Common use of Administrative Member Clause in Contracts

Administrative Member. (a) The administrative member of the Company (the “Administrative Member”) shall be Sponsor, unless and until Sponsor is removed as Administrative Member pursuant to the terms of this Section 7.03(a), in which event the Administrative Member shall be such other Member of the Company as may be designated by the Executive Committee. The Administrative Member shall, subject to the availability of Company funds from Revenues, Capital Contributions or other sources, (i) conduct the business of the Company on a day-to-day basis, and use diligent efforts to cause such operations to be conducted in accordance with the Budget and the Operating Plan and such other guidelines as shall be adopted by the Executive Committee (provided that the foregoing covenant does not constitute a guaranty by the Administrative Member that (A) the Project will be completed without cost overruns or within any schedule set out in the Budget or the Operating Plan or (B) the Company Property will perform in accordance with the Budget and Operating Plan or such guidelines), (ii) retain Sponsor, or another person or entity approved by the Executive Committee, to perform the Company Management Services for the Company, (iii) perform the duties assigned to it hereunder, and (iv) carry out all decisions and resolutions of the Executive Committee; provided, however, that notwithstanding anything contained in this Agreement to the contrary, the Administrative Member shall only be obligated to perform those services which are (A) required of it pursuant to the express terms of this Agreement or (B) reasonably requested of it by the Executive Committee, and reasonably agreed to by the Administrative Member, to the extent the same are consistent with other services customarily provided by administrative members or managers in comparable circumstances; provided, however, Administrative Member shall not be entitled to any additional compensation for services required by this

Administrative Member. (a) The Managing Member shall designate one of the Members to act as the administrative member of the Company (the “Administrative Member”) shall be Sponsorand implement the decisions of the Managing Member. Pursuant to such designation, unless and until Sponsor is removed as Administrative Member pursuant to the terms of this Section 7.03(a), in which event the Administrative Member shall be such other Member responsible for performing, or for causing to be performed, and shall have the authority to perform the duties described in this Section 7.2 or as otherwise specifically set forth herein, in each instance subject to the requirement of receiving the prior Approval of the Company Managing Member and/or BH, as may be designated applicable, if and when required by the Executive Committeeterms hereof. The Administrative Member shall, subject to the availability of Company funds from Revenues, Capital Contributions or other sources, : (i) conduct the business of the Company on a day-to-day basis, and use diligent efforts to cause such operations to be conducted in accordance with the Budget and the Operating Plan and such other guidelines or requirements as shall be adopted by the Executive Committee (provided that Managing Member from time to time, which duties may be discharged by delegating the foregoing covenant does not constitute same to a guaranty property manager Approved by the Administrative Managing Member that (A) pursuant to a property management agreement in form and substance acceptable to the Project will be completed without cost overruns or within any schedule set out in the Budget or the Operating Plan or (B) the Company Property will perform in accordance with the Budget and Operating Plan or such guidelines), Managing Member; (ii) retain Sponsor, or another person or entity approved by use all diligent efforts to provide the Executive Committee, to perform the Company Management Services for the Company, (iii) and perform the duties assigned to it hereunder, and ; (iviii) carry out all decisions and resolutions of the Executive Committee; provided, however, that notwithstanding anything contained Managing Member; (iv) subject to the limitations set forth in this Agreement and the guidelines reasonably adopted by the Managing Member, enter into contracts and leases on behalf of the Company in accordance with the current Budget and Operating Plan Approved by the Managing Member, and make expenditures as are required to implement such Budget and Operating Plan, but only to the contraryextent that any such expenditures and amounts required to be paid by the Company under such contracts, leases and other instruments and documents have either been Approved by the Managing Member or otherwise authorized by the terms of this Agreement; and (v) perform such other duties and obligations as the Managing Member may reasonably require from time to time. The initial Administrative Member shall be DD-CTP which shall remain the Administrative Member shall only until the resignation or removal of DD-CTP as the Administrative Member. In the event that DD-CTP or any other Person should retire, resign or be obligated to perform those services which are (A) required of it pursuant to the express terms of this Agreement or (B) reasonably requested of it by the Executive Committee, and reasonably agreed to by removed as the Administrative Member, the Managing Member shall be under no obligation to appoint a replacement thereof. Subject to any right provided to the extent Administrative Member to charge certain matters to the same are consistent with other services customarily Company as provided by administrative members or managers in comparable circumstances; providedthis Agreement, howeverand subject further to the provisions of Section 7.4, the Administrative Member shall not be entitled to receive any additional fees or other compensation in respect of any Management Services or its activities as the Administrative Member, and will not receive reimbursement for services compensation payable to any of its employees or other direct or indirect overhead which may be attributable to the Management Services and/or the performance of its duties as the Administrative Member. (b) Notwithstanding anything to the contrary contained in Section 7.1(a)(iii), if at the beginning of any calendar year the Budget and Operating Plan or any item or portion thereof shall not have been Approved by the Managing Member, then: (i) any items or portions of the Budget and Operating Plan and amounts of expenses provided therein which have been so approved shall become operative immediately and the Administrative Member shall be entitled to expend funds in accordance with those operative portions; (ii) with respect to the Budget, the