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Home My WebLink AboutR09-043 The Valley Home Store LLCCommissioner moved adoption of the follo ing Resolution: EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY COUNTY OF EAGLE, STATE OF COLORADO RESOLUTION NO. ~~ RESOLUTION APPROVING FORMATION OF THE VALLEY HOME STORE, LLC WHEREAS, the Eagle County Housing and Development Authority, a body corporate and politic, administers various housing programs, including the sale ofdeed- restrictedhousing stock and down-payment assistance program; and WHEREAS, in this capacity, the Eagle County Housing and Development Authority employs licensed real estate brokers to manage certain of these program functions; and WHEREAS, the Eagle County Housing and Development Authority desires to create a controlled entity to assist the Authority in undertaking Projects (as defined in CRS 29-4-502(5)), including by undertaking the following: 1) to interface with the public in the administration of the Eagle County Housing and Development Authority's programs; 2) to hold its employees' broker's licenses; and 3) to perform other functions that may be performed by limited liability companies to further the goals and purposes of the Eagle County Housing and Development Authority, including the creation and maintenance of housing affordable to Eagle County's residents, particularly its workforce and senior population; and WHEREAS, the Eagle County Housing and Development Authority, in forming The Valley Home Store, LLC, intends to create a controlled entity pursuant to CRS 29-4- 5 05 (1)(~ and CRS 29-4-209(1)(4.7); and WHEREAS, the Eagle County Housing and Development Authority, in forming The Valley Home Store, LLC, intends to .create apass-through entity for tax purposes; and WHEREAS, the Eagle County Housing and Development Authority has selected the Economic Council of Eagle County, Inc., a Colorado non-profit corporation to participate as a one-tenth percent (. l %) member in order to serve this function, with the Eagle County Housing and Development Authority. to hold the remaining ninety-nine and nine-tenths percent (99.9%) interest. NOW, THEREFORE, BE IT RESOLVED BY THE EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, BY AND THROUGH ITS CHAIRMAN: BUS_RE12470687.1 THAT, the Commissioners of the Eagle County Housing and Development Authority hereby authorize the Chairman of the Eagle County Housing and Development Authority to execute and file on its behalf, or to cause to be executed and filed on its behalf, any and all necessary documents, instruments, papers or other forms relevant to the formation of The Valley Home Store, LLC, including but not limited to the Operating Agreement attached hereto as Exhibit "A" and the Articles of Organization attached hereto as Exhibit "B". THAT, this Resolution is necessary for the public health, safety and welfare of the residents of the County of Eagle, State of Colorado. MOVED, READ AND ADOPTED by the Eagle County Housing and Develop ~ t Autho ity of the County of Eagle, State of Colorado at .its regular meeting held this day of , 2009. .EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, By and Through its Board of Commissioners By: Sara J. Fisher, Chairman Peter F. Runyon, ~mm' loner Commissioner seconded adoption of the foregoing, resolution. The roll having been called, the was as follows: Commissioner Fisher Commissioner Runyon Commissioner Stavney BUS_RE12470687.1 Eagle County Clerk & Recorder This Resolution passed by Commissioners of the Eagle County corporate and politic. 3~~ vote of the Board of Housing and Development Authority, a body BUS_RE12470687.1 EXHIBIT "A" ~~ !~' C' ~ ~,e~ L , OPERATING AGREEMENT OF THE VALLEY HOME STORE, LLC May 5, 2009 THE OWNERSHIP INTERESTS IN THIS LIMITED LIABILITY COMPANY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR STATE SECURITIES AUTHORITIES AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTNE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO THE MANAGER THAT REGISTRATION IS NOT REQUIRED. THE SALE OR OTHER TRANSFER OF THE OWNERSHIP INTERESTS IS ALSO RESTRICTED BY CERTAIN PROVISIONS IN THIS AGREEMENT. BUS_RE12466291.1 TABLE OF CONTENTS ARTICLE 1: FORMATION AND DEFINITIONS .................................................................... 1 1.1 Formation ................................................:.................. . ........................................... 1 1.2 Name ...................................................................................................................... 1 1.3 Members ................................................................................................................ l 1.4 Economic Interest .........................:........................................................................ 1 1.5 Registered Agent and Office ...... . ..................... . .........................:.......................... 1 1.6 Foreign Qualification ............................................................................................. 1 1.7 Term ....................................................................................................................... 1 1.8 Definitions .............................................................................................................1 ARTICLE 2: PURPOSE AND POWERS ................................................................................. ..9 2.1 Purpose ................................................................................................................ ..9 2.2 Powers .................................................................................................................. ..9 ARTICLE 3 : CAPITAL OF THE COMPANY .... . ............................................... . .................... .. 9 3.1 Capital Contributions ........................................................................................... ..9 3.2 Capital Accounts .......................:.......................................................................... ..9 3.3 Transfer ..:............................................................................................................. 10 3.4 Adjustments ......................................................................................................... 10 3.5 Market Value Adjustments .................................................................................. 10 3.6 No Withdrawal of Capital .................................................................................... 10 3.7 No Interest on Capital .......................................................................................... 11 3.8 No Drawing Accounts ......................................................................................... 11 3.9 Working Capital Reserve ..................................................................................... 11 ARTICLE 4: INCOME AND LOSSES .................................................................................... 11 4.1 Allocation of Net Income and Net Loss .............................................................. 11 4.2 Company Minimum Gain Chargeback ................................................................ 11 4.3 Minimum Gain Chargeback for Member Nonrecourse Debt ...........................:.. 11 4.4 Qualified Income Offset ...................................................................................... 11 4.5 Limit on Net Loss Allocations ............................................................................. 12 4.6 Loss from Member Nonrecourse Debt ................................................................ 12 4.7 Nonrecourse Deductions ...................................................................................... 12 4.8 . ~ § 754 Adjustments ............................................................................................... 12 4.9 Reversal of Mandatory Allocations ...............................:..................................... 12 4.10 Compliance with Code ........................................................................................ 12 4.11 Tax Allocations - § 704(c) ................................................................................ 12 4.12 Allocation on Transfer ......................................................................................... 13 ARTICLE 5: DISTRIBUTIONS ...................................................................................:........... 13 5.1 ~ Distributions Generally .....................................................................................:.. 13 5.2 Payment ............................................................................................................... 13 5.3 Withholding ......................................................................................................... 13 5.4 Distribution Limitation ........................................................................................ 3 ARTICLE 6: MANAGEMENT ................................................................................................ 14 6.1 Management ........................................................................................................ 14 6.2 Actions or Decisions by the Manager .................................................................. 14 6.3 Officers ..................................................:............................................................. 1 BUS_RE12466291.1 6.4 Other Activities ..............................................................:..................................... 15 6.5 Payment of Management Costs ........................................................................... 15 6.6 Compensation for Services :...........................................................:..................... 15 ARTICLE 7: LIABILITY OF A MEMBER AND THE MANAGER; MEMBER VOTING.. 15 7.1 Limited Liability ..........:........................................:...........................................:.. 15 7.2 Capital Return ...................................................................................................... 16 7.3 Reliance ............................................................................................................... 1 7.4 Member Voting..........: ..................................................................................f,..... 16 ARTICLE 8: STANDARD OF CARE, INDEMNIFICATION, AND EXCULPATION ........ 16 8.1 Standard of Care .................................................:................................................ 16 8.2 Exculpation .................................................................:......,................................. 16 8.3 Indemnification .:......................................................................................:........... 16 8.4 .Expense Advancement .............................................. . .. . ....................................... 17 8.5 Insurance ..................................................................................................:........... 17 8.6 Indemnification of Others . .........:........................................................................: 17 ARTICLE 9: ACCOUNTING AND REPORTING ................................. . .............................. 17 9.1 Fiscal Year .....................................................................................:..................... 17 9.2 ~ Accounting Method .............................................:............................................... 17 9.3 Tax Classification ................................................................................................ 17 9.4 Returns ......:.......................................................................................................... 17 9.5 ~ Reports .................................................................:...,....,........,...................,......... 17 9.6 Audit .................................................................................................................... 17 9.7 Books and Records ........................:...........................................:..............:.......... 18 9.8 Banking ............................................:................................................................... 18 9.9 Tax Matters Partner ............................................................................................. 18 9.10 No Partnership ..................................................................................................... 18 9.11 Confidentiality ..................................................................................................... 