LIMITED LIABILITY COMPANY AGREEMENT

LLC Operating Agreement

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MID-AMERICA MULTIFAMILY FUND II, LLC | Mid-America Apartments, L.P | TPRF II/Memphis Investor, L.L.C

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Title: LIMITED LIABILITY COMPANY AGREEMENT
Governing Law: Delaware Date: 6/29/2009
Industry: Real Estate Operations Law Firm: Bass Berry Sector: Services

LIMITED LIABILITY COMPANY AGREEMENT, Parties: mid-america multifamily fund ii llc , mid-america apartments l.p , tprf ii/memphis investor l.l.c

Table of Contents

		Page
ARTICLE 1 DEFINED TERMS		1
1.1.	AAA.	1
1.2.	Acquiring Member	1
1.3.	Acquisition Contract	1
1.4.	Act.	1
1.5.	1933 Act.	1
1.6.	Additional Capital Contributions.	1
1.7.	Adjusted Capital Account Deficit.	1
1.8.	Affiliate.	1
1.9.	Agreement.	2
1.10.	Book Basis.	2
1.11.	Budget.	2
1.12.	Budget and Operating Plans.	2
1.13.	Buyer.	2
1.14.	Buy‑Sell Offer.	2
1.15.	Capital Account.	2
1.16.	Capital Contributions.	2
1.17.	Cash Needs.	2
1.18.	Certificate of Formation.	2
1.19.	Change in Control.	2
1.20.	Code.	3
1.21.	Company.	3
1.22.	Company Accountant	3
1.23.	Company Loan.	4
1.24.	Company Minimum Gain	4
1.25.	Confidential Information.	4
1.26.	Contributing Member.	4
1.27.	Contributing Member's Representatives.	4
1.28.	Default Loan.	4
1.29.	Election.	4
1.30.	Escrow Fund.	4
1.31.	Executive Committee.	4
1.32.	Expenditures.	4
1.33.	Failed Contribution.	4
1.34.	Fair Market Value.	4
1.35.	Final Sharing Ratio.	4
1.36.	Formation Date.	5
1.37.	Fund III	5
1.38.	GAAP.	5
1.39.	Indemnitee.	5
1.40.	Initial Cash Contributions.	5
1.41.	Interest.	5
1.42.	IRR.	5
1.43.	Investment Criteria	5
1.44.	Investment Period	5
1.45.	Lending Member	5
1.46.	Liquidating Amount	5
1.47.	Liquidator.	6
1.48.	Loan Needs.	6
1.49.	Lockout Period.	6
1.50.	Loss.	6
1.51.	Major Decision.	6
1.52.	Managing Member.	6
1.53.	Managing Member Indemnitees.	6
1.54.	Maximum Contribution Amount.	7
1.55.	Member.	7
1.56.	Member Minimum Gain.	7
1.57.	Member Nonrecourse Debt.	7
1.58.	Member Nonrecourse Deductions.	7
1.59.	Net Cash Flow.	7
1.60.	Net Profits and Net Losses.	7
1.61.	Non‑Contributing Member.	7
1.62.	Non-Offering Member.	7
1.63.	Nonrecourse Debt.	7
1.64.	Nonrecourse Deductions.	7
1.65.	Notices.	7
1.66.	Offeree.	7
1.67.	Offeree Value.	7
1.68.	Offering Member.	7
1.69.	Offeror.	7
1.70.	Offeror Value.	8
1.71.	Percentage Interest.	8
1.72.	Permitted Investments.	8
1.73.	Person.	8
1.74.	Prime Rate.	8
1.75.	Proceeding.	8
1.76.	Profit.	8
1.77.	Project Subsidiaries.	8
1.78.	Properties.	9
1.79.	Property Buy Offer.	9
1.80.	Property Buy–Sell Event.	9
1.81.	Property Buy-Sell Offer.	9
1.82.	Property Management Agreement.	9
1.83.	Property Manager.	9
1.84.	Property Offer Election.	9
1.85.	Property Purchase Price.	9
1.86.	Property Sell Offer.	9
1.87.	Prospective Property Acquisition	9
1.88.	Purchase Date.	9
1.89.	Purchase Event.	9
1.90.	Purchase Interest.	9
1.91.	Purchase Option.	9
1.92.	Purchase Price.	9
1.93.	Receipts.	10
1.94.	Region.	10
1.95.	Rejecting Member	10
1.96.	Related Agreements.	10
1.97.	Representative.	10
1.98.	Seller.	10
1.99.	Subject Property.	10
1.100.	Tax Matters Member	10
1.101.	Target Amount.	10
1.102.	Thackeray Interest.	10
1.103.	Thackeray.	11
1.104.	Transfer.	11
1.105.	Treasury Regulations	11
1.106.	Other Terms.	11
ARTICLE 2 ORGANIZATION		11
2.1.	Formation.	11
2.2.	Name.	11
2.3.	Principal Place of Business.	12
2.4.	Term.	12
2.5.	Registered Agent and Registered Office.	12
2.6.	Purpose.	12
2.7.	Investment Period.	12
ARTICLE 3 CAPITAL		13
3.1.	Initial Capital Contributions.	13
3.2.	Additional Capital Contributions.	13
3.3.	Company Loan.	14
3.4.	Borrow Funds.	15
3.5.	Wire Transfers.	15
3.6.	Failure to Make Capital Contribution.	15
3.6.1.	Set Off.	15
3.6.2.	Percentage Interest Adjustment.	15
3.6.3.	Seek Indemnity.	15
3.6.4.	Separate Acquisition.	16
3.6.5.	Return Additional Capital Contribution.	16
3.6.6.	Default Loan.	16
3.6.7.	Prohibition.	17
3.7.	Percentage Interest and Final Sharing Ratio Adjustment	17
3.7.1.	Percentage Interest Adjustment.	17
3.7.2.	Final Sharing Ratio Adjustment.	18
3.8.	Intentionally Omitted	19
3.9.	Intentionally Omitted	19
3.10.	Capital Accounts.	19
3.10.1.	Capital Account Credits.	19
3.10.2.	Capital Account Debits.	19
3.11.	Interest On and Return of Capital.	20
3.12.	No Further Capital Contribution.	20
3.13.	Waiver of Right of Partition and Dissolution.	20
ARTICLE 4 PROFITS AND LOSSES		20
4.1.	Allocation of Profits and Losses	20
4.2.	Special Allocations	21
4.2.1.	Minimum Gain Chargeback	21
4.2.2.	Qualified Income Offset	21
4.2.3.	Nonrecourse Deductions	21
4.2.4.	Member Nonrecourse Deductions	21
4.2.5.	Code Section 754 Adjustments	21
4.2.6.	Loss Limitation	22
4.3.	Compliance With Section 704(c)	22
4.4.	Intent of Allocations	22
4.5.	Member Acknowledgment	22
ARTICLE 5 DISTRIBUTIONS		23
5.1.	Distributions	23
5.2.	Timing	23
5.3.	Distribution Limitation Under Act; Reserves	23
ARTICLE 6 MANAGEMENT		23
6.1.	Executive Committee	24
6.2.	Members of the Executive Committee	24
6.2.1.	Membership	24
6.2.2.	Regular Meetings	24
6.2.3.	Special Meetings	25
6.2.4.	Notice of Meetings	25
6.2.5.	Quorum	25
6.2.6.	Telephone Meetings	26
6.2.7.	Minutes	26
6.2.8.	No Compensation	26
6.2.9.	Appointment of Agents	26
6.2.10.	Engagement of Professionals	26
6.3.	Major Decisions	26
6.3.1.	Financings	26
6.3.2.	Budget	27
6.3.3.	Operating Variances	27
6.3.4.	Distributions	27
6.3.5.	Possession or Use of Company Property	27
6.3.6.	Reserves	27
6.3.7.	Capital Calls	27
6.3.8.	Company Loans	27
6.3.9.	Sales	27
6.3.10.	Acquisitions	27
6.3.11.	Property Development	28
6.3.12.	Improvements	28
6.3.13.	Capital Expenditures	28
6.3.14.	Loans and Guarantees	28
6.3.15.	Contracts	29
6.3.16.	Subsidiary Entities	29
6.3.17.	Professional Services	29
6.3.18.	Non-Standard Leases	29
6.3.19.	Sales or Placement Agents	29
6.3.20.	Overhead	29
6.3.21.	Affiliate Transactions	29
6.3.22.	Legal Proceedings	30
6.3.23.	Bankruptcy	30
6.3.24.	Merger	30
6.3.25.	Tax Elections	30
6.3.26.	Dissolution or Distributions In Kind	30
6.3.27.	Company Term; Investment Period	30
6.3.28.	Causing Project Subsidiary to Undertake Major Decisions	30
6.3.29.	Amendment	30
6.3.30.	Restoration	31
6.3.31.	Insurance	31
6.3.32.	Permitted Investments	31
6.3.33.	Memphis Commercial Group	31
6.3.34.	Others	31
6.3.35.	Permitted Expenditures	31
6.4.	Managing Member Powers	31
6.5.	Actions Requiring Unanimous Consent	31
6.5.1.	Contravene Agreement	31
6.5.2.	Impossibility of Business	31
6.5.3.	Guarantee Non-Investment Entity Debts	31
6.5.4.	Employees	32
6.6.	Managing Member Duties	32
6.6.1.	General Duties	32
6.6.2.	Day to Day Management	32
6.7.	Intentionally Omitted	33
6.8.	Members	33
6.9.	Company Expenses	33
6.9.1.	General	33
6.9.2.	Acquisition Costs	34
6.9.3.	Management Fee	34
6.9.4.	Asset Management	34
6.9.5.	Construction Management	35
6.9.6.	Acquisition Fee	35
6.9.7.	Memphis Commercial Group	35
6.9.8.	Equity Placement	35
6.9.9.	Thackeray Direct Expenses	35
6.10.	Liability of Members.	35
6.10.1.	Exculpation.	36
6.10.2.	Indemnification.	37
6.10.3.	Indemnification of Successors	40
ARTICLE 7 PURCHASE OPTIONS		40
7.1.	Purchase Events	40
7.1.1.	Withdrawal	40
7.1.2.	Bankruptcy	40
7.1.3.	Involuntary Bankruptcy	40
7.1.4.	Trustee Appointment	40
7.1.5.	Failure to Pay Debts	40
7.1.6.	Writ of Attachment	40
7.1.7.	Failure to Perform Obligations	41
7.1.8.	Assignment of Rights	41
7.1.9.	Change of Control	41
7.1.10.	Dissolution	41
7.1.11.	Felonious Act	41
7.2.	Exercise of Purchase Option	41
7.3.	Closing and Terms	42
7.4.	Effect on Seller's Interest	42
7.5.	Term of Options	42
ARTICLE 8 BUY-SELL PROVISIONS		43
8.1.	Master Buy-Sell Provision	43
8.1.1.	Terms	43
8.1.2.	Determination of Value	43
8.1.3.	Offeree Election	43
8.2.	Closing	44
8.3.	Remedies; Coordination of Rights	44
8.4.	Terms Governing the Escrow Funds	45
8.5.	Power of Attorney	45
8.6.	Property Buy-Sell Provision	45
8.6.1.	Terms	46
8.6.2.	Non-Offering Member Election	46
8.7.	Closing	47
8.8.	Remedies; Coordination of Rights in Connection with Property Buy-Sell	47
8.9.	Terms Governing the Escrow Funds in Connection with Property Buy-Sell	47
ARTICLE 9 BOOKS AND RECORDS		48
9.1.	Books and Records	48
9.2.	Accounting and Fiscal Year	48
9.3.	Reports	49
9.3.1.	Monthly Reports	49
9.3.2.	Annual Reports	49
9.3.3.	Other Reports	50
9.3.4.	Tax Reports	50
9.3.5.	Tax Returns	50
9.3.6.	Other	50
9.4.	The Company Accountant	50
9.5.	Reserves	50
9.6.	The Budget and Operating Plans	50
9.6.1.	Adoption of Budget	51
9.6.2.	Strategies	51
9.6.3.	Project Budget	51
9.6.4.	Renovation of Properties	51
9.6.5.	Failure to Approve Annual Plan	51
9.7.	Tax Matters Member	52
ARTICLE 10 TRANSFER OF INTERESTS		52
10.1.	Transfer Restrictions	52
10.1.1.	Direct Transfers	52
10.1.2.	Managing Member Indirect Transfers	52
10.2.	Permitted Transfers	52
10.3.	Transferees	53
10.4.	Section 754 Election	53
10.5.	Non-Complying Transfers Void	53
ARTICLE 11 DISSOLUTION AND TERMINATION		53
11.1.	Dissolution Events	53
11.1.1.	Termination Date	53
11.1.2.	Written Agreement	54
11.1.3.	Withdrawal or Merger of Managing Member	54
11.1.4.	Disposition of Property	54
11.1.5.	Bankruptcy	54
11.1.6.	Reorganization	54
11.2.	Continuation	54
11.3.	Method of Liquidation	54
11.3.1.	Generally	54
11.3.2.	Distributions in Kind	55
11.3.3.	No Deficit Restoration Obligation	55
11.4.	Deemed Distribution and Recontribution	55
11.5.	Date of Termination	56
ARTICLE 12 INVESTMENT REPRESENTATIONS OF THE MEMBERS		56
12.1.	Investment Intent	56
12.2.	Unregistered Company Interests	56
12.3.	Nature of Investment	56
12.4.	Legend on Agreement	57
ARTICLE 13 MISCELLANEOUS		57
13.1.	Exclusivity	57
13.1.1.	Opportunities	57
13.1.2.	Exceptions: Rejection	57
13.1.3.	Exception: Like Kind	57
13.2.	Exclusivity	58
13.3.	Representations and Warranties of the Members	58
13.3.1.	Due Organization	58
13.3.2.	Legal and Binding	58
13.3.3.	No Consents	58
13.3.4.	No Conflicts	58
13.3.5.	No Brokers	58
13.3.6.	Prohibited Person and Transactions	58
13.4.	Appraisal Procedures for Fair Market Value	59
13.4.1.	Selection of Appraisers	59
13.4.2.	Resolution of Appraisal Disputes	59
13.5.	Further Assurances	59
13.6.	Conflicts	59
13.7.	Notices	60
13.8.	Cumulative Remedies	61
13.9.	Governing Law	61
13.10.	Arbitration	61
13.10.1.	General	61
13.10.2.	Selection of Arbitrator	62
13.10.3.	Rules of Arbitration	62
13.10.4.	Costs of Arbitration	62
13.10.5.	Award of Arbitrator	62
13.11.	Attorney Fees	62
13.12.	Captions	62
13.13.	Pronouns	63
13.14.	Successors and Assigns	63
13.15.	Extension Not a Waiver	63
13.16.	Creditors and Third Parties Not Benefited	63
13.17.	Recalculations of Interest	63
13.18.	Severability	63
13.19.	Entire Agreement	63
13.20.	Publicity	64
13.21.	Counterparts	64
13.22.	Confidentiality	64
13.22.1.	Confidential Information	64
13.22.2.	No Disclosure	65
13.22.3.	Survival	65

