HomeMy WebLinkAboutVA200700006 Agreements 2004-04-09 S:IlF'LETT F4R1M, LLC
MANAGER'S CERT C.TE
The undersigned Manager of Shi1ctt Farm, LLC (Ile "Company"),hereby
certifies as follows:
1. The copies of the Articles of Organization and Certificate of Organization
of the Company which arc ailached to this Certificate are true, complete and correct copies of the
articles of organisation and certificate of organization of the Company as in effect on the date
hereof.
2. 'Mu eupy of tlae Operating Agreement(3f the Company attached to this
CcrW cafe is a true, complete and correct copy of thc operating agreement of the Company as in
effect on the date hereof
4a.,,-r 1
WITNESS my signature as Manager of the Company as ofMagh Li , 2005.
Sttt,HtETT FARIM,LLC
By: StoncHaus, Inc., its onager
By: h -z'/)
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OPERATING AGREEMENT
OF
SHIFLETT FARM,LLC
THIS OPERATTh G AGREEMENT is made as of April 9, 2004;by the
undersigned Members of Shiflett Farm,LLC(the"Company").
Section 1.. .Background.
1.1 The Company will be formed as a limited liability company upon the
issuance by the Virginia State Corporation Commission of a Certificate of Organ77A ioa.
1.2 $ffectivc as of April 9, 2004, the Mcmbess will transfer to the Company
the amount of caab, or property set opposite their respective names on attached Exhibit A.
1.3 All of the Members of the Company enter into this Operating Agreement
to regulate or establish the aCFairs of the Company, the conduct of its business and the relations
of its Members.
Section 2. Management of the Company by a Manager.
2.1 The Members agree that the responsibility far managing the Company
shall be delegated Lo a Manager; no compensation shall be paid to the Manager for its services in
such capacity.
2.2 The Manager O71 be a natural person eighteen years of age or older, or an
entity, and need not be a resident of the Commonwealth of Virginia.
2.3 A Manager need not be a Member of the Company.
2.4 Until it is removed as provided in Section 2.6 hereof;the Manager shall be
StoncHaus,Inc., a Virginia corporation.
2.5 Any vacancy occurring in the office of Manager shall be filled by a vote of
the Members holding more than a majority interest in the membership interests of the Company.
2.6 The Manager may be removed with or without cause by a vote of the
Members holr]yng greater than #ty percent(50%) interest in the capital of the Company.
2.7 The Manager shall discharge its duties as Manager in accordance with its
good faith bmziness judgment of the best interests of the Company,
2.8 Unless it has knowledge or information concerning the matter in question
that melees reliance unwarranted, the Manager is entitled to rely on information,opinions,reports
or statements, including financial statements and other financial data, if prepared or presented
by:
(a) One or more managers, employers or agtnts of the Company
whom the Manager believes, is good faith, to be reliable and competent in the matters
presented; or,
(b) Legal counsel, public accountants or other persons as to mutters
the Manager believes, in good faith, are within the person's professional or exert
competence.
Section 3. „Limitation of Liability of-Members and Managers-
In any proceeding brought by or in.the right of the Company or brought by or on
behalf of any Member, no Manager or Member slin]l have any liability unless the Manager or
Member engaged in willful misconduct or a knowing violation of the criminal law.
Section 4. Business Transactions of Members or Managers.
A Member or Manager may lend money to and transact other business with the
Company and, subject to other•applicable law, has the same rights and obligations with respect
thereto as a person who is not a.Mcmbcr or Manager.
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Section 5. Contributions.
5.1 The contributions of a Member to the Company may be in cash or
property, or by a promissory not:or other binding obligation to contribute cash or props ty.
5.2 The amount of cash and a description and statement of the agreed value of
the other property contributed by each Member and which each Member has agreed to contribute
is set forth in Exhibit A, attached hereto. Exhibit A gha11 be amended from time to time as
appropriate.
