Common use of Management and Control of the Company Clause in Contracts

Management and Control of the Company. (i) The Members have established the Company as a “managers- managed” limited liability company and have agreed to designate a board of managers (the “Board of Managers”) of three Persons to manage the Company and its business and affairs. Each of the Persons appointed to the Board of Managers is referred to herein as a “Manager.” The Managers shall be designated solely by a Majority in Interest of the Common Members. Any Manager may be removed, at any time, by a Majority in Interest of the Common Members, in their sole discretion. (ii) The Board of Managers shall be comprised of the individuals set forth on Schedule IV attached hereto. The Board of Managers shall cause Schedule IV to be updated from time to time as necessary to reflect any removal and/or the filling of any vacancy. Any revision to Schedule IV made in accordance with this Section 4.01(a)(ii) shall not be deemed an amendment to this Agreement. Any reference in this Agreement to Schedule IV shall be deemed to be a reference to Schedule IV as revised and in effect from time to time. (iii) The Board of Managers shall have the exclusive right to manage and control the Company, subject to the Act and any provisions herein requiring the approval of certain Members including Sections 4.01(d), 4.01(e) and 8.04 hereof. Except as otherwise specifically provided herein, the Board of Managers shall have the right to perform all actions necessary, convenient or incidental to the accomplishment of the purposes and authorized acts of the Company, as specified in Sections 2.05 and 2.06 hereof, and each Manager shall possess and may enjoy and exercise all of the rights and powers of a “manager” as provided in and under the Act; and each Manager shall be a “manager” for purposes of the Act; provided, however, that no individual Manager shall have the authority to act for or bind the Company without the requisite consent of the Board of Managers. (iv) Unless expressly provided to the contrary in this Agreement, any action, consent, approval, election, decision or determination to be made by the Board of Managers under or in connection with this Agreement (including any act by the Board of Managers within its “discretion” under this Agreement and the execution and delivery of any documents or agreements on behalf of the Company), shall be in the sole and absolute discretion of the Board of Managers. (v) Meetings of the Board of Managers shall be held not less than quarterly. All quarterly and other meetings of the Board of Managers shall be held in the continental United States or telephonically. All quarterly and other meetings of the Board of Managers shall be held when called by any Manager, upon not less than five business days’ advance written notice to the other Managers and the Observers. Attendance at any meeting of the Board of Managers shall constitute waiver of notice of such meeting. Additionally, a waiver of such notice in writing signed by any Manager or Observer entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The quorum for a meeting of the Board of Managers shall be a majority of the Managers. Managers may participate in any meeting of the Board of Managers by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. All action taken by the Board of Managers shall be by a vote of a simple majority of the Managers present at a meeting thereof in person or by telephone. Except as expressly provided in this Section 4.01(a), the Board of Managers shall conduct its business in such manner and by such procedures as a majority of its members deem appropriate. (vi) The Board of Managers may also take action without any meeting of the Managers by written consent of a simple majority of the Managers setting forth the action to be approved. (vii) The Board of Managers may create and maintain customary committees, including an executive committee, an audit committee and a compensation committee. (viii) To the fullest extent permitted by applicable Law, including, without limitation, Section 18-1101(c) of the Act, and notwithstanding any provision at law or in equity to the contrary, in conducting the affairs of the Company, the Managers and the Board of Managers shall take into account the interests of (and shall owe fiduciary duties, including the duties of care, loyalty, candor and good faith, to) the Company and shall not owe any fiduciary duties to the Members directly, to creditors or to any other constituency, provided, however, that actions pursuant to each of Sections 5.04, 5.06(a), 8.04 and 8.05 hereof shall be excluded from this Section 4.01(a)(viii). (b) Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, no Member, in its capacity as such, shall participate in or have any say or control whatsoever over the Company Business. Each such Member hereby consents to the exercise by the Board of Managers of the powers conferred upon the Board of Managers by this Agreement. Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, the Members, in their capacities as such, shall not participate in the management, direction or operation of the activities or affairs of the Company and shall not have any authority or right, in their capacities as Members of the Company, to act for or bind the Company. (c) The Board of Managers is authorized to appoint any person as an officer of the Company who shall have such powers, subject to Sections 4.01(d) and 4.01(e) and perform such duties incident to such person’s office as may from time to time be conferred upon or assigned to it by the Board of Managers and assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any such person. Any appointment pursuant to this Section 4.01(c) may be revoked at any time by the Board of Managers. In addition, the Board of Managers is authorized to employ, engage and dismiss, on behalf of the Company, any Person, including an Affiliate of any Member, to perform services for, or furnish goods to, the Company. Unless the Board of Managers states otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. The initial officers of the Company shall be as follows: Xxxxx Xxxxxx President Xxxxx Xxxxxxxxx Secretary (d) Notwithstanding Section 4.01(a) hereof, for so long as the Consent Holder shall own any Junior Preferred Units (other than with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), which shall be applicable as long as the Preferred Members own any Junior Preferred Interests) and until the Junior Preferred Payment shall have occurred, the Company shall not, and shall not permit any of the Material Subsidiaries and/or Subsidiaries (as specified below) to, take any Junior Significant Action without obtaining the prior written consent of the Consent Holder (after the Closing, in accordance with Section 4.01(f) hereof), or with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), a Majority in Interest of the Junior Preferred Members; provided, however, that nothing in this Section 4.01(d) will prohibit the Company or any Subsidiary (i) from taking any of the actions set forth on Schedule V; (ii) from complying with any (A) applicable Law or (B) regulatory requirement, directive or order of any relevant Department; or (iii) from taking any Junior Significant Action if, as a result thereof, the entire Junior Liquidation Preference will be distributed to the holders of the Junior Preferred Units. “Junior Significant Action” means any of the following:

Management and Control of the Company. (i) The Members have established the Company as a “managers- managed” limited liability company and have agreed to designate a board of managers (the “Board of Managers”) of three Persons to manage the Company and its business and affairs. Each of the Persons appointed to the Board of Managers is referred to herein as a “Manager.” The Managers shall be designated solely by a Majority in Interest of the Common Members. Any Manager may be removed, at any time, by a Majority in Interest of the Common Members, in their sole discretion. (ii) The Board of Managers shall be comprised of the individuals set forth on Schedule IV attached hereto. The Board of Managers shall cause Schedule IV to be updated from time to time as necessary to reflect any removal and/or the filling of any vacancy. Any revision to Schedule IV made in accordance with this Section 4.01(a)(ii) shall not be deemed an amendment to this Agreement. Any reference in this Agreement to Schedule IV shall be deemed to be a reference to Schedule IV as revised and in effect from time to time. (iii) The Board of Managers shall have the exclusive right to manage and control the Company, subject to the Act and any provisions herein requiring the approval of certain Members including Sections 4.01(d), 4.01(e) and 8.04 hereof. Except as otherwise specifically provided herein, the Board of Managers shall have the right