19 9.12 No Tax Advice ...........................................................:......................................... 19 ARTICLE 10: DISSOLUTION .................................................................................................. 19 10.1 Dissolution ......:.....................................:.............................................................. 19 10.2 Events of Withdrawal .......................................................................................... 19 10.3 Continuation; Effect of Withdrawal .................................................................... 20 ARTICLE 11: LIQUIDATION ........................... . ................................................. . ................... 20 11.1 Liquidation ...............................................................................:........................... 20 11.2 Priority of Payment ..................................... . ........................................................ 20 11.3 Liquidating Distributions ....................................................................................1 21 11.4 No Restoration Obligation ................................................................................... 21 11.5 Liquidating Reports ...:...........:.....................:....................................................... 21 11.6 Statement of Dissolution ...............................................~.......,.............................. 21 ARTICLE 12: TRANSFER RESTRICTIONS ........................1.................,............................... 21 12.1 General Restriction ..............................................................................................21 12.2 No Member Rights..........: ...................................................................................22 12.3 Effect of Resignation, Retirement, Withdrawal ...................................................22 12.4 Conditions on Transfers .......................................................:.............,...........,.....22 12.5 Rights of Transferees ...........................................................................................22 12.6 Admission ............................................................................................................23 11 BUS_RE12466291.1 12.7 Company Redemption Option; Right to Require Transfer....~ ............................. 23 ARTICLE 13: GENERAL PROVISIONS ................................................................................ 23 13.1 Amendment .......................................................................................................... 23 13.2 Representatlons .................................................................................................... 13.3 Unregistered Interests .......................................................................................... 25 13.4. Waiver of Dissolution Rights ........................................~.........:............................ 25 13.5 Waiver of Partition Right ..................................................................................... 25 .13.6 Waivers Generally .......:....................................................................................... 25 13.7 Equitable Relief ..... . ............... . ............................................................................. 2 13.8 Remedies for Breach ............................................................................................ 25 13.9 Costs .................................................................................................................... 26 13.10 Indemnification .................................................................................................... 26 13.11 Counterparts ......................................................................................................... 26 13.12 Notice ................................................................................................................... 26 13.13 Deemed Notice .................................................................................................... 26 13.14 Partial Invalidity .................................................................................................. 2 .13.15 Entire Agreement ................................................................................................. 27 13.16 Benefit .................................................................................................................. 27 13,17 Binding Effect ...................................................................................................... 27 13.18 Further Assurances .............................................................................................. 27 13.19 Headings ...........................................................:.................................................. 27 13.20 Terms ................................................................................................................... 27 13.21 Governing Law............. ........................................................................................ 27 13.22 Conflicts ............................................................................................................... 27 BUS_RE12466291.1 .. 111 OPERATING AGREEMENT OF THE VALLEY HOME STORE, LLC This Operating Agreement is made effective as of May 5, 2009 (the "Effective Date"), by and among all of the Members of The Valley Home Store, LLC, a Colorado limited liability company. Inconsideration of our mutual promises and obligations, and with the intent of being legally bound, we agree as follows: ARTICLE 1: FQRMATION AND DEFINITIONS 1.1 Formation. The Company was formed on May 5, 2009, by filing Articles of Organization with the Colorado Secretary of State pursuant to the Act and on behalf of all of the initial Members of the Company. 1.2 Name. The name of the Company is The Valley Home Store, LLC. The business of the Company will be conducted under such name, as well as any other name or names as the Manager may from time to time determine. 1.3 Members. The name and address of each Member of the Company is set forth on the attached Exhibit A, which may be amended by the Manager from time to time to reflect changes made in accordance with this Agreement. 1.4 Economic Interest. The Economic Interest initially held by each Member, expressed both as a percentage and in terms of numbers of Units, is set forth on the attached Exhibit B, which maybe amended by the Manager from time to time to reflect changes made in accordance with this Agreement in the Members and the number of Units held by them. 1.5 Registered Agent and Office. The initial registered agent and registered office of the Company in Colorado will be Bryan Treu, Eagle County Attorney, 500 Broadway, Box 850, Eagle, CO 81631-0850. The Company may change its registered agent or registered agent address in accordance with the Act. 1.6 Foreign Qualification. The Company will apply for any required certificate of authority to do business in any state or jurisdiction, as required or appropriate. 1.7 T_ erm. The Company will be effective from the date its Articles of Organization are filed with the Colorado Secretary of State and will continue in perpetuity, unless and until a Dissolution occurs under 10.1 and a statement of dissolution is filed with the Colorado Secretary of State pursuant to 11.6. 1.8 Definitions. The following capitalized terms, when used in this Agreement, have the meanings set forth below: BUS_RE12466291.1 Act: the Colorado Limited Liability Company Act, as amended from time to time. Adjusted Capital Account Deficit: with respect to any Member, the deficit balance, if any, in such Member's Capital .Account as of the end of the relevant taxable year, after giving effect to the following adjustments: [a] credit to such Capital Account any amounts which such Member [i] is obligated to restore to the Company upon liquidation of such Member's interest in the Company (or which is so treated pursuant to Regulation § 1.704-1(b)(2)(ii)(c)) pursuant to the terms of this Agreement or under state law or [ii] is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations § § 1.704-2(g)(1) and 1.704- 2(i)(5); and [b] debit to such Capital Account the items described in §§ 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6) of the Regulations. The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of § 1.704-1(b)(2)(ii)(d) of the Regulations and will be interpreted consistently with such section. Adjusted Capital Contribution Amount: as of any date with respect to any Member, the aggregate net value of Capital Contributions made by such Member on or prior to such date, less all Distributions previously made to that Member pursuant to 5.1 [a]. Affiliate: with respect to any Person, any Person that directly or indirectly Controls, is Controlled by, or is under common Control with such Person, including, without , limitation, any Person that directly or indirectly owns, Controls or holds with power to vote 10% or more of the outstanding voting securities or other voting ownership interests of such Person, any Person 10% or more of whose outstanding voting securities or other voting ownership interests are directly or indirectly owned, Controlled or held with power to vote by-such Person, any partnership in which the specified Person is a general partner, any officer or director of the specified Person, any limited liability company in which the 2 BUS_RE12466291.1 specified Person is a manager,, and any entity of which such Person is an executive officer, director, general partner, or manager. Agreement: this Operating Agreement, as amended from time to time. Articles of Organization: the Articles of Organization of the Company, as amended from time to time with the consent of the Manager. Bankruptcy: A Person will be deemed bankrupt if: [a] any proceeding is commenced against such Person as "debtor" for any relief under bankruptcy or insolvency laws, or laws relating to the. relief of debtors, reorganizations, arrangements, compositions, or extensions and such proceeding is not dismissed or stayed within one hundred twenty (120) days after such proceeding has commenced, or [b] such Person commences any proceeding for relief under bankruptcy or insolvency laws or laws relating to the relief of debtors, reorganizations, arrangements, compositions, or extensions. Book Value: with respect to any asset, the asset's adjusted basis for federal income tax purposes, except as follows: [a] the initial Book Value of any asset contributed (or deemed contributed under § 1.704-1(b)(1)(iv) of the Regulations) by a Member to the Company will be the asset's Fair Market Value at the time of the contribution; [b] the Book Value of all Company assets will be adjusted to equal their respective Fair Market Values, as determined by the Manager in its reasonable judgment: [i] as of [A] the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis capital contribution, [B] the distribution by the Company to a Member of more than a de minimis amount of Company property as consideration for an interest in the Company, or [C] the issuance of an interest in return for services; and [ii] as of the liquidation of the Company within the meaning of Regulations § 1.704- 1(b)(2)(ii)(g); 3 BUS RE12466291.1 [c] the Book Value of any Company asset distributed to any Member will be the Fair Market Value of the asset on the date of distribution; and [d] the Book Values of Company assets will be increased or decreased to reflect any adjustment to the adjusted basis of the assets under Code §§ 734(b) or 743(b), but only to the extent that the adjustment is taken into account in determining Capital Accounts under Regulations § 1.704-1(b)(2)(iv)(m), but Book Values will not be adjusted pursuant to this provision to the extent that the Manager determines that an adjustment under clause [b] is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment under this clause [d]. After the Book Value of any asset has been adjusted under clause [a], clause [b] or clause [d] above, Book Value will be adjusted by the Depreciation taken into account with respect to the asset for purposes of computing Net Income and Net Loss. Capital Account: the capital account of a Member established and maintained in accordance with 3.2. Capital Contribution: any contribution of money or property by a Member to the Company, Code: the Internal Revenue Code of 1986, as amended from time to time (including corresponding provisions of subsequent revenue laws). Company: The Valley Home Store, LLC, as formed under the Articles of Organization and governed by this