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HomeMy WebLinkAboutOPERATING AGREEMENTff r OPERA BILTMORE COMMERCIAL PARK, LLC THIS AGREEMENT (the' ") is made effective as of the 13th day of May, 2004 by and among Miguel A. JimenezJr. as manager (the "Manager') and City Commercial Properties, LLC, a Florida limited liability company, as Member (the "Member"). WHEREAS, the Articles of Organi: LLC, a Florida limited liability company Secretary of State of the State of Florida on (the "Articles") of Biltmore Commercial Park, "Compan '), were filed in the Office of the 13, 2004; and WHEREAS, the Manager and the Members desire to set forth their respective rights and obligations in respect of the Company; NOW, THEREFORE, in consideration of the foregoing, the Manager and Members hereto agree as follows: For the purposes of this respective meanings: 1.1 "Act" has the meaning ascribed 1.2 "Adjusted Capital Account Del fiscal year, the deficit balance, if any, in such fiscal year, after giving effect to the following NS the following terms shall have the following it in Section 2.1 hereof means, with respect to any Member for any fiber's Capital Account as of the end of such iustments: I (a) credit to such Capital Account any amounts which such Member is obligated to restore thereto pursuant to any provision of this Agreement, is treated as obligated to restore pursuant to Section 1.704-1(b)(2)(ii)(c); of the Regulations, or is deemed to be obligated to restore thereto pursuant to the penultimate! sentences of Sections 1.704-2(g)(1) and 1.704- 2(i)(5) of the Regulations, or any successor provisions; and (b) debit to such Capital Account the items described in Sections 1.704- 1(b)(2)(ii)(d)(4), 1.704- 1 (b)(2)(ii) (d)(5), and 1.104-1(b)(2)(ii)(d)(6) of the Regulations.. The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith. 1.3 "Affiliate" has the meaning ascribed to it in Section 3.4 hereof. 1 / JI 1.4 "Agreement" means this Agreement of Limited Company. . b 1.5 "Articles" has the meaning ascribed to it in the first recital of this Agreement. 1.6 "Available Cash from Gross period (a) cash receipts derived from Gross other .noncash expenses or items but after Operating Expenses) and (b) Net Proceeds sale or refinancing of contributed propert restoration or creation of reserves as dete 1.7 "Available Cash from Co pertinent period, Net Proceeds from Sales more.Members to the Company after deduc of reserves as determined from time to time 1.8 "Book Basis" means with ;" means, for the applicable or pertinent (without deduction for depreciation or for y) rnune deduction for amounts used or necessary to pay from Sales or Refinancings (other than those from the , each after deduction for amounts set aside for d from time to time by the Members. income tax purposes; provided, however, that initial Book Basis of such property shall equa and (b) the Capital Accounts of the Members Regulations to reflect the fair market value of shall be adjusted to equal its respective fair n accordance with such Regulation. The Book depreciation as provided in Section 1.704-1 adjustment to the basis of assets other than dep 1.9 "Capital Account" means, with the Company for such Member in accordance buted Property" means, for the applicable or Refinancings of property contributed by one or a for amounts set aside for restoration or creation the Manager in its sole and absolute discretion. to any asset,.the asset's adjusted basis for federal " (a) property -is contributed to the Company, the its fair market value on the date of contribution, re adjusted pursuant to Section 1.704=1(b) of the ny Company asset, the Book Basis of such asset irket value as of the time of such adjustment in 3asis of all assets shall be adjusted thereafter by b)(2)(iv)(g) of the Regulations and any other -ciation or amortization. (a) to each Member's Ca' contributions of cash made by, such Member to of any property contributed by such Member to, to which such property, is subject or which j distributive share of Profit, items thereof, and pursuant to Section 6.04; and any other increa. Cap ect to any Member, the account maintained by the following provisions: Account there -shall be credited: any the capital of the .Company plus the Book Basis. the capital of the Company (net, of any liabilities are assumed. by the Company); the Member's items of income and gain specifically allocated ses required by Section 1.704-1(b)(2)(iv), of the Regulations; (b) to each Member's Capital Account . there shall be debited: any distributions of cash made from the Company to such Member plus the fair market value of any property distributed in kind to such Member (net of any liabilities to which such property is subject or which are assumed by such Member); the Member's distributive share of Loss, items thereof and deductions or losses specially allocated to such Member pursuant to Section 6.04; and any other decreases required by Section 1.704-1(b)(2)(iv)of the Regulations; and 2� (c) in determining the amount of any liability for purposes of clauses (i) and (ii) above, there shall be taken into account Section 752(c) of the Code and any other applicable provisions of the Code and the Regulations. The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Section 1.704-1(b) of the Regulations, and shall be interpreted and applied in a manner consistent with such Regulations. In the event the Manager shall determine that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including, 'without limitation, debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Company or any Member), are computed in order to comply with such Regulations, the Manager may make such modification, provided that it is not likely to have a material effect on the amounts distributable to any Member pursuant to Section 8.2 hereof upon the dissolution of the Company. The Manager shall also make any (a) adjustments that are necessary or appropriate to maintain equality between the aggregate Capital Accounts of the Members and the aggregate amount of Company capital reflected on the Company's balance sheet, as computed for book purposes in accordance with Section 1.704-1(b)(2)(iv)(g) of the Regulations, and (b) appropriate modifications in the event unanticipated events that might otherwise cause this Agreement not to comply with Section 1.704-1(b) of the Regulations. 1.10 "Capital Contributions" mean - money and the Book Basis of any other prope contributed property is subject) contributed to respect to the Interest held by such Member a reference in this Agreement to the Capital I contributions to the capital of the Company m in respect of such Interest of such Member. with respect to any Member, the amount of (less any amount of indebtedness to which any e capital of the Company by such Member with . pursuant to the terms of this Agreement. Any atribution of a then Member shall include the by any predecessor in interest of such Member 1.11 "Code" shall mean the Internal Revenue Code of 1986, as amended, or corresponding provisions of subsequent revenue laws. I 1.12 "Company" has the meaning ascribed to it in the first recital of this Agreement. 1.13 "Company Year" has the meaning ascribed to it in Section 2.6 hereof. 1.14 "Event of Withdrawal' has the meaning ascribed to it in Section 7.5(b) hereof. 1.15 "Exempt Transferee" has the meaning ascribed to it in Section 7.1 hereof. 1.16 "Gross Revenues" means, for the applicable or pertinent period, all revenues derived by the Company from the ownership of the Investments, but excludes Net Proceeds from Sales or Refinancing. 1.17 "Initial Capital Contribution" hag the meaning ascribed to it in Section 5.1(a) hereof. 