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HomeMy WebLinkAboutECHDA22-04 Spring Creek II LLC RESTATED Organizational Summary, Consent, and Resolution of Spring Creek II LLC Page 1 of 5 Spring Creek II LLC - Restated Organizational Summary, Consent, and Resolution This instrument is the Restated Organizational Summary, Consent, and Resolution (the “Resolution”) of Spring Creek II LLC, a Colorado limited liability company (the “Company”). Pursuant to the Operating Agreement of the Company (the “Operating Agreement”), and applicable law, the undersigned, being the Members and Managers of the Company (the “Parties”), acting without notice or a meeting, waive notice and the holding of a meeting and unanimously consent to, adopt, resolve, and agree as stated in this Resolution and the Operating Agreement. This restated Resolution is for the purpose of updating the Members’ capital contributions, capital interests, profits interests, and loans made by Members to reflect the final predevelopment costs, financing structure, and other figures from the construction financing closing on February 8, 2021. The Parties agree that such actions and resolutions shall have the same force and effect as if duly taken and adopted at a meeting of the Parties, duly called and legally held. The Parties agree to be bound by their telecopied signatures and agree that the Company may rely on their telecopied signatures. This Resolution may be executed in multiple counterparts which together will constitute one and the same instrument. 1. The Articles of Organization, as amended and restated, as filed in the office of the Secretary of State of Colorado are approved, ratified, and adopted. The actions of the Organizer are ratified. The Organizer, in his capacity as organizer and filer of the Articles, is discharged of any further duty to the Company. 2. The Members and Managers have received the Operating Agreement, in the form presented, attached, and incorporated hereto, and by signing this Resolution, acknowledge they have read and understand each and every aspect of the Operating Agreement, and agree as stated herein and therein. 3. As specified in the Member roster below, and in exchange for the Capital Contributions made by each Member, the receipt of which is acknowledged by the Company, each owns the Membership Interest set forth below (respectively). Except for as set forth in the roster below, no other Units have been authorized or issued as of the date of this Consent. (continued on the following page, remainder of this page intentionally blank) DocuSign Envelope ID: 43E51320-723E-4739-B06F-D17B688077EADocuSign Envelope ID: C7B1C854-34D1-41D4-9B9B-240595800885 RESTATED Organizational Summary, Consent, and Resolution of Spring Creek II LLC Page 2 of 5 Name of Member Capital Contribution Capital Interest Units Profits Interest Spring Creek Apartments LLC Cash: $957,021.00 Land: $2,845,866.00 Pre-Development Costs: $2,044,166.00 Total: $5,847,053.00 85.39% 900 90% PCS Holdings LLC Cash: $1,000,000.00 14.60% 100 10% Eagle County Housing and Development Authority (“ECHDA”) (Special Member) Cash: $100.00 0.01% 0 0% TOTALS: $6,847,153.00 100% 1,000 100% 4. The above listed Members agree to make their respective Capital Contributions and are admitted as Members to the Company. 5. Each Member (other than ECHDA) covenants and represents (respectively) that it is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, and as defined in any corollary “blue-sky” law of the State of Colorado, all as amended. 6. The number of Managers of the Company shall be at least 1 and no more than 2. 7. The general structure of the Company is set forth in the organizational chart, below. 8. The following named Persons are the duly appointed and elected Managers of the Company, to serve until qualified successors are duly elected: Spring Creek Apartments LLC 9. The Management Fee to the Managers for services rendered is to be determined per the Operating Agreement. 10. The following named person is elected as the Partnership Representative for the Company to serve until a qualified successor is elected. Gerald E. Flynn 11. The “Majority of the Members” is 51% and any vote, consent, or approval requiring a Majority of the Members will pass if the total Units voted in favor, compared to/divided by the total number of Units entitled to vote on the matter, are equal to or greater than such percentage. 