08-27-2020 Limited Liability Company Agreement of Buffalo Ridge, LLCWRITTEN CONSENT IN LIEU OF THE FIRST MEETING
OF THE MANAGER AND MEMBERS
OF
BUFFALO RIDGE, LLC
In lieu of the first meeting of the Manager and Members of Buffalo Ridge, LLC, a
Delaware limited liability company (the "Company"), the undersigned, constituting the Manager
and Members of the Company, hereby consent to the adoption of and hereby adopt the following
resolutions and declares them to be in full force and effect as if they were adopted at a scheduled
meeting of the Manager and Members of the Company:
Certificate of Formation
RESOLVED, that the Certificate of Formation, attached hereto as Exhibit A (the
"Certificate of formation"), which articles were filed in the office of the Delaware
Secretary of State on June 11, 2020, is acknowledged as the Certificate of Formation of
the Company; and that a file stamped copy of the Certificate of Formation shall be placed
in the records book of the Company.
Limited Liabilih, Company Agreement
RESOLVED, that the Limited Liability Company Agreement of the Company, attached
hereto as Exhibit B (the "Limited Liability Company Agreement"), which has been
presented to and reviewed by the Manager and Members of the Company, be, and hereby
is, adopted and approved as the Limited Liability Company Agreement of the Company,
and a copy shall be placed in the records book of the Company.
Appointment of Mana�zcr
RESOLVED, that OI-CREG Cherry Creek, LLC, a Delaware limited liability company
is hereby appointed to serve as the Company's Manager, and shall serve in such capacity
until its successor is duly appointed.
Bank Accounts
RESOLVED, that the Manager and Members hereby ratify and confirm that the
Manager of the Company is hereby authorized to open one or more Company bank
accounts and to execute banking resolutions and such other documents as may be
required by such banking institution(s).
Fiscal Year
RESOLVED, that the Manager and Members hereby ratify and confirm that the fiscal
year of the Company shall end on the 31 st day of December of each year.
74438108.2
Release of Organizer
RESOLVED, that the organizer of the Company is hereby forever released and
indemnified by the Company from and against any and all expense or liability actually
incurred by the organizer by reason of having been the organizer of the Company.
Ratification
RESOLVED, that the acts of each of the Manager and the Members in organizing the
business and entering into contracts and transactions for and on behalf of the Company
be, and hereby are, approved, ratified, confirmed and adopted as acts of the Company, in
the same manner as if each and every such act had been done pursuant to the specific
authorization of the Company.
General Authorization
RESOLVED, that the Manager of the Company is authorized and directed to execute
any documents and instruments and to perform any other acts on the Company's behalf
that such Manager deems appropriate to carry out fully the foregoing resolutions.
When signed by the Members of the Company and delivered to the Company for filing
with the Company records, this Written Consent may be certified as having been adopted by the
Members of the Company.
[Signature Page Follows]
2
74438108.2
IN WITNESS WHEREOF, the undersigned has executed this Written Consent in Lieu
of First Meeting of the Manager and Members of Buffalo Ridge, LLC with the intention that it
be effective as of August 27 , 2020, notwithstanding the date of execution.
MANAGER:
OI-CREG CHERRY CREEK, LLC, a Delaware
limited liability company
By: Corum Cherry Creek, LLC,
a Colorado limited liability company, its
Manager
By: r •— �� ��- �- ---
Name: V. Michael Komppa
Title: Manager
MEMBERS:
OI-CREG CHERRY CREEK, LLC, a Delaware
limited liability company
By: Corum Cherry Creek, LLC,
a Colorado limited liability company, its
Manager
By; 4�
Name: V. Michael Komppa
Title: Manager
THE HOUSING AUTHORITY OF THE TOWN
OF AVON, COLORADO
4i � �1 �']
By: i/I�i''' `�
Name: Sarah Smith Hymes
Title: Chairperson
[Signature Page to Written Consent]
74438108
Exhibit A
Certificate of Formation
[see attached]
Exhibit A
74438108.2
Delaware Pagel
The First State
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF FORMATION OF "BUFFALO RIDGE, LLC",
FILED IN THIS OFFICE ON THE ELEVENTH DAY OF JUNE, A. D. 2020, AT
12:11 O'CLOCK P.M.
3048706 8100
SR# 20205638526
You may verify this certificate online at corp,delaware,gov/authver.shtml
�.nny W. "%Awb. to wj of sin.
Authentication: 203090543
Date: 06-11-20
State of Delaware
Secretary of State
Division of Corporations
Delivered 12:11 PM06/112020
FILED 12:11 PAI 061112020
SR 20205638526 . FIIeNumber 3048706 CERTIFICATE OF FORMATION
OF
BUFFALO RIDGE, LLC
The undersigned, for the purpose of forming a limited liability company under the
Delaware Limited Liability Company Act, 6 Del. § 18 - 101, et seq, (the "Act"), as amended and
supplemented, hereby adopts the following Certificate of Formation:
ARTICLE 1 - NAME
The name of the limited liability company (the "Company") is: Buffalo Ridge, LLC.
ARTICLE 2 - REGISTERED OFFICE AND REGISTERED AGENT
The address, including street, number, city, and county, of the registered office of the
Company in the State of Delaware is: 251 Little Falls Drive, Wilmington, New Castle County,
Delaware 19808. The name of the Company's resident agent at such address is: Corporation
Service Company.
The undersigned hereby declares, under penalty of perjury, according to the laws of
Delaware, that the foregoing is true and correct.