3� \ l I 1.18 "Interest" means the entire ownership interest of a Member in the Company at any particular time expressed as a percentage'of all Interests in the Company (viz. 100%), which Interests are shown on Schedule A attached hereto. 1.19 "Invested Capital" means a Member's Initial Capital Contribution and any additional capital contributed to the Company, collectively., net of any return of capital pursuant to this Agreement. I 1.20 "Investments" means all personal, tangible or intangible, as the Cc 1.21 "Legal Representative" has the 1.22 "Liquidating Agent" has the 1.23 "Manager" means Miguel A. Eli 1.24 "Member" means any of the successors or transferees who is admitted as a accordance with the requirements of this Agree ties and any other property, whether real or may acquire from time to time. ascribed to it in Section 7.4(b) hereof. ascribed to it in Section 8.1(c) hereof. Jr. , or any of their Exempt Transferees, to the Company after the date hereof in 1.25 "Members" means, collectively, the Members and any of their Exempt Transferees, successors or transferees who is admitted as a Member to the Company after the date hereof in accordance with the requirements of this Agreement. 1.26 "Net Proceeds from Sales or Rc by the Company from the sale, refinancing c Investments after the payment of all debts and i disposition and any Operating Expenses then p of funds are insufficient to pay. aancing" means the cash realized and received other disposition of all or any portion of the penses related to such sale; refinancing or other able or past due which other Company sources - I 1.27 "Nonrecourse Deductions" has the meaning set forth in Section 1.704-2(b)(1) of the Regulations. 1.28 "Nonrecourse Liability" has the meaning set forth in Section 1.704-2(b)(3) of the Regulations. 1.29 "Operating Expenses" means, for the applicable or pertinent period, all cash expenditures or payments made by the Company, during such period of every kind and nature in connection with the acquisition and ownership of, the Investments and/or operations and business of the Company. 1.30 "Partner Nonrecourse Debt"'has the meaning set forth in Section 1.704-2(b)(4) of the Regulations. I 4 1.31 "Partner Nonrecourse Debt Minimum Gain" has the meaning set forth in Section 1.704-2(i)(2) of the Regulations. 1.32 "Partner Nonrecourse Deductions" has the meaning set.forth in Sections 1.704 2(i)(1) and 1.704-2(i)(2) of the Regulations. , 1.33 "Partnership Minimum Gain" hlas the meaning set forth in,Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations. 1.34 "Profits" and "Losses" means, foi r each Company Year or other period, an amount equal to the Company's taxable income or loss for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments: () any a income of the Company that is exempt from Federal income tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss; (b) any expenditures of the Code or treated as Section 705(a)(2)(B) expe the Regulations and not otherwise taken into subtracted from such taxable income or loss; iy described in Section 705(a)(2)(B) of the pursuant to Section 1.704-1(b)(2)(iv)(i) of in computing Profits or Losses, shall be (c) gain or loss resulting from any disposition Hof Company property with respect to which gain or loss is recognized for Federal income tax purposes shall be computed by reference to the Book -Basis of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Book Basis; (d) 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 Company Year or! other period as determined in accordance with Section 1.704-1(b)(2)(iv)(g); i (e) notwithstanding any other provisions hereof, any items which are specially allocated pursuant to Section 6.4 hereof shall not be taken into account in computing Profits or Losses; and (f) any increase or decrease to, capital accounts as a result of any adjustment to the book value of Company assets pursuant to Section 1.704-1(b)(2)(iv)(g) of the. Regulations shall constitute an item of Profit or Loss as appropriate. The amounts of the items of Company income, gain, loss or deduction available to be specially allocated pursuant to Article VI hereof shall be determined by applying rules analogous to those set forth in clauses (i) - (v) above and Section 6.41iereof. 5 1.35 "Regulations" means the Federal Income Tax Regulations, as amended (including Temporary Regulations) promulgated under the Code. 1.36 "Regulatory Allocations" has the meaning ascribed to it in Section 6.4(f) hereof. 1.37 "Returns" has the meaning ascribed to it in Section 4.2(c) hereof. 1.38 "Securities" has the meaning ascribed to it in Section 2.3(a)(i) hereof. 1.39 "Withdrawing Manager" has the meaning ascribed to it in Section 7.5(b) hereof. 1.40 "Withdrawing Member" has the meaning ascribed to it in Section 7.4(b) hereof. ARTICLE II ORGANIZATION 2.1 . Formation and Name of Company. The Members hereby agree that the Company has been formed as a limited liability company by the filing of the Articles under the name 'Biltmore Commercial Park, LLU pursuant to the Florida Limited Liability Company Act, as amended (the "Act") and shall operate under that name for the purposes indicated in Section 2.3 hereof. The Manager shall have the power, in his, her or its sole and absolute discretion, to change the name of the Company and shall give prompt notice of any such change io each Member. The Members agree to be Members in the Company and to engage in the business hereinafter described for the period and upon the terms and conditions hereinafter set forth. 2.2 Registered Agent and Registered Office. The registered office of the Company in the State of Florida is at 12450 Northwest South River Drive, Miami, Florida 33178. The agent of the Company for service of process in the State of Florida is Miguel A. Jimenez, Jr. The registered office and the business office of the Company may each be changed from time to time by the Manager, in his, her or its sole and absolute discretion, in which event written notice thereof shall be given by the Manager to the Members. 2.3 Business, Purpose and Powers. (a) The Company is organized for the following objectives and purposes: (i) to acquire, hold, sell, sell short or - otherwise dispose of, and generally to invest, reinvest and trade in, on margin or otherwise, capital stock, warrants, bonds, notes and debentures (whether subordinated, convertible or other) and other securities of whatever, kind or nature of any person, government, corporation or unincorporated body, rights 246- options.f :relating thereto, including "put" and "call" options, futures contracts and any. other U financial instruments, commodities and commodity contracts (all such items being hereinafter referred to as "Securities"); (ii) to purchase, sells, possess, hold, transfer, lease, license, mortgage, pledge or otherwise deal in, and to exercise all rights, powers privileges and other incidents of ownership or possession with respect to Investments; and (iii) to engage in such other 'activities 'and transactions as may be necessary or advisable in the discretion of the Manager. i (b) In furtherance of the aforesaid business and purpose, the Company shall have all powers necessary, suitable or convenient for the accomplishment thereof, alone or with others, as principal or agent, including, without ilimitation, the following powers: (i) to buy, sell, hold, receive, mortgage, pledge, transfer, exchange or otherwise acquire or dispose or turn to account or realize upon, any property (real or personal, tangible or intangible) of all types and varieties whether within any without the State of Florida, and to exercise all rights, powers, privileges and other incidents of ownership or possession with respect to all property (real or