Restated Operating Agmt
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AMENDED AND RESTATED
OPERATING AGREEMENT
OF
OCEAN BLVD II, LLC
S45008V I
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TABLE OF CONTENTS
ARTICLE I General Provisions ..................................................................................................... 1
Section 1.01. Name. ........................................................................................................... 1
Section 1.02. Place of Business. ........................................................................................ 1
Section 1.03. Term. ............................................................................................................ 1
Section 1.04. Definitions.............................. .......... .............. .............................................. 1
ARTICLE II Members and Status.................................................................................................. 6
Section 2.0 I. Members. ..................................................................................................... 6
Section 2.02. Limitation Upon Liability of Members........................................................ 6
ARTICLE III Scope of Company and Mode of Operation ............................................................6
Section 3.01. Scope of Company. ......................................................................................6
Section 3.02. Powers ofthe Company. ........................................................................,..... 7
Section 3.03. Company Restrictions .................................................................................. 8
Section 3.04. Dealings With Related Entities. ...................................................................9
Section 3.05. Other Business. ........................,................................................................... 9
Section 3.06. Indemnification. .;.........................................................................................9
Section 3.07. Loans to the Company. .............................................................................. II
Section 3.08. Acts Requiring Consent of Members......................................................... II
Section 3.09. Meetings of Members. ............................................................................... 11
Section 3.10. Notice and Record Date of Meetings......................................................... II
Section 3.1l. Quorum. ..................................................................................................... II
Section 3.l2. Proxies. .................................,.................................................................... 12
Section 3.13. Action by Members Without a Meeting. .................,................................. 12
ARTICLE N Capital Contributions, Company Loans, Profits-and Losses and Distributions.... 12
Section 4.01. Capital Contributions and Company Loans. .............................................. 12
Section 4.02. Distributable Cash.........,................,...........................................................13
Section 4.03. Distributions From Terminating Capital Transaction................................ 13
Section 4.04. Allocation of Profits and Losses. ....................................................,.......... 13
Section 4.05. Special Allocations. ................................................................................... 15
Section 4.06. Curative Allocations. .....................................,........................................... 15
Section 4.07. Other Allocation Rules. ............................................................................. 17
Section 4.08. Tax Allocations; Code Section 704{ c). ...................,.................................. 17
Section 4.09. General Provisions. .................................................................................... 17
Section 4.10. No Interest on Capital Accounts. ............................................................... 18
Section 4.11. Distribution of Property. ....................................................."..................... 18
Section 4.12. Return of Capital Contribution, ................................................................. 18
ARTICLE V Accounting, Reporting and Holding of Assets....................................................... 18
Section 5.0l. Fiscal Year. ................................................................................................ 18
Section 5.02. Records, Accounting and Reports.............................................................. 18
Section 5.03. Right to Inspection. .................................................................................... 18
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Section 5.04. Holding and Transfer of Assets. ................................................................ 18
Section 5.05. Bank Accounts. .......................................................................................... 19
Section 5.06. Tax Status; Notice of Tax Controversy...................................................... 19
Section 5.07. Tax Matters Member; Tax Elections; Tax Returns...............................,.... 19
Section 5.08. Tax Matters Member Not Liable. .............................................................. 20
ARTICLE VI Dissolution and Continuation of Company........................................................... 20
Section 6.01. Dissolution. ................................................................................................ 20
Section 6.02. Deemed Contribution and Liquidation. .....................................................20
Section 6.03. Notice of Dissolution. ................................................................................ 20
ARTICLE VII Transfer of Membership Interests and Changes in Members .............................. 21
Section 7.01. Member Transfers Restricted..................................................................... 21
Section 7.02. Effect of Transfer. ......................................................................................21
Section 7.03. Additional Members. ................................................................................. 21
ARTICLE VIII Liquidation............. ....... ,...... ........ ...... ................, ............. ......................... ,......... 21
Section 8.01. Liquidation Determination. ........................................................................ 21
Section 8.02. Liquidation Procedure....................,...........................................................21
Section 8.03. Allocation of Liquidation Proceeds. .......................................................... 22
ARTICLE IX Miscellaneous, ........ ............... ....... ........... ...... ........., ..................,...... ................ ..... 22
Section 9.01. Notice. ..,..................................................................................................... 22
Section 9.02. Construction. ......,. ........ ................. ..... ........ .................. .................. ..... ....... 22
Section 9.03. Assigns and Successors in Interest............................................................. 23
Section 9.04. Assignment. ...............................................................................................23
Section 9.05. Amendment. ............................................................................................... 23
Section 9.06. Further Assurances..........................................................,..........................23
Section 9.07. Warranties of Representatives. .................................................................. 23
Section 9.08. Computation of Time..............,.............................................................. .... 23
Section 9.09. Captions. ........................................................................,...........................23
Section 9.10. Identification. .......................................................................,..................... 23
Section 9.11. Counterparts. .............................................................................................. 23
Section 9.12. Members' Capabi1ity................................................."............................... 23
Section 9.13. Severability. ............................................................................................... 24
Section 9.14. Approval or Consent. ................................................................................. 24
Section 9.15. Consent of Members and Assignees. ......................................................... 24
Section 9.16. Limitation on Benefits of this Agreement..............;................................... 24
Section 9.17. Units Representing Percentage Shares In Company, ................................. 24
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AMENDED AND REST A TED
OPERATING AGREEMENT
OF
OCEAN BLVD II, LLC
The undersigned, desiring to form a limited liability company under the Indiana Business
Flexibility Act, hereby adopt the following as their Operating Agreement (the "Agreement").
ARTICLE I
General Provisions
Section 1.01. Name. The name of the Company is Ocean Blvd II, LLC.
Section 1.02. Place of Business. The specified office of the Company shall be at such
location as may be selected from time to time by the Members.
Section 1.03. Term. The term of the Company shall be perpetual, unless dissolved in
accordance with the Act or sooner terminated as hereinafter provided.
Section 1.04. Defmitions. The following terms have the following meanings herein:
"Act" means the Indiana Business Flexibility Act (Ind. Code 23-18), as now or hereafter
amended.
"Affiliate" means a Person who, with respect to another person, directly or indirectly
controls, is controlled by, or is under common control with, such other Person.
"Articles" means the Articles of Organization filed by the Company with the Indiana
Secretary of State and as amended or restated from time to time.
"Assignment" means any sale, assignment, transfer, pledge, encumbrance or other
disposition of, or the granting of a security interest in, an Interest in the Company as a Member,
including without limitation a transfer in connection with a dissolution, merger, consolidation or
similar action of a Member or an Assignee.
"Bankruptcy" means, with respect to a Person, the happening of any of the following:
(A) The entry by a court or governmental agency having jurisdiction in the
premises of a decree or order for relief in respect of the Person in an involuntary case under
bankruptcy law now or hereafter in effect or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of such Person, or for any substantial part
of such Person's property, or ordering the winding up or liquidation of such Person's affairs,
and such decree or order remaining unstayed and in effect for a period of sixty (60)
consecutive days; or
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(B) The commencement by the Person of a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such
Person to the entry of an order for relief in an involuntary case under any such law; or
(C) The consent by the Person to the appointment of, or taking possession by, a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of any
substantial part of such Person's property, or the filing of a pleading in any court of record
admitting, in writing, the inability of the Person to pay his, her or its debts as they come due;
or
(D) The making, by the Person, of a general assignment for the benefit of
creditors.
"Capital Account" means, with respect to any Member, an amount equal to the sum
of:
(A) the amount of cash such Member has contributed to the Company
(including any contribution pursuant to Section 4.01);
(B) the fair market value of any property such Member has contributed to
the Company (net of any liabilities secured by such contributed property that the
Company is considered to assume or take subject to under Code Section 752) as a
Capital Contribution; and
(C) the amount of Profits allocated to such Member;
reduced by the sum of (i) the amount of Losses allocated to such Member; (ii) the amount of
all cash distributed to such Member; and (iii) the fair market value of any property
distributed to such Member (net of any liabilities either assumed by the Member upon such
distribution, or secured by such distributed property, that such Member is considered to
assume or take subject to under Code Section 752); subject, however, to such other
adjustments as may be required under the Code and Treasury Regulations, including, but not
limited to, increases or decreases to reflect a revaluation of Company property on the
Company's books in accordance with Subsection (2)(iv)(f) of the Partnership Allocation
Regulations. Generally, a transferee of a Company interest shall succeed to the Capital
Account relating to the Company interest transferred. The Capital Account is to be
determined and maintained at all times in strict accordance with all of the provisions of
Subsection (2)(iv) of the Partnership Allocation Regulations.
The Capital Account of a Member may, under certain circumstances, be an amount
less than zero.
"Capital Contribution" means the total amount of cash and the net fair market
value of non-cash consideration contributed to the Company by a Person in the capacity as a
Member.
"Code" means the Internal Revenue Code of 1986, as in effect on the date of this Agreement,
or as may hereafter be amended or supplemented.
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"Code Section 705(a)(2)(B) Expenditures" mean expenditures described in Code Section
705(a)(2)(B) and any amounts treated as Code Section 70S(a)(2)(B) expenditures under subsection
(2)(iv)(i)(2) ofthe Partnership Allocation Regulations.
"Company Minimum Gain Chargeback Allocations" means the allocations required by
Sections 1.704-2(f) and 1.704-2(k) of the Treasury Regulations.
"Company" means the limited liability company governed by this Agreement.
"Depreciation" means for each fiscal year or other period, an amount equal 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 Company asset is reflected on the books of the Company
at a book value that differs from the adjusted tax basis of such asset pursuant to Subsections
(2)(iv)(d) or (2)(iv)(f) of the Partnership Allocation Regulations, depreciation, amortization, or other
cost recovery deductions shall be computed for book purposes with respect to such asset pursuant to
Subsection (2)(iv)(g) ofthe Partnership Allocation Regulations.
"Distributable Cash" means, with respect to any period for which such calculation is being
made, (i) the sum of:
(A) The Company's Profit or Loss (as the case may be) for such period,
with any Loss stated as a negative number;
(B) Depreciation and all other non-cash charges deducted in determining
Profit or Loss for such period;
(C) The amount of any reduction in reserves of the Company referred to in
clause (ii)(Y) below (including, without limitation, reductions resulting because the
Members determines such amounts are no longer necessary);
(D) The excess (net of transaction expenses) of proceeds from the sale,
exchange, disposition, or financing or refinancing of Company property for such
period over the gain recognized from such sale, exchange, disposition, or financing
or refinancing during such period (excluding Terminating Capital Transactions);
(E) Any expense or loss amount included in determining Profit or Loss for
such period that was not disbursed by the Company during such period; and
(F) All other cash received by the Company for such period that was not
included in clauses (A) to (E) with respect to such period;
(ii) less the sum of (a) all principal debt payments made during such period by the
Company, including payments made with respect to Member Loans; (b) capital expenditures
made by the Company during such period; (c) investments in any entity (including loans
made thereto) to the extent that such investments are not otherwise described in clauses
(ii)(a) or (ii)(b), above; (d) any income or gain amount included in determining Profit or Loss
for such period that was not received by the Company during such period; (e) the amount of
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any increase in reserves established during such period which the Members determine is
necessary or appropriate in its sole and absolute discretion; and (t) all other expenditures and
payments not deducted in determining Profit or Loss or included in clauses (ii)(a) or (ii)(b)
with respect to such period.
Notwithstanding the foregoing, Distributable Cash shall not include any cash received
or reductions in reserves, or take into account any disbursements made or reserves established, after
commencement of the dissolution and liquidation of the Company.
"Distribution" means any cash or property distributed to a Member or assignee arising from
its interest in the Company.
"Interest" means a Member's economic rights in the Company, including the Member's
share of the profits and losses of the Company and the right to receive distributions from the
Company, as set forth in the Act, the Articles and this Agreement.
"Member Minimum Gain Chargeback Allocations" means the allocations required by
Sections l.704-2(i)(4) and l.704-2(k) of the Treasury Regulations.
"Member Nonrecourse Deduction Allocations" means the allocations required by Section
l. 704-2(i)(I) of the Treasury Regulations.
"Members" means (i) First American Exchange Company, LLC; and (ii) Persons
contributing additional monies to the Company who are admitted as Members by agreement of the
then existing Members.
"Nonrecourse Deduction Allocations" means the nonrecourse deductions (as defined in
Section 1.704-2(c) of the Treasury Regulations) allocated to a Memberpursuantto Section4.06(d)
hereof.
"Operating Expenses" means all Company cash expenditures of any kind (other than
Distributions, Member Loan Payments or other payments to be made from Distributable Cash),
including, but not limited to: (I) any expenditures which, for tax purposes or otherwise, are
capitalized, including any construction costs; (2) payments of principal and interest due on any
indebtedness (other than Member loans); (3) payments of operating and maintenance costs of the
Property; and (4) a reasonable reserve for future expenses of the Company as determined by
Members having a capital interest in the Company.
"Partnership Allocation Regulations" means Treasury Regulations Section I. 704-1 (b).
"Percentage Share" means, with respect to a Member, the following:
MEMBER
First American Exchange Company, LLC
PERCENTAGE SHARE
100%
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"Person" means an individual, firm, partnership, corporation, limited liability company,
estate, trust, pension or profit-sharing plan or other entity,
"Prime Rate" means the rate of interest quoted from time to time by The Wall Street Journal
as the "prime rate" under the heading "Money Rates."
"Profits" and "Losses" mean, 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(a) (for this purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Code Section 703(a)(I) shall be included in taxable income or loss), with the
following adjustments:
(i) Any income ofthe Company that is exempt from federal income tax and not
otherwise taken into account in computing profits or losses pursuant to this
Section 1.04 shall be added to such taxable income or loss;
(ii) Any Code Section 705(a)(2)(B) Expenditures not otherwise taken into
account in computing profits or losses pursuant to this Section 1.04 shall be
subtracted from such taxable income or loss;
(iii) In the event any asset ofthe Company is distributed to any Member or sold
by the Company, the difference on such date between (a) the gross fair
market value and (b) either (i) the adjusted basis of the asset for federal
income tax purposes, or (2) if the asset is reflected on the books of the
Company at a book value that differs from the adjusted tax basis of such asset
pursuant to Subsection (2)(iv)(d) or Subsection (2)(iv)(f) of the Partnership
Allocation Regulations, the gross fair market value on the date of the
contribution of the asset to the Company or the gross fair market value of the
asset on the date of the asset's revaluation on the Company's books, as the
case may be (as determined by the Members) less Depreciation, shall be taken
into account as gain or loss from the disposition of such asset for purposes of
computing Profits or Losses;
(iv) In lieu of the depreciation, amortization, and other cost recovery deductions
taken into account in computing such taxable income or loss, there shall be
taken into account Depreciation for such fiscal year or other period; and
(v) Notwithstanding anything to the contrary in the definition of the term "Profits
and Losses", any items which are specially allocated pursuant to Sections
4.06 and 4.07 hereof shall not be taken into account in computing Profits and
Losses.
"Sale" means any sale, exchange, transfer or conveyance of all or any part of the Property.
"Tax Matters Member" means First American Exchange Company, LLC, or any
successor thereto appointed by the Members to act as "tax matters partner" for the Company under
the Code.
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"Terminating Capital Transaction" means the sale, exchange or other disposition of all or
substantially all of the assets of the Company in a single transaction or a related series of
transactions.
"Treasury Regulations" means the income tax regulations promulgated under the Code as
in effect on the date of this Agreement, or as hereafter amended or supplemented (including
corresponding provisions of such succeeding regulations).
Such terms shall be used either in the singular or plural and may be referred to in any gender
as required by the context.
ARTICLE II
Members and Status
Section 2.01. Members. The Members of the Company shall consist of the Persons
identified in or in the manner designated in Section 1.04.
Section 2.02. Limitation Upon Liability of Members. The personal liability of each
Member to the Company (except as provided in Section 4.0 I), to the other Members, to the creditors
ofthe Company or to any other third party for the losses, debts or liabilities of the Company shall be
limited to (i) the amount of the Member's Capital Contribution which has not theretofore been
returned to the Member as a Distribution (including a Distribution upon liquidation) and (ii) any
amount of the Member's Capital Contribution which has been returned and for which the Member
remains liable under the Act. No Member shall at any time be liable or held accountable to the
Company, to the other Members, to the creditors of the Company or to any other third party for, or
on account of, any negative balance in the Member's Capital Account.
ARTICLE III
Scope of Company and Mode of Operation
Section 3.01. Scope of Company. The specific purpose of the Company is to develop and
own real property, and to enter into other business arrangements to accomplish such purposes. The
general purpose of the Company is (i) to engage in any businesses that may be lawfully conducted by
a limited liability company organized pursuant to the Act, (ii) to do each and every thing necessary,
suitable or proper for the accomplishment of the purpose described in (i) or the attainment of anyone
or more of the objects herein stated, either alone, or in association with, or as agent orrepresentative
for, other corporations (whether public, governmental or private), partnerships; limited liability
companies, individuals, or entities, and (iii) to accomplish any other lawful business incidental
thereto, or which shall at any time appear conducive to, or expedient for, the protection of the
Company.
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Section 3.02. Powers of the Company. Subject to the limitations elsewhere in this
Agreement, the Company shall have all the powers permitted by law which are necessary or
desirable in carrying out the purposes and business of the Company, including, but not limited to, the
following powers:
(a) To acquire by purchase, exchange, lease, hire, or otherwise, real and personal
property of every kind, character and description whatsoever, and where so ever
situated, and any interest therein, either alone or in conjunction with others, and to
hold for investment, own, use, develop, operate, lease, mortgage, sell or otherwise
dispose of, conveyor otherwise deal in the same and any interest therein;
(b) To perform all services related to the acquisition, development, holding,
management, financing, leasing and disposition of real and personal property of every
kind, character and description;
(c) To borrow or raise money for any of the purposes of the Company, and from time to
time, without limitation as to amount, to draw, make, accept, endorse, execute and
issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures,
evidences of indebtedness and other instruments, and to secure the payment thereof,
the interest thereon and any other obligations or liabilities relating thereto, in any
manner, including without limitation by mortgage on, security interest in or pledge,
conveyance or assignment in trust of, the whole or any part of the assets of the
Company, real, personal or mixed, including contract rights and options, whether at
the time owned or thereafter acquired, and future earnings, and to sell, pledge or
otherwise dispose of such securities or other obligations of the Company for the
furtherance of its purpose;
(d) To act in any state or nation in which the Company may lawfully act, for itself or as
principal, agent or representative for any individual, association, partnership,
corporation or legal entity, respecting business of the Company;
(e) To enter into, make, amend, perform and carry out, or cancel and rescind, contracts
and other obligations for any lawful purpose pertaining to the business of the
Company;
(f) To become a partner, member, shareholder or owner in, arid perform the obligations
of a partner, member, shareholder or owner of, any general or limited partnership,
limited liability company, corporation or other similar entity;
(g) To apply for, register, obtain, purchase or otherwise acquire trademarks, trade names,
labels and designs relating to or useful in connection with any business of the
Company, and to use, exercise, develop and license the use of the same;
(h) To employ, on behalf ofthe Company, legal counsel, financial counsel, accountants,
professional advisors, Persons or entities for the operation and management of the
business ofthe Company;
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(i)
To establish accounts and deposits and maintain funds in the name of the Company
in banks or other financial institutions and to invest funds of the Company
temporarily when not required for operation of its properties or distribution to the
Members, in short-tenn debt obligations, including without limitation obligations of
federal and state governments, commercial paper and certificates of deposit of banks
and other financial institutions;
G) To payor reimburse any and all actual fees, costs and expenses incurred in the
formation and organization of the Company;
(k) To do all acts which are necessary, customary or appropriate for the protection and
preservation of the Company's assets, including the establishment of reserves;
(I) To loan money to, borrow money from and engage in transactions with Affiliates,
subject to Sections 3.04 and 3.07;
(m) To compromise, submit to arbitration, sue on, or defend claims in favor of or against
the Company;
(n) In general, to exercise all of the general rights, privileges and powers pennitted to be
had and exercised by the provisions of the Act;
(0) To establish reserves as are reasonably necessary for any contingent liabilities or
obligations of the Company or for the operation of the Company;
(P) To cause the distribution of property in kind;
(q) To admit an additional Member or Members, except as otherwise provided in this
Agreement;
(r) Unless otherwise prohibited by the Act, to dissolve the Company;
Section 3.03. Company Restrictions. Notwithstanding anything to the contrary provided in
this Agreement, as long as Fremont Investment and Loan, a California industrial bank ("Fremont"),
maintains a mortgage on the Land, the following shall be applicable (unless otherwise approved by
Fremont):
(a) Any dissolution and winding up or insolvency filing for the Company shall require
the unanimous consent of all ofthe Company's managers or members, as applicable.
