EX-10.100.1 Joint Venture Agreement for Brea Emeritus


    


     

    AMENDED
      AND RESTATED 

    LIMITED
      LIABILITY COMPANY AGREEMENT

     

    OF

     

    BREA
      EMERITUS LLC

     

    THIS
      AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement“)
      of
      BREA EMERITUS LLC (the
      “Company“)
      is made
      and entered into as of the 1ST
      day of
      December, 2006, by and between EMERITUS CORPORATION, a Washington
      corporation (“ESC“),
      and
      BREA 806 LLC, a Delaware limited liability company (“BREA“).

     

    WHEREAS,
      the Company desires to obtain a loan from General Electric Capital Corporation,
      a Delaware corporation, in its capacity as mortgage lender of the Loan (together
      with its successors and assigns as holders of interests in the Loan,
“Lender”),
      in
      the original principal amount of up to $167,000,000.00 (the “Loan”),
      which
      Loan will be made pursuant to that certain Credit Agreement by and between
      the
      Company and Lender (the “Credit
      Agreement”)
      and
      evidenced by one or more Term Loan Notes in the aggregate original principal
      amount of up to $167,000,000.00, by the Company in favor of Lender (the
“Note”),
      and
      those certain Mortgages or Deeds of Trust, made by the Company for the benefit
      of Lender (the “Security
      Instrument”);

     

    WHEREAS,
      in connection with the Loan, Lender has required that the Company exist as
      a
      single purpose bankruptcy remote entity with certain bankruptcy remote
      provisions;

     

    WHEREAS,
      ESC and BREA formed the Company pursuant to the provisions of the Delaware
      Limited Liability Company Act, 6 Del. C. § 18-101 et seq., as the same may be
      amended from time to time (the “Act”);
      and,
      in connection therewith, caused to be filed on September 20, 2006 with the
      Secretary of State of the State of Delaware, a Certificate of Formation for
      BREA
      Emeritus LLC as a limited liability company and executed that certain Limited
      Liability Company Agreement of the Company, dated as of September 20, 2006
      (as
      amended, the “Existing
      Agreement”),
      as
      amended by that certain First Amendment to Limited Liability Company Agreement,
      dated as of October 24, 2006;

     

    WHEREAS,
      the parties hereto now desire to amend and restate in its entirety the Existing
      Agreement on the terms and conditions contained herein;

     

    


     

    NOW
      THEREFORE, in consideration of the agreements and obligations set forth herein
      and for other good and valuable consideration, the Members and Independent
      Manager hereby agree as follows:

     

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    ARTICLE
      I  
      FORMATION AND PURPOSE OF COMPANY; DEFINITIONS

     

    .

     

    Section
      1.1  Formation

     

    .
      As of
      September 20, 2006, the Company has been formed by the filing of a certificate
      of formation with the Secretary of State of the State of Delaware. The Company
      shall continue to be operated as a limited liability company under the Act,
      subject to the provisions set forth in this Agreement.

     

    Section
      1.2  Name

     

    .
      The
      Company’s business shall be conducted solely under the name of “BREA Emeritus
      LLC.”

     

    Section
      1.3  Term

     

    .
      The
      term of the Company shall be from the date hereof until the Company is dissolved
      as hereinafter provided.

     

    Section
      1.4  Purpose

     

    .
      The
      purpose of the Company shall be to acquire, operate, lease, maintain, market,
      finance, sell and otherwise use the “Properties” (as hereinafter defined) for
      profit and to engage in all activities related thereto (the “Project”).
      The
      business of the Company may be conducted directly by the Company or through
      direct or indirect wholly-owned subsidiaries of the Company (the “Company
      Subsidiaries”).

     

    Section
      1.5  Registered
      Office; Registered Agent; Principal Office

     

    .
      The
      registered office and registered agent for service of process of the Company
      shall be Corporation Service Company, 2711 Centerville Road, Suite 400,
      Wilmington, Delaware 19808, or such other place as the Members may from time
      to
      time designate. The principal office of the Company shall be at 345 Park Avenue,
      New York, New York 10154, or at such other place as the Members shall
      agree.

     

    Section
      1.6  Members

     

    .
      “Member”
means
      any of BREA and ESC, and subject to Section
      11.9,
      their
      respective successors and assigns. “Members”
means
      BREA and ESC, collectively, and subject to Section
      11.9,
      their
      respective successors and assigns. Upon the occurrence of any event that causes
      the last remaining Member of the Company (the “Sole
      Member”)
      to
      cease to be a member of the Company (other than (i) upon an assignment by the
      Sole Member of all of its limited liability company interest in the Company
      and
      the simultaneous admission of the transferee pursuant to the terms of (a) this
      Agreement, and (b) the Credit Agreement, or (ii) the resignation of the Sole
      Member and the simultaneous admission of an additional member of the Company
      pursuant to the terms hereof) (a “Member
      Cessation Event”),
      Independent Manager shall, without any action of any Person and simultaneously
      with the Member Cessation Event, automatically be admitted to the Company as
      the
      Sole Member of the Company (the “Special
      Member”)
      and
      shall preserve and continue the Company without dissolution. Special Member
      may
      not resign from the Company or transfer its rights as Special Member unless
      a
      successor Special Member has been admitted to the Company as Special Member
      by
      executing a counterpart to this Agreement. Special Member shall be a member
      of
      the Company that has no interest in the profits, losses and capital of the
      Company and has no right to receive any distributions of Company assets.
      Pursuant to Section 18-301 of the Act, Special Member shall not be required
      to
      make any capital contributions to the Company and shall not receive a limited
      liability company interest in the Company. Special Member, in its capacity
      as
      Special Member, may not bind the Company. Except as required by any mandatory
      provision of the Act, Special Member, in its capacity as Special Member, shall
      have no right to vote on, approve or otherwise consent to any action by, or
      matter relating to, the Company, including, without limitation, the merger,
      consolidation or conversion of the Company. In order to implement 

     


    
      
        
        

      

      
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    the
      admission to the Company of Special Member, Independent Manager shall execute
      a
      counterpart to this Agreement. Prior to its admission to the Company as Special
      Member, Independent Manager shall not be a member of the Company.

     

    Section
      1.7  Definitions

     

    .
      The
      following terms shall have the respective meanings set forth below:

     

    “Acquisition Costs”
means
      the sum of the following costs in connection with the acquisition of the
      Properties: (a) the Purchase Price (including the Deposit), net of the
      prorations provided for in the Purchase Agreement, and closing costs (excluding
      legal fees [it being understood that legal fees are included only to the extent
      set forth in clause (b) below]) as indicated in the Closing Statement and
      approved by BREA; and (b) to the extent set forth in Exhibit ”A” or as
      otherwise approved in writing by the Members, the out-of-pocket due diligence,
      pre-closing costs, legal fees (excluding legal fees associated with negotiating
      and documenting this Agreement and the Collateral Agreements, the respective
      costs of which shall be borne by the respective parties incurring the same)
      and
      initial reserves, that have been or are anticipated to be incurred by the
      Company, any Company Subsidiary or the Members in connection with the
      acquisition of the Properties, the formation of the Company, and any Company
      Subsidiaries, or Project Financing (including any good faith deposit and
      commitment or other fees).

     

    “Administrative
      Member Costs”
means
      the actual third-party out-of-pocket costs reasonably incurred by ESC on behalf
      of or otherwise relating to or intended to benefit the Company or any Company
      Subsidiary, such as appraisal, legal, preparation of third party financial
      reports, (including the annual preparation of tax returns and/or audits of
      the
      Company as required) diligence and investigation expenses with respect to the
      acquisition on new Properties. Administrative Member Costs is not intended
      to
      include ESC’s general corporate overhead costs or the costs of any regional or
      divisional employees retained by ESC in relation to the Properties, or any
      costs
      or expense which are not the obligations of ESC in its capacity as property
      manager under a Management Agreement.

     

    “Affiliate”
of
      a
      person or entity (or words of similar import, whether or not capitalized) means
      (1) any officer, director, employee, trustee, , member, partner or; or
      (2) any corporation, partnership, limited liability company, trust or other
      person or entity controlling, controlled by or under common control with the
      entity in question (whether directly or indirectly through one or more
      intermediaries). Notwithstanding the foregoing, nothing herein shall be
      construed to apply to privately held entities and/or ventures owned and/or
      operated by Daniel R. Baty. However, neither the Company nor any Company
      Subsidiary shall be deemed to be an Affiliate of any Member. For the purpose
      of
      this definition, “control”
means
      the possession, directly or indirectly, of the power to decide, affirmatively
      (by direction) or negatively (by veto), the management and policies, whether
      through the ownership of voting securities or by contract or otherwise.


     

    “Bankruptcy/Dissolution
      Event”
with
      respect to an entity, means the commencement or occurrence of any of the
      following with respect to such entity: (1) a case under Title 11 of
      the U.S. Code, as now constituted or hereafter amended, or under any other
      applicable federal or state bankruptcy law or other similar law; (2) the
      appointment of (or a proceeding to appoint) a trustee or receiver of any
      property interest; (3) an attachment, execution or other judicial seizure
      of (or a proceeding to attach, execute or seize) a substantial property
      interest; (4) an assignment for the 

     


    
      
        
        

      

      
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    benefit
      of creditors; or (5) the general inability to meets its financial obligations
      as
      and when they are due; or (6)  a dissolution or liquidation; provided,
      however, that the events described in clauses (1), (2) or (3) shall not be
      included if the same are (a) involuntary and not at any time consented to,
      (b) contested within thirty (30) days of commencement and thereafter
      diligently and continuously contested, and (c) dismissed or set aside, as
      the case may be, within ninety (90) days of commencement.

     

    “Budget”
means
      the consolidated Operating Budget and Capital Budget, as applicable, for the
      Properties. “Operating
      Budget”
and
      “Capital
      Budget”
means
      the consolidated operating budget and capital budget, respectively, for the
      Company, but not as it relates to a specific Property, as the same may be
      modified from time to time with the written approval of BREA, or any other
      budget of the Company or any Company Subsidiary. The initial Budget is attached
      hereto as Exhibit “B.”

     

    “Business
      Agreements”
means
      any lease, rental agreement, loan agreement, mortgage, easement, covenant,
      restriction or other agreement or instrument at any time or times affecting
      the
      Company, any Company Subsidiary or all or a portion of any of their respective
      assets.

     

    “Claim”
means
      any obligation, liability, claim (including any claim for damage to property
      or
      injury to or death of any persons), lien or encumbrance, loss, damage, cost
      or
      expense (including any judgment, award, settlement, reasonable attorneys’ fees
      and other costs and expenses incurred in connection with the defense of any
      actual or threatened action, proceeding or claim [including appellate
      proceedings], and any collection costs or enforcement costs).

     

    “Collateral
      Agreement”
means
      any agreement, instrument, document or covenant concurrently or hereafter made
      or entered into under, pursuant to, or in connection with this Agreement
      (including the “Management Agreements,” as hereinafter defined), and any
      certifications made in connection herewith or therewith or amendment or
      amendments made at any time or times heretofore or hereafter to any of the
      same.

     

    “Company
      Percentages”
means,
      initially, the following respective percentages for each of the
      Members:

     

    
      	 	 
	
              Member

            	
              Company
                Percentage

            
	 	 
	
              ESC

            	
              19%

            
	
              BREA

            	
              81%

            
	 	 
	
              TOTAL:

            	
              100%

            
	 	 


    

    “Cure
      Period”
means
      (1) five (5) business days after written notice to a defaulting Member
      or Affiliate specifying the nature of a default or breach under this Agreement
      or Collateral Agreement, in connection with a monetary default that is not
      a
“Noncurable Default” (as hereinafter defined); (2) thirty (30) days after
      written notice to a defaulting Member or Affiliate specifying the nature of
      a
      default or breach under this Agreement or Collateral Agreement, in connection
      with a non-monetary default that is not a Noncurable Default (provided, however,
      that if such non-

     


    
      
        
        

      

      
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    monetary
      default cannot reasonably be cured within such thirty (30) day period, and
      such defaulting Member promptly commences the cure of such default and
      diligently pursues such cure to completion, then such thirty (30) day
      period shall be extended to the extent reasonably necessary, but in no event
      after the date that is sixty (60) days after such written notice); and
      (3) no period at all for a Noncurable Default.

     

    “Investment
      Maintenance Costs”
means
      the actual third-party out-of-pocket costs reasonably incurred by BREA (or
      its
      Affiliates) in connection with making or maintaining its interest in the
      Company, or on behalf of or otherwise relating to or intended to benefit the
      Company or any Company Subsidiary, such as travel, appraisal, legal, accounting,
      (including the annual preparation of tax returns and/or audits of the Company
      as
      required) diligence and investigation expenses.

     

    “Laws”
(i.e.,
      all procedural and substantive federal, state and local laws, moratoria,
      initiatives, referenda, ordinances, rules, regulations, standards, orders and
      other governmental requirements [including those relating to the environment,
      health and safety, or handicapped persons], applicable to the Company, any
      Company Subsidiary or all or any portion of their respective
      assets).

     

    “Material
      Action”
means
      to institute proceedings to have the Company be adjudicated bankrupt or
      insolvent, or consent to the institution of bankruptcy or insolvency proceedings
      against the Company or file a petition seeking, or consent to, reorganization
      or
      relief with respect to the Company under any applicable federal or state law
      relating to bankruptcy, or consent to the appointment of a receiver, liquidator,
      assignee, trustee, sequestrator (or other similar official) of the Company
      or a
      substantial part of its property, or make any assignment for the benefit of
      creditors of the Company, or admit in writing the Company’s inability to pay its
      debts generally as they become due, or take action in furtherance of any such
      action.

     

    “Noncurable
      Default”
means
      a
      default that cannot be cured and includes each of the following: (a) a
      breach of a representation or warranty, (b) a breach of Section 6.1 or
      any other restriction upon transfer or hypothecation, (c) an intentional
      breach, (d) a breach constituting gross negligence or willful misconduct (which,
      as used in this Agreement, shall include active or passive fraud, dishonesty
      or
      bad faith), (e) a breach of Section 5.4 or any other exclusive or
      non-competition covenant, (f) a breach of an obligation if there have been
      two (2) prior breaches of such obligation or a similar obligation within
      the immediately preceding one (1) year period (or if longer, the period
      during which the obligation arose on the three most recent prior occasions),
      or
      (g) taking action on behalf of the Company that is beyond the scope of
      authority established by this Agreement.

     

    “Obligation”
means,
      with respect to the Company, all amounts, obligations, liabilities, covenants
      and duties of every type and description owing by the Company to the
      Administrative Agent (as defined in the Credit Agreement), the Lender, any
      other
      Indemnitee (as defined in the Credit Agreement), any participant, any SPE (as
      defined in the Credit Agreement) or, in the case of any Secured Hedging
      Agreement, any Affiliate of any of them arising out of, under, or in connection
      with, any Loan Document, whether direct or indirect (regardless of whether
      acquired by assignment), absolute or contingent, due or to become due, whether
      liquidated or not, now existing or hereafter arising and however acquired,
      and
      whether or not evidenced by any instrument or for the payment of money,
      including, without duplication, (a) all Loans, (b) all interest, whether or
      not
      accruing after the filing of any petition in bankruptcy or after the
      commencement of any insolvency, 

     


    
      
        
        

      

      
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    reorganization
      or similar proceeding, and whether or not a claim for post-filing or
      post-petition interest is allowed in any such proceeding, and (c) all other
      fees, expenses (including fees, charges and disbursement of counsel), interest,
      commissions, charges, costs, disbursements, indemnities and reimbursement of
      amounts paid and other sums chargeable to the Company under any Loan
      Document.

     

    “Permitted
      Portfolio Acquisition”
means
      the acquisition by ESC, or any Affiliate of ESC, of a portfolio of 3 or more
      senior housing facilities, wherein no more than 25% of the units to be acquired
      in such portfolio are within 15 miles of any of the Properties. For the purposes
      of this definition, any Company Property that is 90% occupied and within the
      15
      mile radius at the time of ESC’s proposed acquisition shall be exempt from the
      15 mile and unit restrictions, and ESC shall be entitled to complete the
      proposed acquisition without regard to the 90% occupancy Property or the
      restrictions in Section
      5.4B.

     

    “Project
      Financing”
      has the
      meaning set forth in Section 2.7.

     

    “Project
      Financing Documents”
has
      the
      meaning set forth in Section 2.7.

     

    “Project
      Financing Guaranty Documents”
      has the
      meaning set forth in Section 2.7.

     

    “Project
      Lender”
has
      the
      meaning set forth in Section 2.7.

     

    “Properties”
means
      the assisted living and skilled nursing facility properties (each a
“Property”)
      described in Exhibit “C.”

     

    “Purchase
      Agreement”
means
      the purchase agreement to be entered into between the Company and Seller, for
      the purchase and sale of the Properties.

     

    “Requirements”
means
      this Agreement, the Operating Budget, the Capital Budget, the Business
      Agreements including the Purchase Agreement, as the same may be amended in
      accordance with this Agreement and Laws.

     

    “Seller”
means
      collectively, Pita General Corporation, an Illinois corporation, and AHC Tenant,
      Inc., a Delaware Corporation, and each of the entities listed in Exhibit A
      to
      the Purchase Agreement, as the seller under the Purchase Agreement.

     

    ARTICLE
      II  
      ACQUISITION OF PROPERTIES

     

    .

     

    Section
      2.1  General

     

    .
      The
      Company shall enter into the Purchase Agreement for the acquisition of the
      Properties. Each Property shall be owned in a separate Company
      Subsidiary.

     

    A.  Defined
      Terms

     

    .
      As used
      herein, the following terms shall have the meanings set forth for the same
      in
      the Purchase Agreement: “Closing,”
      “Closing
      Date,”
      “Deposit,”
      “Escrow
      Agent,”
and
      “Purchase
      Price.“

     

    B.  Actions
      To Be Taken Under Purchase Agreement

     

    .
      At all
      times between the date hereof and the Closing, BREA shall take all actions
      and
      make all final decisions relating to the Purchase Agreement. BREA shall keep
      ESC
      reasonably informed with respect to all matters related to the 

     


    
      
        
        

      

      
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    Purchase
      Agreement. Without limitation on the foregoing, “Administrative Member” (as
      hereinafter defined) shall not enter into the Purchase Agreement or give any
      notice, take any action (including the making of any additional deposit and
      any
      performances in connection with the Closing) or waive any matter under the
      Purchase Agreement. The parties will use reasonable efforts to cooperate in
      order to meet the time deadlines for consents and performances by the Company
      under the Purchase Agreement.

     

    Section
      2.2  Representations
      and Warranties of ESC

     

    .
      ESC
      hereby represents and warrants to BREA, the Company, each Company Subsidiary,
      and each of them, as follows:

     

    A.  Purchase
      Agreement

     

    .
      ESC
      shall not permit any oral modifications or understandings with respect to the
      Purchase Agreement and, without limitation, neither the Company, ESC nor any
      of
      its Affiliates shall deliver to Seller any notice or demand under or in
      connection with the Purchase Agreement that is not previously approved in
      writing by BREA. The Company or a Company Subsidiary shall be the holder of
      all
      right, title and interest to the “Purchaser” under the Purchase Agreement
      (including the Deposit).

     

    B.  Due
      Authorization, Execution, Formation, Etc.

     

    This
      Agreement and all agreements, instruments and documents herein provided to
      be
      executed or to be caused to be executed by ESC are, as of the date hereof,
      duly
      authorized, executed and delivered by and are and will be binding upon the
      same.
      ESC is a corporation duly formed, validly existing and in good standing under
      the laws of the state of its formation. ESC is duly authorized and qualified
      to
      enter into and do all things required of it under this Agreement and the
      Collateral Agreements it is executing in connection with this transaction
      (including compliance with all applicable doing business laws). Neither this
      Agreement, any Collateral Agreement nor any agreement, document or instrument
      executed or to be executed in connection with the same, nor anything provided
      in
      or contemplated by this Agreement or any such other agreement, document or
      instrument, breaches, invalidates, cancels, makes inoperative or interferes
      with, or results in the acceleration or maturity of, or requires any consent
      or
      authorization that has not been obtained under, any contract, agreement, lease,
      easement, right or interest, law or regulation to which ESC or, to the best
      knowledge of ESC, any of the Properties, is subject.