Dated: June 11, 2020
/s/ Steven Wright
Steven Wright, Organizer
73870554.1
Exhibit B
Limited Liability Company Agreement
[see attached]
Exhibit B
74438108.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
BUFFALO RIDGE, LLC
August 21, 2020
73750552.5
Table of Contents
Article I Business Purposes, Offices, and Foreign Qualification.................................................................1
1.1
Business Purpose...........................................................................................................................1
1.2
Principal Office.................................................................................................................. ......1
1.3
Term..............................................................................................................................................1
1.4
Registered Office and Agent.........................................................................................................1
1.5
Foreign Qualification....................................................................................................................1
ArticleH Definitions....................................................................................................................................2
2.1
Terms Defined Herein...................................................................................................................2
2.2
Other Definitional Provisions........................................................................................................4
Article III Capital Contributions and Loans.................................................................................................4
3.1
Capital Contribution......................................................................................................................4
3.2
Additional Capital Contributions, Loans and Guarantees.............................................................4
3.3
No Personal Liability.....................................................................................................................4
ArticleIV Distributions................................................................................................................................4
4.1
Non -Liquidating Cash Distributions.............................................................................................4
4.2
Liquidation Distributions..............................................................................................................4
4.3
Reserves........................................................................................................................................5
Article V Rules relating to the members......................................................................................................5
5.1
Member Classes............................................................................................................................5
5.2
Meetings of Members; Place of Meetings.....................................................................................5
5.3
Action Without Meeting................................................................................................................5
Article VI Management and Control............................................................................................................6
6.1
Management By Manager.............................................................................................................6
6.2
Authority of the Manager..............................................................................................................6
6.3
Limitations on Authority...............................................................................................................7
6.4
Compensation; Reimbursements...................................................................................................8
6.5
Other Business Ventures; Confidentiality.....................................................................................9
6.6
Officers..........................................................................................................................................9
Article VII Transfer of Interests...................................................................................................................9
7.1
Involuntary Transfer; Rights of Assignees and Substitute Member..............................................9
7.2
Permitted Economic Transfers....................................................................................................10
7.3
Substitute Member......................................................................................................................10
Article VIII Liability and Indemnification.................................................................................................10
8.1
Limitation of Liability.................................................................................................................10
8.2
Indemnification...........................................................................................................................10
Article IX Accounting and Bank Accounts................................................................................................1
l
9.1
Fiscal Year and Accounting Method...........................................................................................
11
9.2
Books and Records......................................................................................................................1
l
9.3
Taxation.......................................................................................................................................11
9.4
Bank Accounts............................................................................................................................11
Article X Dissolution and Termination......................................................................................................11
10.1
Events Causing Dissolution.........................................................................................................
11
10.2
Effect of Dissolution...................................................................................................................11
10.3
Application of Proceeds...........................................................................................:..................12
ArticleXI....................................................................................................................................................12
Single purpose
g Pu
entity ........12
rP h'...........................................................................................................................
73750552.5
11.1
Single Purpose Entity Requirements...........................................................................................12
11.2
Definitions...................................................................................................................................12
11.3
Single Purpose Entity..................................................................................................................16
11.4
Transfers......................................................................................................................................16
11.5
Indemnification Obligations........................................................................................................16
11.6
Member Loans.............................................................................................................................16
11.7
Fees Payable to Affiliates............................................................................................................16
ArticleXII Miscellaneous..........................................................................................................................17
12.1
Title to Assets..............................................................................................................................17
12.2
Nature of Interest in the Company..............................................................................................17
12.3
No Third Party Rights.................................................................................................................17
12.4
Severability..................................................................................................................................17
12.5
Binding Agreement.....................................................................................................................17
12.6
Headings......................................................................................................................................17
12.7
Governing Law............................................................................................................................17
12.8
Amendment.................................................................................................................................17
12.9
Counterparts................................................................................................................................17
73750552.5
LIMITED LIABILITY COMPANY AGREEMENT
OF
BUFFALO RIDGE, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT ("Agreement') is dated as of
AugustV, 2020, and is by and among Buffalo Ridge LLC, a Delaware limited liability company
(the "Company"); OI-CREG Cherry Creek, LLC, a Delaware limited liability in its capacity as
"Manager" of the Company; and the persons executing this Agreement as "Members" (as set
forth on Exhibit A attached hereto) (the "Members").
On June 11, 2020, the Company was duly formed by the filing of Certificate of
Formation with the Delaware Secretary of State under the Act (as defined below).
The Members hereby adopt this Agreement as the "limited liability company agreement"
of the Company under the Act to set forth the rules, regulations and provisions regarding the
management and business of the Company, the governance of the Company, the conduct of its
business, and the rights and privileges of the Members and the Manager.
In consideration of the premises and the mutual agreements contained herein, the parties
hereto agree as follows:
ARTICLE I
BUSINESS PURPOSES, OFFICES, AND FOREIGN QUALIFICATION
1.1 Business Purpose. The business purpose of the Company will be to conduct or
promote any lawful businesses or purposes in accordance with this Agreement.
1.2 Principal Office. The principal business office of the Company will be located at
c/o Corum Real Estate Group, Inc., 650 S. Cherry Street, Suite 1200, Glendale, Colorado 80246,
or at such other place(s) as the Manager may determine from time to time.
1.3 Term. The term of the Company will be perpetual unless the Company is earlier
dissolved in accordance with either the provisions of this Agreement or the Act.
1.4 Registered Office and Agent. The location of the registered office and the name of
the registered agent of the Company in the State of Delaware will be as stated in the Certificate
(defined below), or as will be determined from time to time by the Manager and appropriately
filed with the Delaware Secretary of State as required by the Act.
1.5 Foreign Oualification. The Company will register and qualify as a foreign limited
liability company under the laws of such jurisdictions as may be determined by the Manager.
The location of the registered office and the name of the registered agent of the Company in each
foreign jurisdiction will be determined from time to time by the Manager and appropriately filed
with the appropriate offices in such jurisdiction.
73750552.5
ARTICLE II
DEFINITIONS
2.1 Terms Defined Herein. As used herein, the following terms will have the
following meanings, unless the context otherwise specifies:
"Act" means the Delaware Limited Liability Company Act, as amended or replaced from
time to time.
"Agreement" has the meaning set forth in the preamble, as amended from time to time.