Administrative Member shall be entitled to, and shall, expend, in respect of non-capital, recurring expenses in any month of the then-current calendar year, an amount equal to the budgeted amount for the corresponding month of the immediately preceding calendar year, as set forth on the immediately preceding calendar year Budget after giving effect to any dispositions or other material changes to the Company Property during the prior or current year; provided, however, that if any contract Approved by the Managing Member or entered into pursuant to the provisions hereof provides for an automatic increase in costs thereunder after the beginning of the then current calendar year, then the Administrative Member shall be entitled to expend the amount of such increase; and (iii) the Administrative Member shall be entitled to, and shall, expend funds in respect of debt service on the Company’s financing (including the expense of curing any defaults thereunder), utilities, real estate taxes and assessments, insurance and emergency repairs, any annual or other periodic fees, or other expenditures which the Managing Member determines are necessary for the continued ordinary operation of the Company Property, including without limitation uninsured losses or deductibles, operating shortfalls, repairs, additions or modifications to comply with applicable laws or insurance requirements, insurance premiums for insurance policies Approved by the Managing Member, and any final orders, judgments, or other proceedings and all costs and expenses related thereto, regardless of whether the Budget has been approved or whether such expenditures exceed the amounts provided for in the applicable Budget (all of the foregoing described in this clause (iii), collectively, “Necessary Expenses”). (c) Subject to the availability of adequate funds therefor in the Budget and from Revenues, Capital Contributions or other sources, and subject further, in any event, to the provisions of Section 7.1 and any other relevant provisions hereof, in addition to and without limiting any other duties set forth in this Agreement, the Administrative Member shall (subject to the control and direction of the Managing Member): (i) oversee, coordinate and process the operations of the Company on a day-to-day basis, including without limitation, the acquisition, management, servicing, leasing, development, renovation and sale of any and all of the assets which comprise any portion of the Company Property, and prepare all communications with any property manager, any tenant, the Lender and any other relevant third parties; (ii) take all proper and necessary actions reasonably required to cause the Company and all third parties at all times to perform and comply with the terms and provisions (including without limitation, any provisions requiring the expenditure of funds by the Company) of the Acquisition Loan Documents, the other Transactions Documents and any other loan commitment, agreement, mortgage, lease, or other contract, instrument or agreement to which the Company is a party or bound, or which affects all or any portion of the Company Property or the operation thereof; (iii) pay in a timely manner all non-disputed operating expenses of the Company in accordance with the terms of the Budget and the Operating Plan or as otherwise provided herein; (iv) to the extent available, obtain and maintain insurance coverage on the Company Property as required by thisthe Managing Member and pay all non-disputed taxes, assessments, charges and fees payable in connection with the ownership, use and occupancy of the Company Property; (v) deliver to the other Members promptly upon the receipt or sending thereof, copies of all material notices, reports and communications (other than routine, usual and customary notices and other standard communications) between the Company and any Property manager, the Lender, governmental agencies, neighboring property owners, community groups and other relevant third parties affecting all or any portion of any Company Property, or any of such other parties, which relates to any existing or pending default thereunder or to any financial or operational information required by such Person; (vi) deposit all receipts from operations of the Company Property to a separate account established and maintained by the Administrative Member in the name of the Company, and not commingle those receipts with any other funds or accounts of the Administrative Member; (vii) assist in the management and administration of the process of selling and refinancing all or any portion of the Company Property; (viii) if and to the extent the Administrative Member delegates to any loan servicer or property manager (previously Approved by the Managing Member) or subcontracts with any third party or Affiliate for the performance of any of the services to be performed by the Administrative Member, supervise and oversee the performance of the services performed by such third parties or Affiliates and cause the same to be performed in the manner required hereunder; and (ix) execute and deliver agreements, certificates and similar documents (in the name or on behalf of the Company) which are necessary to obtain and/or maintain any Acquisition Loans or otherwise required to be delivered pursuant to the Acquisition Loan Documents, as well as manage any approved financing or refinancing, on terms Approved by the Managing Member. (d) Notwithstanding anything to the contrary contained in this Agreement, the Managing Member shall have the absolute right, power and authority at any time upon and after (i) the occurrence of any For Cause Event (as set forth in Section 7.2(e) below), (ii) the occurrence of any Event of Default (as set forth in Article XII), or (iii) upon at least thirty (30) days notice to DD-CTP for no reason whatsoever, to remove DD-CTP as the Administrative Member and appoint or designate a replacement. (e) Upon and after the occurrence of any For Cause Event as described in this Section 7.2(e), or any Event of Default with respect to DD-CTP, BH shall have the right in its sole and absolute discretion to terminate DD-CTP as the Administrative Member by the delivery of written notice and, upon any such termination (i) BH may designate a successor Administrative Member, (ii) any distributions to the Members under Section 6.3 shall no longer be made under Section 6.3 hereof and from that time forward shall be made instead under Section 6.4 hereof, and notwithstanding anything to the contrary contained in this Agreement, BH shall have the unilateral right and authority to make all decisions on behalf of the Company and cause the Company to take any and all actions BH, in its sole discretion, may determine. For the purposes of this Agreement, a “For Cause Event” shall mean any of the following: