Resolution & Certificate of Manager of Bay Rd Partners, LLC~ or~k- .~G gG ~
RESOLUTION AND CERTIFICATE
OF
MANAGER
OF
BAY ROAD PARTr'ERS, LLC
IN CONSIDERATION of the sum of TEN and NO/100THS DOLLARS ($10.00) and other
good and valuable consideration, SCOTT ROBINS, as Manager of BAY ROAD PARTNERS, I,LC
("Company"), does hereby certify, in order to evidence the authority of the Company in connection
with certain issues relating to, among other things (a) the organi2ation of the Company, (b) the
purchase by the Company of the Property as set forth in the attached Written Consent attached as
Exhibit _, (c) any agreements by and between the Company and the City of Miami Beach, (d} any
lease by the company of the Property or property leased from its wholly oc~med affiliate, Bay Road
Outparcel Partners, LLC, the following resolution was unanimously adopted by the Members of the
Company at a duly called meeting of the Members on March 31, 2009:
I. That PURDY PARTNERS, I,LC, a Florida limited liability company and 1849 FURRY
PARTNERS, LLC, a FIorida limited liability company, aze the only Members of the Company.
2. That SCOTT ROBIN`S and PHILIP LEVI~lE are the only Managers of the Company.
3. That the undersigned has personal knowledge of the facts certified in this Certificate
and the Company has the power and authority to execute this Certificate.
4. That set forth below are the names and signatures of the Managers of the Company
which Managers individually have the authority, without the consent or approval of any other parry or
entity, to execute and de]iver on behalf of the Company, all other docinnents and instruments such
person may deem necessary or advisable:
Name Position ___ Sieaature
SCOTT I20BINS MANAGER
PHILIP Lk,VINE MANAGER
5. That attached hereto as Exhibit "A" is a true t copy of the Good Standing
Certificate of the Company from the State of Florida indicati th bood status of the Company,
6. That attached hereto as Exhibit "B" is a true, correct and complete copy of the
Operating Agreement (the "Operating Agreement"} of the Company as same may be amended.
RESOLU'[70N AND CER71F1CA'fE OF MANAGER- Bay Road Pa,-ciers, LLC
7. That attached hereto as Exhibit "C" is a true, correct and complete copy of the Articles
of Organization (the "Articles of Organization's of the Company certified by the Secretary of State of
Florida, and that there have been no amendments or modifications thereto except as attached hereto.
8. That the Members of the Company have authorized and directed SCOTT ROBINS
addJor PHILIP LEVINE individually and without the joinder of the other or any other parry, as
Manager of the Company, to execute and deliver any and all agreements, amendments, contracts,
Declarations of Condominium, leases, affidavits and/or other documents necessary or required in
connection with any property owned or leased by the Company, and shall have full power and
authority, without the consent or approval of any other party or entity, to execute and deliver on behalf
of the Company, all other documents and instreaments as it may deem necessazy or advisable to acquire
a fee and/or leasehold interest in and to certain property described in Exhibit "A" which is attached to
Exhibit G/D" attached hereto and made a part hereof {',he "Property', all on such temvs and conditions
as the Manager shall deem necessary or desizable.
9. That the performance by the Company and the execution and delivery of all such by the
Manager related thereto will not result in any:
(a) violation of the Articles of Organization or Operating Agreement of the Company;
(b} breach of or a default under any agreement Road of which the Company is a part; ;
or
(c) violation of any judiciat or administrative decree, writ, judgment or order to which
the Company or the Property are subject.
10. That there is no suit, proceeding or investigation pending or to, the best of the
undersigneds' imowledge, threatened, in any court or by or before any regulatory commission, board
or other administrative or governmental agency or arbitration body against the Company, or any
members of the Company, nor the Managers which question the validity or enforceability of or seek to
enjoin the performance either the execution or delivery by the Company of the Written Consent
attached hereto or the consummation by the Company of the transactions contemplated therein, or that
in any manner would either in any single case or in the aggregate; materially and adversely affect the
real property and/or leasehold interest being acquired by the Company.
[SIGNATURE PAGE FOLLOR'S]
RESOLUTION AND CERTIFICATE OF MPTJAG£R- tiny Road Pu:nes, L:.C
IN WITNESS Vl'HEREOF, the undersigned has caused this Certificate to be signed, sealed and
delivered as of the date first written above.
SCOTT ROBINS,'.VIAi\AGER
STATE OF FLORIDA )
COUNTY OF MIANII-DADS )
The foregoing instrument was acknowledged before me this 31st day of March, 2009, by
Scott Robins as Manager of BAY ROAD PARTNF-.RS; LLC, a Florida limited liability company, on
behalf of the company. He is personally known to me.
Sign Name:.-_--
Print Name: ~~t:.~S ~ ~1~~t`
My Commission Expires: NOTARY PUBLIC
STATE OF FLORIDA
Serial No. (none, if blank): [NOTARIAL SEALJ
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Rl;SOLLTION AND CERTIFICATE O~ MANAGER-Bay Road Pa:mrs, LLC
EXHIBIT LIST
Exhibit "A" Certificate of Good Standing -SAY ROAD PART'VERS,I.LC
Exhibii "B" Operating Agreement -BAY ROAD PARTNERS, LLC
Exhibit "C" Articles of Organization -BAY ROAD PARTNERS, LLC
Exhibit "D" R'ritten Consents of All !Members
(and containing Legal Description of Propezty-)
RFSOLUTtON AND CERTTF[CATE OF N.ANAGER- Bad Road Pannas, LLC
Exhibit "A"
Certiticate of Good Standing
BAY ROAD PARTNERS, LLC
RESOLUTION AND CERTIFICATE OF MANAGER-Bay Rozd Paimacs, LLC
Certificate of Status
1 certify from the records ofthis office that BAY ROAD PARTNERS, LLC, is a limited liahilih
company organi2ed under the laws of the State ofPlarida, filed electronically on March 24,
2009, effective March 18, 2009.
The document nwnber ofthis company is L09000028353
1 further certify that said company has paid all fees due this office through December 31, 2009,
and its status is naive.
I further certify that this is an electronically transmitted ce[tificate authorized by section 15.16,
Florida Statutes, and authenticated by the code noted below.
Authentication Code: 0403240923!2-600146956586#1
Given under my hand and the
Great Seat of the State of Florida
at Tallahassee, the Capital, this the
Twenty Fourth day of March, 2009
Exhibit °°B"
Operating Agreement
AAA' itOAl) PA12TiVERS, T,LC
BAY ROAD PART'~~RS, LLC
A Florida Limited Liability Company
THIS OPERATING AGRECMENT is dated as of the 18 day of March 2009 by and among PL-RDY
PARTl\'ERS, LLC, a Plorida limited liability company and 1849 PiJRDY PARTNERS, LLC, a Florida limited
liability company, and those other persons, if any, who from time to time become parties to or are otherwise
bound by this Agreement as provided herein.
PURDY PARTNERS, LLC, and 1849 PITRDY PARTNERS, LLC, dashing to form a limited liability
company for the purposes set forth in this Agreement, hereby agrees as follows:
ARTICLE 1
DEFL'~`ED TERMS
I.1 "Act" means the Florida Limited Liability Company Act, as amended from ame to time.
1.2 "Adjusted Capital Account Balance" means, with respect to each 4fember, such Member's Capital
Account balance maintained in accordance with this agreement, as of the end of the relevant fiscal year of the
Company, alter giving effect to the following adjustments:
(a) Credzt to such Capital Account of such Member's share of minimturt gain determined in
accotdattce with legulations Sections 1.704-2(g)(1) and 1.704-2(ix5); and
(b) Debit to such Capital Account of the items described in Regulations Section 1.704-
1(bx2)(iixdX4), (5) and (6).
The foregoing definition of "Adjusted Capital Account $alance" is intended [o comply with the provisions of
Regulations Sections 1.704-1(b)(2){ii)(d) and ].704-2, and shall be interpreted consistently therewith.
1.3 "Affiliate" means, with respect to any Person, any other person that, directly or indirectly,
controls, is under common control with, or is controlled by thaC Person. For purposes of this definition, "control"
(including, with correlative meaning, the terms "controlled by" and "under common control wilt"), as used with
respect to any Person, shall mean the possession; directly or indirectly, of the power to direct and cause the
direction of the management and policies of such Person; whether through the ownership of voting securities, by
contract or otherwise.
I.4 "P1~rcement" means this Operating Agreement of BAY ROAD PARTNERS, LLC, and alt
amendments thereto.
1.5 "Articles" means the Articles of Organization of BAY ROAR PARTR'F:RS, LLC, as amended
from time to time, as filed in accordance with the Act.