LIMITED LIABILITY COMPANY AGREEMENT

MID-AMERICA MULTIFAMILY FUND II, LLC

(a Delaware limited liability company)

Dated as of June 23, 2009

THE INTERESTS REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “FEDERAL ACT”), OR THE SECURITIES LAWS OF THE VARIOUS STATES (“STATE LAW”). THEY HAVE BEEN ISSUED AND SOLD PURSUANT TO AN EXEMPTION FROM THE FEDERAL ACT AND STATE LAW AND MAY NOT, EXCEPT AS SPECIFICALLY PROVIDED HEREIN, BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED BY THE HOLDERS THEREOF AT ANY TIME, AND WHICH MAY BE CONDITIONED UPON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE MANAGING MEMBER THAT SUCH SECURITIES MAY BE TRANSFERRED WITHOUT REGISTRATION OR QUALIFICATION. TRANSFER OF AN INTEREST IS PROHIBITED EXCEPT PURSUANT TO REGISTRATION IN ACCORDANCE WITH THE FEDERAL ACT AND EACH RELEVANT STATE LAW OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE FEDERAL ACT AND EACH RELEVANT STATE LAW. HEDGING TRANSACTIONS INVOLVING AN INTEREST MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE FEDERAL ACT AND ALL APPLICABLE STATE LAWS.

EXHIBITS

Exhibit A — Example IRR Calculation

Exhibit B — Property Management Agreement

Exhibit C — Example Percentage Interest and Final Sharing Ratio Adjustment

Exhibit D — Due Diligence and Closing Checklist

Exhibit E — Purchase and Sale Agreement

Exhibit F — Single Purpose Entity Agreement

Exhibit G — Investment Criteria

Exhibit H — Memphis Commercial Group Agreement

LIMITED LIABILITY COMPANY AGREEMENT

MID-AMERICA MULTIFAMILY FUND II, LLC

This LIMITED LIABILITY COMPANY AGREEMENT of MID-AMERICA MULTIFAMILY FUND II, LLC , a Delaware limited liability company, is made and entered into as of June ___, 2009 (the " Formation Date "), by and among Mid-America Apartments, L.P. , a Tennessee limited partnership (" MAALP ") and TPRF II/Memphis Investor, L.L.C., a Delaware limited liability company (" Thackeray ").

ARTICLE 1

DEFINED TERMS

As used in this Agreement, the following terms will have the following meanings when used herein with initial capital letters:

1.1. AAA . »

" AAA " shall have the meaning set forth in Section 13.10.2 .

1.2. Acquiring Member »

. “Acquiring Member” shall have the meaning set forth in Section13.1.2 .

1.3. Acquisition Contract »

. “ Acquisition Contract ” shall have the meaning set forth in Section 6.3.10 .

1.4. Act . »

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

1.5. 1933 Act . »

" 1933 Act " means the Securities Act of 1933, as amended.

1.6. Additional Capital Contributions . »

" Additional Capital Contributions " shall have the meaning set forth in Section 3.2 .

1.7. Adjusted Capital Account Deficit . »

" Adjusted Capital Account Deficit " means with respect to any Member for any taxable year, the deficit balance, if any, in such Member's Capital Account as of the end of such taxable year, after increasing such Capital Account by any amounts that such Member is actually obligated or deemed obligated to restore as described in the penultimate sentences of Treasury Regulation Section 1.704-2(g)(1) and Treasury Regulation Section 1.704-2(i)(5), and reducing such Capital Account by any amounts described in Treasury Regulation Section 1.704-1(b)(2)(ii)( d )( 4 ), (5 ) and ( 6 ). The definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)( d ) and shall be interpreted consistently therewith.

1.8. Affiliate . »

" Affiliate " means, with respect to any Person, any other Person directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such Person; provided, however, that no individual Person or any Person who controls, is controlled by, or is under common control with such individual Person shall be deemed an Affiliate of another Person solely by reason of such individual's status as a director, officer or employee of such Person; provided further, that, without limiting the foregoing, Mid-America Apartment Communities, Inc (“MAAC”) and MAALP are Affiliates of each other and MAAC and MAALP individually and collectively are not Affiliates of Thackeray and vice versa. As used in this definition, the terms "control," "controlling," "controlled by" or "under common control with" means the possession, directly or indirectly, through one or more intermediaries, of the power to direct or cause the direction of the management and policies of a Person, whether through voting securities, by contract or otherwise.

