HomeMy WebLinkAboutCerificate of Formation Corporations Section ( Hope Andrade
P.O.Box 13697 `S Secretary of State
Austin, Texas 78711- 3697 (
Office of the Secretary of State
November 23, 2011
Attn: Russell Scott Gray
Russell Scott Gray
1721 Birmingham Drive, Sutie 210
College Station, TX 77845 USA
RE: Boardwalk at Dominik, LLC
File Number: 801510764
It has been our pleasure to file the certificate of formation and issue the enclosed certificate of filing
evidencing the existence of the newly created domestic limited liability company (llc).
Unless exempted, the entity formed is subject to state tax laws, including franchise tax laws. Shortly,
the Comptroller of Public Accounts will be contacting the entity at its registered office for information
that will assist the Comptroller in setting up the franchise tax account for the entity. Information about
franchise tax, and contact information for the Comptroller's office, is available on their web site at
http: // window. state. tx .us /taxinfo /franchise/index.html.
The entity formed does not file annual reports with the Secretary of State. Documents will be filed
with the Secretary of State if the entity needs to amend one of the provisions in its certificate of
formation. It is important for the entity to continuously maintain a registered agent and office in
Texas. Failure to maintain an agent or office or file a change to the information in Texas may result in
the involuntary termination of the entity.
If we can be of further service at any time, please let us know.
Sincerely,
Corporations Section
Business & Public Filings Division
(512) 463 - 5555
Enclosure
Come visit us on the internetathttp : //www.sos.state.tx.us/
Phone: (512) 463 -5555 Fax: (512) 463 -5709 Dial: 7 -1 -1 for Relay Services
Prepared by: Dee Harris TID: 10285 Document: 398073090002
"F
4
Corporations Section %E p Hope Andrade
P.O.Box 13697 y` A Secretary of State
Austin, Texas 78711 -3697
Office of the Secretary of State
CERTIFICATE OF FILING
OF
Boardwalk at Dominik, LLC
File Number: 801510764
The undersigned, as Secretary of State of Texas, hereby certifies that a Certificate of Formation for the
above named Domestic Limited Liability Company (LLC) has been received in this office and has been
found to conform to the applicable provisions of law.
ACCORDINGLY, the undersigned, as Secretary of State, and by virtue of the authority vested in the
secretary by law, hereby issues this certificate evidencing filing effective on the date shown below.
The issuance of this certificate does not authorize the use of a name in this state in violation of the rights
of another under the federal Trademark Act of 1946, the Texas trademark law, the Assumed Business or
Professional Name Act, or the common law.
•
Dated: 11 /22/2011
Effective: 11/22/2011
Q E Op
NrA
,; . 11 ` 11, ›* C: 441711411111461611e'
, � Hope Andrade
Secretary of State
Come visit us on the Internet at hup:/iwww.sos.state.tx.us/
Phone: (512) 463 -5555 Fax: (512) 463 -5709 Dial: 7 -1 -1 for Relay Services
Prepared by: Dee Harris TID: 10306 Document: 398073090002
.....„..
r .i.
;Secretary of State -ks
Filed in the Office of the
- - ,;';':
P.O. Box 13697
, - ....,--, Secretary of State of Texas
; , - ,
A 1 ustin, TX 787113897 - '
- ; Filing #: 801510764 11/22/2011
!FAX: 512/463 ; Document #: 398073090002
Certificate of Formation i Image Generated Electronically
1Filing Fee: $300 Limited Liability Company for Web Filing
i 1
---- -
Article 1 - Entity Name and Type
rrhe filing entity being formed is a limited liability company. The name of the entity is:
• iiiiiardwalk at Dominik. LLC
1
1 Article 2 - Registered Agent and Registered Office
PA. The initial registered agent is ano ------------- (cannot be cornpany named above) by the name of:
'PS 1031 Xchange, Ltd.
OR
Pa The initial registered agent is an individual resident of the state whose name is set forth below:
1 -
1C. The business address of the registered agent and the registered office address is: -
Street Address:
pow Briarcrest Dr., Ste. 302 Bryan TX 77802
Consent of Registered Agent
TA. A copy of the consent of registered agent is attached.
OR
Irt7B. The consent of the registered agent is maintained by the entity. _.,.
1
; Article 3- Goveming Authority .
A. The limited liability company is to be managed by managers.
OR
117:B. The limited liability company will not have managers. Management of the company is reserved to the members. 1
The names and addresses of the governing persons are set forth below.
I
1 .
Manager 1: Russell Gray Title: Manager
I
, kddress . PO Box 7015 Bryan TX, USA 77805
,
■ Article 4 - Purpose 1
;
[The purpose for which the company is organized is for the transaction of any and all lawful business for which limited i
1
liability companies may be organized under the Texas Business Organizations Code. 1
1 1
I i
; .
, 1
. .
1 i
; 1
1
Supplemental Provisions, Information i
- ___ ....
his Limited Liability Company is being formed as a disregarded, entity in order
to facilitate an improvement exchange pursuant to Section 1031 and Revenue
Procedure 2000 -37 of the Internal Revenue Code. {.
l The attached addendum, if any, is incorporated herein by reference.)
_.._• _- ..._._.._�....._.....___..._— .__rte::..:._. ._. _ _
Organizer
the name and address of the organizer are set forth below.