"Assignee" means a Person to whom all or part of a Member's Interest or Distribution
Rights has been Transferred, but who has not been admitted as a Substitute Member with respect
to such Transferred Interest or Distribution Rights.
"Available Cash" means the aggregate amount of cash on hand or in bank, money market
or similar accounts of the Company at any given time derived from any source (other than
Capital Contributions and Liquidation Proceeds) which the Manager determines, in its absolute
discretion, should be distributed to the Class B Member.
"Capital Contribution" means the total amount of cash or the net Fair Value of property
contributed by the Members to the capital of the Company.
"Certificate" means the Certificate of Formation of the Company filed with the Delaware
Secretary of State, as amended from time to time.
"Class A Interest" has the meaning set forth in Section 5.1(a).
"Class B Interest" has the meaning set forth in Section 5.1(b).
"Class A Member" means a Member holding a Class A Interest. A Class A Member is a
Member of the Company solely for the purpose of maintaining certain real estate property tax
exemptions associated with the provision of affordable housing in the Town of Avon, Colorado.
The initial Class A Member is the Housing Authority.
"Class B Member" means a Member holding a Class B Interest. The initial Class B
Member is OI-CREG.
"Company" has the meaning set forth in the preamble.
"Distributions" means any distributions by the Company to a Class B Member of
Available Cash or Liquidation Proceeds.
"Distribution Rights" has the meaning set forth in Section 7.2.
"Economic Interest" means a Member's share, if any, of the Company's net income or
net loss and distributions of the Company's assets under this Agreement and the Act.
"Fair Value" of an asset or property means its fair market value.
73750552.5
"Housing Authority" means The Housing Authority of the Town of Avon, Colorado.
"Interest" refers to all of a Member's rights and interests in the Company in its capacity
as a Member, all as provided in the Certificate, this Agreement and the Act. A Member's Interest
in the Company is either a Class A Interest or a Class B Interest.
"Involuntary Transfer" means, with respect to the Interest and despite the Transfer
restrictions set forth in this Agreement, that the Interest (or a portion thereof) has been
Transferred (i) by operation of law (such as, without limitation, Transferred to a Member's
trustee in bankruptcy) or (ii) under levy of attachment or charging order or upon foreclosure of a
pledge or security interest.
"Liquidation Proceeds" means all Property at the time the Company liquidates and winds
up its existence.
"Manager" means the Person designated by the Member from time to time to be the
manager of the Company under the Act. The initial Manager is OI-CREG.
"Members" means those Persons executing this Agreement as members of the Company,
or otherwise becoming bound by this Agreement as members of this Company as provided in
this Agreement, including any Substitute Members. The Members are set forth on Exhibit A
attached hereto. Exhibit A will be updated from time to time by the Manager to reflect the then -
current Members of the Company.
"OI--CREG" means OI-CREG Cherry Creek, LLC, a Delaware limited liability company.
"Person" means any natural person, partnership, limited liability company, corporation,
association, cooperative, trust, estate, custodian, nominee or any other individual or entity in its
own or any representative capacity.
"Property" means all properties and assets that the Company may own or otherwise have
an interest in (to the extent of such interest) from time to time.
"Reserves" means amounts set aside from time to time by the Manager in accordance
with Section 4.3.
"Substitute Member" has the meaning set forth in Section 7.3 below.
"Transfer" or "Transferred" means (i) when used as a verb, to give, sell, exchange,
assign, transfer, pledge, hypothecate, bequeath, devise or otherwise dispose of or encumber, and
(ii) when used as a noun, the nouns corresponding to such verbs, in either case voluntarily or
involuntarily, by operation of law or otherwise, including, without limitation, upon bankruptcy,
death, divorce, marriage dissolution or otherwise.
73750552.5
2.2 Other Definitional Provisions.
(a) As used in this Agreement, accounting terms not defined in this
Agreement, and accounting terms partly defined to the extent not defined, will have the
respective meanings given to them under generally accepted accounting principles.
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement will refer to this Agreement as a whole and not to any
particular provision of this Agreement, and section, subsection, schedule and exhibit references
are to this Agreement unless otherwise specified.
(c) Words of the masculine gender will be deemed to include the feminine or
neuter genders, and vice versa, where applicable. Words of the singular number will be deemed
to include the plural number, and vice versa, where applicable.
ARTICLE III
CAPITAL CONTRIBUTIONS AND LOANS
3.1 Capital Contribution. The Class B Member has made initial Capital Contributions
to the Company as set forth in the Company's financial records. The Class A Member has made
no additional Capital Contribution to the Company and shall have no obligation to make a
Capital Contribution to the Company either pursuant to this Agreement or otherwise.
3.2 Additional Capital Contributions, Loans and Guarantees. The Class B Member
may make (but will not be obligated to make) additional Capital Contributions and loans to the
Company from time to time. The Class A Member shall have no right to make any Capital
Contributions to the Company pursuant to this Section 3.2 or otherwise. Any loans by the
Members to the Company will not be considered as a contribution to the capital of the Company.
The Members will not be obligated to guarantee or cause any other Person to guarantee
personally or to provide any personal collateral to secure the obligations of the Company. The
Members will not be obligated to restore any negative capital account balance.
3.3 No Personal Liability. The Members will not be liable under any judgment,
decree or order of any court or government agency, or in any other manner, for any debt,
obligation or liability of the Company, except as and to the extent such Member expressly agrees
to be personally bound.
ARTICLE IV
DISTRIBUTIONS
4.1 Non -Liquidating Cash Distributions. The amount, if any, of Available Cash may
be determined by the Manager from time to time and, subject to Reserves, distributed to the
Class B Member as and when the Manager so determines in its absolute discretion. The Class A
Member shall have no right to receive distributions from the Company pursuant to this Section
4.1.
