SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF RB MULTIFAMILY INVESTORS LLC Dated as of [ ], 2015

Exhibit 10.1

SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

RB MULTIFAMILY INVESTORS LLC

Dated as of [ ], 2015

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF CERTAIN STATES AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS. IN MAKING AN INVESTMENT DECISION, INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED OR RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE SUBSEQUENT TRANSFER OF THE MEMBERSHIP INTERESTS WILL BE SEVERELY RESTRICTED BY THE TERMS OF THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, AS MAY BE FURTHER AMENDED FROM TIME TO TIME. IN ADDITION, PURCHASERS SHOULD BE AWARE THAT THE PROVISIONS OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, MAY NOT BE AVAILABLE AT SUCH TIME AS A PURCHASER DESIRES TO DISPOSE OF THE SECURITIES BEING OFFERED HEREBY.

	TABLE OF CONTENTS

	ARTICLE I
	DEFINITIONS

	ARTICLE II
	ORGANIZATIONAL MATTERS
2.1.	Formation	11
2.2.	Name	11
2.3.	Principal Place of Business; Other Places of Business	11
2.4.	Business Purpose	11
2.5.	Designated Agent for Service of Process	11
2.6.	Term	11
2.7.	Amendment and Restatement of Existing Agreement	11
	ARTICLE III
	UNITS AND CAPITAL CONTRIBUTIONS
3.1.	Units	11
3.2.	The Unit Register	12
3.3.	Capital Contributions	12
3.4.	No Interest on Capital and No Withdrawal and Return of Capital	13
3.5.	Adjustments to Book Value of Assets and Capital Accounts	13
3.6.	Consent by Members	13
3.7.	Additional Funding	13
3.8.	Non-Disclosure; Non-Use	14
	ARTICLE IV
	MANAGEMENT OF THE COMPANY
4.1.	Managing Member	14
4.2.	Officers and Related Persons	14
4.3.	Restrictions on Authority of the Managing Member	14
4.4.	Maintenance of Company Status	15
4.5.	Company Obligations	15
4.6.	Tax Returns	16
4.7.	Indemnification and Liability	16
4.8.	REIT Covenants	17
	ARTICLE V
	ALLOCATIONS OF NET PROFITS AND NET LOSSES; DISTRIBUTIONS
5.1.	Allocation of Net Profits and Net Losses	18

	TABLE OF CONTENTS (Cont’d)

5.2.	Distributable Cash	19
5.3.	Regulatory Allocations	20
5.4.	Tax Allocations	24
5.5.	Authority of Managing Member to Vary Allocations	24
5.6.	Limitation on Distributions	25
5.7.	Tax Withholding	25
5.8.	Sale of Units	25
	ARTICLE VI
	DISSOLUTION AND WINDING UP OF THE COMPANY
6.1.	Dissolution of Company	25
6.2.	Final Liquidation	26
6.3.	Deficit Capital Account	27
6.4.	Payment in Cash or In-Kind	27
6.5.	Liquidating Trust	27
	ARTICLE VII
	TRANSFER AND ASSIGNMENT OF UNITS
7.1.	General Prohibition	27
7.2.	Admission As a Member	28
7.3.	Effect of Transfer	28
7.4.	Unauthorized Transfer	28
7.5.	Additional Restrictions on Transfer	29
7.6.	Allocations Between Transferor and Transferee	30
7.7.	Call	30
	ARTICLE VIII
	CHANGEOVER EVENTS
8.1.	Changeover Events	30
8.2.	Changeover Sale	31
	ARTICLE IX
	RECORDS, ACCOUNTING AND REPORTS
9.1.	Books and Records	32
9.2.	Access to Records	32
9.3.	Bank Accounts and Investment of Funds	32
9.4.	Reports	33
9.5.	Tax Accounting Methods; Periods; Elections	34

	TABLE OF CONTENTS (Cont’d)

	ARTICLE X
	AMENDMENTS
10.1.	Amendments Which May be Made Without the Consent of the Members	34
10.2.	Amendments and Waivers Requiring Consent of the Members	35
10.3.	Amendments and Waivers Requiring Approval of Affected Member	35
	ARTICLE XI
	MISCELLANEOUS
11.1.	No Waiver of Provisions	35
11.2.	Entire Agreement, Amendments, Interpretation, and Construction	36
11.3.	Governing Law	36
11.4.	Partial Invalidity	36
11.5.	Binding Effect	36
11.6.	Notices and Delivery	36
11.7.	Counterparts	37
11.8.	Statutory Provisions	37
11.9.	Waiver of Partition	37
11.10.	Tax Matters Partner	37

EXHIBIT A	Unit Register
EXHIBIT B	Addresses for Notice
EXHIBIT C	Joinder Agreement
EXHIBIT D	Schedule of Capital Uses
EXHIBIT E	Form of REIT Covenant for Joint Venture and Preferred Equity Investments

iii

SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

RB MULTIFAMILY INVESTORS LLC

THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) is made and entered into as of the [ ] day of July, 2015, by and among RB MULTIFAMILY INVESTORS LLC, a Delaware limited liability company (the “Company”), the parties listed on the signature pages hereto and all other Persons who hereafter execute the Joinder Agreement in accordance with the provisions hereof.

Statement of Purpose

WHEREAS, New York Mortgage Trust, Inc., JMP Capital LLC and Xxxxxx Family LLC, as the Common Members of the Company immediately prior to the execution of this Agreement (the “Withdrawing Members”), have agreed to contribute 100% of the Common Units (as defined below) and Preferred Units (as defined below) owned by them to RiverBanc Multifamily LP, for which RiverBanc Multifamily Investors, Inc. (the “REIT Parent”) is the sole general partner, pursuant to that certain contribution agreement dated [ ], 2015 by and between the Withdrawing Members, RiverBanc Multifamily LP and the REIT Parent (collectively, the “Contribution Transactions”), concurrent with the execution of this Agreement; and

WHEREAS, immediately prior to the execution of this Agreement, Xxxxxxxxx Housing Investments LLC redeemed 100% of its Preferred Units for an amount equal to its Adjusted Capital Contribution with respect to its Preferred Units immediately prior to the execution of this Agreement plus the accrued but unpaid Preferred Return on its Preferred Units measured through the day immediately prior to the date hereof; and

WHEREAS, concurrent with this, and by their execution of this Agreement, EF CMO LLC will make an additional capital contribution in an amount as to bring its capital account to $19 million, plus the accrued but unpaid Preferred Return on its Preferred Units measured through the day immediately prior to the date hereof ; and

WHEREAS, concurrent with this, and by their execution of this Agreement, the Withdrawing Members will cease to be Members of the Company; and

WHEREAS, concurrent with the execution of this Agreement and the consummation of the Contribution Transactions, RiverBanc Multifamily LP will be the sole Common Member (as defined below) of the Company and EF CMO LLC will be the sole Preferred Member (as defined below) of the Company; and

WHEREAS, the Common Member and the Preferred Member listed on Exhibit A to this Agreement are the sole Members of the Company concurrent with the execution of this Agreement, and they, together with the REIT Parent (solely for purposes of Section 8.3 hereof), desire to amend and restate the Company’s Amended and Restated Limited Liability Company Agreement, dated July 1, 2014 (the “Existing Agreement”), as set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the mutual promises contained herein, the parties hereto agree as follows:

As of the date hereof, the Existing Agreement shall be amended and restated as set forth below, and hereafter the Existing Agreement shall be of no further force and effect.

ARTICLE I

DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below:

“Acquisition Consideration” has the meaning set forth in Section 5.8.

“Act” means the Delaware Limited Liability Company Act, as amended, and any successor provision.

“Additional Funds” has the meaning set forth in Section 3.8.

“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Allocation Year, after giving effect to the following adjustments:

(i) Credit to such Capital Account any amounts which such Member is deemed to be obligated to restore pursuant to the penultimate sentences in Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury Regulations; and

(ii) Debit to such Capital Account the items described in Sections 1.704- 1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations.

The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted consistently therewith.

“Adjusted Capital Contribution” means:

(i) For each Preferred Member, the excess, if any, of (i) such Preferred Member’s Capital Contribution with respect to Preferred Units held by such Preferred Member, over (ii) the amount of the aggregate distributions paid to such Preferred Member under Section 5.2(b); and

(ii) For each Common Member, the excess, if any, of (i) such Common Member’s Capital Contribution with respect to Common Units held by such Common Member, over (ii) the aggregate amount of distributions paid to such Common Member under Section 5.2(b) that (A) are made in connection with the Company’s sale or other disposition of an Investment and (B) that constitute a return of such Common Member’s portion of the Company’s cost basis in such Investment. For the avoidance of doubt, the parties agree that any Tax Liability Distributions paid to the Common Members shall not reduce the Common Member’s Adjusted Capital Contribution.

“Advisor” means RiverBanc LLC, a North Carolina limited liability company, or such other advisor as appointed from time to time in the Managing Member’s sole discretion.

“Affiliate” of a Person means: (i) any Person directly or indirectly controlling, controlled by, or under common control with the Person in question; (ii) any officer, director, manager, partner, employee or owner of the Person in question or an Affiliate thereof or (iii) any company or Affiliate thereof for which the Person in question acts as an officer, director, manager, partner or employee.

“Agreement” has the meaning set forth in the first paragraph to this agreement.

“Allocation Year” means (i) the period commencing on the date hereof and ending on December 31, 2015, (ii) any subsequent 12 month period commencing on January 1 and ending on December 31 except as otherwise required under Section 706 of the Code, or (iii) any portion of the period described in clauses (i) or (ii) for which the Company is required to allocate Net Profits, Net Losses and other items of Company income, gain, loss or deduction pursuant to Article V.

“Assumed Tax Rate” means the highest combined marginal effective federal, state and local income tax rate prescribed for an individual living in (or, as applicable, a corporation resident in) North Carolina (taking into account, if applicable and as determined by the Managing Member, the deductibility from ordinary income of state and local income taxes for federal income tax purposes, the difference between the effective rate for capital gains, ordinary income, and dividends) in the relevant Allocation Year.

“Annual Tax Liability” has the meaning set forth in Section 5.2(c).

“Business Day” means any day other than a Saturday, Sunday or holiday observed by the New York Stock Exchange.

“Call Due Date” has the meaning set forth in Section 3.3(b)(ii).

“Capital Account” means with respect to any Member, the Capital Account maintained for such Member in accordance with the following provisions:

(i) To each Member’s Capital Account there shall be credited (A) such Member’s Capital Contributions, (B) such Member’s distributive share of Net Profits and any items in the nature of income or gain which are specially allocated pursuant to Section 5.3(a) or Section 5.3(b), and (C) with respect to any Property distributed to such Member, the amount of any Company liabilities assumed by such Member or secured by such Property. The principal amount of a promissory note that is not readily traded on an established securities market and that is contributed to the Company by the maker of the note (or a Member related to the maker of the note within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(c)) shall not be included in the Capital Account of any Member until the Company makes a taxable disposition of the note or until (and to the extent) principal payments are made on the note, all in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(d)(2).

