17 Magi Cons Oper Agree

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THE MEMBERSHIP INTERESTS CREATED BY THIS AGREEMENT HAVE NOT BEENREGISTERED UNDER THE SECURlTIES ACT OF 1933, AS AMENDED, OR THE FLORlDASECURlTIES ACT AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONSFROM THE REGISTRATION REQUIREMENTS OF SUCH ACTS. THE INTERESTS MAY NOT BESOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT REGISTRATION UNDERSUCH ACTS OR AN OPINION OF COUNSEL THAT SUCH TRANSFER MAY BE LEGALLYAFFECTED WITHOUT SUCH REGISTRATION. ADDITIONAL RESTRICTIONS ON TRANSFERAND SALE ARE SET FORTH IN THIS AGREEMENT.

MAGI CONSTRUCTION, LLCA Florida Limited Liability Company

OPERATING AGREEMENT


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TABLE OF CONTENTS

1. Defined Terms ........................................................................................................................ 12. Organization ........................................................................................................................... 4

2.1 Certificate of Formation ............................................................................................. 42.2 Term .......................................................................................................................... 42.3 No State-Law Partnership .......................................................................................... 4

3. Name; Place of Business; Registered Office and Agent.. ....................................................... 43.1 Natne .......................................................................................................................... 43.2 AssUllled Natnes ......................................................................................................... 43.3 Registered Office; Registered Agent; Principal Office in the United States; Other

Offices ................................................................................................. ; .................. 44. Purpose ................................................................................................................................... 54.1 Purpose ....................................................................................................................... 54.2 Limitations on Scope of Business .............................................................................. 5

5. Capital Contributions and Interests ......................................................................................... 55.1 Capital Contributions ................................................................................................. 55.2 Interests ...................................................................................................................... 55.3 No Further Capital Contributions .............................................................................. 55.4 Capital Call ................................................................................................................ 55.5 Capital Accounts ........................................................................................................ 85.6 Return of Capital Contributions ................................................................................. 85.7 Interest ......................................................................................................... , ............ 85.8 Loans From Members ................................................................................................ 85.9 Ownership of Company Property .............................................................................. 8

6. Allocations and Distributions .................................................................................................. 96.1 Allocation of Income and Loss .................................................................................. 96.2 Determination of Income and Loss ............................................................................ 96.3 Cash Distributions ...................................................................................................... 96.4 Distributions of Other Property ................................................................................. 96.5 Qualified Income Offset .......................................................................................... 10

7. Fiscal Matters; Books and Records ...................................................................................... 107.1 Bank Accounts; Investments .................................................................................... 107.2 Records Required by LLC Law; Right ofInspection .............................................. 107.3 Books and Records of Account ................................................................................ 117.4 Tax Returns and Information ................................................................................... 117.5 Delivery of Financial Statements to Members ......................................................... 117.6 Tax Elections ........................................................................................................... 11

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7.7 Tax Matters Partner. ................................................................................................. 128. Management of the Company ............................................................................................... 13

8.1 Management. ............................................................................................................ 138.2 Powers ofManagers ................................................................................................ 138.3 Limitations on Powers ofManager .......................................................................... 158.4 Dispute Resolution .................................................................................................. 158.5 Number; Tenure ....................................................................................................... 168.6 Vacancies ................................................................................................................. 168.7 No Meetings of the Manager Required .................................................................... 168.8 Compensation .......................................................................................................... 168.9 Resignation and Remova l ........................................................................................ 168.10 Action by Written Consent ...................................................................................... 168.11 Power ofAttorney ................................................................................................... 168.12 Officers and Other Agents ....................................................................................... 168.13 Fiduciary Duties; Liability ....................................................................................... 17

9. Rights , Powers and Obligations ofMembers ....................................................................... 189.1 Members .................................................................................................................. 189.2 Admission ofAdditional Members .......................................................................... 189.3 Liability for Debts Obligations or Liabilities of the Company ............................... 199.4 Authority; Liabi lity to Third Parties ........................................................................ 199.5 Sale ofNew or Addit ional Interests ......................................................................... 199.6 No Fiduciary Duties; Conflicts of Interest ............................................................... 199.7 Withdrawal. ............................................................................................................. 20

. 9.8 Involuntary Termination ofMember's Interest and Purchase Price ........................ 209.9 Compensation .......................................................................................................... 229.10 Financial Guaranties and Sureties ............................................................................ 229.11 Contribution and Indemnification for Guaranteed Debt and Obligations ............... 22

10. Meetings ofMembers ........................................................................................................... 2310.1 Member Representatives ......................................................................................... 2310.2 Place ofMeet ings .................................................................................................... 2410.3 Annual Meeting ....................................................................................................... 2410.4 Regular Meet ings ..................................................................................................... 2410.5 Special Meetings ...................................................................................................... 2410.6 Notice ....................................................................................................................... 2410.7 Waiver ofNotice ...................................................................................................... 2410.8 Quorum .................................................................................................................... 2510.9 Manner ofActing; Voting ....................................................................................... 2510.10 Action by Unanimous Written Consent.. .............................................................. 2510.11 Proxies .................................................................................................................. 2510.12 Information ........................................................................................................... 26

11. Personne l .............................................................................................................................. 2611.1 Project Personnel ..................................................................................................... 26

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12. [INTENTIONALLY RESERVED] ...................................................................................... 2613. Transfers of Interest .............................................................................................................. 26

13.1 Transfers of Interest ................................................................................................. 2613.2 Effect of Transfer of Interest. ................................................................................... 2713.3 Admission of Transferee as Member. ...................................................................... 2714. Winding Up ........................................................................................................................... 28

14.1 Events Requiring Winding Up ................................................................................ 2814.2 Winding Up .......................................................................... : ................................. 2814.3 Compensation .......................................................................................................... 2914.4 Distribution ofCompany Property and Proceeds of Sale Thereof .......................... 2914.5 Final Audit ............................................................................................................... 2914.6 Terminatioll ............................................................................................................. 3014.7 Deficit Capital Accounts .......................................................................................... 3015. Indemnification and Insurance ............................................................................................. 30

15.1 Indemnification and Advance of Expenses ............................................................. 3015.2 Insurance .................................................................................................................. 3015.3 Limit on Liability ofMembers ................................................................................ 3016. Miscellaneous Provisions ..................................................................................................... 30

16.1 Entire Agreement ..................................................................................................... 3016.2 Law Governing ........................................................................................................ 3016.3 Successors and Assigns ............................................................................................ 3116.4 Severability .............................................................................................................. 3116.5 Amendment ............................................................................................................. 3116.6 Headings .................................................................................................................. 3116.7 Construction ............................................................................................................. 3116.8 Offset. ....................................................................................................................... 3116.9 Effect ofWaiver or Consent .................................................................................... 3116.10 Further Assurances ................................................................................................ 3116 11 Waiver ofCertain Rights ...................................................................................... 3116.12 Counterparts and Binding Effect .......................................................................... 32

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MAGI CONSTRUCTION, LLCA Florida Limited Liability Company

OPERATING AGREEMENT*****

Date: May 17,2010

This Operating Agreement (the "Company Agreement") of MAGI CONSTRUCTION,LLC, a Florida limited liability company, is made and entered into effective as of the date setforth above by the undersigned Members of the Company.1. Defined Terms.