     

    C.  Information
      Acquired From Due Diligence

     

    .
      ESC
      shall keep BREA fully informed of all information gathered from ESC’s due
      diligence with respect to each Property.

     

    D.  Competing
      Projects

     

    .
      As of
      the date of this Agreement, except for the properties (the “Existing
      Competing Projects”)
      identified on Exhibit ”D,” neither ESC nor any of its Affiliates holds any
      interest, directly or indirectly, in any real estate (excluding personal
      residences) within a 15-mile radius of any Property.

     

    Section
      2.3  Representations
      and Warranties of BREA

     

    .
      BREA
      hereby represents and warrants to ESC, the Company, and each Company Subsidiary,
      and each of them, as follows: 

     

    A.  Purchase
      Agreement

     

    .
      BREA
      shall not permit any oral modifications or understandings with respect to the
      Purchase Agreement and, without limitation, neither the Company, BREA nor any
      of
      its Affiliates shall deliver to Seller any notice or demand under or in
      connection with the Purchase Agreement until BREA has consulted with ESC
      regarding same. The Company or a 

     


    
      
        
        

      

      
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    Company
      Subsidiary shall be the holder of all right, title and interest to the
“Purchaser” under the Purchase Agreement (including the Deposit).

     

    B.  Due
      Authorization, Execution, Formation, Etc

     

    .
      This
      Agreement and all agreements, instruments and documents herein provided to
      be
      executed or to be caused to be executed by BREA are, as of the date hereof,
      duly
      authorized, executed and delivered by and are and will be binding upon the
      same.
      BREA is a limited liability company, duly formed, validly existing and in good
      standing under the laws of Delaware. BREA is duly authorized and qualified
      to
      enter into and to do all things required of it under this Agreement and the
      Collateral Agreements it is executing in connection with this transaction
      (including compliance with all applicable doing business laws). Neither this
      Agreement nor any agreement, document or instrument executed or to be executed
      in connection with the same, nor anything provided in or contemplated by this
      Agreement or any such other agreement, document or instrument, breaches,
      invalidates, cancels, makes inoperative or interferes with, or results in the
      acceleration or maturity of, or requires any consent or authorization that
      has
      not been obtained under, any contract, agreement, lease, easement, right or
      interest, law or regulation, to which BREA is subject (other than as a result
      of
      its entry into this Agreement).

     

    Section
      2.4  Deposit

     

    .
      The
      Deposit shall constitute property of the Company and shall be held and applied
      by the Escrow Agent pursuant to the Purchase Agreement. The parties shall use
      reasonable efforts to ensure that the Deposit is invested in an interest-bearing
      federally insured account with the Escrow Agent or such other investment as
      may
      be approved in writing by the parties. The approval of BREA shall be required
      for: (1) any action or omission that would result in a forfeiture or delay
      in the return of any portion of the Deposit; (2) the exercise of any of the
      Company’s rights under the Purchase Agreement to terminate the transaction and
      receive a refund of the Deposit; (3) the extension of the Closing Date; and
      (4) whether to proceed with the Closing. If the Company is entitled to a
      return of the Deposit under the terms of the Purchase Agreement and for any
      reason Seller disputes the return of the Deposit to the Company, BREA and ESC
      shall cause the Company to diligently pursue the refund of the Deposit. In
      the
      event of a refund of any portion of the Deposit and any interest thereon, such
      refund shall be delivered to the Members in accordance with their respective
      Company Percentages.

     

    Section
      2.5  Failure
      to Acquire the Properties. In the event that the Company does not acquire the
      Properties pursuant to the Purchase Agreement, then: (1) the Company shall
      engage in no other activities, (2) BREA shall cause the dissolution and orderly
      liquidation of the Company (subject to the completion of the activities set
      forth in Section 2.4 in connection with the return of the Deposit), and (3)
      except for the Members’ internal costs and legal expenses in connection with the
      negotiation of this Agreement, for which each of BREA and ESC shall bear its
      own
      costs, all due diligence costs incurred by the Members shall be reimburse by
      the
      Company; provided, however, that (x) if the failure to timely acquire the
      Properties is intentionally caused by facts or circumstances that constitute
      a
      breach or default of a Member or an Affiliate under this Agreement, the Purchase
      Agreement, or any Collateral Agreement, then such Member shall reimburse the
      other Member for its costs and expenses under or in connection with this
      Agreement and neither such defaulting Member nor any Affiliate thereof shall
      pursue the acquisition of any interest in the Properties for the 24-month period
      after the dissolution of the Company, and (y) if clause (x) does not apply
      and
      if a Member or an Affiliate acquires an interest in the Properties without
      the
      other Member or an Affiliate, or assigns or sells rights to acquire an interest
      in the Properties to a third party, on or before the date that is twelve (12)
      months after the dissolution of the Company, then the acquiring or 

     


    
      
        
        

      

      
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    assigning
      Member shall bear 100% of all Acquisition Costs and all legal costs of formation
      and shall promptly reimburse the other Member and its Affiliates for any such
      costs paid or incurred by them.

     

    Section
      2.6  Brokers

     

    .
      Each
      Member represents and warrants to the other Member, the Company, and each
      Company Subsidiary, and each of them, that no broker or finder has been engaged
      by it in connection with any of the transactions contemplated by this Agreement
      or to its knowledge is in any way connected with any of such transactions (the
      parties acknowledging that Seller may have engaged certain brokers in connection
      with the Purchase Agreement, as more particularly described therein, and that
      Seller is responsible for all amounts due to such brokers). In the event of
      a
“Claim” (as hereinafter defined) for a broker’s or finder’s fee or commission in
      connection herewith, then each Member shall, to the fullest extent permitted
      by
      applicable law, indemnify, protect, defend and hold the other Members, the
      Company, each Company Subsidiary, and their respective assets harmless from
      and
      against the same if it shall be based upon any statement or agreement alleged
      to
      have been made by it or its Affiliates.

     

    Section
      2.7  Project
      Financing.
      Giving
      due consideration to market and property conditions, BREA shall make
      commercially reasonable efforts to obtain Project Financing, upon such terms
      and
      conditions as are acceptable to BREA in its sole discretion; provided, however,
      that BREA shall consult with ESC as to the terms of such Project Financing,
      and
      in no event shall the Project Financing be secured by real property in addition
      to the Properties. BREA shall be responsible for the negotiation of the
      documents required to be executed by the Company or any Subsidiary Company
      pursuant to any Project Financing (the “Project
      Financing Documents”).
      All
      costs expended in connection with the Project Financing, including but not
      limited to attorneys’ fees with respect to the Project Financing Documents,
      shall be payable by the Company. “Project
      Financing”
means
      any financing or refinancing obtained by the Company or any Company Subsidiary.
      The lender under the Project Financing is herein called the “Project
      Lender.”
ESC
      shall, or shall cause its creditworthy Affiliates satisfactory to the Project
      Lender, to execute and deliver such non-recourse carve-out guaranties,
      environmental indemnities and other related documents (“Project
      Financing Guaranty Documents”)
      as are
      required by the Project Lender and approved in the reasonable discretion of
      ESC.
      Subject to Section
      11.2,
      any
      amounts paid by ESC or its Affiliates pursuant to such Project Financing
      Guaranty Documents shall be paid by ESC in its individual capacity and not
      by
      ESC in its capacity as a Member of the Company; and any such payment or any
      performance under (or the execution of) the Project Financing Guaranty Documents
      shall not be deemed to be a Capital Contribution or loan by ESC to the Company,
      shall not increase ESC’s capital account or Company Percentage, and shall not
      entitle ESC to the recoupment of, or the payment of any interest, charge or
      other credit or consideration from the Company.

     

    Section
      2.8  Survival

     

    .
      All
      warranties, representations, covenants, obligations and agreements contained
      in
      this Agreement shall survive the Closing and any and all performances hereunder.
      All warranties and representations shall be effective regardless of any
      investigation made or which could have been made by the party benefiting from
      such warranties and representations.

     

    ARTICLE
      III  
      CAPITALIZATION AND LOANS BY MEMBERS

     

    .

     

    Section
      3.1  Initial
      Contributions By Members

     

    .

     

    A.  Initial
      Contributions

     

    .
      On or
      about September 5, 2006, an Affiliate of BREA made the 

     


    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    


    initial
      portion of the Deposit in the amount of $5,000,000. As a result thereof, BREA
      shall be deemed to have contributed $5,000,000 to the Company. 

     

    B.  Payments
      of Deposit.
      On or
      about October 12, 2006, BREA made a contribution to the Company of $7,150,000,
      and ESC made a contribution to the Company of $2,850,000, which amounts were
      used to fund the remainder of the Deposit required to be made under the Purchase
      Agreement.

     

    C.  Acquisition
      Costs

     

    .
      Subject
      to Article II, each Member shall contribute its Company Percentage of the
      Acquisition Costs (to the extent such Acquisition Costs are not funded by the
      Project Financing in connection therewith or by the Deposit) on the Closing
      Date. On or before the Closing Date, Administrative Member shall deliver a
      “Contribution Request” (as hereinafter defined) in the manner provided in
      Section 3.2 for such Acquisition Costs, which Contribution Request shall
      include a copy of the preliminary closing statement prepared in connection
      with
      the Closing and the Project Financing indicating such Acquisition Costs (the
      “Closing
      Statement”),
      wiring instructions to the Escrow Agent, the amount required to be funded by
      each Member under this subsection, and the deadline under the Purchase Agreement
      for receipt of such funds by the Escrow Agent. On the Closing Date,
      Administrative Member shall cause the Escrow Agent to deliver such funds on
      behalf of the Company to pay the Acquisition Costs as indicated on the Closing
      Statement, but only after obtaining the prior written approval of BREA and
      ESC
      of the final Closing Statement. Each Member will receive a credit towards such
      contribution obligations equal to the amount of Acquisition Costs previously
      paid or contributed by such Member.

     

    Section
      3.2  Additional
      Capital Contributions by the Members

     

    .
      In
      addition to the contributions made pursuant to Section 3.1, but subject to
      the limitations hereinafter set forth in this Agreement (including
      Section 5.1B(8)), each Member shall contribute from time to time its
      Company Percentage (subject to Section 3.5) of the capital required to meet
      the financial obligations of the Company. Each contribution under this
      Section 3.2 is herein called a “Subsequent
      Contribution.”
No
      additional capital contributions shall be required to be made by the Members
      other than as expressly provided in this Section 3.2.

     

    A.  Contribution
      Requests

     

    .
      If BREA
      reasonably anticipates that there will be capital requirements for any given
      calendar month, then, at least ten (10) business days prior to the first day
      of
      such calendar month, BREA shall submit a written contribution request for such
      month to the Members describing such capital requirements and meeting the
      requirements of this subsection A (“Contribution
      Request”).
      Each
      Contribution Request shall (1) describe in reasonable detail the
      anticipated capital requirements for such month; and (2) set forth each
      Member’s required contribution. BREA may submit Contribution Requests to the
      Members no more frequently than once each month, unless there is an emergency,
      in which event BREA shall immediately notify the Members in writing.
      Administrative Member shall have the obligation to notify BREA of anticipated
      capital requirements, in which event BREA may submit a Contribution
      Request.

     

    B.  Deposit

     

    .
      Within
      ten (10) business days after a Contribution Request is delivered to the Members,
      each Member shall contribute to the Company by deposit into the “Operating
      Accounts” (as hereinafter defined) the amount to be contributed by such Member
      under such Contribution Request.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    C.  Use
      of
      Contributions

     

    .
      Administrative Member acknowledges that the Operating Budget and the Capital
      Budget restrict disbursements to line items in cost categories (subject to
      the
      deviations permitted under Section 5.1B(3)). Administrative Member shall
      use the contributions made pursuant to Section 3.1 and Subsequent
      Contributions in conformity with the Requirements.

     

    Section
      3.3  Failure
      to Contribute

     

    .

     

    A.  Upon
      the
      failure of a Member (the “Non-Contributing
      Member”),
      for a
      period in excess of ten (10) days, to make its share of any required capital
      contribution under Section 3.1 or 3.2 (the portion thereof not contributed
      by or returned to such Non-Contributing Member being referred to herein as
      the
“Deficiency”),
      then
      the other Member (the “Contributing
      Member”),
      if it
      has timely made its share of such capital contribution, may, in its sole and
      absolute discretion within ten (10) days after the expiration of the foregoing
      ten (10) day period, (1) withdraw its share of such contribution, in which
      event such Subsequent Contribution shall be deemed cancelled but the
      Non-Contributing Member shall not be released of its liability for damages
      resulting from its failure to contribute its share of the same, (2) loan to
      the Non-Contributing Member such Deficiency by depositing the same into the
      Operating Accounts, or (3) contribute to the Company such Deficiency by
      depositing the same into the Operating Accounts, which contribution shall reduce
      the Non-Contributing Member’s Company Percentage pursuant to subsection D below.
      If the Contributing Member fails, within such ten (10) day period, to deposit
      the Deficiency into the Operating Accounts, then it shall be deemed to have
      elected to proceed under clause (1) above and the Company shall promptly
      return to the Contributing Member its share of such contribution.

     

    B.  If
      the
      Contributing Member proceeds under clause (2) of subsection A above,
      then the Non-Contributing Member shall be deemed to have contributed the
      Deficiency and the loan (which shall be called a “Default
      Loan”)
      shall
      bear interest at the “Applicable
      Rate”
(which,
      as used herein, means, from time to time, the lesser of (A) 20% per annum,
      compounded annually, or (B) 10% per annum in excess of the prime rate of
      interest publicly announced by Citibank, N.A, compounded annually, but not
      less
      than 15% per annum, compounded annually, but not more than the maximum amount
      allowable under applicable law), and shall be due and payable ten (10) days
      after the date made. Notwithstanding the provisions of Section 4.1, all
      distributions which would otherwise be made to the Non-Contributing Member
      shall
      be paid instead to the Contributing Member that makes such Default Loan until
      the Default Loan (and all interest thereon) has been paid in full. Any such
      payments and distributions shall be deemed to have been distributed to the
      Non-Contributing Member and then turned over in payment of such Default Loan.
      All payments shall be applied first to interest and then to
      principal.

     

    C.  If
      a
      Default Loan (including all interest thereon) to ESC is not fully paid when
      due
      (i.e., within ten (10) days), then an event shall be deemed to have occurred
      under Section 7.2A(2) entitling BREA to deliver a “Termination Notice” (as
      hereinafter defined). Notwithstanding the foregoing, BREA shall not be permitted
      to deliver a Termination Notice with respect to a Default Loan that results
      from
      a Contribution Request made upon BREA’s decision pursuant to its rights under
0,
      unless
      such Contribution Request is made in connection with an emergency or for
      necessary capital contributions (e.g., to meet the requirements of any Project
      Financing, to pay any applicable taxes, to prevent physical waste to any
      Property).

     

    
      
        
        

      

      
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    D.  If
      the
      Contributing Member proceeds under clause (3) of subsection A above, then the
      Company Percentages of the Members shall be recalculated and reset as of such
      time based upon the ratio of all contributions made by a Member (irrespective
      of
      any contributions that may have been previously returned to a Member) to all
      contributions made by all of the Members (irrespective of any contributions
      that
      may have been previously returned to a Member). Notwithstanding the foregoing,
      however, any capital contributions which are made by ESC pursuant to Section
      3.5
      and are attributable to distributions under the “Promote Clauses” (as
      hereinafter defined) shall not be considered as capital contributions for
      purposes of the foregoing calculation. To the extent that the Company Percentage
      of ESC is reduced under this subsection D, the percentages set forth in clause
      (2) of Section 4.1B, clause (2) of Section 4.1C and clause (2) of Section 4.1D
      shall be reduced in the same proportion (as the proportionate reduction in
      ESC’s
      Company Percentage) and the corresponding percentages in clause (1) of Section
      4.1B, clause (1) of Section 4.1C and clause (1) of Section 4.1D shall be
      increased accordingly.

     

    E.  The
      rights of the Company and its Members pursuant to this Section 3.3 are not
      exclusive and shall not be deemed to waive any other right or remedy of the
      Company or any Member under this Agreement, at law or in equity, against any
      Non-Contributing Member for failure to make any required capital
      contribution.

     

    Section
      3.4  Member
      Loans

     

    .
      Except
      as set forth in Section 3.3 above, no loan to the Company or any Company
      Subsidiary shall be made by a Member without the prior written consent of all
      of
      the Members.

     

    Section
      3.5  Contributions
      After Profit Distributions

     

    .
      Notwithstanding anything to the contrary in this Agreement, if any contribution
      or Member loan is to be made after any amount has been distributed under
      Section 4.1B, then such contribution or Member loan shall be made in
      accordance with the Members’ respective proportionate shares of the
      distributions made under each subsection of Section 4.1 (in reverse order)
      unless (and until) on the date of such contribution or Member loan, (1) the
      aggregate amount of contributions and Member loans then or theretofore made
      in
      accordance with such proportionate shares by reason of this Section 3.5
      equals (2) the aggregate amount of distributions then or theretofore made under
      such subsection.

     

    ARTICLE
      IV  
      DISTRIBUTIONS

     

    .

     

    Section
      4.1  Distributions

     

    .
      Subject
      to Sections 3.3, 4.4, 4.5 and 7.2 (and except as provided in Article V of
      the “Tax Exhibit” [as hereinafter defined]), each distribution of “Distributable
      Cash”
(i.e.,
      the amount of cash the Members approve as being available for distribution,
      after taking into account the future capital requirements of the Company and
      any
      restrictions under the loan documents of the Company and the Company
      Subsidiaries) shall be made as follows:

     

    A.  First
      Level

     

    .
      All
      such Distributable Cash shall first be distributed, in preference and priority
      to any other distribution of Distributable Cash, to BREA and ESC in accordance
      with their respective relative Company Percentages until there shall have been
      distributed to BREA from such Distributable Cash under this subsection A an
      amount equal to the then “15% IRR Deficiency” (as defined in Exhibit ”E”
[the “IRR
      Exhibit”]);
      and
      there shall be no distributions of Distributable Cash under subsection B, C
      or D below at any time when there is a positive 15% IRR Deficiency.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

    B.  Second
      Level

     

    .
      The
      balance, if any, of such Distributable Cash remaining after the distributions
      pursuant to subsection A above shall be distributed to BREA and ESC, as
      follows: (1) 85% to BREA and ESC in accordance with their respective relative
      Company Percentages; and (2) the remaining 15% to Administrative Member; until
      there shall have been distributed to BREA from such Distributable Cash under
      this subsection B an amount equal to the then “20% IRR Deficiency” (as
      defined in the IRR Exhibit); and there shall be no distributions of
      Distributable Cash under subsection C or D below at any time when there is
      a
      positive 20% IRR Deficiency;

     

    C.  Third
      Level

     

    .
      The
      balance, if any, of such Distributable Cash remaining after the distributions
      pursuant to subsections A and B above shall be distributed to BREA and ESC,
      as
      follows: (1) 80% to BREA and ESC in accordance with their respective
      relative Company Percentages; and (2) the remaining 20% to Administrative
      Member; until there shall have been distributed to BREA from such Distributable
      Cash under this subsection C an amount equal to the then “25% IRR
      Deficiency” (as defined in the IRR Exhibit); and there shall be no distributions
      of Distributable Cash under subsection D below at any time when there is a
      positive 25% IRR Deficiency; and

     

    D.  Fourth
      Level

     

    .
      The
      balance, if any, of such Distributable Cash remaining after the distributions
      pursuant to subsections A, B and C above shall be distributed to BREA and ESC,
      as follows: (1) 75% to BREA and ESC in accordance with their respective
      Company Percentages; and (2) the remaining 25% to Administrative
      Member.