1.9. Agreement . »

" Agreement " means this Limited Liability Company Agreement, as it may be amended from time to time.

1.10. Book Basis . »

" Book Basis " means, with respect to any asset, the asset's adjusted basis for federal income tax purposes; provided, however, (a) if property is contributed to the Company, the initial Book Basis of such property shall equal its Fair Market Value on the date of contribution as determined by this Agreement; and (b) if the Capital Accounts of the Company are adjusted pursuant to Treasury Regulation Section 1.704-1(b) to reflect the Fair Market Value of any Company asset, the Book Basis of such asset shall be adjusted to equal its respective Fair Market Value as of the time of such adjustment in accordance with such Treasury Regulation. The Book Basis of all assets shall be adjusted thereafter by depreciation and amortization as provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(g).

1.11. Budget . »

" Budget " means a Budget and Operating Plans.

1.12. Budget and Operating Plans . »

" Budget and Operating Plans " shall have the meaning set forth in Section 9.6.1 .

1.13. Buyer . »

" Buyer " shall have the meaning set forth in Section 7.1 .

1.14. Buy-Sell Offer . »

" Buy-Sell Offer " shall have the meaning set forth in Section 8.1 .

1.15. Capital Account . »

" Capital Account " means that capital account maintained for each Member pursuant to Section 3.10 .

1.16. Capital Contributions . »

" Capital Contributions " means, with respect to any Member, the amount of cash and the initial Book Basis of any property or other asset (net of liabilities assumed by the Company resulting from such contribution, and liabilities to which that property or asset is subject), contributed or deemed contributed to the Company with respect to the Percentage Interest held by the Member.

1.17. Cash Needs . »

" Cash Needs " shall have the meaning set forth in Section 3.2 .

1.18. Certificate of Formation . »

" Certificate of Formation " shall have the meaning set forth in Section 2.1 .

1.19. Change in Control . »

A " Change in Control " with respect to MAAC shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 and the Regulations promulgated thereunder), acquires, directly or indirectly, in any transaction or series of transactions 40% or more of the Full Voting Power of MAAC or substantially all of the assets of MAAC (a " CIC Threshold Transaction "); provided, however, that a Change in Control shall not be deemed to have occurred if after a CIC Threshold Transaction (1) the Chief Executive Officer and Chief Financial Officer (who held such positions as of the Formation Date or are otherwise approved by all the Members) continue to hold those positions with MAAC or any surviving entity after a CIC Threshold Transaction, or (2) such CIC Threshold Transaction is a transaction described in Rule 13e-3 under the Securities Exchange Act of 1934 and the Chief Executive Officer and Chief Financial Officer of MAAC (who held such positions as of the Formation Date or are otherwise approved by all the Members) remain in those positions with MAAC or any surviving entity after such CIC Threshold Transaction, or (ii) an event occurs in which the Chief Executive Officer, Chief Financial Officer and at least 50% of the directors of MAAC (who held such positions as of the Formation Date or are otherwise approved by all Members) do not continue to hold those positions with MAAC or any surviving entity after such event. " Full Voting Power " shall mean the right to vote in the election of one or more directors through proxy or by the beneficial ownership of common stock of MAAC or other securities then entitled to vote in the election of one or more directors. For purposes of calculating the percentage ownership of Full Voting Power of a person, all warrants, options or rights to purchase common stock or other securities of MAAC that would be entitled to vote in the election of directors of MAAC held by all persons shall be deemed to have been exercised and all securities convertible into or exchangeable for MAAC common stock or voting securities, including Class A common units of limited partnership interest in MAALP, shall be deemed to have been converted or exchanged, as the case may be (disregarding for such purposes any restrictions on conversion, voting (such as proxies), exchange or exercise), in each case for the maximum number of shares of common stock of MAAC or other securities entitled to then vote in the election of one or more directors. A " Change in Control " with respect to MAALP means any event (including, without limitation, any sale, assignment, Transfer, merger, consolidation, combination, reorganization, liquidation, division, dividend, stock split or other restructure) which results in (1) MAAC (or an Affiliate of MAAC) no longer owning and controlling MAALP, or substantially all the assets owned by MAALP, prior to such event or (2) any Change in Control with respect to MAAC. As used in the previous sentence, the term "controlling" shall have the same meaning as set forth in the definition of Affiliate. A “Change in Control” with regards to Thackeray means any event, including without limitation, any sale, assignment, Transfer, merger, consolidation, reorganization, liquidation, division, dividend or any other restructure of Thackeray or Thackeray Partners Realty Fund II, L.P. ("Thackeray Partners"), resulting in Thackeray Partners no longer owning and controlling Thackeray, or substantially all the assets owned by Thackeray, prior to such event; provided that such event shall be deemed not to constitute a Change in Control if either Tony Dona or Mary Hager (or both of them) continue in controlling management positions relating to the entity that, upon such event, controls or owns Thackeray.

1.20. Code . »

" Code " means the Internal Revenue Code of 1986, as amended.

1.21. Company . »

" Company " means the company formed and governed by this Agreement.

1.22. Company Accountant »

. “ Company Accountant ” shall have the meaning set forth in Section 9.4 .

1.23. Company Loan . »

“ Company Loan ” shall have the meaning set forth in Section 3.3 .

1.24. Company Minimum Gain »

. “ Company Minimum Gain ” shall have the meaning of “Partnership Minimum Gain” set forth in Treasury Regulation Section 1.704-2(d).

1.25. Confidential Information . »

" Confidential Information " shall have the meaning set forth in Section 13.22.1 hereof.

1.26. Contributing Member . »

“ Contributing Member ” shall have the meaning set forth in Section 3.2 .

1.27. Contributing Member's Representatives . »

" Contributing Member's Representatives " shall have the meaning set forth in Section 3.6 .

1.28. Default Loan . »

“ Default Loan ” shall have the meaning set forth in Section 3.6.6 .

1.29. Election . »

" Election " shall have the meaning set forth in Section 8.1.3 .

1.30. Escrow Fund . »

" Escrow Fund " shall have the meaning set forth in Section 8.1.1 .

1.31. Executive Committee . »

" Executive Committee " means the committee formed pursuant to Section 6.1 .

1.32. Expenditures . »

" Expenditures " means, for any period, the sum of the total gross expenditures of the Company during such period, including (a) all cash operating expenses, (b) all costs and expenses of any financing and all debt service payments including debt service on loans made to the Company by the Members or any of their Affiliates (pursuant to the terms and conditions of this Agreement other than Company Loans), (c) all expenditures which are treated as capital expenditures (as distinguished from expense deductions) under GAAP, (d) all real estate taxes, personal property taxes and sales taxes, (e) all deposits of Receipts to the Company's reserve accounts, and (f) all costs and expenditures related to any acquisition, sale, disposition, financing, refinancing or securitization of a Property; provided, however, that Expenditures shall not include (i) any payment or expenditure to the extent (A) the sources of funds used for such payment or expenditure are not included in Receipts or (B) such payment or expenditure is paid directly out of any Company reserve account (as opposed to first being deposited into an operating account and then applied to the applicable expense), or (ii) any expenditure properly attributable to the liquidation of the Company.

1.33. Failed Contribution . »

" Failed Contribution " shall have the meaning set forth in Section 3.6 .

1.34. Fair Market Value . »

" Fair Market Value " means, as to any non-cash property of the Company, the fair market value thereof as determined by the Executive Committee.

1.35. Final Sharing Ratio . »

" Final Sharing Ratio " means with respect to a Member, the percentage set forth under the heading Final Sharing Ratio opposite the name of that Member in Section 3.1 as it may be increased or decreased pursuant to this Agreement.

1.36. Formation Date . »

" Formation Date " shall have the meaning given to such term in the first paragraph of this Agreement.

1.37. Fund III »

. “ Fund III ” shall have the meaning given to such term in Section 3.2 .

1.38. GAAP . »

" GAAP " shall have the meaning set forth in Section 9.2 .

1.39. Indemnitee . »

" Indemnitee " shall have the meaning set forth in Section 6.10.2.3 .

1.40. Initial Cash Contributions . »

" Initial Cash Contributions " shall have the meaning set forth in Section 3.1 .

1.41. Interest . »

" Interest " means, with respect to any Member at any time, the interest of such Member in the Company at such time, including the right of such Member to any and all of the benefits to which such Member may be entitled as provided in this Agreement, together with the obligations of such Member to comply with all of the terms and provisions of this Agreement.

1.42. IRR . »

" IRR " means with respect to contributions (i.e. Capital Contributions) to the Company by a Member and distributions (i.e. distributions made under Sections 5.1 and 11.3 ) from the Company to a Member, the monthly rate of compounding which satisfies the condition that the sum of the present values of each contribution equals the sum of the present values of each distribution, where each such present value is determined as of the Formation Date. For purposes of this Agreement, IRR will be calculated by treating each contribution and distribution which occurs during a month as occurring at the beginning of that month and by using the computer program Microsoft EXCEL (Internal Rate of Return Calculation). Any IRR expressed in this Agreement will be expressed as an annual rate taking into consideration the monthly compounding required to yield such annual rate. An example IRR calculation in accordance with this definition, which is calculated inclusive of a return of Member Capital Contributions, is attached hereto as Exhibit A .

1.43. Investment Criteria »

. “ Investment Criteria ” shall have the meaning set forth in Section 2.7 .

1.44. Investment Period »

. “ Investment Period ” shall have the meaning set forth in Section 2.7 .

