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HomeMy WebLinkAboutVA199900017 Agreements 1997-01-28 CERTIFICATE OF ALL PERSON R CORPORATIONS COMPOIING THE TITIOUS FIRM NAME OR CORPORATION OR CO-PARTNERSHIP OF goy) r,v£RN MARKS r The following named persons or corporations, with their respective business and residence addresses, embrace the names of each and every person or corporation owning or composing the fictitious firm name or corporation or co-partnership, named or styled as: /3oY_o TA )E N MAJ E whose business address is S'7Ai e IPouTE 2l o w. i2oy)) jhvf?,J (/4. and that the length of time for which said PA#r-xL4'SN,P is to continue is indefinite. NAME OF PERSONS BUSINESS ADDRESS RESIDENCE ADDRESS .2700 Ri9ic woo r ,41AN ( . WI-5 i/ 7— via. 3tAc,v , 013 3'O.( 3s aJ.ize 6R. 7710MAS (j. lvAI'KA3u- RuciaRs viu.0 uR. .1-79c SIGGNAATURES OF PERSONS LISTED ABOVE. STATE OF VIRG 11 COUNTY/CITY OF . )- 1 kl. 19X-- ,TO-NIT: Subscribed, sworn and acknowledged before me in my jurisdiction aforesaid by 111Qin. whose name(s) , is/are signed to the writing above. 19�� Given under my hand this, the /n day of. WC Q CD/r'�Cl/ NOTARY PU LIC My commission expires: C1dve411 - 3 , 193y. VIRGINIA: IN THE CLERK'S OFFICE OF ffi CIRCUIT COURT THE COUNTY OF ALBEMARLE This Certificate was received and filed this 10 da-y of ac2/4.00 - 19 Jn-` , at 172 , 11 o'clock 10-M. Filing fee of $)0..0% has been paid. TESTE: SffiBY J. MARSHAL., CLERK BY: /( 2, i p GEC/ DHPUTY COMMONWEALTH OF VIRGINIA ' pI C I OFFICIAL RECEIPT ALBEMARLE CIRCUIT COURT DEED RECEIPT DATE: 01/29/97 TIME: 12:25:00 ACCOUNT: 003CLR97000901 RECEIPT: 97000001457 CASHIER: KPS REG: AB05 TYPE: DOT PAYMENT: FULL PAYMENT INSTRUMENT 97000901 BOOK: PAGE: RECORDED: 01/2B/97 AT 12:24 GRANTOR NAME : BOYD TAVERN MARKET L L C EX: N LOCALITY: CO GRANTEE NAME : BLAKE. ROBERT EX: N PERCENT: 100% AND ADDRESS RECEIVED OF : MICHIE HAMLETT DATE OF DEED: 12/23/96 CHECK : $457.40 DESCRIPTION 1: 3.13 ACRES 2: CONSIDERATION: 219.200.00 ASSUME/VAL: .00 MAP: CODE DESCRIPTION PAID CODE DESCRIPTION PAID 301 DEEDS 15.00 145 VSLF 1.00 039 DEEDS AND CONTRACTS 328.80 213 COUNTY GRANTEE TAX 109.60 106 TECHNOLOGY FUND FEE 3.00 TENDERED 457.40 AMOUNT PAID: 457.40 CHANGE AMT : .00 CLERK OF COURT: SHELBY J. MARSHALL • I DC•18(5/96) PREPARED BY BOYLE, BAIN & DOWNER THIS DEED, made this 23rd day of December, 1996 , by and between ROBERT H. DOWNER, JR. , TRUSTEE OF THE BOYD TAVERN LAND TRUST, Grantor, and BOYD TAVERN MARKET, L.L.C. , a Virginia limited liability company, Grantee, whose address is U.S . Route 250, Boyd Tavern, Virginia 22947 W I T N E S S E T H : That for and in consideration of the sum of ONE HUNDRED SEVENTY-SIX THOUSAND AND 00/100 DOLLARS ($176, 000 . 00) , cash in hand paid, the receipt of which is hereby acknowledged, the Grantor does hereby GRANT, BARGAIN, SELL, and CONVEY with SPECIAL WARRANTY OF TITLE unto Boyd Tavern Market, L.L.C. , the following described property: All that certain lot or parcel of land with improvements thereon and appurtenances thereunto belonging lying on the north side of U.S . Route 250 in the Rivanna Magisterial District of Albemarle County, Virginia, containing 3 . 13 acres according to the plat of William Morris Foster, C.L.S. , dated September 5, 1978 and recorded in the Clerk' s Office of the Circuit Court of said County in Deed Book 657, page 594 ; AND BEING the same property conveyed to Grantor by deed of Kenneth C. Chisholm, Sr. and Barbara E. Chisholm, husband and wife, dated June 29, 1988 , recorded in said Clerk' s Office in Deed Book 1001, page 131 . 1 4 This conveyance is made expressly subject to easements, restrictions, conditions, and reservations contained in duly recorded deeds, plats, and other instruments constituting constructive notice in the chain of title to the property hereby conveyed, which have not expired by limitation of time contained therein or have not otherwise become ineffective . WITNESS the following s ' re d sea : [SEAL] . Downer. r. , Trustee of the Boy Tavern Land st STATE OF VIRGINIA AT LARGE: CITY OF CHARLOTTESVILLE: The foregoing Deed was acknowledged before me this day of January, 1997, Robert H. Downer. , Jr. , Trustee of the Boyd Tavern Land Trust . My commission expires : AVAW 3o/M1 Notary Pu lic 2 • BOYLE, BAIN & DOWNER Attorneys at Law P. 0. Box 2616 Charlottesville, Virginia 22902-2616 CLOSING STATEMENT January 28, 1997 SELLER: Robert H. Downer, Jr. , Trustee of the Boyd Tavern Land Trust PURCHASER: Boyd Tavern Market, L.L.C. PROPERTY: 3 . 13 acres on the north side of U.S. Route 250, Rivanna Magisterial District, Albemarle County, Virginia To: Agreed Purchase Price $176, 000 . 00 By: Purchaser' s Deposit held by Rogers & Company 1, 000 .00 By: Grantor' s Deed Tax 176 . 00 By: Seller' s prorata share of first half of 1997 real estate taxes ($424 . 80x1/183) 62 . 85 By: Cashier' s check payable to Boyle, Bain & Downer trust account -- balance due on Purchase Price 174 , 761 . 15 $176, 000 . 00 $176 , 000 . 00 Notes : 1 . Real estate taxes have been prorated based upon an estimated tax of $849 . 