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HomeMy WebLinkAboutVA200400016 Correspondence 2004-09-13 Sep . 13 . 2004 2 : 32PM No . 8921 P . 1/lb KAPPA t�-i FAT : ® NITY bstablizhed 1869 Fax(434) 296-9557 •Telephone (434) 295-3193 FAX TO: AO \ThFAX NUMBER: G^i,-41 aco PHONE: FROM: c)niC. )W&- DATE SENT: Q11310zfr NO OF PAGES tJ (Induding cover sheet) !f you do not receive all of the pages,please call and ask for Our FAX numbers are 434/296-9557 and 434/296-5733 (EF) RE: MESSAGE: RECENE . SEP 13 20114 C.CO11I1MUWe t 1 05_V 5.1_6P kEL`I CONFIDENTIALITY NOTICE Unless otherwise indicated, the information in this transmittal is confidential and Intended only for the recipient fisted above.If you are neither the Intended recipient nor a person responsible for delivering this transmittal to the intended recipient, you are hereby notified that any distribution or copying of this transmittal Is prohibited. If you received this transmittal in error, please Immediately notify us and return the transmittal to us at our expense, PO Box 5066 • Charlottesville,VA 22905-5066 • Office (434) 295-3193 • Fax(434) 296-9557 www.kappasigma.org SeP 13. 2UU4 2 : 31F'M INO L I F . L/ 10 Albemarle Carter Mountains Trust Albemarle Carter Mountains Management Co., LLC, Trustee 2213 Concord Pike Wilmington, Delaware 19803 September 13, 2004 Via Facsimile: 434/972.4126 Jan Sprinkle Chief of Zoning Albemarle County Zoning and Current Development 401 McIntire Road Charlottesville, VA 22902 RE: Albemarle Carter Mountains Trust VA 2004-016 Dear Ms. Sprinkle: When you returned from your trip you should have received the letter from Kappa Sigma Fraternity and the Albemarle Carter Mountains Management Co., LLC providing permission for Lori Garrett to be allowed to file the zoning variance for Kappa Sigma Fraternity given by Ronald J. Webb, Secretary. John Shepherd reviewed the document Friday and said these operational documents might be helpful in support of the petition. Please let me know if you need any further information. Sincerely, 4;f704Y: Mitchell B. Wilson Executive Director MBW:ksm SeP . H . '1UU4 2 :RPM NO LI f. 5� � 0 Albemarle Carter Mountains Management Co.,LLC A Delaware Limited Liability Company Written Consent of the Sole Member The undersigned being the authorized officer of Kappa Sigma Fraternity, a unincorporated association domiciled in the Commonwealth of Virginia (the "Fraternity,'), being the sole member of the Albemarle Carter Mountain Management, Co., LLC (the "Company") acting pursuant to Sections 18-101(10) and 18-401 of the Delaware Limited Liability Company Act (6 Del. Code §§ 18-101(10); 18-401), does hereby take the following actions: WHEREAS, pursuant to Article VI, Section 6.1 of the Operating Agreement of the Company dated March 27, 2004, (the "Operating Agreement'), the managers of the Company shall be the elected leadership of the Member of the Company; and WHEREAS, pursuant to the Operating Agreement of the Company, the Fraternity is the sole member of the Company(the"Member"); NOW, `HER-FORE, BE IT RESOLVED, the Member hereby confirms that the following individuals are the Managers of the Company by virtue of their position as the elected leadership of the Fraternity l(evin S, Kaplan. Donal L, McClamroch,Jr. H. Philip Bell, IV Ronald J. Webb Jeffrey A. Crow, Jr. BE IT FURTHER RESOLVED,that the Member hereby duly appoints and qualifies the following individuals,Managers of the Company, of corporate officers of the Company Name Office Kevin S. Kaplan President Ronald J. Webb Secretary Jeffrey A. Crow,Jr Treasurer IN WITNESS WHEREOF, the undersigned, being the authorized officer of the sole Member of the Company has taken this action as of this 27t day of March,2004. Sole Member KAPPA SIGMA RNITY , BY: Kevin S.Kaplan, orthy Grand Master Received Time SeP . l3. 11 : 32AM SeP . 13 , 2004 2 :33PM No . 8921 P . 4/1b ALBEMARLE CARTER MOUNTAINS MANAGEMENT CO., LLC OPERATING AGREEMENT R57Lmo1 24700.1 SeP . IU • 1UU4 1 : PM No . Z I P . 5/ I0 LIMITED LIABILITY COMPANY OPERATING AGREEMENT This Limited Liability Company Operating Agreement of, ALBEMARLE CARTER MOUNTAINS MANAGEMENT CO., LLC (the"Company"), (the "Agreement"), is entered into by and between the Company and, KAPPA SIGMA FRATERNITY, an unincorporated association domiciled in the Commonwealth of Virginia (the"Member") as of March 27, 2004 (the"Effective Date"). RECITALS: WHEREAS, Adam S. Apatoff, acting as Founding Member of the Company, caused the required Certificate of Formation to be filed with the Secretary of State of the State of Delaware on March 15, 2004; and WHEREAS, upon filing of the Certificate of Formation the Company is a duly organized and existing limited liability company under the Delaware Limited Liability Company Act, 6 Del. Code §18-101 et seq.,as amended(the "Act"), the Member desires to