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HomeMy WebLinkAboutECHDA21-03 Spring CreekUSA.602908785.1/RKU Addendum to Operating Agreement of Spring Creek II LLC, a Colorado limited liability company THIS ADDENDUM, dated February 1, 2021, is attached to and forms part of the Operating Agreement of Spring Creek II LLC, a Colorado limited liability company (the “Company”) dated as of February 1, 2021 (the “Operating Agreement”), by and among Spring Creek Apartments LLC, a Colorado limited liability company (the “Manager”), PCS Holdings LLC., a Colorado limited liability company (the “Member”), and Eagle County Housing and Development Authority, a Colorado public body, corporate and politic (the “Special Member”). 1. Definitions. Capitalized terms used and not otherwise defined in this Addendum shall have the definitions given them in the Operating Agreement. The “Project” means the approximately 132-unit multifamily rental housing development and other improvements to be constructed, owned and operated thereon by the Company, and to be known as Spring Creek II. 2. Admission to Company; Capital Contribution; Legal and Other Expenses. (a) In exchange for its Interest in the Company, the Special Member has made (or shall make upon the execution of the Operating Agreement) a cash Capital Contribution to the Company in the amount of $100.00. (b) The Company shall pay the legal fees, costs, and other expenses actually incurred by the Special Member in connection with this Addendum and the admission of the Special Member and the closing of the transaction described in this Addendum in an amount not to exceed $15,000.00 (the “Legal Fees”). The Legal Fees shall be paid by the Company to the Special Member upon execution of this Addendum. In addition, the Company shall pay all legal fees, costs and other expenses incurred by the Special Member in connection with any future amendment to the Operating Agreement. (c) The Company shall pay the Special Member an amount equal to $5,000.00 for costs incurred by the Special Member in connection with the due diligence activities of the Special Member and other expenses associated with due diligence reviews, meetings with the Company and its agents, and other work related to this Addendum (the “Diligence Fee”). The Diligence Fee shall be paid by the Company upon execution of this Addendum. (d) The Company will pay the Special Member an annual asset management fee of $5,000.00, with the first payment payable upon the anniversary date of the admission of the Special Member to the Company, and each payment thereafter payable on the anniversary of the date of this Addendum (the “Special Member Annual Fee”). Upon the Special Member’s exit or withdrawal from the Company or other transfer or redemption of the Special Member’s interest in the Company, for any reason permitted hereunder (but excluding on a default or wrongful withdrawal by the Special Member), the Company shall pay the Special Member an exit fee of $20,000.00 (the “Exit Fee”). DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 ECHDA21-03 USA.602908785.1/RKU 3. Rights and Duties of the Special Member. (a) The Project shall be subject to a Rental and Occupancy Covenant for the benefit of the Special Member, in the form attached as Exhibit C, which shall have a term of 50 years, and which shall restrict (A) 66 units in the Project for occupancy by households with incomes at or below 80% of Area Median Income (“AMI”) as determined and published by the Secretary of Housing and Urban Development from time to time with respect to the area in which the Project is located, and (B) 66 units in the Project for occupancy by households with incomes at or below 120% of AMI (the “ECHDA Covenant”); and the Regulatory Agreement for the benefit of the Colorado Housing and Finance Authority (“CHFA Covenant,” and together with the ECHDA Covenant, the “Regulatory Agreements”). If the Project ceases to comply with the affordability restrictions set forth in the Regulatory Agreements, the Special Member may withdraw from the Company on the terms and subject to the procedures set forth in Section 7(b). Except as provided in this Section 3 and in Sections 4, 5 and 7 below, the Special Member shall not be entitled to withdraw as a member in the Company as long as the Project remains subject to and complies with the Regulatory Agreements. (b) Concurrently with the execution of this Addendum, the Manager shall cause to be delivered to the Special Member a fully executed Guaranty (as defined in the form attached to this Addendum as Exhibit A) for the benefit of the Special Member, guaranteeing the obligations under Section 4 of this Addendum. (c) Concurrently with the execution of this Addendum, the Company, Manager, Member, and the Special Member shall execute the Right of First Offer Agreement in the form attached to this Addendum as Exhibit B-1 (the “Right of First Offer Agreement”) and a Memorandum of Right of First Offer Agreement in the form attached to this Addendum as Exhibit B-2 (the “ROFO Memorandum”), which ROFO Memorandum shall be recorded in Office of the Clerk and Recorder of Eagle County, Colorado. (d) Concurrently with the execution of this Addendum, the Company shall execute the ECHDA Covenant in the form attached to this Addendum as Exhibit C; provided that to the extent required by the first lien or second lien construction lenders or permanent lenders, the Special Member shall subordinate its interests under the ECHDA Covenant to the interests of such lenders. (e) The Special Member agrees to use commercially reasonable efforts, at no cost to the Special Member, to take such actions to cooperate with the Company in the Company’s application for an exemption from special assessments, real property tax and construction period sales and use taxes provided under Colorado Revised Statutes § 29-4-507, § 29-4-226, § 29-4-227, and § 39-26-704(1.5). Any applications for exemption based on the participation of the Special Member shall be subject to the prior review and approval of the Special Member, which approval shall not be unreasonably withheld, conditioned, or delayed. The Special Member makes no representation or warranty whatsoever concerning any such exemption