1.45. Lending Member »

. “ Lending Member ” shall have the meaning set forth in Section 3.6.6 .

1.46. Liquidating Amount »

“ Liquidating Amount ” means, with respect to a Member, at the end of any fiscal year or other allocation period, the amount which such Member would then be entitled to receive if, immediately following such fiscal year or other allocation period: (a) all of the assets of the Company (other than cash and claims of the Company for contributions) were sold for cash equal to their respective Book Basis (or, in the case of assets subject to liabilities for which the creditor’s right is limited to assets of the Company, the amounts of such liabilities, if greater than the aggregate Book Basis of such assets); (b) all unconditional obligations to contribute to the Company were collected in full; and (c) the proceeds of such sale and collections, and all other cash of the Company, were distributed as provided in Section 5.1 .

1.47. Liquidator . »

" Liquidator " shall have the meaning set forth in Section 11.3.1 .

1.48. Loan Needs . »

" Loan Needs " shall have the meaning set forth in Section 3.3 .

1.49. Lockout Period . »

“ Lockout Period ” means the two (2) year period from the Acquisition Date of a Property.

1.50. Loss . »

" Loss " means, with respect to the Company, for each taxable year, each item of the Company's taxable loss or deduction for such taxable year, as determined under Section 703(a) of the Code, and Section 1.703-1 of the Treasury Regulations (for this purpose, all items of deduction and loss required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable loss), but with the following adjustments:

(a) Any expenditures of the Company described in Section 705(a)(2)(B) of the Code, including any items treated under Section 1.704-1(b)(2)(iv)( i ) of the Treasury Regulations as items described in Section 705(a)(2)(B) of the Code, shall be considered an item of taxable deduction or loss;

(b) In the event the Book Basis of any Company asset is reduced as a result of an adjustment to Book Basis under Treasury Regulation Section 1.704-1(b)(2)(iv)( f ), the amount of such reduction shall be taken into account as loss from the disposition of such asset for purposes of computing Loss;

(c) Loss resulting from any disposition of property with respect to which loss is recognized for federal income tax purposes shall be computed by reference to the Book Basis of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Book Basis;

(d) Any items which are specially allocated pursuant to Section 4.2 shall not be taken into account in computing Loss; and

(e) In lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable loss or deduction, there shall be taken into account depreciation and amortization as determined pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)( g ), if applicable for such taxable year or other period.

1.51. Major Decision . »

" Major Decision " shall have the meaning set forth in Section 6.3 .

1.52. Managing Member . »

" Managing Member " means MAALP or any other Person who is selected as the Managing Member in accordance with this Agreement.

1.53. Managing Member Indemnitees . »

"Managing Member Indemnitees" shall have the meaning set forth in Section 6.10.1.2 .

1.54. Maximum Contribution Amount . »

"Maximum Contribution Amount" shall have the meaning set forth in Section 3.2 .

1.55. Member . »

" Member " means Thackeray, MAALP or any other Person designated as a Member on the signature pages to this Agreement or who or which is admitted hereafter as a member of the Company in accordance with this Agreement and applicable law.

1.56. Member Minimum Gain . »

" Member Minimum Gain " means "partner minimum gain" as defined in Treasury Regulation Section 1.704-2(i)(2).

1.57. Member Nonrecourse Debt . »

" Member Nonrecourse Debt " means "partner nonrecourse debt" as defined in Treasury Regulation Section 1.704-2(b)(4).

1.58. Member Nonrecourse Deductions . »

" Member Nonrecourse Deductions " means "partner nonrecourse deductions" as defined in Treasury Regulations Section 1.704-2(i)(1).

1.59. Net Cash Flow . »

" Net Cash Flow " means, for any period, the excess of (a) Receipts for such period, over (b) Expenditures for such period.

1.60. Net Profits and Net Losses . »

" Net Profits or Net Losses " means for each taxable year or other period the excess of items of Profit over items of Loss for such period, or the items of Loss over the items of Profit for such period, as appropriate. Net Profits and Net Losses shall not include items of Profit and Loss allocated pursuant to Section 4.2 .

1.61. Non-Contributing Member . »

" Non-Contributing Member " shall have the meaning set forth in Section 3.6 .

1.62. Non-Offering Member . »

" Non-Offering Member " shall have the meaning set forth in Section 8.6 .

1.63. Nonrecourse Debt . »

" Nonrecourse Debt " shall have the meaning given to the term "nonrecourse liability" by Treasury Regulation Section 1.704-2(b)(3).

1.64. Nonrecourse Deductions . »

" Nonrecourse Deductions " shall have the meaning set forth in Treasury Regulation Section 1.704-2.

1.65. Notices . »

" Notices " shall have the meaning set forth in Section 13.7 .

1.66. Offeree . »

" Offeree " shall have the meaning set forth in Section 8.1 .

1.67. Offeree Value . »

" Offeree Value " shall have the meaning set forth in Section 8.1.2 .

1.68. Offering Member . »

" Offering Member " shall have the meaning set forth in Section 8.6 .

1.69. Offeror . »

" Offeror " shall have the meaning set forth in Section 8.1 .

1.70. Offeror Value . »

" Offeror Value " shall have the meaning set forth in Section 8.1.2 .

1.71. Percentage Interest . »

" Percentage Interest " means, with respect to a Member, that percentage set forth under the heading Percentage Interest opposite the name of that Member on Section 3.1 as it may be increased or decreased pursuant to this Agreement.

1.72. Permitted Investments . »

" Permitted Investments " means United States government obligations, collateralized bank time deposits, money market accounts and certificates of deposit which are insured by the United States government.

1.73. Person . »

" Person " means an individual or an entity.

1.74. Prime Rate . »

" Prime Rate " means the lesser of (i) the fluctuating rate per annum as in effect from time to time equal to the rate of interest announced publicly by JPMorgan Chase & Co. in New York, New York as its base rate, or (ii) the maximum rate permitted to be charged under applicable law.

1.75. Proceeding . »

" Proceeding " means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, any appeal in such an action, suit, or proceeding, and any inquiry or investigation that could lead to such an action, suit, or proceeding.

1.76. Profit . »

" Profit " means, with respect to the Company, for each taxable year, each item of the Company's taxable income or gain for such taxable year, as determined under Section 703(a) of the Code, and Section 1.703-1 of the Treasury Regulations (for this purpose, all items of income and gain required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or gain), but with the following adjustments:

(a) Any tax-exempt income, as described in Section 705(a)(1)(B) of the Code, realized by the Company during such taxable year shall be considered an item of taxable income;

(b) In the event the Book Basis of any Company asset is increased pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)( f ), the amount of such adjustment shall be taken into account as gain from the disposition of such asset for purposes of computing Profit;

(c) Gain resulting from any disposition of property with respect to which gain is recognized for federal income tax purposes shall be computed by reference to the Book Basis of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Book Basis; and

(d) Any items which are specially allocated pursuant to Section 4.2 shall not be taken into account in computing Profit.

1.77. Project Subsidiaries . »

" Project Subsidiaries " and " Project Subsidiary " shall have the meaning set forth in Section 2.6 .

1.78. Properties . »

" Properties " and " Property " shall have the meaning set forth in Section 2.6 .

1.79. Property Buy Offer . »

" Property Buy Offer " shall have the meaning set forth in Section 8.6 .

1.80. Property Buy–Sell Event . »

" Property Buy-Sell Event " shall have the meaning set forth in Section 8.6 .

1.81. Property Buy-Sell Offer . »

" Property Buy-Sell Offer " shall have the meaning set forth in Section 8.6 .

1.82. Property Management Agreement . »

" Property Management Agreement " means a Property Management Agreement, by and between the Property Manager and the Company, with respect to a particular Property in a form substantially similar to Exhibit B hereto.

1.83. Property Manager . »

" Property Manager " means MAALP.

1.84. Property Offer Election . »

" Property Offer Election " shall have the meaning set forth in Section 8.6.2 .

1.85. Property Purchase Price . »

" Property Purchase Price " shall have the meaning set forth in Section 8.6.1 .

1.86. Property Sell Offer . »

" Property Sell Offer " shall have the meaning set forth in Section 8.6 .

1.87. Prospective Property Acquisition »

. “ Prospective Property Acquisition ” shall have the meaning set forth in Section 13.1.1 .

1.88. Purchase Date . »

" Purchase Date " means, for purposes of Section 7.4 , the date a Purchase Event occurs except with respect to the event described in Section 7.1.7 for which the Purchase Date will mean the date the Buyer gives notice to Seller of Buyer's election to purchase Seller's Purchase Interest.

1.89. Purchase Event . »

" Purchase Event " shall have the meaning set forth in Section 7.1 .

1.90. Purchase Interest . »

" Purchase Interest " shall have the meaning set forth in Section 7.1 .

1.91. Purchase Option . »

" Purchase Option " shall have the meaning set forth in Section 7.1 .

1.92. Purchase Price . »

" Purchase Price " shall have the meaning set forth in Section 8.1.1 .

1.93. Receipts . »

" Receipts " means, for any period, the sum of the total consideration received by the Company during such period, including all receipts of the Company from (a) Capital Contributions, (b) net proceeds from the sale or other disposition of all or any portion of a Property, (c) rent, additional rent and percentage rent paid to the Company, (d) concessions, (e) condemnation or casualty proceeds relating to the condemnation of or casualty loss with regard to all or any portion of a Property (including any and all insurance awards with regard thereto), (f) rent or business interruption insurance, if any, (g) funds made available to the extent such funds are withdrawn from the Company's reserve accounts and deposited into the Company's operating accounts, (h) net proceeds from the financing, refinancing or securitization of a Property and (i) all other revenues and receipts realized by the Company, including, without limitation, distributions and other payments and amounts received directly or indirectly from any subsidiary or other entity owned in whole or part by the Company to the extent not previously recognized as Receipts through consolidation or otherwise.