60 using the current assessment of the Property at fair market value . 2 . Purchaser shall pay the first half of 1997 real estate tax on the Property when due on or before June 5, 1997, having received a credit from Seller of $62 . 85 for Seller' s prorata share. 3 . Pursuant to Reg. § 1 . 6045-3T (e) (5) of the Internal Revenue Code of 1986 the Sellers' attorney is hereby designated as the "real estate broker" with respect to this transaction and shall be responsible for filing Form 1099-B, if required by said Regulation. This closing statement is deemed to be a Designation Agreement within the meaning of Reg. § 1 . 6045-3T (e) (5) . 4 . Seller' s Attorney shall be responsible for complying with the reporting requirements of § 58 . 1-317 of the Code of Virginia, if applicable . 5 . The above referenced cashier' s check in payment of the balance due Seller shown above is delivered to Seller' s Attorney in escrow pending notification by Purchaser' s Attorney that title to the Property has been updated with no objections found and that all documents have been recorded. In the event that objections to the title are found upon update of title, Purchaser' s Attorney shall redeliver the original deed to the Property to the Seller' s Attorney and Seller' s Attorney shall redeliver to Purchaser' s attorney said two checks and Seller shall remedy such objections to title to the extent that the Seller is required to do so pursuant to the terms of the Contract of Purchase . SELLER REPRESENTED BY: PURCHASER REPRESENTED BY: BOYLE, B DOWNER: MICHIE, HAMLETT, LOWRY, RASMUSSEN & TWEEL, PC 420 Park Street 5 t ' quare, Suite 300 Charlottesville, 22902 Charlottesville, VA 22902 BOYLE, BAIN & DOWNER Attorneys at Law P. O. Box 2616 Charlottesville, Virginia 22902-2616 CLOSING STATEMENT January 28 , 1997 SELLER: Robert H. Downer, Jr. , Trustee of the Boyd Tavern Land Trust PURCHASER: Boyd Tavern Market , L.L.C. PROPERTY: 3 . 13 acres on the north side of U. S . Route 250, Rivanna Magisterial District, Albemarle County, Virginia To: Agreed Purchase Price $176 , 000 . 00 By: Purchaser' s Deposit held by Rogers & Company 1, 000 . 00 By: Grantor' s Deed Tax 176 . 00 By: Seller' s prorata share of first half of 1997 real estate taxes ($424 . 80x1/183) 62 . 85 By: Cashier' s check payable to Boyle, Bain & Downer trust account -- balance due on Purchase Price 174 , 761 . 15 $176 , 000 . 00 $176 , 000 . 00 Notes : 1 . Real estate taxes have been prorated based upon an estimated tax of $849 . 60 using the current assessment of the Property at fair market value . 2 . Purchaser shall pay the first half of 1997 real estate tax on the Property when due on or before June 5, 1997, having received a credit from Seller of $62 . 85 for Seller' s prorata share . 3 . Pursuant to Reg. § 1 . 6045-3T (e) (5) of the Internal Revenue Code of 1986 the Sellers' attorney is hereby designated as the "real estate broker" with respect to this transaction and shall be responsible for filing Form 1099-B, if required by said Regulation. This closing statement is deemed to be a Designation Agreement within the meaning of Reg. § 1 . 6045-3T (e) (5) . 4 . Seller' s Attorney shall be responsible for complying with the reporting requirements of § 58 . 1-317 of the Code of Virginia, if applicable . 5 . The above referenced cashier' s check in payment of the balance due Seller shown above is delivered to Seller' s Attorney in escrow pending notification by Purchaser' s Attorney that title to the Property has been updated with no objections found and that all documents have been recorded. In the event that objections to the title are found upon update of title, Purchaser' s Attorney shall redeliver the original deed to the Property to the Seller' s Attorney and Seller' s Attorney shall redeliver to Purchaser' s attorney said two checks and Seller shall remedy such objections to title to the extent that the Seller is required to do so pursuant to the terms of the Contract of Purchase . SELLER REPRESENTED BY: PURCHASER REPRESENTED BY: BOYLE B IN .i' ) NER: MIC HAM TT, LOWRY, RASMUSSEN & TWEEL, PC S /4041 420 'are' 'reet / 5►0 ..rt ' quare, Suite 300 Charlottesville, VA 22902 Char ottesville, VA 22902 ARTICLES OF ORGANIZATION OF BOYD TAVERN MARKET, L.L.C. The undersigned hereby converts a general partnership formed under the provisions of Chapter 1 of Title 50 of the Code of Virginia to a limited liability company under the provisions of the Virginia Limited Liability Company Act and states the following: Article I. Name of Former General Partnership. The name of the former general partnership is BOYD TAVERN MARKET, (the "Partnership"). Article II. Initial Certificate of Partnership. The date and place of filing of the initial certificate of partnership were on December 13, 1996, in the Clerk's Office of the Circuit Court of Albemarle County, Virginia. Article III. Approval of Conversion. The terms and conditions of the conversion of the Partnership to a limited liability company were approved