Agreement. Company Minimum Gain: the amount computed under Regulations § 1.704- 2(4)(1)with respect to the Company's Nonrecourse Liabilities. Control: with respect to any Person, the power by such Person to elect a majority of the board of directors (or the majority of the officeholders of any similar governing body) of such Person, to act as the general partner or the manager of such Person, or otherwise to make substantially all decisions with respect to such Person (subject to typical limitations for the protection of minority owners or investors), whether by ownership of 4 BUS_RE12466291.1 stock, voting trusts, proxies, powers of attorney, or otherwise. Depreciation: for each taxable year or other. period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for the year or other period, except that if the Book Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of the year or other period, Depreciation will be an amount that .bears the same ratio to the beginning Book Value as the federal income tax depreciation, amortization or other cost recovery deduction for the year or other period bears to the beginning adjusted tax basis, but ~if the federal income tax depreciation, amortization, or other cost recovery deduction for the year or other period is zero, Depreciation will be determined with reference to the beginning Book Value using any reasonable method selected by the Manager. Dissolution: the happening of any of the events set forth in 10.1. Distribution: the amount of any money or the Fair Market Value of any property distributed by the Company to the . Members as an operating or liquidating distribution in accordance with this Agreement. ECEC: Economic Council of Eagle County, Inc. ECHDA: Eagle County Housing and Development Authority. Economic Interest: each Member's (or Transferee's) percentage interest (to the nearest one-thousandth of a percent) in the Income of the Company as specified in Exhibit B, as amended from time to time in accordance with this Agreement, determined by dividing the number of Units held by a Member (or Transferee) by the aggregate number of Units outstanding. Fair Market Value: the cash price at which a willing seller would sell and a willing buyer would buy, both having full knowledge of the relevant facts and being under no compulsion to buy or sell, in an arm's-length transaction without time constraints, as determined by the Manager. Fiscal Year: the period commencing on January 1 of each year and ending on December 31 of such year, but the first Fiscal Year will begin on the date of this Agreement and the 5 BUS RE12466291.1 last Fiscal Year will end on the date on which the Company is terminated. Income: for each Fiscal Year, each item of income and gain as determined, recognized and classified for federal income tax purposes, but [a] any income or gain that is exempt from federal income tax will be included as if it were an item of taxable income, [b] any income or gain attributable to the taxable disposition of any Company asset will be computed by the Company as if the adjusted basis of such asset as of the date of the disposition were equal in amount to the Company's Book Value with respect to such asset as of such date, [c] in the event of a Distribution of any Company asset, whether or not in connection with a Liquidation of the Company, such event will for Capital Account purposes be a deemed taxable disposition of such Company asset immediately prior to such Distribution and income or gain will be computed and allocated among the Members as if such property were actually disposed of for an amount realized equal to the Fair Market Value of such asset and as if the adjusted basis of such asset was equal to its Book Value at such time, and [dJ in the event the Book Value of any Company asset is adjusted upwards pursuant to the definition of Book Value the amount of such adjustment will be taken into account for Capital Account purposes as income or gain from the disposition of such Company asset and allocated among the Members. Liquidation: the process of winding up and terminating .the Company after its Dissolution. Loss: for each Fiscal Year, each item of loss or deduction as determined, recognized and classified for federal income tax purposes, but [a] any Code § 705(a)(2)(B) expenditure will be included as if it were a deductible expenditure, [b] any loss attributable to the taxable disposition of any Company asset will be computed by the Company as if the adjusted basis of such asset as of the date of the disposition were equal to the Company's Book Value with respect to such asset as of such date, [c] in the event of a Distribution of any Company asset, whether or not in connection with a Liquidation of the Company, such event will be a deemed taxable disposition of such asset immediately prior to such Distribution and any loss will be computed and 6 BUS_RE12466291,1 allocated among the Members as if such property were actually disposed of for an amount realized equal to the Fair Market Value of such asset and as if the adjusted basis of such asset were equal to its Book Value at such time, [d] in the event the Book Value of any Company asset is adjusted downward pursuant to the definition of Book Value, the amount of such adjustment will be. taken into account as a loss from the disposition of such asset and allocated among the Members, and [e] any deductions for Depreciation with respect to a Company asset will be determined as if the adjusted basis of such asset were equal to the Book Value of such asset pursuant to the methodology described in Regulations § 1.704-1(b)(2}(iv)(g)(3). Manager: ECHDA, as and when acting in its capacity as the manager of the Company, and any successor manager, as provided in this Agreement. Member: a Member as listed on the attached Exhibit A, and any other Person subsequently admitted to the Company as an additional or substitute member in accordance with the terms of this Agreement. Member Nonrecourse Debt: any Nonrecourse Liability of the Company for which any Member or related person bears the economic risk of loss under Regulations § 1.752-2 within the meaning of Regulations § 1,704-2(b)(4). Member Nonrecourse Deductions: Company losses, deductions or Code § 705(a)(2)(B) expenditures attributable to a particular Member Nonrecourse Debt, The amount of Member Nonrecourse Deductions for any Fiscal Year or other period will be determined in accordance with the provisions of Regulations § 1.704-2(i)(2). Minimum Gain: the minimum gain attributable to Member Nonrecourse Debt as determined under Regulations § 1.704-2(i)(3). Net Income and Net Loss: for each Fiscal Year, [i] the excess of the Income for such period over the Loss for such period, or [ii] the excess of the Loss for such period over the Income for such period, respectively, but Net Income and Net Loss for a Fiscal Year will be computed by excluding from such computation any Income or Loss specially allocated under 4.2 through 4.11, any Nonrecourse Deductions, and any Member Nonrecourse Deductions. 7 BUS RE12466291.1 Nonrecourse Deductions: Losses, deductions or Code § 705(a)(2)(B) expenditures attributable to Nonrecourse Liabilities of the Company. The amount of Nonrecourse Deductions for any Fiscal Year or other period will be determined in accordance with the provisions of Regulations § 1.704-2(c). Nonrecourse Liability: a nonrecourse liability as defined in Regulations § 1.752-1(a)(2) and referred to in Regulations § 1.704- 2(b)(3). .Notice: written notice actually delivered under 13.12, or deemed delivered under 13.13. Ownership Interest: with respect to each Person owning an interest in the Company, all of the interests of such Person in the Company (including an interest in the Income and Losses of the Company, a Capital Account interest, and all other rights and obligations of such Person under this Agreement). Person: an individual, corporation, partnership, limited liability company, trust, unincorporated organization, association or other entity. Proceeding: any threatened, pending or completed action, suitor proceeding, whether formal or informal, and whether clvll, adnnlnlstratlve, lnvestlgatlve or crlminal. Regulations: the Treasury Regulations (including temporary or proposed regulations) promulgated under the Code, as amended from time to time (including corresponding provisions of succeeding regulations). Transfer: a sale, exchange, assignment, transfer, pledge, transfer upon or in lieu of foreclosure, or other disposition of all or any part of an Ownership Interest (whether voluntary, involuntary or by operation of law). Transferee: [a] a Person to whom an Ownership Interest is Transferred in compliance with this Agreement, who will have the limited rights specified in 12.5, unless such Transferee already is a Member or unless such Transferee is admitted as a Member in accordance with this Agreement, and [b] a Member who becomes a Transferee of its own Ownership Interest, who will thereafter have the limited rights specified in 12.5 unless such Person is thereafter admitted again as a Member in accordance with this Agreement. 8 BUS_RE12466291.1 Transferor: a Person who Transfers an Ownership Interest in compliance with this Agreement. Unit: aright held by a Member (or Transferee), which is the unit of measurement by which the Member's (or Transferee's) Economic Interest maybe determined. Withdrawal: the occurrence of an event which terminates membership in the Company, as provided in 10.2. ARTICLE 2: PURPOSE AND POWERS 2.1 Pur ose. The Company may engage in such businesses as are authorized by the Manager from time to time, subject to any limitations in the Acton the businesses in which a limited liability company may engage. 2.2 Po_ The Company has all of the powers granted to a limited liability company under the Act, as well as all powers necessary or convenient to achieve .its purposes and to further its uslness. ARTICLE 3: CAPITAL OF THE COMPANY 3.1 Capital Contributions.. The Manager in its sole discretion may make Capital Contributions to the Company from time, and may permit any other Member to make a Capital Contribution, but the Manager may not require any other Member to make a Capital Contribution. Without limiting the foregoing, ECEC is not making any initial Capital Contribution to the Company and is not obligated to make Capital Contributions in the future. It is intended that all of the Units granted to ECEC constitute a "profits interest" within the meaning of Revenue Procedure 93-27 and therefore ECEC is not entitled to any share of the value of the Company as of the date of this Agreement. 3.2 Capital Accounts. A Capital Account will be maintained for each Member and credited, charged and otherwise adjusted as required by § 704(b) of the Code and the § 704(b) Regulations. Each Member's Capital Account will be: [a] Credited with [i] the amount of money contributed by the Member as a Capital Contribution, [ii] the Fair Market Value of property contributed by the Member as a Capital Contribution (net of liabilities that the Company assumes or takes property subject to), [iii] the Member's allocable share of Income and Net Income, and [iv] all other items properly credited to Capital Account; [b] Charged with [i] the amount of money distributed to the Member by the Company, [ii] the Fair Market Value of property distributed to the Member by the Company (net of liabilities that the Member assumes or takes subject to), [iiiJ the Member's allocable share of Losses, Net Losses, Nonrecourse Deductions and Member Nonrecourse Deductions, and [iv] all other items properly charged to Capital Account; and [c] Otherwise adjusted as required by the § 704(b) Regulations. 9 BUS_RE124b6291.1 Any unrealized appreciation or depreciation with respect to any asset distributed in kind will be allocated among the Members in accordance with the provisions of Article 4 as though such asset had been sold on the date of Distribution for its Fair Market Value as determined by the Manager, and the Members' Capital Accounts will be adjusted to reflect both the deemed realization of such appreciation or depreciation and the Distribution of such property. In determining the Fair Market Value of any asset of the Company for purposes of .any Distribution, the Manager may obtain the written report of any one or more independent qualified appraisers (or appraisal firms). If more than one appraisal report is obtained by the Company, Fair Market Value will be determined as the average of such appraised values. The Company will select each such appraiser (or appraisal firm), and bear the cost of any such appraisal. The foregoing provisions and the other provisions of this Agreement relating to the maintenance of the Capital Accounts are intended to comply with the § 704(b) Regulations and will be interpreted and applied in a manner consistent with such Regulations and any amendment or successor provision thereto. The Manager also will make any appropriate modifications if unanticipated events might otherwise cause this Agreement not to comply with the Regulations,. so long as such changes would not cause a material change in the relative economic benefits of the Members under this Agreement. 