(b) The Company shall not engage or be authorized to engage in any business unrelated
to the Land.
( c) The Company shall not own assets other than those related to its interest in the Land.
(d) The Company shall not incur debt except as permitted by the loan documents
associated with the financing of the Land.
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(e) The Company shall have its own books and records.
(f) The Company shall hold itself out as being, and shall conduct all business as, a
separate legal entity with separate stationery, invoices and checks.
(g) The Company shall not guaranty the debts or obligations of any other Person.
(h) The Company shall not commingle its assets or funds with those of any other Person.
Section 3.04. Dealings With Related Entities.
(a) A Member or any Affiliate of a Member may contract or otherwise deal with the
Company for the purchase or sale of goods, property or services or for other
purposes, and the Company shall have the power to so contract or deal, provided that
(i) the compensation paid for and the terms of the transaction for such goods, services
or property is no less favorable to the Company than compensation charged, and
terms provided, for similar goods, services or property in an ann 's-length transaction,
and (ii) any goods, services or property furnished to or acquired by the Company are
in furtherance of the Company business. The validity of any transaction, agreement,
or payment involving the Company and an Affiliate of a Member otherwise permitted
by this Agreement shall not be affected by reason of the relationship between the
Member and the Affiliate or the approval of the transaction, agreement, or payment
by the Member who is otherwise interested in, or related to, the Affiliate.
(b) If a Member is employed or retained by the Company in any capacity, compensation
to such Member shall be deemed to be for services rendered not in the Member's
capacity as a member of the Company, and it shall be treated for federal income tax
purposes as a payment described by either Section 707(a) or 707(c) ofthe Code.
Section 3.05. Other Business. Nothing contained in this Agreement shall in any way or
manner prohibit or restrict the right or freedom of any Member, any Affiliate of any Member or any
other Person to conduct or participate in any business or activity individually or as a partner,
shareholder or owner of any partnership, corporation, limited liability company or other entity other
than the Company without any obligation or accountability to the Company or any other Member,
even if such business or activity competes with the business of the Company; and any entity which
includes as a partner, shareholder, member or other owner a Member, any Affiliate of a Member or
any other Person shall have the right at any time to own and operate any business whatsoever, either
individually or with one or more parties, and shall not be required to obtain the consent thereto by
any other Member or offer to any other Member or the Company a participation therein.
Section 3.06. Indemnification.
(a) Each Person now or in the future who is (i) an officer, employee, agent or Member of
the Company, or (ii) any such Person's successors and assigns (any such Person
being an "Indemnitee") shall be indemnified by the Company against expenses
(including, but not limited to, attorneys' fees, related disbursements and removal of
any liens affecting any property of the Indemnitee), judgments, fines, and amounts
paid in settlement, actually and reasonably incurred by such Indemnitee in connection
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with any action, suit or proceeding to which such Indemnitee may be made a party by
reason of such Indemnitee's status as described in (i) to (ii) above (whether or not
continuing to be such at the time ofincurring such expense), ifsuch Indemnitee acted
in good faith and in a manner reasonably believed by such Indemnitee to be in, or at
least not opposed to, the best interests of the Company, and, with respect to any
criminal action or proceeding, such Indemnitee had either reasonable cause to believe
his or its conduct was lawful, or had no reasonable cause to believe his or its conduct
was unlawful. The tennination of any proceeding by judgment, order or settlement
does not create a presumption that the indemnitee did not meet the requisite standard
of conduct set forth in this subsection (a). The tennination of any proceeding by
conviction or upon a plea of nolo contendere or its equivalent, or an entry of an order
of probation prior to judgment, creates a rebuttable presumption that the indemnitee
acted in a manner contrary to that specified in this subsection (a). Any such
indemnification shall be limited to the assets of the Company, and shall not impose
any personal liability upon any Member. This provision is intended to provide such
indemnification as is permitted under Indiana law; it shall not operate to indemnifY
any person in any case in which such indemnification is, for any reason, contrary to
law.
(b)
Reasonable expenses incurred by an Indemnitee who is a party to a proceeding may
be paid or reimbursed 1JY the Company in advance of the final disposition of the
proceeding upon receipt by the Company of (i) a written affirmation by the
Indemnitee of the Indemnitee's good faith belief that the standard of conduct
necessary for indemnification by the Company as authorized in this section has been
met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay the
amount if it shall ultimately be detennined that the standard of conduct has not been
met.
(c)
The indemnification provided by this section shall be in addition to any other rights
to which an Indemnitee or any other Person may be entitled under any agreement,
pursuant to any vote of the Members, as a matter of law or otherwise, and shall
continue as to an Indemnitee who has ceased to serve in such capacity.
(d)
The Company may purchase and maintain insurance, on behalf of any potential
Indemnitee and such other Persons as the Members shall determine, against any
liability that may be asserted against, or expenses that may be incurred by, such
Person in connection with the Company's activities, regardless of whether the
Company would have the power to indemnifY such Person against such liability
under the provisions of this Agreement.
(e)
In no event may an Indemnitee subject the Members to personal liability by reason of
the indemnification provisions set forth in this Agreement.
(t)
An Indemnitee shall not be denied indemnification in whole or in part under this
section because the Indemnitee had an interest in the transaction with respect to
which the indemnification applies if the transaction was otherwise permitted by the
terms of this Agreement.
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(g)
The provisions of this section are for the benefit ofthe Indemnitees and their heirs,
successors, assigns and administrators and shall not be deemed to create any rights
for the benefit of any other Persons.
Section 3.07. Loans to the Company. In the event that additional funds are required by the
Company, one or more Members (or any Affiliate thereof) may, at the option of a majority of the
Members, loan such funds to the Company. Each such loan shall be made upon terms and conditions
no less favorable to the Company than those upon which a commercial lending institution would
make such a loan to an entity with financial and business characteristics similar to the Company.
Section 3.08. Acts Requiring Consent of Members. In addition to any limitations
specified elsewhere in this Agreement, the following powers of the Company shall be exercised only
with the consent of Members owning in the aggregate at least a ninety-five percent (95%) Percentage
Share of the Company:
(a) To require additional capital contrib!ltions to be made to the Company
(b) To sell or dispose of substantially all of the assets of the Company; and
( c) To guarantee the loan of any Person.
Section 3.09. Meetings of Members. The Members shall meet annually at such time as
shall be determined by resolution of the Members, commencing with the year 2005, for the purpose
of transacting such business as may come before the Members; provided, however, the failure to hold
an annual meeting shall not be grounds for dissolution of the Company. Special meetings of the
Members for any purpose or purposes, may be called by the Members owning in the aggregate at
least a ninety-five percent (95%) Percentage Share of the Company. The Members may designate any
place, either within or outside the State of Indiana, as the place of meeting for any meeting of the
Members. If no designation is made, the place of meeting shall be the principal office of the
Company. Members may participate in any annual or special meeting through the use of any means
of communications by which all of the Members may simultaneously hear each other during the
meeting. A Member participating in a meeting by this means is deemed to be present in person at the
meeting.
Section 3.10. Notice and Record Date of Meetings. Except as otherwise provided herein,
written notice stating the place, day and hour of a meeting and the purpose or purposes for which the
meeting is called shall be delivered not less than ten (10) nor more than fifty (50) days before the
date of the meeting, either personally or by mail, to each Member entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered two (2) calendar days after being deposited in
the United States mail, addressed to the Member at its address as it appears on-the books of the
Company, with postage thereon prepaid. Members may waive prior notice by attending the meeting
or by executing a written waiver of notice before or after the meeting. The date on which notice of
the meeting is mailed shall be the record date for such determination of Members entitled to notice
of, or to vote at, any meeting of Members.