by all of the partners of the Partnership. Article IV. Name. The name of the limited liability company is Boyd Tavern Market, L.L.C. (the "Company"). Article V. Purpose. The purpose for which the Company is formed is to own, purchase, sell, exchange, manage, develop and operate real estate, and to operate a convenience store and gas station, and to transact any lawful business, not required to be specifically stated in these Articles, for which a limited liability company may be formed under the laws of the Commonwealth of Virginia. Article VI. Registered Office and Agent. The initial registered office is established at 500 Court Square, Suite 300, Charlottesville, Virginia 22902 in the City of Charlottesville, Virginia. The initial registered agent is John V. Little, who is a resident of Virginia, is a member of the Virginia State Bar and whose business address is the address of the initial registered office of the Company. Article VII. Principal Office. The principal office of the Company shall be located at U.S. Route 250, Boyd Tavern, VA 22947. Article VIII. Date of Dissolution. The latest date on which the Company is to be dissolved and its affairs wound up in December 31, 2026. Article IX. Limitation of Authority of Members. Any instrument transferring or affecting the Company's interest in real property shall bind the Company only when executed in the Company's name by all of the members of the Company. Date: December 20, 1996 t-ts.A_D. oh n . Kittle, Organizer OPERATING AGREEMENT OF BOYD TAVERN MARKET, L.L.C. (a Virginia Limited Liability Company) THIS OPERATING AGREEMENT of BOYD TAVERN MARKET, L.L.C., a Virginia limited liability company (the "Company") is made as of December 23, 1996, by and among its Members. ARTICLE 1 DEFINITIONS 1.1 Definitions. As used in this Agreement, the following terms have the following meanings: "Act" means the Virginia Limited Liability Company Act and any successor statute, as amended from time to time. "Affiliate" of another Person means: (a) any entity or individual that directly or indirectly controls or holds the power to vote 10%or more of the outstanding voting securities of the Person in question; (b) any Person 10%or more of whose voting securities are directly or indirectly owned, controlled or held with power to vote, by such other Person; (c) any Person directly or indirectly controlling, controlled by,or under common control with such other Person; (d) any officer, director or partner of such other Person; and (e) if such other Person is an officer, director or partner, any company for which such Person acts in any such capacity. "Agreement" shall mean this Agreement as the same may be amended, modified or supplemented from time to time. "Articles" has the meaning given that term in Section 2.1. "Bankruptcy" means the entry of an order for relief with respect to a Member in proceedings under the United States Bankruptcy Code, as amended or superseded from time to time. "Business Day" means any day other than a Saturday, a Sunday, or a holiday on which national banking associations in the State of Virginia are closed. "Capital Contribution" means any contribution by a Member to the capital of the Company. "Code" means the Internal Revenue Code of 1986 and any successor statute, as amended from time to time. "Commitment" means, subject in each case to adjustments on account of Dispositions of Membership Interests permitted by this Agreement, (a) in the case of a Member executing this Agreement as of the date of this Agreement or a Person acquiring that Membership Interest, the aggregate amount specified for that Member as its Capital Contribution on Exhibit A, and(b) in the case of a Membership Interest issued to a new Member pursuant to Section 3.4, the Commitment established pursuant thereto. "Company" means Boyd Tavern Market, L.L.C., a Virginia limited liability company. "Disability" means a physical or mental impairment that, in the written opinion of the physician appointed by the Company to examine a Member, can be expected to continue for at least one year, rendering a Member unable to perform his customary duties as a Member of the Company. "Dispose." "Disposing." or "Disposition" means a sale, assignment, transfer, exchange, mortgage, pledge, grant of a security interest, or other disposition or encumbrance (including, without limitation, by operation of law), or the acts thereof. "Member" means any Person executing this Agreement as of the date of this Agreement as a Member or hereafter admitted to the Company as a Member as provided in this Agreement, but does not include any Person who has ceased to be a Member in the Company. "Membership Interest" or "Interest" means the interest of a Member in the Company, including without limitation, rights to distributions (liquidating or otherwise), allocations, information, and to consent or approve certain actions as provided herein. "Person" means any individual, corporation, trust, partnership,joint venture, limited liability company or other entity. "Prime Rate" means a rate equal to the prime rate (or base rate) reported in the "Money Rates" column or section of The Wall Street Journal as being the base rate on corporate loans at larger U.S. Money Center banks on the first date on which The Wall Street Journal is published in each month, or failing such publication, the "prime rate" or "base rate" announced by the bank with which the Company has its principal banking relationship. "Required Interest" means one or more Members entitled to vote having among them more than 50% of the Sharing Ratios of all Members. 