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Filing # 36439586 E-Filed 01/12/2016 11:24:46 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE
COUNTY, FLORIDA
FIRST CZ REAL ESTATE LLC
Plaintiff,
Vv. Case No: 15002496 CA
FTTE, LLC. Judge: Hon. Lisa Porter
Defendant
NOTICE OF SUPPLEMENTAL FILING OF EXHIBITS 1 pt 2
DEFENDANTS MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
Comes Now, Defendant in Filing of Exhibits 1 through 2, made necessary by the size
limitations of files submitted through Florida’s e-filing portal.
Respectfully Submitted:
/s/ Mark R. Komray, Esq.
Mark R. Komray, Esq.
FBN # 879789
Counsel for Defendant, FTTE, LLC
1882 N. Tamiami Trail #3434
Ft. Myers, FL 33918
239-244-2245
mrk@komraylaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Motion To Compel Arbitration And
Stay Proceedings was furnished by Hand and e-mail to Martin F. Klingenberg, Esq., 1455 Blue
Point Ave, Naples FL 34102, & martinatlaw@gmail.com on January 11", 2016
By: _ /s/Mark R. Komray, Esq.
Mark R. Komray, Esq.
OPERATING AGREEMENT
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
FTTE, LLC
A Florida Limited Liability Company
This AMENDED AND RESTATED OPERATING AGREEMENT (this
“Agreement”) is made and effective as of August 1, 2013, by and among the persons and
entities listed on the Signature Page attached hereto. This Agreement amends and restates in its
entirety that certain Operating Agreement dated May 22, 2013 (the “Effective Date”), by and
among the persons and entities listed on Schedule I attached hereto.
Background
(a) FTTE, LLC (the “Company”) is a limited liability company formed under the
Florida Limited Liability Company Act.
() This Agreement defines and governs the rights and obligations of the Members
and the Managers of the Company with respect to the management of the Company and the
Company’s financial affairs.
&, This ent constitutes the regulations for the operation of the Company and
the conduct of the Company’s intemal and extemal business affairs.
@) The parties to this Agreement are the Company's Members. All Members must
at all times and for all purposes be fully bound by and subject to the provisions of this
Agreement.
ARTICLE f
Definitions
For purposes of this Agreement, the terms set forth below will have the following defined
meanings:
it Act means the Florida Limited Liability Company Act, Fla. Stat. Ch. 608.401-
608.705, as amended from time to time.
1.2 Affiliate means (i) any person or entity directly or indirectly controlling,
controlled by, or under common contro! with another person or entity, and (ii) any officer,
director, member, owner, shareholder, or partner who has exercised or has power or authority to
exercise control over any person or entity directly or indirectly controlling, controlled by, or
under common control with another person or entity.
eo
13 Available Cash means cash from the operations of the Company, or from the
disposition or refinancing of the Company assets or from other sources of revenue generation,
which in the sole opinion of the Manager is not required to meet the obligations of the Company
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as they become due or reasonably necessary for the future operations or investments of the
Company.
14 Capital Account(s) means the individual account(s) maintained by the
Company with respect to each Member.
1s Capital Contribution in respect of any Member means the initial amount of cash
and, if applicable, other property (including without limitation, guarantees), which such
Member contributed to the capital of the Company in consideration of an equity position in
the Company reflected by a Membership Interest.
1.6 Capital Investment means investments in the form of cash or cash equivalent
selected
made for the purpose of enhancing profitability of the Company over time horizons
nt.
and designated by the Manager and with the expectation of a return on such investme
17 Member means a Member who owns a Membership Interest in the Company;
Members means all owners of Membership Interests in the Company.
which
18 Membership Interest means the interest of each Member in the Company,
) of such Member ship Interest (as
shall continue to remain fully vested in the registered owner(s closing
reflected on the regularly-m: ‘aintained books of the Company) until both (a) the actual
actually effectuates a
ane and funding of a transaction that is designed and intended to transfer and
Interest and (b) the formal
transfer of full title to or full permanent control of s uch Membership
identity of the successor
change of the regularly-maintained books of the Company to reflect the
owner of the Membership Interest.
J. Cooke
19 Manager means a single p' uirpose entity owned and controlled by Terry
and any successor to
{the “Cooke SPE”), now known as Taurus Adventure Management, LLC,
s (the “Rosin us SPE”), now
it, and a single purpose entity own ed and controlled by Bjorn Rosinu
nal Manage or Managers
r
known as Bucking Bull, LLC, and any successor to it, or any additio
nce with this Agreement. As
duly expressly authorized and duly appointed in strict accorda
the term “Manager” shall
long as there is more than one Manager prop erly 8 erving at any time,
share decision-making so
encompass and refer to both Managers, and the two Managers shall
and responsibilities
as to Manage the Company and its affairs jointly, with specific input
outlined in Section 3.1(a), below.
property, real,
1.10 Property means and includes without limitation any and all
includi ng leases of real estate,
personal or mixed, tangible or intangible (including goodwill),
money, and any legal or equitable interest in such property.
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ARTICLE IL
ORGANIZATION
2.1 Name, The name of the Company shall be “FTTE, LLC” or such other name as
may be designated by the Manager in the Manager’s sole discretion.
2.2 Principal Office. The principal office and business address of the Company shall
initially be 23190 Fashion Drive, Suite #205, Estero, Florida 33928, but shall be relocated to
the site of the Company's primary business operations as soon as the site is suitable.
2.3 Registered Agent. The initial Registered Agent of the Company shall be Terry
Cooke, whose address is 41660 Little Farm Road, Punta Gorda, Florida 33982.
24 Purpose. The purpose of the Company is to engage in any lawful business. The
initial project for which the Company was initially conceived involves the development of a
(the
994.07 acre tract of real property located in Punta Gorda, Charlotte County, Florida
“Tract”), The Company intends to design, develop, build, own, expand, operate and
The
transform the Tract to offer recreational opportunities to members of the general public,
outdoor activities conceptually contemplated include activities such as: paintball, trail ridings,
concerts
motocross, BMX tracks, hiking trails, ATV trails, water park, zip line, camping and
the Company fully intends to apply
(collectively, the “Park”). In connecti ion with the foregoing,
request designation to be a
to the U.S. Citizenship and Immigration Services (USCIS) to
EBS
Regional Center under the Immigrant Investor Pilot Program, to process applications for
Visas for prospective Members, and to engage actively in all means and manner of lawful
of its Manager.
business operations and to conduct its operations through and at the direction
2.5 Term. The term of the Company shall commence on the date that the Articles
e until terminated
of Organization are filed with the Florida Department of State and shall continu
pursuant to this Agreement.
se owned
26 Title to Property. All property purchased, paid for, leased by or otherwi
certificated) shall be
or used by the Company (whether or not certificated or req) uired to be
Manager. No Member or
deemed to be property of the Company and not of the Members or the
ownership of or claim
Manager, individually or collectively on their own behalf, shall have any
to any such property.
in the Tract
2.7 Interest in Tract. Florida Tracks and Trails, Inc.’s leasehold interest
are contained in
is sub-leased to the Company for the Company’s use. The terms of the lease
the Sublease, which is attached hereto as Exhibit “A”.
in
28 Governing Law. This Agreement shall be governed by and interpreted
the Member s shall
accordance with laws of the State of Florida. The rights and liabilities of the
this Agreement. To
be determined pursuant to the Act (as amended) and in accordance with
on of the Act, this
extent that any provision of the Agreement is inconsistent with any provisi
tion.
Agreement shall govern to the extent permitted by a court of competent jurisdic
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ARTICLE TI
MANAGEMENT
3.1. Manager. The Cooke SPE and Rosinus SPE are hereby appointed the managers of
the Company (the “Manager” or the “Managers”), The business and affairs of the Company shall
be managed under the direction and control of the Manager, and all powers of the Company shall
Obe exercised by or under the authority of the Manager. No other Person shall have any right or
authority to act for or bind the Company except as permitted in this Operating Agreement or as
required by law.