personal, tangible for intangible) held or owned by the Company; (ii) to hold, maintain) and/or invest all or any part of the assets, properties or funds of the Company in cash or cash equivalents; (iii) to borrow (for any of the Company hereunder) or raise money fron bills of exchange, warrants, bonds, debentw instruments or evidences of indebtedness, to 'se indebtedness and the interest thereon, throug] conveyance or assignment in trust of the who] Company, whether at the time owned or thereaftt erm or period, whether or not beyond the term time to time, to issue promissory notes, drafts, ;s and other negotiable and non-negotiable ure the payment of the principal of any such a margin account or by mortgage, pledge, or any part of the assets or property of the acquired; (iv) to lend (for any term or period, whether or not beyond the term of the Company hereunder) any of its assets, properties or funds, either with or without security; (v) to have and maintain one or more offices and, in connection therewith, to rent or acquire office space, engage personnel and compensate them to do such other acts and things as may be advisable or necessary in connection with the maintenance of such office or offices; (vi) to open, maintain and close bank accounts and draw checks and other orders for the payment of moneys; (vii) ' to engage consultants, advisors, accountants, attorneys and any and all other experts, agents and assistants, both professional and non-professional, and to compensate them in such amount as may be necessary or appropriate; 7 (viii) to enter into, make and perform all contracts, agreements and other undertakings as may be necessary or appropriate or incident to carrying out the Company's business and purpose; (ix) to sue, to pr parties, to compromise, settle or accept jud all documents and make all representations, zte, settle or compromise claims against third it or claims against the Company and to execute issions and waivers in connection therewith; and (x) to take all other ilawful actions in connection therewith deemed necessary or appropriate by the Manager in his, Iher or its sole and absolute discretion. (c) Notwithstanding the action, nor shall any Member make any. c Company to be treated as an "investment Code) if the Company were incorporated. 2.4 Principal Office. in no. event shall the Manager take any 1 to the Company which would cause the (within the meaning of Section 351 of the The principal place of business '!of the Company shall be at 12450 Northwest South River Drive, Miami, Florida 33178. ThelManager may provide for additional offices of the Company within or without the State of Florida if the same are appropriate, in the sole and absolute discretion of the Manager, for the conduct of the Company's business. However, no office shall be established or maintained in any locality without first qualifying the Company, if required, to do business in any such locality as a limited liability company. 2.5 Term. The term of the Company commenced upon the filing of the Company's Articles in the office of the Secretary of State of the State of Florida and shall continue until dissolved and terminated as provided in Section 8.1 hereof. 2.6 Fiscal Year. The fiscal year of the Company (the. "Company Year") shall be the calendar year. 2.7 Company Assets. Ownership of assets acquired to effect the purpose of the Company shall be held in the name of the Company, except as determined by the Manager in his, her or its' sole and absolute discretion or as otherwise provided in this Agreement. 0 ARTICLE III MANAGEMENT OF BUSINESS 3.1 Authority of the Manager. (a) The Manager shall have full and complete charge of all affairs of the Company and shall have full power and authority to exercise any and all powers of the Company hereunder or under applicable law. The management and control. of the Company's business shall rest exclusively with the Manager, subject to the terms and conditions of this Agreement. Without limiting the generality of the authority and powers of the Manager, the Manager is expressly authorized, on behalf of the Company, to (i) sign all Company contracts and agreements, (ii) execute checks, drafts and other orders for the payment of Company funds, (iii) open, maintain and close bank accounts, brokerage accounts, and other accounts for the Company, (iv) borrow or raise money from time to time, (v) lend Company funds, (vi) hire employees of the Company and retain consultants, advisors, accountants, attorneys, and other experts, agents and assistants for the Company, (vii) compromise and settle any claims made by or against the Company (viii) sell any of the Company's assets and (ix) conduct other activities on behalf of the Company in all matters consistent with the business and purpose of the Company. (b) The Manager is specifically, authorized to delegate all or any part of his, her or its authority, discretion and powers hereunder and/or under applicable law to any individual or entity, including any individual or entity affiliated with the Manager. In furtherance thereof, the Manager, on behalf of the Company, may enter into an agreement with any such individual or entity for the purpose of effecting or evidencing any such delegation. Each such agreement shall be binding upon the Company in accordance with its terms. (c) No person dealing with any employee or agent authorized by the Manager shall be required to determine the authority of such employee or agent to act on behalf of the Company, or to determine any facts or circumstances bearing on the existence of such authority, or to see to the application by such employee or agent of any money or other property paid or delivered to him as recipient for the Company. (d) The Manager (to the extent that he, she or it, in his, her or its sole and absolute discretion, determines the same to be needed for the proper conduct of the Company business) may rent office space and incur telephone, telegraph, secretarial, bookkeeping, publication, data processing, consulting, accounting and legal expenses, and may pay other operating costs and expenses including, without limitation, salaries, bonuses and other compensation. The Manager shall be entitled to obtain reimbursement from the Company for all such costs and expenses, and the amount so reimbursed shall be an expense of the Company. 9 3.2 Powers of Members. (a) The Members shall take no part in the conduct or control of the Company's business (other than to require that it be conducted in accordance with the terms and conditions hereof) and shall have no authority to act for or bind the Company. (b) The actions and decisions of the Manager relating to Company matters shall be binding on the Company as provided in this Agreement. 3.3 Liability of Members. The Members shall in no event be personally liable for or subject to any liability or obligation whatsoever of the Company, or be required to contribute any capital to the Company. 3.4 Permitted Transactions. The fact that any Member or member, officer, director, stockholder, trustee, fiduciary, employee or agent of such Member (collectively, an "Affiliate ") is, or is employed by, or is directly or indirectly interested in or connected with, any firm or corporation employed by the Company to render or perform a service, or from which the Company may make any purchase, or to which the Company may borrow or sell, or to which the Company may lend, shall not prohibit the Company from engaging in any such transaction with such firm or corporation, or create any duty or legal obligation additional to that which would exist if such firm or corporation were not so related to the Company, and neither the Company nor any other Member shall have any rights in or to any income or profits derived from such transaction by such Member, Affiliate, firm or corporation. 