3.3 Transfer. If all or any part of an Ownership Interest is Transferred in accordance with this Agreement, the Capital Account of the Transferor that is attributable to the Transferred interest will carry over to the Transferee. 3.4 Adjustments. The Members intend to comply with the § 704(b) Regulations in all respects, and the Manager is authorized and directed to adjust the Capital Accounts of the Members to the full extent that the § 704(b) Regulations may apply (including,, without limitation, applying the concepts of qualified income offsets and minimum gain chargebacks). To this end, the Manager may make any Capital Account adjustment that it determines to be necessary or appropriate to maintain equality between the aggregate Capital Accounts of the Members and the amount of Company capital reflected on the Company's balance sheet (as computed for book purposes); as long as such adjustments are consistent with the .underlying economic. arrangement of the Members and are based, wherever practicable, on federal tax accounting principles. 3.5 Market Value Adi~stme~ts. The Manager is authorized and directed to make appropriate Capital Account adjustments upon any Transfer of an Ownership Interest in accordance with the § 704(b) Regulations. If optional basis adjustments are made under § 734 or § 743 of the Code, the Manager is authorized to make appropriate Capital Account adjustments as required by the § 704(b) Regulations. 3.6 N Withdrawal of Capital. Except as specifically provided in this Agreement, no Member will be entitled to withdraw all or any part of such Person's Capital Contribution from the Company prior to the Company's Dissolution and Liquidation, or, when such withdrawal of capital is permitted, to~ demand a distribution of property other than money or as otherwise provided in this Agreement. BUS_RE12466291.1 10 3.7 No Interest on Capital. No Member will be entitled to receive interest on such Person's Capital Account or any Capital Contribution. 3.8 No Drawing Accounts. The Company will not maintain a drawing account for any Member. All Distributions to Members will be governed by Article 5 (relating to Distributions not in Liquidation of the Company) and by Article 11 (relating to Distributions in Liquidation of the Company). 3.9 Working Capital Reserve. The Manager may establish and maintain a working capital reserve for operating expenses, capital expenditures, repairs, replacements, contingencies and other anticipated costs relating to its business. This reserve maybe increased and decreased from time to time. ARTICLE 4: INCOME AND LOSSES 4.1 Allocation of Net Income and Net Loss. Except as provided in 4.2 through 4.11, the Company's Net Income or Net Loss; as the case maybe, and each item of income, loss and deduction entering into the computation thereof, for each Fiscal Year will be allocated to the Members in proportion to their respective Economic Interests. 4.2 Company Minimum Gain Char~eba, k. Notwithstanding any other provision of this Agreement to the contrary, if in any Fiscal Year or other period there is a net decrease in the amount of the Company Minimum Gain, then each Member will first be allocated items of Income for such year (and, if necessary, subsequent years) in an amount equal to such Member's share of the net decrease in such Minimum Gain during such year (as determined under Regulations § 1.704-2(g)(2)},but if there is insufficient Income in a year to make the allocation specified above for all Members for such year, the Income will be allocated among the Members in proportion to the respective amounts they would have been allocated had there been an unlimited amount of Income for such year. . 4.3 Minimum Gain Char~eback for Member Nonrecourse Debt. Notwithstanding any other provision of this Agreement to the contrary other than 4.2, if in any year there is a net decrease in the amount of the Member Nonrecourse Debt Minimum Gain, then each Member will first. be allocated items of Income for such year (and, if necessary, subsequent years) in an amount equal to~ such Member's share of the net decrease in such Minimum Gain during such year (as determined under Regulations § 1.704-2(i)(4)), but if there is insufficient Income in a year to make the allocation specified above for all Members for such year, the Income will be allocated among the Members in proportion to the respective amounts they would have been allocated had there been an unlimited amount of Income for such year. 4.4 Qualified Income Offset: Notwithstanding any other provision of this Agreement to the contrary (except 4.2 and 4.3 which will be applied first), if in any Fiscal Year or other period a Member unexpectedly receives an adjustment, allocation or distribution described in Regulations § 1.704-1(b)(2)(ii)(d)(4), (5) or (6), such Member will.be specially allocated items of Income in an amount and manner sufficient to eliminate, to. the extent required. by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, 11 BUS_RE12466291.1 4.5 Limit on Net Loss Allocations. Notwithstanding the provisions of 4.1, or any other provision of this Agreement to the contrary, Net Loss will not be allocated to a Member if such allocation would cause or increase such Member's Adjusted Capital Account Deficit and will be reallocated to the other Members, subject to the limitations of this 4.5. 4.6 Loss from Member Nonrecourse Debt. Any Loss attributable to Member Nonrecourse Debt will be allocated to the Member who bears the economic risk of loss with respect to such debt. 4.7 Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year or other period will be allocated among the Members in proportion to their Economic Interests. 4.8 § 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Company asset under § § 734(b) or 743(b) is required to be taken into account in determining Capital Accounts under Regulations § 1.704-1(b)(2)(iv)(m), the amount of the adjustment to the Capital Accounts will be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis), and the gain or loss will be specially allocated to the Members in a manner consistent with the manner in which their Capital Accounts are required to be adjusted under Regulations § 1.704-1(b)(2)(iv)(m). 4.9 Reversal of Mandatory Allocations. In the event that any Income, Loss or Net Loss is allocated pursuant to 4.2 through 4.7, subsequent Income, Loss or Net Loss (or items thereof) will first be allocated (subject to 4.2 through 4.7) to the Members in a manner which will result in each Member having a Capital Account balance equal to that which would have resulted had the original allocation of Income, Loss, or Net Loss (or items thereof) pursuant to 4.2 through 4.7 not occurred. 4.10 Compliance with Code. The foregoing provisions of this Agreement relating to the allocation of Income, Net Income, Loss and Net Loss are intended to comply with Regulations under § 704(b) of the Code and will be interpreted and applied in a manner consistent with such Regulations. 4.11 Tax Allocations - ~ 704(c). In accordance with § 704(c) of the Code and the related Regulations, income, gain, loss and deduction with respect to any property contributed to the capital of the Company, solely for tax purposes, will be allocated among the Members so as to take account of any variation between the adjusted basis to the Company of the property for federal income tax purposes and the initial Book Value of the property. If the Book Value of any Company asset is adjusted as described in the definition of Book Value, subsequent allocations of income, gain, loss and deduction with respect to that asset will take account of any variation between the adjusted basis of the asset for federal income tax purposes and its Book Value in the same manner as under § 704(c) and the related Regulations. Any elections or other decisions relating to allocations under this 4.11 will be made in any manner that the Manager determines reasonably reflects the purpose and intention of this Agreement. Allocations under this 4.11 are solely for purposes of federal, state and local taxes and will not affect, or in any way be taken into account in computing, any Member's Capital Account or share of Income, Loss, Net Income, Net Loss or other items or distributions under any provision of this Agreement. 12 BUS RE12466291.1 4.12 Allocation on Transfer. If any interest in the Company is transferred, or is increased or decreased by reason of the admission of a new Member or otherwise, during any Fiscal Year, the Company will allocate Net Income or Net Loss or items thereof to the Persons who were the holders of such interest during such Fiscal Year in proportion to the number of days that each such holder was recognized as the owner of such interest during such Fiscal Year or, if the Members agree otherwise, in any other proportion permitted by the Code and in accordance with this Agreement, but in any event without regard to the results of Company operations during the period in which each such holder was recognized as the owner of such interest during such Fiscal Year, and without regard to the date, amount, or recipient of any Distributions which may have been made with respect to such interest. ARTICLE 5: DISTRIBUTIONS 5.1 Distributions Generally. Distributions will be made only as determined by the Manager in its sole discretion from time to time. All Distributions made pursuant to this 5.1 will be made to the Members in the following order and priority: [a] First, an amount equal to aggregate Adjusted Capital Contribution Amounts of all .Members as of the date of such Distribution will be distributed to all of the Members in proportion to their Adjusted Capital Contribution Amounts as of the date of such Distribution; [b] Second, to the Members in proportion to their Economic Interests. 5.2 Pa ment. All Distributions will be made to Members owning Ownership Interests on the date of record, such date being the. last day of the calendar month preceding the date of Distribution, as reflected on the books of the Company. 5.3 Withholding. If required by the Code or by state or local law, the Company will withhold any required amount from Distributions to a Member for payment to the appropriate taxing authority. Any amount so withheld from a Member will be treated as a Distribution by the Company to such Member. Each Member agrees to file timely any agreement that is required by any taxing authority in order to avoid any withholding obligation that would otherwise be imposed on the Company. 5.4 Distribution Limitation. Notwithstanding any other provision of this Agreement, the Company will not make any Distribution to the Members if, after the Distribution, the liabilities of the Company (other than liabilities to Members on account of their Ownership Interests) would exceed the Fair Market Value of the Company's assets. With respect to any property subject to a liability for which the recourse of creditors is limited to the specific property, such property will be included in assets only to the extent the property's Fair Market Value exceeds its associated liability, and such liability will be excluded from the Company's liabilities. 13 BUS RE12466291.1 ARTICLE 6: MANAGEMENT 6.1 Management. [a] Management of the Company will be vested in ECHDA as the Manager (or in any Transferee of ECHDA that is substituted as Manager). [b] Neither ECHDA nor any Transferee of ECHDA that is substituted as Manager maybe removed as Manager except upon the vote of Members holding at least 75% of the outstanding Ownership Interests. [c] Subject to the provisions of the Act, subject to the fiduciary obligations and limitations imposed upon it by this Agreement, and except as otherwise provided in this Agreement, the Manager has complete and unrestricted power and authority to manage the business, properties and activities of the Company in its sole and exclusive discretion. Except as otherwise provided in this Agreement, no Person dealing with the Company will be required to inquire into the authority of the Manager to take any action or make any decision. Except for the Manager, no Member will take part in the operations, - management or control of the Company's business, transact any business in the Company's name, or have the power to sign documents for or otherwise bind the' Company. Except as otherwise provided in, this Agreement, the Manager has the rights, authority and powers of managers with respect to the Company business and assets as provided in the Act as in effect on the date this Agreement becomes effective. 