The capitalized terms used in this Company Agreement shall, unless the contextotherwise requires, have the meanings specified in this Article 1."AsSignee" shall mean a transferee of an Economic Interest or an Interest who has notbeen admitted as a substitute Member in accordance with this Company Agreement. AnAssignee shall have merely an Economic Interest in the Company and shall have no right toparticipate in the management and operation of the business and affairs of the Company until andunless such Assignee is admitted as a substitute Member in accordance with this CompanyAgreement."Bankruptcy" means with respect to any Member, (i) the commencement by such

Member of any proceeding seeking relief under any provision or chapter of the federalBankruptcy Code or any other federal or state law relating to insolvency, bankruptcy,arrangement, readjustment of debt, receivership, trusteeship, liquidation or reorganization; (ii) anadjudication that such Member is insolvent or bankrupt; (iii) the entry of an order for relief underthe federal Bankruptcy Code with respect to such Member; (iv) the filing of any such petition orthe commencement of any such case or proceeding against such Member, unless such petitionand the case or proceeding initiated thereby are dismissed within sixty (60) days from the date ofsuch filing; (v) the filing of an answer by such Member admitting the material allegations of anysuch petition; (vi) the appointment of a trustee, receiver or custodian for all or substantially all ofthe assets of such Member unless such appointment is vacated or dismissed within sixty (60)days from the date of such appointment but not less than five (5) days before the proposed sale ofany assets of such Member; (vii) the insolvency of such Member or the execution by suchMember of a general assignment for the benefit of creditors; (viii) the convening by suchMember of a meeting of its creditors, or any class thereof, for purposes of effecting a moratoriumupon or extension or composition of its debts; (ix) the failure of such Member to pay its debts asthey mature; (x) the levy, attachment, execution or other seizure of substantially all of the assetsof such Member where such seizure is not discharged within thirty (30) days thereafter; (xi) theadmission by such Member in writing of its inability to pay its debts as they mature or that it isgenerally not paying its debts as they become due; or (xii) such Member's Interest becoming

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subject to garnishment, sequestration, attachment, levy, or any similar remedy by anyprejudgment or post-judgment creditor."Business Day" means any day other than a Saturday, Sunday and those legal public

holidays specified in 5 U.S.C. 6103(a), as may be amended from time to time."Capital Account" means the Capital Account maintained for each Member pursuant toSection 5.4 of this Company Agreement."Capital Contribution" means the total amount of cash or property contributed to theCompany by all the Members or anyone Member, as the case may be."Certificate of Formation" means the Articles of Organization of the Companydescribed in Section 2.1 of this Company Agreement, as amended from time to time."LLC Law" means the applicable provisions of the Florida Business Organizations Codeand other Florida law to the extent applicable to limited liability companies, each as amendedfrom time to time."Company" means MAGI CONSTRUCTION, LLC, as such limited liability companymay from time to time be constituted."Company Agreement" means this Operating Agreement, including Schedule A, asoriginally executed and as subsequently amended from time to time.'''Company Property or Properties" means all interests, properties and rights of anytype owned by the Company, whether owned by the Company at the date of its formation orthereafter acquired."Contract" means the design-build contract between the Company and the CommunityMaritime Park Association dated May 17, 2010 for the construction of the site improvement andpublic improvements which are part of the Vince Gibbs Community Maritime Park Project inPensacola, Florida, as it may be amended from time to time."Economic Interest" shall mean a Member's or Assignee's share of the Company'sprofits, losses, and distributions of Company Property pursuant to this Company Agreement andthe LLC Act, but shall not include any right to participate in the operation, management oraffairs of the Company, including the right to vote on, consent to, or otherwise participate in anydecision ofthe Members."Initial Members" means those persons listed on Schedule A hereto."Interest" means an ownership interest of a Member in the Company, including suchMember's Percentage Interest and Capital Account and any and all benefits to which the holder

of such Interest may be entitled as provided in this Company Agreement, together with allobligations of such Person to comply with the terms of this Company Agreement."IRC" means the Internal Revenue Code of 1986, as amended.

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"Majority-in-Interest of the Members" means Members holding more than fiftypercent (50%) of the Interests in the Company."Manager" means, at any time, the Person who is then managing the business of theCompany in accordance with Article 8 of his Company Agreement."Members" means at any time, the Persons who then own Interests in the Company.The Members are listed on Schedule A hereto."Net Cash Flow" means gross cash proceeds from Company operations, less the portionthereof used to payor establish reserves for all Company expenses, debt payments, capitalimprovements, replacements and contingencies, all as determined by the Manager. "Net CashFlow" shall not be reduced by depreciation, amortization, cost recovery deductions or similarallowances, but shall be increased by any reductions in reserves previously established pursuantto the first sentence of this definition of "Net Cash Flow"."Notification" means a writing containing any information required by this CompanyAgreement to be communicated to any Person, which may be personally delivered, sent byregistered or certified mail, postage prepaid, sent by facsimile transmission or sent by nationallyrecognized overnight courier, to such Person, at the last known address or facsimile number ofsuch Person on the Company records. Any such Notification shall be deemed to be given (i)when delivered, in the case of personal delivery, (ii) five (5) days after the date on which it isdeposited in the United States mail with postage paid in an envelope addressed and sent asaforesaid, in the case of mail, (iii) upon successful transmission in the case of facsimiletransmission, provided that a copy of the notice is also sent by another means permittedhereunder, and (iv) one Business Day after being sent by nationally recognized overnightcourier."Percentage Interest" means the percentage ownership interest of a Member in theCompany from time to time. The initial Percentage Interest of each Member is set forth oppositesuch Member's name on Schedule A hereto."Person" means any natural person, limited liability company, general partnership,limited partnership, corporation, joint venture, trust, cooperative or association."Schedule A" means the schedule attached hereto and labeled "Schedule A""Terminating Event" means, with respect to any Member, (a) the Bankruptcy of suchMember, (b) the withdrawal of such Member in accordance with this Company Agreement, (c)the dissolution of such Member, or (d) any Transfer or purported Transfer of such Member'sInterest in violation of this Company Agreement."Transfer" means any change in the ownership of an Interest, whether made voluntarilyor involuntarily by operation of law, including, but not limited to, the following:

1. a transfer, sale, assignment or gift to any Person;

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2. a general assignment for the benefit of creditors, or any assignment to a creditorresulting from the creditor's foreclosure upon or execution against such Interest;3. the filing by the transferor Member of a voluntary Bankruptcy petition; or4. the entry of a judicial order granting the relief requested by the petitioner in aninvoluntary Bankruptcy proceeding filed against the transferor Member.

"Work" means the work to be performed under the Contract.2. Organization.

2.1 Certificate of Formation. The Certificate of Formation for the Company wasfiled with, and a written acknowledgement of filing was received from, the Secretary of State ofFlorida on January 20,2009. On May 17, 2010, an amendment to the Certificate of Formationfor the Company was filed with the Secretary ofState of Florida, and the Members hereby ratify,approve and confirm the filing of such amendment.

2.2 Term. Pursuant to the LLC Law, the existence of the Company began upon theeffective date of the Certificate of Formation. The Company shall exist until the completion ofall Work under the Contract and the settlement of any disputes and the expiration of allwarranties arising in connection with the Work.2.3 No State-Law Partnership. No provision of this Company Agreement shall bedeemed or construed to constitute the Company as a partnership (including, without limitation, alimited partnership) or joint venture, or any Member as a partner or joint venturer.

3. Name; Place of Business; Registered Office and Agent.3.1 Name. The name of the Company is ''MAGI CONSTRUCTION, LLC."3.2 Assumed Names. The Manager may cause the Company to do business underone or more assumed names. In connection with the use of any such assumed names, theManager shall cause the Company to comply with the laws ofthe State of Florida.3.3 Registered Office; Registered Agent; Principal Office in the United States;Other Offices. The registered office of the Company required by the LLC Law to be maintainedin the State of Florida shall be the registered office named in the Certificate ofFormation or suchother office (which need not be a place of business of the Company) as the Manager maydesignate from time to time in the manner provided by law. The registered agent of theCompany in the State of Florida shall be the registered agent named in the Certificate of

Formation or such other Person or Persons as the Manager may designate from time to time inthe manner provided by law. The principal office of the Company shall be at such place as theManager shall designate from time to time. The Company may have such other offices as theManager may designate from time to time.

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4. Purpose.4.1 Purpose. The sole purpose of the Company is to perform the Contract and to

engage in any other business or activity that may be incidental, proper, advisable or convenientto accomplish the foregoing purpose.4.2 Limitations on Scope of Business. It is expressly understood that neither theManager nor the Members will cause the Company to bid for or undertake any contracts otherthan the Contract, nor will the Company undertake any development work. Nothing in thisAgreement shall be construed as a limitation on the powers or right of the Manager and each ofthe Members to carryon its separate business for its sole benefit.

5. Capital Contributions and Interests.5.1 Capital Contributions. Each Member has contributed to the capital of theCompany the amount set forth as such Member's Capital Contribution on Schedule A.5.2 Interests.