Russell Gray PQ Box 7015, Brvan, Texas 77805
Eftecti of Filing
PA_ This document becomes effective when the document is filed by the secretary of state.
OR
F B. This document becomes effective at a later date, which is not more than ninety (90) days from the date of its
Signing. The delayed effective date is:
Execution
The undersigned affirms that the person designated as registered agent has consented to the appointment. The
lundersigned signs this document subject to the penalties imposed by law for the submission of a materially false or
!fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under the provisions of
law governing the entity to execute the filing instrument.
Russell Gray
3Signature of Organizer
FILING OFFICE COPY
CONSENT OF SOLE MEMBER
BOARDWALK AT DOM N1K, LLC
The undersigned, being the sole Member of BOARDWALK AT DOMIN K, LLC, a Texas
limited liability company (the "Company "), does hereby vote for, adopt, approve, and consent to the
following resolutions, it being his understanding and intention that the execution of this written
consent is in lieu of the holding of special meetings of the Members and Managers of the Company:
RESOLVED, that the Company shall entered into a Real Estate Acquisition and
Exchange Accommodation Agreement with Ali Jaffar ( "Exchangor ") with respect to
Exchangor's real estate located in Brazos County, Texas and having the legal description set
forth on Exhibit "A" attached hereto (the "Property") for the purpose of acting as the
accommodation titleholder of the Property (the "Accommodation Agreement "). The terms
and conditions of the Accommodation Agreement shall be those deemed reasonable in the
sole discretion of the Company's President, Russell Gray. Russell Gray shall execute the
Accommodation Agreement and any related documentation on behalf of the Company.
RESOLVED FURTHER, that the Company shall be a single purpose entity, the sole
purpose of which is to hold the Property pursuant to the provisions of the Accommodation
Agreement. The Company shall not purchase any real or personal property in addition to the
Property, and upon disposition of the Property, the Company shall be dissolved.
RESOLVED FURTHER, that the Company shall be a disregarded entity for federal
income tax purposes and shall use the taxpayer identification number of its sole member, US
1031 Xchange, Ltd., for all tax purposes.
RESOLVED FURTHER, that notwithstanding the provisions of the Company's Articles
of Organization the address of the sole manager of the Company is PO Box 7015, Bryan,
Texas 77805.
Dated thisy of November, 2011.
US 1031 Xchange, Ltd., a Texas limited
liability company, Sole Member
By: 1031 MGMT, LLC, a Texas limited
lia' f l ty company, its gen =- . partner
/ '
`� _
/ / : : Russell Gray, Managi • ember
1
Russell Gray, M: • • g
BOARDWALK AT DOMINIK, LLC\ Unanimous Consent
ORGANIZATIONAL CONSENT
OF
THE MANAGERS OF BOARDWALK AT DOMINIK, LLC
The Managers of BOARDWALK AT DOMINIK, LLC, a Texas limited liability
company (the "Company "), acting pursuant to section 6.201 of the Texas Business Organizations
Code, by the signatures and with the unanimous approval and consent of the undersigned, who
constitute all of the managers of the Company, hereby take the following actions and adopt the
following resolutions in lieu of the organizational meeting of managers:
RESOLVED, that the form, terms, and provisions of the Company's Certificate of
Formation, approved and filed in the Office of the Secretary of State of Texas on November 22,
2011, are hereby approved in all respects and that the Secretary is hereby instructed to file the
Company's Certificate of Formation in the Company's minute book, together with the duly
certified duplicate original thereof;
RESOLVED FURTHER, that the Company Agreement presented to the Managers is
hereby adopted as the Company Agreement of this Company, and the Secretary is hereby
authorized and directed to file the Company Agreement in the Company's minute book;
RESOLVED FURTHER, that the number of managers shall be one (1), and the
following individuals shall serve in such capacity for the ensuing year or until their successors
are duly elected and qualified:
NAME ADDRESS
Russell Gray PO Box 7015
Bryan, Texas 77805
RESOLVED FURTHER, that the following persons be and the same hereby are
designated as officers of the Company to serve in the designated capacities for the ensuing year
or until their successors are duly elected and qualified:
NAME POSITION
Russell Gray President
RESOLVED FURTHER, that the fiscal year of the Company shall end on December
31;
BOARDWALK AT DOMINIK, LLCOROANIZATIONAL CONSENT PAGE 1
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COMPANY AGREEMENT
OF
BOARDWALK AT DOMINIK, LLC
This Company Agreement of BOARDWALK AT DOMINIK, LLC (the "Company ") is
hereby duly adopted by the Company's initial Managers, and is hereby ratified, confirmed and
approved by the Company's Members.
The Certificate of the Company, was filed in the Office of the Secretary of State, State of
Texas and the Secretary of State issued a Certificate of Filing to the Company on November 22,
2011. The Certificate designated the undersigned managers as the initial managers of the
Company .
ARTICLE I
1.1 Definitions. The following terms used in this Company Agreement shall have the
following meanings (unless otherwise expressly provided herein):
(a) "Capital Account" means, with respect to any Member, the account maintained for
such Member in a manner which the Managers determine is in accordance with Treasury Regulations
Section 1.704- 1(b)(2)(iv) and Section 5.02 hereof..
(b) "Capital Contribution" means any contribution to the capital of the Company in cash
or property by a Member whenever made.