and provides no other assurances regarding the current or continued availability of any such property tax exemption or the qualification of the Company for any such tax exemption. Notwithstanding the foregoing or anything to the contrary herein, in the event the Project is no longer entitled to an exemption from DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU real property or sales and use taxes, the Special Member will have the right, but not the obligation, to withdraw from the Company. (f) In the event that the Manager is removed as Manager from the Company, the Special Member shall have the right to become the successor Manager of the Company upon the Special Member’s agreement to assume all guaranty obligations of the Manager, subject to the approval and consent of any applicable mortgage lender on the Project and the consent of the Member, each in its sole and absolute discretion. (g) The Company agrees that, for as long as the ECHDA Covenant remains in effect, and to the extent permitted by the federal and state fair housing acts and all other applicable law, the Company shall establish and implement a leasing preference for Eagle County residents and employees, with greatest preference given to public employees (including school district, emergency services, water provider, and Eagle County employees). 4. Liability of Special Member and Company; Indemnification of Special Member. The Special Member and all of their past and present officers, directors, commissioners, employees, partners, agents, shareholders, members, trustees, predecessors, successors, subrogees, and attorneys (collectively, the “Special Member Parties”), shall incur no liability for the Special Member’s acts or omissions in connection with the Company, the Project, or the performance of this Addendum, except that the Special Member shall be liable for any gross negligence, willful misconduct or violation of law, subject to applicable law, including, without limitation, the Colorado Governmental Immunity Act. The Company and the Manager shall indemnify and hold harmless each of the Special Member Parties against any loss, liability, claim or damage arising from or related to (a) the acts, omissions or conduct of the Company, (b) the Project, or (c) the performance of this Addendum (collectively, “Claims”); provided, however, such indemnity obligation shall not apply to the extent Claims are caused by the gross negligence, willful misconduct or violation of law by the Special Member, subject to applicable law, including the Colorado Governmental Immunity Act. 5. Required Consent. The written consent of the Special Member, which consent shall not be unreasonably withheld, conditioned, or delayed, shall be required for: (a) the transfer of either (A) a change of control of the Manager or (B) a majority of the equity interests in the Manager, if such transfer is not to a party affiliated with the Manager or the Member; (b) except as provided in the Operating Agreement, the withdrawal of the Manager from the Company if the Manager is not replaced by an affiliate of the Manager or the Member; (c) the admission of a successor Manager, following the voluntary withdrawal of the Manager if the Manager is not replaced by an affiliate of the Manager or the Member; (d) the admission of a successor Manager (unless such entity is an affiliate of the Member) following any exercise by the Member of its rights under the Operating Agreement to remove the Manager; DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU (e) any refinancing of any indebtedness secured by the Project following the closing of the permanent loans for the Project, and (f) any amendment or modification to this Addendum or the Operating Agreement that would (I) have a material adverse effect on the rights or obligations of the Special Member under this Addendum or the Operating Agreement (as modified by this Addendum), or (II) change the purposes of the Company as described in the Operating Agreement. provided that, if any of the above actions are taken without the written consent of Special Member, and if the action is not cured within 30 days following notice from the Special Member to the Manager and the Member, the sole remedy of Special Member shall be to withdraw from the Company. Except for those consent rights of the Special Member specifically set forth above in this Section 5 of this Addendum, all other actions, approvals, rights, powers, votes, agreements and consents, including, without limitation, all consents of the Member, as set forth in the Operating Agreement, as modified by this Addendum, shall be taken solely by the Member, acting singly. The Special Member shall not have the power or authority to bind the Company or to sign any agreement or document in the name of the Company. Notwithstanding anything to the contrary set forth in the Operating Agreement, as amended hereby, the Special Member cannot assign, pledge or otherwise transfer its Interest in the Company, in whole or in part, without the prior written consent of the Manager and the Member; provided, however, that the Special Member can assign or otherwise transfer its Interest in the Company to a parent, subsidiary or affiliate of the Special Member with the consent of the Manager and the Member. Further, except for those rights, duties and obligations of the Special Member specifically set forth in this Addendum, all rights, duties and obligations of the Member set forth in the Operating Agreement are solely the rights, duties and obligations of the Member and all references in the Operating Agreement to the Member refers solely to the Member and not to the Special Member. 