A. Percentage Interests. Upon making the Capital Contribution specified onSchedule A, each Member shall own the Percentage Interest set forth opposite suchMember's name on Schedule A. The Percentage Interest shall be adjusted in the eventadditional capital contributions are made by one or more Member(s) pursuant to 5.3 and5.4.

B. No Certificates Representing Interests. The Interests of the Members shallnot be evidenced by certificates.5.3 No Further Capital Contributions. No Member shall be obligated to make any

Capital Contribution other than that set forth opposite such Member's name on Schedule Aexcept as provided in 5.4 The Manager shall not permit or accept any Capital Contributions byany Member beyond those specified on Schedule A except as provided in 5.4.5.4 Capital Call. The Manager will monitor the financial status of the Company and

may issue a capital call to all Members if the Company's current cash position and anticipatedcash flow is insufficient to meet the obligations of the Company over the applicable period asprojected by the Manager.A. Capital Contribution Amounts. Within ten (10) Business Days after receipt

of a capital call from the Manager, each Member will be required to make a capitalcontribution to the Company equal to the amount specified in the capital call multipliedby such Member's Percentage Interest. In the event that one Member makes an additionalcapital contribution as required by a Capital Call, and the other Member fails to make itsrequired additional capital contribution within ten (10) Business Days after the CapitalCall, the Company shall, upon request by the contributing Member, promptly refund orreturn the additional capital contribution made by the contrib:uting Member.

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B. Fonn of Additional Capital Contribution. Additional capital contributionsmay be in the fonn of cash, equipment or materials, as detennined and approved by theManager. Unless otherwise agreed by the Manager, all additional capital contributionswill be in cash in U.S. dollars. In the event that the Manager approves a Member'scontribution of equipment or material, the contributing Member shall provide theManager and the other Member with a schedule listing the equipment or material to becontributed, and the Manager shall detennine the value of such equipment of material forthe purposes of the Member's additional capital contribution; provided, that if anyequipment or material is contributed by the Manager in its capacity as a Member, thevalue of such equipment or material shall be subject to agreement by all Members. Titleto the equipment or material shall vest in the Company free and clear of any liens andencumbrances, and the contributing Member shall execute and delivery any and allconveyance documents requested by the Manager in order to vest title to such equipmentor material in the Company. Upon contribution of any equipment or material, theCompany shall assume all maintenance and operating costs with respect to suchequipment or material. The Member contributing equipment or material shall assign anywarranties or other similar rights with respect to such equipment or material to theCompany. In the event that any such warranties or other rights are not assignable, thecontributing Member shall cooperate with the Company and, to the extent reasonablypossible, make the benefits of such warranties or other rights available to the Company.

C. Failure to Make Timely Contribution Following Capital Call.(1) In the event a Member (the "Delinquent Member") does not makeits full contribution (the "Delinquent Contribution") following a capital call, the otherMember which makes its full contribution following a capital call (the "FundingMember") may, at its sale discretion, advance to the Company, in cash, within thirty (30)days following the date of the capital call, an amount equal to the Delinquent

Contribution, and such advance by the Funding Member shall be treated as a full recoursedemand loan by the Funding Member to the Delinquent Member (a "Member Loan").The Member Loan shall bear interest at a per annum rate equal to three percent (3%)above the prime rate as published in the "Money Rates" section ofthe Wall Street Journalon the date on which the Member Loan is advanced, or on the next Business Day, if theMember Loan is not advanced on a Business Day. The principal amount of the MemberLoan, together with interest, shall be payable in full by the Delinquent Member upondemand by the Funding Member. Partial payments of any Member Loan shall be appliedfirst to accrued but unpaid interest and second to payment of principal. The MemberLoan shall be deemed to be secured by a pledge of the Delinquent Member's entireInterest in the Company, and each Member hereby pledges and assigns its Interest in theCompany to the other Member for the purpose of securing any Member Loan made tosuch Member, such pledge and assignment to become effectively immediately upon theadvance of a Member Loan to such Member. Any Funding Member shall be entitled tofile financing statements in all applicable jurisdictions in order to evidence its securityinterest in the Delinquent Member's interest. With respect to any pledge of theDelinquent Member's Interest, the Funding Member shall be entitled to all of the rightsof a secured party under the Uniform Commercial Code as then in effect in the State ofFlorida.

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(2) As of the effective date of each Member Loan, the DelinquentMember shall be deemed to have contributed an amount equal to the principal amount ofthe Member Loan to the capital of the Company, and the capital account of theDelinquent Member shall be credited with a like amount. Notwithstanding any otherprovision of this Company Agreement, until such Member Loan is repaid in full, (i) theDelinquent Member shall continue to be bound by the provisions of this CompanyAgreement; (ii) the Delinquent Member' s Interest in the Company shall be an EconomicInterest only, and the Delinquent Member shall have no right to participate in theoperation, management or affairs of the Company, including the right to vote on, consentto, or otherwise participate in any decision of the Members (provided that the DelinquentMember's consent or approval shall be required for any amendment to this OperatingAgreement unless the principal amount of the Member Loan equals or exceeds the capitalaccount balance of the Delinquent Member); and (iii) the Delinquent Member shall drawno further distributions from the Company, and all cash and property otherwisedistributable with respect to the Delinquent Member's Interest (or fees or expensespayable to the Delinquent Member or its affiliates by the Company) shall be distributedto the Funding Member in repayment of the outstanding balance of the Member Loan,with such funds being first applied to reduce any and all interest accrued on such MemberLoan and then to reduce the principal amount thereof. Any amounts so applied asprovided in (iii) above shall be treated, for all purposes under this Company Agreement,as having been distributed or paid, as applicable, to the Delinquent Member and appliedby the Delinquent Member to repay the outstanding Member Loan.

(3) If upon demand by the Funding Member the Member Loan is notrepaid in full by the Delinquent Member, the Funding Member shall elect one of thefollowing options within thirty (30) days after demanding repayment of the MemberLoan: (i) to pursue all remedies available to the Funding Member at law or equity to seekrepayment of the Member Loan and accrued interest thereon, or (ii) to contribute all ofthe outstanding principal of, and accrued but unpaid interest on, such Member Loan tothe capital of the Company and dilute the Interest of the Delinquent Member inaccordance with the provisions of (4) and (5) below.

(4) If the Funding Member elects to contribute all of the outstandingprincipal of, and all accrued but unpaid interest on, a Member Loan to the capital of theCompany as provided in (3) above, (i) the amount of such outstanding principal andinterest so contributed shall be deemed repaid and satisfied, (ii) the amount of suchoutstanding principal and interest shall be deemed to have been distributed to theDelinquent Member and debited from the capital account of the Delinquent Member, and(iii) the capital account of the Funding Member shall be increased by the amount of suchoutstanding principal and interest so contributed.

(5) Upon contribution of the outstanding principal of, and accrued butunpaid interest on, any Member Loan by the Funding Member pursuant to (4) above, thePercentage Interest of each Member shall be adjusted to equal the percentage determinedby dividing the amount of such Member's aggregate capital contributions by the amountof the aggregate capital contributions of all Members.