(a) Specific Duties. The Cooke SPE shall be responsible for and have control
of designing, constructing and operating the Park, including but not limited to hiring and
terminating all personnel, contractors, materialmen, vendors, and services involved in such
construction and operation, subject only to the constraints of the budgets and cash flow
projections adopted from time to time by the Manager and Members. The Rosinus SPE shall be
responsible for the fiscal and financial matters of the Company set forth in Sections 4.1, 4.3, 4.4,
4.5, 4.6, and 4.7 hereof, subject only to the constraints of the budgets and cash flow projections
adopted from time to time by the Manager and Members. Each may question and comment upon
decisions of the other, and each shall reasonably and promptly respond to such questions and
comments; provided, however, that so long as the Company is being operated within the budgets
and cash flow projections adopted from time to time by the Manager and Members, neither
Manager shall interfere in the performance of the duties and responsibilities of the other.
() With respect to those matters for which the Managers are jointly
responsible, if any, in the event of deadlock between the Cooke SPE and the Rosinus SPE which
cannot be resolved within 48 hours after the deadlock, the parties shall submit their differences to
the Advisory Board, and the Advisory Board shall determine the appropriate course of action.
c) General Powers. The Manager shall have the full power to execute and
deliver, for and on behalf of the Company, any and all documents and instruments which may be
necessary or desirable to carry on the business of the Company, including, without limitation,
any and all deeds, contracts, leases, mortgages, deeds of trust, promissory notes, security
agreements, and financing statements pertaining to the Company’s assets or obligations, and to
authorize the confession of judgment against the Company. No person dealing with the Manager
need inquire into the validity or propriety of any document or instrument executed in the name of
the Company by the Manager, or as to the authority of the Manager in executing the same.
() Extraordinary Transactions, Notwithstanding anything to the contrary in
this Agreement, the Manager shall not undertake any of the following, without the approval
indicated:
a the Company’s engaging in any business beyond the scope of the
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business of the Company, without the advice and approval of the Advisory Board (defined in
Section 3.10, below);
Q) the sale, transfer, or other disposition of all or substantially all of
the assets of the Company, without the advice and approval of the Advisory Board;
@) the initiation of a voluntary proceeding under the United States
Bankruptcy Code or any state receivership law in which the Company is the debtor, without the
advice and approval of the Advisory Board;
4) the borrowing of money against the assets of the Company or
incurring Company indebtedness without the advice and approval of the Advisory Board;
G) the admission of additional Members to the Company (excluding,
however, Members admitted during the initial raise by BIR & FIR of up to Ten Million Dollars
from the sale of portions of BJR & FJR’s member interests in the Company), without the
approval of all of the Members;
6) the conversion, merger, or consolidation of the Company with or
into another Person, without the approval of all of the Members;
ate, M lending money to, or guaranteeing the debt or other obligations of,
any Member or Person, without the approval of all of the Members;
(8) making unequal or disproportionate distributions to Members other
than as set forth herein, without the approval of all ofthe Members; and
9) dissolving, liquidating, and winding up the affairs of the Company,
without the approval of all of the Members.
©) Tenure of Managers.
@ The Cooke SPE and Rosinus SPE shall both serve as the Manager of the Company,
unless and until either: (1) is removed by a final non-appealable and non-reviewable court order
entered and rendered by a court of competent jurisdiction that explicitly finds that the SPE has
committed fraud or a felony in any matter related to the Company’s business or affairs; or (2)
resigns voluntarily in a definitive writing signed manually by someone with undisputed or
indisputable authority, or (3) is legally prohibited from operating or doing business for more than
90 consecutive days. Except as explicitly provided by this subsection, each SPE’s tenure as the
Manager of the Company cannot be terminated for any reason in any manner.
@) In the event a Manager’s tenure ends for any of the reasons set
forth in this Section 3.1(e), then the Company’s Advisory Board shall conduct an in-person
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meeting pursuant to written notice delivered at least ten business days in advance of the in-
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person meeting to discuss and to select a successor Manager by a favorable vote of at least 60%
of the Company’s Advisory Board. In the event either SPE ceases to be a Manager pursuant to
this subsection (e) and no successor is selected in accordance herewith, the Company shal!
proceed with only one Manager; provided, however, that if there is only one Manager at the time
that such Manager of the Company is terminated, then a replacement Manager must be selected
by the Company's Advisory Board at the time of such termination.
@ Limitation on Authority of Members.
() No Member is an agent of the Company solely by virtue of being a
Member, and no Member has authority to act for the Company solely by virtue of being a
Member.
2 This Section 3.1 supersedes any authority granted to the Members
pursuant to the Act. Any Member who takes any action or binds the Company in violation of this
Section 3.1 shall be solely responsible for any loss and expense incurred by the Company as a
result of the unauthorized action and shall indemnify and hold the Company harmless with
respect to the loss or expense.
3.2. Meetings of and Vating by Members.
@ A meeting of the Members may be called at any time by the Manager or
by those Members holding at least twenty percent (20%) of the Percentage Interests then held by
Members. Meetings of Members shall be held at the Company’s principal place of business or at
any other place in the state of Florida designated by the Person calling the meeting. Not less than
ten (10) nor more than ninety (90) days before each meeting, the Person calling the meeting shall
give written notice of the meeting to each Member entitled to vote at the meeting. The notice
shall state the time, place, and purpose of the meeting. Notwithstanding the foregoing provisions,
each Member who is entitled to notice waives notice if before or after the meeting the Member
signs a waiver of the notice that is filed with the records of Members’ meetings, or is present at
the meeting in person or by proxy. Unless this Operating Agreement provides otherwise, at a
meeting of Members, the presence in person or by proxy of Members holding not less than sixty-
one percent (60%) of the Percentage Interests then held by Members constitutes a quorum. A
Member may vote either in person or by written proxy signed by the Member or by the
Member’s duly authorized attorney-in-fact.
) Except as otherwise provided in this Operating Agreement, the affirmative
vote of Members holding fifty-one percent (51%) or more of the Percentage Interests then held
by Members shall be required to approve any matter coming before the Members.
(©) In lieu of holding a meeting, the Members may vote or otherwise take
action by a written instrument indicating the consent of Members holding at least the Percentage
Interests required to approve such action if a vote were taken at a meeting where a quorum was
present.
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@ Wherever the Act requires unanimous consent to approve or take any
action, that consent shall be given in writing and, in all cases, shall mean the consent of all
Members.
3.3, Personal Service. No Member shall be required to perform services for the
Company solely by virtue of being a Member. Unless approved by the Manager, no Member
shall perform services for the Company or be entitled to compensation for services performed for
the Company.
3.4. Duties of Parties.
@ ‘The Manager shail not be liable, responsible, or accountable in damages or
otherwise to the Company or to any Member for any action taken or any failure to act on behalf
of the Company within the scope of the authority conferred on the Manager by this Operating
Agreement or by law, unless the action was taken or omission was made fraudulently or in bad
faith or unless the action or omission constituted gross negligence.
@) Except as otherwise expressly provided in Sections 3.4(c) and 10.6 hereof,
nothing in this Operating Agreement shall be deemed to restrict in any way the rights of any
Manager, Member, or of any Affiliate of any such Manager or Member, to conduct any other
tee non-competing business or activity whatsoever, and no such Manager or Member shall be
accountable to the Company or to any Member with respect to that business or activity, unless
the business or activity violates the terms of Section 10.6 hereof. The organization of the
Company shall be without prejudice to the respective rights of the Manager and the Members (or
the rights of their respective Affiliates) to maintain, expand, or diversify such other interests and
activities and to receive and enjoy profits or compensation therefrom. Each Member waives any
rights the Member might otherwise have to share or participate in such other interests or
activities of the Manager or of any other Member or such Manager’s or Member’s Affiliates.