     

    The
      net
      cash portion or net proceeds from (i) a sale of the Properties or any part
      thereof, (ii) a refinance of any Property, (iii) a sale of all of the membership
      interests in any Company Subsidiary, (iv) a sale of all of the ownership
      interests in the Company, together with all installments and payments of cash
      (including interest) of or against any deferred portion of such purchase price,
      shall be distributed in accordance with the levels provided above, with each
      person or entity entitled to payment under a level receiving the entire amount
      of such cash until the sum payable under such level shall have been discharged
      in cash.

     

    Section
      4.2  Timing
      of Distributions

     

    .
      Except
      for distributions of Distributable Cash with respect to a sale, financing or
      other capital event (which shall be distributed within one (1) business day
      after such capital event or as soon thereafter as is reasonably practicable),
      distributions of Distributable Cash shall be made on a monthly basis
      concurrently with the date the “Periodic Report” (as hereinafter defined) for
      such month is required to be delivered pursuant to this Agreement, unless
      otherwise agreed by the Members. At BREA’s request, distributions of proceeds
      from a capital event shall be made directly from the closing (whether through
      a
      closing escrow or otherwise) of such capital event. Each Periodic Report shall
      include a calculation by Administrative Member of the amount of Distributable
      Cash for such month and a calculation by Administrative Member of the respective
      distributions to the Members pursuant to this Article IV (such calculation
      of the distributions to be made as of the first day of the month immediately
      succeeding such calendar month). Notwithstanding the foregoing, there shall
      be
      no distributions under the Promote Clauses during the period, if any, from
      the
      date a notice of default is given to Administrative Member or ESC in its
      capacity as property manager under a Management Agreement, until the date such
      default is cured, and from the date a Termination Notice is given to the date
      the Termination Notice becomes effective (or the arbitrator determines that
      it
      is not effective);

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

    Section
      4.3  Distributions
      of Capital

     

    .
      Except
      as expressly provided in this Agreement or as otherwise agreed by the Members,
      no Member shall be entitled to withdraw capital or to receive distributions
      of
      or against capital without the prior written consent of, and upon the terms
      and
      conditions agreed upon by, the Members. Each Member shall look solely to the
      assets of the Company for return of such Member’s capital
      contributions.

     

    Section
      4.4  Limitation
      on Distributions

     

    .
      Notwithstanding any other provision of this Agreement, neither the Company,
      nor
      the Administrative Member on behalf of the Company, shall make a distribution
      to
      a Member on account of its interest in the Company if such distribution would
      violate Section 18-607 of the Act or other applicable law.

     

    Section
      4.5  Adjustment
      to Promote Clauses

     

    .
      Notwithstanding the provisions of Section
      4.1
      to the
      contrary, in the event of a sale of fifty percent (50%) or more of BREA’s
      membership interests in the Company in which ESC does not invoke its “tag along”
rights under Section
      10.4
      (a
“BREA
      Sale”),
      BREA
      shall be deemed to have sold its membership interest in the Company, or a
      portion thereof (in the event of a sale of less than all of its membership
      interest), and ESC shall be deemed to have sold its right to receive
      distributions pursuant to the Promote Clauses, or a portion thereof (in the
      event of a sale of less than all of BREA’s membership interest), and the net
      proceeds of the BREA Sale shall be paid to BREA and ESC as follows: (i) the
      net
      proceeds from the BREA Sale shall be “grossed up” (the “Grossed
      Up Sale Price”)
      by
      dividing such amount by the Company Percentage transferred by BREA (the
“Transferred
      Percentage”),
      (ii)
      ESC shall receive an amount equal to the Transferred Percentage multiplied
      by
      the amount ESC would have received in respect of the Promote Clauses if the
      Grossed Up Sale Price were then distributed as Distributable Cash pursuant
      to
Section
      4.1,
      and
      (iii) BREA shall receive the balance of the net proceeds of the BREA Sale.
      Thereafter, (i) any transferee of BREA’s membership interest in the Company
      shall be entitled to receive the Transferred Percentage of all distributions
      of
      Distributable Cash, and (ii) all remaining Distributable Cash shall then be
      distributed to BREA and ESC pursuant to Section
      4.1.

     

    ARTICLE
      V  
      POWERS,
      RIGHTS AND DUTIES OF MEMBERS

     

    .

     

    Section
      5.1  Authority
      of Members

     

    .
      Management of the Company shall be vested in the Members in accordance with
      this
      Agreement.

     

    A.  Authority
      of ESC as Administrative Member

     

    .
      Except
      as otherwise provided in this Agreement, ESC shall act as the Administrative
      Member of the Company (the “Administrative
      Member”)
      and
      shall have the duty and authority, on behalf of the Company, to do all things
      appropriate to the accomplishment of the purposes of the Company, subject to
      and
      in accordance with the Requirements. It is acknowledged that the initial Budget
      is preliminary in nature; ESC shall deliver a final initial Budget for BREA’s
      review and approval within ninety (90) days after the Closing.

     

    B.  Major
      Decisions

     

    .
      Administrative Member shall use diligent efforts to keep BREA fully informed
      regarding all material matters relating to the Company, each Company Subsidiary
      and their respective operations and assets (and such other specific matters
      as
      BREA may reasonably request from time to time) and shall so consult on a monthly
      basis and at all reasonable times requested by BREA, and without limitation
      on
      the foregoing, shall promptly inform BREA with respect to any major or
      significant matters, including “Major Decisions” (as hereinafter defined), so
      that BREA 

     


    
      
        
        

      

      
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    may
      exercise its rights under this Agreement. Each of the following matters
      (“Major
      Decisions”)
      shall
      require the prior written approval of ESC and BREA (and may be proposed by
      either Member):

     

    (1)  Subject
      to Section
      5.1B(3),
      the
      adoption of, and any supplement to, revision of, or deviation from the Budget
      in
      any material respect, and any activity by the Company or any Company Subsidiary
      which is inconsistent with the Budget in any material respect and (except as
      provided in clause (3) below) any expenditure by the Company or any Company
      Subsidiary which is inconsistent with the Budget.

     

    (2)  Without
      limitation on subsection B(1) above, the adoption of, and any supplement
      to, or revision of, each Budget.

     

    (3)  Without
      limitation on subsection B(1) above, but subject to this
      subsection B(3), any deviation from or expenditure inconsistent with the
      Operating Budget and Capital Budget (or the entry into any agreement requiring
      such deviation or expenditure). The consent of BREA to an expenditure payable
      to
      an unrelated third party exceeding the amount specified for such expenditure
      in
      the Operating Budget shall not be required in any of the following
      circumstances: (a) Administrative Member, in its reasonable judgment, deems
      there to be an emergency requiring such expenditures to effectuate immediate
      action necessary for the protection of the assets of the Company or any Company
      Subsidiary or to avoid property damage or personal injury or to preserve the
      well being of residents in the Property (b) such expenditure would
      not cause the aggregate amount of the expenses (excluding the expenses
      described in clause (c) below) within the Operating Budget to exceed 105%
      of the entire amount of budgeted expenses (excluding the expenses described
      in
      clause (c) below) in the Operating Budget (taking into account the amounts
      expended to date and reasonably anticipated expenses); or (c) expenditures
      for real property taxes and assessments and utilities. The provisions of
      clause (b) above are intended to be in lieu of any contingency category
      that covers, in whole or in part, costs of the types described in any of the
      other categories under the Operating Budget (so that excess costs in a specific
      category might be covered by such contingency category) and accordingly, there
      shall be no such contingency line item in the Operating Budget; the provisions
      of clause (b) above are not intended, however, to be in lieu of a
      contingency category for unanticipated costs that are not of the types described
      in other categories under the Operating Budget. Notwithstanding the foregoing,
      if the Administrative Member reasonably believes that any Budget excess related
      to variable expenses shall be corrected prior to the end of the applicable
      fiscal year, or that such excess is proportionately offset by non-forecasted
      revenue gains (without any decrease in applicable profit margins), then such
      excess shall not be considered for the purposes of Default under this section
      or
      any other section until such fiscal year is concluded and reconciled. In the
      event the reconciliation demonstrates that the Budget excess related to variable
      expenses was corrected prior to the end of the such fiscal year, or was
      proportionately offset by non-forecasted revenue gains (without any decrease
      in
      applicable profit margins), then any penalty or default under this Agreement
      related to such excess shall be waived by BREA or any other Member seeking
      to
      enforce such provisions. Administrative Member shall promptly notify BREA,
      both
      by telephone and in writing, of each permitted Budget deviation made pursuant
      to
      this subsection (3) and shall promptly supply BREA with such information
      with respect thereto as BREA may reasonably request.

     

    (4)  The
      entry
      into any construction, development or other agreement which provides for a
      term
      greater than three (3) months (unless terminable by the Company or the


     


    
      
        
        

      

      
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    applicable
      Company Subsidiary without cause or penalty upon thirty (30) days’ notice to the
      other party) or contemplates an aggregate amount to be spent by the Company
      or a
      Company Subsidiary under such agreement in excess of $50,000 (and a series
      of
      related agreements for amounts less than $50,000 shall be construed as a single
      agreement for purposes of this subsection (4)); or any termination or
      material modification to any of the foregoing.

     

    (5)  Except
      as
      expressly provided in the Budget or in the applicable Management Agreement,
      any
      lease of space in a Property and the terms thereof; or any termination or
      material modification of any such lease.

     

    (6)  Any
      transaction or matter that is not in the ordinary course of the Company’s or any
      Company Subsidiary’s business relating to the Property, including (a) any
      action or agreement with respect to any new projects or acquisition of any
      property by the Company or any Company Subsidiary other than the Property;
      (b) any capital transaction (including any sale, financing or refinancing
      of the assets of the Company or any Company Subsidiary or any portion thereof)
      and the terms thereof; (c) any pledge, mortgage, encumbrance, or grant of a
      security interest in, any assets of the Company or any Company Subsidiary;
      or
      (d) any activity, that is not contemplated by, or is materially
      inconsistent with, the Budget.

     

    (7)  Any
      agreement or other transaction or allocation among two or more of the Company
      and the Company Subsidiaries; and any agreement, compensation or reimbursement
      to, or other transaction with any Affiliate of Administrative Member or any
      other person or entity with which Administrative Member or any of its Affiliates
      has a significant business relationship.

     

    (8)  The
      amount of, whether and when to make, contributions to the Company or any Company
      Subsidiary and distributions by the Company or any Company Subsidiary, including
      the determination of the amount of reserves to be maintained by the Company
      or
      any Company Subsidiary.

     

    (9)  Any
      litigation, arbitration or settlement involving the Company’s or a Company
      Subsidiary’s assets.

     

    (10)  All
      income tax elections, tax returns and tax audits.

     

    (11)  Any
      construction within the Property, including the establishment of and any
      material amendment or supplement to the plans and specifications for such
      construction work.

     

    (12)  The
      engagement of attorneys, accountants, consultants and other
      professionals.

     

    (13)  The
      determination of what zoning, variances, map approvals, entitlements, permits
      or
      other governmental approvals to obtain for the Property and what payments and
      obligations (including concessions by, and restrictions on, the Company, any
      Company Subsidiary or any of their respective assets or the Property) will
      be
      incurred in connection therewith.

     

    (14)  The
      insurance program for the Company or any Company Subsidiary, including insurers,
      coverages and policy amounts; provided that, in the event of a disagreement,
      the
      Company or any Company Subsidiary shall implement the insurance program proposed
      by BREA.

     

    
      
        
        

      

      
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    (15)  Subject
      to Section
      7.1
      below,
      any modification or termination of any Management Agreement.

     

    (16)  Extension
      of the term of the Company or any Company Subsidiary.

     

    (17)  Any
      act
      in contravention of this Agreement or which would make it impossible to carry
      on
      the business of the Company or any Company Subsidiary.

     

    (18)  Possession
      of any Company or Company Subsidiary assets or assignment of the rights of
      the
      Company in specific assets of the Company or any Company Subsidiary for other
      than the purpose of the Company or such Company Subsidiary.

     

    (19)  Admission
      of a person or entity as a Member, manager or otherwise to the Company or a
      Company Subsidiary, except as expressly permitted in this
      Agreement.

     

    (20)  The
      merger or consolidation of the Company or any Company Subsidiary with any other
      entity.

     

    (21)  Any
      assignment by the Company or any Company Subsidiary for the benefit of creditors
      or any guarantee, indemnity bond or surety bond by the Company or any Company
      Subsidiary.

     

    (22)  A
      loan by
      the Company or any Company Subsidiary to any Member or third party or the
      extension of credit to any person, firm or corporation, on behalf of the Company
      or any Company Subsidiary.

     

    (23)  Confession
      of any judgment on behalf of the Company or any Company Subsidiary.

     

    (24)  The
      filing on behalf of the Company or any Company Subsidiary of any petition,
      or
      consent to the appointment of a trustee or receiver or any judgment or order,
      under state or federal bankruptcy laws.

     

    (25)  Distribution
      of any property in kind to any Member.

     

    (26)  The
      employment of employees of the Company or any Company Subsidiary (it being
      understood that ESC is to have its own employees).

     

    (27)  Any
      action outside the purposes specified in Section 1.4.

     

    (28)  Press
      releases for the Property, the Company or any Company Subsidiary, subject to
      ESC’s disclosure obligations as a public company, provided that ESC shall
      consult with BREA as to content before making any such press releases related
      to
      the Company, any Company Subsidiary, or any Property.

     

    (29)  Any
      other
      decision or action which requires the approval of BREA or the Members as
      provided elsewhere in this Agreement or which materially affects the Company,
      any Company Subsidiary or any of their respective assets or operations
      thereof.

     


    
      
        
        

      

      
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    Any
      matter that is included under any of the foregoing clauses under this
      subsection B shall be a Major Decision even if it is not covered by (or
      excluded from) any other clause under this subsection B (so that, for
      example, if a Budget contemplating a $200,000 construction contract is approved
      under subsection B(2) above, then the contract remains subject to approval
      under subsection B(4) above).

     

    C.  BREA
      Override Rights

     

    .
      Notwithstanding anything to the contrary herein, but excepting Section
      5.1B(6)(a),
      (6)(c) (except as it relates to a Project Financing), (6)(d), (9) (17), and
      (19)
      through (24) above, in the event that the Members do not agree in writing on
      any
      Major Decision for a period of five (5) business days (but if a decision must
      be
      made in order to meet a deadline or BREA otherwise determines in its good faith
      judgment that a matter is urgent, then such period shall be reduced to one
      (1)
      business day) after written notice from BREA, the decision of BREA regarding
      such Major Decision shall be final and binding on the Company and any applicable
      Company Subsidiary (and BREA shall have the right, acting alone, to implement
      such Major Decision on behalf of the Company [subject to compliance with the
      requirements of any Project Financing] and any applicable Company Subsidiary
      and
      ESC shall take such action as BREA reasonably requests in connection with the
      same), provided that in the event the action is contrary to ESC’s written
      recommendation based upon ESC’s good faith judgment, BREA will waive any claims
      it may have against ESC with regard to any adverse impacts or effects resulting
      solely from ESC’s taking such action at BREA’s insistence.

     

    D.  Required
      Signatures

     

    .
      BREA’s
      signature (or a written consent granting Administrative Member sole authority
      to
      sign) shall be required for all contracts (including documents related to the
      sale, financing or transfer of any portion of the assets of the Company or
      any
      Company Subsidiary) entered into by or on behalf of the Company or any Company
      Subsidiary (and only BREA’s signature shall be required for contracts that
      constitute a Major Decision if Administrative Member has previously executed
      a
      written consent granting the BREA authority to execute such contract); provided,
      however, that only Administrative Member’s signature will be required for
      contracts and agreements that are provided for in the Operating Budget or
      Capital Budget, in addition to ordinary and customary regulatory and corporate
      filings related to obtaining and maintaining healthcare licenses, and operating
      licenses and permits, and are permitted to be entered into without the consent
      of BREA under this Agreement.

     

    E.  Authorization
      of the Acquisition and Loan

     

    .
      The
      Company and, as applicable, the Company Subsidiaries are authorized and directed
      to execute and deliver appropriate conveyance instruments in connection with
      the
      consummation of the acquisition of the Properties contemplated by the Purchase
      Agreement (the “Conveyance
      Documents”),
      and
      the Credit Agreement, the Note, and other documents entered into in connection
      with the Loan (collectively, the “Loan
      Documents”).
      The
      execution and delivery of the Conveyance Documents and the Loan Documents by
      the
      Administrative Member on behalf of the Company and, as applicable, the Company
      Subsidiaries, is hereby ratified and confirmed as the duly authorized action
      of
      the Company and, as applicable, the Company Subsidiaries. Furthermore, the
      Company, and, as applicable, the Company Subsidiaries are hereby authorized
      and
      directed to do any and all things deemed necessary or advisable and in the
      best
      interest of the Company in connection with the Loan, and are each hereby
      severally authorized and directed to execute and deliver appropriate loan
      instruments in the name of the Company or, as applicable, the Company
      Subsidiaries, in favor of the Lender in connection with the Loan, and to execute
      and deliver appropriate instruments of whatever kind or character and to


     


    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    


    execute
      and deliver all instruments, documents, certificates and agreements in this
      connection required by Lender. Only the Administrative Member’s signature, on
      behalf of the Company (on its own behalf or in its capacity as sole member
      of
      each of the Company Subsidiaries), shall be required to bind the Company and/or
      the Company Subsidiaries, as applicable, with respect to the Conveyance
      Documents and the Loan Documents.

     

    F.  Affiliate
      Transactions

     

    .
      Notwithstanding anything to the contrary herein (but without limitation on
      the
      approval rights under Section 5.1B), but subject to Section
      7.1,
      if
      there is a contract between the Company or any Company Subsidiary, on the one
      hand, and a Member or an Affiliate of a Member, on the other hand, then the
      other Member shall have the right unilaterally (but not the obligation) to
      make
      any decision by the Company with respect to such Affiliate contract (as party
      to
      the contract or as the sole member of such Company Subsidiary) to exercise
      any
      right or remedy by reason of a default, terminate, extend, modify or agree
      to a
      waiver or forbearance. Any other approval, consent or other determination to
      be
      made by the Company or such Company Subsidiary under such contract shall be
      subject to the approval of both Members. If a contract with an Affiliate is
      terminated, any substitute contract shall be with a third party reasonably
      satisfactory to the Members. 

     

    G.  Limitations
      of Activities

     

    .
      The
      Company shall comply with the provisions provided in Exhibit “I” attached hereto
      and incorporated herein by reference (the “Special
      Purpose Provisions”)
      which
      are being adopted to comply with certain provisions required to qualify the
      Company as a “single purpose entity”. Notwithstanding anything to the contrary
      in this Agreement or in any other document governing the formation, management
      or operation of the Company, for so long as any Obligation is outstanding,
      neither Member nor the Company shall amend, alter, change any of Exhibit “I” or
      any other provision of this or any other document governing the formation,
      management or operation of the Company in a manner that is inconsistent with
      any
      of the Special Purpose Provisions, unless the Lender consents in writing.
      Subject to this Section
      5.1G,
      provisions contained in this Agreement may be amended, altered or changed in
      accordance with Section
      11.7.
      In the
      event of any conflict between any of the Special Purpose Provisions and any
      other provision of this or any other document governing the formation,
      management or operation of the Company, the Special Purpose Provisions shall
      control.