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5.5 Capital Accounts. A capital account shall be established and maintained foreach Member. Each Member' s capital account (a) shall be increased by (i) the amount of moneycontributed by that Member to the Company, (ii) the fair market value of property contributed bythat Member to the Company (net of liabilities secured by the contributed property that theCompany is considered to assume or take subject to Section 752 of the IRC), and (iii) allocationsto that Member of Company income and gain (or items thereof), including income and gainexempt from tax and income and gain described in Treas. Reg. 1.704-1(b)(2)(iv)(g), butexcluding income and gain described in Treas. Reg. 1.704-1(b)(4)(i), and (b) shall be decreasedby (i) the amount of money distributed to that Member by the Company, (ii) the fair marketvalue of property distributed to that Member by the Company (net of liabilities secured by thedistributed property that the Member is considered to assume or take subject to Section 752 ofthe IRC), (iii) allocations to that Member of expenditures of the Company described in Section705(a)(2)(B) of the IRC, and (iv) allocations of Company loss and deduction (or items thereof,including loss and deduction described in Treas. Reg. 1.704-1(b)(2)(iv)(g), but excluding itemsdescribed in clause (b )(iii) above and loss or deduction described in Treas. Reg. 1.704-1 (b)(4)(i)or 10704-1(b)(4)(iii). The Members' capital accounts also shall be maintained and adjusted aspermitted by the provisions of Treas. Reg. 1.704-1(b)(2)(iv)(f) and as required by the otherprovisions of Treas. Reg. 1.704-1(b)(2)(iv) and 1.7041(b)(4), including adjustments to reflectthe allocations to the Members of depreciation, depletion, amortization and gain or loss ascomputed for book purposes rather than the allocation of the corresponding items as computedfor tax purposes, as required by Treas. Reg. 1.704-1(b)(2)(iv)(g). A Member that has more thanone futerest shall have a single capital account that reflects all its futerests, regardless of the classof Interests owned by that Member and regardless of the time or manner in which those Interestswere acquired. On the transfer of all or part of an futerest, the capital account of the transferorthat is attributable to the transferred Interest or part thereof shall carryover to the transfereeMember in accordancewith the provisions of Treas. Reg. 1.704-1 (b )(2)(iv)(1).

5.6 Return of Capital Contributions. Except as otherwise provided herein or in theLLC Law, no Member shall have the right to withdraw, or receive any return of, his CapitalContribution.

5.7 Interest. No interest shall be paid by the Company on Capital Contributions oron balances in Members' Capital Accounts.

5.8 Loans From Members. Loans by a Member to the Company shall not beconsidered Capital Contributions. If any Member shall advance funds to the Company in excessof the amounts required hereunder to be contributed by such Member to ' the capital of theCompany, the making of such advances shall not result in any increase in the amount of theCapital Account of such Member. The amounts of any such advances shall be a debt of theCompany to such Member and shall be payable or collectible only out of the Company assets inaccordance with the terms and conditions upon which such advances are made. The repaymentof loans from a Member to the Company upon liquidation shall be subject to the order of priorityset forth in Section 13.4 hereof.

5.9 Ownership of Company Property. Company Property shall be deemed to beowned by the Company as an entity, and no Member, individually or collectively, shall have anyownership interest in such Company Property or any portion thereof. Title to any or allCompany Property may be held in the name of the Company or one or more nominees, as the8

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Managers may determine. All Company Property shall be recorded as the property of theCompany on its books and records, irrespective of the name in which legal title to such CompanyProperty is held.6. Allocations and Distributions.

6.1 Allocation of Income and Loss.A. All income, gains, losses, deductions and credits for the Company shall beallocated to and be borne by and be the responsibility of the Members pro rata inaccordance with their respective Percentage Interests. Should additional Members beadded, all income, gains, losses, deductions and credits for the Company shall beallocated to and be borne by and be the responsibility of the members pro rata inaccordance with their respective Percentage Interests.B. All items of income, gain, loss, deduction, and credit allocable to anyInterest that may have been transferred shall be allocated between the transferor and thetransferee based on the portion of the calendar year during which each was recognized asowning that Interest, without regard to the results of Company operations during anyparticular portion of that calendar year and without regard to whether cash distributionswere made to the transferor or the transferee during that calendar year; provided,however, that this allocation must be made in accordance with a method permissibleunder Section 706 of the IRC and the regulations thereunder.

6.2 Determination of Income and Loss. At the end of each fiscal year of theCompany, income, gain, loss, deduction and credit (or items thereof) shall be determined for theaccounting period then ending and shall be allocated to the Members in accordance with Section6.1.6.3 Cash Distributions. The Manager may in its discretion distribute the Company'sNet Cash Flow to the Members in proportion to each Member's Percentage Interest at such timesas determined by the Manager. The Manager shall not be required to cause the Company tomake distributions to the Members. Notwithstanding the foregoing, the Company shall not makeany distribution to any Members if immediately after giving effect to the distribution, allliabilities of the Company, other than liabilities to Members with respect to their Interests andliabilities for which the recourse of creditors is limited to specified property of the Company,exceed the fair value of Company Property, except that the fair value of Company Property thatis subject to a liability for which recourse of creditors is limited shall be included in theCompany assets only to the extent that the fair value of that Company Property exceeds thatliability.6.4 Distributions of Other Property. From time to time, the Managers also maycause property of the Company other than cash to be distributed to the Members, whichdistribution must be made in accordance with their respective Interests and may be made subject

to existing liabilities and obligations. Immediately prior to such distribution, the capital accountsofthe Members shall be adjusted as provided in Treas. Reg. 1.704-1(b)(2)(iv)(f).

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6.5 Qualified Income Offset. Any Member who unexpectedly receives anadjustment, allocation, or distribution described in subparagraphs (4), (5) or (6) of Treas. Reg.1.704-1 (b (2)(ii)(d), which adjustment, allocation or distribution creates or increases a deficitbalance in that Member's capital account, shall be allocated items ofbook income and gain in anamount and manner sufficient to eliminate the deficit balance in that Member's capital accountso created or increased as quickly as possible in accordance with Treas. Reg. 1.704-1 b ) (2)(ii) ( d) and its requirements for a "qualified income offset."7. Fiscal Matters; Books and Records.

7.1 Bank Accounts; Investments. Capital Contributions, revenues and any otherCompany funds shall be deposited by the Manager in a bank account established in the name ofthe Company, or shall be invested by the Manager in furtherance of the purpose of the Company.No other funds shall be deposited into Company bank accounts or commingled with Companyinvestments. Funds deposited in the Company's bank accounts may be withdrawn only bypersons authorized by the Manager to pay Company debts or obligations or to be distributed tothe Members pursuant to this Company Agreement.

7.2 Records Required by LLC Law; Right of Inspection.A. Records Required. During the term of the Company, the Company shallmaintain in the Company's principal office, or at the option of the Manager in the

principal office of the Manager, in the United States, all records required to be keptpursuant to Sections 3.151 and 101.501 of the LLC Law, including, without limitation, (i)books and records of accounts, (ii) a current record of the names and mailing address ofeach Member (including, if any class or group of interests is established under theCertificate ofFormation or this Company Agreement, the names of the Members who aremembers of each such class or group); (iii) copies of the Company's federal, state andlocal information or income tax returns for each of the Company's six (6) most recent taxyears; (iv) a copy of this Company Agreement and the Certificate ofFormation, includingall amendments or restatements; (v) an executed copy of any powers of attorney, (vi) acopy of any document that establishes a class or group of Members of the Company and(vii) unless such information is otherwise set forth in the Certificate of Fonnation or inthis Company Agreement, a written statement of (a) the amount of the cash contributionand a description and statement of the agreed value of any other contribution made oragreed to be made by each Member; (b) the dates any additional contributions are to bemade by a Member, (c) any events the occurrence ofwhich requires a Member to makeadditional contributions; (d) events requiring the winding up of the Company; and (e) thedate on which each Member became a Member of the Company.

B. Right of Inspection. On written request stating the purpose, a Member ora permitted assignee of a Member's Interest (an "eligible Person") may examine andcopy in person or by the eligible Person' s representative, at any reasonable time, for anyproper purpose, and at the eligible Person's expense, records required to be maintainedunder the LLC Law and such other information regarding the business, affairs andfinancial condition of the Company as is just and reasonable for the eligible Person toexamine and copy.

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7.3 Books an d Records of Account. The Managers, at the expense of the Company,shall maintain for the Company adequate books and records of account that shall be maintainedon the percentage of completion method of accounting for financial statement and income taxpurposes and on a basis consistent with appropriate provisions of the IRC, containing, amongother entries, a Capital Account for each Member. In addition, the Manager shall keep andmaintain at the Company's expense tax records, plans, specifications and other material recordsrelated to the Contract and the Work for a period of three (3) years after completion of the Workor such other period as may be required by applicable law or the Contract.

7.4 Tax Returns an d Information. The Members intend for the Company to betreated as a partnership for tax purposes. The Manager shall prepare or cause to be prepared allfederal, state and local income and other tax returns that the Company is required to file. Withinthe shorter of (i) such period as may be required by applicable law or regulation, or (ii) ninety(90) days after the end of each fiscal year, the Managers shall send or deliver to each Person whowas a Member at any time during such year such tax information as shall be reasonablynecessary for the preparation by such Person of its federal income tax return and state incomeand other tax returns.