5.3 Additional contributions shall be made from time to time within sixty days
following one or more written calls for additional contributions made by the holders of more
than two-thirds (2/3) of the membership interests'of the Company (a "Capital Call"). Such
additional contributions shall be made in proportion to the respective membership interetstts of the
Members. If a Mesa;tber fails to contribute, such Members pro rata share of a Capital Call
(thereafter a"Defaulting Member"), the Member that has contributed his or its pro rata share(s)
of a Capital C 1411 may elect to fund the unpaid cl-olre of the Defaulting Member (them a
"Funding Member"). AU non-pro rata contributions by the Funding Member shall be treated as
a loan to such Defaulting Member, with an intcxcst rate equal to the Wall Street Journal prime
raft of interest; plus four.(4)•percentage points (the,'Tunding Loan"). Any such Funding Loan
made to a Defaulting Member shall be paid by the Manager from such Defaulting Member's
share of distributions made in neeordance with Section 7 as such distributions become payable to
such Defaulting Member as if such additional capital contribution bad been made as required in.
response to a Capital Call, and no distribution shall be paid by the Company to such Defaulting
Mernber until the Funding Loan is paid in full to the Funding Member.
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5.4 If any loans made to the Company require the personal guarantee of the
Membt, the Members shall jointly and severally guarantee such loans, and each Member's
guarantee shall be proportional to his or its txtemberslaip interest in the Company.
Section 6. Information and Records.
6.1 The Manager shall keep at the principal office of the Company the
following:
(a) a current list of the full name and last known,business address of '
each member,
(b) a copy of the Articles of Organization and the Certificate of
Organization, and all Articles of Amendment and Certificates of Amendment thereto;
(c) copies of the Comptiny's federal, state and local income tax returns
and reports,if any, for the three most recent years;
(d) copies of any then-effective written Operating Agreements and of
any financial statements of the Company for the most recent three years; and
(e) a writing setting out
(i) the amount of cash and a description and statement of the
agreed value of theother property contributed by each Member and which each Member
has agreed to contribute;
(ii) the times at which or events on the happening of which any
sritiosaal contributions agreed to be made by each Member arc to be made;
(fil) any right of a Member to receive, or of the Company to
make,distributions to a Member which include a return of all or any part of the Members
contribution; and,
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(iv) any events upon the happening of which the Company is to
be dissolved and its affairs wound up.
6.2 Each Member has the right, upon reasonable request, to inspect and copy
any of the Company's records referred to in Section 6.1 hereof, and to obtain from the Manager
from time to time upon reasonable demand true anti fall information regarding the state of the
business and financial condition of the Company, and promptly after becoming available a copy
of the Company's federal, state and local tax retains for each year and other information.
regarding the affairs of the Company as is just and reasonable.
Section 7. Sharing of Profits and Losses;Distributions;£xpuLsion.
7.1 For purpose of this Agreement, `Profits" and "Losses" for each year are
understood to be an amount equal to the Company's taxable income and loss, increased by the
Company's income that is exempt from tax and decreased by the Company's expenditures which
may neither be deducted nor added to the basis of the Company's property for federal income tax
purposes.
7.2 Each Member's share of any excess nonrecourse liabilities of the Company
within the meaning of the Treasury Xeplations shall equal such McMber's membership interest
The allocations containclin Sections 7.4 and 93 are intended to comply with Section 704(b) of the
Internal Revenue Code, including the requirement thereunder that liquirta++ng proceeds be
distributed in accordance with.the Members' capital accounts. The allocation provisions of Sections
7.4 and 9.3 shall be changed to the cxtatt that the Company's accountant and/or counsel advises the
Company that each rhhnge is required under the Interne],Revenue Code in light of the mnnnnr in
which the Members have agmcd to bear tosses and to share distributions launder.
7.3 Taxable income, gain, loss, deductions and credits (and any item thereof)
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shall be allocated among the Members in the same manner asunder Section 7.4 except as otherwise
required under Section 704(c)of the Zntrcnal Rrvcout Code.
