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D I f: PY 12: 2 a ASS' i i iii':AG!" TENT tllarvin J. Levine ETT, Chief Legal Officer (31.2) 960-3058 Mai-i!iit. Lel,,ineCa-generalgraN,th. com December B. 2016 VIA FEDERAL EXPRESS Mr. Daniel Rotenberg Director, Department of Real Estate City of Miami 444 SW 2"d Avenue, IOth Floor Miarni, FL 33130-1910 ITe: Amended and Restated Lease A--reernent dated as of October 15, 1485 (as heretofore amended, the "Retail Lease") by and between City of Miami, as Landlord ("City''), and Bayside Marketplace, LLC, successor -by -merger to Bayside Center Limited Partnership, as Tenant ("Bayside"). and Lease Agreement dated JarlUary 14. 1985 (as heretofore amended. the "Parking Garage Lease" and together with the Retail Lease, collectively. the "Leases" ) by and bet«een City and Bayside for certain premises located at the property commonly known as Bayside Marketplace in Miarni. Florida and more fully described in the Leases (all capitalized terms not otherwise defined herein shall have the meanines set forth in the Leases). Dear Dan: In furtherance of your request for documentation, l have enclosed a set of slides detailing, in chronological order, the ownership structure of Bayside dating back to December, 2014 and extending two to three years from now when the pending internal restructuring is anticipated to be completed. Each slide contains references to relevant documents which are also enclosed for your reference. Please let me know when would be a convenient time in the next few days for Shobi and me to walk you through the enclosures by telephone. We look forward to speaking with you. Very truly yours, �u r Marvi J. Levine Enclosures Genera, I Growth Properties, Inc. I I IO Noerh 6tiackcr [give Chicago. Illinois 60606 1 3 12-96b- OOO 1 uww.®gp.coni BAYSIDE MARKETPLACE (JV) Bayside Marketplace (Miami, FL) GROUND LEASE Documents 1) Second A&R Bayside Marketplace, !LC Agreement 2) Mortgage On December 23, 2014, property level financing of $250 million was obtained with leasehold mortgage on Bayside Marketplace. Pursuant to Section 7(b) of the 4th Amendment to each Ground Lease, the City of Miami was paid a one-time Participation Interest Aqual to 39/. of the first $125 million, or $3.75 million. SECOND AMENDED AND RESTATED OPERATING AGREEMENT OF BAYSIDE MARKETPLACE, LLC SECOND AMENDED AND RESTATED OPERATING AGREEMENT of Bayside Marketplace, LLC, a Delaware limited liability company (the "Company") dated as of December 23, 2014 among GGP Nimbus, LP, a Delaware limited partnership, GGP Limited Partnership, a Delaware limited partnership, any other Persons who may be admitted to the Company as Members, and the individuals listed on Schedule C, as Independent Managers (each capitalized term as defined herein). RECITALS WHEREAS, the Company exists pursuant to the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et seg , as amended from time to time (the "Act"); WHEREAS. the affairs of the Company are governed by that certain Amended and Restated Operating Agreement of the Company, as amended dated as of December 11, 2008 (the "Existing Agreement") and the Act; and WHEREAS, the undersigned parties hereto, desire to amend and restate the Existing Agreement to add certain provisions that are required in connection with a contemplated financing of the Property and to set forth herein certain understandings regarding the Company. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereto do hereby amend and restate the Existing Agreement to read in its entirety as follows: ARTICLE I Definitions Except as otherwise expressly provided, the following are definitions of certain terms capitalized and used throughout this Agreement: "Act" shall have the meaning set forth in the recitals. "Affiliate" shall mean, as to any Member (or as to any other Person the affiliates of whom are relevant for purposes of any of the provisions of this Agreement), any Person controlled by, under common control with or controlling, directly or indirectly through one or more intermediaries, such Member (or such other Person). "Agent„ shall have the meaning set forth in Article Xlll. M ORG T.Inw(ewal 7V-1 'u, J,Ralstde%tarisq Lxt I_'-100 41Hats,de ma hold se I.1C NJ kv {la_� � tel—I dun "Agreement" shall mean this Second Amended and Restated Operating Agreement as originally executed and as amended in writing from time to time. This Agreement shall constitute the limited liability company agreement of the Company, within the meaning of the Act. "Bankruptcy" shall mean, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, the proceeding has not been dismissed, or if within 90 days after the appointment without such Person's consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay. the appointment is not vacated. The foregoing definition of "Bankruptcy" is intended to replace and shall supersede and replace the definition of "Bankruptcy" set forth in Sections 18-101(1) and 18-304 of the Act. "_Capital Contribution" shall mean, as to any Member, the amount of cash or property contributed to the capital of the Company by such Member. "Cause" shall mean, with respect to an Independent Manager, (i) acts or omissions by such Independent Manager that constitute systematic and persistent or willful disregard of such Independent Manager's duties, (ii) such Independent Manager has been indicted or convicted for any crime or crimes of moral turpitude or dishonesty or for any violation of any legal requirements, (iii) such Independent Manager no longer satisfies the requirements set forth in the definition of "Independent Manager", (iv) the fees charged for the services of such Independent Manager are materially in excess of the fees charged by the other providers of Independent Managers listed in the definition of "Independent Manager' or (v) any other reason for which the prior written consent of Agent shall have been obtained. "Certificate" shall mean the certificate of formation of the Company, as the same is amended from time to time. "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time (or the corresponding provisions of succeeding law). "Committee" shall mean the Company's management committee described in Section 5.1. "Company" shall have the meaning set forth in the introductory paragraph of this Ag reement. "Entity" shall mean any partnership, corporation, trust, limited liability company, business association, court, governmental agency or other entity. "Fiscal Year" shall mean the Company's fiscal year, which shall be the calendar year, unless the Member designates an alternative period as the Company's fiscal year pursuant to Section 9.1. "Independent Manager" shall mean an independent manager, independent director or independent trustee, as the case may be, each of which shall be a natural Verson who (A) is approved by Agent, such approval not to be unreasonably withheld, conditioned or delayed so long as no Event of Default (as defined in the Loan Agreement) is continuing (in which case such approval shall be granted in Agent's sole discretion). or (B) (1) is provided by a Corporate Services Provider (as defined in the Loan Agreement), and (II) is not at any time while serving as a manager, director or trustee of the Company, and has not been at any time during the preceding three (3) years: (a) a manager, director, trustee (with the exception of serving as an independent manager, independent director or independent trustee, as the case may be, of the Company or any Affiliate of the Company), stockholder, officer, employee, partner, member, attorney or counsel of the Company or an Affiliate of the Company; (b) a creditor, customer, supplier or other Person who derives any of its purchases or revenues from its activities with the Company or an Affiliate of the Company (except for (i) fees received for acting as an independent manager, independent director or independent trustee of the Company or any Affiliate of the Company. and (ii) any fees paid by the Company or any Affiliate of the Company to the Corporate Services Provider for independent manager, director or trustee services or for other miscellaneous corporate services): (c) a Person controlling, controlled by or under common control with the Company or any Affiliate of the Company or any such stockholder, partner, member, creditor, customer, supplier or other Person (provided that acting as an independent manager, independent director or independent trustee of the Company or any Affiliate of the Company shall not constitute Control of the Company or any such Affiliate of the Company): or (d) a member of the immediate family by blood, marriage or otherwise, of any such stockholder, director, manager, officer, employee. partner, member, creditor, customer. supplier or other Person. "Lender" shall have the meaning set forth in Article XIII. "Loan" shall have the meaning set forth in Article XIII. "Loan Agreement" shall have the meaning set forth in Article XIII. "Loan Documents" shall have the meaning set forth in the Loan Agreement. "Managers" shall mean the Persons selected to serve on the Committee pursuant to Article V, including without limitation the Independent Managers of the 3 Company. Each Manager shall be deemed to be a manager within the meaning of the Act. "Member" shall mean each of the Persons listed on Schedule A and each Person who may hereafter be admitted as an additional or substituted member of the Company in accordance with this Agreement, each in its capacity as a member of the Company (but shall not include any Special Member). Any references herein to Member shall, if the context so requires, mean the singular or the plural in accordance with the number of Members listed on Schedule A. "Member Cessation Event" shall have the meaning set forth in Section 4.11. "Obligations" shall have the meaning set forth in the Loan Agreement. "Officers" shall have the meaning set forth in Section 5.2. "Person" shall mean any individual or Entity. "Property" shall mean the retail shopping center and related property located in Miami, Florida and commonly known as Bayside Marketplace. "Special Member" shall mean, upon such Person's admission to the Company as a member of the Company pursuant to Section 4.11, a Person acting as Independent Manager. 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. "State" shall mean the State of Delaware. "Transfer" shall mean any assignment, sale, transfer, conveyance, pledge, grant of an option or other disposition or act of alienation. whether voluntary or involuntary or by operation of law. "UnWs ° shall mean a unit of a Member's limited liability company interest as a Member of the Company entitling the holder to an equal share, with every other holder of a Unit, in the allocations and distributions of the Company pursuant to Article VIII, and the rights of management, consent, approval or participation, if any, granted to holders of Units as provided in this Agreement. Such interests shall be deemed "securities" under Article 8 of the Uniform Commercial Code as in effect from time to time within the State (the "UCC") and shall be governed by Article 8 of the UCC. Except as provided in Article XIII, all other capitalized terms not specifically defined in this Agreement shall have the meanings ascribed to them in the Act. 2 ARTICLE II Organization 2.1 Continuation of the Company. The parties do hereby agree to continue the Company as a limited liability company under and pursuant to the provisions of the Act and all other laws of the State for the purposes and upon the terms and conditions hereinafter set forth. The rights and liabilities of the Members, except as expressly stated herein or in the Certificate, shall be as provided in the Act. Kathleen K. Schreiber, on behalf of the Company. was designated as an "authorized person" within the meaning of the Act, and executed, delivered and filed the Certificate with the Delaware Secretary of State. Upon the filing of the Certificate on September 25. 2008 with the Delaware Secretary of State, her powers as an "authorized person" ceased, and The Rouse Company Operating Partnership LP became the Member. On October 31, 2010, pursuant to that certain Assignment and Assumption Agreement, The Rouse Company Operating Partnership LP merged with The Rouse Company LP and assumed its interest in the Company. On May 1, 2014, GGP-TRC, LLC (f/k/a The Rouse Company LP) distributed its interest in the Company to GGP Operating Partnership, LP, On May 1, 2014, GGP Operating Partnership, LP contributed half of its interest in the Company to GGP Nimbus, LP and half of it interest in the Company to GGP Limited Partnership (f1k/a GGP Cumulus LP), which Members thereupon each became a designated "authorized person" and each shall continue as a designated "authorized person" within the meaning of the Act. The Member, a Manager or an Officer shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any jurisdiction in which the Company may wish to conduct business. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate as provided in the Act. 2.2 Name. Bayside Marketplace, LLC is the name of the Company. 2.3 Principal Office. The principal office of the Company shall be located at 110 North Wacker Drive, Chicago, Illinois 60606. The location of the Company's office may be changed from time to time by the Committee. 2.4 Registered Agent and Registered Office. The Company shall at all times maintain a registered agent and a registered office in the State as provided in the Act. The name and address of the registered office and registered agent of the Company are listed on the Certificate. 2.5 Tax Status of Company. The parties intend that the Company shall be disregarded for federal and state income tax purposes for so long as the Company has one Member and that the Company shall be treated as a partnership for Federal and state income tax purposes at any time that the Company has more than one Member 5 ARTICLE III Purposes and Powers 3.1 Purposes, Subject to the provisions of Article XIII hereof, the purposes of the Company are to, directly or indirectly, acquire, develop, redevelop, hold, operate, manage, finance, sell, dispose of or otherwise deal with real property and engage in any other lawful transaction or conduct any other lawful business for which limited liability companies may be formed under the Act. 3.2 General Powers. Subject to the provisions of Article XIII hereof, the Company shall have all powers granted to limited liability companies under the Act. ARTICLE IV Members 4.1 Limited Liability Company Interests. The names and addresses of the Members and the number of Unit(s) owned by each are set forth on attached Schedule A. which Schedule may be revised by the Secretary or Assistant Secretary of the Company from time to time as necessary to reflect the admission of additional or substitute Members and the withdrawal of Members in accordance with Article X. 4.2 Meetings. Meetings of the Members may be called at any time by any Member, the Committee or the President. The Member. the Committee or the President calling a meeting shall cause notice of such meeting to be given to the Members. 4.3 Place of Meeting. Unless otherwise agreed by all Members, the place of meeting shall be the principal office of the Company in the State of Illinois. 4.4 Notice of Meetings Notice stating the place, day and hour of any meeting of Members and the purpose(s) of the meeting shall be given to each. Member not less than five (5) days before the meeting, A waiver of notice in writing, signed at any time by a Member entitled to such notice, shall be deemed equivalent to the giving of such notice. 4.5 Closing of Transfer Books or Fixing of Record Date. For the purpose of determining Members entitled to notice of or to vote at any meeting of the Members or payment of distributions or for any other purpose, the Members or the Committee may provide that the records relating to Transfers of Units shall be closed for a stated period not to exceed sixty (60) days. In lieu of closing such Transfer records, the Members may fix, in advance, a date as the record date for any such determination of Members, such date in any case to be not more than sixty (60) days prior to the date of such meeting or the payment of such distributions. If such Transfer records are not closed and no record date is fixed for the determination of Members entitled to notice of or to vote at a meeting. of Members or to receive payment of a distribution, the date on which R notice of the meeting is mailed or on which the Members adopt a resolution to pay such distribution, as the case may be, shall be the record date for such determination of Members. 4.6 Quorum. The holders of a majority of the Units, present in person or represented by proxy. shall constitute a quorum of the Members for all purposes except in those instances where a larger number shall be required by law, If a quorum of Members is not present at any meeting, such meeting may be adjourned by those present to any day, not exceeding thirty (30) days thereafter, and no further call or notice of such adjourned meeting shall be necessary. 4.7 Voting. Each outstanding Unit shall be entitled to one vote upon each matter submitted to a vote of the Members. A Member may vote in person or by proxy appointed in writing by such Member or its duly authorized attorney-in-fact. Such proxy shall be filed with the Company prior to the vote in question. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy The affirmative vote of the holders of a majority of the Units present in person or represented by proxy at any meeting at which there is a quorum shall be the act of the Members, unless the vote of a greater number or class thereof is required by law or this Agreement, including without limitation the provisions of Article X111 hereof. 4.8 Action by Written Consent. Any action required or permitted to be taken at a meeting of the Members may be taken without a meeting and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding Units having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all Units entitled to vote thereon were present and voting. 4.9 Telephone Meetings. Any meeting of the Members may be held, or any Member may participate in any meeting of the Members, by conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear each other. 4.10 Other Activities. Notwithstanding any provision at law or in equity. a Member may have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any Member shall have any right, by virtue of this Agreement, to share or participate in other investments or activities of any Member or to the income or proceeds derived therefrom. 4.11 Special Member. Upon the occurrence of any event that causes the last remaining Member to cease to be a member of the Company (other than upon an assignment by such last Member of all of its Units and the admission of the transferee pursuant to Sections 10.1 and 10.3 or the withdrawal of such last member and the admission of an additional Member pursuant to Sections 10.2 and 10.3) (a "Member Cessation Event"), each of the independent Managers whose names are first set forth on Schedule C hereto shall, without any action of any Person and simultaneously with such Member Cessation Event, automatically be admitted as members of the Company 7 (in each case. individually: a "Special Member" and collectively, the "Special Members") and shall preserve and continue the existence of the Company without dissolution. If, however, at the time of a Member Cessation Event, such Independent Manager has died or is otherwise no longer able to step into the role of Special Member. in such event, the other Independent Manager 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 a 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 (i) a successor Special Member has been admitted to the Company as Special Member by executing a counterpart to this Agreement, and (ii) such successor has also accepted its appointment as Independent Manager pursuant to Article XIII, provided. however, that the Special Member shall automatically cease to be a member of the Company upon the admission to the Company of a substitute Member (which the last Member or its personal representative may cause to occur). 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. A Special Member shall not be required to make any capital contributions to the Company and shall not receive Units or any other 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, the 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 person acting as an Independent Manager pursuant to Article XIII shall execute a counterpart to this Agreement. Prior to its admission to the Company as Special Member, each person acting as an Independent Manager pursuant to Article Xlll shall not be a member of the Company. By signing this Agreement, each person acting as an Independent Manager pursuant to Article XIII agrees that, should such person become a Special Member, such Special Member will be subject to and bound by the provisions of this Agreement applicable to a Special Member. ARTICLE V Management 5.1 The Committee. (a) Managers. Except as specifically provided herein, the management and control of the Company shall be vested exclusively in certain Managers, who shall exercise their authority as a committee (the "Committee"), The Committee may exercise all such powers of the Company and do all such lawful acts and things as are by the Act or by this Agreement directed or required to be exercised or done by the Members. Without limiting the foregoing, the Committee shall be responsible for the establishment of policy and operating procedures respecting the business affairs of the Company and the appointment of Officers and delegation of duties thereto as herein contemplated. Managers shall be elected from time to time by the Members in accordance with Article IV and all Managers that are not Independent Managers shall automatically serve on the Committee. The Managers shall be elected at a meeting or by written consent of the Members, and each Manager elected shall hold office until his or her successor is elected and qualified, or until his or her resignation or removal. Managers need not be Members but must be at least 18 years of age. In furtherance of the foregoing.. the Member on the date of the Agreement hereby elects each of Michael B. Berman, Shobi Khan, Marvin J. Levine and the individuals listed on Schedule C as a Manager to serve until his or her successor is duly elected and qualified or until his or her earlier resignation or removal. For the avoidance of doubt, these three Managers currently make up the Committee. (b) Meetings. The Committee may hold meetings, both regular and special, either within or without the State, provided, however, that Independent Managers' participation shall be required if, pursuant to the provisions of Article X111, such action would be invalid in the absence of the consent of such Independent Manager. The first meeting of each newly elected Committee shall be held at such time and place as may be fixed by the vote of the Members at the meeting electing the managers that will serve on the Committee and no notice of such meeting shall be necessary to the newly elected managers that will serve on the Committee in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the Members to fix the time or place of such first meeting of the newly elected Committee, or in the event such meeting is not held at the time and place so fixed by the Members. the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Committee, or as shall be specified in a written waiver signed by all of the members of the Committee. Regular meetings of the Committee may be held without notice at such time and at such places as shall from time to time be determined by the Committee. Special meetings of the Committee may be called by the President upon at least two (2) days' notice to each member of the Committee; special meetings shall be called by the President or Secretary in like manner and on like notice on the written request of two members of the Committee unless the Committee consists of only one Manager, in which case special meetings shall be called by the President or Secretary in like manner and on like notice on the written request of the sole Manager. The Committee shall cause written minutes to be prepared of all action taken by the Committee at a meeting and shall deliver a copy thereof to each mernber of the Committee within thirty (30) days thereafter. (c) Quorum and Voting. At all meetings of the Committee, a majority of the members of the Committee shall constitute a quorum for the transaction of business and the act of a majority of the members of the Committee present at any meeting at which there is a quorum shall be the act of the Committee, except as may be otherwise specifically provided in this Agreement or by the Act. If a quorum shall not be present at any meeting of the Committee, the members of the Committee present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. (d) Telephonic Meetings. Any meeting of the Committee may be held, or any member of the Committee may participate in any meeting of the Committee, by conference telephone or similar communications equipment by means of which all Persons participating in the meeting can bear each other. (e) Decision of Managers by Written Consent. Any action required or permitted to be taken at any meeting of the Committee may be taken without a meeting, if all members of the Committee consent thereto in writing.. provided, however, that written consent of any Independent Manager shall be required for the validity of such action by the Committee if, pursuant to the provisions of Article XIII, such action would be invalid in the absence of the consent of such Independent Manager. Such writing or writings shall be filed with the minutes of the proceedings of the Committee. (f) Notice. Notice of Committee meetings shall be in writing and may be given personally (including delivery by messenger or courier service), by mail. by telegram or by facsimile, and shall be deemed given when received, except that notice sent by mail shall be deemed to be given two (2) days after deposited in the United States mail. Whenever any notice is required to be given under the provisions of this Agreement, a waiver thereof in writing, signed by the Person or Persons entitled to said notice. whether before or after the time stated therein, shall be deemed equivalent thereto. (g) Delegation of Powers. The Committee may delegate its powers, but not its responsibilities, to the Officers, or to any other Person. (h) Compensation. No Manager (other than the Independent Managers) shall receive compensation for its services to the Company in such capacity, a tee for attendance at meetings or reimbursement of expenses of attendance at meetings. (i) Resignation. Any Manager (including without limitation any Person serving as Independent Manager) may resign at any time by giving written notice to the Committee. 0) Removal. Any Manager (including without limitation any Person serving as Independent Manager) or the entire Committee may be removed, with or without cause, by the affirmative vote of the Members in accordance with Article IV (provided, however, that ars Independent Manager may be removed only for Cause pursuant to Article XIII and the provisions of clause (i) of this Section 5.1 and this clause 0) shall not negate any obligation under Article KII hereof to replace any removed or resigning Independent Manager prior to the effectiveness of such removal or resignation). 10 (k) Vacancies and New Positions. Vacancies and newly created Manager positions resulting from any increase in the authorized number of Managers may be filled by a majority of the Managers then in office or by a sole remaining Manager, and the Managers so chosen shall hold office until the next annual election and until their successors are duly elected and shall have qualified, or until the earlier death, resignation or removal of any or all of them. Any such vacancy or newly created Manager position may also be filled at any time by a vote of the Members as provided in Article IV, 5.2 Officers. (a) Election and Term of Office. The officers of the Company (the "Officers") shall be elected by the Committee and shall be a Chief Executive Officer. a Vice President (which includes any Executive Vice President, Senior Vice President or any variation thereof for all purposes of this Agreement), a Secretary and a Treasurer. The Committee may also elect a Chairman, a President, additional Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers, and such other Officers as it shall deem necessary or desirable; provided, however, that the Officers listed on Schedule B and such Persons are deemed to have been elected to the offices set forth opposite their respective names thereon. The Officers of the Company shall hold office until their successors are elected and qualified, or until they resign or are removed. Each Officer shall perform such duties as may be prescribed by the Committee or specified in this Agreement. (b) Duties of the Chief Executive Officers. The Chief Executive Officer shall be responsible for formulating general policies and programs for the Company for submission to the Committee and for carrying out the programs and policies approved by the Committee. He or she shall have the power to sign and deliver on behalf of the Company all documents and agreements. (c) Duties of the President. The President shall be the chief operating officer of the Company and shall be responsible for the administration and operation of the business and affairs of the Company. The President shall cause to be called regular and special meetings of the Committee in accordance herewith. The President shall perform such other duties and have such other powers as the Chief Executive Officer or the Committee may from time to time prescribe. In the absence or disability of the Chief Executive Officer. the President shall perform the duties and exercise all the powers of the Chief Executive Officer,. and shall be subject to all the restrictions upon the Chief Executive Officer. He or she shall have the power to sign and deliver on behalf of the Company all documents and agreements. (d) Duties of the Vice President. In the absence of a President or in the event of his or her inability or refusal to act, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Committee, or in the absence of any designation, then in the 11 order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice President shall perform such other duties as may be prescribed by the Committee, the Chief Executive Officer or the President, under whose supervision he or she shall serve. He or she shall have the power to sign and deliver on behalf of the Company all documents and agreements. (e) Duties of the Secretary. The Secretary shall attend all meetings of the Committee and all meetings of the Members and record all the proceedings of the meetings of the Members and of the Committee in a book to be kept for that purpose. The Secretary shall give or cause to be given notice of all meetings of the Members and special meetings of the Committee and shall perform such other duties as may be prescribed by the Committee from time to time. He or she shall have the power to sign and deliver on behalf of the Company all documents and agreements. (f) Duties of the Treasurer. The Treasurer shall have the custody of the funds and securities of the Company and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Committee. The Treasurer shall disburse the funds of the Company as may be ordered by the Committee, taking proper vouchers for such disbursements, and shall render to the President and the Committee, at its regular meetings, or when the Committee so requires, an account of all of his or her transactions as Treasurer and of the financial condition of the Company. The Treasurer shall perform, in general, all the duties incident to the office of Treasurer and such other duties as may be prescribed by the Committee from time to time. If required by the Committee. the Treasurer shall give the Company a bond in such sum and with such surety or sureties as shall be satisfactory to the Committee for the faithful performance of the duties of the Office of Treasurer and for the restoration to the Committee, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Company. He or she shall have the power to sign and deliver on behalf of the Company all documents and agreements. (g) Duties of the Assistant Secretary. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Committee (or if there be no such determination, then in the order of their election), shall, in the absence of the Secretary or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties as the Committee may from time to time prescribe. He or she shall have the power to sign and deliver on behalf of the Company all documents and agreements. 12 (h) Duties of the Assistant Treasurer. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Committee (or if there shall be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties as the Committee may from time to time prescribe. He or she shall have the power to sign and deliver on behalf of the Company all documents and agreements. (i) Compensation. No Officer shall receive compensation for his or her services to the Company in such capacity. 0) Resignations. Any Officer may resign at any time by giving written notice to the Committee. (k) Removal. Any Officer may be removed, with or without cause, at any time by the affirmative vote of the Committee in accordance with Section 5.1. (1) Vacancies. Any vacancy occurring in any office of the Company may be filled by the Committee. 5.3 No Exclusive Duty to the Company. Notwithstanding any provision of law or in equity, no Manager or Officer shall be required to manage the Company as its sole and exclusive function. Notwithstanding any provision of law or in equity. a Manager or Officer may have other business interests and may engage in other activities in addition to those relating to the Company. Neither the Company nor any Manager shall have any right, by virtue of this Agreement, to share or participate in other investments or activities of any Manager or Officer or to the income or proceeds derived therefrom. 5.4 Approval of Certain Matters. Loan and Mortgage. Notwithstanding anything to the contrary contained herein, the obtaining of the Loan and the granting of the Mortgage in connection therewith are hereby approved and does not require the approval of the Member, the Committee or any other Person. and the Officer(s) or any of them may execute and deliver any and all documents and take any and all such other actions, in each case as such Officer(s) may deem appropriate, in order to consummate the Loan. ARTICLE VI Limitation on Liabilitv and Indemnification 6.1 Limitation on Liabili . To the fullest extent permitted by law, no Member, Manager or Officer shall be liable to the Company or any other Member for any act or omission in connection with the management of the business or affairs of the Company unless such act or omission was taken or made in bad faith or constitutes gross negligence or willful misconduct. 13 6.2 Indemnification of Members. The Company shall, to the fullest extent permitted by law, indemnify and hold harmless each Member, Manager and Officer against any losses, judgments. liabilities or expenses incurred in settling any claim or incurred in any finally adjudicated legal proceeding. including reasonable attorneys' fees and costs of removing any liens affecting property of the indemnitee, and/or amounts paid in settlement of any claims sustained by it arising from or relating to the Company, provided that the same were not the result of (a) actions or omissions of such Member, Manager or Officer taken or made in bad faith or which constitute gross negligence or willful misconduct or (b) actions or claims instituted by such Member, Manager or Officer (other than claims or actions seeking to enforce the indemnification obligations hereunder). 6.3 Payment of Expenses in Advance. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding, as authorized by the Members in the specific case, upon receipt of an undertaking by a Member. Manager or Officer, as the case may be, to repay such amount unless it shall ultimately be determined that such Member, Manager or Officer is entitled to be indemnified by the Company. 6.4 Provisions Not Exclusive. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any statute, agreement. vote of Members or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office. 6.5 Insurance. The Company shall have the power to purchase and maintain insurance on behalf of the Members, Managers and/or Officers against any liability asserted against them or incurred by them in such capacity or capacities or arising out of their status as such, whether or not the Company would have the power to indemnify them against such liability under the provisions of this Article. 6.6 Continuation. The provisions of this Article shall continue as to a Person who has ceased to be a Member, Manager or Officer as to claims arising out of activities related to its prior capacity and shall inure to the benefit of its successors and obligors. The provisions of this Article also shall survive the liquidation, dissolution and termination of the Company and the termination of this Agreement and shall, to the fullest extent permitted by law, be binding on the Company's successors and assigns. 6.7 Notice of Indemnification and/or Advancement of Expenses. If the Company has indemnified and/or advanced any expenses to any Person pursuant to this Article VI, the Company shall, within 30 days of such indemnification or advancement or sooner as required by the Act, provide the Members with written notice thereof. 6.8 Recognition of Liens in Favor of Lender. The obligations of the Company to the Lender in respect of the Loan are secured to the extent provided in and by the Mortgage and the other Loan Documents. To the extent that payment in respect of 14 claims for indemnification under this Article VI is sought from assets of the Company which collaterally secure the obligations of the Company to the Lender in respect of the Loan, such claims for indemnification are subordinate in right of payment to such obligations of the Company in respect of the Loan. ARTICLE VII Contributions and Capital Accounts 7,1 Capital Contributions. (a) Each Member has made, or is deemed to have made, a Capital Contribution to the Company in the amount set forth in the records of the Company. (b) No further contributions of capital to, or financial accommodations for the benefit of, the Company shall be required. 7.2 Member Loans. (a) Subject to the provisions of Article XIII hereof, the Company may borrow funds from any Member for proper business purposes at any time and from time to time on such terms and conditions, including, without limitation, the rate of interest, any participation rights and any security, as the Committee deems appropriate. Any such loan shall not increase such Member's capital account, if any, but shall be a debt due from the Company to such Member payable in accordance with its terms. In the event of default, such Member, as lender, shall be entitled to exercise and pursue all rights and remedies available to it in accordance with such terms or applicable law. (b) Notwithstanding the foregoing, no Member shall be required to loan funds to the Company. 7.3 Interest: Priority: Return of Capital: Etc. No interest shall be paid by the Company on Capital Contributions, No Member shall be entitled to priority over any other Member, either as to a return of its Capital Contribution or as to allocations of profits, losses or distributions. No Member shall be entitled to the return of its Capital Contributions except (a) as provided for herein, (b) as required by law, (c) to the extent, if any, that distributions made pursuant to the express terms of this Agreement may be considered as such by law, or (d) upon dissolution of the Company. and then only to the extent expressly provided for in this Agreement. No Member shall have any right to demand or receive property other than cash in return for its Capital Contribution, and no Member shall have the right to withdraw or resign from the Company except as expressly provided herein. 7.4 Negative Capital Accounts, No Member shall have an obligation to the Company to restore to zero any negative balance in its capital account. 15 ARTICLE VIII Allocations: Distributions 8.1 Allocation of Net Profits and Net Losses. In the event that the Company is treated as a partnership for federal and/or state income tax purposes, the profits and losses of the Company shall be allocated among the Members pro rata in accordance with the number of Units then owned by each Member in relation to the total number of Units then outstanding. 8.2 Computation and Determination To the fullest extent permitted by law, the Members, Managers or Officers may rely upon, and shall have no liability to the Members or the Company if they rely upon, the advice of the independent public accountants retained by the Company from time to time with respect to all matters (including disputes with respect thereto) relating to computations and determinations required to be made under this Article. 8.3 Distributions. The timing and amount of distributions to the Members shall be determined by the Committee. All distributions shall be made pro rata to the Members in accordance with the number of Units then owned by each Member in relation to the total number of Units then outstanding. Notwithstanding any provision to the contrary contained in this Agreement, the Committee, on behalf of the Company, shall not be permitted to make any distribution to a Member in respect of its interest in the Company in violation of Section 18-607 of the Act or any other applicable law or for so long as any portion of the Obligations is outstanding, if such distribution would constitute a default under the Loan Agreement. ARTICLE IX Accounting and Tax Matters 9.1 Fiscal Year, The Company's Fiscal Year shall be the calendar year or such other period as the Committee shall determine. 9.2 Tax Assessed or Amounts Withheld. Any tax assessed on the Company with respect to any Member's allocable share of the income of the Company and/or all amounts required to be withheld with respect to the income of the Company allocable to any payment or distribution to the Company or the Members pursuant to the Code or any provision of any state or local tax law, shall be treated as amounts distributed to the Members for all purposes under this Agreement. The Company may allocate any such amounts among the Members in any manner so that the capital accounts, if any, of the Members whose status gives rise to such assessment or withholding is properly debited or credited. 9.3 Books of Account and Records. The Committee shall cause proper and complete records and books of account of the Company to be kept in which shall be entered fully and accurately all transactions and other matters relating to the Company's 16 business in such detail and completeness as is required by the Act and is customary and usual for businesses of the type engaged in by the Company. The books and records at all times shall be maintained at the principal office of the Company (and, to the extent required to be kept at the registered office, also maintained at the registered office) and shall be open to the reasonable inspection and examination of the Members or their duly authorized representatives during reasonable business hours. 9.4 Financial and Tax Information. Within ninety (90) days after the end of each Fiscal Year, the Company shall furnish to each Person who was a Member during such period financial statements of the Company and all other information necessary for the preparation of such Person's federal income tax return. ARTICLE X Restrictions on Transfer of Units 10.1 Transfer of Units. Subject to the provisions of Article XIII hereof; no Member may sell, assign, pledge or otherwise transfer or encumber any of its Units or any beneficial interest therein to any other person without the prior written consent of the other Members: if any; provided, however, that any Member shall have the right at any time or from time to time to assign some or all of its Units to an Affiliate or to a successor by sale, merger or consolidation. Subject to Section 10.3, if the Member transfers all of its limited liability company interest in the Company pursuant to this Section 10.1, 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 transferor Member shall cease to be a member of the Company. To the fullest extent permitted by law, any purported Transfer in violation of this Agreement shall be null and void and shall not be recognized by the Company. 10.2 Withdrawal, No Member shall have the right to withdraw from the Company except with the consent of the Committee and upon such terms and conditions as may be specifically agreed upon between the Committee and the withdrawing Member. If the Member is permitted to withdraw pursuant to this Section 10.2, an additional member of the Company shall be admitted to the Company. subject to Section 10.3, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. The provisions of Article VIII with respect to distributions upon withdrawal are exclusive and no Member shall be entitled to claim any further or different distribution upon withdrawal. 10.3 Additional Members. The Committee shall have the sole right to admit additional Members upon such terms and conditions, at such time or times, and for such 17 capital contributions as the Committee shall in its sole discretion determine. In connection with any such admission, Members, the Secretary or any Assistant Secretary of the Company may update from time to time Schedule A hereof to reflect the name, address, and number of Units of the additional Member, 10.4 Record Owner of Unit. The Company shall be entitled to treat the Person whose name appears on the records of the Company as the absolute owner of a Unit in the Company in all respects, and shall incur no liability for distributions of cash or other property made in good faith to such record owner, until such time as a written assignment of such Unit has been received and accepted by the Committee and recorded on the books of the Company. ARTICLE XI Dissolution and Termination, Final Accounting and Distributions 11.1 Dissolution and Termination of the Company. (a) Subject to the provisions of Article XIII hereof, the term of the Company shall end, and the Company shall be immediately dissolved, upon the occurrence of any of the following: (i) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act; (ii) the sale of all or substantially all assets of the Company; (iii) the decision of the holders of a majority of the outstanding Units to dissolve; or (iv) a decree of judicial dissolution under Section 18-802 of the Act. (b) Upon the occurrence of any event that causes the last remaining member of the Company or 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 such member of its entire limited liability company interest and the admission of the transferee as a member pursuant to Sections 10.1 and 10.3 or (ii) the withdrawal of the Member and the admission of an additional member of the Company pursuant to Sections 10.2 and 10.3), to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal `ff representative or its nominee or designee, as the case may be, as a substitute member of the Company with the rights (and only the rights) of such member, effective as of the occurrence of the event that terminated the continued membership of the last remaining member or the Member in the Company. (c) Upon the dissolution of the Company, no further business shall be conducted by the Company except the taking of action Necessary for the winding up of the affairs of the Company and the liquidation and distribution of its assets. Actions taken by the Company to effectuate or facilitate the orderly winding up of the Company's affairs shall not be construed to involve a continuation of the Company. 11.2 Distributions After Dissolution and Termination. (a) Upon the dissolution of the Company, the Committee shall proceed to wind-up the business of the Company. The Committee shall use its best efforts to sell such Company assets (except cash and current receivables) as are necessary to satisfy the claims of creditors or as cannot be readily divided among the Members at such prices. and on such terms, as the Committee, in the exercise of its best judgment under the circumstances then presented, deems in the best interest of the creditors or the Members, as the circumstances require. To the fullest extent permitted by law, the Committee is specifically authorized to accept an installment obligation in connection with the sale of any assets of the Company if the Committee, in its sole discretion, deems it to be in the best interest of the creditors or the Members, as the circumstances require. To the fullest extent permitted by law, any Member shall have the right to purchase any Company property to be sold on liquidation, provided that the terms on which such sale is made are no less favorable than would otherwise be available from third parties. (b) In settling accounts after dissolution of the Company, the assets of the Company shall be paid to creditors of the Company and to the Members in the following order: (i) to creditors.. including Members who are creditors, to the extent permitted by law, in satisfaction of liabilities of the Company (whether by payment or the making of reasonable provision for payment thereof) in the order of priority as provided by law, including to the establishment of reserves for payment of creditors; and (ii) to the Members, pro rata in accordance with the number of Units owned by them. (c) The Company shall terminate when (i) all Company, after payment of or due provision for all obligations of the Company, shall have been distributed 19 of the assets of the debts, liabilities and to the Members in the manner provided for in this Agreement and (ii) the Certificate shall have been canceled in the manner required by the Act. 11.3 Additional Understandings. Notwithstanding any other provision of this Agreement, (a) the Company shall continue as a separate legal entity until the cancellation of the Certificate in accordance with the Act, (b) the Bankruptcy of a Member or a Special Member shall not cause such Member or Special Member, as the case may be, to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution. (c) each of the Members and the Special Member waives any right it might have to agree in writing to dissolve the Company upon the Bankruptcy of a Member or a Special Member, or the occurrence of an event that causes a Member or a Special Member to cease to be a member of the Company. (d) in the event of the dissolution of the Company, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act. and (e) to the fullest extent permitted by applicable law, each of the Members and the Special Member irrevocably waive any right or power that they might have to cause the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of the Company. ARTICLE X11 Amendment of Agreement Notwithstanding anything to the contrary contained herein (but subject to the provisions of Article X111 hereof), this Agreement may be amended only upon the approval of the holders of all outstanding Units and the consent of no Manager, Officer or other Person shall be required; provided, however, that any amendment that materially or adversely affects any right, power or liability of any Manager or Officer shall be prospective only unless the Person affected consents in writing thereto. 20 ARTICLE XIII Provisions Relating to Financing This Article XIII is being adopted in connection with a loan in the original principal amount of up to Two Hundred and Fifty Million Dollars ($250,000,000) (the "Loan") pursuant to that certain Loan Agreement to be dated on or about December 23, 2014, (as the same may be Modified from time to time, the "Loan Agreement"). among the Company, Deutsche Bank AG New York Branch and the institutions from time to time party thereto, collectively, as lender (together with each of their respective successors and assigns "Lenders"), Deutsche Bank AG New York Branch, as agent for the Lenders ("Agent") and Deutsche Bank Securities Inc., as lead arranger. Capitalized terms used in this Article XIII and not otherwise defined herein shall have the meanings set forth in the Loan Agreement or in the mortgage or deed of trust securing repayment of the Loan (as the same may be Modified from time to time. the "Mortgage"). Effective as of the closing of the Loan and for so long as (i) the Company owns the Property and (ii) any portion of the Obligations is outstanding, and notwithstanding anything to the contrary contained in any other Article hereof, the Company shall, except as may be permitted or required by the Loan Agreement, the Mortgage or any other Loan Documents or with the written consent of the Lenders (or a servicer, on behalf of the Lenders), operate in accordance with each of the following.- (a) ollowing: (a) The purpose for which the Company is organized is and shall be limited solely to (i) acquiring. owning. holding. selling, leasing, developing, transferring. operating, exchanging and managing the Property and all business incidental thereto, (ii) entering into or assuming the obligations of the Company under the Loan Agreement and Loan Documents with the Lender, (iii) refinancing the Property in connection with the permitted repayment of the Loan and (iv) transacting any and all lawful business for which the Company may be organized under the laws of the State that is incidental, necessary or appropriate to accomplish the foregoing (b) The Company will not engage in any business unrelated to those permitted in clause (a) of this Article. (c) The Company has not owned, does not own and will not own or acquire any asset or property other than (i) those relating to its interest in the Property, and (ii) incidental personal property necessary for and used or to be used in connection with the ownership, leasing, management or operation of the Property or such ownership interests, as applicable. (d) The Company has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than Permitted Debt. (e) The Company will maintain all of its books, accounts, records, financial statements and bank accounts separate and apart from those of any 21 other Person (except that such Person's financial position, assets, results of operations and cash flows may be included in the consolidated financial statements of an affiliate of such Person in accordance with GAAP, provided that any such consolidated financial statements shall contain a note indicating that such Person and its Affiliates are separate legal entities and maintain books, accounts, records, and bank accounts separate and apart from any other Person). (f) The Company shall be subject to and comply with all of the limitations on powers and separateness requirements set forth in its organizational documents as approved by Lenders in accordance with the Loan Agreement, and shall not Modify the separateness requirements contained in this Agreement without the prior written consent of the Lenders (g) The Company will be, and at all times will hold itself out to the public as. a legal entity separate and distinct from any other Person (including any Affiliate of the Company or any constituent party of the Company), shall correct any known misunderstanding regarding its status as a separate entity, and shall not identify itself as a division or part of any other Person. (h) The Company shall conduct its business in its own name (except fcr services rendered under a management agreement with an Affiliate, so long as the manager, or equivalent thereof, under such management agreement holds itself out as an agent of the Company) and has and shall maintain and utilize separate invoices and checks bearing its own name. (i) The Company shall not enter into any contract or agreement with any Affiliate of the Company, any constituent equity holder of the Company (direct or indirect, at any tier) or any Affiliate of such Person, except upon terms and conditions that are intrinsically fair; commercially reasonable and no less favorable to it than (and substantially similar to) those that would be available on an arms -length basis with third parties not so affiliated with the Company. Q) The Company shall pay its own liabilities out of its own funds (including the salaries of its own employees, if any) and shall reasonably allocate any overhead that is shared with an Affiliate of the Company, including paying for shared office space and services performed by any officer or employee of an Affiliate. (k) The Company shall maintain a sufficient number of employees, which number may be zero, as required to perform its business operations; (1) The Company shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person. (m) The Company shall do or cause to be done all things necessary to observe organizational formalities and preserve its separate existence. 22 (n) The Company shall not commingle its assets with those of any direct or indirect equity owner of the Company, any Affiliate, or any other Person (even if such commingling is done in a manner that permits the tracing of such funds back to Borrowers or the Property or is done temporarily with the intent to subsequently use such funds to pay Property -related expenses, Debt Service. or other permitted costs and expenses of Borrowers pursuant to the Loan Documents) and will hold all of its assets in its own name. (o) The Company shall not assume, guarantee or become obligated for the debts of any other Person and shall not make any loans or advances to any other Person (including any Affiliate), and shall not hold out its credit as being available to satisfy the obligations or securities of others:. provided, however, that the foregoing shall not be deemed to apply to any tenant allowances granted in the Ordinary Course of Business with respect to Leases entered into in accordance with the Loan Agreement and the Loan Documents, or notes executed by defaulting tenants under such Leases in respect of rent and other payments otherwise due under such Leases. (p) The Company shall not acquire obligations or securities of any Affiliate or Member of the Company. (q) The Company shall not pledge its assets for the benefit of any other Person other than in respect to the Loan. and shall not make any advance payments or loans to any Person. (r) The Company will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations, to the extent there is sufficient cash flow from the Property to do so; provided that the foregoing shall not require Sponsor or the Company's other direct or indirect members to make any additional capital contributions to the Company. (s) The Company will pay its debts and liabilities from its assets as the same shall become due, provided that, in each case, there exists sufficient cash flow from the Property to do so. (t) Independent Manager Provisions: (i) At all times there shall be at least two (2) duly appointed Independent Managers of the Company. (ii) The Members shall not take any action which, under the terms of this Agreement requires a unanimous vote of the Members, unless at the time of such action there shall be at least two (2) Independent Managers engaged as provided by the terms hereof (and such Independent Managers have participated in such vote). 23 (iii) Any resignation, removal or replacement of any Independent Manager shall not be effective (A) without five (5) Business Days prior written notice to Lenders accompanied by evidence that the replacement Independent Manager satisfies the applicable terms and conditions of the Loan Agreement and this Agreement. and (B) until the successor Independent Manager has executed a counterpart hereto agreeing to be bound thereby and to comply with its obligations thereunder; (iv) Agent, together with its successors and assigns, is an intended beneficiary of the provisions of this Article X111 (and any other provisions in this Agreement that are required by the Loan Agreement), and may enforce such provisions; (v) The Independent Managers shall consider only the interests of the Company and the Company's respective creditors (and Agent as an intended third party beneficiary) in acting or otherwise voting on the matters provided for herein, and the fiduciary duties of the Independent Managers shall not include a fiduciary duty to any constituent members of the Company, at any tier (and the foregoing provision is intended to constitute a specific restriction on the scope of the fiduciary duties of the Independent Managers, accepted by the Members; in accordance with Section 18-1101(c) of the Act). (u) Member. Except as expressly permitted pursuant to the terms of the Loan Agreement. (i) Sole Member may not resign. and (ii) no additional Member shall be admitted to the Company (except as provided for in Sections 4.11 and 11.1(b) of this Agreement. (v) Dissolution and Termination of the Company. The term of the Company shall end, and the Company shall be immediately dissolved, upon the earlier to occur of the following: (i) The termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act; or (ii) a decree of judicial dissolution under Section 18-802 of the Act. Failure of the Company or a Member on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of a Member or the Independent Managers. 24 Notwithstanding any provision of this Agreement to the contrary, the prior unanimous written consent of the Members, and both of the Independent Managers, sha11 be required (provided, however, the Company shall not take any such consent or authorize the taking of any of the actions set forth in this paragraph below, unless there are at least two Independent Managers then serving in such capacity) for the Company, or any other Person on behalf of the Company, to: (i) dissolve (to the fullest extent permitted by law), liquidate, consolidate, merge or sell all or substantially all of its assets; (ii) engage in any business other than the acquisition, development. management, leasing, ownership, maintenance and operation of the Property and activities incidental thereto; (iii) file, or consent to the filing, of a bankruptcy or insolvency petition, any general assignment for the benefit of creditors or the institution of any other proceeding, or the seek or consent to the appointment of a receiver, liquidator, assignee, trustee. sequestrator, custodian or any similar official for the Company, as debtor; (iv) admit in writing its inability to pay debts generally as they become due, other than to Agent; (v) Modify or waive any provision of this Article X1IL or (vi) take any action in furtherance in any of the foregoing. Notwithstanding anything to the contrary contained herein, none of the provisions of this Article XIII or other provisions hereof shall obligate any Member of any equity holder in any Member to make additional capital contributions to the Company or such Member, as applicable, or return dividends or distributions paid by the Company or such Member (but nothing contained herein shall negate any obligation under applicable law to return any dividend or distribution), as applicable. In the event of any conflicts between the provisions set forth in this Article XIII and any other provision of this Agreement, for so long as any portion of the Obligations is outstanding, the provisions of this Article Xlil shall control. ARTICLE XIV Miscellaneous 14.9 Notices. All notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered as properly given when deposited in the United States mail, first class postage prepaid, addressed to a Member at its address as it appears in the records of the Company or when delivered personally (including delivery by messenger or overnight courier service) to the Member at such address. 25 14.2 Law Governing. The construction and enforcement of this Agreement shall be governed by the laws of the State (without regard to the conflicts of law principles thereof). 14.3 Representatives and Assigns. Subject to the other provisions hereof, this Agreement shall be binding upon and inure to the benefit of the Members and their respective heirs, personal or legal representatives, successors and assigns. 14.4 E=ntire Agreement. This Agreement contains the entire understanding among the parties with respect to the subject matter hereof and supersedes any prior understandings or written or oral agreements among them, or any of them, respecting the subject matter contained herein. 14.5 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original. but all of which shall constitute one document. 14.6 Severability. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws. ordinances, rules and regulations. If any provision of this Agreement or the application thereof to any Person or circumstance is. for any reason and to any extent, invalid or unenforceable, the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected thereby, but rather shaft be enforced to the fullest extent permitted by law. 14.7 Construction. The Article and Section titles used in this Agreement are solely for convenience and neither modify nor limit the provisions of this Agreement. Any references herein to Articles and Sections shall be deemed to refer to the Articles and Sections hereof, as the case may be, unless otherwise specified. If the context so requires, the masculine shall include the feminine and the neuter, and the singular shall include the plural, and vice versa. 14.8 Third Party Beneficiary. No Person other than a Member shall have any legal or equitable right, remedy or claim under or in respect of this Agreement or be entitled to status as a third party beneficiary of any obligation arising under this Agreement or to enforce the obligation of any Member or the Company under this Agreement; provided, however, that the Managers or Officers may enforce the provisions of Article VI as to indemnification. Notwithstanding the foregoing, or any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Members, and is enforceable against the Member by the Independent Managers, in accordance with its terms. In addition (but subject to the provisions of Article XIII), the Independent Managers shall be intended beneficiaries of this Agreement. 14.9 Waiver of Action for Partition. To the fullest extent permitted by law, each Member irrevocably waives any right that it may have to maintain any action for partition with respect to the property of the Company. 26 14. 10 Attorneys' Fees. To the fullest extent permitted by law, if any legal action, including an action for declaratory relief, is brought to enforce any provision of this Agreement, the prevailing party or parties, as the case may be, shall be entitled to recover his, its or their respective reasonable attorneys' fees from the non -prevailing party or parties, as the case may be. These fees, which may be set by the court in the same action or in a separate action brought for that purpose, are in addition to any other relief to which any prevailing party may be entitled. 14.11 Binding Agreement. Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and its enforceable against the Member by the Independent Managers, in accordance with its terms. 14.12 Article 8 Opt -In. Each limited liability company interest in the Company shall constitute a "security" within the meaning of (i) Section 8-102(a)(15) of the Uniform Commercial Code as in effect from time to time in the State of Delaware and (ii) the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Notwithstanding any provision of this Agreement to the contrary, to the extent that any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware (6 Del. C. Section 8-1010, et seg.) (the "UCC"), such provision of Article 8 of the UCC shall be controlling. The Company shall maintain books for the purposes of registering the transfer of limited liability company interests. Notwithstanding any provision of this Agreement to the contrary; a transfer of limited liability company interests shall not be effective until registration of such transfer in the books of the Company. [Signatures on Following Page] IPA IN WITNESS WHEREOF, the undersigned has executed this Agreement on the date first above written. GGP NIMBUS, LP By: GGP Operating Partnership, LIP, its general partner By: GGP Real Estate Holding 11, lnc., its general partner 13YN."I E�falcie L. Herron, Vice President GGP LIMITED PARTNERSHIP By: GGP Operating Partnership, LIP, its general partner By: GGP Real Estate Holding 11, Inc,, its general partner By; L. Herron, Vice President JOINDER BY INDEPENDENT MANAGER Effective as of December 23, 2014 the undersigned hereby joins in the execution of the Second Amended and Restated Operating Agreement dated December 23, 2014 (the "LLC Agreement') or Bayside Marketplace, LLC. a Delaware limited liability company to which this joinder is attached for the limited purpose of (i) accepting his/her appointment as an Independent Manager, (ii) agreeing to become a Special Member in accordance with Section 4.11 upon the occurrence of the events specified therein and (iii) accepting and agreeing to be bound by all the terms and provisions of the LLC Agreement applicable to the undersigned as Independent Manager and Special Member. INDEPENDENT MANAGERISPECIAL MEMBER. t Name: Andrew T. Panaccione JUNDER BY INDEPENDENT MANAGER Effective as of December 23, 2014 the undersigned hereby joins in the execution of the Second Amended and Restated Operating Agreement dated December 23, 2014 (the "LLC Agreement") of Bayside Marketplace, LLC, a Delaware limited liabilit,' company to which this joinder is attached for the limited purpose of (i) accepting his/her appointment as an Independent Manager, (ii) agreeing to become a Special Member in accordance with Section 4.11 upon the occurrence of the events specified therein and (iii) accepting and agreeing to be bound by all the terms and provisions of the LLC Agreement applicable to the undersigned as Independent Manager and Special Member. INDEPENDENT MANAGERISPECIAL MEMBER. t \" i J i Name: Michelle A. Dreer SCHEDULE A TO SECOND AMENDED AND RESTATED OPERATING AGREEMENT OF BAYSIDE MARKETPLACE, LLC Members Membership Interest Percentage GGP NIMBUS, LP 110 North Wacker Drive Chicago, Illinois 60606 50% GGP LIMITED PARTNERSHIP, LP 50% 110 North Wacker Drive Chicago, Illinois 60606 rw SCHEDULE B TO SECOND AMENDED AND RESTATED OPERATING AGREEMENT OF BAYSIDE MARKETPLACE, LLC Name Sandeep Mathrani Michael B. Berman Shobi Khan Alan J. Barocas Marvin J. Levine Scott T. Morey Richard S. Pesin Kathleen M. Courtis Heath R. Fear Brian S. McCarthy Tara L. Marszewski Stacie L. Herron Mary Beattie -Binder Rosemary G. Feit Gregory R. Lynch Andrew P. Massmann Michael B. McVickar Howard A. Sigal OFFICERS Office Chief Executive Officer Executive Vice President. Chief Financial Officer, and Treasurer Executive Vice President and Chief Operating Officer Senior Executive Vice President Executive Vice President and Chief Legal Officer Executive Vice President Executive Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President and Chief Accounting Officer Vice President and Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary Assistant Secretary SCHEDULE C TO SECOND AMENDED AND RESTATED OPERATING AGREEMENT OF BAYSIDE MARKETPLACE, LLC INDEPENDENT MANAGERS Andrew T. Panacci©ne Michelle A. Dreyer B-1 11 CFN: 20140882865 BOOK 29444 PAGE 891 DATF-:12/2612014 01:01A1 PM IVITG DOC 875,000.00 INTANGIBLE 500,000-00 KRVEY R LIVIN. CLERK OF COURT, MIA-DADE CTY PREPARF-D BY AND UPON RECORD,ATfq, FYRIN TO; Latham & Watkins LLP 355 S. Grand Ave, Los Angeles, CA 90071 Attention, Scott McPhee, Esq, 67c -a T,77 vc--r LEASE HOLD MIORTCAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT, AND FIXTURE lFrLLNG BAYSIDE 1V1 UZKETPLACE, LLC, a Delaware limited liability company, as mortgagor (Borrower) To DEUTSCHE BkN-K AG NEW YORK BRANCH, as mortgagee (administrative agent for the Lenders) Dated: As of December 23, 2014 Location: 401 Biscayne Boulevard Miami, Florida 33132 NOTE TO RECORDER. DOCUMENTARY STAMP TAXES IN THE AMOUNT OF EIGHT HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($875,000) AND JNTANGTBLE TAXES LN THE AMOUNT OF- F1W HUNDRED THOUSAND DOLLARS ($500,000) ARE DUE IN CONNECTION WITH THE RECORDATION OF THIS MORTGAGE. LAU920625 CFN: 24140882665 BOOK 29444 PAGE 892 LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY- AGREEMENT, ECURITYAGREEMENT, AND FIXTURE FILING THIS LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT, AND FIXTURE FILING (this "Mortgage'), dated as of December 23, 2011 (ihe "Effective Date"), is made by BAYSIDI MARKETPLACE, LLC, a Delaware limited liability company ("Mortgagor"), having an address at I10 North Wacker Drive, Chicago, Illinois 50606, in favor of DEUTSCHE BANK AG NEW YORK BRANCH, as administrative agent under the Loan Agreement referred to below and as Mortgagee hereunder (in such capacities, together with its successors and assigns, "Mortaaee"), having a business address of 60 Wall Street, New York, Nem. !_Y©rk 10005-2.85$. RECITALS: WHEREAS, Mortgagor, Mortgagee, and the lenders- from time to time party to the Loan Agreement herein described (the "Lenders"), have entered into that certain Loan Agreement dated as of the Effective Date (together with all Modifications thereto being referred to hcreinafter as the "Loan Agreement'); '%TIEREAS, pursuant to the Loan Agreement, the Lenders have agreed to make a single disbursement term loan to Mortgagor in the principal amount of $250,000,000, upon the terms and subject to the conditions set forth therein (collectively, the "Loan"); WHEREAS, Mortgagor is the owner of a leasehold interest in the real property and a fee simple interest in the improvements located on such real property. described on Exhibit A'attached hereto and incorporated herein by reference; WHEREAS, Mortgagee has required the execution of this Mortgage as a condition to the Loan. ARTICLE I DEFINITIONS As used herein, the following terms shall have the meanings set forth below. All capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Loan Agreement. 1.1 Accounts. All of Mortgagor's present and future rights to payment of money, accounts, accounts receivable which arise from or relate to any business or operations now or later to be conducted on the Laud, or to the Land and Improvements generally or to any Improvements to be built on the Land at any future date and to all contracts and agreements which relate to the foregoing. The Accounts shall include any interest of Mortgagor in the Collateral Accounts described in the Loan Agreement. i CFN: 20140982866 BOCK 29444 PAGE 893 1.2 Ass_ignrn,nt_ The Assignment contained in this Mortgage, from Mortgagor to Mortgagee, of all of Mortgagor's right, title and interest .in and to the Leases and the Rents. - 1.3 Awards. Any compensation paid by any Governmental Authority in connection with a Condemnation in respect of all or any part of the Mortgaged Property. 1.4 Deposited Funds. All funds deposited with Mortgagee as required under the Loan DoeuFnettts, including, without limitation, any deposits made pursuant to this Mortgage. 1.5 Fixtures. All fixtures (excluding tenant trade fixtures) owned by Mortgagor and now or hereafter affixed or attached to, or installed in, or used in connection with, the Land or Improvements, whether or not permanently affixed thereto, together with all accessions, replacements and substitutions thereto or therefor and the proceeds thereof, including, without limitation, all of the following: all apparatus, equipment and appliances- used -in connection with the 'operation or occupancy of the Land or Improvements; all partitions; generators; screens; boilers; furnaces; ducts; compressors; engines; pumps; tanks, refrigeration equipment; pipes; plumbing; elevators and escalators; cleaning, call and sprinkler systems; fire extinguishing machinery and equipment; water tanks; heating, ventilating, air conditioning and air cooling machinery and equipment; gas and electric machinery and equipment; communication apparatus, including, without limitation, television, radio, music, and cable antennae and systems; attached floor coverings, rugs, carpets, window coverings, blinds, awnings, shades, curtains and drapes and rods; all screens, storm doors and windows; all stoves, refrigerators, dishwashers and other installed appliances; attached cabinets; all trees, plants and other items of landscaping; and all visual and electronic surveillance systems. 1.6 General Intangibles. All causes of action and all other intangible personal property of Mortgagor of every kind and nature (other than the Accounts) including, without limitation, corporate -or other business records relating to Mortgagor and/or the Mortgaged Property (including computer -readable memory and any computer hardware or soil -ware necessary to retrieve such memory, to the extent assignable), good will, inventions, designs, sofhvare (to the extent assignable), and other intellectual property, patents, trademarks and applications therefor, trade names, trade styles, trade secrets; copyrights, registrations, licenses, franchises, customer lists, tax refund claims and the like, wherever located. 1.7 Ground Leases. Collectively, the Retail Lease and the Garage Lease, each as more particularly described on Schedule 1 attached hereto, as the same may be Modified in accordance with the Loan Agreement. 1.8 Governmental Re¢ulation. Collectively, any and all requirements of any Governmental Authority including any and all laws, ordinances, rules, regulations or similar statutes or case lain. 1.9 Guaranties. The Guaranties as described in the Loan Agreement, as the same may be Modified in accordance with the terms of the Loan Documonts. 1.10 Guarantor- The Guarantor as described in the Loan Agreement. L V%392UG25 'r i 1.18 Loan Agreement. The term defined as such in the Recitals of this Mortgage, as the same may be Modified in accordance with the terms of the Loan Documents. 1.19 Loam Documents. Ail documents identified as a "Loan Document" in the Loan Agreement; as the same may be Modified in accordance with the terms of such Loan Documents. 1.20 Modifications. Any amendments, supplements, modifications, restatements, renewals, replacements, consolidations, severances, substitutions and extensions of any document, instrument, statute, or Governmental Regulation from time to time; "Modify", "Modified," or related words shall have meanings correlative thereto. 1.21 Mortgaged Property. All of Mortgagor's estate, right, title and interest in, to and under, (i) the leasehold estate in the Land created pursuant to the Ground Leases together with any greater or additional estate therein as hereafter may be acquired by Mortgagor, (ii) all assignments, Modifications and renewals of the Ground Leases, and all credits, deposits, options, privileges and rights of Mortgagor as tenant under the Ground Leases, 4 f= [.M39270625 CFN. 20140882865 BOOK 29444 PAGE 894 1.11 1mpgsitiorr . Al] (A) real estate and personal property taxes and all other taxes, r assessments, fees and governmental charges, (B) all water and sewer rates and charges, and (C) all charges for any easement or agreement maintained for the benefit of the y' Mortgaged Property, which, in the case of any of the foregoing, at any time prior to or after the execution of the Loan Documents may be assessed., levied, or imposed upon or against the ]~,Mortgaged Property or the other collateral or the Rent or income received thereL-om or any use or occupancy thereof. - 1.12 Improvements, All of Mortgagor's buildings, improvements, alterations or appurtenances now, or at any time hereafter, located upon the Land o3 any part thereof, but excluding tenants' interests in improvements constructed in accordance with the terms of Leases. - 1.13 Inventory. Any and all goads, merchandise and other personal property, whetf+er _ tangible or .intangible, now.owized or hereafter acquired by kfortgagor wrhich.is.held-for . e..' . sale, lease or license to customers, furnished to customers under any contract or service is or held as raw materials, work in process, or supplies or materials used or consumed in the: Mortgagi�r's business. 1.14 Land. The real estate described in Exhibit A attached hereto. 3= I.15 Leases- Any and all [cases, subleases, licenses, concessions, use agreements or grants of other possessory interests or use rights now or hereafter in force, oral or written, covering or affecting the Mortgaged Property, or any part thereof 1.16 Lenders. The entities named as such in the preamble of this Mortgage, the other I lending institutions that are a party to the Loan Agreement as lenders from time to time, and any other Person who becomes an assignee of any rights of a lender pursuant to Section 9.1 of the Loan Agreement, 1.17 Loam. The term defined as such in the Recitals of this Mortgage. 1.18 Loan Agreement. The term defined as such in the Recitals of this Mortgage, as the same may be Modified in accordance with the terms of the Loan Documents. 1.19 Loam Documents. Ail documents identified as a "Loan Document" in the Loan Agreement; as the same may be Modified in accordance with the terms of such Loan Documents. 1.20 Modifications. Any amendments, supplements, modifications, restatements, renewals, replacements, consolidations, severances, substitutions and extensions of any document, instrument, statute, or Governmental Regulation from time to time; "Modify", "Modified," or related words shall have meanings correlative thereto. 1.21 Mortgaged Property. All of Mortgagor's estate, right, title and interest in, to and under, (i) the leasehold estate in the Land created pursuant to the Ground Leases together with any greater or additional estate therein as hereafter may be acquired by Mortgagor, (ii) all assignments, Modifications and renewals of the Ground Leases, and all credits, deposits, options, privileges and rights of Mortgagor as tenant under the Ground Leases, 4 f= [.M39270625 CFN: 20140882865 BOOK 29444 PAGE 895 including, but not limited to, rights of first refusal, if any, and the right, if any, to renew or extend the Ground Leases for a succeeding term or terms, (iii) the Improvements, the Fixtures, the Leases, the Rents, the Personalty, and all substitutions therefor, ' replacements and accessions thereto, and proceeds derived therefrom together with: '= (a) all of the rights, privileges, permits, licenses, tenements, hereditaments, rights-of-way, easements, appendages and appurtenances of the Mortgagor's leasehold interest in the Land and/or fee interest in the Improvements, including, without limitation, sewer rights, all air rights, light, water, water rights, water stock, minerals, mineral rights, development rights and credits, use entitlements, permits, licenses and approvals of governmental entities, belonging or in any way appertaining thereto, and all right, title and interest of Mortgagor (if any) in and to any streets, ways, alleys, strips or gores of land adjoining the Land or any part w. _.1,;;�:, thereof or otherwise benefiting -the Sartre; — -- . - (la) subject to the provisions of the Loan Agreement regarding application of Awards and proceeds with respect to casualties, all the estate, right, title, interest, claim or demand whatsoever of Mortgagor, -'either at law or in equity, in and to the Awards orpayments with respect to casualties; and (c) all other interest of every kind .and character which Mortgager now has or - 7. at any time hereafter acquires in and to the above described real and personal property. 1224orup"eee. The entity narned as such in the preamble of this Mortgage, and its heirs, administrators, executors, successors and assigns and its successors in interest in and with respect to the Mortgaged Property. 1,23 14fcrtgggor. The entity named as such in the preamble of this Mortgage, and its permitted heirs, administrators, executors, successors and assigns and its successors in interest in and to the Mortgaged Property, 1.24 Obli atiorrs: All Obligations as defined in the Loan Agreement, including: (A) the Debt, including principal, all accrued .interest on and all fees and other amounts, payments and premiums of any kind and nature (including any indemnification obligations) due from i 'Tortgagor or any other Loan Party to the Mortgagee or the Lenders under the Notes and the other Loan Documents, and (13) any and all of the covenants, promises and other obligations made or owing by Mortgagor or any other Loan Party to the Mortgagee or the Lenders cinder the Loan Agreement, the Notes and the other Loan Documents, in each case whether now existing or hereafter arising, whether ar not evidenced by any note, guaranty or other instrument or agreement, whether direct or indirect (including those acquired by assignment), whether absolute or contingent, whether due or to become due, and however acquired, as Modified; provided, however, that notwithstanding anything to the contrary contained in any of the Loan Documents, for purposes of defining the obligations secured by this Mortgage (or any obligations that may. be deemed secured hereby), "Obligations" shall not include any obligations arising under the Environmental Indemnity, any other Indemnity and the Guaranties. "Obligations" shall specifically include, without lirmitatiom (i) all sums advanced by L _1920625 CFN: 20140882865 E300K 29444 PAGE 896 Mortgagee to protect the Mortgaged Property as permitted under the Loan Documents, with interest thereon at the rate per annum in effect from time to time under the Loan Agreement; and (ii) payment of all other sums, with interest thereon, which may hereafter be loaned to Mortgagor or their successors or assigns by Lenders, when evidenced by a promissory note or notes reciting that they are secured by this Mortgage. 1.25 Personaltv. (a) All tangible and intangible personal property of Mortgagnr (whether now awned or hereafter acquired), other than property belonging to tenants under Leases, which is locaed within or about or is otherwise used in connection with the Land or Improvements, including, vvkhout limitation, all equipment, inventory, goods, consumer goods, chattel paper, instruments, working capital reserves, project escrows, money (which are ...rental, tax -,or insurance deposit }.. -.general intangibles, _ -documents, - - minerals, crops and timber (as those terms afire defined in the applicable Uniform Commercial Code), intercom and paging equipment, electric and elecLonic equipment, dictating equipment, private telephone systems, medical equipment, potted plants, fire prevention - and extinguishing apparatus, cooling and air-conditioning systems, elevators, escalators, fittings, plants, apparatus, stoves, ranges, refrigerators, laundry machines, tools, engines, dynamos, motors, boilers, incinerators, switchboards, conduits, compressors, vacuum cleaning systems, floor cleaning, wa-xing and polishing equipment, cull systems, brackets, electrical signs, bulbs, bells; ash and fuel, conveyors, cabinets, lockers, shelving, spotlighting equa- pinent, dishwashers, garbage disposals, washers and dryers, other customary office equipment; but excluding (i) vehicles and other property, subjectto certificates of title, and (ii) Cash and Cash Equivalents, securities and investment property; (b) and all other personal property of Mortgagor which is attached to, installed on or placed or used on, in connection, with or is acquired for such attachment, installation, placement or use, or which arises out of the development, improvement, financing, leasing, operation or use of (i) the Land together with all rights, titles and interests appurtenant thereof, (ii) any and all Improvements, structures, open parking areas and other improvements, now or any time hereafter situated, placed or constructed upon the Land or any part thereof, (iii) the Fixtures, or (iv) other good3 located on the Land or Improvements, together with all additions, accessions, accessories, and Modifications thereto, extensions, renewals, replacements, enlargements and proceeds thereof, substitutions therefor, and income and profits therefrom, but excluding (i) vehicles and other property subject to certificates of title and (ii) Cash and Cash Equivalents, securities and investment property; and (c) All Inventory; and N LM39i05'_5 CFN: 20140882865 BOOK 29444 PAGE 897 (d) All the estate, right, title, interest, claim or demand whatsoever of Mortgagor, either at law or in equity, in and to the Accounts, the Deposited Funds and the General Intangibles; and (e) All materials, supplies, equipment, apparatus and other items now or hereafter attached to, installed on or in the Land or the Improvements, or which in some fashion are deemed to be fixtures to the Land or Improvements -ander the laws of the State, including the Florida Uniform Commercial Code as in effect from time to time (excluding vehicles and other property subject to certificates of title); and (f) Any and all Leases, subleases, licenses, concessions or other agreements (written or verbal, now or bereafter in effect) which ,grant a possessory - interest in and to, or the right to extract, mine, reside in, sell or use the w-NFortgaged -Property or any portion Atereof, a..td all - o ftT agre�merzts,.,.. . r including, but not limited to, utility contracts, management agreements, maintenance a;rectrzcnts and service contracts, which in any way relate to the use, occupancy, operation, maintenance, enjoyment or ownership of the Mortgaged Property, all contracts or agreements mlati ng to the sale of all or any part of the Mortgaged Property, save and except any and all leases, subleases or other agreements pursuant to which Mortgagor is granted a possessory interest in the Mortgaged Property. 1.25 Rents. All of Mortgagor's right, title and interest in and to all of the rents, royalties, issues, profits, revenue, income and other benefits of the Land and Improvements arising from the use or enjoyment of all or any portion thereof or from any present and future lease or agreement pertaining thereto, together with any Lease (including any sublease), occupancy agreement, Iicense or concession agreement pertaining thereto, all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of sale, lease, sublease., license, concession or other grant of the right of the possession, use or occupancy of all or any portion of the Land and/or Improvements, or Personalty located thereon, or rendering of services by Mortgagor and proceeds, if any, from business interruption or other loss of income insurance relating to the use, enjoyment or occupancy of the Lund and -tor -the Improvements, together with all Modifications of said leases, occupancy agreements, licenses, and concession agreements arising from the use or enjoyment of all or any portion of the Land and Improvements, or from all or any lease, together with any and all guaranties of the obligations of the lessees, occupants and licensees thereunder, whether now due, past due, or to become due, and including, without limitation, all prepaid rents and security deposits. 1.27 State. The state in which the Land is located. ARTICLE lI GRAIti F 2.1 Grant. To secure the full andd timely payment and performance of the Obligations, Mortgagor hereby mortgages, grants, bargains, sells, assigns, transfers, conveys and 7 LAU920625 CFN: 20140882865 BOOK 29444 PAGE a98 warrants for collateral purposes unto Mortgagee, and its successors, substitutes and f assigns, all right, title and interest of Mortgagor now owned or hereafter acquired in and to the Mortgaged Property, to have and to hold such Mortgaged Property and the rights and privileges hereby granted unto Mortgagee and its successors and assigns, and Mortgagor does hereby bind itself, its successors and assigns to warrant and forever defend for Mortgagee, its successors and assigns, the title to the Mortgaged Property, subject only to the Permitted Encumbrances, 2.2 Condition of Grant. In the event that (A) (i) all of the Obligations have been satisfied in full, and (ii) there are no pending claims in respect of which indemnity is claimed as part of the Obligations, or (I3) the property subject to any Liens hereunder is the subject of any disposition that is permitted under the Loan Agreement, Mortgagee shall promptly release or reconvey the applicable Liens created by this Mortgage, at the reasonable cost and expense of Mortgagor (subject, however, to the preferential payment provisions of Section 7,14 hereof), - - • -- _ _ _- ARTICLE III SE,CURfl Y AGREEMENT AND FIXTURE FILIR-G 3.1 Securitv Aereerner_t. With respect to all Personalty, Fixtures and other collateral f constituting a part of the Mortgaged Property, this Mortgage stall also constitute a "security agreement" within the meaning of, and shall create a security interest under, the Florida Uniform Conirner;;ial Code and any other applicable Uniform Commercial Code, and for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and for the purpose; of further securing payment and performance of the Obligations, Mortgagor hereby grains to Mortgagee a security interest and Lien in all rights, titles, and interests now owned or hereafter acquired by Mortgagor in all Personalty, Fixtures and other collateral constituting a part of the Mortgaged Property. Mortgagor represents and warrants that, as of the date hereof, except for any financing statement fled by Mortgagee or in connection with Permitted. Encumbrances, no presently effective financing statement covering Mortgagor's right, title or interest in the Personalty or Fixtures or any part thereof, has been filed with any filing officer, and no other security interest has attached or has been perfected in Mortgagor's right, title or interest in the Personalty or Fixtures or any part thereof, in each case, except as may be l permitted pursuant to the Loan Agreement. Mortgagor authorizes Mortgagee to file, and Mortgagor shall from time to time within ten (10) Business Days after request by Mortgagee, execute, acknowledge and deliver any financing statement, renewal, affidavit, 1' certificate, continuation statement or other document as Mortgagee may .reasonably request in order to evidence, perfect, preserve, continue, extend or maintain this security agreement and the security interest created hereby as a first priority Lien on the Personalty and Fixtures and other collateral, constituting a part of the Mortgaged Property, subject only to the Permitted Encumbrances. 