6.2 Actions or Decisions by the Manager. Without limiting the generality of 6.1, the following actions or decisions by (or affecting) the Company will be made by the Manager: [a] The borrowing of money or the giving of guarantees, the issuance of promissory notes or other evidence of indebtedness in connection. with such borrowings, the granting of a mortgage, deed of trust, pledge or other lien on or security interest in all or any portion of the assets of the Company to secure the Company's obligations as debtor or guarantor under any loans, lines of credit, debt offerings, credit facilities, or other financing arrangements established from time to time; [b] Any. transaction between the Manager or any Affiliate of the Manager and the Company, including loans from the Manager to the Company and decisions pursuant to 6.5, 6.6 and Article 8; [c] The sale, exchange or other disposition of any, or of all or substantially all, of the Company's assets; [d] The voluntary Dissolution of the Company; [e] ~ The issuance of additional Units and the admittance of additional Members, all under such terms as the Manager determines in its sole discretion; 14 BUS_RE12466291.1 [f] The execution of agreements with Members and Transferees pursuant to which the Company may be obligated to, or may have the right to, acquire the Ownership Interests of such Persons, on such terms as the Manager determines; [g] The formation, capitalization, operation, management, and disposition of interests in other Persons, such as other limited liability companies, partnerships and joint ventures, for the purpose of participating in the business of the Company through such Persons, and any agreements related or incidental to the foregoing; [h] The management of the day-to-day operation of the Company; [i] The merger or other combination of the Company with another entity; and [j] Any other action or decision affecting the Company, including any such action or decision that is outside of the ordinary course of business of the Company. 6.3 Officers. The Manager may from time to time appoint officers of the Company (the "Officers") and designate to them the authority and duties to manage the day-to-day operations of the Company. Unless otherwise determined by the Manager, if the title of an Officer is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such. title will constitute the delegation to such person of the authorities and duties that are normally associated with that office. Each Officer will serve at the pleasure of the Manager, until such Officer's resignation or removal or until his or her successor has been duly appointed and qualified. 6.4 Other Activities. Except as provided in any employment or other agreement, and except as provided elsewhere in this Agreement, the Manager and any other Member may engage in (or own interests in) other business entities of any nature and description, independently or with others, and neither the Company, the Manager, nor any other Member will have any right by virtue of this Agreement in such business entity, even if such entity is in direct competition with the business of the Company. 6.5 P= ent of Management Costs. The Company will pay for all direct. and indirect costs and expenses (including employee salaries and benefit arrangements for employees of the Manager who provide services to the Company) incurred by the Manager on behalf of the Company in connection with the management of the Company's affairs. 6.6 Compensation for Services: The Manager may cause the Company or any Affiliate to pay compensation to any Member or any Affiliate of a Member (including the Manager or its Affiliates) for services rendered to the Company, on such terms as the Manager determines. ARTICLE 7: LIABILITY OF A MEMBER AND THE MANAGER; MEMBER VOTING 7.1 Limited Liability. Except as otherwise provided in the Act, the debts, obligations and liabilities of the Company (whether arising in contract, tort or otherwise) will be solely the debts, obligations and liabilities of the Company, and neither the Manager nor any Member (including any Person who formerly held such status) is liable or will be obligated personally for any such debt, obligation or liability of the Company solely by reason of such status. No individual 15 B US_RE12466291,1 trustee, officer, director, employee or agent of any entity Member or Manager, in its individual capacity as such, will have any personal liability for the performance of any obligation of such Member or the Manager under this Agreement. 7.2 Capital Return. If any Member receives a Distribution from the Company, the Member will have no liability under the Act or other applicable law for the amount of the Distribution except to the extent required by law or except to the extent that the amount of the Distribution was made in mistake. 7.3 Reliance. The Manager and each Member will be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements by [aJ any of the Company's other Members, employees or committees or [b] any other Person who has been selected with reasonable care as to matters that such Person reasonably believes are within such other Person's professional or expert competence. Matters as to which such reliance may be made include the value and amount of assets, liabilities, Income and Losses of the Company, as well as other facts pertinent to the existence and amount of assets from which distributions to Members might properly be made. 7.4 Member Voting. Except to the extent that this Agreement expressly provides that a matter requires the vote or approval of one or more of the Members, the Members do not have any voting rights. Without limiting the foregoing, to the maximum extent permitted by law, the matters specified in Section 7=80-401 of the Act will not require the consent of each Member and will instead require only the consent of the Manager. ARTICLE 8: STANDARD OF CARE, INDEMNIFICATION, AND EXCULPATION 8.1 Standard of Care. The only fiduciary duty owed by the Manager to the Company and its Members is to discharge its duties as Manager of the Company in good faith, in such manner as it deems to be in the best .interests of the Company, and not to engage in willful misconduct in the discharge of such duties (the "Standard of Care"). The corporate law concepts of the duty. of loyalty and the duty of care applicable to officers and directors of a corporation do not apply to the Manager, and the Manager does not owe to the Company or its Members the duties that a general partner owes to the partnership and its other partners. The Manager owes no fiduciary duty of any nature to any Transferee who is not admitted as a Member. 8.2 Exculpation. The Manager will not be liable to the Company or to any Member or Transferee for any losses, damages, expenses or liabilities on account of any act or omission, regardless of whether it satisfies the Standard of Care. The sole remedy of the Company and the Members, in the event of any breach by the Manager of the Standard of Care, and the sole remedy of the Company, the Members and any Transferees for any breach by the Manager of an express term of this Agreement, is to obtain equitable relief. 8.3 Indemnification. The Company will indemnify the Manager from and against any and each loss, damage, expense (including, without limitation, fees and expenses of attorneys and other advisors and any court costs incurred by the Manager) or liability incurred in any Proceeding to which the Manager is made a party or is threatened to be made a party because such Person was the Manager or acted or failed to act with respect to the business or affairs of 16 BUS RE12466291.1 the Company to the extent that the Manager, in such action or failure to act, did not breach the Standard of Care. 8.4 Expense Advancement. With respect to the reasonable expenses incurred by the Manager when the Manager is a party to a Proceeding, the Company will provide funds to the Manager in advance of the final disposition of the Proceeding if [a] the Manager furnishes the Company with such Person's written affirmation of a good faith belief that it has met the Standard of Care, and [b] the Manager agrees in writing to repay the, advance if it is determined by final court order that it has not met the Standard of Care. 8.5 Insurance. The indemnification provisions of this Article do not limit the Manager's right to recover under any insurance policy maintained by the Company. If, with respect to any loss, damage, expense or liability described in 8.3, the Manager receives an insurance policy indemnification payment, which, together with any indemnification payment made by the Company, exceeds the amount of such loss, damage, expense or liability, then the Manager will immediately repay such excess to the Company. , 8.6 Indemnification of Others. The Manager may cause the Company to indemnify and advance expenses to any Member, officer, employee or agent of the Company or any manager, member, owner, officer, employee or agent of the Manager to the same extent as (or to a greater or lesser extent than) the Company is obligated to indemnify and advance expenses to the Manager. ARTICLE 9: ACCOUNTING AND REPORTING 9.1 Fiscal Year. For income tax purposes, the Fiscal Year of the Company will end on December 31 in each year (unless .otherwise required by the Code). 9.2 Accounting Method. For income tax purposes, the Company will use the cash method of accounting (unless otherwise required by the Code). 9.3 Tax Classification. Notwithstanding any other provision of this Agreement, no Member or employee of the Company may take any action (including, but not limited to, the filing of a U.S. Treasury Form 8832 Entity Classification Election) which would cause the Company to be characterized as an entity other than a partnership for federal income tax purposes without the prior written consent of the Manager. 9.4 .Returns. The Company will use reasonable efforts to cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Code, as well as all other tax returns required in each jurisdiction in which the Company does business. 9.5 Re orts. The Manager, at the expense of the Company, will cause to be prepared and distributed to the Members such reports as it deems appropriate or necessary. 9.6 Audit. [a] The Manager, at the expense of the Company, may cause to be conducted an audit of the Company's financial statements with respect to one or more Fiscal Years. 17 BUS RE12466291,1 [b] With respect to any audit conducted as provided in [a], the Manager, at the expense of the Company, will furnish the Members with a copy of such audited financial statements promptly after they become available. Any exceptions to the audited statements rendered must be made by a Member within six months from its receipt and, if no exception is made within that time, the statements will be considered to be correct. 9.7 Books and Records. [a] Each Member will, at its sole expense, have the right,. at any time upon reasonable Notice to the Manager, to examine, copy and audit during normal business hours those books and records of the Company to which the Company is required to provide access pursuant to the Act. [b] All books, records (including bills and invoices}, reports and returns of the Company will be maintained in a manner and form determined by the Manager. 9.8 Bankin .The Company may establish one or more bank or financial accounts and safe deposit boxes. The Manager may authorize one or more individuals to sign checks on and withdraw funds from such bank or financial accounts and to have access to such safe deposit boxes, and may place such limitations and restrictions on such authority as the Company deems advisable. 