Section 3.11. Quorum. The presence of Members owning in the aggregate at least a
ninety-five percent (95%) Percentage Share of the Company represented in person or by proxy, shall
constitute a quorum at any meeting of Members. If a quorum is present, the affirmative vote of the
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Members owning in the aggregate at least a ninety-five percent (95%) Percentage Share of the
Company shall be the act ofthe Members, unless the vote of a greater or lesser proportion or number
is otherwise required by the Act, by the Articles, or by this Agreement. Unless otherwise expressly
provided herein or required under applicable law, Members who have an interest (economic or
otherwise) in the outcome of any particular matter upon which the Members vote or consent may
vote upon any such matter and their Percentage Share shall be counted in the detennination of
whether the requisite matter was approved by the Members.
Section 3.12. Proxies. At all meetings of Members, a Member may vote in person or by
proxy executed in writing by the Member or by a duly authorized attorney-in-fact. Such proxy shall
be filed with the Manager, or if none, with the Member acting as Chainnan of the meeting, before or
at the time ofthe meeting. No proxy shall be valid after eleven months from the date of its execution,
unless otherwise provided in the proxy.
Section 3.13. Action by Members Without a Meeting. Any action required or permitted
to be taken at a meeting of Members may be taken without a meeting if the action is evidenced by
one or more written consents describing the action taken, signed by the Members approving such
action and delivered to the custodian ofthe Company's records for filing with the Company records.
Unless an action requires unanimous approval, the written consent will be effective upon approval by
Members holding the Percentage Share necessary to approve the action. Any action taken under this
Section is effective when the Members holding the necessary Percentage Share have signed the
consent, unless the consent specifies a different effective date. The record date for detennining
Members entitled to take action without a meeting shall be the date the first Member signs a written
consent.
ARTICLE IV
Capital Contributions, Company Loans,
Profits-and Losses and Distributions
Section 4.01. Capital Contributions and Company Loans.
(a) At the time of the execution of this Agreement, the Members shall not be required to
make any additional Capital Contributions, it being agreed that Members have
contributed Capital Contributions in sufficient amounts to receive their respective
Percentage Shares as described in Article I hereof.
(b) In the event that it is determined that the Company requires additional funds to meet
its obligations under or to comply with a covenant or condition in any loan or
financing document, the Company shall give written notice of such determination to
the Members, which notice shall include the amount of funds required, the date
(which in no event shall be sooner than 20 days after the giving of such notice) for
which such funds shall be paid to the Company (the "Due Date"), the reason or
reasons such funds are required and the instructions for remittance thereof.
(c) Upon delivery of such notice, each Member shall have the right, but not the
obligation, to loan to the Company an amount equal to such Member's Percentage
Share multiplied by the total amount required by the Company as set forth in the
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notice from the Company, each such loan constituting a "Member Loan" hereunder.
Each advance by a Member pursuant hereto shall constitute a separate Member Loan
advanced to the Company on the date of receipt of proceeds by the Company (but not
sooner than the Due Date), shall bear interest at the Prime Rate plus two percent (2%)
and shall be repayable to the Members pro rata from Distributable Cash and from
proceeds of a Terminating Capital Transaction prior to any Distribution to a Member.
Such Member Loan shall be nonrecourse as to the Members. Nothing herein
contained shall be construed as creating personal liability on the part of any Member
to make Member Loans or as requiring any Member to make a Member Loan.
(d)
If, after notice pursuant to subsection (b) above, any Member shall elect not to make
a Member Loan ("Refusing Member"), all other Members who have made Member
Loans shall have the right, but not the obligation, to loan to the Company, the amount
applicable to the Refusing Member in lieu of the Refusing Member, and in the
manner and the time set forth herein an amount up to the amount of the loan the
Refusing Member could make. Such amount shall bear interest at the Prime Rate plus
two percent (2%) and shall be repayable in accordance with the terms and provisions
of this Article N.
Section 4.02. Distributable Cash. The Company shall distribute annually such amounts of
Distributable Cash generated by the Company during such year to the Members in accordance with
their respective Percentage Shares, as determined by the Members.
Section 4.03. Distributions From Terminating Capital Transaction. The Company's
share ofthe net proceeds from a Terminating Capital Transaction shall be applied and distributed in
the following order, after adjusting Capital Accounts for all Distributions under Section 4.04 and all
allocations of Profits and Losses:
(a) To the payment of debts and liabilities of the Company deemed appropriate by the
Members to pay at that time in the order of priority as provided by law (other than
those to Members) including the expenses of or relating to sale, refinancing,
exchange, condemnation, destruction or other disposition of assets of the Company;
(b) To the setting up of such reserves as are reasonably necessary for any contingent
liabilities or obligations of the Company or for the operation of the Company, as
determined solely by the Members in good faith;
(c) To the payment of debts and liabilities of the Company to the Members other than in
respect to the balances in the Capital Accounts of Members; and
(d) To the Members in accordance with the positive balances in their Capital Accounts.
Section 4.04. Allocation of Profits and Losses.
(a) After giving effect to the special allocations set forth in Sections 4.05 and 4.06
hereof, for each fiscal year of the Company (as defined in Section 5.0l) or portion
thereof, all Profits and Losses, other than Profits and Losses from a Terminating
Capital Transaction, shall be allocated to the Members in accordance with their
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Percentage Shares in the Company. Notwithstanding the above, in accordance with
Subsection (2)(ii)(d) of the Partnership Allocation Regulations, the allocation ofloss,
deduction or Code Section 705(a)(2)(B) Expenditures to a Member shall not exceed
the maximum amount that can be so allocated without causing a violation of the
alternate test of economic effect.
(b)
After giving effect to the special allocations set forth in Sections 4.05 and 4.06
hereof, including chargebacks of minimum gain, for each fiscal year of the Company
or portion thereof, all Profits from a Terminating Capital Transaction shall be
allocated as follows:
(i) If any Member has a negative Capital Account, Profits shall be allocated to
the Members having negative Capital Accounts in proportion to the negative
amount of the Capital Account of each such Member until each such Capital
Account has been brought equal to zero;
(ii) Profits shall then be allocated proportionately to all Members until the
positive balances in all Members' Capital Accounts are in a ratio in
accordance with the Members' Percentage Shares; and
(iii) Any remaining Profits shall be allocated to the Members according to their
Percentage Shares.
(c) After giving effect to the special allocations set forth in Sections 4.05 and 4.06
hereof, including chargebacks of minimum gain, all Losses from a Terminating
Capital Transaction shall be allocated to the Members as follows:
(i) Losses shall be allocated proportionately until the balances in the Capital
Accounts are zero; and
(ii) Any remaining Losses shall be allocated according to Percentage Shares.
(d) In connection with any Terminating Capital Transaction treated as an installment
sale, Profits or Losses shall, for purposes of adjusting the Members' respective
Capital Accounts, be allocated under the foregoing provisions of this section as
though the principal amount of the deferred obligation were received in full at the
time of sale. In connection with any Terminating Capital Transaction properly treated
as an installment sale under the Code, the portion of the Profits or Losses in each
installment allocable to a given Member shall, for federal income tax purposes, be in
proportion to the Member's total share of Profits or Losses from the Terminating
Capital Transaction allocated to the Member pursuant to the foregoing provisions of
this section.
(e) For purposes of this section, the determination of a Member's Capital Account shall
be made without taking into account any liabilities treated as a contribution of money
pursuant to Subsection (2)(iv)(c) of the Partnership Allocation Regulations (if the
Company's payment of such liabilities would be treated as a distribution of money
pursuant to Subsection (2)(iv)(c)) ofthe Partnership Allocation Regulations.
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Section 4.05. Special Allocations.
(a) The Company shall make the qualified income offset allocation required by the
alternate test for economic effect under Subsection (2)(ii)(d) of the Partnership
Allocation Regulations.
(b) In the event any Member has a deficit Capital Account at the end of any Company
fiscal year that is in excess of the amount such Member is obligated to restore to the
Company (including amounts the Member is obligated or deemed to be obligated to
restore to the Company pursuant to the alternate test for economic effect under
Subsection (2)(ii)( d) of the Partnership Allocation Regulations), each such Member
shall be specially allocated items of Company income and gain in the amount of such
excess as quickly as possible, provided that an allocation pursuant to this Section
4.06(b) shall be made if, and only to the extent that, such Member would have a
deficit Capital Account in excess of such amount after all other allocations provided
in this Article IV have been tentatively made as if the qualified income offset
allocation required by the alternate test for economic effect and this Section 4.06(b)
were not required by this Agreement.
(c) Except as otherwise provided in Section 4.07 (d)(iii) hereof, the Company shall make
all (i) Member Nonrecourse Deduction Allocations; (ii) Member Minimum Gain
Chargeback Allocations; and (iii) Company Minimum Gain Chargeback Allocations.
(d) The Company shall make all Nonrecourse Deduction Allocations to the Members in
a manner that is reasonably consistent with allocations, which have substantial
economic effect, of some other significant Company item attributable to the property
securing nonrecourse liabilities of the Company (as determined by the Members).
(e) The extent an adjustment to the adjusted tax basis of any Company asset pursuant to
Code Section 734(b) or Code Section 743(b) is required, pursuant to Subsection
(2)(iv)(m) of the Partnership Allocation Regulations, to be taken into account in
determining Capital Accounts, the amount of such adjustment to the Capital
Accounts shall be treated as an item of gain (if the adjustment increases the basis of
the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall
be specially allocated to the Members in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to such Section of
the Treasury Regulations.
Section 4.06. Curative AUocations.