1.94. Region . »

“Region” means the cities and surrounding areas described in Exhibit G, together with additional cities and related areas that may be agreed upon by the Executive Committee.

1.95. Rejecting Member »

. “ Rejecting Member ” shall have the meaning set forth in Section 13.1.2 .

1.96. Related Agreements . »

" Related Agreements " mean any Property Management Agreement and any other written agreement between any Member or any of its Affiliates and the Company or any Project Subsidiary relating to or arising out of this Agreement or any Company property.

1.97. Representative . »

" Representative " shall have the meaning set forth in Section 6.10.2.4 .

1.98. Seller . »

" Seller " shall have the meaning set forth in Section 7.1 .

1.99. Subject Property . »

" Subject Property " shall have the meaning set forth in Section 8.6.1 .

1.100. Tax Matters Member »

. “ Tax Matters Member ” shall have the meaning set forth in Section 9.7 .

1.101. Target Amount . »

" Target Amount " shall mean a cash sum that would result in an IRR to the Members of fifteen percent (15%) with respect to the aggregate Capital Contributions made by the Members (including any Capital Contributions deemed made by the Contributing Members pursuant to Section 3.7.1 , but excluding any Additional Capital Contributions returned to Members pursuant to Section 3.6.5 ), including the return of said Capital Contributions, to the Company during the period commencing upon the Formation Date and ending upon (and including) the date of determination of the Target Amount hereunder.

1.102. Thackeray Interest . »

" Thackeray Interest " shall have the meaning set forth in Section 10.2 .

1.103. Thackeray . »

" Thackeray " shall have the meaning set forth in the introductory paragraph hereof.

1.104. Transfer . »

" Transfer " shall have the meaning set forth in Section 10.1.1 .

1.105. Treasury Regulations »

. “ Treasury Regulations ” means the Income Tax Regulations promulgated under the Code, as such regulations are amended from time to time.

1.106. Other Terms . »

All references to " Articles " and " Sections " contained in this Agreement are, unless specifically indicated otherwise, references to articles, sections, subparagraphs, and clauses of this Agreement. Whenever in this Agreement the singular number is used, the same shall include the plural where appropriate (and vice versa), and words of any gender shall include each other gender where appropriate. As used in this Agreement, the following words and phrases shall have the meanings indicated: (i) " day " shall mean a calendar day; (ii) " including " and " include " shall mean including without limitations; (iii) " law " and " laws " shall mean statutes, regulations, rules, judicial, executive, and governmental orders, and other governmental actions and legal pronouncements having the effect of law; (iv) " dollar '' and " $ " shall mean a United States dollar; and (v) " approved by the Executive Committee " shall mean approved by the affirmative vote of a majority in number of the members of the Executive Committee; provided, however, that if a Member or an Affiliate of such Member is directly or indirectly financially interested in a transaction other than in connection with such Member's interest as a Member in the Company (e.g. as a provider of goods or services to the Company), except as a provider of services pursuant to a Property Management Agreement, the phrase shall mean approved by the affirmative vote of a majority in number of the members of the Executive Committee other than members appointed by such Member who is so interested.

ARTICLE 2

ORGANIZATION

2.1. Formation . »

The Members hereby form the Company as a limited liability company under the Act, upon the terms and subject to the conditions set forth in this Agreement. Timothy P. Argo, as an authorized person within the meaning of the Act, has executed, delivered and filed the Certificate of Formation (“ Certificate of Formation ”) in the Office of the Secretary of State of the State of Delaware. Upon such filing, his powers as an authorized person ceased and the Managing Member became designated as an authorized person within the meaning of the Act.

2.2. Name . »

The name of the Company is set forth on the cover page to this Agreement. The Executive Committee may change the name of the Company or adopt such trade or fictitious names for use by the Company as the Executive Committee may from time to time determine. All business of the Company shall be conducted under such name. In the event the Executive Committee changes the name of the Company or adopts any trade or fictitious name for use by the Company, the Managing Member shall promptly file or record with the proper offices in each jurisdiction and political subdivision in which the Company is conducting business such amendments or certificates, applications or other documents as are required by applicable law.

2.3. Principal Place of Business . »

The principal place of business and office of the Company shall be located at the offices of the Managing Member, 6584 Poplar Avenue, Memphis, Tennessee 38138, or other such places of business and offices as the Executive Committee and the Managing Member may from time to time designate (in each case, all the Members shall be provided with notice of any change in the principal or additional place of business and office of the Company).

2.4. Term . »

The term of the Company shall commence on the date of the filing of the Certificate of Formation pursuant to the Act, and shall continue until June 30, 2024, unless sooner terminated as provided in this Agreement.

2.5. Registered Agent and Registered Office . »

The name of the Company's registered agent for service of process shall be National Registered Agents, Inc. and the address of the Company's registered agent and the address of the Company's registered office in the State of Delaware shall be 160 Greentree Drive, Suite 101, Dover, Kent County, Delaware 19904. Such agent and such office may be changed from time to time by the affirmative vote of the Executive Committee.

2.6. Purpose . »

The purpose of the Company shall be to acquire, reposition, renovate, manage and sell multifamily residential real properties (collectively, the " Properties " and individually, a " Property ") located within the Region through wholly-owned subsidiary single purpose entities (collectively, the " Project Subsidiaries " and individually a " Project Subsidiary ") and through the Project Subsidiaries to own, reposition, renovate, redevelop, rehabilitate, improve, hold, manage, operate, finance, refinance, lease, sell and otherwise deal with and dispose of the Properties and/or the Company's interest in the Project Subsidiaries and to conduct all activities reasonably necessary or desirable to accomplish the foregoing purposes. The Company shall not engage in any other business or activity without the approval of all of the Members.

2.7. Investment Period . »

It is the intent of the Members that the Company will (i) acquire or cause to be acquired all Properties on or prior to September 10, 2010 (the “ Investment Period ”), (ii) dispose of each Property between sixty (60) and eighty four (84) months of its acquisition by the Company or a Project Subsidiary, as applicable, and (iii) liquidate the assets of the Company no later than one hundred (100) months from the date of the first acquisition of a Property by the Company or a Project Subsidiary, provided that with the approval of the Executive Committee, the Company may extend each time frame referenced in clauses (i), (ii) and (iii) above. All Properties shall satisfy the investment criteria set forth in Exhibit G (the “ Investment Criteria ”) except as may otherwise be agreed upon by the Executive Committee.

ARTICLE 3

CAPITAL

3.1. Initial Capital Contributions . »

Simultaneously with the full and complete execution of this Agreement, the Members shall make the following initial cash contributions to the capital of the Company (the " Initial Cash Contributions "):

	Amount	Percentage Interest	Final Sharing Ratio
MAALP	$35,000	33.33%	50.000%
Thackeray	$70,000	66.67%	50.000%
Total	$105,000	100.00%	100.000%

The Initial Cash Contributions will be used to pay, among other expenses approved by the Executive Committee, all out-of-pocket costs to form the Company including reasonable legal fees incurred by the Members in connection with negotiation of this Agreement.

3.2. Additional Capital Contributions . »

To the extent approved by the Executive Committee, if at any time or from time to time additional funds are required (" Cash Needs ") (i) to close the acquisition of any Property (including the payment of third party closing costs) approved by the Executive Committee or to fund any deposits required to be paid pursuant to any letter of intent or any purchase and sale agreement approved by the Executive Committee, (ii) to pay costs and expenses (whether operating or capital in nature) in connection with the operation of the Properties that are in accordance with the Budget and Operating Plans, or (iii) to fund the reasonable working capital needs of the Company for both operating and capital expenditures of the Company that are in accordance with the Budget and Operating Plans, the Executive Committee may (but shall not be obligated to) request that the Members make further capital contributions (the " Additional Capital Contributions ") in an amount sufficient to fund such Cash Needs. If so approved and requested by the Executive Committee, each Member (the “ Contributing Member ”) shall contribute its pro rata share (in proportion to the Percentage Interests of the Members at the time of such request) of the amount of the applicable Cash Needs. Such Additional Capital Contributions shall be due and payable within 15 business days after a written request therefor has been delivered to each Member. Notwithstanding any provision herein to the contrary, in no event shall either (1) a request for Additional Capital Contributions in connection with clause (i) above or otherwise to acquire a Property be made after September 10, 2010, without the approval of the Executive Committee or (2) the liability of the Members to make Capital Contributions to the Company exceed the following aggregate amounts (the “ Maximum Contribution Amount ”):

Member	Maximum Contribution Amount
MAALP	$ 25,000,000
Thackeray	$ 50,000,000
Total	$ 75,000,000

Further, the liability of Thackeray to make Capital Contributions to the Company shall not exceed the amount of the available investment funds of Thackeray Partners Realty Fund II, L.P. The liability of the Members to make Additional Capital Contributions shall be further limited by the provisions of Section 6.2.3 of this Agreement.

In the event Thackeray is unable to fund its Maximum Contribution Amount hereunder, an Affiliate of Thackeray or Thackeray Partners shall have the opportunity in its sole discretion, but not any obligation, to establish and organize another fund structured materially identical to this Company (“ Fund III ”), and such Affiliate of Thackeray or Thackeray Partners may make a Capital Contribution to Fund III in an amount equal to the balance of Thackeray's Maximum Contribution Amount that remains unfunded hereunder. Such Capital Contribution being made to such new Fund III is subject in any event to the ability of such Affiliate of Thackeray or Thackeray Partners to raise sufficient capital for Thackeray Partners Realty Fund III, L.P., in its sole discretion.

