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Home My WebLink Aboutresolution.council.089-20 RESOLUTION #89 Series of 2020 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN AMENDMENT TO LOAN AGREEMENT AND BOND NOTE BY AND BETWEEN 488 CASTLE CREEK, LLC, A COLORADO LIMITED LIABILITY COMPANY ("BORROWER") AND THE CITY OF ASPEN, A COLORADO MUNICIPAL CORPORATION (THE "CITY") AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AMENDMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council an Amendment to Loan Agreement and Bond Note (the "Amendment") by and between 488 Castle Creek, LLC, a Colorado Limited Liability Company ("Borrower") and the City Of Aspen, A Colorado Municipal Corporation (the "W') regarding and concerning the amendment to certain documents entered into by the Borrower and the City. A true and accurate copy of the Amendment is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that certain Amendment to Loan Agreement and Bond Note by and between 488 Castle Creek, LLC, a Colorado Limited Liability Company and the City Of Aspen, a Colorado Municipal Corporation, a copy of which is attached hereto and incorporated herein and does hereby authorize the City Manager to execute said agreement and any other documents in connection therewith, as approved by the City Attorney, on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 27' day of October, 2020. 1W4L=-- Torre, Mayor I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held October 27, 2020. t Nicole ennmg, Ci lerk DocuSign Envelope ID:B1E6E7E7-A148-446A-A003-373986F8DBB5 AMENDMENT TO LOAN AGREEMENT AND BOND NOTE THIS AMENDMENT TO LOAN AGREEMENT AND BOND NOTE, dated as of October &], 2020, (this "Amendment"), is by and between 488 CASTLE CREEK, LLC, a Colorado limited liability company, whose address is c/o SCG Development Partners, LLC, 8245 Boone Boulevard, Suite 640, Tysons Corner, VA 22182 (the "Borrower"), and the CITY OF ASPEN, COLORADO, a Colorado municipal corporation, whose address is 130 Galena Street,Aspen,_Colorado 81611 ("Lender"). WHEREAS,the Borrower and the Lender are parties to a certain Loan Agreement dated as of December 21; 2018 (the "Agreement ) providing Borrower with that certain loan in the amount of$7,123,903 (the"Bond Loan"); and WHEREAS, the Borrower is the maker of a certain Promissory Note (Bond Loan) dated as of December 21, 2018 (the "Bond Note') evidencing the Borrower's payment obligations under the Bond Loan and the Agreement; and WHEREAS, the Borrower and the Lender have agreed, on the terms and subject to the conditions set forth herein, to enter into certain amendments to the Agreement and the Bond Note;and WHEREAS, pursuant to that certain Financing Agreement by and among the Borrower, the Lender and the Colorado Housing and Finance Authority (the "Authority'), the terms of the Bond Note may not be amended, changed, modified, altered or terminated without the written consent of the Authority; and WHEREAS,the Authority is accepting this Amendment as set forth herein. NOW,THEREFORE, the parties hereto hereby agree as follows: §1. Amendments to the Agreement. (a) The Agreement is amended by revising the-definition of"Bond Loan Maturity Date"to read as follows: "Bond Loan Maturity Date: June 30, 2021." (b) The Agreement is amended by revising the definition of"Completion Date"to read as follows: "Comp'letion Date: December 15,2020" §2. Amendments to the Bond Note. The Bond Note is amended by replacing and "January 1,2021"as the"Maturity Date"with"June 30,2021." -1- DocuSign Envelope ID:B1E6E7E7-A148-446A-A003-373986F8D8B5 §3. Representations and Warranties. The Borrower hereby represents and warrants to the Lender as follows: (a) The execution and delivery by the Borrower of this Amendment and the performance by the Borrower of its obligations and agreements under the Agreement and the Bond Note, as amended hereby, are within the corporate authority of the Borrower, have been authorized by all necessary corporate proceedings on behalf of the Borrower, and do not, and will not, contravene any provision of law, statute, rule or regulation to which the Borrower or any of its subsidiaries or affiliates is subject or the Borrower's certificate of formation, operating agreement or any amendment thereof or of any indenture, agreement, instrument or undertaking binding upon the Borrower. (b) The Agreement and the Bond Note, as amended hereby, constitute the legal,valid and binding obligations of the Borrower, enforceable in accordance with their terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting generally the enforcement of creditors' rights. (c) No approval or consent of, or filing with, any governmental agency or authority is required to make valid and legally binding the execution, delivery or performance by the Borrower of the Agreement or the Bond Note, as amended hereby, or the consummation by the Borrower of the transaction among the parties contemplated hereby and thereby or referred to herein. (d) The representations and warranties contained in the Agreement were correct at and as of the date made. Except to the extent of changes resulting from transactions contemplated or permitted by the Agreement or contemplated by this Amendment and changes occurring in the ordinary course of business that singly or in the aggregate are not materially adverse and to the extent such representations and warranties relate expressly to an earlier date, such representations and warranties also are correct at and as of the date hereof. (e) The Borrower has performed and complied in all material respects with all terms and conditions of the Agreement and the Bond Note required to be performed or complied with by the Borrower prior to or at the time hereof, and as of the date hereof, after giving effect to the provisions hereof, there exists no Event of Default under the Agreement or the Bond Note. §3. Effectiveness. This Amendment shall become effective on and as of the date hereof, subject to the receipt by the Lender of counterparts of this Amendment duly executed by the Borrower and the Lender. P. Miscellaneous:Proy'isions. (a) Except as otherwise expressly provided by this Amendment, all of the terms, conditions and provisions of the Agreement and the Bond Note shall remain the same. It is declared and agreed by each of the parties hereto that the Agreement and the Bond Note, as amended hereby, shall continue in full force and effect, and that the Agreement -2- DocuSign Envelope ID:B1E6E7E7-A148-446A-A003-373986F8D8B5 and the Bond Note shall, together with this Amendment, be read and construed as one instrument. (b) THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT UNDER SEAL AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE STATE OF COLORADO. (c) This Amendment may be executed in any number of counterparts, and all such counterparts shall together constitute but one instrument. In making proof of this Amendment it shall not be necessary to produce or account for more than one counterpart signed by each party hereto by and against which enforcement hereof is sought. (d) The Borrower hereby agrees to pay to the Lender, on demand by the Lender, all reasonable out-of-pocket costs and expenses incurred or sustained by the Lender in connection with the preparation of this Amendment(including reasonable legal fees). [Signature Page Follows] -3- DocuSign Envelope ID:131 E6E7E7-A148-446A-A003-373986F8D8B5 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Loan Agreement and Bond Note to be duly executed and delivered, as an instrument under seal, by their respective officers thereunto duly authorized, as of the date first above written. BORROWER: 488 CASTLE CREEK,LLC, a Colorado limited liability company By: 488 Castle Creek GP,LLC, a Colorado limited liability company Its: Managing Member By: SCG Development Partners,LLC, a Delaware limited liability company Its: Co-Managing Member By: SCG Development Manager,LLC a Delaware limited liability company Its: Managing Member By: SCG Capital Corp, a Delaware oration Its: Sole M r By: �" d Name: Stephc ilson Title: President—Virginia Office LENDER: CITY OF ASPEN,COLORADO By: MW. Name: Torre Title: Mayor (SEAL) t: City Clerk 4 DocuSign Envelope ID:B1E6E7E7-A148-446A-A003-373986F8D8B5 This Amendment to Loan Agreement and Bond Note is accepted by the as of October 26],2020. COLORADO HOUSING AND FINANCE AUTHORITY By: Mior.W tciai Officer 5