UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-Q
(Mark One)
x | QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the
Quarterly period ended September 30, 2014
OR
o | TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934 |
For the
transition period from ____________________________ to
Commission
file number 1-7865
HMG/COURTLAND
PROPERTIES, INC.
(Exact
name of small business issuer as specified in its charter)
|
|
|
Delaware |
|
59-1914299 |
(State or other
jurisdiction of |
|
(I.R.S. Employer |
incorporation
or organization) |
|
Identification
No.) |
1870
S. Bayshore Drive, Coconut Grove, Florida |
|
33133 |
(Address of principal
executive offices) |
|
(Zip Code) |
|
|
|
305-854-6803 |
(Registrant’s telephone number, including area code) |
Not
Applicable
(Former
name, former address and former fiscal year, if changed since last report)
Indicate
by check mark whether the issuer (1) has filed all reports required to be filed by Sections 13 or 15 (d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.
Yes x
No o
Indicate
by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every
Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of
this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and
post such files). Yes x No o
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated
filer o |
Accelerated filer o |
Non-accelerated filer o |
Smaller reporting company x |
|
|
(Do not check if a smaller reporting company) |
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the exchange Act). Yes o
No x
APPLICABLE
ONLY TO CORPORATE ISSUERS:
State
the number of shares outstanding of each of the issuer’s classes of common equity, as of the latest practicable date. 1,048,926
Common shares were outstanding as of November 14, 2014.
HMG/COURTLAND
PROPERTIES, INC.
Index
Cautionary
Statement. This Form 10-Q contains certain statements relating to future results of the Company that are considered “forward-looking
statements” within the meaning of the Private Litigation Reform Act of 1995. Actual results may differ materially from those
expressed or implied as a result of certain risks and uncertainties, including, but not limited to, changes in political and economic
conditions; interest rate fluctuation; competitive pricing pressures within the Company’s market; equity and fixed income
market fluctuation; technological change; changes in law; changes in fiscal, monetary, regulatory and tax policies; monetary fluctuations
as well as other risks and uncertainties detailed elsewhere in this Form 10-Q or from time-to-time in the filings of the Company
with the Securities and Exchange Commission. Such forward-looking statements speak only as of the date on which such statements
are made, and the Company undertakes no obligation to update any forward-looking statement to reflect events or circumstances
after the date on which such statement is made or to reflect the occurrence of unanticipated events.
HMG/COURTLAND
PROPERTIES, INC. AND SUBSIDIARIES
CONDENSED
CONSOLIDATED BALANCE SHEETS
| |
September 30, | | |
December 31, | |
| |
2014 | | |
2013 | |
| |
(UNAUDITED) | | |
| |
ASSETS | |
| | |
| |
Investment properties, net of accumulated depreciation: | |
| | |
| |
Office building and other commercial property | |
$ | 797,788 | | |
$ | 809,905 | |
Total investment properties, net | |
| 797,788 | | |
| 809,905 | |
| |
| | | |
| | |
Cash and cash equivalents | |
| 6,569,830 | | |
| 17,655,568 | |
Investments in marketable securities | |
| 11,261,510 | | |
| 4,722,597 | |
Other investments | |
| 4,007,659 | | |
| 3,304,336 | |
Investment in affiliate | |
| 2,429,978 | | |
| 2,445,891 | |
Loans, notes and other receivables | |
| 1,384,959 | | |
| 1,408,150 | |
Investment in real estate partnership | |
| 180,351 | | |
| — | |
Other assets | |
| 35,463 | | |
| 32,773 | |
TOTAL ASSETS | |
$ | 26,667,538 | | |
$ | 30,379,220 | |
| |
| | | |
| | |
LIABILITIES | |
| | | |
| | |
Note payable to affiliate | |
$ | 2,400,000 | | |
$ | 2,502,891 | |
Accounts payable, accrued expenses and other liabilities | |
| 232,549 | | |
| 202,552 | |
Due to Adviser | |
| — | | |
| 2,095,701 | |
Income tax payable | |
| — | | |
| 1,592,716 | |
Deferred income taxes | |
| 217,000 | | |
| 217,000 | |
TOTAL LIABILITIES | |
| 2,849,549 | | |
| 6,610,860 | |
| |
| | | |
| | |
STOCKHOLDERS’ EQUITY | |
| | | |
| | |
Excess common stock, $1 par value; 100,000 shares authorized: no shares issued | |
| — | | |
| — | |
Common stock, $1 par value; 1,200,000 shares authorized and 1,048,926 issued and outstanding as of September 30, 2014 and
December 31, 2013. | |
| 1,048,926 | | |
| 1,048,926 | |
Additional paid-in capital | |
| 24,230,844 | | |
| 24,230,844 | |
Undistributed gains from sales of properties, net of losses | |
| 53,754,659 | | |
| 53,754,659 | |
Undistributed losses from operations | |
| (55,449,076 | ) | |
| (55,547,873 | ) |
Total stockholders’ equity | |
| 23,585,353 | | |
| 23,486,556 | |
Non-controlling interest | |
| 232,636 | | |
| 281,804 | |
TOTAL EQUITY | |
| 23,817,989 | | |
| 23,768,360 | |
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY | |
$ | 26,667,538 | | |
$ | 30,379,220 | |
| |
| | | |
| | |
See notes to the condensed consolidated financial statements
HMG/COURTLAND PROPERTIES,
INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS
OF COMPREHENSIVE INCOME (UNAUDITED)
| |
| | |
| | |
| | |
| |
| |
For the three months ended September 30, | | |
For the nine months ended September 30, | |
| |
2014 | | |
2013 | | |
2014 | | |
2013 | |
REVENUES | |
| | | |
| | | |
| | | |
| | |
Real estate rentals and related revenue | |
$ | 24,310 | | |
$ | 16,744 | | |
$ | 61,155 | | |
$ | 48,544 | |
| |
| | | |
| | | |
| | | |
| | |
EXPENSES | |
| | | |
| | | |
| | | |
| | |
Operating expenses: | |
| | | |
| | | |
| | | |
| | |
Rental and other properties | |
| 24,397 | | |
| 15,637 | | |
| 65,964 | | |
| 51,308 | |
Adviser’s base fee | |
| 165,000 | | |
| 255,000 | | |
| 495,000 | | |
| 765,000 | |
General and administrative | |
| 63,571 | | |
| 89,027 | | |
| 165,257 | | |
| 245,155 | |
Professional fees and expenses | |
| 84,736 | | |
| 49,378 | | |
| 225,763 | | |
| 136,153 | |
Directors’ fees and expenses | |
| 28,279 | | |
| 35,522 | | |
| 77,029 | | |
| 82,050 | |
Depreciation and amortization | |
| 6,354 | | |
| 4,039 | | |
| 15,395 | | |
| 12,117 | |
Interest expense | |
| 23,482 | | |
| 22,693 | | |
| 72,206 | | |
| 67,925 | |
Total expenses | |
| 395,819 | | |
| 471,296 | | |
| 1,116,614 | | |
| 1,359,708 | |
| |
| | | |
| | | |
| | | |
| | |
Loss before other income and income taxes | |
| (371,509 | ) | |
| (454,552 | ) | |
| (1,055,459 | ) | |
| (1,311,164 | ) |
| |
| | | |
| | | |
| | | |
| | |
Net realized and unrealized (losses) gains from investments in marketable securities | |
| (252,315 | ) | |
| 20,960 | | |
| 385,579 | | |
| 53,763 | |
Net income from other investments | |
| 30,419 | | |
| 86,521 | | |
| 114,515 | | |
| 229,669 | |
Other than temporary impairment losses from other investments | |
| (11,092 | ) | |
| — | | |
| (11,092 | ) | |
| — | |
Interest, dividend and other income | |
| 183,656 | | |
| 67,030 | | |
| 671,841 | | |
| 163,750 | |
Total other (loss) income | |
| (49,332 | ) | |
| 174,511 | | |
| 1,160,843 | | |
| 447,182 | |
| |
| | | |
| | | |
| | | |
| | |
(Loss) income before income taxes | |
| (420,841 | ) | |
| (280,041 | ) | |
| 105,384 | | |
| (863,982 | ) |
Benefit from income taxes | |
| (91,000 | ) | |
| 0 | | |
| 0 | | |
| 0 | |
(Loss) income from continuing operations | |
| (329,841 | ) | |
| (280,041 | ) | |
| 105,384 | | |
| (863,982 | ) |
(Loss) income from discontinued operations | |
| 0 | | |
| (1,659,737 | ) | |
| 0 | | |
| 16,254,808 | |
Net (loss) income | |
| (329,841 | ) | |
| (1,939,778 | ) | |
| 105,384 | | |
| 15,390,826 | |
Noncontrolling interests in continuing operations | |
| 1,997 | | |
| 20,714 | | |
| (6,587 | ) | |
| (7,293 | ) |
Noncontrolling interests in discontinued operations | |
| 0 | | |
| (28,558 | ) | |
| 0 | | |
| (87,152 | ) |
Net income (loss) attributable to noncontrolling interest | |
| 1,997 | | |
| (7,844 | ) | |
| (6,587 | ) | |
| (94,445 | ) |
Net (loss) income attributable to the Company | |
$ | (327,844 | ) | |
$ | (1,947,622 | ) | |
$ | 98,797 | | |
$ | 15,296,381 | |
| |
| | | |
| | | |
| | | |
| | |
Amounts attributable to the Company | |
| | | |
| | | |
| | | |
| | |
Continuing operations | |
| (327,844 | ) | |
| (259,327 | ) | |
| 98,797 | | |
| (871,275 | ) |
Discontinued operations | |
| 0 | | |
| (1,688,295 | ) | |
| 0 | | |
| 16,167,656 | |
Net (loss) income attributable to the Company | |
$ | (327,844 | ) | |
$ | (1,947,622 | ) | |
$ | 98,797 | | |
$ | 15,296,381 | |
| |
| | | |
| | | |
| | | |
| | |
Weighted average common shares outstanding-basic | |
| 1,048,926 | | |
| 1,031,350 | | |
| 1,048,926 | | |
| 1,004,599 | |
Weighted average common shares outstanding-diluted | |
| 1,048,926 | | |
| 1,031,350 | | |
| 1,049,954 | | |
| 1,025,939 | |
| |
| | | |
| | | |
| | | |
| | |
Net (loss) income per common: | |
| | | |
| | | |
| | | |
| | |
Continuing operations-basic | |
$ | (0.31 | ) | |
$ | (0.25 | ) | |
$ | 0.09 | | |
$ | (0.87 | ) |
Continuing operations-diluted | |
$ | (0.31 | ) | |
$ | (0.25 | ) | |
$ | 0.09 | | |
$ | (0.85 | ) |
Discontinued operations-basic | |
$ | — | | |
$ | (1.64 | ) | |
$ | — | | |
$ | 16.09 | |
Discontinued operations-diluted | |
$ | — | | |
$ | (1.64 | ) | |
$ | — | | |
$ | 15.76 | |
Basic net income per share | |
$ | (0.31 | ) | |
$ | (1.89 | ) | |
$ | 0.09 | | |
$ | 15.23 | |
Diluted net income per share | |
$ | (0.31 | ) | |
$ | (1.89 | ) | |
$ | 0.09 | | |
$ | 14.91 | |
| |
| | | |
| | | |
| | | |
| | |
Other comprehensive income: | |
| | | |
| | | |
| | | |
| | |
Unrealized gain on interest rate swap agreement | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | 982,500 | |
Total other comprehensive income | |
| 0 | | |
| 0 | | |
| 0 | | |
| 982,500 | |
| |
| | | |
| | | |
| | | |
| | |
Comprehensive (loss) income | |
$ | (327,844 | ) | |
$ | (1,947,622 | ) | |
$ | 98,797 | | |
$ | 16,278,881 | |
See
notes to the condensed consolidated financial statements
HMG/COURTLAND PROPERTIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
| |
| | |
| |
| |
For the nine months ended September 30, | |
| |
2014 | | |
2013 | |
CASH FLOWS FROM OPERATING ACTIVITIES: | |
| | | |
| | |
Net income attributable to the Company | |
$ | 98,797 | | |
$ | 15,296,381 | |
Adjustments to reconcile net income attributable to
the Company to net cash used in operating activities: | |
| | | |
| | |
Depreciation and amortization | |
| 15,395 | | |
| 12,117 | |
Non-employee stock compensation expense | |
| — | | |
| 20,498 | |
Net income from other investments, excluding impairment losses | |
| (114,515 | ) | |
| (229,669 | ) |
Other than temporary impairment loss from other investments | |
| 11,092 | | |
| | |
Gain from dissolution of joint venture with related party | |
| (226,157 | ) | |
| — | |
Gain from the sale of discontinued operations | |
| — | | |
| (16,167,656 | ) |
Net gain from investments in marketable securities | |
| (385,579 | ) | |
| (53,763 | ) |
Net income attributable to non controlling interest | |
| 6,587 | | |
| 7,293 | |
Changes in assets and liabilities: | |
| | | |
| | |
Other assets and other receivables | |
| 20,501 | | |
| (37,309 | ) |
Accounts payable, accrued expenses and other liabilities | |
| (3,721,483 | ) | |
| (12,643 | ) |
Total adjustments | |
| (4,394,159 | ) | |
| (16,461,132 | ) |
Net cash used in operating activities | |
| (4,295,362 | ) | |
| (1,164,751 | ) |
| |
| | | |
| | |
CASH FLOWS FROM INVESTING ACTIVITIES: | |
| | | |
| | |
Proceeds from sales of discontinued operations | |
| — | | |
| 23,030,262 | |
Collections in notes and advances from related parties | |
| 226,157 | | |
| — | |
Distributions from other investments | |
| 512,096 | | |
| 447,124 | |
Contributions to other investments | |
| (1,135,083 | ) | |
| (70,750 | ) |
Net proceeds from sales and redemptions of securities | |
| 6,175,986 | | |
| 864,151 | |
Purchase of marketable securities | |
| (12,329,319 | ) | |
| (3,121,298 | ) |
Additions in loans and notes receivable | |
| (138,000 | ) | |
| — | |
Collections in loans and notes receivable | |
| 138,000 | | |
| — | |
Investment in real estate partnership | |
| (180,351 | ) | |
| — | |
Purchases and improvements of properties | |
| (274,691 | ) | |
| — | |
Proceeds from sales of properties | |
| 278,720 | | |
| — | |
Proceeds from partial sale of affiliate and distributions from affiliate | |
| 39,000 | | |
| 196,016 | |
Net cash (used in) provided by investing activities | |
| (6,687,485 | ) | |
| 21,345,505 | |
| |
| | | |
| | |
CASH FLOWS FROM FINANCING ACTIVITIES: | |
| | | |
| | |
Stock options exercised | |
| — | | |
| 122,314 | |
Repayment note to affiliate | |
| (102,891 | ) | |
| (311,488 | ) |
Net cash (used in) provided by financing activities | |
| (102,891 | ) | |
| (189,174 | ) |
| |
| | | |
| | |
Net (decrease) increase in cash and cash equivalents | |
| (11,085,738 | ) | |
| 19,991,580 | |
Cash and cash equivalents at beginning of the period | |
| 17,655,568 | | |
| 1,510,773 | |
Cash and cash equivalents at end of the period | |
$ | 6,569,830 | | |
$ | 21,502,353 | |
| |
| | | |
| | |
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION: | |
| | | |
| | |
Cash paid during the period for interest | |
$ | 72,000 | | |
$ | 68,000 | |
Cash paid during the period for income taxes | |
$ | 1,593,000 | | |
$ | — | |
| |
| | | |
| | |
Non-cash Investing Activities: | |
| | | |
| | |
Note receivable received for sales of discontinued operations | |
$ | — | | |
$ | 1,000,000 | |
See
notes to the condensed consolidated financial statements
HMG/COURTLAND
PROPERTIES, INC. AND SUBSIDIARIES
NOTES
TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1.
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
In the opinion
of the Company, the accompanying unaudited condensed consolidated financial statements prepared in accordance with instructions
for Form 10-Q, include all adjustments (consisting only of normal recurring accruals) which are necessary for a fair presentation
of the results for the periods presented. Certain information and footnote disclosures normally included in the consolidated financial
statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed
or omitted. It is suggested that these condensed consolidated financial statements be read in conjunction with the Company’s
Annual Report for the year ended December 31, 2013. The balance sheet as of December 31, 2013 was derived from audited consolidated
financial statements as of that date. The results of operations for the three and nine months ended September 30, 2014 are not
necessarily indicative of the results to be expected for the full year.
The condensed
consolidated financial statements include the accounts of HMG/Courtland Properties, Inc. (the “Company”) and entities
in which the Company owns a majority voting interest or controlling financial interest. All material transactions and balances
with consolidated and unconsolidated entities have been eliminated in consolidation or as required under the equity method. Amounts
in footnotes are rounded to the nearest thousands.
2. RECENT
ACCOUNTING PRONOUNCEMENTS
Refer to
the consolidated financial statements and footnotes thereto included in the HMG/Courtland Properties, Inc. Annual Report on Form
10-K for the year ended December 31, 2013 for recent accounting pronouncements.
In May 2014,
the FASB issued Accounting Standards Update No. 2014-09, Revenue from Contracts with Customers (ASU 2014-09), which supersedes
nearly all existing revenue recognition guidance under U.S. GAAP. The core principle of ASU 2014-09 is to recognize revenues when
promised goods or services are transferred to customers in an amount that reflects the consideration to which an entity expects
to be entitled for those goods or services. ASU 2014-09 defines a five step process to achieve this core principle and, in doing
so, more judgment and estimates may be required within the revenue recognition process than are required under existing U.S. GAAP.
The standard is effective for annual periods beginning after December 15, 2016, and interim periods therein, using either of the
following transition methods: (i) a full retrospective approach reflecting the application of the standard in each prior reporting
period with the option to elect certain practical expedients, or (ii) a retrospective approach with the cumulative effect of initially
adopting ASU 2014-09 recognized at the date of adoption (which includes additional footnote disclosures). We are currently evaluating
the impact of our pending adoption of ASU 2014-09 on our consolidated financial statements and have not yet determined the method
by which we will adopt the standard in 2017.
The Company
does not believe that any other recently issued, but not yet effective accounting standards, if currently adopted, will have a
material effect on the Company’s consolidated financial position, results of operations and cash flows.
3. INVESTMENTS
IN MARKETABLE SECURITIES
Investments
in marketable securities consist primarily of large capital corporate equity and debt securities in varying industries or issued
by government agencies with readily determinable fair values. These securities are stated at market value, as determined by the
most recent traded price of each security at the balance sheet date. Consistent with the Company’s overall current investment
objectives and activities, its entire marketable securities portfolio is classified as trading.
In April
2014, the Company purchased approximately $3.5 million of preferred equity of large capital real estate investment trusts (REITS);
consisting of approximately 20 preferred stock positions with no one position exceeding $400,000 in value as of September 30,
2014.
In March
2014, the Company purchased approximately $3.5 million of marketable securities consisting of approximately 50 common stock positions
in large capital REITS. No one stock position of this purchase exceeds $400,000 in value as of September 30, 2014.
Net realized
and unrealized gain (loss) from investments in marketable securities for the three and nine months ended September 30, 2014 and
2013 is summarized below:
| |
Three months ended September 30, | | |
Nine months ended September 30, | |
Description | |
2014 | | |
2013 | | |
2014 | | |
2013 | |
Net realized gain (loss) from sales of securities | |
$ | 290,000 | | |
($ | 15,000 | ) | |
$ | 336,000 | | |
($ | 7,000 | ) |
Unrealized net (loss) gain in trading securities | |
| (542,000 | ) | |
| 36,000 | | |
| 50,000 | | |
| 61,000 | |
Total net (loss) gain from investments in marketable securities | |
($ | 252,000 | ) | |
$ | 21,000 | | |
$ | 386,000 | | |
$ | 54,000 | |
For the
three months ended September 30, 2014, net realized gain from sales of marketable securities was approximately $290,000, and consisted
of approximately $312,000 of gross gains and $22,000 of gross losses. For the nine months ended September 30, 2014, net realized
gain from sales of marketable securities was approximately $336,000, and consisted of approximately $393,000 of gross gains net
of $57,000 of gross losses.
For the
three months ended September 30, 2013, net realized loss from sales of marketable securities of approximately $15,000 consisting
of approximately $29,000 in gross losses net of $14,000 of gross gains. For the nine months ended September 30, 2013, net realized
loss from sales of marketable securities of was approximately $7,000, and consisted of approximately $52,000 of gross losses net
of $45,000 of gross gains.
For the
three and nine months ended September 30, 2014, net unrealized (loss) gain from trading securities was approximately ($542,000)
and $50,000, respectively. This is compared to net unrealized gain of $36,000 and $61,000 for the three and nine months ended
September 30, 2013, respectively.
Investment
gains and losses on marketable securities may fluctuate significantly from period to period in the future and could have a significant
impact on the Company’s net earnings. However, the amount of investment gains or losses on marketable securities for any
given period has no predictive value and variations in amount from period to period have no practical analytical value.
4. INVESTMENT
IN REAL ESTATE PARTNERSHIP
In September
2014, the Company, through a newly-formed wholly owned subsidiary (HMG Orlando LLC, a Delaware limited liability company), acquired
a one-third equity membership interest in JY-TV Associates, LLC a Florida limited liability company (“JY-TV”) and
entered into the Amended and Restated Operating Agreement of JY-TV (the “Agreement”). JY-TV was formed in 2014 for
the sole purpose of purchasing and constructing up to two hundred fifty (250) unit rental apartments on approximately 9.5 acres
in Orlando, Florida. The other two initial members of JY-TV are not related to the Company. As provided in the Agreement, the
three members have each committed to fund approximately $1.8 million in equity in this project. As of September 30, 2014 the Company
has funded $150,000 towards this commitment. JY-TV is in the process of obtaining construction financing of approximately $27
million and construction is expected to commence in 2015. This investment will be accounted for under the equity method.
5. OTHER
INVESTMENTS
As of September
30, 2014, the Company’s portfolio of other investments had an aggregate carrying value of approximately $4 million and we
have commitments to fund approximately $1.9 million as required by agreements with the investees. The carrying value of these
investments is equal to contributions less distributions and loss valuation adjustments. During the nine months ended September
30, 2014, cash distributions received from other investments totaled approximately $512,000 from several investments in privately
owned partnerships owning diversified operating companies. During the nine months ended September 30, 2014, the Company made contributions
to other investments of approximately $1.1 million. This consisted primarily of two new investments of $300,000 each, one of $200,000,
one of $100,000 and various follow on contributions to existing investments totaling approximately $200,000.
Net income
from other investments for the three and nine months ended September 30, 2014 and 2013, is summarized below:
| |
Three months ended
September 30, | | |
Nine months ended
September 30, | |
Description | |
2014 | | |
2013 | | |
2014 | | |
2013 | |
Partnerships owning diversified businesses | |
$ | 14,000 | | |
$ | 63,000 | | |
$ | 91,000 | | |
$ | 104,000 | |
Partnerships owning real estate and related | |
| — | | |
| — | | |
| 1,000 | | |
| 40,000 | |
Income from investment in 49% owned affiliate (T.G.I.F. Texas, Inc.) | |
| 16,000 | | |
| 24,000 | | |
| 23,000 | | |
| 86,000 | |
Total net income from other investments (excluding other than temporary impairment losses) | |
$ | 30,000 | | |
$ | 87,000 | | |
$ | 115,000 | | |
| 230,000 | |
The
following tables present gross unrealized losses and fair values for those investments that were in an unrealized loss position
as of September 30, 2014 and December 31, 2013, aggregated by investment category and the length of time that investments
have been in a continuous loss position:
| |
As of September 30, 2014 | |
| |
12 Months or less | | |
Greater than 12 Months | | |
Total | |
Investment Description | |
Fair
Value | | |
Unrealized Loss | | |
Fair Value | | |
Unrealized Loss | | |
Fair Value | | |
Unrealized Loss | |
Partnerships owning investments in technology related industries | |
| — | | |
| — | | |
$ | 290,000 | | |
$ | (50,000 | ) | |
$ | 290,000 | | |
$ | (50,000 | ) |
Other investments | |
$ | 231,000 | | |
$ | (19,000 | ) | |
| — | | |
| — | | |
| 231,000 | | |
| (19,000 | ) |
Total | |
$ | 231,000 | | |
$ | (19,000 | ) | |
$ | 290,000 | | |
$ | (50,000 | ) | |
$ | 521,000 | | |
$ | (69,000 | ) |
| |
| |
| |
As of December 31, 2013 | |
| |
Less than 12 Months | | |
Greater than 12 Months | | |
Total | |
Investment Description | |
Fair
Value | | |
Unrealized Loss | | |
Fair Value | | |
Unrealized Loss | | |
Fair Value | | |
Unrealized Loss | |
Partnerships owning investments in technology related industries | |
$ | — | | |
$ | — | | |
$ | 346,000 | | |
$ | (76,000 | ) | |
$ | 346,000 | | |
$ | (76,000 | ) |
Partnerships owning real estate and related investments | |
| — | | |
| — | | |
| 246,000 | | |
| (11,000 | ) | |
| 246,000 | | |
| (11,000 | ) |
Total | |
$ | — | | |
$ | — | | |
$ | 592,000 | | |
$ | (87,000 | ) | |
$ | 592,000 | | |
$ | (87,000 | ) |
When
evaluating the investments for other-than-temporary impairment, the Company reviews factors such as the length of time and extent
to which fair value has been below cost basis, the financial condition of the issuer and any changes thereto, and the Company’s
intent to sell, or whether it is more likely than not it will be required to sell, the investment before recovery of the investment’s
amortized cost basis.
In
accordance with ASC Topic 320-10-65, Recognition and Presentation of Other-Than-Temporary Impairments (“OTTI”) the
Company recorded approximately $11,000 in OTTI impairment valuation adjustments for the three and nine months ended September
30, 2014. There were not OTTI adjustments for the three and nine months ended September 30, 2013.
6.
FAIR VALUE OF FINANCIAL INSTRUMENTS
In accordance
with ASC Topic 820, the Company measures cash and equivalents, marketable debt and equity securities at fair value on a recurring
basis. Other investments are measured at fair value on a nonrecurring basis.
The
following are the major categories of assets and liabilities measured at fair value on a recurring basis during the three and
nine months ended September 30, 2014 and for the year ended December 31, 2013, using quoted prices in active markets for identical
assets (Level 1) and significant other observable inputs (Level 2). For the periods presented, there were no major assets measured
at fair value on a recurring basis which uses significant unobservable inputs (Level 3):
Assets
and liabilities measured at fair value on a recurring basis are summarized below:
| |
| | |
| | |
| |
| |
Fair
value measurement at reporting date using | |
| |
Total | | |
Quoted
Prices in Active | | |
Significant
Other | | |
Significant | |
| |
September
30, | | |
Markets
for Identical Assets | | |
Observable
Inputs | | |
Unobservable
Inputs | |
Description | |
2014 | | |
(Level
1) | | |
(Level
2) | | |
(Level
3) | |
Assets: | |
| | | |
| | | |
| | | |
| | |
Cash equivalents: | |
| | | |
| | | |
| | | |
| | |
U.S. Treasury
bills | |
$ | 4,200,000 | | |
$ | 4,200,000 | | |
$ | — | | |
| — | |
Money market mutual funds | |
| 1,529,000 | | |
| 1,529,000 | | |
| — | | |
| — | |
Time deposits | |
| 55,000 | | |
| — | | |
| 55,000 | | |
| — | |
Marketable securities: | |
| | | |
| | | |
| | | |
| | |
Marketable equity securities | |
| 10,351,000 | | |
| 10,351,000 | | |
| — | | |
| — | |
Corporate debt securities | |
| 911,000 | | |
| — | | |
| 911,000 | | |
| — | |
Total assets | |
$ | 17,046,000 | | |
$ | 16,080,000 | | |
$ | 966,000 | | |
$ | — | |
| |
| | |
| | |
| |
| |
Fair
value measurement at reporting date using | |
| |
Total | | |
Quoted
Prices in Active | | |
Significant
Other | | |
Significant | |
| |
December
31, | | |
Markets
for Identical Assets | | |
Observable
Inputs | | |
Unobservable
Inputs | |
Description | |
2013 | | |
(Level
1) | | |
(Level
2) | | |
(Level
3) | |
Assets: | |
| | | |
| | | |
| | | |
| | |
Cash
equivalents: | |
| | | |
| | | |
| | | |
| | |
Time
deposits | |
$ | 55,000 | | |
| — | | |
$ | 55,000 | | |
| — | |
Money
market mutual funds | |
| 1,257,000 | | |
$ | 1,257,000 | | |
| — | | |
| — | |
U.S. T-bills | |
| 15,305,000 | | |
$ | 15,305,000 | | |
| | | |
| | |
Marketable
securities: | |
| | | |
| | | |
| | | |
| | |
Corporate
debt securities | |
| 1,065,000 | | |
| — | | |
| 1,065,000 | | |
| — | |
Marketable
equity securities | |
| 3,658,000 | | |
| 3,658,000 | | |
| — | | |
| — | |
Total
assets | |
$ | 21,340,000 | | |
$ | 20,220,000 | | |
$ | 1,120,000 | | |
$ | — | |
Assets
measured at fair value on a nonrecurring basis are summarized below:
| |
| | |
| | |
| | |
| |
| |
| | |
| | |
| | |
Total | |
| |
Fair value measurement at reporting date using | | |
losses
for | |
| |
Total | | |
Quoted
Prices in Active | | |
Significant
Other | | |
Significant | | |
three and
nine | |
| |
September
30, | | |
Markets
for Identical Assets | | |
Observable
Inputs | | |
Unobservable
Inputs | | |
months
ended | |
Description | |
2014 | | |
(Level
1) | | |
(Level
2) (a) | | |
(Level
3) (b) | | |
9/30/2014 | |
Assets: | |
| | | |
| | | |
| | | |
| | | |
| | |
Other
investments by investment focus: | |
| | | |
| | | |
| | | |
| | | |
| | |
Technology
& Communication | |
$ | 414,000 | | |
$ | — | | |
$ | 414,000 | | |
$ | — | | |
$ | (11,000 | ) |
Diversified businesses | |
| 1,222,000 | | |
| — | | |
| 1,222,000 | | |
| — | | |
| — | |
Real estate and related | |
| 1,746,000 | | |
| — | | |
| 702,000 | | |
| 1,044,000 | | |
| — | |
Other | |
| 626,000 | | |
| — | | |
| — | | |
| 626,000 | | |
| — | |
| |
$ | 4,008,000 | | |
$ | — | | |
$ | 2,338,000 | | |
$ | 1,670,000 | | |
$ | (11,000 | ) |
| |
| | |
| |
| |
Fair value measurement at reporting date using | | |
Total | |
| |
Total | | |
Quoted
Prices in Active | | |
Significant
Other | | |
Significant | | |
losses
for | |
| |
December
31, | | |
Markets
for Identical Assets | | |
Observable
Inputs | | |
Unobservable
Inputs | | |
year ended | |
Description | |
2013 | | |
(Level
1) | | |
(Level
2) (a) | | |
(Level
3) (b) | | |
12/31/2013 | |
Assets: | |
| | | |
| | | |
| | | |
| | | |
| | |
Other
investments by investment focus: | |
| | | |
| | | |
| | | |
| | | |
| | |
Technology
& Communication | |
$ | 472,000 | | |
$ | — | | |
$ | 472,000 | | |
$ | — | | |
$ | (50,000 | ) |
Diversified businesses | |
| 1,098,000 | | |
| — | | |
| 1,098,000 | | |
| — | | |
| — | |
Real estate and related | |
| 1,409,000 | | |
| — | | |
| 462,000 | | |
| 947,000 | | |
| — | |
Other | |
| 325,000 | | |
| — | | |
| — | | |
| 325,000 | | |
| — | |
| |
$ | 3,304,000 | | |
$ | — | | |
$ | 2,032,000 | | |
$ | 1,272,000 | | |
$ | (50,000 | ) |
| (a) | Other
investments measured at fair value on a non-recurring basis include investments in certain
entities that calculate net asset value per share (or its equivalent such as member units
or an ownership interest in partners’ capital to which a proportionate share of
net assets is attributed, “NAV”). This class primarily consists of private
equity funds that have varying investment focus. These investments can never be redeemed
with the funds. Instead, the nature of the investments in this class is that distributions
are received through the liquidation of the underlying assets of the fund. If these investments
were held it is estimated that the underlying assets of the fund would be liquidated
over 5 to 10 years. As of September 30, 2014, it is probable that all of the investments
in this class will be sold at an amount different from the NAV of the Company’s
ownership interest in partners’ capital. Therefore, the fair values of the investments
in this class have been estimated using recent observable information such as audited
financial statements and/or statements of partners’ capital obtained directly from
investees on a quarterly or other regular basis. During the nine months ended September
30, 2014, the Company received distributions of approximately $509,000 from this type
of investment primarily from investments in diversified businesses and real estate. During
the nine months ended September 30, 2014, the Company made contributions totaling $735,000
in this type of investment. As of September 30, 2014, the amount of the Company’s
unfunded commitments related to the aforementioned investments is approximately $1.9
million. |
| (b) | Other
investments above which are measured on a nonrecurring basis using Level 3 unobservable
inputs consist of investments primarily in commercial real estate in Florida through
private partnerships, two investments in the stock of private banks in Florida and Texas,
and others. The Company does not know when it will have the ability to redeem the investments
and has categorized them as a Level 3 fair value measurement. The Level 3 real estate
and related investments of approximately $1,044,000 include one investment in a commercial
building located near the Company’s offices purchased in 2005 with a carrying value
as of September 30, 2014 of $724,000. These investments are measured using primarily
inputs provided by the managing member of the partnerships with whom the Company has
done similar transactions in the past and is well known to management. The fair values
of these real estate investments have been estimated using the net asset value of the
Company’s ownership interest in partners’ capital. The fair values of these
investments have been estimated using the cost method less distributions received and
other than temporary impairments. These investments are valued using inputs provided
by the management of the investee. |
The
activity in investments classified within level 3 of the fair value hierarchy for the nine months ended September 30, 2014 is
as follows:
| |
Level 3 Investments: | |
Balance at January 1, 2014 | |
$ | 1,272,000 | |
Investments in Level 3 investments | |
| 400,000 | |
Distributions from Level 3 investments | |
| (2,000 | ) |
Transfers from Level 2 | |
| — | |
Balance at September 30, 2014 | |
$ | 1,670,000 | |
7. INCOME
TAXES
The Company
(excluding CII) qualifies as a real estate investment trust and distributes its taxable ordinary income to stockholders in conformity
with requirements of the Internal Revenue Code and is not required to report deferred items due to its ability to distribute all
taxable income. In addition, net operating losses can be carried forward to reduce future taxable income but cannot be carried
back. Distributed capital gains on sales of real estate as they relate to REIT activities are not subject to taxes; however, undistributed
capital gains may be subject to corporate tax.
As
of September 30, 2014 the Company (excluding CII) had net operating loss carryover (NOL) of approximately $30,000.
The Company’s
95%-owned subsidiary, CII, files a separate income tax return and its operations are not included in the REIT’s income tax
return.
As
of September 30, 2014, CII has an estimated NOL of approximately $1.3 million. CII has established a valuation
reserve of $1 million on this NOL due to CII historically having tax losses.
The
Company accounts for income taxes in accordance with ASC Topic 740, “Accounting for Income Taxes”. ASC Topic 740 requires
a Company to use the asset and liability method of accounting for income taxes. Under this method, deferred income taxes are recognized
for the tax consequences of “temporary differences” by applying enacted statutory tax rates applicable to future years
to differences between the financial statement carrying amounts and the tax bases of existing assets and liabilities. The effect
on deferred income taxes of a change in tax rates is recognized in income in the period that includes the enactment date. Deferred
taxes only pertain to CII. As a result, primarily of timing differences associated with the carrying value of other investments,
the Company has recorded a net deferred tax liability of $217,000 as of September 30, 2014 and December 31, 2013.
The
(benefit from) provision for income taxes in the consolidated statements of comprehensive income consists of the following:
Nine months ended September 30, | |
2014 | | |
2013 | |
Current: | |
| | | |
| | |
Federal | |
$ | — | | |
$ | 1,581,000 | |
State | |
| — | | |
| 275,000 | |
| |
| — | | |
$ | 1,856,000 | |
Deferred: | |
| | | |
| | |
Federal | |
($ | 19,000 | ) | |
$ | 754,000 | |
State | |
| (1,000 | ) | |
| 84,000 | |
| |
| (20,000 | ) | |
| 838,000 | |
Less: release of valuation allowance | |
| 20,000 | | |
| | |
Total | |
| — | | |
$ | 2,694,000 | |
We adopted
the provisions of ASC Topic 740-10, “Accounting for Uncertainty in Income Taxes” on January 1, 2007. This topic
clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements in accordance
with ASC Topic 740, “Accounting for Income Taxes”, and prescribes a recognition threshold and measurement process
for financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. Topic 740-10
also provides guidance on de-recognition, classification, interest and penalties, accounting in interim periods, disclosure and
transition.
Based on
our evaluation, we have concluded that there are no significant uncertain tax positions requiring recognition in our consolidated
financial statements. Our evaluation was performed for the tax years ended since December 31, 2010 which are the tax years
which remain subject to examination by major tax jurisdictions as of September 30, 2014.
We may from
time to time be assessed interest or penalties by major tax jurisdictions, although any such assessments historically have been
minimal and immaterial to our financial results. In the event we have received an assessment for interest and/or penalties, it
has been classified in the consolidated financial statements as selling, general and administrative expense.
8.
DISCONTINUED OPERATIONS AND REAL ESTATE INTERESTS HELD FOR SALE
As previously
reported, on February 25, 2013 the Company completed the sale of its interests in Grove Isle Associates LLLP, Grove Isle Yacht
Club Associates, Grove Isle Investments Inc. and CII Yacht Club, Inc., which represent interests in the Grove Isle hotel, club,
tennis courts and marina (collectively, the “Grove Isle Property”) to Grove Isle Yacht & Tennis, LLC, a Florida
limited liability company and an unrelated entity (“the Purchaser”), pursuant to a purchase agreement entered into
on the same day (the “Agreement”). The purchase price was $24.4 million, consisting of $23.4 million in cash and a
$1 million promissory note due from the Purchaser. Approximately $2.7 million of the proceeds were used to pay off the existing
mortgage on the Grove Isle Property. The Company realized gain on the sale of these interests (including amounts received in June
2013 described below) of approximately $19 million (or $19 per share) net of incentive fee due to the Adviser of approximately
$2.1 million.
In June
2013 the Company received approximately $327,000 of past due rental payments from the Grove Isle tenant. This amount is included
in the realized gain on the sale of Grove Isle. Also in June 2013 the Purchaser exercised its option to purchase our 50% interest
in the spa for $100,000 as provided in the Agreement. There was no gain or loss realized on this transaction.
As
previously reported, on March 29, 2013, pursuant to a Membership Interests Purchase Agreement (the “Agreement”) entered
into in December 2012, HMG/Courtland Properties, Inc. and its 95% owned subsidiary, Courtland Investments, Inc. (the “Company”),
completed the sale of the Company’s 50% membership interests in Bayshore Landing LLC, Bayshore Rawbar LLC and Bayshore Restaurant
LLC, (collectively the “Monty’s property) to the other 50% owner, The Christoph Family Trusts, which are unrelated
entities. The purchase price for the membership interests of $3 million was paid in cash. The Company realized a loss on the sale
of these interests of approximately $28,000 (or $.03 per share).
We have
classified the results of operations for the real estate interests discussed above into discontinued operations in the accompanying
condensed consolidated financial statements of comprehensive income.
| |
For the three months | | |
For the nine months | |
| |
ended September 30, | | |
ended September 30, | |
Revenues: | |
2013 | | |
2013 | |
Rental and related revenue | |
$ | — | | |
$ | 171,000 | |
Food & beverage sales | |
| — | | |
| 1,950,000 | |
Marina revenue | |
| — | | |
| 382,000 | |
Other | |
| — | | |
| — | |
Total revenue | |
$ | — | | |
$ | 2,503,000 | |
| |
| | | |
| | |
Expenses: | |
| | | |
| | |
Rental operating expenses | |
| — | | |
| 97,000 | |
Food & beverage operation expenses | |
| — | | |
| 1,430,000 | |
Marina expenses | |
| — | | |
| 178,000 | |
Professional fees | |
| — | | |
| 53,000 | |
Interest expense | |
| — | | |
| 190,000 | |
Depreciation, amortization and other expenses | |
| — | | |
| 199,000 | |
Total expenses | |
$ | — | | |
$ | 2,147,000 | |
| |
| | | |
| | |
Less: noncontrolling interest sold | |
| — | | |
| (212,000 | ) |
| |
| | | |
| | |
Gain on sale of discontinued operations | |
| (34,000 | ) | |
| 18,805,000 | |
| |
| | | |
| | |
Benefit from (provision for) income tax expense on gain on sale of discontinued ops | |
| (1,626,000 | ) | |
| (2,694,000 | ) |
Income from discontinued operations | |
$ | (1,660,000 | ) | |
$ | 16,255,000 | |
Item
2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
RESULTS
OF OPERATIONS
The Company
reported a net loss of approximately $328,000 ($.31 per share) for the three months ended September 30, 2014 and net income
of approximately $99,000 ($.09 per share) for the nine months ended September 30, 2014. For the three and nine months ended September
30, 2013, we reported net (loss) income of ($1,948,000) ($1.89 per share) and $15,296,000 ($15.23 per basic shares and $14.91
per diluted shares), respectively.
REVENUES
Rentals
and related revenues for the three and nine months ended September 30, 2014 and 2013 primarily consists of rent from the Advisor
to CII for its corporate office.
Net realized
and unrealized gain from investments in marketable securities:
Net realized
gain from investments in marketable securities for the three and nine months ended September 30, 2014 was approximately $290,000
and $336,000, respectively. Net realized loss from investments in marketable securities for the three and nine months ended
September 30, 2013 was approximately $15,000 and $7,000, respectively. Net unrealized (loss) gain from investments in marketable
securities for the three and nine months ended September 30, 2014 was approximately ($542,000) and $50,000, respectively. Net
unrealized gain from investments in marketable securities for the three and nine months ended September 30, 2013 was approximately
$36,000 and $61,000, respectively. For further details refer to Note 3 to Condensed Consolidated Financial Statements (unaudited).
Net income
from other investments:
Net income
from other investments for the three and nine months ended September 30, 2014 was approximately $30,000 and $115,000, respectively.
Net income from other investments for the three and nine months ended September 30, 2013 was approximately $87,000 and $230,000,
respectively. For further details refer to Note 5 to Condensed Consolidated Financial Statements (unaudited).
Interest,
dividend and other income:
Interest,
dividend and other income for the three and nine months ended September 30, 2014 was approximately $184,000 and $672,000, respectively.
Interest, dividend and other income for the three and nine months ended September 30, 2013 was approximately $67,000 and $164,000,
respectively. The increase in the three months ended September 30, 2014 as compared with the same period in 2013 was approximately
$117,000 (174%), and was primarily the result of increased interest and dividends from marketable securities. The increase in
the nine months ended September 30, 2014 as compared with the same period in 2013 was approximately $508,000 (310%) and was primarily
due to a gain from the dissolution of South Bayshore Associates (SBA). In 2014 SBA was dissolved and the note payable to the Company
of $905,000 was distributed 75% to the Company and 25% to Transco. Transco repaid its portion of the note (approximately $226,000)
in June 2014 and recognized this amount as other income.
EXPENSES
Adviser’s
base fee for the three and nine months ended September 30, 2014 as compared with the same periods in 2013 decreased by $90,000
(35%) and $270,000 (35%), respectively. As previously reported, on September 19, 2013, the shareholders approved the renewal and
amendment of the Advisory Agreement between the Company and the Adviser for a term commencing January 1, 2014 and expiring December
31, 2014. The sole amendment to the Advisory Agreement was the change in the remuneration of the Advisor to decrease the Advisor’s
current regular monthly compensation from $85,000 to $55,000, or $1,020,000 to $660,000 annually.
Professional
fees and expenses for the three and nine months ended September 30, 2014 as compared with the same periods in 2013 increased by
approximately $35,000 (72%) and $90,000 (66%), respectively, primarily due to increased legal fees and tax and accounting services.
General
and administrative expenses for the three and nine months ended September 30, 2014 as compared with the same periods in 2013 decreased
by approximately $25,000 (29%) and $80,000 (33%), respectively, primarily due to decreased costs associated with Courtland Houston,
Inc. a subsidiary that was dissolved on December 31, 2013.
EFFECT
OF INFLATION:
Inflation
affects the costs of holding the Company’s investments. Increased inflation would decrease the purchasing power of our mainly
liquid investments.
LIQUIDITY,
CAPITAL EXPENDITURE REQUIREMENTS AND CAPITAL RESOURCES
The Company’s
material commitments primarily consist of a note payable to the Company’s 49% owned affiliate, T.G.I.F. Texas, Inc. (“TGIF”)
of approximately $2.4 million due on demand, contributions committed to other investments of approximately $1.9 million due upon
demand and approximately $1.7 million remaining equity contributes in our interest in investment in real estate partnership, JY-TV.
JY-TV is in the process of obtaining a construction loan of approximately $27 million. The funds necessary to meet these obligations
are expected to come from the proceeds from the sales of investments, distributions from investments and available cash.
MATERIAL
COMPONENTS OF CASH FLOWS
For the
nine months ended September 30, 2014, net cash used in operating activities was approximately $4.3 million. This primarily consisted
of federal and state tax payments of approximately $1.6 million and $2.1 million in payments to the Adviser for 2013 incentive
fees.
For the
nine months ended September 30, 2014, net cash used in investing activities was approximately $6.7 million and consisted primarily
of approximately $12.3 million in purchases of marketable securities, $1.1 million of contributions to other investments, less
proceeds from sales of marketable securities of $6.2 million and distributions from other investments of approximately $512,000.
For the
nine months ended September 30, 2014, net cash used in financing activities was $103,000, consisting of a principal payment on
the loan due to affiliate.
Item
3. Quantitative and Qualitative Disclosures about Market Risk
Not applicable
Item
4. Controls and Procedures
| (a) | Evaluation
of Disclosure Controls and Procedures. |
Our Chief
Executive Officer and Chief Financial Officer, after evaluating the effectiveness of our disclosure controls and procedures (as
defined in the Securities Exchange Act Rules 13a-15(e) and 15d-15(e)) as of the end of the period covered by this Quarterly Report
on Form 10-Q has concluded that, based on such evaluation, our disclosure controls and procedures were effective and designed
to ensure that material information relating to us and our consolidated subsidiaries, which we are required to disclose in the
reports we file or submit under the Securities Exchange Act of 1934, was made known to him by others within those entities and
reported within the time periods specified in the SEC’s rules and forms.
| (b) | Changes
in Internal Control Over Financial Reporting. |
There were
no changes in the Company’s internal controls over financial reporting identified in connection with the evaluation of such
internal control over financial reporting that occurred during our last fiscal quarter which have materially affected, or reasonably
likely to materially affect, our internal control over financial reporting.
PART
II. OTHER INFORMATION
Item
1. Legal Proceedings
Grove Isle
Associates, LLLP was a co-defendant in two lawsuits in the circuit court in Miami Dade County Florida. These cases arose from
claims by a condominium association and resident seeking a declaratory judgment regarding certain provisions of the declaration
of condominium relating to the Grove Isle Club and the developer. The claim by the association had been dismissed as to all counts
related to the Company; however the association filed an appeal. In March 2014, the appellate court ruled on the appeal reversing
the lower court’s dismissal. Pursuant to an agreement dated February 25, 2013 in which the company sold its interests
in Grove Isle Associates, LLLP the company will continue to defend the lawsuit and will indemnify the purchaser for any related
judgment. The ultimate outcome of this litigation cannot presently be determined. However, in management’s opinion the likelihood
of a material adverse outcome is remote. Accordingly, adjustments, if any that might result from the resolution of this matter
have not been reflected in the consolidated financial statements.
Item
2. Unregistered Sales of Equity Securities and Use of Proceeds: None
Item
3. Defaults Upon Senior Securities: None.
Item
4. Mine Safety Disclosures: Not applicable
Item
5. Other Information: None
Item
6. Exhibits:
| (a) | Certifications
pursuant to 18 USC Section 1350-Sarbanes-Oxley Act of 2002. Filed herewith. |
| (b) | Amended
and Restated Operating Agreement of JY-TV Associates LLC. Filed herewith |
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
|
HMG/COURTLAND
PROPERTIES, INC. |
|
|
|
|
|
/s/
Maurice Wiener |
|
Dated: November
14, 2014 |
Maurice Wiener |
|
|
CEO and President |
|
|
|
|
|
/s/
Carlos Camarotti |
|
Dated: November
14, 2014 |
Carlos Camarotti |
|
|
CFO and Vice President |
|
|
Principal Accounting Officer |
|
Exhibit
10(z)
AMENDED
AND RESTATED OPERATING AGREEMENT
OF
JY-TV
ASSOCIATES, LLC
a
Florida limited liability company
AMENDED
AND RESTATED OPERATING AGREEMENT
OF
JY-TV
ASSOCIATES, LLC
a
Florida limited liability company
THIS
AMENDED AND RESTATED OPERATING AGREEMENT (this “Agreement”) of JY-TV ASSOCIATES, LLC, a Florida limited liability
company (the “Company”), is made and entered into as of the 12th day of September, 2014, by and among JIK Taft Vineland
LLC, a Delaware limited liability company (“Kislak”), Courtelis Promenade Associates, LLC, a Florida limited liability
company (“Courtelis”), HMG Orlando, LLC, a Delaware limited liability company (“HMG/Orlando”), and those
additional parties that shall be admitted as Members in accordance with the terms of this Agreement (each a “Member”,
and collectively, the “Members”).
RECITALS
A. The
Company was formed pursuant to and in accordance with the provisions of the Act, by and pursuant to the Articles of Organization
of the Company filed with the Department of State of the State of Florida on April 14, 2014.
B. The
Company is formed for the sole purpose of purchasing and constructing up to two hundred fifty (250) unit rental apartments on
a 9.53 acre (more or less) site, located in the southeast quadrant of the intersection of John Young Parkway and Taft-Vineland
Road in Orlando, Orange County, Florida, and being legally described on Exhibit “A,” attached hereto and by this reference
made a part hereof (the “Property”).
C. Kislak
and Courtelis as the initial members of the Company entered into that certain Operating Agreement of the Company dated as of April
14, 2014 (the “Initial Operating Agreement”) setting forth the terms and conditions of the business and affairs of
the Company and the rights and obligations of its members.
D. HMG/Orlando
wishes to acquire certain Membership Interests in the Company and be admitted as a member of the Company upon the terms and conditions
set forth herein.
E. Consequent
upon the admission of HMG/Orlando as a Member of the Company, the Members desire to enter into this Agreement for the purposes
of (i) stating the rights and obligations of the Members and the Company, (ii) setting forth the terms and conditions of the business
and affairs of the Company and (iii) amending and restating in its entirety, the Initial Operating Agreement, effective as of
the Effective Date.
NOW,
THEREFORE, the Members, intending to be legally bound, hereby agree that the operating agreement of the Company shall be as
follows:
ARTICLE
I
Formation
Section
1.1 Organization. The Company
has been organized as a Florida limited liability company pursuant to the Act.
Section
1.2 Agreement, Effect of Inconsistencies
with Act. The Members agree to the terms and conditions of this Agreement, as it may from time to time be amended, supplemented
or restated according to its terms. The Members intend that this Agreement shall be the sole source of the relationship among
the parties with respect to the matters set forth herein related to the Property, and except to the extent a provision of this
Agreement expressly incorporates federal income tax rules by reference to sections of the Code or Regulations or is expressly
prohibited or ineffective under the Act, this Agreement shall govern, even when inconsistent with, or different than, the provisions
of the Act or any other law. To the extent any provision of this Agreement is prohibited or ineffective under the Act, this Agreement
shall be considered amended to the smallest degree possible in order to make such provision effective under the Act. If the Act
is subsequently amended or interpreted in such a way as to validate a provision of this Agreement that was formerly invalid, such
provision shall be considered to be valid from the effective date of such interpretation or amendment. Each Member and the Manager
shall be entitled to rely on the provisions of this Agreement, and no Member or the Manager shall be liable to the Company or
to any other Member for any action or refusal to act taken in good faith reliance on this Agreement.
Section
1.3 Name. The name of the Company
is JY-TV ASSOCIATES, LLC, and such name shall be used at all times in connection with the conduct of the Company’s business
and all assets of the Company shall be held under such name.
Section
1.4 Effective Date. This Agreement
shall become effective upon the date of execution of this Agreement by the last of the Members to sign it (the “Effective
Date”).
Section
1.5 Term. The Company shall have
perpetual existence until it is dissolved and its affairs wound up in accordance with this Agreement and the Act.
Section
1.6 Registered Agent and Office.
The Company’s registered agent for service of process and registered office in the State of Florida shall be W. Douglas
Pitts, 703 Waterford Way, Suite 800, Miami Florida 33126-4677. The Manager may change the Company’s registered agent for
service of process and registered office in the State of Florida from time to time.
Section
1.7 Principal Place of Business.
The Company’s principal place of business shall be located at 703 Waterford Way, Suite 800, Miami Florida 33126-4677. The
Manager may change the location of the Company’s principal place of business from time to time so long as same remains in
the State of Florida. The Manager shall make any filing and take any other action required by applicable law in connection with
the change and shall give notice to all other Members of the new location of the Company’s principal place of business promptly
after the change becomes effective. The Manager may establish and maintain additional places of business for the Company.
Section
1.8 Foreign Qualifications. The
Company shall qualify to do business as a foreign limited liability company in each jurisdiction in which the nature of its business
requires such qualification.
ARTICLE
II
Definitions
Section
2.1 General Interpretive Principles.
For purposes of this Agreement (including exhibits, schedules and amendments), except as otherwise expressly provided or unless
the context otherwise requires (i) the terms defined in this Article have the meanings assigned to them in this Article; (ii)
the masculine, feminine or neuter gender and the singular or plural number shall be deemed to include the others; (iii) references
to Articles, Sections, Subsections, Subparagraphs, Recitals and Preamble refer to the articles, sections, subsections, subparagraphs,
articles, recitals and preamble, respectively, of this Agreement; (iv) words such as “herein,” “hereinafter,”
“hereof,” “hereby” and “hereunder,” and the words of like import refer to this Agreement;
(v) the word “include,” “includes” and “including” shall be deemed to be followed by the phrase
“without limitation”; (vi) the headings in this Agreement are for convenience only and are not intended to describe,
interpret, define or limit the scope, extent or intent of any of the provisions of this Agreement; (vii) the term “dollars”
or “$” means United States Dollars; (viii) the term “days” means calendar days and “year”
means a calendar year; and (ix) if the last day of any period of time specified in this Agreement falls on a weekend or legal
holiday, such period of time shall be extended through the end of the next Business Day. The parties agree that they have been
represented by counsel during, and each has been active in, the negotiation, preparation and execution of this Agreement and,
therefore, waive the application of any law or rule of construction providing that ambiguities in an agreement or other document
will be construed against the party drafting such agreement or document.
Section
2.2 Defined
Terms. As used in this Agreement, the following terms shall have the following respective meanings (unless otherwise expressly
provided):
Act:
Chapter 605, Florida Statutes, entitled “Florida Revised Limited Liability Company Act,” in its present form or as
amended from time to time.
Additional
Capital Contributions: The additional Capital Contributions described in Section 4.3.
Adjusted
Basis: The basis for determining gain or loss for federal income tax purposes from the sale or other disposition of property,
as defined in Section 1011 of the Code.
Affiliate
and Affiliated: When used with reference to any Person (i) any Person that, directly or indirectly, through one or
more intermediaries controls, is controlled by, or is under common control with, the specified Person (the term “control”
for this purpose, shall mean the ability, whether by the ownership of shares or other equity interest, by contract or otherwise,
to elect a majority of the directors of a corporation, independently to select the managing partner of a partnership or a manager
of a limited liability company, or otherwise to have the power independently to remove and then select a majority of those Persons
exercising governing authority over an entity, and control shall be conclusively presumed in the case of the direct or indirect
ownership of fifty percent (50%) or more of the equity interests); and (ii) a parent, sibling or issue of such Person.
Affiliate
Transaction: As defined in Section 6.2(x).
Agreement:
As defined in the Preamble.
Approved
Budget: As defined in Section 6.7(b).
Approved
Business Plan: As defined in Section 6.7(a).
Assignee:
Any Person to whom a Membership Interest (or any portion thereof) is Transferred.
Bad
Act: Any action or omission by a Member or a Manager that constitutes (i) (A) fraud, gross negligence, willful or intentional
misconduct, an intentional material violation of law, or (B) an intentional material misrepresentation; (ii) an intentional breach
by a Member of any of such Member’s material representations or warranties or such Member’s material obligations or
material covenants under this Agreement; or (iii) an intentional breach by any Affiliate of a Member of any of its material representations
or warranties or material obligations or material covenants under or with respect to an Affiliate Transaction and/or any agreements
entered into in connection therewith; provided, however, that such action or omission results in a material adverse effect on
the Company, any Subsidiary of the Company, any Member or any material asset of the Company. In the event of a dispute as to the
occurrence of a Bad Act, the determination of any Bad Act shall be submitted to the arbitration procedure set forth in Section
6.18(a).
Business
Day: Any day other than Saturday or Sunday on which banks are open for business in Miami-Dade County, Florida.
Business
Plan: As defined in Section 6.7(a).
Buy
Notice: As defined in Section 10.1(b).
Buying
Members: As defined in Section 10.1(b).
Buy-Sell
Notice: As defined in Section 11.1(a).
Capital
Account: The capital account of a Member maintained in accordance with Section 4.4.
Capital
Contribution: Any property (including cash) from time to time contributed by a Member to the Company, including such Member’s
Initial Capital Contribution and Additional Capital Contributions.
Capital
Proceeds: The cash proceeds received by the Company from a Capital Transaction (excluding the proceeds of rental or business
interruption insurance) which are not used to pay for the costs and expenses incurred in connection with the Capital Transaction,
including, in the case of casualty or condemnation, the costs and expenses of collecting the insurance proceeds or the condemnation
award, as the case may be. Capital Proceeds shall include all payments of principal of, and interest on, any promissory note or
other obligation received by the Company in connection with a Capital Transaction and shall be increased by any reduction of reserves
previously established out of Capital Proceeds.
Capital
Transaction: A transaction in which the Company (directly or indirectly through a Subsidiary) (i) borrows money; (ii) sells,
exchanges or otherwise disposes of any part of its property, including a sale or other disposition pursuant to a condemnation;
or (iii) receives the proceeds of property damage insurance, or any other transaction that, in accordance with generally accepted
accounting principles, is considered capital in nature.
Closing
Date: As defined in Section 11.1(c).
Code:
The Internal Revenue Code of 1986, as in effect and hereafter amended.
Company:
As defined in the Preamble.
Computation
Date: As defined in Section 4.3(ii)(c)(i).
Contributing
Member: As defined in Section 4.3(ii)(b).
Contribution
Loan: As defined in Section 4.3(ii)(b).
Courtelis:
As defined in the Preamble.
Depreciation:
For each Fiscal Year, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect
to an asset for federal income tax purposes, except that if the Gross Asset Value of the asset differs from its adjusted tax basis,
Depreciation shall be determined with reference to such Gross Asset Value using any reasonable method selected by the Manager.
Distribution:
A transfer of property by the Company to a Member or an Assignee on account of a Membership Interest pursuant to Section 5.1.
Economic
Rights: An Assignee’s rights to receive allocations of Profits and Losses and Distributions.
Effective
Date: As defined in Section 1.4.
electronic
transmission: As defined in Section 17.2.
Fiscal
Year: The fiscal year of the Company, which shall be the calendar year.
Grantor:
As defined in Section 4.3(ii)(d).
Gross
Asset Value: With respect to any asset, the asset’s adjusted basis for federal income tax purposes, except that (i)
the Gross Asset Value of any asset contributed to the Company shall be its gross fair market value at the time such asset is contributed
or deemed contributed for purposes of computing Capital Accounts, (ii) upon a contribution of money or other property to the Company
by a new or existing Member as consideration for a Membership Interest in the Company, upon a distribution of money or other property
to a retiring or continuing Member as consideration for a Membership Interest in the Company and upon the liquidation of the Company
within the meaning of Regulation Section 1.704-1(b)(2)(ii)(g), the Gross Asset Value of all of the assets of the Company shall
be adjusted to equal their respective gross fair market values, (iii) the Gross Asset Value of any asset distributed in kind to
any Member shall be adjusted immediately prior to such distribution to equal its gross fair market value of such asset on the
date of such distribution, (iv) the Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments
to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such
adjustments are taken into account in determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations,
and (v) the Gross Asset Value of any asset determined pursuant to clause (i), (ii) or (iv) above shall thereafter be adjusted
from time to time by the Depreciation taken into account with respect to such asset for purposes of determining Profit or Loss.
Guarantor:
any Person who provides a Loan Guarantee.
HMG/Orlando:
As defined in the Preamble.
Initial
Capital Contribution: As defined in Section 4.2.
Initial
Operating Agreement: As defined in Recital C.
JAMS:
As defined in Section 16.1.
Kislak:
As defined in the Preamble.
Loan
Guarantee: Any guarantee, surety, indemnity, letter of credit or other assurance to any third party of the payment or performance
of any obligations of the Company or any Subsidiary of the Company (to cover non-recourse carveouts or otherwise), provided by
a Member or an Affiliate of a Member, subject to the prior written approval of all Members.
Loss:
As defined in Section 5.2.
Major
Decisions: As defined in Section 6.2.
Management
Rights: The rights, if any, of a Member to participate in the management of the Company, including the rights to receive information,
to inspect and audit the books and records and to vote on, consent to or approve actions of the Company.
Manager:
The manager of the Company appointed pursuant to the provisions of Section 6.1(c), and any replacement manager of the Company
designated or appointed in accordance with Section 6.1(c). The initial Manager shall be Courtelis.