9.9 Tax Matters Partner. Until further action by the Company, the Manager is designated as the tax matters partner under § 6231(a)(7) of the Code. The tax matters partner will be responsible for notifying. all Members of ongoing proceedings, both administrative and judicial, and will represent the Company throughout any such proceeding. The Members will furnish the tax matters partner with such information as it may reasonably request to provide the Internal Revenue Service with sufficient information to allow proper notice to the Members. If an administrative proceeding with respect to a partnership item under the Code has begun, and the tax matters partner so requests, each Member will notify the tax matters partner of its treatment of any partnership item on its federal income tax return, if any, which is inconsistent with the treatment of that item on the partnership return for the Company. Any settlement agreement with the Internal Revenue Service will be binding upon the Members only as provided in the Code. The tax matters partner will not bind any other Member to any extension of the statute of limitations or to a settlement agreement without such Member's written consent. Any Member .who enters into a settlement agreement with respect to any partnership item will notify the other Members of such settlement agreement and its terms within 30 days from the date of settlement. If the tax matters partner does not file a petition for readjustment of the partnership items in the Tax Court, federal District Court or Claims Court within the 90-day period following a notice of a final partnership administrative adjustment, any notice partner or 5-percent group (as such terms are defined in the Code) may institute such action within the following 60 days. The tax matters partner will timely notify the other Members in writing of its decision. Any notice partner or 5-percent group will notify any other Member its filing of any petition for readjustment. . 9.10 No ,Partnership. The classification of the Company as a partnership will apply only for federal (and, as appropriate, state and local) income tax purposes.. This characterization, solely 18 BUS RE12466291.1 for tax purposes, does not create or imply a general partnership between the Members for state law or any other purpose. Instead, the Members acknowledge the status of the Company as a limited liability company formed under the Act. 9.11 Confidentiality. Each Member and each Transferee agrees to keep confidential all information provided to the Member or Transferee with respect to the Company or its business, except to the extent [a] that such Person is required by law to disclose such information (and in the event of such requirement, such Person will provide prompt Notice to the Manager so as to permit the Manager to contest such disclosure, and, in any event, such Person will redact such information to be disclosed to the maximum extent permitted by law); [b] that the information already is within the public domain through no fault of such Person; or [c] that the Person shares such information with such Person's attorney, accountant or financial institution who is informed by such Person that such information is confidential. Each Member and each Transferee agrees that the breach of the foregoing obligation of confidentiality could cause the Company irreparable harm and agrees that the Company will be entitled to injunctive and other equitable relief in~ the event of any breach of such obligations. 9.12 No Tax Advice. Each Member acknowledges that any tax advice express or implicit in the provisions of this Agreement is not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service. Each Member should seek advice based on its particular circumstances from an independent tax advisor. ARTICLE 10: DISS4LUTI4N 10.1 Dissolution. Notwithstanding anything to the contrary in this Agreement or in the Act, Dissolution of the Company will occur only upon the decision of the Manager. 10.2 Events of Withdrawal. An event of Withdrawal of a Member occurs when any of the following occurs: [a] With respect to any Member, upon the voluntary withdrawal, retirement or resignation of the Member by Notice to the Company (which, while not permitted, will have the effect specified in 10.3 and 12.3); [b] With respect to any Member that is a corporation, upon filing of articles of dissolution of the corporation; [cJ With respect to any Member that is a partnership, a limited liability company or a similar entity, upon dissolution and liquidation of such entity (but not solely by reason of a technical termination under § 708(b)(1)(B) of the Code); [d] With respect to any Member that is a trust, upon termination of the trust; [e] With respect to any Member, the Bankruptcy of the Member; or [f] Any other event which terminates the continued membership of a Member in the Company. 19 BUS RE\2466291.1 Within 10 days following the happening of any event of Withdrawal with respect to a Member, such Member. must give Notice of the date and the nature of such event to the Company. 10.3 Continuation; Effect of Withdrawal. [a] In the event of Withdrawal of a Member, the Company will be continued unless the Manager elects to dissolve the Company. [b] If the Company is so continued, with respect to any Member as to which an event of Withdrawal has occurred, such Member or such Member's Transferee or other successor- in-interest (as the case maybe) will, without further act, become a Transferee of such Ownership Interest (with the limited rights of a Transferee as set forth in 12.5, unless admitted as a substitute Member). ARTICLE 11: LIQUIDATION 11.1 Liquidation. Upon Dissolution of the Company, the Company will immediately proceed to windup its affairs and liquidate pursuant to this 11.1. The Manager or if the Manager fails to act, any Person appointed by Members owning more than 75% of the Ownership Interests, held by all Members, will act as the liquidating trustee. The winding up and Liquidation of the Company will be accomplished in a businesslike manner as determined by the liquidating trustee. A reasonable time will be allowed for the orderly Liquidation of the Company and the discharge of liabilities to creditors so as to enable the Company to minimize any losses attendant upon Liquidation. Any gain or loss on disposition of any Company assets in Liquidation will be allocated to the Members in accordance with the provisions of Article 4. Any liquidating trustee is entitled to reasonable compensation for services actually performed, and may contract for such assistance in the liquidating process as such Person deems necessary or desirable. Until the filing of a statement of dissolution under 11.6, and without affecting the liability of the Members and without imposing liability on the liquidating trustee, the liquidating trustee may settle and close the Company's business, prosecute and defend suits, dispose of its property, discharge or make provision for its liabilities, and make Distributions in accordance with the priorities set forth in this Article. 11.2 Priority of Payment. The assets of the Company will be distributed in Liquidation in the following order: [a] First, to creditors by the payment or provision for payment of the debts and liabilities of the Company (other than any loans or advances that may have been made by any Member or any Affiliate of a Member) and the expenses of Liquidation; [b] Second, to the setting up of any reserves that are reasonably necessary for any contingent, conditional or unmatured liabilities or obligations ~of the Company; [c] Third, to the repayment of any loans or advances to the Company that were made by any Member or any Affiliate of a Member (according to the relative priority of repayment of such Loans and proportionally among Loans of equal priority if the amount available for repayment is insufficient for payment in full); 20 BUS_RE12466291.1 [d] Fourth, to the Members in accordance with 5.1 [a]; [e] Fifth, to the Members in accordance with 5.1 [b] (but the amounts distributed to a Member pursuant to this 11.2[e] will not exceed the positive Capital Account balance of such Member after such Capital Account has been adjusted for all allocations to such Member of Income, Net Income, Loss, Net Loss and items thereof for the Fiscal Year during which such Liquidation occurs); and [fJ Sixth, to the, Members in proportion to the positive balances in their respective Capital Accounts after such Capital Accounts have been adjusted for [i] all allocations of Income, Net Income, Loss, Net Loss and items thereof for the Fiscal Year during which such Liquidation occurs and [ii] all Distributions pursuant to 11.2[d] and 11 [e]. 11.3 Liquidating Distributions. The liquidating Distributions due to the Members maybe made in cash or in-kind or by a combination of the two (including that the Manager may elect to make in-kind Distribution to ECHDA and cash Distributions to ECEC). Appropriate and customary prorations and adjustments will be made incident to any Distribution in kind. The Members will look solely to the assets of the Company for the return of any Capital Contributions, and if the assets of the Company remaining after the payment or discharge of the debts and liabilities of the Company are insufficient to return such contributions, they will have no recourse against any other Member. The Members acknowledge that 11.2 may establish Distribution priorities different from those set forth in the provisions of the Act applicable to Distributions upon Liquidation, and the Members agree that they intend, to that extent, to vary those provisions by this Agreement. 11.4 No Restoration Obligation. Except as otherwise specifically provided in this Agreement, nothing contained in this Agreement imposes on any Member an obligation to make a Capital Contribution in order to restore a deficit Capital. Account upon Liquidation of the Company. 11.5 Liquidating Reports. A report will be submitted with each liquidating Distribution to Members made pursuant to 11.3, showing the collections, disbursements, and Distributions during the period which is subsequent to any previous report. A final report, showing cumulative collections, disbursements, .and Distributions, will be submitted upon completion of the liquidation process. 11.6 Statement of Dissolution. Upon Dissolution of the Company and the completion of the winding up of its business, the Company will file a statement of dissolution with the Colorado Secretary of State pursuant to the Act. At such time, the Company also will file an application for withdrawal of its certificate of authority in any jurisdiction where it is then qualified to do usmess. ARTICLE 12: TRANSFER RESTRICTIONS 12.1 General Restriction. ECEC may not Transfer all or any part of its Ownership Interest in any manner whatsoever except with the prior written consent of the Manager, which consent may be arbitrarily withheld by the Manager. There are no restrictions on the Transfer by the Manager, in whole or in part, of its .Ownership Interest. Any Transfer by ECEC of all or any part 21 BUS_RE12466291,1 of its Ownership Interest for which it did not obtain the prior -written consent of the Manager is null and void, and of no effect, but if any such Transfer is nonetheless given effect under applicable law, the transferee in such Transfer will have the limited rights of a Transferee as provided in 12.5. Any Member who makes a Transfer of all of such Person's Ownership Interest will cease to be a Member on the effective date of such Transfer and will cease to have any Ownership Interest or other rights under this Agreement as of such date, but no Member will be released from any obligation that arose prior to the date it ceased to have an Ownership Interest or that is otherwise stated in this Agreement to survive a Person ceasing to be a Member. Any Member who makes a Transfer of part (but not all) of such Person's Ownership Interest will continue as a Member (with respect to the interest retained}, and such partial Transfer will not constitute an event of Withdrawal of such Member. The rights and obligations of any resigning Member or of any Transferee of an Ownership Interest are also governed by other provisions of this Agreement. 12.2 No Member Rights. No Member has the right or power to confer upon any Transferee the attributes of a Member in the Company. The Transferee of all or any part of an Ownership Interest by operation of law does not, by virtue of such Transfer, succeed to any rights as a Member in the Company. 12.3 Effect of Resignation, Retirement, Withdrawal. No Member has the right to resign, retire or withdraw from the Company. If a Member nonetheless purports to so resign, retire or withdraw from the Company, such Member will, without further act, become a Transferee of such Member's Units, with the limited rights of a Transferee as specified in 12.5. 12.4 Conditions on Transfers. The Manager may impose such additional conditions on Transfer as it reasonably determines. 