HomeMy WebLinkAboutAgreement OPERATING AGREEMENT
OF
CAPSTONE — CS, LLC
THIS OPERATING AGREEMENT(this"Agreement')is made and entered into as of the
4° day of December, 2008,by and between Capstone— CS, LLC, an Alabama limited liability
company (the "Company"), and Capstone Development Corp., an Alabama corporation (such
corporation being sometimes referred to as the"Member").
Recitals:
WHEREAS,the Member is the sole member of the Company, and
WHEREAS,the Company and the Member desire to enter into this Agreement to regulate or
establish the affairs of the Company, the conduct of its business, and the relations of the Member
with respect thereto,
NOW,THEREFORE,in consideration of the foregoing premises and the mutual covenants
contained herein, the sufficiency of which is hereby acknowledged, and intending to be legally
bound, the parties hereto agree as follows:
1. Capital Contributions. The Member has made a capital contribution to the
Company in the amount of cash or the fair market value of property set forth in Exhibit"A"attached
hereto and incorporated herein by reference. The Member shall not be required to make any
additional capital contribution to the Company,except as the Member may determine otherwise.
2. Loans by Member. The Member may,but is not obligated to,loan to the Company
from time to time such sums of money bearing such rates of interest and being repayable under such
terms and conditions as the Member may determine to be appropriate for the conduct of the
Company's business and affairs.
3. Allocation of Profits and Losses. Any and all profits and losses of the Company
shall be allocated to the Member without apportionment.
4. Current Distributions. Except as otherwise provided in Paragraph 11 hereof,
distributions shall be made to the Member at such times and in such amounts as the Member may
determine.
5. Member ManaEement. The Member has the exclusive power,right and authority to
manage the Company's business and affairs, and to make all decisions with respect thereto;
provided,further,that no other person shall have the power,right or authority to act for or on behalf
Operating Agrament-Capstone-CS LLC DOC
of the Company,to do any act that would be binding on the Company,or to incur any expenditure on
behalf of the Co:mpany,without the consent of the Member.
6. Action by Written Consent. Any action required or permitted to be taken by the
Member may,but need not,be effected in the form of a signed writing evidencing the same.
7. Officers. The Member may appoint one or more individuals as officers of the
Company. Any officer appointed by the Member may be removed by the Member at any time with
or without cause;provided, however,that such removal shall be without prejudice to the contract
rights,if any, of the individual so removed. Each officer,if so appointed, shall have the authority
and shall perform the duties as may be specifically delegated to such officer by the Member, and
otherwise shall have the authority and shall perform the duties set forth as follows:
(a) President. The President shall be the chief administrative officer of the Company and
shall have general and active management of such areas and divisions of the business
and affairs of the Company as maybe designated by the Member. The P,esident may
sign (with the Secretary's attestation) on behalf of the Company, any deeds,
mortgages,bonds,notes,contracts,leases or other instruments,except where required
by law to be otherwise signed and executed, and except where the signing and
execution thereof shall be expressly delegated by the Member to some other officer
or agent of the Company.
(b) \rice-President. In the absence of the President or in the event of his death or
inability to act, the Vice-President (or in the event there be more than one Vice-
President,the Vice-Presidents in the order determined by the Member)shall perform
the duties of the President,and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. A Vice-President shall perform such
other duties as from time to time maybe assigned to him or herby the Member or the
President.
(c) .Secretary. The Secretary shall attest the President's duly authorized signature to any
deed, mortgage, bond, note, contract, lease or other instrument; shall have
responsibility for preparing actions by written consent of the Member and keeping
those actions by written consent in one or morebooks provided for that purpose;
have responsibility for authenticating records of the Company;see that all notices are
duly given in accordance with the terms and conditions of this Operating Agreement,
the Alabama Limited Liability Company Act or as otherwise required by law; be
custodian of the Company records; and in general perform all duties incident to the
office of Secretary and such other duties as from time to time may be assigned to him
or her by the President or the Member. If there is no Treasurer of the Company,the
Secretary shall assume the authority and duties of the Treasurer.