3.3. Company Loan . »

If at any time, additional funds are required to pay any Expenditure incurred pursuant to the Budget and Operating Plans (" Loan Needs "), and the Executive Committee elects to fund such Loan Needs by means of loans from the Members, the Executive Committee may, but shall not be required to, request all Members, within fifteen (15) business days of such written request to all Members, to lend to the Company (pro rata in accordance with the Percentage Interests of all Members, or if any Member refuses to make such loan within such time period, pro rata in accordance with the Percentage Interests of those Members making such loan or in such other manner as the advancing Members may agree) an amount of money up to but not exceeding the entire amount of such Loan Needs, which loan shall be deemed to be a full recourse loan to the Company (a " Company Loan ") (but the Members shall have no liability therefor), shall not be considered a Capital Contribution but shall constitute a debt of the Company to the advancing Member, shall bear interest at the lesser of the maximum rate permitted by applicable law or the rate of eighteen percent (18%) per annum, and shall be payable at such time as the Executive Committee and advancing Members shall agree if and to the extent Net Cash Flow exists therefor (when calculating Net Cash Flow for a Company Loan payment no deduction shall be made for the Company Loan payment in question) and, if the Company Loans have not been repaid when the Company liquidates, as provided in Section 11.3.1.1 . Payments made to an advancing Member will be credited first to interest and then to principal. No Member shall be obligated to make a Company Loan. If any Member or Members make a Company Loan, upon written request of such Member or Members, the Company will execute and deliver a promissory note payable to such Members as evidence of the Company Loan; provided that the failure of the Company to execute such a promissory note will not affect the validity of the Company Loan in question or the obligation of the Company to repay the Company Loan in accordance with the terms of this Agreement. Each Company Loan may be prepaid in whole or in part, without penalty or premium. No distributions of Net Cash Flow pursuant to Section 5.1(ii) and Section 5.1(iii) shall be made by the Company to any Member until all Company Loans have been paid in full.

3.4. Borrow Funds . »

In addition to or in lieu of requesting Additional Capital Contributions from the Members pursuant to Section 3.2 or Company Loans pursuant to Section 3.3, upon approval of the Executive Committee, the Company shall have the right to borrow funds sufficient to finance the Cash Needs from third parties (i.e., Persons who are not Affiliates of any Member) on such terms and conditions, including rate of interest and maturity, as the Executive Committee deems advisable; provided, however, that in lieu of borrowing from third parties, any one or more of the Members may upon approval of the Executive Committee, from time to time make advances to the Company to meet such requirements, provided that all Members are given an opportunity to make such advances in accordance with their Percentage Interests. Any such advance made by a Member to the Company shall not be considered a Capital Contribution, but shall constitute a debt of the Company to the advancing Member, payable at such time and on such terms as the Executive Committee and advancing Member may agree. Payments made to an advancing Member will be credited first to interest and then to principal. At the request of the Member making the advance, the Company will execute a promissory note evidencing this debt.

3.5. Wire Transfers . »

The cash Capital Contributions required by Sections 3.1 and 3.2 and any Company Loans made pursuant to Section 3.3 shall be made by wire transfer of funds in dollars to a Company account designated by the Managing Member and approved by the Executive Committee.

3.6. Failure to Make Capital Contribution . »

If any Member (the " Non-Contributing Member ") fails to make an Additional Capital Contribution (or any portion thereof) required by Section 3.2 (a " Failed Contribution "), within 15 business days after receipt of a written request therefor, the Representatives of the Member who contributed its Additional Capital Contribution and who is not an Affiliate of the Non-Contributing Member (the " Contributing Member's Representatives ") may exercise any or all of the following remedies, but no others, on behalf of the Company:

3.6.1. Set Off . »

Provide for the Company to set off the amount of the requested and unmade Additional Capital Contribution and/or the Indemnity referenced in Section 3.6.3 against any amounts which would otherwise be payable by the Company to the Non-Contributing Member or its Affiliates;

3.6.2. Percentage Interest Adjustment . »

Offer the Contributing Member the opportunity to make an Additional Capital Contribution in an amount equal to the Failed Contribution and/or adjust the Percentage Interests and Final Sharing Ratios of the Members as provided in Section 3.7 ; or

3.6.3. Seek Indemnity . »

In the event the Company allows the termination of or is forced to terminate an Acquisition Contract approved by the Executive Committee (as to acquisition terms, project underwriting and economic and legal diligence results) and such termination is due solely to a Non-Contributing Member's failure to make an Additional Capital Contribution (and there exists no other purchaser default, lender default or seller default thereunder and the other Member made its corresponding Additional Capital Contribution for same) and the Company incurs a loss of earnest money or other expense in connection with the termination of such Acquisition Contract, the Non-Contributing Member shall be liable to the Company and the Company may seek indemnification for such loss of earnest money or other expense and all related costs and expenses of the Company including, without limitation, reasonable expenses of the Company incurred in connection with due diligence and other reasonable costs related to determining the suitability of the property which is the subject of the Acquisition Contract, all reasonable costs incurred in connection with the negotiation of any letter of intent, term sheet and/or purchase agreement and related documents, financing fees (e.g., application fees, commitment fees, and costs in connection with any financing), and the costs of litigation, and reasonable attorneys’ fees and expenses, if any, incurred in connection with any such terminated Acquisition Contract. The Non-Contributing Member shall be liable for and shall indemnify the Company and the Contributing Member for any and all other reasonable actual, out-of-pocket loss, cost, liability or expense, including reasonable attorneys fees, incurred by the Company or the Contributing Member as a result of the Non-Contributing Member’s failure to make such an Additional Capital Contribution pursuant to the circumstances described in the first sentence of this Section 3.6.3. Notwithstanding the foregoing, such indemnity and reimbursement obligations shall not be in effect if the Member or any Affiliate of the Member who contributed its Additional Capital Contribution in connection with the foregoing consummates the transactions contemplated under such Acquisition Contract within 12 months after such termination for its own account, for the account of any Affiliate of such Member or as a partner or member in any other venture or entity.

3.6.4. Separate Acquisition . »

Rather than terminate such an approved Acquisition Contract due solely to a Non-Contributing Member's failure to make an Additional Capital Contribution under the circumstances described in Section 3.6.3, the Contributing Member may require the Company to assign the Acquisition Contract, including all the benefits and obligations thereunder and in connection therewith, to the Contributing Member or its designee for the purposes of closing the Acquisition Contract for its or its designee's own account. If such assignment is made, the Contributing Member and/or its designee shall reimburse the Company for any costs incurred by the Company or funds, such as earnest money, deposited by the Company pursuant to the terms of or in connection with such Acquisition Contract, less any damages incurred by the Contributing Member which were directly caused by the failure of the Non-Contributing Member to so contribute, such as contractual penalties or termination fees arising out of such failure.

3.6.5. Return Additional Capital Contribution . »

The Contributing Member may request a return of any Additional Capital Contribution it has made to the Company in connection with a Non-Contributing Member's failure to make the required Additional Capital Contribution.

3.6.6. Default Loan . »

Make a Default Loan equal to the amount of the additional capital requested of the Non-Contributing Member, which advance will be deemed to be a Capital Contribution by the Non-Contributing Member and will be considered a loan (a " Default Loan ") from the Member making the advance (the " Lending Member ") to the Non-Contributing Member, payable within 30 days after demand and bearing interest at the lesser of the maximum rate permitted by applicable law or the rate of 18% per annum. If the Lending Member makes a Default Loan, upon written request by the Lending Member, the Non-Contributing Member will execute and deliver a promissory note payable to the Lending Member as evidence of that Default Loan; provided that the failure by the Non-Contributing Member to execute such a promissory note will not affect the validity of the Default Loan in question or the obligation of the Non-Contributing Member to repay the Default Loan in accordance with the terms of this Agreement. If the Non-Contributing Member fails upon demand to repay with interest any Default Loan made by the Lending Member, the Lending Member will be granted a security interest in the Non-Contributing Member's interest in the Company to secure the Non-Contributing Member's obligation to repay upon demand any Default Loan made to the Non-Contributing Member by the Lending Member. If a Lending Member has made a Default Loan, all amounts distributable to the Non-Contributing Member by virtue of its Interest or payable to the Non-Contributing Member under this Agreement will be paid by the Company or other Person on behalf of the Non-Contributing Member to the Lending Member in respect of accrued interest on and unpaid principal of any outstanding Default Loans made by the Lending Member (such payments to be applied first to accrued but unpaid interest on and then to outstanding principal of such Default Loans). At such time as the Non-Contributing Member's obligations to the Lending Member under any Default Loan hereby secured are paid in full, distributions to the Non-Contributing Member will resume as set forth in this Agreement. Any amounts paid on behalf of a Non-Contributing Member will be deemed to have first been distributed or paid to the Non-Contributing Member and then paid to the Lending Member. Each Default Loan may be prepaid in whole or in part without penalty.

3.6.7. Prohibition . »

In the event the Company shall terminate an Acquisition Contract approved by the Executive Committee (as to acquisition terms, project underwriting and economic and legal diligence results) and such termination is due solely to the Non-Contributing Member's failure to make the required Additional Capital Contribution (and there exists no other purchaser default, lender default or seller default thereunder and the other Member made its corresponding Additional Capital Contribution for same), then the Non-Contributing Member and its Affiliates shall not be entitled and shall not acquire, directly or indirectly, all or any portion of the property that was the subject of such terminated Acquisition Contract for a period of twenty-four (24) months following the later of (i) termination of the Acquisition Contract or (ii) satisfying all indemnification Obligations under Section 3.6.3 above.