© Each Member understands and acknowledges that the conduct of the
Company’s business may involve business dealings and undertakings with the Manager, the
Members, or their Affiliates. In any of those cases, those dealings and undertakings shall be at
arm’s length and on commercially reasonable terms.
3.5. Indemnification. The Company shall indemnify the Manager for any act
performed by the Manager within the scope of the authority conferred on the Manager herein,
except for fraud, gross negligence, or an intentional breach of this Operating Agreement and
except as provided by the Act.
3.6. Power of Attorney.
(@) Grant of Power. Each Member constitutes and appoints the Manager as
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the Member’s true and lawful attorney-in-fact (“Attorney-in-Fact”), and in the Member’s name,
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place, and stead, to make, execute, sign, acknowledge, and file:
aw one or more Articles of Organization;
@ all documents (including amendments to Articles of Organization}
that the Attorney-in-Fact deems appropriate to reflect any amendment, change, or modification;
@) any and all other certificates or other instruments required to be
filed by the Company under the laws of the State of Florida or of any other state or jurisdiction,
including, without limitation, any certificate or other instruments necessary in order for the
Company to continue to qualify as a limited liability company under the laws of the State of
Florida;
(4) one or more fictitious or trade name certificates; and
6) all documents which may be required to dissolve and terminate the
Company and to cancel its Certificate of Organization.
(b) Irrevocability. The foregoing power of attorney is irrevocable and is
coupled with an interest, and, to the extent permitted by applicable law, shall survive the death or
disability of a Member. It also shall survive the Transfer of an Interest, except that if the
wt transferee is admitted as a Member, this power of attorney shall survive the delivery of the
assignment for the sole purpose of enabling the Attomey-in-Fact to execute, acknowledge, and
file any documents needed to effectuate the substitution. Each Member shall be bound by any
representations made by the Attomey-in-Fact acting in good faith pursuant to this power of
attorney, and each Member hereby waives any and all defenses which may be available to
contest, negate, or disaffirm the action of the Attomey-in-Fact taken in good faith under this
power of attorney.
3.7. Arbitration of Deadlock. lf any vote (of Managers or Members) is required on any
matter under this Operating Agreement or the Act, and there are neither sufficient votes to
approve nor disapprove of the matter, then a Deadlock shall be deemed to exist. If a Deadlock
occurs, and submission of same to the Advisory Board does not resolve the Deadlock within
thirty (30) days, then the Manager may require that the matter be submitted to arbitration in
accordance with the rules of the American Arbitration Association.
3.8. Fiscal Authority. Any check or instrument of disbursement to be issued by the Company
to one payee at one time for more than $50,000.00 shall require two-signatures from the
Manager; provided, however, that this signature requirement does not grant to (expressly or by
implication) either Manager any right to approve or fo reject or to delay any requested
disbursement that benefits the Tract and all such disbursements shall be solely to benefit the
Tract. This provision requiring a second signature for checks/disbursements more than
$50,000.60 shall not serve to restrict the rights and obligations of either Manager.
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3.9 Fee and Expenses.
@) The Manager shall devote such time and effort to the Company as the
Manager may from time to time determine to be necessary or desirable in the Manager’s sole
discretion. The Manager shall not be required to devote all or any specified portion of time to
manage the Company, and management is not contemplated to be the Manager’s sole and
exclusive fimction. The Manager shall be entitled to be paid reasonable compensation, including
salary and customary benefits (including health insurance) for the principals of any Manager
which is an entity, as determined by a vote of the Members; provided that (i) the base salary (not
including customary benefits) to be paid to the Cooke SPE and to the Rosinus SPE shall not
exceed $200,000.00 per year each and bonuses (if any, as determined by the Members) shall not
exceed an additional $200,000.00 each per year and (ii) the salary cap shall not apply to restrict
the compensation to be paid to a Manager who is not a Member and not an Affiliate of a Member
owning more than 20% of the Membership Interests in the Company.
) The Manager shall be entitled to be reimbursed by the Company for the
full amount of any and all expenses and/or fees hereafter incurred or paid in connection with (a)
the organization and formation of the Company, (b) the management and operation of the
Company, (c) the protection or enforcement of the Company’s rights or interests and /or (d) any
other matters reasonably related to. The Manager will waive and relinguish any entitlement to
reimbursement of any expenses incurred prior to the Effective Date.
3.10 Advisory Board, The Manager shall consult from time to time with an Advisory
Board. The purpose of the Advisory Board is to provide advice and support to the Manager, and
approve certain Extraordinary Transactions set forth herein. The initial members of the Advisory
Board shall be Franz Rosinus, Bjorn Rosinus, Peter Fagan, Wayne Kelly, Terry J. Cooke, and
Tiffanie Cooke. The Advisory Board shall be kept apprised of all activities relating to Company
business, in order to properly advise the Manager and make sound decisions on behalf of the
Company. Unless otherwise indicated, the Advisory Board shall approve by majority vote the
Manager’s direction on those actions to be taken pursuant to Sections 3.1(b), 3.1@)(1)-(4), and
3.1(e\(2) hereof. The creation and appointment of the Advisory Board does not contemplate or
encompass any other decision-making authority, except as expressly provided in or by this
Agreement, In all other respects, the full authority for all decisions relating to the Company and
its operations shall reside solely with the Manager.
3.11 General Counsel. The legal affairs of the Company shall be managed by an
attomey selected and designated by the Manager to serve as the General Counsel. The General
Counsel shall report to the Manager and shall serve as the Company's legal counsel. The General
Counsel shall discharge responsibilities designated herein as reasonably supplemented by the
Manager.
3.12 Financial Council. Ail Members who are not named to the Advisory Board shall
be engaged in the management of the Company and policy formulation through membership on
the Financial Council (the “Council”). The Council shall provide advice and support to the the
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Company with respect to the Rosinus SPE’s duties, authority and responsibilities for fiscal and
financial matters of the Company set forth in Sections 4.1, 4.3, 4.4, 4.5, 4.6, and 4.7 hereof
(“Financial Matters”). The Council shall be kept apprised of all activities relating to Company
business, in order to properly advise the Rosinus SPE and make sound financial decisions on
behalf of the Company. Unless otherwise indicated, the Council shall approve by majority vote
the Rosinus SPE’s direction on all actions submitted to it with respect to Financial Matters. The
creation and appointment of the Council does not contemplate or encompass any additional
decision-making authority, or that the Council shall have every action to be taken by the Rosinus
SPE submitted to it, except as expressly provided in or by this Agreement. However, it is the
intent of this Agreement to give the Council a substantial voice and material participation in
policy formulation, particularly with Financial Matters. In all other respects, full authority for all
decisions relating to the Company and its operations shall reside solely with the Managers.
ARTICLE IV
BOOKS, RECORDS AND ACCOUNTING MATTERS
41 Books and Records. As long as BJR & FIR, LLC is not in violation of the
requirements imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shall keep, or cause to
be kept, accurate, complete and proper books and records of all operations of the Company. Each
woes, Member shall have the full and continuous right to: (a) examine the Company books and records
at the Company’s principal place of business during regular business hours; (b) upon reasonable
prior written notice to review, audit and/or copy at his or its own expense all or part of such
books and records; and (c) make reasonable inquiry of the Company and the Manager regarding
the Company’s affairs only as permitted by the Act and as reasonable under the circumstances.
4.2 Fiscal Year. Unless otherwise required by law, the Company shall adopt the
calendar year for financial and income tax purposes.
43 Accountants. As long as BIR & FIR, LLC is not in violation of the requirements
imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shall select the independent public
accounting firm to represent and counsel the Company in connection with all tax and accounting
matters, provided, however, that the selection made by the Rosinus SPE shall be subject to the
reasonable approval of the Manager.
44 Tax Returns. As long as BIR & FIR, LLC is not in violation of the requirements
imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shall cause to be prepared and filed
all tax returns required to be filed by or on behalf of the Company and shall cause to be paid all
taxes due from the Company, including any taxes payable with respect to the Company’s assets.