4.2 Liquidation Distributions. Liquidation Proceeds, if any, will be distributed in the
following order of priority:
73750552.5
(a) to the payment of debts and liabilities of the Company (including to Class
B Member to the extent otherwise permitted by law) and the expenses of liquidation; then
(b) to the setting up of such reserves as the Person required or authorized by
law to wind up the Company's affairs may reasonably deem necessary or appropriate for any
disputed, contingent or unforeseen liabilities or obligations of the Company, provided that any
such reserves will be held by such Person for such period as such Person deems advisable for the
purpose of applying such reserves to the payment of such liabilities or obligations and, at the
expiration of such period, the balance of such reserves, if any, will be distributed as hereinafter
provided; then
(c) to the extent the existence of the Company is to be terminated, the
remainder to the Class B Member.
The Class A Member shall have no right to receive distributions from the
Company pursuant to this Section 4.2 or under any other provision of this
Agreement or the Act.
4.3 Reserves. The Manager has the right to establish, maintain and expend reasonable
Reserves to provide for working capital, for debt service, for expected operating deficits, and for
such other purposes as the Manager may deem necessary or advisable.
ARTICLE V
RULES RELATING TO THE MEMBERS
5.1 Member Classes. There shall be two different classes of membership in the
company. The rights, powers and obligations of each class shall be as set forth in this agreement.
The owners of each class of Interest shall be as identified on Exhibit A. The two different classes
of Interests are as follows:
(a) Class A. The Class A Interests (i) do not have an Economic Interest in the
Company and (ii) except as set forth in Article XI, do not have any right to vote with the
Members upon any matter for which a vote of the Members is taken.
(b) Class B. The Class B Interests (i) have an Economic Interest in the
Company and (ii) have the right to vote with the Members upon any matter for which a
vote of the Members is taken.
5.2 Meetings of Members; Place of Meetings. Meetings of the Members may be
called at any time by a Class B Member or Manager. Meetings of the Members may be held for
any purpose or purposes, unless otherwise prohibited by statute. All meetings of the Members
will be held at such place as is stated in the notice of the meeting or at any other location
specified by the Class B Member.
5.3 Action Without Meeting. A meeting of the Members will not be required for the
Class B Member to make any decision or to take any action to be made or taken by the Members.
Any decision or action required or permitted to be taken by the Class B Member may be taken
73750552.5
without a meeting if the action is evidenced by a written consent or document constituting or
describing the action to be taken, signed by the Class B Member.
ARTICLE VI
MANAGEMENT AND CONTROL
6.1 Management By Manager.
(a) Except as otherwise provided in this Agreement, the business and affairs
of the Company will be managed by and under the direction of the Manager, subject to the
limitations and restrictions set forth in this Agreement. The Manager may execute on behalf of
the Company all instruments, documents and contracts, exercise all of the powers of the
Company, and do all such lawful acts and things, that are not by law, the Certificate or this
Agreement directed or required to be exercised or done by the Members. Any decision or act of
the Manager within the scope of its authority granted hereunder will control and will bind the
Company. No Member, in such capacity, will have any authority to bind the Company, except as
part of an action of the Members as specifically authorized or required of the Members by this
Agreement.
(b) The initial Manager is OI-CREG Cherry Creek, LLC, a Delaware limited
liability company.
(c) The Manager may resign from such position at any time upon giving 30
days' prior written notice to the Members. The Class B Member may remove the Manager from
such position for any reason or no reason at any time by giving notice of the removal to the
Manager.
(d) Upon resignation or removal of the Manager, the Class B Member will
appoint or elect a replacement Manager.
(e) The Manager will not be required to devote any specific amount of its
time and business efforts to the affairs of the Company, but the Manager will devote so much of
its time and attention as is reasonably necessary and advisable to manage the affairs of the
Company to the best advantage of the Company.
(f) The Manager shall have no fiduciary obligations or liability to the
Company or to the Members with respect to any decisions or actions that the Manager may make
or take in any capacity with respect to the Company.
6.2 Authority of the Manager. In addition to the rights and authority given to the
Manager elsewhere in this Agreement, but subject to the limitations set forth in Section 6.3 and
elsewhere in this Agreement, the Manager will have the right, power and authority from time to
time to make such decisions and take such actions for and on behalf of the Company, or delegate
the same to the appropriate officers and employees of the Company, as the Manager deems
necessary or appropriate to operate the Company. Subject to any limitations set forth in this
Agreement or in the Act, the following in a non -exhaustive list of decisions and actions which
may be made or taken by the Manager on behalf of the Company:
73750552.5
(a) decisions (including selection) relating to the Company's legal, accounting
and other professional advisors;
(b) employment decisions (including selection) and implementation of
policies relating to officers, employees, agents, and independent contractors of the Company;
(c) acquisition of insurance coverage for the protection or benefit of the
Company or the Property;
(d) temporary investment of funds of the Company in short term investments
where there is appropriate safety of principal;
(e) to (i) bring or defend, pay, collect, compromise, arbitrate, resort to legal
action or otherwise adjust claims or demands of or against the Company; (ii) make or revoke any
election available to the Company under any tax law; (iii) enforce the Company's rights and
perform its obligations under all agreements to which the Company is a party; (iv) enter into,
administer, amend, extend and renew all Company contracts and agreements; (v) carry out the
decisions of the Member made in accordance with this Agreement; (vi) prepare, execute, and file
any documents required to be filed with any government authority; and (vii) expend Company
funds necessary or appropriate to effect any of the foregoing;
(f) authorize an amendment to the Certificate consistent with the provisions
of this Agreement; and
(g) approval and execution of all documents and agreements, and the exercise
of all rights and remedies, of the Company in connection with the foregoing.
6.3 Limitations on Authority.
(a) The Manager may take an action or execute an agreement, instrument or
document for any transaction not "in the ordinary course or usual way of business or affairs"
only in accordance with the power set forth in this Agreement, subject to the limitations set forth
in this Agreement. For purposes of this Agreement, actions and/or transactions "in the ordinary
course or usual way of business or affairs" will include, but not be limited to, the exercise by the
Manager of its authority as specified in Section 6.2, except as expressly prohibited or limited by
Sections 6.3(b) or (c) or elsewhere in this Agreement, and the Members hereby approve of such
actions and/or transactions and agree that they may be taken by the Manager without obtaining
any further approval of the Members. No Manager will have the right to delegate to any Person
(other than an appropriate officer or employee) any of the Manager's rights or powers to manage
or control the business and affairs of the Company, except as approved by the Members.