OPERA'?'tT~G AGREEMENT-Bay Road Partners, LLC (Manager Managed, Any Lawful Purpase)
As of March 18, 2009
OPERATING AOREEME_~"T
(Manager Managed)
1.6 "Genital Accoum" means, with respect to each Member, fire Capital Account maintained for such
Member in accordance with the following provisions:
(a) To each Member's Capital Account there shall be credited such Member's Capita] Contributions,
such Membe>s distributive share of Profits and the amount of any Company liabilities assumed by such Member
or which are secured by any property distributed to such Member by the Company.
(b) To each Member's Capital Account there shall be debited the amount of cash and the Gross Asset
Value of any property distributed to such Member pursuant to any provision of this Agreement, and such
Member's distributive share of Losses.
(c) In the event all or a portion of a Members Membership Interest is transferred in accordance with
the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the eMent it
relates to the transferred Membership Interest
(d) In determining the amount of any liability for purposes of the foregoing subparagraph (a), there
shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement relating to the maintenance of
Capiml Accounts are intended to comply with Regulations Sections 1.704-1(b) and 1.704-2, and shall 'oe
interpreted and applied in a manner consisunt with such Regulations. In the event the Manager shall reasonably
determine that it is prudent to modify the manner in w-hick the Capita] Accounts, or any debits or credits thereto,
are computed in order to comply with such Regulations, the Manager may make such modification; provided that
such modifcation is not likely to have a material effect on the amount distributed to any Member pursuant to
Article 10 hereof upon the liquidation of the Company.
1.7 "Genital Contributions" means the aggregate amount of cash and Crrnss Asset Value of property
(less the amount of indebtedness, if any, of such Member which is assumed by the Company and/or the amount of
indebtedness, if any, to which such property is subject, as of the date of contribution, without regard to the
provisions of Code Section 7701(8)) contributed by a Member to the capital of the Company.
1.8 "Cash Flow" moans, for any period, the amount by which (a) the gross cash receipts of the
Company from any source for such period (including, but not limited to, Capital Contributions, loans,
distributions received by the Company in respect of any stack, partnership interest or otrler equity interest owned
by the Company, and proceeds from the sale, financing, refinancing or other disposition of all or aoy portion of
the Company property), excee (b) the sum of (i) the aggregate cash disbursements for such period (including, but
not limited to, Company administrative costs, reimbursomonts paid to the Manager in respect of his day-to-day
management activities hereunder, principal and interest payable on Company debt and capital expenditures), and
(ii) amounts previously set aside as reserves as determined by the Manager in his discretion.
1.9 "C~de" means the Interne] Revenue Code of 1986, as amended (or any corresponding provision
of succeeding law}.
1.10 "Comnanv" means the limited liability company known as BAY ROAD PARTNERS, LLC, as
said Cemparry may from time to time be constituted.
1.11 "Consent" means the prior written consent or approval of a Person to do the act or thing for which
the consent or approval is solicited, or the act of granting such consent or approval as the context may require.
1.12 "~reeiation" means, for each fiscal year or other period, an amount eyual to the depreciation,
amortization or other cost recovery deduction allowable with respect to an asset for such year or other period,
except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at
the beginning of such year or other period, Depreciation shall be an amount which bears the same ratio to such
beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery
deduction for such year or other period bears to such beginnir.8 adjusted tax basis; rovide waver that if the
federal income tax depreciation, amortization or other cost recovery• deduction from such year or other period is
zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable
method selected by the Manager.
1.13 "Gross Asset Value" means: with respect to any asset; the assets adjusted basis for federal
income tax purposes, except as follows:
OPERA'1'1NG AGREEMENT-Bay Road Partners, LI.C (ManagW~ Managed, Any l.avrfi:l Purpose)
As o.' Marsh 18, 2009
(a) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the
Boss fair market value of such asset, as detennined by the contributing Member and the Managers;
(b) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross
fair market values, as reasonably determined by the Manager, as of the following times: (i} the acquisition of an
additional interest in the Company by any new or existing Member in exchange for more than a ~ m' i i
capital contribution; (ii) the distribution by the Company to a Member of moro than a de minimis amount of
Company assets, including money, as consideration for an interest in the Company; and (iii) the liquidation of the
Company within the meaning of Regulations Section 1.704-i(b}(2)(iixg); amvidtxl however, that adjustments
pursuant to the preceding clauses (i) and (ii) shall be made only if the Managet reasonably determines that such
adjustments are necessary or appropriate to reflect the relative ecgnomic interesfs of the Members in the
Company;
(c) The Gross Asset Value of any Company asset distributed to any Member shall be the gross fair
market value of such asset on the date of distribution; and
(d) The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any
adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only
to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to
Regulations Section 1.704-1(bx2xiv)(m) and the defnition of "Capital Account" herein.
if the Gross Asset Value of an asset has been detetntined or adjusted pursuant to any of the foregoing
subparagraphs (a}, (b} or (d) of this Section, such Gross Asset Value shall thereafter be adjusted by the
Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses.
1.14 "Manaeer" means the Person or Persons designated or appointed as Manager pursuant to this
Agreement, and any other Person who becomes a successor or additional Manager of the Company pursuant to
this Agreement. There tray be moro than one Manager. The terms "Manager" shall mean any Manager.
1.1 S ember" means any Person who is designated as a Member nn Exhibit "A" to this Agreement at
the time of reference $lereto and who is acting in such Person's capacity as a Member of the Company and any
other Persons who from time to time become parties to or are otherwise bound by this Agreement as Members.
1.16 "Membershtip Interest" means the entire ownership interest (which may be expressed as a
percentage) of a Member in the Company at aay particular time, including the right of such Member to any and
all benefits to which a Member may be entitled pursuant to this Agreement and under the Act, together with all
obligations of such Member to comply with the terms and provisions of this Agreement and the Act
1.17 "Notice" means a writing, comaining the information required by this Agreement to be
communicated to any Person, and given or delivered in accordance with the requirements of this Agreement.
1.18 "Person" means any iadividual, partnership, limited liability company, corporation, trust, estate or
other entity.
1.19 "Profits" and "Losses" means, for each fiscal year or other period, an amount equal to the
Company's taxable income or loss for such year or period, determined in accordance with Code Section 703(x)
(for this purpose, all items of income, gain, loss or deduction requirod to be stated separately pursuant to Code
Section 703(x}(1) shall be included in taxable income or loss), with the following adjustments:
(a} Any income of the Company that is exempt from federal income tax and not otherwise taken into
account in computing Profits or bosses pursuant to this definition shall be added to such taxable income or loss;
(b) Any expenditures of the Company described in Code Section 705(a)(2)(B), or treated as Code
Section 705(a)(2)(Bl expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken
into account in computing Profits or Losses pursuant to this definition shall be subtractal from such taxable
income or loss;
(c) In the event the Gross Asset Value of any Company asset is adjusted pursuam to subparagraph (b)
or (d} of Section 1.73 hereof, the amount of such adjustment shall be taken into account as gain or loss from the
disposition of such asset for purposes of computing Profits er Losses;
OPF.RA'I7NG AGREEI~NT•Bay Road Partner, LLC (.Manager Managed, Any Lawful Punosc)
As of March 18; 2009
(d) Gain or loss resulting from any disposition of properiy with respcet to which gain or loss is
recognize! for federal income tax purposes shall be computed by roference to the Gross Asset Value of the
property disposed of notwithstanding that the adjusted tax basis of such property difrers from its Gross Asset
Value; and
(e) Depreciation shall be taken into account for such fiscal year or other period in computing such
taxable income or loss, in lieu of the depreciation, amortization and other cost recovery deductions that otherwise
may be taken inW ae;count in the absence of Section 1.12.
1.20 "Purohaze OntiQp,~v_ent" means any one or more of the events or conditions described in Section
I0.1(s).
1.21 "Regulations" means the United States Treasury Regulations, az amended from time to time.
ARTICLE 2
THE COMPANY
2.1 Formation and Name. The Members agree to the formation of a limited liability company under
the name BAY ROAD PAR'I^_VLrRS, LLC pursuant to the provisions of the Act and this A~'eorncnt and have
caused the Articles to be prepared, executed and filed with the Secretary of State of the State of Florida.
2.2 Purpose. The Company has bean organized to engage in the transaction of any and all lawful
businesses or activities which a limited liability company may carry on under the Act and the laws of any other
jurisdiction in which the Company is so engaged.
2.3 Principal and Reeistered Place of Business. The principal and registered place of businoss of the
Company shall be 230 5's Stree; Miami Beach, FL 33139, or such other place or places az the Members shall
from time to time select by I3otice to the Manager.
2.4 Registered Anent. The Company's registered agent shall be the Person designated by the
Manager from time to time to serve in that capacity in accordance with the terms o£ the Act. The initial Registered
Agent is Charles Ramer, P.A., 214 Brazilian Avenue, Suite 200: Palm Beach, FL 33480.