7.5 Delivery of Financial Statements to Members.A. Within thirty (30) days after the end of each month, the Manager shall

send to each Member monthly financial statements of the Company prepared on thepercentage of completion basis in accordance with generally accepted accountingprinciples. The monthly financial statements will include a trial balance and profit andloss statements.

B. As to each fiscal year of the Company, the Manager shall send to eachMember a copy of (i) a balance sheet of the Company as of the end of the fiscal year, (ii)an income statement of the Company for such year, and (iii) a statement showing therevenues distributed by the Company to Members in respect of such year. Such financialstatements shall be delivered by no later than 120 days following the end of the fiscalyear to which the statements apply. The financial statements shall be audited unless theMembers unanimously agree otherwise. Members shall have the right, at their expense,to audit the Company books upon formal request to the Managers.

C. Within 120 days after the end of each Member's fiscal year, each Membershall deliver to the other Member a copy of the delivering member's financial statementsfor such fiscal year. Each Member shall promptly notify the other Member in the eventthere is a material adverse change in the financial condition, operations or business of thesuch Member.7.6 Ta x Elections. The Manager ma y make any tax election they deem appropriate

and in the best interests of the Members, provided, however, they shall, if requested by aMember, make an election on behalf of the Company pursuant to Section 754 of the IRC.Neither the Company nor any Manager or Member may make an election for the Company to beexcluded from the application of the provisions of subchapter K of chapter I of subtitle A of theIRC, or to be an association taxable as a corporation, or any similar provisions of applicable statelaw.

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7.7 Tax Matters Partner. Hoar Construction, LLC shall be the ''tax matters partner"of the Company, within the meaning of Section 6231(a)(7) of the IRC and any regulations issuedthereunder, unless the IRC or the regulations issued thereunder requires another person to be thetax matters partner. For purposes of this Section 7.7, the term partnership shall mean theCompany.

A. Said tax matters partner is authorized and required to represent theCompany (at the Company's expense) in connection with all examinations of theCompany's affairs by tax authorities, including resulting administrative and judicialproceedings, and shall have the following duties and obligations:

(1) The tax matters partner shall have a continuing obligation toprovide the Internal Revenue Service with sufficient information so that proper notice canbe mailed to all Members as provided in Section 6223 of the IRC, and the Members shallfurnish the tax matters partner with such information (including information specified inSection 6230(e) of the IRC) as the tax matters partner may reasonably request for suchpurpose.

(2) The tax matters partner shall keep each Member informed of alladministrative and/or judicial proceedings for the adjustment of the partnership items (asdefined in Section 6231(a)(3) of the IRC and regulations promulgated thereunder) at thepartnership leveL Without limiting the generality of the foregoing sentence, within 15days of receiving any written or oral notice of the time and place of a meeting or otherproceeding from the Internal Revenue Service regarding a partnership proceeding (and inany event, within a reasonable time prior to such meeting or proceeding), the tax matterspartner shall furnish a copy of such written communication or notice, or inform theMembers in writing of the substance of any such oral communication. This obligation ofthe tax matters partner to inform the Members shall not extend to routine and minorevents.

(3) Without the written consent of a Majority in Interest of theMembers, the tax matters partner shall not extend the statute of limitations, file a requestfor administrative adjustment, file suit concerning any tax refund or deficiency relating toany Company administrative adjustment or enter into any settlement agreement relatingto any Company item of income, gain, loss, deduction or credit for any taxable year ofthe Company.B. The Members have the following obligations:

(1) The Members shall notify the tax matters partner of their treatmentof any partnership item on their federal income tax return which is or may be inconsistentwith the treatment of that item on the Company's return.

(2) Any Member that enters into a settlement agreement with theSecretary of the Treasury with respect to the partnership items shall notify the otherPartners of such settlement agreement and its terms within 30 days after the date of suchsettlement.

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(3) If the tax matters partner elects not to file suit concerning anadministrative adjustment or request for administrative adjustment and another Memberelects to file such a suit, such other Member shall notify all Members of such intentionand the forum or forums in which such suit shall be filed shall be agreed to by all of theMembers

(4) Each Member agrees to cooperate with the tax matters partner andto do or refrain from doing any or all things reasonably required by said Member toconduct such proceedings.C. Each Member shall be entitled to participate in all administrativeproceedings with the Internal Revenue Service, as provided by IRC Section 6224(a).D. The obligations imposed on the tax matters partner and participation rightsafforded the Members by this Agreement and Sections 6221 through 6233 of the IRCmay not be restricted or limited in any fashion by the tax matters partner or any Member

or Members without the written consent of all of the Members.E. In the event that said Member, while acting as the ''tax matters partner,"ceases to be a Member for any reason, a Majority-in-Interest of the remaining Membersshall immediately elect a substitute tax matters partner who shall be the "tax matterspartner" of the Company.

8. Management of the Company.8.1 Management. The powers of the Company shall be exercised by or under theauthority of, and the business and affairs of the Company shall be managed under the directionof, the Manager. The Manager need not be a resident of the State ofFlorida or a Member oftheCompany. Any Person dealing with the Company, other than a Member, may rely on theauthority of the Manager and any officers or agents of the Company appointed by the Manager inaccordance with this Company Agreement in taking any action in the name of the Companywithout inquiry into the provisions or compliance herewith, regardless of whether that action isactually taken in accordance with the provisions of this Company Agreement.8.2 Powers of Managers. The Manager shall have no power to cause the Companyto do an act outside the purpose of the Company as set forth in Article 4 hereof Subject to theforegoing limitation and all other limitations in this Company Agreement, the Manager shallhave full, complete and exclusive power to manage and control the Company, and shall have theauthority to take any action the Manager deems to be necessary, convenient or advisable inconnection with the management of the Company, including, but not limited to, the power and

authority on behalfof the Company:A. To expend the Company's Capital Contributions and revenues and toexecute and deliver all checks, drafts, endorsements and other orders for the payment ofCompany funds;

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B. To employ agents, officers, employees, accountants, attorneys, clericalhelp, and such other assistance and services as may seem proper, and to pay therefor suchremuneration as the Manager may deem reasonable and appropriate;C. To purchase, lease, rent, or otherwise acquire or obtain the use of officespace, office equipment, materials, supplies, and all other kinds and types of real orpersonal property, and to incur expenses for such things, services and facilities, as may bedeemed necessary, convenient or advisable for carrying on the business of the Company;D. To carry, at the expense of the Company, insurance of the kinds and in theamounts that the Manager deems advisable or make other arrangements for payment oflosses or liabilities to protect the Company or the Members, Manager, officers, agentsand employees ofthe Company against loss or liability;E. To sell, transfer, assign, dispose of, trade, exchange, quitclaim, surrender,release or abandon Company property, or any interests therein, to any Person, includingthe Manager or its affiliates, and in connection therewith to receive such consideration asthe Manager deems fair and in the best interests of the Company;F. To sue and be sued, complain and defend in the name and on behalf of the

Company;G. To do all acts, take part in any proceedings, and exercise all rights andprivileges as could an absolute owner of Company Property, subject to the limitationsexpressly stated in this Company Agreement and the performance of the Manager'sfiduciary obligations to the Company and the Members;H. In the exercise of any of the foregoing powers, to negotiate, execute andperform, on any terms deemed desirable in the Manager's sole discretion, suchagreements, contracts, leases, instruments and other documents as the Manager shall fromtime to time approve in accordance with, and subject to, the terms of this CompanyAgreement;I. To supervise and manage the Work called for by the Contract and allmatters relating to the Company's performance of the Contract;J. To enter into contracts in the name of the Company for all thingsreasonably necessary in order to perform the Contract, including, without limitation, toissue purchase orders, rental agreements and subcontracts;K. To establish and operate a Company office for the Work and performance

of the Contract, to pay wages and accounts, and to furnish regular statements and reportsconcerning the financial status of the Company and the progress of the Work; andL. To take such other action and perform such other acts as the Managersdeem necessary, convenient or advisable in carrying out the business ofthe Company.