(ii) From each Member’s Capital Account there shall be debited (A) the amount of money and the Gross Asset Value of any Property distributed to such Member pursuant to any provision of this Agreement, (B) such Member’s distributive share of Net Losses and any items in the nature of expenses or losses which are specially allocated pursuant to Section 5.3(a) or Section 5.3(b), and (C) with respect to any Property contributed by such Member, the amount of any liabilities of such Member assumed by the Company or secured by such Property.

(iii) In the event an interest in the Company is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred interest.

(iv) In determining the amount of any liability for purposes of clauses (i) and (ii) above there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Treasury Regulations.

The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Treasury Regulations. In the event the Managing Member shall determine that it is prudent to modify or adjust the manner in which the Capital Accounts, or any debits or credits thereto (including debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Company or any Members), are computed in order to comply with such Treasury Regulations, the Managing Member may make such modification or adjustment, provided that it is not likely to have a material effect on the amounts distributable to any Member pursuant to this Agreement. Subject to the foregoing proviso, the Managing Member also shall (i) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of Members and the amount of capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Treasury Regulations Section 1.704-1(b).

“Capital Call” has the meaning set forth in Section 3.3(b)(i).

“Capital Contribution” means the gross fair market value, as determined by the Managing Member, of all the assets contributed to the capital of the Company by a Member as set forth beside such Member’s name on Exhibit A, provided that with respect to any Member that acquired Units from another Member, the Capital Contribution of the transferee Member with respect to such Units shall be the Capital Contribution with respect to such Units of the Member from whom such transferee Member received its Units.

“Cash Coverage Test” has the meaning set forth in Section 4.3(f).

“Certificate” shall mean the Certificate of Formation of the Company on file with the Secretary of State of the State of Delaware, as may be amended from time to time.

“Changeover Event” means the occurrence of one or more events described in Section 8.1 of this Agreement.

“Code” means the Internal Revenue Code of 1986, as amended, and any successor provision.

“Commitment” means, with respect to a Member, the commitment of such Member to make Capital Contributions as set forth on Exhibit A.

“Common Member” means a Member holding one or more Common Units.

“Common Unit Percentage” means, with respect to a Common Member, an amount, expressed as a percentage, equal to the number of Common Units held by such Member divided by the number of outstanding Common Units, subject to the adjustment provisions of Section 3.2 and Section 3.3(b).

“Common Units” has the meaning set forth in Section 3.1(a).

“Company” has the meaning set forth in the first paragraph to this Agreement.

“Company Confidential Information” means all information concerning or related to the business, operations, financial condition or prospects of the Company or any of its Affiliates, regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form, and specifically includes (i) all information regarding the officers, managers, partners, directors, employees, members, customers, suppliers, distributors, sales representatives and licensees of the Company and its Affiliates, in each case whether past, present or prospective, (ii) all inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how of the Company and its Affiliates and (iii) all financial statements, audit reports, budgets and business plans or forecasts of the Company and its Affiliates; provided, however, that Confidential Information does not include (A) information which is or becomes generally known to the public through no act or omission of a Member in violation of Section 3.9, and (B) information which has been or hereafter is lawfully obtained by a Member from a source other than the Company or any of its Affiliates (or their respective officers, managers, partners, directors, employees, members or agents) so long as, in the case of information obtained from a third party, such third party was or is not, directly or indirectly, subject to an obligation of confidentiality owed to the Company or any of its Affiliates at the time such Confidential Information was or is disclosed to such Member.

“Contribution Transactions” has the meaning set forth in the Statement of Purpose.

“Depreciation” means, for each Allocation Year, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable for federal income tax purposes with respect to an asset for such Allocation Year, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such Allocation Year, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Allocation Year bears to such beginning adjusted tax basis; provided, however, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Allocation Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Board.

“Disagreeing Member” has the meaning set forth in Section 8.2.

“Distributable Cash” for any period means such portion of the cash in hand or in bank accounts of the Company that is available for distribution to the Members after the payment to the Preferred Member pursuant to Section 3.1(c) and after reasonable provision has been made for the current liabilities of the Company and Reserves.

“Xxxxxxxxx” means EF CMO LLC.

“Excess Net Losses” has the meaning set forth in Section 5.3(c).

“Exclusion Adjustment” means the Company’s unreturned investment in any Investment that the Company acquired after the date hereof without the consent of all Preferred Members.

“Existing Agreement” has the meaning set forth in the Statement of Purpose.

“GAAP” means Generally Accepted Accounting Principles in the United States, consistently applied.

“Gross Asset Value” means, with respect to any asset, such asset’s adjusted basis for federal income tax purposes, except as follows:

(i) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset as used in determining such Member’s Capital Contribution;

(ii) The Gross Asset Values of all Company assets may be adjusted pursuant to Section 3.6;

(iii) The Gross Asset Value of any Company asset distributed to any Member shall be adjusted to equal the gross fair market value (taking Code Section 7701(g) into account) of such asset on the date of distribution as determined by the Managing Member; and

(iv) The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and clause (vi) of the definition of “Net Profits “and” Net Losses”; provided, however, that Gross Asset Values shall not be adjusted pursuant to this clause (iv) to the extent that such adjustment would be duplicative of any adjustment made pursuant to clause (ii) in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (iv).

Such Gross Asset Value shall be adjusted by the Depreciation taken into account with respect to such asset, for purposes of computing Net Profits and Net Losses and subsequent adjustments to a Member’s Capital Account.

“Indemnitee” has the meaning set forth in Section 4.5.

“Initial Investments” means the following Investments, each as referenced on Exhibit D: Bent Tree Apartments, Evergreens at Mt. Moriah Apartments, and mezzanine loans for Waters at Elm Creek and Waters at Bluff Springs.

“Investment” means any equity interests or other assets of another Person that the Company has acquired, whether directly or indirectly through one or more of its Affiliates.

“Investment Management Agreement” means the investment management agreement between the Advisor, the Managing Member, the REIT Parent and the Company, entered into on the date hereof, as such agreement may be amended, restated and otherwise modified from time to time.

“Joinder Agreement” means the joinder agreement attached hereto as Exhibit C (or the substantial equivalent thereof).

“Managing Member” means RiverBanc Multifamily LP.

“Member Nonrecourse Debt” has the same meaning as the term “partner nonrecourse debt” in Section 1.704-2(b)(4) of the Treasury Regulations.

“Member Nonrecourse Debt Minimum Gain” has the same meaning as the term “partner nonrecourse debt minimum gain” in Treasury Regulation Section 1.704-2(i)(2).

“Member Nonrecourse Deductions” has the same meaning as the term “partner nonrecourse deductions” in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Treasury Regulations.

“Members” means those Persons listed as such on Exhibit A hereto, and any other Person who is subsequently admitted as a Member pursuant to Section 7.2; provided, however, that notwithstanding anything to the contrary contained herein, any Person shall cease to be a Member as provided in Section 7.3.

“Membership Interest” means all of a Member’s rights in the Company, including without limitation, to the extent provided in this Agreement or under any law (as superseded by this Agreement, where possible) his or its (i) share of the Net Profits and Net Losses of the Company, (ii) right to receive distributions of the Company’s assets, (iii) right to vote on matters relating to the Company and (iv) right to participate in the management of the Company’s affairs.

“Membership Minimum Gain” has the same meaning as the term “partnership minimum gain” in Sections 1.704-2(b)(2) and 1.704-2(d) of the Treasury Regulations.

“Net Profits” and “Net Losses” of the Company for each Allocation Year mean the taxable net income and net losses for such Allocation Year, respectively, of the Company, determined in accordance with Section 703(a) of the Code (with all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) to be included in said taxable net income or net losses); provided, however, that for purposes of determining Net Profits or Net Losses, the following adjustments shall apply:

(i) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Net Profits and Net Losses shall be added to such taxable net income or net losses;

(ii) Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Section 1.704-1(b)(2)(iv)(i) of the Treasury Regulations, and not otherwise taken into account in computing Net Profits or Net Losses, shall be subtracted from such taxable net income or net losses;

(iii) In the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraphs (ii) or (iii) of the definition of “Gross Asset Value”, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the Gross Asset Value of the asset) or an item or loss (if the adjustment decreases the Gross Asset Value of the asset) from the disposition of such asset and shall be taken into account for purposes of computing Net Profits and Net Losses;

(iv) Gain or loss resulting from a disposition of Property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the Property disposed of, notwithstanding that the adjusted tax basis of such Property differs from its Gross Asset Value;

(v) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Allocation Year, computed in accordance with the definition of Depreciation;

(vi) To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) is required, pursuant to Treasury Regulations Section 1.704(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) from the disposition of such asset and shall be taken into account for purposes of computing Net Profits or Net Losses; and

(vii) Notwithstanding any other provision of this definition, any items which are specially allocated pursuant to Section 5.3(a) or Section 5.3(b) shall not be taken into account in computing Net Profits or Net Losses.

The amounts of the items of income, gain, loss or deduction available to be specially allocated pursuant to Section 5.3(a) and Section 5.3(b) shall be determined by applying rules analogous to those set forth in clauses (i) through (vi) above.

“Non-Member Transferee” has the meaning set forth in Section 7.2.

“Nonrecourse Deductions” has the meaning as determined under Treasury Regulations Section 1.704-2(b)(1).

“Offer Notice” has the meaning set forth in Section 3.3(b)(iv).

“Person” means any individual, general partnership, limited partnership, corporation, trust, limited liability company or other association or entity.

“Preferred Member” means a Member that holds one or more Preferred Units.

“Preferred Return” means with respect to each Preferred Member, a return of 10.0% per annum (prior to the occurrence of a Changeover Event and 15.0% per annum thereafter), on the daily balances of such Member’s Adjusted Capital Contribution with respect to its Preferred Units, as measured from the date on which such Capital Contributions were actually made.

“Preferred Units” has the meaning set forth in Section 3.1(a).

“Property” means all property or assets held by the Company, whether real or personal, tangible or intangible, other than money.

“Redemption Amount” means, with respect to a Preferred Member, an amount equal to (i) the Adjusted Capital Contribution with respect to such Preferred Member’s Preferred Units, plus (ii) any accrued but unpaid Preferred Return measured through the date of the payment of the Redemption Amount, plus (iii) the Redemption Premium.

“Redemption Premium” means, with respect to a Preferred Member, an amount that is equal to:

(i) the Preferred Return that would have been paid to such Preferred Member through July 1, 2016 if the Preferred Units were outstanding through such date (exclusive of any amounts actually paid to such Preferred Member pursuant to clause (ii) of the definition of Redemption Amount), if the Redemption Amount is paid before July 1, 2016;

(ii) 1.0% of the Adjusted Capital Contribution with respect to such Preferred Member’s Preferred Units as of the date of the payment of the Redemption Amount, if the Redemption Amount is paid on or after July 1, 2016 but before July 1, 2017; or

(iii) zero (-0-), if the Redemption Amount is paid on or after July 1, 2017.