The Rosinus SPE shall make all tax elections as are determined to be in the best interest of the
Company. As soon as practicable after the close of the Company’s tax year, the Company shall
cause to be delivered to each Member a copy of the Company’s federal income tax return and
each Member’s respective K-1 form.
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4.5 Tax Matters Pariner. The Rosinus SPE shall have the full right to appoint,
remove and replace a Tax Matters Partner at any time. BJR & FJR, LLC shall be and hereby is
appointed as the initial Tax Matters Partner. The Tax Matters Partner, as defined in Internal
Revenue Code, shall represent the Company (at the Company’s expense) in connection with all
examinations of the Company’s affairs by tax authorities, including resulting judicial and
administrative proceedings. The Tax Matters Partner may and is expected to use Company funds
for professional services and costs associated with all such matters.
4.6 Financial Reports. As long as BIR & FIR, LLC is not in violation of the
requirements imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shail cause to be
prepared and delivered to each Member a financial report of the Company within 90 days after
the end of each fiscal year. The minimum standard of review for the financial report shall be a
tax basis review by the Company's accountants. The cost of all such reporting shall be paid by
the Company as a Company expense. Any Member may cause a formal audit of the Company’s
books and records to be made by a certified public accountant, the results of which and all
teports/summaries relating thereto shall be provided promptly by the auditors to the Company at
no expense whatsoever to the Company.
47 Bank Accounts, As long as BIR & FIR, LLC is not in violation of the
requirements imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shall bear primary
fon responsibility for management and maintenance of all accounts maintained by or for the
Company at/with financial institutions. The funds of the Company shall be held in one or more
accounts in financial banking institutions designated by the Manager. There shall not be
deposited in any of such accounts any finds other than funds belonging to the Company, and no
other fimds shall in any way be commingled with such funds. The funds contained in the
Company's bank accounts shall not be used for any other purpose other than the Company’s
business.
48 Rosinus SPE’s Role in Accounting Matters. As long as BIR & FIR, LLC is not in
violation of the requirements imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shall
be fully and intimately involved in all aspects of the Company’s bookkeeping and accounting
functions of the Company and the Manager shall continuously and conscientiously involve and
consult BIR & FIR, LLC; provided, however, that the Rosinus SPE shall have no rights or
privileges regarding the bookkeeping and accounting functions in the event that BIR & FIR,
LLC fails to fulfill its obligations under subsections 5.1(A and 5.1(B) in strict accordance
therewith, whereupon all rights and responsibilities otherwise delegated or reserved to the
Rosims SPE shall be delegated or assigned to the Cooke SPE exclusively.
ARTICLE V
OWNERSHIP AND FINANCING
Sal Ownership. For value received, the initial ownership structure of the Company
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shall be and hereby is declared to be:
51.0% LPITW, LLC;
5% Shell Creek Dream, LLC;
1.5% Fagan International, Inc.; and
42.5% BIR & FIR, LLC;
subject, however, to the following conditions, restrictions and requirements:
(A) Within six months ftom the Effective Date hereof, BIR & FIR, LLC shall
have paid or caused or arranged to be paid, contributed or granted to or for the direct benefit of
the Company, at least $2,500,000.00 (USD), as partial payment of the $10,000,000.00 total
consideration owed and payable for the purchase and acquisition by BIR & FIR, LLC of the
42.5% Membership Interest in the Company;
AND
®) Within 24 months from the Effective Date, FIR & FIR, LLC shall have
paid or caused or arranged to be paid, contributed or granted to or for the direct benefit of the
Company, at least $5,000,000.00 (USD) [inclusive of the amount to be paid pursuant to
subsection (A) above] as partial payment of the $10,000,000.00 total consideration owed and
payable for the purchase and acquisition by BIR & FIR, LLC of the 42.5% Membership Interest
in the Company.
In the event that BIR & FIR, LLC fails for any reason (or for no reason at all) to pay into the
Company for the sole benefit of the Company the first $2,500,000.00 (USD) in accordance with
subsection 5.1(A) above or BIR & FYR, LLC fails to pay into the Company a total aggregate of
$5,000,000.00 in accordance with subsection 5.1 (B) above, then within 30 days after written
notice from the Cooke SPE of the expiration/passage of a payment deadline established by
subsection 5.1(A) and by subsection 5.1(B), respectively, the Company (at the sole and absolute
discretion of the Cooke SPE, regardless of the presence or existence of any other Manager) may
(but shall not be required to) call and purchase, and BIR & FIR, LLC shall be obligated to sell to
the Company for $100.00 cash that portion of the 42.5% Membership Interest for which BIR &
FIR, LLC did not pay in a timely manner according to subsections 5.1(a) and (b) above, and BIR
& FIR, LLC may retain the balance of the Membership Interests for which BIR & FIR, LLC has
paid the proportionate purchase price. The portion of the 42.5% Membership Interest that the
Company may call from BJR & FIR, LLC and that BIR & FIR, LLC shall be obligated to sell
the Company in response to a call issued by the Company shall be determined by the ratio that
that portion of the total $10,000,000.00 purchase price not paid by BIR & FIR, LLC in advance
of the applicable payment deadlines established by subsections 5.1(A) and 5.1(B) bears to the
total aggregate purchase price of $10,000,000.00. Stated alternatively, the portion of the BIR &
FJR, LLC Membership Interest that the Company shall have the absolute right to purchase from
BIR & FIR, LLC for $100.00 cash, in the event that BIR & FIR, LLC fails to pay timely each
oe
traunch of funds designated as components of the total $10,000,000.00 purchase price and the
12
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NAPLESEI T1605
If
Company elects to issue a call, shall be determined by the following formula:
(a) Subtract the amount timely paid pursuant to subsection 5.1(A) above or pursuant to
subsection 5.1 (B) above from $10,000,000.00;
Q) Multiply the amount derived from performing function (1) above (Le., the difference) by
42.5% (or 425);
(3) Divide the amount derived from performing function (2) above (i.e., the product) by
$10,000,000.00; and
4 The product will be the portion of the 42.5% of the Membership Interest that the
Company may call and pursuant to which BJR & FJR, LLC shall sell to the Company in the
event that BIR & FIR, LLC fails to pay as required by subsections 5.1(A) and 5.1(B) above and
the Company elects to issue a call pursuant hereto.
The algebraic formula for such calculation can be stated as:
Portion of $10 million not paid per Portion of 42.5% Membership
Subsections 5.1(A) and 5.1(B) [“PNP”] Interestto be sold to the Company
reenactment nt yt
$10,000,000.00 42.5%
and ig performed as follows:
PNP = $10,000,000.00 - amount paid timely
PNP x 42.5% + $10,000,000.00 = portion of 42.5% interest that BIR & FIR, LLC must sell back to the Company.
This call option shall be available to the Company, as determined solely by the Cooke SPE as the
Manager, for 60 days following each payment deadline with which BJR & FIR, LLC fails to
comply. Upon receipt of $100.00 cash payment from the Company pursuant to the exercise of
this call option, BIR & FIR, LLC shall transfer absolutely and in fee simple absolute that portion
of the Membership Interest held by or on behalf of BIR &FIR, LLC as calculated by the formula
specified above, whereupon all interests and all rights that BJR & FIR, LLC has ever had in or to
that portion of the Membership Interests shall be deemed to be extinguished ab initio
automatically, and BIR and FIR, LLC shall be deemed to have forfeited any interest in or to that
portion of the Membership Interests from and after the Effective Date and to have waived all
rights of membership derived. from such Membership Interests arising from any source at any
time. If BIR & FIR, LLC fails to transfer and deliver legally sufficient indicia of ownership
transfer as may be reasonably requested by the Manager to the Company all indicia of ownership
and all rights in and to the Membership Interests promptly upon tender of the $100.00 cash
payment, the Company shall cancel BIR & FIR, LLC’s interest on the books of the Company in
that portion of the 42.5% Membership Interest that is the subject of the call, and all rights of BIR
& FIR, LLC shall thereupon be automatically extinguished ab initio and BIR & FIR, LLC shall
be entitled to receive nothing.