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The enumeration of powers in this Company Agreement shall not limit the general orimplied powers of the Managers or any additional powers provided by law.8.3 Limitations on Powers of Manager. Notwithstanding the provisions of Section

8.2 above, the Manager may not cause the Company to do any of the following without the priorunanimous approval or consent of the Members (except to the extent that any of the followingactions is expressly authorized in this Company Agreement):A. Sell or issue new Interests to an existing Member or other Person;B. Reorganize the Company or merge with or into another limited liabilitycompany, corporation or other entity, regardless of whether the Company is the survivingentity of such merger;C. Take any action in contravention of this Company Agreement or theCertificate of Formation;D. Make an assignment for the benefit of creditors of the Company or file avoluntary petition under the federal Bankruptcy Code or any state insolvency law on

behalf of the Company;E. Confess any judgment against the Company;F. Amend this Company Agreement;G. Borrow money or mortgage, pledge or encumber any Company property;H. Settle or compromise any claim by or against the Company in excess of$100,000; or1. Do any act that would make it impossible to carry on the normal andordinary business of the Company.

8.4 Dispute Resolution. Any disputes between the Members that are not resolved bya unanimous vote as required above shall be resolved as follows:A. First, each Member shall appoint one senior corporate officer with at least

the title of vice president other than those Member Representatives (as defined in Section9.1) designated herein and such officers shall meet to review the dispute and make everyreasonable and good faith attempt to resolve it within ten (10) Business Days after oneMember invokes the dispute resolution procedure under this Section 8.4 by providingwritten notice to the other Member.

B. If no resolution is achieved within the ten (10) Business Days of theofficers' meeting, the dispute shall be settled by arbitration in accordance with theAmerican Arbitration Association, Construction Industry Rules then in effect, with thearbitration to occur in Birmingham, Alabama. Each Member shall bear its own expensesin the arbitration.

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C. In the event of such disputes, there shall be no interruption or cessation ofWork pending or during any proceedings to resolve a dispute, and the Manager shall befree to pursue a course of action deemed in the best interest of the Company untilresolution.8.5 Number; Tenure. There shall be one (1) Manager appointed by a Majority-in-Interest of the Members. The Manager shall remain in such capacity until the earlier of theManager's resignation or removal or until such time, if at all, when a Majority-in-Interest of theMembers may appoint a successor Manager.8.6 Vacancies. Any vacancy occurring in the office of Manager shall be filled by avote of a Majority-in-Interest of the Members.8.7 No Meetings of the Manager Required. No meeting of the Manager shall berequired in order the Manager to take or authorize any action on behalf of the Company or forManager to perform its obligations under this Agreement.8.8 Compensation. The Company shall pay the Manager $5,000 per month duringthe performance of the Work. The foregoing management fee is intended to compensate theManager for providing accounting and other management services to the Company. TheManager's fee shall be included as a budget item in the general expense portion of the Contracthudget. Except as provided in this Section 8.8, the Manager shall not be entitled to any furthercompensation or reimbursement for the performance of its duties as Manager under thisCompany Agreement.8.9 Resignation and Removal. The Manager may resign at any time. Suchresignation shall be made in writing and shall take effect at the time specified therein, or if notime be specified, at the time of its receipt by the Members. Further, the Manager may be

removed at any time, with or without cause, by the vote of a Majority-in- Interest of theMembers.8.10 Action by Writ ten Consent. Any action required or permitted to be taken by theManager may be evidenced by a written consent describing the action taken which is signed bythe Manager and delivered to the Company for filing with the Company's records. Any actiontaken by written consent of the Manager shall have the same force and effect as the vote of theManager taken at a meeting. No notice shall be required in connection with the use of a writtenconsent pursuant to this Section.8.11 Power of Attorney. Each Member hereby appoints the Manager as thatMember's attorney-in-fact for the purpose of executing, swearing to, acknowledging, and

delivering all certificates, documents, and other instruments as may be necessary, appropriate, oradvisable in the judgment of the Manager in complying with applicable law. This power ofattorney is irrevocable and is coupled with an interest. On request by the Manager, a Membershall confirm its grant of this power of attorney or any use thereof by the Manager and shallexecute, swear to, acknowledge, and deliver any such certificate, document, or other instrument.8.12 Officers and Other Agents. In accordance with the provisions of Section 8.2(B),the Manager may designate such officers and agents of the Company as they may deem

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necessary or proper in the conduct of the affairs of the Company, delegating to such officers andagents the title, duties, responsibilities, and authority reflected in such authorization. At all timesthe actions of the officers and agents shall be subject to the direction and control of the Manager,and the Manager may remove any officer at any time.

8.13 Fiduciary Duties; Liability.(a) The Manager shall perform its duties under this Company Agreement

consistently with the obligation of good faith and fair dealing, subject to the provisions set forthin this Section 8.3. The Manager's duty of care is limited to refraining from engaging in grosslynegligent or reckless conduct, intentional misconduct or a knowing violation of law.Furthermore, the Manager shall have a duty of loyalty as set forth in Section 608.4225 of theLLC Law, subject to the provisions set forth in this Section 8.13. The Members agree that to theextent the provisions of this Section 8.13 modify the Manager's duty of loyalty under Section608.4225 of the LLC Act, the Members have determined that such modifications are reasonable.The Members hereby agree that the foregoing are the only fiduciary duties that the Managerowes to the Company and its Members. The Manager is not liable for any action taken as theManager of the Company, or for the failure to take any action, if the Manager performs its dutiesin compliance with this Section 8.13.

(b) In discharging its duties under this Company Agreement, the Manager isentitled to rely on information, opinions, reports, or statements, including financial statementsand other financial data, if prepared or presented by: (i) one or more Members of the Company,employees of the Company or employees of any Member of the Company whom the Managerreasonably believes to be reliable and competent in the matters presented; or (ii) legal counsel,public accountants, or other persons as to matters the Manager reasonably believes are withinsuch person's professional or expert competence.

(c) In discharging its duties under this Company Agreement, the Managermay consider such other factors as the Manager deems relevant, including the long-termprospects and interests of the Company and its Members; the social, economic, legal or othereffects of any action on the employees, suppliers and customers of the Company; thecommunities and society in which the Company operates; and the economy of the state andnation.

(d) Unless otherwise provided in a separate written agreement, the Managershall not be required to manage the Company as the Manager's sole and exclusive function, andthe Manager may have other business interests and may engage in other activities of every natureand description in addition to those relating to the Company, regardless of whether or such otherinterests or activities may be considered to be competitive with, or a business opportunity thatwould be beneficial to, the Company, i t being expressly understood that the Manager may enterinto transactions that are similar to the transactions into which the Company may enter. Neitherthe Company nor any Member shall have any right, by virtue of this Company Agreement, toshare in or participate in such other interests or activities of the Manager or to the income orproceeds derived therefrom.

(e) Unless otherwise provided in a separate written agreement, any member,manager, officer, employee or affiliate of the Manager, or any other person or entity holding a17

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legal or beneficial interest in the Manager, may engage in or possess an interest in other businessventures of every nature and description, whether or not such venture may be considered to becompetitive with, or a business opportunity that would be beneficial to, the Company, it beingexpressly understood that such members, managers, officers, employees and affiliates of theManager may enter into transactions that are similar to the transactions into to which theCompany may enter.

Cf) The Manager shall not be deemed to have violated any duty or obligationto the Company or the Members of he Company merely because the Manager's conduct furthersthe Managers own interest. The Manager may lend money to and transact other business withthe Company. The rights and obligations of the Manager if it lends money to or transactsbusiness with the Company are the same as those of a person who is not the Manager, subject tothe LLC Law and applicable law. No transaction with the Company shall be voidable solelybecause the Manager, or an affiliate thereof, has a direct or indirect interest in the transaction if:(i) the fact of such interest is disclosed or known to the Members entitled to vote on thetransaction and the disinterested Members holding at least a Majority-in-Interest of suchdisinterested Members authorize, approve or ratify such transaction in accordance with thisCompany Agreement, (ii) the fact of such interest is disclosed or known to the Members entitledto vote on the transaction, and such Members authorize, approve or ratify the transaction inaccordance with this Company Agreement, or (iii) the transaction is fair and reasonable to theCompany at the time it is authorized in accordance with this Company Agreement.9. Rights, Powers and Obligations ofMembers

9.1 Members. The names and addresses of the current Members of the Company areas set forth on Schedule A of this Company Agreement. At the date hereof, there are no otherMembers of the Company and no other Person has any right to take part in the ownership ormanagement of the Company. Except as otherwise provided in the Certificate ofFonnation, thisCompany Agreement or by non-waiveable provisions of the LLC Act, all decisions concerningthe business, affairs and properties of the Company shall be made by the Manager in accordancewith this Company Agreement, and no Member, in its capacity as a Member, shall have the rightto participate in the management of the business, affairs and properties of the Company. NoMember has a voting right except with respect to the matters expressly reserved for a vote of theMembers in the Certificate ofFormation, this Company Agreement or non-waiveable provisionsof the Act.