7.4 (a) Profl,ts shall'bc allocated as follows:
(i) First, to the Members who received prior allocations of Losses
pursuant to Section 7.4(b),in proportion to those prior allocations of Losses, until the
cturaulati.ve Profits allocated pursuant to this Section 7.4(a) equal the cumulative prior
allocutions of Losses under that Section_
(ii) Next, to the Members who received distributions (or doomed
distributions) pursuant to Section 7.5 until,the cumulative Profits allocated pursuant
to this Section 7.4(a) equal the cumulative amount of such distributions (or dee ed
distributions) made pursuant to Section 7.5. Allocations of Profit pursuant to this
Section 7.4(a) shall be made in proportion to the amount of distributions made
pursuant to Section 7.5 for which there has been no matching allocation of Profits
under this Section.7.4(a).
' (iii) Finnity, to the Members in proportion to their respective
membership interests.
(b) Lose1-cMcfii sh=a11 be allocated as follows
(i) First, to the Members who received prior allocutions of Profits
pursuant to Section 7.4(a) above until the cumulative Losses allocated pursuant to this
Section 7.4(b) equal the cumulative prior allocations of Profits under Section 7.4(a).
(ii) Next, to the Mcrnbers in proportion to their membership interests
until one of the Member has an adjusted capital account balance of zero, them to the
other Members in proportion to their Percerisige Interests until one of them has an
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adjusted capital accotu►t balance of zero, and so on in the same manner until no
Member has a positive Adjusted Capital Account balance.
(iii) kinPlly, to the Members ixt proportion to their respective
membership interests.
7.5 Subject to the setting up of any reserves that the Manager deems reasonably
necessary for cantingertt, ,nmatured or unforeseen liabilities or obligations of the Company, net
cash and capital proceeds shall be distributed to the Members, at such times and in such amounts as
the Manager may determine,as follows:
(a) Net Cash. kept as otherwise provided in Article IX below in connection
with the dissolution of the Company,net cash,if uny,shall be distributed as follows:
(i) First, to any Funding Member who made a loan pursuant to
Section 5.3, to repay the unpaid principal balance and any aceumulated but unpaid
interest on such loan (the amount of such distribution to a Funding Member clin11, for
purposes of Section 7.4, be treated as a "deerr►cd. 'distri'bution" to the Defaulting
Member, as defined in Section 5.3, rather than as a distribution to the Funding
Member);
(ii) Next, to any Members, pro rata in accordance with their,relative
membership interests, in the amount of their capital contributions, including
additional capital contributions, in the amount of such Capital Contributions which
have not been previously distributed pursuant to this Section,7.5(a) or Section 7.5(b).
(ii) Finally, to the Members in proportion to their respective
membership interests.
(b) Capital Proceeds. Except as otherwise provided in Section 9 below in
connection with the dissolution of the Company, capital proceeds, if any, shall be distributed as
follows:
(i) First, to any Funding Member who made a loan pursuant to
Section 5.3, to repay the unpaid principal balance and any accumulated but unpaid
interest on such loan(the amount of such distribution to a Funding Member shr 11, for
purposes of Section 7.4, be treated as a "deemed distribution" to the Defaulting
Member, as defined in Section 5.3, rather than as a. distribution to the Funding
Member);
(ii) Next, to any Members, pro rata in accordance with their relative
mcmbcrahip interests, in the amount of their capital contributions, including
additional capital contributions, in the amount of such capital contributions which
have not been previously distributed pursuant to this Section 7.5(b) or Section 7_5(a).
(iii) FiriA11y, to the Members in proportion to their respective
membership mace ants.
7.6 The Members acknowledge that it is their intseit that the Company will be
considered a "partnership" under subchapter K of the Internal Re-venue Code and. that the
Company will•.uot be subjected to any federal or stuteincomc taxation. T1 as a rtzult of changes
in the Internal Revenue Codc, Treasury Regulations, or otherwise, tax counsel to any Member
advisers that the Company is or may become subject to federal income taxation, all Members
agree to use reasonable bast ell'orts to amend this Agreemeat,modify the foam of business entity,
or take any other reasonable action necessary to achieve the Members' intention, provided that
such action shall not nmtrrinlly adversely rhAnge the approval rights or liability of the Members.