     

    H.  Independent
      Manager

     

    .
      As long
      as any Obligation is outstanding, the Member shall cause the Company at all
      times to have at least one (1) Independent Manager who will be appointed by
      the
      Company. To the fullest extent permitted by law, including Section 18 1101(c)
      of
      the Act, the Independent Manager shall consider only the interests of the
      Company and its creditors in acting or otherwise voting on a Material Action.
      Subject to this Section
      5.1H,
      the
      Company may remove, with or without cause, the Independent Manager. No
      resignation or removal of the Independent Manager, and no appointment of a
      successor Independent Manager, shall be effective until such successor shall
      have accepted his or her appointment as an Independent Manager by a written
      instrument, which may be a counterpart signature page to this Agreement as
      required by this Section
      5.1H.
      In the
      event of a vacancy in the position of Independent Manager, the Member shall,
      as
      soon as practicable, appoint a successor Independent Manager. All right, power
      and authority of the Independent Manager shall be limited to the extent
      necessary to exercise those rights and perform those duties specifically set
      forth in this Agreement and the Independent Manager shall have no authority
      to
      bind the Company. Except as provided in the second sentence of this Section
      5.1H,
      in
      exercising its rights and performing its duties under this Agreement, the
      Independent Manager shall 

     


    
      
        
        

      

      
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    have
      a
      fiduciary duty of loyalty and care similar to that of a director of a business
      corporation organized under the General Corporation Law of the State of
      Delaware. No Independent Manager shall at any time serve as trustee in
      bankruptcy for any Affiliate of the Company. By signing this Agreement, an
      Independent Manager agrees that, should such Independent Manager become a
      Special Member, such Independent Manager will be subject to and bound by the
      provisions of this Agreement applicable to a Special Member. 

     

    I.  Appointment
      of Independent Manager

     

    .
      Cheryl
      A. Tussie is hereby appointed as an Independent Manager of the Company, and
      hereby accepts such appointment and agrees to act as an Independent Manager
      as
      set forth herein. Further, Cheryl A. Tussie hereby represents and warrants
      that
      he or she meets the requirements contained in the definition of Independent
      Manager set forth in Exhibit “I” attached hereto and acknowledges that the
      Company is relying on such representation and warranty.

     

    Section
      5.2  Compensation

     

    .
      Except
      for the fees or other sums payable as provided under the Management Agreement,
      neither ESC nor BREA, nor any Affiliate thereof shall receive any fee or other
      compensation in connection with the performance by it of its obligations under
      this Agreement, it being the intent of the Members that the distributions to
      ESC
      under the Promote Clauses shall be full compensation to ESC for its duties
      as
      Administrative Member under this Agreement. Investment Maintenance Costs and
      Administrative Member Costs shall be at the sole expense of the Company and
      shall be reimbursed promptly by the Company to BREA and ESC (or their respective
      Affiliates), as applicable, provided such third party expenses are without
      duplication of any other amounts paid or reimbursable by the Company. All third
      party expenses incurred by ESC (or its Affiliates) on behalf of or relating
      to
      the Company are reimbursable by the Company only to the extent, if any,
      specifically enumerated and payable under the Operating Budget, this Agreement
      or the Management Agreement.

     

    Section
      5.3  Certain
      Obligations of Administrative Member

     

    .

     

    A.  Generally

     

    .
      Administrative Member shall fully and faithfully discharge its obligations
      and
      responsibilities, shall devote such time and attention to affairs of the Company
      and the Company Subsidiaries as may be reasonably necessary for the proper
      management and supervision of the business of the Company and the Company
      Subsidiaries and the discharge of its duties under this Agreement.
      Administrative Member shall, at all times, exercise good faith and shall use
      diligent and professional efforts to promote and protect the best interests
      of
      the Company and the Company Subsidiaries (without consideration being made
      to
      the separate interests of any particular Member, including the effect of any
      action or omission upon the distributions provided for in Article IV).
      Administrative Member shall diligently and continuously pursue the operation
      of
      the Properties consistent with the Budget and in accordance with its reasonable
      professional business judgment.

     

    B.  Project
      Administration

     

    .
      Without
      limitation on the foregoing or other provisions of this Article V,
      Administrative Member shall use commercially reasonable efforts to coordinate
      and manage the operation, leasing, and marketing of the Properties to
      prospective residents within the time schedules set forth in, and in full
      compliance with, all Requirements. Administrative Member’s obligations shall
      include the obligations set forth in Exhibit ”F” (the “Administrative
      Obligations Exhibit“).

     

    
      
        
        

      

      
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    C.  Books
      and Records

     

    .
      Administrative Member shall cause to be kept proper and complete records and
      books of account in which shall be entered fully and accurately all transactions
      and other matters relating to the business of the Company or the Company
      Subsidiaries as are usually entered into such records and books of account
      kept
      for businesses of a like character. The records and books of the Company or
      the
      Company Subsidiaries shall be kept on an accrual basis in accordance with
      generally accepted accounting principles (“GAAP“),
      except as the Members may otherwise determine. At all times, such books and
      records shall be available at the Administrative Member’s principal place of
      business for inspection, examination, photocopying or audit by any Member,
      or
      the duly authorized representative thereof, during reasonable business hours
      and
      upon reasonable advance notice for any purpose reasonably related to such
      Member’s interest as a Member.

     

    D.  Reports

     

    .
      Administrative Member shall provide the Members with reports as follows (with
      a
      breakdown for each Company Subsidiary, if applicable): 

     

    (1)  Annual
      financial statements (balance sheet and income statement) in a format acceptable
      to BREA including a combining schedule for each of the Company Subsidiaries
      within ninety (90) days of the end of the fiscal year, audited by the
“Company’s
      Accountants“
(i.e.,
      KPMG or another independent nationally recognized accounting firm approved
      by
      the Members).

     

    (2)  Copies
      of
      the Company’s annual federal and state income tax returns as prepared by the
      Company’s Accountants together with a copy of that certain IRS form commonly
      referred to as a “Schedule K-1,” (if applicable) plus a copy of any
      applicable state equivalents, within one hundred and twenty  (120) days
      following the end of each fiscal year.

     

    (3)  A
      monthly
      report for each calendar month, certified by Administrative Member to be true,
      accurate and complete in all material respects, and submitted to BREA within
      thirty (30) days of the end of each such calendar month (the “Periodic
      Report“).
      Each
      Periodic Report shall be in accordance with GAAP and consistent with the
      financial statement format to be delivered under subsection D(1) above,
      unless a deviation is approved by BREA, and shall include the following:
      (a) an operating statement and report of financial condition of the Company
      and each Company Subsidiary for such period, including combining financial
      statements for each of the Company Subsidiaries; (b) a statement containing
      Administrative Member’s estimate of the amount needed to be contributed by the
      Members pursuant to Article III for the succeeding month; (c) a
      variance report, comparing actual costs and expenses and revenues with budgeted
      costs and expenses and revenues on a category basis along with a reasonably
      detailed explanation of all material or significant variances and all changes
      in
      any time schedules relating thereto; (d) an occupancy report, and a current
      rent roll; and (e) if applicable, a calculation by Administrative Member of
      the amount of Distributable Cash for the preceding calendar month and a
      calculation by Administrative Member of the respective distributions if any,
      to
      Members pursuant to Article IV, including a calculation of the IRR
      Deficiency amounts, if any.

     

    (4)  The
      reports described on the Administrative Obligations Exhibit “F.”

     

    (5)  Such
      other reports as may be required by the lenders of the Company or any Company
      Subsidiaries.

     

    
      
        
        

      

      
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    (6)  Such
      other reports as BREA shall reasonably require, provided that the cost of
      preparing same shall be borne by the Company and shall be included in
      Administrative Member Costs.

     

    E.  Working
      Capital Reserve and Other Reserves

     

    .
      Administrative Member shall cause and maintain reasonable reserves as set forth
      in the applicable approved Operating Budget for future costs, expenses and
      payments or for substantial costs (including capital repairs, improvements
      and
      replacements), to the extent the payment of such costs is not contemplated
      by
      other reserves maintained by or on behalf of the Company, any Company Subsidiary
      or any Project Lender and the amount of such reserves is approved by
      BREA.

     

    F.  Company
      Accounts

     

    .
      All
      funds of the Company shall be deposited by Administrative Member into one or
      more federally insured operating accounts (collectively, the “Operating
      Accounts“).
      Administrative Member shall transfer portions of the balance of the Operating
      Accounts which are not immediately needed to pay for operations of the Company
      (whether in order to make a contribution to any Company Subsidiary or otherwise)
      from time to time to a bank controlled investment account (that invests in
      high
      grade commercial paper) in accordance with sound cash management principles
      (“Money
      Market Account“).
      If
      there are Company Subsidiaries, each shall deposit, or cause to be deposited,
      the revenues of the Properties into one of the Operating Accounts. The Operating
      Accounts and Money Market Account (collectively, the “Accounts“)
      shall
      be maintained in the name of the Company with a money center financial
      institution approved by BREA. The funds within the Accounts shall be segregated
      from, and not commingled with any accounts of any Member or Affiliate thereof,
      or any other accounts that the Members may hereafter establish for the Company
      or any Company Subsidiary from time to time. The investment of the funds within
      the Accounts shall be directed by Administrative Member, subject to the approval
      by BREA. Withdrawals from the Accounts shall be made upon such signature or
      signatures as Administrative Member may designate (provided that such
      signatories are approved by BREA), and shall be made only in connection with
      expenses related to the Company assets (including contributions to a Company
      Subsidiary) which are in conformance with the Requirements.

     

    Section
      5.4  Other
      Activities

     

    .

     

    A.  Generally

     

    .
      Except
      as otherwise provided in this Agreement or in any agreement among one or more
      of
      the Members or their Affiliates: (1) each Member recognizes that the other
      Member has an interest in investing in, developing, constructing, operating,
      transferring, leasing and otherwise using real property and interests therein
      for profit, and engaging in any and all activities related or incidental thereto
      and that each will make other investments consistent with such interests;
      (2) neither the Company nor any Company Subsidiary nor any Member shall
      have any right by virtue of this Agreement or the relationship created hereby
      in
      or to any other ventures or activities in which any Member is involved or to
      the
      income or proceeds derived therefrom; (3) the pursuit of other ventures and
      activities by any Member, even if competitive with the business of the Company
      or any Company Subsidiary, is hereby consented to by the other Member and shall
      not be deemed wrongful or improper; (4) no Member and no Affiliate of a
      Member shall be obligated to present any particular investment opportunity
      to
      the Company, even if such opportunity is of a character which, if presented
      to
      the Company or any Company Subsidiary, could be taken by the Company or any
      

     


    
      
        
        

      

      
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    Company
      Subsidiary; and (5) each Member and each Affiliate of a Member shall have
      the right to take for its own account, or to recommend to others, any such
      particular investment opportunity. 

     

    B.  Anti-Competition
      Covenant

     

    .
      ESC
      shall not attempt, either directly or through an Affiliate, to (1) except
      in connection with a Permitted Portfolio Acquisition or the Existing Competing
      Projects, acquire an interest in, develop, operate or manage any property that
      is or will be in competition with the Properties in its immediate marketing
      area, except for the benefit of the Company or any Company Subsidiary so long
      as
      the Company or any Company Subsidiary owns any portion of the Properties;
      (2) except with respect to any Existing Competing Projects, develop any
      property within a 15-mile radius of the Properties in competition with the
      Properties; (3) divert any person that is a then existing or potential
      resident at any of the Properties or treat any Existing Competing Projects
      or
      any properties acquired as part of a Permitted Portfolio Acquisition in a manner
      which is less favorable to the Properties or the Company. BREA shall not develop
      any senior housing property within a 15 mile radius of the Properties in
      competition with the Properties.

     

    Section
      5.5  Liability
      of Members

     

    .
      Subject
      to the provisions of any other agreement to which the Members are parties,
      and
      except for the obligations to a Member or Members or the Company or any Company
      Subsidiary imposed under such other agreement, no Member shall be liable,
      responsible or accountable in damages or otherwise to the Company or any Company
      Subsidiary or the other Member for any action taken or failure to act by such
      Member in its business judgment on behalf of the Company within the scope of
      the
      authority conferred on it by this Agreement unless such action or omission
      constitutes a matter as to which such Member is obligated to indemnify the
      Company under Section 5.7. Unless otherwise agreed upon in writing by the
      Members, to the fullest extent permitted by the Act: (1) no Member, nor
      Special Member, nor Independent Manager, shall be liable for the debts,
      liabilities, contracts or any other obligations of the Company or a Company
      Subsidiary, (2) the Members shall be liable to make contributions (or, if
      applicable, loans) only to the extent required under this Agreement,
      (3) and, without limitation, except as approved by the Members, any
      indemnification obligation of the Company hereunder shall be limited to the
      assets of the Company, and (4) no Member shall have personal liability for
      the repayment of the contributions or loans of any other Member, except as
      may
      be expressly required under this Agreement. Except as expressly provided in
      this
      Agreement, nothing in this Agreement shall confer any rights or remedies under
      or by reason of this Agreement on any person or entity other than the Members
      and their respective successors and assigns, nor shall anything in this
      Agreement relieve or discharge the obligation or liability of any third person
      to any party to this Agreement, nor shall any provision of this Agreement give
      any third person any right of subrogation or action over or against any party
      to
      this Agreement. Without limitation on the foregoing, to the fullest extent
      permitted by the Act, no third party shall have any right to enforce any
      contribution obligation on a Member. In no event shall any Member have any
      fiduciary duty to the Company or to any other Member, except for ESC’s fiduciary
      duty to the Members, the Company and the Company Subsidiaries in its capacity
      as
      property manager for the Properties.

     

    Section
      5.6  Indemnity
      of Members

     

    .
      The
      Company shall, to the fullest extent permitted by applicable law, indemnify,
      defend and hold each Member harmless from and against any Claims suffered or
      sustained by it by reason of any acts, omissions or alleged acts or omissions
      by
      such Member on behalf of the Company within the scope of authority conferred
      on
      it by this Agreement or arising from the fact that such Member is a Member
      of
      the Company; provided that the acts or omissions or alleged acts or omissions
      upon which such actual or threatened action, proceeding or 

     


    
      
        
        

      

      
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    claim
      is
      based were in good faith in accordance with its business judgment and did not
      constitute a matter as to which such Member is obligated to indemnify the
      Company under Section 5.7.

     

    Section
      5.7  Indemnification
      by Members

     

    .
      Each
      Member shall, to the fullest extent permitted by applicable law, indemnify,
      defend and hold the Company, each Company Subsidiary, the other Member, and
      the
      assets of the Company and each Company Subsidiary, harmless from and against
      any
      and all Claims suffered or sustained by it by reason of any act or omission
      constituting (a) breach or default by such Member or any Affiliate under
      this Agreement or any Collateral Agreement (including a breach of any
      representation or warranty by such Member or any Affiliate under this Agreement
      or any Collateral Agreement) or (b) gross negligence or willful misconduct
      by such Member or any Affiliate.

     

    Section
      5.8  Contractual
      Duties Prevail

     

    .
      To the
      extent that, at law or in equity, a Member has duties (including fiduciary
      duties) and liabilities relating thereto to the Company or any Company
      Subsidiary or to the other Member, a Member acting pursuant to this Agreement
      shall not be liable to the Company or any Company Subsidiary or to any other
      Member except to the extent provided in Section 5.5. The provisions of this
      Agreement, to the extent that they restrict the duties and liabilities of a
      Member otherwise existing at law or in equity, are agreed by the parties hereto
      to replace such other duties and liabilities of such Member.

     

    Section
      5.9  BREA
      Review

     

    .

     

    A.  Development
      Consultant

     

    .
      BREA
      reserves the right to retain a consultant (“Consultant“),
      at
      the Company’s expense, as BREA’s consultant in connection with the Properties
      (including any remediation, development or construction with respect to the
      Properties), in order to advise BREA in connection with all approvals requested
      of BREA under this Agreement, and the administration of all Contribution
      Requests. If Consultant is retained, he shall be furnished with copies of all
      information, reports, documents, notices and other materials required to be
      provided to BREA pursuant to this Agreement, at the same time furnished to
      BREA.
      In addition, BREA shall have the right by written notice to ESC to cause ESC
      to
      furnish certain of such information, reports, documents, notices or other
      materials solely to Consultant.

     

    B.  BREA
      Approvals

     

    .
      BREA’s
      approval of any matter in connection with this Agreement shall be for the sole
      purpose of protecting BREA’s investment in the Company, and shall not constitute
      a waiver of any default by Administrative Member or its Affiliates under this
      Agreement or any Collateral Agreement (unless such waiver is expressly made
      by
      BREA in writing with specific reference to such default and agreement) or a
      representation by BREA of any kind with regard to the matter being approved;
      provided, however, that the foregoing shall not limit Administrative Member’s
      right to rely on any written approval of BREA under this Agreement as
      constituting BREA’s approval under this Agreement. BREA is under no duty to
      visit any portion of the Properties or to supervise or observe construction
      or
      to examine any books or records. No site visit, observation or examination
      by
      BREA shall impose any liability on BREA, result in any waiver of any default
      by
      Administrative Member under this Agreement, or constitute a representation
      that
      any of the assets of the Company or any Company Subsidiary complies or will
      comply with any of the Requirements or that any construction is free from
      defective materials or workmanship. Neither Administrative Member nor any other
      party is entitled to rely on any site visit, observation or examination by
      BREA,
      and BREA assumes no personal responsibility for any negligent or defective
      

     


    
      
        
        

      

      
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    design
      or
      construction. BREA shall have the right to contact representatives of the local,
      state and other governmental authorities having jurisdiction over any part
      of
      the Properties, or engineers, architects, contractors, suppliers or other third
      parties involved with the Properties, in order to verify compliance by
      Administrative Member with this Agreement.

     

    Section
      5.10  Management
      Agreement.
      The
      Members hereby approve of the form of Management Agreement (the “Management
      Agreement“)
      attached as Exhibit “G.” A separate Management Agreement in such form shall be
      executed with respect to each Property with ESC in its capacity as property
      manager for the applicable Property.

     

    Section
      5.11  Licensing.
      Administrative Member shall cause each Company Subsidiary to obtain all
      applicable healthcare or other licenses (the “Operating
      Licenses“)
      recommended by the Company’s healthcare counsel, or otherwise required to permit
      the operation of the Properties. In the event that the Operating Licenses are
      not obtained by the Closing Date, the Company, Company Subsidiaries and ESC
      in
      its capacity as property manager pursuant to the Management Agreements, acting
      directly or through their Affiliates and subsidiaries, as necessary, shall
      enter
      into sale/leasebacks or other similar temporary arrangements acceptable to
      the
      Members with Seller and Seller’s affiliates, as recommended by the Company’s
      healthcare counsel, to permit the acquisition and operation of the Properties,
      under Seller’s and Seller’s affiliates’ licenses. 

     

    ARTICLE
      VI  
      TRANSFER
      OF COMPANY INTERESTS

     

    .

     

    Section
      6.1  Restrictions
      on Transfer

     

    .

     

    A.  Except
      as
      expressly provided to the contrary in this subsection A, no sale, exchange,
      delivery, assignment, transfer, encumbrance, pledge, hypothecation or other
      disposition, whether voluntary, involuntary, by operation of law or otherwise
      (a
“Transfer“)
      shall
      be made by a Member of the whole or any part of its interest in the Company
      (including its interest in the capital or profits of the Company) without the
      prior written consent of BREA. Without obtaining the prior consent of ESC (but
      with prior notice to ESC), BREA may make a Transfer (i) to any Affiliate of
      BREA, (ii) as part of a merger, consolidation or similar transaction involving
      a
      substantial portion of the assets of BREA any controlling, controlled by or
      under common control with BREA, or (iii) subject to the provisions of
ARTICLE
      X
      and
      ESC’s rights thereunder, in connection with the sale of all or a portion of its
      interests to a third party.

     

    B.  No
      Transfer in violation of the provisions hereof shall be valid or effective
      for
      any purpose, and no consent to one or more of the same shall be deemed consent
      to any other of the same.