9.2 Admission of Additional Members. Additional Members of the Company maybe admitted as follows:

A. If the proposed additional Member desires to purchase an interest from theCompany, such purchase may be made and the admission of the additional Member shallbecome effective only if the identity of the proposed additional Member and the amountof the Capital Contribution to be made by such proposed additional Member in exchange .for such proposed additional Member's Interest is fIrst approved by all of the Members.

B. If the proposed additional Member desires to acquire an Interest in aTransfer from an existing Member, such Transfer may be made and the admission of theadditional Member shall become effective only in accordance with Section 12.3 hereof.18

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All other attempted Transfers of any interest or right, or any part thereof, in or in respectof the Company shall be null and void ab initio.9.3 Liability for Debts Obligations or Liabilities of the Company. Except to theextent this Company Agreement specifically provides otherwise, no Member or Manager isliable for the debts, obligations or liabilities of the Company, including under a judgment, decree

or order of a court.9.4 Authority; Liability to Third Parties. No individual Member (other than aManager or an officer) has the authority or power to act for or on behalf of the Company, to do

any act that would be binding on the Company, or to incur any expenditure on behalf of theCompany. No Member (including any Member which is a Manager) shall be liable for the debts,obligations or liabilities of the Company, including under a judgment decree or order of a court,by reason ofbeing a Member of the Company.

9.5 Sale of New or Addit ional Inte rests. The Company shall not sell any new oradditional Interests to any Member or Person without the prior unanimous consent and approvalof all Members, which consent or approval may be withheld in the sole discretion of anyMember. '

9.6 No Fiduciary Duties; Conflicts oCInterest.(a) Except as expressly set forth in this Company Agreement or the LLC Law,no Member shall owe, in its capacity as a Member, any fiduciary or other similar duties to theCompany or the other Members.(b) Unless otherwise provided in a separate written agreement, or as mayotherwise be applicable to a Member in its capacity as the Manager, the Members and anymember, manager, officer, employee or affiliate of a Member, or any person holding a legal orbeneficial interest in a Member, may engage in or possess an interest in other business ventures

of every nature and description, whether or not such venture may be considered to becompetitive with, or a business opportunity that would be beneficial to, the Company.(c) No Member shall be deemed to have violated any duty or obligation to theCompany or the other Members of the Company merely because the Member's conduct furthersthe Member's own interest. A Member may lend money to and transact other business with theCompany. The rights and obligations of the Member if it lends money to or transacts businesswith the Company are the same as those of a person who is not a Member, subject to the LLCLaw and applicable law. No transaction with the Company shall be voidable solely because aMember, or an affiliate thereof, has a direct or indirect interest in the transaction if: (i) the fact of

such interest is disclosed or known to the Members entitled to vote on the transaction and thedisinterested Members holding at least a Majority-in-Interest of such disinterested Membersauthorize, approve or ratifY such transaction in accordance with this Company Agreement, (ii)the fact of such interest is disclosed or known to the Members entitled to vote on the transaction,and such Members authorize, approve or ratify the transaction in accordance with this CompanyAgreement, or (iii) the transaction is fair and reasonable to the Company at the time it isauthorized in accordance with this Company Agreement.

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9.7 Withdrawal A Member may not withdraw from the Company without the priorwritten consent or approval of all remaining Members, which consent or approval may bewithheld in the sole discretion of any of such remaining Members.9.8 Involuntary Termination of Member's Interest and Purchase Price. Upon theoccurrence of a Terminating Event with respect to any Member, such Member shall cease tohave any voting or governance rights with respect to such Member's Interest, and such Membershall become an Assignee and have an Economic Interest only. In addition to the foregoing,upon the occurrence of a Terminating Event with respect to any Member, such Member shall bedeemed for a period of sixty (60) days after the occurrence of such Terminating Event to havemade an offer to sell all of the Interests of such Member in the Company based on the termshereinafter provided (i) first to the other Members in the Company, and (ii) any remainingInterests then to the Company. The other Members and the Company shall have the option, butnot the obligation, to purchase the Interests of the Member subject to the Terminating Event.The purchase price payable for such Interests being sold and purchased pursuant to theprovisions hereof shall be determined as follows:

A. The Members shall endeavor to agree upon the value of the Interests of theterminating Member. If the Members cannot agree upon a value within sixty (60) daysafter the applicable Terminating Event, then the Members desiring to purchase (hereincalled the "Purchasing Members") all of the Interests of the selling Member (hereincalled the "Selling Member") shall deliver such Selling Member notice requiring that anappraiser be appointed, and the Members shall then endeavor to agree on a singleappraiser. If the Members cannot agree on a single appraiser within thirty (30) days afterthe said notice shall have been delivered, then the Purchasing Members and the SellingMember shall each have the right to appoint one appraiser, and the two appraisers soappointed shall then agree upon a third appraiser to be appointed.B. The appraiser(s) selected as aforesaid shall have at least ten (10) years'experience as appraisers of interests in assets and properties similar to those owned by theCompany. The appraiser(s) so selected shall determine the then fair market value of theSelling Member's Interests and shall take into consideration all appropriate factorsaffecting the value thereof, including, but not limited to, each of the following:

(1) Lack ofmarketability in that the Company is a closely-held entity.(2) Restrictions on transferability under both the securities laws andthis Company Agreement in that (i) this Company Agreement prohibit the transfer of theInterests of a Member without the consent of all remaining Members, and (ii) thetransferee is required to pay all expenses related thereto.(3) Assignee status in that a transferee of the Interests in the Companywould only be an assignee, thereby prohibiting the transferee from participating in theownership or management of the Company, and no transferee would be entitled to beadmitted as a Member without the consent of all remaining Members.(4) Minority interest in that a minority interest is generally worthsubstantially less than a controlling interest.

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(5) Inability to control the management or operations of the Companyand inability to control distributions in that the success of the Company's operations andthe ability to share in any success is controlled by the Managers.(6) Inability to control the distribution ofcash in that no Member andno assignee of a membership interest controls the distribution of cash from the Company,which control is vested in the Managers, subject to the terms of this CompanyAgreement.(7) Allocation of ncome in that each Member and assignee is allocatedits proportionate share of the income and gain of the Company, but may receive no cashdistributions to offset the resulting tax liability.

Each appraiser shall then certify in writing his decision as to the fair market valueof the Selling Member's Interests in the Company, which certification shall separatelyaddress the effect of each of the aforementioned factors on the value so determined andspecify the amount of the discount in value, if any, attributable to each such factor, and acopy of said certification shall be sent to all Members in care of their respective addressesindicated hereinafter. In the event three appraisers have been appointed, thedetenninations of all appraisers shall then be compared. The appraisal which deviates thefurthest in value from the other two appraisals shall be disregarded and the remaining twoappraisals shall be averaged. The average of the two appraisals shall be conclusive uponthe Selling Member and the Purchasing Members as to the value of the Selling Member'sInterests in the Company. The fees payable for such appraiser(s) shall be borne fiftypercent (50%) by the Selling Member and fifty percent (50%) by the PurchasingMembers, it being understood that each appraiser shall be a disinterested party.