to perform all actions necessary, convenient or incidental to the accomplishment of the purposes and authorized acts of the Company, as specified in Sections 2.05 and 2.06 hereof, and each Manager shall possess and may enjoy and exercise all of the rights and powers of a “manager” as provided in and under the Act; and each Manager shall be a “manager” for purposes of the Act; provided, however, that no individual Manager shall have the authority to act for or bind the Company without the requisite consent of the Board of Managers. (iv) Unless expressly provided to the contrary in this Agreement, any action, consent, approval, election, decision or determination to be made by the Board of Managers under or in connection with this Agreement (including any act by the Board of Managers within its “discretion” under this Agreement and the execution and delivery of any documents or agreements on behalf of the Company), shall be in the sole and absolute discretion of the Board of Managers. (v) Meetings of the Board of Managers shall be held not less than quarterly. All quarterly and other meetings of the Board of Managers shall be held in the continental United States or telephonically. All quarterly and other meetings of the Board of Managers shall be held when called by any Manager, upon not less than five business days’ advance written notice to the other Managers and the Observers. Attendance at any meeting of the Board of Managers shall constitute waiver of notice of such meeting. Additionally, a waiver of such notice in writing signed by any Manager or Observer entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The quorum for a meeting of the Board of Managers shall be a majority of the Managers. Managers may participate in any meeting of the Board of Managers by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. All action taken by the Board of Managers shall be by a vote of a simple majority of the Managers present at a meeting thereof in person or by telephone. Except as expressly provided in this Section 4.01(a), the Board of Managers shall conduct its business in such manner and by such procedures as a majority of its members deem appropriate. (vi) The Board of Managers may also take action without any meeting of the Managers by written consent of a simple majority of the Managers setting forth the action to be approved. (vii) The Board of Managers may create and maintain customary committees, including an executive committee, an audit committee and a compensation committee. (viii) To the fullest extent permitted by applicable Law, including, without limitation, Section 18-1101(c) of the Act, and notwithstanding any provision at law or in equity to the contrary, in conducting the affairs of the Company, the Managers and the Board of Managers shall take into account the interests of (and shall owe fiduciary duties, including the duties of care, loyalty, candor and good faith, to) the Company and shall not owe any fiduciary duties to the Members directly, to creditors or to any other constituency, provided, however, that actions pursuant to each of Sections 5.04, 5.06(a5.05(a), 8.04 and 8.05 hereof shall be excluded from this Section 4.01(a)(viii). (b) Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, no Member, in its capacity as such, shall participate in or have any say or control whatsoever over the Company Business. Each such Member hereby consents to the exercise by the Board of Managers of the powers conferred upon the Board of Managers by this Agreement. Except as provided in Sections 4.01(d), 4.01(e)5.04, 8.04 or 8.05 hereof, the Members, in their capacities as such, shall not participate in the management, direction or operation of the activities or affairs of the Company and shall not have any authority or right, in their capacities as Members of the Company, to act for or bind the Company. (c) The Board of Managers is authorized to appoint any person as an officer of the Company who shall have such powers, subject to Sections Section 4.01(d) and 4.01(e) ), and perform such duties incident to such person’s office as may from time to time be conferred upon or assigned to it by the Board of Managers and assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any such person. Any appointment pursuant to this Section 4.01(c) may be revoked at any time by the Board of Managers. In addition, the Board of Managers is authorized to employ, engage and dismiss, on behalf of the Company, any Person, including an Affiliate of any Member, to perform services for, or furnish goods to, the Company. Unless the Board of Managers states otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. The initial officers of the Company shall be as follows: Xxxxx Xxxxxx President Xxxxx Xxxxxxxxx Secretary: (d) Notwithstanding Section 4.01(a) hereof, for so long as the Consent Holder shall own any Junior Preferred Units (other than with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), which shall be applicable as long as the Preferred Members own any Junior Preferred Interests) Interests and until the Junior Preferred Payment shall have occurred, the Company shall not, and shall not permit any of the Material Subsidiaries and/or Subsidiaries (as specified below) to, take any Junior Significant Action without obtaining the prior written consent of the Consent Holder (after the Closing, in accordance with Section 4.01(f4.01(e) hereof), or with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), a Majority in Interest of the Junior Preferred Members; provided, however, that nothing in this Section 4.01(d) will prohibit the Company or any Subsidiary (i) from taking any of the actions set forth on Schedule V; (ii) from complying with any (A) applicable Law or (B) regulatory requirement, directive or order of any relevant Department; or (iii) from taking any Junior Significant Action if, as a result thereof, the entire Junior Liquidation Preference will be distributed to the holders of the Junior Preferred Units. “Junior Significant Action” means any of the following:or

Management and Control of the Company. (ia) The Members have established daily business, investment property(ies) and affairs of the Company shall be managed by the Manager. Except for matters as a “managers- managed” limited liability company and have agreed to designate a board of managers (which the “Board of Managers”) of three Persons to manage the Company and its business and affairs. Each approval of the Persons appointed to other Members is expressly required by this Operating Agreement (Article VI(c) below), the Board of Managers is referred to herein as a “Manager.” The Managers shall be designated solely by a Majority in Interest of the Common Members. Any Manager may be removed, at any time, by a Majority in Interest of the Common Members, in their sole discretion. (ii) The Board of Managers shall be comprised of the individuals set forth on Schedule IV attached hereto. The Board of Managers shall cause Schedule IV to be updated from time to time as necessary to reflect any removal and/or the filling of any vacancy. Any revision to Schedule IV made in accordance with this Section 4.01(a)(ii) shall not be deemed an amendment to this Agreement. Any reference in this Agreement to Schedule IV shall be deemed to be a reference to Schedule IV as revised and in effect from time to time. (iii) The Board of Managers shall have the full, complete and exclusive right authority, power and discretion to manage and control the Companybusiness, subject property(ies) and affairs of the Company (including, but not limited to, any and all decisions with respect to renovation and tenanting of the Investment Property(ies), the supervision and oversight of the Investment Property(ies) Contractors and the Investment Property(ies) Management Companies, and the management of the Investment Property(ies) Sale or Alternate Exit Strategy in accordance with the terms hereof), to make all decisions regarding those matters, and to perform any and all other acts or activities customary or incident to the Act and any provisions herein requiring the approval of certain Members including Sections 4.01(d), 4.01(e) and 8.04 hereof. Except as otherwise specifically provided herein, the Board of Managers shall have the right to perform all actions necessary, convenient or incidental to the accomplishment of the purposes and authorized acts management of the Company’s business, as specified in Sections 2.05 property(ies) and 2.06 hereof, and each affairs. (b) The Manager shall possess also be responsible for (i) directing and may enjoy and exercise all overseeing any repairs/ renovation of the rights Investment Property(ies) if needed through the Investment Property(ies) Contractors and powers of a “manager” as provided (ii) directing and overseeing the Investment Property(ies) Management Companies in locating and under installing any new Tenant for