3.2 Fixture l+ilirg. This Mortgage constitutes a fixture filing under Chapter 679 of the Florida Uniform Commercial Code and any other applicable Uniform Commercial Code, each as Modified and recodified From time to time, with respect to all Personalty and Fixtures. Mortgagee shall have all the rights vdth respect to the Personalty and Fixtures LA17920625 CFM 20140882865 BOOK 29444 PAGE 899 afforded to it by the applicable Uniform 'Commercial Code, in addition to, but not in lirrLitation of, the other rights afforded Mortgagee by the Loan Documents. A carbon, photographic or other reproduction of this Mortgage shall be sufficient- as a financing statement. Mortgagee shall have the right at any time to file a manually executed counterpart ora carbon, photographic or other reproduction of this Mortgage as a financing statement in either the central or local Uniform Commercial Code records of any jurisdiction wherein the Mortgaged Property is located, but the failure of Mortgagee to do so shall not impair (i) the effectiveness of this Mortgage as a fixture filing as permitted -by the applicable Uniform Commercial Code, or (ii) the validity and enforceability of this Mortgage it any respect whatsoever. The following information is included for purposes of rnccting the requirements of a financing statement: (a) The nacre of the Debtor . is: BAYSiDE N ARKETPLACE, LLC, a Delaware limited liability company, - (by".— - Tyrie mailing address of the Debtor is: 110 North Wacker Drive, Chicago, Illinois 60606. (c) 'The organizational identification number of the Debtor ia. 4604952 (d) The name of the Secured Party is: Deutsche Bank AG New York Branch, as administrative agent for the Lenders under that certain Loan Agreement executed by Mortgagor and dated as of the date hereof. (e) The address of the Secured Party is: 60 Wall Street, MS NYC 60-4216 New York, New York 10005. (f) :This financing statement covers all of Mortgagor's Personalty and Fixtures (whether now owned or hereafter acquired). The Personalty and Fixtures includes (i) goods which are or are to become Fixtures on the Land, (ii) nunerals or fine like (including, without limitation, oil and gas) located on the Land, (iii) the Personalty, and (iv) all proceeds and products of the Personalty and Fixtures. ARTICLE IV ASSfGNINIENT OF RENTS AND LEASES 4.1 Assignment of Rents. All of Mortgagor's right, title and interest in and to the Rents are hereby absolutely and irrevocably assigned to Mortgagee to be applied against the Obligations. Mortgagor hereby appoints Mortgagee its true and lawful attorney-in- fact, with the right, at Mortgagee's option at any time after the occurrence and during the continuance of an Event of Default, to demand, receive and enforce payment of, to give receipts, releases and satisfactions for, and to sue, either in Mortgagor's or Mortgagee's name for, all Rents. Notwithstanding the foregoing Assignment of Rents, so long as no Event of Default has occurred which remains uncured, Mortgagor may administer the Leases and collect, receive, take, use and enjoy such Rents, as they become due and payable but not more than one month in advance thereof, except for real estate taxes and other operating expenses estimated and collected from tenants in advance in accordance LA1392U525 t f . CFN' 20140882865 BOCK 29444 PAGE 900 with the Leases. The foregoing Assignment shall be fully operative without any further. action on the part of either party; and specifically Mortgagee shall be entitled at its option, upon the occurrence of an Event of Default hereunder and for so long as such Event of Default is continuing, to collect all Rents frorn the Mortgaged Property whether or not Mortgagee takes possession of the Mortgaged Property. In such ease, Mortgagor hereby authorizes and directs all lessees of the Mortgaged Property to deliver all Rents to Mortgagee. Upon the occurrence and during the continuance' of an Event of Default hereunder, following delivery of written notice from Mortgagee, the permission hereby given to Mortgagor to collect the Rents from the Mortgaged Property shalt terminate. The permission given by Mortgagee to Mortgagor shall be reinstated Arithout further action of either party upon the discontinuance of such Event of Default as confirmed by Mortgagee. 'this Assignment shall not be deemed or construed to constitute Mortgagee as mortgagee in possession nor obligate Mortgagee to take any action or to incur expense or perform or discharge any obligation, duty or liability. Exercise of any rights under this Section 4. l andjhe application of the Rents to the Obligations shall not cure -or waive any -- - Event of Default but shall be cumulative of all other rights and remedies of Mortgagee. Mortgagee shall not be required to give any credit against the Obligations for the Assignment of Rents until Rents are actually paid to Mortgagee. 4.2 Assientnent of Leases. Mortgagor hereby assigns to Mortgagee all right, title and interest of Mortgagor in and to all Leases, together with all security therefor and: all monies payable thereunder, subject, however, to the conditional permission given to Mortgagor above to administer the Leases and collect Rents due under any such Lease as provided in Section 4.1 above and exercise the rights of landlord thereunder. T'be foregoing Assignment of any Lease shall not be deemed to irnpose upon Mortgagee any of the obligations or duties of Mortgagor provided in any such Lease, and Mortgagor agrees to fully perform all obligations of the lessor under all such Leases in a commercially reasonable manner. Upon Mortgagee's request, Mortgagor shall deliver to any new lessee a notice of this Assignment in form satisfactory to Mortgagee in its sole discretion. Mortgagee may deliver such a notice to new lessees if Mortgagor fails to do so within a reasonable time after Mortgagee's request. From time to time, upon the reasonable request of Mortgagee, Mortgagor shall specifically assign to Mortgagee, by an Assignment in writing in form approved by Mortgagee, all right, title and interest of Mortgagor in and to any and all Leases, together with all security therefor and all monies payable thereunder, subject to the conditional permission given to Mortgagor above to collect and use Rents under any such Lease. Mortgagor shall from time to time within fifteen (15) days after request by Mortgagee, execute, acknowledge and deliver any instrument as Mortgagee may reasonably request to ftuther evidence the Assignment and transfer to Mortgagee of Mortgagor's interest in any Lease. 43 Effect of Assignments_ This instrument constitutes an absolute and present Assignment of the Rents, royalties, issues, profits, revenue, income and other benefits from the Mortgaged Property; subject, however, to, the conditional permission given to Mortgagor to collect, receive, take, use and enjoy the sarne as provided above; provided, further, that the existence or exercise of such right of Mortgagor shall not operate to subordinate this Assignment to any subsequent Assignment by Mortgagor, in whole or iii part, and any such subsequent Assignment by Mortgagor shall be subject to the rights of Mortgagee hereunder. The parties hereto acknowledge that Mortgagor and Mortgagee 10 LAU920625 cFN: 20140882865 BOOK 29444 PAGE 901 have also executed that certain Assignment of Leases and Rents of even date herewith (the `:ALR'') and that the rights of Mortgagee under this Assignment shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Mortgagee may determine in its sole discretion., to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Mortgagee under the ALR and as otherwise permitted by law, equity or contract or as set forth herein or in the other Loan Documents. 4A No Merger of Leasehold Estates. If both the lessor's and lessee's estate under any Lease, or any portion thereof, becornes vested at any time in one owner, this Mortgage and the Lien created hereby shall not be adversely affected by the application of the r. doctrine of merger unless Mortgagee so elects in writing by recording a written declaration so stating. ljszless and until Mortgagee so elects, Mortgagee and any lessor and lessee shall continue to have and enjoy all of the rights and privileges to the separate V. estates fn addition, upon.,.the foreclosure of the .Lien created by this Mortgage_ on -the _ __:. Nfo-rtgaged Property, any Leases them existing and affecting all or any portion of the Mortgaged Property shall not be destroyed or terminated by merger or by the foreclosure wiless Mortgagee. or any purchaser at the sale so elects. No act by or on behalf of Mortgagee or such purchaser shall constitute a termination of -any Lease unless tY :Mortgagee gives written notice thereof to the tenant or subtenant affected. : ARTICLE V COWNANTS OF MORTGAGOR 5. t Title to the Moivazed Prot ert , Mortgagor warrants that: (j) it has good and marketable fee simple title to the Mortgaged Property (other than the Land) that is owned by Mortgagor, and good and valid recorded leasehold interests under the Ground Leases, in each case subject only to the Permitted l ncLunbrances; (ii) it has full power and lawful authority to encumber the ivtor-tgaged Property in the manner and form herein set for'.h; (iii) it otvraa or will sawn all Improvements; (iv) this Mortgage creates a valid and .enforceable security title, security interest, and Lien on the Mortgaged .Property; and (v) ii it will preserve such title, and vNill forever warrant and defend the same to Mortgagee and will forever warrant and defend the validity and priority of the Lien hereof against the F clairns of all persons and parties whomsoever, 5.2. Maintenance of the Mortgaged Property_. Except as provided otherwise by the Loan Agreement, Mortgagor shall maintain the Mortgaged Property in good repair (normal wear and tear excepted). Mortgagor shall not, without the prior written consent of Mortgagee, threaten in writing, commit, permit, or suffer to occur any waste, demolition, or removal of the Mortgaged Property or any part thereof, except as permitted by the Loan Agreement. Mortgagor will not make or permit to be made any alterations or additions to the Mortgaged Property except in accordance with the Loan Agreement, 5.3 Insurance. Restoration. Mortgagor shall maintain insurance with respect to the Mortgaged Property in accordance with the requirements set forth in the Loan t LA\3924625 CFN; 20140882865 BOOK 29444 PAGE 942 Agreement. All pr6ceeds of insurance policies maintained hereunder shall be applied in accordance with the terms of the Loan Agreement. 5.4 Taxes and OthEr-Charges. Except as otherFise provided by the Loan Agreement, Mortgagor shall pay and discharge prior to the delinquency date thereof all taxes of every kind and nature, all water charges, sewer rents and asscssments, levies, permits, inspection and lieense fees, and all other charges imposed upon or assessed against the Mortgaged Property or any part thereof or upon the Revenues, Rents, issues, income, and profits of the Mortgagee! Property and Mortgagor shall exhibit to Mortgagee as contemplated under the Loan Agreement, evidence of such payments in accordance with , the terms of the Loan Agreement. Should Mortgagor default in the payment of any of the - foregoing taxes, assessments, water charges, sewer rents, or other charg.-s in accordance with the Loan Agreement and subject to the right to pursue a Good Faith Contest, Mortgagee may, but shall not be obligated to, pay the sante or any part thereof, and amounts soLRaid_shall be secured by this Mortgage, and Mortgagor shall, wirhin_t ve_(5) .. _ days after demand, reimburse Mortgagee for all amounts so paid. 5.5 Mechanics' and Other Liens. Except as otherwise provided by the Loan Agreement, Mortgagor sial! pay, from time to time when the same shall become due, all lawfV1 claims and demands of mechanics, materialmen, laborers, and others which, if unpaid, might result in, or permit the creation of, a Lien or claim 'of Lien on the Mortgaged Property or any part thereof and, in general, Mortgagor shall do, or cause to be done, at the cost of Mortgagor and without expense to Mortgagee, everything necessary to fully preserve the Lien of this Mortgage. lin the event Mortgagor fails to make payment of such claims and demands in accordance v6th the Loan Agreement and subject to the right to pursue a Good Faith Contest, Morfgagee may. but shall not be obligated to, make payment thereof, and all sums so expended shall be secured by this Mortgage, and Mortgagor shall, on demand, reimburse Mortgagee for all surzls so expended. 5.6 Condemnation Awards. In the event of a condemnation of all or a part of the Mortgaged Property, Mortgagor shall take such actions as may be required under the Loan Agreement. 5.7 Costs of Defen_d_in _and_Unholding the Lien. If any action or proceeding is comrmerced to which action or proceeding Mortgagee is made a party or in which it becomes necessary for Mortgagee to defend or uphold the Lien of this Mortgage, Mortgagor shall, on demand, in accordance with the terms of Section 10.14 of the Loan Agreement, reimburse Mortgagee for all reasonable expenses (including, without limitation, reasonably; attorneys' fees and appellate attorneys' fees) actually incurred by Mortgagee in any such action or proceeding and all such expenses shall be secured by this Mortgage. l-n 5.8 Additional Disbursements and CureRi llts. Subject to the terms of the Loan ! Agreement, Mortgagor shall pay when due all payments and charges on ali mortgages, security agreements, Liens, reciprocal casement agreements, encumbrances, ground and other Leases, and security interests which may be or become superior or inferior to the Lien of this Mortgage, Mortgagee shall have the right, but shall not be obligated, to pay, 12 GFN: 20' 40882855 BOOK 29444 PAGE 903 without notice to Mortgagor, such payments and charges, and Mortgagor shall, within live (5) days after demand, reimburse Mortgagee for amounts so paid. In addition, upon default of Mortgagor in the performance of any other terms, covenants; conditions, or obligations by it to be performed under any such prior or subordinate Lien, encumbrance, reciprocal casement agreement, Lease, or security interest, Mortgagee shall have thy:' right, but shall not be obligated, to cure such default in the name and on behalf of Mortgagor. All sums advanced and expenses incurred at any time by Mortgagee pursuant to this Section 5.8 or as otherwise provided under the terms and provisions of this Mortgage or under applicable law shall bear interest from the date that such sum is advanced or expense incurred, to and including the date of reimbursement, computed at the Default Rate, I 5.9 Costs of Enforcement. Mortgagor agrees to bear and pay all actual out-of-pocket, third -party expenses (including reasonable attorneys' fees and all costs of collection) of l nr incidental -: i_o the perfection and enforcement --of any provision hereofs - or -the - enforcement, compromise., or settlement of this Mortgage or the Obligations, and for the curing thereof, or for defending or asserting the rights and claims of Mortgagee in respect = thwreof, by litigation or otherwise, in each case in accordance with the terms of Section x 10.14 of the Loan Agreement. All rights and remedies of Mortgagee -'shall be cumulative { and may be exercised singly or concurrently. Nomithstanding anything herein contained to the contrary, Mortgagor: (a) shall not (i) at any time insist upon, or plead, or in any msurrer whatsoever claim or tape any benefit or advantage of any stay or extension or moratorium law, any exemption from execution or sale of the Mortgaged Property or any part thereof; wherever enacted, now or at any time hereafter in force, which may affect ` the covenants and terms of performance of this Mortgage, nor (ii) claim, take, or insist upon any benefit or advantage of any law now or hereafter in force providing for the valuation or appraisal of the Mortgaged Property, or any part thereof, prior to any sale or sales thereof which may be made pursuant to any provision herein, or pursuant to the decree, judgment, or order of any court of competent Jurisdiction, nor (iii) after any such sale or sales, claim or exercise any right under any statute heretofore or hereafter enacted to redeem the property so sold or any part thereof, (b) hereby expressly waives all benefit or advantage of any such law or laws; and (c) covenants not to hinder, delay, or impede the execution of any power herein granted or delegated to Mortgagee, but to suffer and ' permit the execution of every power as though no such law or laws had been made or enacted. Mortgagor., for itself and all who may claim under it, waives, to the extent that it - lawfully may, all right to have the Mortgaged Property marshaled upon any foreclosure hereof. 5.10 Due on Sale. Mortgagor acknowledges that Mortgagee and the Lenders have relied to a material extent upon the particular business reputation, expertise, creditworthiness, and individual net worth of Mortgagor and all of the other. Persons who i have a direct oz indirect interest in Mortgagor and upon the continuing interest which 3: such Persons, as owners of direct or indirect interests in Mortgagor, will have in the ' Mortgaged Property. Except as otherv+,;ise expressly provided in the Loan Agreement, an Event of Default shall occur hereunder, and Mortgagee shall have the right, in its sole t option, to declare the principal and interest under the Loan and all sums provided herein immediately due and payable if, without the prior written consent of Mortgagee, which CEN_ 20140882855 BOOK 29444 RkGE 404 may be given or withheld in Mortgagee's sole and absolute discretion, a Transfer of the Mortgaged Property occurs in violation of Section 5.2.12 of the Loan Agreement. 5.11 Security Deposits. To the extent required by law or, after an Event of Default has occurred and during its continuance, if required by Mortgagee, all security deposits of tenants of the Mortgaged Property shall be treated as trust funds not to be commingled wvith any other funds of Mortgagor. Within twenty (20) days alter request by Mortgagee, Mortgagor shall furnish satisfactory evidence of compliance with this Section S.I I-, as necessary, together with a statement of all security deposits deposited by the tenants and copies of all. Leases not theretofore delivered to Mortgagee, certified by Mortgagor. ARTICLE VI DEFAULT Tli ticciiircrtce of an "Event of Default" under krtick- V111 of the Loam Agreement shall constitute an Event of Default hereunder. ARTICLE VII REMEDIES T1 Rcmedics� If an Event of Default shall occur and be continuing, Mortgagee may, in its sole and absolute discretion (but subject to the rights of the Required Lenders as set forth in the LoanAgreement), exercise one or more or all of the following remedies: - 7.1.1 Acceleration. Declare the unpaid portion of the Obligations to be inuraediately due and payable, without further notice or demand (each of which, including- without limitation, notice of intent to accelcratc and notice; of acceleration, hereby is expressly waived by Mortgagor), whereupon the same shall become _ immediately due and payable, r 7. (.2 Operation of Mort armed Pro ert . Subject to the terms and conditions of the Ground leases, hold, lease, operate or othemdse use or permit the use of the Mortgaged ;:property, or any portion thereof, in such manner, for such time and upon such terms as Mortgagee may €leena to be in its best interest (maki:ag such repairs; and performing such alterations, additions and improvements thereto pursuant to the terms of Leases, in each case from time to thee, as Mortgagee shall deem necessary or desirable) and collect and retain all earnings, Reacts, profits or other amounts payable in connection therewith. 7, 1.3 Judicial Proceedings. Institute proceedings for the complete or partial foreclosure of this Mortgage or take such steps to protect and enforce its rights whether by action, suit or proceeding in equity or at law for the specific perforrnarzcc of any covenant, condition or agreement in the Loan Agreement, the Notes or in this Mortgage (without being required to foreclose this Mortgage), or in aid of the execution of any power herein granted, or for any foreclosure hereunder, or for the enforcement of any other appropriate legal or equitable remedy or otherwise as Mortgagee shall elect. 14 t,A\392.0625 i_{ CFV: 20140882865 BOOK 29444 PA,GE 905 7.1.4 Sale of Mortgaged Property. Cause the Mortgaged Property, and all estate, right, title, interest, claim and demand therein, or any part thereof to be sold as follows: (a) Mortgagee may proceed as if all of the Mortgaged Property were real property, in accordance with subparagraph (d) below, or Mortgagee may elect to treat any of the Mortgaged Property which consists of a right in action or which is property that can be sevefed from the premises without causing structural damage thereto as if the same were personal property, and dispose of the same in accordance with subparagraph (c) below, separate and apart from the sale of real property, with. the remainder of the Mortgaged Property being treated as real property at the sale. (b) may Mortgagee m cause any such sale or other disposition, through power of C, .-sale or othen�,ise, to be conducted irnmediately following the expiration of— a . ny grace period, if any, herein provided (or required by Jaw) or Mortgagee may delay any such sale or other disposition for such period of time as Mortgagee deems to be in its best intQres(, Should Mortgagee desire that more than one sale or other disposition be conducted, Mortgagee may, at its option, cause the snare to be conducted simultaneously, or successively on the same day, or at such different days or times and in such order as Mortgagee may deem to be in its best interest (c) Should Mortgagee elect to cause any of the Mortgaged Property to be disposed of as personal property as permitted by subparagraph (a) above, it may dispose of any part thereof i -i any mariner now or hereafter pennitted by Chapter 679 of the Florida UCC or in accordance with any, other remedy provided lay law, Both Mortgagor and Mortgagee shall be eligible to purchase any part or all of such property at any such disposition. Any, such disposition may be� either public or private as Nfort-agee may so elect, subject to the pro -visions of the UCC of the state where the Mortgaged Property is located. Mortgagee shall give Mortgagor at least ten (10) days prior v.Titten notice of the time and pla4x of any public sale or other disposition of such property or of the tirne at or after which any private sale or any other intended disposition is to be made, and if such notice is sent to Mortgagor it shall constitute reasonable notice to Mortgagor. (d) In the event of a sale or other disposition of any such Mortgaged Property or any part thereof, and the execution of a deed or other conveyance V pursuant thereto, the recitals in the diced oI r deeds of facts (such as of a L default, the giving of notice of default and notice of sale, demand that such sale should be made, postponement of sale, terms of sale, sale, purchaser, payment of purchase money, and any other fact affecting the regularity or validity of such sale or disposition) shall be conclusive proof of the truth i. of such facts; and any such deed or conveyance shall be conclusive against A persons as to such facts recited therein, and the following additional is LM3920625 P: 4 i. GFN: 20140882865 BOOK 29444 PAGE 906 provisions will apply (and, in the event of a conflict between this Section 7.1 4�d) and the other provisions of this Mortgage, this Section 7.1.4(d) shall prevail); (1) Any sale of any personal property hereunder shall be conducted in any manner permitted by Section 679.601 of the Florida UCC as .in effect from time to time, (2) NVIthout limiting the generality of the foregoing, Mortgagee may, in its sole and absolute discretion and without regard to the adequacy of its security, elect to proceed against any or all of the real property, personal property and fixtures in any manner permitted under Section 679.604(1) of the Flarida UCC. 7.1.5 Receiver. Mortgagee shall be entitled, as a matter of strict right, 4vithQut'no: ticeanei ex pa te, acid without regard to the value or occupancy of the security, or the solvency of Mortgagor or any Guarantor, or the adequacy of the..Mortgaged Property as security for the Obligations, to have a receiver appointed to enter upon and _ take possession of the Mortgaged Property, collect the Rents and profits therefrom and apply the same as the court may direct, such .receiver to have all the rights anal powers permitted under the laws of the jurisdiction in which the Mortgaged. Property is located. Nlortgigi'r hereby waives any requirements on the receiver or Mortgagee to past any _ surety or other bond. Mortgagee or the receiver may also tarn possession of and fbr these purposes use, any and all Personalty which is a part of the Mortgaged Property mid used by Mortgagor in the rental or leasing thereof, or any part_thu roof. '.rhe expense (including, without limitation, the receiver's fees, counsel fees, costs and, Mortgagee's compensation) incurred pursuant to the powers herein contained shall be secured by this Mortgage.. Mortgagee shy (after payment of all costs and expenses incur -red) apply such i Rents, issues and profits received by it on the Obligations in the order set forth in Section 7.7 hereof. The right to enter and take possession of the Mortgaged Property, to manage and operate the same, and to collect the Renta, issues and profits thereof, whether by receiver or otherwise, shall be cumulative to any othQr right or remedy hereunder or afforded by law, and may be exercised concurrently therewith or independently thereof: ±. Mortgagee shall be liable to account only for such Rents, issues and profits actually received by Mortgagee, 7.1.6 Additional Rights and Remedies. With or without notice, and without releasing Mortgagor from the Obligations, and without becoming a mortgagee in possession, Mortgagee shall have the right to cry any breach or default of Mortgagor and, in connection therewith, to enter upon the Mortgaged Property and to do such acts and: things as Mortgagee deems necessary or desirable to protect the security hereof including, but without limitation, to appear in and defend any action or proceedings purporting to affect the security hereof or the rights or powers of Mortgagee hereunder; to r; pay, purchase, contest or compromise any encumbrance, charge, Lien or claim of Lien which, in the judgment of Mortgagee, is prior or superior hereto, the judgment of Mortgagee being conclusive as between the parties hereto; to obtain insurance; to pay any t premiums or chargers rAdth respect to insurance required to be carried under the Loan Agreement; and to employ counsel, accountants, contactors and other appropriate 16 r,AU920623 CFN: 20140882805 BOOK 29444 PAGE 907 persons to assist thein, in each case, to the extent permitted pursuant to the Loan Agreement. 7.1.7 Mortgagee as Purchaser. Mortgagee shall have the right to becomo the purchaser at any sale or foreclosure proceeding in respect of the Mortgaged Property held by the Mortgagee or by any court, receiver or public officer, and Mortgagor and each of the Secured Parties, by their acceptance of the benefits of this Mortgage, agree that Mortgagee shall have the right to credit upon the amount of the bid made therefor, the amount of any or all of the Obligations payable to it out of the net proceeds of such sale or foreclosure proceeding in respect of the Mortgaged Property, including without limitation, sales occurring pursuant to Section 363 of the Bankruptcy Code or included as part of any plan subject to confirmation ' under Section 1129(b)(2•)(A)(iii) of the Bankruptcy Code. Upon any such purchase, Mortgagee shall acquire good title to the ' Mortgaged Property so purchased, free from the Lien of this Mortgage and free of all rilirts of.redernLation, if any, in 141ortgagor. Recitals contained in any conveyance made._.:-..<. to any purchaser at any wile made hereunder shall presumptively establish the truth and accuracy of the matters therein stated, including, without limiting the generality of the foregoing, nonpayment of the unpaid principal sum of, and the interest accrued on, the Obligations after the same have become due and payable, advertiseiil(nt and conduct of such sale in the manner provided herein or appointment of any successor Mortgagee hereunder; and Mortgagor does hereby ratify and confirm any -and all acts that said Mortgagee or its successors may lawfully do in the premises by virtue of the terms and - conditions of this instrument. 7-1-5 Recent to Purchaser. Upon any sale: whether made under the power of sale herein wgranted and conferred or by virtue of judicial proceedings, the receipt of the Mortgagee, or of the officer making sale under judicial proceedings, shall be sufficient discharge to the purchaser or purchasers at any sale for his or their purchase money, and such purchaser or purchasers, his or their assigns or personal representatives, shall not, after paying such purchase money and receiving such receipt of the Mortgagee or of such officer therefor, be obliged to see to the application of such purchase money, or be in anywise answerable for any loss, misapplication or nonapplication thereof. 7.1,9 Effect of Sa€e% Any sale or sales of tl?e Mortgaged Property by virtue of judicial proceedings, Shall operate to divest all right, title, interest, claim, and demand whatsoever either at law or in equity, of Mortgagor of, in, and to the premises and the property sold, and shall be a perpetual bar, both at law and in equity, against Mortgagor's successors, and against any and all persons claiming or who shall thereafter claim all or any of the property sold from, through or under Mortgagor, or Mortgagor's successors or assigns; nevertheless, Mortgagor, if requested by the Mortgagee so to do, shall join in the execution and delivery of all proper conveyances, assignments and transfers of the properties so sold. 7.1.10 Remedies Under UCC. Upon the occurrence of an Event of Default, subject to the terms of the Ground Leases and the rights of Tenants pursuant to Leases, Mortgagee may exercise its rights of enforcement, if they cart be exercised without a breach of the peace, with respect to the Personalty andror the Fixtures under the applicable provisions of the Florida Uniform Commercial Code, andior under other 17 LA13920625 GFN: 20140882865 E300K 29444 PAGE 808 applicable State law, and in conjunction with, in addition to or in substitution for those rights and remedies: (a) Mortgagee may enter upon Mortgagor's premises to take possession Of, assemble and collect the Personalty and/or Fixtures and any and all books related to the Mortgaged Property; and (b) Mortgagee may require Mortgagor to assemble the Personalty and/or Fixtures and snake the same available at a place lwlortgagec designates which is mutually convenient to allow .Mortgagee to take possession or dispose of the Personalty and/or Fixtures; and (c) Written notice mailed to Mortgagor as provided herein at- least test (10) days prior to the date; of public sale of lite Personalty andlur Fixtures or prior to the date after which private sale of thio Personalty and/or Fixtures will be male shall constitute reasonable notice; and (d) Any sale made pursuant to the provisions of this Subsection shall be deemed to have been a public sale conducted -in.- a commercially reasonable manner contemporaneously with and upon the same notice as required for the, sale of the Mortgaged Property under power of sale as provided in Section 7.1.4 of this Mortgage,, and (c) In the event of a foreclosure sale, whether made sander the terms hereof, or under judgment of a court, the: Mortgaged Property may, at the option of N-Iortgagee, be sola as a whole; and (f) It shall not be necessary that Mortgagee take possession of the Personalty and/or Futures or any part t<•aereof prior to the time that any sale pursuant to the provisions of this section is conducted and it shall not be necessary that the Personalty and.,'or Fixtures or any part thereof be present at the location of such sale; and (gt Prior to application of proceeds of disposition of the. Personalty and/or Fixtures to the Obligations, such proceeds shall be applied to the expc=s of retaking, holding, preparing fir sale or lease, selling, leasing and the like and the reasonable attorneys' fees and legal expenses incurred by Mortgagee; and (h) Any and all statements of fact or other recitals made in arty bill of sale or assignment or other instrument evidencing any foreclosure sale hereunder as to nonpayment of the Obligations or as to the occurrence of any Event of DefaWt. or as Mortgagee having declared all of such Obligations to be due and payable, or as to notice of time, place and terms of sale of the. Mortgaged Property to be sold haling been duly provided by Mortgagee, shall be taken as prima facie evidence of the truth of the facts so stated and recited.; and 18 L §t 920hzs C`N' 20140882695 BOOK 29444 PAGE 909 (i) Mortgagee may appoint or delegate any one or more persons to perform any act or acts necessary or incident to any sale held by Mortgagee, including the sending of notices and the conduct of the --sale, but in the name and on behalf of Mortgagee. 7.1.11 Enty on and operationof l'raperty by Mortgagee. Upon the occutTence and during the continuance of an Event of Default and in addition to all other rights herein conferred on the Mortgagee, subject to terms and conditions of the Grortnd Leases, the rights of tenants and third parties under any Lease or reciprocal easement agreement, Mortgagee (or any Person designated by Mortgagee) shall have the right and power, but shall not be obligated, to enter upon and tape possession of any of the Mortgaged Property, and of all books, records, and accounts relating thereto and to exclude Mortgagor, and Mortgagor's servants, wholly therefrom, and to hold, lease, operate, use, administer, manage; and operate the same to the extent that Mortgagor shall beat the_tienc_entitled and -in its place and stead for -.such tune, and upon. such.terms.as_.. Mortgagee may deem to be in its best interest (braking such repairs, and performing such alterations, additions and improvements thereto pursuant to the terms of Leases, in each case from time to time, as Moiigagec shall deem necessary or desirable) and collect and retain all earnings, Rents, profits, or other amounts payable in connecti-on therewith. The Mortgagee, or any person, farm or corporation designated by the Mortgaged, may operate the same without any liability to :Mortgagor in connection with such operations, except to use ordinary care in the operation of said properties, and the Mortgagee or any person, firm or corporation designated by it, shall have the right to collect receive and receipt for f all Rents from the Mortgaged Property, to make repairs, purchase machinery and equipment, and to exercise every power, right and privilege of Mortgagor witlr respect to - the Mortgaged Property. All actual out-of-pocket, third -party costs, expenses and liabilities of every character incurred by the Mortgagee in managing, operating, maintaining, protecting or preserving the Mortgaged Property, respectively, shall, in accordance Mvith the terms or Section 10.14 of the Loan Agreement, constitute a demand Clbliyatican owing by Mortgagor to Mortgagee and shat] bear interest from the date of expenditure until paid at the same rate as is provided in the Loan Agreement for interest 4, on past due principal, all of which shall constitute a portion of the Obligations acid shall be secured by this Mortgage and by any other instrument securing the obligations. If necessary tc obtaki the possession provided for above, the Mortgagee, as the case may. be, may invoke any and all remedies to dispossess Mortgagor including specifically one or more actions for forcible entry and detainer, trespass to try title and restitution. When and if the Obligations have been paid, the Mortgaged Property shall, if there has been no sale or foreclosure, be returned to Mortgagor. 7.1,12 Change in Laws. If any statute novo applicable in any state in i which any of the Mortgaged Property is now located provides, or shall hereafter be amended to provide, a different procedure for the sale of real property under a power of sale in a Mortgage or mortgage, Mortgagee may, in its sole discretion, if same be is permitted by applicable law, follow the sale procedure set fords in this Article VII or that prescribed in such statute, as amended. VIE €.:a\3920625 CFM 20140882865 BOOK 29444 PAGE 910 a. 7.1.13 Other. Exercise any other remedy, specifically granted under this Mortgage, the other Security Documents or the Guaranties, or now or hereafter existing' in equity, at law, by virtue of statute or otherwise, including the rights described below. 7.2 Separate Sales. Any real estate or any interest or estate therein sold pursuant to any writ of execution issued on a judgment obtained by virtue of the Loan Agreement, r the Notes, this Mortgage or the other Security Documents, or pursuant to any other judicial roceedin s under this Mortgage, or pursuant to the owner of sale ranted herein j F g gam, F F g �.. may be sold in one parcel, as an entirety or in such parcels, and in such manner or order f as Mortgagee, hi its sole discretion, may elect. !` 7.3 Remedies Cumulative and Concurrent. The rights and remediesof Mortgagee as provided in the Lean Agreement, the Notes, this Mortgage, the Guaranties and in the other Security Documents shall be cumulative and concurrent and may be pursued separately: successively of together against Mortgagor or any Guarantor or against other, -.-- -. Obligors or against the Mortgaged Property, or any one or more of them, at the sole discretion of il,lortgagee, and may be exercised as often as occasion therefor shall arise. The failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof, nor shall the choice of one remedy be deemed an election of remedies to the exclusion of other remedies. 7.4 No Cure or Waiver. Neither Mortgagee's nor any receiver's entry upon and taking possession of all or any part of the Mortgaged Property nor any collection of Rents, issues, profits, insurance proceeds, Awards or damages, other security or proceeds of other security, or other sums, nor the application of any collected sum to any Obligations, near rhe exercise of any other right or remedy by Mortgagee or any receiver shall impair the status of the security, or cure or waive any default or notice of Default under this Mortgage, or nullify the effect of any notice of Default or sale (unless all Obligations which are then due have been paid and performed and Mortgagor has cured all other Defaults), or prejudice Mortgagee in the exercise of any right or remedy, or be construed as an affirmation by Mortgagee of any tenancy, lease or option or a subordination of the Lien of this Mortgage. 7.5 Payment of Costs. Ex ises and Attorney's Fees. Mortgagor agrees to pay to Mortgagee immediately and without demand, in accordance with the terms of Section 10.14 of the roan Agreement, all actual out-of-pocket, third -party costs and expenses incurred by Mortgagee in exercising the remedies under this Mortgage, the Loan Agreement, the Notes and the other Security Documents, including but without a limitation, court costs and reasonable attorneys' fees expended or incurred by Mortgagee in any arbitrations, judicial reference, legal action or otherwise in connection with the protection, preservation or enforcement of any rights or remedies of Mortgagee, including the protection of the Mortgaged Property. All such costs and expenses shall accrue interest at the Default Rate from the date of expenditure until said sums have been 'r paid. l 7.6 Waiver of Redemption,_Notice, Marshalling, Etc. Mortgagor hereby waives and releases (a) all benefit that might accrue to Mortgagor by virtue of any present or future avrw exempting the Mortgaged Property, or any part of the proceeds arising from any sale 20 LAI3920625 OW 20140882866 BOOK 229444 PAGE 911 thcreof, from attachment, Juvy or sale an execution, or providing for any post -foreclosure redemption or extension of time for payment, (b) unless specifically required by the express terms hereof or of the other Loan. Documents or by la -,v; - all notices of Mortgagor's default or of Mortgagee's election to exercise, or Mortgagee's actual exercise, of any option or remedy under the Loan Agreement, the Notes, the Guaranties or the other Security Documents; (c) any right to have the Liens against the Mortgaged Propert;+ or any other collateral in which iv>(ortgagee holds an interest as security for the Obligations marshaled; and (d) the right to plead or assert any statute of limitations as a defense or bar to the enforcement of the Loan Agreement, the Notes, the Guaranties or the other Security Documents. 7.7 Application of. Proceeds. The proceeds of any sale of all or any portion of the Mortgaged Property and the amounts generated by any holding, leasing, operation or other use of the Mortgaged Property shall, to the fullest extent allowed by law, be applied - - by in accordance with the Loan Agreement_ 7.8 Strict Performance. Any failure by Mortgagee to insist upon strict performance by Mortgagor of any of the terms and previsions of any Loan Document shall not be deemed to be a waiver of any of the terms or provisions of the any such Loan Document or any other Loan Document, and Mortgagee shall have the rigbi thereafter to insist upon strict performance by Mortgagor. 79 No Conditions Precedent to Exercise of Remedies. Neither Mortgagor nor any other Person now or hereafter obligated .for payment of all or any part of the Obligations (including any Guarantor) shall be relieved of such Obligations by reason of the fail -Lire of Mortgagee to comply with any request of Mortgagor or any Guarantor or of any other Person so obligated to take action to foreclose on this Mortgage or otherwise enforce any provisions of the Loan Documents, or by reason of the release, regardless of consideration, of all or any part of the security held for the Obligations, or by reason of any agreement or stipulation between any subsequent owner of the Mortgaged property and Mortgagee extending the time of payment or Modifying the terms of the Loan Docurnerts without first hr vino obtained the consent of Mortgagor, any Guarantor or such other Person; and hi the latter ei ent Mortgagor, any Guarantor, and all such other Persons shall continue to be liable to make payment according to the terms of any such extension or modification agreement, unl6ss expressly released and discharged in writing by Mortgagee. 7.10 Release of Collaferal. Mortgagee may release, regardless of consideration, any part of the security held for the Obligations without, as to the remainder of the security, in any way impairing or affecting the Liens of the Security Documents or their priority over any subordinate Lien. Without affecting the liability of Mortgagor or any Guarantor, or any other Pei -son (except any person expressly released in writing), for payment of any Obligations (including the Obligations), and without affecting the rights of Mortgagee with respect to any security not expressly released in writing, Mortgagee may at any tiz-ne and from time to time, either before or after maturity of the Obligations, and without notice or consent, do any or all of the following: (a) release any person liable for payment or performance of all or any part of the Obligations; (b) make any agreement extending the time or otherwise altering terms of payment of all or any part of the L1 LAZ920625 CFN7 20/40882865 BOOK 29444 PAGE 812 Obligations, or modifying or waiving any Obligation, or subordinating, modifying or otherwise dealing withtheLien or charge hereof; (c) exercise or refrain from exercising or waive any right Mortgagee may have; (d) accept additional security of any kind; and 1 (e) release or otherwise deal with any property, real or personal, securing the Obligations, including all or any part of the Mortgaged Property. 7.11 Other Collateral. For payment of the Obligations, Mortgagee may resort to any other security therefor held by Mortgagee in such order and manner as -Mortgagee may elect. 7.12 Discontinuance of Proceedings. in the event Mortgagee shall have proceeded to enforce any right under the Loan Agree: x ent, the Notes, the Guaranties or the other Security Documents and such proceedings shall have been discontinued or abandoned for any reason, then in every such case Mortgagor, any Guarantor and. Mortgagee shall be restored to their former positions and the rights, reinedics and powers of Mortgagee. shall ._ continue as if no such proceedings had been taken. 7,13 release of Lip or Personalty. Without affecting the liability of any persona (other than any person released pursuant to the provisions of this section) for payment of j. any Obligations secured hereby, and without affecting or impairing in any way the priority or extent of the Liens of the Security Documents upon any property not q specifically released pursuant hereto, Mortgagee may at any time and from time to time _ (a) release any person liable for payment of any Obligations secured hereby; (b) extend the time or agree to alter the terms of payment of any of the Obligations; (c) accept additional securiiy of any kind; (d) release any property securing. the Obligations, or (e) consent to the creation of any easement on or over the Mortgaged Property or any covenants restricting the use or occupancy ihercof. 7.14 Reinstatement. If the Mortgagee is required to pay, return or restore to Mortgagor or any Guarantor or any other Person any amounts previously received. by Mortgagee under the Loun Documents because of (i) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding -up or relief of Mortgagor, any other Loan Party, or any of their respective affiliates, or any general assignment for the benefit of creditors, composition, marshalling of assets for creditors or other, similar arrangement in: t• respect of its creditors generally or any substantial portion of its creditors; in each case, as f` undertaken under any U.S. Federal or state law, or (ii) any stop notice or any other z reason, the obligations .of Mortgagor shall be reinstated and revived and the rights of the Mortgagee shall continue with regard to such amounts, all as though they had never been ` paid. ARTICLE VM STATE -SPECIFIC PROVISIONS Section 8.1 Principles of Construction. In the event of any inconsistencies between the terms and conditions of this Article VIII and the other terms and conditions of this Mortgage, the terms and conditions of this Article VIII shall control and be binding. ON LAt392€ 625 GFN: 2€ 140882885 E300K 29444 PAGE 913 Section 8.2 Debt and Qbl.iLmtions Secured, Mortgagor is granting this Mcartgage to secure payment of the Debt and performance of all Mortgagor's obligations under the Loan Agreement, the Note, this Mortgage and all of the other Loan Documents. Section 8.3 Maturity Date. The maturity date of the Debt secured Hereby is January 1, 2018, Section 8.4 Future, Advances, This Mortgage is git=en to secure not only the existing obligations, but also such future advances, whether such advances are obligatory or are to be made at the option of Agent, or otherwise, as are made within twenty (20) ycars fzozn the date hereof, to the same extent as if sueh future advances were tirade on the date of the execution hereof. The total amount of Debt -that may be so secured by this Mortgage may be increased or decreased from time to time, but the total unpaid balance so secured at any one time shall not exceed Two Hundred I fifty Million Dollars ($250.000,000.00), plus interest thereon, and any disbursements made under_1his......�1 " Mortgage for the payment of impositions, taxes, assessments, levies, insurance, or othterwse with interest on such disbursements at the rate set forth in the Loan Agreement, Note or the other Loan Documents, plus any incmascs in the, principal balance as the result of negative amortization or deferred interest, if any. It is agreed -chat any additional sum or stuns advanced by Lenders pursuant to the terms hereof shall be equally secured with, and have the same priority as, the original Debt and Shall be subject to all of the terms, provisions and conditions of this Mortgage, whether or trot such additional loans or advances are evidenced by other promissory notes or other guaranties of Mortgagor and whutl;er or not identified by a recital that it or they aru secured ficieby. It is further agreed that any additio W promissory note or guaranty or promissory notes or guaranties executed and delivered pursuant to this paragraph shall automatically be deerned to be iT,cluded in the term "bore" wherever it appears in the context of this Mortgage, -tortgagor waives and agrees not to assert any right to limit fugue advances under this Mortgage, and any such attempted limitation shall be null, void and of no force and effect. If (a) pursuant to Florida Statutes Section 697.04, Mortgagor files a notice specifying the dollar limit beyond which future advances made pursuant to this Mortgage shall not be secured by this Mortgage (which Morwgagor shall, within one day of filing such notice, aotify Agent and its counsel of such filing by certified retail), (b) Mortgagor executes tory instnanent which purports to have or would have the effect of impairing the priority of or limiting any fixture advance which aright ever be Heade under this Mortgage; or (iii) Mortgagor takes, suffers, or permits any action or occurrence which would adversely affect the priority of any fixture advance which might ever be made under this .mortgage, the same shall constitute an immediate Event of Default under the Loan Documents, Section 8.5 Statutory Assignment of Rents. The assignments of Leases and Rents contaired in this Mortgage are intended to provide Mortgagee with all the rights and remedies of mortgagees pursuant to Section 697.07 of the Florida .Statutes (hereinafter "Section 697.07"), as it may be amended from time to time. However, in no event will this reference diminish, alter, impair, or affect any other rights and remedies of )ilortgagee, including but mat limited to; the appointment of a receivef as provide herein, nor will any provision in this Section, diminish, alter, impair or affect any rights or powers, of the receiver in lave or equity or as set forth herein. In addition, this assignment 23 LM92c62i CFN: 20140882865 BOOK 29,444 PAGE 914 will be fully operative without regard to value of the Mortgaged Property or without regard to the adequacy of the Mortgaged Property to serve as security for the Obligations owed by Mortgagor to Mortgagee, and will be in addition to any rights arising under Section 697.07. Further, except for the notices required hereunder, if any, Mortgagor waives any notice of default or demand for turnover of Rents by Mortgagee, together with any rights under Section 697.07 to apply to a court to deposit the Rents into the registry of the -court or such other depository as the court may designate. ARTICLE 1X MISCELLANEOUS 9.1 1Fart'ier Assurances. Mortgagor, upon the reasonable written request of, Nortgagee, will execute, acknowledge and deliver, or arrange for the execution, acIcnowlcdg_mcut and Jelivery of, such further instrvrnents (including, without limitation,.. financiag statements, estoppel certificates (in accordance herewith and with the. Loran , Agureement) and declarations of no set-off, attomment agreements and acknowledgments of the Assignment) and do such further acts as may be reasonably necessary, desirable or proper to carry out more effectively the purpose of the Security Doduflients, to facilitate the Assignment or transfer of the Notes and the other Lean Documents, and to subject to the Liens of the Security Documents any property intended by the terms thereof to be ` covered thereby, and any additions, Modifications or betterments thereto. Upon any failure of Mortgagor to execute and deliver such instruments, certificates and other _ documents on or before fifteen (15) days after receipt of written request therefor (or as s otherwise provided herein andlor in the Loan Agreement), Mortdagcc may make, execute and record any and all such instruments and certificates and \Mortgagor irrevocably appoints Mortgagee the attorney-in-fact of Mortgagor to do so. 9.2 Recordin _ snd Filing. Mortgagor, at Mortgagor's expense, shall cause the Mortgage, all supplements thereto and any financing statements at all tithes to be recorded and filed and re-recorded and re -filed in such manner and in such places as Mortgagee shall request, and will be obligated to pay all such recording, ding, re- recording and re -filing taxes, fees and other charges. 9.3 Notice. Any notice, approval, demand, statement, request or consent (a "Notice") made hereunder shat: be made and delivered in accordaDee with Section 10.6 of the Loan Agreement. — 9.4 Iylor a ez's Dight to Perform the Obligations.` Upon the occurrence and during the continuance of an Event of Default, if Mortgagor shall fail to snake any payment or perforce any act required to be perfonricd by Mortgagor under this Mortgage, then, at any time thereafter, without notice to or demand upon Mortgagor (except for such notices from Mortgagee that are expressly contemplated by this Mortgage in such instance) and without waiving or releasing any Obligation or Default, Mortgagee may make such payment or perform such act for the account of and at the expense of Mortgagor, and shall have the right to enter the Mortgaged Property for such purpose and to take all such action thereon and with respect to the Mortgaged Property as may be necessary or appropriate for such purpose. All sums so paid by Mortgagee, and all costs, and 24 , L?.x39�b625 . e ... ... _. ... ', :..,.:::. - _. _.... ....:' -+.^��:. _..4-i�:�a.:'.T^'.S•1LC,++'+:.qa: rd ...�..,. :_�+ ... ... ..,... _. i*..._.,.-�_�'�r:�.c�:�L'.0.'.SCA73'!"sy'�'' Y. CFN: 20140882866 BOOK 29444 PAGE 915 expenses, including, without limitation, reasonable attorneys' fees and expenses so incurred, in each case in accordance with the terms of Section 10.14 of the Loan Agreement, together with interest thereon at the Default Rate, from the date of payment, constitute additions to the Obligations secured by this Mortgage, and shall be paid by F Mortgagor to Mortgagee, on domand, in accordance with the tears of Section 10.14 of the Loan Agreement. If, upon the occurrence and during the continuance of an Event of Default, Mortgagee shall elect to pay any Imposition as a result of Murtgagor's faflure to pay the same in accordance with the Loan Agreement, Mortgagee may do,so in reliance on any bill, statement or assessment procured from the appropriate public office, without inquiring into the accuracy thereof or into the validity of such Imposition. Mortgagor shall, in accordance with the terms of Section 10.14 of the Loan Agreement, indemnify Mortgagee for all losses and expenses, including reasonable attorneys' fees, incurred by reason of any acts performed by Mortgagee pursuant to the provisions of this Section 9.4 (provided, that such indemnity shall not extend to losses or expenses to the extent caused by-thiz. gross ..-negligence, had faith or wrill,(ul misconduct of, or breach -of the Loarr- Documents by Mortgagee, in each case, as determined by a final, non -appealable judgment of a court of competent jurisdiction), and any funds expended by Mortgagee to which it shall be entitled to be indemnified, together with interest thereon at the Default Rate from the date of such expenditures, shall constitute additions to the Obligations and shall be secured by this Mortgage and shall be paid by Mortgagor to Mortgaaltu upon demand, in accordance with The terms of Section 10.14 of the Loan Agreement. 9.5 Covenants Kt�q ziin,- with the Land. All covenants contained in this Mortgage smell run with ffe. Mortgaged Property until the Liens and security interest created hereby are released by Mortgagee, 9.6 Severability. Wherever possible., each provision of this M_ ortga2e shall be interpreted in such manner as to be efffective and valid under applicable law, but if any provision of tHs Mortgage shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, witbw invalidating the remainder of such provision or the. remaining provisions of this Mortgage. 9.7 Modification. This Mortgage and the terms herein may not be changed, waived, discharged or terminated orally, but only by an instrument or instruments in writing signed by the party against which enforcement of the change, waiver, discharge or termination is asserted and in accordance with Section 10.4 of the Loan Agreement. 9.9 -Non-Assumable. The Loan evidenced by the Notes andscGured by, among other things, this Mortgage, is personal to Mortgagor, and the Lenders ma& such Loan to Mortgagor based upon, the credit of the Mortgagor and the Guarantors and Mortgagee's judgment of the ability of Mortgagor to repay the entire Obligations and therefore, except as otherwise expressly provided in. the Loan Agreement, this Mortgage may not be assumed by any subsequent holder of an interest in the Mortgaged Property without Mortgagee's prior written consent, which may be withheld in Mortgagee's sole and absolute discretion. 25 LAU92062S 2: CM 201408132865 BOOK 29444 PAIGE 916 9.9 Tao: on Obligations or Mortza sre. In the event of the passage, rafter the date of this t Mortgage, of any law deducting from the value of land for the purposes of taxation, any Lien thereon, or imposing upon Mortgagee the obligation to pay the whole, or any part,. of the: taxes or assessments or charges or Liens herein required to be paid by _mortgagor, or changing in any way the laws relating to the taxation of mortgages or debts as to affect this Mortgage or the Obligations (other than general taxes on. Lender's income), the entire unpaid balance of the Obligations shall, at the option of Mortgagee, after one hundred and twenty (120) days %iitten notice to Mortgagor, become due and payable without prepayment fee or premium; provided, however, that if, in the opinion of Mortgagee's counsel, it shall be lawful for Mortgagor to pay such taxes, assessments, or charges or to reimburse Mortgagee therefor, then there shall be no such acceleration of the time for payment of the unpaid balance of the Obligations if mutually satisfactory agreement for reimbursement, in writing, is executed by Mortgagor and delivered to Mortgagee ix thin the aforesaid period. Mortgagee and Mortgagor each hereby covenant to negotiate si:ch agr-eement:::im:goad faith, 9.1(1 Survival of Warranties and Covenants. The warranties, representations, covenants and agreements set forth in this Mortgage shall -survive the foreclosure of this Mortgage, any transfer of the Mortgaged Property, and as otherwise provided in Section 10,11 of the Loan Agreement and Section 7.14 of this Mortgage. 9.11 No Representaiiors by Mortgagee. By accepting or approving anything required to be observed, performed or fulfilled or to be given to Mortgagee pursuant to this Mortgage, including (but not limited to) any officer's certificate, survey, appraisal or insurance policy, Mortgagee shall not be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term provision or condition thereof, and such acceptance or approval thereof shall not be or constitute any warranty or representation with respect thereto by Mortgagee. 9.12 Reconvevance. Upon (x) written. request to Mortgagee by Mortgagor statipg that the conditions set, forth in Section 2.8.1 of the Loan Agreement have been satisfied in full and (y) payment of Mortgagee's fees as required by the Loan Agreement, Mortgagee shall reconvey or assign, without warranty, the Mortgaged Property then held hereunder (subject, however, to the preferential payment provisions of Section 7.14 hereof). The recitals in any such assignment or monveyance of any Matters or facts shall be conclusive proof of the ma?ters set forth therein. The grantee or assignee, as applicable, in such reconveyance or ass bgmdnt, as applicable, may he described as "the person or persons legally :retitled thereto." if such request under Section 2.8.1 is riot made, Mortgagee shall, upon payment in full of all Obligations secured hereby, satisfy this Mortgage of record. 9.13 pleadings. '17he Article and/or Section headings in tiiis Mortgage are included herein for convenience of reference only and shall not constitute a part of this Mortgage for any other purpose.. 9.14 Extensions of Prior Liens. If any or all of the proceeds of the /dotes have been used to pay any indebtedness heretofore existing against the Mortgaged Property, then, to the extent of such funds so used, Mortgagee shall be subrogated to all of the rights, 26 1,M3920625 CFN: 2Q140582865 BOOK 29444 PAGE 917 claims, Liens, titles and interests heretofore existing against Mortgaged Property to secure the indebtedness so paid and the former rights, claims, Liens, titles and interests, if any, are not waived but rather shall continue in full force and effect in favor of Mortgagee as cumulative security for the repayment and the satisfactions of the Obligations regardless of whether said Liens or debts are acquired by Mortgagee by assignment or are released by the holder thereof upon payment, 9.15 Relationship Between Parties. Nothing contained in the Notes, this -Mortgage or the other Security Documents shall he construed as creating a joint venture or partnership between Mortgagee and Mortgagor, and Mortgagee. shall have no right of control or supervision over Mortgagor except as Mortgagee may exercise its rights and remedies under this Mortgage and the other Security Documents. Mortgagor fizrthtr disclaims any fiduciary or quasi -fiduciary relationship between it or any of its members and Mortgagee. 9.16 APPLICABLE LAW, THIS MORTGAGE WAS AQMPTFU ...BY IaO TGAG E (AND LENDERS) IN THE STATE OF IVEW YORK, AND THE PROCEEDS OF THE NOTES DELIVERED PURSUANT TO TT"'IE LOAN A.GRI:F:MENT Vv£ERE DIS8URSED FROM THE STATE OF NEW YORK, WHICH STATE MORTGAGOR AND, BY ACCEPTING THIS MORTGAGE. MORTGAGEE (AND EACH OF THE LENDERS), AGREE HAS A SI. BSTA-'TIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY", AND IN ALL RIaSPECTS, N{.LUDINU, wriHOUT LM41TING TME GENERALITY OF THE FOREGOING, (MATTERS OF CONSTRUCTIONi, VALIDITY AND PERFORr��IANCE, THIS MORTGAGE AND THE OBLIGATIONS ARTSINCT FIFJI F11\DER SHALL BE GC —VT.R-IED BY, AND C;OI''SIRUED I?�I ACCORDANCE FA'I'TH, THE LAMS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STA.TF (WITHOUT REGARD TO CONFLICT OF LAWS PRiNCIPLI.S THEREOF" TIJAT WOULD RESULT IN THI', APPLICATION OF ANY LAW 01TIER. THAN THE LAW OF THE STATE OF NEW YORK) AND ANY APPLICABLE LAW OF THE UNITED STATES OF ANIER.ICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERIIECTION, AND ENFORCEMENT OF THE LIENS ANI) SECURITY INTERESTS CREATED PURSUANT HERETO WITH RESPECT TO THE MOR`I'GAGFI) PROPERTY SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE STA'rE, IN WHICH THE MORTGAGED PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMIT -FED BY 'I HE LAW OF SUCH STATE; TIDE LAIN OF THE STATE OF NEW YORK SHALL OTHFRWISE GOVERN THE CONSTRUCTION, VAI,lD.II Y AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER TO THE FULLEST EXTENT PERMITTED BY LAW, MORTGAGOR AND, BY ACCEPTING THIS MORTGAGE, MORTGAGEE (.AND EACH OF THE LENDERS), HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE AlN'Y CLAIM TO ASSERT THAT THE LAW OF ANY OTHER .IURISDICTION GOVERNS THIS MORTGAGE, AND THIS MORTGAGE SHALL BE COVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAMS OF THE STATE OF NEW YORK EXCEPT AS EXPRESSLY PROVIDED ABOVE, 27 LNU92Dn25 CEN: 20140882865 BOOK 29444 PAGE 918 9.17 RESERVED 9.18 WAIVER OF JURY TRIAL. MORTGAGOR AND, BY ACCEPTING THIS - MORTGAGE, MORTGAGEE (RIND EACH OF THE LENDERS), HEREBY WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTITER LOAN DOCUMENTS OR ANY DFALJNGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THE LOAN TRANSACTION OR THE MORTGAGOR/MORTGAGEE RELATIONSHIP THAT IS BEING f STABLISI-tED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, NCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. MORTGAGOR AND, BY ACCEPTINQ--TIjIS MORTGAGE, MORTGAGEEE. (-AND EACH OF THE --LENDERS) ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTFRING INTO '1JrIS MORTGAGE, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS, MORTGAGOR AND, BY ACCEPTING THIS MORTGAGE, MORTGAGEE (AND EACH OF THE LENDERS) FUR'THER WARRANT AND REPRESENT, THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAI' IT KNOWINGLY AND VOLUNTARILY WAIVE ITS JUICY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER CIRALLY OR IN WRI'T'ING {OTHER THAN BY A 'A'UTUA.L WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 9.18 AND EXECUTED BY THE PARTIES HERETO, AND T1IIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOAN. IN THE EVENT OF LITIGATION, THIS MORTGAGE MAY BE FILED AS A %'R1TTEN CONSENT TO A "I'RTAI. BY THE COURT, 9.19 NO ORAL AGREEMENTS. TRIS MORTGAGE AND THE OTHER LOAD f}O uiviE_NTS REPRESI-N'T TIIE FINAL AGREEitifENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PAR"TERS, THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 9.20 Limitation on Liabili . This Mortgage is subject to the limitations on liability, if any, set forth: in the Loan Agreement. 9.21 Request for Notices. 'Nlortgagor hereby requests that a copy of any notice of Default or notice o= sale as may be required by lave be delivered to Mbrtgagar in the manner and at the address set forth in Section 10.6 of the Loan Agreement. 28 W372D625 CFN: 20140532365 BOOK 29444 PAGE 919 [Signatures on Next. Page] 29 LAL192062i CPN: 20140882855 BOOK 29444 PAGE 920 IN WITLESS WHE-REOF, this Mortgage has been executed by Mortgagor as of the day and year first above written_ �'ibtessest (Si�aaturB} I'riated. Name: CAIUDl t, � tics lnatu€e) Printed Fume: '56-r i STATE OF ILLL'NOIS ) SS: COUN'I'i OF COOK � MORTG,kGOR; BAYSIDE WtRICETP LACE, LLC, a Delaware litinited liability company Name: Iv a J. Levi tie Title: 1~xe uIi se Vice President and Chief Legal Officer The fc7regaing instrument was ac - wledg�ed before e this day of }V L�GII by e,itt ,Esq. as _ � _ 2 ?G of Bayside Marketplace, LLC, _ �.. a Dtlaware litnited liability company; and (b) signed a� delivered this document as his or her act and deed on behalf of said limited liability company - Print Na€S'I1-. Notary c, Stattof Commission No: My Commission Expire [Notarial Seal] [seal] OFFEGIAI SEAOL" FtflTaRY i'�JBL4C, STATE 0Fi! lIN4t5 hY GOFfi€4ifSSlON E3CRikif✓S 2125120117 Signature Rage to Leasehold Mortgage, Assignment of Leases and Rents, Securhy Agreement, and Future ,Fling - Bayside Alarketplace CFN: 20140882865 BOOK 29444 PAGE 921 t EXHIBIT A LEGAL DESCRIPTION PROPERTY A; Leasehold interest pursuant to that certain Amended and Restated Lease Agreement dated as of October 15, 1985 between the City of Miami ("City") and Bayside Center Limited Partnership ("Bayside"), as evidenced by that certain Memorandum of Lease recorded Qctober 29, 1985 in Of--icial Records gook 12864, Page 157; as affected by that certain Resolution. No, 84-7.24 adopted by City on June 28, 1984 (wish attached Major Special Use Permit), as amended by First .Amendment to Amended and Restated Lease Agreement dated August 19, 1986; as amended by - Certiftcate of Vinal-Completion dated November 24, 1987; as amended by Sean d m'e' c ent--. to Amended and Restated Lease Agreement dated November 24, 1987 and evidenced by Memorandum of Modification of Lease recorded December 1, 1987 in Official Record Boob 13492, Page 3199; as amended by Agreement dated July 19, 1988 and recorded October 6, 1988 in Official Record Book 13849, Page 907, as amended by Agreement dated December 8, 1997, recorded January 12, 1998 in Official Record Book 17939, Page 1026 and by" Second Amendment to Tri -Party Agreement recorded February 20, 2004 in Official Record Book 22060, Page 2591; as affected by Letter dated September 30, 1988 from Bayside to City regarding exercise of option to construct improvements and occupy proposed light tower; as amended by Third Amendment to Amended and Restated Lease Agreement dated April I5, 1993; as affected by the Minority Participation Agreement dated January 14, 1985, as amended by First Amendment to Minority Participation Agreement dated October 17, 1985 and by Second Amendment to Minority Participation Agreement dated September 24, 2014; as affected by Miamarina Agreement dated October 24, 1985; as amended by Letter dated August 1, 2003 from Bayside to City; as amended by Letter dated September 4, 2003 from Bayside to City; as amended by Letter dated September 5, 2003 from Bayside to City; as amended by Letter dated November 12, 2003 from Bayside to City; as amended by Letter dated September 28, 2004 hom Bayside to City; as affected by the CertiBcate of Merger recorded in Official Records Book 26660, Page 2392; as amended by Estoppel Certificate from City dated November 26, 2008; as amended by Release and Settlement Agreement dated December 30, 2048; as amended by Fourth Amendment executed September 24, 2014; evidenced by Memorandum of Modification of Lease (Retail Parcel) recorded in Official Records Book 29408, Page 2929, of the Public Records of Miami -Dade County, Florida; as amended by Letter dated October 29, 2014 from Bayside Marketplace, LLC to City (with attached Letter dated October 28, 2014 from the Florida Department of Environmental Protection); as amended by Estoppel Certificate from City dated November 18, 2014, demising the following described parcel of land: RETAIL PARCEL: Commence at the Northeast corner of Block 61 North of the A.L. KN`O'WITON MAP OF N-11AMI, as recorded in Plat Book "B" at Page 41, of the Public Records of Miami -Dade County, Florida, thence run North 891158'18" East along the Easterly prolongation of the Northerly lis -ie of Block 61 North of said A.L. KNOWLTON \IAP OF MIAMI for a distance of 703.43 feet to a point; thence run South 00°08'11" West for a distance of 100.00 feet to a point of intersection with the South line of Port Boulevard as recorded in Official Records Book 681.1, at Page 240, of A-1 !,AM20625 { CFN: 20140882865 BOOK 29444 PAGE 922 the Public Records of Miami -Dade County, Florida; said point being the Point of Beginning of the parcel hereinafter described; thence run South 00°08'11 " West for a distance of 181.09 feet to a point; thence run South 89°51'49" East for a distance of 23.53 feet to a paint; thence run South 00'08'11°' West for a distance of 4 1.5 0 feet to a point; thence run North 89°51'49" West for a distance of 23.83 feet to a point; thence rain South 00'08'11" West for a distance of 174.50 feet to a point; thence run South 89°51'49" East for a distance of 23.83 feet to a point; thence run South 00"08'11" West for a distance of 41.50 feet to a point; thence run North 89`51'49" Rest for a distance of 179.58 feet to a point; thence run South 00"08'11 " West for a distance of 25.00 feet to a point; thence ran North 89°51'49" West for a distance of 157.27 feet to a point of intersection with a line 210 feet Easterly of and parallel with the City Monument line of Biscayne Boulevard (North); thence run South 16°51'29" East along a line parallel with the City Monurnent line for a distance of 57.78 -feet to a point; thence continue a[orng_a lane 210 feet Easterly of and -parallel. _. with the City Iblo mment line South 09°33'21" East -far a distance of 139.74 feet to a point; i thence run South 89°51'49" East for a distance of 140.96 feet to a point; thence run South 56°58'03' East for a distance of 604.49 feet to a point; thence run South 65°50'46" East for a distance of 470.52 feet more or less to a point of intersection with Line West line of the Baywalk i Area as described in the Warranty Deed dated July d6, 1985, and filed July 31, 1985, tinder Clerk's File No. 85R-231126 of the Public Records of Nfiami-Dade County, Florida; thence run r �ortli 27'13" 14" East along the West line of said Baywalk Area for a distance of 148.28 feet to a �. point designated PL -14 in said Warranty Deed, said point bears South 57'16'29" West and is 77.25 feet distance from a U.S. Army Corp of Engineers Station BPP -1, said Station being a chiscied "x" in a concrete bulkhead; thence run South 85°27'43" East along the North line of said B ayw4 dk Area for a distance of 49.24 feet more or less to a point of intersection with a Zine 65.00 feet Northwesterly of the Metropolitan Dade County Bulkhead line as recorded in Plat Book 74, at Page 18; of the Public Records of Miami-Dadc County, Florida; thence run North 27°17'27" { East along, said line parallel wi-_t the Metropolitan Dade County Bulkhead line for a distance of 714.32 feet to a point of intersection with the existing bulkhead of the Miamarina; thence run North 40'20'40" Voest along said existing bulkhead for a distance of 185.10 feet to a point of intersection in the existing bulkhead; thence run South 27°12'22" West for a distance of 549.00 g feet to a point of intersection in the existing bulkhead; thence run North 85'17'38" West along, . t said bulkhead for a distance of 58.54 feet to a point of intersection in the existing bulkhead; a thence run South 49°23'58" West along said bulkhead for a distance of 86.76 feet to a point of intersection in the existing bulkhead; thence run South 04°417'46" West along said bulkhead for a l distance of 35.53 feet to a paint of intersection in the existing: bulkhead; thence run South F_ 27°05'27" West along said bulkhead for a distance of 21.57 feet to a point of intersection in the 1 ; existing bulkbead; thence nm North 85'48'03" West along said bul'-�liead for a distance of 26.87 feet to a point of intersection in the existing bulkhead; thence run North 6550'46" West along; said bulkhead for a distance of 61.23 feet to a point; thence run North 24°09'14" East for a distance of 52.25 feet to a point; thence run North 65°50'46" West for a distance of 60.00 feet to a point; thence runt South 24009114" West for a distance of 52.25 feet to a point of intersection with the existing bulkhead; thence run North 65'50'46" West along said bulkhead for a distance of 156.00 feet to a point; thence run North 24'09'14" East for a distance of 52.25 feet to a point; thence run North 65°50'46" West for a distance of 60.00 feet to a point; thence run South 24°09'14" West for a distance of 52.25 feet to a point of intersection with the existing bulkhead; thence run North 65°50'46' Wcst along said bulkhead for a distance of 49.00 feet to a point of curvature of a curve concave to the Northeast having a radius of 139.39 feet; thence A2 L.A13920625 i CFN: 2014088286-5 BOOK 29494 PAGE 923 Northwesterly and Northerly along said curve through a central angle of 65'58'57' for an are distance of 160.52 feet to a point of tangency; thence continue along said existing bulkhead North 00°08'11" East for a distance of 179.08 feet to a point; thence run South 89'51'49" East for a distance of 5225 feet to a point; thence run North 00'08'11" East for a distance of 60.00 feet to a point; thence nin Porth 89'51'49" West for a distance of 52.25 feet to a point of intersection NA-ith the existing bulkhead; thence n:n North 00'08'11" East along said bulkhead for a distance of 156.00 feet to a point; thence run South 89'51'49" East for a distance of 52.25 feet to a point; thence run North 00'08' [ 1" East for a distance of 60.00 feet to a point; thence run North 89*5F49" West for a distance of 52.25 feet to a point of intersection with the existing bulkhead; thence run North 00'08'11" East along the said bulkhead and its Northerly projection for a distance of 176,38 feet to a point of intersection with.the South line of said Port Boulevard; thence run South.89°54'18" West along; the South line of.said Part Boulevard for ,iLdistance_of.__ 275.42 feet ri re or less to the Paint of Beginning, Intertionally deleted. ( PARCI-L 11 (Area "A-4")) Intentionally deleted, (PARCEL 111(Area "A-5")) "Together with all easements and easement rights for the benefit of the leased land, as created by the Retail Lease, for the purposes -as stated therein, over and across the land as stated therein, including (i) Lie non-exclusive easement ("Developer Utility Easement") to, install, maintain:, repair and replace utility pilings created under Section 2.3b(i), of the Retail Lease; (ii) the non- exclusive easement ("Develope, Vehicular Access Easement") over the existing roadway shown on Sheets 5 and 6 of the Stwvey (as defined in Schedule B), created under Section 2.3(b) (ii) of the Retail Lease; (iii) the non-exclusive easement to install and maintain footings and undcrg;round supports along the boundaries of the Leased Proporty, (as defined in the Retail Lease), extending; noy more than siN inches under and into the Park Site (as defined in the Retail Lease) created under Section 2.3 (b) (v) of the Retail Lease; (iv)_the non-exclusive easement to enter into portions of the Park Site adjacent to the Leased Premises for the purpose of performing maintenance and repairs to the Improvements, created under Section 2.3 (b) (vi) of the Retail Lease; (v) [tie non-exclusive easement for construction, installation, use and maintenance over existing pedestrian bridges between the Leased Property and "Bayfront Park", created under Section 2.3 (b) (vii) of the Retail Lease; (vi) the non-exclusive easement for construction, installation, use and maintenance over existing; pedestrian hridges between the Leased Property and the adjacent parking garage, as shown on Sheet 6 of the Survey, created under Section 2.3 (b) (ix) of the Retail Lease; (vii) the non-exclusive right to use portions of the park site and unobstructed pedestrian access to and from the leased property, created under Section 2.3 (b) (iii) of the Retail Lease; (viii) the non -)exclusive right to use portions of the park property subject to conditions for staging promotional events, created under Section 2.3 (b) (iv) of the Rctail Lease;. (Lx) the non-exclusive tight and easement for pedestrian access between FEC tract and Leased Property, created under Section 2.3 (b) (viii); and (x) the non-exc[usive right and easement allowing non-obstructed access to the leased land over the park site and garage parcel, created under Section 22 (d) of the Retail Lease. Together with all easements and easement rights for the benefit of the leased land as created by that certain Agreement between Metropolitan Dads: County, City of Miami and Bayside Center A-3 E,MM0G25 } CFN: 20140882865 BOOK 29444 PAGE 924 Limited Partnership (Tri -Party Agreement), for the purposes as stated therein, over and across �= the land as stated therein, recorded in Official Record book 13849, page 907 of the Public Records of Miami -Dade County, Florida; as amended by Agreement (first Amendment), recorded in Official Record Book 17939, page 1026 of the Public Records of Miami -Dade County, Florida; and as further amended by Second Amendment, recorded, in. Official Record Book 22060, paLgc 2591, of the Public Records of Miami -Dade County, Florida. i- PROPERTY I3: Leasehold interest pursuant to that certain Lease Agreement dated as, of January 14, 1935,- " between the City of Miami and Bayside Center Limited Partnership; as affected by that certain 1 Resolution No. 54-724 adapted by the City of Miami on ,lune 28, 1984 (with attached Magor Special Use Permit); as amended by First Amendment to Agreement ofLease dated October 17, 1985; as evidenced by Nfemorandurn of Lease recorded November 4-,--l-985 and recorded in Official Record Book 12690, Page 159; as amended by Second Amendment to Bayside Parking; - Garage Lease Agreement dated September 13, 1988; as affected by Memorandum of Modification of Lease recorded October 6, 1985 in Official Record Bock 13849, Page I004; as amended by Agreement elated July 19, 1985 and recorded October 6, 1988 in Official Record book 13849, Page 907, as amended by Agreement dated December 8, 1997 and recorded January 12, 1998 in Official Record Book 17939, Page 1026 and by Second Amendment to Tri -Party � Agreement recorded February 20, 2004 in Official Record Book 22060, Page 2591; as amended by Third Amendment to Bayside Parking Garage Lease dated April 15, 1993; as affected by the Minority Participation Agreement dated January 14, 1985, as amended by First Amendment to Minority Participation Agreement dated October 17, 1985 and by Second Amendment to Minority Participation Agreement dated September 24, 2014; as affected by Miamarina Agreement dated October 24, 1985; as amended. by Leiter dated. August 1, 2003 from Bayside to City; as amended by letter dated. September 4, =003 from Bayside to City; as amended by better dated September 5, 2003 from Bayside to City; as amended by Letter dated November 12, 2003 from Bayside to City; as amended by Letter dated September 28, 2004 from Bayside to City; as affected by the Certificate of Merger recorded in Official Records Book 26660, Page 2392, of the Public Records of Miami -Daae County, Florida; as amended by Estoppel Certificate from. r City dated November 26, 2008; as amended by release and Settlement Agreement dated December 30, 2008; as amended by Fourth Amendment executed September 24, 2014, z evidenced by Memorandum of Modification of Lease (Garage Parcel) recorded in Official Records Book 29408, Paige 2922, of the Public Records of Miami -Dade County, Florida; as E, amended by Estoppel Certificate from City dated November 18, 2014, demising the following described parcel of land: Garage Parcel: Commence at the Northeast corner of Block 61 North of the A.L. KNOWLTON MAP OF R IAMI, as recorded in Plat Book "B" at Page 41, of the Public Records of Miami -Dade County, Florida; thence run North. 89°58'18" East along the Easterly prolongation of the Northerly line of Block 61 North of said A.L. KNOWLTON MAP OF MIAMI for a distance of 703.43 feet to a AA GFN: 20140882865 BOOK 29444 PAGE 925 point; thence run South 00'08'11" West for a distance of I00.00 feet to a point of intersection with the South fine of Port Boulevard as recorded in Official Records Book 6811, at Page 240, of the Public Records of lvliami-Bade County, Florida; said point being the Point of Beginning of the parcel hereinafter described; thence run South 00'08'11" West for a distance of 181.09 feet to a point; thence run South 89°51`49" East for a distance of 23.83 feet to a point; thence run South 00'08'11 " West for a distance of 41.50 feet to a point; thence run North 89°51'49" West for a distance of 23.83 feet to a point; thence run South 00'08'11 " West for a distance of 174.50 feet to a point; thence run South 89°51'49" East for a distance of 23.83 feet to a point; thence run South 00'08'11" West for a dist.utce of 41.50 feel to a point; thence run North 89°51'49" West for a distance of 179.58 feet to a point; thence run South 00'08'11" West for a distance of 25.00 feet to a point; thence run North 89°51'49" West for a distance of 15 7.27 feet to a point of intersection with a line 210.. feet Easterly of.and parallel with the City -Monument line of BiscayneB.oulevard�.-... {North); thence run7Niorth 16°51'29" 'Vest along said lime parallel with the City Monument lire for a distance of 338.56.feet to a point; thence run North 12°5737" West for a distance of 7.35 feet to a paint of intersection with the South line of said Port Boulevard; thence rune North 39"01' 19" East along the South line of said PortBoulevard for a distance rrf 65.42 feet to a point of curvature of a curve concave to the South having a radius of 218 feet; thence Northeasterly and Easterly along said curve through a central angle of 50°56'59" for an are distance of 193.85 feet to a point of tangency; thence continue along the South line of said Port Boulevard forth 89°50' 18" Fast for a distance, of 203.50 feet to the Point of Beginning. Area. "B": Commence at th,, Northeast comer of Black 61 North of the A.L. KNOWLTON ;-LAP OF IvUA- ll, as recorded in -Plat Book "B" at Page 41, of the Public Records of Miami -Dade County, Florida; thence run North 89°58'18" Last along the Easterly prolongation of the Northerly line of .Block 61 North of said A.L. l{.NOV4'LTON MAP OF MIAMI for a distance of 184.07 feet to the Point of Beginning of the parcel hereinafter described; thence ruin South 24'2629" East for a distance of 254.19 feet to a point of intersection with the South line of Port Boulevard as recorded ir. Official. Records Book 6811, at Page 240, of the Public Records of Miami -Dade County, Florida; thence run North 39"01'19`° East along the South lire of said Port Boulevard for a distance of 65.42 feet to a point of curvature of a curve concave to the South having a radius of 218 feet; thence nm Northeasterly and Easterly along said curve through a central angle of 50°56'59" for an arc dis=co of 193.85 feet to a point of tangency; thence run :Forth 89'58'18" Fast along the South line of said Port Boulevard for a distance of 835.90 feet, more or less, to a point of intersection with the U.S. Harbor Line of 1930 as shown ori the plat of METROPOLITAN DADE COUNTY BULKHEAD LINE as recorded in Plat Book 74, at Page 3, of the Public Records of Miarni-Dade County, Florida; thence run North 00° 15'53 " East along the said U.S. Harbor Line for a distance of 100.00 feet to a point of intersection with the Easterly prolongation of the Northerly line of Block 61 North of said AL. KNOWLTON MAP OF MIAN C; thence run South 89°58' 18" West for a distance of 1151.98 feet, more or less, to the Point of Beginning. TOOETFIER 'WITH: A-5 t.A0920625 GFN: 20140882865 BOOK 29444 PAGE 926 Corntnence at the Northeast corner of Block 61 North of the A.L, KNOWLTON MAP OF MIAMI, as recorded in Plat Book "B" at Page 41, of the Public Records of Miami -Dade County, Florida; thence run North 89°58`18" East along the Easterly prolongation of the Northerly line of Block 61 North of said A.L. K-NOWUPON NDV OF IvUAMI for a distazice of 580.48 feet to the Point of Beginning of the parcel hereinafter described; thence run North 70°59'50" West for a. distance of 256.09 feet to a point in the Northerly line of the "New fort Boulevard Bridge" right- of-way, as recorded in Official Records Book 13849, at Page 1026, of the Public Records of Miami -Dade County, Florida; thence nui North 81°55'43" East for a distance of 65.91 feet to a point in the said Northerly right-of-way line of the "New Port Boulevard Bridge"; thence run l South 70°59'50" East for a distance of 227.00 feet to the point of curvature of a circular curve'to die left; thence ran Southeasterly to Easterly along the arc of said circular curve to the left, having -4 radiul.Uf-342.27 feet: -through a central angle.of 19'0 052", for an.arc distance of..1_I3.69 -- - feet to a point of tangency (cusp) with the Northerly right-of-way line of Port Boulevard as recorded in Official Records Book 6811, at Page 240, of the Public Records of Miami -Dade County, Florida; thence run South 89°58'18" Nest for a distance of 149.37 feet, more or less to the Point of Beginning; AND Commence at the Point of Beginning of the -last described parcel; thence run North 70°59'50" West for a distance of 491.58 feet to a point in the said Northerly right-of-way line of the "INcty fort Boulevard Bridge" and the Point of Beginning of the parcel hereinafter described; thence continue North 70°59'50" West for a distance of 4.38 feet to the point of curvature of a ch,cu€ar curve to the left; thence nLn Northwesterly along the are of said circular cwa vc, to the left, havine a radius of 476.31 feet, tluough a central angle of 0'13'07% -for an are disUince of 1.82 feet to a point; thence run North 24'26`29" West for a distance of 8.41 feet to a point of intersection with a line 170 feet North of and parallel with the Easterly prolongation of the Northerly line of Block 61 North of said A.L_ KNOWLTON MAP OF 1VIIAh3I; thence run North 89''58'18" East along the last described line for a distance of 5.49 feet to a point of intersection with the Northerly right-of-way line of the said "New Port Boulevard Bridge"; thence run South 21°43'16" East along the said Northerly right-of-way line of the "New Port Boulevard Bridge" for a distance of 10.44 feet to the Point of Beginning. LESS the following described Air Rights within the last two above described parcels, said Air Righ s beginning at an elevation 23 feet above the top of rail of Florida East Coast Railv�,ay company's Spur Tract No. 1,81 serving the Dodge Island Seaport and going skyward. 'Together with all easements and easement rights for the benefit of the Lased Land, as created by the Garage Lease, for the purposes as stated therein, over and across the land as stated therein, including (i) the non-exclusive easement ("Developer Utility Easement") to, install, maintain, repair and replace utility pilings created under Section 2.3b (i), of the Garage Lease; (ii) the non- exclusive easement ("Developer Vehicular Access Easement") over the existing roadway shown on Sheets 5 and 6 of the Survey created under Section 2-3(b) (ii) of the Garage Lease; (iii) the non-exclusive easement to install and maintain footings and underground supports along the E boundaries of the Leased Property (as defined in the Garage Lease), extending not more than six inches under and into the Park Site (as defined in the Garage Lease) created under Section 2.3 (b) (iv) of the Garage Lease; (iv) the non-exclusive easement to enter into portions of the Park Site adjacent to the Leased Premises for the purpose of performing maintenance and repairs to the Parking Garage and Area B Surface ,Lot, created under Section 2.3 (b) (v) of the Garage Lease; (v) the non-exclusive right to use portions of the park site and unobstructed pedestrian access to A-6 = LAi3920675 CFN: 20140832865 BOOK 29444 PAGE 927 s: and from the leased property, created under Section 2.3 (b) (iii) of the Garage Lease; (vi) the non-exclusive right and easement between the Retail Parcel and the Leased Property for the construction, installation use and maintenance of pedestrian bridges at locations shown on the construction Plans or at such other locations as the City Manager may approve from time to time, the cost of which to be split equally between the developer and the Lessee _under the Retail Ground Lease, created under Section 13 (b) (vi) of the Garage Lease per Section 1.4 of First Amendment; and (vii) the non-exclusive right and easement allo«;inc, non-obstructed access to the leased land over the park site and garage parcel, created under Section 2,2 (d) of the Garage Lease. -_ Together with all casements and easement rights for the benefit of the leased land as created by that certain Al reexnent between Metropolitan Dade County, City of N iami and Bay§ide.,Center ;. I Limited Paririersfiip (Tri -Party Agreement)', for tl:e purposes as stated therein, over and across the land as stated therein, recorded in Official Record book 13849, page 407 of the Public` Records of Nfiami-Dade County, Florida, as amended by Agreement (First Amendment), recorded in 4051cial Record Rook 17939, page 1026 of 6c Public Records of Miami -Dade County, Florida, and as further amended by Second Amendment, recorded in Official Record 5 Book 22060, page 2-591 of the Public Records of Munni -Dade County, Florida. i A-7 LAl3920625 CFN: 20140882865 BOOK 29444 PAGE 928 SCHEDULEI GROUi1rD LEASES 1. Retail Lease That certain Arnendcd and Restated Lease Agreement dated as of October 15, 1985 between the City of Miami ("City") and Bayside Center Limited Partnership ("Bayside"), as _ evidenced by that certain Memorandum of Lease recorded October 29, 1985 in Official Records Book 12864, Page 157; as affected by that certain Resolution No. 84-724 adopted by City on June 28, 1984 (with attached M<jor Special Use Permit); as amender) by First Amendment to Amended and Restated Lease Agreement dated August. l 9, 1986; as amended by Certific to of - Final Completian dated November 24,1987; as ameridcd by Second Amendment to Amended and Restated Lease: Agreement dated November 24, 1987 and evidenced by Memorandum of _ Modification of Lease recorded December 1, 1987 in Official Record Book 13492, Page 3199; as amended by Agreement dated July 19, 1988 and recorded October 6, 1988 in Official Record Book 13849, Page 907, as amended by Agreement dated December 8, 1997, recorded January 12, 1998 in Official Record Book 17939, Page 1026 and by Second Amendment to Tri -Party Agreement recorded February 20, 2004 in Official Record Book 22060, Page 2591; as affected by Letter dated September 30, 1988 from Bayside to City regarding exercise of option to construct improvements and occupy proposed light tower, as amended by Third Amendment to a. Amended and Restated Lease Agreenzr nt dated April 15, 1993; as affected by the Minority Participation Agreement dated January 14, 1985, as amended by First Amendment to Minority Participation Agreement dated October 17, 1.985 and by Second Amendment to 1Vlinority Participation Agreement dated September 24, 2014; as affected by Miarnarina A,greerrtent dated October 24, 1985; as amended by Letter dated August 1, 2003 from Bayside to City; as amended by Letter dated September 4, 2003 from Bayside to City; as amended by Letter dated September 5, 2003 from Bayside to City; as amended by Letter dated November 12, 2003 from Bayside to City; as amended by Letter dated September 28, 2004 from Bayside to City; as affected by the Certificate of Merger recorded in Officia[ Records Book 26660, Page 2392; as amended by 3 Estoppel Certificate From City datedNovember 26, 2008; as amended by Release and Settlement Agreernert dated December 30, 2008; as amended by Fourth Amendment executed September 24, 2014, evidenced by Memorandum of Modification of Lease (Retail Parcel) recorded in Official Records Book 29408, Page 2929, of the Public Records of Miami -Dade County, Florida_; E as amended by Letter dated October 29, 2014 from Bayside Marketplace, LLC to City (with attached. Letter dated October 28, 2014 from the Florida Department of Environmental Protection); as amended by Estoppel Certificate from City dated November 18, 2014. i 2. Garage Lease That certain Lease Agreement dated as of January 14, 1985 between the City of Miami and Bayside Center Limitcd Partnership; as affected by that certain Resolution No. 84-724 adopted by the City of Miami on lime 28, l 984 (u°ith attached Major Special Use Permit); as amended by First Amendment to Agreement of Lease dated October 17, 1985; as evidenced by Memorandum of Lease recorded November 4, 1985 and recorded in Official Record Book 12690, Page 159; as amended. by Second Amendment to Bayside Parking Garage Lea= Agreement dated September 13, 198€1; as affected by Memorandurr: of Modification of Lease A-] r.. LAW70625 i CFN: 2014088286-51300K 29444 PAGE 929 recorded October 6, 1988 in Official Record Book 13849, Page I004; as amended by Agreement dated July 19, 1958 and recorded October 6, 1988 in Oficial Record book 13849, Page 907, as arnerided by Agreement dated December 8, 1997 and recorded January 12, 1998 in Official Record Book 17939, Page 1026 and by Second Amendment to Tri -Party Agreement recorded February 20, 2004 in Official Record Book 22060, Page 2591; as amended by Tbird Amendment' to Bayside Parking Garage Lease dated April 15, 1993; as affected by the Minority Participation Agreement dated January I4, 1985, as amended by FirstAmendment to Minority Participation Agreement dated October 17, 1985 and by Second Amendment to Minority Participation Agreement dated September 24, 2014; as affected by Miamarina Agreement dated October 24, 1985; as amended by Letter dated August 1, 2003 from Bayside to City; as amended by Letter sated September 4, 2003 fi•om 13a}side to City; as amended by Letter dated September 5, 2003 _ front Bayside to City; as amended by Letter dated-Noygmber 12, 2003 from Bayside to City; a.5 . _. amended by Letter Gated September 28, 2004 from Bayside to City; as affected by the Certificate of ivIerger recorded in Official Records Book 26660, Page 2392, of the Public Records of Nliarni-Dade Chanty, Florida, as amended by Estoppel Certificate'from City dated November 26, 2008; as amended by Release and Settlement Agreement dated Decernber30, 2008; as amended by Fourth A rr:endment executed September 24, 2014, evidenced by Memorandum of Modification of Lease (Garage Parcel) recorded in Official Records Book 29408, Page 2922, of the Public .Records of Nliami-Dadc County, Florida; as amended by Estoppel Certificate from City dated November 18, 2014. A-2 LA13920625 BAYSIDE MARKETPLACE (JV) ,GGP Limited,,, Partnership GGP mss, CIIit�, vside IT�liiilies. GGP Cumulus, L } /Nimbus, LP" C {Ashkenan 1 1% '\ i 50% 49%, Documents ZeaZtplace, ayside LLC 1) Third A&R Bayside Marketplace, LLC Agreement Bayside Marketplace (Miami, EL) GROUND LEASE On December 24, 2014, GGP Limited Partnership transferred a non -controlling 49% interest in Bayside Marketplace, LLC to Bayside Equities, LLC pursuant to Sections 5.3(1) and 5.3(m) of the respective retail and parking garage Ground Leases, This permitted transfer did not constitute a "Change of Control" nor is it subject to a Transfer Fee. There has been no property level transfer of the leasehold estate. THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF BAYSIDE MARKETPLACE, LLC THIS THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of Bayside Nfarketplace, LLC (the "Company"), dated as of December 24, 2014 (the "Effective Date"), among GGP Nimbus, LP, a Delaware limited partnership ("GGPN"), Bayside Equities LLC, a Delaware limited liability company ("AAC Member°'), GGP Limited Partnership, a Delaware limited partnership and any and all other persons and entities that, from time to time, become additional or substituted members of the Company and that subscribe their names on the signature pages hereto as signatories (each, a "Member" and collectively, the "Members"). WHEREAS, the Company exists pursuant to the Limited Liability Company Act of the State of Delaware (6 Del. C. § 18-101, et seg.), as amended from time to time (the "Act"), and the affairs of the Company are governed by the Act and that certain Second Amended and Restated Operating Agreement dated as of December 23, 2014 (the "Original_ Agreement"). WHEREAS, the undersigned parties hereto desire to amend and restate the Original Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereto do hereby amend and restate the Original Agreement to read in its entirety as follows: ARTICLE I GENERAL PROVISIONS 1.1 Continuation of the Company,• Tenn. The Members hereby agree to become or continue as members of the Company and to enter into this Agreement under the provisions of the Act. This Agreement constitutes the limited liability company agreement of the Company and sets forth the agreement of the Members as to their relative rights and obligations as well as the manner in which the Members have agreed to operate the Company. The term of the Company commenced upon the filing of the Certificate of Formation (the "Certificate") with the Secretary of State of Delaware (the date of such filing is referred to herein as the date of "formation" of the Company) and shall continue un6I dissolution of the Company in accordance with the provisions of Article 10. To the extent permitted by applicable law, the provisions of this Agreement shall override the provisions of the Act in the event of any inconsistency or contradiction between them. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate in accordance with the Act. MAORGMamstGencra€'rcgm,.tN.CCS%CorporatelSubs(N)\AshkenazylSay5id&LBe?side 3rd_AR_OA_fVjD4AL_v4_FNAL,doe L2 Name. The nage of the Company shall be "Bayside Marketplace, LLC" or such other name or names as the Members may jointly determine from time to time pursuant to Section 6.2. 1.3 Admission of Members. GGPN and AAC are hereby admitted as Members and shall be shown as such on the books and records of the Company. 1.4 Purpose. Subject to the terms of this Agreement, the purposes of the Company are as follows: (a) owning, managing, maintaining, operating, financing, leasing, improving, selling, pledging, mortgaging or otherwise disposing of the Property directly or through one or more Subsidiaries, and (b) engaging in such other activities incidental or ancillary thereto as the Members deem necessary, appropriate or desirable. 1.5 Principal Office. The Managing Member shall maintain a principal office at c/o General Grov,th Properties, Inc., 110 N. Wacker Dr., Chicago, Illinois 60646, or at such other place or places as may be designated by the Managing Member from time to time with the other Member's prior approval. ARTICLE 2 DEFINITIONS; DETE.RIVILNATIONS 2.1 Definitions. Capitalized terms used in this Agreement shall have the meanings set forth below or as otherwise specified herein: "Accountants" means a firm of independent certified public accountants of recognized national standing approved by the _Members in accordance with Section 6.2. "Act" has the meaning set forth in the Preamble. "Affiliate" means, with respect to any Person, any other Person controlling, controlled by or udder common control with such Person. Notwithstanding anything to the contrary herein, it is agreed that none of the Members or any of their respective Affiliates shall be treated as Affiliates of the Company or any Subsidiaries. "Affiliate Contract" paeans a contract or other agreement between the Company or any of its Subsidiaries, on the one hand, and any Member or any of its Affiliates, on the other hand. "Affiliated REIT" means any Entity that directly or indirectly owns an Equity Interest in the Company that has elected or elects to maintain its status as a REIT or that informs by delivery of written notice, at any time, to the Managing Member that it intends to elect REIT status. "Agent" shall have the meaning set forth in the Loan Agreement. "i�eement" means this Second Amended and Restated Limited Liability Company Agreement of Bayside Marketplace, LLC, as amended or modified from time to time in accordance with the terms hereof "Approved Owner" means (a) with respect to GGPN, any Entity that is 98% directly or indirectly owned by General Growth Properties, Inc_ and (b) with respect to any other Person, a Person that is 100% directly or indirectly owned by such other Person; provided, however, that in determining the percentage ownership of an Entity, any class of preferred or similar Equity Interests issued in connection with complying with minimum shareholder or momer requirements applicable to REITs shall be ignored. "Arbitration Expert" has the meaning set forth in Section 11.7. "Arbitration Matter" has the meaning set forth in Section 11.7. "Available Proceeds" means; with respect to any period of time, all Cash Flow for such period. of time, as reduced by increases in Reserves and increased by reductions in Reserves. "Bankruptcy' means, with respect to any Person, if (a) such Person makes an assignment for the benefit of creditors, (b) such Person files a voluntary petition in bankruptcy, (c) such Person is adjudged bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceeding, (d) such Person files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (e) such Person files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (f) such Person seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidatof of such Person or of all or any substantial part of its properties, or (g) ninety (90) days after the commencement of any proceeding against such Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, the proceeding has not been dismissed, or within ninety (90) days after the appointment without such Person's consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within ninety (90) days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of "Bankruptcy" is intended to replace and shall supersede and replace the definition of "Bankruptcy" set forth in Sections I8 -101(l) and 18-304 of the Act.. "Bankruptcy Code" means the United States Bankruptcy Code 11.1 U.S.C. §§ 101, et seq. `:Base Rate" means, on any date, a variable rate per annum equal to the rate of interest most recently published by The Fall Street Journal as the "prime rate" at large U.S. money renter batiks. "B/S Buy Option" has the meaning set forth in Section 8.5(b). "B/S Distribution Amount" has the meaning set forth in Section 8.5(a). "B/S Electing Notice" has the meaning set forth in Section 8.5. "B/S Notice" has the meaning set forth in Section 8.5W. "EIS Offeree" has the meaning set forth in Section 8.5(a). "B/S Offeror" has the meaning set forth in Section 8.5(a). "BIS Option" has the meaning set forth in Section 8.5(a). "B/S Response Period" has the weaning set forth in Section &5(b). "B/S. Sell Option" has the meaning set forth in Section 8.5(b} - "BIS Trigger Event' means (a) the expiratioa of the Lockout Period; or (b) the occurrence of any Cause Event. "B/S Valuation Amount" has the meaning set forth in Section 8.5 a . "Business Day" means any day on which commercial banks are open for business in Chicago, Illinois, other than Saturday and Sunday. Any event the scheduled occurrence of which would fall on a day that is not a .Business Day sball be deferred until the immediately succeeding day that is a Business Day. "Capital Account" has the meaning set forth in Section 3.4. "Capital Call" shall have the meaning set forth in Section3,2(a). "Capital Contribution" means, with respect to any Member, the amount of money and the Gross asset Value of any property contributed by such Member to the Company (net of any liabilities secured by such property or to which such property is otherwise subject at the time of the contribution of such property). "Capital Default" has the meaning set forth in Section 3.3. "Capital Loan" has the meaning set forth in Section 3.3. "Capital Loan Rate" shall. mean 10.0% per annum,; provided that in no event shall the Capital Default Rate exceed the highest rate permitted by applicable law. "Cash flow" means, for any period for which Cash Flow is being calculated, gross cash receipts received by the Company and any Subsidiary during such period (including proceeds from financings and capital events), net of expenditures paid by the Company and any Subsidiary during Such period (including the distribution referred to in Section 3.1). "Cause" shall mean, with respect to an Independent Manager, (i) acts or omissions by such Independent Manager that constitute systematic and persistent or willful disregard of such Independent Manager's duties, (ii) such Independent Manager has been indicted or convicted for any crime or crimes of moral turpitude or dishonesty or far any violation of any legal requirements, (iii) such Independent Manager no longer satisfies the requirements set forth in the definition of "Independent Manager", (iv) the fees charged for the services of such Independent Manager are .materially in excess of the fees charged by the other providers of Independent Managers listed in the definition of "Independent Manager" or (v) any other reason for which the prior written consent of Agent shall have be; n obtained. "Cause Event" means a determination by an arbitrator pursuant to a binding arbitration in accordance with Section 11.7 that any of the following has occurred: (a) any Bankruptcy by the Managing Member which is not dismissed within ninety (40) days; (b) a direct or indirect Transfer of all or part of a Managing Member's hiterest that is not permitted under Article 8; (c) the Managing Member has committed fraud, gross negligence or willful malfeasance in theperformance of its obligations under this Agreement that, in any such case, has a material adverse effect with respect to the financial condition or performance of the Company or its Subsidiaries or has willfully failed -to make required Distributions pursuant to Section 4.1 after notice from AAC; provided, that in the case of clause b) (other than an intentional breach of the transfer restrictions set forth in Section 8.1 or clause c above, the Member that is not an Affiliate of the Managing Member has notified the Managing Member of the event described in such clause or (c) above, and, if such event is capable of being cured, the Managing Member has not cured the cause or grounds for such event within thirty (30) days of such notice; provided, that if any such event is capable of being curets but cannot with diligent efforts be cured within such thirty (30) day period, but the Managing, Member coma-nences such cure tivitbin such thirty (30) day period, thereafter diligently and continuously prosecutes such cure, and such default is reasonably susceptible to being cured within one hundred fifty (150) days, such thirty (30) day period shall be extended for the time reasonably required to effect such cure, but in no event for more than an additional one hundred twenty (120) days (i.e. 150 days total); provided, further, that to the extent the Managing Member cures any circumstance that gives rise to a Cause Event, then such occurrence shall not constitute a Cause Event. For avoidance of doubt, if (x) the occurrence of any event described in clause c above is caused by an employee or an officer of the Managing Member or an Affiliate thereof, (y) the employment of said individual by such Person which has any relationship, contractual or otherwise, to the Company or the Property, is terminated, or such individual is otherwise removed from all responsibilities regarding the Company or the Property, within the cure periods set forth above, and (z) if the Company or any Member has suffered a monetary loss or damage as a result thereof, the Managing Member reimburses such Person for any such monetary loss or damage suffered or incurred by such Person within the cure periods set forth above, then such termination or removal, and reimbursement, shall constitute a cure for purposes of this paragraph. For avoidance of doubt, if a Member initiates an arbitration to determine whether or not a trigger event has occurred under clause or clause c above, the cure periods described herein shall not commence until after the conclusion of such arbitration proceeding. "Certificate" has the meaning set forth in Section 1.1. "Closing Date" has the meaning set forth in Section 8.7. time. "Code" means the U.S. Intemal Revenue Code of 1986, as amended from time to "Company" has the meaning set forth in the Preamble.. "Commy Budget" has the meaning set forth. in Section 5.1. "Company Entity" or "Company Entities" means, individually or collectively, as applicable, the Company and any Subsidiary and each of their respective Affiliates. "CoW_any Minirrmum Gain" has the meaning of `partnership minimum gain" set forth in U.S. Department of Treasury Reg. § 1.744-2(b)(2), and the amount of Company Minimwn Gain, as well as airy net increase or decrease in Company l hi rnurn Gain, for a Fiscal Year or other period shall be determined in accordance with the rules of U.S. Department of Treasury Ret;. § 1.7114-2(d). "Confidential Information" means (a) all information, materials and data relating to any Company Entity or any Member or any Affiliate thereof that are not generally known to or available for use by the public (including this Agreement, information and materials relating to products or services, pricing structures (including historical or projected pricing, cost, sales and profitability of each product or service offered), accounting and business methods, financial data (including historical performan.ee data, investment returns, valuations; financial statements or other information concerning historical or projected financial condition, results of operations or cash floes), inventions, devices, new developments, methods and processes, prospective investments, customers.. clients and investors, customer, client and investor lists, copyrightable works and all technology, trade secrets and other proprietary information), and (b) all other inn_formation, materials and data, if any, which any Company Entity or any Member or Affiliate thereof is required by law or agreement to keep confidential. ":Conflicted Member" shall mean, (i) with respect to an Affiliate Contract to which the Managing Member or any of its Affiliates is a party, the Managing Member, and (ii) with respect to an Affiliate Contract to which the AAC Member or any of its Affiliates is a party, the A -AC. Member. "Contributing Member" has the meaning set forth in Section 3.3. "CPI" means the Consumer Price Index for All Urban Consumers (CP1-U) for All Items, 1982-84 = 140, published monthly by the United States Department of Labor, Bureau. of Labor Statistics. ff the Bureau of Labor Statistics changes the base period for computing the CP1 or otherwise revises the manner in which the CPI is determined, an adjustment shall be made in the revised index which would produce results equivalent, as nearly as possible, to those which would be obtained hereunder if the CP1 were not so revised. If the CPI becomes unavailable because publication is discontinued or otherwise, there shall be substituted therefor a comparable index, reasonably acceptable to the Managing Member, based upon changes in the cost of living or the purchasing power of the consumer dollar, published by an agency of the federal government or in the absence thereof, by a nationally recognized financial reporting service. "Corporate Services Provider" shall mean any of the following nationally - recognized companies that provides professional independent managers, directors and/or trustees, including (i) Corporation Service Company, (ii) CT Corporation, (iii) National Registered Agents, Inc. and (iv) Independent Director Services, Inc. (provided that the Company and Agent may add or replace, by mutual agreement, any one or more of the foregoing Corporate Services Providers with other nationally -recognized companies that have been used by other borrowers for commercial mortgage loans). "Default Action" shall have the meaning set forth in Section 6.5. "Depreciation" means, for each taxable year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for the year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for U.S. federal income tax purposes at the beginning of the year or other period, Depreciation will be an amount which bears the same ratio to the beginning Gross Asset Value as the U.S. federal income tax depreciation, amortization or other cost recovery deduction for the year or other period bears to the beginning adjusted tax basis, provided that if the U.S. federal income tax depreciation, amortization, or other cost recovery deduction for the year or other period is zero, Depreciation will be determined with reference to the beginning Gross Asset Value using any reasonable method selected by the Managing Member_ '`DesiRnatcd &p esentative" means, with respect to a Member, the representative designated by such Member from time to time. The Designated Representative of GGPN shall be a Person who holds the position of Vice President or higher at General Grovrrth Properties, Inc., and the Designated Representative of the AAC Member shall be a Person who holds the position of Vice --President or higher at Ashkenazy Acquisition Corp. The initial Designated Representative of GGPN shall be Shobi Khan and the initial Designated Representative of the AAC Member shall be Michael Alpert. "Disclosure Recipient" means, with respect to any Member, such Person's Af#iliates, and such Person's and such Affiliates' respective directors, officers, employees, representatives, agents, investors, attorneys or other financial or professional advisors, prospective purchasers or other prospective transferees (directly or indirectly) of all or any portion of such Member's Interest and any prospective lender or other source of debt or equity financing to such .Member or any of such Member's Affiliates, with respect to the Company. "affective Date" has the meaning set forth in the Preamble. "Entittf' means a partnership (general, lunited or limited liability), a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental,, quasi-govenunental, judicial or regulatory entity or any department, agency or political subdivision thereof "Equity Interest" means (a) in the case of a corporation, shares of stock, (b) in the case of a general or limited partnership, partnership interests, (c) in the case of a limited liability company, membership units/interests and (d) in the case of any other Entity, the comparable interests therein. 7 "ERISA" means the U.S. Employee Retirement Income Security Act of 1974, as amended. "Expiration Date" has the meaning set forth in Section. 8.6(fl(i). "Fiscal Year" means each, fiscal year of the Company, which shall be the calendar year. "GAAP" means U.S. generally accepted accounting principles, consistently applied. "GGP Member" shall mean either GGPN or GGP Limited Partnership; "GGP Members" shall mean both GGPN and GGP Limited Partnership. "Governing Documents" has the meaning set forth in Section 13.16. "Gross Asset Value" means, with respect to any asset, the asset's adjusted basis for U.S. federal income tax purposes, except as follows: (a) the initial Gross Asset Value of any asset contributed by a ]•Member to the Company shall be the gross fair market value of such asset, as determined by the Managing Member and such contributing Member; provided, that the initial Gross Asset Value of the Property shall be as set forth on Exhibit B attached hereto; (b) the Gross Asset Value of all property of the Company shall be adjusted to equal the respective gross fair market values of such property, as determined by the Managing Member in accordance with Treas. Reg. §1.704-1(b)(2)(iv), as of the following tines: (i) the acquisition of additional interests in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Company to a Member of snore than a de minimis amount of property of the Company as consideration for an interest in the Company; (iii) the liquidation of the Company and. (iv) the exercise of a noncompensatory option within the meaning of Treas. Reg. § 1.7044 (b)(2)(iv)(f)(5); provided, that adjustments pursuant to clauses D and ii above shall be made only if the Managing Member determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members; (c) the Gross Asset 'Value of any property of the Company distributed to any Member shall be adjusted to equal the gross fair market value of such property on the date of distribution as detennined by the Managing Member; and (d) the Gross Asset Values of assets of the Company shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Sections 734(b) or 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to U.S. Department of Treasury Reg. §1.704- 1(b)(2)(iv)(m); provided, that Gross Asset Values shall not be adjusted pursuant to this paragraph (d) to the extent the Managing Member reasonably determines that an adjustment pursuant to paragraph (b) hereof is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this paragraph (d). If the Gross Asset Value of an asset has been determined or adjusted pursuant to ar a hs a b or (d) of this definition, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into accountwith respect to such asset for purposes of computing profits and losses, "Ground Lease" shall mean, collectively, (a) that certain Amended and Restated Lease Agreement dated. October 15, 1985, between the City, as landlord, and Bayside, as tenant, as evidenced by Memorandum of Lease dated October 15, 1985 and recorded on October 29, 1985 under Clerk's File Number 83R-337869 in the Public Records of Dade County, Florida (the "Public Records"), as modified by that certain First Amendment to Amended and Restated Lease Agreement dated August 19, 1986, as farther modified by that certain Second Amendment to Amended and Restated Lease Agreement dated November 24, 1987 and Memorandum of Modification of Lease dated November 24, 1987 and recorded on December 1, 1987, under Clerk's File Number 87R-4511816 in the Public Records, as further modified by that certain Third Amendment to Amended and Restated Lease Agreement dated as of April 15, 1993, as furtber amended by Fourth Amendment to Amended and Restated Lease Agreement (Retail Parcel) dated September 24, 2014, and also modified by that certain Tri -Party Agreement regarding Port Boulevard among the City, Bayside and Metropolitan Dade County dated July 19, 1988 and recorded under Clerk's File Number R88-363062 in the Public Records, as amended by Agreement dated December 8, 1997 and further amended by Second Amendment to Tri -Party Agreement dated December 29, 2003 and recorded on February 20, 2004 under Clerk's File Number 2004R-0116874 in the Public Records (the "Tri -Party Agreement") and as further modified by that certain Settlement Agreement (as defined below, and together with the Tri - Party Agreement a -rid all of the lease and memoranda of lease documents listed in this clause (a), collectively, the "Retail Parcel Lease") and (b) that certain Lease Agreement dated January 14, 1985 between the City of Miami and Bayside, as evidenced by Memorandum of Lease dated October 17, 1985 and recorded on November 4, 1985 under Clerk's File Number 85R-344459 of the Public Records, and modified by that certain First Amendment of Agreement of Lease dated October 17, 1985, and as further modified by that certain Second Amendment to Bayside Parking Garage Lease Agreement dated September 13, 1988, as further modified by that certain Memorandum of IModification of Lease dated September 18, 1988 and recorded on October 6, 1988 in under Clerk's File Number 88R-363063 of the Public Records, as further modified by that certain Third Amendment to Bayside Parking arage Lease Agreement dated April 15, 1993, as further amended by Fourth Amendment to Bayside Parking Garage Lease Agreement (Garage Parcel) dated September 24, 2014 and as further modified by the Tri -Party Agreement and the Settlement Agreement (collectively, the "Parking Garage Lease"). "Independent Manager" shall mean an independent manager, independent director or independent trustee, as the case may be, each of which shall be a natural person who (A) is approved by Agent, such approval not to be unreasonably withheld, conditioned or delayed so long as no Event of Default (as defined in the Loan Agreement) is continuing (in which case such approval shall be granted in Agent's sole discretion), or (B) (1) is provided by a Corporate Services Provider, and (11) is not at any time while serving as a manager, director or trustee of the Company, and has not been at any time during the preceding three (3) years: (a) a manager, director, trustee (with the exception of serving as an independent manager, independent director or independent trustee, as the case may be, of the Company or any Affiliate of the Company), stockholder, officer, employee, partner, member, attorney or counsel of the Company or an Affiliate of the Company; (b) a creditor, customer; supplier or other Person who derives any of its purchases or revenues from its activities with the Company or an Affiliate of the Company (except for (i) fees received for acting as an independent manager, independent director or independent trustee of the Company or any Affiliate of the Company, and (ii) any fees paid by the Company or any Affiliate of the Company to the Corporate Services Provider for independent manager, director or trustee services or for other miscellaneous corporate services); (c) a Person controlling, controlled by or under common control with the Company or any Affiliate of the Company or any such stockholder, partner, member, creditor, customer, supplier or other .Person (provided that acting as an independent manager, independent director or independent trustee of the Company or any Affiliate of the Company shall not constitute control of the Company or any such Affiliate of the Company); or (d) a member of the immediate family by blood, marriage or otherwise, of any such stockholder, director, manager, officer; employee, partner, member, creditor, customer, supplier or other Person. "Ind4mnified Party" has the meaning set forth in Section 6.5(a). ":Interest" means, iNith 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 benefits to which such Member may be entitled as provided in this Agreement, together with the obligations of such Member to comply with all the terms and provisions of this Agreement_ "Investment Advisers Act" means the U.S. Investment Advisers Act of 1940, as amended, and the rules and regulations promulgated thereunder. "Investment Company Act" means the U.S. Investment Company Act of 1940, as amended, and the riles and regulations promulgated thereunder. ``Lease' means any lease or other occupancy agreement and amendments to such lease or other occupancy agreement with respect to the Property. "Lender" shall have the meaning set forth in Article 12. "Loan" shall have the meaning set forth in Article 1 - ":Loan Azreeznent" shall have the meaning set forth in Article 12. "Loan Documents" shall have the meaning set forth in the Loan Agreement. "Lockout Period" means, solely with respect to the sale of the Property, the period of time commencing on the Effective Date and expiring on the date that is the tenth (10') anniversary of the Effective Date. " Nlaior Decision" has the meaning set forth in Section 6.2. "Maior Decision Notice" means (a) any written notice issued by the Managing Member to the AAC Member in which the Managing Member proposes that the Company or a Subsidiary make, undertake or approve a Major Decision and (b) any written notice issued by the 10 AAC Member to the Managing Member in which the AAC Member issuing such notice proposes that the Company or a Subsidiary make, undertake or approve a Major Decision. "Major Tenni" shall mean any retail tenant occupying more than 10,000 square feet of space at the Property. "lyfanaging Member" means, prior to a removal pursuant to Section 10.3, GGPN, in its capacity as managing member of the Company, and, after a removal pursuant to Section 10.3, any successor managing member of the Company elected pursuant to Section 10.3. "Member Cessation Event" shall have the meaning set fortli in Section 7.5. "byfembers" means the Persons listed on Schedule I as members, in their capacity as members of the Company, and. each Person who is admitted to the Company as a substitute Member pursuant to Section 8.1, in its capacity as member of the Company, in each. case (including in the case of a Person listed on Schedule 1) for so Iong as such Person continues to be a member hereunder- provided however, that the term "Members" shall not include the Special Member (as defined in this Section 2.1). "Non -Contributing Member' has the meaning set forth in Section 3.3. "Non -Controllable Items" means theminimum. amount of funds needed to (a) pay and perforin when due all of the obligations of the Company under ant, mortgage loan secured in whole or in part by the Property or any portion thereof, any instrument. or agreement encumbering title to the Propery and affecting its operation and other documents to which the Company is or shall be a party or by which it or its assets are bound and which have been entered into prior hereto or in accordance with the terms hereof, (b) pay when due real estate and other taxes, utility changes and insurance premiums for the Company or any Company assets, (c) comply with any legal requirement now or hereafter in force which shall be applicable to all or any part of the Company or any Company or Subsidiary assets (including the making of capital expenditures required for such compliance), (d) pay undisputed amounts to be paid for indemnity pursuant to and subject to the terms of Section 6.5, includiaig for advancement of expenses, and (e) pay the cost of reasonable actions taken in direct response to unanticipated emergency situations at the Property to mitigate the: imminent threat of material property damage, personal injury or death - "Nonrecourse Deductions" has the meaning set forth in U.S. Department of Treasury Reg. §§ 1.704-2(b)(1) and 1.704-2(c). "Nonrecourse Liability" has the meaning set forth in U.S. Department of Treasury Reg. §§ 1.704-2(b)(3) and 1.752-1(a)(2). "Member Minimum Gain" has the meaning of "partnership minimum gain" set forth in U.S. Department of Treasury Reg. § 1.704-2(b)(2), and the amount of Member Minimum Gain, as well as any net increase or decrease in Member Minirnum Gain, for a fiscal year or other period shall be determined in accordance with the rules of U.S. Department of Treasury Rep. § 1.704-2(d). "Member Nonrecourse Deductions" has the meaning of "partner nonrecourse deductions" set forth in U.S. Department of Treasury Reg. §1.704-2(i), and the amount of Member Nonrecourse Deductions with respect to a Member Nonrecourse Liability for a fiscal year or other period shall be determined in accordance with the rules of U.S. Department of Treasury Reg. § 1.704-2(i)(2).. "Member Nonrecourse Liability" has the meaning of "partner nonrecourse liability" set forth in U.S. Department of Treasury Reg. § 1.704-2(b)(4). "Obligations" shall have the meaning set forth in the Loan Agreement_ "Percentage Interest" means; with respect to each Member, the percentage interest set forth opposite the name of such Member on Schedule 1. "Person" means an individual or Entity. "Platz Assets" means "plan assets" as defined in the Plan Asset Regulation. "Plan Asset Regulation" means the U.S. Department of Labor regulation found at 29 C.F.R. §2510.3-101, as modified by Section 3(42) of ERISA. "Prope-rty" means the 1xid located in Miami, Florida and commonly Icnown as Bayfront Plink and leased by the Company under that certain [Ground Lease] and the shopping center located thereon coramonly known as Bayside Marketplace. ":Property Management Agreement" means a property management and leasing agreement by and between the Property Manager and the Company: pursuant to which the Property Manager shall provide certain property management and leasing services to the Company. "Propertv Manager" means one or more Persons that serves as the "property manager" under a Property Management Agreement, as selected in accordance with this Agreement. The initial Properly Manager shall he the Managing Member or an Affiliate of the Managing Member. "Purchasing_ Member" has the meaning set forth in Section 8.7(x. "Qualified Transferee" means any Person that, together with its Affiliates, (a) has a net worth of at least Two Hundred Fifty Million and 00/100 Dollars ($250,000,000.00) and owns directly or indirectly interests in, or manages, real estate assets or Ioans secured by real estate assets of at least $100,000,000 and (b) such Person or its principals shall not currently or previously haN;e been involved in litigation with either Member. "Reimbursin Member" has the meaning set forth in Section 8.8(a). "REIT" means real estate investment trust pursuant to Sections 856 through and including 860 of the Code. i_C "Related Persons" has the meaning set forth in Section 7.2. "Removal Notice" has the meanhig set forth in Section 10.3(x). "Renovation `Fork" has the meaning set forth and more fully described in the Ground Lease. "Reserves" means amounts required for future working capital needs, operating expenses, contingent obligations and other purposes, of the Company and its Subsidiaries. "ROFO Electing Notice" has the meaning set forth in Section 8.6(b). "ROFO Iniliatin Member" has the meaning set forth in Section 8.6(a). "ROFO Market Value" has the meaning set forth in Section 8.6(a}. "ROFO Notice" has the meaning set forth in Section 8.6(a). "ROFO Offered Interest" has the meaning set forth in Section 8.6(a). "ROTO Purchase Option" has the mEeaaing set forth in Section 8.6(b). "ROFO Recipient Member" has the meaning set forth in Section 8.6(a). "ROFO Response Period" has the meaning set forth in Section 8.6(b)- "ROFO Sale Period" has the meaning set forth in Section 8.6(d). "ROFO Target Price" has the meaning set forth in Section 8.6(d). "Securities Act" means the U.S. Securities Act of 1933, as amended. "Selling Member" has the meaning set forth in Section 8.7(a). "Special Member" shall mean, upon such person's admission to the Company as a member of the Company pursuant to Section 7.5, a Person acting as Independent Manager, 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. "Subject Interest" has the meaning set forth in Section 8.7(b). "Subsidiary" means, with respect to the Company, any Entity in which the Company (i) directly or indirectly holds at least a majority of the Equity Interest or (ii) directly or indirectly holds a controlling voting interest. "Tag_Along Interests" has the meaning set forth in Section 8.6(f)(i). "Tag AlongMember" has the meaning set forth in Section 8.6(f)(i). 13 "Tag Along Notice" has the meaning set forth in Section 8&f)(i). "Taff Along Sale" has the meaning set forth in Section 8.6(f}(i). "Teranination Trigger" means the occurrence of any of the following during the period from the date of a BfS Electing Notice or the ROFO Electing Notice, as the case may be; through the applicable Closing Deaie_ a material casualty or condemnation to the Property, the Bankruptcy of the Company or any Subsidiary, a material payment default by a Major Tenant under a Lease that remains uncured as of such Closing Date, or the Bankruptcy of a tenant under a Lease. "Transfer" has the meaning set forth in Section 8.1(a). "Treasury Rets_" means the final and temporary income tax regulations promulgated under the Code; as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). "TRS" has the meaning set forth in Section 6, (a)(iii). "United States" or "U.S." means the United States of America, its territories and possessions, any State of the United States of America and the District of Columbia. "U npermitted Transfer" has tine -meaning set forth in Section. 8.1. ARTICLE 3 CAPITAL ACCOUNTS; CAPITAL CONTRIBUTIONS 3.1 Initial Capital Accounts. As of the Effective Date, the Capital Account of each member shall be as set forth in Exhibit A hereto. 3.2 Additional Capital Contributions. (a.) Any Member may, at any time or from time to time; request that each vferrrber make additional Capital Contributions to f�rrrd (i) any amounts required to be paid for Non -Controllable Iterns; (ii) amounts committed to be spent by the Company in connection with the Renovation Work; and (iii) amounts approved by all Members pursuant to Section 6.2(c). Any such request shall be made by delivering written notice (each, a "Capital Call") to the tither Member that (1) sets forth the amount of such Capital Contribution and (2) provides a reasonably detailed explanation of Nvhy such Capital Contribution is required and the anticipated use of such Capital Contribution. In addition, the Managing Member shall have the right to make Capital Calls in the event such. Capital Call occurs as a result of a permitted deviation of the Company Budget as provided in Section 6.2(b). Each Member shall, within ten (10) Business Days after receipt of a Capital Call, contribute its Percentage Interest of the amount specified in the Capital Call by delivering such amount to the Company or Subsidiary. Each: Member's Capital Account shall be increased by the amount of any additional Capital Contribution made by such Member. 14 (b) Other than as set forth in Section 3.1 or this Section 3.2, the Members shall not be obligated to make Capital Contributions to the Company. (c) The Managing Member shall cause the Company to return to the Members all or any portion of any Capital Contribution that is not used for the purpose for which it was called. Amounts to be returned to the Members that are described in the first sentence of this Section 3.2(c) shall be returned to all Members is proportion to the Capital Contribution made by each such Member in the applicable Capital Call_ (d) The Managing Member shall be solely responsible for the payment of any sums required to defend or settle any Litigation set forth on Schedule 4.6(a) to the MIPA and for any Losses incurred by the Company or the AAC Member in connection with or arising from any such. Litigation. (e) The Managing Member shall be solely responsible for funding all costs as a Capital Loan under any Material Agreements as set forth in Schedule 4.8(a) of the MIPA to the extent that such costs are not paid from the cash flow of the Property and the AAC Member shall have no obligation to contribute to the payment of any such costs. 3.3 Capital Default. (a) If a Member (a `Mon -Contributing Ntember") does not make full payment when due; (a 14Capital Default") of any Capital Contribution that is required pursuant to a Capital Call oilmen under Section 3.2 and such Capital Default is not cured within five (5) Business Days after written notice to such Member from the other Member with respect to such Capital Default, thea the Member that is not the Nora -Contributing Member or Affiliates of the Non -Contributing Member (the "Contributing Itfember"), may (but shall not be obligated to) pursue one of the following actions: (i) Submit a request to the Managing Member for a refund of all of the Capital Contributions made by the Member pursuant to such. Capital Call, in which case the AAC Member and the Managing Member shall cause the Company to irmnediately refund such amounts to the Contributing Member that made such Capital Contribution. Upon the return of such Capital Contribution pursuant to this Section 3.3(a)(i such Capital Call shall be deemed not to have been made; (ii) If a request is not delivered pursuant to Section 3.3(x)(0 elect, by written notice (the "Loan Election') to the Managing Member delivered not later than ten. (10) Business Days after the expiration of the Non -Contributing Member's cure period, to advance as a Ioan by such Contributing Member to the Nora -Contributing Member (a "Capital Loan") an amount equal to the Capital Default, and such Capital Loan shall be made pursuant to this Section 3.3(a)(H) within five (5) Business Days after such Contributing Member's Loan. Election, Each Capital Loan (x) shall be a loan by the Contributing Member to the Non - Contributing Member, (y) shall bear interest at a rate equal to the Capital Loan Rate, and (z) to the extent not previously repaid directly from the Non -Contributing Member to the Contributing Member, shall be repaid solely from Available Proceeds (with all actual and 15 reasonable out of pocket costs associated with the Capital Loan being the responsibility of the Non -Contributing Member) pursuant to Section 4.2 or upon Transfer of the Non - Contributing Member's Interest pursuant to Section 8.6. The Capital Account of the Contributing Member shall not be credited with the amount of any Capital Load. The repayment of a Capital Loan and payment or reimbursement of any interest or expenses thereunder shall not constitute a return of Contributing Member's Capital Contributions and shall not reduce the Contributing Member's Capital Account. Capital Loans shall be secure,. by the Non -Contributing Member's Interest. The Non -Contributing Member hereby grants a security interest in its interest to the Contributing Member until all Capital Loans are paid in full and the Non -Contributing Member hereby irrevocably appoints Contributing Member, and any of its respective officers, managers or agents, as its attorney-in-fact coupled with an interest with full power to prepare and execute any documents, insLrurnents and agreements, including such Uniform Commercial Code Financing Statements, continuation statements, and other security instruments as may be appropriate to perfect and continue its security interest is favor of the Contributing Member. (b) Each Member hereby specifically agrees that, in the event such Member becomes a Non -Contributing Member, regardless of the reason therefor, such Member shall not be entitled to claim that the Company or any of the other Members is precluded, on tite basis of any fiduciary or other duty arising in respect of such Member's status as such or other equitable claim or theory, from sees-ing any of the penalties or other remedies permitted under this Agreement. For avoidance of doubt, the remedies expressly provided in this Section 3.3 shall be the exclusive- remedies available with respect to a Capital Default, and neither the Members nor the Company may pursue any other remedies at law or in equity with respect to a Capital Default. 3.4 Capital Accounts. Allocations. The Company shall maintain a separate capital account for each Member (each, a "Capital Account") according to the rules of U.S. Department of Treasury Reg. § 1.704-1(b)(2)(iv). For this purpose, the Company may, upon the occurrence of any of the events specified in U,S. Department of Treasury Reg. §1.704-1(b)(2)(iv)(f) or (s), increase or decrease the Capital. Accounts in accordance with the rules of such regulation and U.S. Department of Treasury Reg. §1.704-1(b)(2)(iv)(g) to reflect a revaluation of Company property. Items of Company income, gain, loss, expense or deduction for any fiscal period shall be allocated among the Members in such manner that, as of the end of such fiscal period and to the greatest extent possible, the Capital Account of each Member shall be equal to the sum of (i) the Member's share of Company Minimum Crain and Member Minimum Gain and (ii) the respective net amount; positive or negative, that would be distributed to such Member from the Company or for which such Member would be liable to the Company under this Agreement, determined as if, on the last day of such fiscal period, the Company were to (a) liquidate the assets of the Company for an amount equal to their book value (determined according to the rules of U.S. Department of Treasury Reg. § 1.704-1(b)(2)(iv)) and (b) distribute the proceeds in liquidation in accordance NNrith Section 10.2. 16 ARTICLE 4 DISTRIBUTIONS 4.1 Distributions. (a) The Managing Member shall cause the Company to make distributions to the Members of all Available Proceeds as soon as practicable, which in any event shall be (i) at least quarterly in the case of Available Proceeds from operations and (ii) no later than ten (14) days after Available Proceeds from capital transactions are received by the Company. Available Proceeds shall be distributed to the kfembers, pro rata and pari passu, in accordance with the Members' respective aggregate Percentage Interests. (b) Any distribution by the Corupany pursuant to this Agreement to the Person shown on the Company's records as a Member or as the transferee of such Person's right to receive such distributions (or to either such Person's legal representative), shall acquit the Company and the Managing Member of all liability to any other Person that may be interested in such distribution by reason of any Transfer of such Person's interest in the Company for any reason (including a Transfer of such interest by reason of the death, incompetency or liquidation of such Person). 4.2 Re avmcnt of Capital Loans, Notwithstanding the provisions of Section 4.1 to the contrary, to the extent any Capital Loans are outstanding at the time that a distribution is made pursuant to the terms of this Agreement, then all amounts otherwise distributable to a Non - Contributing Member under Section 4.1 shall be distributed directly to the Contributing. Member and deemed to constitute distributions to tine Non -Contributing Member followed by deemed payments of accrued interest and principal on all outstanding, Capital Loans by the Non - Contributing Member to the Contributing Member until such time as all Capital Loans have been repaid in full. All amounts paid to a Contributing Member in satisfaction of a Capital Loan pursuant to the terms of this Section 4.2 shall be deemed to have been distributed to the Non - Contributing Member for all purposes of this Agreement (including, but not limited to, the determination of the Non -Contributing Member's Capital Account balance). 4.3 Permitted Distributions. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to make a distribution to a Member on account of its interest in the Company if such distribution would violate the Act or any other applicable law. ARTICLE 5 COMPA�'�iY BUDGET; PROPERTY MANAGEMENT 5.1 Company Budget. A budget is to be approved for the Company for each Fiscal Year (the "Company Budget") in accordance with this Section 5.1. The Company Budget shall include anticipated Company expenditures, including anticipated operating and capital expenditures. The Company Budget for the 2015 fiscal year will be attached hereto as Exhibit C. No later than November 1 of each calendar year, the Managing Member shall present a proposed Company Budget for the following year to the AAC Member for its consideration and approval, 17 which proposed Company Budget shall be in the same form as the Company Budget for the prior calendar year. The AAC Member shall approve or disapprove the Company Budget no later than thirty (30) days after the date on which the Managing Member delivered a proposed Company Budget, and failure to respond in writing within such thirty (30) day period shall be deemed an approval by the AAC Member. Unless otherwise mutually agreed, if the AAC Member disapproves or raises any objections to any items contained in the proposed Company Budget or any amendments thereto, the undisputed portions of the proposed Company Budget shall be deemed to be adopted and approved, and any such disputed item(s) of the Company Budget shall be set at an amount equal to the amount shown for such items) in the Company Budget for the preceding year, as increased by the greater of three percent (31.1,'o) and the annual percentage increase in the CPI. The Managing Member shall have the right, from time to tune during each Fiscal Year, to submit a proposed amendment to the Company Budget to the AAC Member for approval_ The AAC Member shall review all proposed amendments to the Company Budget in the same: planner as the Company Budget itself: Following delivery of any proposed amendment to a Company Budget, the AAC Member shall be required to approve or disapprove such proposed amendment to the Company Budget no later than fifteen (15) Business Days after the date on which the Managing Member has submitted the proposed amendment to the AAC N•lember and any failure to respond in writing during such fifteen (15) Business Day period shall be deemed an approval by the AAC Member. The Managing Member is not making, and shall not be deemed to have made, any guarantee or warranty of the fiscal estimations set forth in the Company Budget_ 5.2 Property Management Agreements. Concurrently herewith, the Company is entering into one or more Property Management Agreements, in the form attached hereto as Exhibit A, with the Property Manager that will govern the management, leasing and daily operation of the Property as more particularly set forth therein. The Company shall pay the Property Manager under the Property Management Agreements the fees, expenses and other amounts set forth therein. ARTICLE 6 MANAGEMENT 6.1 Manaement Authority. (a) The management of the Company shall be vested in the Managing Member (acting directly or through its duly appointed agents), and the Managing Member shall have the responsibility, power and authority to administer the business, assets, conduct and affairs of the Company. Subject to the express rights of the AAC Member to consent to or approve certain putters as set forth in Section 6.2 herein, the Managing Member shall have the exclusive power on behalf and in the name of the Company to carry out any and all of the objectives and purposes of the Company and to perform any and all acts and enter into and perform any and all contracts and other activities as the Managing Member deems necessary, appropriate or desirable to cavy out the purposes of the Company, including, but not limited to the following: (i) Supervise and arrange for the supervision of day-to-day operations of the Company and its subsidiaries; 18 (ii) Retain attorneys, consultants and other independent contractors to the extent such professional services are required to carry on the business of the Company and its subsidiaries; (iii) Collect all rents and other payments due and owing to the Company and the subsidiaries; (iv) Incur normal operating expenses of, and to pay the obligations of, the Company and its subsidiaries, and to enter into, perform and carry out contracts and agreements on behalf of the Company or its subsidiaries for the conduct of the Company's business; (v) Obtain and maintain insurance coverage for the Property and other assets of the Company and its subsidiaries, in such amounts and with such coverages as set forth in each annual Company Budget; (vi) Perform, or cause to be performed, all of the obligations of the Company and its subsidiaries, and to exercise or cause to be exercised all rights of the Company or its subsidiaries, under any agreement to which the Company, any of its subsidiaries or any nominee of the Company or any of its subsidiaries is a party; (vii) Cause the Company and its subsidiaries to pay all taxes, assessments, rents and other impositions applicable to assets of the Company and its subsidiaries and undertake when appropriate any action or proceeding seeking to reduce such taxes, assessments, rents or other impositions; (viii) Open and maintain bank accounts for the Company; (ix) Coordinate the preparation and fling of tax returns on behalf of the Company and its subsidiaries in each U.S. federal, state, local or foreign tax jurisdiction in which such flings are required provided that the 'Managing Member shall provide AA with a draft federal income tax return not later than ten (lel) days prior to the filing of such return; (x) Do any and all acts which may be necessary, desirable or appropriate for the proper managacment and maintenance of the Property; (xi) Enter into any space lease at the Prop, that contains less than 3,400 square feet; (xii) Execute and deliver such documents on behalf of the Company or a subsidiary of the Company as it reasonably deems necessary, desirable or appropriate in connection with the foregoing provisions; and (xiii) Do any act which is reasonably necessary, desirable or appropriate to carry out any of the foregoing. 19 (i0) Third parties dealing with the Company may rely conclusively upon the power and authority of the Managing Member and on its acts as having been authorized. Without affecting the express rights of the AAC Member herein, the Managing Member's execution of any agreement or document on behalf of the Company is sufficient to bind the Company for all purposes. 6.2 Major Decisions. Notwithstanding anything to titre contrary contained in this Agreement, each matter, action and decision listed below (each., a "Malar Decision") shall, subject to Section 3.3 and Section 6.3, require (and the Company shall not effect, take or make any such matters, actions or decisions, or cause any Subsidiary to do any of the foregoing), without the unanimous approval of all of the Members. (a) approving the Company Budget, for a Fiscal Year Md all amendments and updates thereto), including the amount of Reserves set forth therein (but this clause (a) shall not cover deviations from such Company Budget, which are addressed in clause (b), below; (b) deviating from€ the Company Budget by more than ;Five percent (5%) of the aggregate expenditures set forth in such Company Budget; provided, however, that none of a Non-Controllable Item, an expenditure authorized pursuant to another clause of this Section 6.2 or another section of this Agreernent or a Company distribution shall be limited by this paragraph and the a n unt M which any such expenditure or distribution exceeds the amount therefor set fortli in the Company Budget shall not be counted in deteimining whether a variance or deviation has occurred; (c) calling any Capital Contributions by the Members other than pursuant to Section 3.1, or Section. 3.2(a)(i) or (ID (d) any sale or transfer (other than a condemnation or other involuntary transfer of the Property (other than personal property) or any portion thereof or interest therein; (e) except as expressly authorized herein; admitting any new member in the Coinpany, and the issuance, redemption or sale by the Company of any Equity Interest in the Company or the purchase by the Company or any Subsidiary of any real property; (f) amending, modifying, supplementing or terminating this Agreement, the Certificate or the organizational or formation documents of the Company or any Subsidiary, or agreeing to amend, modify, supplement or terminate this Agreement the Certificate or the organizational or formation documents of the Company or any Subsidiary, except as expressly authorized herein, (g) incinTing any indebtedness for borrowed money or entering into any financing, refinancing, or loan transaction (other than incurrence of trade payables and equipment leases in the ordinary course of business and as set fords in the approved. Budget which may be entered into by the Managing Member on behalf of the Company without the requirement of first obtaining the consent of the AAC Member), or granting a security interest in any assets of the Company or any Subsidiary, and in each case approving the terms thereof and any documentation therefor, as well as any related arrangements such as interest rate hedging transactions; 20 (h) entering into by the Company or any Subsidiary of any space lease in at the Property that consists of more than 3,000 square feet; (i) engaging any replacement or additional property manager or leasing agent for the Property (but this paragraph shall not cover an agreement to pay a tenant's leasing agent); 0) consolidating or merging the Company or any Subsidiary with or into any other Person or the engaging by the Company or any Subsidiary in any recapitalization, joint venture or other business combination, or termination or dissolution of the Company or any Subsidiary; (k) to the fullest extent permitted by applicable law, dissolving or liquidating, the Company or any Subsidiary, in whole or in part, making by the Company or any Subsidiary of an assignment for the benefit of creditors, filing or otherwise initiating on behalf of the Company or any Subsidiary, as debtor, a petition in bankruptcy, petitioning or applying by the Company or any" Subsidiary to any tribunal for the appointment of a custodian, receiver or any trustee for the Company or any Subsidiary or for a substantial part of its property, commencing by the Company or any Subsidiary of any proceeding under any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereinafter in effect, admitting by the Company or any Subsidiary of its inability to pay its debts generally as they become due or authorizing any of the foregoing to be done or taken on behalf of the Company or any Subsidiary, or consenting to or acquiescing in by the Company or any Subsidiary of the filing or other initiation of an involuntary petition for relief against the Company or any Subsidiary under any Chapter of the Bankruptcy Code or for the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) for the Company or any Subsidiary or all or substantially all of its or their assets; (1) initiating, engaging in, abandoning, filing or settling, on behalf of the Company or any Subsidiary, lawsuits or other proceedings, except for (A) actions to recover rents (including the imposition and execution of liens on tenants' property) and other amounts payable to the Company or any Subsidiary under leases, provided that the expenditure of amounts in excess of $104,000.00 with respect to any applicable tenant action shall constitute a Major Decision, (B) the defense by insurers of insured claims (subject to any applicable deductible), (C) an action against a vendor, supplier or subcontractor in the ordinary course of business, which does not involve an amount in excess of $100,000.00, or (D) settling any suit brought by a tenant or other liability claire which does not involve (i) an amount in excess of $100,000.00 or (ii) claims by such tenant or other party of fraud or criminality against the Company or any Subsidiary (but the expenditure of amounts below the thresholds set forth in this clause (m) is authorized); (m) except as expressly set forth in this Agreement, selling, encumbering or pledging any of the Equity Interests; (n) making any distributions in kind by the Company; (o) the incorporation or formation of any Subsidiary; OR (p) approving the Company's auditors or environmental consultants if other than those set forth on Exhibit E (with those on Exhibit E being hereby approved by the AAC Member); (q) changing the fiscal year of the Company or any Subsidiary; (r-) approving the delegation by the Managing Member of any of its responsibilities, duties, obligations or liabilities under this Agreement, other than to its Affiliates; (s) approving a capital project by the Company or any Subsidiary that costs more than $100,000.00 (with any project of $100,000.00 or less being authorized) or approving any contract for any Material Agreements set forth in Schedule 4.8(a) of the MIPA; (t) approving or settling by the Company or any Subsidiary of any matters relating to (i) any casualty affecting the Property involving an amount of more than $250,000.00 or (ii) any condemnation or eminent domain proceeding affecting the Property (other than as required under any applicable loan documents). (u) except as otherwise expressly set forth in this Agreement, making any tax decision or tax election (including decisions that could impact an Affiliated REIT's status as a REIT, accounting method changes, and decisions made in connection with a tax audit) that is reasonably likely to have a material effect on the Company, any Subsidiary, the Property or any Member; (v) rmlcing any decision or taking any action with respect to any environmental remediation matter relating to the Property, including selection of consultants in regard thereto and adoption of and implementation of any operation and maintenance program relating thereto or any other program to remove or otherwise remediate hazardous materials; (w) any other action which expressly requires the consent of all Members under this Agreement_ 6.3 ikffiliate Contracts. With respect to any Affiliate Contract, a Member that is not a Conflicted Member with respect to such Affiliate. Contract is entitled, on behalf of the Company and without the consent of the other Member, to declare defaults under and exercise (or elect to not exercise) ternninatiozr rights ander, such Affiliate Contract. If any default (beyond applicable cure periods) or material dispute exists under an Affiliate Contract, then the Conflicted Member shall promptly notify the other Member. In the event of any such default or dispute (regardless of whether or not the Conflicted Member have notified the other Member), the Member that is not a Conflicted Member may, on behalf of the Company and without the other Member's consent, enforce that Affiliate Contract (including termination, if applicable). Except as expressly provided herein and in Section 6.2, the Managing Member retains the right to act on behalf of the Company or a Subsidiary under an Affiliate Contract_ 6.4 REIT Restrictions; Etc. (a) So long as an Affiliated REIT owns, directly or indirectly, any interest in the Company, the Managing Member shall use reasonable efforts to cause the Company (taking 22 into account amounts that flow through to the Company or are treated as the Company's for federal income tax purposes) to comply with the following: (i) at least ninety-five percent (95%) of the gross income of the Company for each taxable year (or portion thereof, if applicable) will be derived from the items described in Section 856(e)(2) of the Code and the Treasury Regulations promulgated thereunder, (ii) at least seventy-five percent (75%) of the gross income of the Company for each taxable year (or portion thereof, if applicable) will be derived from the items described in Section 856(c)(3) of the Code and the Treasury Regulations promulgated thereunder; (iii) as of the end of each quarter of each Fiscal Year, except for securities of a Taxable Reit Subsidiay ("TRS"), the Company shall not ow�, directly or indirectly, securities that would cause an Affiliated REIT to be treated, for purposes of Code Section 856(c)(4) and the Treasury Regulations promulgated thereunder, as holding securities (x) possessing more than ten percent (10%) of the total voting power of the outstanding securities of any one issuer, (y) having a value of more than ten percent (10%) of the total value of the outstanding securities of any one issuer, or (z) issued by one issuer and having a value of more than five percent (5%) of the gross value of such Affiliated REIT; (iv) as of the end of each quarter of each Fiscal Year, the Company shall not hold securities of a TRS such that an Affiliated REIT is treated, for purposes of Code Suction 856(c)(4) and the Treasury Regulations promulgated thereunder, as having more than twenty-five percent (25%) of the value of its assets repr:.sented by securities of one or more taxably: REIT subsidiaries (as determined under Section 856(c) of the Code and the Treasury Regulations promulgated thereunder); (v) as of the end of each quarter of each Fiscal Year, at least seventy-five percent (75%) of the value of the Company's assets shall be represented by the items described in Section 856(c)(4)(A) of the- Code and the Treasury Regulations promulgated thereunder (that is, real estate assets, cash and cash items (including receivables) and government securities (each as defined in Section 856 of the Code and the Treasury Regulations promulgated thereunder)); (vi) the Company shall not engage in any prohibited transaction within the meaning of Section 857(b)(6) of the Code and the Treasury Regulations promulgated thereunder; (vii) any services that w=ould otherwise cause any rents from a lease to be excluded from treatment as rents from real property pursuant to Section 856(d)(2)(C) of the Code and the Treasury Regulations promulgated thereunder with respect to an Affiliated REIT shall be provided by either (1) an independent contractor (as described in Section 856(d)(3) of the Code and the Treasury Regulations promulgated thereunder) with respect to such Affiliated REIT and from whom neither the Company nor such 23 Affiliated REIT derives or receives any income or (2) a TRS of such Affiliated REIT as described in Section 876(1) of the Code and the Treasury regulations promulgated thereunder, except as otherwise consented to in writing by such. Affiliated REIT; and (viii) as of the end of each quarter of each Fiscal Year, except for a lessee or sublessee that is a TRS, the Company shall not own, directly or indirectly or by attribution (in accordance with at#ribution rules referred to in Section 856(d)(5) of the Code and the Treasury Regulations promulgated thereunder), in the aggregate more than ten percent (10% )of the total value of all classes of stock or mare than ten percent (10%) of the total voting power (or, with respect to any such: Person which is not a corporation, an interest of ten percent (10%) or more in the assets or net profits of such Person) of a lessee or sublessee of all or any part of the Property or of any other assets of the Company except in each case with the specific written approval of the Affiliated REIT for whom such ownership would cause a related party rent issue under Section 856(4)(2) of the Code and the: Treasury Regulations promulgated thereunder. (b) The Members will act reasonably in amending Section 6.4(a) to reflect any material changes in the provisions of Sections 856 through and including. Section 860 of the Code that are made after the date hereof. Any I'vlember that has an Affiliated REIT may request from the IManaginv. kJ'ernbcr, no more frequently than quarterly, a copy of any and all questionnaires that will be submitted to the Property Manager by the Managing Member and that are relevant to the determination of whether any income generated by the Property or services provided by the Company or any Subsidiary would violate the terms of Section 6.4(a). The Managing Member shall provide the requesting Member with such copies within two (2) business days and will comply with reasonable requests for modifications to such questionnaires that are delivered to the Managing 1,lember within three (3) days of its provision of the copies to the requesting Member. The Managing Member shall use commercially reasonable efforts to ensure that such questionnaires are completed and returned to the requesting Member within thirty- (30) calendar days after the original requests were received by the Managing Member. The Managing Member shall exercise corm-rercially reasonable efforts to prevent the Company and each Subsidiary from engaging in a transaction that is a "listed transaction" as defined in U.S. Department of Treasury Reg. § 1.6011--4(b)(2) on the date such transaction is commenced. 6.5 Exculpation and Indemnification. Notwithstanding anything to the contrary contained herein or any otherwise applicable provision of law or equity: (a) None of the Members (including the Managing Member), any Special ]VIerimber, any Independent Manager, their Affiliates or any officer or director of any of the foregoing (each such party, an "Indemnified Party") shall be liable, responsible or accountable in damages or otherwise to the Company or any Member, and the Company and each Member does hereby release such Indemnified Party, for any act or omission in connection with the Company or any Subsidiary, except to the extent it is determined by an arbitrator pursuant to a binding arbitration in accordance with Section 11.7 that such act or omission (i) is a material breach of an Indemnified Party's obligations under this Agreement or (ii) resulted from such Indemnified Party's wil]fW malfeasance, fraud or gross negligence or (iii) is a felony (such acts or omissions described in clause, (ii) andiii' the "Default Actions" and each, a "Default Action"'). 24 (b) To the fullest extent permitted by lav, the Company shall indemnify, defend and save harmless each Indemnified Party from any damage, liability, loss, cost, fee (including legal fees and costs) or expense of any nature whatsoever, known or unknown, liquidated or unliquidated (collectively, "Losses"} that is suffered or incurred by an Indemnified Party and arises out of or in connection with the affairs or activities of the Company or any Subsidiary, or the performance by sucli Indemnified Party of any of the responsibilities of the Managing Member hereunder or otherwise in connection with the matters contemplated herein, except to the extent it is determined by an arbitrator pursuant to a binding arbitration in accordance with Section 11.7 that such Losses resulted from a Default Action. If any Indemnified Party becomes involved in any capacity in any action, proceeding or investigation in connection with any matter arising from, related to, or in connection with, this Agreement or the Company's or any Subsidiary's business or affairs, whether or not pending or threatened, and such lnderruiified Party believes in good faith that it is entitled to indemnification hereunder, the Company will periodically advance such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith; provided that such Indemnified Party shall (i) affirm in writing that it in good faith believes that it is entitled to indemnification hereunder and (ii) agree in writing to promptly repay to the Company the amount of any such advanced expenses paid on its behalf to the extent that it shall be ultimately determined that such Indemnified Party is not en6dcd to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the iinrn :diately preceding sentence. The Company's obligation herein to indemnify any Indemnified Party is in addition to any other indemnification to which such Indemnified .Party is entitled, and any indemnity under this Section 6.5(b) shall be provided out of and to the extent of Company assets only, and no Member shall have personal liability on account thereof. (c) For all purposes of this Agreement, (i) the Managing Member, Special Member or Independent Manager shall not be in breach of this Agreement solely as the result of an act or failure to act in connection with the management of the Company or any Subsidiary unless such action or failure to act constitutes gross negligence, willful malfeasance or fraud; and (ii) an act shall not constitute willful malfeasance if it was taken in good faith and in the belief that it was in the best interests of the Company or any Subsidiary. (d) Whenever in this Agreement the Managing Member, Special b -£ember, or any other Person is permitted or required to make a decision (i) in its "discretion" or under a grant of similar authority or latitude, such Person shall be entitled to consider ordy such interests and factors as it desires, including its own interests, and shall, to the fullest extent permitted by applicable law, have no fiduciary or other duty or obligation to give any consideration to any interest of or factors affecting the Company or the Members, or (ii) in "good faith" or ander another expressed standard, such Person shall act under such express standard and shall not be subject to any other or different standards. (e) To the extent that, at law or in equity, an Indemnified Party has duties (including fiduciary duties) and liabilities relating thereto to the Company, any Subsidiary, or any Member, such Indemnified Party shall not be liable to the Company, any Subsidiary, or any Member for its good faith reliance on the provisions of this Agreement or the governing documents of any Subsidiary. The provisions of this Agreement or the governing documents of any Subsidiary, to the extent they expressly restrict or eliminate such duties and liabilities of the A, Indemnified Parties, are agreed by the Members (each on behalf of itself and its related Indemnified Parties) to replace such other duties and liabilities of such Indemnified Party. (f) Any repeal or modification of this Section 6.5 shall not adversely affect any ri,,-:,Iat or protection of a Person existing at the time of such repeal or modification. 6.6 Deemed Approval. With respect to any written notice issued by the Managing IvIcinber to the other Members iii which the Managing Member proposes that the Company make, undertake or approve a Major Decision specified in Section 6.2(h) arictfor Section 6.2(s), a Member shall be deemed to have approved the matter set forth therein if such Member fails to respond within five (5) business days after receipt of such notice. ARTICLE MEMBERS 7.1 Limited Liability. No Member or Special Member shall be personally liable for any obligations of the Company and shall have no obligation to make Capital Coatributioris to the Company solely by being a Member of the Company, except to the extent required by this Aare-ement or the Act; provided, that a Member shall be required to return any distribution made Z� to it in error. T' Business C Member or _Inpqrtwifties. Each Member recognizes that the other N M Special N.-lember, and its respectiye, members, partners, shareholders, officers, directors, employees, agents- representatives arid Affiliates (collectively, "Related Persons") have, or may in the future have, other business interests, activities and investments, some of which are or may be in conflict or competition wid) th(,, business of the Company and/or one or more of its Subsidiaries, and each Member or Special Member and its Related Persons are entitled to carry on such other business interests, activities and investments without restriction notwithstanding any provision to the contrary at law or in equity. Each Member or Special Mernber and its Rolatod Persons may engage in or possess an interest in any other business or venture of any kind, independently or with others, including owning, financing, acquiring, leasing, promoting, developing, improving, operating, managing and servicing real property on its own behalf or on behalf of other Entities with which any Member, Special Member or its Related Persons is affiliated or otherwise, and each Member or Special Member and its Related Persons may engage in any such activities, whether or not in competition with the Company and/or one or more of its Subsidiaries without any obligation to offer an), interest in such activities to the Company, to any Subsidiary or to the other Member or Special Member and without other restriction or limitation of any kind notwithstanding any provision to the contrary at law or in equity. bone of the Company nor any Subsidiary, nor any Member, nor any Special Member, shall have any right, by virtue of this Agreement, in or to such activities, or the income or profits derived therefrom, and the pursuit of such activities, even if in competition with the business of the Company and/or one or more of its Subsidiaries, shall not be deemed wrongful or improper, Notwithstanding the, foregoing, the Managing Member arid the AAC Member agree that with respect to the Property, neither Member will enter into any transaction to purchase, or otherwise acquire interest in, adjoining properties to the Property without first offering the other Member the right to participate in such transaction upon the same terms and conditions as the Member that initiated such transaction. 26 7.3 Confidentiallnformation. (a) Each Member shall keep confidential and shall not disclose, or permit any of its Disclosure Recipients to disclose, any Confidential Information regarding the Company Entities or the other Member's Confidential Information, except (and then only) to the extent that (i) the disclosure of such information or materials is expressly required by applicable law, or (ii) the information or materials were previously known to such Member other than due to disclosure by any Company Entity or such other Member, or (iii) the information or materials become publicly known other than through the actions or inactions of such Member or its Disclosure Recipients in violation of this Agreement or (iv) the Managing Member reasonably deterntilnes that disclosure of the Confidential Information of the Company Entities is necessary or advisable in the operation of the Company's or any Subsidiary's business or (v) the disclosure of such information and materials by such Member is to its Disclosure Recipients (provided that each such Disclosure Recipient agrees to keep such information and materials confidential to the same extent as if it were a Member of the Company or is otherwise required under applicable lain to keep such information confidential and such Member shall be responsible for the failure of any such Person to so comply). Without limiting the foregoing, in the event that any Member or any of its Disclosure Recipients is required by any applicable law, statute, governmental rule or regulation or judicial or governmental order, judgment or decree to disclose any inforrnation, unless otherwise agreed to by the Members, prior to such disclosure such Person shall promptly notify the other Members (w the extent not prohibited by applicable law from giving notice) in writing of such witicipated disclosure, which notification shall include the nature of the legal requirement and the extent of the required disclosure, and such Person shall cooperate with the other /Member, at the Company's expense, to preserve the confidentiality of such information consistent with applicable law (including withholding disclosure of such information, to the extent permissible, until such time as it has been finally determined that such disclosure is required under applicable law). (b) Without limiting the foregoing, each Member agrees that the following, items are included within Confidential Information of, and are of independent, proprietary, economic value to, the Company and/or any Subsidiary and that the disclosure of such information in breach of this Agreement would cause substantial, irreparable harm to the Company and/or any Subsidiary: (i) all information regarding the historical or projected cash flows, revenues, rental rates, expenses, capital expenditures and profitability of the Property; (ii) all information pertaining to the valuation ascribed to the Property; and (iii) all financial statements or other information concerning the historical or projected financial condition, results of operations or cash flows of the Property. (c) Notwithstanding anything else contained in this Agreement (including the other provisions of this Section 7.3), each Member may disclose the tax treatment and tax structure (as such terms are used in Code Section 6011 and the Treasury Reg. promulgated thereunder) of its investment in the Company and of any transactions entered into by the Company; provided, that this authorization to disclose such tax treatment and tax structure is not intended to permit disclosure of any other iafbrmation. 7.4 1\regative Balances; Withdrawal of Capital; Interest; No Priority. A Member shall not have any obligation to the Company or to any other Member to restore any negative balance 27 in the Capital Account of such Member. No Member may withdraw capital or receive any distributions except as specifically provided herein.. No interest shall be paid by the Company on any Capital Contributions. No Member, in such capacity, shall have priority over any other Member as to return of Capital Contributions or allocations of income, gain, loss, expense, deduction or credits or as to distributions, except to the extent provided herein. 7.5 Special Member. Upon the occurrence of any event that causes the last remaining Member to cease to be a member of the Company (other than upon an assignment by such last Member of all of its Units and the admission of the transferee pursuant to Article 8 (a "Member Cessation Event"), the Independent Managers whose name and signature is first set forth on the Joinder of Independent Manager attached hereto shall, without any action of any Person and simultaneously with such Member Cessation Event, automatically be admitted as members of the Company (in each case, individually, a "Special klember" and collectively, the "Special Members") and shall preserve and continue the existence of the Company without dissolution. If, however, at the time of a Member Cessation Event, such Independent Manager has died or is otherwise no longer able to step into the role of Special Member, in such event, the other Independent Manager 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 a Special Member and shall continue the Company without dissolution. It is tl-e 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 Mornber unless (i) a successor Special Member has been admitted to the Company as Special Member by executing a counterpart to this Agreement, and (ii) such successor has also accepted its appointment as Independent Manager pursuant to Article 12; provided, however, that the Special Member shall automatically cease to be a member of the Company upon the admission to the Company of a substitute Member (which the last Member or its personal representative may cause to occur). 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_ A Special Member shall not be required to make any capital contributions to the Company and shall not receive Units or any other 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, the Special Member, in its capacity as Special Member, shall have no right to vote on, approve or othenvise 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 implemm-it the admission to the Company of the Special Member, each person acting as an Independent Manager pursuant to Article 12 shall execute a counterpart to this Agreement. Prior to its admission to the Company as Special Member, each person acting as an Independent Manager pursuant to Article 12 shall not be a member of the Company. By signing this Agreement, each person acting as an Independent Manager pursuant to Article 12 agrees that, should such person become a Special Member, such Special Member will be subject to and bound by the provisions of this Agreement applicable to a Special Member. 28 ARTICLE 8 TRANSFER OF COMPANY INTERESTS 8.1 Transfers. (a) Except for a transfer pursuant to Section 8.11), Section 8.5, Section 8.6, or 8_7 3rd except for the grant of security interest contained in Section 3.3 and a transfer pursuant thereto, no Member may, sell, assign, transfer, encumber, pledge, mortgage or otherwise dispose of (a "Transfer") any or all of its Interest to any Person unless the other Member has consented to such Transfer in writing (which consent may include such conditions as the Member requests in its discretion). (b) A Member may Transfer its entire Interest in the Company to an Approved Owner of such Member without the consent of the other Member as long as (1) the Member assigning its entire Interest shall provide the other Member with prior written notice of such assignment, (Z) neither such Member nor any of its Affiliates, if applicable, shall be in material breach of the terms of, or their respective obligations contained in, this Agreement at the time of such Transfer and (3) all of the conditions contained in Section 8.1(c) are satisfied with respect to such Transfer, provided, however, that, the transferor shall remain liable for all liabilities and obligations relating to the Transferred Interest. In addition to the foregoing, and subject to Section_ 8.I (c1, any equity owner of the AAC Member shal l have the right to Transfer its interests in AAC Member to any Person without the consent of the Managing Member so long as Berl Ashkenazy, directly or indirectly, (i) shall own no less than twenty percent (20%) of the interests of the AAC Nlentber and (ii) shall continue to control the AAC Member. (c) NotAvithstanding any other provision of this Agreement: (i) No Transfer shall be permitted if the Transferee does not truthfully make the representation and warranty contained in Section 9.1 or if such Transfer would (A) unless all Members otherwise consent in advance, cause the Company to lose its ability to rely on the "qualified purchaser" exemption of Section 3(c)(7) of the Investment Company Act, or other exemption from registration under the Investment Company Act upon which the Company is entitled to rely at such time, (B) cause the Company to be treated as a publicly traded partnership within the meaning of Code Section 7704 and U.S. Department of Treasury Reg. §1.7704-1, (C) cause the Company to be classified other than as a partnership for U.S. federal income tax purposes, (D) cause all or any portion of the assets of the Company to constitute Plan Assets, (E) cause the Company to be required to register the Interests in the Company under the U.S. Securities Exchange Act of 1934, as amended, the Securities Act or the securities laws of any non -U.S. jurisdiction, (F) cause any of the Company, any Subsidiaries, the Members or thein Affiliates to be subjected to (or materially increase its obligation with respect to) any regulations or reporting requirements that are significant or materially burdensome, (G) create a substantial risk that the limited liability of any Member would be affected adversely, or (M be a breach or violation of any covenants, restrictions or other agreements contained in any documents entered into by any Subsidiary (or any Affiliate of a Member) in connection with any loan made to any such Subsidiary; MAORGITeams\Gemeral Teams%CCSSCosporatelsubs(Aw \Ashkenaz)ABaysideOkvside_3rd_.4.It_C1A_JV_FrNAL_v4_FiNAL.doc (ii) As a condition to any Transfer of a Member's Interest (including a. Transfer not requiring the consent of the Members), the transferor and the transferee shall provide such Iegal opinions, documentation and information (including information necessary to comply with the requirements of Code Section 743, if applicable) as the Managing Member shall reasonably request; (iii) The assignnient of an Interest in accordance with Section 8_I of this Agreement shall entitle the transferee only to receive the distributions and allocations with respect to such interest and not to any other rights of a Member unless such transferee is admitted as a substitute Member pursuant to this Section 8.1(c)(iii), in which case such admitted assignee; shall be entitled to exercise all other rights with respect to such Interest (but an assignee is bound by the provisions of this Agreement, whether or not it becomes a substituted Member). A transferee of an Interest shall become a substitute Member only if the Transfer to such transferee is in accordance with the terms of this Agreement: and such transferee executes a copy of this Agreement or an amendment hereto in form andsubstance reasonably satisfactory to the non -Transferring Member confirming such transferee's agreement to be bound by this Agreement. The Managing Member shall modify Schedule I to reflect such admittance of any substitute Members, but the failure to do so shall not constitute a breach of this Agreement or affect such Person's siatrrs as a. substitute Member. If a Member transfers all of its limited liability company irrterest in the Company pursuant to this Section 8.1 and the transferee is admitted as a substit3ft- Member of the Company, such admission shall be deemed effective immediately prior to the transfer and, immediately following such adrnission, the transferor Member shall cease to be a. member of the Company. (iv) The transferor and transferee of any Membt-r's Interest shall be jointly and severally obligated to reimburse the Managing Member and the Corrnpany for all reasonable documented expenses (including ally transfer taxes, attorneys' fees and expenses and any immediate or ongoing accounting costs attributable to the Company's compliance with the requirements of Code Section 743(b) or (e) with respect to the: transferred Interest) of any Transfer or proposed Transfer of a Member's Interest, whether or not consummated. The transferee of any Interest shall be treated as having made all of the Capital Contributions made by, and received all of the allocations and distributions received by, the transferor of such Interest in respect of such Interest. (d) To the fullest extent per=nitted by law, any Transfer that violates this Section 8.1 (any such Transfer, an "Unpennitted Transfer") shall be void and the purported buyer, assignee, transferee, pledgee, mortgagee or other recipient shall have no interest in or rights to Company assets, profits, losses or distributions and neither the Managing Member nor the Company shall be required to recognize any such interest or rights. 8.2 leo Withdrawal or Loans. Except as otherwise set forth in this Agreement, no Member may withdraw as a member of the Company, nor shall any Member be required to )Aithdraw froze. the Company, not may a Member borrow or withdraw any portion of its Capital Account from the Company. 8.3 No Termination. Neither the substitution, death, incompetency, dissolution (whether voluntary or involuntary) nor bankruptcy of a Member shall, by itself, affect the existence of the Company, and the Company shall continue for the terrn of this Agreement unless . sooner dissolved in accordance with this Agreement or the Act 8.4 "Waiver of Partition. Except as may otherwise be provided by law in connection rxPith the dissolution, liquidation and final winding -up of the Company, each Member hereby irrevocably waives any and all rights that it may have to maintain an action for partition of any of the Company's property. 8.5 Buy -Sell Right. (a) Brom and after the expiration of the Lockout period, or within thirty (30) days after the occurrence of a B/S Trigger Event, if any Member (the "B/S Offeror") desires to exercise its right to initiate the provisions of this Section 8.5 (the "B/S Oration'), it shall do so by giving -ritten notice (the ``B/S Notice") to the other Members (the "BIS Offeree") setting forth a statement of intent to invoke the B/S Option. The B/S Notice shall contain (i) an aggregate dollar value for the Interest, free and clear of all liabilities, as determined by the BIS Offeror in its sole discretion (the "B/S Valuation Amount") and (ii) the B/S Offeror's good faith estimate of the B/S Distribution Amount with respect to the B/S Offeror and the B/S Offeree. For purposes hereof, the "B/S Distribution Amount" means, with respect to the B/S Offeror or B/S Offeree, the amount that would be received by the BIS Offeror or the B/S Offeree, as applicable, pursuant to Arti.cle 4 assuming that the Interest was sold for the B/S Valuation Amount, the other current assets (other than cash) of the Compaaay and any Subsidiary were sold for their book values (net of contra accounts), the Company and any Subsidiary paid all of their liabilities to the extent required to be paid by law, the purchaser paid any and all applicable transfer taxes, documentary stamps or similar fees that would be incurred by the Company and its Subsidiaries if the Company and its Subsidiaries sold the Interest and a]1 Available Proceeds were distributed to the Members pursuant to Article 4. . (b) After receipt of a B/S Notice, the B/S Offeree shall, within thirty (30) days thereafter (the "BIS Response Period'"}, give written notice (the "B/S Electing Notice") to the B/S Offeror of the B/S Offerec's election to either (i) purchase the entire Interest of the B/S Offeror for a purchase price equal to the B/S Distribution Amount applicable to the B/S Offeror (the "B/S Buy Oration") or (ii) sell to the B/S Offeror the entire Interest of the B/S Offeree for a purchase price equal to the B/S Distribution Amount applicable to the B/S Offeree (the "B/S Sell Option"). If the BIS Offeree does not deliver such BIS Electin8 Notice within. the B/S Response Period, then the B/S Offeree shall be deemed to have elected the B/S Sell Option. (c) Within five (5) Business Days after an election has been made under Section 8.5(b) (whether deemed or othemise), the acquiring Member shall deposit into escrow, with an escrow agent selected by the acquiring Member but not an Affiliate of the acquiring Member, and reasonably acceptable to the selling Member, an earnest money deposit in an amount equal to ten (10%) percent of the B/S Distribution Amount, which deposit shall be applied to the purchase price at closing. (d) The closing of the purchase and sale pursuant to this Section 8.5 shall occur pursuant to Section 8.7 and the terms of Section 8.7 shall apply to any such purchase and sale. (e) In the event any GGP Member is a BIS Offeror, then each of the GGP Members must offer sell its respective Interests and collectively issue a B/S Notice in accordance ,Mth Section 8.5(a). The GGP Members shall collectively be considered the B'S Offeror for purposes of this Section 8.5 and the Selling Member for purposes of Section 8.7 below. In the event the AAC Member is the B/S Offeror, GGPN shall be the sole B.,S Offeree. (f) Notwithstanding anything to the contrary contained in this Agreement, if at any time a Member has exercised the B/S Option in accordance with this Section 8.5, then the other Member shall not have the right to exercise the B/S Option and such Member shall have no right to deliver a ROFO Notice until the completion of the process pursuant to this Section 8.5. 