Mediation
Request: As defined in Section 16.1.
Member
Nonrecourse Debt: As defined in Regulations Section 1.704-2(b)(4) for “partner nonrecourse debt.”
Member
Nonrecourse Deductions: As defined in Regulations Section 1.704-2(i)(2) for “partner nonrecourse deductions.”
Member
and Members: As defined in the Preamble and which is more particularly set forth on Exhibit “B,” and any
Person(s) who or which, at the time of reference thereto, have been admitted to the Company as Members of the Company, including
a substituted Member.
Membership
Interest: With respect to a Member, the Member’s entire ownership interest in the Company, including the Member’s
(i) rights to receive allocations of Profits and Losses and Distributions; and (ii) Management Rights.
Net
Cash Flow: For any specified period, an amount equal to the sum of (i) all cash revenues received by the Company during the
period from any source (including proceeds of rental or business interruption insurance and Capital Proceeds), but excluding funds
received as Terminating Capital Proceeds; and (ii) amounts set aside by the Manager as reserves during earlier periods where,
and to the extent, the Manager determines during the period that such reserves are no longer reasonably necessary for the efficient
conduct of the Company’s business, reduced by the sum of (w) cash expenditures by the Company during the period for taxes,
salaries, management fees and other costs and expenses in connection with the normal conduct of the Company’s business,
(x) all payments by the Company during the period of principal and interest on loans and other obligations of the Company for
borrowed money, (y) all cash expenditures by the Company during the period for the acquisition of property, for construction period
interest and taxes and for loan fees, whether or not capitalized, and for capital improvements and/or replacements, and (z) such
reserves for maintenance, repairs, replacements, capital improvements, contingent or unforeseen liabilities or obligations and
to meet anticipated expenses as the Manager determines during the period are reasonably necessary for the efficient conduct of
the Company’s business.
Non-Contributing
Member: As defined in Section 4.3(ii)(b).
Non-Participating
Member: As defined in Section 11.1(e).
Nonrecourse
Deductions: As defined in Regulations Section 1.704-2(b)(1).
Offer:
As defined in Section 10.1(a).
Offer
to Sell ½ Notice: As defined in Section 11.1(e).
Offeree:
As defined in Section 11.1(a).
Offeree
Notice: As defined in Section 11.1(b).
Offeror:
As defined in Section 11.1(a).
Percentage
Interest: As of the date of calculation, as to any Member, the quotient, expressed as a percentage, obtained by dividing the
sum of all Capital Contributions made by such Member by the sum of all Capital Contributions made by all Members; provided, however,
that the computation of each Member’s Percentage Interest as of the date of calculation shall be subject to adjustment in
accordance with Section 4.3 if effective on or prior to the date of calculation one or more Non-Contributing Member’s Percentage
Interest is diluted pursuant to such Section 4.3. The sum of all Percentage Interests shall at all times equal one hundred percent
(100%). The Percentage Interest of each Member shall be set forth on Exhibit “B” attached hereto. The Manager shall
amend Exhibit “B” from time to time to reflect any changes to the Percentage Interests of the Members in accordance
with this Agreement.
Person:
An individual, corporation, trust, association, unincorporated association, estate, partnership, joint venture, limited liability
company or other legal entity, including a governmental entity.
Prime
Rate: The prime rate of U.S. money center commercial banks as published in The Wall Street Journal.
Profit:
As defined in Section 5.2.
Project:
As defined in the definition of “Property.”
Property:
As defined in Recital B and legally described on Exhibit “A” which will contain up to two hundred fifty (250) multi-family
rental apartments (sometimes referred to as the “Project”).
Property
Agreements: To the extent applicable, any Property management agreements, purchase agreements, master broker agreements, construction
agreements with the general contractor for the Property, architect’s agreements or other material agreements relating to
the development, construction, acquisition, ownership, operation, management, sale, lease or other disposition of the Property,
including the Development Agreement described in Section 6.14 and the Leasing and Management Agreement described in Section 6.15.
Purchase
Agreement: As defined in Section 11.1(a)(iv).
Purchaser:
As defined in Section 11.1(c).
Regulations:
The permanent and temporary regulations, and all amendments, modifications and supplements thereof, from time to time promulgated
by the Department of the Treasury under the Code.
Regulatory
Allocations: As defined in Section 5.9.
Required
Courtelis Personnel: As defined in Section 6.1(c).
Required
Kislak Personnel: As defined in Section 6.1(c).
Remaining
Members: As defined in Section 10.1(a).
Removed
Manager: As defined in Section 6.18(b).
Sale
Notice: As defined in Section 10.1(a).
Secured
Obligations: As defined in Section 4.3(ii)(d).
Seller:
As defined in Section 11.1(d)(i).
Selling
Member: As defined in Section 10.1(a).
Shortfall
Contribution: As defined in Section 4.3(ii)(b).
Specified
Valuation Amount: As defined in Section 11.1(a)(ii).
Subsidiary:
With respect to any Person, a corporation, partnership, limited liability company or other entity of which fifty percent (50%)
or more of the voting power of the equity securities or equity interests is owned, directly or indirectly, by such Person or which
otherwise is directly or indirectly controlled by (for purposes of this definition, meaning the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise) such Person.
Tax
Matters Partner: As defined in Section 5.10.
Terminating
Capital Proceeds: Capital Proceeds received by the Company from a Terminating Capital Transaction.
Terminating
Capital Transaction: A Capital Transaction directly or indirectly involving the sale, exchange or other disposition of all
or substantially all of the property of the Company.
Transfer
and Transferred: A direct or indirect sale, assignment, transfer or other disposition (voluntarily or by operation
of law) of, or the granting or creating of a lien, encumbrance or security interest in, a Membership Interest.
Unreturned
Capital: With respect to each Member, as of any date, an amount (but not less than zero) equal to (i) the aggregate amount
of the Member’s Capital Contributions pursuant to Article IV made before such date, reduced by (ii) the aggregate amount
of Net Cash Flow and Terminating Capital Proceeds distributed to the Member before such date pursuant to Section 5.1(a) and Section
5.1(b); provided, however, Unreturned Capital shall not include distributions made to a Member in repayment of a debt or obligation
owed to a Member or payments made to a Member pursuant to a Property Agreement that has been approved by the Members.
ARTICLE
III
Business,
Purposes and Powers
Section
3.1 Business and Purposes. The
limited business and purposes of the Company are (a) to develop, construct, acquire, own, operate, manage, lease, sell, finance
and encumber the Property; and (b) to engage in such other activities as are reasonably incidental to the foregoing with respect
to the Property. The Company shall not engage in any business or activity unrelated to the Project.
Section
3.2 Powers. The Company shall
have all powers of a limited liability company under the Act and the power to do all things necessary or convenient to operate
its business and accomplish its purposes as described in Section 3.1.
Section
3.3 Scope of Member’s Authority.
Except as otherwise expressly and specifically provided in this Agreement, no Member shall have any authority to bind or act for,
or assume any obligations or responsibility on behalf of the other Members or the Company. Neither the Company nor any Member
shall by virtue of executing this Agreement be responsible or liable for any indebtedness or obligation of any other Member and
no Member shall by virtue of executing this Agreement be responsible or liable for any indebtedness or obligation otherwise relating
to the Company or the Property incurred or arising either before or after the execution of this Agreement, except as to those
joint responsibilities, liabilities, indebtedness or obligations expressly assumed, in the case of the Company, by the Company
or, in the case of the Members, with respect to the Company, as of the date hereof or incurred after the date hereof pursuant
to and as limited by the terms of this Agreement. Nothing herein contained shall be considered to constitute any Member as the
agent of any other Member, except as specifically authorized and provided for herein. Except for the authority expressly granted
to the Manager in this Agreement, no Member, employee or other agent of the Company shall have any authority to bind or act for
the Company or any other Member in the carrying on of their respective businesses or activities.
ARTICLE
IV
Members:
Capital Contributions and Financing
Section
4.1 Identity of Members and
Percentage Interests.
(a) Members.
The names and addresses of the Members shall be set forth on Exhibit “B.” Upon the death, dissolution or other event
of withdrawal of an existing Member, or the substitution or admission of a new Member in accordance with this Agreement, the Manager
shall amend Exhibit “B” to reflect such withdrawal, substitution or admission.
(b) Percentage
Interests. The Percentage Interests of the Members shall be as set forth on Exhibit “B,” as amended by the Manager
from time to time in accordance with this Agreement.
Section
4.2 Capital Contributions. The
Members shall have contributed to the capital of the Company the amounts set forth on Exhibit “B” as their initial
Capital Contribution (the “Initial Capital Contribution”). The Manager shall amend Exhibit “B” from time
to time to reflect the Initial Capital Contribution of any new Member admitted (as a Major Decision) in accordance with this Agreement
and the Additional Capital Contributions of the Members made in accordance with this Agreement.
Section
4.3 Additional Capital Contributions.
It is the intent of the Members that:
(i) the
Company, subject to the other provisions of this Agreement regarding Major Decisions and the admission of additional Members,
may attempt to pre-sell the Property with all entitlements in place, and the Members will use their best efforts to obtain same,
and the Members acknowledge that they may have to fund the costs and expenses for the Company to obtain the required entitlements
and to purchase the Property; and
(ii) subject
to the other provisions of this Agreement regarding Major Decisions, the Company will maximize, to the extent reasonably feasible,
the amount of a loan to obtain the funds required for the purchasing, leasing and development of the Property that the Company
shall borrow from one or more institutional lenders such as commercial banks, insurance companies, pension funds, mortgage conduits
and the like, with such loan being secured by a mortgage encumbering the Company’s interest in the Property, and/or mezzanine
financing, and being on commercially reasonable terms approved by the Members as a Major Decision. The Company shall use its best
efforts to borrow funds from a lender who will, subject to the approval of the Members as a Major Decision, accept either a pro
rata individual or corporate guarantee or other collateral (e.g., letter of credit) in lieu of a joint and several guarantee from
the principals or a related or Affiliated entity of the Members. If the Company is unable to borrow such funds or such funds are
not sufficient to develop the Project, then, upon the approval of the Members as a Major Decision, the Members shall make a pro
rata (in accordance with their respective Percentage Interests) Additional Capital Contribution, which shall be contributed to
the Company to cover such shortfall. If the Additional Capital Contributions are approved, each Member shall respond to the request
for Additional Capital Contributions within fifteen (15) Business Days of such request being made by the Manager. Additional Capital
Contributions shall be made in accordance with the following procedure:
(a) Each
Member shall contribute to the capital of the Company, in cash, its pro rata share, in proportion to each Member’s Percentage
Interest, of the Additional Capital Contributions requested.
(b) If
a Member fails to make any required Additional Capital Contribution (the “Non-Contributing Member”), the other Member(s)
(the “Contributing Member”) shall have the right to make such Non-Contributing Member’s share of the Additional
Capital Contribution to the Company which the Non-Contributing Member failed to make (the “Shortfall Contribution”),
in which case the amount of the Shortfall Contribution shall be deemed to have been contributed to the Company by the Non-Contributing
Member and the amount of the Shortfall Contribution shall be treated as a loan by the Contributing Member(s) to the Non-Contributing
Member. In the case where there is more than one Contributing Member, each Contributing Member shall be entitled to make a prorata
share of the Shortfall Contribution based on the proportion that each Contributing Member’s Percentage Interest bears to
the aggregate Percentage Interests of all Contributing Members (i.e., excluding the Percentage Interest of the Non-Contributing
Member). The terms and conditions of such loan (the “Contribution Loan”) shall be as follows:
(i) simple
interest shall accrue at a per annum rate equal to the Prime Rate plus four percent (4%);
(ii) interest
shall be paid monthly in arrears on the first day of each month on the unpaid principal balance of such loan;
(iii) the
Contributing Member shall have the right to accelerate the maturity of such loan if the interest is not paid within five (5) days
after the due date;
(iv) the
principal of, and interest on, such loan shall be due and payable one hundred twenty (120) days after the making of such loan
unless such loan is accelerated pursuant to Subsection (iii) or extended by the Contributing Member, in its sole discretion, before
maturity;
(v) the
Non-Contributing Member shall pay all reasonable costs and expenses, including reasonable attorney’s fees, incurred by the
Contributing Member in collecting the principal of, and interest on, such loan; and
(vi) until
the principal of, and interest on, such loan has been repaid in full, any distributions of Net Cash Flow or Terminating Capital
Proceeds which would otherwise have been made to the Non-Contributing Member shall be made to the Contributing Member as repayment
of such loan.
(c) In
the event (and only in the event that) any Contribution Loan has not been repaid in full within one hundred twenty (120) days
of the date the Contribution Loan is made unless such loan has been either accelerated or extended, then at any time after the
accelerated or extended maturity date, the Contributing Member may elect, in its sole and absolute discretion, to proceed under
Subparagraph (i) or (ii) below.
(i) Upon
thirty (30) days’ prior written notice to the Non-Contributing Member, each Contributing Member may elect to treat the outstanding
principal balance of the Contribution Loan as an Additional Capital Contribution by the Contributing Member, and the Percentage
Interest of each Member shall thereupon be recalculated as of the effective date of such Additional Capital Contribution (i.e.,
the 30th day after such written notice is delivered to the Non-Contributing Member) (the “Computation Date”) to account
for such Additional Capital Contribution and the Percentage Interests shall thereupon be further adjusted as set forth below.
Upon converting the outstanding principal balance of the Contribution Loan into an Additional Capital Contribution in accordance
with the immediately preceding sentence, the amount of the Shortfall Contribution deemed to have been contributed to the Company
by the Non-Contributing Member shall be deemed eliminated. Additionally, the Percentage Interest of the Non-Contributing Member
will then be reduced as of the Computation Date (but not to a Percentage Interest below one percent (1%)) by a percentage equal
to the product of the Non-Contributing Member’s Percentage Interest as adjusted in accordance with the first sentence of
this Subparagraph multiplied by ten percent (10%), with the resulting product expressed as a percentage added to the Contributing
Member’s Percentage Interest as adjusted in accordance with the first sentence of this Subparagraph as of the Computation
Date (but such Contributing Member’s Percentage Interest as further adjusted in accordance with this sentence shall not
exceed ninety-nine percent (99%)). For example, if each of three Members initially contributed One Hundred Thousand Dollars ($100,000.00)
in capital and there is an additional capital call of One Hundred Thousand Dollars ($100,000.00) from each Member, with two Contributing
Members proportionately making the One Hundred Thousand Dollar ($100,000.00) Additional Capital Contribution for a Non-Contributing
Member, and the entire principal amount of the resulting two Contribution Loans is converted into Additional Capital Contributions
by the Contributing Members, then, after the Additional Capital Contributions, the Non-Contributing Member’s Percentage
Interest would be sixteen and two-thirds percent (16⅔%) (i.e., $100,000.00/$600,000.00) before the ten percent (10%) reduction
and fifteen percent (15%) [16⅔% – (16⅔% x 10%)] after the ten percent (10%) reduction, with each of the Contributing
Member’s Percentage Interest being forty-two and one-half percent (42½%) (41⅔% + 5/6%) after the ten percent
(10%) reduction. Accrued and unpaid interest on any Contribution Loan which is converted into an Additional Capital Contribution
as provided above shall not be converted into an Additional Capital Contribution and shall remain outstanding and payable as provided
in Sections 4.3(b) and 4.3(c) above; provided, however, that, if such accrued interest is not paid in full upon demand, the Member
making such demand may at any time thereafter exercise its rights only under Subparagraph (ii) below with respect to the then
outstanding amount of such accrued interest.
(ii) The
Contributing Member may elect to make written demand upon the Non-Contributing Member for payment in full of such Contributing
Member’s Contribution Loan, including accrued and unpaid interest attributable to such Contributing Member’s Contribution
Loan, and upon failure of the Non-Contributing Member to pay the Contribution Loan and accrued and unpaid interest thereon in
full within ten (10) days of such demand, to treat such failure to pay as an event of default under the Contribution Loan, in
which case the Contributing Member shall have all available remedies at law or in equity (including the right to foreclose under
the security interest granted pursuant to Section 4.3(ii)(d)).
(iii) Until
a Contributing Member has elected to proceed under Subparagraph (i) or (ii) above, such Contributing Member’s Contribution
Loan shall remain outstanding and shall bear interest and be repaid as provided in Section 4.3(b) above. The rights of a Contributing
Member under Subparagraph (i) or (ii) above shall be mutually exclusive and a Contributing Member electing to proceed under Subparagraph
(i) or (ii) above shall waive its right to proceed under the subparagraph not so elected as to any particular Contribution Loan.
(d) Each
Member (the “Grantor”) hereby grants to the other Members a security interest (within the meaning of the Uniform Commercial
Code in effect in the jurisdiction in which the Company is located) in the Grantor’s entire Membership Interest as security
for the Grantor’s obligations to pay the principal of, interest on, and other amounts payable in connection with, any and
all Contribution Loans to such Member (collectively, the “Secured Obligations”). If a Member defaults in paying the
Secured Obligations, the Contributing Member who makes a Contribution Loan to the Non-Contributing Member pursuant to this Section
4.3 shall have the right to exercise all of the rights and remedies of secured parties under the Uniform Commercial Code in effect
in the jurisdiction in which is located the Non-Contributing Member’s chief place of business, with respect to the Non-Contributing
Member’s Membership Interest. Within five (5) days after a request by any Member, the Members shall sign and deliver to
each other financing statements and continuation statements as the other Member may reasonably request for the purpose of perfecting
its security interest. This Agreement is intended to constitute a security agreement within the meaning of the Uniform Commercial
Code. Upon the conclusion of the sale of the Non-Contributing Member’s Membership Interest pursuant to Article 9 of the
Uniform Commercial Code, the purchaser at the sale shall be an Assignee, but shall not become a Member with respect to the Non-Contributing
Member’s Membership Interest unless admitted as such pursuant to Article IX of this Agreement.
Section
4.4 Capital Accounts.
Each
Member’s Capital Account shall be maintained in accordance with the following provisions:
(a) Each
Member’s Capital Account shall be credited with the amounts of such Member’s Capital Contributions, such Member’s
share of Profits and any items in the nature of income or gain which are specially allocated to the Member pursuant to Article
V;
(b) Each
Member’s Capital Account shall be charged with the amounts of cash distributed by the Company to such Member pursuant to
any provision of this Agreement (for the avoidance of doubt, any distributions pursuant to Section 4.3(ii)(b)(vi) shall be allocable
to the Capital Account of the Non-Contributing Member), such Member’s share of Losses and any items in the nature of expenses
or losses which are specially allocated to the Member pursuant to Article V; and
(c) If
all or a portion of a Member’s Membership Interest is Transferred in accordance with the terms of this Agreement, the transferee
shall succeed to the Capital Account of the transferor to the extent it relates to the Transferred Membership Interest.
This
Section 4.4 and other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Regulations.
Section
4.5 Loans to the Company. In the
event that the Capital Contributions and other receipts are insufficient to meet the costs, expenses, obligations, liabilities
and charges of the Company, or to make any expenditure authorized by this Agreement, and additional funds are not available from
third parties on terms acceptable to the Manager, the Members may (but shall not be obligated to) advance such funds to the Company.
All amounts advanced by the Members shall take the form of a demand loan and shall bear simple interest at a rate equal to four
percent (4%) in excess of the Prime Rate.
Section
4.6 Return of Capital Contributions.
Except as otherwise provided in this Agreement, no Member or Assignee shall be entitled to demand the return of the Member’s
Capital Account or Capital Contribution at any particular time, except upon dissolution of the Company. Except as otherwise provided
in this Agreement, no Member or Assignee shall be entitled at any time to demand or receive property other than cash. Unless otherwise
provided by law, no Member or Assignee shall be personally liable for the return or repayment of all or any part of any other
Member’s Capital Account or Capital Contribution, it being expressly agreed that any such return of capital pursuant to
this Agreement shall be made solely from the assets (which shall not include any right of contribution from a Member or Assignee)
of the Company.
Section
4.7 No Third Party Beneficiary Rights.
The provisions of this Article IV are not intended to be for the benefit of any creditor or any other Person (other than a Member
in his or her capacity as such) to whom any debts, liabilities or obligations are owed by (or who otherwise has any claim against)
the Company or any of the Members; and no such creditor or other Person shall obtain any right under any of such provisions or
shall by reason of any of such provisions make any claim in respect of any debt, liability or obligation (or otherwise) against
the Company or any of the Members.