6. Closing Documents; Reports and Information. (a) The Manager shall, within thirty (30) calendar days after the execution of this Addendum or, if later, after receipt of the executed (and, as applicable, recorded) documents, provide the Special Member copies of the following documents: (i) the Operating Agreement (including this Addendum), (ii) the Guaranty, (iii) the Right of First Offer Agreement and the Memorandum of Right of First Offer Agreement; and (iv) the Regulatory Agreements (together, the “Closing Documents”). If the Manager fails to comply with this requirement within ten (10) business days after receipt of written notice from the Special Member, the Manager shall be subject to a $50.00 per day penalty payable to the Special Member until the earlier of (i) the date upon which all of the Closing Documents or the Regulatory Agreements (as applicable) are provided to the Special Member or (ii) the date upon which the Special Member has withdrawn from the Company. The Special Member shall have the right, in its sole discretion, to withdraw from the Company upon ninety (90) days written notice to the Manager and the Member of the failure to provide the Closing Documents if not cured within such ninety (90) day period. Special Member agrees to accept a cure within applicable cure periods from the Member on the same basis as it would from the Manager. DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU (b) The Manager shall deliver to the Special Member copies of all reports and other information that the Manager delivers to the Member under the Operating Agreement concurrently with the delivery of such reports and other information to the Member. Without limiting the foregoing, the Manager shall provide the Special Member with all quarterly financial reports, annual audited financial statements, all information necessary for the preparation of the Special Member’s federal income tax return, including a Form K-1 and a copy of the Company’s federal tax returns, any state or local Company returns, and other material documents provided to the IRS. If the Manager fails to provide such reports and other information as required by this Section 6(b), the Manager shall be subject to a $50.00 per day penalty commencing on the date that the Special Member provides written notice of such failure, payable to the Special Member until such reports and information are provided to the Special Member. The Manager agrees to deliver the information described in this Section 6(b) electronically to the email address provided by Special Member from time to time, unless Special Member requests delivery by a different method. 7. Withdrawal and Repurchase Rights. (a) Financial Viability. Beginning fifteen years after the Project is placed in service and every one year thereafter, the Special Member and the Company will review the economic health of the Project and other conditions and determine whether continuing the property tax exemption for the subsequent years is needed for the Project to be Financially Viable (as defined below) based upon the affordability restrictions contained in the Regulatory Agreements. If the property tax exemption is not needed for the Project to be Financially Viable, the property tax exemption will be discontinued, and if the exemption is discontinued, then the Special Member will have the right to withdraw from the Company. If it is determined that the property tax exemption is still necessary for the Financial Viability of the Project, the Special Member will remain a member in the Company. For purposes of this section, the term Financially Viable shall be deemed to mean that the Project would still be able to achieve a 1.15 to 1.0 (or greater) debt service coverage ratio, after the funding of all applicable reserves and the payment in full of all applicable property taxes following a termination of the property tax exemption. If, however, the parties all agree that continuing tax exemption is not required for the Project’s viability, then the Special Member shall have the right to withdraw from the Company upon thirty (30) days written notice to the Manager and the Member. If Special Member withdraws from the Company, the Company shall return the Special Member’s Capital Contribution, plus interest at the rate of ten percent (10%) per annum, compounded annually, from the date of Special Member’s admission to the Company through the date of withdrawal. (b) Special Member Withdrawal Rights. In addition to the rights of the Special Member to withdraw from the Company as otherwise explained in this Addendum, the Special Member shall have the right to withdraw from the Company upon thirty (30) days written notice to the Manager and the Member, upon any of the following: (i) a breach by the Company or any member of any provisions of the Operating Agreement or related agreements benefitting the Special Member, if such breach is not cured within thirty (30) days following written notice thereof to the Manager and the Member; (ii) a breach by the Company or any member of any provisions of this Addendum, if such breach is not cured within thirty (30) days following written notice thereof to the Manager; (iii) a failure of the Company to comply with the Regulatory Agreements and/or any other occupancy restriction and such failure is not cured within ninety (90) days DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU following written notice thereof by the Special Member to the Manager and the Member; (iv) a failure of the Company to maintain the Project in compliance with applicable laws or where the Company otherwise breaches applicable laws, which breach materially impedes the ability of the Company to operate the Project, and such failure is not cured within thirty (30) days following written notice thereof by the Special Member to the Manager and the Member; (v) the refinancing of Company debt on terms that permit distributions to the members of the Company or repayment of subordinated debt owing to any partner or affiliate, unless the Special Member has consented to the refinancing, such consent not to be unreasonably withheld, conditioned or delayed; (vi) bankruptcy with respect to the Company, or (vii) upon the termination or expiration of the Right of First Offer Agreement except as set forth in this Addendum. (c) Repurchase of Special Member Interest. The Manager shall have the right to repurchase the interest of the Special Member in the Company, upon thirty (30) days written notice to the Special Member, at any time after either (i) the Project does not qualify for an exemption from special assessments and real property taxes and construction period sales and use taxes as provided in Section 3(e) above, or (ii) any material, uncured violation by the Special Member of