2.5 _4stalification in Additional Jurisdictions. The Manager is authorized to qualify 1ha Company to
do business in any jurisdiction in which such qualification is deemed by the Manager az necessary or desirable in
carrying out the Company's business, and pursuant thereto, to appoint a registered agent and to establish a
registered office in such jnrisdiction, and to cause the Company to operate in such jurisdiction under another
name selected by the Manager, in compliance wifh the assumed name statute of such jurisdiction, if the Company
is not allowed under the laws of such jurisdiction to operate under the name BAY ROAD PARTNERS, LLC.
ARTICLE 3
CO\'I'RIBUTIOVS BX THE MEMBERS
3. ] Initial Ca~~ita1 0° the Companv. Contemporaneously with the execution of this Agreement, each
of the Members shall make an initial Capital Contribution to the Company of the cash and/or property set forth on
Exhibit "A" hereto. In exchange therefor, each Member shall receive a Membership Interest eyual to the
percentage of the aggregate Membership Interests ofthe Company set fordo on Exhibit "A" hereto.
3.2 No Additional Capital Contributions. No Member shall be required to make an additional Capital
Contribution to the Company.
3.3 Limitation on Rrithdrawal of Capital Except az expressly provided in this Agreement, no
Member (a) shall have the right to withdraw or receive any return on such Member's contributions or a claim to
any Company capital prior to termination of the Company pursuant to Article 10 hereof (b) shall have any right
to demand and receive property other than cash in return for such Member's contributions, or (c) shall be liable to
any other Member for the tetum of such Member's contributions to the Company, or any portion thereof (except
as otherwise expressly required under the Act), it bentg expressly understood that such rctum shell be made solely
4
OPERATNG AGREF,MEIJT-Bay Road Partners, LLC (Manager vtanaged, Any LawfuS P,uposc)
As of March S 8, 2009
from Company assets.
ARTICLE 4
4.1 Capital Accounts. The Company shall establish and maintain a Capita( Account for each
Member.
4.2 Allocation of Profits and Losses.
(a) Pr r .Profits of the Company shall be allocated among the Members as follows:
(i) First, to each Member ~ro rata and in proportion to the cumulative Losses, if any, allocated to
such Member pursuant to Section 4.2(bxii) hereof until the cumulative Profits allocated to such tifembcr under
this Section 4.2(axi) equals the cumulative Losses allocated to such Member under Section 4.2(b)(ii) hereof;
(ii) Then, the balance, if any, to the Members in accordance with their respective Membership
Interests.
(b) Losses. Losses of the Company shall be allocated to the Members as follows:
(i) First, to the Members in accordance with their respective Membership Interests; provided,
however, that no Member shall be allocated Losses in excess of his or her Adjusted Capital Account Balance,
determined immediately prior to the allocation provided for in this Section 4.2(b)(i); and
(ii) Then, to the extent any Losses allocated to a Member pursuant to Section 4.2(bxi) would, but for
the proviso contained therein, exceed a Member's Adjusted Capita! Account Balance, such Losses shall be
allocated first to the other Members in proportion to, and to the extent of, their respective AdjusTed Capital
Account Balances, and then to any Member guaranteeing debt of the Company, making loans to the Company or
otherwise having liability for Company debt, in proportion to the debt guarantttd, the loans made ox the amount
of such liability.
4.3 Reallocation by Manager. The allocation of Profits and Losses )n Section 4.2 is intended to have
substantial economic effect within the meaning of Regulations Section 1.704-1(b)(2) or be in accordance with the
Members' interests in the Company within the meaning of Regulations Section 1.704-1(bx4}. If subsequent
events (including, but not limited to, nonreoourse borrowing by the Company or a loan by a Member to the
Company) cause, in the reasonable opinion of the Manager, the Sectinn 4.2 allocations fo have neither substantial
economic effect nor be in accordance with the Members' interest/ in the Company, the Manager may (a) allocate
the income, gain, loss, deduction and credit of the Company so that such allocations are in accordance with the
Members' Membership Interests; or (b) make such other modifications to this Agreement (including, but not
timited to, the addition of minimum gain chargeback, qualified income offset and other special allocation
provisions specified in Regulafions Sections I904.2 or ].704-1(b)) that are necessary in the reasonable opinion of
the Manager to cause such allocations to have substantial economic effect within the meaning of Regulations
Section I.704-1(b){2).
4.4 Tax Allocations. Except as otherwise provided in this Ageement, all items of income, gain, loss
and deduction shall be allocated, for federal and state income tax purposes, among the Members in the same
manner as the corresponding items of income, gain, loss and deduction are allocated for purposes of maintaining
the Capital Account of each of the Members.
4.5 Section 704{c) Allocations. In accordance with Code Section 704(c) and the Regulations
thereunder, income, gain, loss and deduction with respect to any property contributed to the capital of the
Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation
between the adjusted basis of such property to the Company for federal income tax purposes and its initial Gross
Asset Value, including, but not timited to, special aliccations to a contributing Member that are required under
Code Section 704(c} to be made upon distribution of such property to any of the noncontributing Members. In the
event the Gross Asset Value of any property of the Company is adjusted pursuant to subparagraph (b) of Section
1.13, subsequent allocations of income, gain, loss and deduction. with respect to such property shall take account
of any variation between the adjusted basis of such property for federal income tax purposes and its Gross Asset
Value in the same manner as under Code Section 704(c) and the Regulations thereunder. Any elections or other
decisions relating to such allocations shall be made by the Manager in any manner that reasonably reflects the
OPERATING AGREEMENT-Bay Rasd Partners, LLC (Maaagtr Maned, Any Lawfiil FunoSe)
As of March 18, 2G09
purpose and intention of this Agreement. Allocations pursuant to this Section 4.5 are solely for purposes of
federal, slate and local taxes and shall not affect, or in any way be taken into account in computing, a Member's
Capital Account or share of Profits or Losses, other items or distributions pursuanrt fo any provision of this
Agreement.
4.6 mounts and Timing of I?istribution of Cash Flow. If the Manager determines in his discretion
that Cash Flow (or any portion thereof? is available for distrrbution and that such Cash Flow (or portion thereof)
should be distributed to the Members, such Cash Flow (or portion thereofl shall be distributed by the Company to
the Members in accordance with their respective Membership Interests.
4.7 istributions on Liquidation. Notwithstanding anything to the contrary in this Article 4, if a sale,
refinancing or other disposition is incident to or results in the liquidation of the Company, any Cash Plow realized
therefrom shall be allocated and distributed in accordance with the terms of.4rticte 10.
AR'ITCLE 5
MANAGEMENT
5.1 Initial Mane egers. The management of the Company's business shall be vested in two Co-
Managers unless a greater number of Managers shall be fixed from time to time by action of the Members. The
initial Managers shall be SCOTT I20SINS and PHILIP LEVLIVE. No Manager shall take any action in
connectiat with the Company without the unanimous written consent of the Members or pursuant to a signed
direction letter from all Members. Any Martager not designated in this Agreement shall be appointed by the
affirmative vote of the Members. A Manager shelf hold office until his death, removal, or resignation. Any
Manager who is also a Member may interohangediy use the title "Manager" or "Managing Member".
5.2 Manaeement Authority.
(a) P~tcept as otherwise authorized in this Agreement, aN managemern decisions o£ the Company
(including, without limitation, any actions or votes taken by or on behalf of the Company in respect of any egmty
interest held by the Company in another entity) shall be made by the Managers, who shall be responsible for the
conduc4 of the business of the Company, subject to the provisions of this Agreement and the Act. The Managers
shall have all of the rights, powers, duties and obligations of managers u provided in the Act, and as otherwise
providod by law, and any action taken by the Managers, not otherwise in violation of the Act or this Agreement,
shall constitute the act of and serve to bind the Company. As used in this Agreement, the term "Manager" shall
mean each singular Manager and the plural Co _~Ianagers, as logically applicable. The signatwe of only one
Manager shall be sufficient to bind the Company, and each Manager may take any action w9thout the joint
approval of the other Manager, provided that the Manager shall not act without the consent of the Members.
(b) Without in any manner limiting the grant of authority to the Manager pursuant to Section 5.2(s),
except as otherwise provided in this Agreement, the Manager shat] have the broadest possible authority to manage
the business and affairs of the Company, including, without limitation, the power and authority to perform any
and alt of the following on behalf of the Company:
(i) To acquire property from any Person (whother or not such Person is affiliated or wnnected with
the Manager or any Member};
(ii) To borrow money for the Company from banks, other lending institutions, Memcers or their
Affiliates; all on such terms as the Manager determines, and in connection there+vith, to hypothecate, grant
security interests in and otherwise encumber the assets of the Company to repay such borrowed sums:
(iii) To purchase liability and other insurance to protect the Company's property and business;
(iv) To hold and own and/or lease real and personal property in the rtame of the Company;
(v) To unrest Company funds in any investment determined appropriate by the Manager;
(vi) To sell or otherwise dispose of all or any portion of any property of the Comparry;
(vii) To authorize any employee or agent of the Company to execute on behalf of the Company all
instruments and documents, including; wrtltout limitation, checks; drafts, notes and other negotiable instruments,
OPERATING AGREEMEN--Bay Road Partners, LL(: ;Manager Managed, Any Lawful Pwyose)
.4s of March 18, 2009
mortgages or doeds of trusts, financing statements and docwnents providing for the acquisition, disposition or
mortgage of property of the Company;
(viii) To employ accountants, legal counsel, managing agenu or other experts to perform services for
the Company (whether or not affiliated or connected w7th the Manager or a Member);
(ix) To make any and all determinations with respect to the manner in which the Company votes any
stock ittterest, partnership interest or other equity interest held by the Company, on any matter on which the
Company possesses a right to vote; and
(x) To do and perform all other eats as may be necessary or appropriate to the conduct of the
Company's business.