“Regulatory Allocations” has the meaning set forth in Section 5.3(b).

“REIT” means a “real estate investment trust” within the meaning of Sections 856 through 859 of the Code.

“REIT Covenants” means the covenants set forth in Section 4.6.

“REIT Entity” means an entity taxed as a REIT that is a Preferred Member or that owns, directly or indirectly, an equity interest in a Preferred Member.

“REIT Entity Preferred Member” means a Preferred Member that is a REIT Entity or is owned, directly or indirectly, by a REIT Entity.

“REIT Parent” has the meaning set forth in the Statement of Purpose.

“Reserves” means, with respect to any fiscal period, funds set aside or amounts allocated during such period to reserves which shall be maintained in amounts reasonably deemed sufficient by the Managing Member for working capital and for payment of taxes, the payment of the Tax Liability Distributions, insurance, debt service, or other costs or expenses incident to the ownership or operation of the Company’s business.

“Shortfall Amount” has the meaning set forth in Section 3.3(b)(iii)(A).

“Special REIT Preferred Share” has the meaning set forth in Section 8.3.

“Subsidiary” or “Subsidiaries” means any Person in which the Company controls or holds, directly or indirectly, 50% or more of the voting securities or voting power.

“Tax Liability Distribution” has the meaning set forth in Section 5.2(c).

“Tax Matters Partner” has the meaning set forth in Section 11.10.

“Transfer” means, with respect to any Unit or other interest in the Company, a sale, conveyance, exchange, assignment, pledge, encumbrance, gift, bequest, hypothecation, or other transfer or disposition by any other means, whether for value or no value and whether voluntary or involuntary (including, without limitation, by operation of law), or an agreement to do any of the foregoing.

“Treasury Regulations” means the regulations (including temporary regulations) of the United States Treasury Department pertaining to the income tax, as amended, and any successor provision.

“Unit Register” has the meaning set forth in Section 3.2.

“Units” has the meaning set forth in Section 3.1(a).

“Withdrawing Members” has the meaning set forth in the Statement of Purpose.

ARTICLE II

ORGANIZATIONAL MATTERS

2.1. Formation. On July 24, 2013, the Company was formed as a Delaware limited liability company by the execution and delivery of the Certificate to the Secretary of State of the State of Delaware in accordance with the provisions of the Act. The Members acknowledge the formation of the Company under the Act for the purposes and upon the terms and conditions hereinafter set forth. The rights and liabilities of the Members shall be as provided in the Act, except as otherwise expressly provided herein. In the event of any inconsistency between any terms and conditions contained in this Agreement and any non-mandatory provisions of the Act, the terms and conditions contained in this Agreement shall govern.

2.2. Name. The name of the Company is “RB Multifamily Investors LLC”.

2.3. Principal Place of Business; Other Places of Business. The principal place of business of the Company is located at such places within or outside the State of Delaware as the Managing Member may from time to time designate. The Company may maintain offices and places of business at such other place or places within or outside the State of Delaware as the Managing Member deems advisable.

2.4. Business Purpose. The purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be organized under the Act.

2.5. Designated Agent for Service of Process. The Company shall continuously maintain a registered office and a designated and duly qualified agent for service of process on the Company in the State of Delaware.

2.6. Term. The Company’s existence commenced at the time and on the date appearing on the Certificate and shall have perpetual existence unless and until it is dissolved and its affairs are wound up pursuant to this Agreement.

2.7. Amendment and Restatement of Existing Agreement. As of the date hereof, (a) the Existing Agreement shall be amended and restated in its entirety as set forth in this Agreement and (b) hereafter the Existing Agreement shall be of no further force and effect.

ARTICLE III

UNITS AND CAPITAL CONTRIBUTIONS

3.1. Units.

(a) The Company’s Membership Interests are represented by two classes of units (such units being referred to herein as “Preferred Units” and “Common Units”, respectively, and collectively as the “Units”). The Preferred Units and Common Units shall have the respective rights, restrictions and limitations set forth in this Agreement. Units shall not be evidenced by certificates. A Person who is not designated herein as a Member shall not, by virtue of holding Units, become a Member unless such Person is admitted as a member pursuant to Section 7.2.

(b) The Company hereby represents and warrants as of the date hereof that the issued and outstanding Preferred Units have been duly authorized and validly issued and are fully paid and that none of the outstanding Preferred Units were issued in breach of any material agreement to which the Company or any of its controlled subsidiaries is a party.

(c) With respect to the Preferred Units, the Company shall pay to the Preferred Members, on a quarterly basis, the Preferred Return. Payments of the Preferred Return shall be made no later than the tenth (10^th) day following the end of each quarter. Any amounts paid pursuant to this Section 3.1(c) shall constitute payments under Section 707(c) of the Code and, accordingly, such payments will not be treated as distributions under this Agreement or otherwise for purposes of maintaining Capital Accounts.

3.2. The Unit Register. The name of each Member, the number and class of Units issued to each Member, and the Capital Contribution and Capital Account of each Member as of the date of this Agreement are as set forth on the unit register attached as Exhibit A hereto (as amended, the “Unit Register”). In the event of any change with respect to the information stated on Exhibit A hereto, the Company shall promptly (a) amend Exhibit A to reflect such change and (b) provide a copy of the revised Exhibit A to each of the Members; provided, however, the failure of the Company to amend Exhibit A or provide a revised copy of Exhibit A to the Members shall not prevent the effectiveness of or otherwise affect the underlying adjustments that would be reflected in such an amendment to Exhibit A; provided, further, that the Company shall reflect transfers of Units on the Unit Register only upon compliance with the provisions of this Agreement as contained in Article VII. Upon the Transfer of any Common Units, the acceptance of additional Capital Contributions with respect to Common Units or the issuance or redemption of any Common Units, each Common Member’s Common Unit Percentage will be adjusted proportionately based on the aggregate Capital Contributions with respect to each Common Member’s Common Units.

3.3. Capital Contributions.

(a) Generally. Each Member has made a Capital Contribution to the Company in cash or other property in exchange for the Units specified for such Member on Exhibit A hereto.

(b) Additional Capital Contributions.

(i) No Member shall have the obligation to make any additional Capital Contribution to the Company. Common Members may contribute additional capital to the Company, from time to time, and receive additional Membership Interests, in the form of Common Units, in respect thereof, in the manner contemplated in the second sentence immediately following this sentence. The determination of whether to accept such additional Capital Contribution shall be in the sole discretion of the Managing Member. Common Members will be issued one additional Common Unit in exchange for each $1.00 of Capital Contribution made after the date hereof. No additional Preferred Units shall be issued without the consent of the Managing Member and the Preferred Members.

(ii) The issuance of Units or any other Membership Interests may be made in exchange for such cash, property, or services, and on such other terms and conditions, as the Managing Member shall determine.

(iii) A Person to whom Units have been issued shall not become a Member, with the rights and privileges associated therewith, until such Person executes a copy of this Agreement or delivers to the Company a written acknowledgment, in form and substance satisfactory to the Managing Member, whereby such Person agrees to be a Member and to be bound by the provisions of this Agreement.

3.4. No Interest on Capital and No Withdrawal and Return of Capital. Except as may otherwise be specifically provided in this Agreement, no Member shall be entitled to receive any interest on his or its Capital Contribution to the Company. No Member shall be entitled to withdraw any part of his or its Capital Account or to receive any distribution (including distributions upon withdrawal) except as provided in this Agreement. No specific time has been agreed upon when the Capital Contributions of the Members shall be returned.

3.5. Adjustments to Book Value of Assets and Capital Accounts. The Managing Member may, upon the sale or other issuance of Units (including without limitations the issuance of Units in exchange for services to the Company), the making of additional Capital Contributions, or at such other times as permitted by Section 1.704-1(b)(2)(iv) of the Treasury Regulations, adjust the Gross Asset Value of the Company’s assets pursuant to Section 1.704-1(b)(2)(iv)(f) of the Treasury Regulations to reflect their then fair market value (as determined by the Managing Member), and in such event the Capital Account of each Member shall be adjusted to reflect such Member’s share of unrealized gain or loss, as provided in Article V, as if such property had been sold for its then fair market value (as determined by the Managing Member).

3.6. Consent by Members. By the execution hereof, the Members expressly consent to the exercise by the Managing Member of the rights, powers, and authority conferred on the Managing Member by this Agreement. Where this Agreement shall be in conflict with the Act, where permitted, this Agreement shall be deemed to control.

3.7. Additional Funding. Subject to the provisions of Section 4.3 hereof, if the Managing Member determines that it is in the best interests of the Company to provide for additional Company funds (“Additional Funds”) for any Company purpose, the Managing Member may (i) cause the Company to obtain such funds from outside borrowings, or (ii) elect to have the Managing Member or any of its Affiliates provide such Additional Funds to the Company through loans or otherwise, provided, however that any such Additional Funds will be subordinate to the Preferred Units with respect to the distribution of assets upon liquidation, dissolution or winding up of the Company.

3.8. Non-Disclosure; Non-Use. Each Member agrees that all Company Confidential Information (a) is and shall remain (as between such Member and the Company) the sole and exclusive property and proprietary information of the Company and (b) shall not be used or disclosed by such Member except (i) in furtherance of the Company’s business, (ii) with the prior written consent of the Managing Member or (iii) as required by applicable law.

ARTICLE IV

MANAGEMENT OF THE COMPANY

4.1. Managing Member. The management of the Company is fully reserved to the Managing Member, who is RiverBanc Multifamily LP. Subject to Section 4.2 and Section 4.3 hereof, the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Managing Member, who shall make all decisions and take all actions for the Company. Decisions or actions taken by the Managing Member in accordance with this Agreement shall constitute decisions or actions by the Company and shall be binding on the Company. Except as expressly provided for herein, including Section 4.2 hereof, the Members (other than the Managing Member) shall not participate in, or take part in the control of, the business of the Company, and shall have no right or authority to act for or bind the Company.

4.2. Officers and Related Persons. The Managing Member shall have the authority to (i) appoint and terminate officers of the Company, including, but not limited to, a chief executive officer, a president, one or more chief investment officers, a chief financial officer, one or more vice presidents (each of whom may be designated as an executive vice president, a senior vice president or a vice president with a particular area of responsibility), a treasurer, one or more assistant treasurers, a secretary and one or more assistant secretaries, each of which shall have such rights, powers and authority as the Managing Member may, in its sole discretion, from time to time delegate to any such officer, and (ii) retain and terminate employees, agents and consultants of the Company, including the Advisor, and to delegate such duties to any such officers, employees, agents and consultants as the Managing Member deems appropriate, including the power, acting individually or jointly, to represent and bind the Company in all matters, in accordance with the scope of their respective duties.