• (d) Treasurer. The Treasurer shall have charge and custody of and be responsible for all
funds and securities of the Company,receive and give receipts for moneys due and
payable to the Company from any source whatsoever,and deposit all such moneys in
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Operating Agreement-Capstone-CS LLC DOC
the name of the Company in such banks,trust companies or other depositories as may
be designated by the Member,and in general perform all of the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned to him
or her by the President or the Member. If required by the Member, the Treasurer
shall give a bond for the faithful discharge of his or her duties in such sum and with
such surety or sureties as the Member shall determine.
(e) Assistant Secretaries and Assistant Treasurers. The Assistant Secretary,or if there
shall be more than one, the Assistant Secretaries in the order determined by the
Member, shall,in the absence or disability of the Secretary,perform the duties and
exercise the powers of the Secretary. The Assistant Treasurer, or, if there shall be
more than one, the Assistant Treasurers in the order determined by the Member,
shall,in the absence or disability of the Treasurer,perform the duties and exercise the
powers of the Treasurer. The Member may require any Assistant Treasurer to give a
bond for the faithful discharge of his or her duties in such sums and with such surety
or sureties as the Member shall determine. The Assistant Secretaries and Assistant
Treasurers shall all perform such other duties as shall be assigned to them by the
Secretary and Treasurer,respectively,or by the President or the Member.
The compensation of the officers shall be fixed from time to time by the Member, and no officer
shall be prevented from receiving such compensation by reason of the fact that he or she is a
shareholder,officer,director, employee,affiliate,or agent of the Member.
8. Indemnification. The Company shall indemnify its members,officers,employees
and other agents and make advances for expenses to the maximum extent permitted under Sections
10-12-1 et seq. Code of Alabama (1975) as set forth in this Paragraph 8, provided that such
indemnification in any given situation is approved by the Member. The Company shall indemnify its
members, officers, employees and other agents for and hold them harmless from any liability,
whether civil or criminal, and any loss, damage,or expense, including reasonable attorneys' fees,
incurred in connection with the ordinary and proper conduct of the Company's business and the
preservation of its business and property,or by reason of the fact that such person was a member,
officer, employee or other agent; provided the member, officer, employee and other agents to be
indemnified acted in good faith and in a manner such person acting believed to be consistent with the
provisions of this Agreement; and provided further that with respect to any criminal action or
proceeding,the person acting to be indemnified had no reasonable cause to believe the conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order, settlement,
conviction,or upon aplea of nolo contendere or its equivalent shall not of itself create a presumption
that indemnification is not available hereunder. The obligation of the Company to indemnify any
person hereunder shall be satisfied out of Company assets only,and if the assets of the Company are
insufficient to satisfy its obligation to indemnify, such person shall not be entitled to contribution
from the Member.
9. Cessation of Membership. The Member shall cease to be a member of the Company
only upon the occurrence of one or more of the following events:
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Operating Agreement-Capstone-CS LLC DOC
(a) The Member notifies the Company that the Member ceases to be a member by
voluntary act;or
(b) The Member ceases to be a member of the Company by assigning the Member's
entire interest in the Company when any assignee of the interest becomes a member
with respect to the assigned interest.
10. Dissolution. The Company shall be dissolved and its affairs shall be wound up only
upon the occurrence of one or more of the following events:
(a) The written consent of the Member to dissolve;
(b) When there is no remaining member,unless the legal existence and business of the
Company is continued and one or more new members are appointed by the holders of
all of the financial rights in the Company within ninety(90)days after the cessation
of membership of the last member,
(c) When the Company is not the successor limited liability company in the merger or
consolidation with one or more limited liability companies or other entities;or
(d) The entry of a decree of judicial dissolution under the Alabama Limited Liability
Company Act
11. Liquidating Distributions. Upon the winding up of the Company,the assets of the
Company shall be distributed in the following order of priority:
(a) To creditors(including the Member as a creditor to the extent otherwise permitted by
• law), in the order of priority as provided by law, except those liabilities to the
member for interim distributions or on account of capital contributions; and
(b) To the Member without apportionment.