3.5 Exculpation and Indemnity; Reimbursement. (a) Neither the Manager nor its Affiliates shall be liable, in damages or otherwise, to the Company or to the Members for any act or omission performed or omitted by any of them pursuant to the authority granted by this* Agreement, except if such act or omission results from the bad faith or fraud of any such person. The Company shall indemnify, defend and hold harmless the Manager and its Affiliates from and against any and all claims or liabilities of any nature whatsoever arising out of or in connection with the assets or business of the Company, except where attributable to the bad faith or fraud of any such person. The Manager shall be entitled to reimbursement for the costs and any legal fees of enforcing the foregoing indemnity. (b) The Manager shall be entitled to reimbursement by the Company for any out-of-pocket expenses paid for or incurred by the Manager for the internal overhead and other expenses related to the Company, its Investments and its operations. 10 ARTICLE IV REPORTS TO MEMBERS; ACCOUNTS 4.1 Books of Account. At all times during the continuance of the Company, the Manager shall keep or cause to be kept true and correct books of account, in which shall be entered fully and accurately each transaction of the Company. Such books of account shall at.all times be maintained at the principal office of the Company and shall be open to the reasonable inspection and examination of the Members or their duly authorized representatives. The Manager shall be entitled to reimbursement by the Company for any out-of-pocket expenses paid or incurred by it in connection with keeping such books. 4.2 Audit and Reports. (a) In the sole and absolute discretion of the Manager, the books and records of the Company shall be reported on as of the end of each Company Year by a firm of independent certified public accountants; provided, however, that the Manager shall not be required to retain any such independent certified public accountants. Such accountants shall be selected from time to time by the Manager in his, her or its sole and absolute discretion. (b) The Manager shall use reasonable efforts to cause to be delivered to each Member, within ninety (90) days after the end of each Company Year, and at the Company's expense, the following: (i) financial statements of the Company as of the end of such Company Year, including a profit and loss statement and a balance sheet of the Company (unaudited); (ii) a statement of the balance in the capital account of such Member, starting with the balance as at the beginning of such Company Year and showing in reasonable detail the charges and credits to the Member's capital account during such Company Year; (iii) a statement of the amount of such Member's share of the Company's taxable income or loss for such Company Year, and his, her or its share of each item of income, deduction or.credit in sufficient detail to enable such Member to prepare his, her or its federal, state and local tax returns; and (iv) any other additional information which the Manager, in his, her or its sole and absolute discretion, deems necessary or appropriate. (c) The Manager shall prepare or cause to be prepared, at the Company's expense, all federal, state and local tax returns of the Company (the "Returns") for each Company Year for which the Returns are required to be filed. The Manager shall determine the accounting methods and conventions to be used in the preparation of all Returns, and shall 11 determine whether to make any applicable election under the tax laws of the United States, the several states and other relevant jurisdictions as to the treatment of items of income, gain, loss, deduction and credit of the Company. Such elections include, but are not limited to, in the case of a distribution of Company property to a Member, the election under Section 754 of the Code and under corresponding provisions of the applicable state and local tax laws to adjust the basis of the assets of the Company pursuant to Sections 734 and 743 of the Code. As to all other relevant matters, the Manager shall determine whether to claim any available credit or adopt any other method or procedure related to the preparation of the Returns, taking into account the interests of all the Members. (d) In the event of an income tax audit of any Return, the Manager shall be designated as the "Tax Matters Partner" as that term is defined in Section 6231 of the Code. All expenses incurred in connection with such audit br related proceedings shall be an expense of the Company. 4.3 Bank Accounts. All funds of the Company shall be deposited in such bank and investment account or accounts (interest bearing or not) as shall be designated from time to time by the Manager. Withdrawals from any such bank or investment account or accounts shall be made upon such signature or signatures as the Manager may designate. ARTICLE V CAPITAL CONTRIBUTIONS 5.1 Capital Contributions. (a) Each Member has made an initial contribution to the capital of the Company ("Initial Capital Contribution") of the amount of cash and/or other property shown on Schedule A in consideration for the issuance by the Company to each such Member of the percentage of Interest appearing next to such Member's name on Schedule A. (b) Each percentage of Interest shall represent an equivalent economic interest in the Company. (c) Except as provided in this Agreement, no interest or other return shall be paid on any Capital Contributions to the Company. (d) No Member shall be required to make any additional capital contributions to the Company except as provided in this Agreement or unanimously approved by the Members. 12 5.2 Capital Accounts. (a) No Member shall be entitled to withdraw any part of his, her or its Capital Account or Capital Contributions, or redeem his, her or its Interest without the prior consent of the Manager, which consent may be unreasonably withheld. Only the Manager, in his, her or its sole and absolute discretion, may permit. such withdrawals or redemptions. Except as provided in this Agreement, no Member shall be permitted to receive any distributions from the Company. j . (b) At no time during ; the term of the Company, or upon dissolution and liquidation of the Company, shall a Member with a negative balance in his capital account have any obligation to the Company or the other Members to restore such negative balance. 5.3 Manager Not Personally Liable For Return of Capital. Notwithstanding anything to the contrary contained herein, the Manager shall not be personally liable for the distribution or return of the Capital Contributions, or any additions to the Capital Accounts, of the Members, or any portion thereof, it being expressly agreed that any such distribution, return or payment as may be made at any time, or from time to time, shall be made solely from the assets of the Company as provided in this Agreement. ARTICLE VI DISTRIBUTIONS; INCOME AND LOSSES 6.1 Distributions. (a) Available Cash from Gross Revenues of the Company may be distributed to the Members at such times and in such amounts as the Manager may determine in his, her or its sole and absolute discretion. Distributions of Available Cash from Gross Revenues, if and when made, shall be made to the Members on a proportionate basis in accordance with each such Members' Interest. (b) Available Cash from Contributed Property may be distributed to the Members at such times and in such amounts as the Manager may determine in his, her or its sole and absolute discretion. Distributions of Available Cash from Contributed Property, if and when made, shall be made to the Member(s) who contributed the properties to which such sales or refinancings relate on a proportionate basis in accordance with the amount of net proceeds generated by each such sale or refinancing bears to the total amount of net proceeds generated from all such sales or refinancings of contributed property for the applicable period. 