2 "Sharing Ratio" means, with respect to any Member, a fraction, the numerator of which is that Member's Commitment and the denominator of which is the sum of the Commitments of all Members. Other terms defined herein have the meanings so given them. 1.2. Construction. Whenever the context requires, the gender of all words used in this Agreement includes the masculine, feminine, and neuter. All references to Articles and Sections refer to articles and sections of this Agreement,and all references to Exhibits are to Exhibits attached hereto, each of which is made a part hereof for all purposes. ARTICLE 2 ORGANIZATION 2.1. Formation. The Company has been organized as a Virginia limited liability company by the filing of the Articles of Organization("Articles") under and pursuant to the Act. 2.2. Name. The name of the Company,and the name under which business of the Company shall be conducted, is "Boyd Tavern Market, L.L.C." 2.3. Office of the Company. The principal office of the Company shall be at such place as the Company may designate from time to time, and the Company shall maintain records there as required by the Act. 2.4. Purposes. The purposes of the Company are those set forth in the Articles. 2.5. Term. The Company commenced upon the filing of its Articles and shall continue until December 31, 2026, or until such earlier time as this Agreement may specify. ARTICLE 3 MEMBERSHIP; DISPOSITIONS OF INTERESTS 3.1. Initial Members. The initial Members of the Company are the Persons executing this Agreement as of the date of this Agreement as members. 3.2. Representations and Warranties. Each Member hereby represents and warrants to the Company and each other Member that (a) that Member has duly executed and delivered this Agreement; and (b) that Member's execution, delivery, and performance of this Agreement do 3 not conflict with any other agreement or arrangement to which that Member is a party or by which that Member is bound. 3.3. Restrictions on Disposition of Interest. (a) No Member may Dispose of an Interest in the Company without the unanimous written consent of all of the other Members. Any attempted Disposition of an Interest, or any part thereof, without compliance with this Agreement, shall be, and is hereby declared, null and void a2 initio. (b) Notwithstanding the provisions of Section 3.3(a), the interest of any Member in the Company may be transferred without the consent of any of the Members if(i) the transfer occurs by reason of or incident to the death, dissolution, divorce, liquidation, merger or termination of the transferor Member, and (ii) the transferee is a Permitted Transferee. A "Permitted Transferee" is any member of such Member's immediate family, or a trust, corporation, limited liability company, or partnership controlled by such Member or members of such Member's immediate family, or another Person controlling, controlled by, or under common control with such Member. (c) Subject to the provisions of Section 3.3(d), (e) and (f), (i) a Person to whom an interest in the Company is transferred has the right to be admitted to the Company as a Member with the Sharing Ratio and the Commitment so transferred to such Person, if(A)the Member making such transfer grants the transferee the right to be so admitted, and (B) such transfer is consented to in accordance with Section 3.3(a); and (ii) a Permitted Transferee under the circumstances described in Section 3.3(b) has the right to be admitted to the Company as a Member with the Sharing Ratio and the Commitment so transferred to the Permitted Transferee. (d) The Company may not recognize for any purpose any purported Disposition of all or part of a Membership Interest unless and until the other applicable provisions of this Section 3.3 have been satisfied and the Company has received, on behalf of the Company, a document(i) executed by both the Member effecting the Disposition (or if the transfer is on account of the death, incapacity, or liquidation of the transferor, its representative) and the Person to which the Membership Interest or part thereof is Disposed, (ii) including the notice address of any Person to be admitted to the Company as a Member and its agreement to be bound by this Agreement in respect of the Membership Interest or part thereof being obtained, (iii) setting forth the Sharing Ratios and the Commitments after the Disposition of the Member effecting the Disposition and the Person to which the Membership Interest