the Operating Agreement. If the Manager repurchases the interest of the Special Member in the Company pursuing to the foregoing clause (ii), the Special Member’s rights under the Right of First Offer Agreement shall terminate. The purchase price for the Special Member’s interest pursuant to this Section 7(c) shall equal $100.00 plus any accrued and unpaid amounts owing to the Special Member under the Operating Agreement; provided, that the purchase shall be conditioned upon payment by the Company to the Special Member of all amounts then owing under the Operating Agreement and the Guaranty. Upon purchase of the Special Member’s interest, Special Member shall execute an amendment to the Operating Agreement which is reasonably necessary and appropriate to evidence the Special Member’s withdrawal as a member, effective upon the date of such repurchase; provided, that the Company will pay the Exit Fee in connection with such withdrawal. 8. Conflicts. If any provision of this Addendum conflicts with any provision of the Operating Agreement or any document, the provisions of this Addendum shall be controlling in all respects. Except as specifically amended hereby, all of the terms and the provisions of the Operating Agreement remain in full force and effect, unamended hereby. 9. Burden and Benefit. The covenants and agreements contained herein shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto. No party may assign this Addendum without the consent of the other party. 10. Severability. If any provision of this Addendum or the application thereof is held to be invalid or unenforceable, such defect shall not affect other provisions or applications of this Addendum that can be given effect without the invalid or unenforceable provisions or applications, and to this end, the provisions and applications of this Addendum shall be severable. 11. No Continuing Waiver. No waiver by a party hereto of any breach of this Addendum shall be effective unless in a writing executed by such party. No waiver shall operate or be construed to be a waiver of any subsequent breach. DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU 12. Governing Law. This Addendum shall be construed and enforced in accordance with the laws of the State of Colorado, without regard to principles of conflicts of laws. 13. Binding Agreement. This Addendum shall be binding on the parties hereto, and their successors and permitted assigns. 14. Headings. All headings in this Addendum are for convenience of reference only and are not intended to qualify the meaning of any provision of this Addendum. 15. Counterparts. This Addendum may be executed in several counterparts, each of which shall be deemed to be an original copy, and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties shall not have signed the same counterpart. Remainder of page intentionally blank; signatures on following page(s). DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 Commissioner Matt Scherr USA.602908785.1/RKU EXHIBIT A TO ADDENDUM (GUARANTY) DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU GUARANTY THIS GUARANTY (this “Guaranty”), dated February 1, 2021, is made by and between among SPRING CREEK APARTMENTS LLC, a Colorado limited liability company (the “Guarantor”), for the benefit of the EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, a body corporate and politic (the “Special Member”) to induce the Special Member to become the Special Member in the Company. RECITALS A. The Guarantor is the Manager of Spring Creek II LLC, a Colorado limited liability company (the “Company”). The Company is governed by its Operating Agreement of the Company dated to be effective February 1, 2021, as amended by the Addendum to Operating Agreement, dated as of the same date (the “Addendum”), such Operating Agreement and Addendum being referred to collectively hereinafter as the “Operating Agreement.” All capitalized terms not otherwise defined herein shall have the definitions given them in the Addendum. B. The Guarantor has certain indemnification obligations to the Special Member pursuant to Section 4 of the Addendum. C. As a condition to entering into the Addendum, the Special Member has required that the Guarantor guarantee to the Special Member the indemnification obligations under the Addendum. NOW, THEREFORE, in order to induce the Special Member to enter into the Company and the Addendum and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby covenants and agrees as follows: 1. Guaranty. Guarantor irrevocably and unconditionally fully guarantees the due, prompt and complete performance of each and every one of the following obligations: (a) the payment and performance of each and every indemnification obligation of the Company and the Manager under Section 4 of the Addendum, and (b) the due, prompt and complete payment of all costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Special Member in connection with the enforcement of this Guaranty against the Guarantor (the obligations described in this Paragraph 1 are hereinafter collectively referred to as the “Obligations”). 2. Payments. The Guarantor agrees that if any of the Obligations are not fully and timely paid or performed according to the tenor thereof, the Guarantor shall immediately upon receipt of written demand therefor from the Special Member pay all of the Obligations hereby guaranteed in like manner as if the Obligations constituted the direct and primary obligation of the Guarantor. The Guarantor shall not, until the Obligations are paid in full, have any right of subrogation as a result of any payment hereunder or any other payment made by the Guarantor on account of the Obligations, and Guarantor hereby waives, releases and relinquishes any claim based on any right of subrogation, any claim for unjust enrichment or any other theory that would DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU entitle the Guarantor to a claim against the Company based on any payment made hereunder or otherwise on account of the Obligations. 