the Act; and each Manager shall be a “manager” for purposes of the ActInvestment Property(ies); provided, however, that no individual that, in each case, the Manager shall have no liability for any actions taken by any third party (including, but not limited to, the authority to act for Investment Property(ies) Contractors or bind the Company without the requisite consent Investment Property(ies) Management Company(ies)), and that each of the Board Members hereby indemnifies the Manager with respect to any work or action undertaken by either the Investment Property(ies) Contractors or the Investment Property(ies) Management Companies except in the instance of Managers. (iv) Unless expressly provided to gross negligence, willful misconduct or actual fraud on the contrary in this Agreement, any action, consent, approval, election, decision or determination to be made by party of the Board of Managers under or Manager in connection there with. The Members hereby agree and acknowledge that the Manager is not affiliated with this Agreement (including either the Investment Property(ies) Management Company(ies) or the Investment Property(ies) Contractors, and any act and all actions taken by the Board of Managers within its “discretion” under this Agreement and the execution and delivery of any documents or agreements on behalf them shall be completely independent of the Company), shall be in the sole Manager and absolute discretion of the Board of Managers. (v) Meetings of the Board of Managers shall be held not less than quarterly. All quarterly and other meetings of the Board of Managers shall be held in the continental United States or telephonically. All quarterly and other meetings of the Board of Managers shall be held when called by any Manager, upon not less than five business days’ advance written notice to the other Managers and the Observers. Attendance at any meeting of the Board of Managers shall constitute waiver of notice of such meeting. Additionally, a waiver of such notice in writing signed by any Manager or Observer entitled individual to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The quorum for a meeting of the Board of Managers shall be a majority of the Managers. Managers may participate in any meeting of the Board of Managers by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. All action taken by the Board of Managers shall be by a vote of a simple majority of the Managers present at a meeting thereof in person or by telephone. Except as expressly provided in this Section 4.01(a), the Board of Managers shall conduct its business in such manner and by such procedures as a majority of its members deem appropriate. (vi) The Board of Managers may also take action without any meeting of the Managers by written consent of a simple majority of the Managers setting forth the action to be approved. (vii) The Board of Managers may create and maintain customary committees, including an executive committee, an audit committee and a compensation committee. (viii) To the fullest extent permitted by applicable Law, including, without limitation, Section 18-1101(c) of the Act, and notwithstanding any provision at law or in equity to the contrary, in conducting the affairs of the Company, the Managers and the Board of Managers shall take into account the interests of (and shall owe fiduciary duties, including the duties of care, loyalty, candor and good faith, to) the Company and shall not owe any fiduciary duties to the Members directly, to creditors or to any other constituency, provided, however, that actions pursuant to each of Sections 5.04, 5.06(a), 8.04 and 8.05 hereof shall be excluded from this Section 4.01(a)(viii). (b) Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, no Member, in its capacity as such, shall participate in or have any say or control whatsoever over the Company Business. Each such Member hereby consents to the exercise by the Board of Managers of the powers conferred upon the Board of Managers by this Agreement. Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, the Members, in their capacities as such, shall not participate in the management, direction or operation of the activities or affairs of the Company and shall not have any authority or right, in their capacities as Members of the Company, to act for or bind the Companyparty. (c) Notwithstanding any other provision of this Operating Agreement, the Manager shall have no authority hereunder to engage in any of the following without first obtaining the affirmative vote or written consent of the majority (51% or more) of the Members according to their Percentage Interests: (i) a capital call for any Mandatory Additional Capital Contribution totaling more than $3,000 in the aggregate for each such Member; (ii) any Investment Property(ies) Sale; or (iii) the institution of any Alternate Exit Strategy (d) The Board of Managers is authorized to appoint any person as an Manager, acting individually, shall be the signing officer of the Company who shall have such powershaving the authority to bind the Company in all its contracts, subject debts and liabilities, promissory notes, bills of exchange and other instruments in writing to Sections 4.01(dbe executed by the Company other than as expressly provided otherwise herein. (e) The Manger and 4.01(eits affiliates, shareholders, members, partners, managers, directors, officers and employees (collectively, the “Affiliated Persons”) and perform such duties incident to such person’s office as may from will only devote so much time to time the affairs of the Company as is reasonably required in the judgment of the Manager. The Affiliated Persons will not be conferred upon precluded from engaging directly or assigned indirectly in any other business or other activity, including exercising investment advisory and management responsibility and buying, selling or otherwise dealing with investments for their own accounts, for the accounts of family members, for the accounts of other individuals and institutional clients (collectively, “Other Accounts”). Such Other Accounts may have investment objectives or may implement investment strategies similar to it those of the Company. The Affiliated Persons may also have investments in certain of the Other Accounts. Each of the Affiliated Persons may give advice and take action in the performance of their duties to their Other Accounts that could differ from the timing and nature of action taken with respect to the Company. The Affiliated Persons will have no obligation to purchase or sell for the Company any investment that the Affiliated Persons purchase or sell, or recommend for purchase or sale, for their own accounts or for any of the Other Accounts. No Non-Managing Member will, by the Board reason of Managers and assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any such person. Any appointment pursuant to this Section 4.01(c) may be revoked at any time by the Board of Managers. In addition, the Board of Managers is authorized to employ, engage and dismiss, on behalf being a Member of the Company, have any Person, including an Affiliate right to participate in any manner in any profits or income earned or derived by or accruing to the Affiliated Persons from the conduct of any Member, to perform services for, business or furnish goods to, from any transaction in investments effected by the Affiliated Persons for any account other than that of the Company. Unless the Board of Managers states otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. The initial officers of the Company shall be as follows: Xxxxx Xxxxxx President Xxxxx Xxxxxxxxx Secretary (d) Notwithstanding Section 4.01(a) hereof, for so long as the Consent Holder shall own any Junior Preferred Units (other than with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), which shall be applicable as long as the Preferred Members own any Junior Preferred Interests) and until the Junior Preferred Payment shall have occurred, the Company shall not, and shall not permit any of the Material Subsidiaries and/or Subsidiaries (as specified below) to, take any Junior Significant Action without obtaining the prior written consent of the Consent Holder (after the Closing, in accordance with Section 4.01(f) hereof), or with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), a Majority in Interest of the Junior Preferred Members; provided, however, that nothing in this Section 4.01(d) will prohibit the Company or any Subsidiary (i) from taking any of the actions set forth on Schedule V; (ii) from complying with any (A) applicable Law or (B) regulatory requirement, directive or order of any relevant Department; or (iii) from taking any Junior Significant Action if, as a result thereof, the entire Junior Liquidation Preference will be distributed to the holders of the Junior Preferred Units. “Junior Significant Action” means any of the following:.