ARTICLE
V
Allocations
and Distributions
Section
5.1 Distributions. The Manager
shall determine on a quarterly basis, but no less than annually, the amount of Net Cash Flow and Terminating Capital Proceeds,
from time to time, available for distribution and, upon approval of the Members, shall distribute amounts as follows:
(a) Net
Cash Flow. Net Cash Flow shall be applied and distributed among the Members in accordance with the following order of priority:
(1) first,
to pay any debts or liabilities of the Company to Members;
| (2) | second,
to each Member, pro rata, in proportion to the Members’ respective total Unreturned
Capital until said Unreturned Capital is reduced to zero; and |
| (3) | thereafter,
among the Members pro-rata, in proportion to their respective Percentage Interests. |
(b) Terminating
Capital Proceeds. After the payment of all costs and expenses associated with a Terminating Capital Transaction, Terminating
Capital Proceeds shall be applied and paid in accordance with the following priority:
(1) first,
to pay any debts or liabilities of the Company other than debts and liabilities owed to Members, and then to pay the costs and
expenses of winding up and terminating the Company, if applicable; and
(2) the
Terminating Capital Proceeds shall next be applied to establish any reserves reasonably necessary to provide for the costs and
expenses of winding up and terminating the Company and for any contingent or unforeseen liabilities or obligations of the Company;
but at the expiration of such period of time as the Manager determines to be advisable, the balance of the reserves remaining
after the payment of such contingencies shall be distributed in the manner hereinafter provided in this Section 5.1(b).
Thereafter,
Terminating Capital Proceeds shall be applied and distributed among the Members in the following order of priority:
| (1) | first,
to pay any debts or liabilities of the Company to Members; |
| (2) | second,
to each Member, pro rata, in proportion to the Members’ respective total Unreturned
Capital until said Unreturned Capital is reduced to zero; and |
| (3) | thereafter,
among the Members, pro rata, in proportion to their respective Percentage Interests. |
Section
5.2 Determination of Profits and Losses.
For purposes of this Agreement, the profit (“Profit”) or loss (“Loss”) of the Company for each Fiscal
Year shall be the net income or net loss of the Company for such Fiscal Year as determined for federal income tax purposes, but
computed with the following adjustments:
(a) Any
income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses
pursuant to this definition of “Profits” and “Losses” shall be added to such taxable income or loss;
(b) Any
expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant
to Regulation Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses pursuant to this
definition of “Profits” and “Losses” shall be subtracted from such taxable income or loss;
(c) In
the event the Gross Asset Value of any Company asset is adjusted pursuant to clause (ii) or (iii) of the definition of “Gross
Asset Value,” the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset
for purposes of computing Profits or Losses;
(d) Gain
or loss resulting from any disposition of property with respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis
of such property differs from its Gross Asset Value;
(e) In lieu of the depreciation, amortization,
and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account
Depreciation for such Fiscal Year, computed in accordance with the definition of “Depreciation”;
(f) To
the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) or Code Section 743(b)
is required pursuant to Regulation Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as
a result of a distribution other than in complete liquidation of a Member’s Membership Interest, the amount of such adjustment
shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases
the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Profits or
Losses; and
(g) Notwithstanding
any other provision of this Section, any items which are specially allocated pursuant to Section 5.8 shall not be taken into account
in computing Profits or Losses.
The
amounts of the items of income, gain, loss or deduction of the Company to be specially allocated pursuant to Section 5.8 shall
be determined by applying rules analogous to those set forth in Subsections (a) through (g) above.
Section
5.3 Allocation of Profits. The
Profits of the Company for each Fiscal Year (or portion thereof) shall be allocated in the following order of priority:
(a) first,
to the Members in an amount equal to and in proportion to the net cumulative Losses (aggregate Losses in excess of aggregate Profits)
allocated to the Members since the Effective Date; and
(b) thereafter,
to the Members pro rata in accordance with their respective Percentage Interests.
Section
5.4 Allocation of Losses. The
Loss of the Company for each Fiscal Year (or portion thereof) shall be allocated in the following order of priority:
(a) first,
to the Members in an amount equal to and in proportion to the net cumulative Profits (aggregate Profits in excess of aggregate
Losses) allocated to the Members subsequent to the Effective Date;
(b) second,
to the Members, pro rata in proportion to their respective positive Capital Account balances; and
(c) next,
to the Members pro rata in proportion to their respective Percentage Interests.
Section
5.5 Tax Allocations. For income
tax purposes only, each item of income, gain, loss and deduction of the Company shall be allocated among the Members in the same
manner as the corresponding items of income, gain, loss and deduction are allocated for Capital Account purposes; provided that,
in the case of any Company asset the fair market value of which differs from its adjusted tax basis for United States federal
income tax purposes, income, gain, loss and deduction with respect to such asset shall be allocated solely for income tax purposes
in accordance with the principles of Sections 704(b) and (c) of the Code (in any manner determined by the Manager) so as to take
account of the difference between the fair market value and adjusted tax basis of such asset.
Section
5.6 Income Tax Elections. In the
event of a Transfer of all or part of a Membership Interest (or of the interest of a partner or a member in a partnership or a
limited liability company which is a Member or is a partner or member in a Member) because of death or sale, the Company shall
make the election described in Section 754 of the Code if such election has not been previously made by the Company.
Section
5.7 Transfers During Fiscal Year.
In the event of the Transfer of all or any part of a Membership Interest (in accordance with the provisions of this Agreement)
at any time other than the end of a Fiscal Year, the share of Profit or Loss (in respect of the Membership Interest so Transferred)
shall be allocated between the transferor and the transferee in the same ratio as the number of days in the Fiscal Year before
and after such Transfer. This Section shall not apply to Profit or Loss from Terminating Capital Transactions or to other extraordinary
nonrecurring items. Profit and Loss from Terminating Capital Transactions shall be allocated on the basis of the Members’
respective Percentage Interests on the date of closing of the sale and extraordinary or nonrecurring items of gain or loss shall
be allocated on the basis of the Members’ respective Percentage Interests on the date the gain is realized or the loss incurred,
as the case may be.
Section
5.8 Special Allocations to Comply
with Section 704 Regulations.
(a) Member
Nonrecourse Debt Deductions. Member Nonrecourse Deductions with respect to Member Nonrecourse Debt shall be specially allocated
among the Member or Members who bear the economic risk of loss with respect to such Member Nonrecourse Debt in the amounts and
in the proportions required by Regulations Section 1.704-2(i)(1). The allocations referred to in this Subsection shall be interpreted
and applied to satisfy the requirements of Regulations Section 1.704-2(i).
(b) Qualified
Income Offset. In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury
Regulations Sections 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) which results in such Member
having a deficit Capital Account balance, or otherwise has a deficit Capital Account balance, which exceeds the sum of (i) the
amount of such deficit the Member is obligated to restore, and (ii) the amount of such deficit the Member is deemed to be obligated
to restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), such Member
shall be specially allocated items of Company income and gain in an amount and manner sufficient to eliminate, to the extent required
by the Treasury Regulations, the deficit in such Member’s Capital Account as quickly as possible. Any special allocation
made under this Section 5.8(b) shall be taken into account for purposes of determining subsequent allocations of income and losses,
so that the total allocations will, to the extent possible, equal the allocations which would have been made if this Section 5.8(b)
had not previously applied.
(c) Minimum
Gain on Nonrecourse Liability. The term “Minimum Gain on Nonrecourse Liability” shall mean the aggregate amount
of gain, if any, that would be realized by the Company if, in a taxable transaction, it disposed of all Company property encumbered
by mortgages securing Nonrecourse Liabilities of the Company (as defined in Regulations Section 1.704-2(b)(3)) in full satisfaction
thereof (and for no other consideration). The Members intend that Minimum Gain on Nonrecourse Liability shall be determined in
accordance with the provisions of Regulations Section 1.704-2(d)(1).
(d) Minimum
Gain on Member Nonrecourse Debt. The term “Minimum Gain on Member Nonrecourse Debt” shall mean the aggregate amount
of gain, if any, that would be realized by the Company if, in a taxable transaction, it disposed of all Company property encumbered
by mortgages securing Member Nonrecourse Debt of the Company (i.e., a nonrecourse debt for which one or more of the Members bears
the economic risk of loss, and defined in Regulations Section 1.704-2(b)(4)), in full satisfaction thereof (and for no other consideration).
The Members intend that Minimum Gain on Member Nonrecourse Debt shall be determined in accordance with the provisions of Regulations
Section 1.704-2(i)(3).
(e) Nonrecourse
Deductions. Nonrecourse Deductions for any Fiscal Year shall be specially allocated among the Members in accordance with their
Percentage Interests.
(f) Purpose
and Interpretation of Article V. The allocations set forth in this Article V are intended to allocate Profits and Losses in
a manner that has “economic effect equivalence” within the meaning of Regulations Section 1.704-1(b)(2)(ii)(i). Any
ambiguities or inconsistencies in the provisions of this Article V relating to the allocations of Profits and Losses shall be
resolved in the manner which will accomplish (or will most likely accomplish) the foregoing result.
Section
5.9 Curative Allocations. The allocations
set forth in Section 5.8 (the “Regulatory 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 other Regulatory
Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section. Therefore,
notwithstanding any other provision of this Article V (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 Member would have had if the Regulatory Allocations were not part of the Agreement and all Company items
were allocated pursuant to Sections 5.3 and 5.4.
Section
5.10 Tax Matters Partner. Courtelis shall
be the “tax matters partner” of the Company pursuant to Section 6231(a)(7) of the Code (the “Tax Matters Partner”)
as long as Courtelis is the Manager. Kislak shall be the Tax Matters Partner if Kislak becomes the Manager pursuant to Section
6.1(c). For the avoidance of doubt, the incumbent Manager shall select the Tax Matters Partner. The Tax Matters Partner shall
cause to be prepared all U.S. federal, state and local tax returns of the Company required to be filed and shall cause such returns
to be timely filed. The Tax Matters Partner shall be authorized and required to represent the Company (at the expense of the Company)
in connection with all examinations of the affairs of the Company by any federal, state or local tax authorities, including any
resulting administrative and judicial proceedings, and to expend funds of the Company for professional services and costs associated
therewith. The Tax Matters Partner shall take all actions necessary to preserve the rights of the Members with respect to audits
and shall provide all Members with notices of all such proceedings and other information as required by law. The Tax Matters Partner
shall obtain the prior written consent of each Member before settling, compromising or otherwise altering the defense of any proceeding
before the Internal Revenue Service if such Member or any of its constituent partners, members or equity holders could be affected
thereby. The Tax Matters Partner shall keep the Members timely informed of its activities under this Section. The Tax Matters
Partner may prepare and file protests or other appropriate responses to such audits. The Tax Matters Partner shall select an accountant
and/or counsel to represent the Company in connection with any audit conducted by the Internal Revenue Service or by any state
or local authority. All costs incurred in connection with the foregoing activities, including legal and accounting costs, shall
be borne by the Company. Any additional expenses with respect to judicial review of adverse determinations in connection with
any such tax audits or the defense of any Member against any claim asserted by the Internal Revenue Service or state or local
tax authority of additional tax liability arising out of the Member’s ownership of its Membership Interest shall only be
incurred by the Member(s) who have authorized the Tax Matters Partner, in writing, to proceed with such judicial review or defense.
Each Member agrees to cooperate with the Tax Matters Partner and to do or refrain from doing any or all things reasonably required
by the Tax Matters Partner in connection with the conduct of all such proceedings.
Section
5.11 Election to be Taxed as Association.
The Company shall be treated as a partnership for federal income tax purposes. No Member shall cause the Company to elect to be
treated as a corporation for federal income tax purposes in accordance with Regulations Section 301.7701-3(c).
ARTICLE
VI
Rights
and Duties of Members and Manager
Section
6.1 Management.
(a) No
Member shall be obligated to make Capital Contributions to the Company except as provided in Article IV and Section 6.2 below.
No Member shall have any personal liability with respect to the liabilities or obligations of the Company, except as set forth
in Section 4.3 hereof. The failure of the Company to observe any formalities or requirements relating to the exercise of its powers
or the management of its business or affairs under this Agreement or the Act shall not be grounds for imposing personal liability
on the Members for liabilities or obligations of the Company.
(b) The
Company shall be a manager-managed limited liability company. Generally, the day-to-day ordinary course business and affairs of
the Company shall be managed by the Manager. The Manager shall participate in the direction, management and control of the business
of the Company to the best of its ability. If the Manager cannot decide on an action to be taken by the Company, then the Manager
shall present the various alternative actions being considered by the Manager to the Members for their written consent. The Manager
may adopt such reasonable rules and regulations for the conduct of meetings of the Members and the management of the Company not
inconsistent with this Agreement and the Act.
(c) The
Company shall have one Manager. Subject to Section 6.18, the Manager shall be appointed by the Members holding more than fifty
percent (50%) of the Percentage Interests; provided, however, if a proposed Manager is not a Member or an Affiliate of a Member,
then the appointment of such Manager shall require the prior written consent of all Members. Subject to Section 6.18, or as otherwise
provided below in this Section 6.1(c), at any time and from time to time, the Members holding in the aggregate more than fifty
percent (50%) of the Percentage Interests may remove the Manager, and in such event, the Members holding in the aggregate more
than fifty percent (50%) of the Percentage Interests shall immediately designate and appoint a new Manager to fulfill the vacancy
created by the removal of the existing Manager; provided, however, if a proposed Manager is not a Member or an Affiliate of a
Member, then the appointment of such Manager shall require the prior written consent of all Members. Subject to the preceding
two sentences, the Members agree and consent that the initial Manager shall, so long as W. Douglas Pitts and/or Elias Vassilaros
(the “Required Courtelis Personnel”) is or are materially involved in the day-to-day management and operation of Courtelis,
be Courtelis until the Project is fully developed (i.e., certificates of occupancy issued for all buildings to be built in the
Project), at which time, so long as Jay I. Kislak and/or Tom Bartelmo and/or Stephen Braun and/or Kellie Hughes (the “Required
Kislak Personnel”) is or are materially involved in the day-to-day management and operation of Kislak, the management and
leasing of the Project shall be automatically, without any further action required of the existing Manager or the Members, turned
over to JIK Properties, Inc., a Florida corporation, pursuant to the Leasing and Management Agreement described in Section 6.15
and Kislak shall automatically, without any further action required of the existing Manager or the Members, become the Manager.
Notwithstanding anything to the contrary: (i) if an existing Manager is no longer a Member or an Affiliate of a Member; (ii) if
at least one of the Required Courtelis Personnel is not materially involved in the day-to-day management and operation of Courtelis
during the period that Courtelis serves as Manager; and/or (iii) if at least one of the Required Kislak Personnel is not materially
involved in the day-to-day management and operation of Kislak during the period that Kislak serves as Manager, the Members holding
in the aggregate more than fifty percent (50%) of the Percentage Interests may, at their option, designate and appoint a new Manager
to replace Courtelis or Kislak, as applicable, as existing Manager. In the event of any change of the Manager, the former Manager
shall cooperate with the new Manager in effectuating the transfer to the new Manager of the former Manager’s responsibilities
and rights hereunder. The Manager shall not be entitled to any compensation for its services as manager of the Company.
Section
6.2 Major Decisions. Notwithstanding
anything herein to the contrary, no act shall be taken or sum expended or obligation incurred by the Company or the Manager with
respect to a matter within the scope of any of the major decisions set forth below (collectively, “Major Decisions”)
unless such action has been approved by unanimous vote or written consent of the Members. It is intended that the Manager make
only the day-to-day decisions in the ordinary course of business of the Company (i.e., those other than Major Decisions) and take
actions necessary for the development of the Property and operation of the Company within the parameters of the latest Approved
Business Plan. The Major Decisions shall consist of the following:
| a. | the
organization or formation of any Subsidiary of the Company; |
| b. | the
formation and governing organizational documents (e.g., bylaws, limited liability company
agreement or partnership agreement) of any Subsidiary of the Company or any amendment
thereto; |
| c. | acquisition
by the Company or any Subsidiary of the Company of any real property or interest therein; |
| d. | acquisition
by the Company or any Subsidiary of the Company of any material asset in addition to
the Property; |
| e. | directly
or indirectly financing or borrowing of any money by or in the name of the Company or
any Subsidiary of the Company (including creating, incurring, refinancing, increasing,
extending, substituting, guarantying (including any Loan Guarantee and the terms and
provisions therein, including those relating to any related cross-indemnification agreement
among Guarantors), modifying, restructuring, supplementing, replacing, assuming, renewing
or otherwise causing the Company, any Subsidiary of the Company, any Member or any Affiliate
of any Member to enter into or approve any such financing or borrowing, as well as any
loan documentation or any loan terms (including the identity of the lender), release
or modification of the obligations or liabilities of any obligor under any loan document
(including the modification of the principal amount owed, the interest rate, any prepayment
fee, the maturity date or the amount or timing of payment) and the release or modification
of the liens or security interests granted under any loan document), except for trade
debt in the ordinary course of business in accordance with the latest Approved Budget; |
| f. | any
sale or other transfer (other than leases of portions of the Property in accordance with
the latest Approved Business Plan), or mortgaging or the placing of any other encumbrance
on or granting any security interest with respect to any part of the Property or any
improvements or parts thereof on the Property, including encumbering the Property with
covenants, conditions, restrictions and/or easements (other than the granting of utility
easements or public right of way easements or other easements required by governmental
agencies for the approval or permitting of the Project); |
| g. | construction
(and commencement of construction) of improvements on the Property (without limiting
this Subparagraph, the type of structures to be built and the approximate costs thereof
shall be approved by the Members prior to the commencement of development work); |
| h. | the
use of any information or documentation to offer or sell equity interests in the Company
to investors, including the manner of offering any such equity interests, and the types
of such investors and any other qualifications required of such investors to invest in
the Company; |
| i. | making
tax elections and other decisions affecting the tax treatment of a Member; |
| j. | approval
of the Business Plan (including the budget included therein) and any additions to or
modifications of any Approved Business Plan or Approved Budget; |
| k. | making
any expenditure or incurring any obligations by or on account of the Company or any Subsidiary
of the Company which has not been approved of in the latest Approved Budget; |
| l. | determining
whether or not to require the Members (or any Member) to make an Additional Capital Contribution
(or determining whether or not to require the owners of any Subsidiary of the Company
to make any capital contribution to such Subsidiary) and the amount thereof; |
| m. | making
any Distribution by the Company or any distribution by any Subsidiary of the Company; |
| n. | distributing
any assets of the Company or any Subsidiary of the Company in kind or accepting any contribution
by any Member or any owner of any Subsidiary of the Company other than cash; |
| o. | the
admission to the Company or any Subsidiary of the Company of any additional member or
equity owner and the terms and conditions of any such admission (including the capital
contributions of any such Person, the percentage ownership interest of any such Person,
such Person’s rights to distributions and any management rights of such Person); |
| p. | the
admission to the Company of an Assignee as a substituted Member; |
| q. | except
for Transfers permitted by Section 8.4 and Transfers pursuant to Article XI, the Transfer
by any Member of all or any part of its Membership Interest; |
| r. | dissolving,
liquidating and winding-up the affairs of the Company or any Subsidiary of the Company; |
| s. | merging
or consolidating the Company or any Subsidiary of the Company with or into any Person
or the sale of all or substantially all of the assets of the Company or any Subsidiary
of the Company; |
| t. | filing
for bankruptcy, appointment of a receiver or trustee or making a transfer for the benefit
of creditors, in each case with respect to the Company, any Subsidiary of the Company
or any of their respective assets or any portion thereof; |
| u. | commencing,
settling, dismissing, confessing a judgment against or making any other material decision
regarding the course of defense or prosecution of any claim, action, arbitration, mediation,
suit or proceeding on behalf of the Company, any Subsidiary of the Company or any of
their respective assets or any portion thereof; |
| v. | the
Articles of Organization of the Company or any amendment to this Agreement, the Articles
of Organization of the Company or other governing documents of the Company; |
| w. | causing
the Company to engage in any business not contemplated by Section 3.1; |
| x. | entering
into, or amending, any contract, agreement, commitment or remunerative or commercial
relationship between the Company or any Subsidiary of the Company, on the one hand, and
a Member or an Affiliate of a Member, or with any principals, agents, owners, directors,
managers, officers or immediate family members (i.e., spouse, children and/or grandchildren)
thereof or any Person controlled by any of them, on the other hand (an “Affiliate
Transaction”), including the Development Agreement described in Section 6.14 and
the Leasing and Management Agreement described in Section 6.15; |
| y. | using
funds of the Company or any Subsidiary of the Company to extend credit or make loans; |
| z. | any
sale, transfer or other disposition of, or settlement or resolution of claims in respect
of, any loan or extension of credit made by the Company or any Subsidiary of the Company; |
| aa. | knowingly
taking any action, or knowingly causing the Company or any Subsidiary of the Company
to take any action, that would subject any Member or any direct or indirect owner of
any Member to liability beyond those expressly provided in this Agreement or the Act; |
| bb. | making
a determination of fair market value for any asset of the Company or any Subsidiary of
the Company for any purpose; |
| cc. | any
insurance or bonding coverage or program maintained with respect to the Company or any
Subsidiary of the Company or the Property or any other asset of such Persons; |
| dd. | except
as set forth in the latest Approved Business Plan, any decision of the Company or any
Subsidiary of the Company to reimburse any Member or their Affiliates for expenses incurred
(directly or indirectly) in order to provide or receive any services in connection with
the business of the Company or any Subsidiary of the Company; |
| ee. | authorizing
or entering into any lease or rental agreement not in compliance with the approved leasing
parameters set forth in the latest Approved Business Plan; |
| ff. | submitting
for approval by any governmental body any plans or specifications for the development
of the Property or any entitlements, permits, variances, zoning or any other developmental
approvals with respect to the Property, or amending, modifying, changing or revising
in any material fashion any plans or specifications for the development of the Property
previously submitted to any governmental body or any entitlements, permits, variances,
zoning or any other developmental approvals previously submitted to any governmental
body with respect to the Property; |
| gg. | to
the extent not expressly provided for in the latest Approved Business Plan, any design,
construction or redevelopment of the Project, and any material design, service or construction
plans, contracts or budgets; |
| hh. | if
not expressly provided for in the latest Approved Business Plan, the use of any name
for the Property or the Project or any aspect thereof for any purpose; |
| ii. | except
as contemplated by the latest Approved Business Plan, any sales, “pre-sales,”
leasing or marketing plan with respect to the Property or any portion thereof, or causing
or permitting the Company or any Subsidiary of the Company to materially amend or modify,
or to take any material actions in violation of, any sales, “pre-sales,”
leasing or marketing plan previously approved as a Major Decision (or set forth in the
latest Approved Business Plan) with respect to the Property or any portion thereof; or |
| jj. | opening
any bank, brokerage or other depository or investment account by or on behalf of the
Company or any Subsidiary of the Company. |
The
Manager shall submit all matters constituting a Major Decision to the Members in writing for the Members’ review and decision,
which shall include all material information, agreements, instruments and other documents required for the Members to make a fully
informed decision. In addition, the Manager shall provide the Members with any additional information, agreements, instruments
and documents that are reasonably requested by any Member related to any matter constituting a Major Decision. Each Member shall
provide its decision with respect to any matter constituting a Major Decision to the Manager within ten (10) Business Days of
such Member’s receipt of such submission. Any Member’s failure to respond within ten (10) Business Days shall be deemed
a disapproval of such matter or matters.