(b) The Company will not do any of the following without the prior written
consent of the Class B Member:
(i) take any action required by any provision of this
Agreement or by law to be approved or authorized by the Members;
73750552.5
(ii) make any loans or advances to or investments in any other
Person, other than the extension of payment terms in the ordinary course
of business or as permitted under Section 6.2(d);
(iii) guarantee or assume any liability or obligation of any other
Person, except in the ordinary course of business;
(iv) file for bankruptcy or to cease operations;
(v) merge, consolidate or do an equity exchange with any other
entity, redomesticate, or convert into another form of entity;
(vi) sell or otherwise dispose of all or substantially all of the
Company's assets; or
(vii) authorize an amendment to the Certificate that is not
consistent with the provisions of this Agreement.
(c) The Company will not (i) purchase or otherwise acquire any assets from
the Members or Manager or affiliate of the Members or Manager unless the assets are required
by the Company for the business and the acquisition terms are at least as favorable to the
Company as would be available from nonaffiliated third parties, (ii) sell or otherwise dispose of
any assets to the Members or Manager or affiliate of the Members or Manager unless the terms
of such sale are at least as favorable to the Company as would be available from nonaffiliated
third parties, or (iii) enter into any services contract with the Members or Manager or affiliate of
the Members or Manager unless the terms thereof are comparable to terms generally prevailing
for similar arrangements with unaffiliated third parties; provided, however, the foregoing shall
not require the Company to solicit bids, offers, or enter into any negotiations with a nonaffiliated
third party.
6.4 Compensation; Reimbursements.
(a) Except as approved by the Class B Member, no officer, Manager, Member
or affiliate of a Member or Manager will be entitled to compensation for any services the officer,
Manager, Member or affiliate may render to or for the Company. Except as otherwise expressly
provided in this Agreement, the Manager and the Members will be entitled to reimbursement
from the Company for all reasonable and documented direct out-of-pocket expenses incurred at
the request or direction of the Manager on behalf of the Company as contemplated in this
Agreement.
(b) The provisions of this Section will not prohibit the Company from
entering into an agreement with the Members, the Manager or an officer, director, employee,
owner or other affiliate of the Members or Manager for such Person to render specific services to
the Company and to receive reasonable compensation for such services as approved in good faith
by the Class B Member.
73750552.5
6.5 Other Business Ventures, Confidentiality.
(a) Any Member or Manager and its affiliates may engage in or possess an
interest in other business ventures of every nature and description, independently or with others,
whether or not similar to or in competition with the business of the Company, and neither the
Company, the Manager nor the Members will have, by virtue of this Agreement or any law, any
right in or to such other business ventures or to any ownership or other interest in or the income
or profits derived therefrom
(b) No Manager or Member will be obligated to present any particular
investment or business opportunity to the Company even if such opportunity is of a character
which, if presented to the Company, could be taken by the Company, and each Manager and
Member will have the right to take any such opportunity for its own account and with others or
to recommend any such opportunity to others.
6.6 Officers. The Manager may appoint and remove from time to time such officers
of the Company as the Manager determines advisable, each of whom shall exercise such powers
and perform such duties as shall be determined by the Manager.
ARTICLE VII
TRANSFER OF INTERESTS
7.1 Involuntary Transfer; Rights of Assignees and Substitute Member. Upon an
Involuntary Transfer with respect to the Members, unless and until admitted as a Substitute
Member pursuant to Section 7.3, the Assignee of all or a part of the Member's Interest as a result
of the Involuntary Transfer is only an Assignee, is not a Member and shall not be entitled to
exercise any of the management, governance or other rights or powers of a Member in the
Company (all of which shall remain with the assignor Member), including, without limitation,
the right to designate and remove the Manager, the right to vote, grant approvals or give consents
with respect to such Interest, the right to require any information or accounting of the Company's
business, the right to receive any notices provided under this Agreement, or the right to inspect
the Company's books and records. Notwithstanding any provision of the Act to the contrary, an
Assignee of the Member's Interest shall only be entitled to receive the specific Distribution
Rights transferred to the Assignee which the assignor would be entitled to receive otherwise, if
any, shall not receive any allocation of any net income or net losses of the Company, or any
items thereof and shall not be entitled to exercise any management rights with respect to the
Company, unless and until the Assignee becomes a Substitute Member as to all of the Interest. A
permitted assignee who has become a Substitute Member has, to the extent of the Interest
transferred to such assignee, all the rights and powers of the Person for whom such assignee is
substituted as the Member and is subject to the restrictions and liabilities of a Member under this
Agreement and the Act. Upon admission of a permitted assignee as a Substitute Member, the
assignor of the Interest so acquired by the Substitute Member shall cease to be a Member of the
Company to the extent of such transferred Interest. A Person shall not cease to be a Member
upon assignment of all of such Member's Interest unless and until the assignee(s) becomes a
Substitute Member as to all of such Interest.
73750552.5
7.2 Permitted Economic Transfers. The Members shall have the right to Transfer all
or part of the Distribution rights ("Distribution Rights") of the Member's Interest, if any, (but
not to substitute the assignee of any Distribution Rights as a Substitute Member, except in
accordance with Section 7.3 below), by a written instrument, provided that:
(a) The Member has made such Transfer of Distribution Rights to the
Assignee in writing and notified the Company thereof in writing; and
(b) The Assignee agrees in writing that the assigned Distribution Rights
remain subject to all of the terms and conditions of this Agreement and may not be
further Transferred except in compliance with this Agreement.