(c} The Manager shall only receive such compensation from the Company in consideration for
performing their managemem duties and responsibilities hereunder as the Members may aoprovc from time to
time in writing. \otwithstanding the foregoing, any and all reasonable expenses incurred by the Manager in
connection with the operation or afFairs of the Company shall be reimbursed by the Company as appropriate.
(d) Only the Manager and the officers and agents of the Company authorized by the Manager shall
have the authority to bind the Company. The Manager is an agent of the Company for the purpose of its business,
and the act of the Manager, including the execution in the Company's name of any instrument for appazently
carrying on in the usual way the business of the Company, binds the Company, unless such act is in contravention
of the Articles or this Agreement or any agreement between the Manager and the Company or tmless the Manager
so acting otherwise lacks the authority to act for the Company and the Person with whom he is dealing has
knowledge of the fact that he has no such authority. Any Manager acting without the requisite authority shall be
liable for any damages or liabilities arising with respect to such action unless the Maaager can show that he
reasonably believed after due inquiry that such action was authorized.
5.3 Limitation on Liability. The Manager shall perform his duties as the Manager in good faith; in a
manner he reasonabty believes to be in the best inrterest of the Company and the Members, and with such care as
as ordinarily prudent person in a like position would use under similar ciroumstances. A person who so performs
his duties shall not have any liability by reason of being or having been a Manager of the Company. The
Manager shall got be liable, responsible or accountable in damages or otherwise to the Company or any Member
for any action taken or failure to act on behalf of the Company within the s~pe of authority confe:-red on the
Manager under this Agreement or the Act, except where the claim at issue is based on the fraud, gross negligence
or bad faith of the Manager.
5.4 Indemnification by ComQany. The Company shall indemnify the Manager for all costs, losses,
liabilities and damages paid or incurred by such Person in connection with the business of the Company to the
fullest extent provided or permitted by the Ad and the other laws of the State of Florida
S.S Removal of the Manecer. The Manager may be removed with or without cause by vote of the
Members, but such removal shall be without prejudice to any contract rights the Manager may have. Any
removal of the Manager shall become effective on such date as may be specified by the Members voting in favor
thereof. Should the Manager be removed wha is also a Member, such Member will continue to participate in the
Company as a Member and enjoy the burdens and benefits of his Membership ]merest.
S.6 Resig_ttation of the Manager. The Manager may resign at any time by giving Notice to the
Members. The resignation of the Manager shalt take effect upon receipt of such Notice or at such later date as
specifed in such Notice. The acceptance of ttte resignation of the Manager shalt not be necessary to make such
resignation effective. The resignation of the Manager who is also a Member shall not affect the Managers rights
as a Member and shall not constitute a withdrawal of the Member.
5.7 A.~pointment of New Manager. If a vacancy in the office of Manager occurs, the Members shall
designate a Person to serve as the Manager to fill such vacancy. In the event the Members fail to appoinE a Person
to serve as a Manager to fill such vacancy, management of the Company shall be vested in the Members.
GPEILATQJG AGREEMENT-Bay Road Pcme:s, LLC (M~nager Managed, AnY Lawtll Purpose)
As o`March t 8, 2095
ARTICLE 6
MEMBERS
6.1 Powers of Members. The powers of the Members shall include but not be limited to:
(a} the right and power to elect and remove the N.anager as provided in Article 5;
(b) the power to amend the Articles and this Agreement provided that such amendment complies
with the Act;
(c) the power to approve or disapprove the issuance of additional Membership Jnterests for sale to
then existing Members or new subscribers; and
(d) the power to dissolve the Company by the approval of all of the Members.
6.2 Partifion. While the Company remains in effect or is continued, each Member waives its rights to
have any Company property partitioned, or to file a complaint or to institute any suit, action or proceeding at law
or in equity to have any Company property partitioned, and each Member, on behalf of itself, its successors and
its assigns hereby waives any such right.
6.3 Resi og•ation. A Member may not withdraw or resign from the Company.
6.4 ,9srthori_ry. Except as expressly sudtoriud in this Agreement, no Member shall take any action as
a Member to bind the Company, and each Member shall indemnify the Company for any costs or damages
incurred by the Company as the result of the unauthorized actior. of such Member.
6.5 Maiori Vote. An aff~rmaiive vote or consent by or on behalf of the Members possessing more
than fifty percent (50%) of the Membership Interests shall be required to approve or disapprove any matter on
which the Members are entitled or required to decide, except as otherwise provided in this Agreement or the Act..
Anything contained herein to the contrary notwithstanding, in all events the following ("Major
Decisions") shall requae such affirmative vote in writing by or on behalf of the Members possessing more than
fifty percent (50%) of the Membership Interests: (i) Any agreement to sell, lease or mortgage or otherwise lien
any real or personal property owned by the Company; (ii) Any change to the Company's purpose or badness as
set forth herein; and (iii) Any admission of a new Member to the Company, other than as otherwise expressly
permitted in this Agreement.
A113T1;CLE ?
7.l Transactions Between a Member or Manager and the Company. Except as otherwise Gmiied by
applicable law, any Member or Manager may, bu# shall not be obligated to, lend money to the Company, act as
surety for the Company and transact other business with the Company, upon the requisite vote of the Members,
and shall have the same rights and obligations when transacting business with the Company as a person or entity
who is not a Member of bfanager.
?.2 $uSineSS Pprsui~o , vLlem elm aitd Manager. Except as otherwise provided in any other written
agreement by which a Member or Manager may be bound, the Manager and any Member may engage in other
business activities as permitted by this Agreement and shall be obligated by reason of this Agreement to devote
only as much of his time to the Company's business as shalt be reasonably required in light of the Company's
business and objectives and the responsibilities undertaken or assigned to the Manager and/or Member. Except as
otherwise provided in this Agreement or in any other written agreement by which any Merober or Manager may
be bound, this Agreement shall not preclude or limit in any respect the right of any Member or Manager to engage
in or invest in any business activity of any nature or description, whether or not competitive with the business of
the Company. Any such permitted activity may be engaged in independently or with other Members or the
Manager. No Member shall have the right, by virtue of the Articles, this Agreement or the relationship created
hereby, to any interest in such other permitted ventures or activities or to the income or proceeds derived
therefrom. Except as otherwise provided in this agreement or in any other written agreement by which any
Member or Manager may be bound, the pursuit of such permitted venturos shall not be deemed wrongful or
OPERATING AGREEMENT-Ray Road Parmcs, LLC (Manager Managed, Any Lawfal Purpose)
As of March [ 8, 7A09
improper and any Member or Manager shall have the right to participate in or to recommend to others any
investment opportunity.
7.3 Reimbursement The Company shall reimburse the Members and Manager for all incremental
out-of-pocket expenses reasonably incurred and paid by any of iltem in the organisation and operation of the
Company, and such other expenses as may be authorized by the Manager or the Members, incurred by a Manager
or Member in the conduct of the Company's business. Such expenses shall not include any expenses incurred in
connection with a Member`s exercise of its rights as a Member apart from the authorized conduct of the
Company's business on its behalf. Such reimbursements shall be treated as expenses of the Company and shall
not be deemed to constitute distributions to any Member of profit, loss or capital of the Company.
7.4 Execution of Contracts. 'Che Members may authorize the Manager, officer, or agent to enter into
arty contract or execute and deliver any instrument in the name of and on behalf of the Company, mid such
authority may be general or confined to specific instances.
7S Votine Securities Held by the Companv. Unless otherwise ordered by Members, the Manager
shall have full power and authority on behalf of the Company to attend, act, and vote at any meetings of security
holders of corporations in which the Company may hold securhies, and at such meetings or otherwise shall
possess and exercise any and ail rights and powers incident to the ownership of such securities. The power and
authority m attend, act, and vote at meetings shall include the power and authority to consent, on behalf of the
Company, with respect to securities of other corporations held by the Company.
ARTICLE 8
FISCAL PEAR: BOOKS AND RECORDS: BANK ACCOUN'T'S
8.1 Bank Accounts. The funds of the Company shall be deposited in such federally insured bank
account or accounts or other financial intermediary as the Manager in his discretion determine are required, and
the Manager shall arrartge for the appropriate conduct of such accounts.