Management and Control of the Company. (ia) The Members have established Except as otherwise provided herein, the management, control and operation of the business and affairs of the Company as a “managers- managed” limited liability company and have agreed to designate a board of managers (the “Board of Managers”) of three Persons to manage the Company and its business and affairs. Each of the Persons appointed to the Board of Managers is referred to herein as a “Manager.” The Managers shall be designated solely by a Majority in Interest of vested exclusively with the Common Members. Any Manager may be removed, at any time, by a Majority in Interest of the Common Members, in their sole discretion. (ii) The Board of Managers shall be comprised of the individuals set forth on Schedule IV attached heretoManaging Member. The Board of Managers shall cause Schedule IV to be updated from time to time as necessary to reflect any removal and/or the filling of any vacancy. Any revision to Schedule IV made in accordance with this Section 4.01(a)(ii) shall not be deemed an amendment to this Agreement. Any reference in this Agreement to Schedule IV shall be deemed to be a reference to Schedule IV as revised and in effect from time to time. (iii) The Board of Managers Managing Member shall have the exclusive right authority to manage exercise all powers necessary and control convenient for the purposes of the Company, including those set forth in Section 2.6, on behalf, and in the name, of the Company, subject to compliance with the Act restrictions and any other provisions herein requiring the approval of certain Members including Sections 4.01(d), 4.01(e) and 8.04 hereofthis Agreement. Except as otherwise specifically provided herein, the Board of Managers shall have the right Subject to perform all actions necessary, convenient or incidental to the accomplishment of the purposes and authorized acts of the Company, as specified in Sections 2.05 and 2.06 hereof, and each Manager shall possess and may enjoy and exercise all of the rights and powers of a “manager” the Managing Member and the limitations thereon contained in this Agreement, the Managing Member may delegate to any person any or all of its powers, rights and obligations under this Agreement and may appoint, contract or otherwise deal with any person to perform any acts or services for the Company as provided in the Managing Member may reasonably determine. Notwithstanding any delegation made by the Managing Member, the Managing Member shall oversee any Person so appointed or contracted to perform any acts or services for the Company on the Managing Member’s behalf and under the Act; and each Manager Managing Member shall be a “manager” liable for purposes any breaches of this Agreement caused by the Act; providedforegoing. Unless the authority of an agent designated as an officer is limited in the document appointing such officer or is otherwise specified by the Managing Member, howeverany officer so appointed shall, that no individual Manager shall subject to this Article IV, have the same authority to act for or bind the Company without as a corresponding officer of a Delaware corporation would have to act for a Delaware corporation in the requisite consent absence of a specific delegation of authority. The officers of the Board Company shall have the same fiduciary duties to the Company as an officer of Managersa Delaware corporation has under Delaware law. The Managing Member may, in its sole discretion, by vote or resolution thereof ratify any act previously taken by an officer or agent acting on behalf of the Company. The Managing Member is specifically authorized to execute, sign, seal and deliver in the name of and on behalf of the Company any and all agreements, certificates, instruments or other documents requisite to carrying out the intentions and purposes of this Agreement and of the Company. (ivb) Unless expressly provided to the contrary in this Agreement, any action, consent, approval, election, decision or determination to be made by the Board of Managers Managing Member under or in connection with this Agreement (including any act by the Board of Managers Managing Member within its “discretion” under this Agreement and the execution and delivery of any documents or agreements on behalf of the Company), ) shall be in the sole and absolute discretion of the Board of ManagersManaging Member. (vc) Meetings of the Board of Managers shall be held not less than quarterly. All quarterly and other meetings of the Board of Managers shall be held in the continental United States or telephonically. All quarterly and other meetings of the Board of Managers shall be held when called by any Manager, upon not less than five business days’ advance written notice to the other Managers and the Observers. Attendance at any meeting of the Board of Managers shall constitute waiver of notice of such meeting. Additionally, a waiver of such notice in writing signed by any Manager or Observer entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The quorum for a meeting of the Board of Managers shall be a majority of the Managers. Managers may participate in any meeting of the Board of Managers by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. All action taken by the Board of Managers shall be by a vote of a simple majority of the Managers present at a meeting thereof in person or by telephone. Except as expressly provided in this Section 4.01(a), the Board of Managers shall conduct its business in such manner and by such procedures as a majority of its members deem appropriate. (vi) The Board of Managers may also take action without any meeting of the Managers by written consent of a simple majority of the Managers setting forth the action to be approved. (vii) The Board of Managers may create and maintain customary committees, including an executive committee, an audit committee and a compensation committee. (viii) To the fullest extent permitted by applicable Law, including, without limitation, Section 18-1101(c) of the Act, and notwithstanding any provision at law or in equity to the contrary, in conducting the affairs of the Company, the Managers and the Board of Managers shall take into account the interests of (and shall owe fiduciary duties, including the duties of care, loyalty, candor and good faith, to) the Company and shall not owe any fiduciary duties to the Members directly, to creditors or to any other constituency, provided, however, that actions pursuant to each of Sections 5.04, 5.06(a), 8.04 and 8.05 hereof shall be excluded from this Section 4.01(a)(viii). (b) Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, no Member, in its capacity as such, shall participate in or have any say or control whatsoever over the Company Business. Each such Member hereby consents to the exercise by the Board of Managers Managing Member of the powers conferred upon the Board of Managers Managing Member by the Act and this Agreement. Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, Agreement with respect to the Members, in their capacities as such, shall not participate in the management, direction or operation management and control of the activities or affairs of the Company and Company. The Members shall not have any authority or right, in their capacities as Members of the Company, to act for or bind the Company. . Any Person dealing with the Company or any Member may rely upon a certificate signed by the Managing Member or a duly authorized officer appointed by the Managing Member, as applicable, as to (a) the identity of any Members; (b) any factual matters relevant to the affairs of the Company; (c) The Board of Managers is the Persons who are authorized to appoint execute and deliver any person as an officer of the Company who shall have such powers, subject to Sections 4.01(d) and 4.01(e) and perform such duties incident to such person’s office as may from time to time be conferred upon or assigned to it by the Board of Managers and assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any such person. Any appointment pursuant to this Section 4.01(c) may be revoked at any time by the Board of Managers. In addition, the Board of Managers is authorized to employ, engage and dismiss, document on behalf of the Company; or (d) any action taken or omitted by the Company, any Person, including an Affiliate of the Managing Member or any Member, to perform services for, or furnish goods to, the Company. Unless the Board of Managers states otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. The initial officers of the Company shall be as follows: Xxxxx Xxxxxx President Xxxxx Xxxxxxxxx Secretary. (d) Notwithstanding Section 4.01(a) hereof, for so long The Managing Member as of the Consent Holder effectiveness of this Agreement shall own any Junior Preferred Units (other than with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), which shall be applicable as long as the Preferred Members own any Junior Preferred Interests) and serve in such capacity until the Junior Preferred Payment shall have occurredearliest of its dissolution, termination, resignation or bankruptcy. Upon the dissolution, termination, resignation or bankruptcy of the Managing Member, the Company shall not, and shall not permit any holders of the Material Subsidiaries and/or Subsidiaries (as specified below) to, take any Junior Significant Action without obtaining the prior written consent of the Consent Holder (after the Closing, in accordance with Section 4.01(f) hereof), or with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), a Majority in Interest of the Junior Preferred Members; provided, however, that nothing in this Section 4.01(d) will prohibit the Company or any Subsidiary (i) from taking any of the actions set forth on Schedule V; (ii) from complying with any (A) applicable Law or (B) regulatory requirement, directive or order of any relevant Department; or (iii) from taking any Junior Significant Action if, as Class A Members may select a result thereof, the entire Junior Liquidation Preference will be distributed to the holders of the Junior Preferred Units. “Junior Significant Action” means any of the following:new Managing Member.