12. Choice of Law. This Agreement shall be governed by,construed under,and enforced
in accordance with,the laws of the State of Alabama,without regard to any conflict-of-laws rules to
the contrary.
13. Entire Agreement; Amendments. This Agreement embodies the entire
understanding of the parties with regard to the regulation and establishment of the affairs of the
Company,the conduct of its business,and the relations of the Member with respect thereto,and may
not be amended or modified except by a written instrument made,executed and delivered by all of
the parties hereto.
14. Severability. If any provision of this Agreement or the application thereof to a
person or circumstance shall be held by a court of competent jurisdiction to be invalid, illegal or
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Operating Agreement-Capstone-CS LLC DOC
unenforceable to any extent,the remainder of this Agreement and the application thereof shall not be
affected and shall be enforceable to the fullest extent permitted by law.
15. Heirs,Successors and Assigns. Each and all of the covenants, terms, conditions,
provisions and agreements herein contained shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs,legal representatives, successors and permitted assigns.
16. Headings. The headings in this Agreement are inserted for convenience of reference
only and are in no way intended to describe,interpret,define or limit the scope,extent or intent of
this Agreement or any provisions hereof.
17. Pronouns. All pronouns used in this Agreement shall be deemed to refer to the
masculine,feminine or neuter,singular or plural,as the identity of the person or persons may require.
18. Terminology. Unless otherwise indicated,terms used but not specifically defined in
this Agreement shall have the meanings ascribed to such terms in the Alabama Limited Liability
Company Act.
IN WITNESS WHEREOF,the parties have executed this Operating Agreement effective as
of the date first written above.
COMPANY:
CAPSTONE—CS,LLC
By: CAPSTONE DEVELOPMENT CORP.
Its Sole Member
By: 71:1illetdi
ob Howland
Its Chief Operating Officer
MEMBER:
CAPSTONE DEVELOPMENT CORP.
By:
Rob Howland
Its Chief Operating Officer
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Operating Agreement-Capstone-CS LLC DOC
EXHIBIT"A"
Name and Address of Capital
the Sole Member Contribution
Capstone Development Corp. $100.00
431 Office Park Drive
Birmingham,AL 35223
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Operating Agreement-Capstone-CS Ile Doc
!LLi!!i!!I!II/!illhII$11111
12 'zssas
Jeffer22 P :
This instrument prepared by: ,I �.rc;roan Cou v,Alabaiaa
led a
Christopher M.Gill,Esq. of NCKi
ng
Hand Arendall,L.L.C.
Post Office Box 123
Mobile,Alabama 36601
(251)432-5511
ARTICLES OF ORGANIZATION
OF
CAPSTONE—CS, LLC
TO THE HONORABLE JUDGE OF PROBATE
OF JEFFERSON COUNTY,ALABAMA:
I,the undersigned organizer,for the purposes of forming a limited liability company under
the provisions of the Alabama Limited Liability Company Act,as amended,currently codified at§
10-12-1,et. ., Code of Alabama(1975),do hereby make these Articles of Organization.
Section 1. Name. The name of the limited liability company(the"Company")is:
Capstone—CS,LLC
Section 2. Purposes. The purposes for which the Company is formed are:
(a) To carry on and transact any or all lawful business for which limited
liability companies may be organized under the Act,as amended from time to time,
and to have and exercise all powers necessary or convenient to effectuate the
purposes of the Company.
(b) To acquire, by purchase, lease or otherwise, any real or personal
property, and to invest, trade, rent out and deal in any real or personal property
deemed beneficial to the Company, and to encumber or dispose of any real or
personal property at any time owned or held by the Company.
(c) To acquire, by purchase, lease, manufacture, or otherwise, any
personal property deemed necessary or useful in the equipping, furnishing,
improvement,development,or management of any property,real or personal,at any
time owned,held,or occupied by the Company,and to invest,trade,and deal in any
845112 ; 1
personal property deemed beneficial to the Company,and to encumber or dispose of
any real or personal property,tangible or intangible,at any time owned or held by the
Company.