(a) Notwithstanding any other provision of this Agreement, other than Section 4.05
hereof, the allocations made pursuant to Sections 4.05(a), 4,05(b) and 4.05(e) hereof
shall be taken into account in allocating other Profits, Losses, and items of income,
gain, loss, and deduction among the Members so that, to the extent possible, the net
amount of such allocations of other Profits, Losses, and other items and the
allocations made pursuant to Sections 4.05(a), 4.05(b) and 4.05(e) hereof to each
Member shall be equal to the net amount that would have been allocated to each such
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(b)
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Member if the allocations made pursuant to Sections 4.05(a), 4.05(b) and 4.05(e)
hereof had not occurred. For purposes of applying the foregoing sentence, allocations
pursuant to this Section 4.06(a) shall only be made with respect to allocations
pursuant to Section 4.05(e) hereof to the extent the Tax Matters Memberreasonably
determines that such allocations will otherwise be inconsistent with the economic
agreement among the parties to this Agreement.
Notwithstanding any other provision of this Agreement, other than Section 4.05
hereof, the Nonrecourse Deduction Allocations and Company Minimum Gain
Chargeback Allocations shall be taken into account in allocating items of income,
gain, loss and deduction among the Members so that, to the extent possible, the net
amount of such allocations of other items and the Nonrecourse Deduction
Allocations and Company Minimum Gain Chargeback Allocations made to each
Member shall be equal to the net amount that would have been allocated to each such
Member if the Nonrecourse Deduction Allocations and Company Minimum Gain
Chargeback Allocations had not occurred. For purposes of applying the foregoing
sentence (i) allocations pursuant to this Section 4.06(b) shall be made only to the
extent necessary to avoid any potential economic distortions caused by a net decrease
in Company minimum gain pursuant to Section 1.704-2(d) and l.704-2(k) of the
Treasury Regulations, and (ii) allocations pursuant to this Section 4.06(b) shall be
deferred with respect to Nonrecourse Deduction Allocations to the extent the Tax
Matters Member reasonably determines that such allocations are likely to be offset by
subsequent Company Minimum Gain Chargeback Allocations.
(c)
Notwithstanding any other provision of this Agreement, other than Section 4.05
hereof, the Member Nonrecourse Deduction Allocations and Member Minimum Gain
Chargeback Allocations shall be taken into account in allocating items of income,
gain, loss and deduction among the Members so that, to the extent possible, the net
amount of such allocations of other items and the Member Nonrecourse Deduction
Allocations and Member Minimum Gain Chargeback Allocations made to each
Member shall be equal to the net amount that would have been allocated to each such
Member if the Member Nonrecourse Deduction Allocations and Member Minimum
Gain Chargeback Allocations had not occurred. For purposes of applying the
foregoing sentence (i) allocations pursuant to this Section 4.06( c) shall be made only
to the extent necessary to avoid any economic distortions caused by a net decrease in
Member minimum gain pursuant to Sections I .704-2(i)(3) and 1.704-2(k) of the
Treasury Regulations, and (ii) allocations pursuant to this Section 4.06(c) shall be
deferred with respect to Member Nonrecourse Deduction Allocations to the extent
the Tax Matters Member reasonably determines that such allocations are likely to be
offset by subsequent Member Minimum Gain Chargeback Allocations.
(d)
The Tax Matters Member shall have reasonable discretion with respect to each
Company fiscal year, to (i) apply the provisions of Sections 4.06(a), 4.06(b) and
4.06(c) hereofin whatever order is likely to minimize the economic distortions that
might otherwise result from the allocations made pursuant to Section 4.05 hereof, (ii)
divide all allocations pursuant to Sections 4.06( a), 4.06(b) and 4.06( c) hereof among
the Members in a manner that is likely to minimize such economic distortions, and
(iii) request that the Commissioner of the Internal Revenue Service waive the
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Company Minimum Gain Chargeback Allocation, the Member Minimum Gain
Chargeback Allocation, or both for such fiscal year if: (l) such allocation would
cause a distortion in the economic arrangement among the Members, (2) the Tax
Matters Member does not expect that the Company will have sufficient other income
to correct that distortion, (3) with respect to the Company Minimum Gain
Chargeback Allocation, the Tax Matters Member can demonstrate the facts required
by Treasury Regulations Section 1.704-2(f)(4), and (4) with respect to the Member
Minimum Gain Chargeback Allocation, the Tax Matters Member can demonstrate
the facts required by rules consistent with Treasury Regulations Section
1.704-2(f)(4).
Section 4.07. Other Allocation Rules. Solely for purposes of determining a Member's
proportionate share of the "excess nonrecourse liabilities" of the Company within the meaning of
Section 1.752-3(a)(3) of the Treasury Regulations, such excess nonrecourse liabilities shall be
allocated among the Members in the manner in which it is reasonably expected (as determined by the
Tax Matters Member) that the deductions attributed to those nonrecourse liabilities will be allocated.
Section 4.08. Tax Allocations; Code Section 704(c).
(a) In the event any Company property is reflected on the books of the Company at a
book value that differs from the adjusted tax basis of such property at the time of its
contribution to the Company or its revaluation pursuant to Subsections (2)(iv)(d) or
(2)(iv)(f) of the Partnership Allocation Regulations, respectively, income, gain, loss,
and deduction with respect to such property shall, solely for tax purposes, be
allocated among the Members in the manner required by Code Section 704(c) and
(4)(i) of the Partnership Allocation Regulations.
(b) Any elections or other decisions relating to such allocations shall be made by the Tax
Matters Member in any manner that reasonably reflects the purpose and intention of
this Agreement. Allocations pursuant to this Section 4.08 are solely for purposes of
federal, state, and local taxes and shall not affect, or in any way be taken into account
in computing, any Person's Capital Account or share of Profits, Losses, other items,
or distributions pursuant to any provision of this Agreement.
Section 4.09. General Provisions. Whenever a proportionate part of Company Profit or
Loss is credited or charged to a Member's Capital Account, every item of income, gain, loss,
deduction, credit or tax preference entering into the computation of such Profit or Loss, or applicable
to the period during which such Profit or Loss was realized, shall be considered credited or charged,
as the case may be, to such account in the same proportion; provided, however, that in the event of
an increase or a decrease in the interest of a Member at any time after the Company's initial fiscal
year other than at the end of a fiscal year of the Company, the share of the Profits and Losses and the
Distributable Cash of the Company shall be allocated among the Persons whose shares are changed
in the same ratio as the number of days in such Company fiscal year before and after the date of such
transfer, except that sale Profits and Losses, refinancing proceeds and the gain, loss and proceeds
arising out of other extraordinary transactions shall be credited to the Person who is a Member as of
the date of such event.
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Section 4.10. No Interest on Capital Accounts. No Member shall be entitled to receive
any interest from the Company on account of the amount of the Member's Capital Account.
Section 4.11. Distribution of Property. Unless the Members otherwise agree, in the event
it becomes necessary to make a Distribution of Company property in kind, then such property shall
be transferred and conveyed to the Members, or their assigns, so as to vest in each of them as a
tenant-in-common, a percentage interest in the whole of said property equal to the percentage interest
he would have received had such property not been distributed in kind.
Section 4.12. Return of Capital Contribution. No Member shall be entitled to withdraw
any part of its Capital Contribution or to receive any Distributions from the Company, unless the
Members determines such a withdrawal or Distribution is in the best interest of the Company and is
not otherwise prohibited by this Agreement. No Member shall have the right to demand or receive
property other than cash in retum for the Member's Capital Contribution; and if, upon dissolution of
the Company, property remaining after the payment or discharge of debts and liabilities of the
Company is insufficient to retum said contributions, no Member shall have any recourse against any
Manager or any Member.
ARTICLE V
Accounting, Reporting and Holding of Assets
Section 5.01. Fiscal Year. The fiscal year of the Company shall be the calendar year.
Section 5.02. Records, Accounting and Reports. The books of account and records of the
Company shall be located at such place as may be specified by the Company and shall be kept and
maintained on a calendar basis in accordance with generally accepted accounting principles.
Section 5.03. Right to Inspection. Each Member or his duly authorized agent shall, at all
reasonable times, have access to, and the right to inspect and copy, any of the books and records of
the Company.
Section 5.04. Holding and Transfer of Assets.
(a) All property, real or personal, owned by the Company shall be deemed to be owned
by the Company as an entity, and no Member or Assignee, individually or
collectively, shall have any ownership interest in such Company assets or any portion
thereof. All Company assets shall be recorded as the property of the Company on its
books and records, notwithstanding the name in which legal title to such assets is
held.
(b) Notwithstanding anything to the contrary in this Agreement, any Person dealing with
the Company shall be entitled to assume that any Member has full power and
authority to encumber, sell or otherwise use, in any manner, any and all assets of the
Company and to enter into any contracts on behalf of the Company, and such Person
shall be entitled to deal with such Member as ifthe Member were the Company's
sole party in interest, both legally and beneficially. Each Member hereby waives any
and all defenses or other remedies which may be available against such Person to
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contest, negate or disaffirm any action of a Member in connection with any such
dealing. In no event shall any Person dealing with a Member or a Member's
representatives be obligated to ascertain that the terms of this Agreement have been
complied with or to inquire into the necessity or expedience of any act or action of
such Member or the Member's representatives. Each and every certificate, document
or other instrument executed on behalf of the Company by a Member or a Member's
representatives shall be conclusive evidence in favor of any and every Person relying
thereon or claiming thereunder that (i) at the time of the execution and delivery of
such certificate, document or instrument, this Agreement was in full force and effect,
(ii) the Person executing and delivering such certificate, document or instrument was
duly authorized and empowered to do so for and on behalf of the Company, and (iii)
such certificate, document or instrument was duly executed and delivered in
accordance with the terms and provisions of this Agreement and is binding upon the
Company.