13 Ate A
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Filing # 36439586 E-Filed 01/12/2016 11:24:46 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA FIRST CZ REAL ESTATE LLC Plaintiff, Vv. Case No: 15002496 CA FTTE, LLC. Judge: Hon. Lisa Porter Defendant NOTICE OF SUPPLEMENTAL FILING OF EXHIBITS 1 pt 2 DEFENDANTS MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS Comes Now, Defendant in Filing of Exhibits 1 through 2, made necessary by the size limitations of files submitted through Florida’s e-filing portal. Respectfully Submitted: /s/ Mark R. Komray, Esq. Mark R. Komray, Esq. FBN # 879789 Counsel for Defendant, FTTE, LLC 1882 N. Tamiami Trail #3434 Ft. Myers, FL 33918 239-244-2245 mrk@komraylaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Motion To Compel Arbitration And Stay Proceedings was furnished by Hand and e-mail to Martin F. Klingenberg, Esq., 1455 Blue Point Ave, Naples FL 34102, & martinatlaw@gmail.com on January 11", 2016 By: _ /s/Mark R. Komray, Esq. Mark R. Komray, Esq. OPERATING AGREEMENT AMENDED AND RESTATED OPERATING AGREEMENT OF FTTE, LLC A Florida Limited Liability Company This AMENDED AND RESTATED OPERATING AGREEMENT (this “Agreement”) is made and effective as of August 1, 2013, by and among the persons and entities listed on the Signature Page attached hereto. This Agreement amends and restates in its entirety that certain Operating Agreement dated May 22, 2013 (the “Effective Date”), by and among the persons and entities listed on Schedule I attached hereto. Background (a) FTTE, LLC (the “Company”) is a limited liability company formed under the Florida Limited Liability Company Act. () This Agreement defines and governs the rights and obligations of the Members and the Managers of the Company with respect to the management of the Company and the Company’s financial affairs. &, This ent constitutes the regulations for the operation of the Company and the conduct of the Company’s intemal and extemal business affairs. @) The parties to this Agreement are the Company's Members. All Members must at all times and for all purposes be fully bound by and subject to the provisions of this Agreement. ARTICLE f Definitions For purposes of this Agreement, the terms set forth below will have the following defined meanings: it Act means the Florida Limited Liability Company Act, Fla. Stat. Ch. 608.401- 608.705, as amended from time to time. 1.2 Affiliate means (i) any person or entity directly or indirectly controlling, controlled by, or under common contro! with another person or entity, and (ii) any officer, director, member, owner, shareholder, or partner who has exercised or has power or authority to exercise control over any person or entity directly or indirectly controlling, controlled by, or under common control with another person or entity. eo 13 Available Cash means cash from the operations of the Company, or from the disposition or refinancing of the Company assets or from other sources of revenue generation, which in the sole opinion of the Manager is not required to meet the obligations of the Company Mac S14 ors NAPLESANTO1OVS as they become due or reasonably necessary for the future operations or investments of the Company. 14 Capital Account(s) means the individual account(s) maintained by the Company with respect to each Member. 1s Capital Contribution in respect of any Member means the initial amount of cash and, if applicable, other property (including without limitation, guarantees), which such Member contributed to the capital of the Company in consideration of an equity position in the Company reflected by a Membership Interest. 1.6 Capital Investment means investments in the form of cash or cash equivalent selected made for the purpose of enhancing profitability of the Company over time horizons nt. and designated by the Manager and with the expectation of a return on such investme 17 Member means a Member who owns a Membership Interest in the Company; Members means all owners of Membership Interests in the Company. which 18 Membership Interest means the interest of each Member in the Company, ) of such Member ship Interest (as shall continue to remain fully vested in the registered owner(s closing reflected on the regularly-m: ‘aintained books of the Company) until both (a) the actual actually effectuates a ane and funding of a transaction that is designed and intended to transfer and Interest and (b) the formal transfer of full title to or full permanent control of s uch Membership identity of the successor change of the regularly-maintained books of the Company to reflect the owner of the Membership Interest. J. Cooke 19 Manager means a single p' uirpose entity owned and controlled by Terry and any successor to {the “Cooke SPE”), now known as Taurus Adventure Management, LLC, s (the “Rosin us SPE”), now it, and a single purpose entity own ed and controlled by Bjorn Rosinu nal Manage or Managers r known as Bucking Bull, LLC, and any successor to it, or any additio nce with this Agreement. As duly expressly authorized and duly appointed in strict accorda the term “Manager” shall long as there is more than one Manager prop erly 8 erving at any time, share decision-making so encompass and refer to both Managers, and the two Managers shall and responsibilities as to Manage the Company and its affairs jointly, with specific input outlined in Section 3.1(a), below. property, real, 1.10 Property means and includes without limitation any and all includi ng leases of real estate, personal or mixed, tangible or intangible (including goodwill), money, and any legal or equitable interest in such property. he NAPLESAITS18vS Re ARTICLE IL ORGANIZATION 2.1 Name, The name of the Company shall be “FTTE, LLC” or such other name as may be designated by the Manager in the Manager’s sole discretion. 2.2 Principal Office. The principal office and business address of the Company shall initially be 23190 Fashion Drive, Suite #205, Estero, Florida 33928, but shall be relocated to the site of the Company's primary business operations as soon as the site is suitable. 2.3 Registered Agent. The initial Registered Agent of the Company shall be Terry Cooke, whose address is 41660 Little Farm Road, Punta Gorda, Florida 33982. 24 Purpose. The purpose of the Company is to engage in any lawful business. The initial project for which the Company was initially conceived involves the development of a (the 994.07 acre tract of real property located in Punta Gorda, Charlotte County, Florida “Tract”), The Company intends to design, develop, build, own, expand, operate and The transform the Tract to offer recreational opportunities to members of the general public, outdoor activities conceptually contemplated include activities such as: paintball, trail ridings, concerts motocross, BMX tracks, hiking trails, ATV trails, water park, zip line, camping and the Company fully intends to apply (collectively, the “Park”). In connecti ion with the foregoing, request designation to be a to the U.S. Citizenship and Immigration Services (USCIS) to EBS Regional Center under the Immigrant Investor Pilot Program, to process applications for Visas for prospective Members, and to engage actively in all means and manner of lawful of its Manager. business operations and to conduct its operations through and at the direction 2.5 Term. The term of the Company shall commence on the date that the Articles e until terminated of Organization are filed with the Florida Department of State and shall continu pursuant to this Agreement. se owned 26 Title to Property. All property purchased, paid for, leased by or otherwi certificated) shall be or used by the Company (whether or not certificated or req) uired to be Manager. No Member or deemed to be property of the Company and not of the Members or the ownership of or claim Manager, individually or collectively on their own behalf, shall have any to any such property. in the Tract 2.7 Interest in Tract. Florida Tracks and Trails, Inc.’s leasehold interest are contained in is sub-leased to the Company for the Company’s use. The terms of the lease the Sublease, which is attached hereto as Exhibit “A”. in 28 Governing Law. This Agreement shall be governed by and interpreted the Member s shall accordance with laws of the State of Florida. The rights and liabilities of the this Agreement. To be determined pursuant to the Act (as amended) and in accordance with on of the Act, this extent that any provision of the Agreement is inconsistent with any provisi tion. Agreement shall govern to the extent permitted by a court of competent jurisdic & swe {LY HAPLESS I7A1O0S mo ARTICLE TI MANAGEMENT 3.1. Manager. The Cooke SPE and Rosinus SPE are hereby appointed the managers of the Company (the “Manager” or the “Managers”), The business and affairs of the Company shall be managed under the direction and control of the Manager, and all powers of the Company shall Obe exercised by or under the authority of the Manager. No other Person shall have any right or authority to act for or bind the Company except as permitted in this Operating Agreement or as required by law. (a) Specific Duties. The Cooke SPE shall be responsible for and have control of designing, constructing and operating the Park, including but not limited to hiring and terminating all personnel, contractors, materialmen, vendors, and services involved in such construction and