12.5 . Rights of Transferees. Any Transferee of an Ownership Interest (including a Transferee approved by the Manager) will, on the effective date of the Transfer, have only those rights of an assignee as specified in the Act unless and until such Transferee is admitted as a substitute Member. This provision limiting the rights of a Transferee will not apply if such Transferee is already a Member. Any Transferee of all or any part of an Ownership Interest who is not admitted as a substitute Member in accordance with this Agreement or any Member that has become a Transferee with respect to such Member's own Units, thereafter has no right [a] to participate or interfere in the management or administration of the Company's business or affairs, [b] to Vote or agree on any matter affecting the Company or any Member, [c] to require any information on account of Company transactions, or [d] except as provided in the next succeeding sentence, to inspect the Company's books and records. The only rights of a Transferee of all or any part of an Ownership Interest who is not admitted as a substitute Member in accordance with this Agreement or of a Member that has become a Transferee of such Member's own Units are [x] to obtain the information specified in this Agreement if the Transferee executes a confidentiality agreement (inform and substance satisfactory to the Manager in its sole discretion) concerning such information, [y] to receive the allocations and Distributions to which such former Member was entitled or to which the Transferor was entitled as if the Transferee held the Units of the Transferor (to the extent of the Ownership Interest Transferred), and [z] to receive all necessary tax reporting information. The Company, the Manager, and the Members will not owe any fiduciary duty of any nature to a Transferee who is BUS_RE12466291.1 22 not admitted as a substitute Member in accordance with this Agreement or to any former Member who becomes a Transferee of such Member's own Units. However, each Transferee of all or any part of an Ownership Interest (including both immediate and remote Transferees) and each former Member who becomes a Transferee of its own Units will be subject to all of the obligations, restrictions and other terms contained in this Agreement as if such Transferee were a Member. To the extent of any Ownership Interest Transferred, the Transferor Member does not possess any right or power as a Member and may not exercise any such right or power directly or indirectly on behalf of the Transferee. 12.6 Admission. A Transferee of an Ownership Interest will not become a substitute Member of the Company unless such substitution is consented to by the Manager, which consent maybe withheld arbitrarily and it being acknowledged that the Manager may consent in its sole discretion to one Transferee becoming a substitute Member, including a Transferee of the Manager or. any Member that is an Affiliate of the Manager, without being under any obligation to consent to another Transferee becoming a substitute Member. 12.7 Company Redemption Option; Right to Require Transfer. [a] The Company will have the option (the "Redemption Option"), exercisable by delivering Notice to ECEC at any time (the "Redemption ~ Notice"), to redeem the entire Ownership Interest of ECEC for the Fair Market Value of such Ownership Interest as of the date the Redemption Notice is given (the "Redemption Notice Date"). [b] The Company will also have the option (the "Transfer Option"), exercisable by delivering Notice to ECEC at any time (the "Transfer Option Notice"), to require ECEC to Transfer its entire Ownership Interest to such Person as may be designated by ,the Manager in its sole discretion for the Fair Market. Value of such Ownership Interest as of the date the Transfer Option Notice is given (the "Transfer Notice Date"). [c] Closing with respect to exercise of the Redemption Option or the Transfer Option will take place at the location specified by the Manager in the Redemption Notice or Transfer Option Notice, as applicable. At such Closing, ECEC will assign to the Company or its designee, pursuant to a form of assignment satisfactory to the Manager, its entire Ownership Interest, free and clear of all liens, claims and encumbrances, and will execute such additional documents as may be reasonably requested by the Manager to effectuate the redemption or transfer. At such Closing, the Company or its designee will deliver to ECEC cash in an amount equal to the Fair Market Value of ECEC's Ownership Interest as of the Redemption Notice Date or the Transfer Notice Date, as applicable. ARTICLE 13: GENERAL PROVISIONS 13.1 Amendment. [a] The Manager will have the power, without the consent of any Member, to amend this Agreement as may be required to facilitate or implement any of the following purposes: [i] To add to the obligations of the Manager or surrender any right or power granted to the Manager for the benefit of the Members; and 23 BUS_RE12466291.1 [ii] To reflect the admission, substitution termination, or Withdrawal of Members, or the issuance, withdrawal or Transfer of Units, in accordance with this Agreement. [b] Any amendment to this Agreement not provided for in 13.1 [a] may be effected only by a written instrument duly signed by Members holding more than 75% of the outstanding Ownership Interests; except that this Agreement may not be amended without the written agreement of all Members adversely affected if such amendment would modify the limited liability of a Member. [c] Any duly adopted amendment to this Agreement is binding upon, and inures to the benefit of, each Person who holds an Ownership Interest at the time of such amendment, without the requirement that such Person sign the amendment or any republication or restatement of this Agreement. 13.2 Representations. Each Member represents and warrants to each other Member that, as of the signing of this Agreement: [a] If such Member is an entity, such Member is duly organized, validly existing and in good standing under the laws of the jurisdiction where it purports to be organized, and is a United States Person; [b] Such Member has full power and authority to enter into and perform this Agreement; [c] All actions necessary to authorize the signing and delivery of this Agreement, and the performance of obligations under it, have been duly taken; [d] This Agreement has been duly signed and delivered by a duly authorized officer or other representative of such Member (if such Member is an entity) and .constitutes the legal, valid and binding obligation of such Member enforceable in accordance with its terms (except as such enforceability maybe affected by applicable Bankruptcy, insolvency or other similar laws affecting creditors' rights generally, and.except that the availability of equitable remedies is subject to judicial discretion); [e] No consent or approval of any other Person is required in connection with the signing, delivery and performance of this Agreement by such Member; [f] The signing, delivery and performance of this Agreement do not violate the organizational documents of such Member (in the case of a Member that is not an individual), or any material agreement to which such Member is a party or by which such Member is bound; and [g] Such Member has had an opportunity to perform any due diligence deemed necessary or desirable. All of the foregoing representations and warranties, as well as the representations and warranties in 13.3, will survive the execution and delivery of this Agreement and any amendment to this Agreement. 24 BUS_RE12466291.1 13.3 Unregistered Interests. Each Member [a] acknowledges that the Ownership Interests are being offered and sold without registration under The Securities Act of 1933, as amended, or under similar provisions of state law, [b] acknowledges that such Member is fully aware of the economic risks of an investment in the Company,. and that such risks must be borne for an indefinite period of time, [c] represents and warrants that such Member is acquiring an Ownership Interest for such Member's own account, for investment, and with no view to the distribution of the Ownership Interest, and [d] agrees not to Transfer, or to attempt to Transfer, all or any part of its Ownership Interest without registration under the Securities Act of 1933, as amended; and any applicable state securities laws, unless the Transfer is exempt from such registration requirements. 13.4 Waiver of Dissolution Rights. The Members agree that irreparable damage would occur if any Member should bring an action for judicial dissolution of the Company. Accordingly, each Member accepts the provisions under this Agreement as such Person's sole entitlement on Dissolution of the Company and waives and renounces such Person's right to seek a court decree of dissolution or to seek the appointment by a court of a liquidator for the Company. Each Member further waives and renounces any alternative rights which -might otherwise be provided bylaw upon the Withdrawal of such Person and accepts the provisions under this Agreement as such Person's sole entitlement upon the happening of such event. 13.5 Waiver of Partition Right. Each Member waives and renounces any right that it may have prior to Dissolution and Liquidation to institute or maintain any action for partition with respect to any real property held by the Company. 13.6 Waivers Generally. No course of dealing will be deemed to amend or discharge any provision of this Agreement. No delay in the exercise of any right will operate as a waiver of such right. No single or partial exercise of any right will preclude its further exercise. A waiver of any right on any one occasion will not be construed as a bar to, or waiver of, any such right on any other occasion. 13.7 Equitable Relief. If any Member proposes to Transfer all or any part of its, Ownership Interest in violation of the terms of this Agreement or if a Member or Transferee proposes to disclose confidential information in violation of this Agreement, the Company or any Member may apply to any court of competent jurisdiction for a temporary injunctive order prohibiting such proposed Transfer or disclosure except upon compliance with the terms of this Agreement, and the Company or any Member may. institute and maintain an action against the Person proposing to make such Transfer or disclosure to compel the specific performance of this Agreement. Any attempted Transfer in violation of this Agreement is null and void, and of no force and effect. The Person against whom such action or proceeding is brought waives the claim or defense that an adequate remedy at law exists, and such Person will not urge in any such action or proceeding the claim or defense that such remedy at law exists. 13.8 Remedies- for Breach. The rights and remedies of the Members set forth in this Agreement are neither mutually exclusive nor exclusive of any right or remedy provided by law, inequity or otherwise. All legal remedies (such as monetary damages) as well as all equitable remedies (such as specific performance) will be available for any breach or threatened breach of any provision of this Agreement. BUS_RE12466291.1 25 13.9 C_ osts: If the Company or any Member retains Counsel for the purpose of enforcing or preventing the breach or any threatened breach of any provision of this Agreement or for any other remedy relating to it, then the prevailing party will be entitled to be reimbursed by the nonprevailing party for all costs and expenses so incurred (including reasonable attorney's fees, costs of bonds,. and fees and expenses for expert witnesses). 13.10 Indemnification. Each Member hereby indemnifies and agrees to hold harmless the Company and each other Member from any liability, cost or expense (including, .without limitation, fees and expenses of attorneys and other advisors and court costs) arising from or related to .any act or f allure to act of such Member which is in violation of this Agreement. Each Member's indemnification obligations will survive such Member's ceasing to be a Member of the Company and will survive the Dissolution and Liquidation of the Company. 13.11 Counterparts. This Agreement may be signed in multiple counterparts (or with detachable signature pages). Each counterpart will be considered an original instrument, but all of them in the aggregate will constitute one agreement. Telecopies of signatures will be given effect for purposes of the signature page of this Agreement and any amendments to this Agreement. 