or part thereof is Disposed (which together must total the Sharing Ratio and the Commitment of the Member effecting the Disposition before the Disposition), and(iv) containing a representation and warranty that the Disposition was made in accordance with all applicable laws and regulations and, if the Person to which the Membership Interest or part thereof is Disposed is to be admitted to the Company, its representation and warranty that the representations and warranties in Section 3.2 are true and correct with respect to that Person. Each Disposition and, if applicable, admission complying with the provisions of this Section 3.3(d) is effective as of the first day of the calendar month 4 immediately succeeding the month in which the Company receives the notification of Disposition and the other requirements of this Section 3.3 have been met. (e) For the right of a Member to Dispose of a Membership Interest or any part thereof or of any Person to be admitted to the Company in connection therewith to exist or be exercised, the Company must receive a favorable opinion of the Company's legal counsel or of other legal counsel acceptable to the Company to the effect that the Disposition or admission, when added to the total of all other sales, assignments, or other Dispositions within the preceding 12 months, would not result in the Company's being considered to have terminated within the meaning of the Code. The Company, however, may waive the requirements of this Section 3.3(e). (f) The Member effecting a Disposition and any Person admitted to the Company in connection therewith shall pay, or reimburse the Company for, all costs incurred by the Company in connection with the Disposition or admission (including, without limitation, the legal fees incurred in connection with the legal opinions referred to in Section 3.3(e)) on or before the tenth day after the receipt by that Person of the Company's invoice for the amount due. If payment is not made by the date due, the Person owing that amount shall pay interest on the unpaid amount from the date due until paid at a rate per annum equal to the Prime Rate. 3.4. Additional Members. Additional Persons may be admitted to the Company as Members and Membership Interests may be created and issued to those Persons and to existing Members, provided that all of the existing Members give their prior written approval to such admission and the terms and conditions thereof. Any such admission is effective only after the new Member has executed and delivered to the Company a counterpart of this Agreement. 3.5. Information. In addition to the other rights specifically set forth in this Agreement, each Member is entitled to full and complete access to all of the Company's books and records. 3.6. No Liability to Third Parties. No Member shall be liable for the debts, obligations or liabilities of the Company, including but not limited to a judgment decree or order of a court. 3.7. No Right to Withdraw. Except as otherwise expressly provided for herein, no Member shall have any right to voluntarily resign or otherwise withdraw from the Company without the prior written consent of all of the other Members. 3.8. Remedies for Breach. The Membership Interests are unique and each party to this Agreement shall have the remedies available to such party for the violation of any of the terms of this Agreement, including, but not limited to, the equitable remedy of specific performance. ARTICLE 4 5 CAPITAL CONTRIBUTIONS 4.1. Initial Contributions. Upon execution of this Agreement, each Member shall make the initial Capital Contributions described for that Member in Exhibit A. 4.2. Additional Capital Contributions. No Member shall be required to make any capital contribution in addition to his initial Capital Contribution, except upon the unanimous consent of the Members. 4.3. Return of Capital Contributions. A Member is not entitled to the return of any part of that Member's Capital Contributions or to be paid interest in respect of either that Member's capital account or Capital Contributions except as specifically provided in this Agreement. A Member is not required to contribute or to lend any cash or property to the Company to enable the Company to return any Member's Capital Contributions. 4.4. Advances by Members. If the Company does not have sufficient cash to pay its obligations, any Member that may agree to do so with a Required Interest's written consent may advance all or part of the needed funds to or on behalf of the Company. An advance described in this Section 4.4 constitutes a loan from the Member to the Company, shall bear interest at the Prime Rate from the date of the advance until the date of payment, and is not a Capital Contribution. 