operation, subject only to the constraints of the budgets and cash flow projections adopted from time to time by the Manager and Members. The Rosinus SPE shall be responsible for the fiscal and financial matters of the Company set forth in Sections 4.1, 4.3, 4.4, 4.5, 4.6, and 4.7 hereof, subject only to the constraints of the budgets and cash flow projections adopted from time to time by the Manager and Members. Each may question and comment upon decisions of the other, and each shall reasonably and promptly respond to such questions and comments; provided, however, that so long as the Company is being operated within the budgets and cash flow projections adopted from time to time by the Manager and Members, neither Manager shall interfere in the performance of the duties and responsibilities of the other. () With respect to those matters for which the Managers are jointly responsible, if any, in the event of deadlock between the Cooke SPE and the Rosinus SPE which cannot be resolved within 48 hours after the deadlock, the parties shall submit their differences to the Advisory Board, and the Advisory Board shall determine the appropriate course of action. c) General Powers. The Manager shall have the full power to execute and deliver, for and on behalf of the Company, any and all documents and instruments which may be necessary or desirable to carry on the business of the Company, including, without limitation, any and all deeds, contracts, leases, mortgages, deeds of trust, promissory notes, security agreements, and financing statements pertaining to the Company’s assets or obligations, and to authorize the confession of judgment against the Company. No person dealing with the Manager need inquire into the validity or propriety of any document or instrument executed in the name of the Company by the Manager, or as to the authority of the Manager in executing the same. () Extraordinary Transactions, Notwithstanding anything to the contrary in this Agreement, the Manager shall not undertake any of the following, without the approval indicated: a the Company’s engaging in any business beyond the scope of the fm, 4 Suc 40 NAPLESAI7B1605 EL ee % business of the Company, without the advice and approval of the Advisory Board (defined in Section 3.10, below); Q) the sale, transfer, or other disposition of all or substantially all of the assets of the Company, without the advice and approval of the Advisory Board; @) the initiation of a voluntary proceeding under the United States Bankruptcy Code or any state receivership law in which the Company is the debtor, without the advice and approval of the Advisory Board; 4) the borrowing of money against the assets of the Company or incurring Company indebtedness without the advice and approval of the Advisory Board; G) the admission of additional Members to the Company (excluding, however, Members admitted during the initial raise by BIR & FIR of up to Ten Million Dollars from the sale of portions of BJR & FJR’s member interests in the Company), without the approval of all of the Members; 6) the conversion, merger, or consolidation of the Company with or into another Person, without the approval of all of the Members; ate, M lending money to, or guaranteeing the debt or other obligations of, any Member or Person, without the approval of all of the Members; (8) making unequal or disproportionate distributions to Members other than as set forth herein, without the approval of all ofthe Members; and 9) dissolving, liquidating, and winding up the affairs of the Company, without the approval of all of the Members. ©) Tenure of Managers. @ The Cooke SPE and Rosinus SPE shall both serve as the Manager of the Company, unless and until either: (1) is removed by a final non-appealable and non-reviewable court order entered and rendered by a court of competent jurisdiction that explicitly finds that the SPE has committed fraud or a felony in any matter related to the Company’s business or affairs; or (2) resigns voluntarily in a definitive writing signed manually by someone with undisputed or indisputable authority, or (3) is legally prohibited from operating or doing business for more than 90 consecutive days. Except as explicitly provided by this subsection, each SPE’s tenure as the Manager of the Company cannot be terminated for any reason in any manner. @) In the event a Manager’s tenure ends for any of the reasons set forth in this Section 3.1(e), then the Company’s Advisory Board shall conduct an in-person Ao, meeting pursuant to written notice delivered at least ten business days in advance of the in- 5 bois Le a At gfedoe NAPLESBI7E10V5 person meeting to discuss and to select a successor Manager by a favorable vote of at least 60% of the Company’s Advisory Board. In the event either SPE ceases to be a Manager pursuant to this subsection (e) and no successor is selected in accordance herewith, the Company shal! proceed with only one Manager; provided, however, that if there is only one Manager at the time that such Manager of the Company is terminated, then a replacement Manager must be selected by the Company's Advisory Board at the time of such termination. @ Limitation on Authority of Members. () No Member is an agent of the Company solely by virtue of being a Member, and no Member has authority to act for the Company solely by virtue of being a Member. 2 This Section 3.1 supersedes any authority granted to the Members pursuant to the Act. Any Member who takes any action or binds the Company in violation of this Section 3.1 shall be solely responsible for any loss and expense incurred by the Company as a result of the unauthorized action and shall indemnify and hold the Company harmless with respect to the loss or expense. 3.2. Meetings of and Vating by Members. @ A meeting of the Members may be called at any time by the Manager or by those Members holding at least twenty percent (20%) of the Percentage Interests then held by Members. Meetings of Members shall be held at the Company’s principal place of business or at any other place in the state of Florida designated by the Person calling the meeting. Not less than ten (10) nor more than ninety (90) days before each meeting, the Person calling the meeting shall give written notice of the meeting to each Member entitled to vote at the meeting. The notice shall state the time, place, and purpose of the meeting. Notwithstanding the foregoing provisions, each Member who is entitled to notice waives notice if before or after the meeting the Member signs a waiver of the notice that is filed with the records of Members’ meetings, or is present at the meeting in person or by proxy. Unless this Operating Agreement provides otherwise, at a meeting of Members, the presence in person or by proxy of Members holding not less than sixty- one percent (60%) of the Percentage Interests then held by Members constitutes a quorum. A Member may vote either in person or by written proxy signed by the Member or by the Member’s duly authorized attorney-in-fact. ) Except as otherwise provided in this Operating Agreement, the affirmative vote of Members holding fifty-one percent (51%) or more of the Percentage Interests then held by Members shall be required to approve any matter coming before the Members. (©) In lieu of holding a meeting, the Members may vote or otherwise take action by a written instrument indicating the consent of Members holding at least the Percentage Interests required to approve such action if a vote were taken at a meeting where a quorum was present. fos oy ee NAPLESICITEIOV.5 @ Wherever the Act requires unanimous consent to approve or take any action, that consent shall be given in writing and, in all cases, shall mean the consent of all Members. 3.3, Personal Service. No Member shall be required to perform services for the Company solely by virtue of being a Member. Unless approved by the Manager, no Member shall perform services for the Company or be entitled to compensation for services performed for the Company. 3.4. Duties of Parties. @ ‘The Manager shail not be liable, responsible, or accountable in damages or otherwise to the Company or to any Member for any action taken or any failure to act on behalf of the Company within the scope of the authority conferred on the Manager by this Operating Agreement or by law, unless the action was taken or omission was made fraudulently or in bad faith or unless the action or omission constituted gross negligence. @) Except as otherwise expressly provided in Sections 3.4(c) and 10.6 hereof, nothing in this Operating Agreement shall be deemed to restrict in any way the rights of any Manager, Member, or of any Affiliate of any such Manager or Member, to conduct any other tee non-competing business or activity whatsoever, and no such Manager or Member shall be accountable to the Company or to any Member with respect to that business or activity, unless the business or activity violates the terms of Section 10.6 hereof. The organization of the Company shall be without prejudice to the respective rights of the Manager and the Members (or the rights of their respective Affiliates) to maintain, expand, or diversify such other interests and activities and to receive and enjoy profits or compensation therefrom. Each Member waives any rights the Member might otherwise have to share or participate in such other interests or activities of the Manager or of any other Member or such Manager’s or Member’s Affiliates. © Each Member understands and acknowledges that the conduct of the Company’s business may involve business dealings and undertakings with the Manager, the Members, or their Affiliates. In any of those cases, those dealings and undertakings shall be at arm’s length and on commercially reasonable terms. 