12. The marketability discount rate applied to Units, as referenced in the Operating Agreement, is 15%. DocuSign Envelope ID: 43E51320-723E-4739-B06F-D17B688077EADocuSign Envelope ID: C7B1C854-34D1-41D4-9B9B-240595800885 RESTATED Organizational Summary, Consent, and Resolution of Spring Creek II LLC Page 3 of 5 13. The business purpose of the Company is to develop, construct, own, and operate the Project 1, and lease and/or sell real estate in Eagle County, Colorado, and all activities necessary, customary, convenient, or incident to the business purpose. 14. The Manager is authorized to conduct activities and execute documents on behalf of the Company in connection with the management and operation of the Company. 15. The Parties authorize and direct the Manager to cause the Company to take the actions listed above. A third party is entitled to rely upon the authority given herein, and a third party is under no obligation to make any inquiries or other investigation to verify or confirm the authority given herein. 16. All definitions, terms, conditions, and agreements contained in this Resolution and/or the Operating Agreement are incorporated into and apply to both this Resolution and the Operating Agreement. This Resolution may be executed in counterparts, with copies exchanged electronically, each of which when taken together will constitute one and the same document. 1 As defined in Section 2.08(a), the “Project” means the approximately 132-unit multifamily rental housing development and other improvements to be constructed, owned and operated thereon by the Company, and to be known as Spring Creek II. DocuSign Envelope ID: 43E51320-723E-4739-B06F-D17B688077EADocuSign Envelope ID: C7B1C854-34D1-41D4-9B9B-240595800885 RESTATED Organizational Summary, Consent, and Resolution of Spring Creek II LLC Page 4 of 5 Business Expenses (Business costs such as management fees, development fees, professional fees, marketing costs, operational costs, loan payments, etc) Gross Revenue Ordinary “Net Cash Flow” Distributions The first $4,000,000.00 of Net Cash Flow distributed will be made in the proportional amounts of 75% to Spring Creek Apartments LLC and 25% to PCS Holdings LLC; and then all other Net Cash Flow will be distributed to the Members based on their Profits Interest percentages Liquidating Distributions Liquidating distributions will be made to the Members proportionally based on positive Capital Account balances Customer/Client Spring Creek II LLC (LLC w/Partnership Taxation) Revenue Stream Goods/Services Lease/Sell Real Estate Spring Creek Apartments LLC (Member) 900 Units 90% Profits Interest $5,847,053 Capital Contrib. 85.39% Capital Interest PCS Holdings LLC. (Member) 100 Units 10% Profits Interest $1,000,000 Capital Contrib. 14.60% Capital Interest Eagle County Housing and Development Authority (Special Member) 0 Units 0% Profits Interest $100 Capital Contrib. 0.01% Capital Interest DocuSign Envelope ID: 43E51320-723E-4739-B06F-D17B688077EADocuSign Envelope ID: C7B1C854-34D1-41D4-9B9B-240595800885 RESTATED Organizational Summary, Consent, and Resolution of Spring Creek II LLC Page 5 of 5 IN WITNESS WHEREOF, the Company, Managers, and Members have executed and adopted this Resolution and the Operating Agreement as of the effective date written below. The undersigned, being all the parties to this Resolution and the Operating Agreement, have read and understand this Resolution and Operating Agreement and its amendments, have had the opportunity to review same with independent counsel, and voluntarily agree to and enter same effective the Effective Date. Effective as of February 8, 2021 (the “Effective Date”) MANAGERS (signing for themselves as Mangers and for the Company): MEMBERS: SPRING CREEK II LLC: By: Spring Creek Apartments LLC, Manager of Spring Creek II LLC By: Polar Star Development LLC, Manager of Spring Creek Apartments LLC By: ___________________________________ Gerald E. Flynn, Managing Member of Polar Star Development LLC Spring Creek Apartments LLC By: Polar Star Development LLC, its Manager By: ___________________________________ Gerald E. Flynn, its Managing Member and Authorized Representative SPRING CREEK II LLC: By: Spring Creek Apartments LLC, Manager of Spring Creek II LLC By: Stone Valley, LLC, Manager of Spring Creek Apartments LLC By: ________________________________ Jeffery M. Spanel, Manager of Stone Valley, LLC PCS Holdings LLC. By: ________________________________ Print: _______________________________ Title: _______________________________ Eagle County Housing and Development Authority (Special Member): By: ________________________________ Print: _______________________________ Title: _______________________________ DocuSign Envelope ID: 43E51320-723E-4739-B06F-D17B688077EA Rick Patriacca Manager DocuSign Envelope ID: C7B1C854-34D1-41D4-9B9B-240595800885 Aproved as to form: Commissioner Jeanne McQueeney