4.5. Capital Accounts. A capital account shall be established and maintained for each Member. Each Member's capital account(a) shall be increased by (i) the amount of money contributed by that Member to the Company, (ii) the fair market value of property contributed by that Member to the Company, (iii) such Member's distributive share of profits, and (iv) the amount of any Company liabilities that are assumed by such Member, and (b) shall be decreased by (i) the amount of money distributed to that Member by the Company, (ii) the fair market value of property distributed to that Member by the Company, (iii) such Member's distributive share of losses, and (iv) the amount of any liabilities of such Member that are assumed by the Company or that are secured by any property contributed by such Member to the Company. In the event any Membership Interest is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the capital account of the transferor to the extent it relates to the transferred Membership Interest. If any Member makes a non-pro rata Capital Contribution to the Company or the Company makes a non-pro rata distribution to any Member, the capital account of each Member shall be adjusted to reflect the then fair market value of the assets held by the Company immediately before the capital contribution or distribution. ARTICLE 5 ALLOCATIONS AND DISTRIBUTIONS 6 5.l. Allocations. All items of income, gain, loss, deduction and credit, whether resulting from the Company's operations or in connection with its dissolution, shall be allocated to the Members for federal, state and local income tax purposes in accordance with their respective Sharing Ratios. 5.2. Distributions. All distributions of cash or other property (except upon the Company's dissolution, which shall be governed by the applicable provisions of the Act and Article 10 hereof) shall be made to the Members in accordance with their Sharing Ratios. To the extent that it may lawfully do so, and for so long as it shall qualify as a partnership for federal income tax purposes, the Company shall make annual distributions of cash to the Members corresponding to an aggregate amount for each tax year of the Company which is not less than the federal and state income taxes payable by the Members on account of the income of the Company which is taxable to them, assuming that all such income will be taxed at the highest marginal rate applicable to the type of income involved (without taking into account any alternative minimum tax or "surtax" that may be payable by any Member with respect to any such income). All other distributions of cash or property shall be made at such time and in such amounts as determined by the Members. All amounts withheld pursuant to the Code or any provisions of state or local tax law with respect to any payment or distribution to the Members from the Company shall be treated as amounts distributed to the relevant Members pursuant to this Section. ARTICLE 6 MANAGEMENT OF COMPANY 6.1. Management by Members. The management of the Company shall be vested in the Members. Each Member shall be an agent of the Company for the purpose of its business. Except as otherwise provided in this Agreement, each Member shall have complete power and authority to manage and operate the Company and make all decisions affecting its business and affairs. Without limiting the generality of the foregoing, and except as limited, restricted or prohibited by the express provisions of this Agreement or the Articles, such persons shall have and may exercise on behalf of the Company all powers and rights necessary, proper, convenient or advisable to effectuate and carry out the purposes, business and objectives of the Company. 6.2 Restrictions on Authority of Members. In addition to other acts expressly prohibited or restricted by law, the Members shall have no authority to act on behalf of the Company and are expressly prohibited, without the unanimous consent of the Members, from: (a) borrowing money in the Company's name or using property owned by the Company as security for any loans; 7 (b) assigning, transferring, pledging, compromising or releasing any of the claims of or debts due the Company except upon payment in full, or arbitrating or consenting to the arbitration of any of the disputes or controversies of the Company; (c) making, executing or delivering on behalf of the Company any assignment for the benefit of creditors or any petition, pleading or motion under any law for the relief or aid of debtors, or any confession of judgment, deed, guarantee, indemnity, surety bond, or contract to sell all or any property of the Company other than in the ordinary course of business of the Company; (d) selling, purchasing, or leasing any Company property, or any interest therein, or entering into any contract for any such purpose other than in the ordinary course of business of the Company; or (e) becoming a surety, guarantor or accommodation party to any obligation. (f) making any loan or advance on behalf of the Company in excess of$1,000.00. (g) making any investment on behalf of the Company other than the investment of any cash of the Company in an interest bearing account established and maintained at a financial depository institution whose deposit accounts are insured by an instrumentality of the federal government. 