3. Continuing Guaranty: (a) This Guaranty and the obligations of the Guarantor hereunder shall be continuing and irrevocable until the Obligations have been satisfied in full. Notwithstanding the foregoing or anything else set forth herein, and in addition thereto, if at any time all or any part of any payment received by the Special Member from a Guarantor under or with respect to this Guaranty is or must be rescinded or returned for any reason whatsoever (including, but not limited to, determination that said payment was an avoidable preference or fraudulent transfer under insolvency, bankruptcy or reorganization laws), then Guarantor’s obligations hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous receipt of payment by the Special Member, and Guarantor’s obligations hereunder shall continue to be effective or be reinstated as to such payment, all as though such previous payment to the Special Member had never been made. The provisions of the foregoing sentence shall survive termination of this Guaranty and shall remain a valid and binding obligation of Guarantor until satisfied. (b) Subject to the terms and conditions of the Operating Agreement, the Special Member, in its sole discretion, may at any time enter into agreements to amend, modify or change the Addendum or any document or agreement relating in any way to the terms and provisions thereof, or may at any time waive or release any provision or provisions thereof and, with reference thereto, may make and enter into all such agreements as the Special Member may deem proper or desirable, without any notice or further assent from any Guarantor and without in any manner impairing or affecting this Guaranty or any of the rights of the Special Member or Guarantor’s obligations hereunder. 4. Acceptance of Guaranty. Guarantor hereby waives notice of acceptance of this Guaranty by the Special Member and this Guaranty shall immediately be binding upon Guarantor. Any Guarantor who executes this Guaranty shall be fully bound hereby regardless of whether or not any other Guarantor subsequently executes this Guaranty. 5. Waivers. Guarantor hereby waives and agrees not to assert or take advantage of: (a) any right to require the Special Member to proceed against the Company or the Manager or any other person or to proceed against or exhaust any security held by the Special Member at any time or to pursue any other remedy in the power of the Special Member before proceeding against Guarantor hereunder; (b) the defense of the statute of limitations in any action hereunder or in any action for the collection of the Obligations or the performance of any other obligations guaranteed hereby; (c) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other person or persons or the failure of the Special Member to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other person or persons; DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU (d) demand, presentment for payment, notice of non-payment, protest, notice of protest and all other notices of any kind, including, without limitation, notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non- action on the part of the Special Member or any endorser or creditor of the Special Member or Guarantor or on the part of any other person whomsoever under this or any other instrument in connection with any obligation or evidence of indebtedness held by the Special Member or in connection with the Obligations; (e) any right, benefit or defense arising under Section 1111 or Section 364 of the Bankruptcy Code; (f) any duty or obligation on the part of Special Member to perfect, protect, not impair, retain or enforce any security for the payment of the Obligations or performance of any of the other obligations guaranteed hereby; and (g) any right or defense arising out of an election of remedies by Special Member, even though such election (e.g., nonjudicial foreclosure with respect to any collateral held by Special Member to secure repayment of the Obligations), destroys or otherwise impairs Guarantor’s rights of subrogation or the right of Guarantor (after payment of the Obligations) to proceed against the Special Member for reimbursement. 6. Payment Guaranty. The liability of Guarantor under this Guaranty shall be an absolute, direct, immediate and unconditional guarantee of payment and not of collectability. The obligations of Guarantor hereunder are independent of the obligations of the Company and the Manager or any other party which may be initially or otherwise responsible for performance or payment of the obligations hereunder guaranteed and, in the event of any default hereunder, a separate action or actions may be brought and prosecuted against a Guarantor, whether or not the Company or the Manager is joined therein or a separate action or actions are brought against them. The Special Member may maintain successive actions for other defaults. The rights of the Special Member hereunder shall not be exhausted by its exercise of any of its rights or remedies or by any such action or by any number of successive actions until and unless the Obligations have been paid and satisfied in full. 7. Attorneys’ Fees. The Guarantor hereby agrees to pay to the Special Member, upon demand, reasonable attorneys’ fees and all costs and other expenses which the Special Member expend or incur in collecting or compromising the Obligations or in enforcing this Guaranty against Guarantor whether or not suit is filed, including, without limitation, all costs, attorneys’ fees and expenses incurred by the Special Member in connection with any insolvency, bankruptcy, reorganization, arrangement or other similar proceedings involving a Guarantor which in any way affect the exercise by the Special Member of its rights and remedies hereunder. Any and all such costs, attorneys’ fees and expenses not so paid shall bear interest at an annual interest rate equal to the lesser of (i) twelve percent (12%), or (ii) the highest rate permitted by applicable law, from the date incurred by the Special Member until paid by the Guarantor. 