Section 5.05. Bank Accounts. Funds of the Company may be deposited in its name in such
bank account or accounts as shall be designated from time to time by the Members. All withdrawals
from Company accounts shall be made upon checks signed by or upon the authorization of the
Member. The Company may designate one or more Persons to sign checks upon the Member's
authorization.
Section 5.06. Tax Status; Notice of Tax Controversy. The Company shall be treated and
shall file its tax returns as a partnership for federal, state and municipal income tax and other tax
purposes. If any Member shall receive notice of a tax examination of the Company by federal, state
or local authorities, he shall immediately give notice thereofto the Tax Matters Member.
Section 5.07. Tax Matters Member; Tax Elections; Tax Returns.
(a) The Member listed in Section 1.04 under the definition of "Tax Matters Member" is
hereby designated as the "tax matters partner" of the Company under the Code.
Pursuant to Section 6223(c)(3) of the Code, upon receipt of notice from the IRS of
the beginning of an administrative proceeding with respect to the Company, the Tax
Matters Member shall furnish the IRS with the name, address and profit interest of
each of the Members, provided that such information is provided to the Company by
the Members.
(b) The Tax Matters Member is authorized, but not required, to make tax elections on
behalf of the Company and to exercise in general such powers as are provided in the
Code for a "tax matters partner" of a partnership and specifically to take any action
on behalf of the Members in connection with any tax audit or judicial review
proceeding to the extent permitted by applicable law orregulations. The taking of any
action and the incurring of any expense by the Tax Matters Member in connection
with any such proceeding, except to the extent required by law, is a matter in the sole
and absolute discretion of the Tax Matters Member, and the provisions relating to
indemnification set forth in this Agreement shall be fully applicable to the Tax
Matters Member in its capacity as such.
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(c) The Tax Matters Member shall receive no compensation for its services. All third
party costs and expenses incurred by the Tax Matters Member in performing its
duties as such (including legal and accounting fees) shall be borne by the Company.
Nothing herein shall be construed to restrict the Company from engaging an
accounting firm or legal counsel to assist the Tax Matters Member in discharging its
duties hereunder, so long as the compensation paid by the Company for such services
is reasonable.
(d) The Members shall arrange for the preparation and timely filing of all retums of
Company income, gains, deductions, losses and other items required of the Company
for federal and state income tax purposes and shall use all reasonable efforts to
furnish, within ninety (90) days of the close of each taxable year, the tax information
reasonably required by Members, including copies ofthe Company's tax returns, for
federal and state income tax reporting purposes.
Section 5.08. Tax Matters Member Not Liable. The Tax Matters Member shall not be
liable to any Member or the Company on account of any action taken or not taken so long as the Tax
Matters Member shall act in good faith in such capacity.
ARTICLE VI
Dissolution arid Continuation of Company
Section 6.01. Dissolution. The Company shall be dissolved and, unless continued, its assets
shall be disposed of and its affairs wound up upon the occurrence of any of the following events:
(a) The Bankruptcy ofthe Company.
(b) A voluntary agreement of all the Members at any time to dissolve the Company.
(c) Entry of a decree of judicia 1 dissolution of the Company pursuant to the provisions of
the Act.
(d) The sale or other distribution (other than a disposition occurring upon a financing or
refinancing) of all or substantially all of the assets and properties of the Company.
Section 6.02. Deemed Contribution and Liquidation. Notwithstanding any other
provisions of this Article VI, in the event the Company is liquidated within the meaning of
Subsection (2)(ii)(g) ofthe Partnership Allocation Regulations but where the Company is continued,
the Company's assets shall not be liquidated, the Company's liabilities shaH-not be paid or
discharged, and the Company's affairs shall not be wound up. Instead, the Company shall be deemed
to have contributed its assets to a new company in exchange for its units and then distributed in
liquidation such units in kind to the Members, without effecting any change in the ownership of
interests in the Company as a result of such contribution and liquidation.
Section 6.03. Notice of Dissolution. In the event a dissolution of the Company occurs
pursuant to Section 6.0 I, the Company shall, within thirty (30) days thereafter, provide written notice
thereof to each of the Members.
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ARTICLE VII
Transfer of Membership Interests and Changes in Members
Section 7.01. Member Transfers Restricted.
(a) No Member shall assign all or any portion of his Interest in the Company, or any of
such Member's rights as a Member, or voluntarily withdraw from the Company,
without the prior written consent of all other Members; however, a Member may
assign his economic interests in the Company to any member of his immediate
family, to an Affiliate, or to a trust for estate planning purposes.
(b) Any purported Assignment of a Company Interest by a Member in violation of
Section 7.01(a) shall be void ab initio and shall not be given effect for any purpose
by the Company.
Section 7.02. Effect of Transfer. Any Assignee or other transferee of any interest in the
Company shall take subject to the restrictions and conditions to transfer imposed by this Article;
however, such Assignee shall not be a Member without the unanimous written consent of all of the
Members. '
Section 7.03. Additional Members. Any person, with the prior written consent of all the
Members, may become a Member of the Company for such consideration as the Members shall
determine, subject to the terms and conditions of this Agreement. The Members, at a minimum, shall
require such new member to make a Capital Contribution in exchange for a certain Percentage Share
in an amount based on the actual proportionate net fair market value of all of the Members interests
in the Company at the time such new Member is being admitted to the Company.
ARTICLE VIII
Liquidation
Section 8.01. Liquidation Determination. In the event of dissolution where the Company
is not continued pursuant to this Agreement or otherwise, the Company shall be liquidated.
Section 8.02. Liquidation Procedure. A reasonable time, as determined by the Members,
from the date of an event of dissolution shall be allowed for the orderly liquidation of the assets of
the Company and the discharge of its liabilities. Upon the completion of dissolution in accordance
with the terms hereof, the Company shall terminate and the Members shall cause robe executed and
filed articles of dissolution of the Company whereupon it shall cease to exist in all respects. In the
event of a dissolution of the Company, liquidation of the assets of the Company and discharge of its
liabilities may be carried out by a liquidation trustee or receiver, who shall be a bank or trust
company or other person or firm having experience in managing, liquidating or otherwise handling
property of the type then owned by the Company. Such liquidation trustee or receiver shall be
designated by the Members holding more than ninety-five percent (95%) of the Percentage Shares in
the Company). A liquidation trustee shall not be personally liable for the debts ofthe Company, but
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otherwise shall have such obligations and authorities as are given the Members pursuant to this
Agreement or as may be agreed upon between the Members and said liquidation trustee.
Section 8.03. Allocation of Liquidation Proceeds.
(a) Upon liquidation of the Company, the liquidation proceeds shall be applied and
distributed in the following manner and order of priority:
(i) To the payment of liabilities of creditors other than Members and to the
expenses of liquidation;
(ii) To the setting up of any reserves which the Members determines reasonably
necessary for any contingent liabilities of the Company or of any Member
arising out of, or in connection with, a Company liability, which revenues
shall be paid over by the Company to an escrow agent or shall be held for the
purpose of disbursing such reserves in payment of any such contingent
liabilities and, at the expiration of such period as the Members shall deem
advisable, the balance of which shall be distributed as otherwise provided in
this section;
(iii) To the payment of any liabilities to the Members (other than Capital
Accounts), arising out of or in connection with a Company liability, or if the
amount available for such payment is insufficient, a portion thereof; and
(iv) The remainder to the Members in accordance with Section 4.03 of this
Agreement.
(b) Liquidation proceeds shall be distributed within the time limits required by the Code.
ARTICLE IX
Miscellaneous
Section 9.01. Notice. All notices, elections, consents and approvals under this Agreement
shall be in writing, and shall be effectively given to any Member if delivered to the Member or if
mailed by certified mail, return receipt requested, to such Member at the address provided to the
Company. Any Member may change his or its address for notice by giving notice of such change to
the Company.
Section 9.02. Construction. This Agreement shall be governed by 1ll1d construed in
accordance with the laws of the State of Indiana. In the event any laws, rules, or regulations
applicable to the Company require any Member, or any group or class thereof, to have certain rights,
options, privileges, or consents not granted by the terms of this Agreement, then such Members shall
have and enjoy such rights, options, privileges, and consents so long as (but only so long as) the
existence thereof does not result in a loss of the limitation on liability enjoyed by any other Member
under the Act or the applicable laws of any other jurisdiction.
22
<.
,
Section 9.03. Assigns and Successors in Interest. Except as otherwise provided herein,
this Agreement shall be binding upon and shall inure to the benefit of the parties executing this
Agreement, and the personal representatives, heirs, legatees, devisees, assigns and successors in
interest ofthe Members.
Section 9.04. Assignment. No Member may Assign its interest in the Company or any right
therein to any other Person except as expressly permitted by this Agreement. However, in the event
of any Assignment in accordance with the provisions of this Agreement, the Members, including any
such assignee, agree to execute such documents as may be necessary to effect such change, including
required changes to this Agreement.
Section 9.05. Amendment. This Agreement may be amended upon the unanimous consent
of all Members.
Section 9.06. Further Assurances. The Members will execute and deliver such further
instruments and do such further acts and things as may be necessary to carry out the intent and
purpose of this Agreement.
Section 9.07. Warranties of Representatives. Each Person executing this Agreement on
behalf of a party hereto represents and warrants that he has been fully empowered to execute this
Agreement, and that all necessary action for the execution of this Agreement has been taken.