8.6 Right of First Offer. (a) If a Member (the "ROFO Initiating Member'') desires to sell all of its Interests (thc "ROFO Offered Interest") to any Person other than to an Approved Owner pursuant to Section 8.1 and other than pursuant to Section 8.5 or 8.7, the ROFO Initiating Member shall provide written notice to the other Member (the "ROFO Recipient Member') setting forth its intention to market for sale the ROFO Offered Interest (the "ROFO Notice"), w--hieh notice shall include (i) the cash purchase price that the ROFO Initiating Nfernber is willing to accept for the ROFO Offered Interest, as determined by the ROFO Initiating Member in its sole discretion (the "ROFO Market Value"), and (ii) the other proposed monetary and material terms of such sale (which must include payment of the purchase price in cash at the closing). (b) Within thirty (30) days after receipt of a ROTO Notice (the "ROFO Response Period"), the ROFO Recipient Member may deliver written notice (the "ROFO Electing Notice") to the ROFO Initiating Nfember of the ROFO Recipient Member's election to purchase the ROFO Offered Interest for the ROFO Market Value (the "ROFO purchase Option"). If the ROFO Recipient Member does not deliver such ROTO Electing Notice within the ROFO Response Period, then the ROFO Recipient Member shall be deemed to have waived its right to exercise the ROFO Purchase Option. (c) If the ROFO Recipient Member elects the ROFO Purchase Option pursuant to Section 8.6(b), (i) within five (5) Business Days aster such election has been made, the ROFO Recipient Member shall deposit into escrow, with an escrow agent selected by the ROFO Recipient Member but not an Affiliate of the ROFO Recipient Member and reasonably acceptable to the ROFO Initiating Member, an earnest money deposit, in an amount equal to ten percent (10%) of the ROFO Market Value, which deposit shall be applied to the purchase price at closing, (ii) the ROFO Initiating Member shall be obligated to sell, and the ROFO Recipient Member shall be obligated to purchase, the ROFO Offered Interest for the ROFO Market Value and upon the other terms contained in the ROFO Notice except as otherwise provided herein, (iii) the closing of such transaction shall occur in accordance with the provisions of Section 8.7 and (iv) the terms of Section 8.7 shall apply thereto. (d) If the ROFO Recipient Member shall not timely elect to purchase the entire ROFO Offered Interest, the ROFO Initiating Member shall be free to market for sale the ROFO Offered Interest and negotiate with any prospective third party .purchasers the terms for the sale of the ROFO Offered Interest and Transfer the ROTO Offered Interest pursuant to the terms hereof for an amount equal to or greater than ninety-five percent (95%) of the ROFO Market Value (the "ROFO Target Price") and on terns no more favorable to the purchasing; party than those other terms contained in the ROFO Notice. If the ROFO Initiating Member receives a bona fide third -party offer during the ROTO Sale Period to purchase the ROFO Offered Interest for a purchase price that is less than the ROFO Target Price and the ROFO Initiating Member desires to accept such offer, then the ROFO Initiating Member shall reoffer in writing to the ROFO Recipient Member the ROFO Offered Interest at such lower price and the provisions of this Section 8.6 shall re -commence except that the ROFO Recipient Member shall have only fifteen (15) days from receipt of such written reoffer to notify, in writing, the ROFO Initiating Member that the ROFO Recipient lkfeinber agrees to purchase the ROFO Offered Interest at such lower price and the time periods set forth below in this ',Section 8.6(d) shall confinue to be based on the ROFO Response Period. The ROTO Initiating Member shall have one hundred (180) days from the ead of the ROFO Response Deadline to consummate a Transfer of fe ROFO Offered Interest to a third party purchaser in accordance with the terms of this Section 8.6 (the "ROTO Sale Period"j and no Transfer may occur pursuant to this Section 8,6 after the ROFO Sale Period unless another ROFO Notice is given and the process set forth in this Section 8.6 is recommenced. Notwithstanding anything to the contrary set forth in this Section 8.6. without the prior written consent of the ROTO Recipient Member, (i) the buyer of the ROFO Offered Interest pursuant to this Section 8.6(d) shall not be an Affiliate of the ROFO Initiating Member (or any lvlember comprising the ROFO Initiating Member) or an Entity in which the ROFO Initiating; Member (or any of the Members comprising the ROTO lydtiating Member) directly or indirectly owns greater than a ten percent (10%) interest, (ii) the buyer of the ROFO Offered Interest pursuant to this. Section 8.6(d) must be a Qualified Transferee and (iii) the Transfer pursuant to this Section 8.6(d) shall comply with the provisions of Section 8.1c . (e) Notwithstanding anylhing to the contrary contained herein (but subject to Section 8-7(b) and Section 8.7(e)), (i) if a Member delivers a ROFO Notice but the ROFO Offered Interest is not sold pursuant to the process commenced by delivery of such ROFO Notice, such Member may not deliver another ROFO Notice for twelve (12) months after the completion of such process and (ii) if a Member delivers a ROFO Notice, no Member may deliver. a B/S Notice until the Completion of the process commenced by delivery of such ROFO Notice. (f) In the event any GGP Member is a ROFO Initiating Member, then each of the OUP Members must offer to sell its respective Interests and collectively issue a ROFO Notice in accordance with Section 8.6(a). The GGP Members shall collectively be considered the ROFO Initiating Member for purposes of this Section 8.6 and the Selling Member for purposes of Section 8.7 below. In the event the AAC Member is the ROFO Initiating Member, GGGPN shall be the sole ROFO Recipient Member. (g) Tag Along Right. (i) If any ROFO Initiating Member proposes to Transfer to a potential purchaser its Interest in the Company (such Transfer, a "Tag Along Sale"), and the Company and the ROFO Recipient Member elect not to exercise its right to purchase all of the ROFO Offered Interests pursuant to Section 8.6, them the ROFO Recipient Member (the "Tag Along Membex`) shall have the option,. exercisable in its sole discretion, to participate in the Tag Along Sale at the ROFO Target Price and on the terms set forth in the ROFO Notice, by providing written notice (the "Tag Along Notice;") to the ROFO Initiating Member on or before the thirtieth (30th) calendar day following the expiration of the ROFO Recipient Member Response Period. (the "Expiration bate"). The Tag Along Member shall be entitled to include in the Tag Along Sale all of the Tag Along Member's Interests (the "Tag Along I tcrests"). (ii) Upon receipt of any Tag Along Notice frorn a Tag Along; Member representing that the Tag Along Member is elect ng to participate in the Tag Along Sale, the ROFO Initiating Member shall cause the potential purchaser to pcuchase fxom such Tag -Along Member all of the Tag Along Interests. If the potential purchaser is not willing to purchase all of the Interests proposed to be Transferred by the Tag Along it�iember, then the Tag Along Sale shall not occur and the potential purchaser shall be required to withdraw its offer. At the time of consuaitnation of the Tag Along Sale, the ROFO Initiating M.enlber shall cause the potential purchaser to re'llut directly to such Tag Along Member that portion of the sale proceeds to which such 'Fag =Tong Member is entitled by reason of such Tag Along Member's participation in the Tag Along Sale. (iii) In furtherance, and not in limitation, of the foregoing, in connection with any Tag Along Sale, the Tag Along Member will execute all documents containing such terins and conditions as those executed by the ROFO Initiating Member that are reasonably necessary to effect the transaction-, provided, however, that (A) the liability of the ROFO Initiating Member and the Tag Along Member shall be several and not joint, (13) no ROFO Initiating Member or Tag -Along Member shall have any liability to the Company or the other Member for any breaches of the, represcntation:s, warranties or covenants of the other Member, (C) any obligations of the ROTO Initiating Member or the Tag Along Member tinder the agreement govcr ling such transaction and any related escrow agreement shall be borne pro rata among such Members based on the proceeds and assets payable to such Members in such transaction (other than any such obligations that relate specifically to a particular Member's Interests, which obligations shall be bome solely by such Member) and shall in no event exceed the actual proceeds and assets received by each such Member in suet transaction, (D) if any Member is given an option as to the form of consideration to be received, the other Members shall be given the same option on the same terms, and (E) If the form of consideration to be received by the ROFO Initiating Member is other than cash, such Tag Along Member shall have the right to receive cash at the ROFO Market Value of such other consideration. (iv) If a Tag Along Member fails to deliver a Tag Along Notice before the Expiration Date, then such Tag Along Member shall forfeit the right to participate in such Tag Along Sale. The ROFO Initiating Member shall have forty five (45) calendar days after the Expiration Date to consummate the proposed transaction identified in the Tag Along Notice at the ROFO Target Price and on the terms set forth in such Tag Along Notice, provided, that the ROFO Initiating Member shall be deemed to have sold such ROFO Initiating Member's interests pursuant to Section 8.6(a) during such forty five (45) day period if such Member, during such period, has irrevocably entered into a bona fide binding agreement to sell such Interests to a potential purchaser, provided further, that the closing of such Transfer must occur within forty five (45) calendar days following the execution of such bona fide binding agreement. If the ROFO Initiating Member ever wishes to Transfer such Interests for a price per Interest that is Iess than the ROFO Target Price or on material terms and conditions that are more favorable to the potential purchaser than the terms, or if the ROFO Initiating Member wishes to Transfer such Interests following the expiration of such forty five (45) -calendar day period, the ROFO Initiating Member shall be required to first comply with Section 8.6 anew. 8.7 General Provisions Applicable to "Transfers Among Members Pursuant to Sections 8.5 and 8.6. (a) The closing of the purchase by any Member (the "Purchasing Member") of the Interest or Intercst3 of another Member or Members (the "Selling Member") pursuant to Section 8_.5 or Section 8.6 shell be held at the principal place of business of the Company on a mutually acceptable date (the "Closing Date") not later than one hundred twenty (120) days after the date the B/S Electing Notice or ROFO Electing Notice, as the case may be, is given. Notwithstanding the foregoing, in the event of a Termination Trigger on or before the Closing Date, the Purchasing Member inay select, by written notice to the Selling Member no Iater than fifteen (15) Business Days after the Purchasing Member first has actual knowledge of the occurrence of such Termination Trigger, not to proceed with the closing of the applicable purchase, in which event the earnest money deposit shall be returned to the Purchasing Member. The purchase price to be paid by the Purchasing Member for the Interest or Interests to be purchased pursuant to Section 8.5 or Section 8.6 (the "Subject Interest") shall be paid by wire transfer of immediately available funds, at the closing of such transaction_ Additionally, at the closing of such transaction, each Member shall execute and deliver any and all deeds, assigriments, agreements and other contracts as may be reasonably necessary to consummate any such transaction, including a representation and warranty by the Selling Member that the Subject Interest is free and clear of all liens, claims and encumbrances. Any transfer or similar taxes and other expenses related to the sale of the Subject Interest shall be paid in accordance with the practices and customs in Miami, Florida unless provided otherwise in an applicable ROFO Notice. The closing of any such transaction shall also be conditioned upon either (1) repayment in full or defeasance in full of any then existing third party debt of the Company and any Subsidiary, or (2) if such then existing third party debt shall remain outstanding, receipt of any required lender consent and the release of any guaranty given by any Member or its principal or Affiliate in connection NAth such existing debt. In the event that, as of the scheduled Closffig Date, the Company has not obtained a required lender's consent and agreement to release any guaranty, then, at the Purchasing Member's election, the closing may be extended for up to an additional sixty (60) days to obtain such consent. If, after such extension, the Parties have not beenable to obtain the lender's consent and agreement to release any guaranty, then the Purchasing 'Member's obligation to Purchase, and the Selling Member's obligation to sell, shall tennninate and the deposit shall be returned to the :Purchasing Member. If, at closing there is a. dispute as to the B/S Distribution Amount and the Members are unable to reach an agreement with respect thereto within fifteen. (la) Business Days thereafter, any Member may engage the Accountants to review the B/S Distribution Amount and such. Accountant's deter inatiors, absent manifest error, shall be binding on all parties and the Closing Tate shall be extended pending such determination. If a casualty or condemnation occurs after a B/S Notice is given; the B/S Valuation Amount shall be reduced by the amount of the insurance or condemnation proceeds received or to be received by the Con-ipany or a Subsidiary on account thereof. Upon the closing and unless the Selling Member and Purchasing Member otherwise agree, the Affiliate Contracts between the Selling Member and its Affiliates, on the one hand, and the Company or any Subsidiary, on the other hand, shall terininate and all amounts then accrued thereorider and all other arnounts due therea der shall be paid in full. (b) If the Purchasing Member should default in its obligation to purchase the Subject Interest under Section 8.5 or Section 8.6 after the passage of five (5) days' notice and opportunity to cure, the Selling Member shall receive the earnest money deposit previously deposited with tle escrow agent. The earnest money deposit shall be the full liquidated damages for such default of the: Purchasing Member, the other Member hereby acknowledging and agreeing that it is iMPOSsible to more precisely estimate the damages to be suffered by the Selling Me -tuber upon such default and such Member acknowledges and agrees that forfeiture of the earnest money deposit is not intended as a penalty. In the event the Purehasing Member fails to make its earnest money deposit as required in Section 8.5 or Section 8.6, then the Selling Member shall have the riglit to recover an award or judgment against the Purchasing Member in the anotint of such required earnest money deposit, together with its reasonable attorneys' fees and costs incurred in obtaining such award or judgment. In addition, if the Purchasing Member should default in its obligation to purchase the Subject Interest pursuant to Section 8.6, the Selling Member may thereafter sell the RQFO Offered Interest for such purchase price and upon such terns (whether the sarne or diff rent than those contained h7 the ROFO Notice) as it deems appropriate without complying vyith the terms of Section 8.I al or Section 8.6 except that any such Transfer must comply with Section $.l c . (c) If the Selling Member should default in its obligations to sell the Subject Interest pursuant to Section 8.5 or Section 8.6, then the Purchasing Member may exercise one of the following alternative rearnedies with respect to the Selling Member within thirty (30) days after the Selling Member's default, as the Purchasing Member's sale and exclusive remedy for such default. (i) The Purchasing Member shall be entitled to demand and receive a return of its earnest money deposit Previously deposited with an escrow agent and reimbursement of actual out of pocket costs, including reasonable legal fees, in which event after return of such deposit, the Selling Member's default hereunder shall be deemed waived; or (ii) The Purchasing Member shall be entitled to commence an action seeking specific performance of the Selling Member's obligations under Section 8.5 or Section 8_6, the Members expressly agreeing that the remedy at law for breach of the obligations of the Selling Member set forth in Section 8.5 or Section 8.6 is inadequate in view of (A) the complexities and uncertainties in measuring the actual damage to be sustained by the Purchasing Member on account of the default of the Selling Member; and (B) the uniqueness of the Company business and the Members' relationships. If the Purchasing Member succeeds in its claim for specific performance, it shall be entitled to also recover from the Selling Member its reasonable attorneys' fees and costs incurred in. obtaining such award or judgment. (d) From the date of the BrS Notice or the RQFC Notice until the Closing Date, or, if earlier, the termination of the process pursuant to Section 8.5 or Section 8.6, the Company and any Subsidiary shall continue to be operated in the ordinary course, as if the closing were not going to occur, the Members shall continue to have all power and authority granted in this Agreement (including: the power and obligation to make distributions), and the Members shall exercise their power and authority in good faith and without regard to the fact that such closing may occur; provided, that neither the Company nor any Subsidiary shall not enter into any contracts or agreements, or otherwise agree, to sell or otherwise dispose of the Property, except that the Company and each of its Subsidiaries shall be authorized to consummate any transactions that were the subject of binding contractual obligations entered into prior to the commencement of such period provided that the Members had knowledge of such transactions and their terms prior to making their respective offers and elections hereunder. (e) Notwithstanding anything to the contrary contained herein, in the event that the Selling Member or Purchasing Member defaults in its obligation to sell or purchase as set forth in Section 8.5 or Section 8.6, such defaulting Person or Persons may not exercise any rights to deliver a B.'S Notice or ROFO Notice for a period of three (3) years from the date of such default. (f) The Managing Member shall, and shall cause its Affiliates (including the Property Manager) to provide or make available to the AAC Member such documents as such AAC Member requests in connection with any decisions and negotiations under Section 5.5, Section 8.6 or this Section 8.7. (g) If a Selling Member owes any Capital Loans, such Capital Loans shall be repaid, together with all unpaid accrued interest thereon, in full at closing. If a Selling Member is owed any Capital Loads, the purchaser of such Selling Member's Interest, whether such purchaser is another Member or a third. -party, shall pay to the Selling Member the outstanding principal amount of such Capital Loans and accrued arid unpaid interest thereon and succeed to the rights of such Selling Member vvith respect to such Capital Loans. (h) A Purchasing Member shall have the right to designate a Qualified Transferee to acquire any Subject Interest and to assign its rights to acquire such Subject Interest to such designee, it being understood and agreed that any such assignment shall not relieve the Purchasing Member of any of its obligations arising hereunder with respect to such purchase and sale. 8.8 Withholding Taxes. (a) If the Company is obligated to pay any amount to a governmental agency or body because of a Member's tax status (including non -U.S. taxes, U.S. federal withholding taxes with respect to non -U.S. members, U.S. state withholding taxes and U.S. state unincorporated business taxes), and such amount is not satisfied out of distributions otherwise payable to such Member, then such Member (the "Reimbursing Member") shall reimburse the Company in full for the entire amount paid (including any interest, penalties and expenses associated with such payment). The amount to be reimbursed shall be treated as a non-interest bearing loan payable by such Member to the Company. Such payment shall occur promptly (within ten (10) Business Days) upon notification of an obligation to reimburse the Company in this regard. (b) Except as reirr?bursed by a Member pursuant to Section 8.8(a), (i) any ar-nount of taxes paid by the Company, (ii) any taxes withheld by the Company and (iii) any withholding or similar taxes imposed on amounts payable to the Company shall in each case be treated for purposes of this Agreement as an amount actually distributed to the Members pursuant to Article 4 at the time paid or withheld (and the amount of any such tax shall be deemed to have been distributed to such Members). An amount shall be considered paid or withheld by the Company if, and at the time, remitted to a governmental agency without regard to whether the remittance occurs at the same time as the distribution or allocation to which it relates: provided; that an amount actually withheld fiom a specific distribution or designated by the Managing Member as withheld with respect to a specific allocation shall be treated as if it were distributed at the time such distribution or allocation occurs. (c) A Reimbursing Member's obligation to male reimbursements to the Company under this Section 8.8 shall survive the dissolution, liquidation, winding up and termination of the Company, and for purposes of this Section 8.8, the Company shall be treated as continuing in existence. The Company or the Managing Member may pursue and enforce all rights and remedies it may have against each Member under this Section 8.8, including instituting a lawsuit to collect such contribution with interest calculated at an annual compounded rate equal to the Base Rate plus six percentage points (6%) per annum (but not ill excess of the highest rate per annum permitted by applicable law). ARTICLE 9 REPRESENTATIONS AND WARRANTIES OF THE MEMBERS As a material inducement to each Member's execution and delivery of this Agreement, each Member represents, warrants, covenants and agrees to and with each other Member and the Company as follows: 9.1 Authorization. Such Member is duly organized, formed or incorporated, as the case may be, and such Member is authorized, empowered and qualified to execute this Agreement, to invest in the Company and to mare Capital Contributions as contemplated by this Agreement. The individual signing this Agreement and all agreements contemplated hereby and thereby on such Member's behalf has been duly authorized to do so. 10 9.2 Binding Obligation, This Agreement is a valid and binding agreement, enforceable against such Member in accordance with its terms. 9.3 No Conflict. The execution and delivery of this Agreement by such Member, the consummation of the transactions contemplated hereby and the performance of such Member's obligations under this Agreement will not conflict with., or result in any violation of or default under, any provision of any governing instrument applicable to such Member, or any agreement or other instrument to which such Member is a party or by which such Member or any of its properties are bound, or any United States or non -United States permit, franchise, judgment, decree, statute, lmv, order, rule or regulation applicable to such Member or such Member's business or properties. 9.4 Access to Information. Such Member has performed its own independent investigations and obtained such information as it deemed necessary in order to evaluate the merits and risks of an investment in the Company. Such Member has consulted to the extent deemed appropriate by such Member with such Member's own advisers as to the Financial, tax, legal, accounting, regulatory and related matters concerning an investment in the Company and on that basis understands the financial, tax, legal, accounting, regulatory and related consequences of an investment in the Company, and believes that an investment in the Company is suitable and appropriate for such :Member. 9.5 No Registration. of Interests. Such Member understands that the interests in the Company have not been, and %4;11 not be, registered under the Securities Act or any state or non - United States securities lair,=s, Such Member is acquiring its Interest solely for the account of such Member, for investment purposes only and not with a view to the distribution thereof. Such Member (i) is a sophisticated investor with: the knowledge and experience in business and financial matters to enable such Member to evaluate the merits and risks of an investment in the Company, (ii) is able to bear the economic risk and lack of liquidity of an investment in the Company and (iii) is able to bear the risk of loss of its entire investment in the Company. 9.6 _Regulation D loader the Securities Act. Such Member is an "accredited investor„ as that term is defined in Regulation. D promulgated under the Securities Act, 9.7 Investment Company Act Matters. Such Member understands that: (i) the Company does not intend to register as an investment company under the Investment Company Act, and. (ii) such Member will not be afforded the protections provided to investors in registered investment companies under the Investment Company Act. Such Member was not formed or reformed (as interpreted under The Investment Company Act) for the specific purpose of making an investment in the Company, and, under the ownership attribution rules promulgated under Section 3(c)(1) of the Investment Company Act no more than one person will be deemed a beneficial owner of such Member's interest in the Company. Such Member is a "qualified purchaser" as that term is defined under the Investment Company Act_ 9.8 Acknowledgement of Risks; Restrictions on Transfer. Such Member recognizes that: (i) an investment in the Company involves certain risks, (ii) the interests in the Company are subject to certain restrictions on transferability, and (iii) as a result of the foregoing, and the marketability of the interests in the Company is severely limited. Such Member agrees that it II will not transfer, sell, assign., pledge, encumber, mortgage, divide, hypothecate or otherwise dispose of all or any portion of its Interest in any mariner that would violate this Agreement, the Securities Act or any United States federal or state or non -United States securities laws or subject the Company or any other Member or any of its Affiliates to regulation under the Investment Company Act or the Investment Advisers Art, any non -United States governmental authority having jurisdiction thereover or any additional regulation under the rules and regulations of the United States Securities and Exchange Commission or the laws and regulations of any United States fi-deral, state or municipal authority. 9.9 Additional Investment Risks. Such Member is aware that: (i) the Company has no financial or oper`tirzg history, and (ii) no United States federal, state or local or non -United States agency, goverrunental authority or other Person has passed upon the interests in the Company or made any finding or determination as to the fairness of this investment in the Company. 9.10 No Public Solicitation. Such Member confiirius that it is not subscribing for any interest in the Company as a result of any form of general solicitation or general advertisir!g, including (i) any advertisement, article, notice or other communications published in any newspaper; magazine or similar modia (including any internet site that is not password protected) or broadcast over television or radio or (ii) any se€ninar or meeting whose attendees were invited by any general solicitation or general advertising. 9,11 Anti-IVIOney Laundering and Anti -Boycott Matters. Such Member acknowledges that the Company seeks to comply with all applicable anti -money laundering and anti -boycott laws and regulations. No part of the funds used by such Member to acquire its Interest has been, or shall be, directly or indirectly, derived from any activity that may contravene United States federal laws or regulations, including anti -money laurndering laws and regulations, no capital commitment, contribution or payment to the Company by such Member and no distribution to such Member shall cause the Company or the Managing Member to be in violation of any applicable. anti-niohey laundering laws or regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ,ACT) Act of 2001 and the United States Departzment of the Treasury Office of Foreign .Assets Control ("OFA.0") regulations, and all Capital Contributions or payments to the Company by such Member shall be made through an account located in a jurisdiction that does not appear on the list of boycotting countries published by the United States Department of Treasury pursuant to Code Section 999(a)(3), as in effect at the time of such contribution or payment. Such Member acknowledges and agrees that, notwithstanding anything to the contrary contained in this Agreement, to the extent required by anti -.money latandering laws or regulations or by OFAC, the Company and the Managing Member may prohibit additional Capital Contributions, restrict distributions or take any other reasonably necessary or advisable action with respect to the interests in the Company, and such Member shall have no claim, and shall not pursue any claim, against the Company, the Managing Member or any other Person in connection therewith. 9.12 No Plan Assets. Such Member does not hold Plan Assets and shall not fund any Capital Contribution with Plan Assets. Without limitation of the foregoing, such Member is not a "foreign person" within. the meaning of Section 1445 of the Code; such party is not an 12 "employee benefit plan", as defined in Section 3(3) of ERISA, or a "plan", as defined in Section 4975(e) of the Code, and the assets of such party have not been deemed "plan assets" or one or more such plans for purposes of Title I of ERISA or Section 4975of the Code; such party is not a "goverrimental plan" Mthin the meaning of Section 3(3?) of ERISA, and no transaction by or with such party is subject to or in violation of any state statures applicable to regulation of investments of and fiduciary obligations w-itb respect to governmental pians. ARTICLE 10 DURATION AND DISSOLUTION 10.1 Duration. (a) The Company shall be dissolved upon the earlier to occur of any of the following events: (i) the unanimous ATitten agreement of all of the Members; (ii) the sale or other disposition of all or substmitially all of the assets of the Company; (iii) the entry of a decree of judicial dissolution Larder Section 18-902 of the Act; (iv) the termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement or the Act; or (v) upon the occurrence of any event that causes the last remaining member of the Company or the Member to cease to be a member of the Company (other tlart upon continuation of the Company without dissolution upon (i) an assignment by such member of its entire limited liability company interest and the admission of the transferee as a member pursuant to Article 8, to the fullest extent permitted by law, the personal represei)tative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company with the rights (and only the rights) of such member, effective as of the occurrence of the event that terminated the continued membership of the last remaining member or the Member in the Company. (b) Except as set forth in Section 10.1_{a], dissolution of the Company shall be effective as of the day on which the event occurs giving rise to the dissolution, but the Company shall not terminate until there has been a winding up of the Company's business and affairs and the assets of the Company have been distributed as provided in Section. 10.2- 10.2 LLic nidation of the CaManv. 13 (a) Upon dissolution, the Company and any then remaining Subsidiaries shall be liquidated in an orderly manner in accordance with the provisions of this Agreement, the Act, and any other applicable law. The Managing Member shall be the liquidating trustee to wind up the affairs of the Company and its Subsidiaries pursuant to this Agreement or, if the Managing Member is not able to act as the liquidating trustee, a liquidating trustee shall be appointed by, and with approval of, the AAC Member. (b) Following dissolution of the Company (whether pursuant to Section 10.1 or otherwise) and upon liquidation and winding up of the Company and any then remaining Subsidiaries, the .4anaging Member or other liquidating trustee appointed pursuant to Section 10.2(a) shall male a final allocation of all items of income, gain, loss and expense in accordance with Article 3 and Section 11.5, and the Company's liabilities and obligations to its creditors shall be paid, to the extent required by law or adequately provided for prior to any distributions to the Members. After payment or provision for payment of all liabilities and obligations of the Company, the remaining assets, if any, shall be distributed among the Members pmsua.-tt to Article 4. (c) Following completion of the winding up of Company affairs as contemplated by this Article 10, the, Company shall terminate upon the filing of a Certificate of Cancellation of the Certificate in accordance with the applicable provisions of the Act_ Notwithstanding any other provision of this Agreement, the Bankruptcy of a Member or a Special Member shall not cause a ilfember or Special Member, respectively, to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution. 10.3 Removal of the Manargina Member. (a) Upon the occurrence of a Cause Event, the AAC Member may remove the lfanaging Member as managing member of the Company by delivering a written notice to the Managing Member specifying in detail the basis for such removal (the "Removal Notice") to such effect. (b) No removal of the Managing Member shall be effective unless each of the following conditions are satisfied within one hundred twenty (120) days after the date the Removal Notice is delivered to the removed Managing Member: (i) within ninety (90) days after the Removal Notice, the new managing member of the Company (which shall be the AAC Member) shall have assumed all obligations of the removed Managing Member as managing member under this Agreement arising on or after the date on which such new managing member becomes managing member of the Company and (ii) if required under the Act, an amendment to the Certificate shall have been filed with the Secretary of State of the State of Delaware that reflects the change in managing member. (c) In the event the Managing Member is removed, the AAC Member may elect to cause the Company to, or to cause each Subsidiary to, terminate the Property Management Agreements and any other Affiliate Contracts with the removed Managing Member or its affiliates. if any such agreements are terminated pursuant to this Section 10.3(c), then 14 such agreements shall be terminated after payment to the Property Manager or any other Affiliate of the Managing Member, as applicable, of all accrued and unpaid fees and expenses and other amounts owin with respect thereto. (d) The Members hereby agree to make such amendments to this Agreement as are necessary or advisable to implement the change in managing member, and in all events to interpret and apply this Agreement (whether or not formal amendments are executed) in a manner consistent with such: principles. (e) Except as provided in this Section 10.3 the Managing Member may not be removed. No removal of the Managing Member shall affect any other rights of the Members, including the removed Managing Member, under this Agreement, including the right to receive its share of distributions or approve Major Decisions, including the engagement of a replacement property manager for the Property. ARTICLE i 1 BOOKS OF ACCOi1NTS; MEETINGS; CERTAI�i TAX MATTERS; ARBITRATION 11.1 Books. The Company shall maintain complete and accurate books of account of the Company's affairs at the Managing Member's principal office, which books shall be open to inspection and copying by the AAC Member (or its authorized representative) for any purpose reasonably related to such Member's interest in the Company at any time during ordinary business hours upon at least two (2) Business Days' prior notice, subject in each case to any portion of the books which may otherwise be kept confidential with respect to the Managing Member to the extent expressly provided in this Agreement. With respect to the minutes of meetings, the consents without meeting, the Ceilificare, the applications to conduct business filed with the authorities in those jurisdictions in which the Company is qualified to conduct its business, all licenses and other similar instruments or documents issued to the Company by such jurisdictions reflecting such qualifications (collectively, the "Corporate Documentation"), the Managing Member shall create and complete, or cause the creation and completion, of the Corporate Documentation in a timely manner and deliver copies of the completed Corporate Documentation promptly to AAC Member, c/o Ashkenazy Acquisition Corp., 1.50 East 5$`h Street, 39`x` Floor, New York, NY 10155. Promptly following written request from AAC Member, the Company shall electronically deliver to AAC Member copies of any of the Company's books, accounts and records. The ;Vianaging Member shall cause the Company to comply with the record retention policy as set forth in the Property Management Agreements. 11.2 Fiscal Year. The Fiscal Year of the Company shall be the calendar year. 11.3 Audit and Reports. The non -tax books and records of the Company and any Subsidiary shall be reported on a consolidated basis in accordance with GAAP. The Managing Member shall furnish to each other Member: (a) within twenty (20) days after each month end, the monthly reports described on Exhibit D attached hereto; (b) within ninety (90) days after the end of each Fiscal Year commencing with the year in which the Effective Date occurs, (i) a balance sheet; statement of earnings, statement 15 of cash flows and statement of the AAC Members' equity for the Company for such year (audited by the Accountants), and (ii) such additional information as may be set forth on Exhibit D attached hereto; and (c) within one hundred fifty (150) days after the end of each Fiscal Year, such AAC Member's Schedule K-1 for such Fiscal Year. (d) as soon as completed, copies of the U.S. federal and applicable state income tar returns of the Company for approval by the other Members, and information regarding reportable transactions, and any IRS Form 8$36 (Reportable Transaction Disclosure Statement) filed by the Company, for each taxable year in which the Company participates in a "reportable transaction". Once approved by the AAC Member, the Managing Member shall cause the Company to file all applicable returns. The AAC Member shall approve or disapprove the income ta:x rettmis within ten: (10) days after delivery thereof (and a failure to respond shall be deejned an approval). The AAC Member shall cooperate in good faith to resolve any disputes relating to the propriety of such income ta.}s, returns such that all returns shall be filed in a timely manner. If the AAC Member shall be unable to resolve any such dispute, the AAC Member may elect, by written notice to the Managing Member, to submit such dispute for resolution by a nationally recognized independent accounting firm acceptable to the Managing Member in the exercise of its reasonable judgment; provided, however, that the aceouintinng firm resolving such dispute shall not be the principal accounting firm of the ELIC Member. The decision of such accounting firm with respect to a dispute shall be binding upon the Managing Member. Certain financial reports and schedules described in this Section 11.3 may be dependent upon information to be provided to the Managing Member from third parties that are not Affiliates of the /Managing Member. Therefore, notwithstanding the foregoing time periods, to the extent the Managing Member derives such information from any such third party, the Managing Member may furnish such reports and schedules to the AAC Member after the expiration of such timo periods, but as soon as reasonably practicable, following receipt of all fwaincial and other inflomiation necessary or desirable to prepare such documents. The Managing Member shall furnish such financial reports, statemeiits, Schedules, narrative summaries and other information described in this Section. 11.3 to the AAC Member electronically via email, the Internet and/or another electronic reporting mediums or as the Member-, may agree. The AAC Member shall, at its sole cost and expense, have the right to audit the operations; books and records of the Company and its Subsidiaries and the Managing Member shall, and shall cause its Affiliates to, at AAC Member's sole cost and expense, cooperate with such Member and its auditors in connection with such audit. The Managing Member, at the cost and expense of the Company, shall provide annual audited financial statements for the Property including, as supplementary schedules, a consolidated balance sheet, cash flow statement and income statement for the Property and a statement of the Capital Account of the AAC Member, ff requested, such annual financial statements shall be audited by an auditor and prepared in accordance with generally accepted accounting principles consistently applied. 16 The Managing Member also shall deliver to the AAC Member, as an expense of the Company and in a timely manner, any other information reasonably necessary for the AAC Member to prepare its tax returns or to obtain appraisals of the Property, and the Managing Member shall, and shall cause its Affiliates to, at the Company's cost and expense, cooperate with the AAC Member and its accountants and appraisers in connection therewith. In addition; upon request of the AAC Member from time to time and as a Company expense, the Managing Member shall obtain an appraisal of the Property in accordance with requirements reasonably determined by the A.AC Member (but the Managing Member shall not be required to obtain any such appraisal more than once a year). 11.4 Meetings. From time to time, but not less often than quarterly, the Managing Member shall hold general informational meetings for the AAC Member which may take place by telephone, to provide the AAC Member with the opportunity to review and discuss with the Managing Member the Company's investment activities and performance. Special meetings of the Members may be called by the AAC Member by delivering at least two (2) business Days' prior notice thereof to the Managing Member to discuss such matters regarding Company business as the AAC Member may decide. Meetings shall be held at the principal office of the Company unless all Members agree. The AAC Member may attend any meeting telephonically or through the use of other communications equipment by means of which all Persons p,a ticipating in the meeting can communicate with each other. 11.5 Tax Allocations. (a) Except as otherwise provided in this Section 11.5, all income, gains, losses and deductions of the Company shall be allocated, for U.S. federal, state and local income tax purposes, among tl e Members in accordance with the allocation of such income, gains, losses and deductions bet«=een the Members for computing their Capital Accounts, except that if any such allocation for tax purposes is not permitted by the Code or other applicable law, the Company's subsequent income, gains, losses and deductions shall be allocated between the Members for tax purposes so as to reflect as nearly as possible the allocation set forth herein in computing their Capital Accounts. (b) Items of Company taxable income, gain, loss and deduction with respect to any property contributed to the Company by a Member shall be allocated between the Members in accordance with Code Section 704(c), as determined by the Members, so as to take into account such variation between the adjusted basis of such property to the Company for U.S. federal income tax purposes and its Gross Asset Value. If the Gross Asset Value of any Company asset is adjusted pursuant to uaragaahs (b) or L4) of the definition of Gross Asset Value, subsequent allocations of items of income, gain, loss and deduction with respect to such property shall take account of any variation between the adjusted basis of such asset for U.S. federal income tax purposes and its initial Gross Asset Value in the same manner as under Code Section 704(c), as determined by the Managing Member. (c) If either the Managing Member or AAC Member is treated for income tax purposes as realizing ordinary income because of receipt of its Company interest (whether under Code Section 83 or any similar provisions of any law, rule or regulation or any other applicable law, rule, regulation or doctrine) and the Company is entitled to any offsetting deduction, the 17 Company's deduction shall be allocated bchveen the Members in such manner as to, as nearly as possible, offset such ordinary income realized by such Member. (d) Except as otherwise provided in U -S_ Department of Treasury Reg. § 1.704-2(�, notwithstanding the provisions of Section 3.4 or any other provision of this Section 11.5, if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Member shall be specially allocated items. of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Member's share of the net decrease in Company Minimum Gain as determined under U.S. Department of Treasury Reg. § 1.704-2(g). Allocations pursuant to the previous sentence shall be inade in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be allocated shall be determined in accordance with U.S. Department of Treasury Reg. §§1.704-2(f)(6) and 1.704-20)(2). This Section 11.5(d) is intended to qualify as a "minimtun gain chargeback" within the meaning of U.S. Department of Treasury Reg. §1.704-2(o, which shall be controlling in the event of a conflict between such Treasury Reg. and this Section (e) Except as otherwise provided in U.S. Department of Tre=asury Reg. §1.704--2(i)(4), and notwithstanding the provisions of Section 3.4 or any other provision of this Section 11.5 (except Section 11.5(dll, if there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Liability during any Fiscal Year, each Member who has a share: of the Member Minimwn Gain attributable to such Member Nonrecourse Liability, determined in accordance with U.S. Department of Treasury Reg. §1.704-2(i)(5). shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an arnount equal to such Member's share of the net decrease in Member Minimum Gain attributable to such Member None-ecourse Liability as determined in accordance with U.S. Department of Treasury Reg. §1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be allocated shall be determined in accordance with U.S. Department of Treasury Reg. §§ 1.704-2(i)(4) and 1.704-20)(2). This Section 11.5(el is intended to qualify-- as a "chargeback of partner nonrecourse debt minirnum Agin" within the meaning of U.S. Department of Treasury Reg. §1.704-2(i), AI ich shall be controlling in the event of a conflict between such. Treasury Reg, and this Section 11.5 e). (f) Any Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Members in accordance with their respective aggregate Percentage Interests. Any Member Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Member(s) who bear(s) tlae economic risk of loss with respect to the Member Nonrecourse Liability to which such Member Nonrecourse Deductions are attributable in accordance with U.S. Department of Treasury Reg. § 1.704-2(i). (g) Notwithstanding any other provision of this Agreement, if a Member unexpectedly receives an adjustment, allocation or distribution described in U.S. Department of Treasury Reg. § 1.7 04- 1 (b)(2)(ii)(d)(4), (5) or (6) that gives rise to a negative Capital Account (or that would give rise to a negative Capital Account when added to expected adjustments, allocations or distributions of the same type) that exceeds the amount such Member is required to restore, or is deemed obligated to restore under the penultimate sentences of U.S. Department of Treasury Reg. §§ 1.704-2(g)(1) and 1.704-2(i)(5), such Member shall be allocated items of 18 income and gain in an amount and manner sufficient to eliminate such deficit balance as quickly as possible; provided, that the Company's subsequent income, gains, losses and deductions shall be allocated among the Members so as to achieve as nearly as possible the results that would have been achieved if this Section 11.5(g) had not been in this Agreement. except that no such allocation shall be made that would violate the provisions or purposes of U.S. Department of Treasury Reg. § 1.704-1(b). (h) In the event any Member has a deficit Capital Account at the enol of any Fiscal Year that is in excess of the sum of (i) the amount (if any) such Member is obligated to restore to the Company and (ii) the amount such Member is deemed to be obligated to restore pursuant to U.S. Department of Treasury Reg. § 1.704- 1 (b)(2)(ii)(c) or the penultimate sentences of U.S. Department of Treasury deg. §§1.704-2(g)(I) and I.704 -2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible; provided. that an allocation pursuant to this Section -I 1.J(h) shall be made if acid only to the extent that such Member would have a deficit Capital Account in excess of such sunt after all other allocations provided in this Agreement have been tentatively made as if this Section l l .- h and Section 11.5(.8) were not in this Agreement. (i) The allocations set forth in Sections 11.5(d) through I L5(h) are intended to comply with certain regulatory requirements, including the requirements of U.S. Department of Treasury Reg. §1.704-1(b) and 1.704-2, and shall be interpreted and applied consistently therewith. (�) For purposes of determining a Member's share of the "excess nonrecourse liabilities" of the Company within the meaning of U.S. Department of Treasury Reg. §1.752- 3(a)(3), each Member's interest in Company profits shall be such Member's Percentage Interest- 11.6 nterest_ l1.6 Tax Matters Partner. (a) The. Managing Member is designated the "Tac Matters Partner" (as defined in Code Section 6231). (b) The Managing Member, in its capacity as "tax matters partner" of the Company, and the AAC Member agree that the AAC Member will be a "notice partner" (as defined in Code Section 623 I(a)(8)) with respect to the Company. The Nlanaging Member, in its capacity as "tax matters partner' of the Company (or similar capacity under applicable state or local tax law), shall not bind the AAC Member to a settlement agreement for federal, state or local tax purposes without the AAC Member's prior written consent. The Managing Member shall promptly provide the AAC Member with notice of, and with any information the AAC Member reasonably requests regarding, any income tax audit or other material tax audit or proceeding with respect to the Company or any entity in which the Company owns a direct or indirect interest. (c) Notwithstanding anything set forth in this Agreement, the Managing Member shall, cause the Company to make the following elections: (i) to adopt the calendar year as the Company's fiscal year (witless otherwise required by codes or regulations); 19 (ii) to adopt the accrual method of accounting and to keep the Company's books and records in accordance with generally accepted accounting principles (other than Capital Accounts, which shall be maintained in accordance with Section 3.4 hereof); (iii) if there is a distribution of Company property as described in Section 734 of the Code or if there is a transfer of a Company interest as described in Section 743 of the Code, upon written request of the A..AC Member, to elect, pursuant to Section 754 of tho Code, to adjust the basis of Company properties; and (iv) to elect to amortize the organizational expenses of the Company as permitted by Section 709(b) of the Code. No election shall be made by the Company or any Member to (x) exclude the Company from the application of the provisions of subchapter R of chapter 1 of subtitle A of the Code or any similar provisions of applicable state laws, or (y) treat the Company as an association taxable as a corporation for federal income tax purposes pursuant to Regulations Section 301.7701-3(c). 11.7 Arbitration. Any Member may in accordance with this Agreement submit for arbitration the issue of (i) whether a Cause Event has occurred, (ii) whether any act or omission is a Default Action, or (iii) whether Losses resulted from a Default Action and the amount of such Losses (each, an "Arbitration Matter"), provided, however, such arbitration shall be the exclusive means of determining whether a Cause Event occurred, whether. a Default Action. occuxred, whether Losses resulted from a Default Action and the amount of such Losses. Any matter submitted for arbitration by any Member will be stayed pending the outcome of the arbitration ruling. Arty Mamber desiring to initiate the arbitration provisions of this Section 11.7 may select an independent expert (an "Arbitration Expert'), which shall be subject to the approval of each of the Members. In the event the Members have not agreed upon an Arbitration Expert within fifteen (15) days after the initial selection by the iaidating Member, the Arbitratioa Expert (which shall be an attorney with at least ten (10) years of practice (at least five (5) of which must be predominantly in the area of Litigation, partnership and/or corporate laver) and who has served as an arbitrator in at least five (5) American Arbitration Association arbitrations) shall be selected by the New York City office of the American Arbitration Association in accordance with the Commercial Arbitration Roles of the American Arbitration Association. The Arbitration Expert shall make a deterniination with respect to the applicable Arbitration Matter, and such determination shall be binding on each Member. The Arbitration Expert shall enforce the expedited procedures of the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. The Arbitration Expert's decision shall be rendered in writing within fourteen (14) days from the date of the closing of the hearing or, if oral hearings have been waived, from the date of the American Arbitration Association's transmittal of the final statements and proofs to the Arbitration Expert, as set forth in such expedited procedures. The cost of the Arbitration Expert (and the cost of the arbitration, if any) shall be borne by the Company, except that each Member shall pay the costs of its counsel and experts. Notwithstanding any provision of this Agreement to the contrary, this Section 11.7 shall be construed to the maximum extent possible to comply with the laws of the State of Delaware, including the Uniform Arbitration Act (10 Del. C. § 5701, et seq.) (the "Delaware Arbitration Act"). If, nevertheless, it shall be determined by a court of competent jurisdiction that any 20 provision or wording of this Section 11.7, including any Commercial Arbitration Rules or rules of the American Arbitration Association, shall be invalid or unenforceable under the Delaware Arbitration Act, or other applicable law, such invalidity shall not invalidate all of this Section 11.7. In that case, this Section 11.7shall be construed so as to limit any term or provision so as to matte it valid or enforceable within the requirements of the Delaware Arbitration Act or other applicable law, and, in the event such terra or provision cannot be so limited, Section 11.7 shall be construed to omit such invalid or unenforceable provision. ARTICLE 12 Provisions Relating to Financia This Article 12 is being adapted in connection with a loan in the original principal amount of up to Two Flu ndred and Fifty Million Dollars ($250,000,000) (the "Loan") pursuant to that certain Loan Agreement to be dated on or about December 2.3, 2014, (as the same may be Modified from time to Jirne, the "Loan A.Qreemenf ), among the Company, Deutsche Bank` AG New York Branch and the institutions from time to time party thereto, collectively, as lender (together with each of their respective successors and assigns, "Lenders"), Deutsche Bank AG Ncw York Branch, as agent for the Lenders ("r'1__g: nf') and Deutsche Bmk Securities Inc., as lead arranger. Capitalized terms used in this Article 12 and not otherwise defined hexein shall have the meanings set forth in the Loans Agreement or in the mortgage or deed of trust securing repayment of tic Loan (as the same may be NL-,dified from time to tirnte, the "Mortgage" Effective as of the closing of the Loan and for so long as (i) the Company owns the Property and (ii) any portion of the Obligations is outstanding, mid notwithstanding anything to the etantrary contained in any other Article hereof, the Company shall, except as may be permitted or required by the Loan Agretruent, the Mortgage or any other Loan Documents or with the, written consent of the Lenders (or a servicer, on behalf of the Lenders), operate in accordance with each of the followirng; (a) The purpose for which tare Company is organized is and shall be limited solely to (i) acquiring owning, holding, selling, leasing, developing, transferrijig, operating, exchanging and managing the Property and all business incidental thereto, (ii) ent4rizng into or assuming the obligations of the Company under the Loan Agreement and Loan Documents with the Lender, (iii) refinancing the Property in connection v&ith the permitted repayment of the Loan and (iv) transacting any and all lawful business for which the Company may be organized under the laws of the State that is incidental, necessary or appropriate to accomplish the foregoing. (b) The Company will not engage ins any business unrelated to those permitted in clause (a) of this Article. (c) The Company has not owned, does not own and will not own or acquire any asset or property offier than (i) those relating to its interest in the Property, and (ii) incidental personal property necessary for and used or to be used in connection with the ownership; leasing, management or open, tion of the Property or such ownership interests, as applicable. 21 (d) The Company has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than Permitted Debt. (e) The Company will maintain all of its books, accounts, records, financial statements and bank accounts separate and apart from those of any other Person (except that such Person's financial position, assets, results of operations and cash flows may be included in the consolidated financial statements of an affiliate of such Person in accordance with GAAP, provided that any such consolidated financial statements shall contain a note indicating that such Person and its Affiliates are separate legal entities and maintain books, accounts, records, and bank accounts separate and apart from any other Person). (f) The Company shall be subject to and comply with all of the limitations on powers and separateness requirements set forth in its organizational documents as approved by Lenders in accordance with the Loan Agreement, and shall not Modify the separateness requirements contained in this Agreement without the prior written consent of the Lenders_ (g) The Company will be, and at all times will held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate of the Company or any constituent party of the Company), shall correct any known misunderstanding regarding its status as a separate entity, and shall not identify itself as a division or part of any other Person_ (h) The Company shall conduct its business in its own name (except for services rendered under a management agreement with an Affiliate, so lung as the manager, or equivalent thereof, under such management agreement holds itself out as an agent of the Company) and has and shall maintain and utilize separate invoices and checks bearing its ov,-n name. (i) The Company shall not enter into any contract or agreement with any Affiliate of the Company, any constituent equity holder of the Company (direct or indirect, at any tier) or any Affiliate of such Person, except upon teens and conditions that are intrinsically fair, commercially reasonable and no less favorable to it than (and substantially similar to) those that would be available on an arms -length basis with third parties not so affiliated with the Company. fj) The Company shall pay its own liabilities out of its own funds (including the salaries of its own employees, if any) and shall reasonably allocate any overhead that is shared with an Affiliate of the Company, including paying for shared office space and sendees performed by any officer or employee of an Affiliate. (k) The Company shall maintain a sufficient number of employees, which number may be zero, as required to perforin its business operations; 22 (I) The Company shall maintain its assets in such a manner that it will not be costly or difficult to segregate., ascertain or identify its individual assets from those of any other Person. (m) The Company shall do or cause to be done all things necessary to observe organizational formalities and presen e its separate existence. (n) The Company shall not commingle its assets with those of any direct or indirect equity owner of the Company, any Affiliate, or any other Person (even if such commingling is done in a manner that permits the tracing of such funds luck to Borrowers or the Property or is done temporarily with the intent to subsequently- use such funds to pay Property -related expenses, debt service, or other permitted costs and expenses of Borrowers pursuant to the Loan Documents) and will hold all of its assets in its own nan]e. (d) The Conipany shall not: assume., guarantee or become obligated for the debts of any other Person and shall not make any loans or advances to any other Person (including any Affiliate), and shall not hold out its credit as being available to satisfy the obligations or securities of others, provided, however, that the foregoing shall not be deemed to apply to any tenant allow=ances granted ion the Ordinary Course of Business with respect to Leases entered into in accordance with the Loan Agreement and the Loan Documents, or notes executed by defaulting tenants funder such Leases in respect of rent and other payments otherwise due under such Leases. (p) The Company shall not acquire obligations or securities of any Affiliate or Me,rnber of the Company - (q) (q) The Company shill not pledge its assets for the benefit of any other Person other than in respect to the Loan; and shall not malce any advance payments or loans to any Person. (r) The Company will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; to flue extent there is sufficient cash flow .from the Property to do so; provided that the foregoing shall not require Sponsor or the Company's Other direct or indireet members to make any additional capital contributions to the Company. (s) The Company will pay its debts and liabilities from its assets as the same shall become due, provided that, in each case, there exists sufficient gash flow from the Property to do so. (t) Independent Manager Pro visions ; (i) At all times there shall be at least two (2) duly appointed Independent Managers of the Company. 23 (ii) The Members shall not take any action which, under the terms of this Agreement requires a unanimous vote of the Members, unless at the time of such action there shall be at least two (2) Independent Managers engaged as provided by the: terms hereof (and such Independent Managers have participated in such vote). (iii) Any resignation, removal or replacement of any Independent Manager shall not be effective (A) without five (5) Business Days prior written notice to benders accompanied by evidence that the replacement Independent Manager satisfies the applicable terms and conditions of the Loan Agreement and this Agreement; and (B) until the successor Independent Manager has executed a counformil hereto agreeing to be bound thereby and to comply with its obligations thereunder; (iv) Agent, together with its successors and assigns, is an intended beneficiary of the provisions of this Article 12 (arid any other provisions in this Agreement that are required by the Loan Agreement), and may enforce such Provisions; (v) To the fullest extent permitted by lavvs, the Independent Managers shall consider only the interests of the Company and the Company's respective creditors (and Agent as an intended third party beneficiary) in acting or otherwise voting on the matters provided for herein, and the fiduciary duties of the Indgon.dent Managers shall not include a fiduciary duty to any constituent members of the Company, at arty tier (and the foregoing provision is intendedto constitute a, specific restriction on the scope of the fiduciary duties of the Independent Managers, accepted by the Members, in accordance vsrith Section 18- 1101(c) of the Act)- provided, however, tile foregoing shall not eliminate the implied contractural covenant of good faith and fair dealing, (vi) To the fullest extent permitted by law, including Section 18- 1101(e) of the Act, an Independent: Manager shall not be liable to the Company, the Member or any other Person bound by this Agreement for breach of contract or breach of duties (including fiduciary duties), unless the Independent Manager acted in bad faith Or engaged in willful misconduct. (u) Member. Except as expressly permitted. pursuant to the. ten -as of the Loan Agreement, (i) Sole Member may not resign, and (ii) no additional Member shall be admitted to the Company (except as provided for in Sections 7.5 and 10.1(a)(iv) of this Agreement. Failure of the Company or a Member on behalf of the Company, to comply witth any of the foregoing covenants or any other covenants contained in this Agreement: shall not affect the status of the Company as a separate legal entity or the limited liability of a Member or the Independent Managers. 24 Notwithstanding any provision of this Agreement to the contrary, the prior unanimous written consent of the Members, and both of the Independent Managers, shall be required (provided, however, the Company shall not take any such consent or authorize the taking of any of the actions set forth in this paragraph below, unless there are at least two Independent Managers then serving in such capacity) for the Company, or any other Person on behalf of the Company, to: (i) dissolve (to the fullest extent permitted by law), liquidate, consolidate, merge or sell all or substantially all of itQ assets; (ii) engage in any business other than the acquisition, development, management, Ieasing, ownership, maintenance and operation of the Property and activities incidental thereto; (iii) file; or consent to the filing, of a bankruptcy or insolvency petition, any general assignment for the benefit of creditors or the institution of any other proceeding, or the seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Company, as debtor; (iv) admit in writing its inability to pay debts generally as they become due, other than to Agent; (v) Modify or waive any provision of this Article 12; or (vi) take any action in furtherance in any of the foregoing. Notwithstanding anything to the contrary contained herein., none of the provisions of this Article 12 or other piovisions hereof shall obligate any Member of any equity holder in any Member to make additional capital contributions to the Company or such Member, as applicable, or return dividends or distributions paid by the Company or such Member (but nothing contained herein shall negate any obligation under applicable law to return any dividend or distribution), as applicable. In the event of any conflicts between the provisions set forth in this Article 12 and any other provision of this Agreement, for so long as any portion of the Obligations is outstanding, the provisions of this Article 12 shall control. ARTICLE 13 MISCELLANEOUS 13.1 Amendments. This Agreerent may be amended, modified or waived only by the written consent of all of the Members. 13.2 Successors. Subject to the provisions of Article 8, this Agreement shall inure to the beriefit of and be binding upon the Members and their legal representatives, heirs, successors and assigns. 25 1.3.3 Governing Lau, Severability_ This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules thereof If it is determined by a court of competent jurisdiction that any provision of this Agreement is invalid under applicable law, such provision shall be ineffective only in such jurisdiction and only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. 13.4 Notices. All notices, demands and other communications to be given and delivered under or by reason of provisions under this Agreement shall be in writing and shall be deemed to have been given on the date when personally delivered, three (3) Business Days after being mailed by first class mail (postage prepaid and return receipt requested), or transmitted by email (in the case of facsimile or email, if sent before 5:00 p.m_ Central Time on a Business Day (and otherwise on the next Business Day) and provided that a copy is contemporaneously sent by another method of delivery), or on the first Business Day after being sent by reputable overnight courier service (charges prepaid), in each case to the recipient at the address, or email address set forth in Schedule 1 or to such other address, or entail address or to the attention of such other Person as has been indicated to the Managing Member in accordance with the provisions of this Section 13.1. A. copy of any notice to the AAC Member shall be sent by like means to Kriss & Feuerstein LLP, 360 Lexington Avenue, Suite 1200, New York, NY 10017 Attn: David Kriss. 1.3.5 Entire _Agreement. This Agreement contains the entire agreement among the respective parties with respect to die subject matter hereof and supersedes all prior arrangements or understandings with respect thereto. 13.6 Counterparts, Facsimile and Other Electronic Transmission. This Agreement, the agreements referred to herein, and each other agreement or instrument entered into in coruiection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto may be executed in any number of counterparts, any one of which need not contain the signatures of more than one party, but all of such counterparts together shall constitute one agreement, and to the extent such agreement or instrument is signed and delivered by means of a facsimile machine or other electronic transmission, will be treated in all Branner and respects as an original agreement or instrument and will be considered to have the sante binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each patty hereto or thereto will re -execute original forms thereof and deliver them to the requesting party. No party hereto or to any such agreement or instrument will raise the use of a facsimile machine or other electronic transmission to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or other electronic transmission as a defense to the formation or enforceability of a contract and each such party forever waives any such defense. 13.7 Headings. Descriptive beadings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. 13.8 Other Matters of Construction. Unless the context otherwise requires: (a) a terra has the meaning assigned to it; (b) "or" is not exclusive; (c) words in the singular include the plural, and words in the plural include the singular; (d) provisions apply to successive events and 26 transactions, (e) the words "herein," "hereof' and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision; (0 all references herein to Articles, Sections, Exhibits, paragraphs, subparagraphs and clauses shall be deemed to be references to Articles, Section:, paragraphs, subparagraphs and clauses of, and Exhibits to, this Agreement unless the context shall othenAise require, (g) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms; (h) the words "include," "includes" and "including" shall be deemed to be followed by the phrase "xkd thout limitation"; (i) the word "extent" in the phrase "to the extent" shall mean the degree to which a subject or other thins extends, and such phrase shall not mean simply "if'; 0) references to 'T' or "dollars" shall mean United States dollars; (k) unless otherwise expressly provided herein, any agreement, instrument or statute defined or referred to herein or in any agreement, instrument or statute that is referred to herein means such agreement, instrunment or statute, together with all attachments thereto and documents incorporated therein, as the same are from time to time amended, modified or supplemented, (including (i) in the case of agreements or instruments, by waiver or consent and (ii) in the case of statutes, by succession of comparable successor statutes,', 0) all references to any Member shall mean and include such Member and any Person duly admitted as a member in the Company in substitution therefor in accordance with this Agreemmmont, unless the context otherwise requires and (in) in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed to be the product of meaningful individualized negotiations between time Members and no presunmption or burden of proof shall arise favoring or disfavoring any Meenmber by virtue of the authorship of any of the provisions of this Agreoment. 13.9 Further Assurances. Each Member hereby covenants and agrees on behalf of itself and its successors and assigns, without further consideration, to prepare, execute, acknowledge, tile, record, publish and deliver such other information, instruments, documents, tax forms and statements. 13.10 No Third Pg:ly Beneficiaries. No Person (including creditors of the Company) that is not a party hereto shall have any rights or obligations pursuant to this Agreement. The provisions of this Agreement are intended to benefit the Members and, to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company or other Person, provided, however; that time Independent Managers may enforce the provisions of Section 6.5 as to indemnification. To the fullest extent permitted by Law, no Member shall have any duty or obligation to any creditor of the Company to make any contribution to the Company or issue any Capital Call or recall any distribution. In no event shall any provision of this Agreement be enforceable for the benefit of any Person other than the Members and their respective successors and assigns. Notwithstanding the foregoing, or any other provision of this Agreement, the Members agree that this Agreement constitutes a legal, valid and binding agreement of the Members, and is enforceable against the Member by the Independent Managers, in accordance with its terms. In addition (but subject to the provisions of Article 12), the Independent Managers shall be intended beneficiaries of this. Agreement. 13.11 Name fights. Each of the Company and the AAC Member (other than the Managing Member) acknowledges that it has no ownership interest in the name "GGP" or "General Growth Properties," and that from and after a sale or other transfer by GGPN pursuant to this Agreement and other event as described elsewhere in this Agreement, neither the 27 Company nor the Managing Member, or Substitute Member shall use the name "GGP" or "General Growth Properties" in connection with the Property or otherwise. I3.12 Waiver of Jury Trial. TO TIME FULLEST EXTENT PERMITTED BY LAW, EACH MEMBER, FOR ITSELF AND ON BEHALF OF ITS AFFILIATES, HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION, LAWSUIT OR PROCEEDING RELATING TO ANY DISPUTE ARISING UNDER OR IN CONNECTION WITH THIS AGREEIVENT OR ANY TRANSACTION DESCRIBED IN THIS AGREEMENT OR DISPUTE BETWEEN THE PARTIES (INCLUDING DISPUTES WHICH ALSO INVOLVE OTHER PERSONS). 13.13 Exclusive Jurisdiction. Except with respect to Arbitration Matters that are the subject of arbitration under Section 11.7, each party hereto hereby irrevocably (a) submits to the exclusive jurisdiction of any Delaware state or federal court, in any action or proceeding arising out of or relating to this Agreement, the relations between the Mcmbers and any matter, action or transaction described in this Agreement, whether in contract, tort or otherwise, (b) agrees that such courts shall have exclusive jurisdiction over such actions or proceedings, (c) waives the defense that any such court is an inconvenient forum to the maintenance and continuation of such action or proceeding, (d) consents to the service of any and all process in any such action or proceeding by the retailing of copies (certified mail, return receipt requested and postage prepaid) of such, process to them pursuant to Section 13.1 and (e) agrees that a final and non-appealable judgment rendered by a court of competent jurisdiction in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. In the event that an action or proceeding is initiated in one of the courts referenced above and is pending, the parties hereto agree, for the convenience of the parties and subject to any limitations on subject matter jurisdiction of the court, to initiate any counterclaims or related actions in the sante proceeding (as opposed to a separate proceeding in any of the other courts specified above). 13.14 Time of Essence. Except as provided herein and unless otherwise agreed by all IN-lembers, time is of the essence of this Agreement and all covenants and deadlines hereunder. 13.15 Cumulative Remedies. Except to the extent expressly stated in this Agreement, (a) no remedy conferred upon the Company or any Member pursuant to this Agreement is intended to be exclusive of any other remedy available under this Agreement or applicable law and (b) each remedy shall be cumulative and shall be in addition to every other remedy available under this Agreement or applicable law now or in the future. 13.16 Estoppels. After request by a Member, the other Members shall within ten (10) Business Days furnish the requesting Member with a statement, duly acknowledged and certified, setting forth (i) a copy of this Agreement and the governing documents of any Subsidiary (collectively, the "Governing Documents"), and (ii) a statement, to its knowledge, with respect to whether the Governing Documents have been modified or if modified, giving, particulars of such mollification, [Signatures on next page] 28 INT 'vVfrNMSS W14-F—U-OF, this Third Amended &nd Restated Lknited Liabililty Company Agn,-euaient has been axecuted and dalivercd by the Members effective as of the Effec+ ve Date. GGP NENIBUS, LP By. GG? Operating Pmlnership, LP, its general partner 13-.- GGP Real Estate Holding 11, Inc., its general partner B. W-Vickar TiAe., Assistant Secretary GGP LEMU ED PARTNERSHIP By- GGP Operating Partnership, LP, its general partner Py: GGP Real Estate Holding 11, lue, its gelierall B, MoVickar Title: Assistant Sm-retaxy BAYSIDE EQUITIES LLC By: — Name-, Title: Ai WITNESS WHEREOF, this Third Amended and Restated Limited Liability Company Agreement has been executed and delivered by the Members effective as of the Effective Date. GGP NOUS, LP By: GGP Operating Partnership, LP, its general partner By: GGP Real Estate Holding II, Inc., its general partner By: Name: Michael B. McVickar "Title: Assistant Secretary GGP LI,'�=i D PARTNERSHIP By: GGP Operating Partnership, LP, its general partner By: GGP Real Estate Holding II, Inc., its general partner By: Name: I'vEchael B. McVickar Title: Assistant Secretary BAYSIDE EOUTIES LLC M JOINDER BY INDEPENDENT MANAGERS Effective as of December 24, 2014 the undersigned hereby join in the execution of the Third Amended and Restated Operating Agreement dated December 24, 2014 (the "LLC Agreement") of Bayside Marketplace, UC, a Delaware limited liability company to which this joinder is attached for the limited purpose of (i) accepting his/her appointment as an Independont Manager, (ii) agreeing to become a Special Member in accordance with Section 7.5 upon the occurrence of the events specified therein and (iii) accepting and agreeing to be bound by all the terms and provisions of the LLC Agreement applicable to the undersigned as Independent Manager and Special Member. TNDEPE-NDENT MANAGERISPECIAL i1,1E14BER: -�-' ILI Name; Andrew T. Panaccione - - 1-iDEPENDEN'r NVQ NAGER/SPECIAL 1V1E?vEBER: r bk— Name: Michelle A. Dreyer 30 SCHEDULE I Members Names, Addresses and Facsimile Numbers Percentaee w Interest GGP Nimbus, LP 110 N. Wacker Drive Chicago, IL 60606 Facsimile No.: 312-960-5594 GGP Limited Partnership 110 N. Wacker Drive Chicago, IL 60606 Facsimile No.: 312-960-5594 Bayside Equities LLC c/o Ashkenazy Acquisition Corp. 150 East 58"' Street, 39'x' Floor New York, NY 10155 Facsimile No. 212-213-5713 31 50.0° a 1.0% 49.0°10 EXHIBIT A FORNI OF PROPERTY MANAGEMENT AGREEMENT Exhibit A NUNAGEMENT CONTRACT This NL1.NAGEMENT CONTRACT (this "Contract") is entered into by and between BAYSIDE UkRKETPLACE, LLC, a Delaware limited liability company ("Owner") having a principal address at 110 North Wacker Drive, Chicago, Illinois, 60606, and GEINERAL GRO%`TH SERVICES, PiC., a Delaware corporation ("Prooea Manager") having a principal address at 110 North Wacker Drive, Chicago, Illinois, 60606; RECITALS: The following provisions are a part and form the basis of this Contract: A. the Owner is the owner of the shopping center located in Miami, Florida commonly known as Bayside Marketplace (the "Prope "); and B. Owner desires to engage and employ Property Manager to manage, maintain, operate, lease and supervise the Property, subject to the terns and conditions herein set forth; NOW, THEREFORE,, in consideration of the mutual promises hereunder and for other - good and valuable consideration, the receipt and sufficiency of ,which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I APPOLNT4IENT Section 1.01. Appointment Owner hereby engages, appoints and employs Property Mar?ager to operate, supervise, maintain, manage and lease the Property during the term of this Contract, upon the terns and conditions hereinafter set forth. This Contract is not one of agency by Property Mager for Owner but one with Property \lanager engaged independently in the business of managing an properties as an independent contractor. Property Manager shall have no right or authority, express or implied, to commit or otherwise obligate Owner in any manner whatsoever except to the extent specifically provided herein. Section 1.02. Term. The term of the appointment of Property Manager shall be for a one (1) year terrn(the "Terni"), cornrnencinQ as of the ef;ective date of this Contract and shall continue in full force and effect for the Term and shall automatically renew annually thereafter, unless earlier terminated in accordance with the terms of this Contract, including, without limitation, Article VI of this Contract. Section 1.03. Acceptance of Appointment. Property Manager accepts the engagement, appointment and employment by Owner hereunder to the extent, for the period, and upon the terms herein provided. Property Manager agrees to use thorough, diligent and commercially reasonable efforts (commensurate with that of property managers of real property of a comparable size, character and quality to that of the Property) in managing the Property so as to effect an efficient and economic operation thereof. Section 1.04. Authority. Owner is a limited liability company formed under the laws of the state of Delaware and governed by that certain Second Amended and Restated Limited Liability Company Agreement of Bayside Marketplace, LLC (the "Operating Agreement") by and between GGP Nimbus, LP, a Delaware limited partnership, GGP Limited Partnership, a Delaware limited partnership and Bayside Equities LLC, (each a "Member' and together the "Members"). Property )Manager agrees that under any circumstances where the Operating Agreement requires unanimous approval of the Members, or the consent of the Member other than the Managing Member (as that tern is defined Exhibit A therein), the prior written consent of the Owner shall also be required prior to any such action, expenditure, decision or agreement being taken by Property Manager. Property Manager has reviewed the Operating Agreement and is familiar with the actions, expenditures, decisions and agreements requiring the approval of all Members or the consent of the Member other than the Managing Merrnber. ARTICLE II REP ESENTATIONTS, NVARR CNTIES AND COVENANTS Section 2.01. Owner's Representations, Warranties and Covenant. Owner hereby represents, warrants and covenants that: Owner has full right and authority to engage, appoint and employ Property Manager for the purposes and consideration herein set forth and has all requisite power and authority to enter into and perform. its obligations under this Contract; and the person signing this Contract for Owner is duly authorized to execute this Contract on its behalf. Section 2.02. Property Manager's Representations, Warranties and Covenants. Property Manager hereby represents, warrants and covenants that: it is dryly organized, validly existing, and in good standing under the taws of the state of its incorporation or fonnation, qualified to do business in the state in which the Property is locatedand has all requisite power and authority to enter into and perform its obligations under this Contract; the person signing this Contract for Property Manager is duly authorized to execute this Contract on its behalf; and it has secured (or will secure prior to its acting as Property Manager under this Contractj, and will keep in effect durffig the terra hereof, all necessary licenses, permits and authorizations to enable Property Manager, and all averts and employees acting on its behalf, to perform all of Property Manager's duties under this Contract and shad notify Owner immediately should any such license, permit or authorization no longer be in effect or in good standing, ARTICLE .III AUTHORFrY AND OBLIGATIONS OF PROPERTY MANAGER Section 3.01, General Authority. Subject to the provisions hereof, Property Manager shall have the authority, right, power aa)d obligation to operate, supervise, maintain and marsage the Property (which may be exercised in the name of Owner) in accordance with the terms hereof. Except as otherwise specifically set forth, in this Contract, all obligations or expenses properly incurred by Property Manager as contemplated and pursuant to its authority hereunder and consistent with the Company Budget (as defined in Section 5.05) shall be for the benefit of, account of, on behalf of and at the expense of Owner, and €Qwr_rer expressly ago ees to assutxre and promptly pay any and all such expenses and obligations pursuant to the provisions hereoL Section 3.02. Leasing. Property Manager shall Negotiate and enter into, on behalf of O%ner, all leases, lease renewals, lease zmodi cations, licenses and other related agreements relating to the Property, in accordance with this Section 3..02 and the leasing guidelines attached hereto as Exhibit A (as the same may be supplemented or an ended by Owner from time to time, the "Leasing Guidelines"), Property Manager is authorized to negotiate and execute, on behalf of Owner and without the prior Exhibit A consent of Owner, such agreements that demise space equal to or less than 3,000 square feet, and any such agreements that demise space in excess of 3,000 square feet shall be negotiated by Property Manager, subject to Owner's approval, and shall be executed by Owner. Property Manager is also authorized to negotiate and execute, on behalf of Owner, any immaterial modifications to such agreements, including, without limitation: (i) change an effective or commencement date by ninety (90) days or less; and (ii) change the scope of a permitted use as long as such change relates to the principle use. Notwithstanding the foregoing, Owner acknowledges that the actual drafting of leases, licenses and related documentation shall be performed by Property Manager's inside counsel using Property Maarager's forms for such documents. Property Manager shall assist Owner with advertising and news releases and shall engage in other appropriate forms of advertising, all of which shall be subject to approval by Owner. All third party marketing and advertising costs associated with the leasing of the Property, including design and production, shall be completed at Owner's expense. To the extent any tena3rt or potential tenant is represented by a broker, Property Manager may enter into agreements with such tenant representation brokers in connection with any lease or license, provided that Property Manager shall not, without the prior approval of Owner, obligate Owner to pay any commission to such tenant representation broker in excess of the amount payable to Property Manager hereunder pursuant to Section 7.02 hereof. In the event that Owner or Property Manager (with Owner's approval) elects to enffa .e an outside broker to represent Owner in connection with any leasing of the Property, Owner shall pay the costs of any such outside broker, and the amount of Property Manager's Leasing Fee on any such transaction shall be reduced by die amount of any commission paid to such outside broker representing Owner. Property Manager shall comply with the provisions of any loan documents affecting the Property with respect to the negotiation and execution of any leases, including those leases executed by Owner. Section 3.03. Dealin® width. Tenants. Property Manager shall have the obligation to exercise thorough, diligent and commercially reasonable efforts (commensurate with that of property managers of real property of a comparable size, character and quality to that ofthe Property), to undertake any or all of the following as and when directed by Owner, at the sole cost and expense of Owner - (a) sign and serve such notices as are deemed appropriate by Property Manager, (b) terminate tenancies and institute and prosecute all actions (in the name of Owner) to remove tenants and recover possession of any portion of the Property occupied by any tenant following such tenant's default or failure to pay rent in accordance with its lease; (c) institute mid prosecute actions (in the name of Owner) for, and seek to recover, rent; (d) settle, compromise and release such actions or suits; (e) prepare and disseminate sits, plans, brochures and other advertising materials; and (f) engage attorneys to perform die actions required by the foregoing and also for any other relevant matter. Section 3.04. Collection of Vents and Charges. Property Manager shall direct tenants to deposit all rents and assessments and other items due or to become due under the leases and licenses covering the Property into the Collection Account (as defined in Section 5.01 . In the event such suras are unpaid, Property Manager shall have the specific authority to collect (on behalf of and for the benefit of Owner) all such sums, give receipts therefor and deposit such funds coliected hereunder in the bank accounts for the Property provided for in Article V, as more particularly provided in Section 4.05. Section 3.05. Security Deposits. Property Manager shall have the right and obligation to collect security deposits and deposit such funds in a separate account or accounts specified by Owner from time to time in accordance with Article V. Property Manager shall have the right to refund tenants` security deposits as called for in the applicable leases at the expiration of such leases as and when directed by Owner in writing. Section 3.06. Nrsonnei. Any employees or personnel hired by Property Manager shall in every instance be deemed independent contractors or employees of Property Manager and not of Owner. Except as otherwise set forth herein, Owner shall not reimburse Property Manager for the cost of Exhibit A (a) any salary or other expenses with respect to any personnel or employees of Property /Manager except with respect to property level accounting services perforated at Mariager's regional and/or corporate office or offices, (b) Property Manager's overhead or general expenses, or (c) the cost of Property Manager's offices_ Section 3.117. Service Contracts. Property .Manager shall, subject to the Company Budget, in the name and on behalf of Owner, to enter into contracts upon commercially reasonable terms for water; electricity, gas, fuel, telephone, vermin extermination, trash removal, landscaping, security and/or guard service relating to the overall security of the Property and other necessary services or advisable .for the operation of the Property. Unless otherwise directed by Owner, all ser -rice contracts entered into after the date hereof .must expressly provide that they may be cancelable by Owner for any reason whatsoever upon not fnore than thirty (30) days' written notice, without the payment of any additional consideration.. Section 3.08. Payment of Bills; Disbursements. Property