(d) To do any and all of the things herein set out and such other things as
are incidental or conducive to the attainment of the objectives and purposes of the
Company,to the same extent as natural persons might or could do and in any part of
the world, as principal, factor, agent, contractor, or otherwise, either alone or in
conjunction with any person,firm,association,partnership,corporation,association,
limited liability company,cooperative or any other entity of any kind whatsoever,and
to have and exercise any and all such powers to the full extent authorized or
permitted to a limited liability company under any laws that may now or hereafter be
applicable or available to the Company.
The foregoing subsections shall be construed,in the broadest sense,as purposes and powers
of the Company in addition to those powers specifically conferred upon the Company by law,
and it is hereby expressly provided that the foregoing specific enumeration of purposes and
powers shall not be held to limit or restrict in any manner the powers of the Company
otherwise granted by law. Nothing herein contained, however, shall be construed as
authorizing the Company to carry on the business of banking or that of a trust company,or
the business of insurance.
Section 3. Name and Address of Organizer. The name and mailing address of the
Organizer of the Company are as follows:
Kelly T.Fox,Esq.
1200 Park Place Tower
2001 Park Place North
Birmingham,Alabama 35203
Section 4. Initial Registered Office and Agent. The physical address of the initial
registered office of the Company is as follows:
431 Office Park Drive
Birmingham,Alabama 35223
The initial registered agent at such address shall be Lisa J. Johnson.
Section 5. Name and Address of Initial Member. The name and mailing address of the
initial member of the Company are as follows:
Capstone Development Corp.
431 Office Park Drive
Birmingham,Alabama 35223
845112_l 2
Section 6. Member Managed. The Company shall be managed by its members.
Section 7. Additional Members. The members of the Company shall have the right to
admit additional members in the manner provided in the Company's operating agreement, as
amended from time to time.
Section 8. Amendment. The Company reserves the right to amend, alter, change or
repeal any provision contained in these Articles of Organization in the manner now or hereafter
provided by law, and all rights conferred upon members herein are granted subject to this
reservation; provided, however, that no such amendment, alteration, change or repeal civil be
effective unless conducted in the manner provided in the operating agreement,as amended from time
to time.
Section 9. Terminology. Whenever the context requires, words used in the singular
shall be construed to mean or to include the plural and vice versa,and pronouns of any gender shall
be deemed to include and to designate the masculine, feminine or neuter gender.
IN WITNESS 'WHEREOF, the undersigned organizer has executed these Articles of
Organization on this the 11th day of December,2008.
k /t 915)(
KELLY HER FOX,Organizer
2008121101,1632300 3/3
Bk: LR208812 P9:28549
Jefferson County,Alabasa
12/11/2968 p1 INC
Total of Fees and Taxes-$51.00
LYNN
845112 1 3
JUIRIE OF PROBATE
716 Richard Arrington Jr.Blvd.North
Birmingham,AL,35203
Recordings(205)325-5411
Judges Alan L King&Sherri C Friday
PROBATE JUDGE Receipt for Services
Cashier LYNN Batch# 248924
Date: 12/11/2008 Time: 11:34:49AM
Customer Name HAND ARENDALL
Date lastruasent No Document Type Transaction Type Deed Coas. Mortgage Cons. Pg/Amt
12/1112008 11:34:49AM 20081211001632300 INC LR200812 28549 0.00 0.00 3.00
Party 1: CAPSTONE CS LLC Party 2:
Corporatioa.S51 51.00
INC Total: 51.00
Fee Total: 51.00
CHECK 143540 251432-5511 5I.00
Payment Total: 51.00
Dt,.. 4 of 4
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ACTION BY WRITTEN CONSENT OF
THE SOLE SHAREHOLDER AND DIRECTOR
OF CAPSTONE DEVELOPMENT CORP.