8. Notice. Notices to the Guarantor shall be sent to: c/o Polar Star Development, LLC DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU Attn: Gerry Flynn 28 Second Street, Suite 215 Edmonds, Colorado 81632 with copies to: Bryan Cave Leighton Paisner LLP One Boulder Plaza 1801 13th Street, Suite 300 Boulder, CO 80302-5386 Attn: Ben Doyle, Esq. and Eagle County Housing and Development Authority Attn: Kim Williams 500 Broadway Eagle, Colorado 81651 and Eagle County Attorney’s Office Attn: Beth A. Oliver, Esq. P.O. Box 850 500 Broadway Eagle, Colorado 81631 9. Miscellaneous. (a) Should any one or more provisions of this Guaranty be determined to be illegal or unenforceable, all other provisions nevertheless shall be effective. (b) No provision of this Guaranty or right of the Special Member hereunder can be waived nor shall any Guarantor be released from any obligations hereunder except by a writing duly executed by the Special Member. This Guaranty may not be modified, amended, revised, revoked, terminated, changed or varied in any way whatsoever except by the express terms of a writing duly executed by the Special Member and Guarantor. (c) This Guaranty shall inure to the benefit of and bind the heirs, legal representatives, administrators, executors, successors and assigns of the Special Member and the Guarantor. (d) This Guaranty may be executed in any number of counterparts, each of which shall be effective only upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, with the same effect as if all parties hereto had signed the same signature page. Any signature page of this Guaranty may be detached from any counterpart of this Guaranty without impairing the legal effect of any signatures thereon and DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU may be attached to another counterpart of this Guaranty identical in form hereto but having attached to it one or more additional signature pages. (e) Any married person who signs this Guaranty hereby agrees that recourse may be had against his or her separate property for all of his or her obligations. (f) None of the parties hereto shall be deemed to have waived any rights hereunder unless such waiver shall be in writing and signed by such party. The waiver by any party of any breach of this Guaranty shall not operate or be construed to be a waiver of any subsequent breach. 10. Governing Law. This Guaranty shall be construed and enforced in accordance with the laws of the State of Colorado, without regard to principles of conflicts of laws, and cannot be modified, amended or terminated orally. 11. Headings. All headings in this Guaranty are for convenience of reference only and are not intended to qualify the meaning of any provision of this Guaranty. 12. Terminology. All personal pronouns used in this Guaranty, whether used in the masculine, feminine, or neuter gender, shall include all other genders, the singular shall include the plural, and vice versa as the context may require. SIGNATURE ON FOLLOWING PAGE DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU EXHIBIT B-1 TO ADDENDUM (RIGHT OF FIRST OFFER AGREEMENT) DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602910394.1/RKU AUTHORITY RIGHT OF FIRST OFFER AGREEMENT This AUTHORITY RIGHT OF FIRST OFFER AGREEMENT (the “Agreement”) is effective as of February 1, 2021 by and among SPRING CREEK II LLC, a Colorado limited liability company, and its successors and assigns (the “Company”), SPRING CREEK APARTMENTS LLC, a Colorado limited liability company (the “Manager”), and EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, a body corporate and politic (the “Authority”). Background A. The Company owns the real property located in Gypsum, Colorado more particularly described on Exhibit A attached hereto and incorporated herein by this reference, and certain improvements constructed or to be constructed thereon, commonly known as Spring Creek II (the “Project”). B. In consideration of the agreement by the Authority to be admitted as the Special Member of the Company (as defined in the Addendum to Operating Agreement of the Company) and the economic benefits and tax exemptions realized by the Company by virtue of the Authority’s admission to the Company, the Company and the Manager have agreed to enter into this Agreement with the Authority. C. The parties hereto desire to set forth the terms of the right of first offer granted herein below from the Company and the Manager to the Authority to purchase the Project. D. All capitalized terms not otherwise defined herein shall have the definitions given them in the Operating Agreement of the Company dated as of the date hereof or the Addendum thereto dated as of the date hereof (collectively, the “Operating Agreement”). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Agreement 1. Right of First Offer. (a) For a period beginning on the day after the date of issuance of the first certificate of occupancy for the Project and expiring 10 years later (the “Exercise Period”), in the event that the Company desires to sell the Project, then the Company (the “Seller”) shall first offer to sell the Project to the Authority by providing the Authority with a written notice (the “ROFO Offer Notice”), setting forth a proposed purchase price (the “Offer Price”), commercially reasonable title and property condition inspection rights, and a proposed closing date. Within 45 days after the Seller provides such ROFO Offer Notice, the Authority may notify the Seller that it desires to purchase the Project at the Offer Price and on the terms set forth in the ROFO Offer Notice (the “Acceptance Notice”). If the Authority delivers an Acceptance Notice, then the Seller and the Authority shall, within 30 business days (the “Negotiating Period”) in good faith attempt to agree on the terms of, and execute, a definitive purchase and sale agreement based on the terms DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 2 USA.602910394.1/RKU contained in the ROFO Offer Notice and the Offer Price. Such terms shall include a transfer of the Project in an “as is, where is, with all faults” condition by special warranty deed. (b) If the Authority fails to notify the Seller that it desires to purchase the Project, or in the event that the Authority and the Seller fail to reach agreement on a definitive purchase and sale agreement during the Negotiating Period and either the Authority or the Seller terminate further negotiations by notice to the other, then the Seller shall be free, for a period of 365 days, to sell the Project to a third party purchaser