Management and Control of the Company. (i) The Members have established the Company as a “managers- managed” limited liability company and have agreed to initially designate a board of managers (the “Board of Managers”) of three Persons to manage the Company and its business and affairs. Each of the Persons appointed to the Board of Managers is referred to herein as a “Manager.” The Managers shall be designated solely by a Majority in Interest of the Common Members. Any Manager may be removed, at any time, by a Majority in Interest of the Common Members, in their sole discretion. (ii) The Board of Managers shall initially be comprised of the individuals set forth on Schedule IV attached hereto. The Board of Managers shall cause Schedule IV to be updated from time to time as necessary to reflect any removal and/or the filling of any vacancy. Any amendment or revision to Schedule IV made in accordance with this Section 4.01(a)(ii) Agreement shall not be deemed an amendment to this Agreement. Any reference in this Agreement to Schedule IV shall be deemed to be a reference to Schedule IV as revised amended and in effect from time to time. (iii) The Board of Managers shall have the exclusive right to manage and control the Company, subject to the Act and any provisions herein requiring the approval of certain Members including Sections 4.01(d), 4.01(e) and 8.04 hereof. Except as otherwise specifically provided herein, the Board of Managers shall have the right to perform all actions necessary, convenient or incidental to the accomplishment of the purposes and authorized acts of the Company, as specified in Sections 2.05 and 2.06 hereof, and each Manager shall possess and may enjoy and exercise all of the rights and powers of a “manager” as provided in and under the Act; and each Manager shall be a “manager” for purposes of the Act; provided, however, that no individual Manager shall have the authority to act for or bind the Company without the requisite consent of the Board of Managers. (iv) Unless expressly provided to the contrary in this Agreement, any action, consent, approval, election, decision or determination to be made by the Board of Managers under or in connection with this Agreement (including any act by the Board of Managers within its “discretion” under this Agreement and the execution and delivery of any documents or agreements on behalf of the Company), shall be in the sole and absolute discretion of the Board of Managers. (v) Meetings of the Board of Managers shall be held not less than quarterly. All quarterly and other meetings of the Board of Managers shall be held in the continental United States or telephonically. All quarterly and other meetings of the Board of Managers shall be held when called by any Manager, upon not less than five business days’ advance written notice to the other Managers and the Observers. Attendance at any meeting of the Board of Managers shall constitute waiver of notice of such meeting. Additionally, a waiver of such notice in writing signed by any Manager or Observer entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The quorum for a meeting of the Board of Managers shall be a majority of the Managers. Managers may participate in any meeting of the Board of Managers by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. All action taken by the Board of Managers shall be by a vote of a simple majority of the Managers present at a meeting thereof in person or by telephone. Except as expressly provided in this Section 4.01(a), the Board of Managers shall conduct its business in such manner and by such procedures as a majority of its members deem appropriate. (vi) The Board of Managers may also take action without any meeting of the Managers by written consent of a simple majority of the Managers setting forth the action to be approved. (vii) The Board of Managers may create and maintain customary committees, including an executive committee, an audit committee and a compensation committee. (viii) To the fullest extent permitted by applicable Law, including, without limitation, Section 18-1101(c) of the Act, and notwithstanding any provision at law or in equity to the contrary, in conducting the affairs of the Company, the Managers and the Board of Managers shall take into account the interests of (and shall owe fiduciary duties, including the duties of care, loyalty, candor and good faith, to) the Company and shall not owe any fiduciary duties to the Members directly, to creditors or to any other constituency, provided, however, that actions pursuant to each of Sections Section 5.04, Section 5.06(a), Section 8.04 and Section 8.05 hereof shall be excluded from this Section 4.01(a)(viii). (b) Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, no Member, in its capacity as such, shall participate in or have any say or control whatsoever over the Company Business. Each such Member hereby consents to the exercise by the Board of Managers of the powers conferred upon the Board of Managers by this Agreement. Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, the Members, in their capacities as such, shall not participate in the management, direction or operation of the activities or affairs of the Company and shall not have any authority or right, in their capacities as Members of the Company, to act for or bind the Company. (c) The Board of Managers is authorized to appoint any person as an officer of the Company who shall have such powers, subject to Sections 4.01(d) and 4.01(e) and perform such duties incident to such person’s office as may from time to time be conferred upon or assigned to it by the Board of Managers and assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any such person. Any appointment pursuant to this Section 4.01(c) may be revoked at any time by the Board of Managers. In addition, the Board of Managers is authorized to employ, engage and dismiss, on behalf of the Company, any Person, including an Affiliate of any Member, to perform services for, or furnish goods to, the Company. Unless the Board of Managers states otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. The initial officers of the Company shall be as followsfollows2: Xxxxx Xxxxxx President Xxxxx Xxxxxxxxx Secretary[●] Secretary and Treasurer (d) Notwithstanding Section 4.01(a) hereof, for so long as the Consent Holder shall own any Junior Preferred Units Interests (other than with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), which shall be applicable as long as the Preferred Members own any Junior Preferred Interests) and until the Junior Preferred Payment shall have occurred, the Company shall not, and shall not permit any of the Material Subsidiaries and/or Subsidiaries (as specified below) to, take any Junior Significant Action without obtaining the prior written consent of the Consent Holder (after the Closing, in accordance with Section 4.01(f) hereof), or with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), a Majority in Interest of the Junior Preferred Members; provided, however, that nothing in this Section 4.01(d) will prohibit the Company or any Subsidiary (i) from taking any of the actions set forth on Schedule V; (ii) from complying with any (A) applicable Law or (B) regulatory requirement, directive or order of any relevant Department; or (iii) from taking any Junior Significant Action if, as a result thereof, the entire Junior Liquidation Preference will be distributed to the holders of the Junior Preferred Units. “Junior Significant Action” means any of the following:

Management and Control of the Company. (i) The Members have established the Company as a “managers- managers-managed” limited liability company and have agreed to designate a board of managers (the “Board of Managers”) of three Persons to manage the Company and its business and affairs. Each of the Persons appointed to the Board of Managers is referred to herein as a “Manager.” The Managers shall be designated solely by a Majority in Interest of the Common Members. Any Manager may be removed, at any time, by a Majority in Interest of the Common Members, in their sole discretion. (ii) The Board of Managers shall be comprised of the individuals set forth on Schedule IV attached hereto. The Board of Managers shall cause Schedule IV to be updated from time to time as necessary to reflect any removal and/or the filling of any vacancy. Any revision to Schedule IV made in accordance with this Section 4.01(a)(ii) shall not be deemed an amendment to this Agreement. Any reference in this Agreement to Schedule IV shall be deemed to be a reference to Schedule IV as revised and in effect from time to time. (iii) The Board of Managers shall have the exclusive right to manage and control the Company, subject to the Act and any provisions herein requiring the approval of certain Members including Sections 4.01(d), 4.01(e) and 8.04 hereof. Except as otherwise specifically provided herein, the Board of Managers shall have the right to perform all actions necessary, convenient or incidental to the accomplishment of the purposes and authorized acts of the Company, as specified in Sections 2.05 and 2.06 hereof, and each Manager shall possess and may enjoy and exercise all of the rights and powers of a “manager” as provided in and under the Act; and each Manager shall be a “manager” for purposes of the Act; provided, however, that no individual Manager shall have the authority to act for or bind the Company without the requisite consent of the Board of