82 Books and Records.
(a) Tltere shall he kept and maintained full and accurate boolw respecting the business of the
Company at the Company's principal place of business or such other location as the Manager may determine
showing all receipts and expenditures, assets and liabilities, profits, losses and distributions, and all outer records
reasonably necessary or appropriate for recording the Company's business affairs.
(b) The books of the Company shall be kept on the method of accounting determined by the Manager
and shall show at all times each and every item of income and expense.
(c) Each Member shall have the right at all reasonable times, and upon reasonable advance notice,
during usual business hours to audit, examine and/or make copies of or extracts from the books of account of the
Company. Such right may be exercised through any agent, employee or independent public accountant
designated by such Member. Each Member shall bear all expanses incurred in any examinafion made for such
Member's account.
8.3 Fiscal Year. The fiscal year of the Company shall be the calendar year.
8.4 Tax Matters Partner. Pursuant to Code Section 6231;the Person designated by the Manager from
time to time shall act as the Tax Matters Partner of the Company. The Tax Matters Partner shall, within five days
after receipt thereof, forward to each Member a photocopy of any notices relating to the Company received from
the lntemal Revenue Service or outer revenue authority.
8.5 Tax lietums. In addition to the requirements of Section 82, tax serums of the Company shall be
prepared by the Person sale: tad by the Manager by no later than Apri[ 7 5 of each year for the preceding year.
ARTICLE 9
TRANSFERS
OPERATING AGREBMETT-Bay Road Pannus, LLC (Manager Managed, Any Lawful Parpose)
As of March 1 B, 2009
9.7 General Provisions. Igo Member shall, directly or indveclly, voluntarily or involuntarily, sell,
assign, transfer, pledge; hypothecate, encumber or otherwise dispose of the whole or any part of his or her
Membership Interest in the Company, except with the Consent of the Members, the granting or denial of which
shall be in the sole and absolute discretion of the Members.
9.2 Conditions for Becoming Substituted Member. Any sale, assignment, transfer, giR, bequest,
encumbranco or other disposition of a Member's Membership Interest in whole or in part, whether pursuant to the
provisions of this Article 9 or otherwise, shall be affective solely to give the transferee of such interest the right to
receive allocations of profits, losses and distributions otherwise allocable to the transferred Membership Interest
pursuant to this Agreement. It shall not give such t~ansferce the right to become a substituted Member unless the
following requirements are satisfied:
(a) The Manager shall have received such instruments of assignment executed by both the assignor
Member and the transferee in form and substance satisfactory to the Members, and such executed and
acknowledged instruments as the Members shalt dcem necessary or desirable to effect such substitution and
confirm the agreement of the transferee to be bound by the terms and provisions of this Agreement.
(b) The Members shall have given their Consent to the assignment, the granting or denial of which
shall be in the sole and absolute discretion of the Members.
(c) The transferee shall pay or agree to pay all reasonable legal and other fees and expenses in
connection with such substitution as the Members may determine,
If the Cortsent of the Members is granted pursuant to the preceding provisions of this Section 9.2, the admission
of the transferee as a substituted Member shall be cffcetive on the day of such Consent. Any person admitted
pursuant to this Section 9.2 as a substituted Member shall be subject to and bound by all the provisions of this
Agreement as if originally a party to this Agreement.
93 Liability of Former Member. If a transfer of a Member's Membership Interest in the Company
occurs in compliance with the provisions of this Article 9, and if the transferee of such interest becomes a
substituted Member pursuant to Section 9.2, the former Member shall be relieved of ail obligations under this
Agreement (except. for any obligations arising prior to the date of such aansfer) associated with the transferred
Membership Interest, and this Agreement shall have no further force and effect as to such former Member with
respect to the transfeaed Membership Interest.
OPFdLATING AGREEMENT-Bay Rost Partners, LLC (tvtanag:r Managed, Arty Lawful Puryuse)
.4s of March I8, 2009
9.5 Purchase Option. Upon the occurrence of a Purchase Option Event affecting a Member (the
"Transferring Member) and at any time within 90 days after the Members receive actual notice of such Purchase
Option Event (the "Option Period"}, the other Members (the "Remaining Members') shall have the right and
option to purchase all (but not less than all) of the Membership interest of the Transferring Member or such
Trartsfemng Member's purported successor in interest for the pace and +,pon the other terms and conditions
provided in this Section 9.5. The Remaining Members may e]ect to purchase all (but not less than all) of the
Membership Interest of the Transferring Member by giving Notice of such election to the Transferring Member or
10
such Transferring Member s purported transferee before the expiration of the Option Period. The purchase option
for each Remaining Member who axeroisec such option shall be for the purchase oi'a portior. of the Membership
Interest of the Transforring Member multiplied by a fraction, the numerator of which is the Membership Interest
of the Remaining Member exen:ising the Purchase Option artd the denominator of which is the aggregate
Membership Interest of all Remaining Members whp have exorcised the Purchase Option. The purchase price for
the Membership Interest purchased from the Transferring Member shall be the (a) the Adjusted Capita! Account
Balance represented by such Membership Interest or (b) the fair market value of such Membership Interest (and
an MAI appraisal shall be made of any assets of the Company in determining such fair market value).
9.6 Related Party Transfers. Notwithstauding Section 9.1, the Members may at any time, without
Consent and without compliance with the requirements of Section 9.4 or Section 9.5, assign and reassign his or
her or their Membership lnterest in whole or in part to: (a) members of their immediate family or the immediate
family of the members of the Members (which shall include spouses, children, grandchildren, parents, nieces,
nephews, uncles and aunts); or (b) any entity controlled by or for the benefit of any such persons. Subject to
Section 9.5, a Member's interest in the Company, if such Member is a natural person, shall also automatically pass
to his or her estate (and heirs or legal representative) upon his or her death, bankruptcy or insolvency.
9 ? Special Provision for Husband and Wife Members. Intemiorally Deleted.
ARTICLE 10
TEILVI: DISSOLUTION AND TER1VInVATION
10.1 Dissolution in Certain Events.
(a) The Company shall be dissolved and terminated upon the occurrence of any one or more of the
following events, unless the remaining Members, by vote or Consent of the remaining Members holding a
majority of the remaining Membership Interests and a majority of the aggregate Adjustod Capital Account
Balance for such remaining Members, elect, within ninety (90) days after the occurrence of such event, to
continue the Company and the C;ompany's business:
(i) If a Member shall file a voluntary petition in bankruptc}• or an order for relief under the federal
bankruptcy laws shall be entered with respect to such Member, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself, himself
or herself under any present or future federal bankruptcy act or any other present or future applicable federal, state
or other statute or law relating to bankruptcy, insolvency or other relief for debtors, or shall seek or consent to or
acquiesce to (which includes, but is not limited to, the failure to file a petition or motion to vacate or discharge
any order, judgment or decree providing for such appointment within ten (10) days after the appointment) the
appointment of arty trustee, receiver, conservator or liquidator of such Member or aU or any substantial parC of its,
his or her properties or its, his or her Membership Interest; or
(ii) If a court of competent jurisdiction shall enter an order, judgment or decree approving a petition
filed against the Member seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future federal, state or other statute or law relating to bankruptcy,
insolvency or other relief for debtors, and such Member acquiesces to {which includes, but is not limited to, the
failure to file a petition or motion to vacate or discharge any order, judgment or docree providing for such
appointment within ten (10) days after the entry of the order, judgment or decree) the entry of such order,
judgment or decree, or such order, judgment or decree shall remain unvacated and unstayed for ninety (90) days
(whether or not consecutive) from the date of entry thereof, or any trustee, receiver, conservator or liquidator of
such Member or all or any substantial part of its, his or her property or its; his or her Membership Interest in the
Company shall be appointed without the consent or acquiescence of said Member and such appointment shall
remain unvacated and unstayed for sixty (60) days (whether or not consecutive); or
(iii) The death, incompetency, retirement, resignation, expulsion, dissolution or bankruptcy of a
Member, or any other event which terminates the membership of a Member in the Company, unless within Winery
(90) days after such event the remaining Members agree to continuo the business of the Company with the
representative of the withdrawing Member or with a new Member admitted to the Company; or
(iv) R a Member who is not a natural person shall take any action to liquidate or dissolve or wind up
its affairs or is a parry to a merger or consolidation other than a merger or consolidation with an Affiliate or a
merger o: consolidation in whic]•, the Member is the surviving or resulting corporation.
OPERATR~G AGRL• EMETT-3ay Road Partners,l.LC (Manager Mana@ed. Any iAwful P~.~rpose)
As of March [ 8, 2609
(b) If an evern listed in Section 10.](a) occurs but the remaining Member by vote or Consent of a
majority of their Membership Interests elect, within ninety (90) days after the occurrence of such event, to
continue the Company, (i) the Company shall not ba dissolved and tprninated, (ii) the Company and its business
shall be continued under and pursuant to this Agreement, and (iii) any Person as to which an event described in
Section 10.1(a) occurred shall cease to be a Member and such former Member shall hold its, his or her
Membership Interest with the same rights as such former Member possessed before the event, except drat such
former Member shall possess no voting rights or rights to participate in the management of the Company's
business and affairs under this Agreement.