7.3 Substitute Member. No Assignee of all or part of a Member's Interest or any
Distribution Rights therein shall become a "Substitute Member" in place of the assignor and
with all of the rights of the assignor as a Member unless and until:
(a) the Transfer complies with the provisions of Section 7.2.
(b) the assignor Member (if living) states in the instrument of assignment that
such assignor Member intends for the Assignee to be admitted as a Substitute Member in the
Company;
(c) the assignee has executed an instrument accepting and adopting the terms
and provisions of this Agreement as a Member; and
(d) the assignor or assignee has paid all reasonable expenses of the Company
in connection with the admission of the assignee as a Substitute Member.
Upon satisfaction of all of the foregoing conditions with respect to a particular assignee, the
Member shall cause this Agreement and, if necessary, the Certificate, to be duly amended to
reflect the admission of the assignee as a Substitute Member.
ARTICLE VIII
LIABILITY AND INDEMNIFICATION
8.1 Limitation of Liability. To the extent permitted by law, an officer, the Manager,
the Members, and the Members' and Manager's managers, members, officers, directors,
employees and agents (each a "Covered Person") will not be liable for damages or otherwise to
the Company for any act, omission or error in judgment performed, omitted or made by it or
them in good faith and in a manner reasonably believed by it or them to be within the scope of
authority granted to it or them by this Agreement and in the best interests of the Company,
provided that such act, omission or error in judgment does not constitute fraud, gross negligence,
willful misconduct or breach of fiduciary duty.
8.2 Indemnification. Without limiting the provisions of Section 8. 1, the Company will
indemnify each Covered Person to the fullest extent permitted by the Act, but such indemnity
will not extend to any conduct by the party seeking indemnification that is determined by a court
of competent jurisdiction to constitute bad faith, fraud, gross negligence, willful misconduct, or
73750552.5
breach of fiduciary duty. Any indemnity under this Section 8.2 will be paid from, and only to the
extent of, Company assets and no Member will have any personal liability on account thereof
solely as a result of this Agreement.
ARTICLE IX
ACCOUNTING AND BANK ACCOUNTS
9.1 Fiscal Year and Accounting Method. The fiscal year and taxable year of the
Company will be the calendar year. The Manager will determine the accounting method to be
used by the Company.
9.2 Books and Records. The books and records of the Company will be maintained at
the principal office of the Company. The Members (or their designated agent or representative)
will have the right at all times to inspect and copy all books and records of the Company.
9.3 Taxation. The Company will be disregarded as an entity separate from the
Members for Federal and state income tax purposes. The Class A Member holds no rights to
distributions from the Company nor shall the Class A Member be permitted under this
Agreement to obtain such distribution right, and thus, shall not be treated as a "member" in
respect of the Company for income tax purposes. All provisions of this Agreement and the
Certificate will be construed and applied so as to preserve that tax status.
9.4 Bank Accounts. All funds of the Company will be deposited in a separate bank,
money market or similar account(s) approved by the Manager and in the Company's name,
except as otherwise expressly approved by the Class B Member. Withdrawals (by check or
otherwise) therefrom will be made only by the Manager and persons approved by the Manager.
ARTICLE X
DISSOLUTION AND TERMINATION
10.1 Events Causing Dissolution. The Company will be dissolved upon the written
decision of the Class B Member to dissolve. The Manager will take all necessary steps to effect
the dissolution, including filing the Certificate of Cancellation with the Secretary of State for the
State of Delaware.
10.2 Effect of Dissolution. Except as otherwise provided in this Agreement or as may
otherwise be determined by the Class B Member, upon the dissolution of the Company, the
Manager will take such actions as may be required under the Act and will proceed to wind up,
liquidate and terminate the business and affairs of the Company. In connection with such
winding up, the Class B Member will have the authority to liquidate and reduce to cash (to the
extent necessary or appropriate) the assets of the Company as promptly as is consistent with
obtaining a fair and reasonable value for such assets, to apply and distribute the proceeds of such
liquidation and any remaining assets in accordance with the provisions of Section 10.3 below,
and to do all acts and things authorized by, and in accordance with, the Act and other applicable
laws for the purpose of winding up and liquidation.
73750552.5
10.3 Application of Proceeds. Upon dissolution and liquidation of the Company, the
assets of the Company will be applied and distributed in the order of priority set forth in Section
4_2, except as may otherwise be determined by the Class B Member.
ARTICLE XI
SINGLE PURPOSE ENTITY
11.1 Single Purpose Entity Requirements. Notwithstanding anything to the contrary in
this Agreement, the Certificate, or in any other document governing the formation of the
Company, for so long as the Loan (as hereinafter defined) exists on any portion of the Mortgaged
Property (as defined in the Loan Agreement (as hereinafter defined)), the following provisions
shall control and this Article XI will govern and supersede all other provisions of the Agreement.
11.2 Definitions. When used in this Article XI, the following terms not otherwise
defined in the Agreement shall have the meanings set forth below. Capitalized terms used but
not defined in this Article XI shall have the meanings defined in the Loan Agreement.
(a) "Lender" means Holliday Fenoglio Fowler, L.P., a Texas limited
partnership.
(b) "Loan" means that certain loan in the original principal amount of
approximately $23,157,000 to be made by Lender and secured by the Mortgaged
Property.
(c) "Loan Agreement' means the Multifamily Loan and Security Agreement
by and between the Company and Lender entered into in connection with the Loan, as
such may hereafter be further amended, restated, or modified.
(d) "Loan Documents" means those certain documents and instruments
executed in connection with the Loan, as such may hereafter be further amended,
restated, or modified.
(e)
partnership,
conditions:
73750552.5
"Single Purpose Entity" means a limited liability company, limited
or corporation which at all times will satisfy each of the following
(i) It will not engage in any business or activity, other than the
ownership, operation and maintenance of the Mortgaged Property and
activities incidental thereto.