Section
6.3 Limitations on Powers of Members.
Without the approval of all Members, no Member shall, directly or indirectly (i) resign, retire or withdraw from the Company;
(ii) dissolve, terminate or liquidate the Company; or (iii) cause any property of the Company or any Subsidiary of the Company
to be subject to the authority of any court, trustee or receiver (including suits for partition and bankruptcy, insolvency and
similar proceedings).
Section
6.4 Prohibition Against Partition.
Each Member irrevocably waives any and all rights the Member may have to maintain an action for partition with respect to any
property of the Company or any Subsidiary of the Company.
Section
6.5 Management and Control of Business,
Authority of Manager. Subject to the provisions of Section 6.2 and any other provision of this Agreement that requires the
vote, consent or approval by a Member, the business and affairs of the Company shall be managed under the direction of the Manager,
who (i) shall take the primary initiative and be responsible, at the expense and on behalf of the Company, to conduct the day-to-day
business and affairs of the Company in accordance with and as limited by this Agreement; and (ii) may exercise all powers of the
Company and, on behalf of the Company perform or authorize the performance of all lawful acts which are not by the Act or this
Agreement directed or required to be exercised or performed by the Members. The Manager shall also be responsible for the implementation
of Major Decisions approved by the Members. All acts of the Manager within the scope of its authority shall bind the Company.
Section
6.6 Specific Authority of the Manager.
Except as expressly provided in this Agreement, including Section 6.2, the Manager is hereby granted the right, power and authority
to do on behalf of the Company all things which are reasonably necessary, proper or desirable to carry out the business of the
Company in an orderly fashion in accordance with the latest Approved Budget and Approved Business Plan, including the right, power
and authority from time to time to do the following:
(a) prosecute
or defend any claim, action, arbitration, mediation, suit or proceeding on behalf of the Company, any Subsidiary of the Company
or any of their respective assets or any portion thereof, at such entity’s expense as may be necessary or proper to enforce
or protect such entity’s interests;
(b) employ
such agents, accountants, attorneys, consultants and other Persons, including itself, necessary or appropriate to carry out the
business and affairs of the Company, and to pay such fees, expenses and other compensation to such Persons as it shall determine
in accordance with the terms of this Agreement and the latest Approved Business Plan;
(c) pay
any and all reasonable fees and to make any and all reasonable expenditures in accordance with the latest Approved Budget which
it deems necessary or appropriate in connection with the organization of the Company, the management of the affairs of the Company,
and the carrying out of its obligations and responsibilities under this Agreement, and to enforce all rights of the Company;
(d) prepare,
execute and file on behalf of the Company the Articles of Organization of the Company and all amendments, modifications or supplements
thereto, together with any and all other certificates, affidavits and other documents to be filed, published or recorded on behalf
of the Company;
(e) engage
in any kind of activity and to perform and carry out contracts of any kind necessary to, or in connection with or convenient or
incidental to, the accomplishment of the purposes of the Company, so long as such activities and contracts may be lawfully carried
on or performed by a limited liability company under the laws of the State of Florida and any other jurisdiction in which the
Company may conduct its business;
(f) implement
or continue to implement any plan for the development of the Property which has been approved by the Members;
(g) protect
and preserve the titles and interests with respect to the Property and other assets owned by the Company;
(h) render
for taxation and pay all ad valorem taxes, assessments, and other impositions applicable to the Property and other property owned
by the Company;
(i) enter
into and supervise the performance of all Property Agreements;
(j) cause
accurate books of account and other records of the Company to be maintained in which shall be entered all matters relating to
the Company, including all income, expenditures, assets and liabilities thereof;
(k) negotiate
and agree to with all utility companies servicing the Property a master plan for the services of such utility companies to the
Property and agreements relative thereto;
(l) retain
or employ and coordinate the services of all employees, supervisors, architects, engineers, accountants, attorneys and other Persons
necessary or appropriate to carry out the business of the Company in accordance with the latest Approved Business Plan;
(m) to
the extent that funds are available therefor, pay all debts and other obligations of the Company when due, including amounts due
under permanent financing of improvements and other loans to the Company and costs of construction, operation, and maintenance
of the Property and improvements thereof;
(n) maintain
all funds of the Company in a Company account in a bank or banks with the Manager’s designated representatives as signatories
thereto;
(o) cause
the Company to periodically make distributions to their respective members in accordance with the provisions of this Agreement;
(p) perform
other normal business functions and otherwise operate and manage the day-to-day business and affairs of the Company in the ordinary
course of business in accordance with and as limited by this Agreement, including the construction, sale and leasing of properties
owned by the Company;
(q) perform
other obligations expressly provided elsewhere in this Agreement to be performed by the Manager;
(r) execute
all closing documents necessary for the construction, sale and leasing of the Property; and
(s) determine
when a notice for Additional Capital Contributions should be sent to the Members.
Section
6.7 Business Plan and Budget.
(a) The
Members, as a Major Decision, will adopt a business plan and strategic operating plan (the “Business Plan”) for the
acquisition, development and operation of the Property, which will set forth all anticipated development costs and expenses, income,
operating expenses, capital and other costs and expenses, anticipated capital calls and debt and other financing of the Company,
together with a marketing plan and general operating strategy for the Property, through the anticipated sale of the Property,
and which shall be updated annually and may be modified or revised from time to time by the Manager (and at such times as a Member
may reasonably request to reflect a change in facts or circumstances), subject in each case to approval by the Members as a Major
Decision. If applicable, each section of the Business Plan shall contain the time estimates associated with that section. Each
Business Plan which has been approved by the Members is referred to herein as an “Approved Business Plan.” Notwithstanding
anything to the contrary set forth in this Section 6.7, the Manager shall be entitled to expend available Company funds in respect
of emergency and other similar expenditures, provided that the payment of such expenditure is crucial to the development or operations
of the Property and the failure to pay such expenditure is likely to result in a material adverse effect on the Property, including
required debt service on financing (including the expense of curing any defaults thereunder to the extent the same is an emergency),
real estate taxes and assessments and emergency repairs (i.e., necessary to prevent imminent injury to individuals or loss of
life) and continued insurance coverage, even if not set forth in the latest Approved Business Plan.
(b) In
addition to the foregoing requirements, the Business Plan shall contain a budget which sets forth the estimated revenues and expenses
of the Company and other information specified below for the period covered by the Business Plan. Without limiting the foregoing,
each budget shall set forth (i) estimated revenues and a reasonable detail of all expenses (including, construction, capital,
operating, taxes, debt service and other) on a yearly basis; (ii) a description of any anticipated capital expenditures for the
upcoming year and in the quarter such expenditures are anticipated to be made; and (iii) a description of each reserve, contingency,
source and application of funds. Once approved by the Members as a Major Decision, each such budget is referred to herein as an
“Approved Budget.”
(c) The
Manager shall prepare and formulate or cause to be prepared and formulated any necessary updates to the Approved Business Plan
on a yearly basis commencing with respect to the 2015 Fiscal Year. Beginning with respect to the 2015 Fiscal Year, each proposed
Business Plan, when prepared by the Manager, shall be submitted to the Members for their approval not less than sixty (60) days
before the first day of each Fiscal Year. During such sixty (60) day period, the Manager and the Members shall cooperate with
one another and endeavor in good faith to agree to the adoption of such Business Plan with any agreed upon changes before the
first day of each Fiscal Year. The failure of the Manager and the Members to agree upon a Business Plan in writing within such
sixty (60) day period shall be deemed to be disapproval of the proposed Business Plan. If the Manager and the Members have not
agreed upon a Business Plan before the commencement of a Fiscal Year, until a Business Plan is approved by the Members, the Manager
shall operate the Property in accordance with the most recent Approved Business Plan except that (A) the Manager shall be entitled
to expend the actual costs of required insurance, real estate taxes, utilities, emergency expenses, and any other expenses which
the Company is contractually obligated to pay pursuant to contracts or agreements which have been entered into by the Company
in accordance with the terms of this Agreement; and (B) no new capital improvement project shall be deemed approved and undertaken
except to the extent required by the terms of any mortgage encumbering the Property or any lease entered into by the Company in
accordance with the terms of this Agreement.
Section
6.8 Status Reports. The Manager
shall report to the Members each month on the status of the development of the Property. The Manager shall meet (in person or
by telephone conference) not less often than quarterly with the Members or at any other reasonable time at any Member’s
request to detail the status of the Property, respond to questions and consider approval of matters constituting Major Decisions.
Section
6.9 Manager’s Compensation.
The Manager shall not be compensated for its services as Manager.
Section
6.10 Signing of Documents. Subject to the other
provisions of this Agreement, the Manager is authorized, in the name and on behalf of the Company, to sign and deliver all contracts,
agreements, leases, notes, mortgages and other documents and instruments which are necessary, appropriate or convenient for the
conduct of the Company’s day-to-day business and the furtherance of its purposes or which are necessary, appropriate or
convenient to carry out actions constituting Major Decisions which have been approved by the Members.
Section
6.11 Right to Rely on Authority of Manager.
No Person dealing with the Manager shall be required to determine the Manager’s authority to make any undertaking on behalf
of the Company or to determine any fact or circumstance bearing upon the existence of the Manager’s authority.
Section
6.12 No Authority to Hire Employees. The Company
shall have no employees and the Manager shall have no authority to hire any employees on behalf of the Company.
Section
6.13 Outside Activities. The Manager shall devote
only such time and attention to the business and affairs of the Company as it deems necessary for the proper performance of its
duties and the operation and management of the Company. The Manager, the Members and their respective Affiliates may engage in
or hold interests in other business ventures of every kind and description for its or their own account, whether or not such business
ventures are in direct or indirect competition with the business of the Company, and whether or not the Company also has an interest
therein. None of the Company or the other Members shall have any rights by virtue of this Agreement in such business ventures
or to the income or profits derived therefrom. Without limiting the foregoing, the Members hereby agree that the Manager, each
Member and each of their respective Affiliates may render services identical or similar to those contemplated hereunder to other
owners of real property, improved in a similar fashion to the Property or otherwise, and may themselves engage in the acquisition,
development, leasing and exploitation of real property for their own account and benefit without any accountability or liability
whatsoever to the Company or the other Members even though such services or business activities may be similar or competitive
in nature to the Project and/or to the business activities of the Company. The Members acknowledge and agree that the activities
of any Person described in this Section shall be deemed to not violate any fiduciary duties (including the duty of loyalty) whether
or not such duties otherwise arise or exist at law or in equity.
Section
6.14 Development Agreement. The development
of the Property shall be overseen and supervised by Courtelis Company, a Florida corporation, with whom the Company shall enter
into a “Development Agreement” substantially in the form attached hereto as Exhibit “C” and made a part
hereof. Courtelis Company will be entitled to a development fee as more fully set forth in said Development Agreement. The approval
of the terms and provisions of the Development Agreement, including without limitation the fees and costs to be paid thereunder,
shall be a Major Decision.
Section
6.15 Leasing Management Agreement. The management,
maintenance and leasing of any improvements constructed on the Property shall be overseen and supervised by JIK Properties, Inc.,
a Florida corporation, with whom the Company shall enter into a “Leasing and Management Agreement” substantially in
the form attached hereto as Exhibit “D” and made a part hereof. JIK Properties, Inc., as an Affiliate of Kislak, will
be entitled to a management and leasing fee as more fully set forth in said Leasing and Management Agreement. The approval of
the terms and provisions of the Leasing and Management Agreement, including without limitation the fees and costs to be paid thereunder,
shall be a Major Decision.
Section
6.16 Agreements With Members. Notwithstanding anything
to the contrary contained in this Agreement, any actions or decisions to be made on behalf of the Company or any Subsidiary of
the Company with respect to any agreement, contract or arrangement between the Company or any Subsidiary of the Company, on the
one hand, and Courtelis (or an Affiliate of Courtelis), on the other hand, shall be made exclusively by Kislak and HMG/Orlando.
Similarly, notwithstanding anything to the contrary contained in this Agreement, any actions or decisions to be made on behalf
of the Company or any Subsidiary of the Company with respect to any agreement, contract or arrangement between the Company or
any Subsidiary of the Company, on the one hand, and Kislak (or an Affiliate of Kislak), on the other hand, shall be made exclusively
by Courtelis and HMG/Orlando. Additionally, notwithstanding anything to the contrary contained in this Agreement, any actions
or decisions to be made on behalf of the Company or any Subsidiary of the Company with respect to any agreement, contract or arrangement
between the Company or any Subsidiary of the Company, on the one hand, and HMG/Orlando (or an Affiliate of HMG/Orlando), on the
other hand, shall be made exclusively by Courtelis and Kislak.
Section
6.17 Indemnification by Manager. Notwithstanding
any other provision of this Agreement, the Manager shall, at its own cost and expense, indemnify, defend and hold harmless the
Company and the other Members and their Affiliates from and against any and all claims, demands, losses, damages, liabilities,
obligations, lawsuits and other proceedings, judgments and awards, and costs and expenses (including reasonable attorneys’
fees and expenses) arising directly or indirectly, in whole or in part, out of any material breach by the Manager of its duties
and obligations under this Agreement or out of any gross negligence in the performance of its duties and obligations under this
Agreement. Notwithstanding the foregoing provisions, the indemnification set forth above shall exclude any punitive or consequential
damages which any Member may claim to have incurred by reason of such indemnified matters, including lost profit or lost opportunity,
but shall include indemnification for punitive or consequential damages claims by third parties. The indemnity in this Section
6.17 shall survive the dissolution and termination of the Company and the termination of this Agreement.
Section
6.18 Removal of Manager.
(a) Notwithstanding any other provision of this Agreement, a Manager may be removed as Manager
where (i) the Manager has committed a Bad Act or (ii) the Manager is an Affiliate of a Member who has committed a Bad Act, by
Members holding more than fifty percent (50%) of the Percentage Interests (not counting the Percentage Interest of any Member
that is an Affiliate of the Removed Manager). The determination of any Bad Act shall be submitted to non-binding arbitration
in Miami, Florida before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive
Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Any Member may initiate the
arbitration proceeding. If the Members have not agreed within ten (10) Business Days of the commencement of the arbitration
proceeding on the selection of an arbitrator willing to serve, the arbitrator shall be selected by such procedures as JAMS
regularly follows and shall be a retired judge or other arbitrator who is a member of JAMS.
(b) In
the event of the removal of a Manager pursuant to this Section 6.18 (a “Removed Manager”), the Members shall appoint
a new Manager by approval of Members holding more than fifty percent (50%) of the Percentage Interests (not counting the Percentage
Interest of any Member that is an Affiliate of the Removed Manager). Notwithstanding any other provision of this Agreement, from
and after the date of the removal of a Removed Manager that is an Affiliate of a Member, (i) the consent of such Member shall
be required only with respect to a matter within the scope of Section 6.2(i), Section 6.2(l), Section 6.2(v), Section 6.2(w),
Section 6.2(x) (but only with respect to Affiliate Transactions entered into or amended after the occurrence of the Bad Act which
led to the removal of the Removed Manager) or Section 6.2(aa), and (ii) any other matter constituting a Major Decision shall require
the approval only of the Members that are not Affiliates of the Removed Manager.
ARTICLE
VII
Books
of Account and Reports, Access to Records; Reporting Requirements
Section
7.1 Books and Records. The Manager
shall keep, or cause to be kept, at the principal place of business of the Company true and correct books of account of the Company,
in which shall be entered fully and accurately each and every transaction of the Company. Each Member or its designated agent
shall have access at reasonable times on Business Days at the Company’s office, or wherever same are located, to inspect
such books of account and all other information concerning the Company required by the Act to be made available to Members, and
may make copies thereof at such Member’s expense. Initially, the books and records shall be kept at Courtelis’ office
and thereafter shall be kept at Kislak’s office when Kislak becomes the Manager when the Project is fully developed.
A
Member must give the Company written notice of its desire to exercise rights under this Section 7.1 at least two (2) Business
Days in advance. The Company’s books shall be kept on the accrual method of accounting in accordance with accepted federal
income tax accounting principles, consistently applied, and for a fiscal period which is the calendar year. The Manager shall
cause to be prepared and distributed to each Member (i) a copy of the annual financial statements of the Company for each Fiscal
Year; and (ii) information necessary to complete such Member’s U.S. federal, state and local income tax returns within ninety
(90) days after the close of each Fiscal Year.
Section
7.2 Banking. Subject to Section
6.2, all funds of the Company shall be deposited in its respective name in such federally-insured commercial bank or invested
in such federally-insured savings and loan account or accounts, in such U.S. Treasury obligations, or in such bank certificates
of deposit, as the Manager may determine. All funds of the Company shall only be used for Company purposes as provided in this
Agreement and in accordance with the terms hereof.
Section
7.3 Reporting Requirements. The
Manager shall provide each Member with the Company’s financial information as follows:
(a) Operating
Statements. From and after the date of this Agreement, and continuing for the term of the Company, on a monthly basis within
30 days after month end, a comparison of operations, on a year-to-date basis, reflecting income, expenses and capital expenditures
compared to the latest Approved Budget and Approved Business Plan.
(b) Quarterly
Financial Statements. As soon as available, but in any event within forty-five (45) days after the end of each of the first
three quarters of each Fiscal Year, a balance sheet of the Company as of the last day of such quarter and a statement of income
for such quarter, all in reasonable detail, each such statement to be certified in a certificate of the Manager as accurately
presenting the financial position and the results of operations of the Company as of its date and for such quarter and having
been prepared in accordance with federal income tax accounting principles consistently applied.
(c) Annual
Financial Statements. Annually, as soon as available, but in any event within ninety (90) days after the end of each Fiscal
Year, a balance sheet of the Company as of the last day of such Fiscal Year and a statement of income for such Fiscal Year, all
in reasonable detail, setting forth in each case in comparative form to corresponding figures for the preceding Fiscal Year, each
such statement to be certified in a certificate of the Manager as accurately presenting the financial position and the results
of operations of the Company as of its date and for such Fiscal Year and having been prepared in accordance with federal income
tax accounting principles consistently applied.
ARTICLE
VIII
Transfers
of Membership Interests
Section
8.1 Other Member’s or
Assignee’s Right to Transfer. Except for Transfers contemplated in Section 8.4 and Transfers pursuant to Article XI,
without the prior written consent of all of the Members, no Member may Transfer all or any part of its Membership Interest.
Section
8.2 Non-Complying Transfers Void.
Any attempted Transfer of all or any part of a Member’s Membership Interest that does not comply with the provisions of
this Article VIII shall be null and void and of no legal effect. No Transfer of a Member’s Membership Interest shall be
permitted under this Agreement which is in violation of the provisions set forth in any loan documents to which the Company is
a party.
Section
8.3 Corporate Ownership. In the
event any Membership Interest is owned by a corporation, partnership, trust or other entity, then a Transfer of more than fifty
percent (50%), in a single transaction or over time, of the equitable, beneficial or controlling interests of such entity shall
constitute a Transfer of the Membership Interest owned by that entity subject to the provisions of this Article VIII.