Manager shall (1) pay all such bills that are contained within and consistent with the Company Budget, and (2) pay debt service, insurance premiums and real estate taxes, all as and when the same shall become due and payable. Property Manager will use all reasonable efforts to pay all bills within the time .required to obtain discounts, if any, provided Owner's funds from the operation of the Property are available for such purpose. Property Manager shall snake all disbursements in accordance with the authority set forth in this Contract and in accordance with the terns of the Company Budget, Property Manager shall not be obligated to advance its own funds on behalf of Owner for any purpose. If &,vner shall request in writing, Property 14laaager shall institute, at Owner's expense, appropriate protests or challenges relating to die real estate taxes for the Property or take such other appropriate steps to obtain a reduction in such taxes. Property Manager is hereby expressly authorized and obligated to disburse funds generated by the Property during the term of this Contract (Gut of the Operating Account, as defined in Section S.0? for the following it; --ms and at the times set forth below, to die following parties in the order set forth below to the extent such disbursements are contained -within and consistent with the Company Budget or approved by Owner in w+-iting, provided that funds are available for the same: (1) to Property Manager for monies of Property Manager properly advanced by Property Manager for the prior month on behalf of Owner with respect to the Property in accordance with this Contract tprpy_ided, however, that Property Manager shall in nn event have any obligation to advance any monies of Property Manager); (2) all amounts otherwise due and payable as operating expenses of the Property for the prior month, on or before the date the sante are due and payable without penalty or late charges, including all real estate taxes and all payments due under the Mortgage (as defined in the Operating Ab eement (as defined below)) encumbering the Property and Property Manager's Management Fee (as defined in Section 7.01 , which are authorized to be incurred under the ether terms of this Contract and which have not already been paid; and (3) to Owner the Net Proceeds (as hereinafter defined) of the Property on account of the prior month. Sufficient funds for capital expenditures permitted under Section 4.01(c) which shall become due and payable Exhibit A within the next succeeding calendar month and for which the cash to make such payments may not be generated by operations during such period shall ba retained with respect to the Property upon the prior approval of Owner in writing. The term "'tet Pr��ceeds" as used herein shall mean all Gross Receipts and Excluded Receipts (as such terms are hereinafter defined) for the Property for each calendar month less the sun of all disbursements properly made by Properly Manager with respect to the Property during each such. calendar month pursuant to the authority granted Property Manager under clauses (1) and (3) above of this Section 3.07. V T7ie term "Gross Receipts" as used herein shall mean all amounts actually collected by Property M mager as rents, license fees or other charges for use and occupancy of the space located on the Property or access thereto (such as space or access occupied or utilized by telecommunications providers), including rentals, tenant security deposits forfeited to rent, late charges, parkingg Garage receipts, operating expense reimbursements from tenants, credit check or application fees payable by prospective tenants or other third parties, income from any Owner -approved vending machines and/or pay telephones and rental inten•uption insurance proceeds, to the extent same are actually collected by Property Manager; but shall exclude all other receipts (the "Excluded Receipts") including, but not limited to, income derived from interest on investments or oihLr vvise, proceeds of claims on account of insurance policies (other than rental interruption insurance proceeds), sums collected for any sales, use, excise or lease tax levied or imposed by a govern€rzental authority on account of rental space at the ,Property, abatement or taxes; awards arising from eminent domain proceedings or the threat thereof, discounts, dividends on insurance policies, security deposits (unless forfeited), any lease cancellation pay€rents paid by tenants at tlx: Property= for the early termination of their leases and the proceeds frorn the sale or refinancing of all or any part of, or any interest in, the Property or any beneficial interest in Owner. Section 3.09. Development Services. Upon the request of Owner, which Property ltlanager agrees shall require the unanimous written approval of the Members, or the consent of the )err<6crs other tbAan the l4ia€ageing Member (as that terra is defined in the LLC Agreement), Property Manager shall provide ge,neraI contracting and construction management services ("Development Services") which shall include, without limitation, the management, supervision and administration of, and provisions for services for the improvement, expansion (and in the event of damage or condemnation, the reconstruction thereof) of the Property by Owner, including advice, expertise and support of Property Tvfanager's home office and on-site personnel including, without limitation, design and engineering personnel, who may be engaged to perfbTRI., design, planning, architectural, engineering, acquisition and negotiation, negotiations with deparrnent stores for site acquisition and operation in the Property; permits and licenses; site work; negotiations with public authorities, public hearings; project management and all other activities necessary to accomplish the improventent, expansion or reconstruction of the Property. ARTICLE IV ADDITIONAL DUTIES OF PROPERTY MANAGER. Section 4.01. Maintenance and Repair of the Property; Capital Expenditures. To the extent funds are included in the Company Budget, Property Manager shall, at Owner's sole expense, maintain the Property in accordance with standards reasonably acceptable to Owner and shall provide such services as are required in connection therewith, including without limitation, interior and exterior cleaning, painting plumbing carpentry and such other normal maintenance and repair work as may be necessary.. Property Manager shall devote such of its time, Exhibit A attention and business capacity to the management and operation of the Property as may be necessary for Property Manager to fully comply with the terms of this Contract and operate the Property in an efficient and orderly manner as is custorrarily provided by operators of properties of comparable class and standing as determined by Owner in its sole discretion. Property Manager shall have the obligation, on behalf of, and at the expense of, Owner, to (I) make or cause to be made all ordinary repairs and replacements necessary to preserve the Property in its present condition; (2) mare alterations to comply with lease requirements approved by Owner; and (3) negotiate contracts on commercially reasonable terms with respect to the foregoing_ Except as expressly provided herein, Property Manager shall not make any purchase or do any work if the cost of the same shall exceed the amounts therefore in the Company Budget, without obtaining in each instance the prior approval of Owner; provided, notwithstanding the foregoing, Property Manager may spend any funds necessary to stabilize an emergency requiring immediate action for tine protection of the Property or of tenants or other persons from imminent harm, or to avoid the suspension of necessary services. Property Manager shall promptly notify Owner of the necessity for, the nature of and the cost of, any such emergency repairs. All capital expenditures or contracts for services not otherwise provided for in the Company Budget must be authorized by Owner in advance in writing. Any capital expenditure or contract for services that cost in excess of $100,000.00 shall be a -warded on the basis of competitive bidding, solicited in the following mariner: (1) A minimum of three (3) written bids small be obtained for each purchase, at least mo (2) of which shall be frown. Persons who are not Affiliates (as defined in the Operating Agreement) of the Property Manager. (2) Each bid will be solicited in a forth so that uniformity will exist in the bid quotes. (3) Property Manager small provide Owner, at Owner's request, with all bid. responses accompanied by Property Manager's recommendations as to the most acceptable bid. (4) Owner shall be free to accept or reject any and all bids. (5) Owner shall communicate to Property Manager its acceptance or rejection of bids. As and when directed by Owner, Property Manager shall also have the obligation, on behalf of Owner, to the extent funds are included in the Company Budget, to (1) enter into contracts, on commercially reasonable terms, for necessary utility services for the Property; and (2) place orders on behalf of Owner for such equipment, tools, appliances, materials and supplies as are reasonably necessary to properly maintain the Property; provided, however, that each purchase by Property Manager of any of such items shall be on commercially reasonable terms. Except as otherwise Herein provided, no alterations, additions or improvements of any character shall be made in or to the .Property by Property Manager except as otherwise provided for in the Company Budget or except as consented to in writing by Owner in advance of the making thereof. Any such alterations, additions or improvements shall be the property of Owner and shall remain upon the Property upon termination of this Contract unless otherwiseaareed to in writing by Owner. Exhibit A Property Manager shall place and remove, or cause to be placed and removed, such signs upon the Property as Owner Enay authorize and direct in writing, at Owner's sole cost and expense. Section 4.02. Duties of Landlord. Property Manager shall (a) perform all duties of the landlord under each lease so that such lease shall remain in full force and effect and no substantiated claim of default shall be made against Owner as landlord by reason of Property Manager's acts or omissions, provided that should any claim be raised then, upon the prior written consent of Owner, Property Manager shall promptly take such steps as are reasonably necessary to correct the same and (b) strictly enforce each lease (including the tenant rules and regulations made a part thereof) and rules prohibiting alterations, provided that Property Manager shall not be required or permitted to commence any fitigation without the prior written approval of Owner. Section 4.03. Miscellaneous Duties. Property Manager shall riot do any act with respect to the Property outside the scope of its managernent duties which is not authorized by this Contract or tape Company Budget, or otherwise approved in writing by Owner. Property Manager acknowledges that, except as specifically set fo€ttli in this Contract or the Company Budget, it is not authorized to, and shall not, sell, refinance, encumber, or commit any othu-r action with respect to the Property which is contrary to the terms of this Contract or the Company Budget. Property Manager shall not knowingly take any action, or fail to take any action, that would cause a breach of any of the terr:s of the Operating Agreement. Property Manager shall orifi, employ such legal counsel in the perfonnance of its duties hereunder as approved by Owner. Section 4.04. No Affiliate Transactions. Notwithstanding anything to the contrary contained in this Contract, Property Manager shall not enter into any contract, agreement or transaction, which affects, in any way whatsoever, all or any portion of the Property with any Affiliate of Property Manager without the prior written disclosure of such Affiliate relationship to Owner and the prior written consent of Owner. Section 4.05. Collection of bents. Subject to Section 3.04, Property M& -lager shat! diligently collect all rents in accordance with the terms and conditions of all leases and other agreements for the use and occupancy of the Property and other charges which may become due at any time from any tenant or from others for services provided in connection with, or for the use and occupancy of, the Property or any portion thereof (including all Gross Receipts and Excluded Receipts). Property Manager shall collect and identify any income due to Owner from miscellaneous services provided to tenants or the public, including, but not limited to, parking income, tenant storage and coin operated machines of all types i.e., vending machines, pay telephones, etc,). All monies collected under this Section 4.05 shall be deposited in the Collection Account. Property Manager shall notify Owner of any defaults known to Property Manager by tenants at the Property and other parties required to perforin obligations under agreements with Owner, and serve notices of default upon the same. Unless otherwise directed by Owner in writing, Property Manager shall, utilizing counsel theretofore approved by Owner, institute all necessary legal action or proceedings (including settlements) for: the collection of rent or other income front the Property to the extent that amounts owed by a party are equal to or less than One Hundred Thousand and WIN N Dollars ($100,000.00), or the ousting or dispossessing of tenants or other persons therefrom, as long as such ousting or dispossession is related to a lease expiration or termination due to payment default. Section 4.06. Files and Keys. Property Manager agrees that, upon Owner's request or at termination of this Contract, it will, within thirty (30) days thereafter, deliver to Owner (a) all books Exhibit A and records and fifes relating to the Property, including tenant files, and (b) all keys and!or master keys to the Property. Section 4.47. Books and. Records. Property Manager shall keep full, adequate, separate and segregated books of account and such other separate and segregated records reflecting the results of operation of the Property, and which show accurately and completely all Gross Receipts and Excluded receipts from, and all expenses incurred with respect to, the Property. Property -Manager shall preserve such books and records for at least three (3) years from the close of the calendar year to which they relate. Such books and records shall be kept in accordance with generally accepted accounting practices_ Property Manager shall allow Owner, its accountants, attorneys and agents, the right to enter to examine or inspect and copy the books and records relating to the operation and maintenance of the Property at any time during normal business hours upon reasonable notice to Property Manager. Owner shall have the right to inspect and copy same for three (a) years after the termination or expiration of this Contract for any cause. All books and records for the Property shall be available for inspection at the principal office of Property ?Manager or at the Property or such other place as Property Manager may deem appropriate if Owner first approves in writing such other place for such books and records to be kept. Section 4,08, Compliance with Laws, Mortgage and Condominium Documents. As and when directed by Owner in writing, Property Manager shall use thorough and diligent efforts to comply, and to cause the Property, at Owner's expense, to comply, with all requirements of any state, federal or local statute, ordinance or regulation relating to the Property; including, without thnitation, those relating to fire, safety, environmental protection, parking, architectural barriers to the handicapped, zoning and building. Property Manager shall, at the expense of Owner, promptly remedy any violation of any such law, statute, ordinance or regulation which comes to its attention provided notice of such violation is given to Owner and the cost thereof is provided for in the Company Budget or otherwise approved by Owner in writing. If the violation is cne for which Owner may be reasonably subject to penalty, Property Manager shall promptly notify Owner so that prompt arrangements may be made to remedy the violation. Property Manager, as and when directed by Owner in writing and at Owners expense, shall also comply with and cause the Property to comply with all terms, covenants and provisions contained in any mortgage, deed of trust or other security agreement (including, without limitation, the Mortgag>a), the Operating Agreement, or other agreement now or hereafter encumbering or affecting the Property or any portion thereof Section 4.09. Cooperation. Property Manager shall cooperate with Owner, at Owner's sole cost, in all reasonable respects in defending or disposiaag of any claim, suits, or other legal proceedings that may be made or instituted against Owner relating to the Property_ Section 4.10. Tenant Files and Keys. Property Manager shall maintain all tenant files, any outer records that relate to any tenant and all keys to the Property, including, without limitation, all master keys, in a secure area with controlled access by authorized personnel only. Section 4.11. Tenant Improvements; Scheduled Renovation. With respect to ordinary tenant improvements, ordinary tenant finish -out work or any other ordinary renovations or in, (such as ordinary painting, cleaning, and re -carpeting) to the Property requested by Owner in writing or as outlined in the Company Budget, Property Manager agrees to coordinate and supervise all work and activities related thereto to Tile extent requested by Owner, Exhibit A With respect to any extraordinary or major construction or renovation work in or on Che Property which has been approved by Owner or is provided for in the Company Budget, at the direction of Owner in writing, Property Manager agrees to inspect, coordinate, supervise, and cooperate with Owner and the general contractor with respect to such work. Notwithstanding the foregoing, Property Manager shall not be required to make, arrange or contract for any extraordinary alteration, reconstruction or renovation (any expansion, renovation, remerchandising or othLr non -typical management responsibility with hard costs in excess of V-50,000.00 shall be considered an extraordinary alteration or reconstruction) unless Owner and Property Manager agree, in writing, to wi additional fee payable to Property Manager for such services. ARUCLE v BANK ACCOUNTS kND FLNANCIAL REPORTING Section. 5.01. Bank Account. Property Manager shall receive and collect rent and all other monies payable to Owner by all tenants and licensees in or on the Property. Property Manager shall deposit all monies received by Property Manager into an account owned and controlled by Property Manager (the `Bank Account"), which account shall be used for such funds. Property Manager shall pay its Management Fee, Leasing Fee and other fees, and the operating expenses of the Property and any other payments relative to the Property as required by the terms of this Agreement, out of the Bank Account. All amounts received by Property Manager for or on behalf of Owner shall be and remain the property of Owner. Copies of the monthly statements for the Bank Account shall be sent to Owner. Property Manager shall Pay all taxes and assessments levied or assessed against the Property or personal properly used in connection therewith, Owner shall promptly fund the Bank .Account with any amount necessa.'y to make such tax and assessment payments prior to the date such payments are due, and all such payments shall be made by Property Manager on or prior to the date the same shall become delinquent, unless the same are being contested by Property Manager or Owner. Property Manager shall furnish to Owner copies of all written assessment noaees and tax bills received by Property Manager ,Section 5.02, Compliance with Cash Management System, Notwithstanding anything to the contrary in Section 5.01 or 5.02 hereof, Property Mamiger shall comply with any cash management provisions contained in the documents evidencing any loan secured by the Property_ Section 5.03. Reports. Property Manager shall maintain records with respect to the management and operation of the Property. On or before the twentieth (20th) day of each month, Property Manager shall deliver to Owner the reports set forth on Exhibit B attached hereto (collectively, the "Monthly Report') for tl?e preceding calendar month. Property Manager may prepare the Monthly Report using systems and software customarily used by Property Manager, and Property Manager shall deliver the Monthly Report electronically. In addition to the Monthly Report, Property Manager shall provide Owner with monthly status and recap reports on leasing activity, including a general description of the leasing and marketing activity undertaken by Property Manager since the previous monthly leasing report. Owner, and regulatory authorities having jurisdiction over Owner, shall have the right to inspect such records during business hours during the terra of this Agreement, and Owner may, at Owner's sole cost and expense, perform (or cause a third party to perform) independent audits of the Monthly Report. Property Manager shall also assist Owner in preparing any statements required to be submitted by Owner under the terms of mortgages, ground leases, reciprocal easement agreements, leases and other agreements relating to the: Property, Exhibit A Section 5.04. Company Budget. Manager shall prepare and submit to Owner on an annual basis prior to November 1st of each calendar year, a proposed annual operating budget which shall include, without limitation, anticipated costs of operation, repair and maintenance of the Property, reimbursable employment expenses, promotion expenses, capital expenditures and all other costs and expenses for the forthcoming calendar year. Owner shall approve or disapprove t]3e proposed budget in its sole and absolute discretion (as approved by Owner from time to time, as applicable, the "Company Budget"). If Owner fails to respond within thirty (30) days after the date Property Manager submits a proposed budget, the Company Budget for the previous calendar year shall control with the exception of costs of utilities, insurance and real estate taxes. Attached hereto as Exhibit C is the approved annual Company Budget for the period expiring on December 31, 2015. Property Ivlanager shall have the right, without further consent or approval by Owner, to incur and pay the operating expenses set forth in each applicable annual Company Budget, provided, however that Property Manages- has the right to exceed the operating expenses set forth in the annual Company Budget without the prior written consent of Owner by an amount not to exceed five percent (5%) of the aggregate operating expenses set forth b) the annual Company Budget (the "Approved Variance Amount"). If actual aggregate expenditures from a category exceed the amounts set forth in the applicable annual Company Budget by more than the Approved Variance Amount; Property Manager shall review with the Owner the reason; for the excess and obtain Owner's written approval (to be granted or withheld in Owner's sole and absolute discretion) before proceeding with any expenditures irr excess of the approved Variance Amount, Except as otherwise provided in this Agreement, no changes shall be made to the annual Company Budgct or any line itern(s) therein vv�itlaout the approval of Owner, which approval may be withheld in Owner's sole and absolute discretion. Property Manager may at any time, and from time to time, submit requests to Ovner seeking to modify the annual Company Budget, and if Owner does not respond with thirty (30) days after receipt of a modification request from Property Manager for approval, then Owner shall be deemed to have approved such modification. Section 5.05. Additional Operating Activities, Property Manager shall perform the following additional operational activities in accordance with the Company Budget, as and when directed by Owner in writing; From time to time, consult with Owner regarding adequate security in or about the Property in order to protect the assets of Owner; Plant and coordinate the moving in and moving out of tenants at the Property and all construction, alteration and decoration work which Owner has approved in writing and is required to perform for tenants under their respective leases so as to insure a minimum of disturbance to the operation of the Property and to other tenants then occupying or preparing to occupy space at the Property; Immediately notify Owner upon acquiring knowledge that any hazardous substance is being used or discharged by any tenant, or if any dumping, use or leakage of any such hazardous substance or waste occurs on or near the Property. Property Manager shall notify Owner of any areas of potential concern relating to hazardous substances or waste of which it is aware that may affect the Property; and Notify Owner immediately of (1) any threatened or pending condemnation; rezoning or other governmental orders, proceedings or lawsuits involving the Property of which Property Manager is aware and (2) any violations relating to the management', leasing, operation, use, rehabilitation, renovation, repair or maintenance of the Property. Exhibit A ARTICLE V1 TERIVIL lA.TION Section 6.01. Termination in General. -Notwithstanding anything to the contrary in this Contract or otherwise, Owner shall have the absolute and unconditional right to terminate the appointment of Property Manager under ;his Contract or to terminate this Contract as and to the extent provided in each of Section 6.02 Section..6, and/or Section 6.04 at any time. Notwithstanding anything to the contrary contained herein, upon any termination of this Contract, this Contract shall be of no further force and effect (except as provided in Section 606) and Owner shall have no further obligation to pay the Managemeat Fee (as defined in Section 7.01) for periods on and after the date such termination is effective. In addition, Owner shall be entitled to any and all other remedies of Owner hereunder cr at law or in equity, and. Property Manager shall remain liable (to the; extent otherwise provided in this Contract) for any actual out-of-pocket losses suffered as a result of Property Mananr's default and any resulting termination of this Contract under Section 6-05. Thee shall be no liability of Properly Manager under this last preceding sentence due to terminations under Sections 6.02 or 6.04. Section 6.02. Stale of Property Condemnation. Notwithstanding anything Herein contained to t17e contrary, (a) in the event Owner shall at any throe sell, transfer or otherwise dispose of all or substanually 4 of [lie Property in accordance with the terars of Owner's operating agioement, or (b) on the date of a taking it all or snbstantiallyr all of the Property is condemned or acquired by eminent dornain, the;), in aay such event, this Contract may be .immediately tertrtinated by Owner at such safe's closing or upon the taking upon written notice to Property Manager, Section 6.03. Dissolution of Owner. Owner may immediately terrnina!e this Contract, upon tett (10) days' advance Nvrirten notice to Property Manager, in the event of the liquidation or dissolution of Owner. Section 6.04, Default by .Property Manager. Notwithstanding anything contairted herein to tbi; contrary, tthe occurrence of any one or more of the followiztg events shall be a default heretmder (herein referred to as an "Event of Default"). Property Manager intentionallymisappropriates any funds of Owner or has committed, a fraud, willful misconduct or grass negligence relating to this Contract or the Property; Property Manager fails to keep, observe- or perform any material covenant, agmemeait, herrn or provision of this Contract to be kept, observed or performed by Property .Manager and such default shall continue for a period of thirty (30) days after receipt by Property Manager of written notice thereof by Owner or its attorney to Property Manager;row v ded, however, that if such default is reasonably susceptible of cure, but not within such. thirty, (30) day period, then Property Manager shall be permitted up to an additional one -hundred twenty (120) days to cure such default provided that Property Manager diligently and continuously pursues such cure and provided further that Property Manager promptly provides Owner with a written report and evidence reasonably satisfactory to Owner of the progress of Property Manager's cure efforts from time to time, as requested by Owner; Irl the event of a Bankruptcy (as defined in the Operating Agreement) of Property Manager; or Property Manager fails to deliver to Owner any reports required under Section 5,04 or the proposed annual business plait or budget required under Section 5.05 and such default shall not be cured within tete (10) business days after receipt by Property Manager of written notice thereof by Owner or its attorney to Property Manager; provided, however, that if Property Manager's failure to deliver a report is Exhibit A caused by Property Manager's inability, notwithstanding its reasonable and good faith efforts, to obtain, third -party information necessary to the preparation of such report and Property Manager notifies Owner in writing of the reason for such failure, such failure shall not be deemed an Event of Default until such failure continues beyond ten (10) business days after such necessary information becomes available. Upon the occurrence of any Event of Default and after the expiration of any applicable notice or cure period, this Contract may be tenninated by Owner in its sole discretion upon and with written notice of such termination to Property Manager, in which event this Contract shall autornaticaly terminate and be of no further force or effect, except as provided in Section 6,08. Section 6.05. Default by Owner. Nomithstanding anything contained herein to the contrary, the occurrence of airy one or more of the following events shall be a default hereunder (herein referred to as an "Owner Default"): Owner fails to pay the Management Fee (as defined in Section 7.01) within thirty (30) days after Owner receives written notice from Property Manager specifying the failure to pay such fee; or Owner fails to !seep, observe or perform any material covenant, agreement, term or provision of this Contract to be kept, observed or performed by Owner and such default shall continue for a period of thirty (30) days after receipt by Owner of written notice thereof frons Property Manager or its attorney to Owner. Upon the occurrence of an Owner Default and after the expiration of any applicable notice or cure period, this Contract may be terminated by Property Manager in its sole discretion, and with written notice of such termination to Owner, in which event this Contract shall thereafter be of no further force and effect, except as provided in Section 6.08. Section 6.06. Effect of Termination. Upon termination pursuant to the terms hereof, Property Nfaaager and Owner shall have no further duties and obligations to each other with respect to the Property relating to such termination except with respect to clairns, obligations and liabilities resulting frorn events occurring prior to the date of termination; provided, however, that Property Manager shall deliver to Owner a final report for the Property reflecting the balance of income and expenses and shall remit all funds and proceeds relating to the Property raider the direct or indirect control of Property Manager to Owner within ten (10) days of such termination. Additionally, upon the expiration or termination of this Contract, at the request of Owner, Property Manager shall render a full accounting to Owner relating to the Property, and upon request of Owner and at Owner's expense, Property Manager shall notify all tenants of the Property of the expiration and termination of this Contract and shall use all reasonable efforts to cooperate with Owner to accomplish an orderly transfer of the operation and management of the Property to a party designated by Owner. Additionally, Property Manager shall deliver to Owner immediately upon such termination all security deposits, accounts, papers, leases; records and computer database for all information related to the Property in Property Manager's computer database (or computer disketles with any special codeword or password required for their use) and any keys to the Property held by Property Manager on behalf of Owner attributable to the Property. ARTICLE VII COMPENSATION OF PROPERTY MANAGER Section 7.01. Management Fee. Owner agrees to pay Property Manager for its services during the Term as Property .Manager under this Contract, the following fees for each month of the terra of this Contract (appropriately pro -rated in the case of partial months); Exhibit A Property Management .Fee_ Owner shall pay Property Manager as compensation for all of its property management sen ices hereunder an amount per month equal to Two Percent (2.00%) of the gross revenues received with respect to the Property (the "Property Management Fee"). As used herein, "grass revenues" shall not include and no compensation shall be paid on: (i) receipts arising out of the settlement of any insurance claims (other than proceeds of business interruption insurance), (ii) security deposits or other deposits unless and not until such deposits are applied as rental income or (iii) rents paid snore than thirty (30) days in advance of the due date until the month in which such payments are to apply as rental income. Except as otherwise set forth herein, Property Manager shall charge no other fees to the Company other than the Property Management Fee. (b) Ancillary Services Fee. [it addition to the Property Management Fee, , Owner shall pay to Property Manager an additional one (1%) percent of all gross revenues as defined in Section 7.01(a) in full payment of all services to be rendered by Property Manager for development, leasing and leasing commissions, tenant and lease coordination, property tax services, accounting and bookkeeping and all other services required for tate operation and development of the Property. Section 7.02. Fee Payment_ The Management ,Fee shall be payable monthly, in arrears, on the l 0tl, day of each calendar month, based on gross revenues actually collected by Property Manager or Owner in the preceding month. Property Manager shall be entitled to receive the Management Fee payable on the pro rata portion of rents received by Owner after the termiration of this Agreement, but applicable to time periods prior to the termination of this Agreement. The Leasing Fee with respect to new leases, as applicable, shall be payable as follows: ARTICLE 'V -M INSURANCE Section 5.01. Owner's Insurance. Owner shall self insure or, at its option, carry insurance upon the Property, and to the extent that policies shall be procured, Owner shall obtain waivers of subrogation against the 1VSanager under such policies. Owner shall provide and maintain at Owner's sole cost and expense commercial general liability insurance, ineludino bodily injury, contractual liability (with respect to die indemnity set forth in Section 32 hereof) and broad form property damage liability, in connection with the o=wnership, use and occupancy of the Property, in the arnount of not less than $100,000,000. Manager shall be named in the public liability policies as an additional insured. Section $.02. Property Manger's Insurance. Property Manager shall, at its expense, continuously maintain and supply to Owner certificates evidencing the existence of the following insurance policies: Comprehensive automobile insurance with limits of $250,000.00 for personal injury or death to any one person and $500,000.00 for personal injury or death for two or more persons in any one occurrence; Workmen's compensation insurance in accordance with the statutory requirements of the State of New York, Employee dishonesty insurance covering Property Manager and all of its employees who have access to or are responsible for the handling of Owner's funds or tenant security deposits with coverage of at least $125,000.00; and Exhibit A Comprehensive general liability insurmice with limits of $2,000,000 and excess liability insurance witlh limits of $10,000,000, with Owner being named an additional insured thereon. All insurance carried by Property MEmager shall be endorsed to specify that same may Piot be canceled or materially altered without the insurance carrier's first giving Owner at least thirty (30) days prior written notice thereof Section 8.03. Cooperation with Insuratnce Carriers. Property Manager shall cooperate with, and provide reasonable access to the Property to, agents of any and all insurance companies and/or insurance brolcerages or agencies who may. from trope to time, be involved with the issuance of insurance policies or with inspections of the Property in connection with insurance policies then in force. Property Manager agre ,s to use all reasonable efforts to comply with any and al requirements of such insurance companies or their agents, and agrees to —exercise due care not to use the Property or permit the same to be used for my purpose which would make void or voidable any of such insurance policies, and shall not keep or knowingly allow to be kept on the Property any nnaterial, rnachineiy, equipment, substance or other things which may make void or voidable any such insurance policies. Section 8.04. Reporting Damage. Property Ilarnager shall promptly investigate and, upon the request of Owner, rrake a full written report to Owner and its insurance carriers as to all alleged accidents andior alleged claims for damages relating to the ownership, operation, iccasing, management and maishtenance of the Property, including any damage or destruction to the Property and the estimated cost of repair, and, upon the request of Owner, shall prepare any and all other reports required by any insunFar.ce company in connection therexith. .Property lvla.rnager shall acquaint itself with all terms and conditions of all of die insurance policies relating to the. Property, cooperate with and, upon the request of Owner, make all reports required by such insurance carriers and do nothing to jeopardize the rights of Owner and/or any other party insured under said policies. Section 8.05. Waiver. Property Manager, ofh behalf of itself incl its insurers, waives its right of recovery against Owner andr'or Owner's members, and their respective officers, directors and employees, for damages sustained by Property Manager as a result of any damage to the Property or other loss related to the ownership, maintenance. or management of the Property arising Froin any risk or peril generally covered or coverable by any insurance policy actually carried by or required to be carried by Property Mai,ager pursuant to the terns of this Contract, regardless of cause, includingnegligence, and Property i4lanager agrees that no party- shall have any such right of recovery by way of subrogation or assignment, Property \Maria ger shall notify its insurance carriers of the: waiver herein contained and to cause its insurarn;,e policies required hereunder, to be endorsed, if necessary to prevent any invalidation of coverage as a result of the waiver herein contained. ARTICLE IX n-DETNINITY Section 9.01. Indemnity by Property Manager. Property Manager agrees to indemnify, defend, protect and sage Owner and the members in D -,timer, and their respective partners, members, directors, officers, shareholders, affiliates, and employees (collectively, the "Owner's Indemnified Affiliates"), free and harmless from and against any and all loss, damage or expense (including reasonable attorney's fees) arising from the bad faith, fraud, grossly negligent acts or omissions, or the willful acts or omissions, of Property Manager and/or its officers, directors, shareholders and employees and from any default by Property Manager and/or its officers, directors, shareholders and employees in the performance of their duties under this Contract and from actions outside the scope of its or their duty (hereunder. In this regard, Property Manager agrees to pay all Exhibit A reasonable and out-of-pocket expenses incurred by Owner and,'or Owner's Indertinifred Affiliates including, without limitation, reasonable attorney's fees for counsel employed to represent Property Manager or Owner and,'or Owner's indemnified Affiliates in any suit or proceeding arising out of any event for which this indemnity applies, but nothing herein contained shall require Owner and/or Owner's Indemnified Affiliates to be represented by counsel unacceptable to Owner and/or Owner's Indemnified Affiliates (as the case may be). Section 9.02. Indemnity by Owner. Except for the bad faith, fraud, grossly negligent acts or omissions, or the willful acts or omissions, of Property Manager and/or its officers, directors, shareholders, agents and employees, or any default by Property Manager or such officers, directors, shareholders or employees in the performance of their duties under this Contract or the taking by such persons or entities of any other actions outside the scope of their authority under this Contract, subject to Section 8.05, Owner agrees to indemnify, defend and save Property IGlanager, and its officers, directors, shareholders and employees (collectively, "Property_ Manager's Indemnified Affiliates"), free and harmless from and against any and all loss, damage or expense (including reasonable attorney's fees) arising from any cause either in and about the Property or elsewhere when Property Manager an&or Property Manager's Indemnified Affiliates are carrying out the provisions of this Contract or acting under the directions of Owner. In this regard, Owner agrees to pay all reasonable and out-of-pocket expenses incurred by Property Manager and/or Property Manager's Indemnified Affiliates including, without limitation, reasonable attorney's fees for counsel employed to represent Property Manager and/or Property Manager's Indemnified Ajffiliats or Owner in any suit or proceeding arising out of any event for which this indemnity applies, but nothing herein contained shall require Property Manager and,or Property ivtarrager's hidemnified Affiliates to be represented by counsel which is unacceptable to Property Nlanager and/or Property Manager's Indemnified Affiliates (as the case may be). Owner's obligations liereunder include the payment of all settlements, judgments, darmiges, liquidated daniages, penalties, forfeitures, awards of back pay, court costs and other such litigation expeuses arising out of any event for which this indemnity applies. ARTICLE X MISCELI.ANEOUS PROVISIONS Section 10.0.1. Not a Partnership. Nothing contained in this Contract shall constitute or be construed to be, or create, a partnership or joint venture between Owner and Property Manager, or their successors and assigns, and Property Manager is, shall be and remain an independent contractor in connection herewith. Section 10.02. Entire Agreement. Tlris Contract constitutes all of the understandings and agreements of whatever naftire or kind existing, of which Property Manager is a party, with respect to Property ilvlanager's operation and management of the Property, and no other agreement, statement or promise relating to the Property or management thereof that is not in writing and signed by Property Manager and Owner shall be binding. Property Manager makes no guarantees, warranties or representations that there will be profits or that there will not be losses from the operation or disposition of the Property. Section 14.03. Beading. The article and section headings contained herein are for convenience of reference only and are not intended to define, limit or describe the scope or intent of any provision of this Contract. Except as otherwise provided herein, all references to "Articles" or "Sections" contained in this Contract shall be deemed to be to Articles and Sections of this Contract. Section 10.04. Notices. All reports, notices, requests, demands or other communication by any party to any other party shall be in writing and shall be given in the manner hereinafter provided. Exhibit A Except as otherwise provided in this Contract, a notice shall be deemed to have been duly given (a) when actually received if delivered personally or (b) five (5) days after deposit in the United States mait, in a registered or certi.l:ed postage paid envelope, return receipt requested, and (c) one (1) business day after deposit with a reputable overnight courier service, addressed to the respective parties as follows: OWNER: Bayside Marketplace, LLC c/o General Growth Properties; Inc. 110 North Waaker Drive Chicago, Illinois 60606 Attention: Marvin Levine, Esq. WITH COPIES TO: Kriss & Feuerstein LLP 360 Lexington Avenue, Suite 1200 l�ew York, New York-, 10017 ,attention: David S. friss, Esq. PROPERTY,ILANAGER: General Growth Ser -ices, Inc. 110 NorthWacker Drive Chicago, Illinois 60606 Attention: Marvin Levine, Esq. Either party ma} at any time change the address for notices to such party by the delivery or rnailine, as aforesaid, of a notice stating the change and settin ; forth the changed address_ Section 10.05. Governing Law. This Contract shall be deemed to have been made, and shall be governed by and construed and interpreted in accordance with, the internal laves of the State of New fork. Section 10.06. Binding Effect. Property Manager may not assign or in any way transfer this Contract without the prior written approval and consent of Owner. Except as aforesaid, this Contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, pens, nal representatives, successors and permitted assigns. Section 10.07. Non -Waiver. The failure of Owner or Property Manager to seek redress for any violations or to insist upon the strict perforniance of any covenant, agreement, provision or condition of this Contract, shall not constitute a waiver of the terms of such covenant, agreement, provision or condition, and Owner and Property Manager shall have all remedies provided herein and by applicable law with respect to any subsequent act which would have originally constituted a violation. Section 10.08. Attorneys' Fees. In the event of any controversy, claim or dispute between the parties hereto arising out of or relating to the Property or this Contract or the breach thereof, the prevailing party shall be entitled to recover from the losing party, reasonable expenses, attorneys' fees and costs. Section 10.09. Gender. Wien the context and construction so require, all words used ir. the singular shall be deemed to be used in the plural and vice versa, and all masculine, feminine and neuter references shall include the other genders. Exhibit A Section 10.10. Emergencies. It is expressly agreed that notwifhstanding anything herein contained to the contrary; whenever under the terms of this Contract Property Manager is required to obtain the written consent of Owner prior to the taking of any action, Property Manager may act upon obtaining only the oral consent of Owner if an emergency exists such that under the circumstances a delay in Property Manager's action would be imprudent and not in the best interests of Owner, In the event of any such situation, the consent of Owner shall be corfrmed in writing as soon as reasonably practicable thereafter. Section 10.11. WAIVER OF JURY TRCAL. 01k`TER AND PROPERTY MANAGER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNT TERCL.AIM DROUGHT BY EITHE-R OF TIDE PARTIES HERETO AGAINST THE OTHER IN RESPECT OF ANY MATTER ARISING OUT OF OR 14N CONNECTION WITH THIS CONTRACT. OWNER AND PROPERTY 1\1ANAGER REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACI4 KNOWINGLY ANT VOLUjIT.A ILY WAIVES .ITS JURY TRIAL RIGHTS F"OI.LOWING CONSULTATION WITH I..EGAL COUNSEL. Section 10.12. Owner's Limited Liabilify. No direct or indirect member, affiliate or partner in or of Owner, or any disclosed or undisclosed officers, shareholders, principals, directors, partners, members, employees; partners, servants or agents of Owner or of any member in or affiliate of Owner or of arty of the foregoing, or any investment advisor of Owner (including array assignee or successor of Owner) or other holder of any equity interest in Owner, shall be personally liable for the performance of Owner's obligations under this Contract. The liability of Owner (including any assignee or successor of Owner) for Owner's obligations hereunder shall be- limited to Owner's interest in the Property. Section 10.13. Counterparts. This Contact may be signed in any ?umber of counterparts, eaLia to be an ot'iginal, but all of which shat] constitute but one agrecment, and it shall be sufficient if any party hereto signs any such counterpart. [Space Intentionally Left Blank; Signature Page. Follows] Exhibit A EXECUTED by the parties hereto on lie respective dates set forth below, but to be effective for all purposes on and as of 12014. 0W-.NER: BAYSIDE MARKETPLACE, LLC a Deta-ware limited liability company By: , Name: Its: PROPERTY MANAGER; GENERAL GROWTH SERVICES, SMC. By: Name: Its: — Exhibit A MMIT A LEAS NIG GUIDELINES EXHMff R REPORTS The following reports (samples of which ©wryer has approved) which relate to the operation and mannagernent of the Property shelf be provided by Property Manager pursuant to Section 5.03: I. Executive Summary; 2. A/I Aging; 3. Detailed GAAP Income Statement; 4. Detailed Balance Sheet; 5. Property Sales and Occupancy Costs; b. Rent Roll; 7. Suin nary Balance Sheet; S. Sup ma. -v GAAP Income Statement; 9. Trial Balance E_XMFT C 3015 Company Budget �E 1 Reporting Executive Summary (substantially in the form attached hereto) AYR Aging Detailed GAAP Income Statement Detailed Balance Sheet Property Sales and Occupancy Cost Rent Roll Summary- Balance Sheet Sw-r,mary GAAP Income Statement Trial Balance Exhibit D EXHIBIT E Company's Auditors And Environmental Consultants C©mpav's Auditors: Deloitte LLP Ernst & Young LLP Environmental: Internal General Grnwrh Properties, Inc. staff Exhibit E BAYSIDE MARKETPLACE (JV) Bayside Marketplace (Miami. FL) GROUND LEASE rs : Agreement On October 28, 2016, GGP and AAC contributed their respective interests in Bayside Marketplace, LLC to MB JV LLC, and a new entity wholly owned by MB JV LLC was formed to acquire property interests unrelated to Bayside Marketplace. EXECUTION COPY LIMITED LIABILITY COMPANY AGREEMENT OF MB JV LLC TFI1S LIMITED LIABILITY COMPANY AGREEMENT OF MB JV LLC (the "Company"), dated as of October 2$. 2106 (the '`Effective Date"'), among GGP Nimbus, LP. a Delaware limited partnership (--GGPN"), Bayside Equities LLC, a Delaware limited liabiliti company (" AAC Member "). GGP Limited Partnership. a Delaware limited partnership (`-GGPI.P*7 and together with GGPN, the "GGP Members'') and any and all other persons and entities that, from time to time. become additional or substituted members of the Company and that subscribe their names on thesignature pages hereto as signatories (each, a "Member- and collectively, the --N-lembers"). WHEREAS, the Company was formed on October 27. 2016 pursuant to the Limited Ifiability Company Act of the State of Delaware (6 Del. C. § 18-10I, ct 5seq.), as amended from tune to time (the "Acte). by the filing of a Certificate of Formation of the Company (the "Certificate") Nvith the Delaware Secretary of State on such date, WHEREAS. the Company was formed in coruiection with the transactions described in the Transaction .Agreement (as defined in ARTICLE 2 below). WHEREAS, the Members wish to set out fully their respective rights, obligations and duties rewgardinfo the Company and its assets and liabilities, 4 NOW, THEREFORE. in consideration of the mutual covenants expressed herein. the parties hereby agree as follows: ARTICLE 1 GENERAL PROVISIONS 1.1 Organization of the Companv: Term. The ]Members hereby agree to become members of the Company and to enter into this Agreement tinder the provisions of the Act. This Agreernent constitutes the limited liability company agreement of the Company and sets forth the apreement of the Members as to their relative rights and obligations as well as the manner in which the IN/Icmbers have agreed to operate the Company. The term of the Company commenced upon the filing of the Certificate (the date of such filing is referred to herein as the date of "formation" of the Company) and shall continue until dissolution of the Company in accordance with the provisions of Article 10. To the extent permitted by applicable law, the provisions of this Agreement shall override the provisions of the Act in the event of any inconsistency or contradiction between them. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate in accordance with the. Act. 1.2 Name. The name of the Company shall be "MB JV LLC" or such other name or names as the Members matt- jointly` determine from time to time pursuant to Section 6.2. 1.3 admission of Members. GGPN. GGPLP and AAC are hereby admitted as Members and shall be shown as such on the books and records of the Company. 1.4 Purr ose. Subject to the terms of this Agreement. the purposes of the Company are as follows: (a) ownino. managing, maintaining, operating, financing, leasing, improving. selling. pledging. rnortgag ing or otherwise disposing of the Properties directly or through one or more Subsidiaries. and (b) enpging in such other activities incidental or ancillary thereto as the Members deem necessary. appropriate or desirable. 1.5 Principal Office. The Managing Nvlember shall maintain a principal office at C/o Genual Groxih Properties. Inc.. 110 N. Wacker Dr.. Chicago. Illinois 60606. or at such other place or places as may be designated by the Managing Member from time to time with the Nlembers' prior approval, ARTICLE 7 DEFINITIONS; DETERMINATIONS 2.1 Definitions. Capitalized terms used in this Agreement shall have the meanings set forth below or as otherwise specified herein: "Accountants" means a Firm of independent certified public accountants of recognized national standing approved by the Members in accordance with Section 6?. -'Act" has the meaning set forth in the Preamble. "Affiliate" means. ,yith respect to any Person, any other Person controlling, controlled by or under common control with such Person. Notwithstanding anything to the contrary herein, it is agreed that none of the Members or any of their respective Affiliates shall be treated: as Affiliates of the Company or any Subsidiaries. "Affiliate Contract" means a contract or other agreement between the Company or any of its Subsidiaries, on the one hand. and any Member or any of its Affiliates, on the other hand. "Affiliated REFI'"` means any Entity that directly or indirectly owns an Equity Interest in the Company that has elected or elects to maintain its status as a REIT or that informs by delivery of written notice. at any time. to the Mana;Iing Member that it intends to elect REIT status. "Agreement" means this Limited Liability Company Agreement of MB JV LLC, as amended or modified from tinge to time in accordance with the terms hereof. -Anproyed Owner" means (a) Nvith respect to GGPN. an-, Entity that is 98% directly or indirectly owned b� General Gro"Ah Properties, Inc. and (b) with respect to any other Person. a Person that is 100% directly or indirectly owned by such other Person: provided, however, that in determining, the percentage ownership of an Entity. any class of preferred or similar Equity Interests issued in connection with complying Nvith minimum shareholder or owner requirements applicable to REITs shall be ignored. V --Arbitration Expert" has the meaning set forth in Section 11.7. -Arbitration Matter - has the, meaning set forth in Section 11.7. "Available Proceeds" means, xith respect to any period of time. all Cash Floe- for such period of time. as reduced by increases in Reserves and increased by reductions in Reserves. "Bankruptcv" means. with respect to any Person. if (a) such Person makes an assignment for the benefit of creditors. (b) such Person Files a yolttntan- petition in bankruptcy. (c) such Person is adjudged bankrupt or insolvent, or has entered against it an order for relief; in any bankruptcy or insoh encs proceeding. (d) such Person Files a petition or answver seeking for itself any reorganization. arranuement. composition. readjustment. liquidation or similar relief under anv statute. laws- or regulation. (e) such Person files an answver or other pleading admitting or failings to contest the material allegations of petition tiled against it in any proceeding of this nature. (f) such Person seeks. consents to or acquiesces in the appointment of a trustee. receiver or liquidator of such Person or of all or any substantial part of its properties, or (g) ninety (90) dans alter the commencement of any proceeding against such Person seckin;w reorizanization. arrangement, composition, readjustment.. liquidation or similar relief under any statute, law or regulation, the proceeding has not been dismissed. or wyithin ninetv (90) days after the appointment wlithout such Person's consent or acquiescence of a trustee. receiver or liquidator of such Person or of all or an` substantial part of its properties, the appointment is not vacated or stayed. or wvithin n1riety (90) days after- the expiration of any such stay. the appointment is not vacated. The foregoing definition of "Bankruptcy" is intended to replace and shall supersede and replace the definition of "Bankruptcy" set forth in Sections 18- 101 (1) and 18-301 of the Act. "Bankruptev Code" means the United States Bankruptcy Code 11.1 U.S.C. §§ 101. er seq. .,Base Rate., means. on any date. a variable rate: per annum equal to the rate of interest most recently* published by The Wall Street Journal as the -`prime rate" at large U.S. money center banks. "Bayside"' means Bayside Marketplace. LLC. a Delaware limited liability company that is a Subsidian-. "B:'S Buy Option'. has the meaning set forth in Section 8.5(b). "B(5 Distribution Amount" has the meaning set forth in Section 8.5(a). -B'S Electim-, Notice" has the meaning set forth in Section 8.5. ''B!S Notice'. has the meaning set forth in Section 8.5(a). ..BB'S Offeree" has the meanina set forth in Section 8.5(a). -'B.}S Offeror'' has the meaning, set forth in Section 8.5(a). -13,'S Option" has the meaning set forth in Section 8. ia). .'B/S Response Period-" has the meaning set north in Section 8..5(b). "B/S Sell Option" has the meaning set forth in Section 8.5(b). '-BIS Trigcer Event'* means (a) the expiration of the Lockout Period; or (b) the occurrence of any Cause Event. " B.. S Valuation Amount- has the meaning set forth in Section 8. (�a . -Business Dav„ nicans any day oil which commercial banks are open for business in ChicatiLo. Illinois. other than Saturday and Sundae. Any event the Scheduled occurrence of which mould fall on a day that is not a Business Dai' shall be del'erred until the immediately succ, ceding dav that is a Business Day. "Capital Account" has the meaning set forth in Section 3.4. ..Capital Call"' shatI have the meaning set forth in Section 3.2(a). "Capital Contribution" means, with respect to any \•lember, the amount of money and the Gross Asset Value of any property contributed by such Member to the Company (net of any liabilities secured by Sueli property or to wvhich such property is otherwise subject at the time of the contribution of such property). "Capital Default"" has the meanin4-, set forth in Section i.a. " Capital Loan" has the meaning set forth in Section 3.3. "Capital Loan Rate- shall mean 10.0% per annum. provided tliat in no g=ent shall the Capital Default Rate exceed the highest rate permitted by applicable law. "Cash Flow" means, for any period for which Cash Flow is being calculated, gross cash receipts received by the Company and any Subsidiary during such period (including proceeds froin financings and capital events). net of expenditures paid by the Company and anti - Subsidiary during such period (Including the distribution referred to in Section }. 1). ".Cause Event" means a determination by an arbitrator pursuant to a binding arbitration in accordance with Section 11.7 that anv of the followvin=., has occurred: (a) any Bankruptcy by the Managing Member wyhich is not dismissed within ninety (90) days; (b) a direct or indirect Transfer of all or part of a Managing Member's Interest that is not permitted under ,article 8, (c) the Managing Member has committed fraud, gross negligence or willful malfeasance ill the performance of its obligations under this Agreement that, in any such case. has a material adverse effect with respect to the financial condition 4 or performance of the Company or its Subsidiaries or has willfully failed to make required Distributions pursuant to Section 4.1 atter notice from AAC: provided, that in the case of clause b (other than an intentional breach of the transfer restrictions set forth in Section 8.1) or clause c) above. the Member that is not an Affiliate of the Manasim, Member has notified the Managing Member of the event described in such clause b or Lcj�above, and. if such event is capable of beim cured. the Managing Member has not cured the cause or grounds for such event within thirty (30) days of'such notice: provided, that if any such event is capable of being cured but cannot xvith diligent efforts be cured k\ ithin such thirty (30) day period, but the Managing Member commences such cure within such thirty (30) day period. thereafter diligently and contirlaiolISIV prosecutes such cure. and such default is reasonably susceptible to beings cured within one hundred fifty (150) days, such thirty (30) day period shall be extended for the time reasonably required to effect such cure, but in no event for more than an additional one hundred twenty- (120) days (i.e. 150 days total): provided. further, that to the extent the lvlanag.,ing Member cures any circumstance that gives rise to a Cause Event. their such occurrence shall not constitute a Cause Event. For avoidance of doubt, if (x) the occurrence of any event described in clause c above is caused by all employee or an officer of the Nlanaginl Member or an Affiliate thereof. (y) the employment of said individual by suc:ll Person which has any relationship. contractual or othenvise. to the Company or a Property, is terminated. or such individual is otherwise removed from all responsibilities regarding the Conlpany or a Propci-ty. within the cure periods set forth above, and (z) if the Company- or any Member has suffered a monetary loss or dainaae as a result thereof. the Marlaoin+g Member reimburses such Person for an\- such monetary loss or dama(ae suffered or incurred by such Person vdthin the cure periods set forth above. then such termination or removal, and reimbursement shall constitute a cure for purposes of this paragraph. For avoidance of doubt, if a ivlember initiates an arbitration to determine whether or not a tri; "Confidential Information" means (a) all information. materials and data relating to any Company Entity or any l-iernbtr or any Affiliate thereof that are not generally knoNyn to or available for use by the public (including this Agreement, information and materials relating to products or services. pricing structures (including historical or projected pricing. cost. sales and profitability of each product or service offered). accounting and business methods, financial data (includin4g historical performance data, investment returns. valuations. financial statements or other information concerninog historical or projected financial condition. results of operations or cash floes). inventions. devices. new developments, methods and processes, prospective investments, customers, clients and investors. customer. client and investor lists, copyrightable works and all technolo2v, trade secrets and other proprietary infonnation), and (b) all other infor'rnation. materials and data, if any, which any Company Entity or any Member or Affiliate thereof is required by law or agreement to keep confidential. '.Conflicted Member- shall mean. (i) kvith respect to an Affiliate Contract to which the Man.agin Nlernber or any of its Affiliates is a party. the Managing Member, and (ii) with respect to an Affiliate Contract to which the AAC Member or any of its Affiliates is a party. the AAC Member. ..Contributing Nfember" has the meaning set forth in Section 3.3. '.CPI" means the Consumer Price Index for All Urban Consumers (CI't-U) for All Items. 1982-84 100. published morrthly by the United States Department of.- Labor. Bureau of Labor Statistics. If the Bureau of'l_.abor Statistics changes the base period for computing the CPI or otherwise revises the manner in which the CP1 is determined. an adjustment shall be made in the revised index %which would produce results equivalent, as nearly as possible. to those which would be obtained hereunder if the CPI were not so revised. If the CPI becomes unavailable because publication is discontinued or otherwise, there shall be substituted therefor a comparable index, reasonably acceptable to the Ntana{ging Member, based upon changes in the cost of living or the purchasing power of the consumer dollar, published by an agency of the federal L,-'oven-iment or in the absence thereof, by a nationally reco-sized financial reporting service. "Default Action" shall have the meaning set forth in Section 6.5. "Det�reciatiott" means, for each taxable year or other period. an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for the year or other period. except that if the Gross Asset Value of an asset differs from its adjusted basis for U.S. federal income tax purposes at the beginning. of the year or other period, Depreciation will be an arnount which bears the same ratio to the beginning Gross Asset Value as the: U.S. federal income tax depreciation, amortization or other cost recovery deduction for the rear or other period bears to the beginning adjusted tax basis, provided that if the U.S. federal income tax depreciation. amortization, or other cost recovery deduction for the year or other period is zero. Depreciation will be determined with reference to the beginning Gross Asset Value usinrj any reasonable method selected bel the Managing Member. 4 `'Designated Representative- means, x ith respect to a Member. the representative designated by such Member from time to time. The Designated Representative of GGPti shall be a Person who} holds the position of Vice President or hig=her at General Growth Properties. k Inc.. and the Designated Representative of the AAC Member shall be a Person who holds the position of Vice -President or higher at ��shl enaz}� Acquisition Corp. The initial Designated Representativc of GGPN shall be Shobi Klan and the initial Desianated Representative of the AAC Member shall be Michael Alpert. "Disclosure Recipient means. with respect to an}- Member. -such Person's Affiliates. and such Person's and such Affiliates' respective directors. officers, employees, representatives. agents. investors. attorncvs or other financial or professional advisors, prospective purchasers or other prospective transferees (directly- or indirectly) of all or any portion of such Member's Interest and an\ prospective lender or other source of debt or equity financing, to such Member or ars% of such feniber's Afriliates. with respect to the Company. --Effective Date" has the meaning set forth in the Preamble. „Entity" mearis a partnership (general, limited or limited liability), a corporation. a limited liability company. an association. a joint stock company, a trust. a joint venture, an unineorporarted or�ratnization. or a governmental. gtuasi-{rovtr•rtn7erltal. judicial or regulatory entity or any department. agency or political subdivision thereof. "Equi0v Interest" means (a) in the case of a corporation, shares o f stock. (b) in the case of a general or limited partnership. partnership interests. (c) in the case of a limited liability company. Tnenibership units nterests and (d) in the arse of any other Entity. the comparable interests therein. '-ERISA" means the U.S. Employee Retirement Income Security Act of 1974. as amended. "`F'xpiration Date" has the meanin-scat forth in Section 8.60)(i}. ..f=iscal Year" means each fiscal year of the Company. which shall be the calendar year. "GAAP'- means U.S. generally accepted accounting principles. consistently applied. "GGP Member' shall mean either GGPN or GGPLP; •'GGP Members" shall mean both GGPIv and Ci(.;PLP. a Subsidiarv. `GGP T)'RC" means GGP TYRC LLC, a Delaware limited liability company and "Governinu_= Documents" has the meaninr, set forth in Section 1 ;.16. `-Gross Asset Value... nxeans. with respect to any asset. the assets adjusted basis for U.S. federal income tat purposes. except as follows: (a) the initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset. as determined by the Managinfa 7 Member and such contributing Member; provided that, the initial Gross asset Value of the Company's interest in the Property held through Bayside shall be the same as the 'Gross Asset Value" elf such Property within the meaning of the Third Amended and Restated Limited Liabilit. Company Agreement of Bayside immediately prior to the Effective Date. (b) the Grass Asset Value of all property of the Company shall be adjusted to equal the respective gross fair market values of such property. as determined by the Managing hletnbe;r in accordance ,Kith Treas. Reg. §1.70-1-1(b)(2)(iv). as of' the followinn times: (i) the acquisition of additional interests in the Company by any new or existing Merrrber in exchange for more than a de minimis Capital Contribution: (ii) the distribution by the Company to a Member of more than a de minimis amount of property- of the Company as consideration for an interest in the Company: (iii) the liquidation of the Company and (iv) the exercise of a noncompen satory option within the meaning of Treas. Reg. § 1.704-1(b)(3)(iv)(f)(5): provided. that adjustments pursuant to clauses (i) and 00 above shall be made only if the Managing Member determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members: (c) the Gross Asset Value of any property of the Company distributed to any Member shall be adjusted to equal the gross fair market value of such property= on the date of distribution as determined b. the Nlana,Fill, Member: and (d) the Gross Asset Values of assets of the Company shall be increased (or decreased) to reflect any adjustmerYts to the adjusted basis Of such assets pursuant to Code Sections 734(b) or 7=13(b). but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to U.S. Depannient of Treasury Reg. §1.704- provided. s'1.70=1- provided. that Gross Asset Values shall not be adjusted pursuant to this a}�ragFAR� 1 (d) to the extent the Managing �+lernber reasonably deteni Ines that an adjustment pursuant to :a� raLraph b hereol' is necessarti or appropriate in connection N ith a transaction that Would otherwise result in an adjustment pursuant to this para«rapli (d). If the Gross Asset Value of an asset has been determined or adjusted pursuant to paragraphs (a). (b) or M of this definition, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing profits and losses. "Ground Lease" shall mean, collectively. (a) that certain Amended and Restated Lease Aureement dated October 15. 1985. between the City, as landlord, and Bayside, as tenant. as evidenced by Memorandum of Lease dated October 15. 1985 and recorded on October 29. 1985 under Clerk's File Number 85R-337869 in the Public Records of Dade Count;, Florida (the --Public Records"). as rnodi Pied by that certain First Amendment to Amended and Restated Lease Agreement dated August 19. 1986. as further modified by that certain Second Amendment to Amended and Restated Lease Agreement dated November ?-l. 1987 and Memorandum of Modification of Lease: dated November 24. 1987 and recorded on December 1. 1987. under Clerk's File Number 87R-450816 in the Public Records. as further modified by that certain Third Amendment to Amended and Re=stated Lease A`greernent dated as of April 15. 1993. as further amended by Fourth Amendment to Amended and Restated Lease Agrreement (Retail Parcel) dated September 24. 2014. and also modifie=d by that certain Tri -Party Agreement regarding Port Boulevard among the City. Bayside and Ntetropolitan Dade Count- dated Jule 11). 1988 and recorded under Clerk's File Number 18.88-363062 in the Public Records. as amended by Agreement dated December 8. 1997 and further amended by Second Amendment to Tri -Parte Agreement dated December 29. 2003 and recorded on February _20. 2004 under Clerk's File :dumber 20048-0116374 in the Public Records (the "Tri -Parti Agreerient") and as further modified by that certain Settlement Agreement (as defined below, and together Niith the Tri - Part A r ement and Al of the lease and memoranda of lease documents listed in this clause (a). collectiVely, the "Retail Parcel Lease`) and (b) that certain Lease Agreement dated January 14. 1985 between the Cite of Miami and Bayside, as evidenced by Memorandum of Lease dated October 17. 1985 and recorded oil November d. 1985 under Clerk's File Number 85R-344439 of the Public Records, and modified by that certain First Amendment of Agreement of Leas.: dated October 17. 1985, and as further modified by that certain. Second Amendment to Bayside Parking, Garazc Lease Asireement dated September 13. 1988. as further modified by that certain Memorandunn of 1•10dificati0n of Lease dated September 18, 1988.and recorded on October 6. 1988 in under Clerk's file Number 88R-363063 of the Public Records. as further modified by that certain Third Amendment to Bayside Parking Gar-a,,e Lease. A,,,reenlent dated April 15. 1993_ as further amended bti� Fourth Amendment to Bayside Parking Gara�Lle Lease Ageement w (Garage Parcel) dated September -14. 2014 and as further modified bti. the Trt-Party A�,reenient and the Settlement Agreement (collectively. the "Parkinu Garai_=e Lease"). •'I€idernnified Parte.. has the meaninu set forth in Section 6.5(a). -Interest" means. with respect to any tLlember at any time. the interest of such Member in the Company at Such time, including the right of such Merriber to an,, and all benefits to which such Member ntav bO entitled as provided in this Agreement, together with the obligations of such Member to comply xith all the tunas and provisions of this Agreement. "]n�estment Ad\isers Act" means the U.S. Investment Advisers Act of 1940, as amended_. and the Hiles and regulations promulgated thereunder. "Investment Company Act" means the Lr.S. Investment Company Act of 1940. as amended. and the rules and regulations proMuILTated thereunder. ._Lease" means any lease or other occupancy agreement and amendments to such lease or other occupancy agreement with respect to a Property. "Lockout Period' means. solely %vith respect to the sale of the Properties. the period of time commencing on the Effective Date and expiring on the date that is the tenth (10`h) anniversary of the Effective Date. -Maior Decision" has the meanhia set forth in Section 6.2. "Major Decision Notice" means (a) any written notice issued by the Managing Member to the AAC Member in which the Managing Member proposes that the Company or a Subsidiary make. undertake or approve a Major Decision and (b) any written notice issued by the AAC ].Member to the Mana=ging Member in ,A,-hich the AAC Member issuing} such notice proposes that the Company or a Subsidiary make. undertake or approve a Major Dec]siotl. c) "Major Tenant, shall mean anv retail tenant occupying* more than 10.000 square feet of space at a Property. -Manauin l Member- means. prior to a removal pursuant to Section Ilia. GGPN. in its capacity as managing member of the Company. and, after a removal pursuant to Section 10.3. any successor managing member of the Company elected pursuant to Section 10.3. "'Member Cessation Event'* shall have the meaning set forth in Section 7.5. "Members" Means the Persons listed on Schedule l as members, in their capacity as members of the Company. and each Person who is admitted to the Company as a substitute Member pursuant to Section R.1. in its capacityas member of the Company. in each case (includinuin the case of a Person listed on Schedule I) for so hon&; as such Person continues to be a member hereunder. "Non-ContributinL, ^Member" has the meatu»a set forth in Section 3.3. -N-on-Control ]able Items" means the mininIL1111 anIotItlt of funds needed to (a) pay and perform xt hen due all of the obligations of the Company or a Subsidiary under an. mortgage loan secured in whole or in part by a Property or any portion thereof. any instntnient or agreement encumbering title to a Property and affecting its operation and other doct.iments to which the Company or Subsidiary is or shall be a parte or by which it or its assets are hound and which have been entered into prior hereto or in accordance tiith the terms hereof. (b) pay when due real estate and other takes. utilitN charges and insurance premiums for the Company or Subsidiary or any Company or Sztl?sidiary assets. (c) comply «ith an\' legal requirement now or hereafter in force \�hich shall be applicable to all or any part of the Company or Subsidiary or any Company or Subsidiary assets (including the making of capital expenditures required for such compliance), (d) pay undisputed aniottnts tit be paid for indemnih' pursuant to and subject to the terms of Section 6.5. including for advancement of expenses, and (e) pay the cost of reasonable actions taken in direct response to unanticipated emergency situations at a Property to mitie-ate the imminent threat of material property damage. personal injury or death. '.Nonrecourse Deductions- has the meaning set forth in U.S. Department of Treasury Reg. §§ 1.70=1-2(b)(1) and 1.701-2(c). "Nonrecourse LiabiMN - has the meaning set forth in U.S. Department of Treasury Ree=. H 1.704-2(b)(3) and 1.757-1(a)(2). -Meniber MinitnuM Gain has the meaning of" "partnership minimum gain" set forth in C1.S. Department of Treasury Reg. § 1.704-2(b)(2). and the aMautit of Member Minimum Gain. as vvell as ani- net increase or decrease in N'lember nlinimutn Gain. for a fiscal year or other period shall be detcrimned in accordance with the rules of U.S. Department of Treasury Reg. S 1.704-2(d). _.Member Nonrecourse Deductions_.. ha_s the meaning of "partner nonrecourse deductions" set forth in U.S, Department of Treasury Reg. §1.70=1-2(i).. and the amount of Member Nonrecourse Deductions with respect to a nfenlber Nonrecourse Liability for a fiscal 10 tear or other period shall be determined in accordance with the rules of U.S. Department of Treasury Reg. § 1.701-2(1)(2). "Member Nonrecourse Liability" has the meaning of "partner nonrecourse liability" set forth in U.S. Department of Treasure Reg. § 1.701-2(b)(4). "Percentage Interest" means, �,vith respect to each Nlernber. the percenta4ge interest set forth opposite the name of such Member on Schedule 1. ..Person" means an individual or Pntitv-. "Plan Assets" rneans --plan assets" as defined in the. Plan Asset Regulation. "Plan Asset Resaulation" n -ears the U.S..Departnlent of Labor red*ulation found at 29 C.F.R. §2510.3-101, as modified by Section 3(=12) of ERISA. "Property" individually. and '-Properties collectively, mans. as applicable (i) the land located in Iviiarni. Florida and cornnlonly known as Bayfront Park and lea -sed by the Company under that certain Ground Lease and the shopping center located thereon commonly known as Bad side;,'larketplace. (ii) Riyerchase Galleria: and (iii) TN sons Galleria. '-Property Nlanairernent ALregiment'means a property nlanaocilnent and leasin,2 tr�Lreernent by and between the Property Manager and tine Company, pursuant to which the Propel-ty Manager shall l)royide certain property management and Icasing services to the Company or a Subsidiary. ..Property Manager' means one or more Persons that serves as the "properv, manager- under a Property klanagement Agreernent, as selected in accordance with this Aoreement. The initial Property INIanager for the assets owned through GGP TYRC shall be the �'iana<rimy Mennber or an Affiliate of the Managin�:L, Member and the initial Property Manager for Z:Ithe assets o\Niied throu&I-11 BaySide shall be the AAC Member or an Affiliate of the AAC Member. ..Purchasing Member" has the meaning set forth in Section 8.7(a). "Qualified Transferee" rneans any Person that. together with its Affiliates, (a) has a net worth of at least Tvvo hundred Fifty Million and 001100 Dollars (5250.000.000.00) and owns directly or indirectly interests in. or manages. real estate assets or loans secured by real estate assets of at least $100.000.000 and (b) such Person or its principals shall not currently or previously have been involved in litigation with either. I1ilember. "Reirllbtrrsinsz Jkleml3cr.. has the ntcaninta set forth in Section $.$(a). "REIT" means real estate investment trust pursuant to Sections 8_56 through and irncludint- 860 of the Code. "R.lated Persons" has the meaninta set forth in Section 7.2. "Rernoval ]notice" has the meanin;, set forth in Section 10.3(a). "Renovation Work` has the meanings set forth and more fully described in the Ground Luse. "Reserves" means amounts required for future working capital needs. Operating expenses. contingent obligations and other purposes. of the Company and its Subsidiaries. -ROTO Electing Notice has the rneanina set forth in Section 8.6(b). "'ROFO Initiating iylentber"' has the meaning set forth in Section 8.6(a). " ROFO ijklarket Value" has the meaning* set forth in Section 5.61 a). `'ROFO Notice- has the nicaninM set forth in Section 8.6(a). `'ROFO Offered Interest" has the ntcanin- set forth in Section 8.6(a). " ROFO Purchase Option- has the nicaning set forth in Section 8.6(b). "ROTO Recipient \lembtr" has the meaning, set forth in Section 8.6(a). " ROFO Response Period" has the meaning set forth in Section 8.60). "ROFO Sale Period... has the meaning, set forth in Section 8.6(d). " ROFO Tarszet Price' has the meaning set forth in Section 8.6(d). "Securities Act" means the U.S. Securities Act of] 933. as amended. "SellinL� %,leniber- has the nicanint.7 set forth in Section 8.7(a). "Subject Interest" has the meaninL, set forth in Section 8.7(b). -Subsidiary- means. xvith respect to the Company. any Entity in which the Company (i) directIv or indirectly holds at least a majority of the Equity Interest or (ii) directly or indirectly holds a controllin<� votine interest. As of the Effective Date.. the Company's Subsidiaries are as fbllw3 s: (i) Bayside and (ii) GGP TYRC and its subsidiaries. (x) Hoover Mall Holding, L.L.C.. (y) Fiverchase Land :Acquisition. LLC, and (z) Tysons Galleria Anchor Acquisition, LI.C. The IItimbers ackno\Oedge that even though the Third Amended and Restated Litnited Liability Company Agreement of Bayside has not been amended, the Company is its sole member and all references to the Members berm, members of Bayside shall not be Operative. -Tag Along Interests" has the nteaning set 1:orth in Section 8.6(f)(i). " Ta<_T Alona Member- has the meanin4g set forth in Section 8.6(00). **Tau Alon�F Notice" has the meaning, set forth in Section 8.6(f)(i). "Ta<( A1one, Sale" has the meaning set forth in Section 8.6(f)(i). "Termination Tri+-eer" means the occurrence of any of the following during tilt period From the date of a B/S Elcetine, Notice or the ROFO Electing Notice, as the case may be. through the applicable Closing, Date:: a material casualty or condemnation to a Property.. the Bankruptcy of the Company or any Subsidiary, a material payment default by a Major Tonant under a Cease that remains uncured as of such Closing Date, or the Bankruptcyyof a tenant under a Lease. "Transaction Agreement" means that certain Transaction A+Treenlent dated as of the Effective Date by and anion- the ]Vleanbers. 4 ..Transfer" has (lie meanings set forth in Section 8.1(a). "Treasury Re,." means tile: fitaal and temporary income tat rte, ulations promulgated under the Code, as Such re`ulations ma\be aillended from time to time (including corresponding prof isions of succeeding)regulations). tR8" has the; meaning slat forth its Section 6,-f-(a)(.iii). "United States" or "U.S." means the Lnited States of America. its territories and possessions. any State of the United States of America and the District of ColLImbia. --Uri ermitted Transfer" has the tlteanim-, slat forth in Section 8.1. ARTICLE a' CAPITAL ACCOUNTS.- CAPITAL CONTRIBUTIONS. TRANSACTION AGREEMENT 3.1 Initial Capital Accounts: Capital Contributions. As of the Effective Date. (i) file Capital Account of each Member shall be as set forth in Schedule I hereto and (ii) in addition to the contribution to the Company of` their respective membership interests in Bayside ?Marketplace. LLC pursuant to the Transaction Agreement. the Members have made the following additional Capital Contributions: GGPN: $10,200,000: GGPLP: $200.000: and AAC ]Member: $10.000.000. 3.? Additional Capital Contributions. (a) Any \lember may, at any time or from time to time. request that each Member make additional Capital Contributions to fund (i) any amounts required to be paid for Non -Controllable Items: (ii) amounts committed to be spent by the Company in connection with the Renovation Work, and (iii) amounts approved by all Members pursuant to Section 6.2(c). Any such request shall be trade by delivering written notice (each. a -Capital Call") to the other Member that (1) sets forth the: amount of such Capital Contribution and (2) provides a reasonably detailed explanation of why such Capital Contribution is required and the anticipated use of such Capital Contribution. In addition, the 1.1anagin<o Member shall have the right to make Capital Calls in the event such Capital Call occurs as a result of a permitted deviation of the Company 13 Budget as provided in Section 6.2(b). Each Member shall, xvithin ten (10) Business Days after receipt of a Capital Call. c017tribute its Percentage Interest of the amount specified in the Capital Call by delivering such amount to the Company or Subsidiary. Each Member's Capital Account shall be increased by the ari1otrnt of any additional Capital Contribution made bN such Member. (b) Other than as set forth in Section 3.1, this Section 3?. or Section 3.0. the Members shall not be obligated to make Capital Contributions to the Company. (c) The Managing Member shall cause the Company to return to the Members all or any portion of any Capital Contribution that is not used for the purpose for which it was called. Amounts to be ret€rrned to the Members that are described in the first sentence of this Section 3.2 0 shall be returned to all N-lembers in proportion to die Capital Contribution made by each such Member in the applicable Capital Call. (d) The Managing Member shall be solely responsible for the payment of any SUMS required to defend or settle any Litimation set forth on Schedule 1.6(a) and for am Losses incurred by the Company or the AAC �leniber in connection with or arising from any such LitiL,ation. f e) The Managing Member shall be solely responsible for fundings all costs as a Capital loan under any Material Aarreernents as set forth in Schedule =1.8(a) to the extent that such costs are not paid from the cash fiotiv of a Property and the AAC Member shall have no obligation to contribute to the payment of any such costs. 3.3 Capital Default. (a) 11'a Member (a "Non -Contributing Member`") does not make full payment when due (a "Capital Delauit") of any Capital Contribution that is required pursuant to a Capital Call Given under Section 3.2 and such Capital Default is not cured .vithin live (5) Business Days after written notice to such Member from the other Member vvith respcet to such Capital Default. then the Nlernber that is not the Non-C'011tribu6112 Member or Affiliates of the Non -Contributing.-, Member- (the "Contributing= Member''), may (but shall not be obligated to) pursue one of the follotvini~ actions: (i) Submit a request to the Managing Member tier a refund of all of the Capital Contributions made by the ]'Member pursuant to such Capital Call, in which case the AAC Member and the klanaLinu ivlember shall cause the Company to invnediately refund such amounts to the Contributing Member that made such Capital Contribution. Capon the return of such Capital Contribution pursuant to this Section 3.3(a)(i). such Capital Call shall be deemed not to have been made: (ii) if a request is not delivered pursuant to Section 3.3(a)(i). elect. by written notice (the "Loan Election'') to the Managing Member delivered not later than ten (10) Business Days after the expiration of the 'ion -Contributing Member's cure period. to advance as a loan by such Contributing Member to the Non -Contributing 1 -(ember (a "Capital Loan-') an amount equal to the Capital Default. and such Capital Loan shall be trade pursuant to this Section 3.3(a)(ii) within five (3) Business Days after such Contributing Nlcmbcr's Loan Election, 14 Each Capital Loan (x) shall be a loan by the Contributing Member to the Non- Contribtitin11 Jklember, (y) shall bear interest at a rate equal to the Capital Loan Rate. and (Z) to [lie extent not previously repaid directly from the Non -Contributing Member to the Contributim, 14lember. shall be repaid solely from Available Proceeds (with all actual and reasonable out of pocket costs associated .lith the Capital Loan being the responsibility of the Non -Contributing Member) pursuant to Section 4.2 or upon Transfer of' the Non- Contributine Member's ~Interest pursuant to Sectinn 8.6. The Capital Account of the Contribu.tint, N-lenaber shall not be credited with the amount of any Capital Loan. The repayment of a Capital Loan and payment or reimbursement of any- interest or expenses thereunder shall not constitute a return of Contributing Member's Capital Contributions and sliail not reduce the Contributina tilernber's Capital Account. Capital Loans shall be secured by the Non-Contributin<g, Nfen7bei's Interest. The Non -Contributing, Nilember her-4-b\grants a security interest in its Interest to the Contributing 'tleinbei until all Capital Loans are paid in Pull and the Non -Contributing N-icniber�hereby irrevocably appoints ContribtitinL' \°limber. and any of its respective officers, managers or agents. as its attorney-in-fact coupled v ith an interest with full power to prepare and execute any documents. instrtrm.ents and a<greements. including such Uniform Commercial Code Financing Statements. eontitivation statements. and other security instruments as may be appropriate to perfect and continue its security interest in favor of the C ontributilip Member_ (b) Each i1lernber hereby specifically= agrees that, in the event such Member beconnes a Non -Contributing Nlember, regardless of the raison therefor. such Member shall neat be entitled to claim that the Company or any of the other Members is precluded. on the basis of anv tiduciary or• other duty ai icing in respect of such 1Wlember's status as such or other equitable claim or theory, frons seeking any of the penalties or other remedies permitted under this Agreement. For avoidance of doubt, the remedies expressly provided in this Section 3.3 shall be the ercltrsive remedies available with respect to a Capital Default, and neither the Members nor the Company may pursue an%- other remedies at lave or in equity with respect to a Capital Default. 3.4 Capital accounts. Allocations. The Company shall maintain a separate capital account for each Nfembcr (each. a "Capital Account") according to the rules of U.S. Department of Treasure Reg, 41.70=1-1(b)(2)(iv). For this purpose. the Company may. upon the occurrence of any of the events speeif led in U.S. Department of Treasure- Rev. §1.701-1(b)(2)(iv)(f) or (s). increase or decrease the Capital Accounts in accordance With the rules of Such regulation and U.S. Department of Treasurti Reg. § 1.704-1(b)(2)(iv)(-) to reflect a revaluation of Company property. Items of Company income. gain. loss, expense or deduction for any fiscal period shall be allocated among the 'Oembers in such manner that. as of the end of such fiscal period and to the greatest extent possible. the Capital Account of each Member shall be equal to the sum of (i) the Member's share of Company IvlinimUrn Gain and Member Il<Iiriinnin-i Gain and (ii) the respective net amount. positive or negative. that would be distributed to such Member from the Company or for Which such Member would be liable: to the Company under this Agreement. detennined as if on the last day of such fiscal period. the Company were to (a) liquidate the assets of the Company for an amount equal to their book value (determined according to the rules of U.S. Department of Treasury Reg. §1.704-1(b)(2)(iv)) and (b) distribute the proceeds in liquidation in accordance with Section 10.2, 15 3.5 Transaction A�-,reernent. The Members have entered into the Transaction AQreernent and agree that the Company shall execute a joinder to be subject to its terms. For the avoidance of doubt. the Members ackno� ledue that. in addition to any of its obligations to make additional Capital Contributions pursuant to Section 3.2. AAC shall be Obligated to make additional Capital Contributions to the Company on the terms set forth in the Transaction Agreement, failing which the remedies set fo€•th in the Transaction A(,reement shall be enforceable by the Manan -in<< Member. ARTICLE 4 DISTRIBUTIONS 4.1 Distributions. (a) The Managing Member shall cause the Company to make distributions to the Members of all Available Proceeds as soon as practicable, i hick in an)- event shall be (i) at least quarterly in the case of :Available Proceeds from operations and (ii) no later than ten (10) days after Available Proceeds from capital transactions are received bV the Company. Available Proceeds shall be distributed to the \ltnlbers, pro rata and pari passu. in accordance with the Members' respective aL.��aregate Pcrcetlta2e Interests. (b) Ant° distribution by the Company pursuant to this Ao reenlent to the Person sho%7 n on the Company's records as a MCmber OF as the trarlsl-gree of such Person's right to receive such distributee}ns (car to either such Person's le -al representative). Shall cWquit the Company and the \-Ianaging Member cif till liability to ani, other Person that nlay be interested in such distributed€1 b\ reason of any T€anslr of such Perso€1 s interest in the Company for any reason (includinu a Transfer of such interest by reason of the death. incompetency or hgUidation Of such Person). 