(ii) It will not acquire, own, hold, lease, operate, manage,
maintain, develop or improve any assets other than the Mortgaged
Property and such Personalty as may be necessary for the operation of the
Mortgaged Property and will conduct and operate its business as presently
conducted and operated.
(iii) It will preserve its existence as an entity duly organized,
validly existing and in good standing (if applicable) under the laws of the
jurisdiction of its formation or organization and will do all things
necessary to observe organizational formalities.
(iv) It will not merge or consolidate with any other Person.
(v) It will not take any action to dissolve, divide or create
divisions, wind-up, terminate or liquidate in whole or in part; to sell,
transfer or otherwise dispose of all or substantially all of its assets; to
change its legal structure; transfer or permit the direct or indirect transfer
of any partnership, membership or other equity interests, as applicable,
other than Transfers permitted under the Loan Agreement; issue additional
partnership, membership or other equity interests, as applicable, or seek to
accomplish any of the foregoing.
(vi) It will not, without the prior unanimous written consent of
all of the Company's Members, and the prior unanimous written consent
of 100% of the Manager of the Company, take any of the following
actions:
a) File any insolvency, or reorganization case or
proceeding, to institute proceedings to have the Company be
adjudicated bankrupt or insolvent.
b) Institute proceedings under any applicable
insolvency law.
C) Seek any relief under any law relating to relief from
debts or the protection of debtors.
d) Consent to the filing or institution of a Bankruptcy
against the Company.
e) File a petition seeking, or consent to, reorganization
or relief with respect to the Company under any applicable federal
or state law relating to bankruptcy or insolvency.
0 Seek or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator, custodian, or any similar
official for the Company or a substantial part of its property.
g) Make any assignment for the benefit of creditors of
the Company.
h) Admit in writing the Company's inability to pay its
debts generally as they become due.
73750552.5
i) Take action in furtherance of any of the foregoing.
(vii) It will not amend or restate its organizational documents if
such change would cause the provisions set forth in those organizational
documents not to comply with the requirements set forth in Section 6.13
of the Loan Agreement.
(viii) It will not own any subsidiary or make any investment in,
any other Person.
(ix) It will not commingle its assets with the assets of any other
Person and will hold all of its assets in its own name.
(x) It will not incur any debt, secured or unsecured, direct or
contingent (including guaranteeing any obligation), other than the
following:
a) The Indebtedness and any further indebtedness as
described in Section 11.11 of the Loan Agreement with regard to
Supplemental Instruments.
b) Customary unsecured trade payables incurred in the
ordinary course of owning and operating the Mortgaged Property
provided the same are not evidenced by a promissory note, do not
exceed, in the aggregate, at any time a maximum amount of 2% of
the original principal amount of the Indebtedness and are paid
within 60 days of the date incurred.
C) It will maintain its records, books of account, bank
accounts, financial statements, accounting records and other entity
documents separate and apart from those of any other Person and
will not list its assets as assets on the financial statement of any
other Person; provided, however, that the Company's assets may
be included in a consolidated financial statement of its Affiliate
provided that (A) appropriate notation will be made on such
consolidated financial statements to indicate the separateness of the
Company from such Affiliate and to indicate that the Company's
assets and credit are not available to satisfy the debts and other
obligations of such Affiliate or any other Person, and (B) such
assets will also be listed on the Company's own separate balance
sheet.
d) Except for capital contributions or capital
distributions permitted under the terms and conditions of its
organizational documents, it will only enter into any contract or
agreement with any general partner, member, shareholder,
principal or Affiliate of the Company or any Guarantor, or any
general partner, member, principal or Affiliate thereof, upon terms
73750552.5
and conditions that are commercially reasonable and substantially
similar to those that would be available on an arm's-length basis
with third parties.
e) It will not maintain its assets in such a manner that
will be costly or difficult to segregate, ascertain or identify its
individual assets from those of any other Person.
f) It will not assume or guaranty (excluding any
guaranty that has been executed and delivered in connection with
the Note) the debts or obligations of any other Person, hold itself
out to be responsible for the debts of another Person, pledge its
assets to secure the obligations of any other Person or otherwise
pledge its assets for the benefit of any other Person, or hold out its
credit as being available to satisfy the obligations of any other
Person.
g) It will not make or permit to remain outstanding any
loans or advances to any other Person except for those investments
permitted under the Loan Documents and will not buy or hold
evidence of indebtedness issued by any other Person (other than
cash or investment-grade securities).
h) It will file its own tax returns separate from those of
any other Person, unless the Company (A) is treated as a
"disregarded entity" for tax purposes and is not required to file tax
returns under applicable law or (B) is required by applicable law to
file consolidated tax returns, and will pay any taxes required to be
paid under applicable law.
i) It will hold itself out to the public as a legal entity
separate and distinct from any other Person and conduct its
business solely in its own name, will correct any known
misunderstanding regarding its separate identity and will not
identify itself or any of its Affiliates as a division or department of
any other Person.
j) It will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations and
will pay its debts and liabilities from its own assets as the same
become due; provided, however, that nothing in this Section will
require any member or partner of Company or any Borrower
Principal (as defined in the Loan Agreement) to make any equity
contribution to Company.
73750552.5
k) It will allocate fairly and reasonably shared
expenses with Affiliates (including shared office space) and use
separate stationery, invoices and checks bearing its own name.
1) It will pay (or cause the Property Manager to pay on
behalf of Company from Company's funds) its own liabilities
(including salaries of its own employees) from its own funds;
provided, however, that nothing in this Section will require any
member or partner of Company or any Borrower Principal to make
any equity contribution to Company.
m) It will not acquire obligations or securities of its
partners, members, shareholders, or Affiliates, as applicable.
n) Except as contemplated or permitted by the
property management agreement with respect to the Property
Manager, it will not permit any Affiliate or constituent party
independent access to its bank accounts.
o) It will maintain a sufficient number of employees (if
any) in light of its contemplated business operations and pay the
salaries of its own employees, if any, only from its own funds;
provided, however, that nothing in this Section will require any
member or partner of Company or any Borrower Principal to make
any equity contribution to Company.