for a purchase price that is not less than the Offer Price without the requirement of any further notice to or consent by the Authority. In such event, the Authority shall, at the expense and request of the Seller, execute such documents as may be reasonably necessary for the Seller to sell the Project free and clear from the Authority’s rights under this Agreement, including such documents as may be necessary to satisfy the third party purchaser and the title insurance company that the Authority’s rights under this Agreement do not apply with respect to the sale. Upon the closing of the sale to the third party purchaser, the Authority shall, at the expense and request of the Seller, execute, acknowledge and deliver such other documents as may be reasonably required by the Company’s or the Manager’s, as applicable, title company to remove the cloud of the ROFO from title to the Project. (c) In the event the Seller has not entered into a third-party purchase contract within 365 days or the transaction contemplated in such a third-party purchase contract does not close, then the Authority’s right of first offer as described in this section shall be reinstated. (d) The Authority’s right of first offer defined in this section 1 (the “ROFO”) shall terminate upon the removal of the Authority from the Company as the Special Member due to the Authority’s material violation of any representations, warranties, or covenants of the Authority under the Operating Agreement. 2. Completion of Sale. (a) At the closing (the “Closing”) of the sale of the Project following execution of the purchase agreement executed pursuant to the ROFO, (i) the Company or the Grantee, as applicable, shall deliver to the Authority the deed and shall cause a title company to issue, at the Authority’s cost, an ALTA owner’s policy of title insurance dated as of the Closing (the “Title Policy”), in an amount equal to the Offer Price, showing title to the Project vested in the Authority and showing as exceptions all liens and encumbrances of record (other than monetary liens, unless otherwise agreed by the Authority), real estate taxes for the calendar year in which the conveyance occurred and subsequent years that are not yet due and payable, and all matters that are disclosed or that would have been disclosed by an improvement survey plat of the Project or could have been ascertained by an inspection of the Project and which matters were not created or otherwise known by the grantor, and (ii) the Authority shall deliver to the Company or the Grantee, as applicable, the Offer Price. (b) The Company or the Grantee, as applicable, shall use all reasonable efforts to obtain the consent to the sale by the holders of any deeds of trust on the Project, if required. The costs of such sale, other than the Title Policy, shall be apportioned between, on the one hand, the Company or the Grantee, as applicable, and the Authority on the other hand, according to the DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 3 USA.602910394.1/RKU custom then in effect in Eagle County, Colorado; provided, however, that the Authority shall pay any and all deed recording or other transfer taxes payable upon the transfer of the Project. 3. Subordination. The rights of the Authority to purchase the Project pursuant to this Agreement will be subject and subordinate in all respects to (a) any rights the Manager has to purchase the interest of PCS Holdings LLC., a member of the Company, which may be exercised without notice to or consent of the Authority, and (b) the terms and conditions of the deeds of trust encumbering the Project; the lien of any deed of trust recorded after the date of this Agreement in connection with any financing or refinancing related to the Project; the Regulatory Agreement executed for the benefit of the Colorado Housing and Finance Authority (“CHFA”); and the Rental and Occupancy Covenant executed for the Authority’s benefit, and the Authority shall take title to the Project subject to any such liens and encumbrances (other than monetary liens, unless otherwise agreed by the Authority). Specifically, this Agreement is subordinate and subject to (i) that certain Deed of Trust, Security Agreement and Fixture Filing and the Assignment of Leases, Rents and Other Rights, each as assigned, modified, amended or replaced (“FirstBank DOT”) granted by the Company for the benefit of FirstBank, a Colorado state banking corporation (“FirstBank”) and encumbering the Project, and (ii) that certain Deed of Trust, Security Agreement and Fixture Filing and the Assignment of Leases, Rents and Other Rights, each as assigned, modified, amended or replaced granted by the Company for the benefit of CHFA and encumbering the Project (“CHFA DOT”). Upon any exercise of foreclosure of the FirstBank DOT or deed in lieu thereof or the CHFA DOT or deed in lieu thereof, the Authority ROFO and this Memorandum shall automatically terminate. Lenders with deeds of trust secured by the Project are third-party beneficiaries of this section of this Agreement. 4. Notices. All notices, demands, requests or other communications to be sent by one party to the other hereunder or required by law shall be in writing and shall be deemed to have been validly given or served by delivery of same in person to the addressee or by depositing same with a nationally recognized overnight delivery service such as Federal Express for next business day delivery (“Overnight Delivery”) or by depositing same in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed as follows: If to the Company or Manager: c/o Polar Star Development, LLC 28 Second Street, Suite 215 Edwards, CO 81632 Attention: Gerald E. Flynn With a copy to: Bryan Cave Leighton Paisner LLP 1801 13th Street, Suite 300 Boulder, CO 80302 Attention: Ben Doyle, Esq. If to the Authority: Eagle County Housing and Development Authority Post Office Box 850 500 Broadway Eagle, CO 81631 Attention: Kim Williams, Director DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 4 USA.602910394.1/RKU with a copy to: Eagle County Attorney’s Office P.O. Box 850 500 Broadway Eagle, Colorado 81631 Attention: Beth A. Oliver, Esq. All notices shall be effective upon such personal delivery, upon being deposited in Overnight Delivery, or in the United States mail as required above. However, with respect to notices so deposited in Overnight Delivery or the United States mail, the time period in which a response to any such notice, demand or request must be given shall commence to run from the next business day following any such deposit in Overnight Delivery, in the case of a deposit in the United States mail as provided above, the date on the return receipt of the notice reflecting the date of delivery or rejection of the same by the addressee thereof. By giving to the other parties hereto at least 15 days’ written notice in accordance with the provisions hereof, a party may change its address for notice purposes. 