(c) "Certificate" means, at any time, the certificate of formation of the Company filed
with the Secretary of State of the State of Texas pursuant to the TBOC, as amended or restated at
such time.
(d) "Claims" means all losses, costs, liabilities, damages, and expenses (including court
costs and fees and disbursements of counsel) incurred in connection with a Proceeding.
(e) "Code" shall mean the Texas Business Organization Code, as the same may be
amended from time to time.
(f) "Company" means BOARDWALK AT DOMINIK, LLC, a Texas limited liability
company.
(g) "Company Agreement" means this Company Agreement of the Company as originally
adopted and hereafter amended from time to time.
(h) "Distributable Cash" means all cash, revenues and funds received by the Company
from Company operations, less the sum of the following to the extent paid or set aside by the
Company: (i) all principal and interest payments on indebtedness of the Company and all other sums
JAFFAR \CONSTRUCTION\BOARDWALK AT DOMIMK, LLC\Co. Agreement Page 1
paid to lenders; (ii) all cash expenditures incurred incident to the normal operations of the Company's
business; and (iii) such cash reserves as the Managers deem reasonably necessary to the proper
operation of the Company's business.
(i) "Fiscal Year" means the Company's fiscal year, which shall be the calendar year
ending December 31.
(j) "Initial Capital Contribution" means the initial contribution to the capital of the
Company made by a Member pursuant to this Company Agreement.
(k) "IRS Code" means the Internal Revenue Code of 1986, as amended.
(1) "Losses" means, for each Fiscal Year, the losses and deductions of the Company
determined in accordance with accounting principles consistently applied from year to year employed
under the cash receipts and disbursements method of accounting (or the accrual basis of accounting,
if applicable) and as reported, separately or in the aggregate, as appropriate, on the Company's
information tax return filed for federal income tax purposes, plus any expenditures described in
Section 705(a)(2)(B) of the IRS Code.
(m) "Manager" means each of the initial managers set forth in the Company's Certificate
of Formation, or any other person or persons that succeed in that capacity or are elected to act as
additional managers of the Company as provided herein. "Managers" means all such persons
collectively in their capacity as managers of the Company.
(n) "Majority" means, will respect to any referenced group of Managers, a combination of
any of such Managers constituting more than fifty percent (50 %) of the number of Managers of such
referenced group who are then elected and qualified.
(o) "Majority in Interest" means, with respect to any referenced group of
Members, a combination of any such Members who, in the aggregate, own more than fifty percent
(50 %) of the Membership Interests owned by all of such referenced group of Members.
(p) "Member" means each person designated as a member on Schedule A, attached hereto
and made a part hereof, any successor or successors to all or any part of any such person's interest in
the Company, or any additional member admitted as a member of the Company in accordance with
Article VII, each in the capacity as a member of the Company. "Members" means all such persons
collectively in their capacity as members of the Company.
(q) "Membership Interest" means the percentage of ownership interest of a Member of the
Company at any particular time.
(r) "Profits" means, for each Fiscal Year, the income and gains of the Company
determined in accordance with accounting principles consistently applied from year to year employed
under the cash receipts and disbursements method of accounting (or the accrual basis of accounting,
if applicable) and as reported, separately or in the aggregate, as appropriate, on the Company's
]AFFAR\cONSTRUCTION\BOARDWALK AT DOMINIK. u C\Co. Agreement Page 2
information tax return filed for federal income tax purposes, plus any income described in Section
705(a)(1)(B) of the IRS Code.
(s) "Voting Member" means each Member holding a Voting Rights Membership Interest
a reference herein to "Voting Member" should be construed to mean such a member only to the
extent of the Member's ownership of Voting Rights Membership Interests.
(r) "Voting Rights Membership Interest" means a Membership Interest that has the right
to vote on all matters brought before the Membership at all regular and special meetings.
ARTICLE 11
Formation of the Company
2.1 Name and Formation. The name of the Company is BOARDWALK AT DOM1 TIK,
LLC. The Certificate of the Company was filed with the Secretary of State of Texas, and the
Company was formed upon the issuance of the Certificate of Filing of the Company pursuant to the
Code.
2.2 Principal Place of Business. The principal place of business of the Company within
the State of Texas shall be as designated in the Certificate. The Company may locate its place(s) of
business and registered office at any other place or places as the Managers may from time to time
deem necessary or advisable.
2.3 Registered Office and Registered Agent. The Company's registered office and the
name of its initial registered agent at such address shall be as designated in the Certificate. The
Company may designate a different registered office or registered agent by the Majority vote of its
Managers and shall so designate by the proper filings with the Office of the Secretary of the State of
Texas.
2.4 Term. The term of existence of the Company shall be perpetual, unless the Company
is earlier dissolved in accordance with either the provisions of this Company Agreement or the Code.
2.5 Purposes and Powers.
(a) The purposes and character of the business of the Company shall be to accomplish all
lawful business for which limited liability companies may be organized under the Code.
(b) The Company shall have any and all powers that are necessary or desirable to carry
out the purposes and business of the Company, to the extent the same may be legally exercised by
limited liability companies under the Code. The Company shall carry out the foregoing activities
pursuant to the arrangements set forth in the Certificate of the Company and this Company
Agreement.