10.2 Dissolution at End of Term. The Company shall also dissolve if the term of the Company shall
have expired and not all of the Members are wilting to extend the term.
] 0.3 Procedures Uoor. Dissolution.
(a) l;pon dissolution of the Company, the Company shalt be terminated and the Manager, or if there
is no Manager, the Members, shall liquidate the assets of the Company. Tha proceeds of liquidation shall be
applied and distributed in the following order of priority:
{i) First, to the payment of the debts and liabilities of the Company {other than any loans or advances
made by any of the Members to the Company) and the expenses of liquidation;
(ii) Second, to the creation of any reserves which the Manager or liquidating Members dcem
reasonably necessary for the payment of any contingent or wtforeseen liabilities or obligations of the Company or
Members (to the extent the Company is liable therefor) arising out of or in connectior. with the business and
operation of the Company;
(iii) Thud, to the payment of any loans or advances made by any of the Members to the Company;
and
(iv) Thereafter, to the Members in the manner, and in the priorities set forth itl Section 4.2; o~ide~.d
howev ,that for disKrrbufions pursuant to a plan of liquidation, distributions shall be made pursuant to Section
4.2 to the Members in proportion to they positive Capital Account balances as deternriaed after taking into
account adjustment of such Capital Accounts for any gain or loss realized or to be realized on any property sold or
disposed of as part of the liquidarion, any gain which would be realized if any property distributed in kmd had
bcen sold at its fair market value by the Company and any other adjustments required by Treasury Regulations
Section 1.704-1(bx2xiixb)(2).
(b) A reasonable time shall be allowed for the orderly liquidation of the assets of the Company and
the discharge of liabilities. During the period beginning with the dissolution of the Company and ending wtfh its
liquidation and termination of this Agreement pursuant to this Section 103, the business affairs of the Company
shall be conducted by the Manager or, if there is no Manager, try the Members. During such period, the business
and affairs o£the Company shall be conducted so as to preserve the assets of the Company and maintain the status
which existed immediately prior to such termination.
10.4 Tam. The Company shall be in effect perpetually unless sooner dissolved and liquidated in
accordance with the provisions hereof. All provisions of this Agreement relating to dissolution and liquidation
shall be cumulative; the exercise or use of one of the provisions hereof shall not preclude the exercise or use of
any other provisions.
ART1C 11
1-uscl us
] 1.1 liindine Agreement. Subjec*. to the restrictions on transfers and encumbrances set forth herein,
this Agreement shall inure to the benefit of and be binding upon the Members and their respective heirs,
executors, legal representatives, successors and assigns. Whenever m this instrument a reference to any party or
Member is made, sr:ch reference sfiall be deemed to include a reference to the heirs, executors, legal
representatives, successors and assigns of each Member.
] 1:2 Counteparts. This Agreemai~ may be executed in several counterparts, each of which shall be
deemed an original, but alt of which shall constitute one and the same instrument. In addition, this Agreement
may contain more than one counterpart of the signature pages and this Agreement may be executed by the
affnting of the signatures of each of the Members to one of such counterpart signature pages; elf of such signature
12
OPERATING AGREEMENT•Ray Road Penners, LLC (Manager Managed, Any Lawfuk Pun, ose?
As of Mach 18, 2009
pages shall be read as though, and this Agreement shall have the same force and effect as though, all of the
signers had signed a single signature page.
11.3 Effect of Consent or Waiver. No consent or waiver, express or implied, by any Member to or of
any breach or default by any other Member in the performance by such other Member of its, his or her obligations
hereunder shall be deemed or construed to be a consent or waiver io or of any other breach or default by such
other Member in the performance by such other Member of the same or any other obligations of such Member
hereunder. Failure on the part of any Member to object to or complain of any act or failure to acL of any of the
other Members or to declare any of the other Members in default, regardless of how long such failure continues,
shall not constitute a waiver by any such Member of its, his or her rights hereunder.
11.4 Ear forceabili if any provision of this Agreement or the application thereof to any Person or
circumstances shall be invalid or unenforceable to any extent, the remainder of this Agrcement and the application
of such provisions to other Persons or circumstances shag not be affected thereby and shall be enforced to the
greatest extent permitted by law.
11.5 Entire Aereement. This Agreement, unless subsequently amended, contains the final and entire
Agreement among the parties hereto, but only with respect to the subject matter addressed herein, and they shall
not be bound by any terms, conditions, smtements or representations, oral or written, not herein contained.
11.6 Governing Law. This Agreement is made and shall be construed under and in accordance w9[h
the internal laws of the State of Florida. Venue and Jurisdiction for any matter between the Members shall be in
Miami-Dade County, Florida.
11.7 Liability Among Members. No Member shall be liable to any other Member or to the Manager
by reason of its, his or her actions or omissions in connection with the Company, unless otherwise provided in this
Agreement, and except for acts or omissions or alleged acts or omissions that were performed or omitted
fraudulently or in bad faith or as a result of gross negligence or willful misconduct.
11.8 No Parhtership 1nttnded for Nontax Purposes. The Members have formed the Company under
the Act and expressly do not intend hereby to form a partnership under the laws of any jurisdiction. The Members
do not intend to be parmers one to another; or ptrmrers as to any third party. To the extent any Member, by word
or action, represents to another Person that any other Member is a partner or that the Company is a partnership;
the Member making such wrongful representation shall be liable to any other Member who incurs personal
liability by reason of such moron l representation.
11.9 Amendment. This Agreement shall not be modified except upon the unanimous vote of all
Members.
11.10 Koti Any '`Iotice to the Manager or Members required under the lertnS of this Agreement
shall be sent to their respective addresses, as set forth on the register of Members maintained by the Manager. All
Notices and copies thereof Providod for herein shall be hand delivered with receipt therefor, sent by overnight
courier ser~~ce with receipt therefor, or serrt by certified of registered mail, return receipt requested, and first-class
postage prepaid. Changes of address may be given to the Company, the Manager, and tlx Members by Notice
given m accordance with the terms of Phis Section. Time periods shall commence on the date that such Notice is
delivered or attempted to be delivered if receipt thereof is refused by the recipient. Any Notice that is required to
be given within a stated penod of time shall be considered timety made or given if delivered or postmarked before
11:59 p•m., local time, on the last day of such period.
] 1.11 References. References herein to the singulaz shall include the plural and to the plural shall
include the singular, and references to one gender shall include the others, except where the same shall not be
appropriate.
11.12 Disclosure and Waiver of Conflicts. In connection with the preparation of this Operating
Agreement, the Members acknowledge and agree that: (i) the attorney that prepared this Operating Agreement
("Attorney") acted as legal counsel to the Company only for the convenience of the Members; (ii) the Members
have been advised by the Attorney that the interests of the Members (and Manager) are opposed to each other
acrd are opposed to the interests of the Company and, accordingly, the Attorney's representaton of the Company
may not be in the best interosts of the Members; and (m) each of the Members has been advised by the Attomey
to retain separate legal counsel. Notwithstanding the foregoing, the Members (i) desire the Attomey to repressor
the Company, and not the Members, as attorney; {ii) acknowledge that they have been advised to retain separate
counsel and have waived their right to do so; and (iii) jointly and severally forever waive any claim that the
Attorney's representation of the Company constitutes a conflict of interest.
13
OPERATING AGREEMENT-Bay Road Partners, T..LC (Manager Managed, Any Lawfu: Purpose)
As of Mar-h 18, 2009
1 ].13 Titles and Captions. Section titles or captions contained in this Cperating Agreement are for
convenience only and shall not be deemed a part of the content of this Agreement.
11.14 ntentionally Deleted.
11.15 Special Provisiopg:
11.15.1 The Company shall also enter into a management and leasing agreement with Scott
Robins Companies, Inc., SRC Properties, LLC or a company controlled by Scott Robins
in accordance with the terrtr sheet set forth in Exhibit "B" hereto, effective as oY'the date
leasing is commencod for the Property.
1l .15.2 Scott Robins, Purdy Partners SRC, LLC, Purdy Partners I R49 SRC, LLC, Scott Robins
Companies, Inc., and/or SRC Properties, LLC and/or their affiliated entities will be
providing construction and development services to the Company relative to the
renovation and development of the Property owned by the Company as follows: project
manager and day-today supervision of the general contractor and all aspects of
completing renovation and redevelopment of the properly through completion to when
the Property is ready for management and leasing as an operating property. Scott Robins
shall provide or cause to be provided through his affiliated entities such services without
charge to the Company for construction and development fees (but the Company shalt be
responsible. for all out-of-pocket and other costs d"arecfly and indirectly associated with
said work). Notwithstanding the foregoing, in the event srmilar services are provided in
the future as approved by the Co-Managers. Scott Robins or his affiliated enbUes shall
not be precluded from charging the Company for such services.