4.3. Restrictions on Authority of the Managing Member. Notwithstanding anything to the contrary contained herein, without the written consent of all of the Preferred Members, the Managing Member shall not have the authority to, with respect to the Company:

(a) Change the principal business of the Company to something other than investing in multifamily-related debt and equity Investments;

(b) Cause the Company to incur indebtedness for borrowed money, other than:

(i) indebtedness for trade payables not to exceed $1,000,000 at any time, and

(ii) nonrecourse indebtedness (other than nonrecourse carveouts for bad acts), with a maximum of 80% loan to value on a weighted average basis for all Investments, provided, however, that no debt shall be incurred, directly or indirectly, on any of the Investments owned by the Company as of July 1, 2015 in excess of that in place on such Investment as of July 1, 2015;

(c) Cause the ratio of (i) the Adjusted Capital Contributions of all the Preferred Members to (ii) the Adjusted Capital Contributions of all Common Members to exceed 25%;

(d) Cause the Company to make distributions to Common Members during any fiscal quarter if the cash generated from Investments and collected by the Company during the preceding fiscal quarter does not exceed the product of (i) 1.25 and (ii) the total Preferred Return due to the Preferred Members on the succeeding quarterly due date (a “Cash Coverage Test”). Cash retained by the Company in any one quarter, and not distributed to the Common Members, may be distributed in subsequent quarters provided that the Company meets the Cash Coverage Test for that quarter;

(e) Cause the Company to make distributions to Common Members after the occurrence and during the continuance of an event of default under any agreement to which the Company is a party that evidences indebtedness for borrowed money;

(f) Settle any litigation, arbitration or administrative proceedings, or confessing judgment, in each case on behalf of the Company and requiring payment in excess of $50,000 (unless any excess above $50,000 is funded by insurance proceeds, subject to applicable deductibles) or instituting any legal action for damages in excess of $50,000; or

(g) Cause the Company to file any petition or consent to the filing of any petition that would subject the Company to a bankruptcy.

The Managing Member’s ability to amend this Agreement and/or the Certificate is governed by Article X.

4.4. Maintenance of Company Status.

(h) The Managing Member shall at all times use its best efforts to cause the Company to comply with such conditions as may be required from time to time to permit the Company to be classified, for federal income tax purposes, as a partnership and not as an association taxable as a corporation.

(i) The Managing Member shall take all action which shall be necessary or appropriate for the continuation of the Company’s valid existence as a limited liability company under the laws of the State of Delaware.

4.5. Company Obligations. Except as provided in this Section 4.5 and elsewhere in this Agreement (including the provisions of Articles V and VI hereof regarding distributions, payments and allocations to which it may be entitled), the Managing Member shall not be compensated for its services as Managing Member of the Company.

4.6. Tax Returns. The Managing Member shall cause the Company to prepare and file on or before the due date (or any extension thereof) any federal, state or local tax returns required to be filed by the Company. The Managing Member shall cause the Company to pay any taxes payable by the Company.

4.7. Indemnification and Liability.

(a) The Company shall defend, indemnify and hold harmless the current or former Members, Managing Member, Tax Matters Partner, Directors, officers, executives (whether or not employees) and their respective Affiliates, agents, officers, executives (whether or not employees), partners, employees, representatives, directors, members, managers and shareholders (individually, an “Indemnitee”) to the full extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint and several), expenses of any nature (including attorneys’ fees and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits, or proceedings, civil, criminal, administrative, or investigative, in which the Indemnitee may be involved, or threatened to be involved as a party or otherwise, relating to the performance or nonperformance of any act concerning the activities of the Company, if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law or a material breach of this Agreement. The termination of an action, suit, or proceeding by judgment, order, settlement, or upon a plea of nolo contendere or its equivalent, shall not, in and of itself, create a presumption or otherwise constitute evidence that the Indemnitee’s conduct constitutes fraud, willful misconduct, bad faith, gross negligence, a knowing violation of law, a material breach of this Agreement.

(b) In the sole discretion of the Managing Member, expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 4.5 may be advanced by the Company prior to the final disposition of such claim, demand, action, suit, or proceeding upon receipt by the Company of a written commitment by or on behalf of the Indemnitee to repay such amount if it shall be determined that such Indemnitee is not entitled to be indemnified as authorized in this Section 4.5.

(c) Any indemnification provided hereunder shall be satisfied solely out of the Company’s assets, as an expense of the Company. No Member shall be subject to personal liability by reason of these indemnification provisions.

(d) The provisions of this Section 4.5 are for the benefit of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Person.

(e) No Indemnitee shall be liable to the Company or to a Member for any losses sustained or liabilities incurred as a result of any act or omission of such Indemnitee if the Indemnitee’s conduct (i) was in good faith, within the scope of such Indemnitee’s authority, and in a manner it reasonably believed to be in, or not contrary to, the best interests of the Company and (ii) did not constitute fraud, gross negligence, willful misconduct, or a knowing violation of law.

(f) Any repeal or modification of this Section 4.5 by the Members shall not adversely affect any rights of such Indemnitee pursuant to this Section 4.5, including the right to indemnification and to the advancement of expenses of an Indemnitee existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.

4.8. REIT Covenants. The Company agrees that in the event that any Preferred Member is a REIT Entity Preferred Member is then notwithstanding anything to the contrary set forth in this Agreement, the Company acknowledges and agrees that:

(a) the business of the Company and any Subsidiaries shall be conducted so as to cause or allow the Company’s direct or indirect income and assets to meet the requirements of Sections 856(c)(2), 856(c)(3), and 856(c)(4) of the Code, as in effect from time to time (as if the Company were a REIT); provided, however, that there shall be no breach of this covenant if the Company’s direct or indirect income and assets fail to meet such requirements solely by virtue of the inclusion of the income and assets of the Initial Investments (when viewed together with all other income and assets of the Company) if the Company has used commercially reasonable efforts to prevent the Initial Investments from causing such failure;

(b) notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of each of REIT Entity Preferred Member, the Company shall not (and it shall cause its Subsidiaries to not) engage in any transaction that could reasonably be characterized as a “prohibited transaction” subject to tax under Section 857(b)(6) of the Code;

(c) the Company will not (nor will it cause or allow the Advisor or any of their respective subsidiaries or Affiliates, including, without limitation, any Subsidiary) take any other action, or fail to take any other action, with respect to which it is advised in writing by any REIT Entity Preferred Member, making such notice in good faith and upon the recommendation of counsel, (prior to taking or failing to take such other actions) that there is more than an insubstantial risk that the taking of such action, or failure to take such action, reasonably could be expected to result in or contribute to the related REIT Entity failing to qualify as a REIT;

(d) the Company shall provide each REIT Entity Preferred Member with any information with respect to the Company and the Property reasonably requested in writing by such REIT Entity Preferred Member for the purposes of verifying whether the Company’s income and asset are treated as qualifying for purposes of the income and asset tests applicable to REITs in Section 856(c) of the Code, including, without limitation, the completion of questionnaires and REIT compliance checklists. In furtherance of the foregoing, not later than thirty (30) days following the close of each calendar quarter during which any Preferred Member is a REIT Entity Preferred Member, the Company shall supply each REIT Entity Preferred Member with a schedule showing the Company’s assets and gross income. The Company shall provide such information and documents to each REIT Entity Preferred Member, even if the REIT Entity Preferred Member no longer holds an interest in the Company, provided that such information and documents relate to any period during which the REIT Entity Preferred Member, held an interest in the Company;

(e) the Company and any Company Subsidiary shall properly identify as a hedging transaction for federal income tax purposes any swap or other derivative transaction entered into by the Company to hedge interest rate risk on indebtedness incurred to acquire or carry real estate assets in compliance with the requirements of Treasury Regulations section 1.1221-2 (which generally requires that the swap or other derivate transaction is identified as a hedge for tax purposes prior to the close of the date on which the transaction is entered into and that the hedged item is identified within 35-days of when the hedging transaction is entered into);

(f) if “foreclosure property” (as defined in Section 856(e)(1) of the Code) is acquired, the Company shall provide each the REIT Entity Preferred Member with any information reasonably requested by each the REIT Entity Preferred Member in writing to allow each the REIT Entity Preferred Member to make foreclosure property elections with respect to such foreclosure property as provided in Section 856(e)(5) of the Code and Treasury Regulations section 1.856-6; and

(g) the Company shall use commercially reasonable efforts to have included in any operating, limited liability company, or partnership agreement applicable to any joint venture or preferred equity investment the Company acquires restrictions similar to those in Exhibit E with respect to the entity in which the Company acquires joint venture equity or preferred equity.

For the avoidance of doubt, all the parties hereto acknowledge and agree that the Members shall have no liability for a breach of any of the REIT Covenants, and that the Company shall be solely liable for any breach of the REIT Covenants and any damages suffered by the Members as a result thereof.

ARTICLE V

ALLOCATIONS OF NET PROFITS AND NET LOSSES; DISTRIBUTIONS

5.1. Allocation of Net Profits and Net Losses.

(a) Net Profits and Net Losses shall be determined and allocated with respect to each Allocation Year of the Company as of the end of such Allocation Year. Subject to the other provisions of this Agreement, an allocation to a Member of a share of Net Profits or Net Losses shall be treated as an allocation of the same share of each item of income, gain, loss, or deduction that is taken into account in computing Net Profits or Net Losses. Notwithstanding the foregoing, to the extent permitted by Law, the Preferred Members shall not be allocated items of Net Profits that would be treated as gain from the sale of a “United States real property interest” as defined in Section 897(c)(1) of the Code.

(b) After giving effect to the special allocations set forth in Section 5.3, Net Profits and Net Losses for any Allocation Year shall be allocated to all the Members in such manner that, as of the end of such Allocation Year, the sum of: (i) the Capital Account of each Member, (ii) such Member’s share of Membership Minimum Gain, and (iii) such Member’s Member Nonrecourse Debt Minimum Gain, immediately after giving effect to such allocations, is, as nearly as possible, equal to the net amounts, positive or negative, that would be distributed to such Member or for which such Member would be liable to the Company under this Agreement, determined as if: (i) the Company were dissolved and terminated at the end of such Allocation Year, (ii) its affairs were wound up and each asset on hand at the end of such Allocation Year was sold for cash equal to its Gross Asset Value, (iii) all liabilities of the Company were satisfied (limited with respect to each nonrecourse liability to the fair market value of the assets securing such liability) and (iv) the net assets of the Company were distributed to the Members in accordance with Section 6.2(b).