Section
8.4 Family Transfers. Notwithstanding
anything to the contrary contained in this Agreement, the provisions of this Article VIII shall not apply to a Transfer by a Member
of such Member’s Membership Interest (or any portion thereof) to (a) an Affiliate of such Member; (b) in the case of a Member
that is an individual, a member of his immediate family (i.e., spouse, children and/or grandchildren) or to a trust, the beneficiaries
of which are members of his immediate family; or (c) any other Member; provided that no such Transfer shall in any event relieve
the transferor of primary liability for performance of the obligations relating to such Membership Interest (or any portion thereof).
Notwithstanding the foregoing, as a condition to such Transfer, the transferee must execute at its sole cost and expense a written
assumption agreement reasonably satisfactory to the Manager assuming all of the obligations of the transferor as to the Membership
Interest (or portion thereof) being Transferred and agreeing to be bound by all of the terms and provisions of this Agreement
(as the same may then have been amended) and a signed, original counterpart copy of which shall be filed with the Company records.
ARTICLE
IX
Admission
of Assignees
Section
9.1 An Assignee has no Management Rights
unless and until (i) the transferring Member so provides in the instrument of Transfer; (ii) the Assignee agrees in a writing
reasonably satisfactory to the Manager to be bound by all of the terms and provisions of this Agreement (as the same may then
have been amended); and (iii) all of the Members approve of the admission of such Assignee as a substituted Member. Until such
time, the only rights of an Assignee are the Economic Rights allocable to the Transferred Membership Interest.
Section
9.2 Substituted Member. No Assignee
of a part of a Member’s Membership Interest in the Company shall have the right to become a substituted Member. A Member
may substitute an Assignee of its entire Membership Interest in the Company as a Member in its place only with the prior written
consent of all Members, which consent may be withheld for whatever reason any Member deems appropriate; provided, however, that
the Members may not unreasonably withhold consent to the substitution of an Affiliate of a Member or the heirs, executors, administrators
or devisees of a Member. No substitution shall be effective unless and until the Assignee has agreed in writing to be bound by
all of the terms and provisions of this Agreement, as the same may then have been amended, as if it had originally been a party
hereto, and both transferor and transferee have executed and acknowledged any and all other instruments deemed necessary or appropriate
by the Members to effectuate the substitution. The transferee shall pay all reasonable expenses incurred in connection with its
substitution and admission as a Member.
Section
9.3 Additional Members and Their Contributions.
Additional Members may be admitted to the Company upon the unanimous approval of all Members. Each additional Member shall make
such contribution to the capital of the Company and shall receive by reason of its contribution such percentage of the income,
gains, profits, and credits of the Company as shall be set forth in the instrument evidencing the approval of the Members of its
admission. Thereafter, the Percentage Interest of each Member in the income, gains, profits, and credits of the Company by reason
of his contribution shall be readjusted accordingly. The admission of any such additional Member shall not be effective unless
and until it has agreed to be bound by all of the terms and provisions of this Agreement, as the same may then have been amended,
as if he were originally a party hereto, and shall have executed and acknowledged any and all other instruments deemed necessary
or appropriate by the Members to effectuate such admission.
ARTICLE
X
Right
of First Refusal
Section
10.1 Right of First Refusal. Other than as
set forth in Section 8.4 and Article XI hereof, each Member hereby grants to all the other Members a right of first refusal on
the terms and conditions hereinafter set forth if a Member receives a bona fide offer from an unrelated third party to purchase
said Member’s Membership Interest which said Manager intends to accept:
(a) In
the event that any Member (the “Selling Member”) receives such bona fide offer, such Selling Member shall give written
notice thereof (the “Sale Notice”) to the Manager and every other Member (the “Remaining Members”), accompanied
by a copy of such bona fide offer (the “Offer”).
(b) Within
thirty (30) days following delivery of the Sale Notice, the Remaining Members shall determine whether or not they desire to purchase
the Membership Interest proposed to be sold upon the terms and conditions set forth in the Offer (net of any commissions), and
if one or more of the Remaining Members elect to purchase such Membership Interest, the Remaining Members electing to purchase
shall so notify the Selling Member in writing (the “Buy Notice”) within such thirty (30) day period. The Buy Notice
shall be deemed effective only if the Remaining Members or any one of them agree to purchase the entire Membership Interest proposed
to be sold. In the event more than one Remaining Member elects to participate, the ratios among the electing Remaining Members
(the “Buying Members”) shall be as agreed upon by the Buying Members or, if the Buying Members cannot agree, then
in accordance with the respective Percentage Interests of the Buying Members (based on the proportion that each Buying Member’s
Percentage Interest bears to the aggregate Percentage Interests of all Buying Members (i.e., excluding the Percentage Interest
of the Members who are not Buying Members)).
(c) In
the event a Buy Notice is given, the Selling Member shall sell its Membership Interest to the Buying Members on the terms and
conditions set forth in the Offer (net of any commissions). The closing of such sale shall take place on the date specified for
closing in the Offer, provided such date shall be not earlier than sixty (60) days following delivery of the Buy Notice.
(d) In
the event a Buy Notice is not given by the Remaining Members or any one of them during the thirty (30) day period following delivery
of the Sale Notice, or if the Buying Members do not, in the aggregate, agree to purchase the entire Percentage Interest of the
Selling Member, then the Membership Interest proposed to be sold may be sold to any Person on the terms and conditions set forth
in the Offer, but in no event on more favorable terms and conditions than those set in the Offer; provided that, in the event
such Membership Interest is not sold on the terms and conditions set forth in the Offer within ninety (90) days from and after
the date on which the Sale Notice was delivered, then such Membership Interest may not be sold without compliance again with the
provisions of this Section 10.1.
ARTICLE
XI
Buy-Sell
Section
11.1 Buy-Sell. On or after completion of all
of the buildings contemplated by the then current Approved Business Plan on the Property (i.e., issuance of the certificate of
completion for said building(s)) and not before such date, but subject to Section 16.2, the Members shall have the right to purchase
or sell all (but not less than all) of their respective Membership Interests in the Company to each other in the manner set forth
in this Section 11.1. The Members agree, however, that the exercise of the rights under this Article XI are subject to the approval
of any lender to the Company if the terms and conditions of the lender’s loan documents would limit, prohibit or impair
the exercise of such rights, or if the exercise of such rights would result in a default under the loan documents.
(a) At
any time and for any reason any Member (the “Offeror”) may give either or both of the other Members (each is an “Offeree”)
a notice (the “Buy-Sell Notice”), which Buy-Sell Notice to be effective must be hand delivered (including, without
limitation, delivery by a nationally recognized overnight courier service); provided, however, that if more than one Member shall
give either or both of the other Members a Buy-Sell Notice, the one given first (i.e., the one received earlier as determined
by the date and time of receipt) shall be effective and the one(s) given thereafter shall not be effective. Such Buy-Sell Notice
shall:
(i) state
that the Offeror is proceeding under this Section 11.1;
(ii) state
the aggregate dollar amount (the “Specified Valuation Amount”) which the Offeror would be willing to pay for one hundred
percent (100%) of the Membership Interests in the Company as of the date of the Buy-Sell Notice;
(iii) be
accompanied by a deposit check payable to the direct order of the Offeree’s counsel, as escrow agent (which counsel for
Kislak shall be the firm of Bilzin Sumberg Baena Price & Axelrod LLP; counsel for Courtelis shall be Victor Stosik; and counsel
for HMG/Orlando shall be Shutts & Bowen LLP, as escrow agent, unless such Member notifies the others of a change in such counsel),
in an amount equal to ten percent (10%) of the amount the Offeror would be required to pay to the Offeree under Section 11.1(b)(i);
and
(iv) be
accompanied by a comprehensive purchase agreement (the “Purchase Agreement”) which contains all terms, conditions,
covenants, representations, warranties and other agreements, except such terms shall provide for the entire purchase price to
be paid in immediately available funds at closing.
(b) The
Offeree shall have the option either:
(i) to
sell its entire Membership Interest in the Company to the Offeror for an amount equal to the amount which the Offeree would have
been entitled to receive under Section 5.1(b) if the Company had sold all of its assets to a third party for the Specified Valuation
Amount on the “Closing Date” (as hereinafter defined) (but without any deduction for brokerage commissions, documentary
stamp tax on a deed of conveyance, title insurance, or similar transactional closing costs otherwise customarily payable in connection
with such a sale) and the Company had immediately paid all Company liabilities and distributed the net proceeds (as determined
above) and any other Company assets to the Members in the amounts and order of priority set forth in Section 5.1(b) in satisfaction
of their Membership Interests in the Company (but without the establishment of any reserves for contingent liabilities); or
(ii) to
purchase the entire Membership Interest in the Company of the Offeror for an amount equal to the amount the Offeror would have
been entitled to receive under Section 5.1(b) if the Company had sold all of its assets to a third party for the Specified Valuation
Amount on the Closing Date (but without any deduction for brokerage commissions, documentary stamp tax on a deed of conveyance,
title insurance, or similar transactional closing costs otherwise customarily payable in connection with such a sale) and the
Company had immediately paid all Company liabilities and distributed the net proceeds (as determined above) and any other Company
assets to the Members in the amounts and order of priority set forth in Section 5.1(b) in satisfaction of their Membership Interests
in the Company (but without the establishment of any reserves for contingent liabilities).
The
Offeree shall have ninety (90) days from the date of delivery of the Offeror’s Buy-Sell Notice to exercise by notice to
the Offeror (the “Offeree Notice”) either of its options hereunder. In the event the Offeree exercises the option
described in Section 11.1(b)(i), the Offeree shall be entitled to deliver the check received from the Offeror to its counsel,
who shall promptly deposit the same in its trust account and shall hold such deposit pursuant to an escrow agreement to be entered
into among the Offeror, the Offeree and such counsel, which shall be in form and substance reasonably satisfactory to such parties.
In the event the Offeree exercises the option described in Section 11.1(b)(ii), the Offeree Notice shall be accompanied by the
return of the Offeror’s check and shall be accompanied by a deposit check of the Offeree payable to the direct order of
the Offeror’s counsel, as escrow agent, in an amount equal to ten percent (10%) of the amount the Offeree is required to
pay to the Offeror under Section 11.1(b)(ii), and the Offeror shall be entitled to deliver such check to its counsel who shall
promptly deposit the same in its trust account and shall hold such deposit pursuant to an escrow agreement to be entered into
among the Offeror, the Offeree and such counsel, which shall be in form and substance reasonably satisfactory to such parties.
If the Offeree shall not exercise either of its options by delivering the Offeree Notice within said ninety (90) days, the Offeree
shall be conclusively deemed to have elected to sell its Membership Interest in the Company to the Offeror at the price provided
in Section 11.1(b)(i) as of the day following the expiration of such period.
(c) The
Member entitled to purchase under Section 11.1(b) (the “Purchaser”) shall fix a closing date (the “Closing Date”)
which is not later than forty-five (45) days following the date of delivery of the Offeree Notice (or, if the Offeree Notice is
not delivered to the Offeror within ninety (90) days from the date of delivery of the Offeror’s Buy-Sell Notice, then the
Closing Date shall be not later than forty-five (45) days following the date of expiration of such ninety (90) day period). The
closing shall take place on the Closing Date at the time and place specified by the Purchaser. In the event the Offeree elects
to sell pursuant to Section 11.1(b)(i), if the Offeror fails to perform its obligations hereunder, the Offeree (in addition to
any other rights it may have hereunder, at law or in equity) shall be entitled to retain the ten percent (10%) deposit received
from the Offeror (and the Offeree’s counsel is hereby authorized to thereupon promptly release the same from escrow to the
Offeree for such purpose) and, in addition, shall have the right (but not the obligation) to purchase the Offeror’s Membership
Interest at ninety percent (90%) of the amount the Offeree would be required to pay the Offeror under Section 11.1(b)(ii) and
the Offeror shall not thereafter have any right to give a Buy-Sell Notice hereunder (but shall continue to have the right to respond
to a Buy-Sell Notice by giving an Offeree Notice). In the event the Offeree elects to purchase pursuant to Section 11.1(b)(ii),
if the Offeree fails to perform its obligations hereunder, the Offeror (in addition to any other rights it may have hereunder,
at law or in equity) shall be entitled to retain the ten percent (10%) deposit received from the Offeree (and the Offeror’s
counsel is hereby authorized to thereupon promptly release the same from escrow to the Offeror for such purpose) and, in addition,
shall have the right (but not the obligation) to purchase the Offeree’s Membership Interest at ninety percent (90%) of the
amount the Offeror would be required to pay the Offeree under Section 11.1(b)(i) and the Offeree shall not thereafter have any
right to give a Buy-Sell Notice hereunder (but shall continue to have the right to respond to a Buy-Sell Notice by giving an Offeree
Notice).
(d) At
the closing on the Closing Date:
(i) the
Member obligated to sell (the “Seller”) shall execute and deliver to the Purchaser such bills of sale, instruments
of conveyance, assignments and other instruments as the Purchaser may reasonably require, to give it good and clear title to the
Membership Interest of the Seller in the Company. The Members shall endeavor, to the extent practicable, to structure any such
conveyance in a tax efficient manner provided the same does not delay in any material respect the completion of such conveyance,
does not increase the costs associated with such conveyance (unless the party requesting such structuring agrees to, and at closing,
pays such increased costs) and would not result in adverse tax consequences to the Purchaser as of the Closing Date or at any
time thereafter. In addition, the Seller shall pay any real property or other transfer taxes, if any, incident to such conveyance.
(ii) The
Purchaser shall purchase the Membership Interest of the Seller subject to all Company liabilities which shall be specifically
assumed by the Purchaser unless the same are non-recourse to the Seller, in which case the Purchaser takes subject to such liabilities.
The Purchaser shall further indemnify the Seller as to said liabilities. In addition, as a condition to any Member becoming a
Purchaser, such Purchaser and the Company shall arrange for the specific release of the Seller and/or any Affiliates of the Seller
from the primary liability (as opposed to continuing liabilities, such as environmental liabilities for the period prior to the
Closing Date, which may not be released but for which the Purchaser shall provide indemnification to the Seller) to any institutional
lenders having outstanding loans to the Company (including the cancellation and release of such Persons from all Loan Guarantees).
The Membership Interest of the Seller shall be Transferred free and clear of all encumbrances except for the liabilities being
assumed or taken subject to pursuant to this Section.
(e) Since
a Member may issue a Buy-Sell Notice to either or both of the other Members, then notwithstanding anything to the contrary, in
the event an Offeror issues a Buy-Sell Notice to only one (1) of the other Members, as an Offeree, then the Purchaser (upon becoming
the Purchaser pursuant to Section 11.1(b)) must immediately offer (the “Offer to Sell ½ Notice”) to sell one-half
(1/2) of the Membership Interest being acquired from the Seller to the Member who has not been issued a Buy-Sell Notice by the
Offeror (the “Non-Participating Member”), on the same terms and conditions that the Purchaser is purchasing the Membership
Interest of the Seller (and each of the Purchaser and the Non-Participating Member shall purchase the Seller’s Membership
Interest directly from the Seller, on the Closing Date determined by the Purchaser pursuant to Section 11.1(c)). The Non-Participating
Member shall have ten (10) Business Days from the date of delivery of the Offer to Sell ½ Notice to exercise its right
to purchase one-half (1/2) of the Membership Interest of the Seller (in lieu of its purchase by the Purchaser) by giving notice
of acceptance of same to the Purchaser (which acceptance to be effective must be hand delivered (including, without limitation,
delivery by a nationally recognized overnight courier service)). The acceptance of the Offer to Sell ½ Notice shall be
accompanied by a deposit check of the Non-Participating Member payable to the direct order of the Purchaser’s counsel, as
escrow agent, in an amount equal to ten percent (10%) of the amount the Non-Participating Member is required to pay to the Seller
for one-half (1/2) of the Membership Interest of the Seller, and the Purchaser shall be entitled to deliver such check to its
counsel who shall promptly deposit the same in its trust account and shall hold such deposit pursuant to an escrow agreement to
be entered into among the Purchaser, the Non-Participating Member and such counsel, which shall be in form and substance reasonably
satisfactory to such parties. If the Non-Participating Member shall not exercise its option to purchase one-half (1/2) of the
Membership Interest of the Seller by delivering the notice of acceptance of the Offer to Sell ½ Notice within the time
period stated above in this Section 11.1(e), the Non-Participating Member shall be conclusively deemed to have elected to not
participate in such purchase and the entire Membership Interest of the Seller may be acquired by the Purchaser and the Non-Participating
Member cannot exercise its buy-sell right until after the Purchaser has finalized its purchase of the Seller’s Membership
Interest. In the event the Non-Participating Member shall, after accepting the Offer to Sell ½ Notice, default in its obligation
to consummate the purchase as provided in this Section 11.1, the Purchaser shall, as to the Membership Interest of the Non-Participating
Member, have the rights set forth in Section 11.1(c) above. By way of example but not limitation, if Courtelis, as Offeror, issues
a Buy-Sell Notice to Kislak, as Offeree, and Kislak elects to sell its Membership Interest to Courtelis, then Courtelis shall
immediately issue an Offer to Sell ½ Notice to HMG/Orlando and HMG/Orlando may, as the Non-Participating Member and at
its option exercised within the time period stated above in this Section 11.1(e), elect to purchase one-half (1/2) of the Membership
Interest of Kislak which is otherwise to be purchased by Courtelis, on the same terms and conditions as set forth in the Buy-Sell
Notice.
ARTICLE
XII
Dissolution
of Company
Section
12.1 Events Causing Dissolution. The Company
shall be dissolved and its affairs wound up upon the occurrence of any of the following events:
(a) the
sale, exchange, or other disposition by the Company of all or substantially all of its assets; provided, however, that if, in
connection with such sale or other disposition, the Company receives a promissory note or notes evidencing all or a part of the
purchase price of such property, the Company shall not be dissolved until such promissory note(s) is (are) satisfied, sold or
otherwise disposed of;
(b) the
determination in writing by the Members that the Company shall be dissolved; or
(c) entry
of a decree of judicial dissolution under the Act.
Section
12.2 Winding Up. If the Company is dissolved,
then the Manager shall proceed with dispatch and without any unnecessary delay to sell or otherwise liquidate all property of
the Company. Any act or event (including the passage of time) causing a dissolution of the Company shall in no way affect the
validity of, or shorten the term of, any lease, deed of trust, mortgage, contract or other obligation entered into by or on behalf
of the Company.
Section
12.3 Application of Assets in Winding Up.
In winding up the Company, after paying or making provision for payment of all of its liabilities and paying all other costs and
expenses incurred in connection with winding up and terminating the Company, the Manager shall distribute the remaining net proceeds
and liquid assets among the Members in the manner specified in Section 5.1(b).
Section
12.4 Negative Capital Accounts. No Member
shall be required or obligated to restore or repay to the Company, any other Member or any creditor of the Company any negative
balance in its Capital Account upon liquidation or dissolution of the Company.
Section
12.5 Termination. The Company shall terminate,
except for the purpose of suits, other proceedings, and appropriate action as provided in the Act, when all of its property shall
have been disposed of and the net proceeds and liquid assets, after satisfaction of liabilities to Company creditors, shall have
been distributed among the Members. As soon as practicable after the termination of the Company, the Manager shall cause articles
of dissolution to be filed with the Department of State of the State of Florida. With the written consent of the Members, the
Manager shall have authority to distribute any Company property discovered after dissolution, convey real estate, and take such
other action as may be necessary on behalf of and in the name of the Company.
ARTICLE
XIII
Amendments
This
Agreement may not be amended or modified by the Members without the prior written consent of all Members.
ARTICLE
XIV
Intentionally
Omitted
ARTICLE
XV
Liability
and Indemnification
Section
15.1 Liability of Manager. Neither the Manager
nor any of its officers, directors, partners, members, managers, employees, agents, Affiliates, personal representatives, successors
or assigns shall be liable to the Company or the Members for any claim, demand, loss, damage, liability, obligation, lawsuit or
other proceeding, judgment or award, or cost or expense (including reasonable attorneys’ fees and expenses) arising directly
or indirectly, in whole or in part, out of any act performed or omitted in connection with the assets, business, operations or
activities of the Company (including any of its Subsidiaries) or in dealing with third parties on behalf of the Company (including
any of its Subsidiaries) unless such act or omission (a) constitutes gross negligence or a material breach under this Agreement;
(b) involves bad faith, willful or intentional misconduct or a knowing violation of law; (c) relates to a transaction from which
such Person derived an improper personal benefit; (d) involves a circumstance in which the liability provisions of Section 605.0406
of the Act are applicable; or (e) constitutes a breach of duties or obligations under Section 605.04091 of the Act, taking into
account any variation of such duties and obligations provided for in this Agreement.