11.15.3 Tax Matters "Partner" Purdy Partners, LLC, will be the tax matters "partner" and, as
such, through Philip Levine, will be solely responsible for representing the Company in
all dealings with the Internal Revenue Service and any state, local, and foreign tax
authorities, but the tax matters `~artflet" will keep the Managers aad all Members
reasonably informed of any Company dealings with any tax agency.
11.15.4
11.15.5 Other Matters Relaiine to Capital and Loans.
11.15.5.1 interest earned on Company funds shall inure solely to the benefit of the
Company, and, except as specifically provided herein, no interest shall oe paid
upon any conWbutions or advances to the capital of the Company or upon any
undistributed or reinvested income or profits of the Company.
11.15.5.2 The Capital Contributions of the Members shall be utilized for carrying
out the purposes of the Company as set forth in this Agreement and for payment
of any expenses incurred in connection therewith, including payment or
reimbursement of expenses paid or incurred on behalf of the Company whether
prior or subsequent to the execution of this Agreement.
l4
OPERATING AGRE°_MENT-Bay Road Partners, iLC (Manager Managed, Any Lavial Purpose)
As of March t S, 2609
11.15.5.3 Loans by a Member to the Company (including those arising by virtue of
payment under a guaranty or indemnity of the Company obligations) shall not be
considered contributicns to the capital of the Company and shall not increase the
Capital Account of the lending Member. Subjoct to the limitations contained in
this Agreement, the Company's deduction for interest paid in respect to any loan
from any Member shell be allocatod to that Member.
11.15.5.4 Exoept as specifically provided herein, no Member shall be entitled to
withdraw its Capital Contribution, or to a return of any part of his Capital
Contribution or to receive property or assets other than cash in retum thereof
unless determined by the Members, and neither the Managers ttor any Member
shall be liable for the return of all or aay portion of the Members' Capital
Contributions.
11.15.5.5 No Member shall be entitled to priority over any other Member, either
with respect io a return of his Capital Contribution or to allocations of taxable
income, gains, losses or credits, or to distributions, except as provided in this
Agreement.
OPERATING AGREEMENT-Ba;• Road Partners, LLC (Manager Managed, Aay Lawful Pwpose)
As of Merck ] 8, 2009
IN WIT)\'ESS WHEREOF, the undersisttted parries here executed this Operating Agreement as of the date first
set forth above.
1~1Eti113ERS:
PiTRDY PARTNERS, LLC, MEMBER
B ,Member and Manager
Scott Robins. Managing Member
By: Purdy Partners PL, LLC, Me #fe d alter
By: ~
Phil' Le aging ~,~Iember
1849 PURDY PART ,MEMBER
By: Pnrd LLC, Member and Manager
OPERATAG AGRn"EMEh': •Bay Raad PeAners, Li,C (Manager Managad, My Lawful Purpose)
As of March t 8, 2009
sy:
Philip evi Hager
16
E%$1SI'I' "A"
The names, business addresses and Membership Interests and Capital Contributions of the Members are set forth
below.
Membership Capital
Name Interest Contribution
PURDY PARTNERS> LLC 73% $1,000.00
230 5's Street
Miami Beach, FL 33139
1849 PURbY PARTATERS, LLC
'" 27% $1,000.00
Street
230 5
Miami Beach, fL 33139
OPL•RAT~G AGREEMEI`T-Aay Roac Par:ners> LLC (Manager Managed Any Lawt'ul Puryose)
A5 of March I8, 2009
EXXIi1BT1' "B..
Management & Leasing Agreement Term. Sheet
MEMORANDUM OF UIQDERS'1'ANDL~IG REGARDING
\4ANAGEMENT & LEASING
Scot Robins Companies, Inc., SRC Properties, LLC, and or an affiliate of Scott Robins will be responsible for all
management and leasing for a one (1) year Tenn, which term shall be renewed from year to year unless the Co-
Managers agree to terminate said services by written notice not later than thirty (30) days prior to any anniversary
of the agent's commencement of scrvices. The following items are included in the management and leasing
services:
(1) Complete management of all day-to-day operations.
(2) The rent collection process.
(a) Collecting ren4s and posting to Tenant's accounts.
(b) Posting three day notices and overseeing evictions (using local attorneys) for late payers
(c} Reconciling CAM, Real Estate Taxes, and other yearly pass-throughs and billing Tenants
for same.
(3} Representation with governmental interaction.
(a) Code Enforeeroent
(b} Fire Departme~
(c} Overseeing Real Estate Tax Appeals (appeals would generally be handled by counsel).
(4) Pay all operational bills, and negotiate with all operational vendors except that any expenditures m excess
of $5,600 over the approved budgefed amount for such expenditure (except for expenses that cannot be controlled
by the agent such as for taxes and insurance) must be approved by the Co-Managers
(a) Leasing releasing of space
(b) Show space to potenfial tenants
(d) Negotiate with tenants
(e) Oversee minor Tenant Improvements
(f) Review Leases
(g) Handle all tenant relations
(h) All leases must be approved by both Co-Managers before they can be binding on the
Company
(5) Prepare and provide accounting information
a. Provide reports upon request (but no more than monthly)
b. Maintain all accounting and other records
c. Prepare bank reconciliations and income and expense journals
d. Payroll to be run 4hrough management company's payro[i
e. All sales tax accounting
f. Monthly proposed budgets shall be submitted to the Co-Managers for approval
(~ Oversee, the maintenance of the properties
18
OPE241`tNG AGREEMENT-Bay Road Parsers, LI.C (Manager Managed, Any Lawfut Purpose;
As ofMerch 18, 2009
staff
(a) Receiving maintenance requests and curing same either by subcontract or with in house
if any
(b) Oversee the implementation of certain capital improvements (roofing and exterior Paint),
(c} We will authorize repairs
(7) Handle all matters rotating to insurance and insurance claims
(s) To the extern we have a master insurance policy in place; this property will have the
option of being added to our master policy (depending on the economics)
$asic fee for management: 5% of gross collections on the Property, paid monthly in arrears.
(a) All ensile or properly specific costs will be extra and paid directly or reimbursed
monthly.
(b) Any labor billed through the Management company, onsite only, for work padormed by
management company's personnel or personnel of affiliates of the management company wit] be at cost plus 40"/°
labor burden.
(c} Any postage, courier, federal express, outside reprinting etc. or costs directly associated
with the properties will he billed at cost.
(d) Al[ general overhead; supplies and office are management personnef are included in the
1vlanagement Fee.
Basic fee for Leasing will be:
(a) 6% of gross base Lease amount for co-brokered deals
(b) 3% of gross be lease amount for non co-brokered deals
(c} No fee for leases to Levine, Robins or their respective affiliates.
###
I9
OPL-RATING AGR£ENIENr-Bay Road Panners, LLC (.Manager Manzgcd, Any i.avr"ul P~RposeJ
As of March 18, 2009
Exhibit "C"
Articles
BA'Y ROAll PAR'ITERS, LLC
RESOLUTION ATR~ CERTiFIGATE OF iv1ANAGER-Bay Road Partrtm, LI.C
i certify the attached is a true and correct copy of the Articles of Organization of BAY ROAD
PARTNERS, LLC, a limited liability company organized under the laws of the state of Florida,
fled electronically on March 24, 2009 effective March i8, 2009, as shown by the records ofthis
office
1 further certify that this is an electronically transmitted certificate authorized by section 15.16,
Florida Statutes, and authenticated by the code noted below.
The document number of this limited liability company is L09000028353.
Authentication Code: 090324092812-6001469565861
Given under my hand and the
Great Seal of the State of Florida
at Tallahassee, the Capital, this the
Twenty Foutth day of March, 2009
Electronic Articles of Organization F~ ED s oo AM
For March 24 2009
FIorida Limited Liability Company hec kOf 51ate
Article I
The name of the Limited Liability Company is:
BAY ROAD PARTNERS, LLC
Article II
The street address of the principal office of the Limited- Liability Company is:
230 5TH STREET
MIAMI BEACH, FL. US 33139
The mailing address of the Limited Liability Company is:
230 5TH STREET
h~II 6,MI BEACH, FL. 33139
Article IT.I
The purpose for which this Limited Liability Company is organized is:
ARTY AND ALL LAWF[JL BLiSINESS.
Article I V
The name and Florida street address of the registered agent ts:
CHARLES RATNE P.A.
214 BRAZILIAN A ~IiJE
SUITE #200
PALM BEACH, FL. 33480
Having been named as registered agent and to accept sererice of process
for the above stated limited liability company at the plane designated
in this certificate, I hereby accept the appointment as registered agent
and agree to act in this capacity. I further agree to comply with the
provisions of all statutes relating to the proper and complete performance
of my duties, and I am familiar with and accept the obligations of my
position as registered agent.