JAFFAR \CONSTRUCTION \BOARDWALK AT DOMINIK, LLC\Co. Agreement Page 3
ARTICLE III
Rights and Duties of Managers
3.1 Management. The powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed under, its designated
Manager or Managers. In addition to the powers and authorities expressly conferred by this Company
Agreement upon the Managers, the Managers may by a Majority vote exercise all such powers of the
Company and do all such lawful acts and things as are not directed or required to be exercised or
done by the Members by the Code, the Certificate of the Company or this Company Agreement,
including, but not limited to (i) contract for or incur debts, liabilities and other obligations on behalf
of the Company, and (ii) upon the Majority vote of the Voting Members, alter, restate, amend, or
change this Company Agreement including the right to retroactively alter, restate, amend, or change
this Company Agreement.
• 3.2 Number and Qualification. The number of Managers of the Company shall initially
be one (1), and shall always be one (1) or more, as may be determined by the Voting Members from
time to time. No decrease in the number of Managers shall have the effect of shortening the term of
any incumbent Manager. Managers need not be residents of the State of Texas or Members of the
Company. The Managers in their discretion may elect a chairman of the Managers who shall preside
at meetings of the Managers, and who, at the Managers' discretion, may be called "President ".
3.3 Election. At the first annual meeting of the Members and at each annual meeting
thereafter, the Voting Members shall elect one or more Managers to hold office until the next
succeeding annual meeting. A Manager, if duly elected, need not be a Member of the Company.
Unless removed in accordance with this Company Agreement, each Manager shall hold office for the
term for which he is elected and until his successor shall be elected and qualified.
3.4 Vacancy. Any vacancy occurring for any reason in the number of Managers shall be
filled by the affirmative vote of a Majority of the remaining Managers. A Manager elected to fill a
vacancy shall be elected for the unexpired term of the predecessor in office.
3.5 Removal. At a meeting called expressly for such purposes, all or any lesser number
of Managers may be removed at any time, with or without cause, by the affirmative vote of Voting
Members holding a Majority in Interest of all of the outstanding Voting Rights Membership Interests
in the Company.
3.6 Place of Meetings. All meetings of the Managers of the Company may be held either
within or without the State of Texas. --
3.7 Annual Meetings of Managers. The annual meeting of Managers shall be held,
without further notice, immediately following the annual meeting of Members, and at the same
place, or at such other time and place as shall be fixed with the consent in writing of all the
Managers.
3.8 Regular Meetings of Managers. Regular meetings of the Managers may be held
JAFFAR\CONSTRUCrION\BOARDWALK AT DOivIINRC, IiC\Co. Agreement Page 4
without notice at such time and place either within or without the State of Texas as shall from time to
time be determined by the Managers.
3.9 Special Meetings of Managers. Special meetings of the Managers may be called by at
least one half of the total number of Managers on ten (10) days written notice to each Manager.
3.10 Quorum. At all meetings of the Managers, the presence of a Majority of the
Managers shall be necessary and sufficient to constitute a quorum for the transaction of business
unless a greater number is required by law. The act of a Majority of the Managers present at a
meeting at which a quorum is present shall be the act of the Managers, except as otherwise provided
by law, the Company's Certificate or this Company Agreement. If a quorum shall not be present at
any meeting of the Managers, the Managers present at the meeting may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be present.
3.11. Attendance and Waiver of Notice. Attendance of a Manager at any meeting shall
constitute a waiver of notice of such meeting, except where a Manager attends a meeting for the
express purpose of objecting to the transaction of any business on the ground that the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the Managers need be specified in the notice or waiver of notice of such
meeting.
3.12 Compensation of Managers. Managers, as such, shall not receive any stated salary for
their services, but shall receive such compensation for their services as may be from time to time
agreed upon by a Majority in Interest of the Voting Members. Managers shall receive reimbursement
for expenses incurred on behalf of the Company, and in addition, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at each regular or special meeting of the Managers,
provided that nothing contained in this Company Agreement shall be construed to preclude any
Manager from serving the Company in any other capacity and receiving compensation for such
service.
3.13 Committees. The Managers may, by resolution, designate from among the Managers
one or more committees, each of which shall be comprised of one or more Managers, and may
designate one or more of the Managers as alternate members of any committee, who may, subject to
any limitations imposed by the Managers, replace absent or disqualified Managers at any meeting of
that committee. Such committee shall have and may exercise all of the authority of the Managers,
subject to the limitations set forth in the Code.
3.14 Designation of Officers. The Managers may designate, by Majority vote, such officer
or officers as the Managers may deem appropriate and may designate the term, duties and powers of
said officers. The titles assigned to such officer(s) are for descriptive purposes to facilitate business
transactions.
3.15 Action by Managers. An act of the Managers is effective if a Majority of the
Managers vote approval of the act at a meeting at which a quorum of Managers is present. Managers
may also act by the written unanimous consent of all the Managers without a meeting.
IAFFARICONSTRUCfIOMBOARDWALK AT DOMINIK, LLC\Co. Agreanatt Page 5
3.15 Resignation of Manager(s). Any Manager may resign without cause upon written
notice to the other Managers.
ARTICLE IV
Meetings of Members
4.1 Place of Meetings. All meetings of the Members shall be held at the principal office
of the Company or at such other place within or without the State of Texas as may be determined by
the Managers and set forth in the respective notice or waivers of notice of such meeting.