3.5. Indemnification. The Company shall indemnify the Manager for any act performed by the Manager within the scope of the authority conferred on the Manager herein, except for fraud, gross negligence, or an intentional breach of this Operating Agreement and except as provided by the Act. 3.6. Power of Attorney. (@) Grant of Power. Each Member constitutes and appoints the Manager as cL ps the Member’s true and lawful attorney-in-fact (“Attorney-in-Fact”), and in the Member’s name, 7 we? W NAPLESAITAIGNS Re place, and stead, to make, execute, sign, acknowledge, and file: aw one or more Articles of Organization; @ all documents (including amendments to Articles of Organization} that the Attorney-in-Fact deems appropriate to reflect any amendment, change, or modification; @) any and all other certificates or other instruments required to be filed by the Company under the laws of the State of Florida or of any other state or jurisdiction, including, without limitation, any certificate or other instruments necessary in order for the Company to continue to qualify as a limited liability company under the laws of the State of Florida; (4) one or more fictitious or trade name certificates; and 6) all documents which may be required to dissolve and terminate the Company and to cancel its Certificate of Organization. (b) Irrevocability. The foregoing power of attorney is irrevocable and is coupled with an interest, and, to the extent permitted by applicable law, shall survive the death or disability of a Member. It also shall survive the Transfer of an Interest, except that if the wt transferee is admitted as a Member, this power of attorney shall survive the delivery of the assignment for the sole purpose of enabling the Attomey-in-Fact to execute, acknowledge, and file any documents needed to effectuate the substitution. Each Member shall be bound by any representations made by the Attomey-in-Fact acting in good faith pursuant to this power of attorney, and each Member hereby waives any and all defenses which may be available to contest, negate, or disaffirm the action of the Attomey-in-Fact taken in good faith under this power of attorney. 3.7. Arbitration of Deadlock. lf any vote (of Managers or Members) is required on any matter under this Operating Agreement or the Act, and there are neither sufficient votes to approve nor disapprove of the matter, then a Deadlock shall be deemed to exist. If a Deadlock occurs, and submission of same to the Advisory Board does not resolve the Deadlock within thirty (30) days, then the Manager may require that the matter be submitted to arbitration in accordance with the rules of the American Arbitration Association. 3.8. Fiscal Authority. Any check or instrument of disbursement to be issued by the Company to one payee at one time for more than $50,000.00 shall require two-signatures from the Manager; provided, however, that this signature requirement does not grant to (expressly or by implication) either Manager any right to approve or fo reject or to delay any requested disbursement that benefits the Tract and all such disbursements shall be solely to benefit the Tract. This provision requiring a second signature for checks/disbursements more than $50,000.60 shall not serve to restrict the rights and obligations of either Manager. 2, oa ic , NAPLESIBITEIENS assent 3.9 Fee and Expenses. @) The Manager shall devote such time and effort to the Company as the Manager may from time to time determine to be necessary or desirable in the Manager’s sole discretion. The Manager shall not be required to devote all or any specified portion of time to manage the Company, and management is not contemplated to be the Manager’s sole and exclusive fimction. The Manager shall be entitled to be paid reasonable compensation, including salary and customary benefits (including health insurance) for the principals of any Manager which is an entity, as determined by a vote of the Members; provided that (i) the base salary (not including customary benefits) to be paid to the Cooke SPE and to the Rosinus SPE shall not exceed $200,000.00 per year each and bonuses (if any, as determined by the Members) shall not exceed an additional $200,000.00 each per year and (ii) the salary cap shall not apply to restrict the compensation to be paid to a Manager who is not a Member and not an Affiliate of a Member owning more than 20% of the Membership Interests in the Company. ) The Manager shall be entitled to be reimbursed by the Company for the full amount of any and all expenses and/or fees hereafter incurred or paid in connection with (a) the organization and formation of the Company, (b) the management and operation of the Company, (c) the protection or enforcement of the Company’s rights or interests and /or (d) any other matters reasonably related to. The Manager will waive and relinguish any entitlement to reimbursement of any expenses incurred prior to the Effective Date. 3.10 Advisory Board, The Manager shall consult from time to time with an Advisory Board. The purpose of the Advisory Board is to provide advice and support to the Manager, and approve certain Extraordinary Transactions set forth herein. The initial members of the Advisory Board shall be Franz Rosinus, Bjorn Rosinus, Peter Fagan, Wayne Kelly, Terry J. Cooke, and Tiffanie Cooke. The Advisory Board shall be kept apprised of all activities relating to Company business, in order to properly advise the Manager and make sound decisions on behalf of the Company. Unless otherwise indicated, the Advisory Board shall approve by majority vote the Manager’s direction on those actions to be taken pursuant to Sections 3.1(b), 3.1@)(1)-(4), and 3.1(e\(2) hereof. The creation and appointment of the Advisory Board does not contemplate or encompass any other decision-making authority, except as expressly provided in or by this Agreement, In all other respects, the full authority for all decisions relating to the Company and its operations shall reside solely with the Manager. 3.11 General Counsel. The legal affairs of the Company shall be managed by an attomey selected and designated by the Manager to serve as the General Counsel. The General Counsel shall report to the Manager and shall serve as the Company's legal counsel. The General Counsel shall discharge responsibilities designated herein as reasonably supplemented by the Manager. 3.12 Financial Council. Ail Members who are not named to the Advisory Board shall be engaged in the management of the Company and policy formulation through membership on the Financial Council (the “Council”). The Council shall provide advice and support to the the 9 we ue L NAPLESIOI7816¥5 —fZP “et Company with respect to the Rosinus SPE’s duties, authority and responsibilities for fiscal and financial matters of the Company set forth in Sections 4.1, 4.3, 4.4, 4.5, 4.6, and 4.7 hereof (“Financial Matters”). The Council shall be kept apprised of all activities relating to Company business, in order to properly advise the Rosinus SPE and make sound financial decisions on behalf of the Company. Unless otherwise indicated, the Council shall approve by majority vote the Rosinus SPE’s direction on all actions submitted to it with respect to Financial Matters. The creation and appointment of the Council does not contemplate or encompass any additional decision-making authority, or that the Council shall have every action to be taken by the Rosinus SPE submitted to it, except as expressly provided in or by this Agreement. However, it is the intent of this Agreement to give the Council a substantial voice and material participation in policy formulation, particularly with Financial Matters. In all other respects, full authority for all decisions relating to the Company and its operations shall reside solely with the Managers. ARTICLE IV BOOKS, RECORDS AND ACCOUNTING MATTERS 41 Books and Records. As long as BJR & FIR, LLC is not in violation of the requirements imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shall keep, or cause to be kept, accurate, complete and proper books and records of all operations of the Company. Each woes, Member shall have the full and continuous right to: (a) examine the Company books and records at the Company’s principal place of business during regular business hours; (b) upon reasonable prior written notice to review, audit and/or copy at his or its own expense all or part of such books and records; and (c) make reasonable inquiry of the Company and the Manager regarding the Company’s affairs only as permitted by the Act and as reasonable under the circumstances. 4.2 Fiscal Year. Unless otherwise required by law, the Company shall adopt the calendar year for financial and income tax purposes. 43 Accountants. As long as BIR & FIR, LLC is not in violation of the requirements imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shall select the independent public accounting firm to represent and counsel the Company in connection with all tax and accounting matters, provided, however, that the selection made by the Rosinus SPE shall be subject to the reasonable approval of the Manager. 