ratify the formation of the Company and to set forth the terms of governance for the Company on the terms provided in this Agreement; NOW,THEREFORE, in consideration of the foregoing and the mutual promises contained herein and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged and deemed to be legally binding,the Members and the Company hereby agree as follows: ARTICLE I Name; Place of Business; Ratification of Formation Section 1.1 Name; Place of Business. The name of the Company is Albemarle Carter Mountains Management Co., LLC. The business of the Company shall be conducted under such name or such other names as may from time to time be established by the Manager. The principal business office of the Company will be located at 2213 Concord Pike, Wilmington, Delaware 19803 or at such other location as may hereafter be determined by the Manager. Section 1.2 Ratification of Formation. The Member, by execution of this Agreement, RS'ILIHot 2:700.1 5eP l �• 1UU4 1 : WM No . nLI F . b/ Io hereby ratifies the formation of the Company as a limited liability company under and pursuant to the Act, and further accept the assignment of all interests in the Company held by the Founding Member, now and forever completely, totally and irrevocably releasing the Founding Member from any and all liability of any nature whatsoever related to or arising from the Founding Member's actions to form the Company. ARTICLE II Purpose, Business,and Term of Company Section 2.1 Purpose and Business of the Company. The purpose of the Company is to act as Trustee of the Albemarle Carter Mountains Trust, a Delaware statutory trust(the "Trust"), and shall include the doing of any and all things incident thereto or connected therewith, including without limitation acting at all times in accordance with the duties of the Trustee under any applicable governing instrument of the Trust(the "Trust Agreement"). The Company may engage in any and all businesses and activities that are permitted by the Act and which do not conflict with the Trust Agreement. Section 2.2 Term of the Company. The term of the Company shall commence on the date the Certificate of Formation of the Company is filed with the Delaware Secretary of State in accordance with the provisions of the Act and shall continue perpetual existence unless and until the earlier of the dissolution and termination of the Company pursuant to this Agreement, any action by the Member to dissolve and terminate the Company in accordance with the Act or this Agreement, or the date set forth on the Certificate of Formation of the Company. Section 2.3 Applicable Law. Regardless of the place where this Agreement may be executed by the party hereto,this Agreement,the rights and obligations of the party hereto, and any claims and disputes relating thereto, shall be subject to and governed by the Act and the other laws of the State of Delaware, and such laws shall govern the limited liability company aspects of this Agreement. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of this Agreement, including without limitation, any disputes regarding seeking injunctive relief, declaratory judgment or other equitable or legal remedy or relief, regardless of wherever or whenever any such dispute shall arise, shall be subject to the exclusive venue and jurisdiction of the Court of Chancery in and for the County of New Castle, X$t_roe unoo.a �eP l i LUU4 110 . 0 I r ' 1/ 10 Delaware. ARTICLE III Capital Contributions Section 3.1 Capital Contributions by Members; Interest. The Member shall make a capital contribution to the capital of the Company in the amount of cash, or of the property in- kind,or both, set forth on the Schedule of Capital Contributions attached hereto. Upon such Capital Contribution, the entire interest (voting, equitable, economic or otherwise) in the Company shall be vested in the Member and the Member shall be the sole owner and member of the Company. Section 3.2 Additional Capital Contributions; Additional Units. No additional contributions to the Company beyond those provided for in the Schedule of Capital Contribution shall be required of the Member. Notwithstanding the generality of the foregoing, the Member may, it its sole and absolute discretion make any additional capital contributions as required or necessary from time-to-time for the operation of the business of the Company. ARTICLE IV Capital Accounts Section 4.1 Capital Accounts. A Capital Account shall be maintained for the Member, and it shall be determined and maintained in accordance with the provisions of this Article and the provisions of Section 1.704-1(b)(2)(iv) of the regulations promulgated under the Internal revenue Code of 1986 (as amended) (the "Code") (the"Regulations"),the Regulations controlling in the event of a conflict between the two provisions. Section 4.2 (a)Increases to Capital Accounts. The Capital Account of the Member shall be increased by: (i) the fair market value of such Member's initial capital contribution; (ii) the fair market value of any additional capital contributions made by such Member; (iii) such Member's share of Company income and gain (including income and RSTLIB01 24700.1 eP • ld . LUU4 L : ddNM INU . 