C. The purchase price payable for the Selling Member's Interests shall beequal to seventy percent (70%) of the value of Selling Member's Interests, whetherdetermined by agreement of the Members pursuant to subsection A above or by theappraisal procedure set forth in subsection B above. The discount of the value of the .Selling Member's interest is not intended as a penalty but is to compensate the Companyand the Purchasing Members for the time, expense and hardship caused by the SellingMember's involuntary termination hereunder. The said purchase price shall be payable bythe Purchasing Members, who elect to purchase, in a lump sum, or at the option of thePurchasing Members, in ten (10) equal annual installments, with interest on the unpaidprincipal balance at the minimum allowable applicable federal rate as set forth in theIRC, at the date of Closing, as defined below, the first payment being due within thirty(30) days of such Closing. The Purchasing Member shall be entitled to prepay suchinstallment payments at any time without penalty. The purchase and sale of the SellingMember's Interests shall not impair any debt obligation of the Company to the SellingMember. The Purchasing Members shall purchase the Selling Member's Interests insuch proportions as they may agree; if they cannot agree, the Purchasing Members shallpurchase the Selling Member's Interests in proportion to their respective CapitalAccounts.

D. For purposes of this Section 9.8, "Closing" shall mean fifteen (15) daysafter the determination of a Purchase Price, or such other time as the Purchasing211/2033715.4


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Members and Selling Member (or its legal representative) shall agree in writing. AtClosing, the Selling Member (or its legal representative) shall deliver to the PurchasingMembers such documents or instruments effectuating the transfer of the SellingMember's Interest as the Purchasing Members may reasonably require. The SellingMember (or its legal representative) shall represent and warrant that the Interest istransferred free and clear of all liens, encumbrances and claims.9.9 Compensation. Unless otherwise expressly provided in this CompanyAgreement, no Member, in its capacity as a Member, shall be entitled to any compensation orreimbursement of expenses (including, but not limited to, administrative expenses and salary andwage expenses) other than with respect to distributions made in accordance with this CompanyAgreement.9.10 Financial Guaranties and Sureties. The Members shall, or shall cause theiraffiliates or parent companies, to execute any and all financial guaranties and other documentsrequired by the owner in connection with performance of the Contract.9.11 Contribution and Indemnification for Guaranteed Debt and Obligations.

A. From time to time, one or more Members of the Company (or affiliates ofsuch Members) may be called upon to serve as a guarantor or indemnitor of indebtednessor obligations of the Company. Each Member or affiliate of a Member who or whichguarantees the indebtedness or obligations of the Company is hereafter referred to as a"Guarantor", and any guarantee or other instrument pursuant to which such Personbecomes a Guarantor is hereafter referred to as a "Guarantee". Notwithstanding thenature of any Guarantor's liability under a Guarantee (whether separate, several, joint andseveral or otherwise), the Members intend that any amount paid by a Guarantor pursuantto a Guarantee shall be borne by the Members in accordance with their PercentageInterest. For purposes of this Section 9. 11 (a), the applicable Percentage Interest shall bedetermined as of the date that the Company or any Member first receives notice (whetheror not in writing) (the "Creditor Notice") from the creditor of such guaranteedindebtedness or obligation that a default with respect to such indebtedness or obligationhas occurred. The Guarantor who or which is called upon to pay any indebtedness orperform any obligation pursuant to a Guarantee (each such Guarantor being hereafterreferred to as the "Called Party") shall give Notice to the other Members setting forth theamount demanded by the creditor from the Called Party (including a copy of any writtendemand), each Member's proportionate share thereof, a statement as to whether (i) theCalled Party has already paid such demanded amount in full and will be reimbursed bythe other Members, or (ii) the Called Party asks that the other Members make paymentdirectly to the creditor (in which case the Notice shall include the name and address ofthe creditor and the relevant account information), and each such Member shall, withinfive (5) Business Days after receipt of such Notice, pay to the creditor or the CalledParty, as directed by the Notice from the Called Party, such Member's proportionateshare (calculated as provided above) of such total amount payable by the Called Party,provided that in the case of payments made directly to the creditor, the paying Membershall simultaneously send a copy or confirmation of such payment to the Called Party. Ifa Member fails to make a payment required by this Section 9.11 (a), the Called Party shallpay the balance owed on the Guarantee.

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B. The Company shall indemnify and hold harmless any Called Party withrespect to any loss, cost, damage, claim or expense (including attorneys' fees) incurred bysuch Called Party in connection with paying a Guarantee, The Company's obligationsunder this Section 9.11(b) shall be without limitation.

C. In addition to the indemnification provided by the Company pursuant toSection 9.1 1(b) above, each Member (an "IndemnifYing Member") shall indemnify andhold harmless the other Members and the Company from and against any loss, cost,damage, claim or expense (including attorneys' fees) which may be incurred as a result ofsuch Indemnifying Member's breach of Section 9.11(a). The Company and the otherMembers, as applicable, shall have full recourse to enforce their rights and remediesunder this Section 9.11 against any assets of the Indemnifying Member, including theInterest in the Company owned by the Indemnifying Member. Without limiting theforegoing, until the liabilities of the Indemnifying Member under this Section 9.11 (c) arepaid and satisfied in full, (i) the Indemnifying Member shall remain bound by thisAgreement; (ii) the Indemnifying Member's Interest in the Company shall be anEconomic Interest only, and the Indemnifying Member shall have no right to participatein the operation, management or affairs of the Company, including the right to vote on,consent to, or otherwise participate in any decision of the Members; and (iii) theIndemnifying Member shall have no right to receive distributions from the Company, andall cash and property otherwise distributable with respect to the Indemnifying Member'sInterest shall be distributed and paid, as applicable, to the Company and the otherMember. Any amounts so applied shall be treated, for all purposes under this CompanyAgreement, as having been distributed or paid, as applicable, to the IndemnifyingMember and applied by the Indemnifying Member to satisfy the Indemnifying Member'sliabilities under this Section 9.11.

10. Meetings ofMembers.10.1 Member Representatives. Each Member shall be represented by two (2)

representatives (each, a "Member Representative" and collectively, the "MemberRepresentatives"). The Member Representatives for Hoar Construction, LLC shall be referred toas the Hoar Representatives, and the Member Representatives for Maritime Park DevelopmentPartners, LLC shall be referred to as the ''MPDP Representatives". The Member Representativesfor each Member are authorized to act on behalf of such Member in connection with suchMember's performance of this Company Agreement. The initial Member Representativesappointed by each Member are as follows:

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Hoar Representatives:Douglas EckertStacey BerthonMPDP Representatives:Jeff GaltMark White

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A Member may change its Member Representative, on a temporary or permanent basis,by notifying the other Member in writing, but prior to such notification, the actions of a MemberRepresentative shall be binding upon the appointing Member for all purposes. Any vote, actionor consent by a Member for purposes of this Company Agreement shall require the vote, actionor consent of at least one of such Member's Member Representatives. One of the HoarRepresentatives shall serve as Chairman of the Member Representatives at all meetings of theMember Representatives.

10.2 Place of Meetings. All meetings ofMembers shall be held at the principal officeof the Company as provided in Section 3.3, above, or at such other place within or without theState of Florida as may be designated by the Managers or Members calling the meeting. Ateach meeting, the Member shall be represented by at least one of its Member Representatives.

10.3 Annual Meeting. Commencing with the calendar year next following thecalendar year in which the Company was organized, annual meetings of the Members shall beheld each year during the month of December on such date and at such time and place as may bedesignated by the Manager or in the notice of the meeting. I f he annual meeting is not held asset forth above, the Manager shall cause a meeting in lieu thereof to be held as soon thereafter asconvenient, and any business transacted or election held at that meeting shall be as valid as ifheld at the annual meeting. Failure to hold the arulUal meeting at the designated time shall notwork a dissolution of the Company.

lOA Regular Meetings. The Chairman of the Member Representatives shall establishregularly scheduled meetings of the Members as appropriate based upon the stage and progressof the Work. The agenda for each regular meeting of the Members will include a review of theperformance of the Work, the Company's operations, the activities and performance of theManager, and other matters relating to the business of the Company.

10.5 Special Meetings. Special meetings of the Members may be called by resolutionof the Manager or by Members holding ten percent (10%) or more of the Interests, for thepurpose of addressing any matter upon which the Members may vote under this CompanyAgreement. Members may call a meeting by delivering to the Man

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