     

    Section
      6.2  Effect
      of Assignment; Documents

     

    .
      In the
      event of any sale or assignment permitted hereunder, subject to
      Article VIII, the Company shall not be dissolved but instead shall continue
      as before, with, however, the addition or substitution of such transferee or
      assignee as a Member of the Company. No such Transfer shall relieve the assignor
      from any of its obligations under this Agreement . Notwithstanding the
      foregoing, as a condition to any sale or assignment by a Member, the assignee
      must execute and deliver to the non-assigning Member on behalf of the Company
      an
      assumption (in form reasonably satisfactory to the non-assigning member) of
      all
      the obligations of the assignor under this Agreement arising from and after
      the
      date of such assignment. 

     


    
      
        
        

      

      
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    Upon
      execution and delivery of such assumption, the Members shall execute a document
      in form reasonably satisfactory to all Members evidencing the admission of
      such
      transferee.

     

    ARTICLE
      VII  
      CERTAIN
      REMEDIES

     

    .

     

    Section
      7.1  Termination
      of Management Agreements for Failure to Achieve Performance
      Benchmarks

     

    .
      

     

    A.  Performance
      Benchmarks

     

    .
      

     

    (1)  In
      addition to the rights and remedies set forth in the Management Agreements,
      the
      occurrence of one of the following events (the “Performance
      Benchmarks”),
      that
      is not cured by the payment of money by ESC within sixty (60) days after notice
      of failure to meet a Performance Benchmark, shall entitle BREA, at its election,
      on behalf of the Company, to cause the Company Subsidiaries, to terminate all,
      but not some, of the Management Agreements:

     

    (a)  The
      Company fails to meet the revenues budgeted in the Operating Budgets (i) by
      more
      than 10% in any two out of three consecutive fiscal years or (ii) by more than
      30% in the aggregate accumulated over any three consecutive fiscal years,
      or

     

    (b)  The
      Company fails to achieve an aggregate “Portfolio Cash Return” (as defined
      below), measured within thirty (30) days after the end of the fourth quarter
      of
      each fiscal year of the Company beginning with the third fiscal year, of 10%
      of
      the then outstanding debt on the Project beginning with the third fiscal year
      and each subsequent fiscal year. “Portfolio
      Cash Return”
means:
      (i) the total revenue for the fiscal year just ended (the trailing twelve (12)
      months); less (ii) total Operating Expenses for the trailing twelve (12) months,
      less (iii) an annual provision for capital expenditures of $350 per unit of
      the
      Project. “Operating
      Expenses”
means
      all expenses of the Project before interest, taxes, depreciation and
      amortization, but including management fees.

     

    (2)  Either
      Performance Benchmark identified in items (a) and (b) above may be adjusted
      for
      Extraordinary Income and Extraordinary Expense items. “Extraordinary
      Income and Extraordinary Expenses”
means
      material items of a character significantly different from the typical or
      customary business activities of the Properties, which would not be expected
      to
      recur frequently and which would not be considered as recurring factors in
      any
      evaluation of the ordinary operating process of the Properties, and which would
      be treated as extraordinary income or extraordinary expenses under GAAP, and
      including without limitation, litigation and defense costs incurred in
      connection with claims by residents and others and insurance deductibles, if
      any, relating to liability claims and casualty losses.

     

    Section
      7.2  Termination
      of Administrative Member Rights

     

    .

     

    A.  Termination
      Notice

     

    .
      BREA
      may deliver a termination notice to ESC (“Termination
      Notice”)
      removing ESC as Administrative Member upon the occurrence of any of the
      following events:

     

    (1)  Any
      gross
      negligence or willful misconduct by ESC or any of its Affiliates.

     

    
      
        
        

      

      
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    (2)  Any
      material breach of this Agreement or any Collateral Agreement (including, but
      not limited to, any Management Agreement) by ESC or any of its Affiliates
      (including the failure to timely make a required contribution under
      Article III or a breach of Article VI or a breach of a representation
      or warranty by ESC or its Affiliates hereunder or under a Collateral Agreement)
      which is not cured within the Cure Period (or, without limitation on the
      foregoing, the Company, any Company Subsidiary, or any Member has not been
      made
      whole prior to the expiration of the Cure Period).

     

    (3)  The
      failure by ESC to provide reasonably effective management of the Company, each
      Company Subsidiary, and their respective Company assets in its capacity as
      Administrative Member pursuant to Article V hereof in a manner
      substantially consistent with prevailing commercial practices for the
      development, operation, marketing and sale of property similar to the assets
      of
      the Company and the Company Subsidiaries (and such failure has or is reasonably
      expected to have a material and adverse effect upon the Company, any Company
      Subsidiary or their respective assets), and the failure to correct such
      deficiencies within the Cure Period.

     

    (4)  The
      occurrence of a Bankruptcy/Dissolution Event with respect to ESC.

     

    (5)  A
      termination of the Management Agreements pursuant to Section
      7.1.

     

    B.  Procedure;
      Arbitration

     

    .
      The
      Termination Notice shall specify the basis for the same and shall become
      effective (1) ten (10) days after the date of the Termination Notice
      in connection with a termination described in subsection A(1), A(2) or A(3)
      above, and (2) immediately in connection with a termination described in
      subsection A(4) above. However, ESC may dispute the existence of grounds for
      the
      termination described in subsection A(1), A(2) or A(3) (but not
      subsection A(4)) by written notice (“Arbitration
      Notice”)
      to BREA
      within ten (10) days after its receipt of the Termination Notice. If ESC
      fails to provide an Arbitration Notice within such ten (10) day period,
      then notwithstanding anything to the contrary herein, ESC shall have no right
      to
      dispute the effectiveness of the Termination Notice, which shall be conclusive.
      In the event an Arbitration Notice is given within the period set forth above,
      then (a) the dispute shall be resolved by arbitration as provided in
      Section 7.3, and (b) if the arbitrator upholds the grounds for
      termination, then the Termination Notice shall thereupon become
      effective.

     

    C.  Effect
      of Termination Notice

     

    .
      If a
      Termination Notice becomes effective, then:

     

    (1)  BREA
      or
      its designee shall become the Administrative Member with all the power and
      authority previously possessed by ESC as Administrative Member; and ESC shall
      remain a Member in the Company, but with no power, authority or right to vote,
      approve or act for or bind the Company with respect to any matter in connection
      with the Company or its operation (and, without limitation, ESC shall have
      no
      further rights under Section 5.1).

     

    (2)  ESC
      shall
      execute and acknowledge any required amendments to this Agreement reflecting
      the
      foregoing, in such form and content as BREA may reasonably prescribe.


     

    (3)  Subject
      to the transfer of any Operating Licenses, ESC shall not be responsible for
      any
      obligation of the Administrative Member under this Agreement first accruing
      

     


    
      
        
        

      

      
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    after
      the
      Termination Notice becomes effective (other than obligations that would apply
      to
      ESC under this Agreement regardless of its status as Administrative Member,
      including contribution obligations).

     

    (4)  Except
      in
      the event of a Termination Notice pursuant to Section
      7.2A(5),
      the
      distributions under the “Promote
      Clauses”
(i.e.,
      clause (2) of Section 4.1B, clause (2) of Section 4.1C and
      clause (2) of Section 4.1D) shall thereafter be distributed to the
      Members in accordance with their respective Company Percentages; and no further
      fees or reimbursements shall be payable to ESC as Administrative
      Member.

     

    (5)  ESC
      shall
      forthwith: (a) deliver to BREA a final accounting; (b) surrender and
      deliver to BREA all rents and income, including tenant security deposits, of
      the
      Properties and other monies of the Company or any Company Subsidiary held by,
      or
      under the control of ESC; (c) deliver to BREA, as received, any monies due
      the Company or any Company Subsidiary received after such removal;
      (d) deliver to BREA or its designee, all materials and supplies, keys,
      leases, contracts and documents, all other accounting papers and records of
      the
      Company or any Company Subsidiary, and all books and records, receipts for
      deposits, bills and other materials in ESC’s possession that relate to the
      Properties; and (e) execute and deliver to BREA a notice to third parties
      directly involved with the Properties in form reasonably satisfactory to BREA
      to
      the effect that ESC is no longer Administrative Member.

     

    (6)  ESC
      shall
      cooperate with the Company and each Company Subsidiary to allow the Company
      and
      each Company Subsidiary to effectively and productively continue the operation,
      marketing and other activities of the Company. Without limitation on the
      foregoing, ESC shall deliver to the Company such information and documentation
      in ESC’s control or possession at the time of removal as BREA may reasonably
      request concerning the Properties, including any potential residents for the
      Properties known by ESC at the time of removal.

     

    D.  Replacement
      Administrative Member

     

    .
      In the
      event that ESC is removed as or otherwise ceases to be the Administrative
      Member, BREA shall have the right to admit a new Member to the Company to
      function as a replacement administrative member and to receive fees and
      reimbursements as reasonably determined by BREA so long as the distributions
      to
      all Members are diluted proportionately. Notwithstanding anything to the
      contrary herein, all Members shall execute and deliver such amendments to this
      Agreement as BREA may reasonably request in order to implement the
      foregoing.

     

    Section
      7.3  ARBITRATION
      OF DISPUTES

     

    .
      ANY
      DISPUTE AMONG THE MEMBERS UNDER SECTION 7.2 AS TO THE EFFECTIVENESS OF A
      TERMINATION NOTICE (OTHER THAN A TERMINATION NOTICE GIVEN UNDER
      SECTION 7.2A(4)) SHALL BE RESOLVED AND FINALLY DETERMINED BY ARBITRATION AS
      SET FORTH IN THIS SECTION 7.3. ANY ARBITRATION PURSUANT TO THIS SECTION
      SHALL, TO THE FULLEST EXTENT PERMITTED BY LAW, BE HELD IN WILMINGTON, DELAWARE.
      IF THE PARTIES DO NOT MUTUALLY AGREE UPON AN ARBITRATOR WITHIN FIVE (5)
      BUSINESS DAYS AFTER NOTICE FROM ONE PARTY TO THE OTHER, THEN ANY PARTY MAY
      APPLY
      TO THE CHANCERY OR SUPERIOR COURT IN WILMINGTON, DELAWARE FOR AN ORDER
      APPOINTING AN ARBITRATOR. IN CONNECTION WITH ANY SUCH APPLICATION, ANY PARTY
      MAY
      PROPOSE ONE OR MORE PERSONS TO ACT AS THE 

     


    
      
        
        

      

      
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    ARBITRATOR
      PROVIDED THAT ANY SUCH PERSON OR PERSONS SHALL BE INDEPENDENT AND SHALL BE
      (X) A LICENSED ATTORNEY WITH AT LEAST TEN (10) YEARS’ EXPERIENCE IN
      CONNECTION WITH THE DEVELOPMENT AND OPERATION OF REAL ESTATE SIMILAR TO THE
      PROPERTY OR (Y) A RETIRED JUDGE OF ANY CHANCERY OR SUPERIOR COURT,
      APPELLATE COURT OR UNITED STATES DISTRICT COURT IN WILMINGTON, DELAWARE. AFTER
      THE APPOINTMENT OF THE ARBITRATOR, THE PARTIES SHALL HAVE THE RIGHT TO TAKE
      DEPOSITIONS AND TO OBTAIN DISCOVERY BY OTHER MEANS REGARDING THE SUBJECT MATTER
      OF THE ARBITRATION AS IF THE MATTER WERE PENDING IN ANY CHANCERY OR SUPERIOR
      COURT IN WILMINGTON, DELAWARE, ALTHOUGH THE ARBITRATOR MAY, FOR GOOD CAUSE
      SHOWN, LIMIT THE NATURE AND EXTENT OF SUCH DISCOVERY AND ESTABLISH OR MODIFY
      THE
      SCHEDULE RELATING TO ANY DISCOVERY REQUESTS OR APPLICATIONS RELATING THERETO.
      THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ALL OTHER PROCEDURAL ISSUES,
      INCLUDING THE FOLLOWING: THE DATE, TIME AND PLACE OF ANY HEARING; THE FORM,
      TIMING, AND SUBJECT MATTER OF ANY PRE-HEARING DOCUMENTS TO BE SUBMITTED BY
      THE
      PARTIES; AND ANY EVIDENTIARY OR PROCEDURAL ISSUES THAT MAY ARISE AT OR IN
      CONNECTION WITH ANY ARBITRATION HEARING. THE AWARD OF THE ARBITRATOR SHALL
      BE
      CONCLUSIVE AND BINDING, AND ANY PARTY MAY SEEK TO HAVE THE AWARD CONFIRMED
      BY
      WAY OF A COURT ORDER. ALL FEES AND EXPENSES OF THE ARBITRATOR AND ALL OTHER
      EXPENSES OF THE ARBITRATION SHALL BE BORNE INITIALLY BY THE MEMBERS EQUALLY
      (I.E., 50% FOR EACH MEMBER), BUT ULTIMATELY SHALL BE BORNE BY THE NON-PREVAILING
      PARTY IN THE ARBITRATION. THE ARBITRATION SHALL BE LIMITED TO THE EFFECTIVENESS
      OR INEFFECTIVENESS OF A TERMINATION NOTICE (INCLUDING DETERMINING WHETHER ONE
      OF
      THE EVENTS UNDER SECTION 7.2A HAS OCCURRED). NOTHING CONTAINED HEREIN SHALL
      BE CONSTRUED AS TO PREVENT ANY PARTY FROM SEEKING PROVISIONAL OR EQUITABLE
      RELIEF FROM A COURT ON THE BASIS THAT, UNLESS SUCH RELIEF IS OBTAINED, ANY
      AWARD
      THAT THE ARBITRATOR MAY MAKE WILL BE INEFFECTUAL.

     

    Section
      7.4  No
      Partition

     

    .
      Each
      Member hereby irrevocably waives any and all rights that it may have to maintain
      any action for partition of any of the assets of the Company or any Company
      Subsidiary.

     

    Section
      7.5  Cumulative
      Remedies

     

    .
      Subject
      to the limitations expressly herein set forth, no remedy conferred upon the
      Company or any Member in this Agreement is intended to be exclusive of any
      other
      remedy herein or by law provided or permitted, but each shall be cumulative
      and
      shall be in addition to every other remedy given hereunder or now or hereafter
      existing at law, in equity or by statute.

     

    Section
      7.6  Attorneys’
      Fees

     

    .
      Subject
      to Section 7.3, if the Company or any Member obtains a judgment against any
      other Member in connection with a dispute arising under or in connection with
      this Agreement (whether in an action or through arbitration), such party shall
      be entitled to recover its court (or arbitration) costs, and reasonable
      attorneys’ fees (including the reasonable value of in-house attorney services)
      and disbursements incurred in connection therewith and in any appeal or
      enforcement proceeding thereafter, in addition to all other recoverable
      costs.

     

    
      
        
        

      

      
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    Section
      7.7  No
      Waiver

     

    .
      No
      waiver by a Member or the Company of any breach of this Agreement shall be
      deemed to be a waiver of any other breach of any kind or nature, and no
      acceptance of payment or performance by a Member or the Company after any such
      breach shall be deemed to be a waiver of any breach of this Agreement, whether
      or not such Member or the Company knows of such breach at the time it accepts
      such payment or performance. No failure or delay on the part of a Member or
      the
      Company to exercise any right it may have shall prevent the exercise thereof
      by
      such Member or the Company at any time such other may continue to be so in
      default, and no such failure or delay shall operate as a waiver of any
      default.

     

    Section
      7.8  No
      Suretyship Defenses

     

    .
      Each
      Member hereby waives any guarantor or suretyship defense that may otherwise
      apply with respect to this Agreement (including Sections 4.4, 5.7, 7.1A and
      7.2C(2)).

     

    ARTICLE
      VIII  
      DISSOLUTION OF THE COMPANY

     

    .

     

    Section
      8.1  Events
      Giving Rise to Dissolution

     

    .
      No act,
      thing, occurrence, event or circumstance shall cause or result in the
      dissolution of the Company; except that the happening of any one of the
      following events (individually, a “Dissolution
      Event”)
      shall
      work an immediate dissolution of the Company.

     

    A.  Intentionally
      deleted.

     

    B.  Intentionally
      deleted.

     

    C.  The
      sale
      of all of the real estate assets of the Company and each Company Subsidiary
      (provided, however, that if a portion of the purchase price of such sale is
      evidenced by a promissory note, the Company shall not be dissolved by reason
      of
      such sale so long as the Company or a Company Subsidiary is the holder of such
      promissory note).

     

    D.  The
      unanimous agreement in writing by the Members to dissolve the
      Company.

     

    E.  The
      expiration of the term of the Company pursuant to Section 1.3 of this
      Agreement.

     

    F.  The
      entry
      of a decree of judicial dissolution of the Company under Section 18-802 of
      the Act.

     

    G.  The
      occurrence of the event described in Section 2.5.

     

    Without
      limitation on the other provisions hereof, the resignation, expulsion or
      dissolution of any Member, the occurrence of a Bankruptcy/Dissolution Event
      with
      respect to a Member, the assignment of all or any part of a Member’s interest in
      the Company, the occurrence of any event that terminates the continued
      membership of a Member under the Act or the admission of a new Member shall
      not
      dissolve the Company and the business of the Company shall continue. Except
      as
      otherwise provided in this Agreement: (i) without the consent of the
      Members, no Member may retire or withdraw from the Company; and (ii) a
      withdrawing Member shall not be entitled to receive any distributions and shall
      not otherwise be entitled to receive the fair value of its membership interest
      in the Company.

     

    
      
        
        

      

      
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    Section
      8.2  Procedure

     

    .
      In the
      event of the dissolution of the Company for any reason, the “Winding-Up
      Member”
(i.e.,
      (1) BREA if BREA gives ESC written notice of its election to be the
      Winding-Up Member, and (2) otherwise Administrative Member) shall commence
      to wind up the affairs of the Company and Company Subsidiaries and to liquidate
      their respective investments. The Members shall continue to share profits,
      losses, gain or loss on sale or disposition, and Distributable Cash during
      the
      period of liquidation in the same manner and proportion as though the Company
      had not dissolved (subject, however, to any adjustments hereunder that may
      apply
      whether by reason of Section 7.2A(4) or otherwise). Subject to the prior
      written approval of BREA, the Winding-Up Member shall have discretion to
      determine in good faith the time, manner and terms of any sale or sales of
      the
      assets of the Company and the Company Subsidiaries pursuant to such liquidation
      having due regard to the activity and condition of the relevant market and
      general financial and economic conditions.

     

    A.  Following
      the satisfaction of all debts and liabilities of the Company and the Company
      Subsidiaries and all expenses of liquidation (whether by payment or the making
      of reasonable provision for payment thereof), the proceeds of the liquidation
      and any other funds of the Company shall be distributed in accordance with
      Section 5.1 of Exhibit ”H” (the “Tax
      Exhibit”)
      (after
      deducting from the distributive share of a Member any sum such Member owes
      the
      Company).

     

    B.  Each
      Member shall look solely to the assets of the Company for all distributions
      with
      respect to the Company and its capital contribution thereto and share of profits
      or losses thereof and shall have no recourse therefor (in the event of any
      deficit in a Member’s capital account or otherwise) against the other Member;
      provided that nothing herein contained shall relieve any Member of such Member’s
      obligation to make the capital contributions herein provided or to pay any
      liability or indebtedness owing the Company by such Member, and the Company
      and
      the other Member shall be entitled at all times to enforce such obligations
      of
      such Member. No holder of a Company interest shall have any right to demand
      or
      receive property other than cash upon dissolution of the Company.

     

    C.  Upon
      the
      completion of the winding up of the Company and the distribution of all Company
      funds, the Winding-Up Member shall have the authority to execute and record
      a
      certificate of cancellation of the certificate of formation of the Company,
      as
      well as any and all other documents required to effectuate the dissolution
      and
      termination of the Company, and the Company shall terminate.