6.3 Expenses and Reimbursement. All expenses incurred by any Member in managing and conducting the business of the Company shall be charged to or reimbursed by the Company. 6.4 Services. The Members shall devote such time to the Company as they deem necessary to conduct the Company's business in an efficient manner. 6.5 Standard of Care. No Member shall be liable in damages or otherwise to the Company or any Member for any action performed or omitted in good faith on behalf of the Company within the scope of the authority conferred upon him herein and for a purpose reasonably believed by him to be in the best interests of the Company, unless such action or omission was a result of fraud or constituted willful misconduct or gross negligence. 6.6 Transactions with Members or Affiliates. Nothing contained herein shall be deemed to prohibit the Company from entering into a contract with any Member, or an Affiliate of any Member, for the sale of goods to, or the performance of services for, the Company. if(and only if) the compensation paid for such goods or services is at a commercially reasonable and competitive rate and the other terms of the contract are at least as favorable to the Company as would be obtainable in an arm's-length transaction. 8 ARTICLE 7 LIMITATION OF LIABILITY; INDEMNIFICATION 7.1. Limitation of Liability of Member. The Members hereby acknowledge and agree that the liability of the Member to the Company or to any of the other Members shall be limited to the maximum extent permissible under Section 13.1-1025 of the Act. 7.2 Indemnification. The Company shall indemnify any Person who was or is a party to any proceeding, including a proceeding brought by a Member in the right of the Company or brought by or on behalf of the Members of the Company, by reason of the fact that such Person is or was a Member of the Company, or is or was serving at the request of the Company as a manager, director, trustee, partner or officer of another limited liability company, corporation, partnership,joint venture, trust, employee benefit plan or other enterprise, against any liability and reasonable expenses (including reasonable attorneys' fees) incurred by such Person in connection with such proceeding unless he has engaged in willful misconduct or a knowing violation of the criminal or securities laws. No amendment or repeal of this Section 7.2 shall have any effect on the rights provided herein with respect to any act or omission occurring prior to such amendment or repeal. If a Required Interest determines that the facts then known do not preclude indemnification, the Company shall advance or promptly reimburse the reasonable expenses incurred by an eligible applicant who is a party to a proceeding in advance of final disposition of the proceeding if the applicant furnishes the Company: (a) a written statement of his good faith belief that he has met the standard of conduct described in this Section 7.2.; and (b) a written undertaking, executed personally or on his behalf, to repay the advance if it is ultimately determined that he did not meet such standard of conduct. ARTICLE 8 TAXES 8.1. Tax Returns. The Company shall cause to be prepared and filed all necessary federal and state income tax returns for the Company, and shall make the elections described in Section 8.2. Each Member shall furnish to the Company all pertinent information in such Member's possession relating to Company operations that is necessary to enable the Company's income tax returns to be prepared and filed. 8.2. Tax Elections. The Company shall make any tax election the Company may deem appropriate and in the best interests of the Company or the Members. 9 8.3. "Tax Matters Partner". Thomas G. Harkabus is hereby designated as the "tax matters partner" of the Company for purposes of the Code. The Company may name a substitute or successor at any time. ARTICLE 9 BOOKS, RECORDS, REPORTS AND BANK ACCOUNTS 9.1. Maintenance of Books. The Company shall keep complete and accurate books and records of accounts, and the records required to be maintained by the Company pursuant to the Act. 9.2. Tax Information. The Company shall deliver to each Member as soon as possible after the end of each taxable year the information relating to the Company necessary for the preparation of the Members' federal income tax returns. 