IN LIEU OF A SPECIAL MEETING
Pursuant to § 10-2B-8.21 and § 10-2B-7.04, Code of Alabama (1975), the undersigned,
being the sole shareholder and sole member of the Board of Directors of Capstone Development
Corp., an Alabama corporation (the "Corporation"), does hereby consent to and adopt the
following preambles and resolutions by written consent in lieu of a special meeting:
WHEREAS, the Corporation caused, on December 11, 2008, the formation of
Capstone— CS, LLC, an Alabama limited liability company ("College Station"), pursuant to
Articles of Organization filed with the Jefferson County Probate Court, with the Corporation
designated as the sole member of College Station;
WHEREAS, College Station was formed for the purpose of acquiring, owning- and
developing the Property(as that term is defined in the hereinafter defined Purchase Agreement);
WHEREAS,the Corporation entered into that certain Contract of Sale dated as of March
1, 2007 with TLS Properties, Ltd. ("Seller"), as amended by that certain(i) First Amendment to
Contract of Sale dated January 30,2008,(ii) Second Amendment to Contract of Sale dated April
30, 2008, (iii) Third Amendment to Contract of Sale dated August 26, 2008, (iv) Fourth
Amendment to Contract of Sale dated October 13,2008 and(v)Fifth Amendment to Contract of
Sale dated November 24, 2008 (collectively, the "Purchase Agreement"), whereby TLS
Properties,Ltd. agreed to sell the Property to the Corporation;
WHEREAS, the sole director and shareholder of the Corporation finds it desirable and
appropriate that the Corporation, in its capacity as the sole member of College Station, be
authorized to cause College Station to purchase and acquire the Property by assigning the
Corporation's interest under the Purchase Agreement to College Station pursuant to an
assignment and assumption agreement (the "Assignment") and by causing College Station to
perform all of the obligations of the"Purchaser"thereunder;
WHEREAS,upon its acquisition of the Property, College Station intends to develop and
construct a cottage project on the Property(the"Project");
WHEREAS,in order to enable College Station to purchase and acquire the Property and
begin construction and development of the Project, College Station has been negotiating with
Seller for a loan in the amount of$6,379,000.00(the"Loan"); and
WHEREAS, the consummation of the aforementioned transactions is deemed to be in
the best interests of the Corporation and in the best interests of College Station.
NOW, THEREFORE, BE IT RESOLVED, that the sole shareholder and director of
the Corporation hereby authorizes, approves and empowers Michael A. Mouron, its President,
Resolution-Capstone.College Station Execution Version 1
and Rob Howland, its Chief Operating Officer (either of which are an "Authorized
Representative" and both of which are collectively the "Authorized Representatives"), acting
together or alone, to take all such steps and perform all such acts that may be necessary or
required to cause the Corporation to assign the Purchase Agreement to College Station and to
cause College Station to purchase and acquire the Property, to consummate the Loan and to
construct and develop the Project;
BE IT FURTHER RESOLVED,that the Authorized Representatives, acting together or
alone,are hereby authorized, directed and empowered, as duly authorized representatives of the
Corporation,to execute and deliver the Assignment on behalf of the Corporation;
BE IT FURTHER RESOLVED,that the Authorized Representatives, acting together or
alone,are hereby authorized, directed and empowered, as duly authorized representatives of the
Corporation in its capacity as the sole member of College Station and on behalf of College
Station, to:
(a) execute and deliver the Assignment and all other agreements, assignments,
instruments or other documents (collectively, the "Property Documents") that
• shall be required by the Purchase Agreement to cause College Station to purchase
and acquire the Property;
(b) execute and deliver all agreements, assignments, instruments, certificates
or other documents that shall be required to consummate the Loan, including,
without limitation, a vendor's lien deed, a promissory note, and a deed of trust,
security agreement and financing statement(collectively,the"Loan Documents");
(c) negotiate with a lender for additional construction financing for the