4.2 Annual Meetings of Members. The annual meeting of the Members of the Company
shall be for the election of Managers, if necessary, and the transaction of such other business as may
properly come before the meeting, and shall be held each year on the first (1st) business day of May
at 10:00 o'clock a.m. Notice of such annual meeting shall be given in the same manner as provided in
this Company Agreement for special meetings of the Members.
4.3 Special Meetings of Members. Special meetings of the Members may be called by
the Managers or by the holder or holders of more than fifty (50 %) percent of all outstanding
Membership Interests in the Company. Business transacted at all special meetings shall be confined
to the purposes stated in the notice.
4.4 Notice of Meetings of Members. Written or printed notice stating the place, day and
hour of the meeting and, in the case of special meetings, the purpose or purposes for which the
meeting is called, shall be delivered not less than ten (10) nor more than sixty (60) days before the
date of the meeting, either personally or by mail, by or at the direction of the Managers or person
calling the meeting, to each Member of record. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail addressed to the Member at his address as it appears on the
transfer records of the Company, with postage prepaid.
4.5 Quorum. A Majority in Interest, whether in person or by proxy, of the Voting
Members shall constitute a quorum at all meetings of the Members, except as otherwise provided by
law or the Certificate. Once a quorum is present at the meeting of the Members, the subsequent
withdrawal from the meeting of any Member prior to adjournment or the refusal of any Member to
vote shall not affect the presence of a quorum at the meeting. It however, such quorum shall not be
present at any meeting of the Members, the Members entitled to vote at such meeting shall have the
power to adjourn the meeting from time to time, without notice other than announcement at the
meeting, until the holders of the requisite amount of Membership Interests shall be present or
represented. At any meeting of the Members at which a quorum is present, the vote of the holders of
a Majority in Interest of all the Voting Members shall be the act of the Members, unless the vote of a
greater number is required by law, the Company's Certificate or this Company Agreement.
4.6 Voting on Matters Other Than the Election of Managers. Except as otherwise set
forth in this Company Agreement or the Company's Certificate, for purposes of voting on matters
other than the election of Managers or a matter for which the affirmative vote of the holders of a
JAFFAR\CONSTRUCTION'aOARDWALK AT DOMINDC. LLC.\Co. Apeman Page 6
specified portion of the Membership Interests entitled to vote is required by the Code, at any meeting
of the Members at which a quorum is present, the vote of a Majority in Interest of the Voting
Members present shall represent an affirmative vote of the Members.
4.7 Voting in the Election of Managers. For purposes of voting on the election of
Managers, Managers shall be elected at any meeting of the Members at which a quorum is present by
the affirmative vote of Voting Members holding a Majority in Interest of all of the outstanding
Voting Rights Membership Interests in the Company. Until such time as such a vote is taken, the
initial Managers shall serve as the only Managers of the Company.
4.8 List of Members Entitled to Vote. The Managers shall make, at least ten (10) days
before each meeting, including the adjournment of a prior meeting, of Members, a complete list of
the Members, arranged in alphabetical order, with the address of and the Membership Interests held
by each, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the
registered office of the Company and shall be subject to inspection by any Member at any time
during normal business hours. Such list shall also be produced and kept open at the time and place of
the meeting and shall be subject to inspection of any Member during the whole time of the meeting.
However, failure to comply with the requirements of this Section shall not affect the validity of any
action taken at such meeting.
4.9 Registered Members. The Company shall be entitled to treat the holder of record of
any Membership Interest as the holder in fact of such Membership Interest for all purposes, and
accordingly shall not be bound to recognize any equitable or other claim to or interest in such
Membership Interest on the part of any other person, whether or not it shall have express or other
notice of such claim of interest, except as expressly provided by this Company Agreement or the
laws of the State of Texas.
4.10 Actions Without a Meeting and Telephone Meetings. Notwithstanding any provisions
to the contrary contained in this Article IV, all actions of the Members provided for herein may be
taken by written consent without a meeting, or any meeting thereof may be held by means of a
conference telephone. Any such action which may be taken by the Members without a meeting shall
be effective only if the written consent or consents are in writing, set forth the action so taken, and
are signed by the holder or holders of all Membership Interests entitled to vote 011 such action.
ARTICLE V
Contributions to Capital; Capital Accounts; Membership
5.1 Capital Contributions.
(a) Upon the execution of this Company Agreement, each Member shall contribute to the
Company the cash or property set forth as the Initial Capital Contribution of such Member on
Schedule A (and its attachments), attached hereto. Such contribution shall be the Initial Capital
Contribution of each such Member and, upon such contribution, each Member shall receive its
designated Membership Interests. If the contribution is a promissory note or other obligation to pay
cash or transfer property as a loan to the Company, this Company Agreement shall serve as the
7AFFAR \CONSTRUCIION\BOARDWALK AT DOMINIK, U.C\Co. Agreement Page 7
written agreement of the Member relating thereto.
(b) No Member shall be paid interest on any Capital Contribution.
5.2 Capital Accounts.
(a) A separate Capital Account will be maintained for each Member. Each Member's
Capital Account will be increased by (i) the amount of money contributed by such Member to the
Company; (ii) the fair market value of any property contributed by such Member to the Company;
(iii) the amount of any Company liabilities that are expressly assumed by such Member or that are
secured by a Company property distributed to such Member; and (iv) the amount of profits allocated
to such Member. Each Member's Capital Account will be decreased by (i) the amount of money
distributed to such Member by the Company; (ii) the fair market value of any property distributed to
such Member by the Company; (iii) the amount of any liabilities of such Member that are expressly
assumed by the Company or that are secured by any property contributed by such Member to the
Company; and (iv) the amount of losses allocated to such Member.