0 LI r . 0/ IU gain exempt from income taxation) computed in accordance with Section 4.3 and allocated to such Member pursuant to Article V of this Agreement; and (iv) the amount of any Company liabilities that are assumed by such Member. The fair market value of property contributed to the Company by the Member shall be decreased by any liabilities secured by the contributed property which liabilities are assumed by the Company and increased by such Member's share of such assumed liabilities. The Member's share of such liabilities shall be determined in the same manner as such Member's share of Company profits and Company losses is determined. (b) Decreases in Capital Accounts. The Capital Account of the Member shall be decreased by: (i) the amount of cash and the fair market value of any property distributed to such Member pursuant to any provision of this Agreement; (ii) such Member's distributive share of Company deduction and loss computed in accordance with Section 4.3 and allocated to such Member pursuant to Article V of this Agreement; (iii) the amount of any liabilities of such Member that are assumed by the Company; and (iv) the Member's share of all expenses characterized as non-deductible, non- amortizable syndication expenses under Regulation section 1.709-2(b). The fair market value of property distributed by the Company to the Member shall be decreased by any liabilities secured by the distributed property which liabilities are assumed by such Member and increased by such Member's share of such assumed liabilities. The Member's share of such liabilities and syndication expenses shall be determined in the same manner as such Member's share of Company profits and Company losses is determined. Section 4.3 Profit and. Loss. For purposes of computing the amount of any item of income, gain, loss,or deduction to be reflected in the Member's Capital Account, unless otherwise specified in this Agreement,the determination, recognition, and classification of any such item shall be the same as its determination, recognition, and classification for federal income tax purposes determined in accordance with Section 703(a) of the Code (for this purpose Rmtan 2.47o0., SeP . Id . LUU4 L . dJI'M INO . LI r , d/ IU all items of income, gain, loss, or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss),with the following adjustments: (a) Except as otherwise provided in Regulations Section 1.704-1(b)(2)(iv)(m), the computation of all items of income, gain, loss and deduction shall be made without regard to any election under Section 754 of the Code which may be made by the Company;provided that the amounts of any adjustments to the adjusted bases of the assets of the Company made pursuant to Section 734 of the Code as a result of the distribution of property by the Company to the Member(to the extent that such adjustments have not previously been reflected in the Member's Capital Account) shall be reflected in the Capital Account of the Member in the manner and subject to the limitations prescribed in Regulations Section 1.704-1(b)(2)(iv)(m). (b) The computation of all items of income, gain, loss and deduction shall be made without regard to the fact that items described in Sections 705(a)(1)(B) or 705 (a)(2)(B) of the Code are not includable in gross income or are neither currently deductible nor capitalized for federal income tax purposes. (c) Any items specifically allocated under Section 5.2 hereof shall not be taken into account as gain or loss from the disposition of such asset. ARTICLE V Allocation of Revenues and Expenses; Tax Matters; Distributions Section 5.1 Allocations of Revenues and Expenses. The Capital Account for the Member shall be maintained in accordance with the Regulations. All Company revenues and expenses, and all items of income, gain, loss and deduction comprising such revenues and expenses, shall be allocated in accordance with the Regulations so that such allocations comport with the economic interest of the Member in the Company. Section 5.2 Special Allocation Rules. Despite any other provision of this Agreement, the following special allocations shall be made in the following order: (a) Minimum Gain Chargeback. Despite any other provisions of this Article, if there is a net decrease in partnership minimum gain during any partnership year, the Member shall be specially allocated items of Company income and gain for such year (and, if [t$AL 0126700,1 SeP • I3 . 