5. Attorney’s Fees. In the event of any action or proceeding at law or in equity between the Company or the Manager, as applicable, and the Authority to enforce any provision of this Agreement or to protect or establish any right of remedy of any party hereunder, the substantially unsuccessful party to the litigation shall pay to the substantially prevailing party all costs and expenses, including, without limitation, reasonable legal fees incurred therein by the substantially prevailing party, and if the substantially prevailing party recovers judgment in any action or proceeding, the costs, expenses and legal fees shall be included in and as part of the judgment. 6. Miscellaneous. (a) The Company, the Manager and the Authority each represents and warrants that each has not had or will not have any dealings with any person, firm, broker or finder in connection with the negotiation of this Agreement and/or the consummation of the transactions contemplated hereby. Each party hereto hereby agrees to indemnify and hold harmless the other party from and against costs, expenses of liabilities for compensation, commissions or charges which may be claimed by any broker, finder or similar party by reason of any actions of the indemnifying party. (b) The rights and obligations of the Company, the Manager and the Authority under this Agreement shall inure to the benefit of, and bind, their respective successors and permitted assigns. (c) The captions used herein are for convenience of reference only and are not part of this Agreement and do not in any way limit or amplify the terms and provisions hereof. (d) Time is of the essence of each and every agreement, covenant and condition of this Agreement. DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 5 USA.602910394.1/RKU (e) This Agreement shall be interpreted in accordance with, and governed by, the laws of the State of Colorado. (f) This Agreement may be executed in several counterparts, each of which shall be deemed to be an original copy, and all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties shall not have signed the same counterpart. (g) This Agreement constitutes the entire agreement among the Company, the Manager and the Authority with respect to the subject matter hereof, and supersedes all prior offers and negotiations, oral and written. This Agreement may not be amended or modified in any respect whatsoever except by an instrument in writing signed by the Company, the Manager and the Authority. 7. Recording. A memorandum of this Agreement shall be recorded in the Eagle County real property records in a form and substance reasonably acceptable to the parties hereto. [SIGNATURES ON NEXT PAGE] DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602910394.1/RKU AUTHORITY EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, a body corporate and politic By: _____________________________ Name: _____________________________ Title: Chair STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this _____ day of ____________, 2021, by _________________________________, as Chair of the Eagle County Housing and Development Authority, a body corporate and politic. Witness my hand and official seal. My Commission Expires:___________________. Notary Public DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 Matt Scherr USA.602910394.1/RKU Exhibit A Legal Description PARCEL A: PARCEL 12, THIRD AMENDMENT TO THE FINAL PLAT STRATTON FLATS PLANNED UNIT DEVELOPMENT FILING NO. 1, ACCORDING TO PLAT THEREOF RECORDED JULY 27, 2020 UNDER RECEPTION NO. 202012022, COUNTY OF EAGLE, STATE OF COLORADO. PARCEL B: PARCEL 14B AND TRACT V-2, MINOR PLAT AMENDMENT PARCEL 14A AND PARCEL 14B, AND TRACT V-1 AND V-2, ACCORDING TO THE PLAT THEREOF RECORDED OCTOBER 26, 2018 UNDER RECEPTION NO. 201818368, COUNTY OF EAGLE, STATE OF COLORADO. PARCEL C: A NON-EXCLUSIVE EASEMENT FOR PURPOSES OF ACCESS AND UTILITIES OVER, UNDER AND ACROSS TRACT "D" AND A PORTION OF TRACT "B" OF THE FIRST AMENDMENT TO FINAL PLAT OF STRATTON FLATS PLANNED UNIT DEVELOPMENT, FILING 1, RECORDED JANUARY 22, 2009 UNDER RECEPTION NO. 200900843, AS MORE FULLY DESCRIBED IN BARGAIN AND SALE DEED RECORDED DECEMBER 18, 2019 UNDER RECEPTION NO. 201921623, COUNTY OF EAGLE, STATE OF COLORADO. PARCEL D: AN EASEMENT FOR FOR ACCESS AND UTILITY PURPOSES WITHIN THAT PORTION OF PARCEL 14A OF THIRD AMENDMENT TO THE FINAL PLAT STRATTON FLATS PLANNED UNIT DEVELOPMENT FILING NO. 1 RECORDED JULY 27, 2020 UNDER RECEPTION NO. 202012022, DESIGNATED AS "ACCESS & UTILITY EASEMENT CREATED BY THIS PLAT" ON THE PLAT OF SECOND AMENDMENT TO THE FINAL PLAT STRATTON FLATS PLANNED UNIT DEVELOPMENT FILING 1 RECORDED OCTOBER 26, 2018 UNDER RECEPTION NO. 201818367, COUNTY OF EAGLE, STATE OF COLORADO. PARCEL E: A NON-EXCLUSIVE EASEMENT FOR ACCESS AND UTILITY PURPOSES ACROSS TRACT B-1 OF THIRD AMENDMENT TO THE FINAL PLAT STRATTON FLATS PLANNED UNIT DEVELOPMENT FILING NO. 1, ACCORDING TO PLAT THEREOF RECORDED JULY 27, 2020 UNDER RECEPTION NO. 202012022, AS RESERVED IN DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602910394.1/RKU BARGAIN AND SALE DEED RECORDED ________, 2021 UNDER RECEPTION NO. _______, COUNTY OF EAGLE, STATE OF COLORADO. DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 USA.602908785.1/RKU EXHIBIT B-2 TO ADDENDUM (MEMORANDUM OF RIGHT OF FIRST OFFER AGREEMENT) DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450 dUSA.602908785.1/RKU EXHIBIT C TO ADDENDUM (RESTRICTIVE COVENANT) DocuSign Envelope ID: E99C4EF9-3D41-454E-8E21-B68CB13DD450