT C

RENT ROLL

[SEE ATTACHED]

EXHIBIT C-1

DELINQUENT AND PREPAID REPORT

[SEE ATTACHED]

EXHIBIT D

ORGANIZATIONAL CHART

[SEE ATTACHED]

Exhibit 10.8

PROMISSORY NOTE

DEFINED TERMS

FOR VALUE RECEIVED, Borrower promises to pay to the order of Holder, at Holder’s Address or such other place as Holder may from time to time designate, the Loan Amount with interest payable in the manner described below, in money of the United States of America that at the time of payment shall be legal tender for payment of all obligations.

Capitalized terms which are not defined in this Note shall have the meanings set forth in the Loan Agreement.

1.           Payment of Principal and Interest . Borrower agrees to pay the principal sum of this Note and interest on the unpaid principal sum of this Note from time to time outstanding at the rates and at the times specified in Article II of the Loan Agreement, and the outstanding balance of the principal sum of this Note and all accrued and unpaid interest thereon, and all other sums evidenced by this Note or secured by the Security Instrument and/or any other Loan Documents, as well as any future advances under the Security Instrument that may be made to or on behalf of Borrower by Holder following the Advance Date, shall be due and payable on the Maturity Date.

2.           Security . The covenants of the Security Instrument are incorporated by reference into this Note. This Note shall evidence, and the Security Instrument and the Assignment of Leases shall secure, the Secured Indebtedness.

3.           Acceleration Upon Default . The provisions of Section 2.6 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

4.           Limitation on Interest . The provisions of Section 2.8 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

5.           Prepayment . Borrower shall not have the right to prepay all or any portion of the Loan Amount at any time during the term of this Note except as expressly set forth in the Loan Agreement.

6.           Exculpation . The provisions of Section 12.20 of the Loan Agreement are hereby incorporated by reference into this Note to the same extent and with the same force as if fully set forth herein.

7.           Waiver by Borrower . Borrower and others who may become liable for the payment of all or any part of this Note, and each of them, waive (except as expressly set forth in the Loan Documents) diligence, demand, presentment for payment, notice of nonpayment, protest, notice of dishonor and notice of protest, notice of intent to accelerate and notice of acceleration and specifically consent to and waive notice of any amendments, modifications, renewals or extensions of this Note, including the granting of extension of time for payment, whether made to or in favor of Borrower or any other person or persons.

8.           Exercise of Rights . No single or partial exercise by Holder, or delay or omission in the exercise by Holder, of any right or remedy under the Loan Documents shall waive or limit the exercise of any such right or remedy. Holder shall at all times have the right to proceed against any portion of or interest in the Property in the manner that Holder may deem appropriate, without waiving any other rights or remedies. The release of any party under this Note shall not operate to release any other party which is liable under this Note and/or under the other Loan Documents or under the Indemnity Agreement.

9.           Fees and Expenses . If Borrower defaults under this Note, Borrower shall be personally liable for and shall pay to Holder, in addition to other sums payable pursuant to the terms hereof, the costs and expenses of enforcement and collection, including a reasonable sum as an attorney’s fee. This obligation is not limited by Section 12.20 of the Loan Agreement.

10.          No Amendments . This Note may not be modified or amended except in a writing executed by Borrower and Holder. No waivers shall be effective unless they are set forth in a writing signed by the party which is waiving a right. This Note and the other Loan Documents are the final expression of the lending relationship between Borrower and Holder.

11.          Governing Law . This Note is to be construed and enforced in accordance with the laws of the State. 

12.          Construction . The words “Borrower” and “Holder” shall be deemed to include their respective heirs, representatives, successors and assigns, and shall denote the singular and/or plural, and the masculine and/or feminine, and natural and/or artificial persons, as appropriate. The provisions of this Note shall remain in full force and effect notwithstanding any changes in the shareholders, partners or members of Borrower. If more than one party is Borrower, the obligations of each party shall be joint and several. The captions in this Note are inserted only for convenience of reference and do not expand, limit or define the scope or intent of any section of this Note.

13.          Notices . All notices, demands, requests and consents permitted or required under this Note shall be given in the manner prescribed in the Loan Agreement.

14.          Time of the Essence . Time shall be of the essence with respect to all of Borrower’s obligations under this Note.

15.          Severability . If any provision of this Note should be held unenforceable or void, then that provision shall be deemed separable from the remaining provisions and shall not affect the validity of this Note, except that if that provision relates to the payment of any monetary sum, then Holder may, at its option, declare the Secured Indebtedness immediately due and payable but without the payment of any Prepayment Fee.

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IN WITNESS WHEREOF, THIS NOTE has been executed by Borrower as of the Execution Date.

Signature Page 

Exhibit 10.9

THIS INSTRUMENT IS TO BE FILED FOR RECORD IN THE REAL ESTATE RECORDS OF THE COUNTY WHERE THE REAL PROPERTY IS LOCATED AND SHALL CONSTITUTE A FIXTURE FILING IN ACCORDANCE WITH THE PROVISIONS OF O.C.G.A. SECTION 11-9-502(C).

THIS INSTRUMENT SECURES FUTURE ADVANCES OR OBLIGATIONS PURSUANT TO O.C.G.A. SECTION 44-14-2.

DEED TO SECURE DEBT, SECURITY AGREEMENT AND

FIXTURE FILING

BY

BR ROSWELL, LLC,

a Delaware limited liability company,

as Grantor

TO

METLIFE HCMJV 1 REIT, LLC,

a Delaware limited liability company,

as Grantee

December 1, 2016

DEED TO SECURE DEBT, SECURITY AGREEMENT AND FIXTURE FILING

DEFINED TERMS