1UU4 'L : PM HO . OJLI F . IU/ ID necessary, subsequent years) in an amount equal to such Member's share of the net decrease in partnership minimum gain, as determined under Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to the Member pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Section 1.704-1(g)(6). This Section 5.2(a) is intended to comply with the minimum gain chargeback requirements in Regulations Section 1.704-2(£) and for purposes of this Section 5.2(a), only,the Member's adjusted capital account deficit shall be determined prior to any other allocations pursuant to Section 5.1 of the Agreement with respect to such fiscal year and without regard to any decrease in Member minimum gain during such fiscal year. (b) Member Minimum Gain Chargeback. Despite any other provision of this Article(except Section 5.2(a)hereof), if there is a net decrease in Member minimum gain attributable to the Member nonrecourse debt during any Company fiscal year, the Member who has a share of the Member minimum gain attributable to such Member nonrecourse debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such year(and, if necessary, subsequent years) in an amount equal to such Member's share of the net decrease in Member minimum gain attributable to such Member nonrecourse debt, determined in accordance with Regulations Section 1.704- 2(i)(5). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to the Member pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Section 1.704-2(i)(4). This Section 5.2(b) is intended to comply with the minimum gain chargeback requirement in such Section of the Regulations and shall be interpreted consistently therewith. Solely for purposes of this Section 5.2(b), the Member's adjusted capital account deficit shall be determined prior to any other allocations pursuant to this Article with respect to such fiscal year, other than allocations pursuant to Section 5.2(a) hereof. (c) Qualified Jncome Offset. In the event the Member unexpectedly receives any adjustments, allocations or distributions described in Regulations Section 1.704- 1(b)(2)(ii)(d)(4), 1.704- 1(d)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), and after giving effect to the allocations required under Section 5.2(a) and 5.2(b) hereof, such Member has an adjusted capital X$TI x ID1.24700,1 Sep . 13 , 1UU4 2 : 34PM NO . tiLl F . ii/ ID account deficit, items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, its adjusted capital account deficit created by such adjustments, allocations or distributions as quickly as possible. (d) Nonrecourse Deductions. Nonrecourse deductions for any taxable period shall be allocated to the Member in proportion to the initial capital contribution made. If the Manager determines in its good faith discretion that the Company's nonrecourse deductions must be allocated in a different ratio to satisfy the safe harbor requirements of the Regulations _ promulgated under Section 704(b) of the Code,the Manager is authorized to revise the prescribed ratio to the numerically closest ratio which does satisfy such requirements. (e) Member Nourecourse Deductions. Member nonrecourse deductions for any fiscal year be specially allocated to the Member who bears the economic risk of loss with respect to the Member nonrecourse debt to which such Member nonrecourse deductions are attributable in accordance with Regulations Section 1.704-1(i)(2). (f) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Section 734(b) or 743(b) of the Code is required,pursuant to Regulations to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such item of gain or loss shall be specially allocated to the Member in such a manner consistent with the manner in which the Capital Account is required to be adjusted pursuant to such Section of the Regulations. (g) Curative Allocations. The allocations set forth in Sections 5.2(a)through 5.2(f)(the"Regulatory Allocations")are intended to comply with certain requirements of the Regulations. It is the intent of the Member that, to the extent possible, all Regulatory Allocations that are made be offset either with other Regulatory Allocations or with special allocations pursuant to this Section 5.2(g). Therefore, despite any other provision of this Article (other than the Regulatory Allocations),the Manager shall make such offsetting special allocations in whatever manner it determines appropriate so that, after such offsetting allocations are made,the Member's Capital Account balance is, to the extent possible, equal to the Capital Account z.6Tt,W0J u7oo,t SeP I . 