6.2 Allocations of Profits and Losses. Except as provided in Sections 6.3 and 6.4 hereof, all Profits and Losses shall be allocated for federal, state and local income tax purposes in the following order of priority: 13 (a) First, Profit shall be allocated to the Members to the extent of, and in proportion to, their respective shares of Available Cash distributed pursuant to Section 6.1(a) and 6.1(b) hereof. (b) Next, Loss from the sale �,of contributed property shall be allocated to the Member who contributed the property to which the Loss relates. (c) Finally, any remaining Profits and Losses shall be allocated to .the Members on a proportionate basis in accordance with each such Members' Interest. 6.3 Special Allocations. (a) Except as otherwise provided in this Agreement, all items of Company income, gain, loss, deduction, and any other allocations not otherwise provided for herein shall be divided among the Members in the same proportions as they share Profits or Losses, as the case may be, for the Company Year. (b) No allocation of loss or deduction shall be made to a Member if such allocation would cause or increase an Adjusted ',Capital Account Deficit in such Member's Capital Account after all other allocations for the current Company Year have been made. Any such disallowed allocation shall be made to the Member or Members permitted to receive such allocation in accordance with Section 1.704 of the Regulations in proportion to their respective Interests. 6.4 Overriding Allocations of Profits and Losses. (a) (i) Except as otherwise ',provided in Section 1.704-2(f) of the Regulations, notwithstanding anything contained in this Article VI to the contrary, if there is a net decrease in Partnership Minimum Gain during a taxable year of the Company, then there shall be allocated to each Member, before any other allocation of any item of income, gain, loss, deduction or credit is made for such taxable year, items of income and gain for such taxable year (and, if necessary, for subsequent taxable years) in an amount equal to such Member's share of the net decrease in Partnership Minimum Gain during such year (as specified in Section 1.704- 2(g) of the Regulations). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be, so allocated shall be determined in accordance with Sections 1.704-2(f)(6) and 1.704-20)(2) of the Regulations. The allocations contained in this Section 6.4(a)(i) is intended to be a "minimum gain chargeback" within the meaning of Section 1.704-2(f) of the Regulations, and shall be interpreted consistently therewith. (ii) Except as otherwise provided in Section 1.704-2(i)(4) of the Regulations, notwithstanding anything contained in this Article VI to the contrary, except Section 6.4(a)(i) hereof, if there is a net decrease in Partner Nonrecourse Debt Minimum Gain attributable to a Partner Nonrecourse Debt during any taxable year of the Company, each Member who has a share of the Partner Nonrecourse Debt Minimum Gain attributable to such 14 Partner Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of the Regulations, shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent taxable years) in an amount equal to such Member's share of the net decrease in Partner Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance .with Section �1.704-2(i)(4) of the Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(i)(4), 1.704-2(f)(6) and 1.704-20)(2) of the Regulations. This Section 6.4(a)(ii) is intended to comply with the minimum gain chargeback requirement of Section 1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith. (b) Notwithstanding any provisions of this Article VI to the contrary, but subject to the provisions of Section 6.4(a) hereof, in the event any Member unexpectedly receives any adjustments, allocations, or distributions described in Section 1.704- 1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this Section 6.4(b) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article VI have been tentatively made as if this Section 6.4(b) were not in this Agreement. In the event that any such adjustments, allocations or distributions create an Adjusted Capital Account Deficit for more than one Member in any taxable year of the Company, all such items of income and gain of the Company for such taxable year and all subsequent taxable years shall be allocated among all such Members in proportion to their respective Adjusted Capital Account Deficits in such amount and manner sufficient to eliminate such Adjusted Capital Account Deficits as quickly as possible. The allocation contained in this Section 6.4(b) is intended to be a "qualified income offset" within the meaning of Section 1.704-1(b)(2)(ii)(d) of the Regulations, and shall be interpreted consistently therewith. Thereafter, all profits and losses shall be allocated as provided for in Section 6.2, Section 6.3, Section 6.4(c) and Section 6.4(d) hereof. (c) Notwithstanding any provisions of this Article VI to the contrary, but subject to the provisions of Section 6.4(a) and Section 6.4(b) hereof, in accordance with Section 704(c) of the Code and the Regulations promulgated thereunder, income, gain, loss, deduction and tax depreciation with respect to any property contributed to the capital of the Company, or with respect to any property which has a Book Basis different than its adjusted tax basis, shall, solely for federal income tax purposes, be allocated among the Members so as to take into account any variation between the adjusted tax basis of such property to the Company and the Book Basis of such property. (d) In the event any Member has an Adjusted Capital Account Deficit at the end of any Company Year 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 6.4(d) shall be made if and only to the extent that such Member would 15 have a deficit Capital Account in excess of such sum after all other allocations provided for in this Article VI have been tentatively made as 'if Section 6.4(b) hereof and this Section 6.4(d) were not in this Agreement; (e) (i) Nonrecourse Deductions for any Company Year or other period shall be specially allocated among the Members in proportion to their Interests. (ii) Any Partner Nonrecourse Deductions for any Company Year shall be specially allocated to the Member who bears; the economic risk of loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with Section 1.704-2(i)(1) of the Regulations. (f) The allocations set forth inI Section 6.4(a), Section 6.4(b), Section 6.4(d) and Section 6.4(e) hereof (the "Re ug latory Allocations") are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with pther Regulatory Allocations or with special allocations of other items of Company income, gain, loss, or deduction pursuant to this Section 6.4. Therefore, notwithstanding any other provision of this Article VI (other than the Regulatory Allocations), the Manager shall make such offsetting special allocations of Company income, gain, loss, or deduction in whatever manner it 'determines appropriate so that, after such offsetting allocations are made, each Member's 'Capital Account balance is, to the extent possible, equal to the Capital Account balance such'l Member should have had if the Regulatory Allocations were not part of the Agreement and all Company items were allocated pursuant to