Section
15.2 Indemnification of Manager. The Company
shall, at its cost and expense, indemnify, defend and hold harmless the Manager and its officers, directors, partners, members,
managers, employees, agents, Affiliates, personal representatives, successors and assigns from and against any and all claims,
demands, losses, damages, liabilities, obligations, lawsuits and other proceedings, judgments and awards, and costs and expenses
(including reasonable attorneys’ fees and expenses) arising directly or indirectly, in whole or in part, out of any act
performed or omitted in connection with the assets, business, operations or activities of the Company (including any of its Subsidiaries)
or in dealing with third parties on behalf of the Company (including any of its Subsidiaries) unless such act or omission (a)
constitutes gross negligence or a material breach under this Agreement; (b) involves bad faith, willful or intentional misconduct
or a knowing violation of law; (c) relates to a transaction from which such Person derived an improper personal benefit; (d) involves
a circumstance in which the liability provisions of Section 605.0406 of the Act are applicable; or (e) constitutes a breach of
duties or obligations under Section 605.04091 of the Act, taking into account any variation of such duties and obligations provided
for in this Agreement. Any indemnity under this Section 15.2 shall be provided out of and to the extent of Company assets only,
and no Member shall have any personal liability on account thereof. The indemnity in this Section 15.2 shall survive the dissolution
and termination of the Company and the termination of this Agreement. The Company shall not pay for any insurance covering liability
of any Manager or of its officers, directors, partners, members, managers, employees, agents, Affiliates, personal representatives,
successors or assigns for actions or omissions for which indemnification is not permitted hereunder; provided, that nothing contained
herein shall preclude the Company from purchasing and paying for such types of insurance, including extended coverage liability
and casualty and worker’s compensation, as would be customary for any Person owning comparable property and engaged in a
similar business or from naming a Manager and any of its Affiliates as additional insured parties thereunder.
Section
15.3 Indemnification of Guarantors. The Company
shall, at its cost and expense, indemnify, defend and hold harmless each Guarantor from and against any and all claims, demands,
losses, damages, liabilities, obligations, lawsuits and other proceedings, judgments and awards, and costs and expenses (including
reasonable attorneys’ fees and expenses) incurred or suffered by such Guarantor in respect of a Loan Guarantee; provided,
however, that no Guarantor shall be entitled to indemnification with respect to any act typically referred to as a “bad
boy” act of the Guarantor. All amounts owed by the Company pursuant to this Section 15.3 shall bear simple interest until
paid at a rate equal to four percent (4%) in excess of the Prime Rate. Any indemnity under this Section 15.3 shall be provided
out of and to the extent of Company assets only, and no Member shall have any personal liability on account thereof. The indemnity
in this Section 15.3 shall survive the dissolution and termination of the Company and the termination of this Agreement.
ARTICLE
XVI
Deadlock
Section
16.1 In the event the Members are unable to agree
on any matter that requires a unanimous vote, approval or consent of the Members eligible to vote, approve or consent with respect
to such matter (including with regard to any matter constituting a Major Decision described in Section 6.2 hereof), the Members
agree to negotiate in good faith to resolve the deadlock within ten (10) Business Days after the time period provided for the
Members to agree upon the matter at issue (or, if no such time period is expressly provided in this Agreement with respect to
such matter, then the Members shall negotiate in good faith to resolve the deadlock within thirty (30) days after the Manager
or a Member requests in writing that the Member(s) approve such matter). In the event that the Members are unable to agree on
such matter within the foregoing time period, then any Member may thereafter, by written notice to the other Members, initiate
a nonbinding mediation proceeding (the “Mediation Request”). The proceeding will be conducted in accordance with the
then current procedures regularly followed by JAMS, The Resolution Experts (“JAMS”), with the following exceptions:
(a) if the Members have not agreed within ten (10) Business Days of the Mediation Request on the selection of a mediator willing
to serve, the mediator shall be selected by such procedures as JAMS regularly follows and shall be a retired judge or other mediator
who is a member of JAMS; and (b) efforts to reach a settlement will continue until the conclusion of the proceedings, which shall
be deemed to occur upon the earliest of the date that: (i) a written settlement is reached, (ii) the mediator concludes and informs
the parties in writing that further efforts would not be useful, (iii) the Members agree in writing that an impasse has been reached
or (iv) a period of twenty (20) Business Days has passed since the appointment of the mediator and none of the events specified
in the foregoing clauses (i), (ii) or (iii) has occurred. Each Member shall pay its own expenses incurred in connection with any
mediation proceeding initiated pursuant to this Section 16.1.
Section
16.2 If a matter which has been submitted to nonbinding
mediation is not resolved by negotiation or by mediation pursuant to Section 16.1 within the time periods set forth in Section
16.1, then (a) the Members shall be entitled to initiate the buy-sell procedure pursuant to Article XI, or, alternatively, (b)
any Member may require, by written notice to the Manager and the other Members, the sale of the Property to a third party in accordance
with this Section 16.2; provided, however, the right to force a sale cannot be exercised after closing of the loan described in
Section 4.3(ii) unless all amounts due thereunder have been or are being paid in full at the closing in connection with such sale
and all Loan Guarantees have been released or all amounts due thereunder have been (or are being in connection with such sale)
assumed by the buyer in such sale and all Loan Guarantees have been released or replaced. The Member initiating a third party
sale shall have the right on behalf of the Company to engage the services of an independent institutional real estate brokerage
firm with at least ten (10) years of experience in the commercial real estate market in the general area where the Property is
located with the written consent of all Members (which consent shall not be unreasonably withheld, conditioned or delayed) to
solicit offers from third parties unaffiliated with any Member or such brokerage firm to purchase the Property. Unless otherwise
determined by the mutual consent of the Members, the Property shall be sold at the highest-priced all cash offer which includes
a full and unconditional release of all Loan Guarantees with respect to any Company indebtedness. The Company shall execute, acknowledge
and deliver such conveyance and other documents and make such payments as shall be required to effectuate the sale in accordance
with any accepted third party offer to purchase. No Member or any Affiliate thereof may purchase the Property under a sale conducted
in accordance with this Section 16.2. In the event that a Member initiates a third party sale of the Property in accordance with
this Section 16.2, no Member shall thereafter have the right to initiate the buy-sell procedure pursuant to Article XI; provided
that, subject to the following sentence, if a sale of the Property has not been consummated within three (3) months after the
Member initiating a third party sale first indicated its intention to place the Property on the market, any Member may thereafter
exercise its rights under Article XI with respect to the buy-sell procedure. Notwithstanding the foregoing, no Member may exercise
its Buy-Sell right if the Property is then the subject of an existing bona-fide contract for sale to a third party under which
the closing date has not yet occurred.
ARTICLE
XVII
Miscellaneous
Provisions
Section
17.1 Dealings in Good Faith; Best Efforts.
Each party hereto agrees to act in good faith with respect to the other parties in exercising its rights and discharging its obligations
under this Agreement. Each party further agrees to use its commercially reasonable best efforts to ensure that the purposes of
this Agreement are realized and to take all steps as are commercially reasonable in order to implement the operational provisions
of this Agreement. Each party agrees to execute, deliver and file any document or instrument reasonably necessary or advisable
to more effectively realize the purposes of this Agreement. Except as otherwise set forth in this Agreement, no Member shall receive
any compensation or profit for services rendered to the Company without the unanimous written consent of the Members.
Section
17.2 Notices. Whenever any notice or other
communication is required or permitted to be given under any provision of this Agreement, such notice or other communication shall
be in writing, signed by or on behalf of the Person giving the notice or other communication, and shall be deemed to have been
given on the earlier to occur of (a) the date of the actual delivery, (b) if mailed by certified or registered mail, return receipt
requested, with postage prepaid, when delivered, provided that, if the addressee refuses to accept delivery, then such notice
or other communication shall be deemed to have been given on the date when delivery is refused, (c) if deposited for next day
delivery with a nationally recognized courier service, fees prepaid, the first Business Day following deposit with the courier
service for delivery or (d) if by facsimile or any form of electronic transmission, on the day that such facsimile or electronic
transmission is transmitted (provided, however, that the sender receives an automated or other written confirmation of receipt
thereof) to the respective address(es), fax number(s) or e-mail address(es) of the Member or Manager to whom such notice is to
be given as set forth on the signature page(s) of this Agreement, or at such other address, fax number or e-mail address of which
such Member or Manager shall have given written notice to the other parties hereto as provided in this Section 17.2. For purposes
of this Agreement, the term “electronic transmission” means any form of communication not directly involving the physical
transmission of paper that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be
directly reproduced in paper form by such a recipient through an automated process.
Section
17.3 Integration. This Agreement sets forth
all (and is intended by all parties hereto to be an integration of all) of the promises, agreements, covenants, conditions, understandings,
warranties and representations among the parties hereto with respect to the Company, the Company business and the property of
the Company, and there are no promises, agreements, conditions, understanding, warranties, or representations, oral or written,
express or implied, among them other than as set forth herein.
Section
17.4 Governing Law. It is the intention
of the parties that all questions with respect to the construction of this Agreement and the rights and liabilities of the parties
hereto shall be determined in accordance with the laws of the State of Florida.
Section
17.5 Venue. Each of the Members, the Manager
and the Company consents to the jurisdiction of any court in Miami, Florida for any action arising out of matters related to this
Agreement. Each of the Members, the Manager and the Company waives the right to commence an action in connection with this Agreement
in any court outside of Miami, Florida.
Section
17.6 Waiver of Jury Trial. TO THE FULLEST
EXTENT NOT PROHIBITED BY APPLICABLE LAW, WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY
AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER,
REMEDY OR DEFENSE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE COMPANY, WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE,
OR WITH RESPECT TO ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING
TO THIS AGREEMENT; AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY. EACH OF
THE PARTIES HERETO FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LITIGATION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH
ANY OTHER LITIGATION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED. FURTHER, EACH OF THE PARTIES HERETO HEREBY CERTIFIES
THAT NONE OF ITS REPRESENTATIVES, AGENTS OR ATTORNEYS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN THE EVENT
OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT
THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO THE ACCEPTANCE OF THIS AGREEMENT BY THE OTHER PARTIES HERETO.
Section
17.7 Binding Effect. This Agreement shall
be binding upon, and inure to the benefit of, the parties hereto and their respective spouses, heirs, executors, administrators,
personal and legal representatives, successors and permitted assigns.
Section
17.8 Related Parties. The fact that a Person
is a Member or employed by, or directly or indirectly interested in or connected with, a Member shall not in any manner prohibit
or restrict the Company from entering in to a contract or agreement with or employing such Person, provided it has first obtained
the unanimous written consent of the Members.
Section
17.9 Successors and Assigns. Subject to the
restrictions on Transfer set forth herein, this Agreement, and each and every provision hereof, shall be binding upon and shall
inure to the benefit of the Members, their respective successors, heirs and assigns, and each and every successor-in-interest
to any Member, whether such successor acquires such interest by way of gift, purchase, foreclosure, or by any other method, shall
hold such interest subject to all of the terms and provisions of this Agreement.
Section
17.10 Third Party Beneficiaries. Nothing contained in
this Agreement is intended to benefit any third parties not specifically herein enumerated, and no Person is entitled to any benefits
as a third party beneficiary hereunder on account of any obligation of the Members to make capital or other contributions or loans
hereunder or to make payments of any nature or to perform any other obligation as required hereunder; it being expressly understood
that the benefits, duties and obligations of any of the Members hereunder are solely and exclusively the rights and obligations
of said Members and are not intended to benefit any third parties unless expressly stated to the contrary herein.
Section
17.11 Waiver. Any waiver by any Member, the Manager or the Company of any
of its rights or remedies under this Agreement or of any breach or violation of or default under this Agreement must be in writing
and signed by the party to be charged thereunder. The failure of any Member to insist upon strict performance of a covenant hereunder
or of any obligation hereunder, irrespective of the length of time for which such failure continues, shall not be a waiver of
such Member’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach
or default in the performance of any obligation hereunder, shall constitute a consent or waiver to or of any other breach or default
in the performance of the same or any other obligations hereunder.
Section
17.12 Counterparts. This Agreement may be executed in any number
of counterparts, all of which together shall for all purposes constitute one Agreement, binding on all the Members notwithstanding
that all Members have not signed the same counterpart. In addition, any counterpart signature page may be executed by any Member
or the Manager wheresoever such Person is located, and may be delivered by facsimile or any form of electronic transmission (including
via e-mail of portable document format (PDF) copies), and any such facsimile or electronically transmitted signature pages may
be attached to one or more counterparts of this Agreement, and such faxed or electronically transmitted signature(s) shall have
the same force and effect, and be as binding, as if original signatures had been executed and delivered in person.
Section
17.13 Partial Invalidity. Each provision of this Agreement
is intended to be severable. If any term or provision of this Agreement shall be deemed to be invalid or unenforceable by a court
of competent jurisdiction, such invalidity or unenforceability shall not affect the remaining provisions, all of which shall remain
in full force and effect.
Section
17.14 Attorneys’ Fees. Should any litigation be commenced
between the parties hereto or their representatives or should any party institute any proceeding in a bankruptcy or similar court
which has jurisdiction over any other party hereto or any or all of such party’s or parties’ property or assets concerning
any provision of this Agreement or the rights and duties of any Person in relation thereto, the party or parties prevailing in
such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for such party’s
or parties’ attorneys’ fees, and court costs in such litigation which shall be determined by the court in such litigation
or in a separate action brought for that purpose. In addition, any prevailing party shall be entitled to recover costs of enforcing
a judgment, including attorneys’ fees, and any ultimately prevailing party shall be entitled to recover costs of appeal,
including attorneys’ fees.
Section
17.15 Remedies in Equity. The rights and remedies of any of
the Members hereunder shall not be mutually exclusive, except as specifically provided herein to the contrary, i.e., the exercise
of one or more of the provisions hereof shall not preclude the exercise of any other provisions hereof. Each of the Members confirms
that damages at law will be an inadequate remedy for a breach or threatened breach of this Agreement and agree that, in the event
of a breach or threatened breach of any provision hereof, the respective rights and obligations hereunder shall be enforceable
by specific performance, injunction or other equitable remedy, but nothing herein contained is intended to, nor shall it, limit
or affect any rights at law or by statute or otherwise of any party aggrieved as against the other for a breach or threatened
breach of any provision hereof, it being the intention by this Section to make clear the agreement of the Members that the respective
rights and obligations of the Members hereunder shall be enforceable in equity as well as at law or otherwise. Nothing herein
contained shall have the effect, or be construed to have the effect, of giving to, or vesting in, any Persons not a party to this
Agreement any rights or remedies of any kind whatsoever for a breach or threatened breach of this Agreement.
Section
17.16 Recalculation of Interest. If any applicable law
is ever judicially interpreted so as to deem any distribution, contribution, payment or other amount received by any Member or
the Company under this Agreement as interest and so as to render any such amount in excess of the maximum rate or amount of interest
permitted by applicable law, then it is the express intent of the Members and the Company that all amounts in excess of the highest
lawful rate or amount theretofore collected be credited against any other distributions, contributions, payments or other amounts
to be paid by the recipient of the excess amount or refunded to the appropriate Person, and the provisions of this Agreement immediately
be deemed reformed, without the necessity of the execution of any new document, so as to comply with the applicable law, but so
as to permit the payment of the fullest amount otherwise required hereunder. All sums paid or agreed to be paid that are judicially
determined to be interest shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout
the term of such obligation so that the rate or amount of interest on account of such obligation does not exceed the maximum rate
or amount of interest permitted under applicable law.
[Signature
page(s) follow.]
IN
WITNESS WHEREOF, the undersigned parties have signed this Agreement as of the day and year first above written.
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MEMBERS: |
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JIK TAFT VINELAND LLC, |
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a Delaware limited liability
company |
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By: |
/s/
Stephen Braun |
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Name: Stephen Braun |
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Title: Senior Vice President |
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Contact for Notices: |
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7900 Miami Lakes Drive West |
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Miami Lakes, Florida 33016 |
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Attn: Thomas Bartelmo, President |
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Fax: (305) 824-0455 |
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E-mail: tbartelmo@kislak.com |
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COURTELIS PROMENADE ASSOCIATES,
LLC, |
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a Florida limited liability
company |
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By: |
Newcaster Devcorp, Inc., |
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a Florida corporation |
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its manager |
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By: |
/s/ Elias
Vassilaros |
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Elias Vassilaros |
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Executive Vice President |
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Contact for Notices: |
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703 Waterford Way, Suite 800 |
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Miami, Florida 33126-4677 |
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Attn: Elias Vassilaros |
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Fax: (305) 261-4338 |
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E-mail: evassilaros@courtelis.com |
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MEMBERS: |
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HMG
ORLANDO, LLC, a Delaware limited liability company |
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By: |
HMG/Courtland
Properties, Inc., a Delaware corporation, its manager |
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By: |
/s/
Maurice Wiener |
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Maurice
Wiener, President |
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Contact
for Notices: |
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1870
South Bayshore Drive |
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Miami,
FL 33133 |
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Fax:
(305) 856-7342 |
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E-mail: lrothstein@hmgcourtland.com |
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AND
whemingway@hmgcourtland.com |
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AND
Carmarotti@hmgcourland.com |
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MANAGER: |
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COURTELIS PROMENADE ASSOCIATES,
LLC, |
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a Florida limited liability
company |
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By: |
Newcaster Devcorp, Inc., |
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a Florida corporation |
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its manager |
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By: |
/s/ Elias
Vassilaros |
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Elias Vassilaros |
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Executive Vice President |
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Contact for Notices: |
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703 Waterford Way, Suite 800
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Miami, Florida 33126-4677 |
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Attn: Elias Vassilaros |
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Fax: (305) 261-4338 |
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E-mail: evassilaros@courtelis.com
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Exhibits:
EXHIBIT
31A: CERTIFICATION REQUIRED UNDER SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Maurice
Wiener, certify that:
1. I have
reviewed this quarterly report on Form 10-Q of HMG/Courtland Properties, Inc.
2.
Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this quarterly report;
3. Based
on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in
all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods
presented in this quarterly report;
4. The registrant’s
other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f) for the registrant and have:
a)
designed such disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)), or caused such disclosure controls
and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this
quarterly report is being prepared;
b)
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed
under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles;
c)
evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions
about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on
such evaluation; and
d)
disclosed this report any change in the registrant’s internal control over financial reporting that occurred during the
registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the
registrant’s internal control over financial reporting;
5. The registrant’s
other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting,
to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the
equivalent function):
a)
all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant’s
ability to record, process, summarize and report financial data and have identified for the registrant’s auditors any material
weaknesses in internal controls; and
b)
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s
internal controls over financial reporting.
Date: November
14, 2014
/s/
Maurice Wiener |
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Maurice Wiener, Principal Executive Officer |
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Exhibits:
EXHIBIT
31B: CERTIFICATION REQUIRED UNDER SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Carlos
Camarotti, certify that:
1.
I have reviewed this quarterly report on Form 10-Q of HMG/Courtland Properties, Inc.
2.
Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this quarterly report;
3.
Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present
in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods
presented in this quarterly report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined
in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:
a)
designed such disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)), or caused such disclosure controls
and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this
quarterly report is being prepared;
b)
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed
under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles;
c)
evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions
about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on
such evaluation; and
d)
disclosed this report any change in the registrant’s internal control over financial reporting that occurred during the
registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the
registrant’s internal control over financial reporting;
5.
The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control
over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors
(or persons performing the equivalent function):
a)
all significant deficiencies in the design or operation of internal controls which could adversely affect the registrant’s
ability to record, process, summarize and report financial data and have identified for the registrant’s auditors any material
weaknesses in internal controls; and
b)
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s
internal controls over financial reporting.
Date: November
14, 2014
/s/ Carlos Camarotti |
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Carlos Camarotti, Principal Financial Officer |
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EXHIBIT
32
CERTIFICATION
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED
PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In connection
with the Quarterly Report of HMG/Courtland Properties, Inc. (the “Company”) on Form 10-Q for the period ending September
30, 2014 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Maurice Wiener,
Principal Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the
Sarbanes-Oxley Act of 2002, that:
(1)
The Report fully complies with the requirements of section 13 or 15(d) of the Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations
of the Company for the periods indicated in the Report.
/s/ Maurice Wiener |
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Principal Executive Officer |
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HMG/Courtland Properties, Inc. |
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CERTIFICATION
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED
PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In connection
with the Quarterly Report of HMG/Courtland Properties, Inc. (the “Company”) on Form 10-Q for the period ending September
30, 2014 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Carlos Camarotti,
Principal Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the
Sarbanes-Oxley Act of 2002, that:
(1)
The Report fully complies with the requirements of section 13 or 15(d) of the Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations
of the Company for the periods indicated in the Report.
/s/ Carlos Camarotti |
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Principal Financial Officer |
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HMG/Courtland Properties, Inc. |
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