Managers. (iv) Unless expressly provided to the contrary in this Agreement, any action, consent, approval, election, decision or determination to be made by the Board of Managers under or in connection with this Agreement (including any act by the Board of Managers within its “discretion” under this Agreement and the execution and delivery of any documents or agreements on behalf of the Company), shall be in the sole and absolute discretion of the Board of Managers. (v) Meetings of the Board of Managers shall be held not less than quarterly. All quarterly and other meetings of the Board of Managers shall be held in the continental United States or telephonically. All quarterly and other meetings of the Board of Managers shall be held when called by any Manager, upon not less than five business days’ advance written notice to the other Managers and the Observers. Attendance at any meeting of the Board of Managers shall constitute waiver of notice of such meeting. Additionally, a waiver of such notice in writing signed by any Manager or Observer entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The quorum for a meeting of the Board of Managers shall be a majority of the Managers. Managers may participate in any meeting of the Board of Managers by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. All action taken by the Board of Managers shall be by a vote of a simple majority of the Managers present at a meeting thereof in person or by telephone. Except as expressly provided in this Section 4.01(a), the Board of Managers shall conduct its business in such manner and by such procedures as a majority of its members deem appropriate. (vi) The Board of Managers may also take action without any meeting of the Managers by written consent of a simple majority of the Managers setting forth the action to be approved. (vii) The Board of Managers may create and maintain customary committees, including an executive committee, an audit committee and a compensation committee. (viii) To the fullest extent permitted by applicable Law, including, without limitation, Section 18-1101(c) of the Act, and notwithstanding any provision at law or in equity to the contrary, in conducting the affairs of the Company, the Managers and the Board of Managers shall take into account the interests of (and shall owe fiduciary duties, including the duties of care, loyalty, candor and good faith, to) the Company and shall not owe any fiduciary duties to the Members directly, to creditors or to any other constituency, provided, however, that actions pursuant to each of Sections 5.04, 5.06(a5.05(a), 8.04 and 8.05 hereof shall be excluded from this Section 4.01(a)(viii). (b) Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, no Member, in its capacity as such, shall participate in or have any say or control whatsoever over the Company Business. Each such Member hereby consents to the exercise by the Board of Managers of the powers conferred upon the Board of Managers by this Agreement. Except as provided in Sections 4.01(d), 4.01(e)5.04, 8.04 or 8.05 hereof, the Members, in their capacities as such, shall not participate in the management, direction or operation of the activities or affairs of the Company and shall not have any authority or right, in their capacities as Members of the Company, to act for or bind the Company. (c) The Board of Managers is authorized to appoint any person as an officer of the Company who shall have such powers, subject to Sections Section 4.01(d) and 4.01(e) ), and perform such duties incident to such person’s office as may from time to time be conferred upon or assigned to it by the Board of Managers and assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any such person. Any appointment pursuant to this Section 4.01(c) may be revoked at any time by the Board of Managers. In addition, the Board of Managers is authorized to employ, engage and dismiss, on behalf of the Company, any Person, including an Affiliate of any Member, to perform services for, or furnish goods to, the Company. Unless the Board of Managers states otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. The initial officers of the Company shall be as follows: Xxxxx Xxxxxx President Xxxxx Xxxxxxxxx Secretary: (d) Notwithstanding Section 4.01(a) hereof, for so long as the Consent Holder shall own any Junior Preferred Units (other than with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), which shall be applicable as long as the Preferred Members own any Junior Preferred Interests) Interests and until the Junior Preferred Payment shall have occurred, the Company shall not, and shall not permit any of the Material Subsidiaries and/or Subsidiaries (as specified below) to, take any Junior Significant Action without obtaining the prior written consent of the Consent Holder (after the Closing, in accordance with Section 4.01(f4.01(e) hereof), or with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), a Majority in Interest of the Junior Preferred Members; provided, however, that nothing in this Section 4.01(d) will prohibit the Company or any Subsidiary (i) from taking any of the actions set forth on Schedule V; (ii) from complying with any (A) applicable Law or (B) regulatory requirement, directive or order of any relevant Department; or (iii) from taking any Junior Significant Action if, as a result thereof, the entire Junior Liquidation Preference will be distributed to the holders of the Junior Preferred Units. “Junior Significant Action” means any of the following:

Management and Control of the Company. (i) The Members have established 7.1. Management by the Company as a “managers- managed” limited liability company and have agreed to designate a board of managers (the “Board of Managers”) of three Persons to manage the Company and its business and affairs. Each of the Persons appointed to the Board of Managers is referred to herein as a “Manager.” The Managers shall be designated solely by a Majority in Interest of the Common Members. Any Manager may be removed, at any time, by a Majority in Interest of the Common Members, in their sole discretionBoard. (iia) The management of the Company shall be vested in the Board. Except as otherwise provided in this Agreement, the Board shall have all authority, rights and powers in the management of Managers the Company business to do any and all acts and things necessary, proper, appropriate, advisable, incidental or convenient to effectuate the purposes of this Agreement. Any action taken by the Board on behalf of the Company in accordance with the foregoing provisions shall constitute the act of and shall serve to bind the Company. The Board shall initially be comprised of two persons, consisting initially of Thomas J. Barrack, Jr. and Nicholas L. Ribis; (collectively, the individuals set forth on Schedule IV attached hereto. The Board of Managers shall cause Schedule IV to "Boarx Xxxxxxx"), xxx xxxxxafter xxxxx xxxxxxx xx such number as may be updated fixed from time to time by resolution the Voting Majority In Interest. The Board shall also consist of one person to serve as necessary a non-voting board observer representing the employees of the Company (the "ERISA Representative"). The ERISA Representative shall be entitled to reflect attend any removal and/or and all meetings of the filling Board but shall not have any voting rights in respect of any vacancyactions taken by the Board. (b) Except as otherwise required by law, any Board Member may be removed from the Board, with or without cause, by the Voting Majority In Interest and the office of such Board Member shall forthwith become vacant. Any revision to Schedule IV made in accordance with this Section 4.01(a)(ii) Board Member may resign at any time. Such resignation shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the Board. The acceptance of a resignation shall not be deemed an amendment necessary to this Agreementmake it effective, unless so specified therein. Any reference in this Agreement to Schedule IV vacancy on the Board, occurring from any cause whatsoever, shall be deemed to be filled by a reference to Schedule IV as revised and in effect from time to timecandidate appointed by the Voting Majority In Interest. (iii) The Board of Managers shall have the exclusive right to manage and control the Company, subject to the Act and any provisions herein requiring the approval of certain Members including Sections 4.01(d), 4.01(e) and 8.04 hereof. Except as otherwise specifically provided herein, the Board of Managers shall have the right to perform all actions necessary, convenient or incidental to the accomplishment of the purposes and authorized acts of the Company, as specified in Sections 2.05 and 2.06 hereof, and each Manager shall possess and may enjoy and exercise all of the rights and powers of a “manager” as provided in and under the Act; and each Manager shall be a “manager” for purposes of the Act; provided, however, that no individual Manager shall have the authority to act for or bind the Company without the requisite consent of the Board of Managers. (iv) Unless expressly provided to the contrary in this Agreement, any action, consent, approval, election, decision or determination to be made by the Board of Managers under or in connection with this Agreement (including any act by the Board of Managers within its “discretion” under this Agreement and the execution and delivery of any documents or agreements on behalf of the Company), shall be in the sole and