11.3 Single Purpose Entity. In order to preserve and ensure its separate and distinct
identity, in addition to the other provisions set forth herein, at all times the Company will remain
a Single Purpose Entity.
11.4 Transfers. No Transfer will be permitted under this Agreement unless such
Transfer complies with the terms and conditions of the Loan Documents.
11.5 Indemnification Obligations. Any indemnification obligation of the Company set
forth in the Governing Agreement shall be subject and fully subordinated to any obligations
respecting the Mortgaged Property (including, without limitation, the Loan) and, to the fullest
extent permitted by law, such indemnification obligation shall not constitute a claim against the
Company in the event that the Company's cash flow in excess of amounts necessary to pay
holders of such obligations with respect to the Mortgaged Property is insufficient to pay such
indemnity obligations.
11.6
Company.
Member Loans,
No Member shall be permitted to make any loan to the
11.7 Fees Payable to Affiliates. Any fees set forth in this Agreement that are payable
to affiliates in connection with asset management services or other related services shall be
subject and fully subordinated to the Loan and subject to the debt limitations set forth in Section
6.13 of the Loan Agreement.
73750552.5
ARTICLE XII
MISCELLANEOUS
12.1 Title to Assets. Title to the Property and all other assets acquired by the Company
will be held in the name of the Company, except as may be otherwise determined by the Class B
Member. The Members will not individually have any ownership interest or rights in the
Property or any other assets of the Company, except indirectly by virtue of such Member's
ownership of the Interest.
12.2 Nature of Interest in the Company. The Interests will be personal property for all
purposes.
12.3 No Third Party Rjghts. Except for the provisions set forth in Article VIII with
respect to Covered Persons, none of the provisions contained in this Agreement will be for the
benefit of or enforceable by any third parties, including, without limitation, creditors of the
Company or creditors of the Members.
12.4 Severability. In the event any provision of this Agreement is held to be illegal,
invalid or unenforceable to any extent, the legality, validity and enforceability of the remainder
of this Agreement will not be affected thereby and will remain in full force and effect and will be
enforced to the greatest extent permitted by law.
12.5 Binding Agreement. The provisions of this Agreement will be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs, personal representatives,
successors and permitted assigns.
12.6 Headings. The headings of the articles and sections of this Agreement are for
convenience only and will not be considered in construing or interpreting any of the terms or
provisions hereof.
12.7' Governing Law. This Agreement will be governed by the laws of Delaware.
12.8 Amendment. This Agreement may be amended any time and from time to time by
a writing signed by the Class B Member.
12.9 Counterparts. This Agreement may be executed in any number of counterparts,
each of which will be deemed to be an original and all of which will constitute one agreement
that binds all of the parties hereto, notwithstanding that all parties are not signatories to the same
counterpart. This Agreement may be delivered by facsimile transmission or by scanned e-mail
transmission. This Agreement will be considered to have been executed by a person if there
exists a photocopy, facsimile copy, or a photocopy of a facsimile copy of an original hereof or of
a counterpart hereof which has been signed by such person. Any photocopy, facsimile copy, or
photocopy of facsimile copy of this Agreement or a counterpart hereof will be admissible into
evidence in any proceeding as though the same were an original.
[Signature Page Follows]
73750552.5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
THE COMPANY:
BUFFALO RIDGE, LLC, a Delaware limited
liability company
By: OI-CREG CHERRY CREEK,
LLC, a Delaware limited liability
company, its Manager
By: Corum Cherry Creek, LLC,
a Colorado limited liability company, its
Manager
Name: V. Michael Komppa
Title: Manager
CLASS A MEMBER:
THE HOUSING AUTHORITY OF THE
TOWN OF AVON, COLORADO
By:64,J&AI
Name: Sarah Smith Hymes
Title: Chairperson
THE MANAGER:
OI-CREG CHERRY CREEK, LLC, a
Delaware limited liability company
By: Corum Cherry Creek, LLC,
a Colorado limited liability
company, its Manager
By:
Name: V. Michael Komppa
Title: Manager
CLASS B MEMBER:
OI-CREG CHERRY CREEK, LLC, a
Delaware limited liability company
By: Corum Cherry Creek, LLC,
a Colorado limited liability
company, its Manager
i
By:
Name: V. Michael Komppa
Title: Manager
SIGNATURE PAGE To LIMITED LIABILITY COMPANY AGREEMENT
73750552
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
THE COMPANY:
BUFFALO RIDGE, LLC, a Delaware limited
liability company
By: OI-CREG CHERRY CREEK,
LLC, a Delaware limited liability
company, its Manager
By: Corum Cherry Creek, LLC,
a Colorado limited liability company, its
Manager
By:
Name: V. Michael Komppa
Title: Manager
CLASS A MEMBER:
THE HOUSING AUTHORITY OF THE
TOWN OF AVON, COLORADO
By:/lul �41W
Name: Sarah SmitU Hymes
Title: Chairperson
THE MANAGER:
OI-CREG CHERRY CREEK, LLC, a
Delaware limited liability company
By: Corum Cherry Creek,
LLC,
a Colorado limited liability
company, its Manager
Name: V. Michael Komppa
Title: Manager
CLASS B MEMBER:
OI-CREG CHERRY CREEK, LLC, a
Delaware limited liability company
By: Corum Cherry Creek,
LLC,
a Colorado limited liability
company, its Manager
LOIN
Name: V. Michael Komppa
Title: Manager
SIGNATURE PAGE To LIMITED LIABILITY COMPANY AGREEMENT
73750552.5
Exhibit A
List of Members
Member Class A Interest
The Housing Authority of the Town of Avon
100 Mikaele Way
Avon, CO 81620
OI-CREG Cherry Creek, LLC
650 South Cherry Street, Suite 1200
Glendale, CO 80246
73750552.5
0.0025%
Class B Interest
99.9975%