4.2 Repayment of Capital Loans. Nomithstanding the provisions of Section 4.1 to the contrary. to the extent a€l\- Capital Loans are outstanding at the tinge that a distribution is made pursuant to the terns of this A�tIreernent. then all aFnOunts otherwise distributable to a Non- Contributing7 Member under Section 4.1 shall be distributed directly to the Contributing Member and deemed to constitute distributions to the Non -Contributing- Member followed b\: deemed payments of accrued interest and principal on all outstanding? Capital Loans by the Non- Contributin�c Member to the; Contributing" Vlember until such time as all Capital Loans have been repaid in full. All amounts paid to a Contributing Member in satisfaction of a Capital Loan pursue:€nt to the terms of this :Section 4.2 shall be deerne;d to have been distributed to the Non- ContributingMember for all J)Urposes of this Agreement (including. but not limited to. the determination of the Non -Contributing \Member's Capital Account balance).4.3 Permitted Distributions. Notwithstandin'o'any provision to the contrary contained in this Agreement. the Company shall not be requiredto make a distribution to a Member on account of its interest in the Company if such distribution would violate the Act or any other applicable la,.v. 16 ARTICLE COMPANY BUDGET; PROPERTY MANAGEMENT 5.1 Company Budget. A budget is to be approved for the Company ion each Fiscal Year (the "Company' Budget") in accordance with this Section 5.1. The Company Budget shall include anticipated Company expenditures. including anticipated operating and capital expenditures. The Company Budget for the 2016 fiscal year will be attached hereto as Exhibit B. No later than November I of eaeh calendar year, the Nlanaeiny-, Member shalt present a proposed Company Budget for the following year to the AAC Member for its consideration and approval. tNBich proposed Company Budget shall be in the same form as the Company Budget for the prior calendar near. The AAC MenZer shall approve or disapprove the Company° Budget no tater than thirtN (30) days after file crate on which the Managing Member delivered a proposed Company Bucluet. and failure to respond in ,N riling N ithin suehthirty (30) day period shall be deemed an approval by the AAC \-]ember. Unless otherwise mutually agreed. if the AAC 'Member disapproves or raises any objections to any items contained in the proposed Company Budget or a.n%- amendments thereto, tilt undisputed portions of the proposed Company Budget shall be deemed to be adopted and approved, and an%- such disputed items) of the Company Budget shall be set at an antOunt equal to the amount sho%vn for such item(,) in the Company Budget for the preceding year. as increased by the greater of three percent (3R'o) and the annual percentage increase in the CPI. The 4lana+uin=y Member shall Have the riuht. from time to time during each Fiscal Year. to stibmit a proposed amendment to the Company Budget to the AAC Member for approval. The AAC' `]ember shall review all proposed anlendinen.ts to the Company Budget in tilt sarne manner as the Company Budget itself. Follrnving delivery of any proposed amendment to a Company Budget. the AAC Member shall be required to approve or disapprove such proposed amendment to the Company Budget no later than fifteen (15) Business Days after the date on which the Manaoing Mcinber has submitted the proposed amendment to the AAC 14-lember and any failure to respond in writing during such fifteen (15) Business Day period shall be deemed an approval by the AAC Member. The 'iMana`Fing Member is not making. and shall not be deemed to have made, any guarantee or warrant} of'the Fiscal estimations set fortis in the Company Budget. 5.2 Property Management Agreements. Concurrently herewith. the Company is enterin== into one or more Properly Management Agreements. in the l`orm attached hereto as Exhibit A. with the Property Manager that will govern the management, leasing and daily operation of a Property as more particularly set forth therein. The Company- shall pay the Property Manager under- the Property Mana,7emem Agreements the fees. e-xpenses and other amounts set forth therein. ARTICLE 6 MANAGEMENT 6.1 IMana+l-ernent Authority. (a) The management of the Company shall be vested in the Managing Member (acting directly or through its duly appointed agents), and the Mana�cyincy Member shall have the responsibility. po%%er and authority to administer the btrSinOSS. assets. conduct and 17 affairs of the Company. Subject to the express rigllts of the AAC Member to consent to or approve certain matters as set forth in Section b-2 herein. the Managing Member shall have the: exclusive power on behalf and in the name of the Company- to carry- out any and all of the ob-jectives and purposes of the Company and to perform any and all acts 1114 enter into and perform an\- and all contracts and other activities as the lllana(Ono Member deerns necessary. appropriate or desirable to calTV out the purposes of the Company. including. but not limited to the Iolloxving: (i) Supervise and arrange for the supervision of day-to-day operations of the Company and its Subsidiaries: (ii) Retain attorneys. consultants and other independent contractors to the extent such professional services are required to carry tin the lousiness of the COMIX111% and its SLIbSidiarlcs, (iii) Collect all rents and other payments dare and ovvino to the Company and the Subsidiaries: (iv) Incur normal operating expenses of, and to pay the obligations of the Company and its Subsidiaries. and to enter into. perform and carry out contracts and agreements oil behalf of the Company or its Subsidiaries for the conduct of the Company's blr5iFICSS, (v) Obtain and maintain insttrancc coverage for a Property and other assets of the Comparn. and its Subsidiaries. 111 Such amounts and with such coverages as set forth in each annual Company Budget: (vi) Perform. or cause: to be performed. all of the obligations of the Company and its Subsidiaries. and to exercise or cause to be exercised all ri`lits of the Company or its Subsidiaries, under ani agreenlent to which the Company. any of its subsidiaries or arty nominee of the Company or any of its Subsidiaries is a party; (vii) Cause the Company and its Subsidiaries to pay all taxes. assessments, rents and ether irupositions applicable to assets of the Company and its Subsidiaries and undertake when appropriate ant• action or proceedin4= seeking to reduce such tales. assessments. rents or other impositions: ( viii) Open and maintain batik accounts for the Company and its Subsidiaries; (ix) Coordinate the preparation and Crlina of tax returns on behalf or the Company and its Subsidiaries in each U.S. federal. state. local or foreign tax jurisdiction in which such filings are required provided that the Managing Member shall provide AAC tivith a draft federal income tax return not later than ten (10) days prior to the filingg Of such return: (x) Do any and all acts which may be necessary. desirable or appropriate for the proper manaocinent and.maintenance of a Property; 19 (xi) Enter into any space lease at a Property that contains less than 3.000 square feet: (xii) Execute and deliver such documents on behalf of the Company or a Subsidiary of the Company as it reasonably deems necessary. desirable or appropriate in connection with tlhe foregoing provisions: and (xiii) Do any act which is reasonable necessary. desirable or appropriate to carry out any of the foreaoina. . (b) Thirst paries dealing with the Company or a Subsidiary may rely conelusi\•ely upon the power and authority of the Managing l-lember and on its acts as havin- been authorized. \Vithout affecting the express rights of the A.�C` M nther herein. the Managin`.a Member's execution of any a,-nrcenhent or documcni, on behalf of the Company or a Subsidiary is sufficient to bind the Cornpan-v arid./or a Subsidiary for all purposes. (c) 'Notwithstanding this Section 6.1 or anything in this Agreement to the contrary-, any actions to be taken by the ManaoinW Member with respect to the Bayside Property shall be taken exclusiye[y by the AAC Member and not bv the Nlanaoin4.r Member subject to the Nlanaoin�, Nlerhhber's right to approve any matters with respect to the Bayside Property that constitute \lajor Decisions as set forth in Section 6.2 hereof: 6? - Ifor Dccislons. Not+v ithstanding anything to the contrary contained in this Agreement. each matter. action and decision listed below (each. a " tajor Decision-) shall. subject to Section 3.3 and Section 6.a, require (and the Corhhptny shall not effect. take or make ane• such shatters. actions or decisions. or cause any Subsidiary to do anv of the 1oreLoin�t).. without the rnhanimorrs approval of all of the Members: provided. however, that if a matter. action and decision that is other�-4ise a Major Decision is contemplated by the Transaction Agreement. the \lanae -Ting 'Member may cause the Company or a Subsidiary to effect. take or make such :Major Decision without the consent of the; other ,Members. (a) approving the Company Budget, for a Fiscal Year (and all amendments and updates thereto). includin, tike amocuht of Reserves set forth therein (but this clause (a) shall not cover deviations from such Company Budget. `ehich are addressed in clause (b), below: (b) deviatinv= from the Company Budget by more than five percent (5%) of the a�t,�gregate expenditures set forth in such Company Budget: provided. however, that none of a Non-ContiIter. all expenditure authorized pursuant to another clause of this Section 6.' or another section of this A�greernent or a Company distribution shall be lin-rited by this paragraph and the amount by which an\ such expenditure or distribution exceeds the amount therefor set forth in the Company Budget shall not be counted in determining whether a variance or deviation has occurred: (c) calling any Capital Contributions b% the Members other thanpursuant to Section 3.1. or Section i?(a)(i) or (ii): (d) any sale or transfer (other than a condemnation or other involuntary transfer of a Property (other than personal property) or any portion thereof or interest therein. 19 (e) except as expressly authorized herein. admitting any nc,ty member in the Company°, and the issuance. redemption or sale by the Company of any Equity Interest in the Company or thL purchase bv the Company or any Subsidiary of any real property; (f) amending. modifying. supplenlenIin4 or terminatin�(v this Avreement. the Certificate or the organizational or formation documents of the Company or ally Subsidiary. or agreeing to amend, modify. supplement or terminate this Agreement the Certificate or the organizational or fon-nation documents of the Company or any Subsidiary-. except as expressly authorized herein: (4j) incurrina any indebtedness for borrowed money or entering into any financing.:. refinancing, or loan transaction (other than incurrence of trade payables and equipment ]cases in the ordinary course of business and as set forth in the approved Budget which nlav he entered into h\ the Manaolm., Member on behalf of the Company without -le requirement of first obt linin= the consent of the AC Member). or t_,rantinu a SeCUrltN Interest in anN assets of the Connpam or any Subsidiary. and in each case approving the terms thereof and an,,- documentation therefor. as v,vell as anv related arraiiLements such as interest rate hed,,inu transactions. V (h) entering into by the Company or any Subsidiary of any space lease in at a Property that consists of more than 3.000 square 1ect. (i) enp<ging any replacement or additional property nlatnag,er or leasin<g agent for a Property- (but this paragraph shall not coN er an agreement to pay a tenant's leasin.- agent): (j) consolidating or merging the Company or anySubsidiary with or into ally ether Pei -son or the en,IaLl n, by the Company or any SUbsidi try in anw recapitalization, joint \enturc or other business Combination. or termination or dissolution of the Company or all Sub idian,; (k) to the fullest extent permitted b�, applicable dissolving or liquidating,. the Company or any Subsidiary. in \whole or in part. making by the Company or any Subsidiary of an assignment for the benefit of creditors. filing or otherwise initiating.: on behalf of the Company or any Subsidiary, as debtor. a petition it bankruptcy. petitioning or applying by the Company or any Subsidiary to any tribunal for the appointment of a custodian. receiver or any trustee for the Company or all,,- Subsidiary or for a substantial part of its property, commencing by the Company or an%- Subsidiary of any proeeedill' under any bank.ruptcy, insolvency. reorganization, arrangement. readjustment of debt. dissolution or liquidation law or statute of any Jurisdiction, ��]tether note or hereinafter in effect.. admitting by the Company or any Subsidiary of its inability to pay- its debts generally as they become due or authorizing any of the foreg,oing, to be done or taken on behalf of the Company or any Subsidiary. or consenting to or acquiescing, in by the Company or any Subsidiary of the filing, or other initiation of an involuntary petition for relief against the Company or any Subsidiary under any Chapter of the Bankruptcy Code or for the appointment of any trustee. receiver. conservator. assignee. sequestrator, custodian. liquidator (or other similar official) for the Company or any Subsidiary or all or substantially all of its or their assets: (1) initiating. engaging in, abandoning. filing or settling, on behalf of the Company or any Subsidiary. ]avv-suits or other proceedings. except for (A) actions to recover rents (including the imposition and execution of liens on tenants` property) and other amounts payable to the Company or any Subsidiary under leases, provided that the expenditure of amounts in excess 01'S 100.000,00 «ith respect to any applicable tenant action shall constitute a Major Decision. (B) the defense by insurers of insured claims (subject to any applicable deductible). (C) an action against a vendor. supplier or subcontractor in the ordinary course of business, %\hick dues not involve an amount in excess of $100,000.00, or (D) settling any suit brought by a tenant or other liability claim which does not involve (i) an aniount in excess of $100,000.00 or (ii) claims by such tenant or other party of fraud or criminality against the Company Or any Subsidiary (hut the expenditure of amounts belo�,y the thresholds set forth in this clause (m) is authorized): (m) except as expressly set forth in this Agreement. sellingencumbering- or pledging any of the Equity Interests, (n) making any distributions in hind by the Company: (o) the incorporation or formation of any Subsidiary: (p) approving the Company's auditors or environmental consultants if other than those set forth on Exhibit D (with those. on Exhibit D being.: hereby approved by the raAC Member): (q) changding the fiscal y ear• of tilt Company or any Subsidiary: (r) approyrng_, the delegation by the Manag�111g? N-le.mber of any (if its responsibilities. duties. oblivations or liabilities Linder this Ag-reeillent, other than to Its Affiliates, (s) approyingg a capital pro.jcct by the Company or an\ Subsidiary that costs more than S 100.000.00 (vvith any project of $100,000.00 or less being authorized). (t) approving or settling by the Company or any Subsidiary of any matters relating to (i) any casualty affecting a Property involving an amount of more than S250.000.00 or (ii) any condemnation or eminent domain proceeding affecting a Property (other than as required under any° applicable loan documents). W) except as otherwise expressly set forth in this Agreement. making any tax decision or tax election (including decisions that could impact an Affiliated REIT's status as a REIT. accounting, method chances. and decisions made in connection with a tax audit) that is reasonably- likely to have a material effect on the Company. any Subsidiary. a Property or any. Member: Y (v) making any decision or taking any action with respect to any environmental remediation matter relating to a Property-. including selection of consultants in re<�ard thereto and adoption of and implementation of any operation and maintenance program relatinLthereto or any other program to remove or otherwise remediate hazardous materials: Ov) anv other action which express[y requires the consent of all 'Members under this Agreement. 6.3 Affiliate Contracts. With respect to any Affiliate Contract. a Member that is not a Conflicted '11,lember with respect to such Affiliate Contract is entitled. on behalf of the Company and without the consent of the other NMember. to declare defaults under and exercise (or elect to not exercise) termination rights under. such Affiliate Contract. If any default (beyond applicable cure periods) or material dispute exists under an Affiliate Contract. then the Conflicted Member shall promptly notify the other Member. In the event of any such default or dispute (regardless Of whether or not the Conflicted Member have notified the other Member). the Member that is not a Conflicted klember mai•. on behalf of the Company and Without the other- Member's consent. enforce that Affiliate Contract (including termination, if applicable). Except as expressly proN ided herein and in Section 6.2. the Managing Member retains the ri�cylit to act on behalf of the Company or a Subsidiary tender an Affiliate Contract. 6.4 RVIT Restrictions: Etc. (a) So long as an Affiliated REIT owns. directly or indirectly. any interest in the Company. tilt Ntanauinu Member shall use reasonable efforts to cause. the Company (taking into account amounts that flow throng*11 to the Company or are treated as the Company's for l-ederal income tit% pur-foses) to comply with the followvino: (i) at least ninety -live percent (95%) of the gross income of the Company for each taxable year (ear portion thereof. if applicable) will be derived from the: items described n7 Section 856(c)(2) of the Code and the Treasury Re<Mulations promul+gated thereunder: (ii) at least seventy-five percent (75%) of the gross income of the Company Rx each taxable year (or portion thereof. if applicable) will be derived from the items described in Section 856(c)(3) of the Code and the Treasury- Regulations promulgated thereunder-, (iii) as of the end of each quarter of each fiscal Year. except for securities ora Taxable Reit Subsidiary ("TRS"). the Company shall not own. directly or indirectly, securities that would cause an Affiliated REIT to be treated° for purposes of Code Section 856(c)(1) and the Treasury Regulations promulgated thereunder, as holding securities (x) possessing more than ten percent (10%) of the total voting power of the outstanding securities of any one issuer. (y) having_ a value of more than ten percent (101i;) of the total value of the outstanding securities of any- %) of the one issuer. or (z) issued by one issuer and t a value ofmore than five percent (5' havinggross value of such Affiliated REIT; (iv) as of the end of each quarter of each Fiscal Year, the Company shall not hold securities of a TRS such that an Affiliated REIT is treated. for purposes of Code Section 856(c)(4) and the Treasury Regulations promulgated thereunder. as having more than twenty -Five percent (25%) of the value of its assets represented by securities of one 2" or more taxable REIT subsidiaries (as determined under Section 856(c) of the Code and the Tre-:a5Ur, Regulations promulgated thereunder): (v) as of the end of each quarter of each Fiscal Year. at least seventy-five Percent (7511;) of the w-alue of the Company's assets shall be represented by the items described in Section 856(c)(4)(A) of the Code and the Trcasury Regulations promuluated thereunder (that is. real estate assets. cash and cash items (including, receivables) and 17overnment securities (each as defined in Section 856 of the Code and the Treasury Regulations promulgated thereunder)): (vi) the Company shall not engaoe in any prohibited transaction within the meaning of Section 857(b)(6) of the Code and the Treasury ReLulations pram1.11gated thcr� ui�eler: r (vii) any services that would otherwise cause any rents from a lease to be excluded frons treatment as rents from real property pursuant to Section 856(d)(2)(C) of the Code and the Treasury Regulations prOrrrulLated thereunder with respect to an Affiliated RMT shall be provided by either (1) an independent contractor (as described in Section 856(d)(3) of the Code and the. Treasury Re�.Ttilations pronlu€gated thereunder) wvith respect to such Affiliated REIT and from w,vhom neither the Company nor such Affiliated RENT derives or receives any income or (2) a TRS of such Affiliated REIT as described in Section 856(1) of the Code and the Treastrl'w' Regulations promulgated dle]-eunder, except as other•wyise consented to in writing by such Affiliated REIT: and (viii) as of the end of each quarter of each f=iscal Year. except for a lessee or sublessee that is a TRS. the Company shall not own. directly or indirectly or by attribution (in accordance with attribution rules referred to in Section 856(d)(5) of the Code and the Treasury RCL Ulations promulgated thereunder). in [lie ag-regate more than ten percent (10"'0 )of the total value of all classes of stock or more than ten percent (1.0%) of the total voting, power (or. «-ith respect to anw such Person wwhich is not a corporation. an interest of ten percent (10%) or more in the assets or net profits of such Person) of a lessee or sublessee of all or any part of a Property or of any other assets of the Company except in each case with the specific NNTitten approval of the Affiliated REIT for whom such ownership wVould cause a relared party- rent issue under Section 856(d)(2) of the Code and the Treasury Regulations promulgated thereunder. (b) The Members will act reasonably in amending Section 6.=1(a) to reflect any material changes to the provisions of Sections 856 throug=h and including Section 960 of the Code; that are. made atter the date hereof. Any Member that has an affiliated REIT mai- request from the MTanar41n4u Member. no more frequently than quarterly. a copy of any and all questionnaires that will be submitted to the Property Manager by the Managing Member and that are relevant to the determination of whether any income generated by a Property or services provided by the Company or any Subsidiary would violate the terms of Section 6.4(a). The Managing Member shall provide the requesting M9e:mber with such copies within two (2) business days and will comply with reasonable requests for modificatioms to such questionnaires that are delivered to the Mtanarring Member within three (3) days of its provision of the copies to the requesting Member, The +Mlanaorirlg Member shall use commercially reasonable efforts to ensure that such questionnaires are completed and returned to the requesting Member within tlurm (30) calendar daw s after the original requests were received by the Managing Member. The Managino Member shall exercise coritmercially reasonable efforts to prevent the Company and each Subsidiaries from en-wnne in a transaction that is a "listed transaction" as defined in U.S. Department of'l'reasury Rei_. C 1.60114(6)(2) on the date such transaction] is commenced. 6.5 Exculpation and Indonin.ification. Novvithstanding anything to the contrary contained herein or am otherwise applicable provision oflavwv or equity: (a) None of the Members (including the Mana4ging Member). their Affiliates or aril- officer or director of any of the foregoing (each such party. an "Indemnified Parts..) shall be liable. responsible or accountable in damages or otherwise to the Company or any Member, and the Company and each N44mber does hereby release such Indemnified Party. for any- act or omission in connection w:vith the Company or anwV Subsidiary. except to the extent it is determined by an arbitrator pursuant to a binding arbitration in accordance with Section l 1.7 that such act or omissicm (i) is a material breach of an Indemnified Party's obli�_,ations under this A-reement or (ii) reSUlted from such Indemnified Party's \willful malfeasance. fraud or gross neygligence or (iii) is a felony (Such acts or omissions described in clauses (i). (ii) and LLD. the "Default .Actions.. and each. a "Default Action"). (b) To the fullest extent permitted by law. the Company shall indemnify. deCend and save harmless each Indemnified Part\- from anv damauc. liability. lass. cost. fee (including leLal fees and costs) or expense of any nature w, hatsoe\er. known or unknown. liquidated or unliquidated (collectively. "Losses") that is suffered or incurred by an Indentnitied Parti and arises nut of or in cotutection with the affairs or activities of the Company or any Subsidiary.. or the performance by such Indemnified Party of any of the responsibilities of the Mana`7ine Member hereunder or otherwise in connection with the matters contemplated herein, except to the extent it is determined by aft arbitrator pursuant to a binding arbitration in accordance wvith Section 11.7 that such Losses resulted from a Default Action. If any Indemnified Party becomes involved in any capacity in any action. proceeding or invesug tion in connection with any matter arisin- from. related to. or in connection with. this A-reetment or the Company's or any Subsidiary's business or affairs. ww Nether or not pending or threatened. and such Indemnified Party- belie\ es in good faith that it is entitled to indemnification hereunder. the Company w\ ill periodicaify advance such Indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in com3ecuon therewith,provided that such Indemnified Party shall (i) affirm in wwritin`' that it in goad faith believes that it is entitled to indemnification hereunder and (ii) a-ree in writing to promptly repay to the Company the amount of any such advanced expenses paid on its behalf to the extent that it shall be ultimately determined that such Indemnified Party is not entitled to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the immediately preceding sentence. The Company's obligation herein to indemnify any Indemnified Partw• is in addition to any other indemnification to which such Indemnified Party is entitled. and any- indemnity under this Section 6.5(b) shall be provided out of and to the extent of Company assets only. and no Member shall have personal liability= on account thereof. 24 (c) For all purposes of this Agreement, (i) the Managing Member shall not be in breach of this Agreement solely as the result of an act or failure to act in connection with the management of the Company or any Subsidiary unless such action or failure to act constituters orossyne2li2ence. willful malfeasance or fraud, and (ii) an act shall not constitute willful malfeasance if it was taken in ,00d faith and in the belief that it was in the best interests of' tile Company or any Subsidiary. y (d) Whenever in this Aorcement the Managing Member or any other Person is permitted Or required to make a decision (i) in its "discretion" or under a grant of similar authority or latitude, such Person shall be entitled to consider only such interests and factors as it desires. including= its otivn interests. and shall. to the fullest extent permitted by applicable laxv. have no fiduciary or other duty or obligation to give any consideration to any interest of or factors affectinu the Company car (lie Members. or (ii) in "rood faith" or under another expressed standard. suCh Person shall act under such express standard and shall not be subject to any other or different standards. (e) 'To the extent that. at law or in equity, an Indemnified Parte- has duties (includin,T fiduciary duties) and liabilities relating thereto to the Cornpaliv. any Subsidiary. or any IvIetaaber, such Indemnified Party shall not be liable to the Company. any Subsidiary. or any Member for its wood faith reliance on the provisions of this Agreement or the governing documents of any Subsidiary. The: provisions of this Agreement or the Loverninu documents of any Subsidiary. to the extent they expressly restrict or eliminate such duties and liabilities of the Indemnified Parties. are aR.-treed by tlae Members (each on behalf of itself and its related Indemnified Parties) to replace such other duties and liabilities of such Indemnified Party. (f) Any repeal or modification of this Section 6.5 shall not adversely affect any right or protection of a Person existing at the time af'such repeal or modification. 6.6 Deemed Approval. With respect to any written notice issued by the Managing Member to the other Members in vyhitla the Manautnya Member proposes that the Company make. undertake or approve a Maior Decision specified in Section 6.2(h) and.'or Section 6.2(s). a \Member shall be deemed to have approved the matter set forth therein if such Member fails to respond within rive () business days after receipt of such notice:. ARTICLE 7 MEMBERS 7.1 Limited Liaiaility. No Member shall be personally- liable for any obligations of the Company and shall have no obligation to make Capital Contributions to the Company solely by being a IMe:mber of tile Company. except to the extent required by this Agreement or the Act_ provided. that a Member shall be required to return any distribution made to it in error. 7.2 Business OnDorttmities. Each Member recoLtnizes that the other Member and its respective members. partners. shareholders, officers. directors. enaployecs. agents. representatives and Affiliates (collectively. '`Related Persons") have. or may in the future have. other business interests. activities and investments, some: of which are or may be in conflict or competition with the business of the Company and:'or one or more of its Subsidiaries. and each Member and its Related Persons etre entitled to carry ort such other business interests. activities and investments without restriction notwithstanding any provision to the contrary at late or in equity. Each Member and its Related Persons rnaN engage in or possess an interest in any other business or venture of any land, independent])- or with others. including ortnin�,,. tinancin2. acquirin�s. leasing. prori�otin<7, d4�elopin�a. improving. Operatin`. manasgin�g and servicing real property on its own behalf or on Behalf of other Entities with which any \lember or its Related Persons is affiliated or otherwise. and each Mcmhcr- and its Related Persons may en`Jage in any- such acti%ities, tvhetlier or not in competition with the Company and, or one or more of its Subsidiaries �yithout any obhuyation to offer any interest in such activities to the Company, to any Subsidiary or to the other Member and without other restriction or limitation of any kind notw-ithstanding arty provision to the contrary at law or in equity. None of the Company, nor any Sr.rbsidiary. nor any Member, shall have any right, by virtue: of this Agreement. in or to such activities. or the income or protits derived therefrom. and the pursuit of such activities. even if in competition .with the business of the Company and."or one or more of its Subsidiaries. shall not be deemed wrongful or improper. NwNvithsianding the foregoing. the Mana-ink- Member and the. AAC Member agree that with respect to a Property. neither Member will enter into ani transaction to purchase_ or otherwise acquire interest in_ adjoining properties to a Property Nvithout first offering the other lklernber the rid=ht to participate in such transaction upon the same terms and conditions as the \Member that initiated such transaction. 7. , Confidential Information. (a) Each Member shall keep confidential and shall not disclose, or permit any of its Disclo ore Recipients to disclose. any Confidential Information regarding the Company Entities or the other Member -'s Confidential Information. except (and then only) to the extent that (i) the disclosure of such information or materials is expressly required by applicable lata. or (ii) the information or materials were previously known to such ?Member other than due to disclosure by ant Company Entity or such other Member. or (iii) the information or materials ltecorie ptrbl'sely known other than through the actions or inactions of such Member or its Disclosure R4cipients in violation of this Agreement or (iv) the .Nilanaging tvieinber reasonably determines that disclosure of the Confidential Infon-riation of the Company Entities is necessary or advisable in the operation of the Company's or an\ Subsidiary's business or (y) the disclosure of such information and materials by such Member- is to its Disclosure Recipients (provided that each such Disclosure Recipient agrees to keep such information and materials confidential to the same extent as if it were a Member of the Company or is othcrw ise required under applicable law- to keep such Information confidential and such Member shall be responsible for the failure of any such Person to so comply). Without limiting the foregoing, in the event that any Member or anv of its Disclosure Recipients is required by any applicable law.. statute, governmental rule or regulation or.jtrdicial or governmental order, judgment or decree to disclose any information. unless other\%ise agreed to by the Members. prior to such disclosure such Person shall promptly notif\ the other Members (to the extent not prohibited by applicable lata from giving notice) in 4yritintt of such anticipated disclosure, q,\hich notification shall include the nature of the legal requirement and (lie extent of the required disclosure. and such Person shall cooperate with the other Member. at the Company's expense, to preserve the confidentiality of such information consistent with applicable la4\ (including -withholding disclosure of such information. to the extent permissible, until such time as it has been Imally determined that such disclosure is required under applicable law). 26 (b) Without limiting, the fore(loinz, each klenaber agrees that the following items are included within Confidential Information of. and are of independent. proprietary. economic Value to. the Company and/or any Subsidiary and that the disclosure of such information in breach of this Agreement would cause substantial, irreparable harm to the Company and'or any Subsidiary (i i all information regarding the historical or projected cash flows. revenues. rental rates, expenses. capital expenditures and profitability of a Property; (ii) all information pertaining to the valuation ascribed to a Property, and (iii) all financial statements or other information concerning the historical or projected financial condition. results o4' operations or cash flows of a Property. (c) Nomithstanding anything else contained ill this Agreement (including the other provisions of this Section 73). each N lernher may disclose the tax treatment and tax structure (as such terms are used in Code Section 601 l and the Treasury Rei—. pronauh—,ated thereunder) of its investment in the Company and of any transactions entered into by the Company: provided, that this authorization to disclose such tax treatment and tax structure is not intencled to permit disclosure of any other information. 7.4 Negative Balances: Withdrawal of Capital; Interest. No Priority A N.-lember shall not have tiny obligation to the Company or to any other Member to restore any negative balance in the Capital Account of such Member. No Nkmiber may yyitladrayy capital or receive any distributions except as specifically provided herein. No interest shall be paid by the Company on anv Capital Contributions. No -lcnlber.. in such capacity, shall have priority over any other Member as to return of Capital Contributions or allocations of income. again. loss. expense:. deduction or credits or as to distributions. except to the extent provided herein. ARTICLE TRANSFER OF COMPANY INTERESTS S.l Transt'ers. (a) Except for a transfer pursuant to Section 8.1(b). Section 8, . Section 8.6, or 8.7 and except for the grant of security- interest contained in Section 1.3 and a transfer pursuant thereto. no Member may. sell. assign. transfer, encumber. pledge, talortgrage or otheryy ise dispose of (a 'Transfer..) any or all of its Interest to any. Person unless the other Member has consented to such Transfer- in writing o ltich consent may include such conditions as the: Member regLICSt; in its discretion). (b) A ?Member may Transfer its entire Interest in the Company to an Approved Owner of such Member without the consent of the other Member as long as (1) the Member assigning its entire Interest shall provide the other Member with prior written notice of such assigmnaent. (2) neither such Member nor any of its Affiliates. if applicable. shall be in material breach of the term; of.. or their respectiyc oblWations contained in, this Agreement at the tithe of such Transfer and (3) all of the conditions contained in Section. 9.1(c) are satisfied with respect to such Transfer. provided. hoyvever. that. the transferor shall remain liable for all liabilities and obliLations relatinto to the Transferred Interest. In addition to the fore{coine,. and subject to Section 8.1(c . anv equity owner of the :QAC Member shall have the right to Transfer its interests in A.AC N-1ernbcr to any Person without the consent of the Managing Member so long 27 as Begin Ashhcn.azv. directly or indirectly, (i) shall own no fess than twenty percent (20°,;) of the interests of the AAC Member and (ii) shall continue to control the AAC hfenabc:r. (c) Notwithstanding anyf ether provision of this Agreement: (i) No Trans.l'er shall be peranitted if the Transferee does not truthfu.11y make the representation and warranty contained in Section 9,1 or if such Transfer would (A) unless all Members otherwise consent in advance, cause the Cornpanx to lase its ability to rely- on the: "qualified purchaser" exemption of Section 3(c)(7) of the Itavestment Company Act. or other exemption from registration under the Investment Cortlpany Act upon which the Company is entitled to rely at such tire, (B) cause the Company to be treated as a publiely traded partnership xyithin the meaning of Code Section 7704 and U.S. Department of Treasury.Reg. §1,7704-L (C) cause the Company to be classified other than as a partnership for U.S. federal i_nconte tax purposes, (.D) cause all or any portion of the assets of the Company to constitute; Plan Assets. (1=) cause the Company to be required to register the Interests in the Company under the U.S. Securities Exchange Act of 1934, as amended. thQ Securities Act or the securities la<<N.-s of arty non -U.S. jurisdiction, (F) cause: arty of the Company, any Subsidiaries. the Members or their Affiliates to be subjected to (or materially increase its obligation with respect to) any regTulations or reporting requirements that are si tnifica.nt or materially burdensome, (C) create a substantial risk that the limited liability- of ariv Nlember would be affected adversely. or (H) be a breach or violation of any covertants. restrictions of other agreements contained in anv documents entered into by anv Srtbsi.diary for anv Affiliate of €t Member) in connection with anv loan made to arty= such Subsidiary, (ii) As a condition to any Transfer of a Mentber's Interest (including a Transfer not requiring the consent of the Members), the transferor and the transteree shall provide such Iegal. opinions. documentation and information (including information necessary- to comply with the requirements of Code Section 743% if applicable) as the: Mana=ging Member shall reasonably request. (iii) The assignment of an Interest in accordance with Section _1 of this Agreement shall entitle the t wisferee only to receive the distributions and allocations �v"Ith respect to such Interest and not to any other rights of a THetnber unless such transfcree is admitted as a substitute Member pursuant to this Section 8.1(c)(iii ). in which case such admitted assir*nee shall be entitled to exercise all other rights with respect to such Interest (but an assignee is bound by the provisions of this Agreement, whether or not it becomes a substituted Member). ,A transferee of an Interest shall become a substitute Member one% if the Transfer to such transferee: is in accordance with file terms of this Agreement and such transferee executes a copy of this ALrcenaent or an amendment hereto in form and substance reasonably satisfactory to the non -Transferrin - Member confirminc, such transferee's a4-reenaent to be bound by this _4treement. The Manatain<= Member shall modifv Schedule I to reflect such. admittance of any substitute Mentliem but the failure to do so shall not constitute a breach of this Agreement or affect such Person's staters as a substitute Member. If' a Member transfers all of its limited liability company interest in the Company pursuant to this Section 8.1 and the transferee -)g is admitted as a substitute Member of the Company, such admission shall be deemed effective immediately prior to the transfer and, immediately follo4Ning such admission, the transferor Member shall cease to be a member of the Company. ON-) The transferor and transferee of anv Member's Interest shall be jointly and severally obligated to reimburse the Mana4i.n<,, Member and the Company for all reasonable documented expenses (including any transfer taxes. attorneys` lees and expenses and any inimediate or ongoing, accounting costs attributable to the Company's compliance with the requirements of Code Section743(b)or (e) with respect to the transferred Interest) of any Transfer or proposed Transfer of a Member's interest, ,\hether or not cotlsunlnlated. The transferee of any Interest shall be treated as haN in - made all of the Capital Contributions made by. and received all of the allocations and distributions received by, the transferor of such Interest in respect of such liltCrest. (d) To the fullest extent permitted by la,+. any Transfer that violates this Section 4.1 (any Stich Transfer. an '(?npermitted Tratlsfieer`) shall be void and the purported buyer. a siunee. transferee. pledgee. mort<ga�zee or other recipient shall have no interest ill or ri-lits to Conlpally assets. profits. losses or distributions and neither the Managing Member nor the Conipam shall be required to recognize any such interest or rights. 8.2 No Withdrawal or Loans. Except as otherwise set forth in this Agreement, no Member may withdraw as a member of the Company. nor shall any Member be required to s\ithdr,m fi'oin the Company. nor may a %Member borrow or withdraw any portion of its Capital Account trOnl the Company. 8.? No Termination. Neither the substitution. death. incoillpeLency. dissolution (whether Voluntary or involuntarN) nor bankruptcN of: a Member- shall, by itself. affect the existence of the Company. and the Company shall continue for the term of this AU'reemznt unless sooner dissolved in accordance with this ALyreenlent or the Act 8.4 Wql%er of Partition. Except as may otherwise be provided by law- in connection with the dissolution, liquidation and final w•indinlT-up of the Company. each Member hereby irrevocably waives any and all ri hts that it may have to maintain in action flor partition of any Of the Company`s property. 8.5 Buv-Sell RILht. (a) From and after the expiration of the Lockout Period. or tyithin thirty (30) days after the occurrernce of a BIS Trig-uer Event. if any klember (the "B'S OR'eror") desires to exercise its right to initiate the provisions of this Section 8.5 (the "B!S Option-). it shall do so by ving written notice (tile "B'S Notice") to the other Members (tile "B/S Offeree") setting forth a statement of intent to invoke the B/S Option. 'File WS Notice shall contain (i) all a2aregate dollar value for the Interest. free and clear of all liabilities. as determined by the B.'S Offeror in its sole discretion (the "B/S Valuation Amount") and (ii) the B/S Offeror's good faith estimate or the B/S Distribution Amount with respect to the B°S OtTeror and the B;'S Offeree. For purposes hereof, the "B"S Distribution Anxiunt" means. with respect to the B/S Offeror or BIS Offeree. the arllourlt that would be received b% the B..S Offeror or the BIS Offeree, as applicable_ pursuant to 29 Article 4 assunninu, that the Interest was sold for the B'S Valuation Amount. the other current assets (other than cash) of the Company and an\- Subsidiary were sold for their book values (net of contra accounts), the Company and any Subsidiary paid all of their liabilities to the extent required to be paid by lay. the purchaser paid any and all applicable transfer tares. documentary stamps or similar fees that would be incurred by the Company and its Subsidiaries if the Company and its Subsidiaries sold the Interest and all Available Proceeds were distributed to the. Members pursuant to Article 4. (b) Atter receipt of a B.'S Notice. the B.'S Offeree shall. within thirty (30) days thereafter (the -13'S Response. Period-). jive written notice (the. --B."S Electing Notice") to the B/S Offeror of the B/S Offe:ree's election to either (i) PUrchase the: entire Interest of the B/S Offeror for a purchase price equal to the B!S Distribution Amount applicable to the BS Offeror (thc -WS Buv Option") or (ii) sell to the B,'S Offeror the entire Interest of the. B"S Offerce for a purchase price equal to the B;'S Distribution Amount applicable to the B/S Offeree (the B/S Sell Option"). If the: B'S Offeree does not deliver such WS Blectin�-, Notice within the B/S Response Period. then the R'S Offerce shall be deenied to have elected the B/S Sell Option. (c) Within five (5) Business Days after an election has been made wider Section 8.5(b) (%thether deemed or otherwise). the acquiring tileniber shall deposit into escrow, with an escrow agent selected by the acquiring iVle;ntber but not an Affiliate Of the; acquinn.r Member. and reasonable acceptable to the selling NMe niber, all earnest money deposit in an amount cgcral to ten { 10%) percent of` the B: S Distribution Amount. \\ hich deposit shall be applied to the purchase price at closing=. (d) The Closing of the: purchase and sale pursuant to this Section 8.5 shall occur pursuant to Section 8.7 and the terms of Section 8.7 shall apply to any such purchase and sale. (e) In the event any GGP 'Mentber is a B."S Offeror, then each of the GGP `Members must offer sell its respective Interests and collectively issue a B/S Notice in accordance with Section 8.5(a), The GGP `Members shall collectively be considered the B/S Offeror for purposes of this Section 8.5 and the Seiling Member for purposes of Section 8.7 below. In the event the AAC Member is the B,"S Offeror. GGPN shall be the sole B,'S Offeree. (f) Note ithstanding anything to tlae contrary contained in this Agreement. if at any time a iMemher has exercised the B/S Option in accordance with this Section 8.5. then the other Member shall not have the right to exercise the B/S Option and such Member shall have no ri-lit to deliver a ROFO Notice until the GompletiOn Of the process pursuant to this Section 8.5. 8.6 Ri,)ht of First Offer. (a) (a) At any time after ninety (90) days from the Effective Date, if a Member (the ' ROF'0 Initiatina Nlember-) desires to sell all of its Interests (the ROFO Offered Interest") to any Person other than to an Approved Owner pursuant to Section 8.1(b) and other than pursuant to Section 8.5 or M. the ROFO Initiating Member shall provide written notice to the other Member (the ROFO Recipient Member") setting forth its intention to market for sale the ROTO Offered Interest (the "ROFO Notice''). which notice shall include (i) the cash. s0 Purchase prig: that the ROFO Initiating Member is "illing to accept for the ROTO Offered Interest, as determined by the ROTO InitiatinL, lkfenlber in its sole discretion (the "ROFO Market Value"'), and (ii) the other proposed monetary and material terms of such sale (\khich must include payment of the purchase price in cash at the closing'). (b) Within thirty (30) days after receipt of a ROFO Notice tthe -ROFO Response Period"). the ROFO Recipient Nlember may deliver written notice (the "ROFO Flectim-, Notice") to the ROTO Initiatinta Member of the ROFO Recipient Member's election to purchase the ROFO Offered Interest for the ROFO kfarke:t Value (tile "ROFO Purchase Option*'.). If the ROFO Recipient Member does not deliver such ROFO Electing Notice within the ROFO Response Period. then the ROFO Recipient lklember shall be deemed to have «aived its right to exercise the .ROFO Purchase Option. (c) If the IZOFO Recipient \lcrnber elects the ROFO Purchase Option pursuant to Section 8.6(b). (i) iyithin five (5) 13ttsiness Days after such election has been made. the ROTO Recipient Nlentbcr shall deposit into escrow. \,-ith an escrow aLent selected by the ROFO Recipient ,lklernber but not an Affiliate of the ROFO Recipient IN-Iernber and reasonably acceptable to the ROFO Initiating NTernber. an earnest money deposit, in an amount equal to ten percent (1 WiO of the ROTO klarket Value. which deposit shall be applied to the purchase price at closin-, (ii) the ROFO Initiating, \IQn-i rer shall he obligated to sell. an(] the ROFO Recipient Member shall be obligated to purchase. the ROTO Offered Interest ('or the ROTO Markct Value and upon the other terms contained in the ROFO Notice except as other%-ise provided herein. (iii) the closing of such transaction shall occur in accordance .vith the provisions of Section 8.7 and (iv) the terms of Section 8.7 shall apple thereto_ (d) If the ROTO Recipient N,Ieniber shall not timely elect to purchase the entire ROFO Offered Interest. the ROFO Initiating lklember shall be free to market for sale the ROFO Offered Interest and negotiate N -x ith any prospective third parte purchasers the terms for the sale of the ROFO OI.'I:ered Interest and Transfer the ROFO Offered Interest pursuant to the terms hereof for an amount equal to or greater than ninety-five percent (951r6) of the ROFO Market Value (the -ROFO TarLet Price") and on terms no more favorable to the purehasin4o parte than those other terms contained in the ROFO Notice. If the ROFO Initiating Member receives a bona tide third -party offer during the ROFO Sale Period to purchase the ROFO Offered Interest for a purchase price that is less than the ROFO Target Price and the ROFO InitiatinLl Member desires to accept such offer. then the ROFO Initiating Nlember shall reoffer in writing to the ROFO Recipient Member the ROFO Offered Interest at such lower price and the provisions of this Section 8.6 shall re -commence except that the. ROFO Recipient Member shall have only fifteen (11) days from receipt of such \written reoffer to notify. in writing. the ROFO Initiating Member that the ROTO Recipient NIember agrees to purchase the ROFO Offered Interest at such lower price and the time periods set forth below in this Section 8.6(d) shall continue to be based on the ROFO Response Period. The ROTO initiating Member shall have one. hundred 080) days from the end of the: ROTO Response Deadline to consummate a Transfer of the ROFO Offered Interest to a third party purchaser in accordance with the terms of this Section 8.6 (the: -ROFO Sale Period") and no Transfer may occur pursuant to this Section 8.6 after the: ROFO Sale Period unless another ROTO Notice is given and the process set forth in this Section 8.6 is recommenced. Notwithstand'tn- anvthinu to the contrary- set forth in this Section 8.6.-vithout the prior written consent of the ROFO Recipient llentber. (i) the buyer of 31 the ROFO Offered Interest pursuant to this Section 8.6(d) shall not be an Affiliate of the ROFO Initiating hlernber (or any Member comprising the ROFO Initiating Member) or an Entity in which the ROTO Initiating Member (or any of the Members comprising the ROTO Initiating Member) directly or indirectly' owns greater than a ten percent (10°'o') interest. (ii) the buyer of the• ROFO Offered Interest pursuant to this Section 8.6(d) must be a Qualified Transferee and (iii) the Transfer pursuant to this Section 8.6(d) shall comply with the provisions of Section LILLQ. (e) Notwithstandin- anything to the contrary contained herein (but subject to Section 8.7(b) and Section 8.7(e)), (i) if a. Member delivers a ROFO Notice but the ROFO Offered Interest is not sold pursuant to the process commenced by delivery of such ROFO Notice, such Member may not deliver another ROFO Notice for vvvehve (12) months after the completion of such process and (ii) if a :Member delivers a ROFO Notice. no Member may delis er- a B'S Notice until the Completion of the process commenced by delivery of such R.OFO Notice. (f) In the event any GGP Member is a ROFO Initiating Member. then each of the GGP Members must offer to sell its respective Interests and collectively issue a ROTO Notice in accordance with Section 8.6(a). The GGP 'Members shall collectively be considered the ROFO Initiating Member for purposes of this Section 8.6 and the Se.11inu Member for purposes of Section 8.7 below. In the event the .-IAC NI-etuber is the ROTO Initiating klernber. GGPN shall be the sale ROTO Recipient Member. (�1 Tai_' Along Rid -ht. (i) If wiy ROFO Initiating Momber proposes to Transfer to a potential purchaser its Interest in the Company (such Transfer. a "Ta(z Along Sale"), and the Company and the ROFO Recipient Vlernber elect not to e.\ercise its right to purchase all of the ROFO Offered Interests pursuant to Section 8.6. then the ROFO Recipient Member (the "Tagg Alone Member') shall have the option. exercisable in its sole discretion. to participate in the Tag Along Sale at the ROFO Tar -et Price and on the terms set forth in the ROTO Notice. by providing written notice (the "Tat, Along= Notice") to the: ROFO Initiating Member on or before the thirtieth (30th) calenclar day CollowinL, the expiration of the ROFO Recipient Member Response Period (the "Expiration Date"). The Tap Alonzo Member shall be entitled to include in. the Tau Along Sale all of the TaQ, Along \lember's Interests (the `Ta« Along Interests`'). (ii) Upon receipt of an\ Tag Along Notice from a Tag Along: Member representing that the Tag= Alone Member is electing to participate in the Tag Alon_t Sale. the ROFO Initiating Member shall cause the potential purchaser to purchase from such Tay,, -Along Member all of the Taal Alona Interests. If the potential purchaser is not willing to purchase: all of the Interests proposed to be Transferred by the Tag Alone Member. then the Taa Alone Sale shall not occur and the potential purchaser shall be required to Withdraw its offer. At the time of consummation of the Tae Alonr? Sale, the ROFO Initiatin{u, Member shall cause the potential purchaser to remit directly to such Tag Alone Member that portion ;? of the sale proceeds to NA-hich such Tae -Along, Member is entitled by reason of such Tau Alone Member's participation in the Tap Along Sale. (iii) In furtherance, and not in limitation. of the foregoing. in connection with any Ta- Along Sale.. the Tag Along Member will execute all documents containing, such terms and conditions as those executed by the ROFO Initiating Member that are reasonably necessary to effect the transaction; provided, however, that (A) the liability of the ROFO Initiating Member and the Tai, Along Member shall be several and not joint. (B) no ROFO Initiatina :Member or Tag -Along Member shall have any liability to the Company or the other Member for any breaches of the representations. warranties or covenants of the other Member. (C) any obligations of the ROFO Initiating Member or the Tay, Alone Member under the a+,reement governing such transaction and atnv related escrow- aoreement shall be borne pro rata among such'N-Iembers based on the proceeds and assets payable to such Members in such transaction (other than any such obligations that relate specifically to a particular Member's Interests. which obligations shall be borne solely by such Member) and shall in no event exceed the actual proceeds and assets received by et€ch such Member in such transaction. (D) if any €tilember is given an option as to the: form of consideration to be received. the other Members shrill be �,iven the same option on the same terms, and (E) if the form of consideration to be received by the ROFO Initiating, iMe rnbtr is other than cash. such 'fag Aron, N-lember shall have: the right to receive cash at the ROl"O 11larl:et Value: of such other consideration. (iv) If` a Tai, :Tony, Member fails to deliver a Tau, Alon- Notice before the Expiration Date. then such Tay Along, Member shall forfeit the right to participate in such Tag Alone, Sale. The ROFO Initiating Mtnnber shall have forty five (45) calendar da, s after the Expiration Date to consummate the proposed transaction identified in the Tag Alone Notice at the ROFO Target Price and on the terms set firth in such Tag Along ;notice, provided. that the ROFO Initiating lklember shall be deemed to have sold such ROFO Initiating Member's Interests pursuant to Section 8.6(a) during- such forty live (45) day period if such Member. durin4, such period_ has irrevocably entered into a bona tide binding agreement to sell such Interests to a potential purchaser. provided further. that the closing, of such Transfer must occur within forty- five (45) calendar days following the execution Of Such bona fide binding agreement. If the ROFO Initiatinu Member ever wishes to Transfer such Interests for a price per Interest that is less than the ROTO Target Price or on material terms and conditions that are more favorable to the potential purchaser than the terms, or if the. ROFO Initiating Member Nvishes to Transfer such Interests follovv-ing the expiration of such forty five (=I5) -calendar day period. the ROFO Initiating N"lember shall be required to first comply with Section 8.6 anew. 8.7 General Provisions Applicable to Transfers Among Members Pursuant to Sections 8.5 and 8.6. a� (a) The closing of the purchase by any Member (tile '"Purchasing lfernber") of the Interest or Interests of another Member or Members (the --Selling `,lember') pursuant to Section 8.3 or Section 8.6 shall be held at the principal place of business of the Company Oil a mutually- acceptable date (the "Closing? Date") not later than one hundred twenty (120) days after the date the 13:'5 Electim, notice or ROFO Eleetim , Notice. as the case may be, is given. Notwithstanding* the foregoing. in the event of a Termination Trigger on or before the Closing" Date. the Purchasing Member may select. by written notice to the Sellinu, \Izmber no later than fifteen (15) Business Days after the Purchasinc Member first has actual knowled-c of the occurrence of such Termination Trigger. not to proceed with the closing of the applicable purchase.. in trhich event the earnest money deposit shall be returned to the Purchasing Member. The purchase price to be paid by the Purchasing Momber for the Interest o€- Interests to he purchased pursuant to Section 8.5 or Section 8.6 (the "Subject Interest") shall be paid by wire transfer of inimediately available funds. at: the closi€ng ol` such transaction. Additionally-, at the closillU of such transaction. each Member shall execute and deliver any and all deeds, asci<Tnnients. ai-nreements and other contracts as rnav be reasonably necessary to constunmate anN, such transaction. including a representation and warranty by the Sellin,, 1lember that tine Subject Interest is fieof and clear of all liens. claims and encunnbrances. Airy transfer or similar tares and other expenses related to the sale of the Subject Interest shall be paid in accordance with the practices and customs in Miami. Florida unless provided otherwise in an applicable ROFO Notice. The closing of an,,- such transaction shall also be conditioned upon either (1) repayment in full or defeasance in 1t€11 of anv then existing third party debt of [lie Company and any Strbsidiar.\ or (2) if such then existing third party debt shall remain outstandings, receipt of any required lender consent and the release of any moi' wIc Affiliate in connection Nvith such existing debt. In the event that, as of the scheduled Closing Date. the Company has not obtained a rewired lender's consent and agreement to rele=ase any guaranty. then. at the Purchasing ITernber's election. the closing may be extended for up to an additional sixty (60) dans to obtain such consent. If. after such extz€nsio€n. tine Pat -ties have not been able to obtain the Lender's consent and aLareement to release any CTuaranty. then the Purchasinii ]ember's oblinatiotn to purchase, and the Selling 1vleniber's obligation to sell. shall terminate and the deposit shall be returned to the Pu€ -chasing Member. If. at closing there is a dispute as to tine B/S Distribution Amount and the Members are unable to reach an agreement with respect thereto within fifteen (15) .Business Days thereafter. any Member may engage the Accountants to reyie\v the B,'S Distribution Amount and such Accountant's determination. absent manifest error. shall be binding on all parties and the Closing Date shall be extended pending such determination. If a casualty or condemnation occurs after a B/S Notice is given. the WS Valuation Amount shall be reduced by the amount of the insurance or condemnation proceeds received or to be received by the Company or a Subsidiary oil account the=reof. Upon the closing and unless the Selling Member and Purchasin- Member otherwise aizree. the Affiliate Contracts between the Selling N le€mber and its Affiliates. on the one hand, and the Company or any Subsidiarv. on the other ]land, shall termirnate and all amounts then accrued thereunder and al l other amounts due thereunder shall be paid in fill. (b) If the Purchasing ilklember should default in its obligation to purchase the Subject Interest under Section 8.5 or Section 8.6 after the passaoe of rive (5) day's' notice and opportutnity to cure. the Selling Metuber shall receive the earnest money deposit previously deposited with the escrow agent. The: earnest money deposit shall be the full liquidated damages for such default of the Purchasing ':Member. the other Member hereby acknowle&,inn and 34 agreeing that it is impossible to more precisely estimnto the damatges to be suffered by the Selling ?N4entber upon such default and such 'Member acknowledges and agrees that forfciture of the earnest money deposit is not intended as a penalty. In the event the Purchasing Member fails to make its earnest money deposit as required in Section 8.5 or Section 8.6. then the Selfirig Member shall have the right to recover an aNvard or judgrir►ent against the Purchasing Member in the amount of such required earnest money deposit. together Nvith its reasonable attorneys' fees and costs incurred in obtaining such award or jud+gment. In addition. if the Purchasing Member should dcl-Jult in its obligation to purchase the Subject Interest pursuant to Section 8.6. the SellinL,, Member may thcrcafter sell the ROFO Offered Interest for such purchase price and upon such terms (whether the same or different than those contained in the ROFO Notice) as it deems appropriate Without complying with the terms of Section 8.1(a) or Section 8.6 except that any such Transfer must comply with Section 8.1(c). (e) If the Selling Member should default in its obligations to sell the Subject Interest pursuant to Section 8.5 or Section 8.6. then the Purchasing ; fcmber may exercise one of the followinu alternative remedies with respect to the Sellino 1%lember within thirty (30) day -s after the Selling Nfember's default, as the PurchasinLI Nfentber's sole and eyclusive remedy for such default: (i) The PUrchasingMember shall be entitled to demand and receive a return of its earnest monev deposit previously deposited with an escrow agent and reinibUrsement of actual out of pocket costs. inCudinu reasonably: legal fees, in \0ich event after return of such deposit. the Selling klembe:r°s default hereunder shall be deemed \Naived. or (ii) The Purchasins Member shall be entitled to commence an action seekin', specific performance of the Sellin« Member's obligations under Section 8.5 or Section 8.6. the Members expressly agreeing that the reeledy at law for breach of the obligations of the Sellin`7 Member set forth in Section 8.5 or Section 8.6 is inadequate in view of (A) the complexities and uncertainties its measuring the actual damagc to be sustained by the Purchasing,! I1-ternber on account of the default of the Sellin_= Member_ and (I3) the uniqueness of the Company' business and the: ;Members' relationships. I:f the Purchasing Member succeeds in its claim for specific performance, it shall be entitled to also recove9• from the Selling Xiember its reasonable attorneys' fees and costs incurred in obtainhw such axA-ard or judgment. ~ (d) From the date of the B/S Notice or the ROFO Notice until the Closin4g Date. or. if earlier, the: termination of the process pursuant to Section 8.5 or Section 8.6, the Company and any Subsidiary shall continue to be operated in the ordinary course, as if the closing were not going to occur. the Members shall continue to have all power and authority -ranted in this Agreement (including the power and obligation to make distributions). and the .Members shrill exercise their power and authority in good faith and without regard to the fact that such closing may occur: provided, that neither the Company nor any Subsidiary shall not enter into any- contracts or agreements, or otherwise agree. to sell or otherwise dispose of a Property, except that the Company and each of its Subsidiaries shall be authorized to consummate any transactions that were the subject of binding contractual obligations entered into prior to the ;5 commencement of such period provided that the Members had knowledge of such transactions and their terms prior to making, their respective offers and elections hereunder. (e) %otNvithstanding anything to the contrary contained herein_ in the event that the Selling Member or PtErchasing Member defaults in its obligation to sell or purchase as set forth in Section 8.5 or Section 8.6. such defaulting Person or Persons may not exercise any rights to deliver a B/S Notice or ROFO Notice for a period of three (3) years from the date of such default. (f) The \lanagina Member shall. and shall cause its Affiliates (including the Property Manager) to pros ide or make available to the AAC Member such documents as such AAC Member requests u7 connection with any decisions and negotiations under Section 8j. Section 8.6 or this Section 8.7. (g) If a Selling Member owes any Capital Loans. such Capital Loans shall be repaid. tO�.Iether With all unpaid accrued interest thereon. in full at closing. If a SellinL, Member is owed any Capital Loans. the purchaser of such Selling, Member's Interest. whether such purchaser is another Member or a third -party, shall pay to the Selling Member the outstanding principal amount of such Capital Loans and accrued and unpaid interest thereon and succeed to the rights of such Selling Member with respect to such Capital Loans. (h) A Purchasing Member shell have the right to designate a Qualified Transferee tO LICLj sire arw Subject Interest and to asci- n its rights to acquire such Subject Interest to such desi4-We, it beinL1 Understood and a�zrccd that any such assium-nent shall not relieve the Purchasing \Icniber of ani of its obligations arisinc, hereunder x ith respect to such purchase and sale. 8.8 Withholdiny Taxes. (a) If the Company is obligated to pay any. amount to a governmental agency or body because of a Member's tax status (including non -6.S. taxes. U.S. federal vvitl�l�olding taxes tyith respect to non -U.S. members. U.S. state withholding taxes and U.S. state unincorporated business taxes). and such amOLInt is not satisfied out of distributions otherwise payable to such Member. then such Member (the "Reimbursing Member'") shall reimburse the Company in full for the entire anbount paid (including any interest. penalties and expenses associated with such payment). The amount to be reimbursed shall be treated as a non-interest bearing* loan payable: by such Member to the Company. Such payment shall occur promptly (within ten (10) Business Bays) upon notification of an obligation to reimburse the Company in this retard. (b) Except as reimbursed by a Member pursuant to Section 3.8(a). (i) any amount of taxes paid by the Company. (ii) any taxes withheld by the Company and (iii) any xvith.holding or similar taxes imposed on amounts payable to the Company shall in each case be treated for purposes of this Agreement as an amount actually distributed to the Members pursuant to Article 4 at the time paid or Vvit17held (and the amount of any such tax shall be deemed to have been distributed to such Members). An amount shall be considered paid or withheld by the Company- if. and at the time. remitted to a governmental agency without regard 36 to whether the remittance occurs at the same time as the distribution or allocation to which it relates; provided, that an amount actually witi-dield from a specific distribution or designated by the Managino Member as withheld with respect to a specific allocation shall be treated as if it were distributed at the time such distribution or allocation occurs. (c) A ReimbursinQ Member's obligation to make reimbursements to the Compativ under this Section 8.8 shall sru-viVe the dissolutiolz. liquidation. windings up and termination of the Company, and for purposes of this Section 8.8, the Company shall be treated as eontinuinfl in existence. The Company or the Managing, Member may pursue and enforce all rights and remedies it may haN e against each Member under this Section 8.8, including institutinL) a lawsuit to collect such contribution vdth interest calculated at an annual compounded rate equal to the Base bate plus six perccatage points (6%) per annum (but not in excess of the highest rate per annum permitted by applicable lady). ARTICLE 9 REPRFSI-NTATIONS AND WARRANTIES OF THE 1.vIF,%IBERS As a material inducement to each Member's execution and delivery of this Aurccmtnt_ each Member rcl-)resents. warrants. covenants and agrees to and with each other Member and the Company as follows: 9.1 Authorization. Such Nleniber is dull oruanized. formed or incorporated. as the case may be. and such Member is authorized. empowered and qualified to execute this Agreement. to invest in the Compam and to make Capital Contributions as contemplated by this L,reement. The individual this Agreement and all agreements contemplated hereby and thereby on such Mcmber's beh:rlrhas been duly authorized to do so. 9? Binding Obligation. This Agreement is a valid and binding agreement, enforceable auainst such Member in accordance with its terms. � 4 9.j No Conflict. The execution and delivery of this Agreement by such Member, the consur Mation of the transactions contemplated hcrebv and the performance of such Member's obligations under this Agreement mill not conflict with. or result in any violation of or default under. an) provision of any Lmvernins, instrument applicable to such \-lember, or any a4_=reement or other instrunlerlt to \A IIic17 such Member is a parti or by which such Member or an\° of its properties are bound. or any (_'sited States or non -United States permit, franchise..judOment. decree, statute. tau•. order, rule or regulation applicable to such Member or such Member's business or properties. 9.4 Access to Information. Stich Member has performed its own independent investi-ations and obtained such information as it deemed necessary in order to evaluate the merits and risks of an investment in the Company. Such Member has consulted to the extent deemed appropriate by such lklember with such Member's own advisers as to the financial. tax, legal, accounting. reaLllatory and related matters concerning an investment in the Company and on that basis understands the financial. tax. legal. accounting. re"ulatory and related consequences of an investment in the Company, and believes that an investment in the Company is suitable and appropriate for such Welber. 37 9.5 No ReL istration of Interests. Such Member understands that the interests in the Company- have not been. and S\iII not be. registered under the Securities Act or any state or non - United States securities laws. Such \Member is acquiring its Interest solely for the account of such 'Member. for investment purposes only and not with a view to the distribution thereof. Such Member (1) is a sophisticated investor with the knowledge: and experience in business and financial matters to enable such Member to evaluate the merits and risks of an investment in the Company. (ii) is able to bear the economic risk and lack of liquidity of an investment in the Company and (iii) is able to bear the risk of loss of its entire investment in tiie Company. 9.6 Re,_,ulation D under the Securities Act. Such \Iernber is an `accredited investor" as that term is defined in Regulation D promulgated under the Securities Act. 9.7 Investment Company- Act Matters. Such Member understands that: (i) the Company does not intend to register as an investment company under the Investment Company Act. and (ii) such Member will not be afforded the: protections provided to investors in registered investment companies under the Investment Company Act. Such Member ve•as not formed or reformed (as interpreted under the Investment Company Act) for the speLific purpose of making an investment in the Company. and.. udder the ownership attribution rules promulgated under Section 3(c)( l ) of the: Investment Company- .Act_ no more than one person will be deemed a beneficial owner of such Member's interest in the Company. Such Member is a "qualified purchaser as that term is defined under the Investment Company Act. 9.$ Acknooded<,cmcnt of Disks: Restrictions on Transfer. Such !IvIernber reco,,inires that: (i) an investment in the Company involves certain risks. (Ii) the interests in the Company are subject to certain restrictions on transferability. and (iii) as a result of the fore,,oin�,. and the marketability of the interests in the Compaitr- is severely limited. Such Member agrees that it will not transfer•, sell. assi-11. pledge. encumber. mortgage. divide. hypothecate or otherwise dispose of all or any portion of its Interest in any manner that would violate this Agreement. the:. Securities Act or any United States federal or state or non -United States securities laves or subject the Company or any other IMembe:r or any of its Affiliates to regulation under the Investment Company Act or the Investment Advisers Act. any non -United States governmental authority havingjurisdiction thereover or any' additional regulation under the rules and re�_'ulations of the united States Securities and Fxchan{oe Commission or the laves and regulations of any United Staters federal. state oz- municipal authority. 9.9 Additional hlvestme:nt Risks. Such Member is aware that: (i) the Company has no financial or operating history. and (ii) no United States federal. state or local or non -United States a` e: c * governmental authority or other Person has passed upon the interests in the Company or made an\- finding or determination as to the fairness of this investment in the Company. - 9.10 No Public Solicitation. Such Member confirms that it is not subscribing for any interest in the Company as a result of any form of general solicitation or general advertising. including (i) any adv=ertisement. article. notice or other communications published in any newspaper. magazine or similar media (including any intcrnet site that is not password protected) or broadcast over television or radio or (ii) any seminar or meeting whose attendees were invited by any general solicitation or general advertising,". 38 9.11 Anti -Money Laundering, and Anti -Boycott Matters. Such Member acknowledges that the Company seeks to comply rt ith all applicable anti -money laundering and anti -boycott laws and regulations. No ,part of the funds used by such Member to acquire its Interest has Leen, or shall be. directly or indirectly, derived from any activity that ntay contravene United States federal laves or rceulations, including anti -money lawidering lavvs and regulations. no capital commitment, contribution or payment to the Company by such Member and no distribution to such Membcr shrill cause the Company or the Managing Member to be in violation of any applicable anti -money latrndering la«s or regulations. including- the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 and the United States Department of the Treasury Office of Foreign Assets Control ("OFAC") re4aulations, and all Capital Contributions or payments to the Company by such itlenther shrill be made through an account located in a jurisdiction that does not appear on the list of boycottin- countries published by the United States Department of Treasury pursurint to Code Section 999(a)(3). as in effect at the time of such contribution or payment. Su.Ch Mernber acknowledoes and agrees that, nom itlisuindin<g am thine to the contrary contained in this :1oreement, to the extent required bv anti -money lauttd eriiag la��s or re�7ulatians or by OFAC. the Cornpan\ and the N•lanaging Member may prohibit additional Capital Contributions. restrict distributions or take any other reasonably necessary- or advisable action with respect to the interests in the Company. and such Member shall have no claim. and shall not pursue any claim. against the Company. the Manaoin+, lklember or ant• other- Person in connection therewith. 9.12 No Plein :assets. Such Member does not hold Plan Assets and shall not fund any Capital Contributi011'With flan :-assets. Without limitation of the foregoing,. such "Member is not a "foreion person" within the meaning of Section 1445 of the Code: such part} is not an "employee benefit plan" as defined in Section 3(3) of ERISA.. or a "plan"'. as defined in Section 4973(e) of the Code. and the assets of such parte have not been deemed `plan assets" or one or more such plans for purposes of Title I of ERISA or Section 4975ot the. Code. such parte is not a ..govemincrital plan" N ithin the meaning of Section 3(32) of ERISA, and no transaction by or 'With such parte is sttl_liect to or in violation of any state statutes applicable to regulation of investments of and fiduciary obli«ations with respect to governmental plans. ARTICLE 10 DURATION AND DISSOLUTION I0.1 Duration. (a) The Company shall be dissolved upon the earlier to Occur of ant- of the folio\\ ins.: events: (i) the unanimous written aareement of all of the Members: (ii) the sale or other disposition of all or substantially all of the assets of the Company - Act. (iii) the entry of a decree of judicial dissolution under Section 18-802 of the 39 (iv) the termination of the legal existence of the last retraining member of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company- unless the Company is continued without dissolution in a manner permitted by this Agreement or - the Act, or (v) upon the Occurrence of any event that causes the last remaining member of the Company or the: Nlenaber to cease to be a member of the Company (other than upon continuation of the Company without dissolution upon (i) an assignment by such member of its entire limited liability company interest and the admission of the transferee as a naentber pursuant to ;-Xrticle S. to the fullest extent permitted by law, the personal representative of such member is hereby authorized to. and shall. within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company. agree in writing (i) to continue the Company and (ii) to the admission of the personal represc:ntati\e or its nominee or desi�unce, as the case mai be. as a substitute member of the Company with the rights (anal only the rights) of such member, effective as of the occurrence of file event that terminated the continued membership of the last rernainin�. member or the Member in the Company. (b) Except as sct forth in Section 10.1(a). dissolution of the Company shall be effective as of the day on «hich the event occurs giving rise to the dissolution. but the Company shall not terminate until there has been a winding up of the Company's business and affairs and the assets of the Company ha\, -c been distributed as provided in Section 10?. 10.3 Liquidation of the Company.. (a) Upon dissolution. the Company and any then remaining Subsidiaries shall be liquidated in an orderly manner in accordance with the provisions of this Agreement. the Act. and any other applicable law. The: Managing itilember shall be the liquidating trustee to wind ftp the affairs of the Company and its Subsidiaries pursuant to this Agreement or, if the Managing Member is not able to act as the liquidating trustee, a liquidating trustee shall be appointed by. and with approval of. the AAC Member. (b) Following dissolution of the Company (whether pursuant to Section 10.1 or other\ ise) and upon liquidation and winding up of the Company and any then rernaining Subsidiaries, the %lanaginL: Member or other liquidating trustee appointed pursuant to Section 10? ashall make a nal allocation of all items of income. gain. loss and expense in accordance with Article 3 and Section 1 I.5, and the Company's liabilities and obligations to its creditors shall be paid. to the extent required by law or adequately provided for prior to any distributions to the Members. After payment or provision for payment of all liabilities and obligations of the Company, the remaining assets. if any. shall be distributed among the Members pursuant to Article 4. (c) Following completion of the minding up of Company affairs as contemplated by this Article 10. the Company shall terminate upon the filing of a Certificate of Cancellation of the Certificate in accordance with the applicable provisions of the Act. 40 Notwithstanding any other provision of this Agreement, the Bankruptcy of a Member shall not cause a Member to cease to be a member of the Company and upon the occurrence of such an event. the Company shall continue without dissolution. 10.3 Removal of the Managing Member. (a) Upon the occurrence of a Cause: Event. the: AAC Member may remove the Marra *ina 1N.Jernber as niana,,inu mcrnber of the Company by delivering, a wTitten notice to the Managing N,Ierrlb r specifying in detail the basis for such removal (the "Removal Notice-) to such effect. (b) No removal of the Managing Member shall be effective unless each of the follmvin=, conditions are satisfied wvithin one hundred twenty (120) dans atter the date the Rem o \,,a f Notice is delivered to the removed ManagrinL, \Iember: (i) wwithin ninety (94) days after the Removal Notice, the news managing member- of the Company (,which shall be the AAC Nlember) shall have assumed all obliumtions of the removed NIatna L,,inu Member as managing rneniber under- this Agreement arising on or after the date: on which such new manw6rie_, member becomes mana`nnu, member of the Company and (1r) if regUired U13dCr the Act. an amendment to the Certificate shall have been filed with the Secretary of State of the State of Delaware that reflects the change in managino member. (c) In the event the Nlana-in`g Member is removed. the AAC lklernber rnav elect to cause the Company it.). or to cause each Subsidiary to, terminate tic Propert4 Mana<_,crment A L'r ements and any other Affiliate Contracts \.with the removed Mana-iin, \te:rnber or its Affiliates. If aiv such agreements are terminated pursuant to this Section 10.3(c) than such a reements shall be terminated afier payment to the Property Manager or any other Affiliate of the Marraaging :Member. as applicable. of all accrued and unpaid fees and CNpenses and other amounts owing with respect thereto. (d) The tN-Jernbers hereby aoree to make such amendments to this Agreement Lis are necessary or advisable to implement the change in managing member. and to all events to interpret and apply this Agreement (whether or not formal amendments are executed) in a manner consistenl with such principles. (e:) Except as provided in this Section 10.3. the Managing ?Member may not be removed. No removal of the kfanaE int :Member shall affect any other t'igbts of the'Members, including the removed Mana,in�_= Member. under this Agreement. including) the right to receive its share~ of distributions or approve ?Major Decisions. including the engagement of a replacement property manager for a Property. ARTICLE 11 BOOKS OF ACCOUNTS. MEETINGS_ CERTAIN TAX MATTERS, ARBITRATION I I .I ]Books. The Company shall maintain complete and accurate books of account of the Cormpany's affairs at the 'Managing, Member's principal office. ww hieh books shall be open to inspection and copyingbw the A.AC Member (or its authorized representative) for any purpose reasonablw- related to ,such %4ember's interest in the Company at any time during ordinary business hours upon at least twvo (2) Business Daws' prior notice. subject in each case to any 41 portion of the books which may otherwise be kept confidential with respect to the-Nlana+,_ing ,1\4ernber to the extent expressly provided in this Agreement. With respect to the minutes of meetings. the consents without meetin{,., the Certificate, the applications to conduct business tiled with the authorities in those jurisdictions in which the Company is qualified to conduct its business. all licenses and other similar instruments or documents issued to the Company by such jurisdictions refiectinty such qualifications (collectively. the ''Corporate Documentation*'). the ManaQing 'vlernber shall create and complete. or cause the creation and completion. of the Corporate Documentation in a tame]%- manner and delayer copies of the completed Corporate Documentation promptly to AAC Member. c.'o Ashkenazy Acquisition Corp.. 150 East 58"' Street. 39°i Floor. New York. NY 10155. Promptly following written request from AAC Member. the Compan\ shall electronicail% deliver to AAC Member copies of any of the Company's books. account; and records. The klana-ing Member shall cause: the Company to comply ith the record retention policy as set forth in the Property Management Agreements. 11,2 Fiscal Year, The Fiscal Fear of the: Company shall be the calendar year. 11.3 .Audit -and Reports, The non -tax books and records of the Company and ane Subsidiary shall be reported on a consolidated basis in accordance Nvith GAAP. The tlana-ince Member shall furnish to each other Member: (Ea) xyithin t�yc:nty (20) days after each month end. the monthly reports described on Exhibit C attached hereto; (b) within ninety (90) days after the end of each Fiscal Year commencing with the year in which the Effective bate occurs. (i) a balance sheet. statement of ea.rnin�ss. statement of cash flows and statement of the .AAC Nlenibers' equity for the Company for such year (audited by the Accountants). and (ii) such additional information as play be set forth on Exhibit C attached hereto: and (c) within one hundred fifty (150) days after the enol of each Fiscal Year, such AAC Member`s Schedule K-1 for such Fiscal Year. (d) as soon as completed. copies of the U.S. federal and applicable state income tax returns of the Company for approval by the other A4embers- and information re-ardint, reportable transactions.. and any IRS Fornl 8886 (Reportable Transaction Disclosure Statement) filed by the Company. for each taxable year in rkhich the Company participates in a "reportable transaction". Once approved by the AAC Member. the Managing Member shall cause the Company to file all applicable returns. The AAC Member shall approve or disapprove the income tax returns Witluil teal (10) clays after delivery thereof (and a failure to respond shall be deemed an approval). The :VAC Member shall cooperate in good faith to resolve any disputes relating to the propriety of such income tax returns such that all returns shall be filed in a timely manner. If the AAC Member shall be unable to resolve ant, such dispute. the AAC Member may elect, bV NAritten notice to the Manapin- Member_ to submit such dispute for resolution by a nationally recoLnized independent accounting firm acceptable to the Managing "umber in the exercise of its reasonable judgment: provided, however, that the accounting�firnl resolvi_n�g such dispute shall not be the principal accounting firm of the AAC ]Member. Tile decision of such accountinZ FIMI with respect to a dispute shall be binding upon the Managing Member. 42 Certain financial reports and schedules described in this Section. 11.3 may be dependent upon information to be provided to the Managing Member from third parties that are not Affiliates of the Managino Member. Therefore, notwithstanding the foregoing time periods. it) the extent the Manatzin4t, -fember derives such information fi•om any such third party, the Manat_=in4.t Member may furnish such reports and schedules to the AAC Member after the expiration of such time periods. but as soon as reasonably practicable, folloxving receipt of all Financial and other information necessary or desirable to prepare such documents. 1 he Mlanar-inZtember shall furnish such financial reports. statements. schedules. narrative summaries and other information described in this Section 11.3 to the AAC Member electronically via email. the Internet and/or another electronic reporting medium or as the Members may agree. The AAC Member shall. at its sole cost and expense, have the right to audit the operations. books and records of the Company and its Subsidiaries and the l�ianagina Member shall, and shall cause its Affiliates to. at AAC Member's sole cost and expense. cooperate with such i,-l.ember and its auditors in connection with such audit. The Managing M14nnber, at the cost and expense of the Company, shall provide annual audited financial statements for a Property including. as supplzmentary schedules, a consolidated balance sheet. cash flow statement and incolna statement Car a Property and a statement of the Capital Account of the AAC Member. If requested. such annual financial statements shall be audited by an auditor and prepared in accordance with generall� accepted accounting principles consistently applied. The Nlanaeinry Nfember also shall deliver to the AAC Member. as an expense of the Company and in a timely planner, any other information reasonably necessary for the AAC M-1.11lber to prepare its tax returns or to obtain appraisals of a Property, and the Managing /ember shall. and shall cause its Affiliates to, at the Company's cost and expense, cooperate with the AAC Member and its accountants and appraisers in connection therc\,vith_ In addition. upon request of the AAC N-lernber from time to time and as a Company expense, the Managing ,Member shall obtain an appraisal of a Property in accordance with .requirements reasonably di:termincd by the -QAC Member (but the I'Vianz-1,6ng Member shall not be required to obtain any such appraisal more than once a year). 11.4 MeetinLs. From time to time. but not less often than quarterly. the Nianaging Mfeniber shall hold general iniornlational nneetings for the AAC Member which may take place by telephone, to provide the AAC Member wv ith the opportunity to reviews and discuss with the Mlanaging Member the Company"s investment activities and performance. Special meetinfgs of the Nfembers may be called by the AAC Member by delivering at least tvyo (2) business Days. prior notice thereof to the Niana�tyin- Member to discuss such matters rc�ciarding Company business as the AAC Member may decide. Meetings shall be held at the principal office of the Company unless all Members agree. The AAC Member may attend any meeting telephonically or throu�11l1 the use of other communications equipnie:nt by means of which all Parsons participating in the meeting can communicate with each other. j 11.5 Tax Allocations. (a) Except as otherwise provided in this Section I I.S. all income. gains. losses and deductions of the Company shall be allocated. for U.S. federal. state and local income tax purposes. annngthe Members in accordance ww-ith the allocation of such income_ ;-wins. losses and deductions between the Members for computing their Capital Accounts. except that if any such allocation for tax purposes is not permitted by the Code or other applicable law, the Company's subsequent income. mains. losses and deductions shall be allocated betwween the Members for tax purposes so as to reflect as nearly as possible the allocation set forth herein in computing their Capital Accounts. (b) Items of Company taxable income. oain. loss and deduction with respect to ane propert} contributed to the Company by a Member shall be allocated between the (.Members in accordance wwith Code Section 704(c). as determined by the )Members. so as to take into account such variation between the adjusted basis of such property to the Company- for U.S. federal income' tax purposes and its Gross Asset Value. If the Gross Asset Value of ally Company asset is adjusted pursuant to paragraphs (b) or l(I-) of the definition of Gross Asset Value, subsequent allocations of iterns orf income. Dain. lass and deduction with respect to such property shall take account of am variation bet -,,ween the adjusted basis of such asset for L.S. federal income tar p[tr-poses and its initial. Gross Asset Value in the same manner as under Code Section 704(c). as determined by the !Plana--inO Member. (c) If either the Managing member or aAC Member is trcatcd for income tax purposes as realizing ordinary income because of receipt of its Company interest (whether under Code Section 81 or arty similar provisions of any law. rule or regulation or anw• other applicable lawn. rule. re�l4rlation or doctrine) and the Company is entitled to any offsetting deduction. the Company -s deduction shall be allocated between the Nfeinbers in such manner as to. as nearly as possible. offset such ordinary income realized by such k4ember. (d) Except as otherwise provided in U.S. Department of Treasury Reg. $1.7()-1-2(f` . notwritlistanding the. provisions ol' Section 3.4 or any other provision of this Section 1 1.5. if there is a net decrease in Company Mininium Gain during any Fiscal Year, each Member shall be specially allocated items of Company income and gain for such year (rind, if necessary. subsequent years) in an amount equal to such :Member's share of the net decrease in Company Min inium Gain as determined under U.S. Department of Treasury Reg. i;1.704 -'(g). Allocations pursuant to the preVious sentence shall be mads: in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be allocated shall be determined in accordance with U.S. Department of Treasury Regie. §§1,704-2(f)(6) and 1.704-2(j)(2). This Section 1 1.5(d) is intended to qualify° as a "minimum grain charleback" wvithin the meaning of U.S. Department of Treasury- peg. §1.704-21(f). w.hich shall be controlling in the event of a conflict betw\cen such Treasury Reg. and this Section 11.5(d'). (e) Except as otherwise provided in U.S. Department of Treasury Reg. §1.704 -?(i)('1), and notww-ithstandim, the provisions of Section 3.4 or any other provision of this Section 11.5 (except Section 11.5(d)). if there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Liability duririLt any Fiscal Year. each Member %,,-ho has a share of the Mernbee Minimum Gain attributable to such Member Nonrecotrrse Liability. 