Registered Agent Signature: CHARLES H. RATHER
Article V L09000028353
The name and address of managing membexs/n~ansgers are: MarcD 24 2009
Tice: MGR Sec. Of Sate
SCOTT ROBINS shawkes
230 5TH STREET
MIAMI BEACH, FL. 33139 US
Title: MGR
PHILIP LEV[Iv'E
230 5TH S'1'KEET
MIAMI BEACH, FL. 33139 US
Article VI
The effecti~~e date for this Limited Liability Company shall be:
03/18/2009
Signat~ae of member or an authorized representative of a member
Signature: CHAKLES H. RATHER, ATTORNEY
Exhibit "D"
R'ritten Consents of All Members
RESOLUTION AND CERTIFICATE OP MANAGER-Say Road Partners, LLC
RESOLL"I'TOVS
UNANIMOUS WRITTEN CO'NSENT'
OF ALL MEMBERS OF
BAY ROAD PARTNERS, LLC
A FLORIDA LLMTTED LIABILITY COMPANY
1'he undersigned, being all of the members of BAY ROAR PARTNERS, LLC, a Florida limited liability
company (the "Company") hereby adopt the following resolutions by written consent:
WHEREAS, the undersigned PURDY PARTNERS, LLC, a Florida limited liability company and 1849
PURDY PARTNERS, LLC, a Florida limited liability company, aze the only Members o£the Company, and
in furtherance thereof have entered into the Operating Agreement of the Company;
WHEREAS, the Company was formed effective March 18, 2009 pursuant to Articles of Organi2ation filed
with the Secretary of State of Florida;
WHEREAS, the Company is a Manager managed company;
WHEREAS, SCOTT ROBINS and PHILIP LEVINE, are the only Manager o£the Company; and
WHEREAS, the Company has been formed to acquire a fee interest and improve certain real property located
in Miami Beach, Miami-Dade County, Florida as more particularly described on Exhibit "A" attached hereto ,
and in furtherance thereof desires to (a) purchase a 35% undivided interest in the Property as Tenant in
Common with the City of l~lianti Beach for such amount pursuant to the terms and conditions o£ that Certaiu
Agreement of Sale and Purchase of Real Property (as amended, the "Contract"} by and originally between Scott
Robins Companies, Inc. as Buyer, and Fdwin and Grace Gonzalez, as Seller, (b) enter into various agreements
("IvIB Agreements") with the City of Miami Beach related to the Contract and the Property, including, without
limitation a Declaration of Condominium (the "Declararion") pertaining to the Property and other agreements
related to the future use and development of and restrictions on the Property, (c) enter into a Lease with its
wholly oti'ned subsidiary, Bay Road Outparcel Partners, LLC (°'BROP"} to lease certain real property owned by
BROP located adjacent to the Property at 1916 Bay Road, Miami Beach, FL (the 'Building'), (d) enter into a
Lease for the Property, and sublease £or the Building with Tremont Towing, Inc., (e) enter into subleases with
additional subtenants for the Building, and (f} to execute all other documents and agreements contemplated by
the Contracr, the MB Agreements, the Declaration, the Leases and Subleases, and other doctuments and
agreements in the norms[ operation of the Company and its ownership of the Pmperry and lease of the
Building, (the Contract, MB Agreements, Declaration, Lease, Subleases and all such additional documents,
wllectively, the "Company Documents"), all on terms as the Manager shall determine;
NOW, THEREFORE, BE IT RESOLVED, that SCOTT ROBINS and PHILIP LEVINE, ac Managers of the
Company, each in their individual capacity acting singularly, be, and they hereby aze authorized and
empowered to take all such further action and to execute and deliver all such further agreements; instruments
and other documents in the name and on behalf of the Company, including the execution and delivery of all
documents to be executed by the Company and/or to consummate the purchase, £tnancing, insm~ance, closing
and operation of the Property (and/or any leasehold interest therein) and the Building, if any, including but not
limited to applications, notes, agreemenrs, mortgages, security agreements, affidavits, deeds of conveyance,
leases, certificates, instructions, financing statements, guaranties, assignments, indemnities, closing statements,
notices, the Company documents and/or other documents (the "Transaction Documents") (all of which are to be
in such form and substance as Manager, may deem necessary or desirable, the execution thereof by the Manager
Wrtten Cccsent of All Members Bay Rcad Partners LLC
to be conclusive evidence of the approval of the form and substance thereof by the Company) and to do any and
atl other things that any such member, in its sole discretion, may deem necessary or desirable to effectuate the
intent, and to pay any and all such expenses and faxes, as shall be deemed to be necessazy, proper or advisable
in order to fully carry out the intent and accomplish the purposes of the foregoing resolutions and the
transactions contemplated therein;
RESOLVED, that the taking of any action or fhe execution and delivery of any document authorized by the
foregoing resolutions, and each of them, in the name and on behalf of the Company, be deemed, and it hereby is
authorized and empowered to be deemed, conclusive proof of the approval thereof;
RESOLVED, that the authorities hereby conferred shall be deemed retroactive, and any and all acts authorized
herein that were performed prior to the passage of these resolutions by the Manager on behalf of the Company
be, and they hereby aze, approved, rafi£aed and confirmed in all respects.
This Written Consent may be executed in any number of counterparts, each of which shat be deemed an
original for all purposes and all of which together shall constitute one and the same Written Consent.
[SIGNATURE PAGE FOLLOWS]
Written Consent of All Members gay Road Partners LLC 2
The undersigned, being all of the members of the Company, have executed this Written Consent as of the 31st
day of March, 2049.
MEMBERS:
By:
Scott Robins, Managing Member
By: PurdyPartnersP
Member and
By: /
h ine, Managing Member
1849 PIIRD - -- ' ' , LLC, MEMBER
By: ScoU Robin
Scott Rob' r
By: Philip Levin
Levine, Manager
Bv: artners 1849 SRC, LLC
By:
WrNten Coreent o` Ail Members Bey Road PaCnes LLC 3
CONF A't''ffiRS--
-"'T~-
By:
Scott Robins, Manage
By:
Philip L9 i I alter
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was aclmowledged before me this 31st day of March, 2009, by Scott Robins as: (i}
Manager of Purdy Partners; LLC; (ii} Manager 1849 Purdy Partners, LLC; (iii) Manager of Bay Road Partners,
LLC; (iv) Managing Member of Purdy Partners 1849 SRC, LLC; and (v) Managing Member of Purdy Paztners
1849 SRC, LLC, on behalf of such companies. He is personally known to m/
Sign Name: ~ d
Print Name: C~AR~FS-H-Sa'~}~
My Commission Expires: NOTARY PUBLIC
STATE OF FLORIDA
Serial No. (none, if blank): [NOTARIAL SEAL]
CNFRLES H MINER
AIY CCARaBStiDN A OD 7!649;
D(PIAES: Sepmnt~r f7, 2Cit
z®au n.u nn. r rwn wa.w.us
STATE Ok' k'LORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 31st day of Mazch, 2009, by Philip Levine as: (i)
Manager of Purdy Partners, LLC; (ii) Manager 1849 Purdy Partners, LLC; (iii) Managez of Bay Road Partners,
LLC; (iv} Managing Member of Purdy Partners 1849 PL, LLC; and (v} Managing Member of Purdy Partners
1849 PL, LLC, on behalf of such companies. He is personally known to me.
Sign Name:
PrintNazne: CHARLES N RATN~R - -
My Commission Expires: NOTARX PL~LIC
STATE OF FLORIDA
Seriat No. (none, if blank): [NOTARIAL SEAL]
ctwRtESattMnea
httcorwwssioN~DOi,~~i~
EXPwES:septemher
tk,tloa my rwoen r~Ho unawnw
Written Co~sen: of fUl Members Bay RoaA Pa.~tnets LLC
EI~HIBIT "A"
LEGAL. IIESCRIPTION
Leval Description of Properfv
All of Lot 1 and Lot 2, Less the North four (4) feet of the East l/2 of said Lof 2, Block 14 .A,
LSLAND VIEW ADDITION, according fo the plat thereof, as recorded in Plat Book 4 at
Page 144, and together with the East I/2 of Lot 7 and all of Lot 8, Block 14, TILE ALTON
BEACH REALTY COMPANY'S PLAT OF ISLAND VIEW Sl7BDIVISION, according to
the plat thereof, as recorded in Plat Book 6 at Page 115, both being recorded in the Public
Records of Miami-Dade County, Florida.
Leal Description of Building (Leasehold Interesfl
The East 112 of Lot 3, and the North tour (4) feet of the East 1/2 of Lot 2, Block 14-A,
ISLAND VIEW ADDITION, according to the plai thereof, as recorded in Plat Book 9 at
Pagc 144, of the Public Records of Miami-Dade County, Florida.
WrMan Comment of All Members Bey Road ?artners LLC 5