(b) In the event of a permitted sale or exchange, in whole or in part of a Membership
Interest in the Company, the correct proportion of the Capital Account ofthe transferor shall become
the Capital Account of the transferee to the extent it relates to the transferred interest.
(c) The manner in which the Capital Accounts are to be maintained pursuant to this
Section is intended to comply with the requirements of IRS Code Section 704(6) and the Treasury
Regulations promulgated thereunder.
5.3 Withdrawal or Reduction of Members' Contributions to Capital.
(a) A Member shall not receive out of the Company's property any part of its Capital
Contributions until all liabilities of the Company, except the liabilities to Members on account of
their Capital Contributions, have been paid or there remains property of the Company sufficient to
pay such liabilities.
(b) No Member shall have the right to withdraw all or any part of its Capital Contribution
or to receive any return on any portion of its Capital Contribution, except as may be otherwise
specifically provided in this Company Agreement. Under circumstances involving a return of any
Capital Contribution, no Member shall have the right to receive property other than cash.
(c) No Member shall have priority over any other Member, either as to the return of
Capital Contributions or as to Profits, Losses or distributions; provided that this subsection shall not
apply to loans (as distinguished from Capital Contributions) which a Member has made to the
Company.
5.4 Liability of Members. No Member shall be liable for the debts, liabilities or
obligations of the Company beyond his respective Initial Capital Contribution. No Member shall be
required to contribute to the capital of the Company or to loan the Company any funds unless
JAFFARtCONSTRUCrIONNBOARDWALK AT DOMINIK, LLCACo. Agreement Page 8
'sae
otherwise agreed to in writing by the parties.
5.5 Membership Interests. The Company shall have two classes of Membership Interests,
Voting Rights Membership Interests and Non - Voting Rights Membership Interests. The only
difference between the two classes of Membership Interests is that Members holding Voting Rights
Membership Interests hold the right to vote those Membership Interests with respect to all matters
for which Members are allowed to vote, while Members holding Non - Voting Rights Membership
Interests shall only be allowed to vote such Membership Interests to the extent expressly permitted
by this Company Agreement.
The initial Membership Interests of each Member are set forth opposite each Member's
respective name on Schedule A, attached hereto and incorporated herein by reference.
ARTICLE VI
Allocations, Distributions, Elections and Reports
6.1 Allocations of Profits and Losses. The Profits and Losses of the Company for each
Fiscal Year shall be allocated among the Members in proportion to their respective Membership
Interests in the Company, or may be allocated in any other manner approved in writing by all
Members. Any credit available for federal income tax purposes shall be allocated among the
Members in the same manner.
6.2 Distributions. As a general rule, distributions of Distributable Cash or other property
shall be made to Members on a pro rata basis in proportion to their respective Membership Interests
on the record date of such distribution. However, distributions of Distributable Cash or other
property may also be made in any other manner approved in writing by Members holding a Majority
in Interest of the Voting Rights Membership Interests. Except as provided in Section 6.3, all
distributions of Distributable Cash and property shall be made at such times and in such amounts as
determined appropriate by a unanimous vote of the Managers. All amounts withheld pursuant to the
IRS Code or any provisions of state or local tax laws with respect to any payment or distribution to
the Members from the Company shall be treated as amounts distributed to the relevant Member or
Members pursuant to this Section.
6.3 Limitation Upon Distributions. No distribution shall be declared and paid unless,
after the distribution is made, the assets of the Company are in excess of all liabilities of the
Company, except liabilities to Members on account of their Capital Contributions.
6.4 Accounting Principles. The Profits and Losses of the Company shall be determined in
accordance with accounting principles applied on a consistent basis under the cash receipts and
disbursements method of accounting or the accrual basis, as applicable.
6.5 Records and Reports. At the expense of the Company, the Managers shall maintain
records and accounts of all operations and expenditures of the Company. At a minimum, the
Company shall keep at its principal place of business the following records:
]AFFAR \ CONSTRUCTION \BOARDWALK AT DOMINIK, L[.C\Co. Agreement Page 9
(a) A current list that states:
(i) the name and mailing address of each Member; and
(ii) the Membership Interests) owned by each Member.
(b) Copies of the federal, state and local information or income tax returns for each of the
Company's six most recent years;
(c) A copy of the Company's Certificate and this Company Agreement, all amendments
or restatements, executed copies of any powers of attorney, and copies of any document that creates,
in the manner provided by the Certificate or this Company Agreement, classes or groups of
Members;
(d) Correct and complete books and records of account of the Company; and
(e) Any other books, records or documents required by the Code or other applicable law.
6.6 Returns and Other Elections. The Managers shall cause the preparation and timely
filing of all tax returns required to be filed by the Company pursuant to the IRS Code and all other
tax returns deemed necessary and required in each jurisdiction in which the Company does business.
Copies of such returns, or pertinent information therefrom, shall be furnished to the Members within
seventy -five (75) days after the end of each Fiscal Year of the Company. All elections permitted to
be made by the Company under federal or state laws shall be made by the Managers with the consent
of a Majority in Interest of the Voting Members.