Section 6.2, Section 6.3 and Section 6.4(c). ARTICLE VII ASSIGNMENTS; WITHDRAWAL AND SUBSTITUTION OF MEMBERS; CERTAIN TRANSFERS 7.1 Assignments by Members. (a) The Interest of a Member (and/or a Member's beneficial interest in the income and losses of the Company) shall not be permitted to be transferred, sold, assigned, redeemed, encumbered or otherwise disposed of unless the prior written consent of the Manager is first obtained, which consent may be unreasonably withheld. No attempted transfer by any person of the Interest of a Member (and/or a Member's beneficial interest in the income and losses of the Company) other than with the prior written consent of the Manager shall be valid or reflected on the Company's books. Notwithstanding the generality of the foregoing provisions of this Section 7.1, a Member may, without the consent of the Manager, transfer all or any portion of his or its Interest during lifetime or at death, to the Company, to any other Member, to his or her spouse and/or lineal descendants, or to a trust, family limited partnership or other entity created by such Member for the benefit of such Member, his or her spouse, or lineal descendants (each, an "Exempt Transferee") subject, however, to the remaining provisions of this Section 7.1, and provided that any permitted transfer shall be effective only if: 16 (i) a counterpart of the instrument. of transfer, executed and acknowledged by the parties thereto and in form and substance reasonably acceptable to the Manager, shall have been delivered to the Company; (ii) the transferor or transferee shall have paid such amount, as the Manager may determine, to cover all expenses connected with such assignment; (iii) the transferor, if so' requested by the Manager, shall have delivered to the Manager an opinion of counsel, acceptable to the Manager, and in form and substance reasonably satisfactory to counsel to the Company to the effect that the proposed transfer of the transferor's interest in the Company is exempt from the registration requirements of the Securities Act of 1933 and complies with, or is lexempt from, the registration or qualification requirements of any applicable state securities law�,or regulation; (iv) the transferee, if so requested by the Manager, shall have delivered to the Manager a letter, in form and substance reasonably acceptable to the Manager, stating that the transferee is acquiring his, her or its interest; for investment, and not for the purpose of reselling or otherwise distributing such interest, and that the transferee will not effect a further transfer of such interest except pursuant to the terms and conditions of this Section 7.1 and pursuant to all applicable federal and state securities) laws and regulations; and ( v) the transferor and transferee shall have executed, acknowledged and delivered to the Company such other instruments and documents as the Manager shall reasonably deem necessary or appropriate in connection with such transfer. A permitted transfer shall be effective as of the date such transfer documents are signed. (b) Subject to the provisions of Section 7.1(a) hereof, from and after the effectiveness of a transfer of the Interest of a Member, the transferee shall be entitled, solely as the transferee of the transferor's interest, to receive distributions and be credited or debited with allocations of income or loss, all as herein provided, but such transferee shall have no other rights by virtue of such transfer and shall not be deemed to be or to have become a substituted Member. Anything herein contained to the contrary notwithstanding, the Company shall be entitled to treat the transferor of his, her or its Interest as the absolute owner thereof and shall. incur no liability by reason of distributions made in good faith to such transferor, until such time as the assignment instruments shall have been filed with and accepted by the Company and receipt thereof acknowledged by the Manager on behalf of the Company. (c) A transferee of all or part of a Manager's Interest or his, her or its beneficial interest in the income and losses of the Company shall have the right to become a substituted Member if- (i) the transferor shall have stated its intention that the transferee becomes a substituted Member in the instrument of assignment which is in form and substance satisfactory to the Manager; 17 (ii) the transferee shall have executed an instrument, in form and substance satisfactory to the Manager, accepting, adopting and agreeing to be bound by all of the terms and conditions of this Agreement as the same theretofore may have been amended; (iii) the transferor or � transferee shall have paid all expenses in connection with the admission of the transferee', as a Member, including, without limitation, all legal expenses and all expenses related to the amendment of the Articles of Organization, if any; (iv) the transferor and transferee shall have executed, acknowledged and delivered to the Company such other instruments and documents as the Manager shall deem reasonably necessary or appropriate in connection�with such substitution; and (v) the Manager shall have consented to such substitution, which consent may be unreasonably withheld. The substitution of a Member shall be effective as of the date of such consent, and the substituted Member thereafter shall have all of the rights and obligations of the Member for whom he or she has been substituted. 7.2 Withdrawal, Bankruptcy Death, Dissolution, Liquidation or Adiudication of Incompetency of a Member. (a) Except as provided in Section 7.1 or Section 7.2 (b) hereof, no Member shall be allowed to withdraw from the Company prior to dissolution of the Company pursuant to Section 8.1 hereof. (b) In the event and upon the effectiveness of the bankruptcy (as defined in Section 7.4(c) hereof), death, dissolution, liquidation,, or adjudication of incompetency of, or the appointment of a guardian, committee or conservator for, a Member .(the "Withdrawing Member'), the executor, administrator, guardian, committee, liquidator, conservator, trustee or other legal representative (the "Legal Representative") of the Withdrawing Member shall succeed to the rights of such Withdrawing Member to receive allocations and distributions hereunder. The withdrawal of a Withdrawing Member pursuant to this Section 7.3 shall not give rise to a dissolution or liquidation of the Company. (c) For purposes of this Agreement, the term "bankruptcy" shall mean the filing by a Member of a voluntary petition in bankruptcy or a voluntary petition seeking reorganization, arrangement or readjustment in any form of its debts under the Federal Bankruptcy Code or any other federal or state insolvency law, or a Member's filing an answer consenting to or acquiescing in any such petition; the making by a Member of any assignment for the benefit of his, her or its creditors or the admission in writing by a Member of his, her or its inability to pay his, her or its debts when they become due; or the expiration of sixty (60) days after the filing of an involuntary petition against a Member in bankruptcy, an application for the appointment of a receiver for the assets of a Member, or an involuntary petition seeking reorganization, arrangement or readjustment of its debts under the Federal Bankruptcy Code or any other federal or state insolvency law, provided that the same shall not have been vacated, set aside or stayed within such sixty-day period. 