absolute discretion of the Board of Managers. (vc) Meetings of the Board of Managers shall be held not less than quarterlyat such times and locations as may be determined by the Voting Majority In Interest. All quarterly Notice of each meeting shall be given by the Voting Majority In Interest to each Board Member and other meetings shall state the place, date and time of the meeting. Notice of such meeting shall be mailed, postage prepaid, to each Board Member addressed to him at his address or usual place of business by first class mail, at least ten (10) business days before the day on which such meeting is to be held, or shall be sent addressed to such Board Member at such place by facsimile, overnight courier, telex, or be delivered to him personally or by telephone, at least seven (7) days before the time at which such meeting is to be held. (d) A majority of the Board Members shall constitute a quorum for the transaction of Managers business. If a quorum shall not be held in the continental United States or telephonically. All quarterly and other meetings of the Board of Managers shall be held when called by any Manager, upon not less than five business days’ advance written notice to the other Managers and the Observers. Attendance present at any meeting of the Board, the Board of Managers shall constitute waiver of notice Members present thereat may adjourn the meeting to another time and place. Notice of such meeting. Additionally, a waiver time and place of such notice in writing signed by any Manager or Observer entitled to such notice, whether before or after the time stated therein, adjourned meeting shall be deemed equivalent given to the giving of such notice. The quorum for a meeting all of the Board Members unless such time and place were announced at the meeting at which the adjournment was taken, in which case such notice shall only be given to the Board Members who were not present thereat. At such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called. Wherever approval by the Board is required by this Agreement, such approval shall, except as otherwise set forth herein, consist of Managers shall be the affirmative vote of a majority of a quorum of the Managers. Managers Board Members. (i) Any action required or permitted to be taken by the Board may be taken without a meeting if all the Board Members consent in writing, and (ii) one or more Board Members may participate in any meeting of the Board by means of Managers by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. All action taken by the Board of Managers shall be by a vote of a simple majority of the Managers present at a meeting thereof in person or by telephone. Except as expressly provided in this Section 4.01(a), the Board of Managers shall conduct its business in such manner and by such procedures as a majority of its members deem appropriate. (vi) The Board of Managers may also take action without any meeting of the Managers by written consent of a simple majority of the Managers setting forth the action to be approved. (vii) The Board of Managers may create and maintain customary committees, including an executive committee, an audit committee and a compensation committee. (viii) To the fullest extent permitted by applicable Law, including, without limitation, Section 18-1101(c) of the Act, and notwithstanding any provision at law or in equity to the contrary, in conducting the affairs of the Company, the Managers and the Board of Managers shall take into account the interests of (and shall owe fiduciary duties, including the duties of care, loyalty, candor and good faith, to) the Company and shall not owe any fiduciary duties to the Members directly, to creditors or to any other constituency, provided, however, that actions pursuant to each of Sections 5.04, 5.06(a), 8.04 and 8.05 hereof shall be excluded from this Section 4.01(a)(viii). (b) Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, no Member, in its capacity as such, shall participate in or have any say or control whatsoever over the Company Business. Each such Member hereby consents to the exercise by the Board of Managers of the powers conferred upon the Board of Managers by this Agreement. Except as provided in Sections 4.01(d), 4.01(e), 8.04 or 8.05 hereof, the Members, in their capacities as such, shall not participate participation in the management, direction or operation of the activities or affairs of the Company and shall not have any authority or right, in their capacities as Members of the Company, to act for or bind the Company. (c) The Board of Managers is authorized to appoint any person as an officer of the Company who shall have such powers, subject to Sections 4.01(d) and 4.01(e) and perform such duties incident to such person’s office as may from time to time be conferred upon or assigned to it by the Board of Managers and assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any such person. Any appointment meeting pursuant to this Section 4.01(c7.1(e)(ii) may be revoked at any time by the Board of Managers. In addition, the Board of Managers is authorized to employ, engage and dismiss, on behalf of the Company, any Person, including an Affiliate of any Member, to perform services for, or furnish goods to, the Company. Unless the Board of Managers states otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute presence in person at the delegation to such person of the authorities and duties that are normally associated with that office. The initial officers of the Company shall be as follows: Xxxxx Xxxxxx President Xxxxx Xxxxxxxxx Secretary (d) Notwithstanding Section 4.01(a) hereof, for so long as the Consent Holder shall own any Junior Preferred Units (other than with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), which shall be applicable as long as the Preferred Members own any Junior Preferred Interests) and until the Junior Preferred Payment shall have occurred, the Company shall not, and shall not permit any of the Material Subsidiaries and/or Subsidiaries (as specified below) to, take any Junior Significant Action without obtaining the prior written consent of the Consent Holder (after the Closing, in accordance with Section 4.01(f) hereof), or with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), a Majority in Interest of the Junior Preferred Members; provided, however, that nothing in this Section 4.01(d) will prohibit the Company or any Subsidiary (i) from taking any of the actions set forth on Schedule V; (ii) from complying with any (A) applicable Law or (B) regulatory requirement, directive or order of any relevant Department; or (iii) from taking any Junior Significant Action if, as a result thereof, the entire Junior Liquidation Preference will be distributed to the holders of the Junior Preferred Units. “Junior Significant Action” means any of the following:meeting.

Management and Control of the Company. (ia) The Members have established daily business, investment property(ies) and affairs of the Company shall be managed by the Manager. Except for matters as a “managers- managed” limited liability company and have agreed to designate a board of managers (which the “Board of Managers”) of three Persons to manage the Company and its business and affairs. Each approval of the Persons appointed to other Members is expressly required by this Operating Agreement (Article VI(c) below), the Board of Managers is referred to herein as a “Manager.” The Managers shall be designated solely by a Majority in Interest of the Common Members. Any Manager may be removed, at any time, by a Majority in Interest of the Common Members, in their sole discretion. (ii) The Board of Managers shall be comprised of the individuals set forth on Schedule IV attached hereto. The Board of Managers shall cause Schedule IV to be updated from time to time as necessary to reflect any removal and/or the filling of any vacancy. Any revision to Schedule IV made in accordance with this Section 4.01(a)(ii) shall not be deemed an amendment to this Agreement. Any reference in this Agreement to Schedule IV shall be deemed to be a reference to Schedule IV as revised and in effect from time to time. (iii) The Board of Managers shall have the full, complete and exclusive right authority, power and discretion to r e s e a r c h , l o c a t e a n d a c q u i r e , manage and control the Companybusiness, subject property(ies) and affairs of the Company (including, but not limited to, any and all decisions with respect to renovation and tenanting of the Investment Property(ies), the supervision and oversight of the Investment Property(ies) Contractors and the Investment Property(ies) Management Companies, and the management of the Investment Property(ies) Sale or Alternate Exit Strategy in accordance with the terms hereof, to make all decisions regarding those matters, and to perform any and all other acts or activities customary or incident to the Act and any provisions herein requiring the approval of certain Members including Sections 4.01(d), 4.01(e) and 8.04 hereof. Except as otherwise specifically provided herein, the Board of Managers shall have the right to perform all actions necessary, convenient or incidental to the accomplishment of the purposes and authorized acts management of the Company’s business, as specified in Sections 2.05 property(ies) and 2.06 hereof, and each Manager shall possess and may enjoy and exercise all of the rights and powers of a “manager” as provided in and under the Act; and each