6.7 Tax Matters Partner. The Managers will appoint one of the Managers to be the "tax
matters partner" of the Company pursuant to section 6231(a)(7) of the IRS Code and may change
the tax matters partner from time to time as they may determine necessary. In the event the Person
appointed as the tax matters partner shall be removed, resign this position or no longer qualify, a
Majority of the Voting Members shall designate another Manager to be the "tax matters partner"
of the Company pursuant to section 6231(a)(7) of the IRS Code. Any Manager who is designated
"tax matters partner" shall inform each Member of all significant matters that may come to its
attention in its capacity as "tax matters partner" by giving notice thereof as soon as reasonably
possible.
ARTICLE VII
Transferability of Membership Interests
7.1 Restrictions on Transfer of Membership Interest.
The restrictions on a Member' s ability to sale, transfer, pledge, assign or otherwise alienate
their Membership Interests shall be part of a separate written agreement among the Members. All
such actions shall be null and void, unless expressly authorized in such agreement.
JAFFAR1cONSTRUCTIMBOARDWALK AT DOMINIK, L LC\Co. Agreemot Page 10
7.2 Additional Members.
Any person may, subject to the terms and conditions of this Company Agreement, become an
additional Member in the Company by the sale of new Membership Interests for the consideration
required by the Company, upon obtaining the written consent of Voting Members holding all of the
outstanding Voting Rights Membership Interests in the Company.
ARTICLE VIII
Dissolution and Termination
8.1 Dissolution.
(a) The Company shall be dissolved upon the first of the following to occur:
(i) Upon the election to dissolve the Company by the Voting Members holding
a Majority in Interest of all of the outstanding Voting Rights Membership Interests in the
Company;
(ii) Upon the death, withdrawal, expulsion, bankruptcy, legal incapacity or
dissolution of any Voting Member, or the occurrence of any other event which terminates the
continued membership of any Voting Member, unless there is at least one remaining Voting Member
and the business of the Company is continued by the written consent of a Majority in Interest of the
remaining Voting Members within ninety (90) days (if no Voting Members remain, then a Majority
in Interest of the remaining Members may vote to continue the business of the Company); or
(iii) The entry of a decree of judicial dissolution under Section 6.02 of the Code.
(b) Upon dissolution of the Company, the business and affairs of the Company shall
terminate, and the assets of the Company shall be liquidated under this Article VIII.
(c) Dissolution of the Company shall be effective as of the day on which the event occurs
giving rise to the dissolution, but the Company shall not terminate until there has been a winding up
of the Company's business and affairs, and the assets of the Company have been distributed as
provided in Section 8.2.
(d) Upon dissolution of the Company, the Managers may cause all or any part of the
assets of the Company to be sold in such manner as the Managers shall determine in an effort to
obtain the best prices for such assets; provided, however, that the Managers may distribute assets of
the Company in kind to the Members to the extent practicable.
8.2 Distribution of Assets Upon Dissolution. In settling accounts after dissolution, the
assets of the Company shall be paid in the following order:
(a) First, to creditors, in the order of priority as provided by law, except that Members of
JAFFAR \CONSTRUCr1ON\BOARDWALK AT DOMIN[K, LLC\Co. Agreement Page 11
the Company shall not be considered creditors on account of their Capital Contributions;
(b) Second, an amount equal to the then remaining credit balances in the Capital
Accounts of the Members shall be distributed to the Members in proportion to the amount of such
balances; and
(c) Third, any remainder shall be distributed to the Members of the Company, pro rata, in
accordance with their respective Membership Interests.
8.3 Distributions in Kind. If any assets of the Company are distributed in kind, such
assets shall be distributed to the Members entitled thereto as tenants -in- common in the same
proportions as the Members would have been entitled to cash distributions if such property had been
sold for cash and the net proceeds thereof distributed to the Members. In the event that distributions
in kind are made to the Members upon dissolution and liquidation of the Company, the Capital
Account balances of such Members shall be adjusted to reflect the Members' allocable share of gain
or loss that would have resulted if the distributed property had been sold at its fair market value.
8.4 Cancellation of Certificate of Formation. When all liabilities and obligations of the
Company have been paid or discharged, or adequate provision therefor has been made, and all of the
remaining property and assets of the Company have been distributed to the Members according to
their respective rights and interests, the Managers shall file all documentation required to formally
cancel the Company's Certificate and reflect the dissolution and termination of the Company.
ARTICLE IX
Miscellaneous Provisions
9.1 Notices. Any notice, demand or communication required or permitted to be given by
an provision of this Company Agreement shall be deemed to have been sufficiently given or served
for all purposes if delivered personally to the party or to an officer of the party to whom the same is
directed or, if sent by registered or certified mail, postage and charges prepaid, addressed to the
Member's and/or Company's address as (it appears in the Company's records), as appropriate. Except
as otherwise provided herein, any such notice shall be deemed to be given three business days after
the date on which the same was deposited in a regularly maintained receptacle for the deposit of
United States mail, addressed and sent as aforesaid.
9.2 Application of Texas Law. This Company Agreement, and the application or
interpretation hereof, shall be governed exclusively by the laws of the State of Texas, including but
not limited to, the provisions of the Code.