     

    ARTICLE
      IX  
      CERTAIN
      INCORPORATED MATTERS

     

    .

     

    Section
      9.1  Tax
      and Accounting

     

    .
      Each
      and all of the provisions of the Tax Exhibit are incorporated herein and shall
      constitute part of this Agreement. The Tax Exhibit provides for, among other
      matters, the establishment and maintenance of capital accounts, and the
      allocation of profits and losses of the Company. The Company shall be operated
      as a limited liability company solely for state and federal income tax
      purposes.

     

    ARTICLE
      X   RIGHT
      OF
      FIRST OPPORTUNITY.

     

    


     

    Section
      10.1  Right
      of First Opportunity

     

    .
      In the
      event that BREA desires to sell all of the Properties or any Property (either
      directly or through the sale of a Company Subsidiary) and Administrative Member
      does not desire to sell such Property, or in the event BREA desires to sell
      

     


    
      
        
        

      

      
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    substantially
      all of its interest in the Company (“BREA’s
      Membership Interest”)
      to an
      unaffiliated third party, then, prior to BREA exercising its override right
      set
      forth in Section 5.1.C of this Agreement and marketing the applicable Property
      or BREA’s Membership Interest for sale, BREA shall send Administrative Member a
      written notice informing Administrative Member that BREA intends to market
      the
      applicable Property for sale or BREA’s Membership Interest (an “Intent
      to Sell Notice”).
      Administrative Member shall have thirty (30) days from the date of receipt
      of
      the Intent to Sell Notice to notify BREA in writing that either (a)
      Administrative Member is prepared to purchase the applicable Property, or BREA’s
      Membership Interest, as applicable, at a purchase price (“Administrative
      Member’s Price”)
      that
      shall be specified in such notice (a notice delivered pursuant to this Section
      10.1 is referred to herein as a “Purchase
      Offer”),
      or
      (b) Administrative Member is not prepared to purchase the applicable Property,
      or BREA’s Membership Interest, as applicable. Failure of Administrative Member
      to respond in writing to the Intent to Sell Notice within such thirty (30)
      day
      period shall be deemed an election by Administrative Member that Administrative
      Member is not prepared to purchase the Property or BREA’s Membership Interest,
      as applicable.

     

    Section
      10.2  Acceptance
      of Offer

     

    .

     

    A.  Closing
      and Deposit

     

    .
      In the
      event that Administrative Member delivers a Purchase Offer, then BREA shall
      have
      a twenty (20) day period in which to elect either to accept or reject the
      Purchase Offer. If BREA delivers a written notice (an “Acceptance
      Notice”)
      that
      it accepts the Purchase Offer, then the Company shall sell the applicable
      Property to Administrative Member, or BREA shall sell BREA’s Membership
      Interest, as applicable, and Administrative Member shall be obligated to
      purchase the applicable Property or BREA’s Membership Interest, as applicable,
      for a purchase price equal to Administrative Member’s Price, on the date (the
“Purchase
      Date”)
      that
      is sixty (60) days after the delivery date of the Acceptance Notice, provided
      that Administrative Member shall have the right to extend the Purchase Date
      for
      an additional thirty (30) days upon prior notice to BREA accompanied by an
      additional “Purchase Deposit” (as hereinafter defined), above the Purchase
      Deposit set forth below, equal to five percent (5%) of Administrative Member’s
      Purchase Price. In the event that Administrative Member becomes obligated to
      purchase the applicable Property or BREA’s Membership Interest as provided
      above, then Administrative Member shall transmit via wire transfer into an
      account specified by BREA, or by a certified check from a bank reasonably
      acceptable to BREA, readily available funds in an amount equal to five percent
      (5%) of Administrative Member’s Price (the “Purchase
      Deposit”)
      payable to the Company, within five (5) business days after the Purchase Offer
      is accepted. If Administrative Member does not deliver the Purchase Deposit
      as
      aforesaid within such five (5) business day period, or otherwise materially
      defaults under the provisions of this Article X, then the acceptance of the
      Purchase Offer shall be canceled, and Administrative Member shall lose its
      rights to purchase the applicable Property or BREA’s Membership Interest, as
      applicable, pursuant to the Purchase Offer and shall have no further rights
      thereafter to deliver another Purchase Offer. The Purchase Deposit, if made,
      shall be non-refundable to Administrative Member in all events other than the
      failure of the closing of the sale of the applicable Property, or BREA’s
      Membership Interest, as applicable, to occur by reason of the default by BREA
      or
      the Company as directed by BREA (in which case the Purchase Deposit shall be
      promptly refunded to Administrative Member). Upon the closing of the sale on
      the
      Purchase Date, the Purchase Deposit shall be a credit against Administrative
      Member’s Price. In the event of a default in any material respect by
      Administrative Member in connection with the execution of a sale pursuant to
      this Section
      10.2A,
      BREA
      may terminate the sale to be held on the 

     


    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    


    Purchase
      Date and retain the Purchase Deposit as liquidated damages (in which event
      Administrative Member shall thereafter have no right to deliver any further
      Purchase Offers). The retention of the Purchase Deposit by BREA (for the sole
      benefit of BREA) in connection with a default by Administrative Member hereunder
      shall be without limitation upon any other remedy that the Company and BREA
      may
      have against Administrative Member in connection with such default, including
      an
      action for damages and a right for a period of thirty (30) days after such
      default to elect to purchase the applicable Property pursuant to the terms
      of
      this Article X as if it were the Administrative Member, but at a price equal
      to
      ninety-five percent (95%) of Administrative Member’s Price. Such retention of
      the Purchase Deposit as provided herein shall not constitute a distribution
      of
      Distributable Cash nor be deemed a distribution or return of capital for
      purposes of Article IV of this Agreement.

     

    B.  Closing
      Mechanics

     

    .
      If the
      Purchase Offer is accepted and Administrative Member timely deposits the
      Purchase Deposit, the sale of the applicable Property, or BREA’s Membership
      Interest, as applicable, as provided hereunder shall take place at a closing
      conference held on the Purchase Date at the principal office of the Company
      or
      at such other location as may be agreed upon by the Members. At such closing
      conference, the Company shall be authorized and directed to retain the Purchase
      Deposit and any interest accrued thereon as a portion of the Administrative
      Member’s Price, and the remaining portion of Administrative Member’s Price shall
      be paid in immediately available funds, provided, however, Administrative
      Member’s Price actually paid to BREA shall be reduced by the amount that ESC
      would receive pursuant to Section
      4.1
      and
Section
      4.5
      if such
      Property or BREA’s Membership Interest were sold to a third party for the
      Administrative Member’s Price. The Company and Administrative Member shall
      execute such documents and instruments are may be necessary or appropriate
      to
      effect the sale of the Property, or BREA’s Membership Interest, as applicable,
      pursuant to the terms hereof, including, any sale/leaseback agreements and
      transition services agreements necessary to allow Administrative Member to
      operate a Property pending Administrative Member obtaining licensure therefore,
      which agreements shall be on forms reasonably acceptable to the
      parties.

     

    Section
      10.3  Failure
      to Accept or Elect

     

    .
      If (a)
      BREA delivers a written notice that it rejects the Purchase Offer, (b)
      Administrative Member fails to deposit the Purchase Deposit within five (5)
      business days after a Purchase Offer is accepted, or (c) Administrative Member
      elects or is deemed to have elected not to purchase the applicable Property,
      or
      BREA’s Membership Interest, as applicable, then, in any such event, BREA may
      market BREA’s Membership Interest or the applicable Property for sale (directly
      or through the sale of the applicable Company Subsidiary) and cause the Company
      to sell the applicable Property (directly or through the sale of the applicable
      Subsidiary) at any time during the one hundred eighty (180) days following
      the
      date that Administrative Member’s right to purchase the applicable Property,
      BREA’s Membership Interest, as applicable, expires or is otherwise lost (the
“Marketing
      Period”).
      If
      Administrative Member did not deliver a Purchase Offer or if Administrative
      Member fails to deposit the Purchase Deposit within ten (10) days after a
      Purchase Offer is accepted, then, in either case, BREA may cause the Company
      to
      sell BREA’s Membership Interest or the applicable Property during the Marketing
      Period for any price that is acceptable to BREA. If Administrative Member
      delivers a Purchase Offer and such Purchase Offer is rejected by BREA, then
      BREA
      may cause the Company to sell BREA’s Membership Interest or the applicable
      Property for a purchase price that is not more than $5,000,000 lower than
      Administrative Member’s Price as set forth in the Purchase Offer delivered by
      Administrative Member after receipt of the applicable Intent to Sell Notice,
      provided that if the 

     


    
      
        
        

      

      
        33

        
          

        

      

      
        
        

      

    


    proposed
      sale relates to less than eighty percent (80%) of the Properties, the foregoing
      threshold shall be not less than ninety-five percent (95%) of Administrative
      Member’s Price as set forth in the Purchase Offer, rather than $5,000,000. If
      BREA desires to cause the Company to sell BREA’s Membership Interest or the
      applicable Property for a purchase price that is more than $5,000,000 lower
      than, or less than ninety-five percent (95%) of, as applicable, Administrative
      Member’s Price as set forth in the Purchase Offer that Administrative Member
      delivered after receipt of the applicable Intent to Sell Notice, then, prior
      to
      agreeing to sell BREA’s Membership Interest or the applicable Property to a
      third party for such price, BREA must deliver a written notice to Administrative
      Member (a “Supplemental
      Notice”),
      which
      Supplemental Notice shall identify the proposed sale price (the “Third
      Party Price”).
      Administrative Member shall have five (5) business days from the date of receipt
      of the Supplemental Notice to notify BREA in writing that either (a)
      Administrative Member is prepared to purchase BREA’s Membership Interest or the
      applicable Property at a purchase price equal to the Third Party Price, or
      (b)
      Administrative Member is not prepared to purchase BREA’s Membership Interest or
      the applicable Property. Failure of Administrative Member to respond in writing
      to the Supplemental Notice within such five (5) business day period shall be
      deemed an election by Administrative Member that Administrative Member is not
      prepared to purchase BREA’s Membership Interest or the applicable Property. If
      Administrative Member elects not to, or is deemed to elect not to purchase
      BREA’s Membership Interest or the applicable Property, then BREA may sell BREA’s
      Membership Interest or cause the Company to sell the applicable Property to
      the
      third party at the Third Party Price. If Administrative Member elects to
      purchase BREA’s Membership Interest or the applicable Property for the Third
      Party Price, then the sale of BREA’s Membership Interest or the applicable
      Property shall take place in accordance with the terms of Section 10.2 hereof,
      except that the terms of Section 10.2 shall be modified to reflect a purchase
      price equal to the Third Party Price.

     

    Section
      10.4  Tag
      Along Rights

     

    .
      If BREA
      elects to sell BREA’s Membership Interest within a Marketing Period, ESC shall
      have the right to elect to “tag along” with said sale on a pro rata basis in
      accordance with the terms and conditions negotiated by BREA for the sale of
      BREA’s Membership Interest; and failure by ESC to make such election within ten
      (10) business days of receipt of notice from BREA regarding same period shall
      be
      deemed an election by ESC to not tag along on such sale.

     

    Section
      10.5  Unsolicited
      Offers to Purchase

     

    .
      If BREA
      receives an unsolicited third party offer to sell all of the Properties, any
      Property, or BREA’s Membership Interest, then the thirty (30) day period set
      forth in Section 10.1 above shall be reduced to fifteen (15) days

     

    Section
      10.6  Failure
      to Sell

     

    .
      If BREA
      is unable to sell BREA’s Membership Interest or the applicable Property within a
      Marketing Period, then, prior to any further marketing or any subsequent
      marketing of BREA’s Membership Interest or the applicable Property, BREA must
      send Administrative Member a new Intent to Sell Notice, and the process set
      forth in Section 10.1 through this Section 10.4 shall occur.

     

    Section
      10.7  Method
      of Sale

     

    .
      The
      sale of a Property to a third party may be accomplished, in the sole and
      absolute discretion of BREA, as a sale of such Property or as a sale of the
      Company’s interest in the Company Subsidiary that owns such
      Property.

     

    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

    ARTICLE
      XI  
      MISCELLANEOUS.

     

    


     

    Section
      11.1  Notices

     

    .
      Any
      notice which a party is required or may desire to give the other party shall
      be
      in writing and may be delivered (1) personally, (2) by United States
      registered or certified mail, postage prepaid, (3) by Federal Express or
      other reputable courier service regularly providing evidence of delivery (with
      charges paid by the party sending the notice), or (4) by facsimile,
      provided that such telecopy shall be immediately followed by delivery of such
      notice pursuant to clause (1), (2) or (3) above. Any such notice to a party
      shall be addressed at the address set forth below the name of such party on
      the
      signature pages at the end of this Agreement (subject to the right of a party
      to
      designate a different address for itself by notice similarly given). Service
      of
      any such notice or other communications so made shall be deemed effective on
      the
      day of actual delivery (whether accepted or refused) as evidenced by confirmed
      answerback if by facsimile (provided that if any notice or other communication
      to be delivered by facsimile cannot be transmitted because of a problem
      affecting the receiving party’s facsimile machine, the deadline for receiving
      such notice or other communication shall be extended through the next business
      day), as shown by the addressee’s return receipt if by certified mail, and as
      confirmed by the courier service if by courier; provided, however, that if
      such
      actual delivery occurs after 5:00 p.m. (local time where received) or on a
      non-business day, then such notice or demand so made shall be deemed effective
      on the first business day after the day of actual delivery. No communications
      via electronic mail shall be effective to give any notice, request, direction,
      demand, consent, waiver, approval or other communications
      hereunder.

     

    Section
      11.2  Contribution
      Agreement

     

    .

     

    A.  If
      any
      Project Lender or any other party (collectively, “Indemnitee”)
      collects from any Member or its Affiliate (the “Paying
      Member“)
      all or
      any part of any amounts due under any Project Financing, or any replacement
      thereof, or any indemnity provided to Seller in connection with the Closing
      (collectively, the “Unpaid
      Liabilities”)
      pursuant to any letter of credit, guaranty, environmental indemnity agreement,
      or other indemnity agreement, the amount of which Unpaid Liabilities is not
      reimbursed to the Paying Member by the Company within five (5) business days
      after the Company’s receipt of written demand for such reimbursement (a
“Guaranty
      Payment”),
      then
      the Paying Member shall give a written demand to the other Member (the
“Non-Paying
      Member”)
      specifying the amount of the Guaranty Payment and providing reasonable evidence
      of such Guaranty Payment by the Paying Member to Indemnitee (a “Demand
      Notice“).Within five (5) business days after its receipt of a Demand Notice from
      the Paying Member, the Non-Paying Member shall remit to the Paying Member an
      amount equal to the Guaranty Payment multiplied by such Non-Paying Member’s
      Company Percentage (a “Liability
      Percentage”)
      of the
      Guaranty Payment. Each Member agrees to consult with the other Member prior
      to
      making any Guaranty Payment and, upon request, to advise the other Member of
      the
      aggregate amount the Paying Member has paid under any guaranty or environmental
      indemnity agreement. 

     

    B.  If
      any
      Member shall fail to make any payment required to be made pursuant to this
      Agreement within the time period specified in Section
      11.2A,
      then
      interest will accrue on such unpaid amount from the date of the relevant Demand
      Notice until paid or otherwise satisfied at a rate equal to Applicable Rate,
      and
      the same shall be due and payable to the Paying 

     


    
      
        
        

      

      
        35

        
          

        

      

      
        
        

      

    


    Member
      along with any costs of collection incurred by the Paying Member, including
      reasonable attorneys’ fees and expenses. 

     

    C.  Notwithstanding
      anything to the contrary contained in this Agreement, in the event that
      Indemnitee is entitled to enforce the Unpaid Liabilities of the Company against
      the Company or one of the Members due to the fraud, grossly negligent actions,
      or intentional misconduct by the other Member, or such Member’s direct and
      indirect members, partners, shareholders, officers, directors, employees or
      agents, or actions by such Member outside the scope of its authority under
      this
      Agreement (such acts being herein referred to as the “Recourse
      Acts”),
      then
      such Member shall be 100% liable to the other Member for any obligation,
      liability, claim, loss, damage, cost or expense (including any judgment, award,
      settlement, reasonable attorneys’ fees and other costs and expenses incurred in
      connection with the defense of any actual or threatened action, proceeding
      or
      claim [including appellate proceedings], and any collection costs or enforcement
      costs) (collectively, “Claims”),
      arising in connection with the Recourse Acts, and such Member shall indemnify,
      protect, defend and hold such other Member harmless from and against any and
      all
      Claims suffered or sustained by it by reason of such first Member’s Recourse
      Acts. 

     

    D.  If
      the
      assets of the Company are inadequate to fully satisfy any Unpaid Liabilities,
      and BREA or Administrative Member is required to make any Guaranty Payment,
      then, except with respect to payments made due to the Recourse Acts, which
      shall
      be made in accordance with the provisions of Paragraph C above, the parties
      agree as follows: 

     

    (1)  Until
      the
      Project Financing, or any replacement thereof has been repaid in full, and
      the
      Property has been sold to a third party, in the event distributions have been
      made under the Promote Clause, any amounts the Members are obligated hereunder
      (or otherwise agree in writing) to pay with respect to any Guaranty Payments
      shall, notwithstanding anything to the contrary herein, be made as
      follows:

     

    (a)  initially,
      in accordance with the allocations under the Promote Clauses (up to an amount
      equal to the amount previously distributed under the Promote Clauses),
      and

     

    (b)  thereafter,
      the balance, if any, of the Guaranty Payments shall be made by the Members
      pari
      passu in accordance with their Company Percentages.

     

    (2)  Any
      payments made by BREA, whether a Guaranty Payment to Indemnitee or a payment
      to
      the Paying Member for BREA’s Liability Percentage of a Guaranty Payment, shall
      be deemed to be a contribution by BREA under this Agreement. 

     

    (3)  Any
      payment made by Administrative Member, whether a Guaranty Payment to Indemnitee
      or a payment to the Paying Member for Administrative Member’s Liability
      Percentage of a Guaranty Payment, shall be deemed to be a contribution by
      Administrative Member under this Agreement. 

     

    (4)  The
      Company shall be deemed to have made the Guaranty Payments to the Indemnitee.
      

     

    
      
        
        

      

      
        36

        
          

        

      

      
        
        

      

    

    Section
      11.3  Acknowledgement
      by Members

     

    .
      Each
      Member acknowledges the following: (A) it is familiar with the business
      proposed to be conducted by the Company and the Company Subsidiaries;
      (B) it has been advised that its interest in the Company may not be sold,
      transferred, or otherwise disposed of except as provided herein; (C) it
      understands that its interest in the Company has not been registered under
      the
      Securities Act of 1933 as amended (the “Securities
      Act”),
      or
      any State securities laws, in reliance on an exemption for private offerings
      or
      the fact that it is not a security and if its interest in the Company is a
      security, such Member may not be able to resell it unless it is registered
      under
      the Securities Act and applicable State securities laws or unless an exemption
      from such registration is available; (D) it is a “sophisticated investor”
with substantial prior experience in high-risk business investments of the
      type
      described in this Agreement and is aware of and familiar with the risks
      associated with a private limited liability company and would qualify as an
      “accredited investor” as such is defined in Rule 501 of Regulation D,
      as enacted pursuant to Sections 3(b) and 4(2) of the Securities Act;
      (E) it is acquiring its interest in the Company for its own account, for
      investment only and with no present intention of distributing, reselling,
      pledging, or otherwise disposing of its interest; and (F) that it is
      familiar with the type of investment which its interest in the Company
      constitutes and has reviewed the acquisition of such interest with its tax
      and
      independent legal counsel and investment representatives to the extent it deems
      necessary.

     

    Section
      11.4  Construction

     

    .
      Every
      covenant, term, and provision of this Agreement shall be construed simply
      according to its fair meaning and not strictly for or against any Member
      (notwithstanding any rule of law requiring an Agreement to be strictly construed
      against the drafting party).