7.7 A Member may not be compelled to accept a distribution of any asset in
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kind from the Company, vccept upon the dissolution of the Company.
7.8 No distributions many be made by the Company ii, after giving effect to the
distrlbuti on:
(a) The Company would not be able to pay its debts as they become
due in the usual course of business; or
(b) The Company's total assets would be lets than the sum of itt total
liabilities plus the amount that would be needed(if the Company were to bo dissolved at
the time of the distribution) to satisfy any preferential rights upon dissolution of the
Members whose preferential rights are superior to the rights of Members,receiving the
distribution.
Section S. Members..
8.1 A membership interest in the Company is personal property.
8.2 A membership interest is assignable in whole or in part, subject to the
limitations coat in-d in Section 8.5. An assignment of a membership interest does not of itself
dissolve the Company. An assigmeent dots not entitle the assignee to participate in the
rnr{rtagement and affairs of the Company or to become or=ercise any rights of a Member. Such
assignmeazt entitles the assignee to receive, to the extent assigned, only the distributions Of any)
to which the assignor would have bean entitled.
8.3 Upon assignment of a. Member's entire membership interest, except for
collaleal security for an obligation or undertaking, a Member ceases to be a Member of the
Company. In the case of an assignment as collaterul.security, when the creditor asserts the right
to receive distributions butions From the Company,the Member ceases being a Member of the Company.
If an assignee of an interest in the Company becomes a Member, the assignor is not released
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from his liability to the Company under the provisions of the Virginia Limited Liability
Company Act.
8.4 An assignee who has become a Member has, to the c tent assigned, the
rights and powers, and is subject to the restrictions and liabilities, of a Member under the Articles
of Organization and this Operating Agreement. An assignee who becomes a Member also is
liable for any obligations of his assignor to male and return contributions as provided in Article
5 and 6 of the Virginia Limited Liability Company Act.
8.5 No person (whether an assignee or otherwise) shall become a Member
except with the unanimous consent of the Members. Notwithstanding the foregoing, a Member ,
may assigi all or port of his interest in the Company to his spousc or children, or to a trust for the
benefit of his spouse or children.
8.6 Any Member may be expelled from the Company without cause at any
time upon six month's written notice given by the unanimous vote of the other Members
provided the "other Members" giving such notice own at least a majority of the capital interests
of the Company. Any Member who ceases to be employed by Stonell:aus, Inc., or by an afeliate
of Robert Hauser Homes, Inc., or The Hauser Companies, Inc., may be expelled from the
Company by the,other Members upon ten days'written notice. Upon the expulsion of a Member,
such Member sl'nll be entitled to receive, within one year after such expulsion, the net fair
market value of such Member's membership interest in the Company as of the date of such
expulsion. For purposes of this Section, the "net fair market value" shall be the sum of(a) the
product of the expelled Members membership interest multiplied by the value of any real
property owned by the Company (reduced by usual and customary earpeuscs of sale, incinfling
but not limited to rual estate commissions, tnmsfer taxes and attorney's fees), as determined by
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an independent appraiser, plus (b) the product of the expelled Mrmbcr's membership interest
multiplied by the'book value of any other assets owned by the Company(as of the effective date
of such ctpulsion).
8.7 As provided by §13.1.1022(B) of the Code of Virginia (1950) (as
amended), the Members shall vote on all matters in proportion to their respective membership
interests in the Company. Initial capital contributions to the Company, as adjusted from time to
time to reflect any additional contributions (including allocated shares of en:stings) or
withdrawals ('including distributions by the Company of earnings or capital) arc sometimes
referred to in this Agrccraeat as the Members' "capital accounts."
Section 9. Dissolution.