44 Tax Returns. As long as BIR & FIR, LLC is not in violation of the requirements imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shall cause to be prepared and filed all tax returns required to be filed by or on behalf of the Company and shall cause to be paid all taxes due from the Company, including any taxes payable with respect to the Company’s assets. The Rosinus SPE shall make all tax elections as are determined to be in the best interest of the Company. As soon as practicable after the close of the Company’s tax year, the Company shall cause to be delivered to each Member a copy of the Company’s federal income tax return and each Member’s respective K-1 form. 10 Wik qi Gl. Be / NAPLES I7B100.5 4.5 Tax Matters Pariner. The Rosinus SPE shall have the full right to appoint, remove and replace a Tax Matters Partner at any time. BJR & FJR, LLC shall be and hereby is appointed as the initial Tax Matters Partner. The Tax Matters Partner, as defined in Internal Revenue Code, shall represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, including resulting judicial and administrative proceedings. The Tax Matters Partner may and is expected to use Company funds for professional services and costs associated with all such matters. 4.6 Financial Reports. As long as BIR & FIR, LLC is not in violation of the requirements imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shail cause to be prepared and delivered to each Member a financial report of the Company within 90 days after the end of each fiscal year. The minimum standard of review for the financial report shall be a tax basis review by the Company's accountants. The cost of all such reporting shall be paid by the Company as a Company expense. Any Member may cause a formal audit of the Company’s books and records to be made by a certified public accountant, the results of which and all teports/summaries relating thereto shall be provided promptly by the auditors to the Company at no expense whatsoever to the Company. 47 Bank Accounts, As long as BIR & FIR, LLC is not in violation of the requirements imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shall bear primary fon responsibility for management and maintenance of all accounts maintained by or for the Company at/with financial institutions. The funds of the Company shall be held in one or more accounts in financial banking institutions designated by the Manager. There shall not be deposited in any of such accounts any finds other than funds belonging to the Company, and no other fimds shall in any way be commingled with such funds. The funds contained in the Company's bank accounts shall not be used for any other purpose other than the Company’s business. 48 Rosinus SPE’s Role in Accounting Matters. As long as BIR & FIR, LLC is not in violation of the requirements imposed by subsections 5.1(A) and 5.1(B), the Rosinus SPE shall be fully and intimately involved in all aspects of the Company’s bookkeeping and accounting functions of the Company and the Manager shall continuously and conscientiously involve and consult BIR & FIR, LLC; provided, however, that the Rosinus SPE shall have no rights or privileges regarding the bookkeeping and accounting functions in the event that BIR & FIR, LLC fails to fulfill its obligations under subsections 5.1(A and 5.1(B) in strict accordance therewith, whereupon all rights and responsibilities otherwise delegated or reserved to the Rosims SPE shall be delegated or assigned to the Cooke SPE exclusively. ARTICLE V OWNERSHIP AND FINANCING Sal Ownership. For value received, the initial ownership structure of the Company se i te ve NAPLES#S1 7810.5 Fx i shall be and hereby is declared to be: 51.0% LPITW, LLC; 5% Shell Creek Dream, LLC; 1.5% Fagan International, Inc.; and 42.5% BIR & FIR, LLC; subject, however, to the following conditions, restrictions and requirements: (A) Within six months ftom the Effective Date hereof, BIR & FIR, LLC shall have paid or caused or arranged to be paid, contributed or granted to or for the direct benefit of the Company, at least $2,500,000.00 (USD), as partial payment of the $10,000,000.00 total consideration owed and payable for the purchase and acquisition by BIR & FIR, LLC of the 42.5% Membership Interest in the Company; AND ®) Within 24 months from the Effective Date, FIR & FIR, LLC shall have paid or caused or arranged to be paid, contributed or granted to or for the direct benefit of the Company, at least $5,000,000.00 (USD) [inclusive of the amount to be paid pursuant to subsection (A) above] as partial payment of the $10,000,000.00 total consideration owed and payable for the purchase and acquisition by BIR & FIR, LLC of the 42.5% Membership Interest in the Company. In the event that BIR & FIR, LLC fails for any reason (or for no reason at all) to pay into the Company for the sole benefit of the Company the first $2,500,000.00 (USD) in accordance with subsection 5.1(A) above or BIR & FYR, LLC fails to pay into the Company a total aggregate of $5,000,000.00 in accordance with subsection 5.1 (B) above, then within 30 days after written notice from the Cooke SPE of the expiration/passage of a payment deadline established by subsection 5.1(A) and by subsection 5.1(B), respectively, the Company (at the sole and absolute discretion of the Cooke SPE, regardless of the presence or existence of any other Manager) may (but shall not be required to) call and purchase, and BIR & FIR, LLC shall be obligated to sell to the Company for $100.00 cash that portion of the 42.5% Membership Interest for which BIR & FIR, LLC did not pay in a timely manner according to subsections 5.1(a) and (b) above, and BIR & FIR, LLC may retain the balance of the Membership Interests for which BIR & FIR, LLC has paid the proportionate purchase price. The portion of the 42.5% Membership Interest that the Company may call from BJR & FIR, LLC and that BIR & FIR, LLC shall be obligated to sell the Company in response to a call issued by the Company shall be determined by the ratio that that portion of the total $10,000,000.00 purchase price not paid by BIR & FIR, LLC in advance of the applicable payment deadlines established by subsections 5.1(A) and 5.1(B) bears to the total aggregate purchase price of $10,000,000.00. Stated alternatively, the portion of the BIR & FJR, LLC Membership Interest that the Company shall have the absolute right to purchase from BIR & FIR, LLC for $100.00 cash, in the event that BIR & FIR, LLC fails to pay timely each oe traunch of funds designated as components of the total $10,000,000.00 purchase price and the 12 Ue AV NAPLESEI T1605 If Company elects to issue a call, shall be determined by the following formula: (a) Subtract the amount timely paid pursuant to subsection 5.1(A) above or pursuant to subsection 5.1 (B) above from $10,000,000.00; Q) Multiply the amount derived from performing function (1) above (Le., the difference) by 42.5% (or 425); (3) Divide the amount derived from performing function (2) above (i.e., the product) by $10,000,000.00; and 4 The product will be the portion of the 42.5% of the Membership Interest that the Company may call and pursuant to which BJR & FJR, LLC shall sell to the Company in the event that BIR & FIR, LLC fails to pay as required by subsections 5.1(A) and 5.1(B) above and the Company elects to issue a call pursuant hereto. The algebraic formula for such calculation can be stated as: Portion of $10 million not paid per Portion of 42.5% Membership Subsections 5.1(A) and 5.1(B) [“PNP”] Interestto be sold to the Company reenactment nt yt $10,000,000.00 42.5% and ig performed as follows: PNP = $10,000,000.00 - amount paid timely PNP x 42.5% + $10,000,000.00 = portion of 42.5% interest that BIR & FIR, LLC must sell back to the Company. This call option shall be available to the Company, as determined solely by the Cooke SPE as the Manager, for 60 days following each payment deadline with which BJR & FIR, LLC fails to comply. Upon receipt of $100.00 cash payment from the Company pursuant to the exercise of this call option, BIR & FIR, LLC shall transfer absolutely and in fee simple absolute that portion of the Membership Interest held by or on behalf of BIR &FIR, LLC as calculated by the formula specified above, whereupon all interests and all rights that BJR & FIR, LLC has ever had in or to that portion of the Membership Interests shall be deemed to be extinguished ab initio automatically, and BIR and FIR, LLC shall be deemed to have forfeited any interest in or to that portion of the Membership Interests from and after the Effective Date and to have waived all rights of membership derived. from such Membership Interests arising from any source at any time. If BIR & FIR, LLC fails to transfer and deliver legally sufficient indicia of ownership transfer as may be reasonably requested by the Manager to the Company all indicia of ownership and all rights in and to the Membership Interests promptly upon tender of the $100.00 cash payment, the Company shall cancel BIR & FIR, LLC’s interest on the books of the Company in that portion of the 42.5% Membership Interest that is the subject of the call, and all rights of BIR & FIR, LLC shall thereupon be automatically extinguished ab initio and BIR & FIR, LLC shall be entitled to receive nothing. 13 Ate A Ga NAPLESIITBtOV.S