3.7. Percentage Interest and Final Sharing Ratio Adjustment »

3.7.1. Percentage Interest Adjustment . »

If the Contributing Member's Representatives elect to make an Additional Capital Contribution and adjust the Percentage Interests as provided in Section 3.6.2 , effective as of the date the amount requested under Section 3.2 was due, adjustment of each Member's Percentage Interest will be made pursuant to the following formula:

x + (y or y _o )

z + y

where

x =

aggregate Capital Contributions made by a Member including any Additional Capital Contribution made by a Contributing Member pursuant to Section 3.6.2 on account of a Non-Contributing Member's Failed Contribution;

y =

Additional Capital Contribution made by Contributing Member pursuant to Section 3.6.2 on account of a Non-Contributing Member's Failed Contribution (this is the deemed contribution provision of the penalty adjustment);

y _o =

-0- for a Non-Contributing Member; and

z =

Aggregate Capital Contributions made by all Members including any Additional Capital Contribution made by a Contributing Member pursuant to Section 3.6.2 on account of a Non-Contributing Member's Failed Contribution.

Upon an adjustment to Percentage Interests pursuant to this Section 3.7.1 , the Capital Accounts of the Members shall be adjusted in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv) and based upon Percentage Interests as adjusted. An example of adjustments made pursuant to this Section 3.7 is attached hereto as Exhibit C and incorporated herein for all purposes. The Executive Committee will endeavor to promptly give each Member written notice of its Percentage Interest, as adjusted, and its Capital Account balance each time an adjustment occurs; provided, that failure to give such notice shall not in any way affect or otherwise nullify any adjustment made pursuant to this Section 3.7 .

3.7.2. Final Sharing Ratio Adjustment . »

If the Contributing Member's Representatives elect to adjust the Percentage Interests as provided in Section 3.6.2 , effective as of the date the amount requested under Section 3.2 was due, adjustment of each Member's Final Sharing Ratio will be made pursuant to the following formula:

a – b + c

where

a = Member's Final Sharing Ratio prior to adjustment

b = Member's Percentage Interest prior to adjustment; and

c = Member's Percentage Interest after adjustment

An example of adjustments made pursuant to this Section 3.7 is attached hereto as Exhibit C and incorporated herein for all purposes. The Executive Committee will endeavor to promptly give each Member written notice of its Final Sharing Ratio, as adjusted, each time an adjustment occurs; provided, that failure to give such notice shall not in any way affect or otherwise nullify any adjustment made pursuant to this Section 3.7 .

3.8. Intentionally Omitted »

3.9. Intentionally Omitted »

3.10. Capital Accounts . »

A separate Capital Account will be maintained for each Member in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv). The Capital Account of each Member will be determined and adjusted as follows.

3.10.1. Capital Account Credits . »

Each Member's Capital Account will be credited with:

3.10.1.1. Cash . »

Any contributions of cash made by such Member to the capital of the Company plus the Book Basis of any property contributed by such Member to the capital of the Company (net of any liabilities to which such property is subject or which are assumed by the Company);

3.10.1.2. Income and Gain . »

The Member's distributive share of Net Profits and all items of income and gain allocated under Sections 4.1 and 4.2 ; and

3.10.1.3. Tax Adjustments . »

Any other increases required by Treasury Regulation Section 1.704-1(b)(2)(iv).

3.10.2. Capital Account Debits . »

Each Member's Capital Account will be debited with:

3.10.2.1. Cash . »

Any distributions of cash made from the Company to such Member plus the Fair Market Value of any property distributed in kind to such Member (net of any liabilities to which such property is subject or which are assumed by such Member);

3.10.2.2. Loss and Deduction . »

The Member's distributive share of Net Losses and all items of loss and deduction allocated under Sections 4.1 and 4.2 ; and

3.10.2.3. Tax Adjustments . »

Any other decreases required by Treasury Regulation Section 1.704-1(b)(2)(iv).

The provisions of this Section 3.10 relating to the maintenance of Capital Accounts are intended to comply with Section 704(b) of the Code and the Treasury Regulations promulgated thereunder and will be interpreted and applied in a manner consistent with those provisions. The Executive Committee shall have the authority to determine all questions relating to the maintenance of Members' Capital Accounts, and the Executive Committee may direct the Managing Member to modify the manner in which the Capital Accounts are maintained under this Section 3.10 in order to comply with the provisions of Treasury Regulation Section 1.704-1(b) and any other applicable provisions of the Code or Treasury Regulations in order to cause Member Capital Accounts to be maintained in compliance with the provisions of the Code and Treasury Regulations. The Executive Committee shall determine whether any elective adjustments to Capital Accounts permitted under Treasury Regulation Section 1.704-1(b)(2)(iv) shall be made; provided that in the event Additional Capital Contributions are made and followed by an adjustment to Percentage Interests pursuant to Section 3.7 , the Capital Accounts of the Members shall be adjusted in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv) so that the Capital Account balances are in the ratios of the Members' Percentage Interests as adjusted provided, that there shall be no decrease in the then existing, prior to the adjustment, Capital Account balance of a Member as a result of any such adjustment to Percentage Interests, and that no capital shift shall occur.

3.11. Interest On and Return of Capital . »

No Member shall be entitled to any interest on its Capital Account or on his Capital Contributions except to the extent expressly provided in this Agreement, and no Member shall have the right to demand or to receive the return of all or any part of his Capital Account in the Company. No Member shall have the right to demand or receive property other than cash in return for the contribution of such Member to the Company.

3.12. No Further Capital Contribution . »

Except as expressly provided in this Agreement or with the prior written consent of all the Members, no Member shall be required or entitled to contribute any other or further capital to the Company, nor shall any Member be required or entitled to loan any funds to the Company.

3.13. Waiver of Right of Partition and Dissolution . »

No Member has any interest in specific Company property. The interests of all Members in the Company are, for all purposes, personal property and each of the Members irrevocably waives any right or power to cause the appointment of a receiver for the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or laws, or to file a complaint or to institute any proceeding at law or in equity to cause the termination or dissolution of the Company except as expressly provided for in this Agreement.

ARTICLE 4

PROFITS AND LOSSES

4.1. Allocation of Profits and Losses »

. After giving effect to the special allocations set forth in Section 4.2 , for any taxable year of the Company or other allocation period, Net Profits or Net Losses for such year or other allocation period shall be allocated, insofar as possible, so that, following all allocations pursuant to Section 4.2 for such fiscal year or other allocation period and the allocations pursuant to this Section 4.1 , each Member’s Capital Account balance shall be equal to the result (be it positive, negative or zero) of subtracting (i) the sum of (x) the amount which such Member is unconditionally obligated to contribute to the Company in the future, (y) such Member’s share of the Member Minimum Gain, and (z) such Member’s share of the Company Minimum Gain, from (ii) such Member’s Liquidating Amount at the end of such fiscal year or other allocation period.

4.2. Special Allocations »

. The following special allocations shall, except as otherwise provided, be made in the following order:

4.2.1. Minimum Gain Chargeback »

. Notwithstanding any other provision of this Agreement, if there is a net decrease in Company Minimum Gain or in any Member Minimum Gain during any taxable year or other period, prior to any other allocation pursuant hereto, the Members shall be specially allocated items of Profit for such year (and, if necessary, subsequent years) in an amount and manner required by Treasury Regulation Section 1.704-2(f) or 1.704-2(i)(4). The items to be so allocated shall be determined in accordance with Treasury Regulation Section 1.704-2. This Section 4.2.1 is intended to comply with the minimum gain chargeback requirements of Treasury Regulation Section 1.704-2(f) or 1.704-2(i)(4), will be interpreted consistently with the Treasury Regulations and will be subject to all exceptions provided therein.

4.2.2. Qualified Income Offset »

. Any Member who unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulation Section 1.704-1(b)(2)(ii)( d )( 4 ), ( 5 ) or ( 6 ) which causes or increases an Adjusted Capital Account Deficit shall be allocated items of income or gain in an amount and manner sufficient to eliminate, to the extent required by such Treasury Regulation, the Adjusted Capital Account Deficit of the Member as quickly as possible. This Section 4.2.2 is intended to constitute a "qualified income offset" within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)( d ), will be interpreted consistently with the Treasury Regulations and will be subject to all exceptions provided therein.

4.2.3. Nonrecourse Deductions »

. Nonrecourse Deductions for any taxable year or other period will be specially allocated among the Members pro rata in proportion to their respective Percentage Interests in the Company.

4.2.4. Member Nonrecourse Deductions »

. Any Member Nonrecourse Deductions for any taxable year or other period will be allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with principles under Treasury Regulation Section 1.704-2(i).

4.2.5. Code Section 754 Adjustments »

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

4.2.6. Loss Limitation »

. The Net Losses allocated pursuant to Section 4.1 hereof shall not exceed the maximum amount of Net Losses that can be so allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any fiscal year or other allocation period. In the event that some, but not all, of the Members would have Adjusted Capital Account Deficits as a consequence of an allocation of Net Losses pursuant to Section 4.1 hereof, the limitation set forth in the preceding sentence shall be applied on a Member-by-Member basis so as to allocate the maximum permissible Net Losses to each Member under Regulations Section 1.704-1(b)(2)(ii)( d ). All Net Losses in excess of the limitation set forth in this Section 4.2.6 shall be allocated to the Members in proportion to their respective positive Capital Account balances, if any, and thereafter to the Members in accordance with their interests in the Company.

4.3. Compliance With Section 704(c) »

. In accordance with Section 704(c) of the Code and the applicable Treasury Regulations thereunder, income, gain, loss and deduction with respect to any Company property for which its adjusted tax basis differs from its Book Basis will, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted tax basis of such property to the Company for federal income tax purposes and the Book Basis of such property. Any elections or other decisions relating to allocations under this Section 4.3 will be made in any manner which the Executive Committee shall determine is consistent with Section 704(c) of the Code and the Treasury Regulations promulgated thereunder and reasonably reflects the purpose and intention of this Agreement. Allocations under this Section 4.3 are solely for purposes of federal, state and local taxes and will not affect, or in any way be taken into account in computing, any Member's Capital Account or share of Profits, Losses or other items or distributions under any provision of this Agreement.