9.1 The Company Blinn be dissolved and its affairs wound. up upon the
happening of the ftrst to occur of the following events:
(a) upon the written consent of the Members owning more than two-
thirds (2/3) of the Members'aggregate capital accounts; or
(b) the entry of a decree ofjudieial dissolution.
9.2 The Members who have not wrongfully dissolved the Company may wind
up the Company's affairs;but the circuit court of the locality in which the registered agent of the
Company is located, on cause shown, may wind up the Company's affairs on application of any
Member,his legal representative, or assignee.
93 Upon the winding up of the Company, the assets of the Company gull be
distributed,as follows:
(a) To creditors, including Members who are creditors, to the =te t
permitted by law, in satisfaction of liabilities of the Company other than for distributions
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to Members under Virginia Code §§13.1-1031 or 13.1-1033;
(b) To Members for return of their capital contributions;
(c) To Members with rmvpect to their interests in the Company, in the
proportions in which the Members share in distributions.
Section 10_ First Refusal Agreement.
10.1 No Member shall transfer, by sale or otherwise, any of his or her intaest
in the Company to any person who is not presently a Member of this Company without first
offering such interest to the other Members as herein.provided.
102 Before any Member shall transfer his or her interest to any person who is
not a Member,the Member shall:
(a) Offer in writing to sell the interest to the other Members at (i) the
price mutually agreed.upon by the Members or(ii) the price (and on.such terms) offered
to the selling Mcmbcx pursuant to a bona Ede offer for such interest from a third-party
offeror. A true copy of the third-party offer h j11 be delivered to the non-selling
Members together with the gn117nz Members offer to sell his or her interest to the non-
selling Members. The non-s01141T Members ,'within thirty (30) days of receipt of
such offer, accept or reject such b$er, in.writing. Failure to accept.such offer within the
allocated time shall be deemed a rejection of such offer. If more than ono next-selling
Member accepts such offer, the interest being sold shall be prorated among the Members
accepting such offer in the same proportions as their interests in the Company bear to one
another immediately before such purchase and sale.
(b) In the event one or more non-selling Members accept such offer,
settlement shall be node in accordance with the terms and conditions contained in the
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thud-party offer or as otherwise mutually agreed by the Members.
(c) If the non-selling Marabcrs full to accept such offer as hereinabove
provided, the offering Member shall be free to sell his or her interest to the third-party
offeror referred to in paragraph (a) of this Section 10.2, but only on the same terms and
conditions as were contained in the offer transmitted to the non-selling Members. In the
event the offering Member fails to close such sale within seventy (70) days from the date
the offer to sell,is first delivered to the non-sclling Members as provided by subparagraph
(a) above, then the offering Memberb shall be required to repeat the above procedure
before railing any sale of bis or her interest
Section ii. Death of a Member.
11.1 On the death of a Member, the other Members shall have the option to
continue the business of the Company (us provided in Section 9.1(b) of this Agreement) and to
purchase the deceased Members interest in the Company at a prate determined by an
independent appraiser, selected by the surviving Members and the Estate of the deceased
Member, knowledgeable in,the real emote business. Such option shall commence 30 days after
the quslification of the executor or administrator of the estate of the deceased Member or, if no
executor or Idministrator is qualified within 6 months of the death of such Member, on the date
which is 6 months after the date of death. Such option shall trrmint to 6 months after it
commences. If more than one Member elects to c ercisc this option, the interest so acquired
shall be prorated among the Members exercising such option in the same proportioils as their
interests in the Company bear to one another immediately before such option is exercised.
Closing sbjll be held within 45 days of written receipt by the atecutor or administrator of such
exercise of option.
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112 Notwithstanding the provisions of Section 11.1, any Member may,by will
or trust agrteczlent,provide that his or liar interest in.the Company will pass to his or her spouse
or children, or to a trust for the bencet of his or her spouse or children, or to the Member's
Estate, upon such Mcmbe's death. In such event, the option described in Section 11.1 ahall not
be applicable at the time of the mist transfer subsequent tranafers shall be subject to L'b=
provisions of Section 11.1.