Project, and to execute and deliver all agreements, assignments, instruments,
certificates, or other documents that shall be required to consummate such
additional constriction financing,including, without limitation, a loan agreement,
a promissory note, and a deed of trust, security agreement and assignment of rents
and leases (collectively,the"Construction Loan Documents");
(d) execute and deliver all agreements, assignments, instruments, certificates
or other documents that shall be required to construct and develop the Project
(collectively, the "Project Documents") (the Property Documents, the Loan
Documents, the Construction Loan Documents and the Project Documents are
sometimes hereinafter collectively referred to as the"Transaction Documents");
(e) to amend, modify, alter, extend, renew, or otherwise change any of the
provisions, terms, conditions, covenants or representations contained in the
Property Documents, the Loan Documents, the Construction Loan Documents or
the Project Documents;
'Resolution•Capstone-College Station 2
BE IT FURTHER RESOLVED, that the Transaction Documents may contain such
provisions, terms, conditions, covenants, warranties and representations as the Authorized
Representatives, or either of them, in their or his sole and absolute discretion, deem advisable,
necessary or expedient;
BE IT FURTHER RESOLVED, that the undersigned hereby ratifies, approves and
confirms any and all acts and things the Authorized Representatives, or either one of them,have
done with regard to the foregoing matters in the past,including without limitation, the execution
. of the Purchase Agreement,or which the Authorized Representatives, or either one of them,may
do in the future relating to or arising from or in connection with the Assignment, the Transaction
Documents or these resolutions, and such acts and things of the Authorized Representatives, or
either one of them, shall at all times receive the full faith and credit by all persons without the
necessity of inquiry by said persons;
BE IT FURTHER RESOLVED, that the Authorized Representatives, or either one of
them,in their or his sole and absolute discretion, if they or he deems proper and appropriate,may
abandon and terminate the foregoing transactions prior to the consummation thereof.
IN WITNESS WHEREOF, the undersigned sole shareholder and director of the
Corporation has set his hand and seal to this instrument on this the 12th day of December, 2008,
and by these presents, has directed the Secretary of the Corporation to place this instrument in
the minutes of the official proceedings of the Corporation.
SOLE SHAREHOLDER AND DIRECTOR:
Alf?-•Z4 Aelgo&-
MICHAEL A.MOURON
Resolution-Capstone-College station 3
UM J.Johnson
From: Jennifer Roselius[JRoselius@handarendall.com]
Sent: Wednesday, December 10,2008 4:20 PM
To: Ben W.Walker, IV;Lisa J.Johnson
Cc: Chris Gill
Subject: Closing documents for College Station
Attachments: Assignment and Assumption Agreement-Capstone-Cdllege Station.DOC; Resolution-Capstone-
College Station.DOC;image001 jpg
Ben and Lisa, •
Attached please find drafts of the Assignment and Assumption Agreement and resolutions authorizing the purchase of the
College Station property. Please let me know if you have any comments to these documents;I'd like to send to Bill Earle
tomorrow for his sign off.
I have not heard back from Texas regarding Lisa's proposed names for the LLC, but the name"Capstone—CS, LLC"appears to be
available. If this works for you, I'll have the articles of organization for the LLC filed tomorrow morning.
Thanks,
Jennifer
HAND. A.R.ENDALL
LLC a t. PON rrxs
Jennifer Roselus
Hand Arendall LLC
RSA Tower
Suite 30200
11 North Water Street
Mobile AL 36602
phone 251-694-6380
fax 251544-1691
E-MAIL CONFIDENTIAUTY NOTICE: This electronic mail message and any attachment is intended only for the person or entity to which it is addressed and may contain
irdormatton that is pdvieged,confidential or otherwise protected from disclosure. If you are not the intended recipient,you are hereby nonmed that dissemination,
dIstrbution(electronic or otherwise)or copying of this e-mail or the information corlalned herein is strictly prohibited. If you have received this e-mail in error,
please Immediately notify the.sender by replying to this message or by ca&ng(251)694-6279 to arrange for the return of the electronic mall,attachments,or documents.
Thank you.
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