18 7.3 Withdrawal Bankruptcy Death Dissolution Liquidation or Adjudication of Incompetency of the Manager. (a) Except as provided in Section 7.5(b) hereof, the Manager shall not withdraw from the Company, and shall not cease to be the Manager; prior to dissolution of the Company pursuant to Section 8.1 hereof. (b) In the event and upon the effectiveness of the bankruptcy (as defined in Section 7.4(c) hereof), death, dissolution, liquidation, or adjudication of incompetency of, or the appointment of a guardian, committee or conservator for, or 'other withdrawal (including a withdrawal in contravention of this Agreement) (each such event herein referred to as an "Event of Withdrawal") of the Manager (the "Withdrawing Manager"), the Company shall be dissolved unless the remaining Managers (if any) shall elect to reconstitute and continue the Company or, a majority -in -Interest of the Members, within sixty (60) days after the applicable Event of Withdrawal, designate a successor Manager and continue the business of the Company employing the Company's assets and name. In the case of the bankruptcy, involuntary liquidation or involuntary dissolution of: the Manager, the remaining Manager (if any) or a majority -in -Interest of the Members, as the case may be, may elect to allow the Withdrawing Manager to continue to act as the Manager of the Company. If the remaining Manager (if any) or a majority -in -Interest of the Members;so elect to continue the business of the Company, the Company shall not terminate but shall; continue and the successor Manager shall execute, acknowledge and file an amendment ito the Articles. The Legal Representative of the Withdrawing Manager shall succeed to the rights of the .Withdrawing Manager to receive allocations and distributions hereunder. Except as provided in this Section, the Withdrawing Manager or its Legal Representative shall have no right, power or obligation to become a Manager of the Company. 7.6 Prohibited Transfers. . Notwithstanding anything else in this Agreement to the contrary, no transfer of any Interest by any Member shall be permitted which would result in the "termination" of the Company pursuant to Section 708 of the Code, or which would result in the Company being treated as a "publicly traded Company" under Section 7704 of the Code. ARTICLE VIII DISSOLUTION AND LIQUIDATION 8.1 Dissolution. (a) The Company shall continue until dissolved by agreement between the Manager and a majority -in -Interest of the Members or in accordance with Section 7.5 hereof. (b) The dissolution of the Company shall not relieve or release any of the parties hereto of or from their contractual obligations under this Agreement. 19 (c) Upon the dissolution of the Company for any reason, the Company shall continue in existence solely for the purpose of winding up its affairs, and the property and business of the Company shall be liquidated as provided in Section 8.2 hereof by the Manager or, in the event of the unavailability of the Manager, such other person (the "Liquidating A ent") as shall be designated by the Manager. 8.2 Liquidation. (a) Upon the dissolution of the Company, the Manager or the Liquidating Agent shall proceed to sell or otherwise liquidate the assets of the. Company, and the proceeds of such liquidation shall be applied and distributed in the following order of priority (against which priorities all proceeds of such liquidation, whenever received, shall be applied on a cumulative basis): (i) . First, to the payment, in the order of priority required by law, of debts and liabilities of the Company (other than any loans or advances that may have been made by the Members to the Company) and the expenses of liquidation; (ii) Then, to the establishment of such reserves which the Manager or the Liquidating Agent may deem reasonably necessary for contingent or unforeseen liabilities or obligations of the Company or of the Manager arising out of or in connection with the Company, which may be held in escrow for a reasonable period of time and then distributed as provided herein; (iii) Then, to the repayment of any loans or advances that may have been made by the Members to the Company, including reimbursements and indemnity payments pursuant to Section 3.5, Section 4.1 and Section 4.2 hereof; provided, however, that if the proceeds of such liquidation shall be insufficient to fund the aggregate amount required under this Section 8.2(a)(iii), then the repayments to the Members shall be reduced ratably; (iv) Finally, all remaining proceeds of such liquidation shall be distributed to the Members in accordance with, and to the extent of, their positive Capital Account balances, after taking into account adjustments for the taxable year during which liquidation occurs by the end of such taxable year (or, if later, within ninety (90) days after the date of liquidation). (b) A reasonable time shall be allowed for the orderly liquidation of the assets of the Company and the discharge of liabilities to creditors so as to enable the Manager or the Liquidating Agent to minimize the losses normally attendant upon a liquidation. (c) No Member shall be entitled to demand and receive assets or property other than cash in return for his or its capital contribution to the Company, and each Member hereby waives all right to partition of the assets and property of the Company. 20 (d) Within sixty (60) days after the date of the completion of the liquidation of the Company, each of the Members shall be furnished with a statement prepared by the Company's accountants that shall set forth the assets and liabilities of the Company as of such date. (e) Upon compliance by the Manager or the Liquidating Agent with the foregoing distribution plan, the Members shall cease to be Members, and the Manager or the Liquidating Agent shall execute, acknowledge and cause to be filed the Articles of Dissolution of the Company; provided, however, that the Manager or the Liquidating Agent shall retain full authority to direct the escrowee in respect of the disbursement and/or the distribution of the funds, if any, held pursuant to the provisions of Section 8.2(a)(ii) hereof. ARTICLE IX DISCLOSURES 9.1 Disclosures. Each Member hereby acknowledges, represents, warrants and/or agrees as follows: (a) That such Member understands that the Interest being acquired by him, her or it has not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or any state securities laws in reliance on exemptions therefrom for non-public offerings and further understands that such Interest has not been approved or disapproved by the Securities Exchange Commission, any state securities administrator or any other federal or state agency. (b) That such Member is acquiring such Interest for his, her or its own account, for investment purposes only, and not with a view to the sale or other distribution thereof, in whole or in part or directly or indirectly. (c) Since the Interest of such Member has been acquired for investment and have not been registered under the Securities Act or any state securities laws, in addition to the other limitations, restrictions and requirements set forth in this Agreement, the Interest may not be sold, pledged, hypothecated or otherwise transferred except upon delivery to the Company of an opinion of counsel of such Member satisfactory to the Manager and his, her or its counsel that such registrations are not required for such transfer and/or the submission to the Manager of such other evidence as may be satisfactory to the Manager and his, her or its counsel to the effect that any such transfer shall not be in violation of the Securities Act or applicable state securities laws or rules or regulations promulgated thereunder. 