Section 9.08. Computation of Time. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated period oftime begins to
run shall not be included. The last day of the period so computed shall be included, unless it is a
Saturday, Sunday or a legal holiday, in which event the period shall run until the end ofthe next day
that is not a Saturday, Sunday or legal holiday.
Section 9.09. Captions. Article and section titles or captions contained in this Agreement
are inserted only as a matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any provision hereof.
Section 9.10. Identification. Whenever the singular number is used in this Agreement and
when required by the context, the same shall include the plural; and the masculine gender shall
include the feminine and neuter genders.
Section 9.11. Counterparts. This Agreement may be executed in any number of
counterparts or by separate signature pages identified as such, and all of such counterparts or
signature pages shall for all purposes constitute an agreement binding on the parties hereto,
notwithstanding that all parties are not signatory to the same counterpart or signature page.
Section 9.12. Members' Capability. Anything in this Agreement to the contrary
notwithstanding, no Member, or any Assignee of the Interests thereof, shall be a Person or
organization prohibited by law from becoming such. Any Assignment of an Interest in the Company
to any Person or organization not meeting such standard shall be void and ineffective and shall not
bind the Company.
23
C t
~ Section 9.13. Severability. If any provision of this AgreemeOl shall be declared invalid or
unenforceable, the remainder of this Agreement will continue in full force and effect so far as the
intent of the parties can be carried out. .
,
Section 9.14. Approval or Consent. Except as otherwise provided herein, any approval or
consent required in this Agreement by Members shall be deemed given upon the affirmative vote at a
meeting, or the execution of a written ballot or consent form indicating consent, by Members holding
at least ninety-five percent (95%) of the interests in the Company. The term "consent" shall
comprise the word "approve" as used in the Act.
Section 9.15. Consent of Members and Assignees. By acceptance of an interest herein,
each Member and each assignee of a Member expressly consents and agrees that, whenever in this
Agreement it is specified that an action may be taken upon the affirmative vote or consent ofless
than all of the Members, such action may be so taken upon the concurrence of less than all of the
Members, and each such Member and assignee shall be bound by the results of such action.
Section 9.16. Limitation on Benefits oftbis Agreement. It is the explicit intention of the
Members that no Person other than the Members and the Company (and, to the extent provided in
Section 3.06, the Persons entitled to be indemnified thereunder) is or shall be entitled to bring any
action by or on behalf of the Company to enforce any provision of this Agreement against any
Member (or a Member's successors. and assigns) or the Company, and that the covenants,
undertakings, and agreements set forth in this Agreement shall be solely for the benefit of, and shall
be enforceable only by, the Members (or their respective successors and assigns. as permitted
hereunder) and the Company (and, to the extent provided in Section 3.06, the Persons entitled to be
indemnified thereunder).
Section 9.17. Units Representing Percentage Shares In Company. The Company may
issue certificates to each Member representing each Member's Percentage Share in the Company in
the form of Units. As of the date of this Agreement the Company has authorized ten thousand
(10,000) Units, all of which shall be allocated to First American Exchange Company, LLC.
IN WITNESS WHEREOF, First American Exchange Company, LLC executed this Amended
and Restated Operating Agreement this _ day of , 2004.
FIRST AMERICAN EXCHANGE COMPANY,
LLC.
/L ;1-, .~
By: i.)1w:" A *'h'H~"
V~
S4SOO8vl
24
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.
CERTIFICATION OF RESOLUTION
ADOPTED BY THE MEMBERS OF
OCEAN BLVD II LLC
The undersigned hereby certifies as follows:
1. That he is the sole managing member of Ocean Blvd II LLC, an Indiana limited
liability company (the "Company") and, as such, has access to the books and records of the
Company and is making this certification for and on behalf of the Company.
2. The following Resolutions were adopted by the unanimous consent of the
Members of the Company:
RESOLVED, that the Company is hereby authorized and directed to (i) acquire
the parking garage located at 1041 Collins Avenue in the City of Miami Beach,
Dade County, Florida (the "Property"), for a purchase price of Twelve Million
Dollars ($12,000,000) (the "Purchase"); (ii) borrow Nine Million Eight Hundred
Fifty Thousand Dollars ($9,850,000) from Fremont Investment and Loan, a
California industrial bank (the "Loan") to finance the acquisition of the Property;
(jji) execute and deliver on behalf of the Company all documents necessary or
desirable to effectuate the Purchase and the Loan, including, without limitation, a
promissory note, a mortgage and an environmental indemnity; (iv) modify,
supplement or amend any such documents and agreements as may be necessary;
and (v) do and perform all other acts and things and pay all such fees and
expenses deemed to be necessary, convenient or proper to carry out the foregoing
for and on behalf of the Company in connection with the Purchase and the Loan.
FURTHER, RESOLVED, that David A. Hillert is hereby authorized on behalf of
the Company to execute all documents necessary or appropriate to effectuate such
Purchase and Loan on such terms and conditions as may be acceptable to the
. Company (as evidenced by the signature of David A. Hillert).
FURTHER, RESOLVED, that the authority given herein shall be deemed
retroactive and any and all acts authorized hereunder which were performed prior
to the passage of the foregoing Resolutions are hereby ratified and confirmed.
3. The Resolutions of the Company set out in paragraph 2 above have not been
amended or repealed and are in full force and effect.
<-
,
,
"
WITNESS my hand and seal this _ day of
,2004.
FIRST AMERICAN EXCHANGE COMPANY,
LLC, a Minnesota limited liability company
By:
Printed:
Title:
;\-: d -
j)AAAj '~
VI'
60332_1.DOC
c
-
WRITTEN CONSENT
OF THE MEMBERS
OF OCEAN BLVD II. LLC
IN LIEU OF A MEETING
The undersigned, being the sole member of Ocean Blvd II, LLC, an Indiana limited
liability company (the "Company"), HEREBY ADOPTS AND CONSENTS TO the following
resolutions by written consent and authorize the actions described therein to be taken by the
Company:
RESOLVED, that the Company is hereby authorized and directed to
(i) borrow up to Two Million Five Hundred Thousand Dollars ($2,500,000)
from Hazel Dell, I1..C, an Indiana limited liability company (the "Loan") to
finance the acquisition of a certain parking garage located at 1041 Collins
Avenue, Miami Beach, Dade County, Florida; (ii) execute and deliver on
behalf of the Company all documents necessary or desirable to effectuate the
Loan, including, without limitation, a promissory note; (jji) modify,
supplement or amend any such documents and agreements as may be
necessary; and (iv) do and perform all other acts and things and pay all such
fees and expenses deemed to be necessary, convenient or proper to carry out
the foregoing for and on behalf of the Company in connection with the
Loan.
FURTHER, RESOLVED, that David A. Hillert is hereby authorized on
behalf of the Company to execute all documents necessary or appropriate to
effectuate such Loan on such terms and conditions as may be acceptable to
the Company (as evidenced by the signature of David A. Hillert).
Such actions are taken in accordance with Indiana law and the Company's Articles of
Organization and Operating Agreement with like effect and validity as though they were duly
taken by unanimous action of all members of the Company at a meeting thereof duly called and
legally held.
This Written Consent may be executed in one or more counterparts, all of which shall
constitute a single document.
[SIGNATURE ON NEXT PAGE]
c.
.
This Written Consent is effective as of
, 2064 when it has been signed
,
by all members..
FIRST AMERICAN EXCHANGE COMPANY,
lLC, a Minnesota limited liability company
By: ;1-: tf;; ~
Printed: /Yw ~ N+
Title: V~
S44S9Ovl
..J 10.1'1' 1U.c:.. -=-UU""t J..,J. ..)0
( .... I J HI IUI'<Nt::.T I"IHI"I t;lt::.HL.H
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..;;"
CITY OF MIAMI BEACH
CITY HAl..L 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
OMCE OF THE cm MANAGER
TELEPHONE: (305) 173-7D1D
FAX: (*) I7$-na
June 1,2004
Ocean Blvd. II, LLC (Ocean Blvd.)
328 S. Walnut Street, Suite 2
Bloomington, IN 47401
Fremont Investment &, Loan (Fremont)
175 N. Riverview Drive
Anaheim, CA 92808
Re: Transfer/Sale or Leasebold Interest or Agreement of Lease between the City of
Miami Beach, Florida (City and/or Owner) and Pelican Development, L.L.C.
(pelicab and/or Tenant), dated December 1, 1999, to Ocean Blvd. 11, LLC (Ocean
Blvd.)
Gentlemen:
This Letter Agreement is made and entered into between the parties for the specific purposes and
uses herein contained.
In connection with the above described transfer, the City/Owner has executed and delivered an
Estoppel Certificate of even date herewith, which Estoppel Certificate is made a part hereofby
reference, whether attached or not.
Said Estoppel Certificate does not apply to, nor shall it be construed to estop the City/Owner
from asserting its positions as relate to and/or inteIpretations of those provisions of the above
referenced Agreement of Lease (Lease), which address the following subject areas. The
City/Owner's positions/interpretations are:
(i) The City/Owner makes no representation that the transfer or assignment of the
Lease from Pelican to Ocean Blvd. complies with or may be utilized or otherwise
applied to satisfY any regulatory parlcing requirement, or serve as parking
mitigation for any other project.
(ii) The Premises (as such term is defined in the Lease) contain 344 parking spaces
and, in accordance with Section 6.l(b) of the Lease, are all provided for use by
"members of the general public". Further, Section 10.2(1) does not permit a sub-
lease(s) in whole or in aggregate, that is "greater than twenty percent (20%) of the
..J UI''1-t:J,-,lOt)'J 1.:>;; ~
( ~II T H I I LJt(NI:.T MIHM! I:II:.HCH
,jlao b'(,j '(101(12 P.15/21
., .