5.2. Distributable Cash.

(a) Except with respect to payments of Tax Liability Distributions (which shall be mandatory to the extent of Distributable Cash, subject to the proviso at the end of this sentence), to the extent the payment of such distributions does not cause a breach under the terms of any agreement between the Company and any lender thereto, the Managing Member shall decide in its sole discretion, subject to Section 5.2(b)(i), when and if to make a distribution of Distributable Cash pursuant to the terms hereof.

(b) Subject to Section 6.2, when distributed, all distributions (including without limitation, distributions of Distributable Cash) shall be distributed among all the Members in accordance with the following order of priority:

(i) until there has been a Changeover Event, to the Common Members pro rata among such Members in proportion to their Common Unit Percentage; and

(ii) after the occurrence of a Changeover Event:

(A) first to those Preferred Members with positive Adjusted Capital Contributions with respect to the Preferred Units (pro rata in accordance with the ratio of such Adjusted Capital Contributions), until no Preferred Member has a positive Adjusted Capital Contribution balance with respect to the Preferred Units, and

(B) thereafter, the remainder shall be shall be distributed among the Common Members, pro rata among such Members in proportion to their Common Unit Percentage.

(c) To the extent that as of March 15th of any Allocation Year the aggregate amounts distributed to any Common Member (or its successor-in-interest) pursuant to Section 5.2(b) and this Section 5.2(c) for the immediately prior Allocation Year is less than such Member’s Annual Tax Liability with respect to its Common Units for such Allocation Year, then on or before such March 15th, the Company shall (to the extent required pursuant to Section 5.2(a)) make a cash distribution (a “Tax Liability Distribution”) to each Common Member equal to such shortfall. Any amounts distributed pursuant to this Section 5.2(c) shall be considered an advance against subsequent distributions under Section 5.2(b) or Section 6.2(b) otherwise payable to such Member, and shall offset such distributions as and when such distributions are otherwise payable. For purposes of this Agreement, a Common Member’s “Annual Tax Liability” means the amount that is equal to (y) the product of (i) the Assumed Tax Rate and (ii) the net taxable income, including income from the application of Section 704(c) but excluding any gain, loss or deduction resulting from the application of Section 743 or Section 754 of the Code allocated to such Member (or its successor-in-interest) with respect to its Common Units for such Allocation Year. To assist the Common Members with any quarterly estimated tax payments that they might owe, the Company agrees to make commercially reasonable efforts to make quarterly estimates of any annual Tax Liability Distribution that the Company estimates would be owed to the Members, with such estimates being trued up in connection with the payment of the annual Tax Liability Distribution.

5.3. Regulatory Allocations.

(a) Special Allocations. The following special allocations shall be made in the following order:

(i) Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(f) of the Treasury Regulations, notwithstanding any other provision of this Article V, if there is a net decrease in Membership Minimum Gain during any Allocation Year, each Member shall be specially allocated items of Company income and gain for such Allocation Year (and, if necessary, subsequent Allocation Years) in an amount equal to such Member’s share of the net decrease in Membership Minimum Gain, determined in accordance with Treasury Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Treasury Regulations. This Section 5.3(a)(i) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Treasury Regulations and shall be interpreted consistently therewith.

(ii) Member Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(i)(4) of the Treasury Regulations, notwithstanding any other provision of this Article V, if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Allocation Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of the Treasury Regulations, shall be specially allocated items of Company income and gain for such Allocation Year (and, if necessary, subsequent Allocation Years) in an amount equal to such Member’s share of the net decrease in Member Nonrecourse Debt Minimum Gain, determined in accordance with Treasury Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Treasury Regulations. This Section 5.3(a)(ii) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(i)(4) of the Treasury Regulations and shall be interpreted consistently therewith.

(iii) Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations, or distributions described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations, items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the Adjusted Capital Account Deficit of the Member as quickly as possible, provided that an allocation pursuant to this Section 5.3(a)(iii) shall be made only if and to the extent that the Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article V have been tentatively made as if this Section 5.3(a)(iii) were not in the Agreement. This provision is intended to qualify and be construed as a “qualified income offset” (within the meaning of Treasury Regulations Section 1.704 1(b)(2)(ii)(d)) and shall be interpreted consistently therewith.

(iv) Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Allocation Year which is in excess of the sum of the amount such Member is obligated to restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 5.3(a)(iv) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Article V have been made as if Section 5.3(a)(iii) and this Section 5.3(a)(iv) were not in the Agreement.

(v) Nonrecourse Deductions. Nonrecourse Deductions for any Allocation Year shall be allocated among the Members in the same proportions as are the other Net Losses of the Company for such year. However, the Managing Member is authorized to revise this method of allocation if the Managing Member determines, in its sole and absolute discretion, that Nonrecourse Deductions must be allocated in different ratios in order to be allocated in a manner which is reasonably consistent with some other significant allocation attributable to the property securing the nonrecourse debt, as required by the Treasury Regulations under Section 704(b) of the Code.

(vi) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Allocation Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulations Section 1.704-2(i)(1).

(vii) Section 754 Adjustments. To the extent an adjustment to the tax basis of any Company asset pursuant to Code Section 734(b) or Code Section 743(b) is required to be taken into account, pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of such Member’s interest in the Company, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the tax basis of the asset) or loss (if the adjustment decreases such tax basis) and such gain or loss shall be specially allocated to Members in accordance with their interests in the Company in the event Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom such distribution is made in the event Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.

(viii) Liquidation of In-Kind Distribution. Any expenses incurred by the Company in connection with the sale or disposition of any Property owned by the Company that would otherwise have been distributed in-kind in accordance herewith, will be specially allocated to the Members electing to receive such distribution in cash pursuant to this Agreement, pro rata in accordance with their relative interests in such distribution; provided, that, for purposes of this Agreement, such Member shall be treated as having received a distribution of such Property and in an amount equal to such Property’s Gross Asset Value (as determined in clause (iii) of the definition thereof).

(b) Curative Allocations. The allocations set forth in Section 5.3(a)(i) through Section 5.3(a)(vii) and Section 5.3(c) (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 5.3(b). Therefore, notwithstanding any other provision of this Article V (other than the Regulatory Allocations), the Members shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of the Agreement and all Company items were allocated pursuant to Section 5.1.

(c) Loss Limitation. Net Losses allocated pursuant to Section 5.1 shall not exceed the maximum amount of Net Losses that can be allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any Allocation Year. In the event some but not all of the Members would otherwise have Adjusted Capital Account Deficits as a consequence of an allocation of Net Losses pursuant to Section 5.1, the limitation set forth in this Section 5.3(c) shall be applied on a Member-by-Member basis and Net Losses not allocable to any Member as a result of such limitation shall be allocated (i) first, to the other Members in accordance with the positive balances in such Member’s Capital Accounts so as to allocate the maximum permissible Net Losses to each Member under Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations (until the Capital Account balances of all Members shall be reduced to zero) and (ii) thereafter in the same manner as Nonrecourse Deductions. If and to the extent Net Losses are allocated pursuant to this Section 5.3 rather than Section 5.1, then, notwithstanding Section 5.1 above, subsequent allocations of Net Profits shall be made first to the Members who received excess allocations of Net Losses pursuant to this Section 5.3(c) in excess of what they would have otherwise received pursuant to Section 5.1 (“Excess Net Losses”), in proportion to those Excess Net Losses, until all such Excess Net Losses have been offset with allocations of Net Profits pursuant to this sentence. Any remaining allocations of Net Profits shall be made in accordance with Section 5.1.

(d) Other Allocation Rules.

(i) For purposes of determining the Net Profits, Net Losses or any other items allocable to any period, Net Profits, Net Losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Managing Member using any permissible method under Code Section 706 and the Treasury Regulations thereunder.

(ii) Members are aware of the income tax consequences of the allocations made by this Article V and hereby agree to be bound by the provisions of this Article V in reporting their respective shares of Company income and loss for income tax purposes.

(iii) For purposes of determining a Member’s proportionate share of the “excess nonrecourse liabilities” of the Company within the meaning of Treasury Regulations Section 1.752-3(a)(3), Members’ interests in Company profits are in proportion to their respective Common Unit Percentage.

(iv) To the extent permitted by Section 1.704-2(h)(3) of the Treasury Regulations, the Members shall endeavor to treat distributions to Members of Distributable Cash as having been made from the proceeds of a Nonrecourse Liability or a Member Nonrecourse Debt only to the extent that such distributions would cause or increase an Adjusted Capital Account Deficit for any Member.

5.4. Tax Allocations.

(a) In accordance with Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Gross Asset Value (computed in accordance with the definition of “Gross Asset Value”) using a permissible method under Code Section 704(c) and Treasury Regulation § 1.704-3.

(b) In the event the Gross Asset Value of any Company Property is adjusted pursuant to Section 3.6, subsequent allocations of income, gain, loss, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Gross Asset Value in the same manner as designated in Section 5.4(a) with respect to Code Section 704(c) and the Treasury Regulations thereunder.

(c) Allocations pursuant to this Section 5.4 are solely for purposes of federal, state, and local taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Net Profits, Net Losses, other items, or distributions pursuant to any provision of this Agreement.

5.5. Authority of Managing Member to Vary Allocations.

(a) It is the intent of the Members that each Member’s distributive share of Net Profits and Net Losses shall be allocated in accordance with this Article V to the fullest extent permitted by the Code. Further, it is the intent of the Members that the allocation provisions contained in this Article V shall produce final Capital Account balances of the Members such that, if the final liquidating distributions pursuant to Section 6.2(b) were required to be made in accordance with the Members’ positive Capital Account balances rather than in accordance with Section 5.2(b), the Capital Accounts would cause the cumulative distributions to the Members to be in accordance with the order of priorities set forth in Section 5.2(b).

(b) In order to preserve and protect the allocations provided for in this Article V, the Managing Member is authorized and directed to allocate the Net Profits and Net Losses (and, to the extent necessary, individual items of income, gain, loss or deduction) differently than otherwise provided for in this Article V to the extent that allocating Net Profits and Net Losses in the manner provided for in this Article V (excluding this Section 5.5) would cause the allocations of each Member’s distributive shares of any items not to be permitted under Section 704(b) of the Code and the Treasury Regulations promulgated thereunder or other provisions of the Code and such Treasury Regulations. Any allocation made pursuant to this Section 5.5 shall be deemed to be a complete substitute for any allocation otherwise provided for in this Article V and no amendment of this Agreement or approval of any Member shall be required.

(c) In making any allocation under this Section 5.5, the Managing Member is authorized and directed to allocate Net Profits or Net Losses, or items of income, gain, loss or deduction, so as to bring the allocations of Net Profits or Net Losses to the Members as nearly as possible to the allocations thereof otherwise contemplated by this Article V. Also, if determined in the discretion of the Managing Member to be appropriate in order to preserve the intended net, after-tax consequences to the Members, the Managing Member is hereby authorized to cause the Company to file amended tax returns for all prior taxable years for which amended federal tax returns can be filed as necessary to produce the results described in Section 5.5(a) above.