     

    Section
      11.5  Time
      is of the Essence

     

    .
      Subject
      to Section 11.13, time is of the essence with respect to this
      Agreement.

     

    Section
      11.6  Entire
      Agreement

     

    .
      This
      Agreement constitutes the entire agreement between the parties. This Agreement
      supersedes any prior agreement or understandings between the
      parties.

     

    Section
      11.7  Amendments

     

    .
      This
      Agreement may be amended by written agreement of amendment executed by all
      Members, but not otherwise, unless expressly provided herein.

     

    Section
      11.8  Governing
      Law

     

    .
      This
      Agreement and the rights of the parties hereunder shall be governed by and
      interpreted in accordance with the laws of the State of Delaware (without regard
      to conflicts of laws). Subject to Section 7.3, each of the parties hereto
      irrevocably and unconditionally agrees (1) to be subject to the exclusive
      jurisdiction of the courts of the State of Delaware and of the federal courts
      sitting in the State of Delaware, and (2)(a) to the extent such party is
      not otherwise subject to service of process in the State of Delaware, to appoint
      and maintain an agent in the State of Delaware as such party’s agent for
      acceptance of legal process and notify the other party or parties hereto of
      the
      name and address of such agent, and (b) that service of process may, to the
      fullest extent permitted by law, also be made on such party by prepaid certified
      mail with a proof of mailing receipt validated by the United States Postal
      Service constituting evidence of valid service, and that service made pursuant
      to (2)(a) or (b) above shall, to the fullest extent permitted by law, have
      the
      same legal force and effect as if served upon such party within the State of
      Delaware.

     

    
      
        
        

      

      
        37

        
          

        

      

      
        
        

      

    

    Section
      11.9  Successors
      and Assigns

     

    .
      Except
      as herein otherwise specifically provided, this Agreement shall be binding
      upon
      and inure to the benefit of the parties and their legal representatives,
      successors and assigns.

     

    Section
      11.10  Captions

     

    .
      Captions contained in this Agreement in no way define, limit or extend the
      scope
      or intent of this Agreement.

     

    Section
      11.11  Severability

     

    .
      If any
      provision of this Agreement, or the application of such provision to any person
      or circumstance, shall be held invalid, the remainder of this Agreement, or
      the
      application of such provision to the persons or circumstances, shall not be
      affected thereby.

     

    Section
      11.12  Counterparts

     

    .
      This
      Agreement may be executed in several counterparts, each of which shall be deemed
      an original, but all of which shall constitute one and the same
      document.

     

    Section
      11.13  Certain
      Terminology

     

    .

     

    A.  Whenever
      the words “including,” “include” or “includes” are used in this Agreement, they
      should be interpreted in a non-exclusive manner as though the words,” without
      limitation,” immediately followed the same.

     

    B.  Except
      as
      otherwise indicated, all Article, Section and Exhibit references in this
      Agreement shall be deemed to refer to the Sections and Articles in, and the
      Exhibits to, this Agreement.

     

    C.  Wherever
      the words “herein” or “hereunder” appear in this Agreement, they shall be
      interpreted to mean “in this Agreement” or “under this Agreement,”
respectively.

     

    D.  As
      used
      herein, “good faith” means “honesty in fact” as such phrase is used in the
      Uniform Commercial Code, as adopted in the State of Delaware as of the date
      of
      this Agreement.

     

    Section
      11.14  Non-Business
      Days

     

    .
      Whenever action must be taken (including the giving of notice or the delivery
      of
      documents) under this Agreement during a certain period of time or by a
      particular date that ends or occurs on a non-business day (i.e., Saturday,
      Sunday or a holiday recognized by the U.S. federal government or the State
      of
      New York or Delaware), then such period or date shall be extended until the
      immediately following business day.

     

    Section
      11.15  Incorporation
      of Exhibits

     

    .
      All
      exhibits attached and referred to in this Agreement are hereby incorporated
      herein as fully set forth in (and shall be deemed to be a part of) this
      Agreement.

     

    Section
      11.16  Effectiveness

     

    .
      In no
      event shall any draft of this Agreement create any obligation or liability,
      it
      being understood that this Agreement shall be effective and binding only when
      a
      counterpart hereof has been executed and delivered by each party
      hereto.

     

    IN
      WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
      first above written.

     

    [Remainder
      of page intentionally left blank; signatures follow]

     


     

     

    


     


    
      
        
        

      

      
        38

        
          

        

      

      
        
        

        
        

      

    



    BREA’s
      Signature Page for Amended and Restated Limited Liability Company
      Agreement

    for
      BREA Emeritus LLC

    dated
      as of December 1, 2006

    


    BREA:

    


    BREA
      806 LLC,

    a
      Delaware limited liability company

    


    By: BREA
      Senior Housing LLC,

    a
      Delaware limited liability company,

    its
      managing member

    


    


    By:
       /s/
      David
      Roth   

    Name: David
      Roth    

    Title:     

    


    Address:

    


    c/o
      The
      Blackstone Group

    345
      Park
      Avenue

    New
      York,
      New York 10154

    Attention:
      Mr. David Roth

    Telephone: (212)
      583-5885

    Facsimile: (212)
      583-5202

    


    With
      Copy To:

    


    Pircher,
      Nichols & Meeks

    900
      North
      Michigan Avenue, Suite 1050

    Chicago,
      Illinois 60611

    Attention:
      Real Estate Notices (JDL)

    Telephone: (312)
      915-3112

    Facsimile: (312)
      915-3348

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    ESC’s
      Signature Page for Amended and Restated Limited Liability Company
      Agreement

    for
      BREA Emeritus LLC

    dated
      as of December 1, 2006

    


    


    


    ESC:

    


    EMERITUS
      CORPORATION,

    a
      Washington corporation

    


    By: /s/
      Raymond R. Brandstrom ________

    Name: Raymond
      R. Brandstrom   

    Title: Vice
      President of Finance

    


    Address:

    


    3131
      Elliott Avenue, Suite

    Seattle,
      Washington 98121

    Attention:
      Eric Mendelsohn, Esq.

    Telephone: (206)
      301-4493

    Facsimile: (206)
      357-7388

    


    With
      Copy to:

    


    Foster
      Pepper PLLC

    1111
      Third Avenue, Suite 3400

    Seattle,
      Washington 98101-3299

    Attention:
      Laura McClellan, Esq.

    Telephone: (206)
      447-2871

    Facsimile: (206)
      749-1917


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Independent
      Manager Signature Page for 

    Amended
      and Restated Limited Liability Company Agreement

    for
      BREA Emeritus LLC

    dated
      as of December 1, 2006

    


    


    Independent
      Manager:

    


    


    /s/
      Cheryl A. Tussie   

    CHERYL
      A.
      TUSSIE

    


    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    





    Limited
      Liability Company Agreement

     

    BREA
      Emeritus LLC

     

    EXHIBITS

     

     

    A
      -
      Certain Acquisition Costs

     

    B
      -
      Initial Operating Budget and Capital Budget

     

    C
      -
      Properties

     

    D
      -
      Existing Competing Projects

     

    E
      -
      Certain IRR Deficiency Calculations

     

    F
      -
      Certain Obligations of Administrative Member

     

    G
      - Form
      of Property Management Agreement

     

    H
      -
      Certain Tax and Accounting Matters

     

    I
      -
      Special Purpose Provisions

    




    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    



    EXHIBIT
      “A”

     

    


     

    CERTAIN
      ACQUISITION COSTS

     

    1.
      Out-of-pocket due diligence expenses.

    2.
      All
      third party legal fees.

    3.
      The
      cost of all third party reports.

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    





    EXHIBIT
      “B”

     

    


     

    INITIAL
      OPERATING BUDGET AND CAPITAL BUDGET

     

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    





    EXHIBIT
      “C”

     

    


     

    PROPERTIES

     

    1.  Cypress
      Court at East Mesa

    
      	 	
              6145
                East Arbor Avenue

            


    

    
      	 	
              Mesa,
                Arizona 85206

            


    

    


    2.  Cypress
      Court at Peoria

    9296
      West
      Union Hills Drive

    Peoria,
      Arizona 85382

    


    3.  Cypress
      Court at Sun City West

    21739
      N.
      151st Avenue

    Sun
      City
      West, Arizona 85375

    


    4.  Cypress
      Court at Tucson

    3701
      N.
      Swan Road

    Tucson,
      Arizona 85718

    


    5.  Cypress
      Gardens
      at
      Brea

    285
      West
      Central Avenue

    Brea,
      California 92821

    


    6.  Cypress
      Gardens at Citrus Heights

    7375
      Stock Ranch Road

    Citrus
      Heights, California 95621

    


    7.  Cypress
      Gardens at Whittier

    8101
      S.
      Painter Avenue and

    8132
      Friends Avenue

    Whittier,
      California 90602

    


    8.  Cypress
      Court at Denver

    3790
      W.
      Quincy Avenue

    Denver,
      Colorado 80236

    


    9.  Cypress
      Court at Colorado Springs

    2850
      North Academy Boulevard

    Colorado
      Springs, Colorado 80917

    


    10.  Cypress
      Gardens at Boynton Village

    1935
      South Federal Highway

    Boynton
      Beach, Florida 33435

    


    11.  Cypress
      Gardens at Sarasota

    5501
      Swift Road

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Sarasota,
      Florida 34231

    


    12.  Cypress
      Gardens at Dunedin

    880
      Patricia Avenue

    Dunedin,
      Florida 34698

    


    13.  Cypress
      Gardens at Palmer Ranch and Health Care Center 

    5111
      Palmer Ranch Parkway

    Sarasota,
      Florida 34238

    


    14.  Cypress
      Court at Decatur 

    475
      Irvin
      Court

    Decatur,
      Georgia 30030

    


    15.  Cypress
      Gardens at Sandy Springs 


      1260
        Hightower Trail


    Atlanta,
      Georgia 30350

    


    16.  Cypress
      Court at Sandy Springs


      1262
        Hightower Trail


    Atlanta,
      Georgia 30350

    


    17.  Cypress
      Court at Vinings Place


      4375
        Beach Haven Trail,
        SE


    Smyrna,
      Georgia 30080

    


    18.  Cypress
      Court at Overland Park

    11001
      Oakmont

    Overland
      Park, Kansas 66210

    


    19.  Rosewood
      Estates at
      South
      Park

    5326
      Park
      Road

    Charlotte,
      North Carolina 28209

    


    20.  Cypress
      Gardens at Wayne

    820
      Hamburg Turnpike

    Wayne,
      New Jersey 07470

    


    21.  Cypress
      Gardens at Emerson

    590
      Old
      Hook Road


      Emerson,
        New
        Jersey 07630


    


    22.  Cypress
      Gardens at West Orange

    520
      Prospect Avenue

    West
      Orange, New Jersey 07052

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    23.  Cypress
      Court at Reno


      3105
        Plumas
        Street


    Reno,
      Nevada 89509

    


    24.  Cypress
      Gardens at Westlake

    27569
      Detroit Road

    Westlake,
      Ohio 44145

    


    25.  Cypress
      Court
      at
      Roanoke

    1127
      Persinger Road, SW

    Roanoke,
      Virginia 24015

    


     

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    




    EXHIBIT
      “D”

     

    


     

    EXISTING
      COMPETING PROJECTS

     

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    





    EXHIBIT
      “E”

     

    


     

    CERTAIN
      IRR DEFICIENCY CALCULATIONS

     

    This
      Exhibit describes the internal rate of return calculation contemplated by
      Section 4.1 of the limited liability company agreement (this “Agreement“)
      to
      which this Exhibit is attached and of which this Exhibit forms a part. Except
      as
      otherwise indicated in this Exhibit, each capitalized term used herein shall
      have the meaning given to the same elsewhere in this Agreement.

     

    A. CERTAIN
      DEFINITIONS.
      

     

    “Contributions“
means
      (i) the sum of all contributions made under this Agreement by BREA to the
      Company on or after Time 0 and (ii) as of the date any Property is acquired
      by
      the Company (or any Company Subsidiary), an additional amount equal to 0.81%
      of
      the total gross cost basis of such Property to the Company (or such Company
      Subsidiary). If an escrow is used or advances are made by BREA or an affiliate
      prior to the date hereof and later treated as, or credited against, BREA’s
      contributions, then Contributions shall be deemed made on the date amounts
      are
      so deposited into escrow or advanced.

     

    “Distributions“
for
      a
      particular IRR Rate means all distributions made to BREA under the applicable
      subsections of Section 4.1 on or after Time 0. The applicable
      subsections are as follows: if the IRR Rate is 15% per annum, then the
      applicable subsection is 4.1A; if the IRR Rate is 20% per annum, then the
      applicable subsections are 4.1A and 4.1B; and if the IRR Rate is 25% per annum,
      then the applicable subsections are 4.1A, 4.1B and 4.1C. 

     

    “IRR
      Rate“
means
      15% per annum, 20% per annum or 25% per annum, as applicable

     

    “Time
      0“
means
      September 5, 2006. However, if an escrow is used or BREA or an affiliate
      otherwise advanced funds for the Company prior to the date of this Agreement
      (e.g.,
      for a
      portion of a deposit), then Time 0 shall mean the date BREA or such
      affiliate deposits funds in such escrow or makes such advance.

     

    B. DEFINITION
      AND CALCULATION OF IRR DEFICIENCY.
      With
      respect to the applicable IRR Rate, the “IRR
      Deficiency“
as
      of
      any particular date means the amount by which (1) the future value as of
      such date at such IRR Rate, compounded annually, of all Contributions made
      on or
      before such date (which shall include both such Contributions themselves and
      an
      annually compounded return on such Contributions using such IRR Rate), exceeds
      (2) the future value (as of such date) at such IRR Rate, compounded
      annually, of all Distributions for such IRR Rate (excluding, however, any
      Distribution to be made on such date and with respect to which such calculation
      is being made) made on or before such date (which shall include both such
      Distributions themselves and an annually compounded return on such Distributions
      using such IRR Rate). The “15%
      IRR Deficiency“
is
      the
      IRR Deficiency using an IRR Rate of 15% per annum, the “20%
      IRR Deficiency“
is
      the
      IRR Deficiency using an IRR Rate of 20% per annum, and the “25%
      IRR Deficiency“
is
      the
      IRR Deficiency using an IRR Rate of 25% per annum.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    





    EXHIBIT
      “F”

     

    


     

    CERTAIN
      OBLIGATIONS OF ADMINISTRATIVE MEMBER

     

    Subject
      to Section 5.1, Administrative Member’s responsibilities include:

     

    
      	·  	
              Maintain/manage
                or cause to be maintained and managed at company expense LLC level
                documentation and procedures

            


    

     

    
      	·  	
              Preparing
                an Operating Budget and Capital Budget) for BREA’s review and approval at
                least forty-five (45) days prior to commencement of each calendar
                year and
                making such changes thereto as the Members may
                approve

            


    

     

    
      	·  	
              Coordinating
                and facilitating and/or causing the preparation of financial and
                operational reports, disclosures and statements required under the
                terms
                of any loan documents at company
                expense.

            


    

     

    
      	·  	
              Monitor
                lender relationship

            


    

     

    
      	·  	
              Prepare
                distribution recommendations

            


    

     

    
      	·  	
              Prepare
                and deliver capital calls for
                approval

            


    

     

    PROPERTY
      OPERATIONS

     

    
      	·  	
              Determine
                and recommend to the Company and each Company Subsidiary most effective
                manner for property operations including internal management, third-party
                property management, third-party facilities
                management

            


    

     

    
      	·  	
              Oversee
                third-party property, facilities, and/or financial managers, if
                any

            


    

     

    INSURANCE

     

    Administrative
      Member shall cause the Company and the Company Subsidiaries, at a minimum,
      to
      obtain and maintain, without interruption, the insurance or self insurance
      coverages stipulated hereunder for the benefit of the Company and the Company
      Subsidiaries and each Member, but only to the extent of such party’s interest in
      the Property:

     

    (a) Property.
      The
      Company or the applicable Company Subsidiary shall, at a minimum, obtain and
      maintain, without interruption, the insurance coverages stipulated hereunder
      for
      the benefit of the Company and the applicable Company Subsidiary and each
      Member, but only to the extent of such party’s interest in the
      Property:

     

    (i) Replacement
      Cost.
      The
      Property shall be insured on a Full Replacement Cost basis. Full Replacement
      Cost is defined as the cost of replacing all improvements, together with
      appurtenances and betterments in compliance with prevailing building codes,
      without deduction for physical depreciation thereof, at the time of replacement
      of the Property, following a loss. If the Property is vertically improved,
      full
      Replacement Cost shall be determined by an appraisal made at 

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    least
      once every three (3) years, by an appraiser, appraisal company or insurance
      company. The value so determined shall be binding and conclusive. The policy
      shall further provide that, in the event of a total or constructive total loss,
      the Company and the applicable Company Subsidiaries shall not be unreasonably
      restricted from applying the proceeds to the re-building of the improvements
      at
      such other location as the Company and the applicable Company Subsidiaries
      shall
      elect. The Property shall be insured on an All Risk basis, and such policy
      shall
      include coverage for losses due to the peril of windstorm. The policy shall
      be
      endorsed to provide coverage for demolition and increased cost of construction
      to conform to local ordinance.

     

    (ii) Rent
      Loss/Business Interruption.
      If
      applicable, the Company or the applicable Company Subsidiary shall maintain,
      after substantial completion of the improvements, rent loss/business
      interruption insurance sufficient to prevent the Company and the applicable
      Company Subsidiaries from being a coinsurer under the terms of the policy,
      and
      in an amount equal to either twelve months’ projected gross income from the
      Property, or for the length of time it would take to demolish and rebuild all
      improvements.

     

    (iii) Builder’s
      Risk.
      During
      the period of any construction, repair, renovation, restoration or replacement
      of the improvements or the Property, the Company or the applicable Company
      Subsidiary shall obtain and maintain a completed value “All Risk” Builder’s Risk
      policy in an amount equal to one hundred percent (100%) of the replacement
      cost
      of the Property. Coverage should include, but not be limited to, collapse,
      soft
      costs, transit, earthquake, flood, windstorm, off-site storage, expediting
      expenses, demolition and increased cost of construction (for renovation and/or
      additions to existing structures), water damage, permission for partial
      occupancy, and automatic reinstatement. The policy is to be written on a
      non-reporting basis, and in an amount not less than the total value of the
      Property (less the value of such uninsurable items as land, site preparation,
      grading, paving, parking lots). The coverage may be provided as an extension
      to
      the property policy in force if the requirements herein are satisfied, subject
      to approval by the Members.

     

    (iv) Flood.
      If at
      any time the Property is in an area that has been identified by the Federal
      Insurance Administration as having special flood and/or mudslide hazards, and
      in
      which the sale of flood insurance has been made available under the National
      Flood Insurance Act of 1968, the Company or the applicable Company Subsidiary
      shall purchase and maintain a flood insurance policy. In the event that the
      Property is in an area identified as subject to flood and/or mudslide hazards,
      the Company or the applicable Company Subsidiary shall obtain a certificate
      or
      letter stating that the Property is insured for losses arising out of these
      perils.

     

    (v) Earthquake.
      If the
      Property is in an area identified by any governmental, engineering or any hazard
      underwriting agencies as being subject to the peril of earthquake, with a
      Maximum Probable Loss (MPL) of between ten percent (10%) and twenty percent
      (20%), the Company or the applicable Company Subsidiary shall obtain earthquake
      insurance equal to fifty percent (50%) of the replacement cost of the
      Property.

     

    (b) Liability.