9.3 No Action for Partition. No Member, Additional Member, Substitute Member,
assignee or transferee shall have any right to maintain any action for partition with respect to the
property of the Company.
9.4 Headings and Sections. The headings in this Company Agreement are inserted for
convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent
JAFFAR \CONSTRUCrION\BOARDWALK AT DOMIN K. u.Ocb. Aggeement Page 12
or intent of this Company Agreement or any provision hereof. Unless the context requires otherwise,
all references in this Company Agreement to Sections or Articles shall be deemed to mean and refer
to Sections and Articles of this Company Agreement.
9.5 Amendment of Certificate and Company Agreement. Except as otherwise expressly
set forth in this Company Agreement, the Certificate of the Company and this Company Agreement
may be amended, supplemented or restated only upon the Majority vote of all Managers and the
unanimous consent of Members owning all of the Membership Interests in the Company. Upon
obtaining the approval of any amendment to the Certificate, the Managers shall cause a Certificate of
Amendment to be prepared and filed in accordance with the Code.
9.6 Numbers and Gender. Where the context so indicates, the masculine shall include
feminine and neuter, and the neuter shall include the masculine and feminine, the singular shall
include the plural and any reference to a "person" shall mean a natural person or a corporation,
limited liability company, association, partnership, joint venture, estate, trust or any other entity.
9.7 Binding Effect. Except as herein otherwise provided to the contrary, this Company
Agreement shall be binding upon and inure to the benefit of the Members, their distributees, heirs,
legal representatives, executors, administrators, successors and assigns.
9.8 Counterparts. This Company Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original and shall be binding upon the Members who have
executed the same, but all of such counterparts shall constitute the same Company Agreement.
ARTICLE X
Indemnification
The Company agrees to indemnify, defend, and hold harmless each of the following:
(a) The Members, Managers and officers of the Company as well as their officers,
managers, members, partners, owners, employees, and agents, (the "Indemnified Persons ") if any,
from and against all Claims they may incur as a result of having been, being, or threatened to be
made a named defendant or respondent in a Proceeding because it is or was a Member, Manager
or officer in the Company or is performing or had performed the obligations of the Member,
Manager or officer with respect to the Company, SPECIFICALLY INCLUDING CLAIMS
BASED ON OR ARISING FROM THEIR SOLE, PARTIAL, OR CONCURRENT
NEGLIGENCE, but excluding any such items incurred as a result of acts of gross negligence or
willful or intentional acts against the Company.
(b) Each Indemnified Person from and against all Claims such person may incur as a result
of appearing as a witness or other participation in a legal proceeding that involves or affects the
Company.
(c) Each Indemnified Person from and against all Claims such person may incur as a result
of having performed or performing services for the Company, SPECIFICALLY INCLUDING
JAFFARICONSTRUCf1ONIBOARDWALK AT DOMINIK, LLQCo. Agreement Page 13
CLAIMS BASED ON OR ARISING FROM THE INDEMNIFIED PERSON'S SOLE, PARTIAL,
OR CONCURRENT NEGLIGENCE.
(d) The rights of an Indemnified Person under this Article X include the right to be paid or
reimbursed by the Company for reasonable expenses incurred in defending any legal proceeding in
advance of its final disposition.
(e) If a claim for indemnification or advancement of expenses hereunder is not paid in full
by the Company within 90 days after written claim has been received by the Company, the person
seeking a remedy under this Section may at any time thereafter bring suit against the Company to
recover the unpaid amount of the claim, and if successful in whole or in part, the person seeking a
remedy under this Section will also be entitled to be paid the expenses of prosecuting such claim.
(f) The right of any Indemnified Person under this Article X will survive the termination of
that person's status as an Indemnified Person and the termination of this Company Agreement and
the dissolution of the Company.
(g) In the event of the death of a person seeking a remedy under this Article X, the right
under this article will inure to the benefit of such person's heirs, executors, administrators, and
personal representatives.
(h) The rights conferred in this Article X will not be exclusive of any other right that a
person seeking a remedy under this article may have or hereafter acquire under any statute,
resolution of Members, Managers agreement, or otherwise.
IN WITNESS WHEREOF, the undersigned, being all of the Managers of the Comp y,
have caused this Company Agreement to be duly adopted by the Company effective the .pr
of November 2011.
MAN; ERS: �
` �
Russell Gray
—
The undersigned, being the initial Members of the Company, do hereby ratify, confirm and
approve the adoption of this document as the Company Agreement of the Company, and do hereby
assume and agree to be bound by and to perform all of the terms and provisions set forth in this
Company Agreement.
US 1031 Xchange, Ltd. a Texas Limited Partnership
By: 1031 MGMT, LLC a Texas Limited Liability
Comb: y
By: Russell Gray, M. J :1; 11 ember
r
JAFFAR \C NSTRUCTIONNBOARDWAIK AT DOMINIK, L[.C1Co. Agreement Page 14
COMPANY AGREEMENT OF BOARDWALK AT DOMINIK, LLC
SCHEDULE A
Names, Addresses, and Initial Membership Interests of the Initial Sole Member
Names and Addresses of Initial Membership Initial Capital
Members Interests Contribution
US 1031 Xchange, Ltd., a 1,000 Units of Voting Rights $1.00
Texas limited partnership Membership Interests
PO Box 7015
Bryan, TX 77805
�. ��