1UU4 '1 : 34NM NO . d L I r I C/ I O balance such Member would have had if the Regulatory Allocations were not part of the Agreement and all Company items were allocated pursuant to Section 5.1. In exercising its discretion under this Section 5.2(g), the Manager shall take into account future Regulatory Allocations under Section 5.2 that, although not yet made, are likely to offset other Regulatory Allocations previously made under Section 5.2. Section 5.3 Allocations for Tax Purposes. For federal income tax purposes, each item of income, gain, loss and deduction shall be allocated to the Member in the same manner as its correlative item of"book" income, gain, loss or deduction is allocated pursuant to Sections 5.1 and 5.2 of this Agreement. Section 5.4 Filing of Returns and Other Writings; Tax Matters Member. The Company shall use its best reasonable efforts to cause the preparation and timely filing of all Company tax returns and shall, on behalf of the Company,timely file all other writings required by any governmental authority having jurisdiction. The Member shall serve as the "tax matters member" for purposes of Section 6231 of the Code. Section 5.5 Distributions. At any time upon the request of the Member,the Company shall distribute all cash of the Company (or the amount specified by the Member) to the Member (a"Distribution"). The Company shall distribute to the Member such amounts necessary to satisfy any quarterly tax obligations of the Member, calculated at the highest applicable marginal rate of taxation (a"Tax Distribution"). Under no circumstances, however, shall any Distribution be made which reduces the balance of the bank accounts of the Company below the required minimum amounts. ARTICLE VI Management of the Company Section 6.1. In General. The Company shall be managed by a Board of Managers composed of the duly elected leadership of the Member(the `Board"). The Board shall be the Manager of the Company, and shall be solely responsible for the management of the Company, and shall have the fullest right, power, and authority to manage, direct, and control all of the business and affairs of the Company,to transact business on its behalf, and to sign for it or on its xsn.xaoa 2A700.J eP . I ,i . LUU4 L : ,f41-11 r . 1 J/ 1 J behalf or otherwise to bind the Company, except as otherwise limited by this Agreement, the Act or the Trust Agreement. Section 6.2 Action By Board. The Board shall act as Manager only by majority vote of all Members of the Board, subject to any additional requirements of the Trust Agreement. ARTICLE VII Limitations on Transfers of Members' Units Section 7.1 Basic Restrictions. The ownership and transferability of interests in the Company are substantially restricted. Except as otherwise provided in this Article,the Member may not sell, assign, give,hypothecate, pledge, transfer, bequeath, or otherwise dispose of any or all of its interest in the Company, voluntarily, involuntarily, by operation of law, or otherwise, to any other person or entity without the an affirmative vote of the members of the Member occurring in strict accordance with the applicable provisions of the Trust Agreement. Receipt or possession by a transferee or assignee of any interest in the Company, shall in no way imply that such transferee or assignee is, or cause such transferee or assignee to be a Member. No transferee or assignee may vote as a Member hereunder unless such transferee or assignee is the Member. Section 7.2 No Withdrawal Rights Prior to Dissolution. The Act prohibits the Member from withdrawing from the Company and this Agreement makes no change to that provision. Prior to the dissolution of the Company, the Member may receive any return of capital or other distribution of Company assets in respect of any withdrawal or attempted withdrawal. ARTICLE vui: Entire Agreement; Amendment of Agreement This Agreement and all schedules attached hereto represents the entire agreement between the Company and the Member with respect to the subject matter hereof Any amendment or supplement to this Agreement shall require the approval of the Member, and shall be effective only if in writing and signed by the Member. RSTLt O)2A700.1 eP . I ZUU4 L : i4NM I4U • 0 LI r . 14/ IU ARTICLE IX Dissolution The Company shall be dissolved, and shall terminate and wind up its affairs, upon the earlier of the determination of the Member that the Company should dissolve or the date set forth on the Certificate of Formation of the Company. The death, retirement, resignation, expulsion, bankruptcy, or dissolution of the Member shall not cause the dissolution of the Company. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BALNIK RSTLID01 24'700.1 5ev • 13. 2UU4 214PM 140 . 6UI F . 10/ 13 IN WITNESS WHEREOF, the Member and the Company,by their duly authorized representatives have executed and delivered this Agreement as of the Effective Date. The Company The Member A,LBEMARLE CARTER MOUNTAINS KAPPA SIGMA FRATERNITY MANAGEMENT CO., LLC C KAPPA SIGMA FRATERNITY By: Kevin S.Kaplan BY: Kevin S.Kaplan Worthy Grand Master Worthy Grand Master RSTI-90 a 24740.I