13.12 Nose. All Notices under this Agreement will be in writing and will be either by hand, registered mail, electronic mail, or facsimile addressed as follows: [a] if to the Company or the Manager, at the Company's principal place of business in Colorado addressed as follows: Eagle County Housing Development: Managing Director 500 Broadway Post Office Box 850 Eagle, CO 81631-0850 echousin @ea..,lecounty.us Facsimile:. (970) 328-8698 with a copy to: Eagle County Attorney. Post Office Box 850 500 Broadway Eagle, C0 81631-0850 attorney @ ea~lecountX.us Facsimile: (970) 328-8699 or at such other address as the Company or the Manager may designate by 15 days' advance Notice, and [b] if to any other Member, at such Person's home or business address, including electronic-mail address, as then appearing in the records of the Company or at such other address as a Member may designate by 15 days' advance Notice to the Company. In computing time periods, the day of Notice will be included. For Notice purposes, a day means a calendar day. 13.13 Deemed Notice. Any Notices given in accordance with this Agreement will be deemed to have been duly given and received: [a] on the date of receipt if personally delivered, [b] five 26 BUS RE12466291.1 days after being sent by U.S. mail, postage prepaid, [c] the date of receipt, if sent by registered or certified U.S. mail, postage prepaid, [d] one business day after receipt, if sent by confirmed facsimile or telecopier transmission, or [e] one business day after having been sent by a nationally recognized overnight courier service. 13:.14 Partial Invalidity. Wherever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law. However, if for any reason any one or more of the provisions of this Agreement are held to be invalid, illegal or unenforceable in any respect, such action will not affect any other provision of this Agreement. In such event, this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained in it. 13.15 Entire Agreement. This Agreement (including its Exhibits) contains the entire agreement and understanding of the Members concerning its subject matter. 13.16 Be_ refit, The contribution obligations of each Member will inure solely to the benefit of the other Members and the Company, without conferring on any other Person any rights of enforcement or other rights. 13.17 Binding Effect. This Agreement is binding upon; and inures to the benefit of, the Members and their Permitted Transferees, but any Transferee will have only the rights specified in 13.5 unless admitted as a substitute Member in accordance with this Agreement. 13.18 Further Assurances. Each Member agrees, without further consideration, to sign and deliver such other documents of further assurance as may reasonably be necessary to effectuate the provisions of this Agreement. 13.19 Headin s. Article and section titles have been inserted for convenience of reference only. They are not intended to affect the meaning or interpretation of this Agreement. 13.20 Terms. Terms used with initial capital Letters will have the meanings specified, applicable to both singular and plural forms, for all purposes of this Agreement. All pronouns (and any variation) will be deemed to refer to the masculine, feminine or neuter, as the identity of the Person may require. The singular or plural includes the other, as the context requires or permits. The word include (and any variation) is used in an illustrative sense rather than a limiting sense. The word day means a calendar day. 13.21 Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Colorado (without considering Colorado choice of law provisions). Any conflict or apparent conflict between this Agreement and the Act will be resolved in favor of this Agreement, except as otherwise required by the Act. 13.22 Conflicts. By executing this Agreement, each Member acknowledges that ECHDA retained Sherman & Howard L.L.C. as its Counsel to negotiate and prepare this Agreement on its behalf; that Sherman & Howard L.L.C. does not represent the Company, any other Member, or any Transferee with respect to the negotiation or preparation of this Agreement; that the Company has not been separately represented in connection with the negotiation or preparation of this Agreement; and that the Company is paying the fees and expenses of Sherman & Howard BUS_RE1246b291.1 27 L.L.C. incurred by ECHDA in connection with the negotiation and preparation of this Agreement. Sherman ~ Howard L.L.C. may continue to represent ECHDA in connection with all matters relating to this Agreement and the. Company on an ongoing basis. Each Member acknowledges that such Member has had the opportunity to consult with legal Counsel in connection with the negotiation and preparation of this Agreement and the acknowledgments, consents and waivers set forth above. [Signature page follows.] 28 BUS_RE12466291.1 All of the Members have signed this Operating Agreement of The Valley dome Store, LLC on or around May 5, 209, to be effective from the Effective Date, notwithstanding the actual date of signing. EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY A body corporate and politic Sara 3. Fisher President ECONOMIC COUNCIL OF EAGLE COUNTY, INC. A Colorado non-profit corporation Don Cohen Executive Director 29 E3liS RC~~~?~66?~)1.1 LIST OF EXHIBITS Exhibit A Names and Addresses of Members Exhibit B Economic Interests BUS_RE12466291.1 EXHIBIT A Names and Addresses of Members Eagle County Housing and Development Authority Eagle County Housing and Development Authority: Managing Director 500 Broadway ` ' Post Office Box 850 Eagle, CO 81631-0850 Facsimile: (970) 328-8698 echousin~@eaglecountY.us with a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, CO 81631-085a Facsimile: (970) 328-8699 attorneX@ea l~ecount~us Economic Council of Eagle County, Inc: Don Cohen Executive Director 25 Mill Loft Street - Suite'200 PO Box 1705 Edwards, CO 81632 (970) 970-328-8774 (970) 970-328-8782 FAX dcohen C economiccouncil.biz ,~-1 BUS RE~466291.1 EXHIBIT. B Economic Interests Member Economic Interest Units Eagle County Housing and Development Authority 99.9% 99.9 Economic Council of Eagle County, Inc. . l % .1 100.0% 100.0 B-1 BUS_RE12466291.1 EXHIBIT "B" Document must be Bled electronically. Paper documents will not be accepted. Document processing fee Fees & forms/cover sheets are subject to change, To access other information or print copies of Bled documents, visit www.sos.state.co.us and select Business Center. $30.00 ABOVE SPACE FOR OFFICE USE ONLY Articles of Organization filed pursuant to § 7-80-203 acid ~ 7-80-Z04 of the Colorado Revised Statutes (C.R.S.} 1. The domestic entity name of the limited liability company is The Valley Home Store, LLC (1'he name of a limited liability company must contain the term or abbreviation "litnited liability company ", `ltd. liability coryrpany", "limited liability co. ", "ltd. liability co. ", "limited ", "l.l.c. ", "llc ", or "ltd. ". See ~7-90 601, C.R.S'.) (Caution: The use of certain terms or abbreviations are restricted by law. Read instructions for more if~ormation.) Z, The principal office address of the limited liability company's initial principal office is Street address 500 Broadway (Street number and name) Eagle CC 81631-0850 (C,t~) Uriite~ StateS~IP/Postal Code) (Province - if applicable) (Country) Mailing address P.O. Box 850 (leave blank if same as street address} (Street number and name or Port l~f fice Box inforrnationJ Eagle CO 81631-0850 (city) U ~IICt~ States SIP/Postal Code) (Province - if applicable) (Country) 3. The registered agent name and registered agent address. of the united liability company's initial registered agent are Name (if an individual) Treu Bryan (Last) (First) (il~Iiddle) (Suf~rx) OR (if an entity} (Carction: Do slot provide both an individual and an entity name.) Street address Eagle County Attorney 500 B roadwa (Street number and name) Y ARTORG_LLC Eagle cp 81631-0850 (City) ('State) (ZIP Code) Page 1 of 3 Rev. 02/28/2008 Mailin address P.O. BOX 850 (leave blank if same as street address} (Street number ~v~d name or Post Once Box informatioz7) Eagle cp 81631-0850 (City) (State) (ZIP Code) (The follawing statement is adopted by marking the box.) 0 The person appointed as registered agent has consented to being so appointed. 4. The true Hanle and mailing address of the person forming the limited liability company are Name ~ Norris Joanne F. (lf an lndlvldual} (Last) (First) (~~liddle) (Su~x) (JR (if an entity} (Caution: Do not provide both an individt,ral and an entity name Mailing address Sherman & Howard L.L.C. 63317th ~~ree~~, n~U Iten~~g~q~ost ~~ce Box inforzyzat.ion) Denver CO .80202 (Cz~') U ni~e~)States SIP/Postal Code) (Province - if applicable) (Countr~~) (If the following statement applr'es, adopt the statement by mark-rng the box and include an attachment.) ^ The limited Liability company has one or more additional persons forming the limited liability company and the name and mailing address of each such person are stated in an attachment. S. The management of the limited liability company is vested in (Mark the applicable box.) Q one or more managers. OR ^ the members. 6. (The following statement is adopted by marking the box) ^J There is at least one member of the limited liability company. ~. (If the following statement applies, adopt the statement by marring the box and inclztde an attachment,) ^ Th1S doCUlllellt C011tau1S addltlonal lllformat1011 a5 provlded by laW. 8. (Catttiott: Leave blank if the document does not have a delayed effective date. Stating a delayed effective date has significant legal eonsegt~erlces. Read instructions before enterifig a date.) (If the following statement applies, adopt the statement by entering a date and, if applicable, time using the required format.) The delayed effective date and, if applicable; time of this document is/are (rnm/dd/yyyy hour: minute am%pm) ARTORG_LLC Page 2 of 3 Rev. 42/28/2448 Notice: Causing this document to be delivered to the Secretary of State for filing shall constitute the affinl~ation or aclaiowledgment of each individual causing such delivery, under penalties. of perjury, that the document is the ildividual's act and deed, or that the individual it good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken iri conformity with the requirements of part 3 of article 90 of title 7, C.R.S., the constituent documents, acid the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes, This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is named in the document as one who has caused it to be delivered. 9. The true name and mailing address of the individual causing the document to be delivered for filing are Barnhardt Eileen (Last) first) (Middle) (Sr~~x) Sherman & Howard L.L. Sheet number and name orPost OffreeBox inforlr~ation) 63317th Street Suite 30 , ao Denver Ca 80202 (City) n ted )States (ZII'/Postal Code) (Province - i f applicable) (Country) (If the following statement appli es, adopt the statement by marking the box and include an attach~ytent.) ^ This document contains the tnie name and mailing address of one or more additional individuals causing the document to be delivered for filing. Disclaimer; This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. while this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same maybe amended from time to time, remains the responsibility of the user of this form/cover sheet, Questions should be addressed to the user's legal, business or tax advisor(s). ARTORG_LLC Page 3 of 3 Rev. 02/28/2008 ,~". TERM SHEET '~ 1) Requested hearing date: First choices May 5, 2009 (Second choice) May 12, 2009 2) For County Manager signature: No. 3) .Requesting department: EC Housing & Development Authority 4} T,_itle: RESOLUTION APPROVING FORMATION OF THE VALLEY HOME STORE, LLC 5) Check one: Consent:~On the Record: X 6) Staff submitting: Alex Potente, Managing Director 7) Purpose: To create a entity, controlled by the Eagle County Housing and Development Authority to assist it in undertaking Proj ects (as defined in CRS 29- 4-502(5)), including by undertaking the following: 1} to interface with the public in the administration of the Eagle County Housing and Development Authority's programs; 2) to hold its employees' broker's licenses; and 3) to perform other functions that may be performed by limited liability companies to further the goals and purposes of the Eagle County Housing and Development Authority, including the creation and maintenance of housing affordable to Eagle County's residents, particularly its workforce and senior population. 8) Schedule: Effective upon adoption 9) Financial considerations: None 10) 0_ they: None. ~~/v9 ~~ -~ ~I~ ~, U,,~~~ a e n 4i ~'~~ ~M'W Y} jj ~ r ~ fiW ~ ~ f ~+~~ ~' y ,,..- a C ~~! `'A~ r .1 _^ f- S~ „ ~~ ~~`` ~ rw a ,k 4 ~ Af~,~~. ;V i r ~ ~, ~ `'* ~,' APP~ED A T~ ~~ r ~~ ~ .Eagle County Attorney's Office ~ag1s bounty Commiss~nners ~fficQ