21 C� ARTICLE X MISCELLANEOUS 10.1 Power of Attorney. Each Member hereby irrevocably constitutes and appoints the Manager its true and lawful attorney, in its name, place and stead, to make, execute, acknowledge and file with the appropriate authority: (i) any certificates or other instruments which may be required to be filed by the Company under the laws of the State of Florida or any other governmental authority having jurisdiction thereover, or any other certificates or instruments which the Manager shall deem it advisable, in his, her or its sole and absolute discretion, to file; (ii) any certificates or other instruments amending or modifying the Articles as provided for herein; (iii) any certificates or other instruments which may be required to effectuate the dissolution and termination of the Company and/or the cancellation of the Articles; and (iv) any amendment of this Agreement which the Manager is authorized to make in accordance with the provisions of this Agreement; it being expressly understood and intended by each of the Members that such powers of attorney are coupled with an interest. In the event of the occurrence of an Event of Withdrawal pursuant to Section 7.5(b), each Member hereby irrevocably constitutes and appoints the successor Manager or the Liquidating Agent, as the case may be, his true and lawful attorney, in his name, place and stead, it being expressly understood and intended by each of the Members that such power is coupled with an interest. The foregoing powers of attorney shall be irrevocable and shall survive any assignment of the whole or any part of the interest in the Company of a Member and shall survive the death or incompetence of a Member and shall be binding upon the assignee thereof. 10.2 Completeness; Amendment. This Agreement sets forth the entire understanding of the parties hereto and no provision hereof may be amended, waived or modified at any time, except, insofar as is consistent with the laws governing this Agreement, upon the prior written approval of all of the Members; provided, however, that without the consent of the other Members, the Manager may make any amendments to this Agreement for the purpose of curing any ambiguity or correcting or supplementing any provision contained herein or in any amendment hereof which may be defective or inconsistent with any other provision contained herein or any amendment hereof, and may modify the allocations of income and loss provided for in Article VI for the purpose of complying with changes in the law, applicable regulations and administrative and/or judicial interpretations of such laws. Notwithstanding the foregoing, without the specific consent of each Member adversely affected thereby, no modification or amendment shall (i) change the business 22 and purpose of the Company as provided in Section 2.3 hereof, (ii) change the Company to a general Company, (iii) change the right or proportionate interest of any Member to participate in distributions or in income and losses, except for the permitted modifications noted in the immediately preceding sentence, (iv) affect the limited liability of any Member as set forth herein, or (v) amend this Section 10.2. 10.3 Authorit to o Act. Notwithstanding anything to the contrary contained herein, the acts of the Manager in carrying on the business of the Company as authorized herein shall bind the Company. 10.4 BindingEffect. ffect. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and Legal Representatives of the respective Members, and shall inure to the benefit of the permitted successors, assigns and Legal Representatives of the respective Members. 10.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original instrument and all of which, when taken together, shall constitute one and the same Agreement. 10.6 Notices. Each notice relating to this Agreement shall be in writing and delivered either in person, by hand with a signed delivery receipt required, by depositing the same in the United States mails, first class postage prepaid, or by overnight delivery by a nationally recognized carrier. All notices to the Company shall be addressed to its principal office and place of business. All notices addressed to a member shall be addressed to such Member at the address set forth on Schedule A. Any Member may designate a new address by notice to that effect given to the Company. A notice shall be deemed to have been effectively given when mailed by first class mail to the proper address or delivered in person and the time for responding thereto shall commence with the date of delivery. 10.7 Further Assurances. The Members agree hereafter to execute, acknowledge, deliver, file, record and publish such further certificates, instruments, agreements and other documents and to take all such further action as may be required by law or deemed by the Manager, any successor Manager or any Liquidating Agent to be necessary or useful in furtherance of the Company's purposes and the objectives and intention underlying this Agreement and not inconsistent with the terms hereof. 23 10.8 Arbitration. All disputes which may arise under this Agreement shall be settled by arbitration pursuant to the rules of the American Arbitration Association by a single arbitrator. Such arbitration shall take place in the county of Miami -Dade, Florida or at such other location as the parties to the dispute shall agree upon. If the parties ' to a dispute do not agree on a single arbitrator, each of the parties shall choose an arbitrator practicing in the county of Miami -Dade, Florida and those arbitrators shall choose the arbitrator who shall arbitrate the dispute. Each party shall designate in writing to the other .party its respective arbitrator appointee within 30 days after the determination, by written notice by any party, that the .parties cannot agree as to a single arbitrator. The decision of arbitrator shall be binding on the parties to the controversy and their representatives. Such decision shall be enforced with the same force and effect as a decree of a court having jurisdiction over the matter. I The fees and expenses, including attorneys' fees, which may be incurred in connection with any such arbitration shall be paid by the party whose contention is rejected by the decision of the arbitration, or if only partially rejected, as allocated by the decision of the arbitrator. 10.9 Headings. The headings of the Sections of this Agreement are inserted for convenience of reference only, and are not to be considered in ;construing the terms, conditions and provisions of this Agreement. 10.10 Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the parties hereto may require. 10.11 Entire Agreement. This instrument constitutes all of the understandings and agreements of whatsoever kind and nature existing among the parties hereto with respect to. the Company and their relative rights, obligations and interests therein, and supersedes all prior negotiations, representations, understandings and agreements among the parties hereto with respect to the Company and such rights, obligations and interests. 10.12 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 10.13 Provisions Severable. In the event any sentence, paragraph, provision, section or article of this Agreement is declared by a court of competent jurisdiction to be void, such sentence, paragraph, 24 provision, section or article shall be deemed severed from the remainder of the Agreement and the balance of the Agreement shall remain in effect. IN WITNESS WHEREOF, the undersigneds have duly executed this Operating Agreement of Biltmore Commercial Park, LLC as of the day and year first above written. Miguel A. n:te-z, Jr. MEMBER City Commercial perties, LLC By: Vicki . Jimenez, Member 25 SCHEDULE A Capital Member: Address Contribution Interest City Commercial Properties, LLC 12450 Northwest South River Drive $100 Miami, Florida 33178 100% M.