     

    (i) the
      Company shall obtain and maintain Commercial General Liability insurance on
      the
      broadest forms available for similar risks, written on an “occurrence policy
      form,” against all claims for bodily injury, disease or death, property damage,
      personal injury and 

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    contractual
      liability (deleting any exclusion restricting coverage for contractual
      obligations for claims occurring on, in or about the Property and adjoining
      premises, explosion, collapse, and underground property damage) in an amount
      of
      not less than $1,000,000 arising out of any one occurrence. Such insurance
      may
      be provided under a primary and an umbrella policy or policies. If liability
      coverage for the Property is included under any blanket policy written on an
      aggregate form, then the annual aggregate limit of insurance must not be less
      than $1,000,000. The policy shall be endorsed to include the Company, each
      Company Subsidiary and each Member as an additional insured subject to the
      benefits stipulated under subsection (i)(v) hereof.

     

    (ii) During
      any period of construction, repair, restoration, renovation or replacement
      of
      the Property, the Company or the applicable Company Subsidiary shall cause
      the
      general contractor to maintain commercial liability insurance (or the Company’s
      and contractor’s protective liability insurance in the name of the Company, each
      Company Subsidiary and each Member), with extension for, but not limited to,
      products/completed operations, with limits of not less than $5,000,000 per
      occurrence. The Company or the applicable Company Subsidiary shall also cause
      the general contractor to require its subcontractors of any tier to provide
      confirmation of commercial liability coverage (including products/completed
      operations, if applicable) with a limit of not less than $1,000,000. The general
      contractors and the subcontractors shall have the Company and each Company
      Subsidiary included on the insurance required herein as additional
      insureds.

     

    (c) Workers’
      Compensation.
      The
      Company and each Company Subsidiary will maintain Workers’ Compensation and
      Employer’s Liability insurance, or their equivalent, for all its employees (if
      any), and will cause any of its agents, contractors and subcontractors of any
      tier to maintain similar insurance for all their respective employees, to the
      fullest extent required under the laws of the jurisdiction in which the Property
      is located.

     

    (d) Errors
      and Omission.
      The
      Company and each Company Subsidiary will cause any professional consultants,
      including architects and engineers, to maintain coverage in limits of not less
      than $1,000,000.

     

    (e) Other
      Insurance.
      In
      addition to the above, the Company and each Company Subsidiary shall maintain
      all insurance, Directors and Officers Insurance and surety and fidelity bonds
      in
      amounts and for such periods that are deemed to be prudent, or are customarily
      maintained by persons or entities operating properties of like kind,
      construction and occupancy in the locality of the Property.

     

    (f)  (g) All
      Insurance.
      Unless
      specified on any of the policies required above, and such specification is
      reciprocated on other corresponding policies, all insurance required herein
      will
      be primary and not excess over, contributory or participating with any other
      insurance carried by individual Members or their respective affiliates or
      agents.

     

    (h) Other
      Requirements With Respect to Insurance.
      The
      following provisions shall apply with respect to all insurance coverage required
      above:

     

    (i) Insurance
      Companies:
      All
      insurance required herein shall be issued by insurance companies of recognized
      good standing, with a rating of at least A in Best’s Key Rating Guide, and must
      be licensed to do business in the state in which the Property is located.
      Coverage 

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    under
      blanket policies may be extended by endorsements provided the insurers meet
      the
      requirements stipulated herein. Each policy shall not have more than a
      commercially reasonable deductible for any occurrence, except for mandatory
      deductibles where required under local regulations, or when required by insurers
      for specific catastrophic perils.

     

    (ii) Evidence
      of Insurance:
      The
      Company and each Company Subsidiary shall obtain, before the expiration date
      of
      each such policy, certificates or binders evidencing such insurance, or
      endorsements, thereof acceptable to BREA.

     

    (iii)  (iv) Cancellation:
      The
      Company and each Company Subsidiary shall within 30 days notify each Member
      of
      any cancellation of, non-renewal, or such material change as may adversely
      affect any insurance policy or coverage in force. Each policy shall contain
      a
      provision obligating the insurer to send at least thirty (30) days’ prior
      written notice to each Member and any party included as an additional insured
      or
      loss payee notifying them of the intent to cancel or make such change, and
      that
      any loss otherwise payable to them thereunder shall be paid notwithstanding
      any
      act or negligence on their part or that of the Company or any Company Subsidiary
      which might, absent such provision, result in a forfeiture of all or part of
      such insurance payment.

     

    (v) Separate
      Insurance:
      Without
      the prior written consent of the Members, neither the Company nor any Company
      Subsidiary shall not purchase separate insurance concurrent in form or
      contributing in the event of loss, with the insurance required
      hereunder.

     

    (vi) Payment
      of Premium:
      The
      Company and each Company Subsidiary shall be solely responsible for, and
      promptly pay when due, any and all premiums on all such insurance to be carried
      by the Company and each Company Subsidiary.

     

    (vii) Waiver
      of Subrogation:
      The
      Members, the Company and each Company Subsidiary waive any claims against one
      another with respect to the insurance actually carried to the extent of the
      proceeds realized from such insurance coverage.

     

    GENERAL

     

    
      	·  	
              Conducting
                or causing to be conducted the day-to-day business and affairs of
                the
                Company in accordance with the Requirements, including all matters
                which
                do not constitute Major Decisions

            


    

     

    
      	·  	
              Implementing
                the Major Decisions of the Company

            


    

     

    
      	·  	
              Monitoring
                and supervising the performance of the
                Property

            


    

     

    
      	·  	
              Paying
                approved expenses, including principal and interest payments under
                the
                Project Financing and all taxes, assessments and other impositions
                applicable to the Property payable by the Company or any Company
                Subsidiary

            


    

     

    
      	·  	
              Executing
                on behalf of and in the name of the Company or the applicable Company
                Subsidiary all agreements that do not constitute Major Decisions
                that are
                required for the day-to-day operations of the business of the Company
                and
                each Company Subsidiary

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	·  	
              Suing,
                prosecuting, settling or compromising all claims by or against third
                parties subject and in accordance with the
                Requirements

            


    

     

    
      	·  	
              Requiring
                contractors providing services in connection with the Property to
                maintain
                adequate insurance and, to the extent reasonably appropriate, sufficient
                bonds and similar items

            


    

     

    
      	·  	
              Protecting
                and preserving the title and interest of the Company, each Company
                Subsidiary and their respective
                assets

            


    

     

    
      	·  	
              Filing
                all disclosure documents related to the Property required by law
                and
                taking any other actions necessary or advisable in order to comply
                with
                the Requirements

            


    

     

    
      	·  	
              Performing
                all business functions and otherwise operating and managing the Property
                in accordance with the Requirements

            


    

     

    
      	·  	
              Overseeing
                third party providers’ services to ensure that Property is managed to
                yield optimal returns

            


    

     

    
      	·  	
              Performing
                such other duties as may be reasonably requested from time to time
                by
                BREA

            


    

     

    *
      *
      *

     

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    





    EXHIBIT
      “G”

    


    FORM
      OF
      MANAGEMENT AGREEMENT


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    




    EXHIBIT
      “H”

     

    


     

    CERTAIN
      TAX AND ACCOUNTING MATTERS

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     




    EXHIBIT
      I

     

    SPECIAL
      PURPOSE PROVISIONS

     

    


    “Single
      Purpose Entity”
shall
      mean an entity whose organizational documents contain restrictions on its
      purpose and activities and impose requirements intended to preserve its
      separateness that are substantially similar to following provisions (the
“Special
      Purpose Provisions”):
      

     

    
      	(i)  	
              is
                formed or organized solely for the purpose of owning, holding, developing,
                using, operating and financing, directly a Property, or, in the case
                of an
                entity formed or organized solely for the purpose of owning, holding,
                developing, using, operating and financing (as used in this Exhibit
“I”,
                the “Parent”), indirectly, an ownership interest in a Property,
                

            


    

     

    
      	(ii)  	
              does
                not engage in any business unrelated to such Property or with respect
                to
                the Parent, indirectly, all of the Properties and the ownership,
                development, use, operation and financing thereof,
                

            


    

     

    
      	(iii)  	
              has
                not and will not have any assets other than those related to its
                interest
                in such Property or with respect to the Parent, indirectly, all of
                the
                Properties or the operation, management and financing thereof or
                any
                Indebtedness other than the Permitted Indebtedness,
                

            


    

     

    
      	(iv)  	
              except
                if consolidated with other borrowers under the Loan, maintains its
                own
                separate books and records and its own accounts, in each case, which
                are
                separate and apart from the books and records and accounts of any
                other
                Person, 

            


    

     

    
      	(v)  	
              holds
                itself out as being a entity, separate and apart from any other entity,
                

            


    

     

    
      	(vi)  	
              does
                not and will not commingle its funds or assets with those of any
                other
                entity, 

            


    

     

    
      	(vii)  	
              conducts
                its own business in its own name, 

            


    

     

    
      	(viii)  	
              except
                if consolidated with other borrowers under the Loan, maintains separate
                financial statements, 

            


    

     

    
      	(ix)  	
              pays
                its own liabilities out of its own funds,


            


    

     

    
      	(x)  	
              observes
                all limited liability company formalities,


            


    

     

    
      	(xi)  	
              pays
                the salaries of its own employees, if any, and maintains a sufficient
                number of employees, if any, in light of its contemplated business
                operations, 

            


    

     

    
      	(xii)  	
              except
                as expressly permitted under the Loan Documents, or to the other
                borrowers
                with respect to the Loan, does not guarantee or otherwise obligate
                itself
                with respect to the debts of any other entity (other than by endorsements
                of negotiable instruments for deposit or collection in the ordinary
                course
                of business) or hold out its credit as being available to satisfy
                the
                obligations of any other entity, 

            


    

     

    
      	(xiii)  	
              does
                not acquire obligations or securities of its partners, members or
                shareholders, 

            


    

     

    
      	(xiv)  	
              allocates
                fairly and reasonably shared expenses, including, without limitation,
                any
                overhead for shared office space, if any,


            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	(xv)  	
              uses
                separate stationery, invoices, and checks,


            


    

     

    
      	(xvi)  	
              maintains
                an arm’s length relationship with its Affiliates,
                

            


    

     

    
      	(xvii)  	
              other
                than pursuant to the Loan Documents does not and will not pledge
                its
                assets for the benefit of any other person or make any loans or advances
                to any other person, 

            


    

     

    
      	(xviii)  	
              does
                and will continue to use commercially reasonable efforts to correct
                any
                known misunderstanding regarding its separate identity,
                

            


    

     

    
      	(xix)  	
              maintains
                adequate capital in light of its contemplated business operations;
                provided, however, this provision shall not require any member of
                any
                borrower under the Loan, or any other party, to make any capital
                contributions to any borrower under the Loan, and
                

            


    

     

    
      	(xx)  	
              has
                not and will not engage in, seek, or consent to the dissolution,
                winding
                up, liquidation, consolidation or merger and except as otherwise
                permitted
                in this Agreement, has not and will not engage in, seek or consent
                to any
                asset sale, transfer or partnership, membership or shareholder interests,
                or amendments of its organizational documents.


            


    

     

    In
      addition, if such entity is a partnership, (1) all general partners of such
      entity shall be Single Purpose Entities (owning nothing other than its general
      partnership interests); and (2) if such entity has more than one general
      partner, then the organizational documents shall provide that such entity shall
      continue (and not dissolve) for so long as a solvent general partner exists.
      In
      addition, if such entity is a corporation, then, at all times: (a) such entity
      shall have at least one (1) Independent Director and (b) the board of directors
      of such entity may not take any action requiring the unanimous affirmative
      vote
      of 100% of the members of the board of directors unless all of the directors,
      including the Independent Directors, shall have participated in such vote.
      

     

    In
      addition, if such entity is a limited liability company, (A) such entity shall
      have at least one (1) Independent Manager or Independent Member, (B) if such
      entity is managed by a board of managers, the board of managers of such entity
      may not take any action requiring the unanimous affirmative vote of 100% of
      the
      members of the board of managers unless all of the managers, including the
      Independent Managers, shall have participated in such vote, (C) if such entity
      is not managed by a board of managers, the members of such entity may not take
      any action requiring the affirmative vote of 100% of the members of such entity
      unless all of the members, including the Independent Members, shall have
      participated in such vote, (D) except in the case of the Parent, each managing
      member shall be a Single Purpose Entity and, in the case of the Parent, shall
      own nothing other than the Equity Interests in the SPEs, and (E) its
      organizational documents shall provide that until all of the indebtedness and
      obligations under the Loan are paid in full such entity will not dissolve.
      

     

    In
      addition, the organizational documents of such entity shall provide that such
      entity without the unanimous consent of all of the partners, managers, directors
      or members, as applicable, shall not with respect to itself or to any other
      entity in which it has a direct or indirect legal or beneficial interest (A)
      seek or consent to the appointment of a receiver, liquidator, assignee, trustee,
      sequestrator, custodian or other similar official for the benefit of the
      creditors of such entity or all or any portion of such entity’s properties, (B)
      take any action that could reasonably be expected to cause such entity to become
      insolvent, petition or otherwise institute insolvency proceedings or otherwise
      seek any relief under any laws relating to the relief from debts or the
      protection of debtors 

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    generally,
      “or” (C) take any action would cause such entity not to satisfy the requirements
      set forth herein for a Single Purpose Entity.

     

    


     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     



    INDEX
      OF DEFINED TERMS

    

      
        	 	
                Termination
                  Notice

              	
                Page

              
	 	
                 

              	 
	 	
                15%
                  IRR Deficiency

              	
                53

              
	 	
                20%
                  IRR Deficiency

              	
                53

              
	 	
                25%
                  IRR Deficiency

              	
                54

              
	 	
                Acceptance
                  Notice

              	
                36

              
	 	
                Accounts

              	
                24

              
	 	
                Acquisition
                  Costs

              	
                3

              
	 	
                Act

              	
                1

              
	 	
                Administrative
                  Member

              	
                16

              
	 	
                Administrative
                  Member Costs

              	
                3

              
	 	
                Administrative
                  Member's Price

              	
                35

              
	 	
                Administrative
                  Obligations Exhibit

              	
                23

              
	 	
                Affiliate

              	
                3

              
	 	
                Agreement

              	
                1,
                  53

              
	 	
                Applicable
                  Rate

              	
                12

              
	 	
                Arbitration
                  Notice

              	
                30

              
	 	
                Bankruptcy/Dissolution
                  Event

              	
                4

              
	 	
                BREA

              	
                1

              
	 	
                BREA
                  Sale

              	
                16

              
	 	
                BREA's
                  Membership Interest

              	
                35

              
	 	
                Budget

              	
                4

              
	 	
                Business
                  Agreements

              	
                4

              
	 	
                Capital
                  Budget

              	
                4

              
	 	
                Claim

              	
                4

              
	 	
                Claims

              	
                40

              
	 	
                Closing

              	
                7

              
	 	
                Closing
                  Date

              	
                7

              
	 	
                Closing
                  Statement

              	
                11

              
	 	
                Collateral
                  Agreement

              	
                4

              
	 	
                Company

              	
                1

              
	 	
                Company
                  Percentages

              	
                4

              
	 	
                Company
                  Subsidiaries

              	
                2

              
	 	
                Company's
                  Accountants

              	
                23

              
	 	
                Consultant

              	
                27

              
	 	
                Contributing
                  Member

              	
                12

              
	 	
                Contribution
                  Request

              	
                11

              
	 	
                Contributions

              	
                53

              
	 	
                control

              	
                4

              
	 	
                Conveyance
                  Documents

              	
                20

              
	 	
                Credit
                  Agreement

              	
                1

              
	 	
                Cure
                  Period

              	
                5

              
	 	
                Default
                  Loan

              	
                12

              
	 	
                Deficiency

              	
                12

              


      

    

    


    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    

      
        	 	
                Deposit

              	
                7

              
	 	
                Dissolution
                  Event

              	
                33

              
	 	
                Distributable
                  Cash

              	
                14

              
	 	
                Distributions

              	
                53

              
	 	
                ESC

              	
                1

              
	 	
                Escrow
                  Agent

              	
                7

              
	 	
                Existing
                  Agreement

              	
                1

              
	 	
                Existing
                  Competing Projects

              	
                8

              
	 	
                Extraordinary
                  Income and Extraordinary Expenses

              	
                29

              
	 	
                GAAP

              	
                23

              
	 	
                Grossed
                  Up Sale Price

              	
                16

              
	 	
                Guaranty
                  Payment

              	
                39

              
	 	
                Indemnitee

              	
                39

              
	 	
                Intent
                  to Sell Notice

              	
                35

              
	 	
                Investment
                  Maintenance Costs

              	
                5

              
	 	
                IRR
                  Deficiency

              	
                53

              
	 	
                IRR
                  Exhibit

              	
                14

              
	 	
                IRR
                  Rate

              	
                53

              
	 	
                Laws

              	
                5

              
	 	
                Lender

              	
                1

              
	 	
                Liability
                  Percentage

              	
                39

              
	 	
                Loan

              	
                1

              
	 	
                Loan
                  Documents

              	
                20

              
	 	
                Major
                  Decisions

              	
                16

              
	 	
                Management
                  Agreement

              	
                27

              
	 	
                Marketing
                  Period

              	
                37

              
	 	
                Material
                  Action

              	
                5

              
	 	
                Member

              	
                2

              
	 	
                Member
                  Cessation Event

              	
                2

              
	 	
                Members

              	
                2

              
	 	
                Money
                  Market Account

              	
                24

              
	 	
                Non-Contributing
                  Member

              	
                12

              
	 	
                Noncurable
                  Default

              	
                5

              
	 	
                Non-Paying
                  Member

              	
                39

              
	 	
                Note

              	
                1

              
	 	
                Obligation

              	
                6

              
	 	
                Operating
                  Accounts

              	
                24

              
	 	
                Operating
                  Budget

              	
                4

              
	 	
                Operating
                  Expenses

              	
                29

              
	 	
                Operating
                  Licenses

              	
                28

              
	 	
                Paying
                  Member

              	
                39

              
	 	
                Performance
                  Benchmarks

              	
                29

              
	 	
                Periodic
                  Report

              	
                23

              
	 	
                Permitted
                  Portfolio Acquisition

              	
                6

              
	 	
                Portfolio
                  Cash Return

              	
                29

              
	 	
                Project

              	
                2

              


      

    

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    

      
        	 	
                Project
                  Financing

              	
                6,
                  10

              
	 	
                Project
                  Financing Documents

              	
                6,
                  10

              
	 	
                Project
                  Financing Guaranty Documents

              	
                6,
                  10

              
	 	
                Project
                  Lender

              	
                6,
                  10

              
	 	
                Promote
                  Clauses

              	
                31

              
	 	
                Properties

              	
                6

              
	 	
                Property

              	
                6

              
	 	
                Purchase
                  Agreement

              	
                6

              
	 	
                Purchase
                  Date

              	
                36

              
	 	
                Purchase
                  Deposit

              	
                36

              
	 	
                Purchase
                  Offer

              	
                35

              
	 	
                Purchase
                  Price

              	
                7

              
	 	
                Recourse
                  Acts

              	
                40

              
	 	
                Requirements

              	
                7

              
	 	
                Securities
                  Act

              	
                41

              
	 	
                Security
                  Instrument

              	
                1

              
	 	
                Seller

              	
                7

              
	 	
                Sole
                  Member

              	
                2

              
	 	
                Special
                  Member

              	
                3

              
	 	
                Special
                  Purpose Provisions

              	
                21

              
	 	
                Subsequent
                  Contribution

              	
                11

              
	 	
                Supplemental
                  Notice

              	
                38

              
	 	
                Tax
                  Exhibit

              	
                34

              
	 	
                Termination
                  Notice

              	
                30

              
	 	
                Third
                  Party Price

              	
                38

              
	 	
                Time
                  0

              	
                53

              
	 	
                Transfer

              	
                28

              
	 	
                Transferred
                  Percentage

              	
                16

              
	 	
                Unpaid
                  Liabilities

              	
                39

              
	 	
                Winding-Up
                  Member

              	
                34