4.4. Intent of Allocations »

. The parties intend that the foregoing allocation provisions of this ARTICLE 4 shall produce final Capital Account balances of the Members that will permit liquidating distributions under Section 11.3 to be made in a manner identical to the order of priorities set forth in Section 5.1 . To the extent that the allocation provisions of this ARTICLE 4 would fail to produce such final Capital Account balances, (a) such provisions shall be amended by the Executive Committee if and to the extent necessary to produce such result, and (b) Net Profits and Net Losses of the Company for prior open years (or items of gross income, gain, loss and deduction of the Company for such years) shall be reallocated by the Executive Committee among the Members to the extent it is not possible to achieve such result with allocations of items of income (including gross income and gain), deduction and loss for the current year and future years. This Section shall control notwithstanding any other provision of this Agreement or the reallocation or adjustment of taxable income, taxable loss or items thereof by the Internal Revenue Service or any other taxing authority.

4.5. Member Acknowledgment »

. The Company's income, gain, loss, deduction and other items determined for income tax purposes shall be allocated to the Members in the same proportions as the corresponding "book" items are allocated under the provisions of this ARTICLE 4 . The Members agree to be bound by the provisions of this ARTICLE 4 in reporting their shares of Company income, gain, loss, deduction and other items for income tax purposes.

ARTICLE 5

DISTRIBUTIONS

5.1. Distributions »

. Subject to ARTICLE 11 and Section 3.3 , unless otherwise approved by the Executive Committee, the Managing Member shall distribute such amount of Net Cash Flow as determined pursuant to this Section 5.1 at the times set forth in this Agreement as follows:

(i) First, to the Members who advanced Company Loans, pro rata, in proportion to the aggregate amounts outstanding as of such distribution, until all such Company Loans are paid in full;

(ii) Second, to the Members pro rata in proportion to their respective Percentage Interests on the date of distribution until such time as the Members shall have received cumulative distributions under this Section 5.1(ii) equal to the Target Amount; and

(iii) Thereafter, to the Members pro rata in proportion to their respective Final Sharing Ratios.

Any distribution under this Section 5.1 will be subject to the right of setoff provided in Section 3.6.1 , and a return of Additional Capital Contribution to a Contributing Member pursuant to Section 3.6.5 shall be made solely to such Contributing Member rather than pursuant to Section 5.1(i) or (ii) .

After consultation with the Executive Committee, the Managing Member shall set the appropriate distribution to be made each month to each Member, taking into account expected cash requirements. The Executive Committee may vote to change this distribution as required.

5.2. Timing »

. Unless otherwise approved by the Executive Committee, Net Cash Flow shall be distributed monthly during the term of the Company and except upon liquidation, all distributions shall be in cash or marketable securities.

5.3. Distribution Limitation Under Act; Reserves »

. Notwithstanding anything in this Agreement to the contrary, the Company shall not be required to make any distribution that would not be permissible under the Act or that the Executive Committee, in its commercially reasonable judgment, determines is necessary to meet current or future Company costs and obligations. Any amounts so reserved shall be invested in Permitted Investments pending the lawful distribution of such amounts or the use of such amounts to pay Company costs and other obligations of the Company. Such reserves shall be released in such amounts and at such times as the Executive Committee determines.

ARTICLE 6

MANAGEMENT

6.1. Executive Committee »

. Except as otherwise expressly provided in this Agreement, the business and affairs of the Company shall be vested in and controlled by a committee of persons appointed in writing pursuant to Section 6.2 (the " Executive Committee "). Each person appointed by a Member to the Executive Committee shall act at the exclusive direction of, be the agent of and shall be free to represent the views and positions of such appointing Member. No member of the Executive Committee shall have any fiduciary duties to any other member of the Executive Committee or to any other Member of the Company or any third party. The Executive Committee shall have responsibility for establishing the policies and operating procedures with respect to the business and affairs of the Company and for making all decisions as to all matters which the Company has authority to perform (other than decisions in connection with the day-to-day operations and management of each Property which shall be reserved to the Managing Member to the extent set forth in Section 6.6.2 ), as fully as if all the Members were themselves making such decisions in lieu thereof. All decisions made with respect to the management and control of the Company and approved by the Executive Committee (except for such decisions which by the express terms of this Agreement require the approval of all Members) shall be binding on the Company and all Members. The Executive Committee, in its sole discretion, may delegate certain functions and duties to the Managing Member. The Managing Member shall be responsible for performing, or for causing to be performed, all functions and duties delegated or otherwise as determined by the Executive Committee including, without limitation, the duties described in Section 6.6 .

6.2. Members of the Executive Committee »

6.2.1. Membership »

. The Executive Committee shall initially consist of four (4) members, two (2) of which shall be appointed by Thackeray and two (2) of which shall be appointed by the Managing Member. The initial members of the Executive Committee appointed by Thackeray will be Anthony W. Dona and Robert H. Bennett. The initial members of the Executive Committee appointed by the Managing Member will be H. Eric Bolton, Jr. and Timothy P. Argo_. Each Member may, by written notice to the other Member, remove any person appointed to the Executive Committee by such Member and appoint a substitute therefor; provided, however, that any new person appointed to the Executive Committee by any Member must be either a partner, member, officer, director or employee of such Member or of an Affiliate of such Member, or be approved by the members of the Executive Committee appointed by the other Member, such approval not to be unreasonably withheld, conditioned or delayed. Any Member may, by written instrument and by delivering written notice to the members of the Executive Committee, delegate any or all of the duties of one or more of its representatives on the Executive Committee to (x) another of its representatives on the Executive Committee or to an alternate member named in such notice or (y) any employee of such Member or any of its Affiliates (and such delegate shall also be an agent of and operate at the sole discretion of the appointing Member), and any decisions or actions taken by such delegate shall be fully binding upon the Company and the Members as if taken by the member of the Executive Committee for whom such delegate was acting.

6.2.2. Regular Meetings »

. Regular meetings of the Executive Committee shall be held at such times and places as shall be designated from time to time by resolution of a majority of members of the Executive Committee, provided the Executive Committee shall meet no less frequently than quarterly and provided such regular meetings of the Executive Committee shall be as often as necessary or desirable to carry out its management functions. Regular meetings of the Executive Committee may be convened telephonically.

6.2.3. Special Meetings »

. Special meetings of the Executive Committee may be called by or at the request of any Member. The person or persons authorized to call the special meeting of the Executive Committee may select any reasonable place as the place for holding the special meeting of the Executive Committee or such meeting may be convened telephonically with any member of the Executive Committee electing to participate electronically. In addition, special meetings of the Executive Committee shall be held on October 1, 2009 and March 1, 2010, and/or such other dates as agreed by the Executive Committee, at which times the Executive Committee shall decide whether to make acquisitions going forward, with a unanimous vote of the Executive Committee being required to move forward on any additional or future acquisitions. Upon any such decision to not make any acquisitions going forward or upon any failure of the Executive Committee to unanimously approve a decision to make acquisitions going forward, (a) the exclusivity provisions of Section 13.1 and 13.2 of this Agreement shall no longer be of any force or effect and (b) the Members shall not be required to make any Additional Capital Contributions under this Agreement relating to the acquisition or pursuit of any acquisitions going forward. Notwithstanding the provisions of Sections 13.1 and 13.2 herein or any other provisions of this Agreement, in the event the Executive Committee decides not to approve additional acquisitions, the Member whose appointed members of the Executive Committee voted to approve additional acquisitions shall have the right to close on any property acquisitions in its separate capacity.

6.2.4. Notice of Meetings »

. Notice of any meeting of the Executive Committee shall be given no fewer than five business days and no more than 20 business days prior to the date of the meeting. Notices shall be delivered in the manner set forth in Section 13.7 hereof. The attendance of a member of the Executive Committee at a meeting of the Executive Committee shall constitute a waiver of notice of such meeting, except where a member of the Executive Committee attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not properly called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Executive Committee need be specified in the notice or waiver of notice of such meeting. Notice of any meeting may be waived by written instrument signed by one representative of each member of the Executive Committee.

6.2.5. Quorum »

. All of the members of the Executive Committee shall constitute a quorum for transaction of business at any meeting of the Executive Committee; provided that if less than all members of the Executive Committee are present at said meeting, a majority of the members of the Executive Committee present may adjourn the meeting at any time without further notice. For purposes of this Section 6.2.5 , a member of the Executive Committee shall be deemed present to the extent a representative of such member who holds the voting proxy of such member is present. Voting proxies must be written, but such written proxy need only name the proxy and need not contain formal authorization for specific actions.

6.2.6. Telephone Meetings »

. The members of the Executive Committee may participate in and act at all meetings of the Executive Committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other. Participation in such meetings shall constitute attendance in person at the meeting of the person or persons so participating.

6.2.7. Minutes »

. A written record of all meetings of the Executive Committee and all decisions made by it shall be made by the Managing Member, as Secretary of the Executive Committee, and kept in the records of the Company and shall be delivered to each member of the Executive Committee within ten (10) business days after each meeting to be initialed or signed by each member of the Executive Committee; provided, however, that a member's failure to initial or sign such minutes shall not affect or otherwise invalidate a previous properly approved decision of the Executive Committee.

6.2.8. No Compensation »

. No member thereof shall be entitled to receive any salary or any remuneration or expense reimbursement from the Company for his services as a member o

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