5.6. Limitation on Distributions. Notwithstanding any provision to the contrary contained in this Agreement, neither the Company nor the Managing Member, on behalf of the Company, shall knowingly make a distribution to any Member on account of its Membership Interests or Units in violation of the Act.

5.7. Tax Withholding. The Company shall be authorized to pay, on behalf of any Member, any amounts to any federal, state or local taxing authority, as may be necessary for the Company to comply with tax withholding provisions of the Code or the Delaware law or other income tax or revenue laws of any taxing authority. To the extent the Company pays any such amounts that it may be required to pay on behalf of a Member, such amounts shall be treated as a distribution to such Member and shall reduce the amount otherwise distributable to such Member.

5.8. Sale of Units. In the event of any acquisition of the Company by means of a purchase of all its outstanding Units, merger, or other form or reorganization in which outstanding Units of the Company are exchanged for cash, securities, and/or other consideration issued, or caused to be issued, by the acquiring entity, then the Members hereby agree that all consideration payable to the Members in connection with such transaction (the “Acquisition Consideration”) shall be distributed among the Members such that each Member receives the amount that he or it would have received if all the Company’s assets had been sold (including an assumption of all the Company’s liabilities) and, immediately following the consummation of such hypothetical sale and allocation of the hypothetical profit or loss resulting therefrom, the Company had been dissolved and an amount equal to the Acquisition Consideration was distributed to all the Members pursuant to Section 5.2(b).

ARTICLE VI

DISSOLUTION AND WINDING UP OF THE COMPANY

6.1. Dissolution of Company.

(a) The Company shall be dissolved and its activities shall be wound up upon the first to occur of the following:

(i) The sale or other disposition of all or substantially all of the assets of the Company, unless the Company accepts a deferred payout arrangement in connection with payment of the purchase price, and in that event, upon completion of payment of the purchase price;

(ii) By the approval thereof by the Managing Member and the written consent of the Members holding at least a majority of the Units held by all Members; or

(iii) By entry of a decree of judicial dissolution.

(b) Notwithstanding any provision of the Act to the contrary, the Company shall continue and not dissolve as a result of the death, retirement, resignation, expulsion, bankruptcy or dissolution of any Member or any other event that terminates the continued membership of a Member.

(c) The Managing Member shall notify the Members of the occurrence of any event which would cause dissolution of the Company.

6.2. Final Liquidation.

(a) Upon any dissolution of the Company, its assets shall be liquidated, and its affairs shall be wound up as soon as practicable thereafter by the Managing Member. A court may wind up the Company’s affairs, or appoint a person to wind up its affairs, on application of any Member, his legal representative, or assignee. The persons charged with winding up the Company shall collect its assets, dispose of its properties that will not be distributed in-kind to its Members, discharge or make provision for discharging its liabilities, and distribute its remaining assets as provided in Section 6.2(b) below. The Company shall continue in existence following its dissolution and during its winding up, but shall carry on only that business appropriate to wind up and liquidate its business affairs.

(b) Upon any such dissolution of the Company, the net assets, if any, of the Company available for distribution, and any cash proceeds from the liquidation of any such assets, shall be applied and distributed in the following order, to the extent available:

(i) First, to creditors, including Members who are creditors, to the extent permitted by law, in satisfaction of liabilities of the Company (other than liabilities for distributions to Members);

(ii) Second, to the Preferred Members to pay all due but unpaid Preferred Returns, in accordance with Section 3.1(c); and

(iii) Thereafter, to the Members pursuant to Section 5.2(b)(ii).

(c) Upon dissolution, a reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the discharge of liabilities to creditors so as to minimize the losses normally attendant to a liquidation.

(d) Upon the dissolution and completion of the winding up of the Company, the Board shall file the Certificate of Cancellation with the Delaware Secretary of State in accordance with the Act.

6.3. Deficit Capital Account. If a Member has a deficit balance in his Capital Account at the time of the liquidation of the Company or the liquidation of his interest in the Company (after crediting allocations of income and debiting allocations of loss to his Capital Account), such Member shall under no circumstances be required to pay to the Company, its creditors or any Member the amount of such deficit balance. No provision of this Agreement shall be construed as creating a deficit restoration obligation or any other obligation relative to a negative or deficit Capital Account balance or any other obligation for the benefit of third parties not executing this Agreement.

6.4. Payment in Cash or In-Kind.

(a) Subject to Section 6.4(b) hereof, any payments made to any Common Member pursuant to Section 6.2 hereof may be made in cash or in property, tangible or intangible, or partially in cash and partially in such property in the sole discretion of the Managing Member.

(b) Except as otherwise provided herein, (i) a Member, regardless of the nature of the Capital Contribution made in exchange for its Units, shall have no right to demand or receive distribution from the Company in any form other than cash and (ii) no Member may be compelled to accept from the Company a distribution of any asset in-kind unless all persons with interest in the Company receive at the same time a distribution of an interest in the property distributed that is proportionate to their respective interests in the Company.

6.5. Liquidating Trust. Distributions pursuant to this Article VI may be made to a trust established by the Members or the Company for the benefit of the Members for the purposes of liquidating the Company’s assets, collecting amounts owed to the Company and paying liabilities and obligations of the Company. The assets of any such trust shall be distributed to the Members from time to time, in the reasonable discretion of the trustee of the liquidating trust, in the same proportions as the amount distributed to such trust by the Company would otherwise have been distributed to the Members pursuant to this Agreement.

ARTICLE VII

TRANSFER AND ASSIGNMENT OF UNITS

7.1. General Prohibition. No Member shall Transfer, or in any way alienate all or any part of such Member’s Units or interests in Units without the prior written consent of the Managing Member and the Preferred Members; provided, however, that notwithstanding anything to the contrary contained herein, none of the restrictions on the Transfer of a Member’s Units contained in this Agreement (other than the provisions of Section 7.5), including without limitation the aforementioned approval of the Managing Member, shall apply to:

(a) any Transfer made by a Member to an Affiliate of such Member, in each case, so long as the original Member retains voting control of all such transferred Units; and

(b) any Transfer of Preferred Units by a Preferred Member.

7.2. Admission As a Member. Notwithstanding anything to the contrary contained herein, any Person who is not otherwise a Member but who acquires Units from a Person other than the Company in a Transfer pursuant to any provision of this Agreement (a “Non-Member Transferee”) shall not become a Member until the Managing Member (and the Preferred Members after the occurrence of a Changeover Event) has consented to the admission of the Non-Member Transferee as a Member, which consent may be withheld for any reason no matter how unreasonable.

7.3. Effect of Transfer. Upon a Transfer of Units permitted by this Agreement and until compliance with Section 7.2 of this Agreement, (a) the transferor (if a Member) shall cease to be a Member for all purposes of this Agreement once it has transferred all its Units and (b) until such time, if ever, as the transferee becomes a Member pursuant to Section 7.2, the Non-Member Transferee shall have the rights of an assignee with respect to the transferred Units, but the Non-Member Transferee shall not have any other rights of a Member pursuant to this Agreement or otherwise, including, without limitation, (i) any rights to vote on any matter submitted to the Members, (ii) any right to any information or accounting of the affairs of the Company, (iii) any right to inspect the books or records of the Company and (iv) any other rights of a Member under this Agreement or under the Act, except for those rights that this Agreement specifically grants to Members. The Non-Member Transferee shall, however, be subject to all limitations on and obligations of Members and/or Members set forth herein.

7.4. Unauthorized Transfer.

(a) Any purported Transfer of Units not expressly permitted by this Article VII shall be null and void and of no effect whatsoever; provided, however, that, if (i) a court of competent jurisdiction issues a final judgment requiring the Company to recognize such Transfer or (ii) the Company in its sole discretion elects to recognize such Transfer, the transferee shall have only the rights of a Member, as set forth in Section 7.3 above.

(b) In the event of a Transfer or purported Transfer of Units not expressly permitted by this Article VII, the transferor (or purported transferor) and the transferee (or purported transferee) shall defend, indemnify and hold harmless the Company and the other Members from all cost, liability, and damage that any of the Company or such Members may incur, including, without limitation, any incremental tax liability, or any professional fees and costs, as a result of such unauthorized Transfer or purported Transfer and efforts to enforce this Agreement and this indemnity.

7.5. Additional Restrictions on Transfer. In addition to any other restrictions on Transfer of a Member’s Units, as contained in this Agreement or otherwise, no Unit may be transferred unless prior to such Transfer:

(a) the Managing Member, acting reasonably and promptly, determines that such Transfer would not:

(i) solely with respect to Transfers of Common Units, cause a termination of the Company for federal tax purposes within the meaning of Section 708 of the Code;

(ii) cause the Company to cease to be classified as a partnership for federal or state income tax purposes;

(iii) cause the Company to become a “publicly traded partnership,” as such term is defined in Sections 469(k)(2) or 7704(b) of the Code;

(iv) subject the Company to regulation under the Investment Company Act of 1940 or would subject the Company of any of its Affiliates to the Investment Advisers Act of 1940 or the Employee Retirement Income Security Act of 1974, each as amended;

(v) result in a violation of applicable laws; or

(vi) be made to any Person who lacks the legal right, power, or capacity to own such Units.

(b) the Company, unless it so waives this requirement, is furnished with an opinion of counsel, which is reasonably satisfactory to the Company both as to the counsel so used and as to the content of the opinion, (at the transferee’s expense) that the registration of the sale or transfer of such Units under the applicable federal and state securities laws and regulations is not required;

(c) the transferor and the transferee shall have executed a written agreement, in form and substance reasonably satisfactory to the Managing Member, to defend, indemnify and hold the Company and the Members harmless from and against all liabilities, losses, costs and expenses arising out of the transfer, including, without limitation, any liability arising by reason of the violation of any securities laws of the United States, any State of the United States, or any foreign country;

(d) the transferee makes representations and warranties to the Company that he is purchasing such Units for his own account, for investment purposes only, and without a view towards resale, or any other such representations and warranties as the Company shall reasonably see fit to require concerning such purchaser’s investment in the Company;

(e) the transferee executes a Joinder Agreement under which he agrees to be bound by the terms of this Agreement as a Member hereunder and, if he is also admitted as a Member pursuant to Section 7.2, as a Member;

(f) the transferee agrees in writing to be bound by the provisions of this Agreement to the same extent the transferor was bound hereunder; and

(g) the transferee shall have paid the reasonable expenses incurred by the Company and the other Members in connection with the transfer of Units or, if applicable, the admission of the transferee as a Member.

7.6. Allocations Between Transferor and Transferee. Upon the transfer of a Unit, all items of income, gain, loss, deduction and credit attributable to Units so transferred shall be allocated between the transferor and the transferee in such manner as the Managing Member reasonably determines at the time of transfer, provided such allocation does not violate federal or state income tax law. Cash distributions as called for by this Agreement shall be made to the Member of record of the Units on the date of distribution.