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parking on the Premises", or 68 parking spaces, without the prior approval aCthe
City.
The City/Owner acknowledges that by joining in and executing this Letter, neither Ocean Blvd.
nor Fremont express agreement with the City's positions and inteIpretations as set forth above
and neither Ocean Blvd. nor Fremont shall be estopped from asserting differing positions and
interpretations.
v cry truly yours,
~ ~'x ~--O-.
JoDee M. '6onzalei
City Manager
Accepted and Approved:
Fremont Investment and Loan
Ocean Blvd. II LLC, and Indiana
Limited liability company
By:
By:
Name:
Name:
Ti tie:
Title:
F:\alIOIDUBMILETreRSlOCeANBL YFREEMONn,dcx:
.APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
1fI~ 1,-6;/(
mv 28 '04 12:35 FR U I'O<It-f-EY tumi
mv-2&-2liI04 12:52
CITY FlTTCR>EY MIA'll EEACH
305 673 'teB2 P.~
r....
-
?(;
~., 1,,]t1
5"-?-1.' "1
~JoI-
May 28. 2004
Ocean Blvd. n. u.c (OocmBMI.)
321 S. Wahmt S1n:ct, Suite 2
B~lN47401
FJaDOClt ~.t Lom (F.remcmt)
175 N.1UvarvillW DIivc
....".~ CA 92808
Re: l'ralferlStIe efLeaseJaold IDtenIt of A.peemeat ef Leue between tile Clt)' of
MIamI Beadas JIorlda (CIty ..ellor Owaer) ad PeIicaa DfNeIoplUllt, LLC.
(peUcu ad/or TDUt), dated. Deeembtt 1.1999. to Oceu BmL D, LLC (0eeaD
Blvd.)
Gentl~
This I.cttcr Apemem it mado aDd ClDtCirecl into bctwec::n the pardc:e fOr 1IIe IpOCific purpoees and
1I8CI herrJln contained.
In coanection with the Ibove dacribed traD$fer, the City/OwDcr hu exCClUd .. deJiwnd an
E!IIoppel Cerlificate of m:o. date berewith, which Bstoppel Ccrl:ificm: iI made a part beteofby
rcfereuce, wbclher ~ or DOt.
Said &toppe1 Ca:ti1icate does DOt apply jo. Dar abaIJ it be CClIDItnl<<l to llItop the City/OwDcr
4mn I8IIII1iDg jg po8itioDs IS tebCc to mdlor iDtc:rpretation ortbose providou oldie ebove
refereoeed A,8I'CCDIeIlt otLealo (LeIse). which 8ddreB. the foDowiq IlIbjcct III:CIL The
City/OwDcr'. posi~OIIB are:
6) The CityJOwncr makes DO leJH~OIl1hat the 1nlllIter<< attipmcat oltbe
Leue &om Pc:tic.m 10 Ocean Blvd. complies with 01' may lit utilizod or OIhcnrisc
applied to utiIty lltIY ~Im.y paiD! requitemem, 01' serve II pm-;"I
~ tor anyotbe:rprojcct
(ii) the Premises (as such term is cle&oecl in the LnM) CODtaiIl344~ Ip8CClI
and, in ICOClldaacc with Secti0ll6.1(b) oftbc Lcue, lIn!I all providecllbr Il1O by
~ oftbo pDe:I1 public". Puz1hcIr, Secticm IG.2(t) doea DOt p<<D)j!. ~
leuc(s) in whole orm aaa.... thatu"greatertban twoDtypclRlCDt(2O%) oldie
-<
~ 28 '04 12=35 FR ~ J1:KIIoN:Y I'mTH 3175743716 TO 1h~~1714 P.B:Y03
/'fW-28-:<e04 12: 52
CITY ~.I'lIA'1I !lEFCH
3BS 673 7BB2 P. 8<Ve4
5i::9-7.pL-1 1"$6
-
pm'lri"l OIl tIle Premiaea", or 68 PIltiDa spICeS, without the prior app.roval oftbe ~
~ ~fr
The CiI;y/Owuc:r KbJow1cdses that by joiDiDg in and axeeutms thiJ Lettcl-, IIClithet 0ceID Blvd.
DOl' Premaat ClprCII aareemeot with die CitY. potridClDl aDd W<<plollliltians .. set fonb above
and neidurr Oceall Blvd. DlIIr Pnmont IbaJ1 be Mt4pp..d Dom IIIllrf:iDa differm, positious aDd
intolP.~I~,
VfIlY tnJIy)'OUn.
APPROVED AS TO
FOAM &I.ANGUAGE
a FOR EXECUTION
101'80M. Gonzalez
OtyMlD8p
Accepted and Approved:
t:Ir AIlOrIIIf
..
t4t/JV'<# t:/k/'h
ntlo; 8!/jf1
0ceID Blvd. U LLC, III1d lM'lIIIa
Lianitcclliability I!tlIDpIDy
By; ~ (Jf
-., /11-:', . -f.........,
Title: #t<
,~~
TOT#L P. B4
** TDT#L ProE.03 **
..,\.11, 'Uc.--c.uu..... ,L,J-..:J,J
.- -
t~
CITY
('. \..1 I I HI I Uf'lC1't1:. T 1'1 J HI'I J J:I~HLH ./"
. \.)
OF. MIAMI BEACH
.:>= b(.:> .(~~~ 1-'.1<::/<::1
. (
CITY HAlL 1700 CONVENTION C~NTER DRIV~ MIA.MI BEACH FLORIDA. 33139
OFFICE OF THE CITY MANAGER
TELEPHONE: (JOS) 173-1010
FAX: (305) 173-7112
~TOPPELCERTDnCATE
TO:
Ocean Blvd IT, LLC ("Ocean Blvd")
328 S. Walnut Street, Suite 2
Bloomington, IN 47401
Fremont Investment & Loan ("Fremont'')
175 N. Riverview Drive
Anaheim, CA 92808
FROM:
City of Miami Beach, Florida ("Owner")
1700 Convention Circle Drive
Second Floor
Miami Beach, FL 33139
A. On the 111 day of December, 1999, Owner entered into a Illlld lease with Pelican
Development, L.L.C. ("Pelican") for certain land located at 1041 Collins Avenue, in the City of Miami
Beach, Florida ("Lease"), Pelican constructed a parking garage on the land ("Improvements"). Pelican
has agreed to assign and convey to Ocean Blvd the Lease, the Improvements and all ri&hts under the
Lease. Pursuant to Article 10 of the Lease, Owner has agreed to the conveyance and assignment of the
Lease. Pursuant to Section 27.2 of the Lease, Owner is executing this Estoppel Certificate for the benefit
of Ocean Blvd and its lender, Fremont. All words used herein and not otherwise defined herein shall have
the meaning ascribed to such word in the Lease.
B. Owner hereby certifies to Ocem Blvd and Fremont the following:
I. The Lease is unmodified and in full force md effect as of the date of this
Estoppel Certificate. A true, correct and complete copy of the Lease is attached to this Estoppel
Certificate. Except as reflected in the Lease, there are no other agreements between Owner and
Pelican.
2. The Base Rent under the Lease as of the date of this Estoppel Certjficate is
$75,000.00 per year and is paid in monthly installments of ~6,250.00. Such Base Rent has been
paid through the 301h day of June. 2004.
3. The proposed transaction is a Sale of the Project, which shalllJigger the payment
of Percentage Rent. As of the date of this Estoppel Certificate (which is prior'to the Sale of the
Project), no Percentage Rent is due.
4. All Impositions payable by Tenant to Owner which lITe due and payable under
the Lease as of the date of this Estoppel Certificate have been paid, except that sales taxes on the
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monthly installment of Base Rent (said sales tax in the amount of $21.88 per month) for the
months of March, April, May and June, 2004, totaling $87.52, and not including penalties and
penalties interest, Is due and outstanding.
5. To the actual knowledge of Owner (but without independent inquiry), no Event
of Default has occurred and no condition exists which does, or with the giving of notice or the
passage of time, or both, would constitute an Event of Default.
6. Owner has consented to the transfer or assignment of the Lease from Pelican to
Ocean Blvd and, by execution of this Estoppel Certificate, confirms that it has waived its right of
first offer or riiht of fIrSt refusal as set forth in Section 36.2 of the Lease.
7. The statements contained herein may be relied upon by Ocean Blvd., Fremont
and Pelican.
IN WITNESS WHEREOF, the undersigned, who is authorized to execute this Estoppel
Certificate on behalf of Owner, has executed this Estoppel Certificate as of the ~ day of :ru~. .
2004.
THE CITY OF MIAMI BEACH, FLORIDA
:;J~~Pi~;z$
Title; L':r 1JI kll1/1 !l6'E
Attest:
%:;~~~
(Printed Name and Ie)
04 ESTOPPEL CERTIFICA TE.DOC
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
IlOCIO FlOIIIICllEZ
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., lnd~ nmlWd llabl~ Co/1I!l&R)'
Flrel Americ:ln E7t:/1ange Company, LLC lIS QUOlil/ed
IllIllmleClinry for PilIIcan tIo!v8Iopment, L.L.c.. .
F1cmta limited 'ablllly l:O/1"qJlIny
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R..d and Approved: Ocnn BlvcIlI. L1.c, an
Indlanal!mltad Il8bilily ~
8y.~~dJ....t
Read and AppI'lllI8C: Palican ~Y81Opmt1lt.
LI..C.. . I'Ioridla limited 'ilIblllfy company
~t!{?j.
By; 1- ;
lat ......
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Memhar
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