44 determined in accordance Nvith U.S. Department of Treasury Reg. §1.704-2(i)(5). shall be specially allocated items of Company income and gain for such year (and, if necessary. subsequent years) in an amount equal to such Member's share of the net decrease in Member Mininulrn Gain attributable to such !Member Non-recourse Liability as deterrilined in accordance with U.S. Department of Treasury Reg, §1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be allocated shall be determined in accordance with E .S. Department of Treasure Reg. §§1.704-2(i)(4) and 1.704-2(j)(2). This Section 11.5(c) is intended to qualifx- as a "chargeback of partner notlrecourse debt minimum gaain"' within the meallin:t of U.S. Department of Treasure Re,. `1.704-2(i). which shall be controlling in the e,-cnt of a conflict bemee:n such Treasury Re,;. and this Section 1.1.5(e . (f) Any Not -recourse Dcductions for anv- Fiscal Year shall be specially allocated to theleml�ers in accordance x� ith their respective a��gyre�aate Pereentage Interests. Any MenAwer Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Metriber(s) «ho bear(s) the economic risk of loss with respect to the Member Nonrecourse Liability to which such Member ;nonrecourse Deductions are attributable in accordance Nyith U.S. Dc:partnlent of Treasury Regia. ti 1.70=1-2(i). (0 Notwithstandin- any other provision of this ;N reernent. if a Member unexpectedl} receives an adjustment. allocation or distribution described in U.S. Department of TreaSUry Res. § 1.701-1(b)(21(ii)(d)(l). (5) or (6) that oives rise to a ne+aative Capital Account (car that Mould oiye rise- to a negative Capital Account when added to expected adjustments, allocations or distributions of'the saine type) tient exceeds the amount such ~Member is required to restore. or is deemed obli;ated to restore under the penultimate sentences of U.S. Department cif Treasury Re�.g. § 1.70-1-'(,t(1) and l.70=1 -2(i)(5). such \lember sliall be allocated items of income and gain in all amount and planner sufficient to eliminate such deficit balance as quickly as possible.: provided. that the Company's subsequent income. Mains. losses and deductions shall be allocated amona the Members so as to achieve as nearly as possible the results that Would have been achieved i t this Section 11.5(2) had not been in this Agreement, except that no such allocation shall be made that )xould violate the provisions or purposes of U.S. Department of Treasury Rea. §1.704-1(b). (h) In the event any Member has a deficit Capital .-account at the end of any Fiscal Year that is in excess of the sum of (i) the amount (if any) such N-fernber is oblivated to restore to the: Company and (ii) the amount such Member is deemed to be obligated to restore pursuant to U.S. Department of Treasury Reg. §§1.704-1(b)(2)(ii)(c) or the penultimate sentences of U.S. Department of Treasury Re L 51.701-2(�a)(1) and 1.704-2(i)(5). each Such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible... provided. that an allocation pursuant to this Section 11.5(h) shall be made if and only to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided in this Agreement have been tentatively made as if this Section 11.5(h) and Section 11.5(0 were not in this Agreement. (i) The allocations set forth in Sections 1s 1 1.5(d) through 11.5(h are intended to comply lylth Certain regulatory requirements. including the requirements ol' U.S. Department 45 of Treasury Reg. §1.704-1(b) and 1.704-2. and shall be interpreted and applied consistent]\' therewith. 6) For purposes of determining a MernbeCs share of the `-excess rlonrecourse liabilities' of the Company within the nieanul�g, of U.S, Department of Treasury Reg. § 1.752- 3(a)(3)- each Members interest n1 Company profits shall be such Member's Percentaue Interest. 11.6 Tax Matters Partner. (a) The Managing Member is desi-nated the "Tax Matters Partnere (as defined in Code Section 6231). (b) The Managing g ihietnber. in its capacity as "tai matters partner of the Conlpzan�. and the AAC Member agree that the AAC Member will be a "notice partner' (as defined in Code Section 6231(a)(8)) with respect to the Company. The Managing Member,. in its capacity as "tax matters partner*' of the Company (or similar capacity under applicable state or local tali laxq, shall not bind the AAC Member to a settlement agreement for 1ederal. state or local tax purposes without the AAC Member's prior \t-ritten consent. Tlie Nfana-imp Member shall promptly pro\ide the :QAC `\,lenlber %\ith notice of, and with any information the AAC Xlember reasoriabl� req€tests re_arding. any income tax audit or other material tali audit or proceeding_; with respect to the Company or any entity in which the Company o%,\-ils a direct or indirect interest. (c) NotvA1thstandini? an1'thina set forth ill this Azi-eelnent, the Manauinu klertibcr shall. cause the Compan\to make the follo�� ing elections: (i) to adopt the calendar Near as the Company's fiscal \ear (unless othei'N-vise required by codes or regulations), (ii) to adopt the accrual method of accountino and to keep the Company's books and records in accordance with generally accepted acro€rutin- principles (other than Capital Accounts. which shall be maintained in accordance with Section 3.=1 hereof): (iii) if there is a distribution of Company property as described in Section 73=1 of the Cade or if there is a transfer of a Company interest as described in Section 743 of the Code. upon x -ritten req€iest of the AAC Mernber. to elect. pursuant to Scction 75.1 of the Code, to adjust the basis of Company properties: and (iv) to elect to amortize the ortanizational expenses of the Company as permitted by Section 709(b) of the Code. No election shall be made by the Company or any Member to (X) exclude the Company frorn the application of the pro\-isions of subchapter K of chapter 1 of subtitle A of the Code or any similar provisions of applicable state laws_ or (y) treat the Company as an association taxable as a corporation for federal income tax purposes pursuant to Regulations Section 341.7701-3(c). 11.7 Arbitration. Ali\ Member may in accordance A ith this Aureement submit for arbitration the issue of (i) \thether a Cause Event has occurred. (ii) whether any act or omission 46 is a Default Action. or (iii) whether Losses resulted from a Default Action and the amount of such Losses (each, an "Arbitration Matter'); provided, however. such arbitration shall be the exclusive means of determining whether a Cause Event occurred, whether- a Default Action occurred. whether Losses resulted from a Default action and the amount of such Losses. Any matter submitted for arbitration by any Member will be stayed pending the outcome of the arbitration rulinEa. Anv Nicntber desiring to initiate the arbitration provisions of this Section 11.7 may select an independent expert (an '*arbitration Ex ert' ). which shall be subject to the approval of each of the Members. In the event the Nilert hers have not a -reed upon an Arbitration Expert within fi ftoen (1-5) days after the initial selection by the initiating NIernber, the _'arbitration Expert (Nvhich shall be all attorney- with at least ten (10) years of practice (at least five (5) of which must be predorninantly in the area of litigation, partnership anWor corporate law) and who has served as an arbitrator in least fire (j) American ,arbitration :association arbitrations) shall be selected by the \e`� York Citi. office of the American Arbitration Association in accordance with the Contntercial arbitration Mules of the American Arbitration .association. The Arbitration Expert shall make a determination xvith respect to the applicable Arbitration Nlatter, and such determination shall be binding on each Mernbtr. The Arbitration Expert shall enforce the expedited procedures of the Comunearcial Arbitration Rules and Mediation Procedures of the American :lrbitratit,ii Association. The Arbitration Expert's decision shall be rendered in writing. �\ ithirt tuurteen (14) da\ s from the date of the closing of the hearin�u or. if oral hearings Reeve be.cn waived. frons the date of the American .arbitration Association s transmittal of the final statements and proofs to the Arbitration Expert. as set forth in such expedited procedures. The east of the :arbitration Expert (and the cost of the arbitration. if any) shall be; borne by the Compare%. except that each Member shall pay- the costs of its counsel and experts. Notwithstanding" any provision of this Agreement to the contrary, this Section 11.7 shall be construed to the maximum extent possible to comply with the laws of the State of Delaware. including' the Uniform :arbitration Act (10 Del. C. § et seq.) (the "Delaware Arbitration fLket"). It. neAcrtheless. it shall be determined by a court of competent jurisdiction that any provision or k\onling of this Section 11.7, including any Commercial Arbitration Rules or rules of the American Arbitration Association. shall be invalid or unenforceable under the Delaware Arbitration .act. or other applicable lave, such imalidity shall not invalidate all of this Section 11.7. In that case. this Section 11.7shall be construed so as to limit any term or provision so as to snake it valid or enforceable within the requirements of the Delaware .arbitration Act or other applicable lmv. and. in the even such term or provision cannot he so limited. Section 11.7 shall be construed to omit such invalid or unenforceable provision. [Intentionally Omitted) .ARTICLE 12 ARTICLE 13 MISCELLANEOUS 13.1 Amendments. This AUrcemenl may be amended, modified or w -aired only by the written consent of all of the Members. 47 1 3? Successors. Subject to the provisions of Article 8. this Agreement shall inure to the benefit of and be binding upon the Members and their legal representatives. heirs. successors and assigns. 13.; GoverninsL, Law: Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, tyithout reuard to the conflicts of law rules thereof. If it is determined by a court of coMpetCrIt jurisdiction that any provision of this Agreement is invalid under applicable law. such provision shall be ineffective only in such jurisdiction and only to the extent of such prohibition or invalidity. -' ithout invalidatin<e the remainder of this Agreement. 13.4 Notices. :'ell notices. demands and other communications to be given and delivered under- or by reason of provisions under this Agreement shall he in writing and shall be deemed to hen\e been 2i\ C11 on the date when personally delivered. three f31 Business Days after beinL,_> mailed bt first class mail (postage prepaid and return receipt rc(Iuwsted). or transmitted by email (in the case of facsimile or email. if sent before 3:00 p.m. Central Tinie on a Business Day (and otherwise on the ne\t Business Day) and provided that a cope is contemporaneously sent by another method ofcleliaery)_ or on the first Business Dav after beim sent by reputable overnight cnurier ser\ ice (Charades prepaid). in each case to the recipient at the address. or email address set forth in Schedule I or to Stich other address. or email address or to the attention. of such other Person as has been indicated to the l [anagin4g Member in accordance N\ith the provisions of this Section 13.4. A copy- of any notice to the AAC Member shall be sent by like means to Kriss & Fetltl'Stein LLP_ 360 Lexington Avenue. Suite 1200. Ne-�v York. NY 10017 Attn: David Kriss. 13.5 Entire: Agreement. This Aureernent contains the entire agreement among the respective parties x� ith respect to the subject matter hereof and supersedes all prior arrangements or understandings with respect thereto. 13.6 Counte€ -mrts: Facsimile and Other Electronic Transmission. This Agreement. the aoreements referred to l rein. and each other ageement or instrument entered into to connection herelynth or thcreutth or contemplated hereby or thereby. and any amendments hereto or thereto may be exect€ted in. acv number of counterparts. any one of which need not contain the signatures of more than one party. but all of such counterparts together shall constitute one a,reement. and to the extent such agreement or instrument is sinned and delivered b\ means of a facsimile machine or other electronic transmission. will be treated in all manner and respects as an ori4uinal a�sreement or instrument and will be considered to have the same binding legal effect as if it macre the orifi -incl signed version thereof delivered in person. At the request of any party hereto or to any such as'reemcnt or instrument. each party hereto or thereto will re -execute original forms thereof and deliver them to the requesting party-. No party hereto or to any such agreement or instrument will raise the use of a facsimile machine or other electronic transmission to deliver a signature or the fact that any signature or aoreernent or instrument was transmitted or communicated throudh the use of a facsimile machine or other electronic transmission as a defense to the formation or enforceability of a contract and each such party forever waives an)- Such nysuch defense. 1.3.7 Headines. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement, 48 13.8 Other Nfatters of Construction. Unless the context otherwise requires: (a) a term has the meaning assigned to it: (b) "or" is not exclusive: (c) words in the singular include the plural. and words in the plural include the sin�.?ular; (d) provisions apply to successive events and transactions, (e) the words '-herein.'- "hereof' and other words of similar import refer to this Agreement as a \,vhole and not to any particular Article. Section or other subdivision: (f) all references herein to Articles. Sections. Exhibits. paragraphs. subparagraphs and clauses shall be deemed to be references to Articles. Sections. paragraphs. subparagraphs and clauses of. and Exhibits to. this Agreement unless the context shall otherwise require: (g) any pronoun used in this Agreement shall include the correspondin", nlztsculine. feminine or neuter forms; fh) the words .inclt€de.' ..includes' and "includin�c," shall be deemed to be i'ollowed by the phrase "without limitation-: (i) the word `-extent" in the phrase -to the extent" shall mean the degree to which a subject or other thin., extends. and such phrase shall nc)t mean sinipl} "if": 0) references to -`S" or "dollars" shall mean United States dollars; (k) unless otherwise expressly provided herein. anv aureement. instrument or statute defined or referred to herein or in any agreement, instrument or statute that is referred to herein means such agreenient. instrUrrient or statute. together with all attachnhents thereto and documents incorporated therein. as the same are from time to time amended. modified or supplemented.. (including (i) in the case of agreements or instruments, by waiver or consent and (ii) in the case of statutes. by succession of comparable successor statutes.; (1) all references to inv Member shall mean and include such Member and anv Person dull admitted ati a member In the Company in suh utut€on therefor in accordance y�ith this Aureernent. unless the context otherwise requires and (m) in the event an ambiguity Or question of intent or interpretation arises, this Agreement shall be construed to be the product of meaninufui individualized neLotiations between the Members and no presumption or burden of proof shall arise favoring or disfavoring any Member by virtue of the authorship of any of the provisions of this Agreement. 13.x) Further Assurances. Each !Member hereby covenants and agrees on behalf of itself and its successors and assigns. without further consideration.. to prepare, execute, acknowledge. Cile. record. publish and deliver such other information, instruments. documents, tax forms and statements. 13.14 `o Third Partv Beneficiaries. No Person (includitag creditors of the Company) that is not a pLirty hereto shall have any rights or obligations pursuant to this Agreement. The provisions of this ALreemem are intended to benefit the Members and. to the fullest extent permitted by law. shall not be construed as conferring any benefit upon any creditor of the Company or other Person. TO the h€]lest extent permitted by law. no ]Member shall have any duty or obligation to any creditor of the Company to make any contribution to the Company or issue any Capital Call or recall any distribution. In no event shall any provision of this Agreement be enforceable for the benefit of any Person other than the 11'fembers and their respective successors and assigns. 13.11 'game Rif7hts. Each of the Company and the 1AC illember (other than the Managing Member) acknowledges that it has no ownership interest in the name "GGP" or "General Grovvth Properties." and that from and after a sale or other transfer by GGPN pursuant to this Aareement and other event as described elsewhere in this Agreement. neither the Company ynor the Managing Member, or Substitute Member shall usethename ' GGP" or --General Growth Properties" in connection with a Property or otherwise. 49 13.12 Waiver of .)ury Trial. TO THE FULLEST EXTENT PERMITTED BY LAS'. EACH MEMBER. FOR ITSELF AND ON BEHALF OF ITS AFFII.I.-.kTES, HEREBY \VAIVES ITS RIGHT TO TRIAL BY ,JURY IN ANY ACTION. LAWSUIT OR PROCEEDING RELATING TO :ANY DISPUTE ARISrNG UNDER OR IN CONNECTION WITH THIS AGRF:EjMFNT OR ANY TRANSACTION DESCRIBED fN TIIIS AGREEMENT OR DISPUTE BETII'EEN THE PARTIES (INCLUDING DISPUTES WHICI-I ALSO INVOLVE OTHER PERSONS). 13.13 Exclusive Jurisdiction, Except with respect to Arbitration Matters that are the subject of arbitration under Section 11.7. each parte hereto hereby irrevocably (a) submits to the exclusive jurisdiction of any Delaware state or federal court, in any action or proceeding arisinL-T out of or relatinL, to this A-rec:ment, the relations between the \-Members and any smatter, action or transaction described in this Apree€neat. whether in contract. tort or otherwise. (b) agrees that sLrcla courts shall have cxclusicejurisdiction over such actions or proceeding_>s. (c) waives the defense that any SL€CII court is an inconvenient forum to the maintenance and continuation of Such action or proceeding. (d) consents to the service of any and al process to any Such action or proceeding by the mailing of copies (certified mail. return. receipt requested and postage prepaid) of such process to them Pursuant to Section 11.4 and (e) agrees that a final and non -appealable judgment rendered b� a court ol.-corrrpetetat juriscliction ita $ilk such action or proceeding shall be conclusive and niav be enforced in otherjurisdictions by suit Ota the judgment or in any other manner provided by law. In the event that an action or proceeding. is initiated in one of the courts referenced above and is pending. the parties hereto affee, for the convenience of the parties and subject to any limitations on subject matter jurisdiction of the court. to initiate any countercl.iinis or related actions in the same proceeding (as opposed to a separate proceedings in any of the other courts specified above). 13.14 Time of Es encc. Except as provided herein and unless otherw1w agreed bN all Members. t1ine is of the essence of'this Aareemcnt and all covenants and deadlines hereunder. 13.1 S Cumulative Remedies. Except to the: extent expressly stated in this Agreement. f.a) no remedy conferred upon the Company or ari Member pursuant to this Agreement is intended to lie exclusive of anv other remedy a%ailable under this Agreeinent or applicable law and (b) each reniedy shall be cUnRllative and shall be in addition to every other remcd% available under this A4vreement or applicable lav now or in the future. 13.16 Estoppels. After request by a ylember. the other Members shall within ten (10) Business Days furnish the regUestin�� Member with a statement. duty acknowledged and certified. setlin-0 forth (i) a copy of this Agreement and the governing documents of any Subsidiary (collectively. the "Governing Documents.'). and (ii) a statement, to its knowledge. with respect to vyhether the Goyerninyu, Documents hayc been modified, or if modified, giving particulars of such modification. [Signatures on next page] 50 IN WITNESS NVHEREOF. this Limited Liability Company Agreement has been executed and delivered br the Members effective as of the Effective Date. BAYSIDE EQUITIES, LLC. a Delaware GGP NINI.BUS, LP. a Delaware limited limited liability company partnership By: GGP Operating Partnership_ L.P. its general BY: partner 4 Name: Bv: GGP Real Estate Holding H. Inc.. its Title: general partner By Name: Title: G(:P LIMITED PARTNERSHIP. a Delaware limited partnership By: GGP Operating Patmership. I.Y. its general partner By: GGP Real Estate Holding II. Inc.. its general partner By: Authorized Si, -,moor, Sign al ure Pc gge to AIB JF' LLCAgreement SCHEDULE I Members Names. Addresses and Facsimile Numbers Percentage Interest GGP Nimbus, I.P 1 10 N. Wacker Driv=e Chicago. IL 60606 Facsimile No.: 31? -960-5594 GGP Limited Partnership 110 N. Wacker Drive ChicaL,o.IL 60606 Facsimile No.: � 12-960-5591 Bayside Equities LLC c/o Ashkenazy Acquisition Corp. 150 East 58"' Street, 39`" Floor New York. NY 10155 Facsimile No. 2121-213-5713 H,0% 1.0% 49.0% EXHIBIT A FORM OF PROPER'n"VIA`AGENIENT AGREEMENT Exhibit A ACTIVE/88211465,6 EXHIBIT B 2016 ConipanY Budget E\Iliblt B ACTIVE/88211456 6 EXHIBIT C Reportill Executivc Summary (substantially in the form attached hereto) AIR Aging Detailed G:1AP Income Statement Detailed Balance Sheet Property Sales and Occupancy Cost Rent Doll Sunman, Balance Sheet Summary GAAP Income Statement Trial Balance Exhibit C AcrIVEM211465.6 EXHIBIT I) Company's Auditors And Environ.niental Consultants Company's Auditors: Deloitte UP Ernst & Youns: LLP Environmental: Internal General Growth Properties, Inc. staff Exhibit D ACTIVE/38211465.5 BAYSIDE MARKETPLACE (JV) Partnership GGP 011 tsidr f i�uitic;. GGP Cumulus, L Nimbus, LP1C (A-41kol'im 1 %____�_ 150% 49% MB JV LLC TYRC LL Bayside /Marketplace, LLC Bayside Marketplace ('Miami, FL) GROUND LEASE Documents 1' Proposed Amended and Restated MB !V LLC Agreement 2) Proforma Closing Statement Pending City "pre -approval", AAC will contribute $79.9 million to MB JV LLC. AAC will be managing member with respect to Bayside Marketplace, and GGP will be managing member of GGP TYRC LLC. 4 Bayside Marketplace - DRAFT Closing Statement Buyer: Bayside Equities, LLC Seller: GGP Limited Partnership & GGP Nimbus, LP Property: S ayside Marketplace, Miami, FL Closing Date: TBD Suver Seller Debit Credit I Dehit Credit Sales Price Purchase Price $89,800,000.00 $89,800,000.00 Deposit $10,000,000.00 $10,000,000.00 Prorations: Bank Account Distribution (less $7M) Deutsche Bank Interest Additional Expenses: Transfer Fee to City of Miami Partnership Legal Fees (est.) Total Funds Due (From Buyer)/To Seller $147,000.00 ($79,947,000.00) $4,756,043.52 $0.00 $1,796,000-00 $153,000.00 $82,607,043.52 1 of 1 12/12/2016 2:53 PM GOODWIN DRAFT -11130116 AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF MB JV LLC THIS LIMITED LIABILITY COMPANY AGREEMENT OF MB JV LLC (tile "'Company'"), dated as of _, 2016 (the "Effective Date"), between GGP Nimbus. L.P. a Delaware limited partnership ("GGPN"), and Bayside Equities LI.C, a Delaware limited liability company ("AAC Member'"), and any and all other persons and entities that. from time to time, become additional or substituted members of the Company and that subscribe their navies on the signature paces hereto as signatories (each, a "Member" and collectively, the ..�Ternbers"). WHEREAS, the Company was formed on October 27, 2016 pursuant to the Limited Liability Company Act of the State of Delaware (6 Del. C. S 18-101.. et seq.). as amended from time to time (the "Act"), by the filing of a Certificate of formation of the Company (the "Certificate") with the Delaware Secretary of State: on such date; WHEREAS, the Members and GGP Limited Partnership. a Delaware limited partnership ("GGPLP") entered into that certain Limited Liability Company Agreement of the Coinpauly dated as of October 28. 21016 (the `=Original Agreement-) pursuant to the Transaction Agreement (as defined in Article 2 below); WHEREAS, pursuant to the Transaction Agreement, the following actions have occurred: (i) The Members have made their respective Initial Capital Contributions (as defined in Article 2 below) to the Company: (ii) The Members have aorreed upon the terns of (x) certain amendments to the Original Agreement and the amendment and restatement thereof (this "Agreement") and (y) the note and pledge agreement between the AAC Member and GGPN (the "AAC Loan Agreement") with respect to the AAC Loan (defined below); (iii) Concurrently with the Effective Date, GGPN has provided to AAC a loan in the amount of [ ($[)) (the "AAC Loan") which is secured by a pledge of AAC's Interest in the Company; (iv) Concurrently with the Effective Date, AAC has made an additional capital contribution to the Company of [ ($[_]) (the "Additional Capital Contribution"). a portion of which was funded with proceeds from the AAC Loan; (v) Concurrently with the Effective Date, GGPLP has assigned its Interest in the Company to GGPN and is executing this Agreement to acknowled(Te that it has withdrawn as a Member; (vi) The Company has utilized the Additional Capital Contribution to (x) pay off and fully satisfy the loan entered into on October 28. 2016 between the Company and GGPN in the 885570$7. l0 amount of r (y) contribute ( _� ($[__]) to the Company's Subsidiary, TY"RC (as defined in Article 2 below). and caused TYRO to contribute such amount to its Subsidiary, Hoover :Mall Holding L.L.C., for the purpose of the partial repayment of certain of Hoover Mall Holding L.L.C.'s debt obligations; and (z) to pay the City Fee (as defined in Article ? below). and WHEREAS, the Members desire to amend and restate the Original Agreement in its entirety in order to restate the rights and obligations of the parties on the terms and conditions set forth herein. NOW, THEREFORE.. in consideration of the mutual covenants expressed herein. the parties hereby agree as follows: ARTICLE I GENERAL PROVISIONS 1.1 Ors.anization of the Company: Term. The Members hereby agree to continue as members of the Company and to enter into this Atgreement under the provisions of the Act. This Agreement constitutes the limited liability company agreement of the Company and sets forth the agreement of the Members as to their relative rights and obligations as well as the manner in which the Members have agreed to operate the Company. The term of the Company commenced upon the filin44 of the Certificate (the date of such filing is referred to herein as the date of "formation" of the Company) and shall continue until dissolution of the Company in accordance with the provisions of Article 10. To the extent permitted by applicable law, the provisions of this Agreement shall override the pror isions of the Act in the event of any inconsistency or contradiction between them. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate in accordance with the Act. 1.2 Name. The name of the Company shall be "MB JV LLC" or such other name or names as the Members may jointly determine from time to time pursuant to Section 6.2. 1. i Admission cif Mcmbers. GGPN and AAC hereby continue as Members and shall be shown as such on the books and records of the Company. 1.4 Purpose. Subject to the terms of this Agreement. the purposes of the Company are as follows. (a) owning. managing. maintaining, operating, financing- leasing, improving. selling. pledging. mortgaging or otherwise disposing of the Properties directly or through one or more Subsidiaries. and (b) engaging in such other activities incidental or ancillary thereto as the Members deem necessary, appropriate or desirable. 1.5 Principal Office. The Manager shall maintain a principal office at c/o General Gro«1h Properties. Inc., 110 N. Wacker Dr., Chicago. Illinois 60606, or at such other place or places as may be designated by the Manager from time to time with the Members' prior approval. W M8i.4 ARTICLE 2 DEFINITIONS, DETERMINATIONS I Definitions. Capitalized terms used in this Agreement shall have the meanings set forth below or as otherwise specified herein. "AAC Adjusted Interest Value" has the meaning set forth in Section 9.1. AAC Appraiser" has the meaning set forth in Section 9.5(a), AAC Loan" has the meaning set forth in the Recitals. Z� AAC Loan Agreement" has the meaning set forth in the Recitals. "AAC Managing Member" means., prior to a removal pursuant to Section 11.3. the AAC Member, in its capacity as managing member of the Company with respect to the Bayside p managing - Investment, anti, after rernoval pursuant to Section 11.3. any, successor managing member of the Company elected pursuant to Section 11.1 "AAC Member" has the nicanings set forth in the Preamble. AAC Option WindoNv has the meaning set forth in Section U. -Accountants" means a firm of independent certified public accountants ofrecognized national standing, approved by the Members in accordance with Section 6.2. "Act" has the meaning set forth in the Recitals. —Additional Capital Contribution" has the meaning set forth in the Recitals. '.Affiliate" means.,,vith respect to any Person. any other Per -,son controlling. controlled by or under con -anon control with such Person. Notwithstanding anything to the contrary herein, it is agreed that none of the Members or any of their respect.]N-e Affiliates shall be treated as Affiliates of the Company or any Subsidiaries. `Aff fliate Contract" means a contract or other agreement between the Company or any of its Subsidiaries, on the one hand, and any Member or any of its Affiliates, on the other hand, "Affiliated I REIT" means any Entity that directly or indirectly owns an Equity Interest in the Company that has elected or elects to maintain its status as a REIT or that informs by delivery of written notice, at any time, to the Manager that it intends to elect REIT status. "Agreement" u " has the meaning set forth in the Recitals. t. Z1_ "Applicable Managing Member-. indiiidually or "Applicable Managing Members", collectively., means prior to a removal pursuant to " Section I L3, the AAC Managing, Member or TYRC Managing Member, as applicable. and, after a removal pursuant to Section 11.3- any successor managing member of the Company elected pursuant to Section 113. 98i;7W97'9 'Approved Q`vner" means (a) with respect to GGPN. an% Entity that is 98% directly or indirectly owned by General Grow-th Properties. Inc. and (b) with respect to any other Person, a Person that is 100% directly or indirectly owned by such other Person: provided. however. that in detcrmining the percenta4*e ownership of an Entity, any class of preferred or similar Equity Interests issued in connection with complying with minimum shareholder or owner requirements applicable to REITs shall be ignored. -Arbitration Expert" has the meaning set forth in Section 12.8. "Arbitration ]Matter' has the meaning set forth in Section 12.8. "Availahle Proceeds" means_ with respect to any period of time. all Cash Flow for such period of time , as reduced by increases in Reserves and increased by reductions in Reserves. ``Banl:ru{ttcy''" means, with respect to any Person. if (a) such Person makes an assianment for the benefit of creditors. (b) such Person files a voluntary petition in bankruptcy. (c) such Person is adjudged bankrupt or insolvent, or has entered against it an order for relief. in any bankruptcy or insolvency proceeding?. (d) such Person files a petition or answer seeking 1'()i - i any reor�oanication.. arrangement, composition. readjustment. liquidation or similar relief under any statute. Iaw or regulation, (e) such Person files an answer or other pleading admitting or l-ailin, to contest the material alle-ations of a petition filed against it in any proceeding of this nature. (f) such Person seeks, cons6rits to or acquiesces in the appointment of a trustee, receiVCr or liquidator of such Person or of all or any substantial part of its properties, or (g) ninety (90) days after the commencernem of any proceedine a0ainst such Person seeking reorganization. arrangement. composition. readjustment, liquidation or similar relief under any statute. law or regulation. the proceeding has not been dismissed, or within ninety (90) days after the appointment Without such Person's consent or acquiescence of a trustee. receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed. or within ninety (90) days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of "Bankruptcy- is intended to replace and shall supersede and replace the definition of "Bankruptcy" set forth in Sections 18-101(1) and 18-304 of the Act. "Bankruptcy Code" means the United States Bankruptcy Code l 1.1 U.S.C. §§ 101, et seq. ..Base Rate" ineans. on any date, a variable rate per annum equal to the rate of interest inose recently- published by The Wall Street Journal as the "prince rate". at large U.S. money center banks. -Bayside" means Bayside Marketplace, LLC. a Delaware limited liability company that is a Subsidiary. which owns the Bayside Property. "Bayside Capital Loan" has the meaning set forth in Section 3.2(a). "Bayside Final Net Property Value" has the meaning set forth in Section 9.6(c)(i). "Bayside Gross Property Value- has the meaning set forth in Section 9.5. 4 "Ba`'side Initial Net Property Value" has the meaning set forth in Section 9.6(c)(iv). "Bayside Investment- means the Company's 100% ownership interest in Bayside. "Bayside Properly". the land located in Miami, Florida and commonly known as Bayfront Park and leased by Bayside Marketplace under that certain Ground Lease and the shopping center located thereon commonly known as Bayside Marketplace. -Bayside Property- Bud -et" has the meaning set forth in Section 5.1(a). -Bayside Property Manager"' means the Property Manager for the Bayside Property. The initial Property Manager for the Bayside Property shall be the AAC Member or an Affiliate be of the AAC Memr. " Bayside Revised Gross Property= Value" has the meaning set forth in Section 9.5(c). "Businem Day" means any day on which commercial banks are open for business in Chicaa,o. Illinois. other than Saturday and Sunday. Any event the scheduled occurrence of which would fall on a dax- that is not a Business Day shall be deferred until the immediately succeeding day that is a Business Day. ..Call Option" has the meaning set forth in Section 9.1. "C��pit�►l Account" has the meaning set forth in Section 3.3. '_Capital Contribution" means, with respect to any Member, the aggregate amount of money and the fair value of anti non-cash capital contributions made to the Company, which, as of the date of this Agreement, include the Initial Capital Contributions and the Additional Capital Contribution. Capital Contributions shall not include any Capital Loans made by a Member under Section -3 I "Capital Loan", rndn•idually. and "Capital Loans". collectively, means, as applicable (i) any TYRC Capital Loan or Bayside Capital Loan and (ii) all TYRC Capital Loans and Bayside Capital Loans. "Capital Loan Notice- has the meaning set Forth in Section 3.2(a). "Capital Loan Rate" shall mean 6.0% per annum. "Cash Flow" means. for any period for which Cash Flow is beim calculated, gross cash receipts received by the Company and any Subsidiary during such period (including proceeds from financings and capital events). net of expenditures paid by the Company and any Subsidiay during such period. "Cause Event" means a determination by an arbitrator pursuant to a binding arbitration in accordance with Section 12.$ that any of the following has occurred: 884570S7.4 (a) any Bankruptcy by the Manager or Applicable Managing Member which is not dismissed -v ithin ninety (90) days; L (1}) a direct or indirect Transfer of all or part of a Manager's or Applicable Managing Member's Interest that is not permitted under Article 8: (c) the Manager or Applicable Managing Member has committed fraud. gross neoligence or willltil malfeasance in the performance of its obli�aations under this Agreement that, in any such case, has a material adverse effect with respect to the financial condition or performance of the Company or its Subsidiaries:. (d) the Mana<ger has willfully failed to rake required Distributions pursuant to Section 4.1 after notice from the AAC Member; provided. that in the case of clause N (other than an intentional breach of the transfer restrictions set forth in Section 8.1). clause c) or clause d above, the Member that is not an Affiliate of the Manager or Applicable ManawinE.: Member has notified the Manager of the event described in such clause (b). (c) or (d) above, and, if such event is capable of being cured, the Nlana{ger or Appl icahle Managin.t Member, as applicable. has not cured the cause or grounds for such event ` ithin thirty (i0) days of such notice; provided, that if'any such event is capable of beim= cured but cannot Nvith diliLTTent efforts be cured within such thirty- (30) day period, but the NIanager or Applicable Managing Member. as applicable, commences such cure within such thirty* (30) day period. thereafter diligently and continuously prosecutes such cure, and such default is reasonably susceptible to beim cured within one hundred fifty (150) days, such thirty (30) day period shall be extended for the time reasonably required to effect such cure, but in no event for more than an additional one hundred twenty (120) days (i.e. 150 day's total); provided. further, that to the extent the Manager or Applicable ManaginU Member. as applicable. cures any eia'cunzstance that gives rise to a Cause Event. then such occurrence shall not constitute a Cause Event. For avoidance of doubt.. if (x) the occurrence of any event described in clause c or above is caused by an employee or an officer of the Manager or Applicable Managing MMmber•, as applicab] , or an Affiliate thereof. (y) the employment of said individual by such Person which has any relationship, contractual or otherwise. to the Company or a Property. is terminated, or such individual is otherwise removed from all responsibilities regarding the Company or a Property, within the cure periods set forth above. and (z) if the Company or any. 4lember has suffered a monetary loss or damage as a result thereof. the %4anagrer or Applicable Managin4, Member. as applicable. reimburses such Person for any such monetary loss or damage suffered or incurred by such Person Nvithin the cure periods set forth above, then such termination or removal, and reimbursement, shall constitute a cure for purposes of this paragraph. For avoidance of doubt, if a Member initiates an arbitration to determine whether or not a trigger event has occurred under clause (b), clause c or clause.(d) above. the cure periods described herein shall not commence until after the conclusion of such arbitration proceeding. "Certificate" has the meaning set forth in the Recitals. "City Fee" means that certain transfer fee that may be parable to the City of Miami upon consummation of the Call Option or the Put Option. 6 $K;;7UR7.9 Code" means the U.S. Internal Revenue Code of 1986. as amended from time to tione. "Company" has the meaning set forth in the Preamble. -Company Entity" or "Company Entities' means. individually or collectively. as applicable. the Company and any Subsidiary and each of their respective Affiliates. "Company Minimum Gain" has the meaning of"partnership mininnum gain" set forth in 'rreas. Reg. § 1.704-2(b)(2), and the amount of Company Minimum Gain, as well as any net increase or decrease in Company Minimum Gain, for a Fiscal Year or other period shall be determined in accordance with the rules of Treas. Reg. ti 1.70=1-'_'(d). "Company Percentage Interests means the Members` respective percentage ownership interest in the Company as follows: (i) AAC Member - 49.00% and (ii) GGPN - 51.00%, Confidential Information'' means (a) all information, materials and data relating to any Company Entity or any i•lember or any Affiliate thereof that are not generally knokvri to or available for use by the public (Including this Agreement, information and materials relating to products or services. pricing structures (including historical or projected pricing. cost. sales and profitability of each product or service offered). accounting and business methods. financial data (including historical performance data. investment returns, valuations. financial statements or other information concerning historical or projected financial condition. results of operations or cash flows). inventions, devices, new developments, methods and processes. prospective investments. customers, clients and investors. customer, client and investor lists. copyrightable works and all technology. trade secrets and other proprietary information), and (b) all other information, inalerials and data, if any. which any Company Entity or any Member or Affiliate thereof is required by law or agreement to keep confidential. ..Conflicted Member" shall mean. (i) with respect to an. Affiliate Contract to which the Manager or any of its Affiliates is a party. the Manager. and (ii) with respect to an Affiliate: Contract to "Ouch the AAC Member or any of its Affiliates is a party. the AAC Member. "Corporate Documentation" has the meanin€- set forth in Section 12.1 '`Default Action" shall have the meanin-set forth in Section 6.5(a). "Del.a,ware Arbitration Act' has the meaning set forth in Section 12.8. `Depreciaticfn ` means, for each taxable v ear or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for the year or other period. except that if the Gross Asset Value of an asset differs from its adjusted. basis for U.S. federal income tax purposes at the beginning of the year or other period. Depreciation will be an amount which bears the same ratio to the beginning Gross Asset Value as the U.S. federal income tax depreciation, amortization or other cost recovery deduction for the year or other period bears to the beginning adjusted tax basis. provided that if the U.S. federal income tax depreciation, amortization. or other cost recovery deduction for the year or other period is zero. Depreciation will be determined with reference to the beginning Gross Asset Value usingany reasonable method selected by the Manager, 7 '-Designated Representati-e'* means. with respect to a Member. the representative desig-nate:d by such Member from time to time. The Designated Representative ofGGPN shall be a Person �vho holds the position of Vice President or higher at General GroA-th Properties. Inc.. and the Designated Representative of the AAC Member shall be a Person who holds the position of Vice -President or higher at Asltl:enazN: Acquisition Corp. The initial Designated Representative of GGPN shall be Shobi Khan and the initial Designated Representative of the AAC Member shall be Michael Alpert. "Designation Period" has the meaning set forth in Section 9.6(a) :.Disclosure Recipient'" means, with respect to any Member. such Person's Affiliates, and such Person's and such Affiliates' respective directors, officers, employees. representatives, agents, investors. attorneys or other financial or professional advisors, prospective purchasers or othLr prospective transferees (directly or indirectly) of all or any portion of such Member's Interest and any prospective lender or other source ofdebt or equity financing to such Member or any of such Member's Affiliates. Nvith respect to the Company. "Disputed Propert-s=' has the meaning set forth in Section 9.5.. "Disputed Property" Value" has the meaning set forth in Section 9.5. "Erfecti. e Date' has the meaninn set forth in the Preamble. "Etttin"' means a partnership (general. limited or limited liability). a corporation. a limited liability company, an association, a joint stock company. a trust. a joint venture. an unincorporated organization. or a governmental.. quasi -governmental. judicial or regulatory entity or an)- department. agency or political subdivision thereof. "EquitZ Interest'" means (a) in the case of a corporation, shares of stock. (b) in the case of a general or limited partnership, partnership interests. (c) in the case of a limited liability company. membership units/interests and (d) in the case of any other Entity.. the comparable interests therein. "ERISA" means the U.S. Employee Retirement Income Security Act of 1974. as amended. "First Notice' has the rneanin<o set forth in Section 6.6. .:Fiscal Year' means each fiscal year of the Company, which shall be the calendar year. "GAAP means U.S. generally accepted accounting principles, consistently applied. "GGP Adjusted Interest Value" has the meaning set forth in Section 9.1. "GGP Appraiser" has the meaning set forth in Section 9.5(a). GGP Option Window" has the meanintio set forth in Section 9.2. 8 W5708` 9 "GGPLP" has the meatninas set forth in the Recitals. ..GGPN- has the meaning scat forth in the Preamble. "Governing Documents" has the meaning set forth in Section 13.16. "Gross Asset Value" means, with respect to any asset. the asset's adjusted basis for U.S. federal income tali purposes. except as follows: (a) the initial Gross Asset Value of any asset contributed by a Member to the Company shall be the 4^ross fair market value of such asset. as determined by the Manager: (b) the Gross Asset Value of all property of the Company shall be adjusted to equal the respective gross fair market values of such property, as determined by the Manager in accordance with Treas. Reg. § 1. 704-1 (b)(2)(iv). as of the following times: (i) the acquisition of additional interests in the Company by any new or existing Member in exchange For more than a de mints nis Capital Contribution; (ii) the distribution by the Company to a Member of more than a de minimis amount of property of the Company as consideration for an interest in the Company (iii) the liquidation of the Company and (iv) the exercise of a noncompensatory option within the niea.ning of Treas. Regi. § 1.704-l(b)(2)(iv)(f)(5): provided, that adjustments pursuant to clauses (r) and (ii) above shall be made onl% if the Mana,-,er determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members; (c) the Gross Asset Value of any property of the Company distributed to any lember shall be adjusted to equal the gross fair market value of such property on the date of distribution as determined by the Nlanager. and (d) the Gross Asset Values of assets of the Company shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Sections 734(b) or 743(b). but arrly to the ertent that such adjustments are taken into account in determining Capital Accounts pursuant to Treas Rea. 51.704-1(b)(2)(iv)(m): provided, that Gross Asset Values shall not be adjusted pursuant to this paragraph (d) to the extent the Manager reasonably determines that an adjustment pursuant to paragraph (b) hereof is necessary or appropriate Ili connection with a transaction that would otherwise result in an adjustment pursuant to this paragraph (d). If the Gross Asset Value of wi asset has been determined or adjusted pursuant to paragraphs (a). (b) or L of this definition. such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes Ofconnputing profits and losses. "Ground Lease" shall mean" collectively" (a) that certain Amended and Restated Lease Agreement dated October 15. 1985, between the Cita. as landlord, and Bayside. as tenant" as evidenced by Memorandum of Lease dated October 15, 1983 and recorded on. October 29, 1985 under Clerk's Pile Number 85R-337869 in the Public Records of Dade County. Florida (the "Public Records"). as modified by that certain First Amendment to Amended and Restated Lease Agreement dated August 19, 1986. as further modified by that certain Second Amendment to Amended and Restated Lease Agreement dated November 24. 1987 and Memorandum of 9 88557087.9 Modification of Lease dated Novennber ?4, 1987 and recorded on December 1, 1987. under Clerk's File lumber 87R-450816 in the Public Records. as further modified by that certain Third Amendment to Amended and Restated Lease Agreement dated as of April 15,~1993, as further amended by Fourth Amendment to Amended and Restated Lease Agreement (Retail Parcel) dated September 24. 2014. and also modified by that certain Tri -Parte Aueement regarding Port Boulevard Funon�- the City, Bayside and i1�Ietropolitan Dade County dated .luny 19. 1988 and recorded under Clerk's File Number R88-363062 in the Public Records. as amended by Agreement dated December 8. 1997 and further amended by Second Amendment to Tri -Party Agreement dated December 29, 2003 and recorded on February 20. 2004 under Clerk's file Dumber 2004R-01 16874 in the Public Records (the .'Tri -Party- Agreement) and as further modified by that certain Release and Settlement Atvret nment dated December 3Q. 2008 (the "Settlement Agreement' and togther % ith the Tri -Party Agreement and all of the lease and nnemoranda of lease documents listed in this clause (a), collectively, the --Retail Parcel Lease-') and (b) that certain Lease Agreement dated January 14. 1985 bervveen the City of Miami and Bayside. as evidenced by Memorandum of Lease dated October 17. 1985 and recorded on November 4, 1985 under Clerk's .File Number 85R-3144459 of the Public Records, and modified by that certain First Amendment of Agreement of Lease dated October 17. 1985. and as further modified by that certain Second Amendment to Bayside Parking Garaue Lease Agreement dated September 13, 1988, as further Modified by that certain Memorandum of Modification of Lease dated September 18. 1988 and recorded on October 6.. 1988 in under Clerk's File Number 88R- 363063 of the Public Records. as further modified by that certain Third Amendment to Bayside Parking Gara-e Lease Agreement dated April 15. 1993. as Norther amended by Fourth Amendment to Bayside Parking Garaue Lease Agreement (Garage Parcel) dated September 24. 2014 and as further modified by the Tri -Party Aoreernent and the Settlement Agreement (collectively. the "Parking Garage Lease"). .:imputed Underpayment Amount" has the Meaning set forth in Section 6.5(a). "Indemnified Party,, has the meaning set forth in Section 6.5(a). "Initial Capital Contributions- has the meaning set forth in Section 3.1(b). tN "interest" means. with respect to any Member at any time. the interest of such Member in the CocnpWIV at such time. including the right of such Member to any and all benefits to which such Member may be entitled as provided in this Agreement, together with the obligations of such Member to comply with all the terns and provisions of this Agreement. '-Investment Advisers ,het" means the U.S. Investment Advisers Act of 1940. as amended, and the rules and regulations promulgated thereunder. "Investment Company- Act" means the U.S. Investment Company Act of 1940, as amended. and the rules and regulations promulgated thereunder. "'Lease" means any lease or other occupancy a-reement and amendments to such lease or other occupancy agreement with respect to a Property. ''Lending Member- has the meaning set forth in Section 3.2(e). 10 "Losses" has the meaning set forth in Section 6.5(b)• "'Major Decision`- has the meaning set forth in Section 6.2. ".major Decision Notice"' means any written notice issued by the Applicable Managing* ]~Member to the other Members in which such Applicable Managing Member proposes that the Company or a Subsidiary make, undertake or approves a Major Decision with respect to its Respective Property. "Material Agreement"' has the meaning set forth in Section 6.2(p). -Members'" means the Persons listed on Schedule I as members. in their capacity as members of the Company.. and each Person who is admitted to the Company as a substitute Member pursuant to Section 5.1, in its capacity as member of the Compan}. in each case (including in the case of a Person listed on Schedule I) for so long as such Person continues to be a member hereunder. "illanager'� means- prior to a removal pursuant to Section 11.3. GGPN, in its capacity as rnanag�cr of the: Company. and. after a removal pursuant to Section 1 1.3. any successor manager of tile Company elected pursuant to Section 11.3. "Member Minimum Gain" has the meaning of"partnership minimum gain' set forth in Treas. Ret). ti 1.70.1-2(b)(2). and the Grnloun.t of Member l linimunt Gain, as well as any net increase or decrease w Member y-Iinimum Gain. for a fiscal year or other period shall be determined in accordance t. ith the rules of Treas. Reg. § 1.704-2(d). "Member Nonrecourse Deductions" has the meaning of partner nonrecourse deductions" set forth in Treas. Rea. is 1.704-2(i ). and the amount of Member Nonrecourse Deductions vvith respect to a Member Nonrecourse Liability for a fiscal year or other period steal I be determined in accordance with the rules of Treas. Reg. § 1.704-2(i)(2). "Member Nonrecourse Liability has the meaning- of -Panner nonrecourse liabilitN" set forth in Treas. Reg. § 1.704-2(b)(4). " Mutual Appraiser— has the meaning set forth in Section 9.5(a). -'Negotiation Period" has the nneanine set forth in Section 9.5. .'tion -Controllable Items" means the minimum amount of funds needed to (a) pay and perform when due all of the obligations of the Company or a Subsidiary under any mortgage loan secured in whole or in part by a Property or any portion thereof. any instrument or agreement encumbering title to a Property and affecting its operation and other documents to which the Company or Subsidiary is or shall be a party or by which it or its assets are bound and which have been entered into prior hereto or in accordance with the terms hereof, (b) pay when due real estate and other taxes. utilit) charges and insurance premiums for the Company or Subsidiary or any Company or Subsidiary assets. (c) comply with any legaI requirement now or hereafter in force which shall be applicable to all or any part of the Company or Subsidiary or any Company or Subsidiary assets (including the making of capital expenditures required for W4:7087 9 such compliance). (d) pay undisputed amounts to be paid for indemnity pursuant to and subject to the terms of Section 6.5. including for advancement of expenses. and (e) pay the cost of reasonable actions taken in direct response to unanticipated emergency situations at a Property to mitioatt the imminent threat of material property damage, personal injury or death. ..Nonrecourse Deductions" has the meaning set forth in Treas. Reg. §§ 1.704-2(b)(1) and 1.701-2(c). "Nonrecourse Liability" has the rmcaning set forth in Treas. Reg. §§ 1.70=1-2(;b)(3) and 752-l(a)(2). '"OFAC" has the meaning set forth in Section 10.11. "Original A;reernent'" has the meaning set forth in the Recitals. "Percentage Interest" means, with respect to each Member, the percentage interest set forth opposite the name of such \-lember on Schedule 1. "Person" means an indiN•idual or Entity. "Plan Assets" means "plan assets`' as defined in the Plan Asset Regulation. ..Plan Asset Regulation" means the U.S. Department of I.,abor regulation found at 29 C.F'.R. §2510.3-101. as modified by Section 3(4-) of ERISA. 'Property-". individuallV. and -'Properties". collectively. means, as applicable (i) the Bayside Property and (ii) the TYRO Properties. "Property Budget" has the meaning set forth in Section 5.1 a). Property Level Report- has the meaning set forth in Section 12.1. "Property Management Agreement- means a property management and leasing agreement by and between the applicable Property Manager and the Company, pursuant to which such Property Manager shall provide certain property management and leasing services to the Company or a Subsidiary with respect to a Propeily. `-Property Manager" means one or more Persons that serve as the "property manager'' under a Property Management Agreement, as selected in accordance with this Agreement. "Property Values Adjustment" has the meaning set forth in Section 9.6(b). "Put Option'" has the meaninc, set forth in Section 9.2. '-Put/Call Closing"' has the mean ng set forth in Section 9.8. '`Put/Call Closing Date" has the meaninc,set forth in Section 9.8. "'Qualified Appraiser' has the meaning set forth in Section -9.5(a). "Reimbursing Member" has the meaning set forth in Section $.5(a). "REIT" means real estate investment trust pursuant to Sections 856 through and includiriE 860 of the Code. "Related Persons" has the meaning set forth in Section 7?. "Removal Notice" has the meaning set forth in Section 11.3(a). Rema► eel Managing Member" has the meaning set forth in Section 11.3(a). "Rcnroying Member" has the meaning: set Forth in Section 11.3(a). "Renuyatinn tVork" has the meanin`o set forth and more fLill%- described in the Ground Lease. "Reser►•es" rneans amounts required for future working capital needs. operating expenses. contingent obligations and other purposes. of the Company and its Subsidiaries, inciudin�iz. v ithout limitation. the $7,000.000 reserve fund with respect to the Bayside Property. N4 hich. as of the E ffective Date. has been reduced to S -'Respective" means. as applicable. (i) of or relating to the AAC Manauiin« Member and'or its interests in Ba) side and.'or the Bayside Property or (ii) of or relating, to GGPN and its intcrests in "1 `r'RC and'or the TYRC Properties. "Riverchase means as the contest requires (i) the property known as Riverchase Galleria or (ii) indiwidual1v or collectively" Riverchase Land Acquisition LLC and/or Hoover Mall Holding L.L.C. "..Riverchase Final Net l'ropertN Value" has the meaning set forth in Section 9.6(c)(ii). --Riverchase Initial Net Property- Value" has the meaning set forth in Section 9.6(c)(i\ ). "Second Notice" has the meaning set forth in Section 6.6. ..Securities Act'' means the U.S. Securities Act of 1933, as amended. "Subsidiary" means. with respect to the Company. any Entity in which the Company (i) directly or indirectly holds at least a majority of the Equity Interest or (ii) directly or indirectly holds a controlling voting interest. As of the Effective Date, the Company's Subsidiaries are as follows: (i) Bayside and (ii) TYRO and its subsidiaries. (x) Hoover Mall Holding L.L..C.. (y) Riverchase Land Acquisition, LLC, and (z) Tysons Galleria Anchor Acquisition, LLC. The Members acknowledge that even thouoh the Third Amended and Restated Limited Liability Company Agreement of Bayside has not been amended. the Company is its sole member and all references to the Members beim' members of Bayside shall not be operative. "Third Appraiser" has the meaning set forth in Section 9.5(b)(ii 'Transaction Agreement"' means that certain Transaction Agreement dated as of October 28. 2016 by and among the Members. "Transfer" has the meaning set forth in Section 8.1(a). "Tress. Reg." means the final and temporary income: tax reoulations promulgated under the Code. as such regulations may be amended from tinie to time (including corresponding provisions of succeeding regulations). `True -Up Cunsideration'- has the meaning set forth in Section 9.7. "TRS" has the meaning set forth in Section 6.4fa)(iii). "TYRC"' means GGP TYRC LLC. a Delaware limited liability company and a Subsidiary. which indirectly owns the TYRC Properties. "TYRC Capital Loan" has the meaning set forth in Section 3.2(a). "TYRC Gross Property Value" has the meaning set forth in Section 9.7. "TYRC Investment- means the Company's 100% ownership interest in TYRC. "TYRC Managing Member- means. prior to a removal pursuant to Section 11.3. GGPN. in its capacity as manapno member of the Company with respect to the TYRC Investment. and, after a removal pursuant to Section 1 1.3, any successor managing member of the Company elected pursuant to Sectio« 11.3. "TYRC Property", individually, and "TYRC Properties collectively, means. as applicable (i) Riverchase and (ii) Tysons. " TN'RC Property Budget" has the meaning set forth in Section 5.1(a). "TY'RC Property- ]~Tanager" means the Property Mana<aer for the TYRC Properties. The initial TYRC Property- Manager shall be GGPN or an Affiliate of GGPN. "TYRC Rc� ised Grass Property Value" has the meaning set forth in Section 9.5(c). "Tysons" means as the context requires (i) the property knmNii as Tysons Galleria or (ii) Tysons Galleria Anchor Acquisition, LLC. "Tysons Final Net Property Value" has the meaning set forth in Section 9.6(c)(ii). '-Tysons Initial Net Property Value'" has the meaning set forth in Section 9.6(c)(iv). *-United States" or "U.S." means the United States of.America. its territories and possessions. any State of the United States of America and the District of Columbia. "Valuation Date- has the meaning set forth in Section 95. 14 98i,7087.9 -Withholding Payment" has the meaning set forth in Section 6.5(a). ARTICLE 3 CAPITAL ACCOUNTS: CAPITAL CONTRIBUTIONS: CAPITAL. LOANIS 3.I Initial Capital Accounts. Capital Contributions. (a) As of the Effective Date, the Capital Account of each Member shall be as set forth in Schedule I hereto. (b) Except for (i) the previous contributions by the Members to the Company pursuant to the Transaction Agreement of (i) their respective membership interests in Bayside: (ii) the following initial Capital Contributions: GGPN: $10,400,000 (inclusive of $200,000 previously contributed by GGPLP) and AAC Member: $10,000.000 (collectively. the "Initial Capital Contributions"), and (iii) the Additional Capital Contribution made concurrently here4vith by the AAC Member, the Members shall not be oblinated to make Capital Contributions to the Company. 4 3.2 CapitalI.oans. (a) TYRC Loans. Any= Member may. at any time or from time to tithe, elect to lend to the Company (i) any amounts required to be paid for Non -Control lable Items «ith respect to a TYRC Property and.W (ii) any amounts required for capital expenditures with respect to a TYRC Property.. including (x) any operating or capital expenditure included in a TYRO Property Budget that mai• be funded in accordance with Section S. i c hereof and (y) any capital expenditure in connection with a capital project or -Material Agreement with respect to a TYRC Property that has not rcceie ed the unanimous approval of all of the Members in accordance with Section 6.2(p) hereof (each a "TYRC Capital Loan''). (b) Bayside Loans. Any Member tnay. at anv time or from time to time, elect to lend to the Company (i) any amounts required to be paid for Non -Controllable Items with respect to the Bayside Property andr'or (ii) any' amounts required for capital expenditures with respect to the Bayside Property-, including (x) any operating or capital expenditure included in a Bayside Property Budget that may be funded in accordance: with Section 5.1(c) hereof. (y) any capital expenditure in connection with a capital project or Material Agreement with respect to the Bayside: Property that has not received the unanimous approval of all of the Members in accordance �yith Section 6 2(r) hereof and'or (z) any amounts committed to be spent by the Company in connection with the Renovation Fork (each a "Bayside Capital Loan"). (c) Notice; Application of Proceeds. A Member's election to make a Capital Loan in accordance with Sections 3.21a) and (b) shall be evidenced by delivery of a written notice from the such Member to all other Members, the Manager and the applicable Property Manager (a "Capital Loan )notice"). Each Member (a "Lending Member") shall have the: right to fluid its pro rata share of such Capital Loan. A Member shall be deemed to have declined to make a Capital Loan if such Member fails to respond within ten (10) Business Days after receipt of a Capital Loan Notice. The Manager shall cause the Company to apply the proceeds of any such Capital Loan in accordance with Sections 3?(b). 1 xx,i�uxr.0 (d) Capital Loan Terms. Each Capital Loan shall bear interest at a rate equal to the Capital Loan Rate and be for a term of ten (10) years. Interest on a Capital Loan shall accrue on a daily basis and compound on an annual basis. Interest shall accrue and be payable. together with principal. upon the earlier of maturity or the repayment or satisfaction of the Capital Loans in accordance with Section 4.2. Each Applicable Managing Member shall be entitled to structure the Capital Loan with respect to its Respective Property(s). subiect to Section 6.4. in a manner it deems appropriate, including. -without limitation. by making the Capital Loan directly to (or in) a Subsidiary of the Company: provided that the economic terms and substantive ri dhts of such Member, the other Members and the. Company or its Subsidiary pursuant to anv such alternative structure shall be the same as if such Member had made a Capital Loan on the terms set forth in this Section 2(c). TY'RC Capital Loans shall be non- recourse and secured solcly by a pledge of a security interest in the TYRC Investment. Bayside Capital Loans shall be nein-recourse and secured solely by a pledge of a security interest in the Bayside Investment. Each Capital Loma shall be substantially in the form of the AAC Loan Agreement attached hereto as Exhibit A. (e) No Effect on Capital Accounts. The Capital Account of any Lending Member shall not be credited lvith the amount of any Capital Loan. The repayment of a Capital Loan andpayment or reimbursement of any interest or expenses thereunder shall not constitute a return of Lending illember's Capital Contributions and shall not reduce a Lending, Member's Capital Account. 3.; Capital Accounts: Allocations. The Company shall maintain a separate capital account for each Member (each. a "Capital Account-') according to the rules of Treas. Reg. 51.704-1(b)(2)(iy). For this purpose. the Company may. upon the occurrence of any of the events specified in Treas. Resp. ti 1.704-1(b)(2)(1v)(f) or (s), increase or decrease the Capital .Accounts in accordance with the rules Of Such regulation and Treas. Rei. § 1.704-1(b)(2)(i� to reflect a revaluation of Company property. Items of Company income, gain, loss, expense or deduction for any fiscal period shall be allocated among the Members in such manner that. as of the end of such fiscal period and to the greatest extent possible.. the Capital Account of each Member shall be equal to the sum of (i) the Member's share of Company Minimum Gain and Member Minimum Gain and (i.i) the respective net amount. positive or necative. that Would be distributed to such 1\1lcrnber from the Company or for which such Member would be liable to the Company tinder this Agreement. determined as if. on the last day of such fiscal period_ the Company were to (a) liquidate the assets of the Company for an amount equal to their book value (dee mimed according to the rules of Treats. Ree. X1.704-1(b)(2)(iv)) and (b) distribute the proceeds in liquidation in accordance. with Section 10.2. ARTICLE 4 DISTRfBUTIONS 4.1 Distributions. (a) The :Manag=er shall cause the Company to make distributions to the Members of al l Axvailable Proceeds as soon as practicable, which in any event shall be (i) at least quarterly in the case of Available Proceeds from operations and (ii) no later than ten (10) days after Available Proceeds from capital transactions are received by the Company. Available 16 Proceeds shall be distributed to the Members, pro rata and pari passu, in accordance with the Members' respective aggregate Percentage Interests. (b) Any distribution by the Company pursuant to this Agreement to the Person shown on the Company's records as a Member or as the transferee of such Person's ri4,ht to receive such distributions (or to either such Person's legal representative), shall acquit the Company and the Manager of all liability to any other Person that mai- be interested in such distribution by reason of any Transfer of such Person's interest in the Company for any reason including a Transfer of such interest by reason of the death. incompetency or liquidation of such Person). 4.2 Repayment of Capital Loans. Following any exercise of the Put Option or the Call Option. all outstanding Capital Loans (including any accrued and unpaid interest throu011 the 'Valuation Date.) shall be deemed repaid in full at the Put/Call Closing as follows: (i) with respect to any Capital Loans that ,vere made 100% by a Member with respect to its Respective Propert%'. such Capital Loans shall be cancelled or (ii) with respect to any Capital Loans that were made by a Vlernber with respect to a Property that is not its Respective Property. such Capital Loans will be factored into the True-Up Consideration in accordance with Section 9.79.7. 4.3 Repavment to GGP of the AAC Loan. Notes ithstandin2 anything in this Agreement to the contrary, so long as the AAC Loan is outstanding'. all distributions received by the Company from the Bayside Investment or the TYRO Investment that are attributable to excess refinancing, proceeds of any mortuagAe loan encumbering the Bayside Property or the TYRC Properties shall be used byy the Company to pay doom the AAC Loan. 4A Permitted Distributions. Notwithstanding any provision to the contrary- contained in this Agreement. the Company shall not be required to make a distribution to a Member on account Of its interest in the Company if such distribution would violate the Act or any other applicable law. ARTICLE 5 PROPERTY BUDGETS; PROPERTY MANAGEMENT 5.1 Property Budgets. (a) Pursuant to the terms of the applicable Property Management Agreement described below in Section 5.2. for each Fiscal Year, the Bayside Property- Manager shall prepare a budget with respect to the Bayside Property (the " Bayside Property Budget"') and the rYRC Property Manager shall prepare a budget with respect to the TYRO Properties (the "TYRC Property Budget"). in accordance with this Article 5. Each of the Bayside Property- Budget and the TYR.0 Property Budget (each, a "Property Budget") shall include the applicable. Property Manager's anticipated expenditures with respect to its Respective Properties, including anticipated operating and capital expenditures with respect to the applicable Respective Property or Properties, in each case premised upon the continuation of customary and reasonable property management strategies for such Property- or Properties. Each of the Property Budgets for the 2017 fiscal year is attached hereto at Exhibit B. 17 gg„7097.9 (b) No later than November 1 of each calendar year. (i) the TYRO Property Manager shall provide to the AAC Member the TYRO Propert}y Budget for the following Fiscal Year. which TYRC Property Budget shall be in the same form as the TYRC Property Budget for the prior Fiscal Year and (ii) the Bayside Property Managger shall provide to GGPN the Bayside Property Budget for the following Fiscal Year. which Bayside Property Budget shall be in the same foni7 as the Bayside Property Budget for the prior Fiscal Year. No later than 30 days after the date on which the applicable Property Manager delivered a proposed Property Budget. each of the AAC Member and GGPN shall provide to the applicable Property Manager confnnalion in writingR of its approval of the applicable proposed Property Budget or its objection in writing to any one or more proposed operating or capital expenditures set forth in such proposed Property Budget, Failure to respond in v.-riting within such thirty (30) day period shall be deemed an approval of the applicable proposed Property Budget. (e) In the etent that a Property Member's proposed Property Budget is approved without objection, the Property Manager shall innmedlate] y submit the approved Property Budget to the Manager. In the event that either or both Property Managers receive an objection to one or more proposed operating or capital expenditures. the AAC Member and GGPN agree to ncggotiate in «good faith together and with the applicable Property Manager(s) to resolve any such objections. In the event the AAC Member and GGPN are unable to resolve any such objections. the applicable NI lember may elect to fund the operating or capital expenditure(s) at issue pursuant to a Capital Loan in accordance -with Section 3.2 hereof No later than December 13 of each calendar Near, each Property Manager shall submit its final Property Budget to (lie Manager having removed from such Property Budget each operating or capital expenditure that as of such date remains subject to objections and/or for v,-hich it has received a Capital Loan Notice. 5.2 Property klana-,ement Agreements. Concurrentiv herewith. the Company is entering into or rattJvirt{v one or more Property 1llanaggement Agreements, in the form attached hereto as Exhibit C. with the applicable Property 1flanagger that twill govern the management, leasing and daily operation of the applicable Property as more particularly set forth therein_ The Company shall pay the Property Manager under the applicable Property Management Agreements the fees. expenses and other amounts set forth therein.. ARTICLE 6 MANAGEMENT 6.1 Management Authoritv. (a) Subject to the express rights of the Applicable Managing Itlember with respect to its Respective Property. Lhe management of the Company shall be vested in the Manager (acting directly or tl-rough its duly appointed aggents). and the Manager shall have the responsibility. pother and authority to administer the business. assets, conduct and affairs of the Company. Subject to the express rig of the Applicable Mana<ging Member with respect to its Respective Property and the Members to consent to or approve certain matters as set forth in Section 6.3 herein, the Manager shall have the exclusive power on behalf and in the name of the Company to carry out any and all of the objectives and purposes of the Company and to perform any and all acts and enter into and perform any and all contracts and other activities as the 18 Mana�,er deems necessary, appropriate or desirable to carry out the purposes of the Company. including. but not limited to the following: (i) Supervise and arrange far the supen.•ision of day-to-day operations of the Company and its Subsidiaries; - (ii) Retain attorneys, consultants and other independent contractors to the extent such professional services are required to carry on the business of the Company and its Subsidiaries: (iii) Collect all rents and other payments due and owing to the Company and the Subsidiaries; (iv) Incur normal operating expenses of and to pay the obligations of. the Company and its Subsidiaries, and to enter into, perform and carry out contracts and agreements on behal f of the Company or its Subsidiaries for the conduct of the Company's business. (v) Obtain and maintain insurance coverage for a Property and other assets of the Company and its Subsidiaries, in such amounts and with such covera;=es as set forth in the applicable annual Property Budget, (vi) Perform, or cause: to be performed. all ofthe obligations of the Company and its Subsidiaries. and to exercise or cause to be exercised all rights of the Company or its Subsidiaries, under ariv a4areement to which the Company-. any of its subsidiaries or any nominee of the Company or any of its Subsidiaries is a party;. (vii) Cause the Company and its Subsidiaries to pay all taxes. assessments, rents and other impositions applicable to assets of the Company and its Subsidiaries and undertake whon appropriate any action or proceeding seeking to reduce such taxes. assessments, rents or other impositions; (viii) CSI}en and maintain bank accounts for the Company and its Subsidiaries; (ix) Coordinate the preparation and filing of tax returns on behalf of the Company and its Subsidiaries in each U.S. federal, state. local or foreign tax jurisdiction in which such filings are required provided that the Manager shall provide AC with a draft federal incorne tax return not later than ten (10) days prior to the filing of such return: (x) Do any and all acts which may be necessary. desirable or appropriate for the proper management and maintenance of a Property. (xi) Pinter into any space lease at a Property that contains less than x,000 square feet: 19 99557097 9 (xi i) Execute and deliver such documents on behalf of the Company or a Subsidiary of the Company as it reasonably deems necessary, desirable or appropriate in connection with the foregoin4g provisions; and (xiii) Do any act which is reasonably necessary. desirable or appropriate to carry out any of the foregoi.na. - (b) Third parties dealing with the Company or a Subsidiary may rely conclusively upon the power and authority of the Manager and on its acts as having been authorized. Without affectim, the express rights of the Applicable N-fanaging Member and the Members herein. the Mana-er's execution of any= agreement or document on behalf of the Company or a Subsidiarz is sufficient to bind the Company and/or a Subsidiary for a]f purposes. (c) Notwithstandin�11 this Section 6.I or anvthino in this Agreement to the contrary. (i) any actions to be taken by the Manager %\ ith respect to the Bayside Investment shall be taken exclusively by the AAC Managing Member and not by the Marrager subject to GGPN's right to approve any matters with respect to the Bayside Investment that constitute Major Decisions as set Porth in Scction 6.2 hereof and (ii) any actions to be taken by the Mana`zer with respect to the TYRC Investment shall be taken exclusively by the TYRC Managing Member and not by the Nlana�(ur subject to the AAC Members r1t:711t to approve any matters with respect to the TYRC Investment that constitute ;Major Decisions as set fonli in Section 6.2 hereof. 6.? N,lajor Decisions, Each Applicable Nfunagtnw �.Icmber may propose a Mi for Decision with respect to its Respective Property (s): provided. however. notwitltstandin- anvthin( to the contrary contained in this Agreement, each matter, action and decision listed below (each. a Jor Decision`) shall, subject to Section 3. and Section 6.3. require (and the Company shall not cl1 ct. take or make any such matters, actions or decisions. or cause any Subsidiary to do an`- of the foreaoin4a. Zvi thout t the unanimous approval of all of the Members: (a) any sale or transfer (other than a condemnation or other invaluntary transfer of a Property (other than personal property) or any portion thereof or interest therein, (b) except as expressly authorized herein. admitting any new member in the Company. and the issuance, redemption or sale by the Company of any Equity Interest in the Company or the purchase by the Company or any Subsidiary- of any real property, (c) amending, modifying. supplementing or terminating) this Agreement. the Certificate or the organizational or formation documents of the Company or any Subsidiary. or agreeinl.t to amend, modif}% supplement or terminate this Agreement the Certificate or the organizational or formation documents of the Company or any Subsidiary, except as expressly authorized herein: (d) incurrinsg, any indebtedness for borrowed money or entering into any° financing. refinancing, or loan transaction (other than: (i) incurrence of trade payables and equipment leases in the ordinary course of business and as set forth in the approved Budget, which may be entered into by the Manaver on behalf of the Company without the requirement of first obtaining the consent ofthe Applicable Managing Members.. (ii) third -party indebtedness with respect to Riverchase. which may be entered 'Into by the TYRC Managino Member on 70 behalf of the Company without the requirement of first obtaining the consent of the AAC Managing ),lenber and (iii) a ref nancim-, of the Loan Agreement dated as of December 23, 2014 between Deutsche Bank AG and Bayside with respect to the Bayside Property, which may be entered into by the AAC 'Managing Member on behalf of the Company without the requirement of first obtaining the consent of the TY RC ManaL in�, Member). or granting a security interest in any assets of the Company or any Subsidiarv, and in each case approving the terns thereof and any documentation therefor. as well as any related arrangements such as interest rate hedging transactions, (e) entering into by the Company or any Subsidiary of any new lease for space at a Property that consists of more than 10.000 square feet, (f) engagzirig any replacement or additionalproperty manager or leasing agent for a Property (but this paragraph shall not cover an agreement to pay- a tenant's leasing agent); (g) consolidating or merging the Company or any Subsidiary to ith or into any other Person or the em-m6rng by the Company or any Subsidiary in any recapitalization. joint venture or other business combination, or tennination or dissolution of the Company or any Subsidiary; (h) to the fullest extent permitted by applicable law. dissolving or liquidating. the Company or any Subsidiary. in whole or in part. making by the Company or any Subsidiary of an assiUninent for the benefit of creditors. filing or otherwise initiatin- on behalf of the Company or anx Subsidiary. as debtor, a petition in bankruptcy. petitioning or applying by the Company or ani Subsidiary to any tribunal for the appointment of a custodian. receiver or any trustee for the Company or any Subsidiary or for a substantial part of its property. connmencing by the Company or ani° Subsidiary of any proceeding= under- anv bankruptcy, insolvency. reorganization. arran,.,erncm. readjustment of debt. dissolution or liquidation law or statute of any jurisdiction, trhether now or hereinafter in effect. admitting by the Company or an_y Subsidiary of its inability to pay its debts generally as the\- become due or authorizing any of the foregoing to be done or taken on behalf of the Company or any Subsidiary, or consenting to or acquiescing in by the Company or any Subsidiary of the filing or other initiation of an involuntary petition for relief auainst the Company or any Subsidiary under any Chapter of the Bankruptcy Code or for the appointment of any trustee, receiver. conservator, assignee, sequestrator, custodian. liquidator (or other similar official) for the Company or any Subsidiary or all or substantially all of its or their assets: (i) initiatin;;. en-aving in. abandoning.. filing or settling, on behalf of the Company or any Subsidiary_ lawsuits or other proceedings, except for (A) actions to recover rents (Including the imposition and execution of liens on tenantsproperty) and other amounts payable to the Company or any Subsidiary under leases, provided that the expenditure of amounts in excess of $100.000.00 with respect to any applicable tenant action shall constitute a Major Decision, (B) the defense by insurers of insured claims (subject to any applicable deductible). (C) an action against a vendor, supplier or subcontractor in the ordinary course of business..N-hich does not involve an amount in excess of $100,000.00, or (D) settling any suit brought by a tenant or other liability- claim which does not involve (i) an amount in excess of $100.000.00 or (ii) claims by such tenant or other party of fraud or criminality- against the ?1 ss557087 1) Company or any Subsidiary (but the expenditure of amounts below the thresholds set forth its this clause (m) is authorized); (j) except as expressly- set forth in this Agreement. selling. encumbering or pled -Time any of the Equity Interests; (k) making any distributions in kind by the Company: (I) the incorporation or formation of any Subsidiary: provided. however. that GGPN may.. in its capacity as the TYRO Managing Member and in its discretion. cause any of TYRC's Subsidiaries to be restructured as tenant-in-common interest (TICS) in respect of their ovynership of the TYRC Properties; (rn) approving the Company's auditors or environmental consultants if other than those set firth on Exhibit D (,.yith those on Exhibit D beim hereby approved by the Nfernbers): L (n) changing the fiscal year of the Company or any Subsidiary: (o) approving the delegation by any Applicable klanaoinu Member of any of its responsibilities. duties. obligations or liabilities under this A�_'ree€nent. other than to its Affiliates: (p) approving a capital project by the Company or any Subsidiary that costs more than 41.000.000.00 (with any project of 41.000.000.00 or less being authorized) (each. a " NIatcriai Agreement": (q) approving or settling by the Company or any Subsidiary of any matters relating to (i) any casuahy affecting a Property involving an amount of more than $250.000.00 or (ii) an); condemnation or eminent domain proceeding affecting a Property (:other than as required under any applicable loan documents): (r) except as otherwise expressly set forth in this Agreement. making anv tax decision or tax election (including; decisions that could impact an Affiliated REFF's status as a REIT, accounting method changes. and decisions made in cortnection with a tax audit) that is reasonably likely to have a material effect on the Company, any Subsidiary, a Property or any Ntember; (s) making any decision or taking any action with respect to any environmental remediation matter relating to a Property, including selection of consultants in regard thereto and adoption of and implementation of any operation and maintenance program relatin{a thereto or any other pro`rrarn to remove or otherwise remediate hazardous materials: and (t) any other action which expressly requires the consent of all Members under this Agreement. 6.3 Affiliate Contracts. With respect to any Affiliate Contract_ a Member that is not a Conflicted [Member Nvith respect to such Affiliate Contract is entitled. on behalf of the Company, 22 and without the consent of the other Member, to declare defaults under and exercise (or elect to not exercise) termination rights under. such Affiliate Contract. If any default (beyond applicable cure periods) or material dispute exists under an affiliate Contract, then the Conflicted Member shall promptly notify the other Member. In the event of any such default or dispute (regardless of whether or not the Conflicted Member have notified the other klember), the Member that is not a Connicted Nfeuiber may. on behalf of the Company and without the other Member's consent. enforce that Affiliate Contract (including termination, if applicable). Except as expressly prodded herein and in Section 6,2, the Manager retains [fie right to act on behalf of the Cormpany or a Subsidiary under an Affiliate Contract. 4 64 RENT Restrictions: Etc. (a) So long as an. Affiliated REIT owns. directly or indirectly. any interest in the Company. the Manager shall use reasonable efforts to cause the Company (talcitic, into account amottnts that fioXv throu;01h to the Company or are treated as the. Company's for federal income tax purposes) to comply with the following: (i) at least ninety-five percent (95%) of the gross income of the Company for each taxable year (or portion thereof if applicable) will be derived from the items described in Section i56(02) ofthe Code and the'ri-casttry Regulations promulgated thereunder: (ii) at least seventy-five percent (75%) of the gross income of the Company for each taxable year (or portion thereof if applicable) will be deriN ed from the items described in Section 856(c)(2) of the Code and the Treasury Regulations promtth2ated thereunder: (iii) as of the end of each quarter ofeach Fiscal Year. except for securities of Taxable REIT Subsidiary ("TRS"). the Company shall not own. directly or indirectly. securities that would cause an Affiliated REIT to be treated. for purposes of Codi: Section 856(e)(4) and the Treasury Regrulations promulgated thereunder, as holding securities (x) possessing more than ten percent (10%) of the total voting power of the outstandina- securities of ariv one issuer, (y) Navin« a value of more than ten percent 10%) of the total value of the outstanding securities of any one issuer. or (z) issued by one issuer and having a value of more than five percent (5%) of the gross value of such Affiliated REIT; (iv) as of the end of each quarter of each Fiscal Year. the Company- shall not hold Securities of a TRS such that an affiliated REIT is treated, for purposes of Code Section 856(c)(4) and the Treasun Regulations promulgated thereunder. as hating more than twenty-five percent (25%), for taxable periods beginning before January 1. 2018, or twenty percent (20%) for taxable periods betlinnin 2 on or after January 1, 2018, of the value of its assets represented by securities of one or more taxable REIT subsidiaries (as detern-tined under Section 856(c) of the Code and the Treasury Regulations promulgated thereunder): 2 `' st;�s�c�s7 Ci (v) as of the end of each quarter of each Fiscal Year. at least seventy- five percent (75%) of the value of the Company's assets shall be represented by the items described in Section 856(c)(4)(A) of the Code and the Treasury Regulations promulgated thereunder (that is, real estate assets. cash and cash items (including receivables) and government securities (each as defined in Section 856 of the Code and the "treasury Regulations promulgated thereunder)): (vi) as of the end of each quarter of each Fiscal Year, the Company shall not hold nonqualified publicly offered REIT debt instruments such that an Affiliated REIT is treated for purposes of Code Section 856(c)(4) and the Treas. Regs. Promulgated t3Iereunder.. as having more than twenty-five percent (25%) of its assets represented by nonyualified publicly offered REIT debt instruments (as determined under Section 856(c) of the Code and the Treas. Re�,s. promulgated thereunder): (vii) the Company shall not engat-,z in anprohibited transaction within the meaning of Section 857{b)(6) of the Code and the Treasure Regulations promulgated thereunder: (viii) any services that would other%a ise cause any rents from a lease to be excluded from treatment as rents from real property pursuant to Section 856(d)(2)(C) of the Code and the Treasury Regulations promulgated thereunder with respect to an Affiliated REIT shall be provided by either (1) an independent contractor (as described in Section $56(d)(3) of the Code and the Treasury Regulations promulgated thereunder) kiith respect to such Affiliated REIT and from whom neither the Company nor such Afkillated REIT derives or receives any income or (2) a TRS of such Affiliated REIT as Llescribed in Section 856(1) of the Code and the Treasury Regulations promulgated thereunder. except as otherwise consented to in %Nriting by such Affiliated REIT: and (ix) as of the end of each quarter of each Fiscal Year, except for a lessee or sublessee that is a TRS, the Company shall not own. directly or indirectly or by attribution (in accordance 4vith attribution rules referred to in Section 856(d)(5) of the. Code and the Treasury Regulations promulgated thereunder), in the aggregate more than ten percent (10%) of the total value of all classes of stock or more than ten percent (10%) of the total voting power (or. with respect to any such Person tiNhich is not a corporation_ an interest of ten percent (10%) or more in the assets or net profits of such Person) of a lessee or sublessee of all or any part of a Property or of any other assets of the Company except in each case with the specific written approval of the Affiliated REIT for whom such ownership would cause a related party rent issue under Section 856(d)(2) of the Code and the Treasury RcOutations promulgated thereunder. (b) The Members will act reasonably in amending Section 6.4(a) to reflect an-,- material nymaterial changes in the provisions of Sections 856 through and including Section 860 of the Code that are made after the date hereof' provided, however. to the extent this Agreement has not been amended and there is a change in law with respect to Sections 856 through and including Section 860 of the Code that the. Members are reasonably aware of they should endeavor to operate the Company in a manner that reasonably complies with such changes in lay. Any Member that has an Affiliated REITmay request from the Manager, no more frequently than 24 quarterly. a copy- of' any and all questionnaires that will be submitted to the Property Manager by the Mana.,aer and that are relevant to the detennination of xiiether any income generated by a Property or services provided by the Company or an). Subsidiary would violate the terms of, Section 6.4(a). The Manager shall provide the requesting Member with such copies within two (2) Business Dans and will comply with reasonable requests for modifications to such questionnaires that are delivered to the Mana�uler within three (3) days of its provision of the copies to the requesting Member. The ivianager shall use commercially reasonable efforts to ensure that such questionnaires are completed and returned to the requesting Member within thirty (30) calendar days alter the original requests were received by the �Iana�er. The ManaLer shall exercise commercially reasonable efforts to prevent the Company and each Subsidiary from eniaging in a transaction that is a "listed transaction" as defined in Treas. Reg. 1.60111-�(b)(') on the date such transaction is commenced. 6.5 Exculpation and Indemnification. Notwithstandin+o anything to the contrary contained herein or any otherwise: applicable provision of lak\ or equity: (a) None of the ?Members (including the Manager and the Applicable Managing Members). their Affiliates or an.