7.7. Call. At any time the Managing Member has the option (but not the obligation) to cause the Company to repurchase all outstanding Preferred Units and upon the Company making such an election the Preferred Members are required to sell all their Preferred Units to the Company. The purchase price payable to each Preferred Member for all its Preferred Units shall be an amount equal to such Preferred Member’s Redemption Amount. Following any payment of the Redemption Amount to a Preferred Member, such Preferred Member shall have no further rights, obligations or duties pursuant to this Agreement or otherwise with respect to the Company.

ARTICLE VIII

CHANGEOVER EVENTS

8.1. Changeover Events. The occurrence of any of the following events or circumstances shall constitute a Changeover Event; provided, however, that notwithstanding anything to the contrary contained herein, any event, omission or circumstance listed below for which a cure period is otherwise expressly provided in this Agreement shall not constitute a Changeover Event until the expiration of such cure period:

(a) Failure to make a payment pursuant to Section 3.1(b) on at least a quarterly basis;

(b) The Company (i) files a petition in bankruptcy, (ii) is the subject of an involuntary petition in bankruptcy which involuntary petition is not dismissed within ninety (90) days after the effective filing date thereof or (iii) is otherwise subject to a substantially similar proceeding regarding the insolvency of the Company (for example, receivership) that is not dismissed or fully resolved within ninety (90) days;

(d) A material breach by the Company of any covenant set forth in this Agreement (other than any REIT Covenant);

(e) For so long as the Advisor shall have any authority of the Managing Member, as delegated to the Advisor in accordance with Section 4.2, the occurrence of (i) any act in material violation by the Advisor of, or material failure by the Advisor under, this Agreement or the Investment Management Agreement, as such violation or failure relates to the Company, (ii) any act of fraud or embezzlement by the Advisor against the Company or (iii) an event of any gross negligence or willful misconduct on the part of the Advisor in the performance of its duties under this Agreement that is materially detrimental to the Company; and

(f) Any Preferred Units are outstanding on or after July 1, 2018.

8.2. Changeover Sale. Following the occurrence of a Changeover Event, the Managing Member shall be required to diligently pursue the sale of Company assets in a commercially reasonable manner with a responsibility to maximize the proceeds from such sale and in an amount, together with any other financing obtained by the Company, that is sufficient for the Company to pay the Redemption Amount for all outstanding Preferred Units of the Preferred Members, unless another course of action is approved by all Preferred Members. In the event that the Managing Member proposes an alternative course of action and one or more Preferred Members do not consent to such action (each a “Disagreeing Member”), the remaining Members of the Company will have the right to purchase the Units of such Disagreeing Member for the Redemption Amount. If multiple Members choose to participate in the purchase of the Disagreeing Members’ Units, then the purchase will be made on a pro-rata basis based on Adjusted Capital Contributions.

8.3. Preferred Mandatory Redemption. Upon the occurrence of (i) a “Change of Control” of the REIT Parent or (ii) the date on which neither the REIT Parent nor any acquiring or surviving entity of the REIT Parent in a Change of Control transaction has a class of common securities (or American Depositary Receipts representing such securities) listed on the New York Stock Exchange (the “NYSE”), the NYSE MKT LLC (the “NYSE MKT”) or the Nasdaq Stock Market (“Nasdaq”), or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE MKT or Nasdaq, the Company (or its successors and assigns) shall pay or cause to pay the Preferred Members the Redemption Amount for all outstanding Preferred Units (i) on the date on which the Change of Control transaction closes or (ii) within five (5) Business Days following the first date on which neither the REIT Parent nor any acquiring or surviving entity of the REIT Parent has a class of common securities (or American Depositary Receipts representing such securities) listed on the NYSE, NYSE MKT or Nasdaq, or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE MKT or Nasdaq. A “Change of Control” of the REIT Parent is deemed to occur when, after the date hereof, the following have occurred and are continuing: the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of capital stock of the REIT Parent entitling that person to exercise more than 50% of the total voting power of all capital stock of the REIT Parent entitled to vote generally in the election of directors of the REIT Parent (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition).

8.4. Remedies. On the next Business Day after the occurrence of any Changeover Event, in addition to any other rights or remedies available to the Preferred Members at law or in equity, the Board of Directors of the REIT Parent will cause (i) the number of directors constituting the Board of Directors of the REIT Parent to be automatically increased by one and (ii) the REIT Parent to establish a series of preferred stock of the REIT Parent having no economic rights (“Special REIT Preferred Share”) that will be issued to the Preferred Members, which Special REIT Preferred Share shall entitle the holder of the Special REIT Preferred Share to vote for the election of that one additional director at a special meeting called by the REIT Parent at the request of the holder of any Special REIT Preferred Share and at each subsequent annual meeting until the first to occur of (a) the Company pays the Redemption Amount for all outstanding Units of the Disagreeing Member or (b) the Company pays the Redemption Amount for all outstanding Units of the Preferred Members, at which time the right of the Preferred Members to elect such additional director shall cease and the terms of office of such director shall terminate and the number of directors constituting the Board of Directors of the REIT Parent shall be reduced accordingly and any Special REIT Preferred Shares then outstanding shall be deemed to be canceled.

ARTICLE IX

RECORDS, ACCOUNTING AND REPORTS

9.1. Books and Records. The Managing Member shall keep or cause to be kept complete and accurate books and records reflecting the business of the Company.

9.2. Access to Records. Each Member shall have the right to obtain from the Company from time to time, upon reasonable demand for any purpose reasonably related to the Member’s Membership Interest, the information and records of the Company described in Section 18-305(a) of the Act, subject to reasonable standards prescribed by the Managing Member (including standards governing at what time and location such information and documents may be furnished, and at whose expense). Any demand for information under this Section 9.2 shall be in writing and shall be made in good faith and for a proper purpose, and shall describe with reasonable particularity the records or information desired and the purpose therefor.

9.3. Bank Accounts and Investment of Funds.

(a) The Managing Member shall open and maintain, on behalf of the Company, a bank account or accounts at such time and in such depositories as it shall determine, in which all monies received by or on behalf of the Company shall be deposited. All withdrawals from such accounts shall be made upon the signature of such person or persons as the Managing Member may from time to time designate.

(b) Any funds of the Company which the Managing Member may determine are not currently required for the conduct of the Company’s business may be invested at the sole discretion of the Managing Member.

9.4. Reports.

(a) The Company will deliver to the Members as soon as available and in any event within 60 days, if unaudited, or within 60 days, if audited, after the end of each fiscal year, a balance sheet of the Company as of the end of such fiscal year, and the related statement of income and retained earnings and a statement of cash flows of the Company for such year, setting forth in each case in comparative form corresponding figures from the preceding year, and a comparison of actual financial results to budgeted figures for the fiscal year in question, which financial statements shall have been prepared in accordance with GAAP. The Company will deliver to the Members within 30 days after the end of each fiscal quarter, (i) an unaudited balance sheet of the Company for such month and the related unaudited statements of income and retained earnings of the Company for such month and for the period from the beginning of the current fiscal year to the end of such fiscal quarter, which financial statements shall have been prepared in accordance with GAAP and (ii) an executive summary prepared by the Managing Member that discusses the Company’s activities and operations during such fiscal quarter.

(b) In addition, the Managing Member shall prepare or cause to be prepared at the Company’s expense:

(i) income tax returns for the Company which it shall timely file with appropriate authorities; and

(ii) a notice of each Member’s share of the Net Profits or Net Losses for federal income tax purposes for each year and any other information necessary for preparation by each Member of his federal income tax return, which shall be delivered to such Member within 90 days after the end of each fiscal year.

(c) The Managing Member shall file all annual reports required under law to be made on behalf of the Company. Such reports shall be delivered within the time required by applicable law.

(d) The Company will deliver to the Members the investment credit memorandum for new Investments.

9.5. Tax Accounting Methods; Periods; Elections.

(a) The determination of whether to utilize accelerated cost recovery or another method of cost recovery or depreciation, and the selection among any other allowable, alternative tax accounting methods or principles shall be made by the Managing Member and shall be those methods and principles which are determined by them to be appropriate. The Company’s annual financial accounting and tax accounting period shall be the calendar year except as otherwise required by Section 706 of the Code. Subject to the REIT Covenants, the Managing Member may cause the Company to make any election allowable to the Company under the Code, including elections under Section 754 of the Code with respect to the Company distributions described in Section 734 of the Code and with respect to transfers of interests described in Section 743 of the Code, provided all such elections are determined by the Managing Member, in its sole discretion, to be in the best interest of the Members holding a majority of the Units; provided, however, that the Managing Member shall not be required to make an election under Section 754 of the Code, and neither the Company nor the Managing Member shall be held responsible or liable for the failure to make such election. In the event such election is made, all costs and expenses incurred by the Managing Member and the Company in connection with such election, including the fees and expenses of the Company’s accountants and tax advisers, shall be borne by the transferee making such request.

(b) The Members intend that, for U.S. federal, state and local income tax purposes, each Preferred Member’s Preferred Units shall be treated as partnership interests entitled to guaranteed payments under Section 707(c) of the Code, as contemplated in Section 3.1(c). The Members agree to take all actions, including the amendment of this Agreement and the execution of other documents, as may be required to qualify for and receive the treatment described in the preceding sentence.

ARTICLE X

AMENDMENTS

10.1. Amendments Which May be Made Without the Consent of the Members. Subject to Section 10.3, and the approval of the Preferred Members, the Managing Member shall have the power and authority to amend this Agreement or the Certificate from time to time without the consent of any of the Members for any of the following reasons:

(a) to reflect the admission, substitution, removal or withdrawal of a Member in accordance with the terms of this Agreement;

(b) to reflect, in accordance with the terms of this Agreement, the occurrence of a return of all or part of any Member’s Capital Contribution or to reflect additional contributions to the Company;

(c) to effect, with prior notice to all Members, an amendment which is, in the opinion either of counsel to the Company or of the Company’s accountants, necessary to satisfy requirements of the Code or of any other federal or any state tax laws or regulations with respect to partnership classification and does not increase or extend any financial obligation or liability of the Members, or reduce the obligations of the Managing Member hereunder;

(d) to amend any provision which is necessary to comply with any requirement of the Code or Treasury Regulations or in order for the allocations of Net Profits and Net Losses made in this Agreement to be held valid, provided that all Members receive prior notice of such amendment accompanied by an opinion of counsel or the Company’s accountants to the effect that such amendment is necessary for the allocations of Net Profits and Net Losses made in this Agreement to be held valid; and

(e) in connection with (and only as necessary to the extent of) the issuance of additional Units or Membership Interests in accordance with the terms of this Agreement, including without limitation amendments to Exhibit A to reflect such issuances and amendments to alter the order of distribution and the allocation of profits and losses set forth in Article V; provided, that no such amendment may reduce any rights or benefits, or increase any liabilities or obligations, of any existing Member or class of Members, other than indirectly through the issuance of senior securities.