Section 12. Miscellaneous.
12.1 This Agtcament maybe executed is counterparts.
122 This Agreement'shall be effective and binding upon the undersigned upon
the issuance by the Virginia State Corporation Commission of a CertiEcate of Organization for
the Company.
12.3 This Agxcezaaent may be aznended only with the unnnirnous written
consent of all of the Members.
WITNESS the following sigcntures as of the day and dare first above writtear,
Robert .Hauser
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Fes!' • Sto.ncr,
dird.ea-e-
John '..Desmond
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Si-tinzi`r FARM,LLC
Exhibit A—As ofAprll 9, 2004
Member Name Contribution ,Membership Interest
Robert M Hauser S 75.00 75%
Frank R Stoner,IV $ 20.00 20%
Yoh C.Desmond $ 5.00 5%
earnk\ers:
RobcrY'I1�.Hansa
Fri toner,TV
oc77647„:04)e--.
.Toh T.Desmond
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STONEHAUS,INC.
UNANIMOUS CONSENT OF MEMBERS
IN LIEU OF SPECIAL MEETING
TIM UNDERSIGNED, being all of the shareholders of StoneHa s, Inc., a Virginia
corporation (the "Company"), hereby consent to, take and approve the actions sot forth in the
following Resolutions.
RESOLVED, that any of Robert M. Hauser, President, or Frank R_ Stoner, IV, Vice
President, or John G.Desmond, Vice President, are hereby authorized to execute and deliver, as
Manager of and on behalf of Licldaghole Creek, LX.C, such documents as may be necessary or
convenient to enable Lic1 ghole Creek, LLC, to borrow from Bank of America, N.A
Mender"), the principal amount of One Nfillion Six Hundred Eighty Thousand Dollars
($1,680,000.00) (the "Loan"), as evidenced by a Promissory Note dated April 2,004 (the
"Note"), for the purchase of those parcels of real property situated in the County of Albemarle,
Virginity (with all appurtenances thereto and all personal property and improvements thereon),
and identified on Albemarle County Tax Map 56 as parcels 46, 53, 95A and 95B, containing
157.421 acres,more or less(the"property").
This Consent shall be sled among the minutes of the shareholders of the
Company.
Dated April 2004 O ERS: 1 .
RO APO Hauser
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Jo•• .Deond
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STATE CORPORATION COMMISSION
chmond, ,April 6, 2004
This is to certify that the certificate of organization of
Shiflett Farm, LLC
was this day issued and adrrutted to record an this office and that
the said limited C�aGidty company is authorized to transact its
business ,subject to all- Virginia Caws appCua6Ce to the company
and its Business. Effective date: April- 6, 2004
t. 5R:vi •. State Corporation Commission
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COMMONWEALTH OF VIRGINIA
STATE CORPORATION COMMISSION
ARTICLES OF ORGANIZATION FOR A
LIMMED LIABILITY COMPANY
Pursuant to the provisions of Chapter 12 of Title 13.1 afthe Code of V rgieia
(1950) (as amended),the undersigned stairs as follows:
1. Name_ The name of the limited liability company is:Shiflett Farm,LLC.
2. .C{egistered agent and,Registered Office.
(a) The post-office address of the limited liability company's initial
registered office is do Scott 1Cty cr, PLC, 418 'Last Water Strom Post Office Box 2737,
Charlottesville,Virginia 22902,which is located in the City of Charlottesville.
(b) The mime of its initial registered agent at that office is Robert J.
Kroner, are individual who is a resident of the Commonwealth of Vit'ha and a member of the
Virginia State Bar,and whose business office is identical with the registered office.
3. Principal Office_ The post office address of the principal office of the
limited liability company is 1412 Saabcm Place, Suite 201,Charlottesville,VA 22901.
4. Manager-Managed' The limited liability company shall be managed by a
manager.
Dated_March 30,2004
(91-1)4. gCo
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John E.Russell,Organiz=
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