9.3. Accounts. The Company shall establish and maintain one or more separate bank and investment accounts and arrangements for Company funds in the Company name with financial institutions and firms that the Company determines. The Company may not commingle the Company's funds with the funds of any Member; provided, however, Company funds may be invested in a manner the same as or similar to the Members' investment of their own funds or investments by their Affiliates. ARTICLE 10 DISSOLUTION,LIQUIDATION, AND TERMINATION 10.1. Dissolution. The Company shall dissolve and its affairs shall be wound up on the first to occur of the following: (a) the written consent of a Required Interest; (b) the expiration of the period fixed for the duration of the Company set forth in the Articles; (c) the death, Disability, or Bankruptcy of any Member unless, within 90 days of any such event, a majority in Interest of the remaining Members agree to continue the business of the Company, in which case the Company shall not be dissolved and the business of the Company shall be continued; or (d) the entry of a decree of judicial dissolution of the Company. io 10.2. Winding Up Company Affairs. (a) Upon any dissolution of the Company and the payment of, or the making of due provisions for, all debts of the Company, the Company's assets (or the proceeds of the sale thereof) shall be distributed to the Members in Interest in proportion to their respective Capital Accounts. (b) The Company shall terminate when all assets of the Company have been sold and distributed and all affairs of the Company have been wound up. The Members shall execute and file any certificate or other document which may be appropriate to indicate such termination. ARTICLE 11 GENERAL PROVISIONS 11.1. Amendment or Modification. The Articles and this Agreement may be amended or modified from time to time only by a written instrument executed and agreed to by Members and executed and agreed to by a Required Interest; provided, however, that (a) an amendment or modification reducing a Member's Sharing Ratio or increasing its Commitment (other than to reflect changes provided by this Agreement) is effective only with that Member's consent, and (b) an amendment or modification reducing the required Sharing Ratio or other measure for any consent or vote in this Agreement is effective only with the consent or vote of Members having the Sharing Ratio or other measure theretofore required. 11.2. Offset. Whenever the Company is to pay any sum to any Member, any amounts that Member owes to the Company may be deducted from that sum before payment. 11.3. Notices. Except as expressly set forth to the contrary in this Agreement, all notices, requests or consents provided for or permitted to be given under this Agreement must be in writing and must be given either by depositing that writing in the United States mail, addressed to the recipient, postage paid, and registered or certified with return receipt requested or by delivering that writing to the recipient in person, by courier, or by facsimile transmission; and a notice, request, or consent given under this Agreement is effective on receipt by the Person to receive it. All notices, requests and consents to be sent to a Member must be sent to or made at the addresses given for that Member on Exhibit A, the address for such Members in the Company's records or such other address as that Member may specify by notice to the other Members. Any notice, request or consent to the Company must be given at the following address or such other address that constitutes the Company's principal place of business: U. S. Route 250, General Delivery, Boyd Tavern , VA 22947. Whenever any notice is required to be given by law, the Articles or this Agreement, a written waiver thereof, signed by the Person entitled to notice, whether before or after the time for such notice, shall be deemed equivalent to the giving of such notice. 1 1.4. Entire Agreement. This Agreement constitutes the entire agreement of the Members relating to the Company and supersedes all prior contracts or agreements with respect to the Company. whether oral or written. 11.5. Binding Effect. Subject to the restrictions on Dispositions set forth in this Agreement, this Agreement is binding on and inures to the benefit of the Members and their respective heirs, legal representatives, successors and assigns. 11.6. Governing Law: Severability. This Agreement is governed by and shall be construed in accordance with the law of the State of Virginia(without giving effect to principles of conflicts of laws). 11.7. Further Assurances. Each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and the transactions contemplated hereby. 11.8. Waiver of Certain Rights. Each Member irrevocably waives any right such Member may have to maintain any action for dissolution of the Company or for partition of the property of the Company. 11.9. Indemnification. To the fullest extent permitted by law, each Member shall indemnify the Company and each other Member and hold all of them harmless from and against all losses, costs, liabilities, damages and expenses (including, without limitation, costs of suit and attorney's fees) they may incur on account of any breach by that Member of this Agreement. 11.10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, the Members have executed this Agreement under seal as of the date first above written. MEMBERS: ���' (Seal) Thomas G. Harkabus (Seal) Alan G. Wetaz 12 EXHIBIT A Initial Name and Address Sharing of Each Member Commitment Ratio Thomas G. Harkabus $100.00 50% 35 Deer Drive Ruckersville, VA 22968 Alan G. Wetaz $100.00 50% 2700 Barwood Court Virginia Beach, VA 23456 13