- officer or director of anv of the f' rc�ooin�ut {each such party, an .Indeninified Part -C) shall be liable, responsible or accountable in damages or othen,yise to the Company or any Member. and the Company and each l leniber does hereby release such Indemnified Party. for any act or omission in connection with the Company or any Subsidiary. except to the extent it is determined by an arbitrator pursuant to a binding arbitration in accordance %,N-Qh Section 12.8 that such act or omission (i) is a material breach of an Indemnified Party's obli��ations under this Agreement or (ii) resulted from such Indemnified Party's willful malfeasance, fraud or gross negligence or (iii) is a felony (such acts or omissions described in clauses (i). ii) and Lijo. the ..Default Actions" and each, a "Default ,action"). (b) To the fullest extent permitted by law, the Company shall indemnify. defend and save harmless each Indemnified Party from any damaV;z. liability, loss, cost, fee (including legal fees and costs) or expense of any nature whatsoever. k noNln or unkno\vn, liquidated or unliquidated (collectively. "Losses ') that is suffered or incurred by an Indemnified Party and arises out of or in connection with the affairs or activities of the Company or anti Subsidiary. or the performance by such Indemnified Party of any of the responsibilities of the ManaLoer or an Applicable Managing Member hereunder or otherwise in connection with the .matters contemplated herein, except to the extent it is determined by an arbitrator pursuant to a binding arbitration in accordance with. Section 12.8 that such Losses resulted from a Default Action. I f any Indemnified Party becomes involved in any capacity in any action. proceeding or investigation in corulection with any matter arisin-from. related to, or in connection with, this Agreement or the Company's or any Subsidiary's business or affairs. whether or not pending or threatened. and such Indemnified Parte believes in good faith that it is entitled to indemnification hereunder. the Company will periodically advance such indemnified Party's legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith: provided that such Indemnified Party shall (i) affirm in writing: that it in good faith believes that it is entitled to indemnification hereunder and (ii) agree in writing to promptly repay to the Company the amount of any such advanced expenses paid on its behalf to the extent that it shall be ultimately determined that such Indemnified Party is not entitled to be ?5 indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the innnnediately preceding sentence. The Company's oblig=ration herein to indenulify any Indemnified Party is in addition to any other inden-Lniiication to which such indemnified Party is entitled. and any Indenin][V under this Section 6.J_(b) shall be provided out of and to the extent of Company assets only. and no Member shall have personal liability on account thereof. (c) For all purposes of this Agreement, (i) none of the Manager or the Applicable Nlanawging Members shall be in breach of this Agreement solely as the result of an act or failure to act in connection ss ith the mana`ertnent of the Connpany- or any Subsidiary unless such action or failure to act constitutes Dross tneiili,ence_ willful malfeasance or fraud; and (ii) an act shall not constitute Willful malfeasance if it was taken in good faith and in the belief that it was in the best interests of the Company or any Subsidiary. (d) \Vhenever in this Agreement the Nlanager or the Applicable lvlanaglin�ly Member or any other Person is permitted or required to snake a decision (i) in its "discretion" or under a _rant of similar authority or latitude. such Person shall be entitled to consider only such interests arid factors as it desires. including its osvn interests, and shall_ to the fullest extent permitted bs applicable law. have no fiduciary or other dutr or obligation to gis;e any consideration to any interest of or factors affecting the Company or the Members. or (ii) in --good faith" or under another expressed standard. such Person shall act under such express standard and shall not be subject to any other or different standards. (e) To the e\tcnt that. at lase or in equity, an Indenlnitied Party has duties (including fiduciary duties) and Liabilities relating- thereto to the Company. any Subsidiary. or ani° Member. such Indemnified Partv shall not be liable to the Company, any Subsidiary. or any Mernber for its 4uood faith reliance on the provisions of'this Aorecment or the 4governing d0CUmell1s of any Subsidiary. The provisions of this Agreement or the ooveming doCl111ne1nts of any Subsidiary. to the extent they expressly restrict or eliminate such duties and liabilities of the Indemnified Parties. are agreed by the Members (each on behalf of itselfand its related Ind ennnifled Parties) to replace such other duties and liabilities of such Indemnified Party. (f) Any repeal or modification of this Section 6.5 shall not adversely affect any right or protection of a Person existing at the time of such repeal or modification. 6.6 Deemed Approval. With respect to any written notice issued by the Applicable Managing, Member to the other Members in which the Applicable Managing Member proposes that the Company make. undertake or approve a Major Decision (..First Notice"), a Member shall be deemed to have approved the matter set forth therein it (i) such Member fails to respond within five (5) Business Days after receipt of the First Notice. and (ii) thereafter. the Applicable ManaLtin~x ?Member sends a second notice to the other Members containino the same information as the First Notice. and marked clearly in bold letters as a " DEE,INIED CONSENT NOTICE" (the "Second Notice") and such Member fails to respond ssithin Five (i) Business Days after receipt of the Second Notice. 26 ARTICLE 7 MEMBERS 7.1 Limited Liabilitv. No Member shall be. personally Iiable for any obligations of the Company and shall have no obligation to make Capital Contributions to the Company solely by bein;4, a \/ember of the Company, except to the extent required by this Agreement or the .Act: provided, that a Member shall be required to return any distribution Made to it in error. 7? Business Opportunities. Each Member reco+�.nizes that the other Member and its respective members. partners. shareholders, officers, directors. employees, agents, representatives and Affiliates (collectively. "Related Persons") have. or rnav in the future have, other business interests. activities and investments. some of which are or rnav be in conflict or competition with the business of the Company and/or one or more of its Subsidiaries. and each Member and its Related Persons are entitled to carry on such other business interests, activities and investments without restriction not.\N i thstanding any provision to the contrary at law or in equity. Each Member and its Related Persons may engage in or possess an interest in any other business or venture of any kind. independently or ,,with others. including owning. financing. acquiring. leasinwgg. promoting. developing. improving. operating.. mana;zing and servicing real property orf its owrr behalf or on behalf of other Entities with which any Member or its Related Persons is affiliated or otherwise. and each Member and its Related Persons may engage in any such activities. whether or not in competition with the Company and/or one or more of its Subsidiaries without any obligation to offer any interest in such activities to the Company. to any Subsidiary or to the other Member and without other restriction or limitation of any kind notwithstand inu any prop ision to the contrary al lave or in equity. Ione of the Company nor any Subsidiary, nor any \/ember, shall have any right. by virtue of this Agreement, in or to such activities. or the income or profits derived therefrom.. and the pursuit of such activities, even if in competition with the business of the Company and:'or one or more of its Subsidiaries, shall not be deemed wrongful or improper. Notwithstanding the foregoing. the Members agree that with respect to a Property. no Member �%ill enter into any transaction to purchase, or otherwise acquire interest in. adjoining properties to a Property vyithoLit first offering the other Member the right to participate in such transaction upon the same terms and conditions as the Member that initiated such transaction. provided that this restriction shall not apply- to (i) the pui':hase or acquisition of any department or anchor store building (whether land and/or improx ements): (ii) any outparce] related to a. Property and `or (iii) the fee interest in any of the Property. 7.3 Confidential Information. (a) Each Member shall keep confidential and shall not disclose, or permit any of its Disclosure Recipients to disclose. any Confidential Information regarding the Company Entities or the other Member's Confidential Information, except (and then only) to the extent that (i) the disclosure of such information or materials is expressly required by applicable law. or (ii) the information or materials were previously known to such Member other than due to disclosure by any Company Entity or such other Member, or (iii) the information or materials become publicly known other than through the actions or inactions of such Member or its Disclosure Recipients in violation of this Agreement or (iv) the Manager reasonably determines that disclosure of the Confidential Information of the Company Entities is necessary or advisable in the operation of the Company's or any Subsidiary's business or (v) the disclosure of 27 U557QS7.9 such information and materials by such Member is to its Disclosure Recipients (provided that cacti such Disclosure Recipient agrees to keep such information and materials confidential to the same extent as if it were a Member of the Cornpany or is otherwise required under applicable late to keep such information confidential and such Member shall be responsible for the failure of any such Person to so comply). Without limiting, the foregoing. in the event that any Member or any of its Disclosure Recipients is required by any applicable laN.N,. statute, 0overnmental rule or regulation or judicial or governmental order, judgment or decree to disclose any information, unless otherwise a -reed to by the Members. prior to Such disclosure such Person shall promptly l notify' t-ic other lklenibcrs (to the extent not prohibited by applicable IaNv from giving notice) in writinL-, of such anticipated disclosure, which notification shall Include the nature of the legal requirenlent and the extent ol'the requited disclosure. and such Person shall cooperate with the Father Member, at the Company's expense. to preserve the confidentiality of such information consistent with applicable IaNv(JIICIUdin� wjthhotdlng, disclosure Of Such 611formation, to the extent permissible, until ';Lich little as it has been final[}, determined that such disclosure is required under applicable la,\:). (b) Without limiting the foregoing, each Member agrees that the following item s are included xvithin Confidential Information of and are of independent. proprietary. economic valLic to, the Company arid!or any Subsidiary and that the disclosure of such information in breach of this Agreenlent would CELISC Substantial, irreparable harm to the Company aiid!or any Subsidiary: (i) all information regarding the historical or pro?jected cash 11o,,N,s, reNenues, rental rates- expenses, capital expenditures and profitability. of a Property: (11) all inforination pertaining to the valtiation ascribed to a Property, and (iii) all financial stater -Lents or other information concernirity the historical or projected Financial condition, results of operations or cash flows of a Property. (c) Nomithstandiri'a anything else contained in this Agreement (h1CIUdinQ' the other provisions of this Section 7.33. each Member may disclose the tax treatment and tax structure (as Such terms are used in Code Section 6011 and the Treasury Reg. promulgated thereunder) of its Investment in the Company and of any transactions entered into by the Coinpany-, provided. that this authorization to disclose Such tax treatment and tax structure IS not intended to permit disclosure of any other information. (d) Negative Balances; Withdrawal of Cgpital: Interest. No Priority. A Member shall not have any obligation to the Company or to any other Member to restore any neL,ative balance in the Capital Account of such Member. No Member may withdraw capital or receive any distributions except as specifically provided herein. No interest shall be paid by the Company on any Capital. Contributions. No Member. in such capacity, shall have priority over any other Member as to return of Capital Contributions or allocations of income, gain, loss, expense, deduction or credits or as to distributions. except to the extent provided herein. ARTICLE 8 TRANSFER OF COMPANY INTERESTS &I Transfers. (a) Except for a transfer pursuant to Section 9.1 (b) or Section 9.; and except for the Qrant of the security interest contained in Section 3?(e) and a transfer pursuant thereto, no Member may. sell, assign_ transfer, encumber, pledge. mortgage or othenNise dispose of (a "Transfer") any or all of' its Interest to any Person unless the other Member has consented to such Transfer in writing (t{ hick consent may include such conditions as the 'Member requests In its discretion). (b) A Member may Transfer its entire Interest in the Company to an Approved O4vner of such Nfembcr without the consent of the other Member as long as (i) the Member asci nin- its entire Interest shall provide the other Member with prior written notice of such assignment. (ii) neither such Member- nor any of its Affiliates. if applicable, shall be in material breach of the terms of. or their respective obli`ations contained in. this Agreernent at the time of such Transfer anis (iii) all of the conditions contained in Section $.1(c) are satisfied Nvith respect to such Transfer, provided. however. that. the transferor shall remain liable for all liabilities and oblivations relating to the Transferred Interest. In addition to the foregoing, and subject to Section 8.1(c). any equity owner of the AAC Member shall have the right to Transfer its interests in the AAC Member to any Person without the consent of the Manager so longi- as Ben Ashkenazy, directly or indirectly, (x) shall own no less than twenty percent (20%) of the interests of the :LRC Member and (y�) shall continue to control the AAC Member. The AAC Member acknov ledges that the direct or indirect Transfer of its Interest. whether to an Approved 0,, ner or othcr%visC pursuant to this Agreement, sha11 result in the accel.ration of the AAC Loan and require: its repa%ment prier to the effectiveness of suchTransfer. (c) '\otwithstanding any other provision of this Agreement: (i) No Transfer shall be permitted if the "Transferee does not truthfully nlake the representatic)n and warranty contained in Section I0.I or if'such Transfer «'told (A) unless all it Members other\% ise consent in advance. cause the Company to lose its ability to rely on the "qualified purchaser' e.xetnption of Section J(c)(7) of the Investment Company Act, or other exemption from registration under the Investment Company Act upon which the Company is entitled to rel} at such time. (B) cause the Company to be treated as a publicly traded partnership within the meaning of Code Section 7701 and Treas. Reg. r 1.770-1-1, (C) cause the Company to be classified other than as a partnership for U.S. federal income tax put -poses, (D) cause all or any portion of the assets of the Company to constitute Pian .Assets, (E) cause the Company to be required to register the Interests in the Company under the U.S. Securities Exchan��e Act of 1934. as amended. the Securities Act or the securities laws of any non -U.S. jurisdiction. (F) cause any of the Company, any Subsidiaries. the Members or their Affiliates to be subjected to (or materially increase its obligation Nvith respect to) any regulations or reporting requirements that are significant or materially burdensome. (G) create a substantial risk that the limited liability of any Member would be affected adversely, or (I -I) be a breach or violation of any covenants, restrictions or other agreements contained in any documents entered into by any Subsidiary (or any Affiliate of a Member) in connection with any loan made to any such Subsidiary; (ii) As a condition to any Transfer of a Member's Interest (includinyu a Transfer not requiring the consent of the klembers), the transferor and the transferee shall ?9 Ks;;7087 provide such legal opinions. documentation and information (including information necessary to comply with the requirements of Code Section 743. if applicable) as the :Manager shall reasonably request; (iii) The assignment of an Interest in accordance with Section 8.1 of this Aareement shall entitle the transferee only to receive the distributions and allocations with respect to such Interest and not to any other rights of a member unless such transferee is admitted as a substitute Member pursuant to this Section 8.1(c)(iii), in which case Stich admitted assignee shrill be entitled to exercise all other rights with respect to such Interest (but an assignee is bound by the provisions of this Agreement, whether oi- not it hecomes a substituted Member), A transferee of an Interest shall become a substitute N-lember only if the Transfer to Stich transferee is in accordance yvith the terms of this Agreement and suclt transferee executes a copy of this Agreement or an amendment hereto in form and substance reasonably satisfictory to the non -Transferrin—) IMember confirmincy such tt nsferee's a-reement to be bound by this Agreement. The ManaLt,er shall rnodifv Schedule I to reflect such admittance of any substitute Members. but the failure to do so shall not constitute a breach of this A« reemen.t or affect Stich Person's status as a substitute Member. If a Member transfers all of its limited liability company interest in the Company pursuant to this Section 8.1 and the transferee is admitted as a substitute \-lember of the Company. such admission shall be deemed effective immediately prior to the transfer and. immediately following such admission. the transferor- Member shall cease to be a member of the Company. (IN-) The transferor and transferee of any IMenibeCs Interest shall be jointly and severally- obligated to reimburse the Mana�,,cr and the Company for all reasonable documented expenses (including any transfer taxes. attorneys' fees and expenses and any immediate or ongoing accounting costs attributable to the Company's compliance with the requirements of Code Section 743(b) or (e) with respect to the transferred Interest) of any Transfer or proposed Transfer of a Member's Interest. whether or not consunu-nated. The transferee of any Interest shall be treated as having made all of the Capital Contributions made by, and received all of the allocations and distributions received hv. the transferor of such Interest in respect of such Interest. (d) To the fullest extent permitted by lacy. any Transfer that violates this Section 8.1 shall be void and the purported buyer. assignee, transferee, pledgee, mortgagee or other recipient shall have no interest in or rights to Company assets. profits, losses or distributions and neither the Vlanager nor the Company shall be required to recognize any Stich interest or rights. 8.2 leo'W'ithdra%val or Loans. Except as otherwise set forth in this Agreement. no Member may withdraw as a member of the Company. not` shall any Member be required to withdraw- from the Company, nor may a Member borrow or withdraw- any portion of its Capital Account from the Company. 8.3 No Termination. Neither the substitution, death, incompetency, dissolution (whether voluntary or involuntary) nor bankruptcy of a Member shall, by itself, affect the 30 885S-rrr87 9 existence of the Company. and the Company shall continue for the term of this Agreement unless sooner dissolved in accordance ,�vith this Anteement or the Act. 8.4 `1-aiver of Partition. Except as may otheryise be provided by law in connection ,.vith the dissolution. liquidation and final Nyinding-up of the Company. each Member hereby irrevocably waives any and all rights that it may have to maintain an action for partition of any of the Company's property. 8.5 W'ithholding Taxes. (a) If the Company is obligated to pays any amount to a governmental a- ncy or body becaLlSe of a Member's tax status (including non -U.S. taxes. U.S. federal withholding taxes with respect to non -U.S. members. U.S. state withholding taxes and U.S. state unincorporated business taxes) or any other withholding liability arising as a result of such Member's interest in the Company- (a "Withholding Payment"), and such amount is not satisfied out of distributions otherkN ise payable to such Member. then such 'Member (the "Reimbursing Member") shall reimburse the Company in lull for the entire amount paid (includinu any interest. penalties and expenses associated with such payment). The amount to be reimbursed shall be treated as a non-interest bearing loan payable by such MCII)her to the Company. Such payment shall occur promptly (ryithin ten (10) Business I)ay"S) upon notification of an oblh.,ation to reiimbursc the Company;- in this re��ard. (b) Except as reimbursed by a !Irlember pursuant to Section 8.5(a). (i) any amount of taxes paid by the Company, (ii) any taxes i�,ithheld by t11e Company and (iii) any withholdin4 or similar taxes imposed on amounts payable to the Company shall in each case be treated for purposes of this Agreement as an amount actually distributed to the \ ]embers pursuailt to Article 4 at the time paid or withheld (and the amount of any such tax shall be deemed to hive been distributed to such Members). Ali amount shall be considered paid or �xithheld by the Company if. and at the time. remitted to a goy ernmental aacncy �rithout reaard to whether the remittance occurs at the same time as the distribution or allocation to vvIiich it relates, provided, that an amount actually withheld from a specific distribution or designated by the Nianager as withheld with respect to a specific allocation shall be treated as if it were distributed at the time such distribution or allocation occurs. (c) Any "imputed underpayment" within the meaning, of Code Section 622 paid (or payable) by the Company as a result of an adjustment with respect to any Company item, including any interest or penalties with respect to any such adjustment (collectively. an "Imputed Underpayment Amount-), shall be treated as if it were paid by the Company as a Withholding Payment with respect to the appropriate Members. The Manager shall reasonably determine the portion of an imputed Underpayment Arnount attributable to each Member or former member. The portion of the Imputed Underpayment Amount that the Manager attributes to a N-lernber shall be treated as a Withholding Payment with respect to such Member. The portion of the Imputed Underpayment Amount that the Manager attributes to a former partner of the Company shall be treated as a `l'ithholding Payment with respect to both such former member and such former member's transferees) or assignee(s). as applicable. and the Company may in its discretion exercise the Company's rights pursuant to this Section in respect of either or both of the former member and its transferee or assignee. Imputed Underpayment Amounts 31 treated as Withholding Payments also shall include any imputed underpayment within the meaning of Code Section 6225 paid (or payable) by any entity treated as a partnership for U.S. federal income tax purposes in which the Company holds (or has held) a direct or indirect interest other than through entities treated as corporations for U.S. federal income tax purposes to the extent that the Company bears the economic burden of such amounts. whether by lave or agreement. (d) A Reimbursing Member's obligation to make reimbursements burseents to the Company under this Sec tion 8.5 shall survive a [Member's withdrawal from the Company or assignment or Transfer of its Interest in the Company and the dissolution. liquidation. \vinding up and ten-nination of the Company. and for put -poses of this Section 8.5, the Company shall be treated as continuin4a in existence. The Company or the Manager niay pursue and enforce all rights and remedies it may have against each Member under this Section 8.. including instituting a lawsuit to collect such contribution «ith interest calculated at an annual compounded rate equal to the Base Rate plus six percentage points (6%) per annum (but not in excess of the highest rate per annum permitted by applicable law). AR'T'ICLE 9 PUT/CALL OPTIONS 9.1 AAC Call Option. During the period commencing [insert date tlrrrt is 2 bears and 3 rarotttlrs frrrtrt the Effective Date] and ending [insert (late that is 2 ears andrrrQrrtlrs fir�rrr theT ffective Date] (tile "AAC Option Window"). on the terns and conditions contained in this Article 9. the AAC %lember has an option (the '-Call Option') to cause the Company tc> distribute the TYRO Investment to GGPN pursuant to this Article 9 in full redemption of GGPN's Interests in the Conipan�. sllblect to payment or receipt of the 1 rte -Up Consideration described below.. 9.2 GGP Option. Durirn' the period commencing [insert (late that is 3 tears fr•urrr the Effecth,e Date] and ending [insert (late that is 3 -years and 3 fttntrtlrs fr•urrr the Efjictit,e Data] (the "GGP Option Wi.ndo i-,"). on the terms and conditions contained in this Article 9. GGPN has an option ([he "Put Option") to cause the Company to distribute the TYRO Investment to GGPN pursuant to this Article 9 in hill redemption ofGGPN's Interests in the Company. subject to payment or receipt of the True -Up Consideration described below. 9.3 Exercise of Call Option or Put Option. In order to effectively exercise the Call Option. the AAC Member must deliver a written notice to GGPN during the AAC Option Windovv expressly exercising the Call Option. In order to effectively exercise the Put Option, GGPN must deliver a written notice to the AAC Member during the GGP Option Window expressly exercising the Put Option. Any such notice shall be irrevocable once delivered. 9.4 Put/Call Procedures. If the Put Option or the. Call Option is exercised. the parties intend that (i) the GGP Interests in the Company redeemed pursuant to this Article 9 shall be cancelled contemporaneously with the PutrCall Closing.. and the AAC Member shall be the owner of a 100% ownership interest in Bayside, free and clear of any encumbrances and (ii) GGPN shall be the direct owner of a 100° � ownership interest in TYRO. free and clear of any encumbrances, subject in the case of both clauses (i) and (ii) to any debt encumbering the Respective Properties. The AAC tilember and GGP Members may. from time to time. modi N such transactions or implement other transactions as the AAC Member and GGPN mutually agree are necessary or advisable in order to effect the PtltfCall Closing on a tax efficient basis. taking into account the tax considerations of both the AAC Member and GGPN in the transaction and the economics and relative benefits of the overall transaction. 9.5 Determination of TYRO Properties and Bayside Property Values. If the Call Option or Put Option is exercised in accordance with Section 9.3, then for a period of forty-five (45) days atter the deliver- of the requisite notice under Section 9.3 (the "Negotiation Period"). the AAC Member and GGPN will ne-otiatc in good faith to attempt to agree upon the value of (x) each TYRC Property as of the date (the "Valuation Date") the AAC Member or GGP. as the case may be, delivers notice exercising_ the Call Option or Put Option (%vith respect to each TYRC Property. the -11"11C Gross Property Value") and (y) the Bayside Property as of the Valuation Date (the "Bayside Cross Property "Value-). The TYRO Gross Property Value with respect to each "I-S'RC PropertN and the Bayside Gross Property Value shall equal the flair market value of each such Property as of the Valuation Date, determined on an unleveraged basis, based upon the then current uses of each such Property and assuming an arm's length normal course of' business sale of each such Property to a third party, and without taking into account transaction costs such as brokeraue commissions. transfer tares. loan assumption fees or loan prepayment penalties. Each mutually agreed-upon TYRC Gross Property Value or Bayside Gross Property Value, as the cast: may be. shall be deemed final, binding- and conclusive. If. on or prior- to the expiration of the Negotiation Period. the AAC Member and GGPN. cannot agree upon the TYRC Gross Property Value x.N ith respect to any TYRC Property or the Bayside Gross Property Value %\ ith respect to the Bayside Property (each, a "Disputed Property"). such disputed TYRC Gross Property 'wralue or Bayside Gross Property Value (each. a `'Disputed Property Value-) shall be established pursuant to the following procedures: (a) Mutual Appraiser. %Vithin ten (10) Business Days after the expiration of the Negotiation Period (the "Designation Period"), the AAC klember and GGPN shall attempt to agree on the selection of a mutually acceptable independent, nationally recognized appraisal firth (a "Mutual Appraiser"), which is a member of the Appraisal Institute (or any successor association or body of comparable standing if such Institute is not then in existence), to appraise each Disputed Property for purposes of this article 9 (any such appraisal firm meeting such standards shall be a "Qualified appraiser'). (b) No Mutual Appraiser, If on or prior to the end of the Desigmation Period such Members cannot agree on a Mutual Appraiser. then within ten (10) Business Days after the expiration of the Designation Period each of the AAC Member and GGPN shall deliver written notice to the other identifying its selection of a Qualified appraiser to act on its behalf. The Qualified Appraiser appointed by the AAC Member is referred to herein as the '-AAC Appraiser", and the Qualified Appraiser appointed by GGPN is referred to herein as the "GGP Appraiser". (i) In the event that the AAC Member or GGPN fails to designate a Qualified Appraiser within the ten (10) day period specified in clause b above or in the event that any Qualified Appraiser designated by the AAC Member or GGPN fails to subrt1it its appraisal within the required forty-five (45) day period provided in Section ,1 88'57087.9 9.5.1a ii)(iii). and if such failure continues for ten (10) days after delivery of written notice of such failure from the other party. such failure shall be deemed for all purposes to constitute acceptance of the timely determination of the Disputed Property V alue(s), if :inv. by the Qualified Appraiser appointed by the other party. (ii) Within ten (10) days after the selection of the toxo Qualified Appraisers. such Qualified Appraisers shall select a third Qualified Appraiser (the "Third Appraiser"; _roomed that (a) in order for the Third Appraiser to be a Qualilled Appraiser, in addition to the requirements set forth in the definition of Qualified Appraiser above. such Third Appraiser shall not have accepted any business engagement as an appraiser from either the AAC Member or GGPN or any Related Nlember of zither the AAC Member or GGPN during the two (2) year period prior to such appointment and (b) if only one Qualified Appraiser has been appointed as referred to in Section 9.5(b)(i)(i). a Third Appraiser shall not be appointed). If the wo appraisers are unable to a�L,rcc upon the appointment of a Third Appraiser within the required ten (10) day period. either the .,LSC Member or GGPN may. upon written notice to the other party. request that such appointment be made by the then President of die American Arbitration Association or by his or her designee. (iii) NVithin forty --five (45) days after designation of the AAC Appraiser and the GGP Appraiser (or if the AAC Member or GGPN. as the ease may be. fails to desiu-nate a Qualified Appraiser. within forty-five (45) days after the expiration of the ten 00) dav period specified in clause N above). each such Qualified Appraiser shall submit to the Third Appralscr. the AAC Mcniber and GGPN a written report setting forth its determination of each Disputed Property- Value. (iv) The Third Appraiser shall, xvithin twenty (20) days after receipt of the %�ritten reports of the AAC Appraiser and GGP Appraiser, choose whichever of the AAC Appraiser's determination or the GGP Appraiser's determination, in each case, with respect to a particular Disputed Property. it believes is the closest to the actual Disputed Property Value with respect to such Disputed Property. The Third Party Appraiser shall not have discretion to render any judgment other than choosing one of the Qualified Appraisers' valuations. The Disputed Property Value %- ith respect to each Disputed Property chosen by the Third .-Appraiser shall be final. conclusive and binding on the parties and shall be enforceable in any court having jurisdiction over any proceeding to seek such enforcement. (c) The Disputed Property Value with respect to the: Bayside Property as determined by the Mutual Appraiser or chosen by the Third Appraiser, as applicable, shall be the revised Lross value of the Bayside Property (the "Bayside Revises! Gross Property Value"). The Disputed Property Value with respect to each TYRC Property as determined by the Mutual Appraiser or chosen by the Third Appraiser, as applicable. plus, if applicable. the TYRC Gross Property Value previously agreed upon by the AAC N-lember and GGPN shall equal the revised gross value of the TYRC Properties (the "TYRC Revised Gross Property v'al'ue'). (d) In the event that any Qualified Appraiser appointed. hereunder resigns, refuses or is unable to perform his or her obligations hereunder for reasons unrelated to the acts )4 885-37097,9 or omissions of the appointing party. then the parte appointing such appraiser shall have the unilateral right to appoint a substitute Qualified Appraiser and the deadline for the production of such Qualified Appraiser's appraisal shall be subject to an extension of not more than ten (1 d) days after such substitution. If the only Qualified Appraiser is the il•lutual Appraiser. the }parties shall again seek to select a mutually acceptable Qualified Appraiser in accordance with the procedures set forth in this Section 9.5. (e) In connection with the appraisal process. GGPN and the AAC Member shall provide (and the Mana�aer shall cause the Company and the Subsidiaries to proN ide) the appraisers full access during normal business hours to examine the Properties. the books, records and files relatinu thereto and all material agrecinents. leases and other operating agreements rclating to the Properties. The fees and expCrrses of the N-Iutual Appraiser and the Third :Appraiser shall be split equally between the AAC %lomber, on the one hand. and GGPN. on the other hand: the fees and expenses of the AAC Appraiser shall be borne by the AAC Member: and the fees and expenses of the GGP Appraiser shall be borne by GGPN. 9.6 Adjusted Proyerty Values Calculation. (a) The Bayside Gross Property Value (or the Bayside Revised Gross Property Value. if applicable) and the TYRC Gross Property Value(s) (or the TYRC Revised Gross Property Value(s). 11'applicable), each as determined in accordance with Section 9.5. shall serve as the basis for the calculation of the Property Values Adjustment and the components thereof. each as determined in accordance with this Section 9.6. (b) The-Troperty Values Adjustment- shall equal. as applicable, (x) the difference between the Bayside Initial Net Property Value and the Bayside Final Net Property Value (the "Bayside Property Values Adjustment'). (y) the difference between the Riverebase Initial Net Property Value and the Riverchase Final Net Property Value (the "Riverchase Property Values Adjustment`) and (z) the difference between the Tysons Initial Net Property. Value and the Tysons Final Net Property Value (the "Tysons Property Values Adjustment'). III the event that the Bayside Initial Net Property- Value: is areate:r than the Bayside Final Net Property Value. the Bayside Property Values Adjustment shall be a negative number. and in the event that the Bayside Initial Net Property Value is less than the Bayside Final Net Property Value. the Bayside Property Values Adjustment shall be a positive number. In the event that the Riverchase Initial Net Property Value is greater than the Riverchase Final Net Property Value, the Riverchase Property Values Adjustment shall be a negative number, and in the event that the Riverchase initial Net Property Value is less than the Riverchase Final Net Property Value, the Riverchase Property Values Adjustment shall be a positive number. In the e,% ent that the Tysons Initial Net Property Value is greater than the Tysons Final Net Property Value. the Tysons Property Values Adjustment shall be a negative number, and in the event that the Tysons Initial Net Property Value is less than the Tysons Final Net Property Value. the Tysons Property Values Adjustment shall be a positive number. 35 W The followin:t components shall be utilized in the calculation ofthe Property Values Adjustment: (i) The "Bayside Final Net Property Value' shall equal (x) the Bayside Revised Gross Property Value, less (y) any outstanding? Bayside Capital Loans or other indebtedness on the property as of the Valuation Date. ,plus (z) any undistributed cash held by Bayside as of the Valuation Date, including. without limitation. any Reserves. (ii) 'rhe "Rirerchase Final Net Property Value' shall equal (x) the "TYRC Revised Gross Property Value with respect to Riverehase less (y) any outstanding TYRC Capital Loans with respect to Riverehase or other indebtedness with respect to Riverside as of as of the Valuation Date. plus (z) an\- undistributed cash held by Riverside as of the Valuation Date_ inCluding. \yithout limitation. any Reserves. (iii) The "Tysons Final Net Property Value" shalt equal (x) the TYRC Revised Gross Property Value Nr-ith respect to Tysons Less (y) any outstanding TYRC Capital Loans vvith respect to Tysons or other indebtedness with respect to Tysons as of as of the Valuation Date, plus (z) ane' undistributed cash held by Tysons as of the Valuation Date, includin<o. Nyithout limitation. any Reserves. S (iv) "fhc "Bayside Initial Net Property- Value" shall equal (v) The "Riverchase Initial Net Property 'Value' shall equal (vi) The "Tysons Initial Net Properly Value" shall equal 9.7 True -Up Consideration. (a) The -True-Up Consideration." shall equal the difference betxyeen the AAC Adjusted Interest Value and the GGP Adjusted Interest Value. (b) The following components shall be utilized in the calculation of the AAC Adjusted Interest Value and the GGP Adjusted Interest Value: (i) The "AAC Adjusted Interest Value" shall equal the sum of (i) No of the Bayside Property Values Adjustment, (ii) % of the Riverchase Property Values Adjustment, (iii) % of the Tysons Property Values Adjustment, and (iv) if applicable. the unpaid amount of anv TYRC Capital Loan made by the AAC Member. (ii) The "GGP Adjusted Interest Value" shall equal the sum of (i) % of the Bayside Property Values Adjustment; (ii) °/o of the Riyerchase Property Values Adjustment. (iii) % of the Tysons Property Values Adjustment and (iii) if applicable, the unpaid amount of any Bayside Capital Loan made by GGPN. 36 W;70871) 9.8 Closing. The closing of the Put Option or the Call Option. as applicable (the `Put/Call Closing"). shall occur on a date designated by the party- initiating the Call Option or the Put Option, as applicable, upon at least ten (10) days written notice provided to GGPN or the AAC Member, as applicable, after the final determination of the Bayside Revised Gross Property Value and the TYRC Revised Gross Property Value pursuant to Section 9.5: provided that such date shall be no later than the date Nvhich is sixty (60) days after the final determination of the Bayside Revised Gross Property Value and the r1'YRC Revised Gross Property Value pursuant to Section 9.5, The Closinu shall be held at the principal office of the Company or at such other location as the AAC Nilember and GGPN may agree. The actual date on xvhich the Put"'Call Closing occurs shall be referred to as the "Put/Call Closing Date". 9.9 Pavinents at Closing. (a) In the event that the True -Up Consideration is a neuative number (i.e. the AAC AdJusted Interest Value is less than the GGP :Adjusted Interest Value), on the PutlCall Closing Date. Bayside. on behalf of AAC Member, shal I pay to GGPN such amount in cash by wire transfer of inunediately available funds to an account i si<anated in writina by GGPN. In the event that the True-U.p Consideration is a posits% e number (i.e. the AAC Adjusted Interest Value is greater than the GGP Adjusted Interest Value). on the PLWCall Closin`, Date, TYRC, on behall'of GGPN_ shall pay to the AAC 'tlember such amount in cash by vvire transfer of irnmediateiv available minds to an account(s) designated in writing by the AAC Member. 9.10 Indebtedness: Rist: of Loss. (a) At the Put -Call Closings. the AAC Nlernber shall acquire the indirect ownership of the Bayside Propert.� subject to then existing indebtedness enctunberin f the Bayside Property in accordance with this Article 9. If the terms of such indebtedness restrict or prohibit the AAC MLnnlbcr from acquiring indirect otivnership of the Bayside Property subject to such indebtedness. then the AAC Nlember will cause such indebtedness to be repaid or refinanced on the 13ut Call Closing Date. Am• loan assumption fees. prepayment premiums. fees or penalties, or exit fees or interest rate breakage costs resulting from the AAC Member's acquisition of the indirect ownership of the Bayside Property subject to then existing indebtedness, or from the repayment or refinancing of any such indebtedness, will be paid by the AAC Mernber on the Put!Call Closing Date. (b) At the Put/call Closing. GGPN shall acquire the indirect ownership of the TYRC Properties subject to then existing indebtedness encumbering the TYRC Properties in accordance iNith this Article 9. If the terms of such indebtedness restrict or prohibit GGPN from acquiring indirect ownership of the TYRC Properties subject to such indebtedness, then GGPN will cause such indebtedness to be repaid or refinanced on the Put!Call Closing Date. Any loan assumption fees. prepay went premiums. fees or penalties, or exit fees or interest rate breakage costs resulting from GGPN's acquisition of the indirect ownership of the TYRC Properties subject to then existinua indebtedness, or from the repayment or refinancing of any such indebtedness, vvill be paid by GGPN on the Put"Call Closing Date. 37 ss-;;7us7.9 (c) Any risk of casualty. condemnation or loss at the Bayside Property occurring) after the delivery of an exercise notice by either party pursuant to Section 9.3 and prior to the Put'Call Closing bate shall be borne by the AAC Member. which shall succeed to all rights to insurance proceeds and condemnation awards. (d) Any risk of casualty. condemnation or loss at the TYRO Properties occurrin_r after the delivery of an exercise notice by either party pursuant to Section 9.; and prior to tlae Put'Call ClosingDate shall be borne by GGPN. which shall succeed to all rights to insurance proceeds and condemnation awards. 9. l 1 Expenses. Except as expressly set forth in this Article 9, all out -of pocket costs. expenses. fees and disbursements incurred bN the Company in connection Nyith the exercise of the Call Option or the Put Option and the Put'Call Closing transactions (including. without limitation, fees and disbursements of the Company's Accountants and fees and disbt(rsements of legal counsel to the Company) shall be borne equally by the Members, provided. that each Member shall pay all fees and disbursements of its own legal counsel and of its o4yn accountants, prop ided_ rd rthei that each Applicable Managin- Member shall bear all costs, expense, fees and disbursement incurred in connection with the exercise of the Call Option or the Put Option and the Put.'Call Closing transactions with respect its Respective Properties (e.g. transfer taxes. lender consent costs and fres. environmental costs. permits. title insurance costs. etc.) ARTICLE 10 REPRESENTATIONS AND WARRANTIES OF THE MEti913ERS As a material inducement to each %Member's execution and delivery of this Agreement, each lt-tember represents. \\arrants. covenants and io rees to and with each other Member and the Company as follovN'S: 10.1 Authorization. Such Member is duly organized. formed or incorporated. as the case may be. and such Member is authorized, empowered and qualified to execute this A�zrcement. to invest in the Company and to make Capital Contributions or Capital Loans as contemplated by this Agreement. The individual signing this Agreement and all agreements contemplated hereby and thereby- on such Member's behalf has been duly authorized to do so. 10.2 Binding Obligation. This Agreement is a valid and binding agreement. enforceable against such Member in accordance with its terms. 10.3 No Conflict. The execution and delivery of this Agreement by such Member, the consummation of the transactions contemplated hereby and the performance of such Member's obligations under this Agreement N -ill not conflict with_ or result in any violation of or default under. any provision of any governing instrument applicable to such Member, or anv agreement or other instrument to which such Member is a party or by which such Member or any of its properties are bound. or any United States or non -United States permit. franchise. judgment, decree, statute, lavv. order. rule or regulation applicable to such Member or such Member's business or properties. 14.4 Access to Information. Such Member has performed its own independent investigations and obtained such information as it deemed necessary in order to evaluate the 38 merits and risks of an investment in the Company. Such Member has consulted to the extent deemed appropriate by such Member with such ?Member's own advisers as to the financial, tax, legal. accountinL,, regulatory and related matters concerning an investment in the Company and on that basis understands the financial, tax. [e_al. accounting. regulatory and related consequences of an investment in the Company. and believes that an investment in the Company is suitable and appropriate for such iNlember. 10.5 No ReListration of Interests. Such Member understands that the interests in the Company= haw -e not been. and will not be. registered under the Securities Act or any state or non - United States securities laws. Such Member is acquiring its Interest solely for the account of such Member. for investment puiWses only and not with a 0e,.\- to the distribution thereof. Such Member (i) is a sophisticated investor with the knowledge and experience in business and financial matters to enable such Member to evaluate the merits and risks of an investment in the Company. (ii) is able to bear the economic risk and lack of liquidity of an investment in the Company and (iii) is able to bear the risk of loss of its entire investment in the Company. 10.6 Reyulation. D under the Securities Act. Such Member is an 'accredited investor.' as that term is defined in Regulation D pronittlgated under the Securities Act. 10-7 lilvestment Com any AAct Matters. Such Member understands that: (i) the Company- does not intend to resister as an investment company- under the Investment Company Act. and (ii) such Member NN ill not be afforded the protections provided to investors in registered investment companies under the Investment Company Act. Such \-lember was not formed or reformed (as interpreted under the Investment Cornpany Act) for the specific purpose ofmaki17" an investment in the Company. and. under the ownership attribution rules promulgated under Section 3(c)(1) of the Investment Company Act, no more than one person will be deemed a beneficial owner of such \Member's interest in the Company. Such Member is a -'qualified purchaser'- as that term is defined under the Investment Company Act. 10.8 Acknoww-leduement of Risks: Restrictions on Transfer. Such Member reco�_,nizes that: (i) an investment in the Company involves certain risks. (ii) the interests in the Company are subject to certain restrictions on transferability. and (iii) as a result of the foregoing. and the marketability of the interests in the Company is severely limited. Such ?Member agrees that it will not transfer, sell.. assign, pledge. encumber, morttgatge, divide. hypothecate or otherwise dispose of all or any portion of its Interest in any manner that would violate this Agreement, the Securities Act or any United States federal or state or non -United States securities laws or subject the Company or any other Nlernber or any of its Affiliates to regulation under the Investment Company Act or the Investment Advisers Act. any non -United States governmental authority having jurisdiction thereover or any° additional re�(ulation under the rules and regulations of the United States Securities and Exchance Commission or the laws and reculations of any United States federal. state or municipal authority. 10.9 additional Investment Risks. Such Member is aware that: (i) the Company has no financial or operations history. and (ii) no United States federal, state or local or non -United States agency. govertumental authority or other Person has passed upon the interests in the Company or made any finding or deten"nination as to the Fairness of this investment in the Company. 39 98155 70S 7.9 10.10 No Public Solicitation. Such Member confirms that it is not subscribill- for anv interest in the Company as a result of any form of general solicitation or general advertising. a including (i) any advertisement. article. notice or other communications published in arty' newspaper, magazine or similar media (including any Internet site that is not password protected) or broadcast over television or radio or (ii) any seminar or mectinla whose attendees were invited by any general solicitation or General advertising. 10.11 Anti -'Honey LaundenriLl and Artti-Boycott Matters. Such Member ackno4vled{-es that the Company seeks to comply with all applicable anti -money laundering and anti -boycott laws and regulations. No part of the funds used by such Member to acquire its Interest has been, or shall be. direct]v or indirectly. derived From anv activity that may contravene United States federal ]a%\s or reet.ilations. includinL< anti-nionev laundering laws and reLnilatlons. no capital commitment. contribution or payment to the Company by such :Member and no distribution to such Member shall cause the Contpaiw. the Manager or the Applicable Managing Member to be in violation of an} applicably: anti -money lattnderino laws or re,ulations. including the l,nitino and Strengotheninu AnAerica by Prop iding Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 and the United States Department of the Tl'eaStlry Office of Foreian Assets Control ("Ol`AC") re2ulations, and all Capital Contributions or Capital Loans or payments to the Company by such Member shall be made through an account located in a jurisdiction that does not appear on the list of boycotting countries- published by the United States Department of Treasury pursuant to Code Section 999(a)(3). as in effect at the time of such contribution or payment. ;such Member acknowledges and agrees that. notwithstanding(T anNthin�y to the: contrary contained in this Agrecnnent. to the extent required by anti -money laundering* la,,vs or regulations or by OI AC. the Company, the Manager or the Applicable Managing Member may prohibit Capital Contributions or Capital Loans. restrict distributions or take an` other reasonably necessary or advisable action with respect to the interests in the Company. and such Member shall have no claim. and shall not pursue any claim, aggainst the Company. the lvlanager, the applicable ManaginC7 Member or any other Person to connection therewith. 4 10.12 No Plate .Assets. Such Member does not hold Plat .Assets and shall not fund any. Capital Contributions or Capital Loans with Plan Assets. Without limitation of the foregoing. such Member is not a "foreign person" within the meaning of Section 1445 of the Code: such party is not an "employee benefit pian". as defined in Section 3)(3) of ERISA.. or a `planas defined in Section 4975(e) of the Code, and the assets of such party have not been deemed "plan assets" or one or more such plans for purposes of Title I of ERISA or Section 4975 of the Code, such party is not a "governmental plan" within the meaning, of Section i(3?) of ERISA. and no transaction by or with such party is subject to or in violation of any state statures applicable to regulation of investments of and fiduciary obligations with respect to governmental plans. ARTICLE I 1 DURATION AND DISSOLUTION 11.1 Duration. (a) The Company shall be dissolved upon the earlier to occur of any of the followint: events: 40 (i) the unanimous written agreement of all of the Members: (ii) the sale or other disposition of all or substantially all of the assets of the Company; (iii) the entry of a decree of_judicial dissolLMCIII under Section 18-802 of the Act; (iv) the termination of the legal existence of the last remaining menabcr of the Company or the occurrence of any other event which terminates the continued membership of the last remaining member of the Company in the Company unless the Company is contilrlled Nvithout dissolution in a manner permitted by this Agreement or the Act; or (r-) upon the occurrence of any event that causes the last remaining member of the Company or the Member to cease to be a member of the Company (other than upon continuation of the Company X\itlrollt dissolution upon (i) an assignment by such member of its entire limited liability company interest and the admission of the transferee as a member pursuant to Article 8. to the fullest extent permitted by lacy. the personal representative ofsuch member is perch,\ authorized to, and shall. xithin 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, affee in "Titim, (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee. as the case may be, as a Substitute member of the Company with the rights (arid only the rights) of such member. effectir e as of the occurrence of the event that terminated the continued membership of the last remaining member or the N-lember in the Company. (b) Except as set forth in Section 11.1(a). dissolution of the Company shall be effective as of the day on %Nhi.ch the event occurs giving rise to the dissolution, but the Company shall not terminate until there has been a winding up of the Company's business and affairs and the assets of the Company have been distributed as provided in Section 11.2. 11.2 Liquidation of the Companv. (a) upon dissolution, the Company and any then remaining Subsidiaries Shall be liquidated in an orderly manner in accordance with the provisions of this Agreement. the Act, and any other applicable late. The Manager shall be the liquidating trustee to wind up the affairs of the Company and its Subsidiaries pursuant to this Agreement or, if the Manager is not able to act as the liquidating trustee, a liquidating trustee shall be appointed by_ and with approval of, the A!tC Member. (b) Following dissolution of the Company (Whether pursuant to Section 11. I or othentivise) and upon liquidation and winding up of the Company and any then remaining Subsidiaries.. the Manager or other liquidating trustee appointed pursuant to Section 1 1.2(a) shall rake a final allocation of all items of income. again. loss and expense in accordance with Article 3 and Section 12.6. and the Company's liabilities and obii�3ations to its creditors shall be paid. to the extent required by law or adequately provided for prior to any distributions to the Members. After payment or provision for payment of all liabilities and obligations of the Company. the remaininLy assets. if any. shall he distributed arnong the Members pursuant to Article 4. (c) Following completion of the winding up of Company affairs as contemplated by this Article 11. the Company shall terminate upon the filing of Certificate of Cancellation of the Certificate in accordance with the applicable provisions of the Act. Nmvithstanding any other provision of this Agreement, the Bankruptcy of a ]Member shall not cause a Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution. 1 1.3 Rcinoval ora 1Manaahia Member. (a) L'pon the occurrence of a Cause Event. the other :Member (the "Removing Member'") may remove the Applicable N-1anagin�- klember (the "Rernoved Managing Member") as a managing member of the Company by delivering a written notice to the Removed \lanaging Member specifying in detail the basis for such removal (the -Removal !Notice`") to such effect. (b) No removal of an Applicable Managing klernber shall be effective unless each of the following conditions are satisfied within one hundred twenty- (120) days after tlae date the Removal Notice is delivered to the Removed ikianaaino Member: (i) within ninety (90) clays after the Removal Notice. tilt new manauingo member of the Company (\.which shall be the Remo\in4-- Member) shall have assumed all obli+—'atioras of the Removed Manaoinc, Member as managing, n-retaiber under this Agreement arising on or alter the date on which the Removing Member becomes mana�uying member of the Company and (ii) if required trader the Act, an amendment to the Certificate shall have been filed with the Secretary of State of the State of Delaware [hit reflects the chane in mariaLyina member. (c) Iii the event an Applicable Managing Men'ber is removed. the Removing Member may elect to cause the Company to, or to cause each Subsidiary to. terminate the Property \Lanagement A!Zreement with the removed Applicable Managing Member and any other Affiliate Contracts Nvith the removed Applicable Managing Member or its AM If anti° such agreements are terminated pursuant to this Section 1 1.3(c), then such agreements shall be terminated after payment to tlae Property klanager or any other Affiliate of the removed Applicable Xiana�.�ing Member. as applicable. of all accrued and unpaid fees and expenses and other amounts owing with respect thereto. (d) In the event the Removed Member is the TYRC Managin4g !Member, the Removino Member may elect to also remove GGPN as the IManager and the new Manager of the Company («hick shall be the A C Member) shall assume all obligations of the Manager under this Aureement arisin4.* on or after the date oil which the AAC Member becomes the Manager. (e) The Members hereby agree to make such amendments to this Agreement as are necessary or advisable to implement the change in manaaintg member. and in all events to interpret and apply this Agreement (whether or not formal amendments are executed) in a manger consistent with such principles. 42 (t) ENcept as provided in this Section 11.3. an Applicable Managing Member or the Manan-er may not be removed. No removal of an Applicable Managing Member or the Manaver shall affect anv other rights of the Members. including the Removed Managing Member. under this Agreement. including the right to receive its share of distributions or approve Major Decisions. including the engagement of a replacement property manager for a Property. ARTICLE 1? BOOKS OF ACCOUNTS, MEETINGS: CERTAIN TAX MATTERS; ARBITRATION; 12.1 Books. The Company- shall maintain complete and accurate books of account of the Company's affairs at the Manager's principal office. which books shall be open to inspection and copying by the AAC Member (or its authorized representative) for any pLerpose reasonably related to such Member's interest in the Company at any time during ordinary business hours upon at least two (2) Business Datil' prior notice. subject in each case to any portion of the books which max, othcri� ise be kept confidential with respect to the Manager to the extent expressly provided in this Agreement. With respect to the minutes of meetings. the consents without meeting. the Certificate. the applications to conduct business filed with the authorities in those jurisdictions in which the Company is qualified to conduct its business. all licenses and other similar instruments or documents issued to the Company by such jurisdictions reflecting such qualifications (collectively. the "Corporate Documentation-). the Adana`-er shall create and complete, or cause the creation and conipletion, of the Corporate Documentation in a thiel` manner and deliver copies of the completed Corporate Documentation promptly to the AAC Member. c='o Ashkenazy Acquisition Corp.. 150 East 53'h Street'. s9"' Floor, New York. NY 10155. The AAC Member shall maintain complete and accurate books of account of the Bayside Property affairs at the AAC Member's principal office. which books shall be open to inspection and copying by GGPN (or its authorized representative) forany purpose reasonably related to such %,,ember's interest in the Bayside Property at any time during ordinary business hours upon at least two (2) Business Days' prior notice. subject in each case to any portion of the books which mai otherwise be kept confidential with respect to the AALC Member to the extent expressly provided in this Agreement. The GGPN shall maintain complete and accurate books of account of the TYRC Properties' affairs at GGPN's principal office, which books shall be open to inspection and copying by the AAC Member (or its authorized representative) for any purpose reasonably related to such Member's interest in the Company at any time during ordinary business hours upon at least tv%o (2) Business Days' prior notice subject in each case to any portion of the books which may otherwvisc be kept confidential � ith respect to GGPN to the extent expressly provided in this Agreement. Promptly following written request from a Member. the Company, the AAC Member or GGPN. as applicable. shall electronically deliver to such ?Member copies of any of the applicable books. accounts and records. 12.2 Applicable Managing Member Cooperation: Property Level Resorts. (a) The Applicable Managing Member shall (i) cooperate with the Manager to permit the ManaLer to maintain the books of the Company and prepare audits and reports in accordance with this ;Article 12 and (ii) cause the Company to comply with the record retention policy as set forth in its Property Management Agreement. (b) Pursuant to the Property Management Agreements and in accordance with Exhibit F attached hereto. each Property Manager shall prepare periodic reports (each. a "Property- Level Report") of all transactions occurring during such period with respect to each applicable Property to be furnished to the Manager. in accordance N ith the reporting deadlines set forth in Exhibit F. The: Property Lepel Reports shall be designed so as to clear]% and efficiently co1l1municate to the Manager all rele,ant information compiled on a Property by Property basis. The ueneral requirements for all Property Lc\ el Reports and other financial reports are set forth in Exhibit F attached hereto. 13.3 Fiscal Year, The Fiscal Year of the Company shall be the same as the taxable year of the Company. which shall be the calendar year, unless otherwise required by the Code. 13.4 Audit and Company Reports. The non -tax books and records of the Company and any Subsidiary shall be reported on a consolidated basis in accordance with GAAP. "rhe Nlanmzer shall furnish to each other Member: (a) xviIhin menty (20) days alter each month end. the monthly reports described on Exhibit E attached hereto: (b) kvithin ninety (90) days after the end of each Fiscal Year commencing v�dtlt the year in which the Effective Date occurs.. (i) a balance sheet. statement of earnings. statement of cash floes and statement of such Member's equity for the Company for suer year (audited by the Accountants). and (ii) such additional information as may be set forth on Exhibit F attached hereto: (c) within one hundred f fty 0 i0) days after the end of each Fiscal Year, such Members Schedule K-1 for such Fiscal Year: and (d) as soon as completed. copies of the U.S. federal and applicable state income tax returns of the Company for approval by the other Members, and information regarding reportable transactions. and any IRS Form 8886 (Reportable Transaction Disclosure Statement) filed by the Company. for each taxable year in which the Company participates in a. `'reportable transaction". Once approved by the other Members. the Manager shall cause the Company to file all applicable returns. The AAC Member and GGPN. if it is no Ionger servinu as Mana4ger. shall approve or disapprove the income tax returns within ten (10) days after delivery thereof (;and a failure to respond shall be deemed an approval). The AAC Member and GGP �I. if itis no longer serving as Manager. shall cooperate in good faith to resol.ye any disputes relating to the propriety of such income tax retums such that all returns shall be filed in a timely manner. If the ]Members shall be unable to resolve any such dispute. the dissenting Member may elect, by written notice to the Manager. to submit such dispute for resolution by a nationally reco�,-nizcd independent accounting firrn acceptable to the Manager in the exercise of its 44 ssca�c�s' � reasonableJudgment: provided. however. that the accounting firm resolving such dispute shall not be the principal accounting firm of such Member. The decision of such accounting firm with respect to a dispute shall be binding upon the Manager. Certain financial reports and schedules described in this Section 12.3 may be dependent upon information to be provided to the IN-lanag,er from the AAC ManagingMember and other third parties that are not Affiliates of the Manager. Therefore, notwithstanding the foregoing time periods. to the extent the Manag?er derives such information from the AAC Managing, fernber or any such third part)-, the Managoer may furnish such reports and schedules to the Members after the expiration of such time periods, but as soon as reasonably practicable. following receipt of all financial and other information necessary or desirable to prepare such documents. The Manager shall fiu-nish such financial reports, statements, schedules. narraii]Vc summaries and other information described in this Section 123 to the Members electronically via email. the Internet and'or another- electronic reporting, medium or as the Members may aggree. The AAC Member or GGPN. if it is no lom,er serving as Nkfanager, shall, at its sole cost and expense. have the right to audit the operations. books and records of the Company and its Subsidiaries and the ManaLer shall. and shall cause its Affiliates to, at such Member's sole cost and expense, cooperate vkith such Member and its auditors in connection with such audit. The Manager. at the cost and expense of the Company, shall provide annual audited financial statements for the Properties including. as sttpplementary schedules, a consolidated balance sheet_ cash flow statement and income: statement for the Properties and a statement of the Capital Account of such Member. I f requested, such annual financial statements shall be audited by an auditor and prepared in accordance with generally accepted accounting principles consistently applied. The Manaoer also shall deli \ er to the AAC Member or GGPN. if it is no lon;=er servinv as Manager. as art expense of the Company and in a timely manner. any other information reasonably necessary for such Member to prepare its tax returns or to obtain appraisals of the Properties.. and the Manager shall. and shall cause its Affiliates to. at the Compatly"s cost and expense, cooperate v\ ith such Member and its accountants and appraisers in connection therewith. In addition. upon request of a Member from time to time (at the sole cost and expense of' the requesting Member). the Manager shall obtain an appraisal of tile Properties in accordance with requirements reasonably determined by such Member (but the Manag„Ter shall not be required to obtain any such appraisal more than once a year). 12.5 Meetings. From time to time. but not less often than quarterly, the Manao.er shall hold Genera) informational meetin<as for the Members which mai- take place by telephone, to Provide the Members with the opportunity to review and discuss with the Manager the Company's investment activities an(] performance. Special meetings ofthe Members may be called by any Member by deliverhig at least two (2) Business Days` prior notice thereof to the Nlanag=er to discuss such matters reg,ardin- Company bLISi.ness as such Member may decide. Meetings shall be held at the principal office of the Company unless all Members agree. The Members may attend any meeting, telephonically or through the use of other communications 45 88;:7097.4 equipment by means of wwhich all Person-; participating in the meeting can communicate with each other. 12.6 Tax Allocations. (a) Except as otherww ise provided in this Section 12.6. all income. gains. losses and deductions of the Company shall be allocated, for U.S. federal, state and local income tax Purposes. among the Members in accordance with the allocation of such income. trains. losses and deductions between the Nfembers for computing their Capital Accounts. except that if any such allocation for tax purposes is not permitted by the Code or other applicable law. the C'ompas's subsequent income. gains, losses and deductions shall be allocated betwween the Members for tae purposes so as to reflect as nearly as possible the allocation set forth herein in computing their Capital Accounts. (b) Items of Company taxable income. train. loss and deduction \with respect to any property contributed to the Company by a Member shall be allocated between the Members in accordance with Code Section 704(c), as determined by the Members. so as to take into account such variation between the adjusted basis of such property to the Company for U.S. federal income: tax purposes and its Gross Asset Value. If the Gross Asset Value of any Company asset is ad.Wsted pursuant to paragraphs (b) or (4) of the definition of Gross Asset Value. subsequent allocations of items of income. gain, loss and deduction with respect to such property shall take account of anV variation between the adjusted basis of such asset for U.S. federal inCon7e taX purposes and its initial Gross Asset Value in the same manner as under Code Section 704(c), as determined li the ivIana�ger. Any elections or other decisions relating ` to such allocations shall be made by the Mcnibers rn an-,- manner that reasonable- reflects the 1+Urpose and intent of this a-reenient. Allocations pursuant to this Section 12.6(b) are solely for purposes of Federal. state. and local taxes and shall nut affect. or in any sway be taken into account in computing. any distributions to any Members in liquidation or otherwise. No Member shall have any- obligation to restore any portion of an deficit balance in such Member's Capital Account. whether upon liquidation of its interest in the Company. liquidation of the Company or otherwise. (c) Except as otherwise provided in Treas. Re;;. ti 1.704-2(f). notwithstanding the provisions of Section 3.3 or any other provision of this Section 12.6, if there is a net decrease in Company Minimum Gain dtrrintg, any Fiscal Year. each Member shall be specially allocated items of Company income and again for such year (and, if necessary. subsequent Dears) in an amount equal to such Member's share of the net deer -ease in Company Minimum Gain as detern-lincd under Treas. Rei,. §1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be allocated shall be determined in accordance with Treas. Reg. §§1,704-2(f)(6) and 1.70=1-2(j)(2). This Section 12.6(c) is intended to qualify as a `,minimum Fain char<oeback" within the meanin` of Treas. Reg. §1.704-2(f). wh=ich shall be controlling in the ew est of a conflict between such Treasury Re-. and this Section 12,6(c). (d) Except as otherwise provided in Treas. Reg. § 1.704 -?(i)(4). and nom.-ithstanding the provisions of Section 3.3 or any other provision of Section 12.6 (except this Section 12.6(d)). if there is a net decrease in Member Mininaurit Crain attributable to a Member 46 Rti��?ilF? fl Nonrecourse Liability during any Fiscal Year. each ,Member who has a share of the Member Minimum Gain attributable to such !Member Nonrecourse Liability, determined in accordance with Treas. Reg. §1.704-.2(1')(5). shall be specially allocated items of Company income and again for such year (and. if necessary. subsequent )ears) in an aanount equal to such Member's share of the net decrease in Member Minimum Crain attributable to such Member NTorii-ecourse Liability as detennined in accordance with Treas. Rea. §1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The iterns to be allocated shall be determined in accordance with Treas. Fiera. §§1.704-2(1)(4) and 1.704-2(1)(2). This Section 12.6(4) is intended to qualify as a ``chargeback of partner nonrecourse debt minimum gain" within the meaning of Treas. Reg. 1.704-2(i). which shall be controllim, in the event ofa conflict between such Treasury Reg. and this Section 12.6(d). (e) Any Nonrecourse. Deductions for any Fiscal Year shall be specially allocated to the Members in accordance "vith their respective aggregate Percentage Interests. An,,- Mernber l onrecourse Deductions for any Fiscal Year shall be speciallt allocated to the Mernber(s) who bear(s) the economic risk of loss vvith respect to the Member `nonrecourse Liability tie which such ll-lember Ni onrecourse Deductions arc artributable in accordance with Treas. Rea. 41.704-2(i). (1) Notwithstanding any other provision of this Agreement. if a Member unexpectedly receiN es an adjustment. allocation or distribution described ill Treas. Re!,. ti 1.704-1(b)(2)(110(d )(4)- (5) or (6) that naives rise to a negative Capital Account (or that would naive rise to a net}atiye Capital Account %x hen added to expected adjustments, allocations or distributions of the same type) that exceeds the amount such Nlernber is required to restore, or is deemed oblivaated to restore under the penultimate sentences of Treas. Reg, §§ 1.704-2(g)(1) and 1.704-26)(5). such Member shall be allocated items of income and gain in an amowlt and manner sufficient to eliminate such deficit balance as quickly as possible, provided. that the Company's subsequent income. gains, lasses and deductions shall be allocated arrnon�a the .Melnbers so as to achieve as nearly as possible the results that -would have been achieved if this Suction 12.6(f) had not been in this Agreement. except that no such allocation shall be made that would violate the provisions or purposes of Treas. Rett, § 1,704-1(b). (C+) In the event any Nfember has a deficit Capital Account at the end of any Fiscal Year that is in excess of the sum of (i) the amount (if any) such Member is obligated to restore to the Colnpam and (ii) the amount such Member is deerned to be obligated to restore pursuant to Treas. Reg. ti 1.704-1(b)(2)(ii)(c) or the penultimate sentences of Treas. Retg. §§ 1.704-2(o)(l ) and 1.704-2(i)(5). each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible. provided. that an allocationpursuant to this Section 12.6(2) shall be made if and only to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided in this Agreement have been tentatively made as if this Section l 2.6(a) and Section 12.6 were not in this Agreement. (h) The allocations set forth in Sections 12.6(c) through 12.6(8) are intended to comply with certain regulatory requirements. including the requirements of Treas. Ret:. 51.704-1(b) and 1.704-2. and shall be interpreted and applied consistently therewith. 47 ss.» 7us 7 () (i) For put -poses ofdeterinining a Member's share of the "excess nonrecourse liabilities" of the Company within the meaning of Treas. Reg. § 1.75? -3(a)(3), each Member's interest in Company profits shall be such Member's Percentap*e Interest. 12.7 Tax Matters Partner. (a) The Ntanaver is designated the "tax matters partner'. ofthe Company- (the "Tax Matters Partner") for purposes of Code Section 6231(a)(7) (as in effect prior to repeal of such section pursuant to the Bipartisan Budget Act of 2015) and the "partnership representative" of the Partnership (the "Partnership Representative") for purposes of Code Section 6223. (b) Each Member hereby agrees (i) to take such actions as rnav be required to effect the 111analver's designation as the Partnership Representative. and (ii) to cooperate to provide any inforn7ation or take such other actions as may be reasonably requested b% the Partnership Representative in order to modify any Imputed Underpayment Amount pursuant to Code Section 6225(c). A Partner's obli«ation to comply vvitlt this Section shall survive the transfer, assignment or liquidation of such Member' interest in the Company. (c) The Tax Matters Partner and the Members agree that each of the AAC Men7be€' and GGPI�I, if it is no longer se€v ing as i1.14tnager. will be a "notice partner-" as defined in Code Section 6231(a)(8) (res in effect prior to repeal of such section pursuant to the Bipartisan Budget Act of 20I 5)vvith respect to the Company. The Tax N-latters Partner or Partnership Representative. as applicable for the taxable year(s) in question. shall not bind the AAC tlember or GGP\. if it is no loiluer serving as !Manager, to a settlement a2reernent for federal. state or local tar purposes Without such \leinber's prior written consent. The Tax Matters Partner or Partnership Representative, as applicable for the taxable year(s) in question shall promptly provide the AAC Nle€nbcr or GGI'\. if it is no longer serving as MlanaLer. with notice of, and with anv- information the AAC Member or GGPN. if it is no Jonaer serving as Manager. reasonably requests regarding. any income tar audit or other material tax audit or proceeding with respect to the CoMpany or anv entity in which the Company ovv ns a direct or indirect interest. Y (d) Notwithstanding, anything set forth in this Agreement. the Manager shall, cause the Company° to make the following elections: (i) to adopt the calendar year as the Company's fiscal year (unless otherwise required by codes or regulations), (ii) to adopt the accrual method of accounting and to keep the Company's books and records in accordance with generally accepted accounting principles (other than Capital Accounts. which shall be maintained in accordance with Section 3.3 hereof'), (iii) if there is a distribution of Company property as described in Section 734 of the Code or if there is a transfer of a Company interest as described in Section 743 of the Code, upon written request of the AAC Member or GGPN, if it is no longer seating as INlanager, to elect, pursuant to Section 754 of the Code. to adjust the basis of Company properties: and 48 8555?rIS714 (iv) to elect to amortize the organizational expenses of the Company as pennitted by Section 709(b) of the Code. No election shall be made by the Company or any Member to (x) exclude the Company from the application of the provisions of subchapter K of chapter I of subtitle A of the Code or an\ similar provisions of applicable state laws. or (-v) treat the Company as an association taxable as a corporation for federal income tax purposes pursuant to Regulations Section 3(}1.7701-3(c). 12.8 Arbitration. Any N4ember may in accordance with this Agreement submit for arbitration the issue of (i) whether a Cause Event has occurred_ (ii) %N hether any act or omission is a Default Action. or (iii) whether Losses resulted from a Default. Action and the amount of such Losses (each, an "Arbitration Matter-), provided, how -ever. such arbitration shall be the exclusive means ofdeterminin+g whether a Cause Event occurred, -whether a Default Action occurred. whether Losses resulted from a Default Action and the amount of such Losses. Anv matter submitted for arbitration by any Member will be staved pending the outcome of the arbitration ruling. Any Member desirino to initiate the arbitration provisions of this Section 12.8 may select an independent expert (ata -Arbitration Expert`), which shall be subject to the approval of each of the ,4tembers. In the event the Members have not agreed upon an Arbitration Expect xvithin fifteen (15) days after the initial selection by the initiatin,-, Member, the Arbitration Expert (tivhich shall he an attorne% with at least ten (10 ) years of practice (at least five (5) of Which must be predominantly in the area of liti�oation, partnership and/or corporate law) and .N -ho, has served as an arbitrator in at least five (5) American Arbitration Association arbitrations) shall be selected bN- the New York Cite office of the American Arbitration Association in accordance with the Commercial ,-arbitration Rules of the. American Arbitration Association. The Arbitration Expert shall make a determination with respect to the applicable Arbitration NVIatter. and such determination shall be binding on. each Member. The Arbitration Expert shall enforce the expedited pec}ectlttres of the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. The A-i-bitration Expert's decision shall be rendered in xvritina within fourteen (14) days from the date of: the closin�„� of the hGarino or, if oral hearinss have been waived.. from the date of the American Arbitration Association's transmittal of the final statements and proofs to the Arbitration Expert. as set forth in such expedited procedures. The cost of the Arbitration Expert (and the cost of the arbitration, ifany) shall be borne by the Company. except that each Mennber shall pay the costs of its counsel and experts. Notwithstanding any provision of this Agreement to the contrary, this Section 12.8 shall be construed to the maximum extent possible to comply with the lays of the State of Delaware, including the t'fniform Arbitration Act (10 Del. C. a 570I, et seq.) (the "Delaware Arbitration Act"). If. nevertheless, it shall be determined by a court of competent jurisdiction that any provision or wording of this flection I2.8. including any Commercial Arbitration Rules or rules offthe American Arbitration Association. shall be invalid or unenforceable tinder the Delaware Arbitration Act. or other applicable la -vv. such invalidity shall not invalidate all of this Section 12.8. In that case. this Section 12,8 shall be construed so as to limit any term or provision so as to male it valid or enforceable within the requirements of the Delaware Arbitration Act or other applicable law. and. in the even such term or provision cannot be so limited. Section 12.8 shall be construed to omit such invalid or unenllorceable provision. 49 ARTICLE 13 MISCELLANEOUS 13.1 Amendments. This Agreement may be amended. modilied or waived only by the written consent of all of the Members. 13.2 Successors. Subject to the provisions of Article 3 this Agreement shall inure to the benefit of and be bindinL' upon the Members and their legal representatives.. heirs. successors and assio_ns. 13.5 C,overnim—, Lmv: Severability. This A�cyreement shall be governed by and construed in accordance with the lairs of the State of Dela,%are, \.vithout regard to the convicts of law rules thereof. If it is determined by a court of competent jurisdiction that any provision of this A`reenicnt iti invalid under applicable la\\ such provision shall be ineffective only in such jurisdiction and only to the extent of such prohibition or invalidity. without invalidatin&I the remainder of this Agreement. L 13.1 Notices. All notices_ demands and other communications to be Given and delivered under or by reason of ,provisions under this Agreement shall be in writing and shall be deemed to }cave been given on the d4Ite when personally delivered.. three (3) Business Days after bein4o mailed bN first class mail (postage prepaid and return receipt requested). or transmitted by email (in the case of facsimile or email. if sent before 3:017 p.m. Central Time on a Business Day (and otherwise on the next Business Day) and proN ided that a copy is contemporaneously sent b-% another mcili od of delivery). or on the first Business Day' after being sent by reputable overnight courier serN ice (char�(,es prepaid). in each case to the recipient at the address. or email address set forth in Schedule I or to such other address. or email address or to the attention of such other Person as has been indicated to the ]tilanar_er in accordance with the provisions of this Section 13.x. A copy of any notice to the AAC Member shall be sent by like means to Friss & Feuerstein LLP, 360 Lexington Avenue. Suite I200, New York, NY 10017 Attn: David Kriss. I 3.5 Entire Agreement. This Agreement contains the entire aoreernent among the respective parties with respect to the subject matter hereof and supersedes all prior arrangements or understandings with respect thereto. 13.6 Counter arts: Facsimile and Other Electronic Transmission, This Ag=reement. the a =reements referred to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby. and any amendments hereto or thereto may be executed in any number of counterparts_ any one of which need not contain the siunatures of more than one party. but all of such counterparts together shall constitute one ac.yreement. and to the extent such aureement or instrument is sib-ned and delivered by means of a facsimile machine or other electronic transmission. will be treated in all manner and respects as an ori, agreement or instrument and will be considered to have the same bindini- legal effect as if it were the orig=inal si�_,ned version thereof delivered in person. At the request of any party hereto or to any such ag=reement or instrument, each parly, hereto or thereto will re -execute original forms thereof and deliver them to the requesting party. No party hereto or to any such agreement or instrument will raise the use of a facsimile machine or other electronic transmission to deliver a signature or the fact that any signature or agreement or instrument was transmitted or 50 communicated through the use of a facsimile machine or other electronic transn-iission as a defense to the fornlation or enforceability of a contract and each such party forever waives any such defense. 13. 7 l-leadinLS. Descriptive headings are for convenience only and shall not control or affect the meanim, or construction of any provision of this Agreement. 13. 8 father Matters of Construction. Unless the context otherN ise requires: (a) a terra has the rneaning=assigned to it, (b) "or' is not exclusite: (c) words in the singular include the Plural- and kvords in the plural include the singular: ("d) provisions apply to successive events and transactions, (e) the words '-herein." "hereof' and other words of similar i.nlport refer to this Agreement as a whole and not to any particular Article. Section or other subdivision: (f) all references herein to Articles, Sections. Exhibits, paragraphs, subparagraphs and clauses shall be deemed to be references to Articles. Sections, paragraphs, subparagraphs and clauses of. and Exhibits to, this Agreement unless the context shall otherwise require: (g) any pronoun used in this Agreement shall include the corresponding mascuiine. feminine or neuter forms, (h) the words -include." "includes" and 'including•_ shall be deemed to be followed by the phrase ,.Without limitation": (i) the kvord "extent" in the phrase "to the extent" shall mean the deoree to which a subject or other thing extends, and such phrase shall not mean simply "if.: (j) references to "S" or " dollars" shall mean United States dollars. (k) unless otherwise expressly provided herein, any agreement. instrument or statute defined or referred to herein or in any aLreement. instrument or statute that is referred to herein means such aureemcnt, instrument or statute. to�ucther kwith all attachments thereto and documents incorporated therein. as the same are from time to time amended. modified or supplemented. (including (i) in the case: of agreements or instruments. by N%giver or consent and (ii) in the case of statutes. by succession of comparable successor statutes.', (l) all references to any Member shall mean and include such Member and any Pcrson duly admitted as a member in rite Company in substitution therefor in accordance ,with this Agreement. unless the context otherwise: requires and (m) in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed to be the product of meaningful individualized negotiations between the %lernbers and no presumption or burden of proof shall arise favoring or disfavoring any Member by virtue of the authorship of any of the provisions of this Agreement. 13.9 Further Assurances. Each Member hereby covenants and agrees on behalf of itself and its successors and assigns, without further consideration. to prepare. execute, acknowledge.. file, record. publish and deliver such other inforn7ation, instruments, documents, tax forms and statements. 13.10 No Third Parte Beneficiaries, No Person (including creditors of the Company) that is not a party hereto shall have any rights or obligations pursuant to this A4greement. The provisions of this Agreement are intended to benefit the Members and. to the fullest extent permitted by law, shall not be construed as conferring any benefit upon any creditor of the Company or other Person. To the fullest extent permitted by law, no klember shall have any duty or obligation to any creditor of the Company to make any contribution to the Company or recall any distribution. In no event shall any provision of this Agreement be enforceable for the benefit of anti Person other than the Members and their respective successor's and assigns. 51 W;7[757.4 13.11 Narne RiLThts. Each of the Company and the AAC Member (other than the Manager) aeknowtedges that it has no ownership interest in the name "GGP�" or '`General Grorkrth Properties. and that from and after a sale or other transfer by GGPN pursuant to this Agreement and other event as described elsewhere in this A�.treenient, neither the Company nor the Manager, or Substitute Member steal l use the name "GGII" or _'General Gro\vdi Properties-' in connection with a Property or other4k Ise. 13.I2 Waiver ofJur\• Trial. TO THE FULLEST EXTENT PERMITTED BY LAW. EAC I -I MENIBER, FOR ITSELF AND ON BEHALF OF ITS AFFILIATES. HEREBY WAIVES fTS RIGHT TO TRIAL BY JURY IN ANY ACTION, LAWSUIT OR PROCEEDING RF1..AT[NG TO ANY DISPUTE ARISING UNDER OR IN CONNECTION WITH THIS ACTRE F\,[ENT OR ANY TRANSACTION DESCRIBED IN THIS AGRELNIENT OR DISPUTE BE] WEEN THE PARTIES (ENCLUIDING DISPUTES WHICH ALSO INVOLVE OTHER PERSONS). 13.1 ; ExCIuSIVC Jurisdiction. Except with respect to Arbitration Matters that ars; the subject of arbitration under Section 12.3. each party hereto hereby irrevocably (a) submits to the exclusive jurisdiction of any Delaware state or federal court, in am action or proceeding arising out of or relatinL� to this A-reement, the relations betwk� en the Members and any matter, action or transaction described in this Agreement. whether in contract. tort or otherwise. (b) a«recs that such courts shall have exClusive jurisdiction oder such actions or proceedings_ (c) waives the defense that any such court is an inconvenient forum to the maintenance and continuation or such action or proccedi rig. (d) consents to the service of any and all process in any such action or proceeding by the mailing of copies (certified mail, return receipt requested and postag prepaid) Of such process to them pursuant to Section 13.4 and (e) agrees that a final and non -appealable Judgment renderer:{ by a court of compe tent jurisdiction in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judarnent or in any other manner provided by lay. In the event that an action or proceeding is initiated in one of the courts referenced above and is pending,,. the parties hereto agree, for the convenience of the parties and subject to any limitations on subject matter jurisdiction of the court. to initiate any counterclaims or related actions in the same proceeding (as opposed to a separate proceeding in wiv of the other courts specified above). 13.14 Time of Essence. Except as provided herein and unless other -wise agreed by all Members. tine is of the essence of this Aareement and all covenants and deadlines hereunder. 13.15 Cumulative Remedies. Except to the extent expressly stated in this Agreement, (a) no remedy conferred upon the Company or any Member pursuant to this Agreement is intended to be exclusive of any other remedy available under this Agreement or applicable late and (b) each remedy shall be Cumulative and shall be in addition to every other remedy available under this A+-rezment or applicable lati\ now or in the future. 13.16 Estoppels. After request by a Member. the other ,til�2nibers shall w-ithirl ten (10) Business Days furnish the requesting Member with a statement, duly acknowledged and certified, setting forth (i) a copy of this Agreement and the governine documents of any Subsidiary (collectively. the "Governin; Documents"). and (11") a statement, to its knot%ledge. ss.7�is?.9 v�ith respect to \OeLher the Governinq DOCUMentS have been modified or if modified. giving particulars of such modification. [Signatures on next page] 53 IN NVIT\ESS WHEREOF. this Limited Liability! Compaiiy :'Agreement has been executed and delivered by the Members effective as of the Effective Date. BAYSIDE EQUITIES, LLC, a Delaware limited liability company ma Name: Title: GGP LEMITED PARTNERSHIP, a Delaware li mited partnership, as the WithdraN in 1,lember By: GGP Operating Partnership. LP_ its general partner By: GGP Real Estate Iloldiiio 11. hic.. its general partner By: Dame: Title: 98"7097. 10 GGP NIMBCS, LP, a Delaware limited partnership By: GGP Operating Partnership. LP. its general partner By: GGP Real Estate Holding II. hic.. its general partner By: Name: Title: Names. Addresses Did Facsimile Mimberq GGP Nimbus, LP 1 10 N. Wacker Drive Chicatoc). IL 60606 Facsimile No.: 312- 960-5504 Bayside Equities LLC c/o Ashkenazv Acquisition Corp. 150 East 58'h Street. 39"j' Floor New York, NY 10155 Facsimile No. 212- '•_' 13-5713 xxi;7 "x; 11) SCHEDULEI Members Initial Capital Company Account Percentage Balance Interest $j ] 51.00% $ [______] 49.00% EXHIBIT A AAC LOAN AGREEMENT ssi;7091.10 EXHIBIT B PROPERTY BUDGETS 995570S'. 10 EXHIBIT C FORINI OF PROPERTY MANAGEMENT AGREEMENT sg:7087 1€1 EXHIBIT D COMPANY'S AUDITORS AND ENVIRONMENTAL. CONSULTANTS Company's Auditors: Deloitte LLP Emst & Youner LLP Environmental: Internal General Grox th Properties. Inc. staff 8$5?71I87 10 EXHIBIT E CONIPANY REPORTI\G REQUIREMENTS Executive SUmmary (substantially in the term attached hereto) A/R Aging Detailed GAAP income Statement Detailed Balance Sheet Property Sales and Occupancy Cost Rent Roil Summary Balance Sheet Summary GAAP Income Statement Trial Balance RR;5708T W EXHIBIT F' PROPERTY LEVEL REPORTING REQUIREMENTS Detailed Balance Sheet - nth calendar day Monthly. Trial Balance - 5"' calendar day monthly. Detailed GAAP Income Statement -- 5`h calendar day monthly Cash Flaw Statement — 10'h calendar day quarterly. r Comparative Income Statement — I O'h calendar day quarterly. unless needed more frequently. IB udo'et to Actual. Summary Balance Sheet and Support Schedules - 1 Oth calendar day quarterly. Spreadsheet type reports. • Schedules for all Balance Sheet Accounts. • YTD Management Fee Schedule, • Straight -Line Rent Calculation. • AmortizationfDeprectation Schedules. • Insurance Schedule. • Real Fstate Tax Schedule, Summary GAAP Income Statement and Support Schedules -10th calendar day quarterly. + Schedules for all Income Statement Accounts. + Detailed Interest Expense Schedules. + NOT Schedule Before and After Management Fees. • NOT Total Schedule. Aged Delinquency Report - 5th calendar day quarterly. Rent Rall — ?'h calendar day monthly. Open AP Report -- 5`h calendar day quarterly. Executive Summary — 1 O'h calendar day monthly. Leasing Report — 10`' calendar day monthly. Other Non -Monthly Reports • Required Audit Documents (annually). 'GGP: GGP ro confirm the level of detail in Lhe Property Level reports. 98557(187. 10 BAYSIDE MARKETPLACE (JV) Ba%sidc EqwkicN. L.t.r. (Ashkcnaz. GGP Nimbus. LP 100% ZMB JV LLC Documents Proposed Amended and Restated MB GP TYRC LL 1V LLC Agreement Bayside � rketplace, LL Bayside MaH(etpdace (Miami, FL) GROUND LEASE Beginning 2 years and 3 months after AAC has made the contribution, for a period of 3 months, AAC will have the right to cause MB JV LLC to distribute GGP TYRC LLC to GGP Nimbus, LP in redemption of its interests in MB JV LLC. Beginning a year later, for a period of 3 months, GGP will have the right to cause the distribution in-kind to occur. 5