10.2. Amendments and Waivers Requiring Consent of the Members. Except as otherwise provided in Section 10.1 and subject to the additional approval requirements set forth in Section 10.3, the Managing Member can amend this Agreement (or waive any provision hereof) and/or the Certificate only with the written consent of all Members.

10.3. Amendments and Waivers Requiring Approval of Affected Member. In addition to the approval requirements set forth in Section 10.2, the Managing Member is authorized to amend the Certificate or this Agreement (or waive of any provisions thereof) in a manner that would:

(a) impose any new or additional liability on any existing Member or enlarge the obligation, if any, of any existing Member to make contributions to the capital of the Company;

(b) alter the order of distribution and the allocation of Net Profits and Net Losses set forth in Article V, unless such alteration is made in connection with the admission of additional Members in accordance with Section 3.3(b)(iii) or except as otherwise required to comply with the Code or Treasury Regulations or as otherwise provided in Section 10.1(d);

(c) reduce a Member’s rights or enlarge a Member’s obligations solely as to such Member and not all Members of the same class; or

(d) eliminate the protections afforded by this Section 10.3,

only with the prior written consent of each Member affected by such amendment or waiver.

ARTICLE XI

MISCELLANEOUS

11.1. No Waiver of Provisions. The failure or delay in enforcing compliance at any time with respect to any of the provisions, terms or conditions of this Agreement shall not be considered a waiver of such provision, term or condition itself or of any of the other provisions, terms or conditions hereof.

11.2. Entire Agreement, Amendments, Interpretation, and Construction. This Agreement, the Exhibits hereto and the subscription documents delivered by the Members and the Joinder Agreements delivered by the Members contain the entire agreement among the Members with respect to the matters contained herein, and any modification, amendment or waiver hereto must be done in accordance with the provisions of this Agreement. Where the context so requires, the masculine shall include the feminine and the neuter and the singular shall include the plural. The headings and captions in this Agreement are inserted for convenience and identification only and are in no way intended to define, limit or expand the scope and intent of this Agreement or any provision hereof. The references to Section, Article and Exhibit in this Agreement are to the Sections, Articles and Exhibits of this Agreement except as otherwise specifically stated. Any references such as “herein” and “hereof” shall refer to this entire Agreement and not any particular Section, Article or paragraph only.

11.3. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws principles thereof. Any disputes arising out of this Agreement or otherwise in relation to the Company shall be adjudicated exclusively in the federal and state courts sitting in Mecklenburg County, North Carolina, with appeal rights to the appropriate appellate courts.

11.4. Partial Invalidity. In the event that any part or provision of this Agreement shall be determined to be invalid or unenforceable, the remaining parts and provisions of said Agreement which can be separated from the invalid, unenforceable provision shall continue in full force and effect.

11.5. Binding Effect. The terms, conditions and provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective heirs, successors, distributees, legal representatives and permitted assigns; provided, however, that nothing in this Agreement, expressed or implied, is intended or shall be construed to give to any creditor of the Company or any creditor of any Member or any other person or entity whatsoever, other than the Members in the Company, any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenant, condition or provisions herein contained, and such provisions are and shall be held to be for the sole and exclusive benefit of the Members and the Company.

11.6. Notices and Delivery.

(a) To the Members and Members. Any notice to be given hereunder at any time to any Member or Member, or any documents, reports or returns required by this Agreement to be delivered to any Member or Member, may be delivered personally or mailed to such Member or Member, postage prepaid, addressed to him at such address as set forth on Exhibit B hereto. Any notice, or any document, report or return so delivered or mailed shall be deemed to have been given or delivered to such Member or Member at the time it is delivered or mailed, as the case may be.

(b) To the Company. Any notice to be given to the Company hereunder may either be delivered personally or mailed by registered or certified mail, postage prepaid, addressed to the Company at the address set forth on Exhibit B. Any notice so delivered or mailed shall be deemed to have been given to the Company at the time it is delivered or mailed, as the case may be.

11.7. Counterparts. This Agreement may be executed in any number of separate counterparts, each of which shall be deemed an original, and the several counterparts taken together shall constitute the agreement of the Members and Members.

11.8. Statutory Provisions. Any statutory reference in this Agreement shall include a reference to any successor to such statute and/or revision thereof.

11.9. Waiver of Partition. Each party does hereby waive any right to partition or the right to take any other action which might otherwise be available to such party for the purpose of severing such party’s interest in the property held by the Company from the interests of other Members until the end of the term of both this Company and any successor entity formed pursuant to the terms hereof.

11.10. Tax Matters Partner. Managing Member shall act as the “Tax Matters Partner” within the meaning of Subchapter C, Chapter 63 of the Code and as such will serve as principal representative of the Company in partnership-level administration and judicial proceedings with the Internal Revenue Service. The Tax Matters Partner shall keep each Member informed of all administrative and judicial tax proceedings.

[Signature page follows.]

IN WITNESS WHEREOF, the parties hereto have hereunto set their respective hands and seals as of the day and year first above written.


COMPANY

RB MULTIFAMILY INVESTORS LLC

By:
Name:		Xxxxx Xxxxxx
Title:		Authorized Representative

COMMON MEMBER

RIVERBANC MULTIFAMILY LP

By:	RiverBanc Multifamily Investors, Inc., its general partner

By:
Name:		Xxxxx Xxxxxx
Title:		Chief Executive Officer

[Signature page continues.]


	PREFERRED MEMBER

	EF CMO LLC

	By:		Xxxxxxxxx Financial Management LLC, its investment manager

	By:
	Name:		Xxx Xxxxx
	Title:		Authorized Signatory

	WITHDRAWING MEMBERS

	NEW YORK MORTGAGE TRUST, INC.

	By:
	Name:		Xxxxxx X. Xxxxx
	Title:		Chief Executive Officer

	JMP CAPITAL LLC

	By:
	Name:		Xxxxxx X. Xxxxxx
	Title:		Chief Executive Officer

	XXXXXX FAMILY LLC

	By:
	Name:		Xxxxx Xxxxxx
	Title:		Managing Member

	REIT PARENT
	*(Solely for purposes of Section 8.3 hereof)*

	RIVERBANC MULTIFAMILY INVESTORS, INC.

	By:
	Name:		Xxxxx Xxxxxx
	Title:		Chief Executive Officer

EXHIBIT A

UNIT REGISTER

As of [ ], 2015


		Number and Class	Adjusted Capital
		of Outstanding	Contribution	Common Unit
Member Name	Member Status	Units	as of [ ], 2015	Percentage

EF CMO LLC	Preferred Member	16,341,134 Preferred Units	16,341,134	N/A

RiverBanc Multifamily LP	Common Member	[ ] Common Units	[ ]	100%

Total Capitalization		[ ]	$ [ ]	100.00%

EXHIBIT B

ADDRESSES FOR NOTICE

To the Company:

RB Multifamily Investors LLC

c/o RiverBanc LLC

000 Xxxx Xxxxx Xxxxxx

Xxxxx 0000

Xxxxxxxxx, XX 00000

Attn: Xxxxx Xxxxxx

To the Managing Member:

RiverBanc Multifamily LP

c/o RiverBanc LLC

000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000

Xxxxxxxxx, XX 00000

Attn: Xxxxx Xxxxxx

To Xxxxxxxxx:

EF CMO LLC

c/o Ellington Management Group, LLC

00 Xxxxxx Xxxxxx

Xxx Xxxxxxxxx, XX 00000

Attn: Xxxxxx Xxxxxx

To the REIT Parent:

RiverBanc Multifamily Investors, Inc.

c/o RiverBanc LLC

000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000

Xxxxxxxxx, XX 00000

Attn: Xxxxx Xxxxxx

EXHIBIT C

JOINDER AGREEMENT

The undersigned is executing and delivering this Joinder Agreement pursuant to the Second Amended and Restated Limited Liability Company Agreement of RB Multifamily Investors LLC, dated as of _____________, 2015, as may be amended from time to time, (the “LLC Agreement”), by and among the Members and Members thereunder. Terms not otherwise defined herein shall have the meaning ascribed thereto in the LLC Agreement.

The undersigned agrees that he shall be a Member of the number of _______Units as set forth on Exhibit A to the LLC Agreement. Furthermore, the undersigned agrees that he shall be a Member. By executing and delivering this Joinder Agreement to the Company, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the terms and provisions of the LLC Agreement, as a Member of _____ ______ Units and as a Member with all the rights and obligations attendant thereto.

Accordingly, the undersigned has executed and delivered this Joinder Agreement as of the ______ day of _____, 20____.


Name:

Address for			With copies
Notices:			to:





			Signature:

			Date:

EXHIBIT D

Initial Investments


Asset	Address

Bent Tree Apartments	00000 Xxxx Xxx Xxxxx Xxxx, XX

Waters at Elm Creek Apartments	00000 Xxxxxxxx Xxxxxx Xxx Xxxxxxx, XX

Waters at Bluff Springs Apartments	0000 X. Xxxxxxxxxx Xxxxxxx 00 Xxxxxx, XX

Evergreens at Mt. Moriah Apartments	0000 Xxxxxxxx Xxxxx Xxxxxx, XX

EXHIBIT E

FORM OF REIT COVENANT FOR JOINT VENTURE EQUITY
AND PREFERRED EQUITY INVESTMENTS

The Company shall be provided with any information with respect to any investment, its operations, its income and its assets reasonably requested in writing by the Company for the purposes of verifying whether the investment’s income and assets are treated as qualifying for purposes of the income and asset tests applicable to real estate investment trusts in Section 856(c) of the Code. As a condition of the Company’s investment, the operating partner of the investment has completed and provided to the Company a property services questionnaire, in substantially the form attached hereto as Schedule 1. In addition, the operating partner of each investment shall provide the Company with a completed property services questionnaire, in substantially the form attached hereto as Schedule 1, no later than January 31, of each calendar year ending after the Effective Date. If, after providing the completed property services questionnaire to the Company, the operating partner (or any of its affiliates) of the investment plans to provide any additional service at the property that is not listed or described on the most recently completed property services questionnaire, the operating partner of the investment will notify the Company in writing at least 30 days prior to the commencement of the provision of such service and will not provide such service if the Company notifies such operating partner that such service could reasonably be expected to cause the investment to derive income that would not be qualifying income for the income tests applicable to real estate investment trusts in Section 856 of the Code. If the Company otherwise notifies the operating partner of the investment that the Company has recognized any income or acquired any assets that would cause the Company to fail to satisfy the income and asset tests applicable to real estate investment trusts in Section 856(c) of the Code, the investment shall cease engaging in the activity that generates such income or dispose of such asset within 15 days of the receipt of written notice from the Company.

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SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF RB MULTIFAMILY INVESTORS LLC Dated as of [ ], 2015

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