Manager shall be a “manager” for purposes of the Act; provided, however, that no individual Manager shall have the authority to act for or bind the Company without the requisite consent of the Board of Managers. (iv) Unless expressly provided to the contrary in this Agreement, any action, consent, approval, election, decision or determination to be made by the Board of Managers under or in connection with this Agreement (including any act by the Board of Managers within its “discretion” under this Agreement and the execution and delivery of any documents or agreements on behalf of the Company), shall be in the sole and absolute discretion of the Board of Managers. (v) Meetings of the Board of Managers shall be held not less than quarterly. All quarterly and other meetings of the Board of Managers shall be held in the continental United States or telephonically. All quarterly and other meetings of the Board of Managers shall be held when called by any Manager, upon not less than five business days’ advance written notice to the other Managers and the Observers. Attendance at any meeting of the Board of Managers shall constitute waiver of notice of such meeting. Additionally, a waiver of such notice in writing signed by any Manager or Observer entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. The quorum for a meeting of the Board of Managers shall be a majority of the Managers. Managers may participate in any meeting of the Board of Managers by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. All action taken by the Board of Managers shall be by a vote of a simple majority of the Managers present at a meeting thereof in person or by telephone. Except as expressly provided in this Section 4.01(a), the Board of Managers shall conduct its business in such manner and by such procedures as a majority of its members deem appropriate. (vi) The Board of Managers may also take action without any meeting of the Managers by written consent of a simple majority of the Managers setting forth the action to be approved. (vii) The Board of Managers may create and maintain customary committees, including an executive committee, an audit committee and a compensation committee. (viii) To the fullest extent permitted by applicable Law, including, without limitation, Section 18-1101(c) of the Act, and notwithstanding any provision at law or in equity to the contrary, in conducting the affairs of the Company, the Managers and the Board of Managers shall take into account the interests of (and shall owe fiduciary duties, including the duties of care, loyalty, candor and good faith, to) the Company and shall not owe any fiduciary duties to the Members directly, to creditors or to any other constituency, provided, however, that actions pursuant to each of Sections 5.04, 5.06(a), 8.04 and 8.05 hereof shall be excluded from this Section 4.01(a)(viii)affairs. (b) Except The Manager shall also be responsible for (i) Researching, investigating, locating and identifying and acquiring the investment property(ies) (ii) Purchasing and obtaining title for those property(ies) (iii) Directing and overseeing any repairs/renovation of the Investment Property(ies) if needed through the Investment Property(ies) Contractors, (iv) Directing and overseeing the Investment Property(ies) Management Companies in locating and installing any new Tenant for the Investment Property(ies) (v) Eventual sale of the Property(ies) (vi) Communicate and provide information to Members as provided deemed herein provided, however, that, in Sections 4.01(deach case, the Manager shall have no liability for any actions taken by any third party (including, but not limited to, the Investment Property(ies) Contractors or the Investment Property(ies) Management Company(ies)), 4.01(e), 8.04 or 8.05 hereof, no Member, in its capacity as such, shall participate in or have any say or control whatsoever over the Company Business. Each such Member hereby consents to the exercise by the Board of Managers and that each of the powers conferred upon Members hereby indemnifies the Board of Managers Manager with respect to any work or action undertaken by this Agreement. Except as provided in Sections 4.01(d), 4.01(e), 8.04 either the Investment Property(ies) Contractors or 8.05 hereof, the Members, in their capacities as such, shall not participate Investment Property(ies) Management Companies except in the managementinstance of gross negligence, direction willful misconduct or operation actual fraud of the activities Manager in connection there with. The Members hereby agree and acknowledge that the Manager is not affiliated with either the Investment Property(ies) Management Company(ies) or affairs the Investment Property(ies) Contractors, and any and all actions taken by them shall be completely independent of the Company Manager and shall not have any authority or right, in their capacities as Members of the Company, individual to act for or bind the Companysuch party. (c) Notwithstanding any other provision of this Operating Agreement, the Manager shall have no authority hereunder to engage in any of the following without first obtaining the affirmative vote or written consent of the majority (51% or more) of the Members according to their Percentage Interests: (i) a capital call for any Mandatory Additional Capital Contribution totaling more than $3,000 in the aggregate for each such Member; (ii) the institution of any Alternate Exit Strategy (d) The Board of Managers is authorized to appoint any person as an Manager, acting individually, shall be the signing officer of the Company who shall have such powershaving the authority to bind the Company in all its contracts, subject debts and liabilities, promissory notes bills of exchange and other instruments in writing to Sections 4.01(dbe executed by the Company other than as expressly provided otherwise herein. (e) The Manger and 4.01(eits affiliates, shareholders, members, partners, managers, directors, officers and employees (collectively, the “Affiliated Persons”) and perform such duties incident to such person’s office as may from will only devote so much time to time the affairs of the Company as is reasonably required in the judgment of the Manager. The Affiliated Persons will not be conferred upon precluded from engaging directly or assigned indirectly in any other business or other activity, including exercising investment advisory and management responsibility and buying, selling or otherwise dealing with investments for their own accounts, for the accounts of family members, for the accounts of other individuals and institutional clients (collectively, “Other Accounts”). Such Other Accounts may have investment objectives or may implement investment strategies similar to it those of the Company. The Affiliated Persons may also have investments in certain of the Other Accounts. Each of the Affiliated Persons may give advice and take action in the performance of their duties to their Other Accounts that could differ from the timing and nature of action taken with respect to the Company. The Affiliated Persons will have no obligation to purchase or sell for the Company any investment that the Affiliated Persons purchase or sell, or recommend for purchase or sale, for their own accounts or for any of the Other Accounts. No Non-Managing Member will, by the Board reason of Managers and assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any such person. Any appointment pursuant to this Section 4.01(c) may be revoked at any time by the Board of Managers. In addition, the Board of Managers is authorized to employ, engage and dismiss, on behalf being a Member of the Company, have any Person, including an Affiliate right to participate in any manner in any profits or income earned or derived by or accruing to the Affiliated Persons from the conduct of any Member, to perform services for, business or furnish goods to, from any transaction in investments effected by the Affiliated Persons for any account other than that of the Company. Unless the Board of Managers states otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. The initial officers of the Company shall be as follows: Xxxxx Xxxxxx President Xxxxx Xxxxxxxxx Secretary (d) Notwithstanding Section 4.01(a) hereof, for so long as the Consent Holder shall own any Junior Preferred Units (other than with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), which shall be applicable as long as the Preferred Members own any Junior Preferred Interests) and until the Junior Preferred Payment shall have occurred, the Company shall not, and shall not permit any of the Material Subsidiaries and/or Subsidiaries (as specified below) to, take any Junior Significant Action without obtaining the prior written consent of the Consent Holder (after the Closing, in accordance with Section 4.01(f) hereof), or with respect to Sections 4.01(d)(i), 4.01(d)(ii) and 4.01(d)(ix), a Majority in Interest of the Junior Preferred Members; provided, however, that nothing in this Section 4.01(d) will prohibit the Company or any Subsidiary (i) from taking any of the actions set forth on Schedule V; (ii) from complying with any (A) applicable Law or (B) regulatory requirement, directive or order of any relevant Department; or (iii) from taking any Junior Significant Action if, as a result thereof, the entire Junior Liquidation Preference will be distributed to the holders of the Junior Preferred Units. “Junior Significant Action” means any of the following:.